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Item F02 , . Board of County Commissioners AGENDA ITEM SUMMARY Meeting Date: March 20, 2002 Division: County Attorney AGENDA ITEM WORDING: Public Hearing on Resolution of Recommended Order of Beneficial Use on the application of Maria & Aurelio delValle. ITEM BACKGROUND: Hearing Officer John Wolfe issued a Recommended Order of Beneficial Use Determination on May 21, 2001. PREVIOUS RELEVANT BOCC ACTION: Adoption of Monroe County 2010 Comprehensive Plan and ROGO. STAFF RECOMMENDATION: Approval. TOTAL COST: N/A BUDGETED: Yes No Cost to County: N/ A APPROVED BY: County Attorney x OMB/Purehasing Risk Management DIVISION DIRECTOR APPROVA~ DOCUMENTATION: Included --2L- To Follow _ Not required AGENDA ITEM # r-oL . . County Attorney RESOLUTION NO. - 2002 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 APPLICATION OF MARIA 4 AURELIO dELVALLE. WHEREAS, on January 4, 1996, the Monroe County Year 2010 Comprehensive Plan became effective; and WHEREAS, the application of Maria & Aurelio delValle for determination of beneficial use was heard by Special Master John J. Wolfe on December 18,2000; now therefore BE IT RESOLVED BY THE BOARD OF COUNiY COMMISSIONERS OF MONROE COUNiY, FLORIDA, that: The Findings of Fact and Conclusions of Law and recommendations of the Special Master as set forth in the Proposed Beneficial Use Determination are APPROVED and it is determined that the applicants have been deprived of all economic use of their property and that the appropriate remedial action is just compensation by purchase of the Lot in accordance with the applicable provisions of the Plan and the Code. PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Florida, at a regular meeting of the Board held on the 20th day of March 2002. Mayor Charles McCoy Mayor Pro Tern Dixie Spehar Commissioner Murray Nelson Commissioner George Neugent Commissioner Nora Williams (SEAL) Attest: DANNY L. KOLHAGE, Clerk BOARD OF COUNiY COMMISSIONERS OF MONROE COUNiY, FLORIDA By By Deputy Clerk Mayor/Chairman APPROVE AN 0 AS TO FORM 8 CY. BENEFICIAL USE MONROE COUNTY SPECIAL MASTER In Re: Samuel 1. Burstyn Aurelio & Maria Del Valle James T. Friedman Charles & Johanna Kuhn Loschim, Inc. RFM Development Corp./Richard Milanese -Beneficial Use Applications / PROPOSED BENEFICIAL USE DETERMINATION The above entitled matter was heard at a duly-advertised and regularly scheduled, public hearing on December 18,2000, before John J. Wolfe, designated Beneficial Use Special Master. The Applications for a Determination of Beneficial Use filed by each of the above applicants (the "Applicants"), involve substantially identical issues and were consolidated for purposes of this Hearing by agreement of the Applicants and Monroe County. Andrew Tobin represented the Applicants. Assistant County Attorney Karen Cabanas, Director of Planning, Marlene Conaway, Assistant to the Planning Director, Julie Thomson, and Biologist, Ralph Gouldy, represented Monroe County. ISSUE Whether the Applicants have been denied all reasonable economic use of their property by application of Policy 102.1.1 of the Year 2010 Comprehensive Plan (the "Plan"), as implemented by a 1999 Memorandum of Agreement between Department of Community Affairs and Monroe County (the "Memorandum"), and Section 9.5-343 of the Monroe County Code (the "Code"), and whether the Applicants are entitled to relief under Policies contained in Objective 101.18.5 of the Plan and Section 9.5-173 of the Code. FINDINGS OF FACT 1. All properties of the Applicants subject to this Hearing are unimproved lots located on Center Island, Duck Key, and are zoned Improved Subdivision - Masonry (IS-M). 2. The Applicants purchased their respective lots which are the subject of this Hearing (the "Lots"), as shown below on the dates indicated below: Applicant(s) Lot. Block RE Number Purchase Date Samuel I. Burstyn, P.A. Lot 11, Block 9 00381090 3120/87 Aurelio & Maria Del Valle Lot 24, Block 10 00381440 3/11/90 James T. Friedman Lot 19, Block 3 00379650 9/1/86 Charles & Johanna Kuhn Lots 14 & 15, Block 8 00380920&00380910 10/9/90 Loschim, Inc. Lot 3, Block 10 00381230 4/30/90 Richard F. Milanese * Lots 18 & 20, Block 3 00796600&00379640 8/19/87 * Transferred from RFMDevelopment Corp., the original applicant 3. In 1998, Monroe County completed a study, Advanced Identification of Wetlands (the "ADID Study"), as directed in Policy 204.1.1 of the Plan which included a method to "score" lots/properties with wetlands characteristics and assign a numeric value reflecting the quality of the wetlands found on such lots/properties. The scoring methodology was implemented by the adoption of interim standards for development in disturbed wetlands as set forth in the Memorandum. Wetlands which score at 7.0 or higher are considered high functional capacity wetlands, and are so- called "red-flag" wetlands, because development of such wetlands is prohibited under any circumstances. Wetlands which score below 7.0, but greater than or equal to 4.6 are considered moderate functional capacity wetlands. Wetlands which score less than 4.6 are considered low functional capacity wetlands. Moderate and low functional capacity wetlands are suitable for development with appropriate mitigation. The Memorandum specifically provides that the interim standards are to be strictly construed. 4. All of the Lots were determined by the ADID Study to be "Red-Flag" wetlands, which are defined in the Memorandum to be "those wetlands whose high level of functional capacity and lack of disturbance prohibit development,under any circumstances." CONCLUSIONS OF LAW 5. The Lots are designated Improved Subdivision - Masonry (IS-M), which allows one residential dwelling per lot. 6. The provisions of Policy 102.1.1 ofthe Plan and Section 9.5-343 ofthe Code impose a one hundred percent open space requirement for freshwater wetlands. The terms of the Memorandum, which implements the above provisions, expressly prohibits all development under any circumstances in "red-flag" wetlands. Thus, the Lots have been rendered unbuildable by operation of the Plan, the Code and the Memorandum, and Applicants have been deprived of all reasonable economic use of their Lots. 7. There are no variances or other administrative options available to the Applicants for development of the Lots. 8. The preferred relief under Policy 101.18.5 of the Plan and Section 9.5-173 of the Code, when beneficial use has been deprived by operation of the environmental policies or objectives contained in the Plan or application of Division 8 of the Land Development Regulations (Section 9.5-343 is contained in Division 8 of the Land Development Regulations), is government purchase of the property for just compensation. 9. The Applicants and the Planning Director have agreed that this is the preferred relief. PROPOSED DETERMINATION AND ST A TEMENT OF REMEDIAL ACTION In accordance with the provisions of Section 9.5-171 et seq. of the Code, my proposed determination is that the Applicants have been deprived of all reasonable economic use of their property by the operation of the Plan and Land Development Regulations of the Code, and that the appropriate remedial action is just compensation by purchase of the Lots in accordance with applicable provisions of the Plan and the Code. DONE AND ORDERED this ;;; /Jday of May, 2001. John J. Speci County of Monroe Department ofPlannin2 and Environmental Resources 2798 Overseas Highway, Suite 410 Marathon, Florida 33050 Voice: (305) 2892500 FAX: (305) 2892536 Board of County Commissioners Mayor George Neugent, Dist 2 Mayor Pro Tern Nora Williams, Dist. 4 Commissioner Sonny McCoy, Dist. 3 COmmissioner Dixie Spehar, Dist. I Commissioner Murray Nelson. Dist. 5 MEMORANDUM TO: John Wolf, Esq., Special Hearing Officer From: K. Marlene Conaway, Director Department of Planning and Environmental Resources Date: November 27, 2000 Subject: Aurelio & Maria Del Valle, Beneficial Use Case Background on Subject Property The applicant purchased the subject property in April 1990. The property is Lot 24, Block 10, Center Island Duck Key, according to the plat thereof recorded in Plat Book 5 page 82, of the public records of Monroe County. The subject lot is vacant and zoned IS-M. The County Biologist examined the property for environmental status in April 2000. Lot I 1 is characterized as a very high functional capacity "red flag" freshwater wetland. Permitting History No permits have been issued or applied for on this lot. Development Potential The improved Subdivision designation of the property allows one single family residential dwelling and accessory uses to be located on the lot. As an improved subdivision, it has no TDR value under the current code. The Monroe County Year 2010 Comprehensive Plan, January 4, 1996, Policy 102.1.1 includes a one hundred percent open space requirement for freshwater wetlands and a 50-foot buffer around freshwater resources. In 1998, the County completed a study (ADID, or Advanced Identification) of wetlands in Monroe County as directed in Plan Policy 204.1.1. A portion of the study included a method to "score" wet lots and assign a numeric value, which reflects the quality of the wetlands. A 1999 Memorandum of Agreement between Department of Community Affairs and Monroe County pursuant to Section 380.032, Florida Statutes implemented the scoring methodology and states that the interim standards contained in the agreement are to be strictly construed. Red-jIag wetlands are those wetlands whose high level of functional capacity and lack of disturbance prohibit development under any circumstances, according to the MOD. Therefore, this lot is considered unbui1dable. Eligibility for Beneficial Use Section 9.5-173 of the Monroe County Land Development Regulations requires the applicant to demonstrate that the 2010 Comprehensive Plan and the Land Development Regulations in effect at the time of the filing of the beneficial use application deprive the applicant of all reasonable use of his or her property. Policy 101.185 of the Comprehensive Plan defines "all reasonable economic use" as the minimum use of the property necessary to avoid a taking within a reasonable period of time as established by law. The subject property is a red-flag wetland; no portion may be filled and the lot must remain in a natural condition. Furthermore, the applicant has no avenues for obtaining a variance from the regulations for this lot. Therefore, the Planning Department finds that the applicant has been denied all reasonable economic use of his property and should be entitled to a favorable beneficial use determination. Relief under beneficial use The remedies available to an applicant for beneficial use include issuance of a building permit or just compensation by purchase of the property. Policy 101.18.5 2c) states that government purchase of the property is the preferred alternative when beneficial use has been deprived by application of Division 8 of the Land Development Regulations (Environmental Standards). Because of the quality of the wetlands on site and the Federal, State and County policies of preserving undisturbed freshwater wetlands, the Planning and Environmental Resources Department finds that just compensation is the preferred remedy for this applicant. This option has been followed for other lots in a similar situation on Duck Key. Recommendation: It is recommended that the Special Hearing Officer find that the applicant has been deprived of all reasonable economic uses of his property and is entitled to beneficial use relief. It is further recommended that an order be prepared that establishes this relief as the purchase of the lot by the Monroe County Land Authority. cc. Timothy McGarry, Director of Growth Management Mark Rosch, Monroe County Land Authority Andrew Tobin, Esq. Karen Cabanas, Esq. ~ ~ ~ .. ..,. ~ \... ~ . ~"~ .... . i> ~ _Z~ ~ i ..