Item D2
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
MEETING DATE: Julv 27. 2000
DIVISION: Growth Manaaement
BULK ITEM: YES:
NOL..
DEPARTMENT:
Buildina
AGENDA ITEM: A public hearing to consider a request by Janis J. Beattie to overtum the decision of
Timothy J. McGarry, Director of Growth Management, to deny approval for the County to issue a pennit to structurall)
alter a building containing Illegal construction below the base flood elevation.
ITEM BACKGROUND: The applicant's attomey Lloyd Good in a letter dated 1/11/2000 requested approval for the
County to allow his client to apply for a pennit and proceed with construction of 2 new bedrooms and 1 new bath
room on the elevated portion of the home. The home contains illegal below base flood elevation construction and
the applicant has engaged the County in litigation regarding the statute of limitations exemption for floodplain regula-
tions. Mr. McGarry denied this request based on policy mandated by sections 9.5-316 and 9.5-49 of the MCC.
PREVIOUS RELEVANT BOCC ACTION; None
STAFF RECOMMENDATION; DENIAL
TOTAL COST;
o
BUDGETED Yes_ No .lL
COST TO COUNTY 0
REVENUE PRODUCING: Yes:
No:-L
AMOUNTY PER MONTH: 0
PER YEAR:
o
APPROVED BY: COUNTY ATTORNEY
DEPARTMENT DIRECTOR APPROVAL:
DIVISION DIRECTOR APPROVAL:
RISK MANAGEMENT NA
DOCUMENTATION;
DISPOSITION:
-'ncluded -L
To follow
Not Required: _
AGENDA ITEM #_
;;l.Dd
INDEX
1. STAFF REPORT
2. APPLICANT~S APPEAL
3. EXHIBIT A
4. APPLICANT~S RECEIPT FOR APPEAL
5. APPLICANT~S PHOTOS
MEMORANDUM
TO: Board of County Commissioners
THROUGH: Timothy 1. McGarry, Director of Growth Managment
FROM: Dianne Bair, Floodplain Administrator
DATE: April 6, 2000
SUBJECT: Administrative Appeal by: Janis 1. Beattie
MEETING DATE: July 11,2000
REOUEST:
A. Description of Project:
The applicant's attorney Lloyd Good in a letter dated January 11, 2000 requested
approval from Growth Management Director Tim McGarry for the County to allow
his client to apply for a permit and proceed with construction of two new bedrooms
and a bathroom on the upstairs elevated portion of her home in order to make the
home marketable at this time. The home contains illegal below base flood
elevation construction and the applicant has engaged the County in litigation
regarding the statute of limitations exemption for floodplain regulations (see
Exhibit A).
B. Location of Project:
The home is located on lot 34 Dolphin Street West, Sugarloaf Shores Section D
Extension, RE# 00166973003400, whose street address is 17168 Dolphin Street
West, Sugarloaf Shores, Florida 33044.
C. Project Applicant/Appellant:
Applicant/Owner:
Agent:
Janis J. Beattie
Lloyd A. Good, Jr.
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D. Precise Decision Being Appealed:
Growth Management Director, Tim McGarry denied the request to allow approval
for the County to issue a permit to construct two bedrooms and one bathroom on
the upstairs elevated portion of the structure containing illegal construction below
the base flood elevation, in a letter dated February 29, 2000.
E. Date of Decision:
February 29, 2000
F . Applicant/Appellant's Desired Solution:
Proceed with a building permit for the construction of additional two bedrooms and
full bath on the upstairs elevated floor. Ms. Beattie will agree that if the litigation
is successful on behalf of the County she will remove the illegal construction from
the below base flood elevation enclosure. Ms. Beattie is willing to give a personal
bond to assure performance of an agreement.
G. Applicant/Appellant's Basis of Appeal:
The appellant's agent states that the planning departments policy and denial of said
written request is and was unlawful, and arbitrary and capricious and should be
reversed by the Monroe County Board of County Commissioners for the following
reasons:
( a) Said policy of requiring removal of any downstairs enclosures prior to
issuance of any building permit for said property is not authorized by
any provision of the Monroe County Code or the Monroe County
Commissioners and said administrative rule exceeds the authority of the
planning director granted to him by the Land Development Regulations
and the Floodplain Management Standards of the Land Use Plan. Said
policy is also contrary to Section 9.5-49 of the Land Use Plan which
permits the director of planning in his discretion to suspend
consideration of any development approval only during the pendency of
a code enforcement proceeding involving said property in that there is
no pending code enforcement proceeding involving the appellant's
home and never has been any.
(b) Appellant's assurance that she will remove any "unlawful" enclosures
by posting bond if she loses her Declaratory Judgment Action assures
compliance with Monroe County Floodplain Standards and adequately
protects the interests of Monroe County and the refusal to permit
Appellant to proceed with development at this time greatly prejudices
her and is arbitrary and capricious.
(c) In Appellants case there is no evidence that any portion of the
improvements below the floodplain level established by FEMA located
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in her home at this time were not permitted by Monroe County because
the entire permit file including all permitted plans and inspection
reports have been lost by Monroe County. Appellant does not
therefore have in her home any ''unlawful construction of a structure",
and there is no reason to deny her the right to construct further
improvements to her home at this time.
BASIS OF STAFF DECISION AND DISCUSSION OF APPEAL:
1.
The administrative decision denying the applicant's request for construction approval is
directly supported by section 9. 5-316{ A) of the Floodplain Management Ordinance of the
Monroe County Code which states as follows:
No structure or manufactured home hereafter shall be located extended
converted or structurally altered without full compliance with the terms of
this division in addition to other applicable regulations of this chapter.
Pursuant to 9.5-316, no home shall be structurally altered when in violation of any
provision contained within the land development regulations set forth in Chapter 9.5,
including the Floodplain Management Standards. Ms. Beattie;s contention that there is no
support for Mr. McGarry's decision is without merit, as the Code specifically prohibits
alteration of any structure not in compliance with the land development regulations.
Ms. Beattie's argument that such action is contrary to section 9.5-49 is also without merit.
Section 9.5-49 allows the director of planning to suspend the development review process
as to any property involved in a pending code enforcement proceeding. This does not
conflict with 9.5-316, which prohibits construction or alteration of a structure deemed to
be not in compliance. Section 9.5-49 expands that provision and allows discretionary
suspension of the development review process (as opposed to actual construction) if there
is a pending code enforcement proceeding.
2.
THERE IS SUBSTANTIAL EVIDENCE THAT THE DOWNSTAIRS BEDROOMS
WERE NEVER PERMITTED BY MONROE COUNTY AND THEREFORE
CONSTITUE ILLEGAL CONSTRUCTION IN VIOLATION OF THE COUNTY'S
FLOODPLAIN REGULATIONS.
The subject home was initially constructed by Simon Klein and was issued a certificate of
occupancy in September 1982. The structure's assessed value in 1984 was $133,635.00.
The 1984 value on the tax roll would have been based upon a 1983 inspection. After the
1984 inspection the 1985 tax rolls showed the building value had increased by $10,609.00
to a value of $144,244.00. At the same time the land value did not increase but remained
the same, indicating some improvement occurred to the building only. Based upon the
increase in building value it appears the below base flood elevation improvements
occurred sometime between the issuance of a Certificate of Occupancy in 1982 and the
1984 Tax Assessors inspection. There were no permits issued for any improvments.
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In addition according to Karen Cabanas (attorney assigned to the litigation), realtor
Richard Kerwick testified at deposition that the bedrooms existed when he visited the
property in 1986 relative to Mr. Kleins sale of the home to the Amparos, who subsequently
sold to Ms. Beattie. However, contrary to the tax appraisers 1985 records and Mr.
Kerwick's testimony, Mr. Klein testified that the bedrooms did not exist in 1986 when he
sold the property to the Amparos. Apparently if the bedrooms had been permitted by the
County on the original building plans, and not illegally constructed, Mr. Klein would have
testified that the bedrooms existed at the time he sold to the Amparos and the 1985 tax
rolls would not have identified an improvement to the building two years after the
certrificate of occupancy was issued. Additionally, according to exhibit A, A. Statement
of Case and Facts. n. me2al Construction, of the original construction plans Mr. Klein
produced at deposition, none were able to verifY that the bedrooms were part of the
original construction plans as approved.
STAFF RECOMMENDATION:
DENY THE APPEAL. Based on the substantial evidence that the downstairs bedrooms
constitute an illegal enclosure below base flood elevation, section 9.5-316 prohibits any
structural alteration until the building is brought into compliance with the floodplain
management ordinance by removing the illegal construction. The pending litigation is
irrelevant to this administrative determination. If Ms. Beattie is ultimately successful in
that litigation, then the Court will mandate a proper remedy. Until such time as a court of
competent jurisdiction invalidates any applicable provision of the Monroe County Code,
such provisions are deemed to be valid and enforceable. The posting of a bond or the
existence of pending litigation does not provide authorization to depart from the mandated
provisions of the Code. Unless the provisions cited by Ms. Beattie herein are invalidated
or amended, the Code mandates that they be followed. Accordingly, the downstairs
bedrooms of Ms. Beattie's home constitute violations of the Floodplain Management
Ordinance and under 9.5-316 no construction may commence until the property is brought
into compliance.
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2. APPLICANT~S APPEAL
LLOYD A. GOOD. JR.
ATTORNEY AT LAW
SUGARLOAF SHORES. FLORIDA 33044
TELE"HQNES, (30S> 745-3211
745-3914
March 23, 2000
Monroe County Growth
Management Division
2798 Overseas Highway
Suite 410
Marathon, Florida 33050
Attention: Timothy J. McGarry
Re: Appeal to Board of County Commissioners
Dear Mr. McGarry:
Please find enclosed Application for Appeal to The Monroe County
Board of County Commissioners pursuant to Article XII, Section 9.5-
521 (a) of The Monroe Code of your decision dated February 29, 2000
denying my request to process a building permit for the Beattie home
prior to removing any alleged "unlawful construction of a structure"
below the flood plain level established by FEMA.
Your current policy is to not permit the processing of a permit for any
addition to a home if there is evidence that said home was built after 1975
and may contain "construction below the flood plain level established by
FEMA which was not permitted by Monroe County" unless and until said
construction is first removed.
I take the legal position that this is clearly an administrative action
regarding the flood plain management provision of The Land Use Plan
Development Regulations and therefore must be heard by The Board of
County Commissioners and cannot be heard by The Planning
Commissioners under the code. I sincerely believe the Planning
Commission has no jurisdiction to hear such an appeal.
rn
mmmowm
MAR 2 8 2000
rn
GROWTH MANAGEMENT DlVIS!ON
Mr. Timothy J. McGarry
Page 2
March 23, 2000
You will also find enclosed my attorney check drawn payable to "The
Monroe County Growth Management Division" in the amount of $525.00
representing the appeal fee of $250.00, advertising cost of $175.00 and
cost to notice adjacent owners of $100.00, $25.00 for each such owner.
Please schedule this Appeal on the next available Commissioners
hearing in Key West or Marathon. I am also filing this Appeal with the
County Administrator, James Roberts, as required by section (c) of the
above section.
I am also enclosing 16 photographs of this home to be included in the
administrative record with the Appeal.
Very truly yours,
~lL.~
Lloyd A. Good, Jr.
LAGjr/dz
Enclosures
cc. James Roberts
Monroe County Administrator
5100 College Road
Key West, Fl. 33040
Karen Cabanas
317 Whitehead Street
Key West, Fl. 33040
MONROE COUNTY GROWTH MANAGEMENT DIVISION
APPLICA TION FOR ADMINISTRATIVE APPEAL
TO MONROE COUNTY BOARD OF
COUNTY COMMISSIONERS
Janis J. Beattie files this Administrative Appeal from the
Administrative Decision of Timothy J. McGarry, Director of Growth
Management, dated February 29, 2000 attached hereto denying her the
right to process a permit application for construction of an addition to her
home prior to the removal of any alleged "unlawful enclosure" below the
flood plain level for said home established by FEMA and alleges the
following.
1. The decision being appealed is attached hereto as Exhibit "A" and
is dated February 29, 2000.
2. The Appellant is Janis J. Beattie, owner of lot 34 Dolphin Street
West, Sugarloaf Shores Section D Extension RE No.
00166973003400, whose street address is 17168 Dolphin Street
West, Sugarloaf Shores Florida 33044 and phone number is 305-
745-1295.
3. This appeal is being filed by her duly authorized agent and
attorney, Lloyd A. Good, Jr., whose address is c/o Sugarloaf
Lodge, P.O. Box 148, Lower Sugarloaf Key, Florida 33044, phone
number 305-745-3211, FAX 305-745-3389, Fla. Bar 186741, and
who has attached hereto a notarized letter authorizing him to act on
her behalf as Exhibit "B".
4. The property in question is "Lot 34 Sugarloaf Shores, Section D
Extension, according to the plat thereof recorded in plat Book 6,
page 10 of the Public Records of Monroe County Florida" located
on Lower Sugarloaf Key off mile marker 17 and is currently zoned
IS.
1
5. There is erected on said lot Plaintiff's single family two story
home which she agreed to purchase on March 12, 1990 and
purchased in September 1990. Said home was permitted by Monroe
County and the Certificate of Occupancy was issued to the original
builder Simon Klien on September 3, 1982.
6. At the time said home was permitted and at the time the Certificate
of Occupancy was issued said home contained the following
improvements below the flood elevation level established by
FEMA. An entrance foyer, a bathroom with shower but no tub, a
large recreation room with two window air conditioners, three
sliding glass doors with two doors each and a two car garage all of
which had finished floors, walls, ceilings, and paneled partitions.
7. Prior to September 1, 1983 there was constructed in said home
below the flood plain level established by FEMA two bedrooms,
and ever since January 1, 1984 the tax assessors office has been
assessing and taxing the entire downstairs as floor living area
(FLA) and showing said home in its records as having two
bedrooms below said flood plain level.
8. Appellant as Plaintiff has filed a Declaratory Judgment Action
against Monroe County, The Monroe County Building Department
and The Monroe County Code Enforcement Department as
Defendants Case No. CAK 99-1122 assigned to Judge Richard G.
Payne seeking to forever bar Defendants from attempting to enforce
Monroe County's Flood Plain Ordinances against this property and
declaring all downstairs enclosures in existences on said property
at this time lawful. A motion for summary judgment is scheduled
to be heard before Judge Payne on May 3, 2000.
2
9. The issue of whether the Florida Statute of Limitations contained
in Florida Statutes 95.11 (3)(c)(f)(n)(p) bars enforcement against
"unlawful enclosures" is scheduled to be argued before Judge
Richard G. Payne on May 22, 2000 in Lattore et al Appellant v
Monroe County et al case No. 96-1109 CA-25 and Appellant has
filed a brief as Amicus in such matter.
10. On January 11,2000 Appellant's attorney wrote Timothy J.
McGarry requesting that the Monroe County Planning and Building
Department waive its current policy of requiring the removal of the
two bedrooms in Appellant's home before processing or issuing a
building permit for a proposed addition to Appellant's home. A
true and correct copy of said request is attached hereto as Exhibit
"C".
11. Appellant takes the legal position that the planning departments
policy and the denial of said written request is and was unlawful,
and arbitrary and capricious and should be reversed by the Monroe
County Board of County Commissioners for the following reasons.
(a) Said policy of requiring removal of any downstairs
enclosures prior to issuance of any building permit for said
property is not authorized by any provision of the Monroe
County Code of Ordinances and is therefore an illegal
administrative fiat not authorized by the Monroe County
Code or the Monroe County Board of County Commissioners
and said administrative rule exceeds the authority of the
planning director granted to him by The Land Development
Regulations and the Flood Plain Standards of the Land Use
Plan. Said policy is also contrary to Section 9.5-49 of the
Land Use Plan which permits the director of planning to
3
in his discretion suspend consideration of any development
approval only during the pendency of a code enforcement
proceeding involving said property in that there is no
pending code enforcement proceeding involving Appellant's
home and never has been any.
(b) Appellant's assurance that she will remove any "unlawful"
enclosures" by posting bond if she loses her Declaratory
Judgment Action assures compliance with Monroe County
Flood Plain Standards and adequately protects the interests
of Monroe County and the refusal to permit Appellant to
proceed with development at this time greatly prejudices her
and is arbitrary and capricious.
(c) In Appellants case there is no evidence that any portion of
the improvements below the flood plain level established by
FEMA located in her home at this time were not permitted
by Monroe County because the entire permit file including
all permitted plans and inspection reports have been lost by
Monroe County. Appellant does not therefore have in her
home any "unlawful construction of a structure", and there
is no reason to deny her the right to construct further
improvements to her home at this time.
12. This Administrative appeal involves the determination of flood
plain management provisions and is properly made to the Monroe
County Board of County Commissioners under Article XII of The
Monroe County Code Section 95-521 (a).
13. A list of adjacent property owners is attached hereto as Exhibit
"D" and there are no pending code violations on Appellant's
property.
4
I hereby certify that I am familiar with the information contained in
this application, and that to the best of my knowledge such information is
true, complete and accurate.
~..~
l-~ MY COMMISSION' CC 879297
EXPIRES: November 17, 2Oll3
Banded Thru NolIIy NlIIc UndIIwrII8rI
7rJ-o ti-~V
Lloyd A. Good, Jr.
Counsel for Appellant
Sworn before me this d. a.~ day of March 2000 A.D.
Not~ ~g~f
My Commission Expires /t;f~~
5
County of Monroe
Growth Management Division
2798 Overseas Highway
Suite 410
Marathon, Florida 33050
Voice: (305) 289 2500
FAX: (305) 289 2536
Board of Countv Commissioners
Mayor Shirley Freeman, Dist. 3
Mayor Pro Tern, George Neugent, Dist. 2
Commissioner Wilhelmina Harvey, Dist. 1
Commissioner Mary Kay Reich, Dist. 5
Commissioner Nora Williams, Dist. 4
February 29, 2000
Mr. Lloyd A. Good, Jr.
Attorney At Law
Sugarloaf Shores, Florida 33044
RE: Lot 34 Dolphin West; RE 00166973003400
Dear Mr. Good:
I apologize for the delay in responding to your letter, but I have been extremely busy with other
matters and wanted to be able to give your letter fair consideration. As you state your client is
anxious to proceed with the construction of two additional bedrooms and a bathroom upstairs "in
order to make this large home marketable at this time. n
You propose in your letter that the County allow your client to proceed with the construction with
the condition that if your client loses her court case that the illegal downstairs improvements will.
be removed. This condition would be backed up by a personal bond.
Although I can certainly sympathize with your client's predicament, since she was not a party to
the illegal construction of the downstairs enclosures, the Growth Management Division can not
agree to your proposal. It would be contrary to established policy and will undermine County
efforts to bring other non-compliant properties into compliance with County Code, especially now
that the County is about to embark on its flood insurance inspection program.
Should you have any further questions, please don't hesitate to call me.
cc: Ms. Dianne Bair, Flood Plain Administrator
Exhibit A
C :\DOCUMENnPERMlngoode.doc
AUTHORIZA TION OF AGENCY
I hereby appoint Lloyd A. Good, Jr. as my agent and attorney to
prosecute an Administrative Appeal from the Decision of Timothy J.
McGarry Director of Growth Management to the Monroe County Board of
County Commissioners. Said attorney's address and phone number are c/o
Sugarloaf Lodge, P.O. Box 148, Lower Sugarloaf Key, Florida 33044,
305-745-3211.
~ . flOL6E1ES A.lICKERT
. ~ MY COMMISSION # CC 879297
. EXPIRES: November 17, 2003
Banded Thru NolaIy PubIlc UnderwriI8ra
~ .
~'~~
~/~~//, ;ULe./
Ja sJ.Beatf ,
Sworn before me this ').}..1I\~ day of March 2000.
/4~1
Notary Public
My Commission Expires
4t11/Lnrk /~ &lOrY
Exhibit B
LLOYD A. GOOD. JR.
ATTO~"'EY -.T LAW
SUGARLOAF SHORES. FLORIDA 33044
TELEPHONES: (30Sl 74S~3211
745-3914
January 11, 2000
Monroe County Growth
Management Department
Marathon Government Building
2798 Overseas Highway
Suite 400
Marathon, Florida 33050
Attention: Tim McGarry
.
Re: Lot 34 Dolphin West
Re: 00166973003400
Dear Mr. McGarry:
Please be advised that I represent Janis Beattie, Plaintiff, in a
Declaratory Jud.gment Action brought against Monroe County, The
Monroe County Building Department, and The Monroe County Code
Enforcement Department as Defendant, Case No. CAK 1122 assigned to
Judge Payne. This suit seeks to enjoin and forever bar Defendants from
seeking to have removed from Plaintiff's house downstairs enclosures,
which mayor may not have been illegally constructed in said home by
Plaintiff's predecessor in title.
The Plaintiff's house is a two story home on the open water with one
bedroom a one and one half baths on the second floor and two bedrooms,
entrance foyer, a large family or recreation room, a bathroom with
shower, but no tub on the first floor below the flood elevation level
established by FEMA.
The suit is presently ready for a Motion For Summary Judgment
on certain legal issues but will not be finally resolved for at least eight
months.
The Plaintiff is anxious to proceed with the construction of an
additional two bedrooms and full bath on the second floor in order to
make this large home marketable at this time.
Exhibit C-l
Mr. Tim McGarry
Page 2
January 11,2000
Your present policy requires that all downstairs enclosures which were
built after 1975 be removed if not permitted prior to the issuance of a
building permit for any work. This house's C.O. is dated September 3,
1982 and has FLA on the first floor since January 1, 1984 according to the
tax assessor's records.
The permit file in this case has been lost and the Plaintiff cannot now
prove that the two bedroom downstairs was permitted. Plaintiff does take
the position that the foyer, bathroom and family room or recreation room
were permitted by Monroe County and are legal under your rules.
I hereby request that Monroe County waive its policy in this case of
requiring removal of the two bedrooms below the flood level established
by FEMA before issuing a building permit to Plaintiff on the following
condition.
. . Plaintiff will agree if the above law suit is unsuccessful for her to
remove the two bedrooms downstairs as soon as the case is finally .
resolved if you will grant her the right to now process a building permit to
build on to said existing dwelling as above set forth.
Plaintiff is willing to give a personal bond to assure performance of
that agreement.
I sincerely believe that this will not set a bad precedent since you will
have absolute assurance of removal if the existing downstairs bedrooms
are found tobe unlawfully constructed. Please advise as to your position..
Very truly your,
~)~
Lloyd A. Good, Jr.
LAGjr/dz .
cc: Diane Bair
Karen Cabanas
Exhibit C-2
Lot 31 Dedek, Richard and Diane
P.O. Box 4983
Key West, Florida 33041
Lot 32 Denham, James Jr. and Mary
P.O. Box 127
Sugarloaf Key, Florida 33044
Lot 33 Hentschel, Eckart and Natalia
P.O. Box 44008
Sugarloaf Key, Florida 33044
Lot 36 Zabar, Stanley and Judith
451 Westend # Avenue 115
New York, New York 10024-5329
Exhibit D
04/05.:00
12:59 ~~.30529~~331
~002
EXHIBIT
A
.
...
';
ON ADMINISTRATIVE APPEAL BEFORE
THE MONROE COUNTY BOARD OF COUNTY COMMISSIONERS
Janis 1. Beattie,
Appellant,
v.
Monroe County Gro"Wth Management Division,
Appellee.
I
MONROE COIJNTY GROWTH MANAGEMENT DIVISION'S
RESPOKSE TO ADMINISTRATIVE APPEAL
Appellee, MONROE COUNTY GRO"WTH l\.1A.i'lAGElVIENT DMSION, by and
through undersigned counseL hereby files this response to the administrative appeal filed by
Appellant and states as follows:
A. STATEMENT OF CASE k'ID FACTS
1. Pending Litigation
On September 30, 1999 MONROE COtJNTY received Appellant Janis J. Beattie's
("Beattie") filed a complaint in circuit court against Monroe County seeking a declaratory
judgment invalidating the County's exemption of floodplain violations :from the statute of
LimitlCions. The basis of Beattie's lawsuit is that, despite the County's adoption of a statute of
limitations exemption for floodplain regulations, Monroe County is prohibited from enforcing its
floodplain regulations under the generai four-year state statute of limitations. In other words,
that the County's provision is preempted by the state catch-all statute of limitations provision. In
addition, Beattie has been granted leave to file an Amicus brief in the pending circuit court case
of LaTorre v. Monroe County, a code enforcement appeal challenging the same provision.
Beattie's Motion for Summary Judgment was stayed pending the outcome of the Latorre Final
Hearing, which is currently scheduled for May 22, 2000. Beattie was previously granted motion
04/05/00 13:00 FAX 3052964331
YorganHendr1ck3052964331
14I 003
to transfer the case before Judge Payne on the basis that he is the judge assigned to the LaTorre
case. As such, the LaTorre litigation should be properly determined first and the Beattie
litigation subject to the court's ruling in that matter.
II. megal Construction
Pursuant to the pending litigation, several depositions were taken to discern the historical
facts surrounding construction of the existing below-flood elevation bedrooms. The original
owner and builder of the house was Simon Klein. The house was constructed in 1981-1982 and
a Certificate of Occupancy was issued by Monroe County in September 1982. Mr. Klein
testified that he did not construct the illegal bedrooms in the downstairs portion of the house,
however. of the original construction plans Mr. Klein produced at deposition, none were able to
verify that the bedrooms were part of the original construction plans as approved. Richard
Kerwick, a realtoT. testified that the bedrooms were present in 1986 when he visited the home
prior to the Amparo's purchase from Klein. The Tax Assessor's records verify that the
downstairs bedrooms have illegally existed since sometime in 1984. There is a $10.609 increase
in the valuation of the home for 1985 and a listed improvement for 1985 of two bedrooms
totaling 300 square feet. The testimony of:\1r. Kerwick, the Tax Assessor's records, and the fact
that Mr. Klein sold the house to the Amparos in February, 1987 constitute substantial evidence,
despite 'Mr. Klein's testimony to the contrary. that he illegally constructed the downstairs
bedrooms sometime between issuance of the C.O. in September, 1982 and their appearance as
improvements on the propeny record card in 1985
TIT. Decision on Aopeal
Despite the pending litigation, on January 11, 2000, Beattie's attorney, Lloyd Good,
wrote a letter to Tim McGarry, DireCtor of Growth Management, requesting approval to post
bond and construct two new bedrooms on the upstairs portion of the subject property. Mr.
McGarry denied this request by letter dated February 29, 2000, on the grounds that the subject
_O4/05/~3: 00 FAX 3~529643_3L-._ MorganHendrlck3052964331
141 004
property is not in compliance with County Code due to the existence of the illegally constructed
downstairs bedrooms. Beattie has filed the instant appeal on the grounds that the administrative
decision of Tim McGarry is not authorized by any provision of the County Code and therefore
exceeds his authority, is contrary to ~9.5-49, and that there is no evidence that the downstairs
bedrooms were not pennitted by :Monroe County because the permitting file has been lost.
B. ARGl.JMENT
1. THE ADMINISTRATIVE DECISION DENYING BEATTIE'S
REQl;"EST FOR CONSTRUCTION APPROVAL IS DlRECTL Y
SUPPORTED BY 99.5-316(a), MONROE COUNTY CODE.
Beattie appeals the denial of her application to construct two additional bedrooms in the
upstairs portion of the house on the grounds that there is no provision in the Code authorizing
such action. This assertion is wholly incorrect. Section 9.5-316 which states as follows:
No stmcture of manufactured home hereafter shall be located, extended,
converted or structurally altered Voithout full compliance with the terms of this
division in addition to other applicable regulations oftms chapter.
~9.5-361, Monroe County Code. A copy is attached as Exhibit A.
Pursuant to ~9.5-316, no home shall be structurally altered when in violation of any
provision contained within the land development regulations set forth in Chapter 9.5, including
the Floodplain Management Standards. Beattie's contention that there is no support for Mr.
McGarry's decision is without merit, as the Code specifically prohibits alteration of any strUcture
not in compliance with the land development regulations.
Beattie's argument that such action is contrary to ~9.5-49 is also without merit. Section
9.5-49 allows the director of planning to suspend the development review process as to any
property involved in a pending code enforcement proceeding. This does not conflict with ~9.5-
316 which prohibits construction or alteration of a structure deemed to be not in compliance.
Section 9.5-49 expands that provision and allows discretionary suspension of the development
04l05/00
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MorganHendrlck3052964331
I41005
review process (as opposed to actual constmction) if there is a pending code enforcement
proceeding.
II. THERE IS SUBSTANTIAL EVIDENCE THAT THE DOWNST A.m.S
BEDROOMS WERE NEVER PER..1\1lTTED BY MONROE COUNTY
AND THEREFORE CONSTITUTE ILLEGAL CONSTRUCTION IN
VIOLATION OF THE COUNTY'S FLOODPLAIN REGULATIONS.
The subject home was initially constructed and owned by Simon Klein and was issued a
C.O. in September 1982. On the property tax card in 1984, the property had been appraised at
$133,635. The 1984 appraised value would have been appraised from a 1983 inspection of the
permit file. The property appears to have been first physically inspected for tax assessment in
1984. After the 1984 inspection, the appraised value for 1985 increased to $10,609, to a value of
$144,244. The property record card shows a listed improvement for 1985 of two bedrooms
constituting 300 square feet. . Based on the 1985 valu.e increase and listing of a two bedroom
improvement, it is clear that the bedrooms were constructed sometime between the September.
1982 issuance of the C.O. and the 1984 Tax Appraiser's inspection. A copy of the property
record card is attached as Exhibit B.
In addition, Realtor Richard Kerwick testified at deposition that the bedrooms existed
when he visited the property in 1986 relative to Mr. Klein's sale of the home to the Amparos,
whO subsequently sold to Beattie. A transcript excerpt is attached as Exhibit C. Contrary to the
Tax. Appraiser's records and testimony of Mr. Kerwick, Mr. Klein testified that the bedrooms did
not exist in 1986 when he sold to the Amparos. A transcript excerpt is attached as Exhibit C.
Based on this conflicting evidence, the logical conclusion is that Mr. Klein illegally constructed
the downstairs bedrooms and that they were never permitted by Monroe County. Had they been
permitted as part of the original plans, Mr. Klein certainly would have testified that the bedrooms
existed at the time he sold to the Amparos and they would not appear as a 1984 improvement on
the property record card.
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c. CONCLUSION
Based on the substantial evidence that the dov.rnstairs bedrooms constitute an illegal
enclosure below floodplain elevation, ~9.5-361 prohibits any structural alteration until the
property is brought into compliance with the floodplain regulations by removing the downstairs
bedrooms. The pending litigation is irrelevant to this administrative determination. If Beattie is
ultimately successful in that litigation, then the Court will mandate a proper remedy. Until such
time as a court of competent jurisdiction invalidates any applicable provision of the Monroe
County Code, such provisions are deemed to be valid and enforceable. The posting of a bond or
the existence of pending litigation does not provide authorization to depart from the mandated
provisions of the Code. Unless the provisions cited by Beattie herein are invalidated or
amended, the Code mandates that they be followed. Accordingly, the downstairs bedrooms of
Beattie's property constitute violations of the floodplain regulations and under ~9.5-316 no
construction may commence until the property is brought into compliance.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy has been delivered via U.S. Mail to
Lloyd A Good, Jr., c/o Sugarloaf Lodge, P.O B.ox 148, Lower Sugarloaf Key, Florida 33044,
this $ day of April. 2000.
~~
REN K. CABANAS
Florida Bar No. 136964
MORGAN & HENDRICK
Attorneys for Monroe County
3 1 7 Whitehead Street
Key West, Florida 33040
(305) 296-5676
(305) 296-4331 - fax:
4. APPLICANT~S RECEIPT
MONROE COUNTY ***LIVE***
Page
1 of
1
MISCELLANEOUS RECEIPT
RECEIPT #
RECEIPT DATE
14687
04/06/2000
PRINT DATE
PRINT TIME
OPERATOR
COPY #
04/06/2000
11:41:26
wingatem
1
RECEIVED BY
RECID. FROM
UDF 106.1
UDF 106.2
NOTES : FLOODPLAIN APPEAL
wingatem
LLOYD GOOD JR.
CASH DRAWER: 2
FEE ID
AMOUNT
THIS RCPT
BALANCE
ZONING
TOTALS:
METHOD OF PAYMENT
525.00
525.00
0.00
--------
--------
--------
--------
--------
--------
525.00
AMOUNT
525.00
0.00
NUMBER
CHECK
TOTAL RECEIPT :
525.00
196
------------
------------
525.00
LLOYD A. GOOD. JR.
ATTORNEY AT LAW
ESCROW ACCOUNT
P.O. BOX 148
SUGARlOAF SHORES. Fl 33044
196
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, $ rJ..r
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5. APPLICANT~S PHOTOS
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