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Item K2 BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: February 18.2004 Division: Growth Management Bulk Item: Yes No X Department: N/ A AGENDA ITEM WORDING: Discussion of staff report on revising the point system for land dedication under ROGO to award points to unbuildable platted SR, NA, and SS lots. ITEM BACKGROUND: At a previous meeting, the Board of County Commissioners requested the Growth Management Division staff to investigate the assigning of positive ROGO points for the dedication of unbuildable platted SR, NA, and SS zoned lots, similar to the two points now awarded buildable IS/URM lots. The staff has prepared a written report responding to the Board's request and will make a brief presentation on the report to the Board. Based on this presentation and the Board's discussion, if appropriate, the Board may want to provide additional policy guidance to the staff. PREVIOUS RELEVANT BOARD ACTION: Directed staff to investigate points awarded for land dedication under ROGO on December 17, 2003. CONTRACT/AGREEMENT CHANGES: N/A STAFF RECOMMENDATION: N/A TOTAL COST: N/A BUDGETED: N/A COST TO COUNTY: N/A SOURCE OF FUNDS: N/ A REVENUE PRODUCING: N/A AMOUNT PER MONTH: N/ A Year: N/ A APPROVED BY: County Attorney OMB/Purchasing _ Risk Management _ DIVISION DIRECTOR APPROVAL: Timothy 1. McG AIC, irector of Growth Management DOCUMENTATION: Included )( To follow Not required I Agenda Item No. ~ 2- DISPOSITION: County of Monroe Growth Mana!Zement Division 2798 Overseas Highway Suite 4 10 Marathon, florida 33050 Voice: 305.289. 2500 FAX: 305.289.2536 Board of County Commissioners Mayor Murray Nelson, District 5 Mayor Pro Tern David Rice, District 4 Comm. Charles "Sonny" McCoy, District 3 Comm. George Neugent, District 2 Comm. Dixie Spehar, District 1 MEMORANDUM TO: Board of County Commissioners FROM: Timothy J. McGarry, AICJJI1 Director of Growth Managl!1nt February 3, 2004 DATE: SUBJECT: Dedication of Platted SR, SS, and NA Lots under ROGO OVERVIEW At its December 17, 2003, regularly scheduled meeting, the Board directed the Growth Management Division staff to investigate revisions to the County's dedication policies under ROGO for unbuildable platted SR, SS, and NA zoned lots. This memorandum represents the staffs investigation of the issue and describes the course of action it is pursuing as a result of this investigation. POLICY AND AMDINISTRATION In order to have a basic understanding of the issues involved in revising the point system for land dedication under ROGO, it would be useful to go over the basic policy and administrative framework for this system. Comprehensive Plan The number of points to be awarded for eligible property dedicated under ROGO and criteria for such property is set forth in Policy 101.5.4(5) of the Year 2010 Comprehensive Plan. This policy states: "Application includes dedication to Monroe County of one vacant, legally platted, buildable (underlined for emphasis) lot or at least one (1) acre of unplatted, buildable land located within Conservation Areas or areas proposed for acquisition by governmental agencies for purposes of conservation or resource protection." J :\DOCUMENT\ROGO\dedicatedrogolotsr.doc Page 1 of7 This policy, not any policies under Goal 105 (i.e., Smart Growth/Tier System), is the controlling guidance for establishing and administering the awarding of points for land dedication under ROGO. Any revision in the number of points awarded for dedication and the type of parcelsllots eligible for dedication require an amendment to the Comprehensive Plan. A simple resolution of the Board of County Commissioners is insufficient to authorize a revision to the point system. Administration Section 9.5-122)(a)(5), Monroe County Code (MCC), implements Comprehensive Plan Policy 101.5.4(5). It provides further guidance for implementation purposes by defining the term "buildable" to mean construction of a dwelling unit or some other development could be permitted as determined by the Environmental Resources Director. This section of the Code requires that a lot or parcel must contain a sufficient amount of upland to be buildable. No definition is provided for what constitutes a "sufficient" amount of upland. Under authority granted by Section 9.5-24(a)(2)(h), Monroe County Code, the current and past County Planning Directors have routinely instituted policies for accepting and scoring land for dedication under ROGO through policy decisions and written administrative interpretations pursuant to the policy guidance and criteria in the Comprehensive Plan and Land Development Regulations. Under these policies, eligible properties are considered to be buildable, if they contain at least 2,000 square feet of uplands. The most recent policy interpretation (No. 03-124), which is consistent with historical policy and practices of the Planning and Environmental Resources Department, sets forth the following policies for accepting SR, NA, and SS-zoned platted lots and unplatted parcels for dedication under ROGO: I. Suburban Residential. A platted, SR zoned lot must contain a minimum lot size of 17,424 square feet (minimum size for transfer if the lot is disturbed) and have at least 2,000 square feet of uplands to be eligible to receive 2 points under ROGO dedication. [This is the minimum lot size in a SR district with the purchase of TDRs. Without TDRs, the minimum lot size for any SR zoned lot or parcel to be developed residentially is two (2) acres.] Ifthe platted SR lot is of insufficient size, it may be combined with another contiguous SR lot(s) to meet the minimum size requirements to be eligible for dedication under ROGO. If a SR parcel is not platted, it must be a minimum of one-acre in size with at least 2,000 square feet of uplands to be deemed buildable for residential development and eligible to receive 2 points under ROGO dedication. The SR parcel or a combination of contiguous parcels and/or lots must meet the one-acre minimum. Each additional one-acre with at least 2,000 square feet of upland also receives two (2) points. 2. Sparselv Settled (SS) and Native (NA). A SS or NA zoned parcel must be a minimum of one-acre in size with at least 2,000 square of uplands to be deemed J :\DOCUMENT\ROGO\dedicatedrogolotsr.doc Page 2 of7 buildable and eligible for ROGO dedication. The Comprehensive Plan is silent about treating SS or NA zoned lots that are platted but unbuildable. The County treats these lots the same as unplatted parcels and they may be aggregated to form the one-acre minimum. Each additional one-acre with at least 2,000 square feet of upland also receives two (2) points. It should be noted that the Comprehensive Plan dedication policies already favorably treat SS and NA properties differently than other properties in that the minimum lot size for these properties is two acres for SS and four acres or more for NA parcels to be buildable for residential purposes. The County requires that at least 2,000 square feet of uplands be contained for every acre of land to be dedicated to the County for ROGO purposes. CONCERNS AND ISSUES In investigating the concept of amending the County's Comprehensive Plan and Land Development Regulations to award points for dedication of platted and non-platted SR, NA, and SS zoned lots, the staff identified the following issues that need to be considered in making such revisions to the scoring system: o Consistency with the Comprehensive Plan o Considerations of fair market value, public policy, and equity Consistency with the Comprehensive Plan Any assignment of points for land dedication must meet be consistent with the goals, objectives, and policies of the Comprehensive Plan. As the Comprehensive Plan Policy 105.4(5) establishes the point system for land dedication under ROGO, it would need to be amended. However, consistency with the Comprehensive Plan is not a simple matter of just amending the language of Policy 105.4(5) or any other relevant policy. Consistency requires that any proposed plan amendment be internally consistent with and further the other goals, objectives and policies of the Comprehensive Plan. Several years ago, the County tried to expand the scope of lands eligible for ROGO dedication by amending the Comprehensive Plan to allow dedication of certain unbuildable lands and to award the same point value to these unbuildable lands as buildable land. That proposed amendment was found to be inconsistent with the Comprehensive Plan and Chapter 380, Florida Statutes, by the Department of Community Affairs. As expressed in the Comprehensive Plan, the primary purpose of the current land dedication policies in ROGO is to eliminate "developable" land from those areas proposed for public acquisition for conservation and resource protection. These 'buildable" lots and parcels not only provide a higher level of exposure to the County in terms of "takings claims" compared to J :\DOCUMENT\ROGO\dedicatedrogolotsr.doc Page 3 of7 unbuildable lands, but because of the existence of available infrastructure these lots pose a much more serious threat to environmentally significant and sensitive lands than unbuildable lots. However, the staff is of the opinion that the Comprehensive Plan does provide some precedent for differentiating between lots or parcels rendered unbuildable by density regulations (minimum lot size) and those made unbuildable due to environmental standards. The Comprehensive Plan already allows parcels of one-acre or more (primarily SS and NA zoned properties) that are unbuildable due to parcel size to be eligible for dedication under ROGO, if these parcels are deemed buildable. Therefore, in the professional opinion of the staff, any amendments to the Comprehensive Plan to award points to unbuildable platted lots or unplatted parcels equal to those for buildable ones could not meet this consistency test. Unbuildable lands should not receive equal consideration as buildable land in any dedication scoring scheme. Considerations of Fair Market Value, Public Policy, and Equity In any revision to the ROGO scoring system, consideration needs to be given to fair market value, public policy, and equity questions. Simply put, are the points awarded for each category of land to be dedicated generally consistent with their fair market value? Do the points to be awarded for specific types of land serve to work for or against public policy? Finally, is each class of property being treated in an equitable manner? Background on Lot Dedications and Market Values: To address these questions, it would first be useful to go over some of the historical and current numbers related to land dedication under ROGO. In the first 10.5 years of ROGO over 692 lots were dedicated to the County with the average price for ROGO lots (primarily IS/URM lots) reaching approximately $20,000 in 2003.1 With the designation of Conservation and Natural Areas in September 2003, the potential number of total acres eligible for land dedication increased under ROGO by over 14,300 acres and the number of potential buildable IS/URM lots eligible for dedication increased by almost 700. Within the boundaries of the Conservation and Natural Areas, the number of privately-owned non- wetlands lots are: SR - 609; SS -80; and NA - 2,538. The predominate type of lots dedicated over the 12 years of ROGO have been IS lots. This trend continues. Over the last year over 97% of lots determined by the County staff to be eligible for dedication were zoned IS. Although the supply of lots eligible for dedication has increased with the designation of Conservation and Natural Areas, it has not materially impacted the sales price of these properties purchased for dedication purposes under ROGO. It is apparent that the overall demand for such lots has kept pace with supply as applicants seek to acquire more points to be competitive in more desirable locations. It is also likely that some property owners may not be placing their lots on the J The average sales price is less where lots are purchased in bulk. J: \DOCUMENT\ROGO\dedicatedrogolotsr.doc Page 4 on private market to see what happens with the implementation of the Smart Growth/Tier System or holding out for a better deal such as a favorable court decision on the vesting of platted lots or obtaining a favorable administrative relief or beneficial use determination. Other property owners have sold their properties to the Land Authority, which has been targeting for purchase undeveloped subdivisions within environmentally sensitive areas. Although values depend upon location, habitat and other site specific factors, County records indicate that on the average purchase price of buildable platted lots within the Conservation and Natural Areas typically may run five or more times the cost of unbuildable platted lots. Property tax records reflect this difference. For example, within the Conservation and Natural Areas, the average assessed value of SR zoned lots of greater than 17,000 square feet in area (generally considered buildable) is about $42,600, while the average assessment of SR zoned lots ranging in size from 5,000 to 17,000 square feet (not considered buildable) is only approximately $5,800.2 Fair Market and Public Policy Value. If the estimated 3,500 vacant, unbuildable platted lots in SR, SS, and NA were made eligible to receive two (2) ROGO points, similar to buildable IS and URM, the market value of lots for ROGO dedication purposes would probably fall, at least initially until the supply of these cheaper lots is exhausted and the overall demand for ROGO lots increases, pushing up the price for all such remaining lots.3 With this action, the County would be directly interfering in the market place and artificially inflating the value of these properties. As these properties, which may have an average assessed value between $1,200 to $5,800, would have a much higher value on the private real estate market due to their eligibility to be dedicated to the County under ROGO.4 With this action, the government on one hand appears to be artificially raising the value of one class of property owners (i.e., unbuildable platted SR, SS, and NA lots), but is with the other, at least temporarily, taking away some value from another class of property owners (i.e., buildable IS lots). This action may provide further impetus to owners of buildable properties to withhold the sale of their properties, which will make them more expensive for acquisition by the County in the future. Furthermore, the staff believes that it puts the County's remaining sensitive environmental lands at increased risk to development, as it may further delay the dedication or acquisition of more expensive buildable lots increasing the possibility for court challenges and takings claims. Clearly the primary purpose for land dedication under ROGO to retire development rights within conservation and natural resource protection areas would not be well served by a scoring scheme that does not appropriately differentiate between buildable and unbuildable lands. The staff has always been concerned about the inequitable differences between positive ROGO points awarded for various "enhancements". Any such positive points should bear some reflection 2 These figures may be compared with the average assessed value of $10,855 for all buildable IS lots in Conservation and Natural Areas. The average assessed value for NA zoned lots in Conservation and Natural Areas is $1,153. 3 It should be noted, the staff believes that as demand increases for properties eligible for dedication, the cost of these properties will rise despite the supply as the overall demand will continue to shift higher due to competition for market rate ROGO awards. 4 The artificial increase in value is readily apparent when one considers that the average sales prices of lots to be dedicated under ROGO is over $20,000. J: \DOCUMENT\ROGO\dedicatedrogolotsr.doc Page 5 of7 to their overall market and public policy value and any revisions to the point system should reflect this consideration. Equity: The majority of platted SR, SS, and NA lots were rendered unbuildable due to changes in density regulations and environmental standards by the enactment of the 1986 Land Development Regulations. Some of these lots and parcels were also made difficult to develop or unbuildable by the 1973 zoning regulations. The 2010 Comprehensive Plan further impacted these properties through changes in wetlands regulations and increasing the minimum lot size of SR lots or parcels to two acres without TDRs. Therefore, the owners of many of these platted lots have or should have been aware for a long time about the costs and obstacles to building on properties either due to insufficient lot size, environmental open space requirements, and/or significant negative ROGO points. They should have no realistic expectations that they could ever develop without incurring significant cost. IS zoning was established in the 1986 regulations to accommodate property owners of platted lots with vested rights. These regulations vested these platted lots to density and use, and not as to any other land regulations. Unlike most platted SR, NA, and SS lots, which were made unbuildable by County regulations for many years, many IS and URM zoned lots have been made unbuildable by changes in the environmental regulations over the last ten years, particularly wetlands standards. Although the issue of statutory vesting of platted properties under Chapter 380, Florida Statutes, is still going through the judicial process, it appears that unbuildable platted lots, particularly those zoned NA and SS, do not reach the same level of vesting or claim to development rights as platted IS and URM lots under either the County's vested rights standards or common law. Therefore, the staff believes it would be inappropriate from both an equity and public policy standpoint to treat unbuildable platted SR, SS, and NA lots similar to buildable platted SR, IS, or URM lots in the ROGO dedication process. However, if the scoring can be adjusted to reflect the appropriate market and public value of these properties, some public purposes could be served by allowing certain unbuildable lots to be eligible for dedication under ROGO. It would provide another option for owners of these properties and an additional opportunity for closure on these properties. It may also facilitate the acquisition of lands needed to be consolidated with other acquired properties to provide more opportunities for restoration and connection of habitat patches, creation of buffers, and more efficient land management of conservation areas. CONCLUSIONS The staff finds that the proposal to award unbuildable platted SR, SS, and NA lots the same positive points for land dedication as buildable lots is not consistent with the Comprehensive Plan; does not reflect the fair market value or public policy value of these properties; conflicts with public acquisition priorities; may result in increases in overall land acquisition costs for the County; and inequitably treats different classes of property and their owners. J :\DOCUMENT\ROGO\dedicatedrogolotsr .doc Page 6 of7 The staff also finds that some good reasons do exist for considering the awarding of points for certain unbuildable platted lots, as long as the points awarded bear some relationship to their fair market and public policy value in a manner that treats differing classes of properties equitably. Such revisions to the ROGO scoring system would provide an additional option for property owners to obtain some return on their investment, facilitate the acquisition of lands and yield more opportunities for acquiring lands that need to be consolidated with other acquired properties for restoration of conservation areas. However, in its investigations, the staff has determined that it would not be very feasible to devise a scoring system for platted, but unbuildable SS and NA lots. SS lots require at least 2 acres to be buildable and NA lots require at least 4 acres or greater depending upon the environmental characteristics of the site. Neither a SS or NA lot or parcel is eligible to receive TDRs. Furthermore, by the very nature of their designation, platted, but unbuildable SS and NA lots contain wetlands and other environmental features that make them difficult and highly unlikely candidates to be ever developed. These properties are more appropriate for public acquisition through voluntary purchase programs rather than dedication under ROGO. The staff believes that a scoring system can be devised for platted SR lots that would reflect fair market and public policy value and would not treat this class of properties in a manner that was inequitable to other property classes. As these properties are considered developable for residential purposes at a minimum lot size of 17,424 square feet (with TDRs), a scoring system could be devised based on lot size that would be consistent with these criteria. Furthermore, these SR properties are more likely to be developed than platted SS and NA lots as they generally have less restrictive environmental features and are eligible for various low intensity non-residential development regardless of their lot size. Based on the above conclusions, the staff is preceding on developing possible options that would incorporate a point system for dedication of currently platted SR lots made unbuildable by the County's density regulations. One preliminary option that has been identified would would be to make unbuildable platted SR lots eligible to receive an award of 0.5 points for each 5,000 square feet of lot area dedicated [assumes buildable IS lots continue to be eligible to receive 2 points]. The specifics of any such revisions would depend upon final outcome of the comprehensive revisions that will be made to ROGO as part of the Smart Growth/Tier System. J :\DOCUMENT\ROGO\dedicatedrogolotsr.doc Page 7 of7 Elizabeth D. Miller, AICP 420 7th street, NW, Suite 216 Washington, DC 20004 Phone: 202-482-7246 I Cell: 202-210-0662 Monroe County Board of County Commissioners The Florida Keys Delivered via e-mail February 10, 2004 Re: ROGO Point Assignment to Legally Platted Lots in the Improved Subdivision Zone (IS) Lots 4-12, Square 16, Palma Sola Subdivision (PB1-115), Key Largo, Florida, and Block 8, Lot 18 in Ocean Park Village (PB4-14) in Key Largo, Florida Dear Honorable Members of the Board of County Commissioners: It is my understanding that the Commission and staff are considering amending the ROGO system to allow points to be assigned to SR lots made unbuildable by the County's density regulations. The purpose of this letter is to ask the Commission to seriously consider amending Monroe County's comprehensive plan and land development regulations to either: (1) allow ROGO points to be assigned to legally subdivided, platted lots in the Improved Subdivision (IS) zoning district; or (2) allow unbuildable IS zoned lots to obtain ROGO points if aggregated with adjacent buildable lots. Environmental regulations adopted after these lots were platted and purchased have classified some lots in this district unbuildable because of their environmental characteristics. These lots were legally established by the County's recording and acceptance of a plat, and subsequently zoned IS to recognize their vested rights. These lots could have been improved to construct a single-family home on each lot when the lots were purchased. I recognize that regulatory and market conditions change over time, and the State can realize multiple objectives (conservation, evacuation, etc.) by removing development rights from legally platted property. However, denying the opportunity to assign ROGO points to legally subdivided and platted land, regardless of their environmental characteristics in the IS zone, prohibits owners from reasonable use of their property. My family owns ten contiguous, legally platted lots purchased in the 1970s. Six lots can't be used because of their environmental characteristics as defined by Monroe County's growth management regulations. It was our expectation that we could build single-family residences on these lots when we purchased them. However, the County's ROGO system prohibits us from building on these lots or aggregating the lots to accumulate the points needed to build on adjacent buildable lots. Requiring us to purchase additional lots to accumulate ROGO points is not reasonable when we could aggregate lots and use the points to obtain permits on adjacent buildable lots. We are willing to dedicate, at no cost, the majority of our lots for conservation purposes, provided we can aggregate the legally platted lots to accumulate a point value to assign to our adjacent buildable lots which will allow us to recoup at least a minimal amount of our investment-backed expectation. Assigning ROGO points to IS zoned platted lands, regardless of its environmental characteristics will restore at least minimal use and value of the property. A win-win situation can be established. The State and County win because development rights would be removed from multiple lots at no cost to the County and the property owners win because at least minimal use and value of their property rights would be recognized, despite how the land is currently classified. I have twenty years experience as a certified planner in land use planning. I earned my master's degree in real estate from Harvard University and an undergraduate degree in landscape architecture from the University of Florida with a concentration in environmental studies. I am currently a Senior Planner and Project Officer for the National Capital Planning Commission in Washington DC. For more than 16 years, I was a Principal Planner in Palm Beach County, Florida and extensively involved in similar issues faced by Monroe County. A few of my responsibilities included writing and facilitating adoption of the State's first Tier System, an award-winning program adopted in Palm Beach County in 1999; and, policy development and implementation of Palm Beach County's growth management laws and land development regulations (early 1980s -late 1990s), including the County's transfer of development rights program. In other words, I am intimately familiar with and understand the challenges Monroe County faces in implementing the State's mandates; however it is crucial for the State and County to agree on a more reasonable policy to balance the County's growth management objectives and private property rights. Thank you for your serious consideration of the ROGO assignment issue at your Commission meeting on February 18, 2004. I respectfully urge you to make certain that the County include a provision in its comprehensive plan and land development regulations that: (1) allows all legally subdivided, platted lots in the IS zoning district to be assigned ROGO points; or (2) allows ROGO point value to be assigned to unbuildable IS zone lots which are aggregated and development rights retired. If you have any questions or would like to discuss, please don't hesitate to call me at the numbers above, or at home at (202) 248-1844. Additionally, I am also happy to arrange to fly home to meet with you or your staff personally on this matter in the near future. Sincerely, Elizabeth Miller, AICP Xc: Honorable Monroe County Board of County Commissioners Collene Castille, Secretary, Department of Community Affairs Timothy McGarry, Director, Growth Management Division K. Marlene Conaway, Director, Planning and Environmental Resources