Item P1
BOARD OF COUNTY COMMISSIONERS
Agenda Item Summary
Meeting Date
August 18, 2004
Division
County Attorney
AGENDA ITEM WORDING
Public Hearing on Resolution of Recommended Order of Beneficial Use on the applications
of Steve Miller and Tonia Sledd.
ITEM BACKGROUND
Special Master John J. Wolfe issued a Recommended Order of Beneficial Use Determination.
PREVIOUS RELEVANT BOCC ACTION:
Adoption of Monroe County 2010 Comprehensive Plan and ROGO.
CONTRACT/AGREEMENT CHANGES
STAFF RECOMMENDATIONS
Approval.
TOTAL COST
BUDGETED Yes No
COST TO COUNTY
SOURCE OF FUNDS
APPROVED BY:
County Attorney _ OMB/Purchasing
Risk Management
DIVISION DIRECTOR APPROVAL:qoLlk tJ7/21/4Y
JOHN R. COLLINS '
DOCUMENTATION:
Included .~
To Follow
Not Required
AGENDA ITEM # b
County Attorney'
RESOLUTION NO.
-2004
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 STEVE
MILLER AND TONIA SLEDD
WHEREAS, on January 4, 1996, the Monroe County Year 2010 Comprehensive Plan
became effective; and
WHEREAS, the application of Steve Miller and Tonia Sledd for determination of
beneficial use was heard by Special Master John J. Wolfe on March 25, 2004; 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 determination are APPROVED and the application of
Steve Miller and Tonia Sledd Is accordingly APPROVED, subject to the conditions listed In
the attached Proposed Beneficial Use Determination, dated May 7, 2004
PASSED AND ADOPTED by the Board of County Commissioners of Monroe County,
Florida, at a regular meeting of the Board held on the 18th day of August, 2004.
Mayor Nelson
Mayor Pro Tem Rice
Commissioner McCoy
Commjssioner Neugent
Commissioner Spehar
(SEAL) .
Attest: DANNY L.KOLHAGE, Clerk
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
By
Deputy Clerk
By
Mayor/Chairperson
7/27/2004
:;.....
BENEFICIAL USE
MONROE COUNTY SPECIAL MASTER
In Re: Steve Miller and Tonia Sledd
Beneficial Use Application
/
PROPOSED
PARTIAL GRANT OF BENEFICIAL USE
The application for a beneficial use determination was considered at a duly noticed hearing
on March 25, 2004, before John J. Wolfe, designated Beneficial Use Special Master for Monroe
County. Andrew M. Tobin represented the Applicant. Robert Shillinger represented Monroe County.
Having reviewed and heard all evidence presented, testimony of witnesses and arguments of counsel,
the undersigned Hearing Officer makes the findings offact and conclusions oflaw and proposes the
determination as set forth below.
ISSUE
Whether the Applicants have been denied all reasonable economic use of their property by
application of Sections 9.5 - 339.2, Automatic High Quality Forest Designation, and '9.5 - 347, Open
Space Requirements, of the Monroe County Code (the "Code"), and whether the Applicants are
entitled to relief under Policy 101.18.5 of the Year 2010 Comprehensive Plan (the "Plan") and
Section 9.5-173 of the Code.
FINDINGS OF FACT
1. The subject property is located at 227 South Harbor Drive, Key Largo, Florida
33037, and is described as Lot 15, Block 3, Bay Harbor, Amended Plat, according to the Plat
thereof, as recorded in Plat Book 2, Page 91, ofthe Public records of Monroe County, Florida (the
"Lot"), and is within an Improved Subdivision (IS) land use district. The Lot is a 5,068.5 square foot
parcel and has existing homes on each side.
2. The Applicants filed an application to build a single family residence on the Lot in
September, 2003. The Lot is contiguous with, and part of, a large hardwood hammock area that
exceeds thirteen (13) acres in size. The application included a Habitat Evaluation Index (HEI)
prepared by a consultant hired by the applicant establishing the quality of the hammock on the Lot
as "moderate quality". However, County staff determined that the Lot was "high quality" because,
according to Code Section 9.5-339.2, Automatic High Quality Forest Classification, "Tropical
hardwood hammocks of twelve and one-half acres of more in size shall be classified as high quality
hammocks".
z:\...\clients\planning commission\...\miller-sledd detennination
'.
as "the minimum use of the property necessary to avoid a taking within a reasonable period of time
as established by current land use case law".
8. Section 9.5-173 of the Code implements the procedure contemplated by Policy
101.18.5 and provides that in order to establish an entitlement to Beneficial Use relief an Applicant
must demonstrate that "the Comprehensive Plan and land development regulations" deprive the
Applicant of all reasonable economic use of the Lot.
9. As is made clear by Policy 101.18.5, the standards applied to determine whether a
regulatory taking has occurred are constitutionally based as set forth in current land use case law.
This subject has been addressed by the U.S. Supreme Court in a number of cases, but there are two
notable cases applicable to the facts presented here. Both cases involved landowners who claimed
that they had been deprived by government regulation of all economically beneficial use of their
property.
In Lucas v. South Carolina Coastal Council, 505 U.S. 1003,112 S.Ct. 2886, 120 L.Ed. 798
(1992), the property owner had purchased two ocean front lots to build single family homes. Two
years later all development on the lots was prohibited by South Carolina's Beachfront Management
Act. The Court confirmed the standard that when government regulations deny all economically
beneficial or productive use of land, the property owner is entitled to compensation as a taking. In
the Lucas case clearly all use was prohibited.
In Palazzolo v. Rhode Island, 533 U.S. 606, 121 S.Ct. 2448, 150 L.Ed. 2d 592 (2001), the
property owner had purchased approximately 20 acres ofland for development. Many years later,
but prior to development, regulations promulgated by the Rhode Island Coastal Resources
Management Council designated salt marshes of the type on the Palazzolo property as protected
coastal wetlands and significantly limited development. When his development project was turned
down, the property owner sued alleging a taking under the Lucas standard. In that case, a portion of
the land was still developable, which was ascertained to have $200,000 of development value. While
this was significantly less than the development value of the parcel as a whole, the Supreme Court
upheld the Rhode Island Supreme Court's holding that all economically beneficial use was not
deprived. Id at 630.
10. Applying the above standard to the facts presented herein of the Code, it has to be
concluded that The Plan and LDRs in effect at the time the Applicant filed the subject Beneficial
Use Application do not deny the Applicant all reasonable economic use of the Lot, but does deny
the Applicant substantial economic use. Applicant could construct a residence of approximately
1,014 square feet. However, under Section 9.5-173(a)(2) and through this proceeding, Monroe
County has agreed to partially grant the Applicant Beneficial Use relief as set forth in Paragraph 6
above, in order to provide additional reasonable use of the Lot.
11. The relief granted herein provides the Applicant a 2,000 square foot buildable area,
which constitutes a reasonable economic use of the Lot.
z:\...\c1ients\planning commission\...\miller-sledd determination
PROPOSED DETERMINATION
As stated above, the Applicant has not been denied all reasonable economic use of the Lot.
However, as Staff has noted, the required automatic designation as high quality forest ignores the
actual lesser quality of the vegetation on the Lot and denies the applicant reasonable economic use
of a substantial portion of the Lot. A literal application of the Code would actually make the
removal of the invasive exotics less likely, whereas granting a building permit would require
removal of the invasive exotics and make the Lot more compatible with the contiguous hammock.
It would also be more consistent with relief granted in similar situations pursuant to the Code.
Based upon the above Findings of Fact and Conclusions of Law, I recommend to the Board
of County Commissioners that a final beneficial use determination be entered partially granting
Applicants' beneficial use application in accordance with the relief set forth in Paragraph 6 above.
DONE AND ORDERED this 7th day of May, 2004.
z:\...\clients\planning commission\...\miller-sledd detennination