Item P1
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date:
October 18,2000
Division:
County Attorney
AGENDA ITEM WORDING:
Public Hearing of an Ordinance declaring that an emergency exists and waiving notice by a 4/5's
vote; designating Higgs Beach Park, Bernstein_ Park, Watson Field, Marathon Community Park,
Marathon Marina, Key Largo Community Park and Harry Harris Park as Monroe County Regional
Parks and authorizing the use of general fund revenue for maintenance, operation and capital
improvement of such parks.
ITEM BACKGROUND:
PREVIOUS RELEVANT BOCC ACTION:
STAFF RECOMMENDATION:
Approval.
TOTAL COST:
BUDGETED: Yes_ No
Cost to County:
APPROVED BY:
County Attorney _~
OM8/Purchasing
Risk Management
DIVISION DIRECTOR~~
DOCUMENTATION: . Inc uded _~
To Follow
Not required
AGENDA ITEM #
I~P'
Mayor Shirley Freeman
ORDINANCE NO
- 2000
AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF
MONROE COUNTY, FLORIDA, DECLARING THAT AN EMERGENCY
EXISTS AND WAIVING NOTICE BY A FOUR-FIFTH'S. VOTE;
DESIGNATING HIGGS BEACH PARK, BERNSTEIN PARK, WATSON
FIELD, MARATHON COMMUNITY _PARK, MARATHON MARINA AND
BAY BOTTOM, KEY LARGO COMMUNITY PARK AND HARRY HARRIS
PARK AS MONROE COUNTY REGIONAL PARKS AND AUTHORIZING
THE USE OF GENERAL FUND REVENUE FOR THE MAINTENANCE,
UPKEEP, OPERATION AND THE CAPITAL IMPROVEMENT OF SUCH
PARKS; PROVIDING FOR SEVERABILITY; PROVIDING FOR THE
REPEAL OF ALL ORDINANCES INCONSISTENT HEREWITH;
PROVIDING FOR INCORPORATION INTO THE MONROE COUNTY
CODE OF ORDINANCES: AND PROVIDING AN EFFECTIVE DATE
WHEREAS, it is desired to create a system of County regional parks whose attractions are
such that the parks draw visitors form an area beyond the park's immediate neighborhood;
WHEREAS, the only equitable way to fund such regional parks is through the general fund
so that all residents who desire to use such parks pay for their upkeep rather than just the
.
residents in the immediate area;
WHEREAS, the City of Marathon's refusal to accept County parks located within the City
makes it imperative to immediately establish a regional park system and provide a funding
mechanism for that system in order that County recreational facilities can be kept open for the
citizens with a minimum of disruption; now, therefore,
BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY,
FLORIDA:
Section 1.
An emergency is hereby declared and notice waived by a four-fIfth's vote.
The following County parks are hereby designated Monroe County Regional Parks:
a) Higgs Beach Park (Key West);
b) Bernstein Park (Stock Island):
c) Watson Field (Big Pine Key);
d) Marathon Community Park (Marathon);
e) Marathon Marina and bay bottom (Marathon);
f) Key Largo Community Park (Key Largo); and
g) Harry Harris Park (Tavernier).
Section 2.
Revenue from the Monroe County general fund is hereby authorized to be
expended on the regional parks designated in Section 1 of this Ordinance for maintenance,
operating expenses, upkeep and capital improvements.
Section 3.
If any section, subsection, sentence, clause or provision of this ordinance is
held invalid, the remainder of this ordinance shall not be affected by such invalidify.
Section 4.
All ordinances or parts of ordinances in conflict with this ordinance are
hereby repealed to the extent of said conflict.
Section 5.
The provisions of this ordinance shall be included and incorporated in the
Code of Ordinances of the County of Monroe, Florida, as an addition or amendment thereto, and
shall be appropriately renumbered to conform to the uniform numbering system of the Code.
Section 6.
This ordinance shall take effect when a certified copy of this ordinance has
been accepted by the postal authorities of the United States for special delivery by registered mail
to the Secretary Of State of the State of Florida in accordance with the provisions of Florida
Statute 125.66(3).
PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Florida,
at a regular meeting of said Board held on the 18th day of October, 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
Deputy Clerk
By
Mayor/Chairperson
jdordparksMCRPE
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*
Funding Sources for Higgs Beach, Bernstein Park, Watson Field, Marathon
. Community Park, Harry Harris Park, Key Largo Community Park - FY 2001
Now
Maintenance Capital- Total
General Fund $46,853 $0 $46,853
Unincorporated Parks & Beaches $440,832 $0 $440,832
Tourist Development Council $284,438 $110,520 $394,958
One Cent Infrastructure Sales Tax $0 $56,480 $56,480
Marathon Community Park-Not Funded $143,069 $44,500 $187,569
Total $915,192 $211,500 $1,126,692
With Regional Parks
General Fund*
Unincorporated Parks & Beaches
Tourist Development Council
One Cent Infrastructure Sales Tax
Marathon Community Park-Not Funded
Total
Maintenance
$630,754
$0
$284,438
$0
$0
$915,192
Capital
$44,500
$0
$110,520
$56,480
$0
$211,500
Total
$675,254
$0
$394,958
$56,480
$0
$1,126,692
Ad Valorem Breakdown***
Now
Taxes per $100,000
Millage of Taxable Value
Cities
Maintenance
Capital
Total
0.0047
0.0000
0.0047
$0.47
$0.00
$0.47
Unicorporated Monroe County
Maintenance
Capital
Total
0.1024
0.0000
0.1024
$10.24
$0.00
$10.24
With Regional Parks
Taxes per $100,000
Millage of Taxable Value
Countywide
Maintenance
Capital
Total
0.0632
0.0045
0.0677
$6.32
$0.45
$6.77
.f
.;;a
-
* Would require using $628,401 of Reserves in the General Fund to fund Fiscal Year 2001 expenses
out of Countywide ad valorem taxes.
- Capital expenses will vary widely from year to year.
*** This shows the difference in ad valorem taxes if this had been implemented in the Fiscal Year
2001 adopted budget.
Office of Management & Budget
10/5/2000
BEFORE THE BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
INRE:
Millus and Lori Skidmore
Beneficial Use Application
/
MONROE COUNTY'S PROPOSED DENIAL/REJECTION OF
BENEFICIAL USE DETERMINATION
In accordance with ~9.5-174, MCC, the Monroe County Division of Growth Management
proposes the BOCC reject the Special Master's Proposed Beneficial Use Determination and as
grounds states:
1. Pursuant to ~9.5-174, Monroe County Code, the Board of County Commissioners
("BOCC") has final authority to grant or deny beneficial use determinations and may approve,
reject, or modify an order from the Special Master proposing to grant beneficial use.
2. In this case, the beneficial use application was submitted to determine whether the
applicant will be denied all reasonable economic use of his property by application of Policy
204.2.6 of the Year 20 10 Comprehensive Plan, and whether the applicant is entitled to relief
under Policies contained in Objective 101.18 ofthe 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.
3. A beneficial use determination is available to provide relief when an applicant has
been deprived of all reasonable economic use of his property. This form of administrative relief
allows property owners to seek relief or be compensated when it is found that certain regulations
result in a "taking" of the Applicant's property. In this case, while the Applicant's current
ROGO score has been reduced by six (6) points, this certainly has not resulted in a denial of all
reasonable economic use for the following reasons:
I-?~
A. The Monroe County Year 2010 Comprehensive Plan, adopted January 4,
1996, included Coastal High Hazard Areas as one of the weighted categories to be used in the
Permit Allocation System. The Applicant purchased the property in June, 1997 - more than one
year after the plan was adopted. Therefore, the Applicant was on notice that the Code could be
modified at any point in time to include Coastal High Hazard Areas as a weighted category in the
ROGO point allocation system.
B. The change to ~9.5-127, while lowering the Applicant's ROGO score by
six (6) points, has not taken away the Applicant's ability to obtain additional points available
under the ROGO point allocation system. Additional point may be obtained by raising the
structure, or by purchasing and transferring development rights from an eligible sender site. The
applicant will also continue to receive additional perserverance points which will increase his
ROGO score.
C. More than 100 applicants were reevaluated after the May 22, 1998
revisions ofthe ROGO criteria in the Monroe County Code. The allocation system is designed
to allocate the limited number of dwelling units available annually in a logical systematic
manner. Those parcels that best meet and further the goals, objectives and policies ofthe
Comprehensive Plan are permitted first. The reduction in the Applicant's point score was a
direct result of revisions made to further the goals, objectives and policies ofthe Comprehensive
Plan.
D. Section 9.5-129, MCC, provides for administrative relief for those
applicants tha. thave been denied an allocation award for four consecutive years. This Applicant
has been in the system for two years and may apply for administrative relief directly under
ROGO ifhe does not obtain an award within four years from the date of application.
E. In Burnham v. Monroe County, 738 So.2d 471 (Fla. 3d DCA 1999), the
Third District Court of Appeals held upheld Monroe County's ROGO point allocation system as
a constitutional means of allocating the County's limited number of building permits. The court
held that the requirement that applicants obtain points by including certain design features or
purchasing development rights from other buildable properties is a constitutional and effective
means of managing growth. In upholding the ROGO system, the Court specifically held that
the point system does not constitute a taking where additional points are available which the
applicant has not availed himself. To wit:
It is clear from the record that no taking has occurred; all that the owners had to
do in order to obtain the necessary points for their building permit was to make a
few minor changes to their plans. To establish a taking by inverse condemnation,
a plaintiff must show that the challenged regulation denies all economically
beneficial or productive use of land.
Burnham, 738 So.2d at 472.
4. As in Burnham, the Applicant here has the ability to obtain additional
ROGO points of which he has not availed himself. Accordingly, the complained-of
regulation does not constitute a taking and has not resulted in a denial of all reasonable
beneficial use of the Applicant's property.
WHEREFORE, the Monroe County Division of Growth Management respectfully
requests the BOCC reject the proposed beneficial use determination of Special Master
Overby and DENY the application for beneficial use.
Respectfully submitted,
~c~
Florida Bar No. 136964
MORGAN & HENDRICK
Counsel for Monroe County Growth Management
317 Whitehead Street
Key West, Florida 33040
305-296-5676
305-296-4331 (fax)
KCabanas@f1akeysol.com
CUNNINGHAM, MILLER,
HEFFERNAN & WOLFE, L.L.P.
2975 OVERSEAS HIGHWAY
POST OFFICE Box 500938
MARATHON, FLORIDA 33050-0938
RALPH E. CUNNINGHAM, ..JR., RETIRED
ROBERT K. MILLER*
WILLIAM ..J. HEFFERNAN, ..JR.
..JOHN ..J. WOLFE**
HALFORD G. SCHUHMACHER***
EUGENE G. KYLE, III
RICHARD A. MALAFY
CHERYL L. HASTINGS
..JAMES F. NOLAN
TI::i..EA-lCl'lE: (305) 743-9427
FAX: (305) 743-8800
REAL ESTATE FAX: (305) 743-7489
WWW.FLORIDAKEYSLAW.COM
*ALSO ADMllTED IN NEW YORK
**ALSO ADMllTED IN TEXAS
***ALSO ADMllTED IN MICHIGAN
October 13,2000
Via Facsimile and Federal Express Overnight
Karen K. Cabanas
317 Whitehead Street
Key West, Florida 33040
Re: In Re: Mil/us and Lori Skidmore
Beneficial Use Application
Dear Karen:
Enclosed please find a copy of our response in the above referenced matter. By a copy of this letter
we have transmitted a copy of our response to Marlene Conaway. Should you have any questions please do
not hesitate to contact us.
BEFORE THE BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
IN RE: Milus and Lori Skidmore
Beneficial Use Application
/
APPLICANTS' PROPOSED APPROVAL OR MODIFICATION OF
BENEFICIAL USE DETERMINATION
In accordance with Sec. 9.5-174, Monroe County Code, Milus and Lori Skidmore ("Applicants"),
propose that the Board of County Commissioners approve or approve with modifications the Special
Master's Proposed Beneficial Use Determination and as grounds state:
1. Pursuant to Section 9.5-174, Monroe County Code, the Board of County Commissioners ("BOCC")
has final authority to grant or deny vested rights and beneficial use determinations and may approve,
reject, or modify an order from the Special Master proposing to grant vested rights and beneficial
use.
2. Applicants purchased a lot in the Sugarloaf Shores Subdivision in Monroe County with plans to
build a home thereon, in reliance on the provisions of the Monroe County Year 20 1 0 Comprehensive
Plan (the "Plan") and the Land Development Regulations then in effect, including the Regulations
relating to Dwelling Unit Allocation System (the "ROGO Regulations"). At the time applicants
purchased the property, there were no "imminent" or "pending" changes in the ROGO Regulations.
After the purchase was completed, Applicants expeditiously obtained their OSDS Construction
Permit, had building plans prepared and approved by the County Building Department, and
submitted a ROGO application. Applicants received a summary ROGO Score of 18 points. At this
point, absent the ROGO allocation system, Applicants would have been issued a building permit.
On October 30, 1997 after accomplishing all of this, the first public notice of the proposed changes
were published in the Keynoter. On May 22, 1998, just when Applicants neared the top of the
ROGO line and had purchased a cesspool credit, the new ROGO Regulations became effective and
modified the scoring of points under the permit allocation system. As a result of the new ROGO
Regulations, Applicants were deprived of six points, which put them considerably lower down the
ROGO line, and which effectively knocked them out of contention for obtaining a permit any time
in the near future.
3. Applicants challenged the County's retroactive application of the new ROGO allocation system and
filed their Application For Determination of Vested Rights on March 25,1999, seeking to restore
the six points which had been taken away from them. The County contended that the provisions of
the Plan concerning the ROGO system put Applicants on notice ofthe County's intentto implement
the changes. Applicants pointed out that the Plan contains numerous goals and objectives to
accomplish certain items, and if they were all treated as constituting notice, there would be so little
certainly that it would be impossible to undertake any type of planned activity. Applicants further
argued thatthey had conducted themselves in compliance with all applicable codes and regulations,
relied upon agency requirements and approvals, and spent substantial sums of money in reliance on
the then existing ROGO Regulations and that therefore the County was equitably estopped from
CUNNINGHAM. MILLER, HEFFERNAN & WOLFE, L.L.P.
2975 Overseas Highway, Marathon, Florida 33050-0938 - TEL. (305) 743-9427
Page 2 of 3
attempting to retroactively apply the new ROGO Regulations to them. Lastly, Applicants countered
that the County was also precluded from applying the ROGO Regulations to them because nb
changes to said regulations were pending at the time the ROGO application was submitted.
After hearing argument of counsel and receiving the relevant evidence, the Special Master
recommended that a Final Beneficial Use Determination be adopted and approved by the Board
of County Commissioners awarding the addition of six ROGO points to the Applicants, due to the
applicants' having met the criteria for eligibility set forth at 9.5-172, Monroe County Code.
4. Applicants submit that the Special Master's recommendation that a Final Beneficial Use
Determination be adopted should be approved by the Board of County Commissioners. As the
Special Master found "[I]t 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'. The Special Master continued that "[T]o subtract six points
from the applicant's ROGO score after they had substantially completed the entire permitting
process would be unjust and inequitable given the circumstances of this case." As a result, the
Special Master concluded that the Applicants had been unjustly deprived of the beneficial use of the
subject property.
5. In the alternative, Applicants submit that the Special Masters recommendation for approval should
be affirmed as it reaches the right result, even if the Board finds itself in disagreement with the
theory upon which it was based. It is well within the power of the Board to affirm his ruling based
upon a different theory. (see, Dade County School Bd. v. Radio Station WQBA, 731 so.2d 638, 644-
645 (Fla. 1999) holding that "[I]f a trial court reaches the right result, but for the wrong reasons, it
will be upheld if there is any basis which would support the judgment on the record."; see also,
Direct Oil Corp. v. Brown, 178 So.2d 13, 15 (Fla. 1965) holding that "[T]he findings of the lower
court are not necessarily binding and controHing on appeal, and if these findings are grounded on
an erroneous theory, the judgment may yet be affirmed where appellate review discloses other
theories to support it."). The special Master's recommendations are also supported by the theory
of Vested Rights. As noted, the Special Master recommended that Applicants should be awarded
the additional six ROGO points based upon a denial of Applicants' beneficial use of the subject
property by the County's retroactive application of the new ROGO point system. While Applicant
agrees with the findings of the Special Master, approval of the Special Masters recommendation is
also warranted on the basis of the theory of Vested Rights, which is what Applicants applied for.
The case of Smith v. Clearwater clearly supports the recognition of Vested Rights. In that case,
owners of parcels of land who intended to construct high-rise units with parking below, brought an
action challenging the city's zoning ordinance amendments. 383 So. 2d 681 (Fla. App. 2nd Dist.
1980). After a lengthy and informative discussion of Florida law concerning equitable estoppel and
the effect of pending zoning changes, the court enunciated the rule that "even if he has not made
the substantial expenditures in reliance upon the city's position necessary to create an estoppel, he
is still entitled to obtain a building permit which is within the provisions of existing zoning so long
as the rezoning ordinance which would preclude the intended use is not pending at the time when
a proper application is made". (emphasis added) Id., at 689. Here, much like in Smith. the Plan
CUNNINGHAM. MILLER, HEFFERNAN & WOLFE, L.L.P.
2975 Overseas Highway, Marathon, Florida 33050-0938 - TEL. (305) 743-9427
Page 3 of 3
contemplates a change to the ROGO Regulations, but the County had not made the changes to reflect
this when the ROGO application was filed and was still awarding points based on the system in
place. In Smith, the existence of the Plan did not even seem to be a factor. The court was aware of
the city's comprehensive plan and apparently did not believe that this constituted notice to the
owners of pending zoning changes as the court held the zoning changes were "pending" only when
the appropriate administrative department was actively pursuing the zoning change. Id., at 689.
"Active pursuit" as that term is used here means that there must be active and documented efforts
on the part of those authorized to do the work which, in the nonnal course of municipal action,
culminate in the requisite zoning change. Id., at 689. The mere existence of language in a
comprehensive plan is not the requisite active pursuit as espoused in Smith. The "purpose of a
comprehensive plan is to set general guidelines for future development, and not necessarily to
accomplish immediate land use changes." Southwest Ranches, 502 So. 2d 936, as cited in Lee
Countv v. Sunbelt Eauities II. Ltd.. Partnership. 619 So. 2d 996, 1004 (Fla. 2nd DCA 1993). The
mere existence of the language in the Plan is not enough to put Applicants on notice of a pending
change in regulations as the Plan does not have an immediate effect and without more cannot be
considered an active pursuit of the proposed changes. As such, Applicants' are entitled to the six
points lost due to the changes imposed by the County as their rights had vested in the six points.
6. In conclusion, as the Special Master in his recommendation aptly seemed to have applied the
principle recognized under Florida law that equity regards that as done which ought to have been
done. As such, it is clear that the County should be equitably estopped from applying the revised
ROGO Regulations due to the substantial sums expended by the Applicants and the granting of
permits (OSDS) and approvals (Building Department). Additionally, the new ROGO Regulations
should not be applied retroactively, because the Applicants had already filed the ROGO application
(and fulfilled all the necessary prerequisites prior to the filing) prior to the first notice of the
proposed changes to the ROGO Regulations. Thus, the proposed changes were not pending at the
time of filing. Accordingly, the six points lost due to the changes should be restored to the Owners.
WHEREFORE, Applicants respectfully request the BOCC accept and/or modify and accept the
proposed beneficial use detennination and GRANT the application for beneficial use.
Dated: October 13,2000
By:
JOHN 1. W
Florida B
Cunning , Miller, Heffernan & Wolfe, LLP
2975 Overseas Highway
Marathon, FL 33050
305-743-9427
305-743-7489 (fax)
CUNNINGHAM. MILLER, HEFFERNAN & WOLFE. L.L.P.
2975 Overseas Highway, Marathon, Florida 33050-0938 - TEL. (305) 743-9427