Item F05
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 Samuel I. Burstyn, P.A.
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/Purchasing
Risk Management
DIVISION DIRECTOR APPROVAse-- ~
DOCUMENTATION: Included ---2L- To Follow Not required
AGENDA ITEM #
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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 APPUCATION OF SAMUEL I. BURSTYN. P.A.
WHEREAS, on January 4, 1996, the Monroe County Year 2010 Comprehensive Plan became
effective; and
WHEREAS, the application for Samuel I. Burstyn the determination for beneficial use was heard
by Special Master John J. Wolfe on December 18, 2000; 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 Beneficial Use Determination are APPROVED and it is determined that the
applicant has 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 Tem Dixie Spehar
Commissioner Murray Nelson
Commissioner George Neugent
Commissioner Nora Williams
(SEAL)
Attest: DANNY L. KOLHAGE, Clerk
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
By
By
Deputy Clerk
BENEFICIAL USE
MONROE COUNTY SPECIAL MASTER
In Re: Samuel I. 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 ofthe 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 ofthe Monroe County Code (the "Code"), and
whether the Applicants are entitled to relief under Policies contained in Obj ective 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 ofthis 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 developmen~ 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 of the 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 I 01.18.5 of the Plan and Section 9.5-173 ofthe 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
STATEMENT 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 ofthe 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 ofPlannin~ and
Environmental Resources
2798 Overseas Highway, Suite 410
Marathon, Florida 33050
Voice: (305) 289 2500
FAX: (305) 2892536
Board of County Commissionen
Mayor George Neugent, Dist 2
Mayor Pro Tem Nora Williams, Dist. 4
Commissioner Sonny McCoy, Dist. 3
Commissioner Murray Nelson, Dist 5
Commissioner Dixie Spehar. Dist. 1
MEMORANDUM
TO:
John Wolf, Esq., Special Hearing Officer
From:
K Marlene Conaway, Director
Department of Planning and Environmental Resources
Date:
November 13, 2000
Subject:
Samuel I. Burstyn, Beneficial Use Case
Background on Subject Property
The applicant purchased the subject property in March 1987. The property is Lot 11, Block 9,
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 11 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-flag wetlands are those wetlands whose high level of
functional capacity and lack of disturbance prohibit development under any circumstances,
according to the MOO. Therefore, this lot is considered unbuildable.
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 defmes "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 fmds 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.
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