Item P3BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: 6/15/11 Division: County Attorney
Bulk Item: Yes _ No xxx Staff Contact Person/Phone #: Bob Shillinger 292-3470
AGENDA ITEM WORDING: Presentation of settlement agreement in the matter of Dept. of
Community Affairs v. Monroe County, Leo Winterling, et al, DOAH 10-0547.
ITEM BACKGROUND: The five Winterling brothers own property on US 1 on Big Pine Key that
used to be the site of an Outward Bound camp. In April 2009, the Winterlings submitted an
application for a major conditional use permit to operate a camp ground on the property with a capacity
of ten (10) recreational vehicle spaces in addition to the one (1) existing permanent, single family
dwelling unit on the property, as well as accessory structures for the campground. On September 25,
2009, the Planning Commission approved the application. The Department challenged the issuance of
the conditional use permit, claiming that there was inadequate evidence in the record documenting the
historical use of the property as a campground and citing a perceived increase in intensity of the
proposed use. The property is designated Tier I and is located in Key Deer habitat. However, the
habitat on the property is of such a marginal quality that the Land Authority, state and federal officials
have indicated that it is not worth the expenditure of their limited resources for acquisition, especially
in light of the costs associated with restoring a parcel as disturbed as this one is.
The matter was assigned to DOAH for a hearing. After extensive negotiations, DCA has proposed
letting the property owner transfer 10 transient ROGO units offsite to another, less environmentally
sensitive location within the Big Pine/No Name Key planning area or to Marathon or Islamorada. The
property owner is amenable to that proposal. Arguments can be made both in favor and against the
proposed settlement agreement.
PROs: 1) Transferring transient units off of Big Pine will alleviate the need for the County to include
the proposed development in its "H" calculations under the Big Pine/No Name Key TTP and the need to
acquire property to mitigate for that H.
2) The settlement agreement would permit the Winterlings to (at least partially) recoup their investment
and thus eliminate the (remote) possibility of a takings or Bert J. Harris Act claim.
3) The settlement agreement would eliminate the need for and expense of an administrative hearing.
4) Transferring development rights to the municipalities, which are more developed and have higher
densities, would further the principles of "Smart Growth".
5) Transferring the units up U.S. 1 into Marathon or Islamorada would benefit hurricane evacuation
principles (to at least some degree).
CONs: 1) The transfer outside of the planning area is not authorized by the comprehensive plan or the
land development code.
2) The transfer of the units away from Big Pine would remove a potential business activity from that
community, with no offsetting benefit to the local economy.
3) Settlement requires the execution of a "380 agreement", which have fallen into disfavor.
4) The settlement agreement may create expectations among other property owners of the ability to
make similar transfers across planning area and jurisdictional lines despite the current limitations in the
comprehensive plan and land development code. In short, this agreement could start a trend of shifting
economic development away from the unincorporated areas of the County towards the cities.
PREVIOUS RELEVANT BOCC ACTION: In April 2011, the BOCC held a closed, attorney client
session to discuss settlement options.
CONTRACT/AGREEMENT CHANGES: n/a
STAFF RECOMMENDATIONS: Given the limitations in the comprehensive plan and land
development code, staff cannot recommend approval of the agreement.
TOTAL COST: n/a INDIRECT COST: n/a BUDGETED: n/a
COST TO COUNTY: n/a SOURCE OF FUNDS: n/a
REVENUE PRODUCING: no AMOUNT PER MONTH Year
APPROVED BY: County Atty xx OMB/Purchasing Risk Management
DOCUMENTATION: Included xx Not Required
DISPOSITION
Revised 1/09
AGENDA ITEM #
STATE OF FLORIDA, DEPARTMENT
OF COMMUNITY AFFAIRS,
Petitioner,
vs.
MONROE COUNTY AND LEO F.
WINTERLING AND JAMES A.
WINTERLING,
Respondents.
DOAH Case No. 10-0547DRI
APP-09-008
FLORIDA STATUTE 380.032(3)
SETTLEMENT AGREEMENT
THIS AGREEMENT is entered into between Respondents, MONROE COUNTY, LEO
F. WINTERLING and JAMES A. WINTERLING and Petitioner DEPARTMENT OF
COMMUNITY AFFAIRS, as a complete and final settlement of the specific claims raised in the
above -styled, Section'180.07, Florida Statutes appeal.
WHEREAS, the DEPARTMENT OF COMMUNITY AFFAIRS ( Department) is the
state land planning agency having the power and duty to exercise general supervision of the
administration and enforcement of Chapter 380, Florida Statutes, which includes provisions
related to Areas of Critical Concern; and
WHEREAS, MONROE COUNTY (County) is a local government located in the Florida
Keys Area of Critical State Concern with jurisdiction to issue development orders in Monroe
County, Florida. The County Planning Department's mailing address is 2789 Overseas Highway,
Suite 410, Marathon, Florida 33050; and
WHEREAS, Leo F. Winterling, James A. Winterling, George C. Winterling, Paul J.
Winterling, and Mark J. Winterling (Applicants) are the owners of a single family dwelling unit
on Big Pine Key and the developers of the subject property into a proposed Recreational Vehicle
(RV) park. The Applicants mailing address is 9626 Gerst Road, Perry Hall, Maryland 21128; and
WHEREAS, the subject property is located at 31875 Overseas Highway (US1), Big Pine
Key and is legally described as Part of Government Lot 4, Section 25, Township 66 South, Range
29 East, Big Pine Key, and adjacent bay bottom Monroe County, Florida, as shown on Exhibit A,
having Real Estate Number 00110730.000000; and
WHEREAS, on April 15, 2009, the Applicants submitted to the Monroe County Planning
Department an application (Application) for an amendment to a Major Conditional Use Permit
in accordance with § 110-70 and § 130-94 of the Monroe County Code for the subject property;
and
WHEREAS, the Application proposed to recognize ten transient campground spaces to
be redeveloped as transient campground/recreational vehicle (RV) spaces, the maintenance of
one (1) existing permanent single-family dwelling unit, the constriction of accessory
development (tiki hut, pool and bath houses), and the carrying out of associated site
improvements; and
WHEREAS, the subject property is approximately 3.48 acres of uplands and 1.89 acres of
submerged lands, the Future Land Use Map (FLUM) designation of the subject parcel is Residential
Low (RL), the Zoning is Suburban Residential (SR), and the Tier Designation is a Tier I Natural
Area; and
WHEREAS, on September 25, 2009, Monroe County Planning Commission Resolution No.
P33-09 adopting the Major Conditional Use Permit was signed by the Chair and rendered to the
Department on October 26, 2009; and
WHEREAS, the County's comprehensive plan is implemented, in part, by and through its
adopted land development regulations; and
WHEREAS , Section 3 80.05(16), Florida Statutes provides that no person shall undertake any
development within an area of critical state concern except in conformity with Chapter 380, Florida
Statutes; and
WHEREAS, the Monroe County Comprehensive Plan and the Livable CommuniKeys Plan
Master Plan for Big Pine Key and No Name Key designate the subject parcel as a Tier I property
located within the Key Deer Federal Preserve established for the protection of a threatened and
endangered species; and
WHEREAS, a controversy has arisen between the Department, the County and the
Applicants regarding whether the transient campground spaces were lawfully established and may
be redeveloped as RV spaces, whether the proposed RV use is allowed in the subject property's
Residential Low Future Land Use Map (FLUM) designation, whether development of the subject
property located within a Tier I category is severely restricted to protect the Key deer and its habitat,
and whether the development of the subject property is consistent with the Monroe County
Comprehensive Plan, Land Development Regulations and Section 380.0552(7), Florida Statutes,
Principles for Guiding Development; and
WHEREAS, on December 10, 2009, the Department filed a Petition for Appeal of a
Development Order with the State of Florida Land and Water Adjudicatory Commission which
forwarded the appeal to the Division of Administrative Hearings for assignment of an administrative
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law judge and further proceedings; and
WHEREAS, the Department has authority, pursuant to Section 380.032(3), Florida Statutes
(2010), to enter into agreements with any landowner, developer or governmental agency as may be
necessary to effectuate the provisions and purposes of Chapter 380 or any riles promulgated
thereunder; and
WHEREAS, the parties hereto wish to avoid the expense and delay of lengthy litigation and
to resolve the conflict by amending the Major Conditional Use Permit (Conditional Use), to the
new terms and conditions set forth herein, which terms and conditions effectuate the provisions and
purposes of the Act, and it is in their best interest to do so.
NOW THEREFORE, in consideration of the terms and conditions set forth hereafter and as
the full, complete and final settlement of all claims arising out of the controversy set forth above, the
parties hereto agree as follows:
1. Representations. The representations set forth above are incorporated herein and
are essential elements hereof.
2. Major Conditional Use Permit amendments. The following amendments to the
Major Conditional Use Permit are binding on the Winterling property located at 31875 Overseas
Highway (US 1), Big Pine Key, and run with the land pursuant to the Florida Statutes 380.032
Settlement Agreement.
a. One market rate dwelling unit (as defined in the Monroe County Code) per two upland
acres may be continued or newly constricted on the property if the existing unit is
demolished and rebuilt consistent with the Residential Low FLUM designation.
b. The subject property is located in a Key Deer Refuge area which has been designated by
Monroe County as a Tier I property. Ten (10) campground spaces are recognized as
transient Rate of Growth Ordinance (ROGO) Exemptions which may only be used for
future development if they are transferred off of the subject sending property for
development in a Tier H or Tier III property as a transient campground space, a RV space,
or a hotel unit in the following receiving areas — Big Pine Key subarea (not including No
Name Key), the City of Marathon, and the Village of Islamorada. The receiving areas are
subject to all of the following conditions: in Monroe County the units may only be
transferred to a parcel on Big Pine Key designated Tier H or Tier III; all receiving sites
must be served by a wastewater treatment facility that meets the advanced wastewater
treatment standards established by Section 403.086(10), Fla. Stat., or a Department of
Environmental Protection constriction permit has been issued for the collection lines for
such a facility; transfers to the City of Marathon or the Village of Islamorada shall
additionally be limited to sites where no clearing of tropical hardwood hammock is
required and may not be transferred to any parcel designated as a VE zone or having turtle
beach protections or result in the filling of wetlands. With the exception of transfers
within the Big Pine Key subarea, transfers of ROGO exempt units may be effectuated
only upon adoption of a Resolution by the City of Marathon and the Village of
Islamorada pursuant to local regulations.
c. In the event Monroe County Comprehensive Plan and Land Use regulations or State of
Florida Area of Critical State Concern land use regulations are amended in the future, all
proposed changes to the subject property shall be effective only by an amendment to the
instant Florida Statutes 380.032 Settlement Agreement if approved by all parties. The
Florida Statutes 380.032 Settlement Agreement and any future amendments shall be
binding on the land in perpetuity and shall be recorded in the Monroe County public
records.
d. Monroe County shall recognize and document 10 transient campground spaces as
Transfer of ROGO Exemptions available to the subject property that are not eligible for
redevelopment on the site. Monroe County and the Respondents Leo and James
Winterling shall track and record the transfer of the transient campground spaces to the
receiving property as required by the Monroe County Comprehensive Plan and Land
Development Regulations governing Transfer of ROGO Exemptions.
Amendment of the Major Conditional Use Permit. The Respondents and the
Department hereby agree that the Major Conditional Use approval for the subject property shall
be amended as set forth above and all future development shall not proceed without a building
permit allocation.
4. Further Proceedings. Conditioned upon Monroe County's adoption of the
amendments to the Major Conditional Use Permit by approval of this Settlement Agreement, the
Department shall, within 15 working days of receipt of said amendments file appropriate
pleadings with the Division of Administrative Hearings to close the case and relinquish
jurisdiction back to the Department.
Entirety of Agreement. The parties further agree that this Settlement Agreement
contains the entire and exclusive agreement among the parties and may not be modified in any
manner except by an instrument in writing and signed by the parties.
6. Duplicate originals. This Settlement Agreement may be executed in any number
of originals or counterparts, all of which evidence one agreement, and only one of which may be
produced for any purpose.
7. Enforcement. In the event of a breach of this Agreement or failure to comply
with any condition of it, or if it has been based upon materially inaccurate information, the
Department may enforce this Agreement as provided in Sections '180.05, '180.07, and'180.11,
Florida Statutes.
Scope of Authority. This Agreement affects the rights and obligations of the
parties under Chapter 380, Florida Statutes. It is not intended to influence or determine the
authority or decisions of any other state or local government agency in issuance of any other
permits or approvals that might be required by state law or local ordinance for any development
authorized by this Agreement, or restrict the Department's authority with regard to future
developments orders for the Project. It is not intended to limit the authority of the Department
with regard to any development other than the Project.
9. Release; Costs and Attorneys Fees. Each party hereto releases the other from
any and all claims or demands arising out of the subject dispute. Each party shall bear its own
costs and attorneys fees incurred in connection with this matter.
10. Date of Execution. The date of execution of this Agreement shall be the date that
the last party signs and acknowledges this Agreement.
11. Recordation. This Agreement shall run with the land and shall bind, and the
benefit shall inure to, respectively, Monroe County, Leo F. Winterling, James A. Winterling, the
Department, and their respective successors and assigns. Respondents Leo F. Winterling and
James A. Winterling shall record this Agreement in the Public Records of Monroe County,
Florida, or Monroe County may record the Agreement at the Respondents' (Winterlings) expense
and shall provide a certified copy of the recorded Agreement to the Department within 15 days
after receipt of the executed Agreement from the Department.
IN WITNESS WHEREOF, the parties, by and through their respective undersigned duly
authorized representatives, have executed this Agreement on the dates and year below written.
BALANCE OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGES TO FOLLOW
WITNESSES:
Witness as to Winterling
Print Name
STATE OF FLORIDA
COUNTY OF MONROE
LEO F. WINTERLING
Leo F. Winterling
The foregoing instrument was acknowledged before me this day of
has produced
2011, by LEO F. WINTERLING who is personally known to me or who
as identification.
Notary Public
Print Name of Notary Public
My Commission Expires:
WITNESSES:
Witness as to Winterling
Print Name
STATE OF FLORIDA
COUNTY OF MONROE
JAMES A. WINTERLING
James A. Winterling
The foregoing instrument was acknowledged before me this day of
has produced
2011, by JAMES A. WINTERLING who is personally known to me or who
as identification.
Notary Public
Print Name of Notary Public
My Commission Expires:
WITNESSES:
Witness as to Winterling
Print Name
STATE OF FLORIDA
COUNTY OF MONROE
GEORGE C. WINTERLING
George C. Winterling
The foregoing instrument was acknowledged before me this day of
who has produced
2011, by GEORGE C. WINTERLING who is personally known to me or
as identification.
Notary Public
Print Name of Notary Public
My Commission Expires:
WITNESSES:
Witness as to Winterling
Print Name
STATE OF FLORIDA
COUNTY OF MONROE
PAUL J. WINTERLING
Paul J. Winterling
The foregoing instrument was acknowledged before me this day of
has produced
2011, by PAUL J. WINTERLING who is personally known to me or who
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as identification.
Notary Public
Print Name of Notary Public
My Commission Expires:
WITNESSES:
Witness as to Winterling
Print Name
STATE OF FLORIDA
COUNTY OF MONROE
MARK J. WINTERLING
Mark J. Winterling
The foregoing instrument was acknowledged before me this day of
has produced
2011, by MARK J. WINTERLING who is personally known to me or who
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as identification.
Notary Public
Print Name of Notary Public
My Commission Expires:
ATTEST: Danny Kolhage, Clerk MONROE COUNTY
Deputy Clerk Mayor Heather Carruthers
DEPARTMENT OF COMMUNITY AFFAIRS
Witness as to the Department
14
OCR
Its:
ORIGINAL
STATE OF FLORIDA
LAND AND WATER ADJUDICATORY COMMISSION
DEPARTMENT OF COMMUNITY AFFAIRS,
Petitioner,
V.
MONROE COUNTY, LEO F. WINTERLING, and
JAMES A. WINTERLING,
Respondents.
CASE NO. APP 09-v
DEPARTMENT OF COMMUNITY AFFAIRS'
PETITION FOR APPEAL OF DEVELOPMENT ORDER
COMES NOW the DEPARTMENT OF COMMUNITY AFFAIRS ("Department"),
pursuant to Section 380.07, Florida Statute (2008), initiates an appeal to the Florida Land and
Water Adjudicatory Commission ("FLWAC") of a development order issued to LEO F.
WINTERLING and JAMES A. WINTERLING by the MONROE COUNTY Planning
Commission. As grounds for said appeal, the Department states the following:
The Parties
1. The Department is the state land planning agency, which has the power and duty
to enforce and administer Chapter 380, Florida Statutes, the Florida Land and Water
Management Act of 1972, and to appeal development orders to the FLWAC pursuant to Section
380.07, Florida Statutes (2008).
2. Monroe County ("County") is a local government located in the Florida Keys
Area of Critical State Concern. The County's mailing address is 2789 Overseas Highway, Suite
410, Marathon, Florida 33050.
3. Leo F. Winterling and James A. Winterling ("Applicants") are the owners of a
single family dwelling unit and the developers of a Recreational Vehicle (RV) park. The
Applicants mailing address is 9626 Gerst Road, Perry Hall, Maryland 21128.
Jurisdiction
4. The Florida Land and Water Adjudicatory Commission is the body that adjudicates
appeals brought by the Department of any development order issued in an Area of Critical State
Concern. §§ 380.031(18), 380.032, 380.07(2), Fla. Stat.
The Subiect Property
5. On April 15, 2009, the Applicants submitted to the Monroe County Building
Department ("Building Department") an application ("Application") for an amendment to a major
conditional user permit in accordance with § 110-70 and § 130-94 of the Monroe County Code.
6. The subject property is located at 31875 Overseas Highway (US 1) on Big Pine Key
and is legally described as Part of Government Lot 4, Section 25, Township 66 South, Range 29
East, Big Pine Key, and adjacent bay bottom Monroe County, Florida, having Real Estate Number
00110730.000000.
7. The Application includes the development of ten transient campground spaces as
transient campground/recreational vehicle (RV) spaces, the maintenance of one (1) existing
permanent single-family dwelling unit, the construction of accessory development (tiki hut, pool
and bath houses), and the carrying out of associated site improvements.
8. On September 25, 2009, Monroe County Planning Commission Resolution No.
P33-09 was signed by the Chair and rendered to the Department on October 26, 2009. A copy of
Resolution No. P33-09 is attached to this Petition as Exhibit "A."
9. The Subject Property is approximately 3.48 acres in uplands and 1.89 acres of
submerged lands. The Future Land Use Map (FLUM) designation of the subject parcel is
Residential Low (RL), the Zoning is Suburban Residential (SR) and the Tier Designation is a
Tier I Natural Area.
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The Florida Keys Area of Critical State Concern
10. Monroe County, including the subject property, is located within the Florida Keys
Area of Critical State Concern, as designated under Sections 380.0552, Florida Statutes (2008), and
Rule 28-29, Florida Administrative Code. Those statutory provisions require that the County adopt
and implement a comprehensive plan and land development regulations consistent with the
Principles for Guiding Development listed in Section 380.0552(7), Florida Statutes (2008).
11. The County has adopted a comprehensive plan that has been approved by the
Administration Commission in Rule 9J-14.003, Florida Administrative Code and Chapter 28-20,
Florida Administrative Code.
12. The County comprehensive plan is implemented, in part, by and through its adopted
land development regulations
13. Section 380.05(16), Florida Statues (2008), provides that no person shall undertake
any development within an area of critical state concern except in conformity with Chapter 380,
Florida Statutes.
14. In addition, in conformity with and in furtherance of the purposes of Chapter 380,
Florida Statutes, the Local Government Comprehensive Planning and Local Development
Regulation Act require that the County permit only that development which is consistent with the
County's comprehensive plan. Sections 163.3161(2) and 163.3194(1), Florida Statutes (2008).
Consistency Analysis of the Subiect Property
15. On September 25, 2009, the County approved a major conditional use to redevelop
the subject property and convert the 10 campsites to 10 RV spaces. Previously, on October 27,
2006, the County issued a Letter of Understanding (LOU) that recognized 10 campsites and one
single family residence were lawfully established according to Section 138-19 of the County's
Land Development Regulations and Administrative Interpretation 03-108. Monroe County is
required to render to the Department development orders pursuant to Sections 380.05, and
3
380.07, F.S., and Rule 9-J-1, Florida Administrative Code. The LOU does not have the effect of
permitting development and was not subject to the Department's review.
16. To date, information provided by the Applicants and the County accompanying
the LOU does not validate that the 10 campground spaces were lawfully established dating back
to 1986 consistent with the requirements identified in Section 138-19 of the County's Land
Development Regulations and Administrative Interpretation 03-108. Specifically, aerial
photography from 1986 to present does not show the existence of 10 camp sites; no building
permits or other official approval was provided for the campground spaces; the County property
record card does not indicate the existence of the campground spaces prior to 1986; no utility
records or occupational licenses were submitted; and the campground use was not permitted by
the previous zoning designations of the property. Although a Monroe County Planner conducted
a site visit on June 20, 2006, and observed one single family residence and 12 damaged wooden
camping platforms, documentation dating back to 1986 was not provided.
17. Transient residential uses such as recreational vehicles, campground spaces and
hotels are not allowed uses under the Monroe County Comprehensive Plan Residential Low
Future Land Use Map category which was not addressed in the LOU. The subject parcel's
Residential Low designation has an assigned density of 1 unit per 2 acres for residential units and
does not assign any density for transient units including RV uses. The subject parcel is 3.48
acres and has a density of 1.7 units allowing the construction of 1 residential unit. Therefore, the
proposed development on the subject property is inconsistent with density and permitted uses in
the Residential Low Category.
18. The Monroe County Comprehensive Plan and the Livable CommuniKeys Plan
Master Plan for Big Pine Key and No Name Key designate the subject parcel as a Tier I property
0
and indicate it is located in an area of high Key deer density. The proposed development on a
Tier I parcel does not further Comprehensive Plan Objection 103.1, Objection 207.7 and Policy
207.7.1 which direct the County to regulate future development on Big Pine Key to protect the
Key deer and preserve its habitat.
19. Monroe County Comprehensive Plan includes Policy 101.4.23 that allows legally -
established dwelling units to not be considered as non -conforming as to the density provisions of
the Plan. Documentation rendered with Resolution No. P33-09 does not verify that the
campground spaces were legally -established.
20. In the event the Applicant demonstrated that the 10 campground spaces were
legally -established, the proposed transient use would be considered a nonconforming use in the
Residential Low Future Land Use Map category.
21. Monroe County Comprehensive Plan Policies 101.8.1, 101.8.2 and 101.8.7
prohibit the expansion of non -conforming uses, prohibit a non -conforming use to be changed to
any other use unless the new use conforms to all applicable provisions of the Future Land Use
category and zoning district in which it is located and prohibit the re-establishment of non-
conforming uses.
22. Additional information received from Monroe County planning staff indicated
that the campground has not been in operation since approximately November 2005 (after
damage from Hurricane Wilma) and that the property has been for sale since late 2006.
Therefore, the proposed re-establishment of transient campground spaces and conversion to RV
spaces is inconsistent with Policies 101.8.1, 101.8.2 and 101.8.7.
23. The proposed re-establishment of the alleged transient campground spaces and
conversion to RV spaces may increase the water usage, wastewater flow, and the impervious
5
surface on the subject property. After inquiry with the Department of Health, no documentation
of an operating permit for a campground was found. Additionally, the Department of Health
does not have any records/inspection sheets of a campground (Outward Bound) on the subject
property.
24. Based upon the 2008 Monroe County Public Facilities Report, the proposed
development is on a segment of U.S. 1 (MM 29.5 — 33) on Big Pine Key that is operating below
the adopted level of service standard of C (Comprehensive Plan Policy 301.1.2) for US-l. The
2008 Monroe County Public Facilities Report (page 23) states that Big Pine Key has exceeded
the 5% allocation and segments that have used -up the 5% reserve trips are restricted from new
development or redevelopment, except where redevelopment has no net increase in trips.
Summary
25. In summary, Monroe County Planning Commission Resolution P33-09 and the
accompanying information do not document compliance with the Monroe County
Comprehensive Plan and Land Development Regulations as: the transient campground .uses are
not lawfully established; the proposed RV use is not allowed in the County's Residential Low
FLUM; development within a Tier I property is severely restricted to protect the Key deer and its
habitat; if lawfully established, transient uses in the Residential Low FLUM are a
nonconforming use and may not be changed to any other use or expanded unless the Applicant
demonstrates that the new use conforms to all applicable provisions of the FLUM category and
zoning district in which it is located; no demonstration of authorized potable water usage,
adequate wastewater treatment and Department of Health permits have been provided. Finally,
the proposed RV park is located on a segment of US 1 that is operating below the adopted level
of service and the application has not addressed traffic impacts.
26. Accordingly, the Department objects to Planning Commission Resolution No.
P33-09, and submits this appeal to FLWAC.
Compliance with the Florida Keys Area Protection Act
27. No person may undertake any development within the Florida Keys Area of
Critical State Concern except in accordance with Chapter 380, Florida Statutes, and Section
380.05(16), Florida Statutes (2008). A local government may approve development located
within the Florida Keys Area of Critical State Concern only if it complies with the provisions of
the Florida Keys Area Protection Act. Section 380.0552, Florida Statutes (2008). Pursuant to
Subsection 380.0552(7), Florida Statutes (2008), all local governments within the Florida Keys
Area of Critical State Concern are required to administer their comprehensive plans and land
development regulations in accordance with the Principles for Guiding Development.
28. Planning Commission Resolution No. P33-09 is a "development order" under
Sections 380.031(3) and 380.07, Florida Statutes, and is inconsistent with the Monroe County Year
2010 Comprehensive Plan and Land Development Regulations as set forth above.
29. The subject Resolution is also inconsistent with the Principles for Guiding
Development in the Florida Keys as set forth in Section 380.0552(7), Florida Statutes (2008).
Specifically, it is inconsistent with the following principles for guiding development:
(a) To strengthen local government capabilities for managing land use and development so
that local government is able to achieve these objectives without the continuation of the area of
critical state concern designation.
(b) To protect shoreline and marine resources, including mangroves, coral reef formations,
seagrass beds, wetlands, fish and wildlife, and their habitat.
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(c) To protect upland resources, tropical biological communities, freshwater wetlands,
native tropical vegetation, (for example, hardwood hammocks and pinelands), dune ridges and
beaches, wildlife, and their habitat.
(f) To enhance natural scenic resources, promote aesthetic benefits of the natural
environment, and ensure that development is compatible with the unique historic character of the
Florida Keys.
Request for De Novo Hearing
30. Monroe County is not an agency as defined by the Administrative Procedure Act,
Chapter 120, Florida Statutes, and is not required to conduct hearings in the manner prescribed by
Chapter 120, Florida Statutes. The record created below was not full and complete regarding the
issues raised herein and does not comply with the requirements of procedural due process specified
in Chapter 120, Florida Statutes. The Department was not a party or a formal participant in any
proceeding conducted by the County in regard to the approval of Planning Commission Resolution
No. P33-09 - Conditional Use Permit.
WHEREFORE, the Department respectfully requests that FLWAC accept jurisdiction over
this appeal pursuant to Section 380.07, Florida Statutes, and grant such relief as may be necessary
and appropriate to effectuate the intent and provisions of Chapter 380, Florida Statutes, including,
but not limited to the following:
A. That the cause be referred to the Division of Administrative Hearings for a formal
de novo hearing so that the Department may present evidence and testimony to establish the facts
asserted in this Petition; and
B. Planning Commission Resolution No. P33-09 - Conditional Use Permit, to the
C
extent that it approves development that is illegal and in violation of the provisions of Chapter 380,
Florida Statutes, be reversed and that the Commission issue a final development order in
accordance with the law and the intent of Chapter 380, Florida Statutes; and
C. That the Commission grant such further relief as may be necessary and appropriate
to effectuate the intent and provisions of Chapter 380, Florida Statutes.
Respectfully submitted this 1 Oth day of December, 2009.
Richard E. Shine _
Assistant General Counsel
Shaw P. Stiller
General Counsel
DEPARTMENT OF COMMUNITY AFFAIRS
2555 Shumard Oak Boulevard
Tallahassee, FL 32399-2100
(850) 922-1683
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing petition has been
furnished to the parties listed below on this 1 Oth day of December, 2009.
Richard E. Shine �
Assistant General Counsel
Q6
By Certified Mail, Return Receipt: By U.S. Mail:
Leo F. Winterling Honorable Sylvia J. Murphy
926 Gerst Road Mayor Monroe County
Perry Hall, MD 21128 2798 Overseas Highway,
Suite 410
Marathon, FL 33050
Randolph D. Wall Chairman Suzanne Hutton
Planning Commission Monroe County Attorney
Monroe County 1111 12th Street
2798 Overseas Highway Suite 408
Suite 410 Key West, FL 33040
Marathon, FL 33831-9005
By U.S. Mail:
Carolyn A. Dekle David Dehaas
Executive Director Dehaas Consulting and Design
South Florida Regional 88975 Overseas Highway
Planning Council Tavernier, FL 33070
3440 Hollywood Blvd
Suite 140
Hollywood, FL 33021
By Interagency Mail:
Honorable Charlie Crist Honorable Alex Sink
Governor Chief Financial Officer
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10
County of Monroe
Growth Management Division
Planning & Environmental Resources
Department
2798 Oversea.,, Highwa%. Suite 410
Marathon. FL 33050
Voice: (305) 289-2500
FAX: (305) 289-2536
We strive to be caring, professional and fair
VIA CERTIFIED MAIL
October 26, 2009
Department of Community Affairs
Attn: Rebecca Jetton
Areas of Critical State Concern
Bureau of State Planning
2555 Shumard Oak Blvd.
Tallahassee, FL 32399-2100
Dear Ms. Jetton:
10 - o6 ONL
Board of County Commissioners
MaN°car George Neugem. Dist. 2
Mayor Pro Tem Sylvia J. Murphy. Dist. 5
Kim Wi(lington. Dist I
Heather Carruthers. Dist. 3
Mario Di Gennaro, Dist. 4
t
Enclosed is a copy of non -recorded Planning Commission Resolution No. P33-09 filed by Leo F. and James A. Winterling for
an amendment to a major conditional use permit in order to redevelop ten (10) previously existing spaces as described herein.
The Chair signed the Resolution on September 25, 2009, as a result of the Hearing held on July 22, 2009.
Pursuant to Section 102-185(c) of the Monroe County Land Development Regulations, the 30-day public appeal period for
this instrument expired on 10.26.09. Please be advised that once we have received a copy of your appeal waiver letter we
will render this document to the Clerk of the Court for the final recordation after all appeal periods have ended.
Please email or mail the waiver letter to:
Tedesco-debby@monroecounty-fl.gov
Marathon Government Center
Attn: Planning Commission Coordinator
2798 Overseas Hwy, Suite 410
Marathon, FL 33050-2227
Thank you and sincerely,
Gail Creech
Staff Assistant
Encl
tIONROE COUNTY, FLORIDA
PLANNING COMMISSION RESOLUTION NO. P33-09
A RESOLUTION BY THE MONROE COUNTY PLANNING
COMMISSION APPROVING THE REQUEST BY LEO F. AND
JAMES A. WINTERLING FOR AN AMENDMENT TO A
MAJOR CONDITIONAL USE PERMIT IN ORDER TO
REDEVELOP TEN (10) PREVIOUSLY EXISTING
TRANSIENT CAMPGROUND SPACES AS TRANSIENT
CAMPGROUND/RECREATIONAL VEHICLE (RV) SPACES,
MAINTAIN AND IMPROVE ONE (1) EXISTING
PERMANENT SINGLE-FAMILY DWELLING UNIT,
CONSTRUCT ACCESSORY DEVELOPMENT AND CARRY
OUT ASSOCIATED SITE IMPROVEMENTS, AT PROPERTY
LEGALLY DESCRIBED AS PART OF GOVERNMENT LOT 4,
SECTION 25, TOWNSHIP 66 SOUTH, RANGE 29 EAST, BIG
PINE KEY, AND ADJACENT BAY BOTTOM, MONROE
COUNTY, FLORIDA AND HAVING REAL ESTATE NUMBER
00110730.000000.
WHEREAS, during a regularly scheduled public meeting held on July 22, 2009, the
Monroe County Planning Commission conducted a review and consideration of a request by
David DeHaas, on behalf of Leo F. and James A. Winterling, for an amendment to a major
conditional use permit in accordance with § 1 10-70 and § 130-94 of the Monroe County Code;
and
*N'HEREAS, the subject property is located at 31875 Overseas Highway (US 1) on Big
Pine Key, approximate mile marker 32, and is legally described as Part of Government Lot 4,
Section 25, Township 66 South, Range 29 East, Big Pine Key, and adjacent bay bottom, Monroe
County, Florida, having real estate number 001 10730.000000, and
NN'HEREAS, the application involves the redevelopment of ten (10) prcviously existing
transient campground spaces as transient campgroun&RV spaces, the maintenance of' one (1)
existing permanent single-family dwelling unit. the construction ofaccessory development, and
the carrying out of associated site improverncnts; and
WHEREAS. in the application submitted on April 15, 2009, the applicant initially
requested approval of a total of fifteen (15) campground/RV spaces. The application was
Resolution P33-09 Pat+e 1 (4 7
File 29046
ad%crtised accordingly for the Development Rev Icc� Committee (DRC) meeting on June 9, 2009.
Fallowing the discussion of the application_ at the DRC meeting. the applicant reduccd the
request to a total of ten ( M) campgroundR\7 spaces: arid
WHEREAS, the Planning Commission reviewed the following documents and other
infOrination relevant to the request, Much by reference are hereby incorporated as part of the
record of said hearing:
1. Major conditional use permit application received by the Monroe County Planning &
Environmental Resources Department on April 15, 2009;
2. Development Review Committee Resolution No. DRC5-09;
3. Project Information Sheet (G-3) by Keys Engineering Services. Inc. and DeHaas
Consulting & Design, dated October 8, 2008 and revised June 5, 2009.
4. Proposed Site Plan (C-1) by Keys Engineering Services, Inc. and DeHaas Consulting
& Design, dated October 8, 2008;
5. Landscaping Plan (C-3) by Keys Engineering Services, Inc. and DeHaas Consulting
& Design, dated October 8, 2008;
6. Pedestrians Plan (C-4) by Keys Engineering Services, Inc. and DeHaas Consulting &
Design, dated December 22, 2008;
7. Conceptual Drainage Plan (C-5) by Keys Engineering Services, Inc. and DeHaas
Consulting & Design, dated December 22, 2008;
8. Level 1 Traffic & Engineering Report by Crossroads Engineering, dated September
10, 2009;
9. Boundary Survey by John Paul Grimes dated November 8, 2002;
10. Staff report prepared by Joseph Haberman, Monroe County Principal Planner, and
Janis Vaseris, Monroe County Biologist, dated July 9, 2009;
11. Swom testimony of Monroe County Planning & Environmental Resources
Department staff,
12. Sworn testimony of the applicant and the general public;
13. Advice and counsel of Susan Grimsley, Assistant County Attorney, and Thomas
Wright, Planning Commission Counsel; and
WHEREAS, based upon the infonmation and documentation submitted, the Planning
Commission makes the following Findings of Fact:
1. The property is located in a Suburban Residential (SR) District,
2. The property has a Future Land Use Map designation of Residential Low (RL).
3. The tier map overlay designation of the property is Tier I ;
4. Pursuant to Ordinance Numbers 029-2004 and 030-2004, approved by the Board of
County Commissioners on August 18. 2004, the future land use map designation of
the subject property was changed from Mixed Use i Commercial (MC) to Residential
Low (RL) and the land use district of the subject property was changed from
Destination Resort (DR) to Suburban Residential (SR). The map amendments were
Resnlutinn P33-OQ Pa�'e 2 of-7
File 29046
carried out in order to fulfill Action Itcm 2.1.3 of' the Mauer Plan tier Future
Development irf Big Pine Key and No Name Kev:
5. Pursuant to § 1 30-94 of the Monroc County Code. in the Suburban Residential (SR)
District, campgrounds may be permitted only. with a major conditional use permit,
provided that: a) the parcel proposed for development has an area of at least five (5)
acres; b) the operator of the campground is the holder of' a valid Monroe County
occupational license; e) if the use involves the sale of goods and services, other than
the rental of camping sites or RV parking spaces, such use does not exceed 1,000 ft'
and is designed to serve the needs of the campground; and d) the parcel proposed for
development is separated from all adjacent parcels of land by at least a class "C"
buffer -yard;
6. § 110-67 of the Monroe County Code provides the standards which are applicable to
all conditional uses. When considering applications for a conditional use permit, the
Planning Commission shall consider the extent to which:
(a) The conditional use is consistent with the purposes, goals, objectives and
standards of the Monroe County Year 2010 Comprehensive Plan and Monroe
County Code; and
(b) The conditional use is consistent with the community character of the immediate
vicinity of the parcel proposed for development; and
(c) The design of the proposed development minimizes adverse effects, including
visual impacts, or the proposed use on adjacent properties; and
(d) The proposed use will have an adverse effect on the value of surrounding
properties; and
(e) The adequacy of public facilities and services, including but not limited to
roadways, park facilities, police and fire protection, hospital and Medicare
services, disaster preparedness program, drainage systems, refuse disposal, water
and sewers, judged according to standards from and specifically modified by the
public facilities capital improvements adopted in the annual report required by the
Monroe County Code; and
(f) The applicant for conditional use approval has the financial and technical capacity
to complete the development as proposed and has made adequate legal provision
to guarantee the provision and development of any open space and other
improvements associated with the proposed development; and
(g) The development will adversely affect a known archaeological, historical or
cultural resource; and
(h) Public access to public beaches and other waterfront areas is preserved as a part of
the proposed development; and
(1) The proposed use complies with all additional standards imposed on it by the
particular provision of this chapter authorizing such use and by all other
applicable requirements of the Monroe County Code;
7. Developments on Big Pine Key shall he consistent with the provisions and intent of
the Master Plan for Future Development of Big Pine Key and No Name Key:
Rc.r,tutiim P33-09 Paae 3 of 7
Fite 29046 `
8. Developments requirin" a conditional
Principles for Guiding Development in
Concern:
use: permit shall be consistent with the
the Florida Keys Area of Critical State
9. Planning & Environmental Resources Department staff found that the applicant has
demonstrated that all of the required standards shall be met and recommended
approval of the amendment to a major conditional use pen -nit application with
conditions;
10. An adjacent property owner objected to the proposed development at the public
hearing; and
WHEREAS, based upon the information and documentation submitted, the Planning
Commission makes the following Conclusions of Law:
1. The amendment to a major conditional use permit request is consistent with the
provisions and intent of the Monroe County Year 2010 Comprehensive Plan:
a. The redevelopment is consistent with the purpose of the Residential Low (RL)
future land use category. as set forth in Policy 101.4.2,
( 2. The amendment to a major conditional use permit request is consistent with the
provisions and intent of the Master Plan for Future Development of Big Pine Key and
No Name Key;
3. The amendment to a major conditional use permit request is consistent with the
provisions and intent of the Land Development Code of the Monroe County Code;
a. The redevelopment is consistent with the purpose of the Suburban Residential
(SR) District , as set forth in § 130-44;
b. The land uses of the redevelopment are permitted uses in the Suburban
Residential (SR), as set forth in § 130-94;
c. The redevelopment shall meet all of the standards for a conditional use permit as
set forth in § 1 10-67:
4. At the July 22.. 2009 public hearing, the Planning Commission and the applicant
discussed the purpose of the tiki huts and chickee huts and in order to ensure that the
chickee huts could receive building permits for electric and plumbing improvements
in the future, the applicant agreed to re -label all of the structures as tiki huts on a
revised site plan:
RCS'Oluticm P33-09 Pate -i of 7
t lie 2046
S. At the July 22. -1009 public hearing, the Planning Commission considered the
concerns of the adjacent property owner and. following a staff recommendation,
applied the following condition to the approval:
a. The required class " C" bufteryard to the north shall be composed of vegetation
that attenuates sound and shields adverse visual impacts to the greatest extent
possible. The vegetation to be utilized shall be approved by the Director of
Planning & Environmental Resources prior to its installation;
G. At the July 22. 2009 public 1learing, the Planning Commission considered the
potential that transient RVs could develop into permanent structures over time and,
following a staff recommendation, applied the following condition to the approval:
a. Campground/RV spaces shall only be occupied by occupants utilizing temporary,
primitive camping equipment or occupants utilizing RVs that arc road -ready and
lawfully licensed and registered as such. All occupants of the campground RVs
spaces shall be subject to hurricane evacuation orders:
7. At the July 22, 2009 public hearing, the Planning Commission, following a staff
recommendation, applied the following conditions to be met prior to the issuance of
any resolution approving the amendment to a major conditional use permit:
a. Prior to the issuance of a resolution by the Planning Commission, new full-size
plans shall be submitted showing revision dates.
b. Prior to the issuance of a resolution by the Planning Commission, the landscaping
plan shall be revised to clearly reflect the required landscaping. Specifically, the
applicant shall modify the plan to show and label a class "C" landscaping
standard since the parking area is to contain six (6) or more spaces.
c. Prior to the issuance of a resolution by the Planning Commission, the applicant
shall submit a traffic study or letter, prepared and signed by a licensed traffic
engineer, stating the projected trip generation. Following its submittal, the
county's traffic consultant must approve its findings to determine whether or not
the level of service along US 1 could support the additional development; and
WHEREAS, to satisfy the condition "prior to the issuance of a resolution by the
Planning Commission, new full-size plans shall be submitted showing revision dates the
applicant submitted a revised site plan; and
WHEREAS, to satisfy the condition "prior to the issuance of a resolution by the
Planning Commission. the landscaping plan shall be revised to clearly reflect the required
landscaping. Specifically, the applicant shall modify the plan to show and label a class "C"
landscaping standard since the parking area is to contain six (6) or more spaces', the applicant
submitted a revised landscape plan; and
K SOIL 011 P>3-()9 PaLc 5 of 7
WHEREAS, to satisfy the condition "prior to the issuance of' a resolution by the
Planning Commission, the applicant shall submit a traffic study or letter, prepared and signed by
a licensed traffic engine-cr, stating the prrected trip generation. Followirw its submittal, the
cotmty*s traffic consultant must approve its findings to determine whether or not the level of
service along IJS 1 could support the additional development', the applicant provided a Level I
Traffic & Engineering Report. The county's traffic consultant, Rai Shanrnugam of URS
Corporation Southern, concurred with the findings of the report and determined that the traffic
generated from the proposed development can be accommodated within the existing roadways:
and
NON'' THEREFORE, BE IT RESOLVED BY THE PLANNING CONIMISSION
OF IN90NROE COUNTY, FLORIDA, that the preceding Findings of Fact and Conclusions of
Law support its decision to APPROVE the request for an amendment to a major conditional use
permit, subject to the following conditions:
1. Prior to the issuance of a building permit, the applicant shall receive all required
permits and approvals from the United States Army Corps of Engineers, Florida
Department of Environmental Protection, South Florida Water Management District,
Florida Department of Health and the Florida Department of Transportation.
2. Prior to the issuance of a building pennit, the proposed development and structures
shall be found in compliance by the Monroe County Building Department, the
Monroe County Floodplain Administrator and the Monroe County Office of the Fire
Marshal.
3. The bathhouse, tiki huts and chickee huts shall only serve as accessory floor area to
the principal campground use and may only be for exclusive use of the occupants of
the campground/RV spaces. Its floor area may not be transferred off -site or
converted into non-residential floor area without additional pen -nit approvals.
4. The operator of the campground shall be a holder of a valid Monroe County
occupational license. This license must be obtained prior to the campground's
opening to any visitors.
5. A pump -out system for the RVs' sewage holding tanks shall be installed and
maintained.
6. The required class " C" bufferyard to the north shall be composed of vegetation that
attenuates sound and shields adverse visual impacts to the greatest extent possible.
The vegetation to be utilized shall be approved by the Director of Planning
Environmental Resources prior- to its installation.
7. Canipground.`RV spaces shall only be occupied by occupants utilizing temporary,
primitive camping equipment or occupants utilizing: RVs that are road -ready and
Resolution P33 Oct Pace f of 7'
E:ilc 1Q046
1,m fully licensed and registered as such. All occupants of the campgrouncl R%'s
spaces shall be subject to hurricane evacuation orders.
PASSED AND ADOPTED Bl' THE: PLANNING CO;iM.NIfSSION of',ionroe Count.
Floricla. at a regular meeting held on the 22"`f day of'July. 2009.
Chair Wall YES
Vice -Chair Cameron YES
Commissioner Hale YES
Commissioner Lustberg NO
Commissioner, Werling NO
PLANNING COMMIS, ON OF MONROE C J STY, FLORIDA
BY 1 P
Randolph D. W• 1, Chair
Signed this a.,5-vq` day of yc n fee �ek , 2009.
APPROVED AS TO FORM
A LEGAL SUFFICI CY
BY-
M1�ner'� OI%t!
ResolUtiO❑ P33-09 Page ' 017
Pile 20040
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