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Item T2 Board of County Commissioners AGENDA ITEM SUMMARY Meeting Date: September ~O, 2000 Division: County Attorney AGENDA ITEM WORDING: Public Hearing on Resolution of Recommended Order of Beneficial Use on the application of Milius and Lori Skidmore. ITEM BACKGROUND: Hearing Officer J. Jefferson Overby issued a Recommended Order of Beneficial Use Determination on June 5, 2000. PREVIOUS RELEVANT BOCC ACTION: Adoption of Monroe County 2010 Comprehensive Plan and ROGO. STAFF RECOMMENDATION: Approval. TOTAL COST: BUDGETED: Yes No Cost to County: APPROVED BY: County Attorney x OMB/Purchasing Risk Management DIVISION DIRECTOR APPROVA~ DOCUMENTATION: Included ---1L- To Follow Not required AGENDA ITEM # I-T~ County Attorney RESOLUTION NO. - 20000 A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, EVIDENCING THE BOARD'S APPROVAL OF A RECOMMENDED BENEFICIAL USE DETERMINATION PROMULGATED BY THE SPECIAL MASTER, IN RE: THE APPUCATION OF MILlUS AND LORI SKIDMORE WHEREAS, on January 4, 1996, the Monroe County Year 2010 Comprehensive Plan became effective; and WHEREAS, the application of MILLUS and LORI SKIDMORE for determination of beneficial use was heard by Special Master J. Jefferson Overby on October 27, 1999; now therefore BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA, that: The Findings of Fact and Conclusions of Law and recommendations of the Special Master as set forth in the proposed determination are ADOPTED awarding the addition of six ROGO points to MILLUS and LORI SKIDMORE. This approval is subject to the conditions listed in the attached Proposed Beneficial Use Determination, dated June 5, 2000. PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Florida, at a regular meeting of the Board held on the day of September, 2000. Mayor Shirley Freeman Commissioner Wilhelmina Harvey Commissioner George Neugent Commissioner Mary Kay Reich Commissioner Nora Williams (SEAL) Attest: DANNY L. KOLHAGE, Clerk BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA By it "..' ~ fI Deputy Clerk jdbuskidmore " " "~I By "0# ~ . BENEFICIAL USE MONROE COUNTY SPECIAL MASTER ffi./ ~ n' 11, '-' JUL 2 1 2000 '---, INRE: Millus and Lori Skidmore - Beneficial Use Application 1 PROPOSED BENEFICIAL USE DETERMINATION The above-entitled matter was originally heard at a duly advertised and regularly scheduled, public hearing on October 27, 1999. The matter was originally filed for a determination of Vested Rights and Beneficial Use pursuant to Section 9.5-181 et. seq. of the Monroe County Codeo Pursuant to an agreement between the Applicants and the Monroe County staff, the "Vested Rights" case was converted into a Beneficial Use case which was duly advertised and regularly scheduledo Attorney John J. Wolfe, of Cunningham, Albritton, Miller, Heffernan and Wolf, represented the applicants, Millus and Lori Skidmore, and Assistant County Attorney, Garth Coller, Planning Director, K. Marlene Conaway, and Biologist, Dianna Stevenson, represented Monroe Count Yo ISSUE Whether the applicant will be denied all reasonable economic use of his property by application of Policy 204.2.6 of the Year 2010 Comprehensive Plan, and whether the applicant is entitled to relief under Policies contained in Objective 101.18 of the Year 2010 Comprehensive Plan (as administered and implemented in the "Agreement between the Department of Community Affairs and Monroe County" dated February 23, 1998), the approved portions of Ordinance 052-1997 and the Monroe County Code. FINDINGS OF FACT 1. Applicants purchased the Subject property, Lot 46, Revised Plat of Amended Plat of Sugar loaf Shores (RE#00166976-004600), a platted subdivision on SugarloafKey on June 7, 1997. At the time of the purchase there were no "imminent" or "pending" changes to the ROGOo It is a scarified and filled lot. There are no on-site environmental constraints to development. 2. A Building permit application was submitted on September 12th, 1997. The Monroe County Building Department approved the residential construction plans as being in compliance with the Monroe County Code on October 20, 1997. Other permits were applied for and issued: On Site Disposal System (OSDS) Construction Permit and payment of the then $225.00 fee (June 23, 1997) for which a permit was issued July 24, 1997 (Permit # K 95-97). Applicants also submitted plans and a permit application for a seawall and purchased a cesspool credit, all at an additional, significant expense. 3. On October 30th, 1997, as a result of the County's change of position regarding ROGO, the County caused to be advertised the proposed changes in the Keynoter, the first such notice that the applicants had that their position would possibly be changing regarding ROGO. At the time the applicants purchased the property, there did not exist the current negative points for development within the 'V' zones on the FEMA flood insurance rate map. (It should be noted that only eleven other applicants lost six points for proposed development within the 'V' zone.) 4. The applicants' position is that they had an investment backed expectation and further expended significant monies to apply for and obtain permits prior to the announcement that the pre-November 1997 ROGO point regulations would be changed. The announced changes were adopted by Monroe County in late May, of the following year. 2 5. Solely because of the changes to Section 9.5-127, the applicants, in order to obtain additional points to compete for ROGO, would now have to go to the further unanticipated expense of raising the structure and/or purchasing and transferring development rights from another parcel (which they would have to obtain at their expense). 6. At the time the applicants applied for and entered the ROGO process, they were in compliance and complete with all applicable regulations and were most likely to be near the top of the list for ROGO except for the changes occasioned by the six negative points which were assigned to the 'V' flood zone. 7. The applicants have been in the system for over two years. Section 9.5-129 only provides for administrative relief for those applicants that have been denied an allocation award for four successive years. 8. Applicants would not be eligible for Vested Rights because they have been unable to show that they acquired rights prior to the adoption of the 2010 Comprehensive Plan simply because they purchased their lot in 1997 (after the adoption of the Plan on January 4, 1996), therefore the applicants are unable to establish their eligibility for vested rights. 9. To deny beneficial use would essentially deprive the applicants, Millus and Lori Skidmore, of any economically reasonable beneficial use of the property and their reasonably incurred expenses, not including the cost of the land itself. 10. Without a Beneficial Use Determination in favor of the applicants, the completion of the structure on SugarloafKey would be impossible in the foreseeable future and denial of beneficial use would be a denial of any reasonable economic use at this time. 3 110 To subtract six points from the applicants' ROGO score after they had substantially completed the entire permitting process would be unjust and inequitable given the circumstances of this case. 12. Although the applicants, purchased the property in 1997, just after Monroe County's adoption of the Year 2010 Comprehensive Plan, the applicants, had every reason to expect they would be allowed to construct a single family home on the subject property. CONCLUSIONS OF LAW 10 The applicants' property is in a platted subdivision currently being surrounded with single family residences. There exists all necessary infrastructure including water, electricity and paved roads and the application of the 2010 Comprehensive Plan and the present ROGO has rendered the applicants' property currently un-buildable. 2. The original permits and the subsequent permits issued with regard to the construction of the proposed building on the property were issued prior to Monroe County's adoption of the present Residential Rate of Growth Ordinance (ROGO) It would be unfair and unreasonable, and an inequitable financial burden on the applicants to require them to bear the additional costs and delays of waiting four years for an administrative hearing or then requiring the applicants to enter the County's Commercial ROGO system with the 'negative six points'. 30 Pursuant to the Objective and Policy #101.18 adopted by Monroe County for the purpose of the determination of beneficial use and for the effect of such determination, I have considered the economic impact of the policy or regulations that prohibit the construction of the 4 a single family residence on the applicants' property and have considered the extent to which present Monroe County regulations have interfered with the applicants' reasonable investment backed expectations. 4. Although just compensation could be the "preferred option" under Policy 101018.5, there is no evidence that the Land Authority is interested in acquisition of the lot which is located in the developed residential area of Sugarloaf. 5. The addition of six (6) ROGO points should be approved as the minimum necessary to avoid a "taking" based on current land-use case law. WHEREFORE, I recommend to the Board of County Commissioners that a Final Beneficial Use Determination be adopted awardin& the addition of six ROGO points to the applicants, on the subject property, due to the applicants' having met the criteria for eligibility set forth at 9.5-172 Monroe County Code. This approval should be subject to the following conditions: A. The applicants' additional points shall be applied to their original building permit application using the original plans and footprint, and must include if not previously submitted, written approval by the Department of Health for a waste water disposal and treatment system. B. This Beneficial Use Determination shall not exceed five (5) years and is contingent upon the applicants releasing Monroe County from any and all liability , past, present and future, with regard to the subject property and improvements thereon. C. The applicants shall not be exempt from Monroe County's Co Growth Ordinance because the original permits were issued and the applicant property after the adoption by Monroe County of its Residential Rate of Growth Ordinance. 5 D. Should the addition of the six points not place the applicants in the position of being issued a building permit, they may still obtain other points in the same manner as any other applicant for the purpose of moving the applicants closer to the "top of the list". (i1"1- DONE AND ORDERED this ~ day of June, 2000. 6