03/19/2008 Agreement
DANNY L. KOLHAGE
CLERK OF THE CIRCUIT COURT
DATE:
March 28, 2008
TO:
Andrew Trivette, Director
Growth Management Division
FROM:
Mayra Tezanos if
Executive Assistant f
Isabel C. DeSantis' \,}J
Deputy Clerk ~
ATTN:
At the March 19, 2008 Board of County Commissioner's meeting, the Board approved
approval and authorized execution of the following:
Development Agreement between Monroe County and Northstar Resorts Enterprises, Inc.,
at the request of Reed & Company Development Services, Inc. on behalf of Northstar Resorts,
Inc., in order to provide the developer with 110 affordable Rate of Growth Ordinance (ROGO)
allocations, agreeing to restrict these units to affordable employee housing, the developer
proposes to donate 47 permanent market rate ROGO exemptions to Monroe County. Attached
hereto is the original [)eyelopmel1tAgreement for your handling.
Should you have any questions, please do not hesitate to contact this office.
cc: County Attorney
File./
Deco 1588538 0410112e08 :48AM
Filed & Recorded in Official Records of
MONROE COUNTY DANNY L KQLHAGE
Prepared by: leas# 168a538
Reed&C0=Vft8y Dev Serrvfcru,lue. 8kN 2352 Pq# 2310
"W 0"ree"Highvmy,Suke 3
T'averaler,FL 33070
Phone:3054524852
DEVELOPSIENT AGREEMENT BETWEEN BOARD OF
COUNTY CONEWISSIONERS OF MONROE COUNTY,
FLORIDA AND NQRTHSTAR RESORTS ENTERPRISM
INC..
THIS AGREEMW.NT is made and entered into as of this 196 day of March,
2008,by and between the BOARD OF COUNTY CQ14UMMIONERS OF MONROE
COUNTY, FLORIDA ("Board" or "County"), and NORTHSTAR RESORTS
ENTERPRISES,INC.,a Florida Corporation("Developer").
KELM-
WHEREAS,the Hoard and the Developer recognize the fallowing:
A. This agreement is entered into in accordance with the Florida Local
Government Development Agreement Act, 163.1220-163.3243,Florida Statutes(" ct").
B. The Developer is the owner of swain real property located in .Monroe
County, Florida, and described in the attached Exhibit "A", currently referred to as
Lakeview Gardens ("Lakeview "),, and previously known as Florida Keys RV
Resort, Barefoot Key RV Resort.and Happy Vapborid. The site is comprised of some
11.68 acres of which approximately 10.24 acres are upland with a 1.44 lake. This site is
currently developed with thirteen(13)market rate, Rate of Growth Orditaance(ROGO)
exemptions established on the site in the form of mobile homes. The site was previously
developed in addition to the 13 market rate units with 126 RV ROGO exempt spaces.
C. The Developer is also owner of certain real property located in Monroe
County, Florida, and described in the attached Exhibit "W, currently referred to as
Northstar Resorts, (tire "Resort Site"), which is subject to approval P02-07 for the
development of a 138 unit resort hotel restaurant and accessory structures.
D. Resolution P55-03 by the Monroe County Planning Commission lawfully
established one hundred twenty-six (126) Rate of Growth Ordinance after
referred to as -ROGO-) exemptions firom the Lakeview Gardens Site (MM 106) as
eligible for transfer.
E. Resolution P56-03 by the Monroe County Planning Commission approved
the request filed by Northstar Resort to receive seventy-seven (77) RoGo exemptions
from the Lakeview Gardens site at the Resort Site.
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F. Resolution M-07 by the Monroe County Planning Commission approved
the request filed by Northstar Resort EnteTrium Corporation to receive forty-nine (49)
tramaent transferable ROGO exemptions(MEs)from the Lakeview Gardens site at the
Resort site. This resolution also identified the Lakeview Gardens as a linked site to the
Resort site where fifteen(15)affordable bousing units would be built prior to receiving a
certificate of occupancy on any of the hotel units at the Resort Site.
G. Development Order established forty-seven (47) POGO
exemptions at the Resort Site.
H. Development Order#05-04 approved Lakeview Gardens as a receiver site
for the forty-seven(47)ROGO exemptions identified in Development Order .
L There is limited land area suitable for residential development in the
County.
J. There is an unmet need of 7,317 affordable housing units.
K. Even moderate income households (those from 120-IW1e of the
County median income)are in need of affordable housing.
L. Due to state-imposed requirements related to hurricane evacuation
standards, there are a limited number of residential building perin is available on an
annual basis.
M. The County faces an unprecedented number of applications for
Administrative Relief and current market rate building permits applications with an
insufficient amount of market rate permits available to satisfy the
N. The County acts as an unbiased partner in the issuance of available Rate of
Growth Ordinance("ROGO")allocations.
O. Most of the recent awards of affordable ROGO allocations have been to
Lower Keys affordable housing projects: i.e. Park Village (40 allocations), Islander
Village(89 allocations);Overseas Redevelopment(49 allocations).
P. For funding approvals and other purposes Developer needs immediate
verification of affordable ROGO dwelling unit allocation set asides in order to receive
assurance of the County's commitment in order to proceed with the project.
Q. The County has amended land development regulations and created new
approaches with incentives to encourage development of affordable housing, but which
may not be applicable to this project.
R. This project will Help to meet Goal 601 of the Monroe County
Comprehensive Plan which states Monroe County shall adopt program and policies to
facilitate by all current and future residents to adequate and affordable housing
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that is safe, decent, and structurally sound, and that meets the needs of the population
based on type,tenure characteristics,unit size and individual preftrences.
S. Developer will develop 123 units of which 110 units will be designated as
affordable employee housing units and 13 will be desipaW as market rate units, in
addition to an accessory day care serving the residents of this development as well as a
community club house.
T. The County will provide to the Developer 110 required affordable POGO
allocations.. Developer will donate to the County the 47 market rate ROGO exemptions
from the Northstar Resort parcel. The developer will use its 13 market rate RUGS}
exemptions to construct the 13 market rate units, without the need to apply for any
additional market rate allocations. County will provide Developer with 91 lnclsionary
Housing Trackmg Certificates (IHTCs) to be used as credits to satisfy inclusionary
requirements at future locations.
U. On May 23,2007 an application for an amendment to a Major Conditional
Use Application was filed with the Monroe County Planning Department for
development of 123 residential units and accessory structures on the I akeview Gardens
site..
V. In order to foster comprehensive planning and to comply with Goal 601 of
the Monroe County ensive plan and to encourage the efficient use of resources,
to reduce the economic cost of development, and to afford certainty in the approval of
development the Board and the Developer desire to establish by agreement the terms
under with the Property may be developed.
W. On January 23,2008 the Monroe County Planning Corminsaion held the
first public hearing on this Agreement Notice of intent to consider this Agreement was
provided in accordance with law. The item was heard and continued to the next.Planning
Commission public hearing date on Fe 5,2008.
X. On March 19,2008 the Board of County Commissioners held the second
public hearing on this Agreement after providing notice in accordance with law.
NOW THEREFORE, in consideration of the mutual covenants entered into
between the parties,and in consideration of the benefits to accrue to each,it is agreed to
as follows.
I. Recitals.
The above recitals are true and correct and are 'incorporated herein and made a
part hereof:
2. PqMosc of AgIveingnt.
The parties agree as follow:
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Bktt 2352 P94 2313
a. County shall reserve 110 affordable ROGO allocations for
Developer to be built as affordable employee housing units, upon
the effective date of this Agreement. One hundred and four(104)
allocations shalt be moderate affordable ROGO allocations and six
(6)shall be low and very low allocations.
b. County to issue 75 of the 110 reserved ROGO affordable
allocations to developer upon the effective date of this Agreement.
C. County shall issue the remaining 35 reserved. RCS aff le
allocations on or before August 1,2008.
d. Developer to build 110 deed restricted affordable employee
housing units to help meet the deficit of current and future
affordable housing needs.. All units shall be deed restricted as
employee units,unless 2n below is applicable. Six(6)units shall.
be deed restricted for those weetirig low and very low income
standards.
e. Developer shall retain all 13 market rate ROGO exemptions and
shall rebuild the 13 market rate residential units on site as
protected and provided by Chapter 9.5-268 of the Monroe County
Code(MCC).
f. Developer shall convert the existing 2,892 square feet of existing
commercial floor area into a 1,558 square foot accessory club
house and a 1,334 square foot accessory owner's day care.
g. Developer shall donate to the County forty-seven(47)market rate
ROGO exemptions from the Resort site as established by
Development Order upon the effective date of this
Agreement for County's use.
h. Developer shall receive Ninety-one (91) lnctusionary (lousing
Tracking Certificates(1HTCs)from the County that can be used to
satisfy Inclusionary Housing requirernents for future developments
by Developer or others as outlined in Section 9.5-266 of the
Monroe County Code (MCC) or for any ether inclusionary
affordable housing requirements which may be imposed in the
future. Such certificates shall be provided by County to Developer
upon issuance of a certificate of occupancy for each of the ninety_
one(91)units. '1 racking certificates shall survive the expiration or
termination of the t.
L Ninety-One(91)of the affordable housing units are recognized as
inclusionary housing unit credits to satisfy future projects in the
upper keys sub area. This may include municipalities within the
same sub area if there is an appropriate interlocal agreement
pursuant to 9.5-266 of the Monroe County Code.
j. This agreement constitutes approved linkage of the sender site and
any receiver site(s)associated with these€e ficates and acts as a
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covenant running in favor of Monroe County which shall not
require finther Board approval. The covenant running in favor of
Monroe County will be tracked through the filing of the
lrnclusionary Housing Tracking Certificate(IRTC)certificate in the
public record. The Developer, as holder of the certificates, shall
provide a notarized t evidencing the transfer including:
owner of project, project name, legal description, real estate
number, number of units and numbered certificate being
transferred,
k.. Fifteen(15)of the one hunted and ten(110)Affordable employee
units serve to meet Resolution P02-07 in which Developer agreed
to build fifteen(15)affordable units linked to the Resort site. Four
(4')of the One Hundred and ten(110)units serve as inclusionaty
housing requirements for the thirteen(13) market rate units to be
redeveloped on site. These units will not receive knclusionary
Housing Tracking Certificates and can not be linked with future
projects.
1. Developer will apply for building permits within 9 months of
receipt of the initial.75 affordable ROGO allocations and receive
certificates of occupancy on the first 75 units within 24 months of
building permits being issued.
In. Developer will apply for building permits within one (1) year of
the receipt of the rnenraining 35 affordable RDCA allocations from
the County and receive certificates of occupancy on the nwiain ng
35 units within two(2)years of the building permits lasing issued.
n. Developer will return to County any portion of the unused 110
affordable allocations not used by the dates as specified in"l",W
and"q"unless Developer requests an extension of time within the
terra of this agreement, from the County,based one circumstances
that have created undue hardship to Developer,at which time the
tune as outlined may be extended by the County.
o. Developer will not be held to additional designation of restricting
the units to employee housing if prior to certificate of occupancy
of any of the units a land development :tion occurs in which
affordable housing units are added a permitted use without the
further designation of employee. However, under no
circumstances shall no less than nineteen(19)units be designated
as affordable employee units.
p, Ownership of affordable units may be by partnership, limited
partnership, corporation, governmental entity, co-operative or
similar types of ownership so long as the sales price and occupants
of the subject units meet affordable guidelines as provided in the
Monroe County Code.
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q. The Plug.Director may grant a one time extension of six (6)
months for building permit applications and construction deadlines
as set forth in"r and"m"above.
3. General Provisions.
a. L&yA Pescriptio and Qm r
The Lakeview Gardens property is described in Exhibit A attached
hereto and made part hereof, hlorthstar Resort Enterprises
Corporation,a Florida Corporation, is the legal and equitable title
holder to the Lakeview Gardens site.
The Resort Site is described in Exhibit B attached hereto and made
part hereof. Northstar Resort Enterpnses Corporation, a Florida
Corporation is the legal and equitable title holder to the Resort
Site.
b. Duration.
This Agreement shall expire ten(10)years after the Effective late
provided in Provision 9, unless earlier terminated as provided in
Provisions 5 and 6,or extended as provided in Provision 7.
C. levelopment Uses bmm2d Lo be Lemtted
(1) The development proposed on the Property includes 123
Residential units of which 110 of the units will be designated as
affordable employee housing units and 13 will be market rate
units. In addition the development includes a 1,558 square foot
accessory club house and a 1,334 square foot accessory owners
day care. All units proposed to be constructed have been designed
to be under the 35 foot height restriction as outlined in Section 9.5.
283 and all buildings have been designed to have finished floor
elevations at or above those required per floodplain management.
sections 9.5-316 and 317. Furthermore all.. buildings have been
designed with open porches,ceiling fans and energy efficient air-
conditioning units and appliances to reduce energy use.
Installation of native plant landscaping will reduce the
requirements for water and maintenance.
(2) Section 9.5-266 (a)(1)(b.) of the Monroe County Code
(MCC) permits the development of affordable and employee
housing as defined in Section 9.5A(A-5) and (E-1) on parcels of
land classified as Suburban Commercial(SC)at an intensity up to
a maximum net residential density of(18)dwelling units per acre.
2129108-Lakeview Gardens Development Agreement Page 6
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Based on 9.88 acres of upland.Suburban Co-. `al zoned land
the site could support up to 142 affordable housing units.
(3) Section 9.5-268 of the MCC states that "notwithstanding
the provisions of sections 9.5-262 and 9.5-263,the owners of land
upon which a lawfully established dwelling unit or a mobile
home...shall be entitled to one(1)dwelling unit for each such unit
in existence. Such legally-established dwelling unit shall not be
considered as a non-conforming use". Therefore the replacement
of the thirteen(13)market rate residential units is permitted.
(4) Owners club house and owners dayeare are considered
permitted accessory structures under Section 9.5-4(A-2)..
d. lde gWj on of A Public facilities seerving deve omens.
(1) Rp@&- Based on the I evel HI Traffic study prepared by
Transport Analysis Professionals )there are sufficient
reserve trips on US 1 Segment 24 in which the project is
located to handle the additional trips generated by the
development,
(2) Solid Waste - As of June 2006, Waste Managernent Inc.,
reports a reserve capacity of approximately 26 million
cubic yards at their Central Sanitary Landfill in Broward
County, a volume sufficient to serve their clients for
another seven (7) years. Monroe County has a contract
with WMI authorizing use of in-state facilities through
September 30, 2016, thereby providing the County with
approximately ten years of guaranteed capacity. tangoing
modifications at the Central Sanitary Landfill are creating
additional air space and years of life. In addition to this
contract, the 90,000 cubic yard reserve at the County
landfill on Cuidjoe Key would be sufficient to handle the
County's waste stream for an additional three years (at
current tonnage levels). The combination of the existing
haul-out contract and the space available at the Cudjoe Key
landfill provides the County with sufficient capacity to
accommodate all existing and approved development for up
to thirtm years.(Source PFCA 2006)
(3) Po 1e Water- According to the 2006 PFCA there is are
132 gallons on average per day per person available with a
maximum of 157 gallons per person per day. Based on an
average household size of 2.26, 132 gallons per person per
day would trarislate to 2" average gallons per household
per day or a maximum of 354(157 gallons per person per
day X 2.26) gallons per person per day. A single family
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home is expected to generate on average 350 gallons per
clay. Based on 110 units, since 13 of the units will be
redevelopments, it is estimated that upon build out the
project will require 38,500 (350 gpd X 1.10) additional
gallons of water per day. The existing 13 units will
continue to require 4,550 gallons of water per day.
Therefore the entire site with existing and new units will
require 43,050 gallons of water per day or 1,5713,250
gallons a year. A letter of coordination firom Ed.Nicolle,
Florida Keys Aqueduct Authority, on March 29, 2007
signifies that them is a 6"water main located in front of the
project and that it appears adequate to serve this project.
(4) Fire Protection- A six inch water main provides adequate
flaw for fire protection
(5) Ronda Electri ve �Q FKEC has
issued a letter of coordination stating there is sufficient
capacity to service this project
(6) Wastewater- Department of Health estimates 100 gallons
of wastewater per day per bedroom. Key Fargo Waste
Water Treatment Distract estimates 145 to 167 gallons of
waste water per un tlper day. Based upon the number of
bedrooms in the facility the site is estimated to generate
29,100 gallons of wastewater per day based on the more
conservative estimate of 100 gallons per bedroom per day
provided by the Health Department
Currently the site has a DEP Package plant, permit
14733. The current plant can accommodate up to lilt}
residences with minor upgrades that will be permitted
through the DER The package plant will continue to
operate at the time until the site can be"hooked"up to the
central sewer system which is operated by the Key Largo
Waste Treatment Distinct. Coordination Key Largo Waste
Treatment district confirmed that the force non is in place
running to the Key LAW treatment plant,however until the
second plant is operational connection will not be available.
KLW1'D confirmed that by mid 2008 the plant would be
operational and hook up available. Constriction on
Lakeview Gardens is anticipated to begin in the first
quarter of 2008 which would bring the im tiial units on tine
by the end of 2008 which would coordinate with operation
of the Key Largo waste treatment plant However,if they
are not prepared to handle the wastewater the DEP package
plant will be online until such a time.
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(7) Schools - The Monroe County Land !Development
Regulations do not identify a numeric level of service
standard for schools (such as 10 square fed of classroom
spy per student). Instead, Section 9.5-292 of the
regulations requires classroom capacity "adequate" to
accommodate the school-age children generated by
proposed land development.
The School Board uses recommended capacities provided
by the Florida Department of Education E) to
determine each school's capacity. All schools have
adequate reserve capacity to accornmodate flue impacts of
the additional land development activities projected for
2005-2006 school year The capacity runs approximately
93-95% of student stations which vary in number from
elementary, middle and high school due to class size
reduction. The class size reduction was a result of a state
constitutional amendment setting limits for the msurisnutn
allowable number of student in a class by the start of the
2010-11 school year that was passed by Florida's voters in
November 2002.
Enrollment figures for the 2004-2005 school year and
projected enrollment figures for the 2005-2006 school year,
show that none of the schools are expected to exceed their
recommended capacity. School facility plans arse based on
enrollment projections 5 yew out. And the utilization rate
5 years out is between 50 to 90 percent confirming
adequate capacity. If utilization was projected to exceed
one hundred percent then there would not be sufficient
capacity.
(8) lie ins - The median value (dollars) for a single family
residence in Monroe County in 2000 was$241,200 and in
2005 was$683,200. (US Census Bureau, Summary File l
(SF 1) and Summary File 3 (SF 3) and 2005 American
Community Surveys). There is a current unmet need of
7,317 affordable housing units in Monroe County. The
Developer is proposing to redevelop thirteen market rate
units and to provide 110 affordable units in the range of
$199K to the maximum sales price under affordable
Dousing guidelines. This project will help to meet the
needs of affordable housing as outlined by GOAL,601 of
the Monroe County Comprehensive Plan.
(9) Foes - Impact Fees shall be waived pursuant to Monroe
County Code (MCC) and no payment shall be required
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Bk# 2352 Pert 231E
upon termination of the ninety-nine (99) year deed
restriction. Building permit application and building permit
fees shall not be changed to developer, in accordance with
the fees waived in Resolution 156-2007 for not for profit
organizations.
C. Reservation of l..and for Public Patrnoses
The Developer is not currently aware of and specific reservation(s)
or dedication(s)necessary for the development authorized by this
Agreement Any reservations and dedications for public purpose
in connection with this Agreement will be as required by the
County's Comprehensive flan and Courtly Code or local utility
companies. Such reservations or dedications may include,by way
of example, easements necessary for the provision of stormwater,
utility,and wastewater services to the
f, Local Development Permits.
The following is a list of all development Permits approved or
needed to be approved for the development of the property as
specified and requested in this Agreement:
(1) This Development Agreement;and
(2) Amendment to a Major Conditional Use approval
for development of the Lakeview Gardens site;
and
(3) Building and related construction permits for
paving, a each residential unit
and accessory structures, land clearing, and
landscaping;and
(4) Federal, State, regional, and local permits for
stormwater runoff', driveway connections, and
environmental (or endangered species) takings,
when necessary and ifrequs`red-
g. Consisrten with Cgmprchensive Plan and. Land Develo meat
Re " ns
The Board finds than the Development Prograrri proposed for the
Property as provided in this Agreement is consistent with County's
Comprehensive Plan and Land Development Regulations.
h. on of caon&tt a_=M=tS
determined to be MMMM,by the local=Lcmnlent for the public
health,Mfg%or welfare of its citizens
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There are no additional condmons, terms, restrictions or other
requirements that are not already contained herem that are
necessary by the local government for the public health,safety,or
welfare of citizens.
i. QqWliance with law vermn tong area ;ts,
conditions or restriction
The future of this Agreement to address a particular permit,
condition, term, or restriction shall not relieve Developer of the
necessity of complying with the law governing said pennitting
requirements,conditions,term,or restrictions.
4. Local Laws and Policies Governing A t
The County's laves and policies governing the development of the land at the time
of the execution of this Agreement shall govern the development of the Property for the
duration of the Agreement. County's laws and policies adopted after the Effective Date
may be applied to the Property only if the determinations required by section
163.3233(s),Florida Statutes,have been made after written notice to Developer and at a
public hearing.
5. ent or ore—by Mutual Consent.
This Agreement may be amended or cancelled by mutual consent of the parties,
and shall terminate upon the issuance of the last lnclusionary Housing Tracking
Certificate. Prior to amending this Agreement, the Board shall hold public hearings as
required to by law.
6. lnvolun revocation of bevel t A t
The Board may revoke this Agreement if the Board determines through its annual.
review of this Agreement that there has not been substantial compliance with the terms
and conditions of this Agreement,including all amendments or extensions thereto. Prior
to any revocation of this Agrectncnt, the Board shall hold two public hcarmg& At the
public s), the Developer will be given an opportunity to rebut the assertion that
there has not been substantial c<xnplianoe with the requirements of this Agreement or any
amendments thereto. If the Board determines that revocation of this Agreement is not
necessary, the Board may amend the terms of the Agreement to provide for any
reasonable condition necessary to assure compliance with the requirements of this
Development Agreement,and any extensions or amendments thereto. Either party or any
aggrieved or adversely affected person may file an action for injunctive relief in the
Circuit Court for Monroe County to appeal the revocation or amendment of this
Agreement
7. Term.
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The initial terns of this Agreement shall be ton(10)years from the Effective Date.
This Agreement may be extended by mutual consent of the Board and the Developer,
subject to the County's public hearing requiremmt. However, this Agreement shall
expire after all terms and conditions have been met by both parties.
8. Record;gubrnissiart tc>Flr►rida t of Community Affairs
Within 14 days the Clerk to the Board shall.record the Agreement in the Public
Records of Monroe County. A copy of the recorded Agreement shall be submitted to the
Florida Department of Community Affairs within 14 days after the Agreement is
recorded. If this Agreement is amended,canceled, modified, extended,or revoked, the
Clerk shall have notice of such action recorded in the public records and such recorded
notice shall be submitted to the Florida Department of Community Affairs.
9. Effective Date.
This Agreement shall be effective 30 days after its rote pt by the Florida
Department of Community Affairs. Notice of the effective date of this Agreement shall
be provided by the Board to all affected parties to the Agreement
10. Annuat Review
The Board shall review the development that is subject to this Agreement every
12 months, commencing 12 months after r the Effective Date of this Ageement. The
Board shalt begin the review process by ghing notice,a n_n_mmum of 30 days prior to the
anniversary date for the effective date of this Agreement,to the Developer of its intention
to undertake the annual review of this Agreement and of the necessity for the Developer
to provide the following:
a. An ideritification of any changes in the plans of development as
contained in the Development Order, or in any phasing for the
reporting year and for the next year•
b. If the Development Order provided for phasing, a summary
comparison of development activity proposed and actually
conducted for the year.
C. An assessment of the Developer's compliance with each condition
of approval set forth in this Agreement.
d. Identification of significant local, state and federal permits which
have been obtained or which are pending by agency, type of
permit,permit number and purpose of each..
Any information required of the.Developer during a review shall
be limited to that neemary to determine the extent to which the
Developer is proceeding in good faith to comply with the ternos of
this Agreemnent. For each annual review conducted during years 6
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through 10 of this Agreement, the Board shall prepare a written
report in accordance with rules promulgated by the state land
planning agency. The report shall be submitted to the parties to the
Agreement and the State land planning agency. If the County hands
on the basis of substantial competent evidence that there has been a
failure to comply substantially with the teens of the Agreernent,
the County may revoke or modify the terms of this Agreement in
accordance with the procedures set forth in Provision 5..
11. Effect of Contrary State or Federal Laws.
in the event that any state or federal law is enacted after the execution of this
Agreement that is applicable to and precludes the parties from complying with the terms
of this Agreement,then this Agreement shall be modified or revoked as is necessary to
comply with the relevant state or federal law. Prior to modifying or revoking this
Agreement under this provision,the Board shall hold public hearings as required by law.
12. Enforcement
Either party, any aggrieved or adversely affected person, or the state land
planning agency,may file an action for injunctive relief in the Circuit Court for Monroe
County to enforce the terms of this Agreement or to challenge compliance of this
agreement with the provisions of ss. 163.3220-1+633243.
13. Notices.
a. The parties designate the following persons as representatives to be
contacted and to receive all notices regarding this t:
For the Board:
County Administrator
County of Monroe
1100 Simonton Street
Key West,Florida 33040
with a copy to:
County Attorney
Monroe County Attorneys Office
PO BOX 1026
Key West FL 33041-1026
with a copy to:
Growth Management Division Director
Growth Management Division
Marathon Govmmment Center
2798 Overseas Highway
Marathon,Fl,33050
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For the Developer:
Mr.Constantin Zaharia
9251 SW 140m Street
Miami,FL 33176
with a copy to:
Joel Reed
Reed&Company Development Services,Inc
89240 Overseas Highway,Suite 3
Tavernier,FL 33070
b. Any change in the person designated by a party to receive notices
hereunder shall be communicated in writing to the representative
of the other party designated hereunder.
14. Successors,AssiM and AMigqmCVL&
This Agreement shall be binding` upon the parties and their successors and
assigns. This Agreement,or portions hereof,will not be assigned by Developer,without
the express written approval of County, and such approval small not be unreasonably
withheld. In the event of an assignment,the Developer shall provide notice to:
County Ad ministrwor
County of Monroe
1100 Simonton Street
Key West,Florida 33040
County Attorney
Monroe County Attorneys Office
ce
PO BOX 1026
Key West FL 3 041-1026
Growth Management Division Director
Growth Management Division
Marathon Government Center
2798 Overseas Highway
Marathon,FL 33050
2129108-Lakeview Gardens Development Agreement Page 14
Dacft 1688538
SkU 2352 P94 2324
IN WITNESS WHEREOF,the parties hereto have caused the execution of this
Agreement by their duly authorized officials as of the day and year first above written.
Signed,sealed and delivered in the NORTHSTAR RESORT ENTERPRISES
Presence of CORPORATION
a Florida corpq ion
By: L�
Constantin Zaharia.
Its: —President
PrintName:
Witness ell
nt Name:
BOARD OF
COUNTY,
CO SIGNERS
MONRO OUNTY,Fl, A
o Y" Coy,
By:
k 0 nuni Coy,Mayor
0
APPROVED AS OF 7RM AND
CORRECTNESS
By: —County AAmey
STATE OF FLORIDA
COUNTY OF MONROE
The foregoing instrument was acknowledged before me this 28th day of
February,2008,by Constantin Zaharia'the President of Northstar Resort Enterprises
Corporation,a Florida corporation,who is personally known t personally known -9 me,or
who has produced de'nTiT RMM 6�n and who did/
not take an oath.
Notary Seal s.-2-S
Notary Public,State of Florida
Print Name: U.C&% :r_\!3 4,f.at•
I i
LMMANDO My Commission Expires: 2 ;k-0
000WAM"100 TOM 1=co
1131108-Lakeview Gardens Development Agreement Page 15
Pact! 1688538
Exhibits Bktt 23t 2 PV# 2325
A Survey with Legal Description of Lakeview Gardens
8 Survey with Legal Description of Resort site
C DOAH Final Order Case#04-1568 with Resolutions P 5-13 and P56-03
D Resolution P02-07
E Development Order#04-04
F Development Order#05-04
G sample Indus unary Housing Tracking Certificate(s)
2129108-Lakeview Gardens Development Agreement Page 16
Doc# 1688538
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State of Florida
Division of Administrative Hearings
Job Btu Harry L.Hooper
Governor `' Deputy Chief
Robert 8.Coben Administrative Laws Judge
Xreetor and Chief Judge i' _ scott lYtephens
ASM l:ole Deputy Chief Judge
Cleric of the Division "R .fudges of Compensation chats
November 4, 2 0(14 DOC# 1688538
Sku 2352 P90 2332
Nicole Petrick, Planning Commission Coordinator
Monroe County Growth Management Division
2758 overseas Highway, Suite 400
Marathon, Florida 33050
Re: SMART PLANNING AND GROWTH COALITION AN JEFF OSBORN vs.
MONROE COUNTY PLANNING COMMISSION AND NORTHSTAR RESORT
ENTERPRISES CORPORATION, DOAH Case No. 04. 1558
Lear Ms. Petrick:
Enclosed is a copy of pages I and 2 from the Final Order,
issued November 1, 2004 . The only changes are to correct
Intervenor's name.
Sincerely,
CHARLES A. STAMPEL,OS
Administrative Law Judge
CAS/hks
Enclosures
CC: Lee Robert Rohe, Esquire
Timothy Nicholas Thomes, Esquire
Dirk M. Smits, Esquire
Andrew M. Tobin, Esquire
The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399.3060
Administrative Law(850)488-9675*SUNCOM 278.9675*Fax Filing(850)921-6 47
FAX SUNCOM 291-6847 *Judges of Compensation Claims (850)487-1911
wwwv.d6a4h.�i FjTe.fl,1)s
Doc# 1689338
Bkq 2352 P9# 2333
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SMART PLANNING AND GROWTH }
COALITION and JEFF OSBORN",
3
Appellants, �
1
ors
}
MONROE COUNTY PLANNING } Case No. 0 4 r x 6 8
COMMISSION,
l
Appellee,
and }
3
NORTHSTAR RESORT ENTERPRISES
CORPORATION, }
}
Intervenor.
F'INAT, ORDER
Appellants, Smart Planning and Growth Coalition (Smart
Planning) and Jeff Osborn (Osborn) , seek review of Monroe County
Planning commission (Commission) Resolution Nos. P55-03 and P56-
03, approved by the Commission on September 24, 2003, and signed
by the Chair of the Commission on October 22, 2003 . Appellants'
appeals were timely filed and, consolidated,
The Division of Administrative Hearings, by contract, and
pursuant to Article XIV, Section 9 .5-535, Monroe County Grade
(M.C..C, ) , has jurisdiction, to consider these appeals
Doc# 1688538
Bk# 2352 P9# 2334
Appellants filed separate Initial Briefs and Smart Planning
filed a Reply Brief, which Osborn adopted. The Commission and
Intervenor, Northstar Resort Enterprises corporation
(Northstar) , filed separate Answer Briefs. Oral Argument was
presented by telephone on September 17, 2004.
Citations to the record on appeal in Case No. 04-1568 shall
be by the symbol (R) followed by a page reference. Citations to
the record on appeal in Case No. 03-4720 shall be by the symbol
(SR) followed by a page reference. See Endnote 2 .
I. Issues
Smart Planning contends that the Commission denied it
procedural due process of law and departed from the essential
requirements of law by denying Appellants, counsel the right to
cross-examine witnesses during the Commission hearing and in
denying party status to Appellants. Smart Planning contends
that there is no competent substantial evidence to support the
Commission' s determination to authorize the transfer of 126
Recreational Vehicle (RV) spaces from the Florida Keys R.V.
Resort (the sender site) to the Receiver site (Northstar' s
property and site for a proposed hotel and the subject of a
Major Conditional Use) or to recognize the existence and lawful
establishment of a 12-unit motel on the Receiver site. Smart
Planning also contends that the Commission departed from the
2
r {
State of Florida
Division of A ministr tive Hearings
.deb Bush ``,, Harry L.Hooper
Governor =� ��� Deputy Chief
Robert 8.Cohen _ l�dmis�;stratrvs E aw�u�lge
Director and Chief Judge ! Steven sc*tt"hone
#e Deputy Chief Judge
Amu Clerk of the DMsiofs Judges of Compensation Chime
November I, 2004 patq 1688538
Bk# 2352 Pg# 2335
Nicole Petrick, Planning Commission Coordinator
Monroe County Growth Management Division
2798 Overseas Highway, Suite 400
Marathon, Florida 33050
Re: PLANNING AND GROWTH COALITION AND JEFF OSBORN vs. MONROE
COUNTY PLANNING COMMISSION AND NORTHSTAR RESORT ENTERPRISES
CORPORATION, DOAK Case No. 04-1568
Dear Ms. Petrick:
Enclosed is my Final Order in the referenced case. Also
enclosed as the two-volume transcript, together with the, Index
of the Administrative Appeal.. Copies of this letter will serve
to notify the parties that my Final Order has been, transmitted
this date.
Sincerely,
CHARLES A. STAMIPELOS
Administrative Law Judge
CAS/hk
Enclosures
cc, Lee Robert. Rohe, Esquire
Timothy Nicholas Thomes, Esquire
Dirk M. Smits, Esquire
Andrew M. Tobin, Esquire
The Desoto Building, 1230 Apa3achee Parkway, Tallahassee, Florida 32399-3060
Administrative Law(850)488-9675 .8UNCOM 278-9675 • Fax Filing(850)921-6847
FAX 513NCOM 291-6847 ",Judges of Compensation Claims f85O) 487-1911
XVWW fine l arnrP (l „m
r
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SMART PLANNING AND GROWTH $ Doc# 1688538
COALITION and JEFF OSBORN, Oka 2352 P90 2336
Appellants,
3
vs. )
MONROE COUNTY PLANNING ) Case No. 04-1568
COMMISSION,
}
Appellee,
}
and 4
3
NORTHS'T'AR ENTERPRISES RESORT }
CORPORATION, }
l'
Intervenor. }
FINAL ORDER.
Appellants, Smart Planning and Growth Coalition (Smart
Planning) and Jeff Osborn (Osborn) , seek review of Monroe County
Planning Commission (Commission) Resolution Nos. PSS-03 and P56-
03, approved by the Commission on September 24, 2003, and signed
by the Chair of the Commission on October 22, 2003. Appellants'
appeals were timely filed and consolidated.
The Division. of Administrative Hearings, by contract, and
pursuant to Article XIV, Section 9.5-535, Monroe County Code
(M.C.C. ) , has jurisdiction to consider these appeals,
Doc# 1"8538
Slot 2352 P99 2337
Appellants filed separate initial Briefs and Smart Planning
filed a Reply Brief, which Osborn adopted. The Commission and
Intervenor, Northstar Enterprises Resort Corporation
(Northstar) , filed separate Answer Briefs. Oral Argument was
presented by telephone on September 17, 2004.
Citations to the record on appeal in Case No. 04-1568 shall
be by the symbol (R) followed by a page reference. Citations to
the record on appeal in Case No. 03-4720 shall be by the symbol
(SR) followed by a page reference. see Endnote 2.
1. Issues
Smart Planning contends that the Commission denied it
procedural due process of law and departed from the essential
requirements of law by denying Appellants, counsel the right to
cross-examine witnesses during the commission hearing and in
denying party status to Appellants. Smart Planning contends
that there is no competent substantial evidence to support the
Commission's determination to authorize the transfer of 126
Recreational Vehicle (RV) spaces from the Florida Keys R.V.
Resort (the Sender site) to the Receiver site (Northstar's
property and site for a proposed hotel and the subject of a
Major Conditional Use) or to recognize the existence and lawful
establishment of a 12-unit motel on the Receiver site. Smart
Planning also contends that the Commission departed from the
2
DocM 1688538
Ski$ 2352 P911 2338
essential requirements of law by ignoring the pending ordinance
doctrine.
Osborn incorporates the arguments made by Smart Planning
and likewise contends that there is no competent substantial
evidence to support the transfer of 126 RV spaces from the
Sender site and further that the moratorium adopted by the Board
of County Commissioners of Monroe county (Board) prohibits the
transfer of these RV spaces to the Receiver site.
11. Background
A. General
Northstar sought development approval for the tiansfei of
126 RV spaces from the off-site Sender site. Northstar filed a
Sender site application with supporting documents to accomplish
this request. (R95) . Northstar also filed a separate
application to receive Transferable ROGO Exemptions (TREs) in
the form of RV spaces for the Receiver site. (R286-288) . Both
applications sought the approval of minor Conditional Uses.
I n a collateral proceeding before the Commission, Northstar
applied for approval of a Major Conditional Use for
authorization to construct 89 hotel rooms and 8,158 square feet
of commercial use on the Receiver site.L On June 25, 2003, the
Commission approved this application by Resolution No. P47-03.
The chair of the commission signed this Resolution on
September 10, 2003. (SR215-220) . Resolution No. P47-03 is the
3
Doc# 1688538
BkV 2352 P9# 2339
subject of a pending appeal in Case No. 03-4720 brought by Smart
Planning and Osborn. A separate Final order has been entered
this date in Case No. 03-4720.'
B. The Sender Site :Application
1. Generally
On April 21, 2003, Northstar'B agent, Mr. Donald L. Craig,
A.I.C.P. , of The Craig Company, signed an application requesting
development approval for the transfer of 126 RV spaces located
at the Florida Keys R.V. Resort, Mile Marker (MM) 106.003,
106.003 Overseas Highway, Key Largo, Florida, the Sender site.
3
Northstar requested the transfer of TREs. (R95) .
The Sender site application represents there are 13 mobile
homes that will remain on the Sender site and that the proposed
use of the Sender site property will be for affordable housing
for moderate income levels. (R96) .
The Sender site application included several documents:
1. A description of the property is
included. (R100) .
2. Also included is a "miscellaneous
receipt" from Monroe county indicating the
fees for the Sender and Receiver site
applications were received on July 18, 2003.
(RI DI) .
3. Appendix A includes a commercial
contract and two addendums to the commercial
contract relating to the purchase and sale,
in part, of the Sender site property
(Northstar is the purchaser.) (RI04-111) .
4
Doan 1688538
Bk# 2352 PgO 2340
4. Appendix B consists of 18 pages of
Monroe County Property Record Cards for the
Sender site property. (RI13-130) . These
documents include building sketches and were
apparently run on April 17, 2003. Page 17
in part refers to Florida Keys R.V. Resort
at MM 106 and identifies 16 buildings
including an office (with a date of 1973) , a
camp building (1973) , and 13 mobile homes
with varying dates and 1 mobile home
identified as being used for storage.
(R129) . The second half of page 17 lists a
"history of taxable values" from years 1982
thru 2002 for land, buildings, and
miscellaneous/equipment. The document also
states: "139 R.V. SITES . EA." (R129) .
5. Appendix C consists of two occupational
tax certificates issued by Monroe county
with expiration dates of September 30, 2001,
one for laundry machines and the second for
a trailer park and campground at the Florida
Keys R.V. Resort. These documents also
state; "THIS IS ONLY A TAX. YOU MUST MEET
ALL COUNTY PLANNING AND ZONING
REQUIREMENTS." (R132) . Appendix C also
includes an "operating" permit for the
Florida Keys R.V. Resort issued by the
Florida Department of Health and
Rehabilitation Services (DHRS) indicating,
in part, 126 RV park authorized spaces and
13 mobile home park authorized spaces.
(RI33) . This permit number 44-54-00037 has
an expiration date of September 30, 1997.
Also included is a Florida Department of
Health (DOH) "official receipt," permit
number 44-54-00037, issued September 26,
2002, for Florida Keys R.V. Resort for
mobile home/RV park program and notes 13
mobile home spaces and 126 RV spaces.
(R134) .
6. Appendix D includes a list of adjacent
property owners. (R136-139) .
5
Dock 1688538
Bkv 2352 Poll 2341
7. Appendix E is a site map indicating the
location of the Florida Keys R.V. Resort in
or around MM 106. (R141) .
8. Appendix V are undated site photographs
for the Florida Keys R.V. Resort indicating
what purports to be RV sites, a lake, RV
sites and debris collection, and the back of
property and debris collection. (R143-145) .
9. Appendix H is an unsealed survey from
Hal Thomas a Florida registered surveyor.
This appears to be a survey of the gender
site, which is described in the upper right
hand portion of the survey. (R148) .
2- Staff Memoranda
Mr. J. G. Buckley, a Planner, and Mr. Kiko Reisinger, a
Biologist, submitted a Memorandum dated June 9, 2003, to the DRC
regarding the Sender site application. (R191-194) . The DRC
considered the Sender site application on June 17, 2003, and
unanimously recommended approval. (R195-198) .
On August 26, 2003, Mr. Buckley and Mr. Reisinger prepared
a similar Memorandum for the Commission regarding the Sender
site application. (R200-202) . The Memorandum restated that
Northstar proposed to transfer 126 TREs in the form of 126 RV
spaces off-site with 77 of the TREs utilized to develop an 89-
room hotel on the Receiver site. (R200) .
The Memorandum stated that the Sender and Receiver sites
are in the Suburban commercial land use (zoning) district with
the future land use map designation of Mix Use/Commercial. The
Sender site is described as disturbed with isolated native trees
6
Dooll 1688538
Bk# 2352 P*N 2342
and the Receiver site is described as disturbed with scattered
native growth. The memorandum describes the community character
of the immediate vicinity of the sender and Receiver sites.
(R201) .
The Memorandum sets forth an analysis of the sender site as
follows:
The sender site, a 9.8-acre parcel at Mile Marker 106
contains the Florida Keys RV Park, a Florida State
licensed RV Park. The site has been determined, by the
Planning Department, to have 126 RV spaces that are
eligible for transfer off-site- The site also has a
license for thirteen (13) mobile homes that are not part
of this transfer. The property is zoned suburban
Commercial and the current use is a non-conforming one.
The Biologist has determined the site to be disturbed
with some scattered native trees. There is no hammock on
the property. The sender site is equivalent to the
receiver site in terms of environmental sensitivity.
only 77 of the 126 RV spaces will be transferred to the
designed receiver site. The remaining 49 spaces will be
held in reserve until a suitable receiver site is found.
(R201) .
After analyzing provisions of the Monroe County Code, i.e. ,
Article IV, Section 9.5-120.4. (b)a.i) -iii) , M.C.C. (R160-165) ,
and having found the Sender site to be in compliance with these
Land Development Regulations and Article III, Section 9.5-65,
M.C.C., the Planning and Environmental Resources Staff
recommended approval for the transfer of 126 RV spaces off-site,
with 77 TREs going to the Receiver site. (R200-202) . See also
(R?3) .
7
0*CU 1888338
Okh 2352 P98 2343
3. The Public Hearin2
On September 24, 2003, the commission considered the Sender
site application. The commission considered Northstar's
Receiver site application later on the same day at a separately
convened public hearing- (R232) .
During the public hearing on the Sender site application,
the central issue was whether there were 126 RV spaces on the
Sender site that are eligible for transfer from the Sender site.
During the public hearing, there were numerous witnesses
testifying for and against approval of the Sender site
application. The Commission also considered documentary
evidence.
A summary of the relevant testimony and evidence follows.
On September 2, 1987, the Department of Health and
Rehabilitative Services (DHRS) conducted an inspection of the
Barefoot Key R.V. Resort (Barefoot) , which is also known as the
Florida Keys R.V. Resort. Permit number 44-037-87 is noted on
this report. This inspection report indicated that there were
authorized spaces for 75 RVs and 44 mobile homes. (R214) .
The DHRS issued an "operating permit" (permit number 44-
037-88) with an expiration date of September 30, 1988, for the
site and identified 75 Park RVs and 44 mobile home park
authorized spaces. (R215) .
8
Doc# 1688538
Bk* 2352 Pep 2344
On August 1, 1990, Barefoot made an application to the DERS
for a permit (permit number 44-037-90) for 75 RV spaces and 44
mobile home spaces. This was an annual renewal. (R206) . On
August 1, 1990, the DHRS issued another inspection report for
the site noting authorized spaces for 75 RVs and 44 'Mobile
homes, with 101 occupied spaces. (R216) .
in or around September of 1991, the DHRS issued an
"operating permit" (permit number 44-037-92) to Florida Keys
R.V. Resort noting 96 RV Park authorized spaces and 28 mobile
home park authorized spaces. This permit had an expiration date
of September 30, 1992. (R217) .
On or about December 2, 1992, a DHRS application form for
mobile home permit and recreational vehicle park permit, permit
number 44-037-92, was filled out in the name of Florida Keys
R.V. Resort, requesting a capacity change from 96 RVs and 28
mobile homes to 132 RVs and 13 mobile homes. The owners are
listed as Edward J. and Laurie S. Mertens. (RI4-15) (SR578) .
See pages 14-15, infra, regarding Mr. Buckley and Mr. Craig's
explanations of, what appears to be, this document.
The DHRS issued another "operating permit" (permit number
44-037-93) with an expiration of September 30, 1993, for 75 RV
Park authorized spaces and 44 mobile home park authorized
spaces. CR204, 218) .
9
DocK
BkU 2352 P94 2345
On July 15, 1994, the DHRS issued another RV Park and
mobile home inspection report (permit number 44-037-931 , which
has the number 75 with a line through it and replaced with the
number 126 for authorized RV spaces and the number 44 with a
line through it and a designation of 13 authorized mobile home
spaces with a total of 65 RV and 15 mobile home occupied spaces.
The owners are listed as Edward J. and Laurie S. Mertens.
(R205) . See also (R5S-S6) (SR85, 580) . There is no evidence in
the record to indicate why the numbers were stricken and
replaced with the other numbers. Id. However, under the
section of the inspection report designated "comments and
instructions," there is a handwritten notation stating: "New
operating permit must show correct allocation of spaces."
(R205) (SR580) .
The DHRS issued another "operating permit" (permit number
44-54-00031) to the Florida Keys R.V. Resort in care of the
owner, Riskey Inc., with an expiration date of September 30,
1997, indicating 126 RV Park authorized spaces and 13 mobile
Home Park authorized spaces. (R133, 219) .
On September 26, 2000, the Department of Health (DOH�
issued an "official receipt," permit number 44-54-00037, to
Florida Keys R.V. Resort and noted 126 RV spaces and 13 mobile
home spaces. The permit expired on September 30, 2001. (R220) ,
10
Doc# 1688538
BkN 2332 P9# 2346
On September 27, 2001, Mr, Edward Koconis, A.I.C.P, Island
Planning Team Director, advised Mr. Craig of the following;
After reviewing the history of Florida Keys RV Park
including permit records and State of Florida
Department of Health operating permits, as well as
several visits to the site with other members of
Planning staff, it is the decision of this department
that Florida Keys RV Park has 13 mobile home spaces
and 126 RV spaces.
Therefore, these units may be transferred to the Blue
Lagoon site provided that any and all activity is in
compliance with the Year 2010 Comprehensive Plan and
the Monroe County Code, particularly Section 9.5-
120.4, which is the section dealing with transferring
development off-site.
(RI66) .4
During the public hearing, commission Chair Jerry Coleman
denied Appellants party status and the opportunity to cross-
examine witnesses. Appellants were allowed to submit questions
for witnesses through the Chair. (R17-21, 38) (SR3-21, 50) .
Mr. Buckley discussed the staffs recommendation regarding
the Sender site application. This was the first time staff
prepared a TRE staff report. Staff was satisfied that the
Sender site application should he approved. (R3-5) .5
Ms. Conaway, testified during the hearing. M . Conaway
stated that before the middle of the 19801s, it was "very
difficult to find any records at all" pertaining to particular
land uses. (R24) . See also (SR148) .
11
DOCK 1688538
Bkfl 2352 PgN 2347
Staff evaluated several types of documents and other
information in order to assess whether 126 RV spaces were in
existence on the Sender site as of January 4, 1996, were
accounted for in the hurricane evacuation model, which forms the
basis of ROGO, and whether they were lawfully established.
Ms. Conaway explained that she could not find a permit p�r
Le that was issued by a Monroe County planning department entity
recognizing the number of RV spaces on the Sender site.
Therefore, she looked at other information including the
operating permit issued by the DHRS with an expiration of
September 30, 1997, which indicated that there were 126 RV Park
authorized spaces and 13 mobile home park authorized spaces.
(R31-32, 45, 133, 219) . A DOH official receipt indicated 126 RV
spaces, but Me. Conaway stated that would relate to the maximum
number of RV spaces that could be on the Sender site. (R46,
134) . (Ms. Conaway stated that staff "work(s) with the Health
Department." (R25) ) .
Ms. Conaway clarified that the DOH/DHRS licenses/official
receipts are based on the concerns of these departments for
sewage capacity, but the officials also visit the site. (R45-
46) .
Ms. Conaway stated that staff also looked at aerial
photographs that are a part of the research they performed. She
indicated that it was "almost impossible to count spaces in the
12
Doc# 1688538
Bik# 2352 Pp# 2348
aerial" photographs, but that was something they looked at to
find out how the property was used. (R33)
The property record cards were used to show the other uses
on the property. (R33) . Me. Conaway stated that the property
appraiser cards of record show 13 mobile homes, but not the
number of RV spaces on the sender site. (R27) . Ms. Conaway
explained that the occupational, Licenses (R132) do not provide
the number of RVs, only that the property was a trailer park and
campground. (R30) .
Referring to page 17 of the property appraiser cards, for
Me. Conaway, it was important that the history went back to 1982
and that there were camp buildings, for example, on the Sender
site. (R35, 129) . Mr.. Craig explained that page 17 also
mentions 13 mobile homes, although the number of mobile homes i
not at issue. (R34) ..
r. Buckley also stated.. that Ms. Dianne Hair, the Flood
Plain Administrator, was asked in 1992 to make a list of all
mobile homes and RV parks. Her unofficial count indicated in a
memo to Mr. Timothy McGarry, Director of Growth management,
dated September 24, 2003, that Florida Keys R.V. Resort,
formerly Barefoot Key Resort in 1992, had 124 spaces (28 RVs and
96 mobile homes) . Mr. Buckley clarified that the numbers were
transposed on Ms. Bair's memo (R231) and should reflect 95 RV
spaces and 28 mobile homes. (R37) . See also (R2.17) (SR 578) .
13
Doc# 1698538
9k# 2352 PsA 2349
This memo is consistent with the September 1991, "operating
permit" and the December 2, 1992, application discussed at page
9, supra; however, the memo is not an official Monroe County
document. Id.
Ms. Conaway relied on the DHRS operating permit, the DOH
official receipt, the occupational tax receipts, the property
appraisers record cards, and other information recited above in
reaching her determination that there were 126 RV spaces on the
Sender site property in or around 1996. (R36) .r'
Mr. Bud Cornell testified that he had a history of being
associated with the Sender site property. He sold it the last
three times. He testified that the property was purchased (by
the last two purchasers) because it had 126 RV spaces and 13
mobile home spaces. (RGO-61) (SR107-110) . Mr. Craig reiterated,
"Itlhose RV spaces are there." (R62-63) .
Mr- Buckley testified that he reviewed a document issued by
the DHRS in 1992 that accounts for 132 RV spaces on the Sender
site for the purpose of the hurricane evacuation log, although
the Planning Department determined that only 126 RV spaces were
qualified. Mr. Buckley clarified that the 1992 document "was an
application [sic) was approved by HRS. It reflects the ensuing
licenses which all reflect from that point in time on 226 RV
spaces and 13 mobilehomes [sic) . It was - just to clarify."
Mr. Craig explained, "basically it's an application and
14
Doom 1688538
BkN 2352 P9# 2350
inspection report." (R5, 14-16) . The 1992 application appears
to be in the record on appeal at (SR 578) , although Mr. Buckley
advised the commission that he did not believe it was in their
packet because he received it the morning of the public hearing.
(RS) . See page 9, supra.
There was also testimony and argument of Appellants,
counsel in opposition to Northstar's Sender site application.
For example, Ms. Sheryl Bower, A.I.C.P. , who has a master's
degree in urban planning, expressed very strong concerns
regarding the number of RV spaces on the Sender site. In part,
Ms. Bower opined that the Sender site was "over-density already.
They can accommodate 78 RVs on that property." Based on her
review of licenses and other documents of record, Ms. Bower
stated that the number of RV spaces, for example, 75 RV spaces
listed on several documents, could not have been increased
without the approval of a conditional use. (R47-50) . See
Endnote 9. See also (R 54-56, for Mr. Rob Cook's testimony) .
Ms. Bower and Mr. Lee Rohe, representing Smart Planning,
also stated that the proposed transfer of RV spaces violated the
moratorium adopted by the Board. (R51-53) .
After hearing argument of counsel, Chair Coleman concluded,
without dissent, that the moratorium issue would not be heard.
(R52) .
15
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After hearing all of the evidence, the Commission approved
the Sender site application with Commissioner Werling voting no.
(R72) . But see (R93, Resolution No. P55-03, showing
Commissioner Werling voting in the affirmative.) The Commission
found that 126. RV spaces were in existence on the Sender site as
of aanuary 4, 1996, were accounted for in the hurricane
evacuation model that forms the basis of ROGO, and were lawfully
established. The commission concluded that 126 RV spaces are
eligible and may be transferred off-site. The commission
concluded that the 13 mobile home spaces would remain on the
Sender site. (R72-73, 92) .
C. Receiver Site plication
1. Generally
Northstar submitted an application for development approval
for the transfer of ROGO exemptions to the Receiver site. This
application is dated April 21, 2003, and is signed by the agent
for Northstar, Mr. Craig. (R286-288) .
The application indicated, in part, that the Receiver site
is expected to have 89 hotel rooms utilizing 77 TREs for 77 of
the 89 hotel rooms. (R287) . The land use district for the
Receiver site is Suburban Commercial. Northstar indicated that
the present use of the property included a 12-unit motel, 45-
unit mobile home park, various retail commercial, single-family
homes, and a restaurant. The proposed use of the property is
16
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for a resort hotel with a restaurant. No affordable housing
units are associated with the Receiver site. (R287) .
Northstar indicated that it had filed a Major Conditional
Use application in November of 2002, which is the subject of the
appeal in Case No. 03-4720. (R288) . As in the case with the
Sender site application, the record does not indicate precisely
when the Receiver site application was filed. However, there is
competent substantial evidence to support a conclusion that the
Receiver site application was filed an or about April 21, 2003.
See Endnote 3.
The Receiver site application was submitted with an
Appendices A-G as follows:
1. Appendix A consists of several warranty
deeds. (R296-305) .
2. Appendix B consists of Monroe County
property record cards. (R307-323) .
3. Appendix C consists of a list of
adjacent property owners. (R325-329) .
4. Appendix D is an aerial photograph that
includes the project site and adjacent
property. (R331) .
5. Appendix E contains undated site
photographs of the receiver site, including:
Blue Lagoon at U.S. 1; an interior picture,
existing residential, commercial; a vacant
interior parcel; a vacant parcel to the Bay;
existing storage area, and Stan & Mary's
Restaurant. (R333-337) .
17
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BkN 2352 Pga 2353
6. Appendix F is an unsealed survey of the
Receiver site dated September 21, 2001.
(R339-340) .
7. Appendix G is a site plan dated
May 2, 2002. This document has a drawing
number of A-1. (R342) .
2. Staff Memoranda
Mr. Buckley and Biologist, Ms. Julie Cheon, submitted a
Memorandum to the DRC dated June 6, 2003, pertaining to the
Receiver site application. (R360) . 7 This Memorandum stated that
Northstar has proposed to develop an 89-room hotel with
amenities and proposed to transfer (pursuant to the Sender site
application) 126 TRES in the form of 126 RV spaces off-site with
77 of the TRES being utilized to develop the 89-room, hotel at
the Receiver site. Id.
The land use (zoning) district designations are the same
for the Sender and Receiver sites, i.e. , Suburban Commercial,
and both sites share the same future land use map designation,
i,e., mixed Use/Commercial. The Receiver site consists of 8.1
acres and Sender site consists of 9.8 acres. The Receiver site
is disturbed with scattered native growth and the Sender site is
disturbed with isolated native trees. Staff characterizes the
community character of the immediate vicinity of the Receiver
site as a mix of uses including conforming and non-conforming
residential, commercial retail, and a Florida Keys Aqueduct
Authority (FKAA) water storage facility. (R361) .
18
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Staff determined that the purposed development of the
Receiver site is consistent with the mix of uses that composes
the community character of the immediate vicinity; that there
was no empirical evidence that the purposed use would adversely
affect the value of the surrounding properties; that there was
adequate water and electricity for the purposed use based on
letters of coordination issued from the PKAA and the Florida
Keys Electrical Coop; that the project will have on-site waste
water treatment plant; that there was no indication that the
purposed use would adversely impact any of the listed public
facilities; that there was no empirical evidence that Northstar
does not have the financial resources or the technical capacity
to complete the development as proposed; and that the purposed
development will not adversely affect a known archeological,
historical, or cultural site. (R362-363) ,
Staff also determined that the Receiver site is composed of
four-aggregated parcel zoned as Suburban Commercial. -The
habitat has been determined by the Biologist to be disturbed
with some scattered native trees; there is no hammock on-site.
The receiver site has been determined by the Biologist to be of
comparable environmental quality as the sender site. Both are
disturbed with some native vegetation but neither site has any
hammock.,, (R363) .
19
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8k# 2352 Pg# 2355
Staff analyzed the Receiver site application for compliance
with a Receiver site receiving TREs from the sender site.
(R363-164) . See Art. IV, 5 9.5-120.4(b)a. (1)a. (i) and (ii) ,
M.C.C. (R162-163) .
The Planning and Environmental Resources staff recommended
approval for the receivership of 77 RV spaces to the designated
receiver site based upon staff's determination that the Receiver
site application complied with the applicable criteria. (R364) .
See also (R372) .
On June 17, 2003, the DRC considered the Receiver site
application, and unanimously approved the application. (R365-
368) .
3. Northstar submits Additional Information: the 12-unit motel
The Commission approved Northstar's request for a major
Conditional use to develop an 89-room hotel on the Receiver
site. (SR215-220) . In approving this project, the commission
expressly stated (as a condition) that Northstar "shall document
the existence of the twelve-unit motel formerly on-site via a
valid Florida license. If documented, then [Northstar] shall
need 77 Transferable ROrO Exemptions (TRE[s] ) to construct
eighty-nine (89) hotel units; if not documented then [Northstar]
shall utilize 89 TRE[s] to construct eighty-nine (89) units
prior to the issuance of a building permit." (SR218) . (During
the public hearing on the Major Conditional Use application,
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Skft 2352 PON 2356
Mr. z7ohn Wolfe explained that the Commission had "been asked in
here to find that these 12 units exist. That's pretty clear."
(SR 144) . However, during the public hearing on the Major
Conditional use Application (case No. 03-4720) , the Commission
was not satisfied with the evidence regarding the 12-unit motel
issue and, as a result, imposed the condition- (SR148) .)
On or about July 17, 2003, Mr, Craig sent a letter with
attachments to Mr. Buckley providing additional information
regarding Northstar's claim of the existence of the 12-unit
motel, 4 -unit mobile home park, and a marina on the Blue Lagoon
property that is part of the Receiver site. (R169, 348) .
The information provided by Mr. Craig included several
documents including a letter from Mr. Anthony Perez, a
Management Review specialist with the Department of Business and
Professional Regulation, who advised Monroe County Building &
Zoning by letter dated July 13, 2000, "that Blue Lagoon Resorts
Intl, Inc. , owner & operator Blue Lagoon Resorts located at
99096 Overseas Highway, Key Largo, Florida, had a state
operational license with our Division through 1998. This 12-
unit motel, Control # 54-01633 H, at this time ceased operations
and no further business has taken place thus its state license
was cancelled. At any future date when a suitable structure
that meets all Monroe County building & zoning codes is
constructed and approved our Division will license and regulate
21
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ZkU 2352 PON 2357
according, and reissue a minimum of a 12-unit motel license." A
copy of the "license account" for the same control number is
consistent with Mr. Perez' letter. (R348, 350-351) .
The Department of Business Regulation (DBR) issued a
license to "R & R Publishing Inc. Blue Lagoon Resort Motel &
Max'" with an expiration of October 1, 1992, indicating 12 motel
units with a license number 54 01633H-Transient. (R254, 352) .
This is the same number referred tc in Mr. Perez' July 13, 2000,
letter although it is referred to as a control number rather
than a license number. The DOR issued separate operating
permits to Blue Lagoon Resorts International, Inc. , both
indicating 45 mobile home spaces and 0 RV spaces, with
expiration dates of October 1, 1999. (R353) . See also (R354) .
The DURS issued an -operating permit" to "Blue Lagoon Resort &
Marina R & R Publishing, Inc. - owner" indicating 45 mobile park
and 0 RV park authorized spaces. The expiration date is not
legible. (R355) .
Mr. Craig also attached a copy of an occupational license
issued by Monroe County with an expiration of September 30,
1992, issued to Blue Lagoon Marina with a notation that the
"licensee was hereby licensed to engage in the business
profession or occupation of Cl marina" at 99096 Overseas
Highway, part of the Receiver site. (R356) . Other Monroe
County occupational licenses dated September 30, 2003, pertained
22
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Bk# 2352 Pga 2358
to trailer park/campground, water sport rentals, marina and
storage, merchandise vending, and retail/grocer at the same
address of 99096 Overseas Highway. (R.357-359) . See also (R181-
190, for other licenses) .
Regarding this issue, Ms. Conaway's January 25, 2002,
letter of understanding to Mr. Craig, in paragraph 2, page 2 of
6, stated: 'There was a hotel license for a 12-unit hotel on
the Blue Lagoon resort site (Parcel C) that was valid in 1994-
1995- It is not clear where these motel units were located on
the site. These transient units may be credited toward the
proposed project." (SR376) . Compare with (SR382, 386, and
389) . (Mr. Koconis' letters to Ms. Joy Martin of January 22,
2001, and to Mr. Craig of March 6, 2001, stated, in part: "There
was a hotel license for a 12-unit hotel on the Blue Lagoon
Resort site that was valid in 1994-1995. It is not clear where
these motel units were located on the site. These transient
units may be credited provided that the motel was permitted and
the hotel license has been maintained." (R375) (SR382) ,)
4. The Public Hearin
On September 24, 2003, the Commission conducted a public
hearing regarding the Receiver site application- (R232) .
Mi. Buckley briefly presented the item for consideration.
(R234-235) . The Commission, consistent with the prior ruling,
denied Smart Planning and Osborn party status and denied them
23
Da4# 1688538
Gk# 2352 PIN 2359
the opportunity to cross-examine witnesses although questions
could be submitted through the Chair. (R237-241) . In advising
the Commission on this issue, Mr. Wolfe relied on Article III,
Section 9.5-46, M.C.C. , which provides hearing procedures for
applications for development approval. (R239) (SR3-9) . Smart
Planning and Osborn were offered the opportunity to, and did
offer evidence before the Commission regarding the Receiver site
application.
During the public hearing, there was evidence, documentary
and testimonial, which supported and detracted from the approval
of the Receiver site application. Smart Planning and Os)")orn
objected to the Receiver site application, in part, because of
the lack of evidence indicating that there was a 12-unit motel
on the Receiver site and the applicability of the pending
ordinance doctrine. Ms. Bower and others also opposed the
application.
By letter dated July 17, 2003, Mr. Craig provided
documentation to Mr. Buckley, in part relating to Northstar's
claim of the existence of the 12-unit motel. (R169) . See pages
20-23, supra, and Endnote 5.
The Buckley/Reisinger Memorandum (Sender site) of
August 26, 2003, and the Buckley/Cheon Memorandum (Receiver
site) of August 26, 2003, do not mention the existence of the
12-unit motel. (R200-202; 370-372) . See also Endnote 7.
24
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8•k# 2352 PvA 2360
however, Mr. Buckley and Ms. Cheon prepared a Memorandum to
the Commission, dated May 9, 2003, analyzing Northstar's Major
Conditional use application. (SR 486-492) . in particular, they
describe the proposed use and size of the site, in part, as
follows: -Parcel IC" (Blue Lagoon Parcel) contained the Slue
Lagoon Resort. The Blue Lagoon Resort had a valid operating
permit for 45 mobile homes as well as a hotel license for a 12-
unit motel." (SR487) - See also (SR489, "[t]he site has twelve
(12) transient units from the Blue Lagoon motel.") staff
recommended a finding of fact that the subject site contains a
mix of uses including a 12-motel unit motel." (SR490) . As
noted herein, the Commission required Northstar to document the
existence of the 12-unit motel. (SR218) .
Notwithstanding, there was testimony and documentary
evidence received and considered by Commission during the public
hearing on the Receiver site application. See (R19-20, 24-25
for Mr- Buckley's initial explanation (during the public hearing
an the Sender site application) of the direction staff received
from the Commission. See also (R253) .) However, during the
public hearing on the Receiver site application, Mr. Andrew
Tobin, Osborn's counsel, specifically asked staff to identify
the evidence they relied on to determine the existence of the
12-unit motel. (R253) . Chair Coleman advised that Mr. Tobin,
could ask that question because the Commission had asked staff
25
Doc# 1688538
8kN 2352 PsM 2361
to "research that very same question." (R253) . Mr. Buckley
responded that staff received direction "to provide a license
for a hotel." Mr. Buckley advised the Commission that the
license he reviewed was issued by the DBPR, with an expiration
date of October 1, 1992, indicating that it was issued to "R & R
Publishing Inc. Blue Lagoon Resort Motel & mar" referencing 12
motel lodging units. (R19-20, 24-25, 253-254, 345, 352) . Ms.
Conaway advised the Commission that staff asked Mr- Craig to
provide them with information which resulted in Mr- Craig's July
17, 2003, letter with attachments. (R254, 348, 359) . Mr. Craig
included, among other documents, a copy of the DBR license.
(R352) .
It appears that Mr. Buckley and other planning staff relied
on the information provided by Mr. Craig on July 17, 2003, as
well as three previous letters of understanding that were
incorporated into the commission's consideration of the original
Major Conditional Use application submitted by Northstar, "all
of which referred to a license for 12-unit motel, although the
location of those units are not clearly defined." (R254-255) .
See also (SR375-386, 570-577, 603) .
Mr. Buckley advised the Commission that he believed he was
only required to present a license to the Commission: "that was
the direction, no additional research was done on that."
(R255) . See Endnote 5.
26
Doctl 1688538
Bk# 2352 Pg3o 2362
Mr. Craig reiterated that they presented the commission
"with each and every license that (they] had that (they) could
find in the record trail" pertaining to the 12-unit motel.
(R263) (SR130-131) . He also referred to the testimony of
Mr. Bill Cullen who testified during the public hearing on the
Major Conditional Use. Id. See also (SR100-103) ." Referring to
the hotel units, Mr. Craig stated: "They were in the big
building that was on the middle of the site that you have
property record cards for. Also in that large house that is
there, it still remains there. If you can't see that by walking
out on the site then perhaps you need glasses." (R263) . But
see (R249, 253) (SR8I-86) , for Mr. Rob Cook's testimony and
(SR61-62) for Ms. Bower's testimony.) Mr. Cook's research
indicated that the licensure file with DBPR (formerly DBR)
regarding the 12-unit motel was closed in or around October 1,
1998. (SR81-82, 562) . C2m2are with (R345, 352-DBP, license for
the 12-motel units, expiration October 1, 1992) . Mr. Cook's
testimony is consistent with Mr. Perez' Duly 13, 2000, letter,
which indicated that the 12-unit motel was licensed through 1998
and had ceased operation. (R346) .
Mr. Bud Cornell also provided the Commission with a two-
page document dated March 17, 2003, and testified regarding the
12-unit motel issue. (R259-260) (SR107-110, 593-594) .
27
Doc# 1688538
Bk# 2352 P9# 2363
Ms. Conaway was satisfied with the documentation of record
including, but not limited to, the information provided by
Mr. Craig with the July 17, 2003 letter. (R253-254) . See
Endnote 5.
Toward the end of the public hearing on the Receiver site
application, Chair Coleman stated:
Thank you Mr. Thomes. It's coming back to
me staff and fellow commissioners when we
were here in June I believe on this project
we did not -- our directions were defined --
all the other evidence about the 12 units
had already been entered. It wasn't just
this one 192 receipt. Our directions we
were approving a project with the caveat,
not a condition, the caveat that you were to
satisfy the Planning Director that the 12
units, in your normal how you would be
satisfied, existed. It was not to bring to
this proceeding here today the burden of
proving 12 units. Okay. So that has been
almost injected maybe, and if you go back
and look, unfairly because we approved this
project. And this is just moving 77. And
the question of the existence of the 12
units was a caveat that make sure while we
are approving this if it isn't bring it
back. That's my recollection, okay. We
didn't say we are going to retry this thing
again. And it's unfair to say this one
license -- I know there was a lot more
evidence. There's direct testimony that was
resolved in that other meeting. With that
we are bringing it to the board.
(R265-266) .
Immediately thereafter, Commissioner David Ritz,
Mr. Buckley, and Ms. Conaway had a question and answer
session regarding whether other negative or positive
28
DOC" 1688538
Bk# 2352 P9ft 2364
points should have been awarded. (R267-269) . See
also (R260-262) . With these clarifications by staff,
Commissioner Ritz moved to approve the staff
recommendation that received a second by Commissioner
Mapes. The commission unanimously approved staff's
recommendation, i.e. , to approve the Receiver site
application. (R269-270) .
The Commission's approval of the Major Conditional Use
(including the 89-unit hotel) was specifically conditioned on
Northstar's documenting the existence of the 12-unit motel
formerly on-site via a valid Florida license. If documented,
Northstar's needed 77 TRES to construct the hotel.
(R266) (SR218) . The Commission ultimately approved Northstar's
request for the receivership of 77 TRES. (R283) . But, the
Commission did not make any specific finding pertaining to the
12-unit motel issue, (R281-284) .
Hevertheless, staff recommended the receivership of 77 TRES
having been satisfied of the existence of the 12-unit motel. By
approving the Receiver site application as recommended by staff
and having considered the evidence regarding the existence of
the 12-unit motel, the Commission implicitly approved this
determination by staff. While Appellants objected to the
competency and sufficiency of the evidence on this issue,
Appellants did not object to the Commission's consideration of
29
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BkN 2352 P9# 2365
the issue during consideration of the Sender and Receiver site
applications.
III. Le al L�i.scussion.
The Division of Administrative Hearings has jurisdiction
over the subject matter of this proceeding and of the parties
pursuant to Article XIV, Section 9.5-535, M.C.C. The hearing
officer "may affirm, reverse or modify the order of the planning
commission." Art. XIV, S 9.5-540 (b) , M.C.C. The scope of the
hearing officer's review under Article XIV is as follows:
The hearing officer's order may reject or
modify any conclusion of law or
Interpretation of the Monroe County land
development regulations or comprehensive
plan in the planning commission's order,
whether stated in the order or necessarily
implicit in the planning commission's
determination, but he may not reject or
modify any findings of fact unless he first
determines from a review of the complete
record, and states with particularity in his
order, that the findings of fact were not
based upon competent substantial evidence or
that the proceeding before the planning
commission on which the findings were based
did not comply with the essential
requirements of law.
Id. "The hearing officer's final order shall be the final
administrative action of Monroe County." Art. XIV, S 9.5-
540 (c) , M.C.C.
In DeGroot v. Sheffield, 95 So. 2d 912 (Fla. 1957) , the
court discussed the meaning of "competent substantial evidence"
and stated:
30
DaacU 1688538
Oka 2352 P9# 2366
We have used the term `"competent substantial
evidence" advisedly. Substantial evidence
has been described as such evidence as will
establish a substantial basis of fact from
which the fact at issue can be reasonably
inferred. We have stated it to be such
relevant evidence as a reasonable mind would
accept as adequate to support a conclusion.
. . . In employing the adjective "competent"
to modify the word '"substantial" we are
aware of the familiar rule that in
administrative proceedings the formalities
and the introduction of testimony common to
the courts of justice are not strictly
employed. . . . We are of the view,
however, that the evidence relied upon to
sustain the ultimate findings should be
sufficiently relevant and material that
reasonable mind would accept it as adequate
to support the conclusion reached. To this
extent, the "substantial." evidence should
also be "competent. {F
Id.— at 916. (citations omitted) ,.
A hearing officer (administrative law judge) acting in his
or her appellate review capacity is without authority to rewei.gh
conflicting testimony presented to the Commission or to
substitute his or her judgment for that of the commission on the
issue of the credibility of witnesses. See Haieg city
Community Development v. Heggs, 658 So. 2d: 523, 530 (Fla. 1995) .
The question on appeal is not whether the record contains
competent substantial, evidence supporting the view of the
appellant; rather, the question is whether competent substantial
evidence supports the findings made by the Commission. Collier
Medical Center, Inc. v. De artment of Health and Rehabilitative
31
Oack 1688538
Oka 2352 P9# 2367
Services, 462 So. 2d 83, 85 (Fla. let DCA 1985) . See also
Dusseau y. MetroE?olitan Dade County, Board of Count
Commissioners, 794 So. 2d 1270, 1275-1276 (Fla. 2001) ; Dorian v.
Davis, 874 So, 2d 661, 663 (Fla. Sth DCA 2004) . In Dusseau,
supra, the court stated:
the "competent substantial evidence"
standard cannot be used by a reviewing court
as a mechanism for exerting covert control
over the policy determinations and factual
findings of the local agency. Rather, this
standard requires a reviewing court to defer
to the agency's superior technical expertise
and special advantage point in such matters.
This issue before the court is not whether
the agency's decision is the "best" decision
or the -right" decision or even a "wise"
decision, for these are technical and
policy-based determinations properly within
the purview of the agency. The circuit
court has no training or experience -- and
is inherently unsuited -- to sit as a roving
"super agency" with plenary oversight in
such matters.
Dusseau, 794 So. 2d at 1275-1276.
The issue of whether the Commission "complied with the
essential requirements of law" is synonymous with whether the
Commission "applied the correct law." Haines City_f2TSU-nity
658 So. 2d at 530.
.Appellants contend that they were denied procedural due
process of law and that the Commission departed from the
essential requirements of law by denying the Appellants party
status and the right to cross-examine witnesses during the
32
Doc# 1688538
Rk# 2352 Pq# 2368
Commission hearings. Under the Monroe County Code, the review
criteria are limited and do not include consideration of whether
procedural due process was afforded by the Commission. Because
the decision to grant or deny a permit is a quasi judicial
action, Appellants may, if they wish, seek review of this final
order by filing a petition for the writ of certiorari with the
appropriate circuit court. See Upper Keys Citizens Association
and Florida Keys chapter Izaak Walton League of America v.
Monroe County and Florida Xeys Electric C92perative Association,
Inc. , Case No. 01-3914 (DOAH March 5, 2003) , and cases cited
therein at page 31.
Appellants also argue that the commission's decision to
approve the Sender site application should be reversed because
there is no competent substantial evidence to support the
Commission' s finding that 126 RV spaces were (1) in existence as
of January 4, 1996, on the Sender site; (2) were accounted for
in the hurricane evacuation model which forms the basis for
ROGO; and (3) were lawfully established.
The evidence on this issue is not free from doubt.
Planning staff acknowledged the paucity of documents that
demonstrate compliance with the criteria. in fact, there is no
permit maser se of record issued by a Monroe County planning
department entity that approved the existence and lawful
establishment of 126 RV spaces on the Sender site. (R31-32) .
33
DvcN 1688538
BkU 2352 P90 2369
The term "lawfully established" is not defined in the
Monroe County code and the commission did not affirmatively
interpret this criterion.
However, Attachment A, which is part of the sender site
application, required the applicant to provide documentation
including proof that the units or spaces are lawfully
established and legally existing. Attachment A enumerates
documentation which must be submitted and, in part, states:
"Copy of Deed of ownership, Property Record Card AND
documentation that the units and/or spaces were accounted for in
the hurricane evacuation model which forms the basis of ROGO
(lawfully established on or before January 4, 1996) in the form
of. . . .OR. - Other relevant documentation may be used to
satisfy both tests, if an applicant cannot provide the above
materials, but this substitute requires approval of the Planning
Director." (R98) -
The staff Memoranda concluded that the Sender site
application complies with the three criteria, but affords no
explanation. (R194, 202) . Ms. Conaway stated that they look at
information "around 196"; 'we are looking for from 196 to '97
when the Comprehensive Plan was determined." (R27, 31) . (Chair
Coleman stated: "January 1st, 1996, We want to see that they
were lawfully established recognized." Id. ) Ms. Conaway,
referring to a state license, was asked: "does that mean that it
34
x
#k# 2352 P9# 2370
is authorized lawfully built spaces for Monroe County purposes?"
s. Conaway responded: " [w]hat it means is 1 could not find a
permit ever given here because of our permitting system. So
this is what we used to determine if it is a lawfully permitted.
use,,, (R31.-32) .
It is not proper for the undersigned to weigh or rewei.gh
the evidence, including but not limited to Ms. Conaway's
explanation for using the 1996 date to determine whether the 126
RV spaces were in existence and "lawfully established."
Based upon a review of the entire records on appeal in Case
Nos. o4-1568 and 03-4720, it is concluded that there is
competent substantial evidence to support the Commission's
findings that the Sender site application should be approved and
that the 126 RV spaces meet the eligibility requirements of
Article 1V, Section 9. -120.4 (b)a.i) -iii) , M.C.C. (R83) . As a
result, 126 RV spaces are eligible and may be transferred off-
site.'
Appellants also argue that, there is no competent
substantial evidence to support Nor'thstar's request for
authorization to utilize the 12-unit motel toward the proposed .
89--unit hotel. Northstar claims that the 12-unit motel is
derived from the Blue Lagoon Motel., which allegedly was located
on part of the Receiver site.
3
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Bk9 2352 P9# 2371
The commission did not resolve this issue in Resolution No.
P47-03. (SR216) . Rather, the Commission approved Northstar's
request for a Major Conditional Use for the construction of a
hotel with 89 units, 8,158 square feet of commercial space and
other amenities on the Receiver site. The Commission was not
satisfied with the evidence regarding the 12-unit motel issue.
See, e (SR.142-149) . Mr. McGarry advised the Commission that
the issue would return to the Commission. (SR148, 189) .
The project was approved with the condition that Northstar
document the existence of the 12-unit motel formerly on-site.
Importantly, the condition further recited that if a 12-unit
motel was documented, then Northstar needed 77 TREs to construct
the 89 hotel units, Otherwise, Northstar needed 69 TREs to
construct the 89-unit hotel prior to the issuance of a building
permit. (SR148, 216) .
In this case, the commission approved what Northstar
requested, i.e. , receivership of 77 TREs. (R283) . Staff
recommended approval of the Receiver site application (the
receipt of 77 TR'Ss) because staff determined that Northstar
satisfied the condition regarding proof of the existence of the
12-Unit motel. (SR218) . See also (SR23) .
It is concluded that the Commission implicitly approved the
existence of the 12-unit motel and there is competent
substantial evidence to support this derision.
36
Deco 1689538
BkN 2352 Pgo 2372
Finally, the Appellants contend that the Commission
departed from the essential requirements of law by ignoring the
pending ordinance doctrine in approving the transfer of the 126
RV spaces. The parties agree that Northstar's Major Conditional
Use application filed on or about November of 2002, and
Northstar's Sender and Receiver site applications filed on or
about April 21, 2003, are inextricably linked. (The parties
disagree when the Sender and Receiver site applications were
filed. See Endnote 3.)
Resolution No. 120-2003, adopted by the Board on March 19,
2003, directed the Monroe County Planning staff "to immediately
undertake such development review as is necessary to take
forward to the Planning commission as expeditiously as possible
a recommendation regarding a moratorium on the transfer of
(TRE's) of redevelopment rights from sender units which are RV
spaces to sender units which are hotel or motel rooms, using the
draft ordinance (Exhibit A) attached hereto and incorporated
herein by reference as a guideline.") See Supplemental Record,
Aug. 31, 2004.
The Board of County Commissioners of Monroe county (Board)
adopted Ordinance No. 025-2003 on June 18, 2003, after both
applications were submitted for consideration. (R224-226) .
In the Project Overview of the major Conditional use
application, Northstar stated: "The 89 rooms are created by the
37
D*c# 1608538
SO 2352 P9# 2373
use of the existing 12 motel units and the importation (sic)
sufficient transferable development rights (TDRs) and
Transferable ROGO Exemptions (TREs) to achieve the desired
density. . . .The TDRs and ROGO exemptions have been identified
and will be purchased upon completion of the development review
process for this project. This transfer will be by means of
Minor conditional Use approval." (SR231) . The record in Case
No. 03-4720 also contained several letters from Ms. Conaway to
Mr. Craig referencing Northstar's proposal to use TDRs and TREs
coupled with the requested major conditional Use. See, fe._.q. ,
(SR371-380) . In particular, in a letter dated January 25, 2002,
Ms. Conaway stated in part: "There was a hotel license for a
12-unit motel on the Blue Lagoon Resort (Parcel C) that was
valid in 1994-1995. It is not clear where these motel units
were located on the site. These transient units may be credited
toward the purposed project.,. (SR376) .
Based upon the forgoing, Northstar's Major Conditional Use
application contemplated separate conditional use approval
components, including both major and minor Conditional Use
approvals, which were required to complete the entire project.
As such, they are inextricably intertwined.
The moratorium, albeit contemplated by the Board in
March of 20t3, was not adopted until June 18, 2003. The
planning for the moratorium and the actual adoption post-date
38
Doc# 1588538
BkV 2352 P9# 2374
the filing of Northstarts Major Conditional Use application and
predate the letters of understanding issued by planning staff.
The pending ordinance doctrine does not apply in this case. See
Smith v. City of Clearwater, 383 So. 2d 681 (Fla. 2d DCA 1980) ,
p'tt. dism. , 403 So. 2d 407 (Fla. 1981) .
DECISION
Based on the foregoing, the Commission,s decisions in
Resolution Nos. P55-03 and P56-03 are AFFIRMED.
DONE AND ORDERED this 1st day of November, 2004, in
Tallahassee, Leon County, Florida.
CHARLES A. STAMPELOS
Administrative Law Judge
Division of Administrative Hearings
The Desoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Piling (850) 921-6847
www.doah.state.fl.us
Filed with the Clerk of the
Division of Administrative Hearings
this Ist day of November, 2004.
EMNOTES
See Jeff Osborn and Smart Plannin% and-Growth Coalition v.
Monroe County Planning Commission and Northstar Resort
Enterprises COr2oration, Case No. 03-4720 (DOAH November 1,
2004) at page 45 n.3.
2/ Although the Commission approved the Major and Minor
Conditional Uses requested by Northstar by separate Resolutions,
it is apparent that the evidence in both cases is inextricably
39
Doeg
Bk# 2352 P9ft 2375
linked and should be considered in this appeal. For example, in
Resolution No. P47-03, the Commission approved Northstar's
request for a major Conditional Use for the construction of a
resort hotel with 89 units, 8,158 square feet of commercial
space and other amenities on the Receiver site. However, the
commission required Northstar to "document the existence of the
twelve-unit motel formerly on-site via a valid Florida license.
If documented, then [Northstarl shall need 77 Transferable ROGO
Exemptions (TRE(s] ) to construct eighty-nine (89) hotel units7
if not documented then [Northstarl shall utilize 89 TRE(s) to
construct eighty-nine (89) units prior to the issuance of a
building permit." (SR218) . The commission did not determine in
Case No. 03-4720 whether a 12-unit motel existed on the Receiver
site and further did not resolve any Sender/Receiver site issues
in Resolution No. P47-03. However, there is evidence regarding
the 12-unit motel issue compiled in the record in Case No. 03-
4720. Smart Planning's unopposed motion to supplement the
record with the record on appeal, Volumes 1-4, in Case No. 03-
4720, is granted. Johnson v. State, 660 So. 2d 648, 653 (Fla.
1995) .
3/ The record on appeal in Case No. 04-1568 does not indicate
when this application was actually filed with the Monroe County
Planning and Environmental Resources Department. However, on
April 29, 2003, Mr. Timothy Nicholas Thomes, counsel for
Northstar, advised Mr. Tim McGarry and Ms. K. Marlene Conaway,
Growth Management Division, that the Northstar application was
filed 1xprior to any proposed consideration of the moratorium on
the transfer recreational vehicle spaces to hotel and motel
units off-site." Mr. Thomes also renews a request for
expediting consideration of Northstar's transfer application
dated April 21, 2003. (R167) . on June 11, 2003, Ms. Jill
Patterson requested a hearing before the Development Review
Committee (DRC) scheduled for June 17, 2003, with respect to
items one and two relating to Northstar's Sender and Receiver
site applications. (R168, 344) . Biologist, Mr. Niko Reisinger,
and Planner, Mr. J. G. Buckley, submitted a Memorandum dated
June 9, 2003, to the DRC summarizing the Sender site
application. The DRC considered the Sender site application at
a meeting held June 17, 2003. (R197) . Apparently, the Sender
and Receiver site application fees were not received by Monroe
County until July 18, 2003. (R101) . Based on this chronology,
it appears that there is competent substantial evidence to
support a conclusion that the Sender site application was filed
on or about April 21, 2003.
40
Doe# 1688538
HkV 2352 P9V 2376
4/ During the public hearing on the Sender site application,
Ms. Conaway explained that under the regulation, she had the
authority to make this determination. usually every letter has
her name on it. she was surprised that the Koconis letter
(RI66) did not "because this one was researched a number of
times even before Embassy Suites there was another hotel looking
to do similar things. So people have been counting out there
for a long time." (R71) .
5/ Mr. Buckley also stated: "The Director of Planning
[Ms- Conaway] is comfortable, based on the commission's
direction, that the documentation of the 12 units existing then
did require Northstar to transfer 77 TREs rather than the full
total of 89. So that's why we are considering the transfer of
126 RV spaces with 77 of those spaces going toward the receiver
site for the proposed Northstar hotel." (R4, 16) . Mr. Wolfe
also clarified that the Commission (during the public hearing on
the Major Conditional Use) asked staff to -clarify the receiver
site of 12 units. That would determine whether or not 77 units
had to be transferred in or 89. So they went back and found the
license from the state on the 12.0 (R24) . See also pages 20-
27, infra, for more discussion of the 12--unitmotel issue.
61 Attachment A, which is part of the Sender site application,
required the applicant to provide documentation including proof
the units or spaces are lawfully established and legally
existing. Attachment A enumerates documentation which must be
submitted and, in part, states: "Copy of Deed of ownership,
Property Record Card AND documentation that the units and/or
spaces were accounted for in the hurricane evacuation model
which forms the basis of ROGO (lawfully established on or before
January 4, 1996) in the form of: . . .OR. . .ether relevant
documentation may be used to satisfy both tests, if an applicant
cannot provide the above materials, but this substitute requires
approval of the Planning Director." (R9a) .
Ms. Conaway stated that they look at information "around
1961; 'we are looking for from 196 to 197 when the Comprehensive
Plan was determined." (R27, 31) . (Chair Coleman stated:
"January 1st, 1996. We want to see that they were lawfully
established recognized." Id.) Ms. Conaway, referring to a
state license, was asked: "does that mean that it is authorized
lawfully built spaces for Monroe County purposes?" Ms. Conaway
responded. "[wlhat it means is :1 could not find a permit ever
given here because of our permitting system. So this is what we
used to determine if it is a lawfully permitted use." (R31-32) .
41
Doo# 1688538
Bk# 2352 P9# 2377
7/ On August 26, 2003, Mr. Buckley and Ms. Cheon submitted a
Memorandum to the Commission that is substantially the same as
the Memorandum submitted to the DRC, which is incorporated by
reference herein. (R370-372) . Staff made the same
recommendation. (R372) .
8/ Bill Cullen owns the property immediately adjacent to the
Receiver site. He testified that he moved to Key Largo in the
1960's and is quite familiar with the Receiver site and the
surrounding area. He also stated: "Twelve motel units were
there and I'll gladly testify under oath as to their location
and existence any time you would like." (SR102) .
'/ Even if it was determined that 126 RV spaces did not meet the
criteria for transfer, the evidence, including the testimony of
Ms. Bower, supports the eligibility of 75 to 78 RV spaces on the
Sender site. See pages 8-10, 15, supra. Further, while he
relied on the expertise of Ms. Bower, Mr. Tobin thought the
Sender site could only have 10 units per acre. The Sender site
is -9.8 upland acres" which could yield 98 RV spaces if
Mr. Tobin's analysis is applied. (R41, 191, 200) .
COPIES FURNISHED:
Andrew M. Tobin, Esquire
Post Office Box 620
Tavernier, Florida 33070-0620
Lee R. Robe, Esquire
Lee R. Rohe, P.A.
Post Office Box 420259
Summerland Key, Florida 33042
Kerry L. Willis, Esquire
Dirk M. Smits, Esquire
Vernis, & Bowling of the Florida Keys, P.A.
81990 Overseas Highway
Islamorada, Florida 33036-0529
Timothy Nicholas Thomes, Esquire
Timothy Nicholas Thomes, P.A.
99198 Overseas Highway, Suite 8
Post Office Box 3318
Key Largo, Florida 33037
42
Doak 1688838
Bka 2352 POU 2378
Nicole Petrick, Planning commission coordinator
Monroe County Growth Management Division
2798 Overseas Highway, Suite 400
Marathon, Florida 33050
NOTICE OF RIGHTS
Pursuant to Article XIV, Section 9.5-540(c) , M.C.C., this
Final order is "the final administrative action of Monroe
County." It is subject to judicial review by common law
petition for writ of certiorari to the circuit court in the
appropriate judicial circuit.
43
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Dooll 1588536
Bkft 2352 P9# 2380
RESOLU I TION NO.P55-03
A RESOLUTION BY THE MONROE COUNTY PLANNING
COMMISSION APPROVING THE REQUEST FILED BY THE
NORTHSTAR RESORT ENTERPRISES CORPORATION TO
TRANSFER ONE HUNDRED TWENTY-SIX (126)
TRANSFERABLE ROGO EXEMPTIONS IN THE FORM OF
RECREATIONAL VEHICLE SPACES OFF-SITE FROM
PROPERTY EN KEY LARGO, FLORIDA, DESCRIBED AS
SECTION 6,TOWNSHIP 61,RANGE 40,PART OF LOTS 5, 12,
AND 13 WITH TIME REAL ESTATE NUMBER
00083970.000000
WHEREAS, Northstar Resort Enterprises Corporation is the owner of real
property described as Section 6, Township 61, Range 40,Parts of lots 5, 12, and 13 with
the Real Estate Number 00083970.000000;and
WHEREAS,the above described property is located in the Suburban Commercial
(SC)land use(zoning)district;and
WHEREAS, Northstar Resort Enterprises Corporation applied for a Minor
Conditional Use approval for the transfer of one hundred twenty-six (126) Transferable
ROGO Exemptions(TRE)off-site from the property described above;and
WHEREAS,the Planning Commission of Monroe County,Florida,in accordance
with the provisions of Sections 9.5-24 and 9.5-68 of the Monroe County Land
Development Regulations,met at a regular scheduled meeting on September 24, 2003 to
review the request of Northstar Resort Enterprises Corporation for approval of a Minor
Conditional Use;and
WHEREAS,the proposed request meets the requirements of a Minor Conditional
Use as delineated in Section 9.5-68 of the Monroe County Code-,and
WHEREAS, the Planning Commission reviewed the following documents and
other information relevant to the request for approval of a Minor Conditional Use-
I I. The application for a Minor Conditional Use dated,April 21,2003;and
1 Site survey,signed but not seated,prepared by Hal Thomas,Professional Land
Surveying,dated 5125/00;and
1 Contractual agreement between the buyer, Northstar Resort Enterprises Corp.
and the seller, SH3, LTD for the aforesaid property described by Real Estate
Number 00083970,000000;and
C:%TT?v1P%P55-03-do,c Page I of 3
Doc# 1688538
8k4 2352 PSM 2381
4, Property record card from the Monroe County Property Appraiser's office;and
5. State of Florida, Department of Health and Rehabilitative Services permit
#44-54-00037;and
& Site map,and
7. Staff report prepared by J.G.Buckley,Planner, and Niko Reisinger, Biologist.,
dated August 26,2003;and
8. Comments by members of the Planning Commission;and
9. Swam testimony and exhibits by members of the general public-,and
10. Swam testimony of Crowth Management Division staff,and
I I.Advice from John Wolfe,Esq.,Planning Commission Counsel,and
12. Swam testimony made by Don Craig,AICP,on behalf of the applicant,and
13.Comments from Tim'Thames,Esq.,on behalf of the applicant;and
WHEREAS, based upon the information and empirical evidence submitted, the
Planning Commission adopted the following Analysis of Compliance, Findings of Fact
and Conclusions of Law:
I. Based on the plans submitted, the transfer off site is consistent with Section
9.5-120.4(b). Therefore,we conclude that the transfer off site shall consist of
the demolition of a unit or space from a sender site and the development of a
new unit(s)on a receiver site.
1 Based on the plans submitted and the testimony heard,the sender spaces meet
the eligibility requirements of Section 9.5-120(4):
• In existence as of January 4, 1996;and
• Accounted for in the hurricane evacuation model which forms the
basis of OGO;and
• Lawfully established;
Therefore, we conclude that one hundred twenty-six (126) recreational
vehicle spaces are eligible and will be transferred off-site.
3. Based on the plans submitted, we conclude that thirteen (13) mobile home
spaces will remain on site.
NOW THEREFORE, BE IT RESOLVED BY THE PLANNING COMMISSION
OF MONROE COUNTY, FLORIDA, T'HA►T: the preceding Findings of Fact and
Conclusions of Law support its decision to APPROVE, the request by Northstar Resort
Enterprises Corporation for the transfer of one hundred twenty-six (126) Transferable
ROGO Exemptions from the sender site.
PASSED AND ADOPTED by the Planning Commission of Monroe County,
Florida,at a regular scheduled meeting held on the 24'h day of September 2001
Pagt 2 of 3
Doc" ISB6538
+ Bk# 2352 PqN 23882
Chair Coleman Yes
Vice Chair Werling Yes
Commissioner Mapes Yes
Commissioner Margalli Yes
Commissioner Ritz Yes
PLANNING CO ISS N OF MONROE COUNTY
By �
7 ole a
AM
Simed this 'aY of J�1'* ,2W3
ACPROVrD AS TO FpRly
Atv`L7 LEGAL.SUMCIENC�
BY
�At t`ztwy"�QfFi
Page 3 of 3
Doe" 268,8538
SkN 2352 P911 2383
RESOLUTION NO.P56-03
A RESOLUTION BY THE MONROE COUNTY PLANNTNG
COMMISSION APPROV]ING THE REQUEST FILED BY THE
NORTHSTAR RESORT ENTERPRISES CORPORATION TO
RECEIVE SEVENTY-SEVEN (77) TRANSFERABLE ROGO
EXEMPTIONS IN THE FORM OF RECREATIONAL VEHICLE
SPACES TO DEVELOP AN EIGHTY-NINE UNIT HOTEL
WITH RESTAURANT, 8,158 SQUARE FEET Of
COMMERCIAL USE AND OTHER AMENITIES ON
PROPERTY DESCRIBED AS SECTION 32, TOWNSHIP 61
SOUTH, RANGE 39 EAST IN LEITNER'S SUBDIVISION AND
ELDORADO HEIGHTS SUBDIVISION, KEY LARGO,
MONROE COUNTY, FLORIDA WITH THE REAL ESTATE
NUMBERS 00087940,000100, 00087970.000100,
00088020.000000,00088030.000000,AND 00088040.000000.
WHEREAS, Northstar Resort Enterprises Corporation is the owner of real
property described as Section 32, Township 61 South, Range 39 East in Leitner's
Subdivision and El Dorado Subdivision, Key Largo, Monroe County, Florida with the
Real Estate Numbers 00087940.000100, 00087970.000100, 00088020.000000,
00088030.000000,and 00088040.000000;and
WHEREAS,the above described property is located in the Suburban Commercial
(SC)land use(zoning)district;and
WHEREAS, Northstar Resort Enterprises Corporation applied for a Minor
Conditional Use approval for the receivership of seventy-seven (77)Transferable ROGO
Exemptions(TRE)on the property described above;and
WHEREAS,the Planning Commission of Monroe County,Florida,in accordance
with the provisions of Sections 9.5-24 and 9.5-68 of the Monroe County Land
Development Regulations, met at a regular scheduled meeting on September 24, 2003 to
review the request of Northstar Resort Enterprises Corporation for approval of a Minor
Conditional Use;and
WHEREAS,the proposed request meets the requirements ofa Minor Conditional
Use as delineated in Section 9.5-68 of the Monroe County Code;and
WHEREAS, the Planning Commission reviewed the following documents and
other information relevant to the request for approval of a Minor Conditional Use:
DOcN 1688538
Bk# 2352 P94 2384
L The application for a Minor Conditional Use dated,April 21,2003,and
2. Field survey prepared by Barrow Survey and Mapping, drawing #22557h-3,
updated 9/21/01;and
3. Site plan, signed and scaled by Robert Barnes & Associates, dated 5/02/02;
and
4. Landscape plan, by Brown and Crebbin Design Studio, Inc., dated 5117/02;
and
5. Drainage plan, prepared by Allen Perez, Perez Engineering & Development,
Inc.,dated 10/23/02;and
6. Level 111 Traffic Study, prepared by Transport Analysis Professionals, dated
6/19/02,and
7. Restaurant floor plan,prepared by Robert Barnes&Associates,dated 5/16,/02;
and
& Elevation drawings. prepared by Robert Barnes & Associates, dated 4/24/02;
and
9. Staff Report prepared by J.G. Buckley, Planner, and Julie Cheon, Biologist,
dated August 26,2003;and
10.Comments by members of the Planning Commission;and
11.Sworn Testimony and exhibits by the general public;and
12. Sworn testimony by Growth Management Division staff,and
13.Sworn testimony by Don Craig,AICP,on behalf of the applicant;and
14.Comments by TimThomes,Esq.,Counsel for the applicant;and
15.Advice from John Wolfe,Esq.,Counsel for the Planning Commission
WHERFAS, based upon the information and empirical evidence submitted, the
Planning Commission adopted the following Analysis of Compliance, Findings of Fact
and Conclusions of Law:
1. Based on the plans submitted, the transfer off site is consistent with Section
9.5-120.4(b). Therefore,we conclude that the transfer off site shall consist of
the demolition of a unit or space from a sender site and the development of a
new unit(s)on a receiver site.
2. Based on the plans submitted and the criteria delineated in Section 9.5-
120A(a)the transfer shall be to develop a hotel. Therefore,we conclude that
the sender site or space is eligible and has been used as a recreational vehicle
space(s).
1 Based on the plans submitted, the receiver site is located in the same ROGO
sub-area. Therefore,we conclude that the sub-area criteria is being met.
4. Based on the plans and material submitted the receiver site shall not garner
any negative points when evaluated pursuant to Section 9.5-122.3(a)(7)or(8)
or (9). Therefore, we conclude that the receiver site contains (7) no
Page 2 of 4
C:A'EMP1156-03 doe
Do*# 1688538
Ska 2352 Pg# 2385
hammock, (8)no threatened or endangered species,and(9)no critical habitat
areas,
5. Based on the plans submitted,the receiver site(location of the hotel)is not in
a V zone, The property is located in a split flood zone including V,AE,and
X zones; the new hotel units will be located in the AE zone. Therefore, we
conclude that the receiver site is consistent with Section 9.5-122-3(a)(1 1)
which prohibits transfer to a V zone.
6. Based on the plans submitted, the site is not located in a Coastal Barrier
Resource System. Therefore, we conclude that the site is consistent with
Section 9.5-122.3(a)(I 2)that prohibits transfer to a Coastal Barrier Resource
System area.
7. Based on the plans submitted, the receiver site is not located on an offshore
island/conservation land protection area. Therefore, we conclude that the
receiver site is consistent with Section 9,5-122.3(a)(13)that prohibits transfer
to an offshore island or a conservation land protection area.
S. Based on the plans submitted, the receiver site is eligible for infrastructure
availability points pursuant to Section 9.5-122.3(a)(2). Therefore, we
conclude that the receiver site is served by existing infrastructure which
includes at a minimum, potable water, electricity and roadways which are
paved.
9, Based on the plans submitted, we conclude that the receiver site has an
overall ROGO score that is equal to or greater than the sender site,
NOW THEREFORE, BE IT RESOLVED BY THE PLANNING COMMISSION
OF MONROE COUNTY, FLORJDA, THAT. the preceding Findings of Fact and
Conclusions of Law support its decision to APPROVE, the request by Northstar Resort
Enterprises Corporation for the receivership of seventy-seven (77) Transferable ROGO
Exemptions on the receiver site.
PASSED AND ADOPTED by the Planning Commission of Monroe County,
Florida,at a regular scheduled meeting held on the 20day of September 2003,
Chair Coleman Yes
Vice Chair Werling Yes
Commissioner Mapes Yes
Commissioner Margalli Yes
Commissioner Ritz Yes
Page 3 of
U7TEMPT56-03-doc
Doca 1688538
V mA Pgll 2386
PLANNING COe. . » ° OF MONRO£CO2
. ^
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APPROVEDAS Tom R \
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I1oca 1688538
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iioc* 1635314 04/02/2007 1:36PM
Filed t Recorded to Official Records of
I RESOLUTION NO.P02-07 MONROE COUNTY DAMY L, KOLA
2
3 A RESOLUTION BY THE MONROE COUNTY PLANNING
4 COMMISSION APPROVING A REQUEST" BY NORTFjSTAR RESORT
5 ENTERPRISES CORP.TO AMEND RESOLUTION P47-03 IN ORDER TO
6 BUILD A ONE HUNDRED THIRTY-EIGHT(138) UNIT RESORT HOTEL
7 INCLUDING THE FOLLOWING AMENITIES; A 4,910 ft2 s�+
8 RESTAURANT, TWO (2) TIKI BARS, TIKI HUTS, A MAINTENANCE
9 BUILDING, OFFICES AND ONE (1) AFFORDABLE ROUSING UNIT.
10 ADDITIONALLY, THIS RESOLUTION IS APPROVING A FRONT
I I WARD VARIANCE OF TWELVE(12)FEET ALONG WOODWARD WAY
12 AND A 13%REDUC 1ON IN PARKING TO ALLOW 182 SPACES.
13
14 WHEREAS the Monroe County Planning Commission during a public
15 hearing held on July 26, 2006 in Key Largo reviewed and considered this
16 amendment to a major conditional use along with the front yard variance and
17 parking reduction waiver;and
18
19 WHEREAS Northstar Resort Enterprises Corp.is the owner of record for
20 11.67 acres at Mile Marker 99.5 in Key Largo, Monroe County, Florida having
21 Real Estate Numbers:00566430.000000, 00087940.00D000, 00087940.000100,
22 00087970,000100, 00088020.000000, 00088030-000000, 00088040.000000,
23 0088060.000000,and 00087950.00OWO and
24
25 WHEREAS Resolution P47-03 approved a major conditional use permit
26 to construct an eighty-nine(89)transient unit resort hotel and amenities;and
27
28 WHEREAS Resolution P47-03 linked the Northstar Resort Project with an
29 affordable housing project and required that a minimum of ten (10) affordable
30 housing units be built;and
31
32 WHEREAS the increase in units from eighty-rune (89) to one hundred
33 thirty-eight (138) increases the minimum number of affordable housing units
34 from ten(10)to fifteen(15),and
35
36 WHEREAS Development Order #4-04 was a minor conditional use
37 application issued to establish forty-seven (47) ROGO exemptions from the
38 Northstar Resort site to be eligible for transference;and
39
40 WHEREAS Development Order #r-04 was a minor conditional use
41 application issued which received the forty-seven (47) ROGO exemptions from
42 the Northstar Resort site at the Florida Keys RV Park to be built as attached
43 affordable housing units;and
44
45 WHEREAS Resolution P55-03 approved the request filed by Northstar
46 resort to transfer one hundred twenty-six (126) ROGO exemptions from the
47 Florida Keys RV Park off of the site;and
Nortiistar PC Resolutiord v2 Waged of
P02.07
'14
Clasp 2688538
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t?aelt 1635314
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1
2 WHEREAS Resolution 56--03 approved the request tiled by Northstar
3 Resort to receive seventy-severe (77) ROGO exemptions transferred from the
4 Florida Keys RV bark via P55-03 at the Northstar Resort site;and
5
6 WHEREAS Development Order #17-96 established 1.5 Transferable
7 Development Rights(TDRs),Development Order#18-97 established 2.59 TDRs,
8 and Development Order #7-05 established 7.36 TDRS and transferred a total of
9 11.45 TDRs to the Northstar Resort site;and
10
11 WHEREAS Northstar Resort has two required front yard setbacks_ one
12 along US-1 and and another along Woodward Way;and
13
14 WHEREAS Allowing a thirteen (13) foot front yard setback along;
15 Woodward Way will not negatively impact surrounding property owners;and
16
17 WHEREAS Woodward Way will remain a 24 ft.road and allow ingress
18 and egress for all property owners along Woodward Way even though Northstar
19 Resort Enterprises owns nine(9)feet of the Western portion of the road;and
20
21 WHEREAS Planning Commission Resolution P47-03, condition 15,
22 requires that for every square foot of parking lot area that is waived a correlating
23 square foot of open space must be created in excess of the required 20% and
24 remain as open space via a+Grant of Conservation Easement(GOCEA);and
25
26 WHEREAS Northstar Resort Enterprises has requested a waiver of
27 twenty-seven(27)spaces that will require a COCA be recorded for a minimum
28 of 4,131 ft2 running in favor of Monroe County prior to the issuance of any
29 Certificate of Occupancy(CO.);and.
30
31 WHEREAS, the Planning Corrunission reviewed the following
32 documents and other information relevant to the amendment to the Major
33 Conditional Use request:
34 1. Master Site Plan,Sheet A-1,by Robert Barnes,6/20/06;and
35 2. Partial Site Plans,Sheets A-2-5,by Robert Barnes,6/20/06,and
36 3. Reception& Office Floor flan.,Sheet A-6,by Robert Bames,1/10/06;
37 and
38 4. Reception & Office Elevations, Sheets A-7 - 8, by Robert Barnes,
39 1/10/06,and
40 5. Restaurant & Lounge Floor Plan, 'Sheet A-9, by Robert Barnes,.
41 6/20/06,and
42 6. Restaurant Elevations,Sheet A-10-11,by Robert Barnes,6/20/06;and
43 7. Maintenance First Floor Plan,Sheet A-13,by Robert Barnes,6/20/06,
44 and
45 8. Maintenance Affordable Housing - Second Floor, Sheet A-14, by
46 Robert Barnes,6/20/06;and
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1 9. Maintenance Affordable Housing-Elevations,Sheet A-15,by Robert
2 Barnes,6/20/06,and
3 10. Building A4 first floor,Sheet A-16,by Robert Barnes,6/20/06;and
4 11. Building A4 second floor,Sheet A-17,by Robert Barnes,1/10/06;and
5 12. Building A4 third floor,Sheet A-18,by Robert Barnes,6/20/06;and
6 13. Building B2 first floor,Sheet A-19,by Robert Barnes,1/10/06;and
7 14. Building 132 second floor,Sheet A-20,by Robert Barnes,1/10/06;and
8 15. Building B2 elevations,Sheet A-21,by Robert Barnes,1/10/06;and
9 16. Building B1 first floor,Sheet A-22,by Robert Barnes,1/10/06;and
10 17. Building B1 second floor,Sheet A-23,by Robert Barnes,1/10/06;and
11 18. Building BI elevations,Sheet A-24,by Robert Barnes,1/10/06;and
12 19. Building 133 first floor,Sheet A-25,by Robert Barnes,1/10/06;and
13 20. Building B3 second floor,Sheet A-26,by Robert Barnes,1/10/06,and
14 21. Building R3 elevations,Sheet A-27,by Robert Barnes,1/10/06;and
15 22. Buildings AI-3 first floor,Sheet A-28,by Robert Barnes,1/10/06;and
16 23. Buildings AI-3 second floor,Sheet A-29, by Robert Barnes, 1/10/06;
17 and
18 24. Buildings AI-3 third floor, Sheet A-30, by Robert Barnes, 1/10/06;
19 and
20 25. Buildings AI-3 Elevations,Sheets A-31-32,by Robert Barnes,1/10/06;
21 and
22 26. Field Survey drawing #22557h-3 by Barrow Surveying & Mapping,
23 9/21/01,and
24 27. Field Survey drawing#24937 Pugliese Parcel by Barrow Surveying&
25 Mapping,not dated;and
26 28. Field Survey, drawing 4601 - Cullen Parcel by Task Surveyors, not
27 dated;and
28
29 WHEREAS,the Planning Commission has made the following Findings
30 of Fact and Conclusion of Law, based on the sworn testimony of the Monroe
31 County Planning Department staff and the record:
32
33 1. The proposed project site is 11-67 acres with a land use
34 designation of Suburban Commercial(SC)and a Future Land Use
35 Map(FLUM)designation of Mixed Use/Commercial(MC).
36 2. Northstar Resort currently owns 9.32 acres of the proposed site
37 with a contract to purchase 2.35 acres included in the project
38 proposal.
39 1 The 9.32 acres owned by Northstar Resort is associated with 89
40 lawfully established transient units,1 market rate residential unit,
41 and 9,210 sq,ft.of lawfully established non-residential floor area.
42 4. The 2.35 acres under contract for purchase contains 3 market rate
43 residential units.
44 5. The Northstar Resort project is linked to an affordable housing
45 project to be located at approximate mile marker 106.
46 6, The Northstar Resort site has two sides which front roads and
47 would require a 25 ft.front yard setback. Approving a variance to
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1 allow Northstar to maintain only a 13 ft.setback along Woodward
2 Way instead of the required 25 ft. setback will not cause any
3 hardship to surrounding property owners or impact the property
4 values of surrounding property owners,
5 7. Northstar Resort is required to have 209 parking spaces.
6 Reducing that number by 13%or 27 spaces pursuant to MCC§9.5-
7 523(b)(2)to require 182 parking spaces will still allow for adequate
9 parking for the facility. Pursuant to Resolution P47-03, Northstar
9 Resort has identified 4,131 ft2 GOCEA to be recorded in
10 conjunction with this parking space reduction request.
11 & Resolution P55-03 identified the Florida Keys RV Park at mile
t2 marker 106 as a transferable ROGO exemption (TRE) sender site
13 and recognized 126 TREs.
14 9, Resolution P56-03 transferred 77 of these TREs to the Northstar
15 Resort site leaving 49 TREs on the Florida Key RV Park site
16 available for transfer.
17 10. Northstar Resort meets the criteria detailed in 120.4(b)a. iii) (1)a.
18 (ii) and is eligible to receive the 49 remaining TREs identified in
19 P55-03 from the Florida Keys RV Park site.
20 11. Conditions Z 3,4,6,7,8,11,12,13,16 and 17 from Resolution P47-
21 03 shall be maintained.
22
23 NOW THEREFORE,BE IT RESOLVED BY THE PLANNING COMMISSION
24 OF MONROE COUNTY, FLORIDA, that the preceding Findings of Fact and
25 Conclusions of Law,support its decision to:
26
27 AUROVE the request filed by Northstar Resort Enterprises Corp. to
28 construct a one hundred thirty-eight (138) unit resort hotel including the
29 following amenities-. a 4,910 ft2 restaurant, two (2) tiki bars, tiki huts, a
30 maintenance building,offices and one (1) affordable housing unit; as well as, a
31 front yard variance of twelve (12) feet along Woodward Way and a 13%
32 reduction in parking to allow 182 spaces with the following conditions:
33 1. Prior to drafting a Planning Commission Resolution,the applicant
34 shall:
35 a. Submit proof of ownership for the Cullen parcel including
36 exact acreage owned as well as who will possess the three(3)
37 market rate permanent residential units established on that
38 parcel;and
39 b. Submit a Preliminary Plat Application for the Cullen parcel
40 only a portion of the current parcel is being bought by
41 Northstar. If this plat does not show that the Northstar
42 Resort is purchasing a minimum of 2.36 acres or if the Board
43 of County Commissioners does not approve this plat, any
44 approvals given for the project shall be vacated and the
45 project shall submit a new amendment to their major
46 conditional use permit,and
Northatar PC Resolution v2 Page 4 of
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I ca Submit a revised Traffic Study to determine if the restaurant
2 can be considered as a low intensity use or a medium
3 intensity use. If the restaurant can be considered a low
4 intensity use, then two (2) 250 sq, ft. Tiki Bars can be
5 permitted on the site, If the restaurant must be considered
6 as a medium intensity use then no Tiki Bars shall be
7 permitted. The Planning Commission Resolution shall state
8 whether Tiki Bars shall be permitted;and
9 d. Submit a revised Traffic Study to conform with Monroe
10 County Traffic Consultant request outlined in MILD.of this
11 report. The Planning Commission Resolution shall only be
12 issued if the Monroe County Traffic consultant finds that
13 this project can be built without causing negative impacts to
14 local traffic circulation and hurricane evacuation times. If
15 this condition is not satisfied, a new conditional use
16 amendment application shall be proffered to meet this
17 criteria.
18
19 1 Prior to issuance of a building permit,the applicant shall:
20 a. Transfer an additional 11.55 development rights to the
21 Northstar Resort site,and
22 b. Have the plat of the Cullen parcel approved by the BOCC;
23 and
24 c. Submit revised stormwater and landscape plans which do
25 not show a possible future spa and include the Class D
26 buffer as required along Thurmond Street. The landscape
27 plan should include enough detail to ensure that the
28 installation criteria found in MCC§9.5-364 is met;and
29 d. Provide additional permits from the Florida Department of
30 Environmental Protection and the Army Corps of Engineers
31 for the dock extension,slip reconfiguration,and boat ramp
32 removal;and
33 e. Obtain Florida Department of Environmental Protection and
34 U.S. Army Corps of Engineers approval for filling the boat
35 ramp, Any development so filled shall conform to the
36 setbacks established by DEP and ACOE permits;and
37 L Provide the Surface Water Management Plan to be reviewed
38 by the County Engineering Department for compliance.The
39 plan must be reviewed and approved by the South Florida
40 Water Management District. All surface water shall be
41 managed on-site, retained with swales or approved
42 drainage,drainage calculations must be shown on the plans;
43 and
44 g. Provide a plan to retrofitting existing docking facilities to
45 include an on-site pump-out station and sewage treatment
46 as required by the Comprehensive Plan for any facility
47 having ten(10)or more slips(wet or dry);and
Northstar PC Resolution v2 Page 5 of 7
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1 h. Have the proposed on-site waste treatment system approved
2 by the Department of Health and comply with the minimum
3 requirements of Chapter 1OD-6 of the Florida Administrative
4 Code;and
5 1 Prior to issuance of a certificate of occupancy for any unit, a
6 minimum of fifteen(15)affordable housing units at the linked site
7 at approximate mile marker 106 shall be completed with
8 certificates of occupancy;and
9
10 4. The Resort will not be gated from US-1 to allow local residents
11 and other guests to use the restaurant facility.
12
13 ALPROVE-to reduce the required parking by twenty-seven spaces for a
14 total of one hundred eighty two spaces (182) provided with the following
15 condition:
16 1 A Grant of Conservation Easement be recorded for a minimum of
17 4,131 ft2 running in favor of Monroe County prior to the issuance
18 of any C.O.on the property;and
19
20 APPROVE to waive the 25 ft. front yard required setback along
21 Woodward Way to a minimum of 13 ft.with the following condition:
22 1. An access easement be recorded rum-zing in favor of Monroe
23 County prior to the issuance of any C.O.on the property to ensure
24 that Woodward Way remains a minimum of 24 ft. wide to allow
25 access for all parcels which front Woodward Way;and
26
27 APPRQVE to transfer the forty-nine (49) remaining eligible units
28 established by Resolution P55-03 at the Florida Keys RV Park to the Northstar
29 Resort site;
30
31 WHEREAS Condition 1.a. has been satisfied by providing a warranty
32 deed showing ownership of approximately 2.36 acres and stating that the three
33 (3)market rate ROGO exemptions are to be retained by Mr.Cullen;and
34
35 WHEREAS Condition Lb. has been partially satisfied by submittal of a
36 preliminary plat application for the parcel showing that Northstar Resort has
37 purchased approximately 2.36 acres;and
38
39 WHEREAS Conditions I.c. and Ld. have been met as Northstar Resort
40 Enterprises has submitted a traffic study meeting the requirements of the County
41 Traffic consultant which has concluded that the restaurant can be considered as a
42 low intensity use,the resort will not be gated,and may include two(2)Tiki Bars;
43
44 PASSED AND ADOPTED by the Planning Commission of Monroe County
45 Florida at a meeting held on the 26th day of July 2006
46
47 Chairman Cameron YES
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1 Conwassioner Windle YES DocK 2635314
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2 Commissioner Popham YES
3 Commissioner Wall YE-S
4
5 Planning Commission of
6 Monroe County,Florida
7
8
9 By Z'
10 r"4Aie-s Ca'meron,Chairman
11
12 Signed this —71 day of alk9i 2007
APPROVED*,,S TO FORM
AND I-EGATAUrF'—TF1 :
Ily
T.
s.
"ONROE COUNTY
OFFICIAL RECORDS
Northstar PC Resolution v2 Page 7 of 7
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MONROE COUNTY A\ Cacti 1688538
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FIL9 91 4 6 -3 4 3 RCD Aug 17 2004 09- 29AN
SK#2 0 3 5 PCfit 2 3 4 DANNY L 1£CLRAG8, CL8RK
MONROE COUNTY FLORIDA
MINOR CONDITIONAL USE DEVELOPMENT ORDER N 4-04
A DEVELOPMENT ORDER ESTABLISHING THAT 47 POGO
EXEMPTIONS FROM NORTHSTAR RESORT ENTERPRISES,
INC. ARE ELIGIBLE FOR TRANSFERENCE
WHEREAS, Northstar Resort Enterprises, Inc. is the owner of property legally
described as Parts of Lots 4,8,9, 11 and 12, Section 32,Township 161,Range 39,Island of Key
Largo,Monroe County, Florida and is addressed as: 99500 Overseas Highway with Real Estate
Numbers: 00087940.000100, 00087970.000100, 00088020.000000, 00088030.000000, and
00088040.000000;and
WHEREAS,the above described property is located in the Suburban Commercial(SC)
land use district, and the future land use map designation (FLUM) is Mixed Use/Commercial
(MC);and
WHEREAS, the applicant is seeking development approval to establish 47 residential
ROGO exemption units(TREs)for off-site relocation;and
WHEREAS, the Biologist has determined that the habitat is disturbed with some
scattered native trees and no hammock on-site;and
WHEREAS,the Development Review Committee(DRQ of Monroe County,Florida,in
accordance with the provisions of Sections 9.5-24 and 9.5-68 of the Monroe County Land
Development Regulations,met to review the request of Northstar Resort Enterprises for approval
of the application for transfer of 47 ROGO exemptions on May 18,2004;and
WHEREAS, the Development Review Committee reviewed the following documents
and other information relevant to the request for approval of a Minor Conditional Use:
1. A completed application for development approval for transfer of ROGO exemptions
(Sender Site) which included all documents required by the application dated March
25,2004;and
1 A sender site staff report prepared by by Jason King, Planner and Niko Reisinger,
Biologist dated May 11,2004;and
DO P 4_04
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WHEREAS, based upon the information and documentary evidence submitted, the
Development Review Committee adopted the following findings of fact and conclusions of law:
I The Northstar Resort Enterprises, Inc. had a valid operating permit from the
Department of Health and Rehabilitative Services for 45 mobile homes,which were
accounted for in the 1988 Monroe County Mobile Home and RV Study-,and
1 There is also a one-story concrete residence and a two-story residence on the
premises recognized as established in the Letter of Understanding dated January 5,
2004; and
WHEREAS, the Development Review Committee, based on its findings of fact and
conclusions of law,recommended approval with conditions of the application for development
approval of transfer of 47 ROGO exemptions;and
WHEREAS, the Director of Planning has duly considered the recommendation of the
Development Review Committee;and
WHEREAS,the record established,the testimonies,offered,and the evidence submitted,
support the findings of fact adopted by the Development Review Committee:
NOW THEREFORE, BE IT RESOLVED BY THE DIRECTOR OF PLANNING
OF MONROE COUNTY, FLORIDA,that the request by Northstar Resort Enterprises Inc.to
approve for transfer of ROGO exemptions of 47 Non-transient TREs is hereby APPROVED
with the following conditions-
I. The sender units have been assigned unique identifier numbers that shall be used for
tracking and monitoring by the Planning Department. The unique identifier numbers
listed below shall be itemized in the conditional use orders and building permits
required for both the sender and receiver sites.
The unique identifier numbers for eligible transferable residential units are identified
in Development Order#4-04 as Nos.A-01 53 through A-0200.
1 No building permit shall be issued for the new unit on the receiver site until one(1)of
the following conditions are met:
a. The units are demolished as per an issued demolition permit and a final inspection
for the demolished units or spaces have been completed by the Building
Department are for the sender site;or
b. The units are removed pursuant to a development approval,development order,or
development permit and a final inspection for the removed unit is completed by
the Building Department for the sender site.
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3. The applicant shall have five (5) years from the date of the approval of the Minor
Conditional Use to transfer the eligible units,identified in Development Order#4-04
as Nos.A-01 53 through A-0200,or the Minor Conditional Use shall become void and
Northstar Resort Enterprises, Inc. shall be required to apply for and secure a new
minor conditional use permit for future transfm off-site. The Director of Planning
may extend this time limitation and grant an additional two(2)years for the allocation
and transfer of the residential ROGO exemption units upon written request and for
good cause shown.
11A 19104(
K.Marlene Conaway 01-
Director of Planning and Environmental Resources
HEREBY CERTIFY that on this day before me,an officer duly authorized in the State aforesaid
and in the County aforesaid, to take acknowledgments, personally appeared K. Marlene
Conaway, to me known to be the persona described in and who executed the foregoing
instrument and he acknowledged before me that he executed the same.
WITNESS my hand and official seal in the County and State last aforesaid this rf 9 day o
2004.
WCOLE U, Pf TFNUGK
WM roc-Start of nwma
NOTARY PUBUC,STATE OF FLORIDA
is development order constitutes an amendment, extension,
is conditional use permit,that document may be referenced by
the following N1A 'NONE"
NQILC
If this development order is appealed under the Monroe County code or by the Department of
Community Affairs,the above time limits shall be tolled until the appeals are resolved.
This instrument shall not take effect for thirty (30) working days following the date of
memorialization thereof,and during that time,the permit shall be subject to appeal as provided in
Section 9.5-521(c)of the Monroe County land development regulations. An appeal shall stay the
effectiveness of this instrument until resolved.
In addition,please be advised that pursuant to Chapter 9.1-1,Florida Administrative Code(FAC),
this instrument shall not take effect for forty-five(45)days following the rendition to the Florida
Department of Community Affairs. Pursuant to FAC Section 9J-1.003(2),"Development orders
shall not be rendered until the time within which to file any local administrative appeals pursuant
to local ordinances has expired." During that forty-five days, the Florida Department of
Community Affairs may appeal this instrument to the Florida Land and Water Adjudicatory
Commission,and that such an appeal stays the effectiveness of this instrument until the appeal is
resolved by agreement or order,
KONR49 COUNTY
W)A 4-04 OFFICIAL RECORDS
Northstar TRF Sender Site
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OFFICIAL RECORDS
FILE 01 463439 RCD Aug 17 2004 29,31AM
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MONROE COUNTY FLORIDA
MINOR CONDITIONAL USE DEVELOPMENT ORDER#5-04
A MINOR CONDITIONAL USE DEVELOPMENT ORDER
ESTABLISHING THAT 47 ROCYO EXEMPTIONS MAY BE
RECEIVED AT THE FLORIDA KEYS RV PARK
WHEREAS,Northstar Resort Enterprises,Inc.is the owner of Florida Keys R.V.Resort
property and is described as Parts of Lots 5, 12, and 13, Section 6, Township 61, Range 40,
Island of Key Largo,Monroe County,Florida. [6-61-40 ISLAND OF KEY LARGO PT LOTS 5-
12-13 OR463-879 OR 735-585 OR 735-586-589 OR 1014-2340(DCP) OR 1175-2027
30AMFJ(CW)OR 1180-1670/7 1(CW)I;and
WHEREAS,the above described property is located in the Suburban Commercial(SC)
land use district,with the future land use map designation (FLUM)of Mixed Use Commercial
(MC);and
WHEREAS,the applicant is requesting development approval for transfer of 47 ROGO
exemption units (TREs) to the above described property henceforth referred to as the receiver
site;and
WHEREAS, the Biologist has determined the site to be disturbed with some scattered
native trees and that there is no hammock on the property;and
WHEREAS, the current request to transfer 47 residential ROGO exempt (TRE) units
from Northstar Resort Enterprises,Inc.to the Florida Keys R.V. Resort is being made in lieu of
condition number ten of Resolution P47-03,which states, "Not less than ten(10)and not more
than twenty (20) newly constructed affordable housing employee housing units consistent with
Sections 9,5-4(A-5) and 9.5-4(E-1) shall be constructed off-site, The employee units shall be
completed prior to the issuance of Certificate of Occupancy for the Northstar Hotel.";and
WHEREAS,the Development Review Committee(DRC)of Monroe County,Florida,in
accordance with the provisions of Sections 9.5-24 and 9.5-68 of the Monroe County Land
Development Regulations, met to review the request of Northstar Resort Enterprises, Inc. for
approval of the application for development approval of transfer of 47 ROGO exemptions;and
WHEREAS, the Development Review Committee reviewed the following documents
and other information relevant to the request.-
I A completed application for development approval for transfer of ROGO
exemptions (Receiver Site) which included all documents required by the
application dated March 25,2004;and
DO 4 5.04
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2. A receiver site staff report prepared by Jason King, Planner and Niko Reisinger,
Biologist dated May 11,2004; and
WHEREAS, based upon the information and documentary evidence submitted, the
Development Review Committee adopted the following findings of fact and conclusions of law:
I Based upon the information and documentary evidence submitted, the site in
question complies with the criteria under Section 9.5-120.4 through 9.5-120.5.
Therefore, we find that the Florida Keys RV Park is an appropriate receiver site
for 47 TREs from Northstar Resort Enterprises,Inc.;and
WHEREAS, the Development Review Committee, based on its findings of fact and
conclusions of law, recommended approval with conditions of the application for development
approval of transfer of ROB exemption;,and
WHEREAS, the Director of Planning has duly considered the recommendation of the
Development Review Committee; and
WHEREAS,the record established, the testimonies,offered,and the evidence submitted,
support the findings of fact adopted by the Development Review Committee:
NOW THEREFORE, BE IT RESOLVED BY THE DIRECTOR OF PLANNING
OF MONROE COUNTY, FLORIDA that the request by Northstar Resort Enterprises Inc. to
receive 47 Non-transient TREs is hereby APPROVED subject to the following conditions:
I A building permit will be required for the development of units at the receiver
site.A major conditional use application will also be required for the development
of those units at the receiver site. The major conditional use development will
require a Pro-Application Conference in which the following shall be required in
the form of a Letter of Understanding:
a) The receiver units must be attached dwelling units pursuant to Section 93-120.4
(B)(i); and
b) The receiver units meet the criteria for affordable housing pursuant to Sections 9.5
-4(A-5)and 9.5-266;and
C) Any development application must demonstrate with a traffic,study acceptable to
Monroe County traffic engineers that their proposed development will not impact
hurricane evacuation times;and
d) The development conforms to all other Land Development Regulations.
2. The unique identifier numbers assigned to Northstar Development for eligible
TREs,are identified as A-0 153 through A-0200.
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3. The applicant Northstar Resort Enterprises Inc.,shall have three(3)years from the
date of the approval of the Minor Conditional Use to utilize the 47 TREs and to
complete construction of all structures for which the TREs were granted, or the
Minor Conditional User shall become void and Northstar Resort Enterprises Inc.,
shall be required to apply for and secure a new Minor Conditional Use for the
transfer of TREs to the site.
Date K.Marlene Conaway
Director of Planning and Environmental Resources
HEREBY CERTIFY that on this day before me,an officer duly authorized in the State aforesaid
and in the County aforesaid, to take acknowledgments, personally appeared K. Marlene
Conaway, to me known to be the persona described in and who executed the foregoing
instrument and he acknowledged before me that he executed the same.
SS my hand and official seal in the County and State last aforesaid this day of
wwob
NICOLE V. PETRI CK
NalWy Public-MOD Of!K
Commi"fan # D00378 7M
NOTARY PU BI STATE Of FLORIDA
REFERE pmentorder
constitutes an amendment, extension,
variation,or alteration of a previous conditional use permit,that document may be referenced by
the following N/A "NOW'
NQII!CL
If this development order is appealed under the Monroe County code or by the Department of
Community Affairs,the above time limits shall be tolled until the appeals are resolved.
This instrument shall not take effect for thirty (30) working days following the date of
memorialization thereof,and during that time,the permit shall be subject to appeal as provided in
Section 9.5-521(c)of the Monroe County land development regulations. An appeal shall stay the
effectiveness of this instrument until resolved.
In addition,please be advised that pursuant to Chapter 9J-1,Florida Administrative Code(FAC),
this instrument shall not take effect for forty-five(45)days following the rendition to the Florida
Department of Community Affairs. Pursuant to FAC Section 91-1.003(2),"Development orders
shall not be rendered until the time within which to file any local administrative appeals pursuant
to local ordinances has expired." During that forty-five days, the Florida Department of
Community Affairs may appeal this instrument to the Florida Land and Water Adjudicatory
Commission,and that such an appeal stays the effectiveness of this instrument until the appeal is
resolved by agreement or order.
MONROE COUNTY
OFRICIAL RECORDS
DO 4 5-04
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1
MONROE COUNTY CERTIFICATE
FOR
INCLUSIONARY HOUSING TRACKING
The purpose of this Certificate is to track the allotment of Incusionary Housing Tracking
Certificates (IHTCs) awarded pursuant to Development Agreement # entered into
between Monroe County Board of County Commissioners of Monroe County Florida and
Northstar Resort Enterprises Corporation. Upon receipt of a certificate of occupancy for
each of the 91 affordable housing units and appropriate affordable housing deed restriction
Nortbstar will receive one IHTC. Each IHTC can be used on a one to one basis by to meet
inclusionary housing requirements as outlined in Section 9.5-266.
Below are the numbers of the JHTCs to be issued:To whom transferred
Unit#/ Co# Deed Unit#/ CC1# Deed
Certificate Restriction
Certificate Restriction
Number Book/Page Number Book/Page
47
2 48
49
3
4
5 51
6 = 52
7 53
8 54
19 cc
10 56
11 57
12 4
59
0
14 6
116 62
1-
617 3
18 64
19 65
20 66
21 6 7
-7:
68
F-23 69
24 7W
Li-5 71
26 72
73
28 74
29
Lakeview Gardens Development Agreement Page 1
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32 78
79
34
80
35 S1
36
2.<, 82
3884
39 " " 85
<-
40 .
86
41 87
42 w,> 88
43 r 89
44 :`a 90
45 91
Below is a list of projects at which the If17'C has been transferred:
Certificate Project Project Certificate Project Project
Number [ Name Location/ Number Name Location/
RE
A R
If if Numbers , ` Number(s)
47
r a
3 49
z
w, 51
552
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Lakeview Gardens Development Agreement Page 2
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The above referenced 114'rCs are transferable and assignable individually and in groups
by Northstar Resort Enterprises Corporation and by its or any ether transferees,
successors and assigns, by a notarized instrument riled with the Director of Growth
Management for Monroe County and the issuance of a new certificate showing such
transfer by the Division of Growth Management. Upon use the Certificate for
inclusionary housing requirements, such Certificate must be presented and surrendered
and a new certificate shall be issued by the Division of Growth Management showing the
use of the IHTC, The Division of Growth Management shall keep records of such
transfers.
Andrew f3.�w.ive�tt.�.._.._
Tre Date
Director Growth Management Division
Notary:
STATE OF FLORIDA
COUNTY OF MONROE
The foregoing signature was acknowledged before me this day of w �n 20 By
who is personally known to the or produced as
identification.
5tgnature oNao P.i;1i c.,St aie o'f Flo rrda NONRBE COUNTY
OFFICIAL RECORDS
My Commission Expires.
Lakeview Garelens Development Agreemem Page 3