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Item E4 BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: July 19. 2001 Division: Growth Management Bulk Item: Yes No --2L Department: Buildinl! AGENDA ITEM WORDING: Public hearing to consider the adoption of an ordinance to create Section 6-32. Monroe County Code. ITEM BACKGROUND: The proposed ordinance is to create a provision in the Monroe County Code that specifically requires that any unlawful use or improvement on a property be brought into compliance prior to the issuance of a building permit. except in cases of imminent risk to property and public health and safety. The Growth Management Division based on internal policy and various provisions of Chapter 9.5 (Land Development Regulations) of the Monroe County Code has historically not issued permits on properties where known unlawful uses or improvements exist. The Judge Payne decision on the four-year statute of limitations has further weakened the County's ability to bring properties with unlawful uses and improvements into compliance. Therefore. the Growth Management Division with the advice of the County Attorney believes that language reflecting the policy of not permitting properties with unlawful uses and improvements needs to be specifically incorporated in the Monroe County Code to eliminate any ambiguities in its application and legal defense. PREVIOUS RELEVANT BOCC ACTION: None CONTRACT/AGREEMENT CHANGES: N/A STAFF RECOMMENDATIONS: Approval TOTAL COST: x BUDGETED: Yes N/A No COST TO COUNTY: N/A REVENUE PRODUCING: Yes N/A No AMOUNT PER MONTH N/A Year APPROVED BY: County Atty lOMB/Purchasing N/ A Risk Management N/A DOCUMENTATION: Included x .AICP DIVISION DIRECTOR APPROVAL: To Follow_ DISPOSITION: AGENDA ITEM #~jI Revised 2/27/01 2, Meeting Date: r>ulk Item: BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY ~Ily 18-19. ~001 Division: ROCC No X Department: DiRtri~t Five EMERGENCY ADD-ON AGENDA ITEM WORDING: Approval to advertise an ordinance to create Section 6-32 was bulked at the June BOCC meeting in spite of the position of the BOCC on FEMA issues and that this is a policy issue, not an administrative rule, (Agenda item 2B.l0 is attached) ITEM BACKGROUND: Issues relating to permitting for existing homes that may or may not have non-compliant portions has broad implications, This issue not only affects downstairs enclosures, but also applies to all non-permitted uses below B.F,E. These violations would include all non-conforming storage areas, all homes with electrical apparatus including generators, batteries, and main switches below B.F.E, If the BOCC refuses permits to homes that were bought with an attorney and a licensed real estate agent, should that property owner be denied'a permit to maintain his property? The misuse of this ordinance could result in a declining stock of residential homes and affordable housing. This ordinance also violates Judge Payne's ruling on the Beattie case. Not issuing permits also works against legal contractors, as work required that is refused a permit will be accomplished by unlicensed contractors. PREVIOUS RELEVANT BOCC ACTION: CONTRACT/AGREEMENT CHANGES: STAFF RECOMMENDATION: TOTAL COST: N/A BUDGETED: Yes No COST TO COUNTY: REVENUE PRODUCING: No AMOUNT PER MONTH YEAR APPROVED BY: County Attorney OMB/Purchasing ~c-.. ~JSON. Risk Mgt, DIVISION DIRECTOR APPROVAL: ~~ DOCUMENTATION: Included: X To Follow: Not Required: DISPOSITION: AGENDA I'T'F.M :It c2-;;-;J , ,', BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: June 21,2001 Division: Growth Management Bulk Item: Yes X No Department: Building AGENDA ITEM WORDING: Approval to advertise an ordinance for public hearing to create Section 6-32, Monroe County Code. ITEM BACKGROUND: The proposed ordinance is to create a provision in the Monroe County Code that specifically requires that any unlawful use or improvement on a property be brought into compliance prior to the issuance of a building permit, except in cases of imminent risk to property and public health and safety. The Growth Management Division based on internal policy and various provisions of Chapter 9.5 (Land Development Regulations) of the Monroe County Code has historically not issued permits on properties where known unlawful uses or improvements exist. The Judge Payne decision on the four-year statute of limitations has further weakened the County's ability to bring properties with unlawful uses and improvements into compliance. Therefore, the Growth Management Division with the advice of the County Attorney believes that language reflecting the policy of not permitting properties with unlawful uses and improvements needs to be specifically incorporated in the Monroe County Code to eliminate any ambiguities in its application and legal defense. PREVIOUS RELEVANT BOCC ACTION: None CONTRACT/AGREEMENT CHANGES: NM STAFF RECOMMENDATIONS: Approval X BUDGETED: Yes N/ A No TOTAL COST: COST TO COUNTY: N/A REVENUE PRODUCING: Yes N/A No AMOUNT PER MONTH N/A Year APPROVED BY: County Atty l anagement N/ A DIVISION DIRECTOR APPROVAL: arry, AICP DOCUMENT A TION: Included X To Follow Not Required_ DISPOSITION: AGENDA ITEM #~,.,t;\ 0 Revised 2/27/01 ORDINANCE NO. 2001 AN ORDINANCE CREATING SECTION 6-32; ESTABLISHING REQUIRMENT THAT ANY PARCEL WITH AN UNLAWFUL USE OR IMPROVEMENT SHALL BE BROUGHT INTO CODE COMPLIANCE PRIOR TO THE ISSUANCE OF A BUILDING PERMIT; PROVIDING EXCEPTIONS TO ADDRESS RISKS TO PROPERTY AND PUBLIC HEALTH AND SAFETY; PROVIDING FOR REPEAL OF ALL ORDINANCES INCONSISTENT HEREWITH; PROVIDING FOR INCORPORATION INTO THE MONROE COUNTY CODE OF ORDINANCES; AND PROVIDING FOR AN EFFECTIVE DATE, WHEREAS, Section 6.3-14, Monroe County Code (UMCC"), bars the County from Code enforcement prc;>secution against any violation of more than four (4) years after the occurrence of the non-compliant event, except for unlawful construction within the flood hazard areas; and, WHEREAS, Section 9.5-316.1, MCC requires that any structure located within the flood hazard shall comply with all provisions of County's flood plain regulations; and, WHEREAS, Section 9.5-112 (f), MCC, requires that an proposed development or modification of existing development for which a building permit is issued is compliant with Chapter 9.5, MCC; and, WHEREAS, Section 9.5-49, MCC, provides authority for the Director of Planning to suspend consideration of any building permit application pending a code enforcement proceeding involving all or a portion of the parcel proposed for development; and, WHEREAS, County Growth Management Division has historically had a strict policy to deny permit applications, except in cases of imminent risk to property and public health and safety, for any property which has unlawful improvements or uses unless these improvements or uses are brought into compliance with the County Code; and, WHEREAS, a recent opinion rendered by Judge Richard Payne, 16th Judicial Circuit Court, found that Section 95.11 (3)(a), Florida Statutes, bars code enforcement prosecution for a beyond the four year statute of limitations, including enforcement of the County flood plain regulations; and, WHEREAS, it is the staffs opinion that the Judge's opinion and the four-year statute of limitations on code enforcement action combined with the lack of explicit language in Chapter 6 or Chapter 9.5 concerning the permitting of parcels with unlawful development activity make it increasingly difficult for the County staff to bring unlawful development into compliance; and, WHEREAS, Growth Management Division staff has prepared a revision to the MCC creating Section 6-32 that requires that any parcel that contains unlawful uses or improvements shall be brought into compliance with Chapter 9.5, MCC prior to the C:\DOCUMENnBOCC\modify6-32.doc Page 1 of 3 " issuance of a building permit, except in situations of imminent risk to property and public health and safety; , NOW THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA, THAT: Section 1. Section 6-32 is hereby created which reads as follows: Sec, 6-32, Unlawful uses and improvements, Except for building permits that are limited exclusively to addressing imminent risks to property and public health and safety, no building permit shall be issued for any use or improvement involving all or any portion of a parcel (as defined in section 9.5-4 (P-1), Monroe County Code) which contains an unlawful use or improvement until the parcel is brought into compliance with the provisions of Chapter 9.5, Monroe County Code. Section 2. 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 invalidity. Section 3. All ordinances or parts of ordinances in conflict with this ordinance are hereby repealed to the extent of said conflict. Section 4, The provisions of this ordinance shall be include 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 5, This ordinance shall take effect immediately upon receipt of the official notice from the Office of the Secretary of State of the State of Florida that this ordinance has been filed with said Office. Section 6. The Clerk of the Board is hereby directed to forward a copy of this Ordinance to Municipal Code Corporation for incorporation into the Monroe County Code of ordinances. [THE REMAINDER OF THIS PAGE IS LEFT INTENTIONALLY BLANK.] C:\DOCUMENT\BOCC\modify6-32.doc Page 2 of 3 PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Florida, at a regular meeting of said Board held on the _ day of July, AD, 2001. Mayor George Neugent Mayor Pro Tem Nora Williams Commissioner Charles "Sonny" McCoy Commissioner Murray Nelson Commissioner Dixie Spehar BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA By Mayor/Chairman ATTEST: DANNY L. KOLHAGE, Clerk By Deputy Clerk C:\DOCUMENT\BOCC\modify6-32.doc Page 3 of 3 1- ...._. 3 '. County of l,\~onroe Growth Manal!:ernent Division 2798 Overseas Highway Suite 410 Marathon, Florida 33050 Voice: (305) 289 2500 FAX: (305) 289 2536 Board of Countv Commissioners Mayor George Neugent, District 2 Mayor Pro Tern Nora Williams, District 4 Comm. Charles "Sonny" McCoy, Dist. 3 Comm. Murray E. Nelson, District 5 Comm. Dixie M. Spehar, District I MEMORANDUM TO: Board of County Commissioners Timothy J. McGarry, AICP /lJ;J Director of Growth Managelrr1f:ll/ FROM: DATE: July 18, 2001 SUBJECT: Additional Language for Proposed Section 6-32, Monroe County Code Some concerns have been raised by the public about the interpretation of proposed Section 6-32 concerning the prohibition of permitting property with unlawful uses or improvements. The major concern is that changes in staff may lead to different interpretations of the intent of this ordinance. To address this concern, the staff suggests amending the proposed Section 6-32 as follows (new language underlined): Sec. 6-32. Unlawful uses and improvements. Except for building permits that are limited exclusively to addressing imminent risks to property and public health and safety, no building permit shall be issued for any use or improvement involving all or any portion of a parcel (as defined in section 9.5-4 (P-l), Monroe County Code) which contains an unlawful use or improvement until the parcel is brought into compliance with the provisions of Chapter 9.5, Monroe County Code, By way of illustration and not limitation, permits may be issued for repairs and replacement of roof and other building structural components to the extent necessary to address imminent risks to property damage and public safety and health, such as for, but not limited to, the repair of leaking roofs and damaged roofs, walls, and foundations; and, violations of building, electrical, mechanical, and electrical codes. L-, - L\; ORDINANCE NO. 200,1 AN ORDINANCE CREATING SECTION 6-32; ESTABLISHING REQUIRMENT THAT ANY PARCEL WITH AN UNLAWFUL USE OR IMPROVEMENT SHALL BE BROUGHT INTO CODE COMPLIANCE PRIOR TO THE ISSUANCE OF A BUILDING PERMIT; PROVIDING EXCEPTIONS TO ADDRESS RISKS TO PROPERTY AND PUBLIC HEALTH AND SAFETY; PROVIDING FOR REPEAL OF ALL ORDINANCES INCONSISTENT HEREWITH; PROVIDING FOR INCORPORATION INTO THE MONROE COUNTY CODE OF ORDINANCES; AND PROVIDING FOR AN EFFECTIVE DATE, WHEREAS, Section 6.3-14, Monroe County Code ("MCC"), bars the County from Code enforcement prosecution against any violation of more than four (4) years after the occurrence of the non-compliant event, except for unlawful construction within the flood hazard areas; and, WHEREAS, Section 9.5-316.1, MCC requires that any structure located within the flood hazard shall comply with all provisions of County's flood plain regulations; and, WHEREAS, Section 9.5-112 (f), MCC, requires that an proposed development or modification of existing development for which a building permit is issued is compliant with Chapter 9.5, MCC; and, WHEREAS, Section 9.5-49, MCC, provides authority for the Director of Planning to suspend consideration of any building permit application pending a code enforcement proceeding involving all or a portion of the parcel proposed for development; and, WHEREAS, County Growth Management Division has historically had a strict policy to deny permit applications, except in cases of imminent risk to property and public health and safety, for any property which has unlawful improvements or uses unless these improvements or uses are brought into compliance with the County Code; and, WHEREAS, a recent opinion rendered by Judge Richard Payne, 16th Judicial Circuit Court, found that Section 95.11 (3)(a), Florida Statutes, bars code enforcement prosecution for a beyond the four year statute of limitations, including enforcement of the County flood plain regulations; and, WHEREAS, it is the staff's opinion that the Judge's opinion and the four-year statute of limitations on code enforcement action combined with the lack of explicit language in Chapter 6 or Chapter 9.5 concerning the permitting of parcels with unlawful development activity make it increasingly difficult for the County staff to bring unlawful development into compliance; and, WHEREAS, Growth Management Division staff has prepared a revision to the MCC creating Section 6-32 that requires that any parcel that contains unlawful uses or improvements shall be brought into compliance with Chapter 9.5, MCC prior to the C:\DOCUMENT\BOCC\modify6-32.doc Page 1 of 3 issuance of a building permit, except in situations of imminent risk to property and public health and safety; NOW THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA, THAT: Section 1, Section 6-32 is hereby created which reads as follows: Sec, 6-32, Unlawful uses and improvements, Except for building permits that are limited exclusively to addressing imminent risks to property and public health and safety, no building permit shall be issued for any use or improvement involving all or any portion of a parcel (as defined in section 9.5-4 (P-1), Monroe County Code) which contains an unlawful use or improvement until the parcel is brought into compliance with the provisions of Chapter 9.5, Monroe County Code. Section 2, 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 invalidity. Section 3. All ordinances or parts of ordinances in conflict with this ordinance are hereby repealed to the extent of said conflict. Section 4. The provisions of this ordinance shall be include 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 5. This ordinance shall take effect immediately upon receipt of the official notice from the Office of the Secretary of State of the State of Florida that this ordinance has been filed with said Office. Section 6. The Clerk of the Board is hereby directed to forward a copy of this Ordinance to Municipal Code Corporation for incorporation into the Monroe County Code of ordinances. [THE REMAINDER OF THIS PAGE IS LEFT INTENTIONALLY BLANK.] C:\DOCUMENT\BOCC\modify6-32.doc Page 2 of 3 PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Florida, at a regular meeting of said Board held on the _ day of July, AD, 2001. Mayor George Neugent Mayor Pro Tem Nora Williams Commissioner Charles "Sonny" McCoy Commissioner Murray Nelson Commissioner Dixie Spehar BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA By Mayor/Chairman ATTEST: DANNY L. KOLHAGE, Clerk By Deputy Clerk C:\DOCUMENl\BOCC\modify6-32.doc Page 3 of 3