Item P6
BOARD OF COUNTY COMMISSIONERS
Agenda Item Summary
Meeting Date
3/17/04
Division
County Attorney
AGENDA ITEM WORDING
Request to refer petition and request for hearing on non-ad valorem residential solid waste
assessments pursuant to Sec. 8-106, MCC, concerning Sombrero Resort to a Division of
Administrative Hearings officer and to authorize the County Attorney's office to make the necessary
arrangements including, but not limited to, executing a contract with DOAH to hold this hearing.
ITEM BACKGROUND
Appeal petition was filed on December 12, 2003. Sombrero Resort contends that some of its units
are not residential and, hence, should not be subject to the non-ad valorem residential assessment
but should be considered commercial units instead.
Counsel for the petitioner has advised that he requires up to 3 hours to present his case in support
of the petition at this quasi-judicial hearing. While the ordinance requires that the petition be
considered at a regular or special meeting of the BOCC, nothing prohibits the BOCC from referring
the matter to a hearing officer to receive testimony from witnesses and argument of counsel. The
hearing officer would make a recommendation to the BOCC to consider along with the record when it
considers the petition at a subsequent meeting. Referring the matter to a hearing officer would
eliminate time consuming process involved in an adversarial evidentiary hearing before the Board.
PREVIOUS RELEVANT BOCC ACTION
CONTRACT I AGREEMENT CHANGES
STAFF RECOMMENDATIONS
Approval.
TOTAL CQST @$1000.00
COST TO COUNTY
BUDGETED Yes
No
SOURCE OF FUNDS
APPROVED BY:
County Attorney _ OMB/Purchasing!
Risk Management!
DIVISION DIRECTOR APPROVAL:~~~ o~ \01-\., 'f
JOHN R. COLLINS
DOCUMENTATION:
Included xx!
To Follow!
Not Required !
AGENDA ITEM #
P0
l2/1~/~003 03:50
3058527162
COMM NELSON
PAGE 02
GOLDSTEIN, TANEN Be TRENCH, RA.
Law Offices
Writer's e-mail: keithQCB1attoa.com
One Biscayne T09iCf . Suite 3700
Two South Bm:aync BoulcvanI
Miami, l1lorida 33131
Te1ephoae (305) 374 - 32S0
PlClimUc (305) 374 -7632
December 12, 2003
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VIA FACSIMILE
Mayor Murray Nelson
Damaron Building, Suite II
99198 Overseas Highway
Key Largo, Florida 33037
Richard Collins, Esquire
County Attorney
1100 Simonton Street
Key West, Florida 33040
Re: Sombrero Resort Solid Waste Assessment
PETITION AND REQUEST FOR HEARING PURSUANT TO ~8-1 06 OF THE
MONROE COUNTY MUNICIPAL CODE
Dear Gentlemen:
On Wednesday, September 1 0,2003, CDI Investments, Inc. d/b/a tombrero Resort
and Lighthouse Marina ("Sombrero") appeared before the County Co~mtssion to object
to the Fiscal Year 2004 residential solid waste collection, disposal, and'recycling rates as
they pertain to the 99 units comprising the Sombrero Resort and Lighthouse Marina (68
of ~he units are developer owned and 31 are privately owned).
During the Commission meeting, James "Reggie" Paros, indicated that he was in
agreement with Sombrero's contention that it is improperly classified as residential
property. On September 16, 2003, Sombrero provided Mr. Paros a letter outlining its
arguments as to why Sombrero should be classified as commercial property for purposes
of the solid waste assessment as opposed to residential. After reviewing the matter, Mr.
Paros indicated that the County would not change the classification, concluding that the
Monroe County Property Appraiser deems Sombrero residential property. Subsequently,
Mr. Paros referred the matter to the County Attorney.
On November 13, 2003, Assistant County Attorney, Rob N. Wolf, notified Sombrero
that it is the County's formal position that the classification of Sombrero as residential is
correct under the County Code. It is Sombrero's position that the County Attorney and the
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COMM NELSON
PAGE 03
Mayor Murray Nelson
County Attorney Richard Collins
December 12, 2003
Page Two
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Property Appraiser inCOrreclfy classified Sombrero as residential and Sombrero herein tiles
its petition seeking to correct the classification.
Although the ownership structure of the resort Is condominium, the property is nof
USed as residential COndominium property. The Sombrero Resort is a commercial
enterprise and the majority of the condominium units are owned and controlled by
Sombrero Resort. Most of .the remaining P/iVa1ely owned unlts parlicJpate in Sombrero's
rental pool and are not used, or intended for use, as residential units.
The relevant definitions in the Monroe County Code Section 8-72 are the follOWing:
Cq) Commercial PropeTly shall mean all improved property ~h~ is not
utilized as residential property. ;' ,
Crr) Residential Property shall mean all improved property, or any portion
thereof, USed as a dwelling unit and includes "single-family dwelling units, "
"apartments. n "mobile homes," and .condominiums..
Cy) DweUing Unit shall mean any individual residential living type of structure
or building unll with kitchen facilities capable of being utilized for residential
living other than a motel or motel unit.
Cr) COndOminium shall mean a building or POrtion thereof containing one C1 )
Or more units In which eaCh Unl! is designed for ....sidential occupancy by
One (1) family only and which is owned pursuant to the proyjsions of Chapter
718. Florida Statutes (1988). or its successor in function.
The Sombrero Resort was built and develOPed as commercial property and was not
designed Or Intended for residential occupancy. Further, the definition of dwelling unll
specifically excludes hotel and motel units from the definition.
II is clear that the Sombrero properties are not "dWelling units," sln~they are molel
Or motel unlls, and that Sombrero is not a condominium as defined by tHe ~onroe County
Code since it was not designed tor residential occupancy. The 'USe of the word
"condominiums" in the definition of "residential property" is qualified by the phrase, "USed
as a dwelling unit." II is confOunding that this commercial property Is to be asseSsed by
Monroe County as residential property for pu'POses of solid Waste assessments.
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COMM NELSON
PAGE El4
Mayor Murray Nelson
County Attorney Richard Collins
December 12, 2003
Page Two
For the past several years the City of Marathon has correctly claJfied Sombrero
as a commercial resort. Monroe County's reclassification is incorrect ~ ~ matter of law
and defies common sense and logic. Accordingly, Sombrero respectfullY.requests that the
Board of County Commissioners correct the classification and reclassif}"Sofnbrero Resort
and Lighthouse Marina as commercial property not subject to the residential solid waste
assessments.
Very truly yours,
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KRG/pm
cc: Steven H. Dohan, Curator
. Krista Sruett
M:\DOHAN\DeMaraS\PleadfnQS\SOIid Wasla Petition.wpd
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