Resolution 177-2020 1 County Attorney
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5 RESOLUTION NO. 177 -2020
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7 A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF
8 MONROE COUNTY, FORMALIZING THE PRIOR APPROVAL OF THE
9 SPECIAL MAGISTRATE'S RECOMMENDED ORDER REGARDING THE
10 BENEFICIAL USE DETERMINATION APPLICATION OF SCOTT AND
11 TONI BEAUCHAMP, AND DENIAL OF THE RELIEF SOUGHT BY
12 APPLICANTS.
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15 WHEREAS, Scott and Toni Beauchamp ("Applicants") filed an application for a
16 Determination of Beneficial Use("BUD")on January 14, 2013; and
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18 WHEREAS, the BUD application was referred to a Special Magistrate as provided in
19 Sections 102-105 and 102-106 of the Monroe County Code; and
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21 WHEREAS, the duly appointed Special Magistrate, D. R. Alexander, held an evidentiary
22 hearing on May 23, 2014; and
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24 WHEREAS, the Special Magistrate issued a Recommended Order with recommended
25 Findings of Fact and Conclusions of Law on July 10, 2014, and a copy of the Recommended
26 Order is hereby appended to, and made a part of, this Resolution; and
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28 WHEREAS, the Board of County Commissioners must approve, modify, reverse, or
29 approve with conditions a Recommended Order from a Special Magistrate during a public
30 hearing as provided in Monroe County Code, Section 102-108; and
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32 WHEREAS, a public hearing was held before the Board of County Commissioners on
33 March 23, 2016; and
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35 WHEREAS, the Board of County Commissioners unanimously voted at the March 23,
36 2016, hearing to approve without conditions the July 10, 2014, Recommended Order and deny
37 beneficial use relief; and
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39 WHEREAS, the Board of County Commissioners also unanimously voted at the March
40 23, 2016, hearing to direct staff to search for other solutions for Applicants and other similarly
41 situated property owners; and
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43 WHEREAS, following the March 23, 2016,hearing the Board of County Commissioners
44 did not formalize its decision to approve without conditions the July 10, 2014, Recommended
45 Order and deny beneficial use relief pursuant to a written resolution; and
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1 WHEREAS, on October 9, 2019, the Florida Division of Administrative Hearing
2 requested that the County provide it with a written final decision on the Recommended Order in
3 order to close out its case file;and
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5 WHEREAS, the Board wishes to formalize its acceptance of the recommendation of the
6 Special Magistrate as proposed in his Recommended Order;now therefore:
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8 BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF
9 MONROE COUNTY,FLORIDA,as follows:
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11 That the Board of County Commissioners hereby approves the Recommended Order
12 dated July 10, 2014, made by the Special Magistrate and adopts it as the final decision of the
13 Board. The final decision is denial of the relief sought by Applicants in their application for a
14 BUD.
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16 PASSED AND ADOPTED by the Board of County Commissioners of Monroe County,
17 Florida,at a regular meeting of the Board held on the 17th day of June,2020.
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19 Mayor Camithers ,YSB
20 Mayor Pro Tem Coldiron Yyg
21 Commissioner Cates yyg
22 Commissioner Rice Yes
23 Commissioner Murphy Yes
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26 . (SEAL) BOARD OF COUNTY COMMISSIONERS
27 Attest:KEVIN MADOK,Clerk OF MONROE C FLORIDA
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30 By By
31 As Deputy Clerk Mayor eat arruthers
32 .73
co O
COUMY ATTO WEY'S OFFICE
ASSISTS ECESCULLtEy
DATE: RI 1 t 7+o'•LO
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SCOTT AND TONI BEAUCHAMP,
Petitioners,
VS . Case No. 13-4632GM
MONROE COUNTY PLANNING
COMMISSION,
Respondent .
RECOMMENDED ORDER
This matter was heard before the Division of Administrative
Hearings (DOAH) by its assigned Administrative Law Judge, D. R.
Alexander, on May 23, 2014, at video teleconferencing sites in
Tallahassee and Marathon, Florida.
APPEARANCES
For Petitioners : Andrew M. Tobin, Esquire
Andrew M. Tobin, P.A.
Post Office Box 620
Tavernier, Florida 33070-0620
For Respondent : Derek V. Howard, Esquire
Assistant County Attorney
Post Office Box 1026
Key West, Florida 33041-1026
STATEMENT OF THE ISSUE
The issue is whether to approve Petitioners ' application
for a beneficial use determination (BUD) on their property
in Key Largo, Florida, and if approved, to determine the type of
relief that is appropriate .
PRELIMINARY STATEMENT
This proceeding was initiated after Petitioners were
advised by the Monroe County Planning Commission (Commission)
that they could not build a single-family residence on their
property because of zoning restrictions adopted by Monroe County
(County) in 1986 . Pursuant to section 102-105, Monroe County
Code (M.C.C. ) , Petitioners filed an application for a BUD,
claiming that the 1986 regulatory action by the County
constitutes a compensable taking of their property. This
administrative remedy, the current version of which was adopted
by the County in 2007, is available to property owners to secure
relief through a non-judicial process when they believe that a
land development regulation (LDR) or comprehensive plan policy
has deprived them of all beneficial use of their property.
See § 102-102, M.C.C. ; Future Land Use Element Policy 101 . 18 . 5 .
Pursuant to a contract, the application was referred by the
Commission to DOAH for a hearing before a special magistrate
(administrative law judge) . See § 102-105, M.C.C.
At the hearing, Scott D. Beauchamp testified on his own
behalf and presented the testimony of Emily Schemper, County
Principal Planner; Randolph D. Wall, a builder and former
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Planning Commissioner; and Robert A. Smith, an environmental
consultant and accepted as an expert . The County presented the
testimony of Emily Schemper, who was accepted as an expert .
County Composite Exhibit 1 was also received.
There is no transcript of the hearing. Proposed
Recommended Orders were filed by the parties, and they have been
considered in the preparation of this Recommended Order.
FINDINGS OF FACT
1 . Petitioners purchased their property in September 2006
for $60, 000 . 00 (or at the peak of the Florida housing boom) .
The parcel is located at the corner of Meridian Avenue and
Lycaloma Avenue, mile marker 94 . 5, on the Gulf of Mexico side of
U. S . Highway 1 in Key Largo. It is also identified as Block 9,
Lot 1, Section 3 of the Bay Haven Subdivision, an older,
partially-developed subdivision comprised of four sections and
several hundred lots .
2 . Since September 15, 1986, the subdivision, including
Petitioners ' lot, has been zoned Suburban Residential (SR) ,
which allows only one residential unit per two acres . No
challenge to that action was taken by any person, and no
contention has been made that the County failed to follow the
established procedure for adopting its LDRs . A challenge to the
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validity of the LDRs is now barred by the statute of
limitations . ' See § 95 . 11 (3) (p) , Fla. Stat .
3 . The Bay Haven Subdivision is located in South Key Largo
and was first platted after World War II . Building permits for
all existing homes in the subdivision were applied for before
the zoning change became effective in September 1986 . Due to
the SR restrictions, around 250 lots remain vacant at this time,
including 99 in Section 3 where Petitioners ' lot is located.
Many of these vacant lots have been deeded by their owners to
the County for conservation purposes in exchange for points that
can be used with a Rate of Growth Ordinance (ROGO) 2 allocation to
develop other property in the County.
4 . Petitioners ' corner lot lies at the intersection of two
streets and has an irregular shape with a large radius at the
intersection. It is bordered on two sides by single-family
homes, measures 8, 276 square feet, or around 0 . 19 acres, and is
somewhat larger than the typical subdivision lot size of 5, 000
square feet .
5 . Mr. Beauchamp, who resides in Wisconsin, testified that
he purchased the property with the expectation of building a
home when he retired as an air traffic controller. Before
purchasing the property, he assumed that it was zoned Improved
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Subdivision (IS) because this was the zoning incorrectly shown
on the multiple listing service sheet provided by his realtor.
6 . Neither Mr. Beauchamp nor his realtor was familiar with
County zoning classifications or permissible uses for the
parcel .3 Sometime in 2006 they visited a County office to secure
further information. Mr. Beauchamp says they spoke with two
unidentified "planners, " who told them that a single-family home
could be built on the property. However, nothing was confirmed
in writing, and there is no record of the meeting. Other than
this meeting, neither Mr. Beauchamp nor his realtor took any
other steps to verify the zoning on the property and/or any
development restrictions that might apply. Based solely on the
oral advice given by these two unnamed County employees, the
Beauchamps purchased the lot .
7 . According to Petitioners ' expert, Robert Smith, before
purchasing a vacant lot in the Keys, normal due diligence would
require a prospective purchaser to arrange a pre-application
conference with Planning Department staff and secure a written
Letter of Understanding confirming the rights of the property
owner. See § 110-3, M.C.C. However, Petitioners (and their
realtor) did not complete appropriate due diligence; they simply
checked with an unidentified County employee and without any
other assurance purchased the property. 4
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8 . In May 2012, Petitioners ' agent, Randy Wall, a builder
and former Planning Commissioner but not an attorney, met with a
representative of the County Building Department to begin the
process of securing approval to build a single-family residence
on the property. Mr. Wall was advised that the zoning on the
property was SR, which allows only one dwelling unit per two
acres . This was confirmed in an email dated July 13, 2012, from
the Assistant Director of Planning, which stated as follows :
The parcel has a zoning designation of SR
which requires Two (2) acres per residential
unit . As noted by planning staff, this
parcel does not have sufficient land area
for the zoning and associated density.
9 . At the meeting, Mr. Wall also inquired about the
possibility of changing the zoning on the property from SR to IS
(which would allow construction of a single-family home) , but
decided not to pursue that option because he recognized the poor
prospects of securing a zoning change for a single lot in a
large subdivision, when scores of other lots were subject to the
same restriction. He assumed, probably correctly, that this
might invite a spot zoning challenge .
10 . Other than having a discussion with County
representatives, Mr. Wall did nothing more . He did not file an
application for a residential dwelling unit allocation under the
County' s ROGO process, or any other formal application for
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relief, such as a change in the zoning district or land use
designation, a variance, or an exception.
11 . Believing that the County staff would "fix the
problem" because the County had made "a mistake" in
reclassifying the entire subdivision as SR, Mr. Wall prepared
and filed a BUD application, which was eventually deemed to be
complete on September 27, 2013 . The BUD process is intended "to
provide a means to resolve a landowner ' s claim that a [LDR] or
comprehensive plan policy has had an unconstitutional effect on
property in a nonjudicial forum. " § 102-103 (a) , M.C.C.
12 . An applicant for a BUD must include a statement
"describing the [LDR] , comprehensive plan policy, or other final
action of the county, which the applicant believes necessitates
relief under this division. " § 102-105 (b) (5) , M.C.C. The
application at issue simply stated that "the adoption of the
land use designation of SR for the subdivision of Bay Haven
constituted a compensable taking. " The application did not
refer to any comprehensive plan policy or final action taken by
the County. As relief, the application requested that the
County take one of the two following actions : (a) change the
Future Land Use Map and zoning designations to allow a residence
to be built on the lot; or (b) notwithstanding the SR zoning,
issue a permit for development .
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13 . The BUD process requires applicants to state whether
they are alleging a facial or as-applied regulatory taking as
the basis for administrative relief. See § 102-104, M.C.C.
Unless a landowner asserts that a LDR or comprehensive plan
provision, on its face, has caused a taking of his property,
relief is permitted only after "the landowner has received a
final decision on development approval applications from the
county, including building permit allocation system allocations,
appeals, administrative relief pursuant to section 138-54, and
other available relief, exceptions, or variances . " Id.
14 . Mr. Wall did not formally apply for any type of
development approval and received no final decision, as
contemplated by the Code . However, Mr. Wall testified that he
"understood" the County was waiving that requirement in this
instance . He also stated in the application that "Joe Haberman
contracted [sic] the Beauchamps and informed them that staff had
deemed this phase unnecessary and to move directly to submitting
a [BUD] application. " Other than this assertion, there is no
evidence to confirm this understanding, and the County' s
Principal Planner testified that a waiver had not been granted.
She also confirmed that no development approval application had
been filed, and no final decision had been made, both required
by the Code in order to seek relief under an "as applied"
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theory. Therefore, rightly or wrongly, as plainly stated in the
application, Petitioners ' basis for relief is that the LDR on
its face constitutes a taking of their property.'
15 . Besides a single-family home, which is impermissible
here due to size limitations of the lot, two other uses are
permitted as of right in the SR district : community parks and
beekeeping. See § 130-94, M.C.C. Also, a property owner may
apply for a minor conditional use, subject to approval by the
Planning Director. Permissible minor conditional uses include
public or private community tennis courts and swimming pools;
public buildings and uses; parks and community uses;
institutional uses; and churches, synagogues, and houses of
worship. Id. However, Mr. Beauchamp testified that he is not
interested in any of these uses since he believes most, if not
all, would be offensive to a residential neighborhood or simply
impractical due to the size of his lot . The property can also
be sold to the owners of adjacent Lot 11 to be used as a side
yard, its use before being purchased by Petitioners . Finally,
the Principal Planner testified that there are transferable
development rights (TDRs) on the property, whose value at this
time is unknown. See § 130-160, M.C.C. Therefore, the
Beauchamps are not deprived of all economically beneficial use
of their property. Cf. § 102-110 (c) , M.C.C. (" [t] he highest,
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common, or expected use, is not intended as an appropriate
remedy, unless expressly required by applicable statute or case
law") .
16 . There was no evidence from a property appraiser on the
fair market value of the parcel, as encumbered by the
regulation.
CONCLUSIONS OF LAW
17 . Pursuant to a contract with DOAH, after a BUD
application is determined to be complete, it is transmitted to a
special magistrate (administrative law judge) to set a hearing
date . See § 102-105 (d) (2) , M.C.C. The hearing process is
governed by the following broad guidelines established in
subsection 102-106 (b) :
At the hearing, the landowner or landowner ' s
representative shall present the landowner ' s
case and the planning director or the
planning director ' s representative shall
represent the county' s case . The special
magistrate may accept briefs, evidence,
reports, or proposed recommendations from
the parties .
18 . Section 102-109 (a) provides that relief under the BUD
process :
may be granted where a court of competent
jurisdiction likely would determine that a
final action by the county has caused a
taking of property and a judicial finding of
liability would not be precluded by a
cognizable defense, including lack of
investment-backed expectations, statute of
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limitations, laches, or other preclusions of
relief. "
19 . The applicant has the burden of showing that relief is
appropriate . See § 102-109 (b) , M.C.C.
20 . An applicant must allege and then prove (a) that the
enactment of a LDR or comprehensive plan provision, on its face,
constitutes a taking of the property; or (b) that "other final
action" has been taken on a development approval application,
which results in a taking of the property.
21 . The statute of limitations for the two remedies begins
to run at different times . For a facial takings claim, it
begins to run on the date of the enactment of the regulation
effectuating the alleged taking. Collins v. Monroe Cnty. , 999
So. 2d 709, 713 (Fla. 3d DCA 2008) . For an as-applied takings
claim, it does not begin to run until the property owner has
obtained a final decision from the land use authority regarding
the application of the regulations to the property. See Beyer
v. City of Marathon, 37 So. 3d 932, 934 (Fla. 3d DCA 2010) .
22 . If the statute of limitations has run, or the zoning
ordinance does not preclude all development of the property, a
takings claim must necessarily fail . Beyer at 934; Collins at
713 . Here, the four-year statute of limitations accrued with
the enactment of the 1986 zoning ordinance and precludes a
finding of liability on the part of the County. See § 102-109,
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M.C.C. While the parties dispute the economic productivity of
the other uses allowed on the property, it was not disputed that
the Code permits other uses; the parcel can be sold to the
owners of adjacent Lot 11 to be used as a side yard; and there
are TDRs associated with the parcel that can be used for other
purposes . Therefore, even if the claim had been timely filed,
the mere enactment of the regulation did not constitute a taking
of all economic value of the land.
23 . For an as-applied takings claim to be considered ripe,
a property owner must have taken reasonable and necessary steps
to allow the County to exercise its judgment regarding
development plans, including the opportunity to grant waivers
and variances or other relief. See Collins at 716; § 102-104,
M.C.C. Petitioners suggest, however, that given the
circumstances here, the filing of a development application
would be futile . Although the final action prerequisite may be
satisfied by proof that attempts to comply would be futile,
futility is not established until at least one meaningful
application has been filed. Glisson v. Alachua Cnty. , 558 So.
2d 1030, 1036 (Fla. lst DCA 1990) (quoting Unity Ventures v. Lake
Cnty. , 841 F. 2d 770, 775 (7th Cir. 1987) ) . It is undisputed
that no "meaningful application" has been filed, and no final
action has been taken. Also, there is insufficient proof to
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establish that the County intended to waive this requirement .
Therefore, even if the Beauchamps ' application does not
implicate a facial takings claim, an as-applied claim is not yet
ripe and should be denied.
24 . In summary, a court of competent jurisdiction likely
would determine that a final action of the county has not caused
a taking of property and a judicial finding of liability would
be precluded by a cognizable defense . See § 102-109, M.C.C.
Therefore, the application should be denied.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of
Law, it is
RECOMMENDED that the Board of County Commissioners deny
Petitioners ' application for relief under the BUD Ordinance .
DONE AND ENTERED this loth day of July, 2014, in
Tallahassee, Leon County, Florida.
D. R. ALEXANDER
Administrative Law Judge
Division of Administrative Hearings
The Desoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Fax Filing (850) 921-6847
www.doah. state . fl .us
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Filed with the Clerk of the
Division of Administrative Hearings
this loth day of July, 2014 .
ENDNOTES
1 Even though the County gave timely and proper notice that a new
zoning code and comprehensive plan were being adopted,
Petitioners ' agent, Mr. Wall, opined that many property owners,
including himself, were unaware of the ramifications of the
changes and failed to contest the LDRs or otherwise take any
interest in the amendment process .
2 At the direction of the State, the ROGO was implemented in
order to provide for the safety of residents in the event of a
hurricane evacuation and to protect the significant natural
resources of the County. ROGO is a competitive permit allocation
system whereby those applications with the highest scores are
awarded building permits . Even though there are currently more
than 8, 000 privately owned vacant lots in unincorporated Monroe
County, Florida Administrative Code Rule 28-20 . 140 allows the
County to issue only 197 building permits per year for new
residential development within unincorporated Monroe County in
order to maintain established hurricane evacuation clearance
times . This limitation on ROGO permits extends through the year
2023 . See County Ex. 1, Staff Report, pp. 12-13 .
3 The undersigned finds it puzzling that a licensed realtor in
the Keys would be unfamiliar with zoning districts, related
development restrictions, and the appropriate steps necessary to
verify that information.
4 The record does not show how many times the property was sold
between 1986 and 2006 . In any event, the undersigned assumes the
latest sellers failed to disclose the SR zoning restrictions when
they sold the property to the Beauchamps in 2006 .
At hearing, and in their Proposed Recommended Order,
Petitioners took the position that their application implicated
an as-applied takings claim. They did not directly respond to
the County' s treatment of the application as a facial takings
claim.
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COPIES FURNISHED:
Gail Creech, Clerk
Monroe County Planning Commission
Suite 410
2798 Overseas Highway
Marathon, Florida 33050-2227
Andrew M. Tobin, Esquire
Andrew M. Tobin, P.A.
Post Office Box 620
Tavernier, Florida 33070-0620
Derek V. Howard, Esquire
Assistant County Attorney
Post Office Box 1026
Key West, Florida 33041-1026
NOTICE OF FURTHER RIGHTS
This Recommended Order will be considered by the Board of County
Commissioners at a public hearing. See § 102-108, M.C.C. The
time and place of such hearing will be noticed by the County.
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