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Item R3 Board of County Commissioners AGENDA ITEM SUMMARY Meeting Date December 13, 2000 Division: County Attorney AGENDA ITEM WORDING: Public Hearing on Resolution of Recommended Order of Beneficial Use on the application of Amber Rosean, Andrea Kalendowica and Raymond Fries. ITEM BACKGROUND: Hearing Officer J. Jefferson Overby issued a Recommended Order of Beneficial Use Determination on September 8, 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 -2L. To Follow _ Not required AGENDA ITEM # ~~ County Attorney RESOLUTION NO. -20000 A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, EVIDENaNG THE BOARD'S APPROVAL OF A RECOMMENDED BENEFIaAL USE DETERMINATION PROMULGATED BY THE SPECIAL MASTER, IN RE: THE APPUCATION OF AMBER ROSEAN, ANDREA KALENDOWICZ AND RAYMOND FRIES WHEREAS, on January 4, 1996, the Monroe County Year 2010 Comprehensive Plan became effective; and WHEREAS, the application of for determination of beneficial use was heard by Special Master J. Jefferson Oyerby on August 28, 2000; now therefore BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF MOf\ROE 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 APPROVED and the application of Amber Rosean, Andrea Kalendowicz and Raymond Fries is accordingly APPROVED, subject to the conditions as listed in the attached Proposed Beneficial Use Determination, dated September 8, 2000. PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Florida, at a regular meeting of the Board held on the 13th day of December, 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 MOf\ROE COUNTY, FLORIDA By Deputy clerkc:S1 jburosean , .... By Mayor/Chairman \;i. .:.;.. ';,;. \ .'l.'} '," ..'i'!'; .a-~ b-i tJ~ ~-.S BENEFICIAL USE HEARING HELD BEFORE HEARING OFFICER J. JEFFERSON OVERBY Marathon Government Center Marathon, Florida 33050 August 28, 2000 10:00 - 10:30 a.m. RE: ANDREA KALENDOWICZ, AMBER ROSEAN and RAYMOND FRIES PRESENT: J. JEFFERSON OVERBY, HEARING OFFICER K. MARLENE CONAWAY, PLANNING DIRECTOR KAREN CABANAS, ASSISTANT COUNTY ATTORNEY JULIE THOMSON, ASSISTANT TO THE PLANNING DIRECTOR ALSO PRESENT: GREG KALENDOWICZ ANDREA KALENDOWICZ RAYMOND FRIES ALL KEYS REPORTING (305) 289-1201/ Fax (305) 289-1642 1 ;:,:,Z:~ (' ~ ,:~; ";1:,;_ "- /: 1 THE COURT: The case scheduled involves the 2 beneficial use request by Mrs. Kalendowicz, 3 Mrs. Rosean and Mr. Fries or Fries. 4 MR. FRIES: It's Fries. 5 THE COURT: I don't know if each of you have 6 seen Monroe County's memorandum, that is their 7 position which has been faxed to me recently. I 8 was out of town. I guess it came on Friday. Have 9 each of you seen that. 10 MS. THOMSON: Staff report. 11 THE COURT: -- staff report. Have you seen 12 it? 13 MR. FRIES: Yes. 14 MR. KALENDOWICZ: Yes. 15 THE COURT: Great. Who would like to go 16 first? 17 MR. KALENDOWICZ: I can speak first. 18 THE COURT: First of all, since nobody knows 19 who you are, this lady is taking down your name. 20 MR. KALENDOWICZ: My name is Greg Kalendowicz 21 and I am Andrea's husband. 22 THE COURT: Okay. 23 MR. KALENDOWICZ: Basically what the 24 recommendation of the county has written in the 25 report are totally agreeable by me. This is ALL KEYS REPORTING (305) 289-1201/ Fax (305) 289-1642 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 :"-.' exactly what we have been looking to have happen. We have always known that prior to ROGO that the county said it was okay to build a house there. Over the years you come to know our case, that basically the reason it is in the situation it is because of a death in the family and a lot of circumstances out of our control which we are trying to remedy, which we tried over the years to do little things to improve its site. And now looking at the recommendation of the county it looks like they are seeing it the same way that we did. They looked into the records and found that the permit, the house was originally started prior to ROGO and that we basically can't do anything with the place unless we can reinstate the permits. Now if that's the recommendation that's fantastic. THE COURT: Okay. Now in the staff recommendation there are seven conditions. I would like you to take a look at page, I guess what is my page 5 and 6. It is probably your page 3 and 4. Are you in agreement with all of those terms as well? MR. KALENDOWICZ: Yes, sir. The only one that even frightens me slightly is the mention of ALL KEYS REPORTING (305) 289-1201/ Fax (305) 289-1642 3 . ~\;~ I ,-_J 1 impact fees which, you know, we already kind of 2 knew we were going to be up against. That is 3 something we are going to have to pay as part of 4 reinstatement. 5 THE COURT: Do we have any idea from staff 6 how much those impact fees might be? Even hazard 7 a guess, ballpark; are we talking 1,000, 5,000, 8 25,000, 125,000? I think before we have these 9 folks agree to doing this I need to have some kind 10 of ballpark. 11 MR. FRIES: Is it just the permit that you 12 are talking about? 13 THE COURT: No. Impact fees. 14 MS. CONAWAY: She will check. 15 THE COURT: I just want this to be a 16 fully-informed consent kind of agreement. 17 MR. KALENDOWICZ: Furthermore, I am totally 18 in agreement on having the drawings revised which 19 would make sense, things have changed over the 20 years. There is more modern, more efficient 21 methods and construction type situations that 22 would make the house even nicer and stronger. 23 THE COURT: One last thing. I am sorry to 24 interrupt you. 25 MR. KALENDOWICZ: That's okay. ALL KEYS REPORTING (305) 289-1201/ Fax (305) 289-1642 4 1 2 3 4 5 6 7 8 9 10 11 12 \ 13 14 15 16 ,'.:. 17 18 19 '.. 20 21 22 ;~~,;~.~ 23 24 ,-~.,:~-< 25 .'t::.~,;,~ ' ;:h',' THE COURT: The waste treatment, on-site wastewater disposal treatment system. This is a non-waivable issue. This is something that the state of Florida requires. When you first started this process these were not of the same degree or requirement. Have you had an opportunity to look into that yet? MR. KALENDOWICZ: I can imagine it is more stringent. It was five years ago. THE COURT: It absolutely is. MR. KALENDOWICZ:' So long as there is something that can still be done so you still have a place to dump your wastewater, we are in agreement that we have to do what we have to do. THE COURT: I didn't know if you had an opportunity to speak with the Monroe County Health Department. MR. KALENDOWICZ: So long as you say no you can't flush a toilet on this Key we are in trouble. THE COURT: Obviously where that is now doesn't have a central system and I know that Monroe County is leaning towards trying to establish central systems for different communities. Staff is back. Let's see what they ALL KEYS REPORTING (305) 289-1201/ Fax (305) 289-1642 5 .t;,i'l. .;~m / ~ ,,.,. ',>.-~ ':"'." '~':-'Ji'" " '-/ 1 say. 2 MS. THOMSON: The ballpark figure is 16,000. 3 THE COURT: 1600? 4 MS. THOMSON: Yes, 1,600. 5 MR. KALENDOWICZ: That is livable. 6 THE COURT: That may go up between now and 7 the time that you perfect the remaining issues. 8 That is ballpark. 9 MR. KALENDOWICZ: If it has only gone up 10 that much, it is not going up ten fold. 11 THE COURT: Even if it is double it would 12 still be affordable. 13 MR. KALENDOWICZ: Sure. 14 THE COURT: Do you have any questions of 15 staff or questions about the report or comments 16 with the report or disagreements? 17 MR. KALENDOWICZ: No disagreements 18 whatsoever. After this hearing is completed where 19 would be our next step as far as reinstating the 20 permits? 21 THE COURT: Here is what happens. I have to 22 do an order adopting, assuming that everyone here 23 agrees, I have to do an order recommending to the 24 County Commission that they approve the beneficial 25 use under these limitations and conditions. It ALL KEYS REPORTING (305) 289-1201/ Fax (305) 289-1642 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 ,~.', 22 23 24 25 then has to go to a County Commission meeting. They then have to vote on it. So it has to get on the agenda. They have to vote on it. I can tell you that I have, in my 10 years, knock on wood, that they have not ever reversed one of my decisions. However this could be the first one. I can't, I don't tell them what to do. I merely make a recommendation and I explain why I am making that recommendation. Then they do what they do. MR. KALENDOWICZ: We would get some notification in the mail then? THE COURT: Absolutely. MS. THOMSON: Yes. MR. KALENDOWICZ: After that? THE COURT: After they vote, if they approve it, then you would be eligible to do this stuff MR. KALENDOWICZ: We'll start the drawing process and the permit process right thereafter. THE COURT: You could even put the cart before the horse if you wanted and get everything moving along. MR. KALENDOWICZ: And the permit what do they give you six months before you have to call in a first inspection? 120 days I think they note ALL KEYS REPORTING (305) 289-1201/ Fax (305) 289-1642 7 1 on here. 2 THE COURT: I think it is only 120 days. I 3 don't think it is six months. 4 MS. THOMSON: You could stop down to the 5 building department and get that information from 6 them before you leave today. 7 MR. KALENDOWICZ: We'll do that. 8 THE COURT: You can't start. 9 MR. KALENDOWICZ: No. 10 THE COURT: I am just saying if you wanted 11 to like resubmit, get the drawings done and get 12 your wastewater disposal treatment system 13 designed. This is a little more significant than 14 you probably imagined in the past. You can't do 15 injection wells anymore. So the choices and 16 options are definitely more stringent and I just 17 want to make sure that you -- getting a sealed 18 engineer's report is not difficult. It is just 19 time consuming. 20 MR. KALENDOWICZ: Mr. Overby, once 21 everything goes correct and we get the permit 22 reinstated 23 THE COURT: Right. 24 MR. KALENDOWICZ: can they be able to be 25 transferable should we decide to sell the property ALL KEYS REPORTING (305) 289-1201/ Fax (305) 289-1642 8 1 and the new owner continue with the permits to 2 complete the construction? 3 THE COURT: I can't answer that question. I 4 don't know the answer to that question. Staff 5 have or the County Attorney have anything to add 6 on that? 7 MS. CABANAS: I think that is part of the 8 staff report. We understand that is one of their 9 purposes is to be able to sell the property. 10 MR. KALENDOWICZ: Exactly. 11 MS. CABANAS: So we don't have a problem 12 with them transferring the permits. 13 THE COURT: If you don't mind I am going to 14 put that in the order because it is not in the 15 final list of conditions. 16 MS. CABANAS: That's agreeable. 17 THE COURT: I am going to add an eighth 18 condition. I don't want to see you have any 19 detrimental reliance. 20 MR. KALENDOWICZ: I thought I would bring 21 that up. 22 THE COURT: I appreciate you doing that. 23 MR. KALENDOWICZ: We could definitely get 24 started prior to the sale. We have people 25 interested in buying and should they come along ALL KEYS REPORTING (305) 289-1201/ Fax (305) 289-1642 9 ",," I ~~J '.'.,."" 1 before it is finished I would like them to be able 2 to complete it. That would make it more 3 attractive for them to buy as well. That was all 4 that I had. 5 THE COURT: Did you have anything that you 6 wanted to add? 7 MRS. ~ENDOWICZ: The information on the 8 waste management. 9 THE COURT: You can call again the Monroe 10 County Health Department in Key West. Is it Jack 11 that is doing it? 12 MS. THOMSON: Yes. Jack Teague. 13 THE COURT: Jack Teague. T-e-a-g-u-e. And 14 I would recommend you do so, you know, because 15 again you are going to want to know what your 16 choices and options are and the cost. 17 MR. KALENDOWICZ: We are going to want to 18 forward this information to the engineer and 19 architect that revises the drawing. 20 THE COURT: Exactly. You are going to want 21 to have that part of the process under seal. They 22 have to give you a written approval of the system. 23 It is not just a matter of calling them and 24 getting the information. It has to be submitted 25 to them and send back an okay. That okay has to ALL KEYS REPORTING (305) 289-1201/ Fax (305) 289-1642 10 -:.~Ll .;' 23 1 be included with the submitted plans. The plans 2 have to be under seal. There is a few hoops. 3 MR. KALENDOWICZ: There is a process there. 4 THE COURT: Exactly. I am sure you can 5 appreciate why. It is to make sure that somebody 6 doesn't go in and do it wrong. 7 MR. KALENDOWICZ: Absolutely. 8 THE COURT: And later on relive this 9 problem. 10 MR. KALENDOWICZ: Impact and environment or 11 what have you, we understand that. 12 THE COURT: Yeah. Well that's only a small 13 piece of it but a very important one okay. That's 14 two-thirds of the property. 15 Mr. Fries, good morning. 16 MR. FRIES: Good morning. 17 THE COURT: Do you have anything that you 18 would like to add or is your position different 19 from that of the Kalendowicz'? 20 MR. FRIES: No. Basically I agree with what 21 is going on. As far as the waste treatment, that, 22 at the time it was approved but I already put in, you know, in the building, I put provision for the 24 toilet to be put in properly in the septic system 25 that is from -- ALL KEYS REPORTING (305) 289-1201/ Fax' (305) 289-1642 11 1 THE COURT: I don't know what septic system 2 is there and I can't issue you a carte blanche 3 that what is there is going to pass inspection or 4 pass muster for the new system. Unfortunately 5 what we have found, that in some of the 6 installations of septic systems were less than 7 what they should have been and so now they require 8 a testing and inspection and, you know, it is just 9 there is a lot more hoops. It may be that yours 10 was perfect. 11 MR. FRIES: It was tested and approved at 12 the time. 13 THE COURT: That was many years ago. MR. FRIES: Right. The size was okay for the house at the time. THE COURT: They may recognize that. If they do great. But that is between you all and the Health Department okay. 14 15 16 17 18 19 MR. FRIES: I know we can't keep the septic 20 system for the toilet as it is but the rest of it 21 is all right. 22 THE COURT: Anything else that you would 23 like to add, sir? 24 MR. FRIES: No. 25 THE COURT: All right. The subject ALL KEYS REPORTING (305) 289-1201/ Fax (305) 289-1642 12 25 1 properties are in No Name Key, Monroe County, 2 Florida. The subject property is zoned IS and 3 it's situated on a canal. The lots are cleared 4 and contain a partially built single family 5 residence on piers. There was a permitting 6 history but the permits had expired and were 7 reinstated on separate occasions. There was also 8 a variance granted; however, the permit expired on 9 ~ that and a passing framing inspection has not been 10 completed. 11 However, based on my review and staff's recommendations, it is clear that the applicants 12 13 would be deprived of all reasonable economic use 14 of their property if they were required to undergo 15 the ROGO system due to the properties' inability 16 to obtain a ROGO allocation. 17 It is my recommendation to the Board of 18 County Commissioners that they be granted 19 beneficial use with the following conditions: 20 1. They have to submit a building permit 21 application or resubmit a building permit 22 application including revised building and, if 23 necessary, site plans, including written approval 24 from the Department of Health on the on-site wastewater disposal treatment system. ALL KEYS REPORTING (305) 289-1201/ Fax (305) 289-1642 13 1 2. The applicants shall submit a sealed 2 Florida engineer's report which indicates that the 3 existing structure is safe to continue 4 construction or a report which contains 5 recommendation on changes to the structure which 6 is necessary to ensure that the structure is sound 7 enough to continue the construction. 8 3. The applicants will be exempt from ROGO 9 because their permit was one of the "committed" 10 units recognized prior to the adoption of ROGO. 11 4. The applicants building permit will be 12 exempt from the building moratorium on Big Pine 13 Key which is County Commission Resolution 14 277A-2000. 15 5. The subject properties and proposed 16 residence shall be required to meet all provisions 17 under the 2010 Comprehensive Plan and Land 18 Development Regulations, except where previously 19 noted, specifically as to ROGO. 20 6. The applicants will be required to pay 21 all associated impact fees upon the issuance of a 22 building permit which are currently, approximately 23 $1500. 24 7. This beneficial use determination shall 25 not exceed five years. So this means, and I want ALL KEYS REPORTING (305) 289-1201/ Fax (305) 289-1642 14 1 to be really really clear, you have been through a 2 series of processes where permits have been 3 granted and they have been extended and they have 4 been reinstated and so forth. If you were to not 5 to let this problem be resolved within five years 6 of today's date you're done. No permit. 7 Moratorium is in effect. It's as if Cinderella's, 8 it's midnight and you turn back into a pumpkin, 9 allover. 10 MR. KALENDOWICZ: Understood. It is not 11 going to take five years. 12 THE COURT: I understand that it won't. 13 That's why I am giving you five years. Be 14 absolutely clear on this. This is irrevocable. 15 It is not extendable. It is not modifiable. It 16 is not five years and a day. 17 MR. KALENDOWICZ: Bottom line. 18 THE COURT: Bottom line. It is by when date. 19 If you don't have it done by then there is no 20 redress whatever. And this is completely 21 contingent upon each of you releasing Monroe 22 County from any liability, if any, to past, 23 present and future regarding the subject property. 24 8. Pursuant to the agreement and 25 recommendation of staff these permits will be ALL KEYS REPORTING (305) 289-1201/ Fax (305) 289-1642 15 1 transferable should a new owner purchase it within 2 this five years. However they would be bound by 3 the same restrictions that you would be bound by. 4 MR. KALENDOWICZ: All the rules would carry 5 over. 6 THE COURT: Exactly. 7 MR. KALENDOWICZ: Understood. 8 THE COURT: And again just for the record 9 the subject properties include lots 2 through 4 10 Amended Plat of Bahia Shores, No Name Key, Monroe 11 County, Florida; Deed Book 6, Page 115, with the 12 following RE numbers: 319491-000200, also 13 319491-000300 and 319491-000400. 14 And I am going to ask the court reporter 15 type this up. That will become my order and then 16 we'll get it to the Commission on an expedited 17 basis. 18 MR. KALENDOWICZ: Thank you very much. 19 THE COURT: Thank you very much. 20 MR. KALENDOWICZ: I thank the county for 21 their patience and cooperation. +- ( - this 3 day of ~;I;1.1--, - ~ 2000. , 22 Dated 23 24 25 ALL KEYS REPORTING (305) 289-1201/ Fax (305) 289-1642 16 CERTIFICATE I, Kathleen A. Fegers, Registered Professional Reporter, do hereby certify that the foregoing transcript is a true and correct transcription of my stenographic notes of proceedings taken on August 28, 2000 Marathon, FL. IN WITNESS WHEREOF, I have hereunto affixed my hand August 30, 2000. , RPR ALL KEYS REPORTING (305) 289-1201/ Fax (305) 289-1642 17