Item S12
ADD-ON
BOARD OF COUNTY COMMISSION REVISION TO
AGENDA ITEM SUMMARY ITEM S-12
Meeting Date: 7/20/05 - KW Division County Attom~' s Office
Bulk Item: Yes --L No_ Staff Contact Person: Bob Shillinger
AGENDA ITEM WORDING:
Approval of Resolution amending Resolution No. 215-2005 (approved 6/15/05) to correct scrivener's
errors in Section 2. and Section 5. and add specific language to clarify the Board's Final Determination
DENYING the Beneficial Use Application filed by Merrick and Suzanne Kalan.
ITEM BACKGROUND:
Board Approval 4/20/05 to set and advertise Public Hearing for 6/15/05.
Public Hearing held 6/15/05.
PREVIOUS RELEVANT BOCC ACTION:
On 6/15/05 the BOCC approved the Proposed Determination of the Special Master DENYING the
Beneficial Use Application filed by Merrick and Suzanne Kalan. (Resolution No. 215-2005)
CONTRACT/AGREEMENT CHANGES:
STAFF RECOMMENDATIONS:
Approval.
TOTAL COST: N/A BUDGETED: Yes - No -
COST TO COUNTY: N/A SOURCE OF FUNDS:
REVENUE PRODUCING: Yes - No X AMOUNT PER MONTH___ Year
-
APPROVED BY: County Atty _ OMB/Purchasing _ Risk Management _
DIVISION DIRECTOR APPROVAL: ~;t(~TIORNEY
DOCUMENTATION: Included X Not Required_
DISPOSmON: AGENDAITEM# S-~l2
WIsd
Revised 2/05
County Attorney
RESOLUTION NO. -2005
A RESOLUTION OF THE BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY, FLORIDA,
, AMENDING RESOLUTION NO. 215-2005 TO CORRECT
SCRIVENER'S ERRORS AND ADD CLARIFYING
LANGUAGE ADOPTING THE PROPOSED
DETERMINATION OF THE SPECIAL MASTER AND
DENYING THE BENFICIAL USE DETERMINATION
APPLICATION OF MERRICK AND SUZANNE KALAN.
WHEREAS, a Special Master has issued a Beneficial Use Determination Recommended
Order upon the application of Merrick and Suzanne Kalan; and
WHEREAS, the Board of County Commissioners must take action on said
Recommended Order; and
WHEREAS, the Board of County Commissioners approved Resolution No. 215-2005 on
June 15,2005 which contained scrivener's errors and required further clarification as to the Final
Detennination of the Board, now therefore:
BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF
MONROE COUNTY, FLORIDA, as follows:
1. Authoritv to Act. Pursuant to Section 9.5-174, Monroe County Code, the Board
of County Commissioners has the authority to approve, deny, or modify a Beneficial Use
Determination Recommended Order issued by a Special Master. The decision by the Board of
County Commissioners shall be made during a public hearing at which the public shall be given
a right to be heard and make arguments for or against the proposed Determination. A duly
noticed public hearing on this matter was held on June 15,2005.
2. Procedural Findin2s. The Board of County Commissioners finds from the
record that Special Master John J. Wolfe conducted the Beneficial Use Determination hearing on
October 26, 2004, and said Special Master issued his written Beneficial Use Determination
Recommended Order on March 21, 2005. The Board further finds that the Special Master
conducted the evidentiary hearing in a manner consistent with Article VI, Monroe County Code,
and the Year 2010 Comprehensive Plan. A copy of the Special Master's Recommended Order,
ftfld it's Exhibit A", is hereby appended to, and made a part ot: this Resolution.
3. Approval and Adoption of Findin2S of Fact. The Board of County
Commissioners hereby APPROVES the Findings of Fact numbered I through 9 as contained in
the Recommended Order and ADOPTS the Findings of Fact as the findings of the Board.
4. Approval and Adoption of Conclusions of Law. The Board of County
Commissioners hereby APPROVES the Conclusions of Law numbered to through 13 as
contained in the Recommended Order and ADOPTS the Conclusions of Law as the conclusions
of the Board.
5. Adoption of ProoosedDetermination. The Board of County Commissioners
hereby DENIES APPROVES the Proposed Determination and ADOPTS it as the FINAL
DETERMINATION of the Board. The Final Determination is a DENIAL of the Applicant's
Beneficial Use Application.
PASSED AND ADOPTED by the Board of County Commissioners of Monroe County,
Florida, at a regular meeting of the Board held on the 20tb. day of July, 2005.
Mayor Spehar
Mayor Pro Tem McCoy
Commissioner Nelson
Commissioner Neugent
Commissioner Rice
(SEAL) BOARD OF COUNTY COMMISSIONERS
Attest: DANNY L.KOLHAGE, Clerk OF MONROE COUNTY, FLORIDA
By By
Deputy Clerk Dixie M. Spehar, Mayor/Chairperson
,..
('-........ , Ir~.
. .' I
BENEFICIAL USE I
.
MONROE COUNTY SPECIAL MASTER
I
In Re: Merrick and Suzanne Kalan
-Beneficial Use Application
/
PROPOSED
DENIAL OF BENEFICIAL USE
The above entitled matter was heard at a duly-advertised and regularly scheduled public
hearing on October 26, 2004, before John J. Wolfe, d<?signated Beneficial Use Special Master.
Andrew Tobin represented Merrick and Suzanne Kalan (the "Applicants''). Derek Howard
represented Monroe County and Director of Planning & Environmental Resources, Marlene
Conaway, Beth LaFleur, Planner and Administrative Assistant, Julie Thomson, were present for
Monroe County.
ISSUE
Whether the Applicants-have been denied allteasonableeconomic use of their property due
to the fact that they have not received buildingpeIhUts'fol- ilieirproperty, and whether the Applicants
are entitled to relief under the Policies of Objective 101.18.5 of the Monroe County Year 2010
Comprehensive Plan (the "Plan"), and Section 9.5-173 of the Monroe County Code (the "Code").
FINDINGS OF FACT
1. The property of the Applicants subject to this Hearing are unimproved lots located in
Cahill Pines and Palms Subdivision, Big Pine Key, and are zoned Improved Subdivision (IS). This
zoning allows one single family residential dwelling and accessory uses for each lot.
2. The Applicants purchased Lot 10, Block 4 (RE # 00244200~000000), in May, 1983 for
$55,000, and the adjoining Lot 11 (RE # 00244210-000000) for $1.00. The AppliCants purchased
Lot 18, Block 4 (RE # 00244280-000000) in July, 1983 for $26,000. Such lots are hereinafter
collectively referred to as the "Lots".
3. All ofthe Lots are upland lots located on a canal. The shoreline of Lot 10 has been altered
by a seawall. All of the Lots are nearly devoid of vegetation with the exception of some invasive
exotics on Lots 10 and 11 and the presence ofvarl()us native species along the southern property line
of Lot 18 and mangrove fringe on the shoreline of Lot 18.
4. The Applicants applied for building permits and entered the Rate of Growth Ordinance
("ROGO") allocation s-ystem on April 18, 1997. All lots on Big Pine Key scores a minus ten points
for critical habitat due to requirements in the Plan to protect the habitat of Key Deer. Thus, Big Pine
- -----
.'
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Key lots generally enter the ROGO system with relatively low point scores unless the applicant I
'purchases or combines lots to obtain a higher scoring. The Applicants did not do either. Each Lot
has a total of 18 ROGO points, which includes 10 perseverance points. They received one
I
perseverance point for each of the first four years in the ROGO system and two perseverance points
for each of the three years thereafter. They will continue to receive two perseverance points per year
as long as they are in the ROGO system.
5. The ROGO system allows applicants to apply for Administrative Relief after being in the
system for four years pursuant to ..code Section 9 .5-122.2( f). The Board of County Commissioners
conducts a hearing and may as a result of such hearing award an allocation(s) in the next succeeding
quarterly allocation period, offer to purchase the property at its fair market value, or suggest other
relief as may be necessary or appropriate. Applicants applied for Administrative Relief, but did so
one year after the deadline for applying, and thus are no longer eligible to apply for Administrative
Relief..
6. After receiving an allocation, an applicant in the ROGO system must also obtain a nutrient
reduction credit in order to obtain a building pennit. Nutrient reduction credits have been in short
supply in recent years, and 95 of the ] 59 persons who obtained allocation awards did not have
nutrient reduction credits. However, it is anticipated that Monroe County will obtain approximately
200 nutrient reduction credits in the near future with the Little Venice wastewater tr~tment plan
coming on line in Marathon. These would be handed out on a first come first serve basis.
7. After receiving an allocation award for a property located on Big Pine Key,an,applicant
also must obtain a letter of coordination from the U.S. Fish and Wildlife Service ("USF&W").
USF&W is not issuing any such letters until it has approved the Habitat Conservation Plan for Big
Pine Key (the "HCP"), which was submitted by the County approximately 18 months ago. Approval
had been expected by the County within 6 months.
8. At the date of the hearing, current allocations were not being made pending resolution of
an administrative hearing for a proposed rule which would restore some of previously lost ROGO
allocations. These allocations had been lost, because the State had detennined that the County had
not made sufficient progress in bringing waste water treatment plants on line. The State issued the
proposed rule after recognizing recent progress, but it was appealed by two groups. If approved, It
is expected that allocations which had been lost for the last two years would be restored. The County
is working on an ordinance which would protect the positions in line of persons like the Applicants
due to the delay caused by the appeal of the proposed rule. The last pre-allocation rankings_the Lots
received was for the fourth quarter of Year 12 ofROGO and covered the period from April 14, 2004
through July 13,2004. The pre-allocation rankings were 20,21 and 22. None of the lots with a
higher pre-allocation ranking for such quarter were located on Big Pine Key.
9. Eight market rate allocations may be issued each year on Big Pine Key. There are 32 which .
have been awarded, but no building pennits issued, because USF&W has not issued letters of
coordination. The proposed HCP would allow the last two years worth of unissued pennits to be
issued.
.. ('-')
.
.
CONCLUSIONS OF, LAW
r
10. The hnproved Subdivision designation of the Lots allows one single family residential
dwelling on each Lot, and there are no environmental constraints to development on the Lots.
11. Policy 101.18.5 of the Plan provides that neither the provisions of the Plan, nor the
LDR'S shall deprive a property owner of all reasonable economic use of a parcel of real property
which is a lot or parcel of record as of the date of the plan. This policy further provides that a
property owner. may apply for relief from the literal application. of applicable land use .regulations f
or of the Plan when such application would have the effect of denying all economically reasonable -'
use of that property, unless such deprivation is shown to be necessary to prevent a nuisance or to I
protect the health, safety and welfare of its citizens under Florida law. All reasonable economic use
is defined as "the minimum use of the property necessary to av<;>id a taking within a reasonable
period of time as established by current land use case law".
II
12. Section 9.5-173 ofthe 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.
I .
13; }\pplyingthe above standard to the facts presented herein, it has to be concluded that the
Plan an.4,9t~L,I::>~~~on()t deny the Applicants all reasonableeconomic~ use of the Lots. The
Applic~iscoul(O~~ve filed for Administrative Relief in a' time~ymanner after four years in the
. . . - .
system, but did not do so. Failing that, the RaGa system awards two perseverance points per year
after year four instead of one. This significantly enhances the competitive position of the Applicants
in RaGa. The Applicants also could have combined Lots 10 and 11 for additional points or
purchased one or more lots for dedication and obtained additional points. The County and the State
have agreed upon a Rule to make up for some ofthe previously lost allocations due to the failure of
the County to adequately address waste water treatinent. If this Rule, presently on appeal by two
groups, is upheld, there will be additional allocations available. The County has passed the HCP and I
is waiting on USF&W to respond. This would free up the letter of coordination requirement. In
addition, if the proposed ordinance goes into effect, the Applicant's positions in line will be
protected by not allowing new applicants to "buy their way" ahead of the Applicants.
,
PROPOSED DETERMINATION
WHEREFORE, I recommend to the Board of County Commissioners that a final beneficial
use determination be entered denying Applicants' beneficial use applications.
DONE AND ORDERED this 21st day of March, 2005.
John J.
Special\.
County Attorney
RESOLUTION NO. 215 -2005
A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF
MONROE COUNTY, APPROVING A BENEFICIAL USE
DETERMINATION RECOMMENDED ORDER UPON THE
APPLICATION OF MERRICK AND SUZANNE KALAN.
WHEREAS, a Special Master has issued a Beneficial Use Determination Recommended
Order upon the application of Merrick and Suzanne Kalan; and
WHEREAS, the Board of County Commissioners must take action on said
Recommended Order; now therefore:
BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF
MONROE COUNTY, FLORIDA, as follows:
1. Authoritv to Act. Pursuant to Section 9.5-174, Monroe County Code, the Board
of County Commissioners is the authority to approve, deny, or modify a Beneficial Use
Determination Recommended Order issued by a Special Master. The decision by the Board of
County Commissioners shall be made during a public hearing at which the public shall be given
a right to be heard and make arguments for or against the proposed Determination. A duly
noticed public hearing on this matter was held on June 15,2005.
2. Procedural Findines. The Board of County Commissioners finds from the
record that Special Master John 1. Wolfe conducted the Beneficial Use Determination hearing on
October 26, 2004, and said Special Master issued his written Beneficial Use Determination
Recommended Order on March 21, 2005. The Board further finds that the Special Master
conducted the evidentiary hearing in a manner consistent with Article VI, Monroe County Code,
and the Year 2010 Comprehensive Plan. A copy of the Special Master's Recommended Order
and its "Exhibit A" is hereby appended to, and made a part of, this Resolution.
3. ADDroval and AdoDtion of Findines of Fact. The Board of County
Commissioners hereby APPROVES the Findings of Fact numbered I through 9 as contained in
the Recommended Order and ADOPTS the Findings of Fact as the findings of the Board.
4. ADDroval and AdoDtion of Conclusions of Law. The Board of County
Commissioners hereby APPROVES the Conclusions of Law numbered 10 through 13 as
contained in the Recommended Order and ADOPTS the Conclusions of Law as the conclusions
of the Board.
.
5. Adoption of Proposed Determination. The Board of County Commissioners
hereby DENIES the Proposed Determination and ADOPTS it as the FINAL DETERMINATION
of the Board.
PASSED AND ADOPTED by the Board of County Commissioners of Monroe County,
Florida, at a regular meeting of the Board held on the 15th day of June, 2005.
Yes
Yes
Yes
Yes
Yes
BOARD OF COUNTY COMMISSIONERS
OFMONR~rm~
L~ja- . ~
By:
Dixie M. Spehar, Mayor/Chairperson
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MONROE COUNTY ATTORNEY
~~v~s TO FORM:
- JOHN R. COLLINS
CO~~T~TORNEY __
Dals_D"\\ 0 \ --
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BOARD OF C()1.:~TY CO'n'lISSI0~
AG ~~ N OA 1TF..l\f SU"\1A RY
\'I~t;Ting rh! e' !,''::~)'' \)~_ .:-J( \\' Di vision rq~ill1L~J [Orne\" ~J)ffin'
Bulk hem Yes X ~n SlatTContact Pt~rsol1: Hob ~hillinger
AG ~:~ [).-\ I'I'r1\-1 WOH:IHi'iG;
:\ppa)\ alto amend Rt'So/U!/0I1 ;\"0, : 15-_~(J05 (approved 6,: 1 ,:,'()) 1 to (,om.xt sc:ri\ enc( s. errors in
:';~UI(NJ ~ and .\"'CIUH1 5 and add :-;pecific language [0 dari1~' the Board's Final DClt,:rmination
D(:,;"\ )T\.;(J dw llcnct.~~jal l'sc: .o\ppl;cation tiled by \1errick and SU7(illnt: K"lan
ITEM R\CKGROl.I~D;
Board !\ppr ovat 4i~O/O:,- 1 0 ~d and ath,~..tist' Public H~al'ing. (~"l1' 6....! 5/05,
Puhl i\..' Hearing held t,: 1.0;,"05
Pt{[VJOliS RELE\,-:\yr nOeL .\eTIO;':
On 0,: 1 ).'0';; lhe BOCC appro\."L"d the Frup(),~t.>d De/ermmaflOu ,)t"thc Special \1as.ter DE:'-J\T\G the
Belldic:ial L ~e Appljc:ation ftled hy l\.'ferrick itfld Sll7.(Lnne Kahm (l{~.~()IUfiml :\'0, ~ /5-1()05)
COY f'R"\(" r".\G REE :\lE~T C II.\~G E S:
----.--.
STAFF RECDll \1 K"l ll,\T10:"-lS:
Approval
TOTAL COST: ,\:'...i, 1Il.!DGETED: Ye<; '.:l}
COST TO COL\;T\':__"\:"A SUtRCE 0." I'TNDS:
REVE~lTE PRODl.iClNG; y~~s _ No _..X AI\10lJNT PER MOt\TH Y~ar _
..-\ P PRO\T D BY ~ (" OLJntv ,..\.tt:-o' __ 0 \1 B/I-'urchasi ng __,_ Ris.J... \tanf:iy,cment ..,_,
t. /.
DJY1SJO~ llIRf:(TOR ,\prROYAL~ ,/ ;..c~2 Ud.~.{~'n t- 'll \ '\, \,q,~'_.,...,
~JOH' R COI J .U'\'S. COl~~TY A TTOR\iEY
DOCT M t:NTATIOI\: Included X \Jot Required_,
DISPOSlTIO:\:_____ ... ..\GI::NDA HE'l it
J{C\ I ~l 2/0 'i
County Attorne)"
(Amf"nd{'d 7/20105)
A \,1 f(:">lD['[)
RESOLl1TJO~ NO. 215-2005
A RESOLUTION OF TIU: HOARD OF COllYI'Y COMI\1ISSIONt:RS OF
I\lON KOt. C()L[\T}'~ A PPROVIN G ,\ BEN l::FJCI A L LSE
DET[RMI~A TION RECO'l M E1\ OEV ORDER llPON THE
'\1~1~L1CA TION" 0.1" 1\'1 UtRICK Ar\D SU/",At'I'l'iT K:\LA~.
',"'HE REAS, a Spccia I r\"1aster has. issued a Bendj L:ial the Dcterm~no1.tion R~conHncndcd
Order upml lhe appllcmion of Merrick and Suzanne KaJan; and
'\'H EREAS. the B<mnl or County Co 111111 i s,~ i on ers nlllS t take action on said
Recommcnde:d Ordcr~ nm'" theref()fc:
BE IT IU:SOL VED BY Tltt: IJOARD OF (.~Ol1XrY COMMISSIONERS or
MOr\ROE COU'\TV. FLORID/\., 3'S fonows;
1. Aulhorth' fo Act. Pur:suant to Scuion 9,:>)-174, 1'....1onme Coumy Code. the Hoard
of Coullty Commissioner,; is. th~ alllhorily to approve, deny, or modit\, ~ Beneficial l Is.e
DClcrmination Recommended Order is-sued by fl Special \1aster, The dt.,:cision by: the lloard or
County Comrnissioner'i ~hall be made during a public hearing at wh,ch the public sh<l[l be given
a right to be heard and make arguments for or Llgai Il!;t the proposed Ddcrmination, A duly
noticed puhlic hearing on this mattcr was hdd on June IS. 2005,
2. Proc~dural FiDdin~. The Board of County Commis~iont'r~ i1nds from the
record lhat Special \<1 aster john J Wolfe c:tmJucted the Bcneficial Use Determination hearing. on
October 26, ~004, and :-;aid Special Master issued hi) \\Tilten Beneficial Use Determination
Recommended Order on \.1arl"h 21, 2005_ The Board furth~r flnd~ that the Spccial Master
(;Qfldllded the evidentlary hearing in a manner consistent wlth Artide VI, Monroe Coumy Code,
and the Year :ZOlO Comprehensive Plan, A copy of the Special \faster',- Recommendcd Order
and it:'; "Exhibit 1\" is hcreby appcnded to, and made a part uC lhi:<:: Re50lul1oll.
J. AuprO\-':l 1 lmd Adoption or Findine,.s of I'ad. Tile Board & County
CommissiOlwrs i"wrcbj' APPROVES the Flllding5 or Fact tlumbered 1 through {) a.. contained in
the ReL:Ommemled Order ami ADOPTS the hnditlgs of Fact as th~ flndiJ]g~ oi"the Board,
4. Apnroval and AdODtion of Condu:!lions: of Law, The Board of County
Cnmmis,q.jouers hereby APPROVES the C onclusion~ of La",' TlLlmllered IO through 13 as
con.taj ned ill the .Kt~com mended Order (:l nd /\ DOPTS the Conclus.ions of Lav.' as tbe cOlldusions
of the Hoard,
~. Adoption or ProlJost'd Octf'rmin,:iliou. Th~~ Board of Counly Commissloncrs
hereby DFf\.WS .:.~rPROVEs. the Propused Delenninalion and ADOPTS it a~ [he FP\ A[,
Df::n':I{Vfjf\ATIO;..J of 1I1~ Board, Ih~..fjJ1a] Delcr:mjnation is <.\ DE~IAL ,of.Jhc App I ical~( So
Ucncficii-ll L'~t~ Ap-phC:Hlion"
PASSED AI\D Al>OI~'l'f:l) hy the Board of County Commi"sioner~ or [\,1onroe County,
Florida, at a regular mcctjllg of the Hoard held on the 20Lh. day ofJuly, 2005,
~-1ayor Spehar --.-.
1\.,1 a)" or Pro Tem McCoy
Com m i SSi()ller Nelson
---. ..
Com m i s.siOllcr NeugeTll -....
C ormnis,;ioncr RLCC ,-
(SEAL} llOAlUl OF COUNTY C01\.'lMISSIONLRS
At tesl. DAKKY L. KOLllAG 1:"" C It~rk OF MO~ROL cau \fry. FLORIDA
13y --- I~y ___... ... -.
I Jcputy Clerk Dixie \1 Spehar, 7\'"1aYOJ/Chairpcr~on
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COllntv Attorncv
- .
RESOLlTIO.'\i NO, .-. ,.- -2005
"-~~
A RESOLLrTIO~ OF THE BOARD OF COUNTY COMMISSIOI\ERS OF
MO~ RO.~ COUNTY, APPROVING A BE~EFI(,IAL USE
DrTE: K\ll~'''\' nON RECO'I.'\IEN DED ORDF:R [PO~ THE
AI)PUCA TIO'- OF \IERRICK ,\."jD SliZA" r"'iF. K"\L.\~.
, ..................... -..L
WH EREAS, a Special f\,1as.ter has. issued a Beneficia! Use Dctcrmi Ilation Recom mended
Order upon the application of!\.1enick and SULanne Kalan: and
\VH EREAS. lhe Goard of (' aunty Commis.~iDner.. must take action on said
I{IXO[ll mended Ordcr~ now therefore
Rf: n RESOLVf:() BY THF BOARD OF COU~TY CO\1MISSIONERS OF
\10:' HO.: CO L \IT)". FI.O H: II)A. as follows;
1. Aurhorib (0 Act. Pursuant w Section 9, 5~ 174, !\.1onroe County Code, the Board
of County Conllll ~ssioncrs j s the authority to approve, deny, or modi t~, a Beneficial Use
Deterlllination Recommended Order issued by a Spcciat Master, The decision by the Bo<,ud of
l. ounty C. ommi ssioners shall be made during a pub 1 ic heari ng at ".'hich the public shall be gi\en
a right to be heard and make arguments for or against the proposed Dcterm i nation, A duly
nOliced pLJ blic heari Ilg on this. matter waS. held on June l::;, 2005
2. P roced ural Fi II d in e.s. The Board of County Commissioners finds from lhe
record lhat Special Master John j, Wo[fe conducted the Benefi.cialU1'le Determination hearing on
October ::!n, 2004. and said Special \1aster tssued his written Beneficial lhe Determlnalion
Recommended Order on :\-larch 2 L 2005, The Board further finds that the Special Mas.ter
conducted the evidenti ilry heari ng in a manner conslstcnt ........ith Arlicle VI, Monroe C mmty Code,
and the Year 2m 0 Comprehensive Plan, A copy of the Special Ma~ler's Rec:ommellded Order
and its. "Exhibit A"" tS hereby appended to, and made a pan of, this Resolulion,
3. ApprovaJ and AdoDtion of Findines of Fact. The B nard of County
Commis.sion~rs h~reby APPROVES the Findings of Fact numbered I through 9 as contained in
the RccommeJld~d Order and ADOPTS the Findings of Fan as lhe findings of the Bua.rd
4. A()oroval and Adootjlln of Conclu!liolls of Law, The Board of County
Commi5sioners hereby APPROVFS the Conclusions of Law numbered 10 through 13 as
contained in the Recommended Order and ADOPTS the Concluslons of La\-\, as lhe conclu~iul1S
of the Board,
5. AdoD'lon of ProDosl"d llr.tt."Tminatiol1. The Hoard of County C ommi ssjonCfS
her~by DE)JIES the Propos.ed Determination and ADOPTS il as. the FI~AL DETER\lINA nOK
of the lloard
PASSED AND ADOPTED by the Board of County Commissioners of \1onroe Counly,
Florida, at a regular meeting of the Board he!d on the l51~ day of June, :W05,
\fayor Spehar '::'e~
Vlayor Pro Tern McCoy' Ye:B
CUffimi"..ioner ~elson Ye::;
Com In; S si 0 ncr .N ell g en t Yes
Commi8s'ioner Rice Ye.=; , -
!
(SEAL} '.. 80ARD OF COU NTY COM.\IISSIONF.RS
, ,-\, tten: or "ONR~~U~NTmO~
~'7'1" L ,Kp"I..-HA(;F.. Clerk L Jju . ~
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By &-;J;, C. ~ B.: -..- .----. . .
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DCpuh Clerk Dj",ic M. Spehar, .f\..1a.\ QriCllHirpcrson
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n.E~J.::.HCJAL USE
~-1 Oi\lN OE COUNTY SPt:CIAI. 1\-1 ASTER
in Re~ Merrick ~illd Suzanne Kalan
- Benellci [ll Use Applj(,:{.ltion
..
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PROPOSED
DENJAL 011 BENEFICIAL liSE
lhe above entillcd mflttcr v...'[lS heard at a duly-advcJtised and regularly scbeduled public
heariIlg on October 26, 2004, bel{lH:: Juhn 1. Wolfe, design<lled BendiciaJ Use Special Master,
Andre\v Tobin f(':pTe~cnled \.Jerrjck and SUZ<lrIIl(: Kalan (the <".-'\pplic:ants."), Derek J IO\vard
fl.--prCSC!1tf:d Monroe C olJnly ~~nJ Director of Pl anning & Environment'll Resources. l'vLllknc
Conaway, Belh L<lFknr, Planner and ^JHliTli~tmtivc Assi stant, Julie Tbomson, were present f()T
1'....1onroe County.
1 SSlJE
Whet.her the Applicants h<Jvc been denied alJ rea,:>onable l.:;C0IlOmic usc of their property Jut:
lO the tact lhat lbcy havc not receiverl building permits for their propel1y, alld whether the Applicants
are t:nlltkJ to rdief UJldl~r the Pol icics of Ohj edive 10 L 18. 5 of the \1 on.roe County Year 2010
Comprehensive Plan {(he '.Plan"), and Section 9.5-173 (lfthe \1omot: County Code (the 'TQde").
FINDJN"GS OlllACT
1. "The prope~1y of the Applicants subject 10 this HCflring <Ire unimproved lots. located in
Cahill Pines and Palms Subdivisjon, Bjg Pi ne Key, and arC zoned Improved ~ubdjvision (lS). This
zoning allows one ~ingle family rcsiJcntifll dwelling anri acce~sory uses for each lot.
2, The Applicants pun:hascd Lot 10, Block 4 (RE"# 00244200-000000): in May, 19tO for
$55,000, and tbe ildjoinjllg Lot 11 (RE # 002442t 0-000000) for $1,00, The Applicants purc:hasell
Lot 18, Block 4 (RE tt 002442~O-OOOOOO) in July, 19&3 for $26,000. Such lots are herejnafter
collt:dive1y referred to a.'\ the "1.ot:-;".
J, A]] of the 1,01." are up] <lmllols located on a canal, TJ1e shorel ine of1.ot 10 has b~en altered
by a sCfl\vfllL All of thc Lots ,'He ne\1rly devoid of vegcmtion \vith the exception of some invasive
exmic:s on T ,ot<:; 10 and 11 and the pn::,~enec ofvariOlls native sped es along the south~m property line
of Lot 1 tl and m;:mgrovc fri~lgC on ~he shoreljne of T .ot 1 g.
4, The ^ pplici.'lfits appli l~d fo! buil diJlg permjts and entereJ lbl: Rate of Grovdh Ordjnance
("ROGO") alloc:ation system Ull April 1 R, 1997. All lots on Big Pine Key scores a mjnus tt:n points
r()r critj cal habitat due lO requircmcI1ts jn the Plan to protect the habi t01l () l" Key Deer. Thm;, lljg Plne
--.--..-- -..- .....-. .....-.. -. .-......-.. .... ..... -. ......-.... . . .. .... . .... -. ...... ... - . ........ - . ... ... ... -.. .... ..
,
Key lots generally enter the ROllO sy~tem with rdati\cly low pojnt SClll"es unJel's the ~pp1icant
p\]fdla.~es Or c:ombincs lots to obtain a higher scoring. TIle Appli l';iHlt~ did not do ei lhcr. Each Lot
has a total of 1 S RUGO point,;, \vhich inc1\ldes 1 0 rtrs~verancc po~nts. TIlCY received one
perseverance point {in each of the first four year.; in tht: ROGO system .'md two per.-:;.everance points
f()r c[lch of the three ye'-lTS thereafter. TIlCY will continue to receive twu pem::vcrancc points per year ,
as 10llg as t.ht:y an~ in thc ROGO system.
5. The ROGO :-;ystun allows 3pplicants to apply f(Jr AdrniIListwlive Relief after beillg in the
Sy.~tt'1Il [or fom years pursuant to Code Section 9,5-122,2(f), The Bo;:nd ofCounty Commissioners
CDJ1ducts (i lleari ng and 11l<lY a:-; ~ rl'sult of such hearing ([ward an al1ocdllon(s) in the next succeeding
quarlcrly allocation pl,:riod, offer to purchase the properly al its fair market value, or sug;.gest othtT
rei ief i.l':'- may be neces.~ary or apprupriate, ApphcJnts. appli ed f{}f Administrati vC Rd je[, hIlt did so
One year after tlle deadline for [lpplying, anri thus an:: no longcr eligible to flpply for Arlministralive
Relief. .
6. A ncr rCl:c:i ving ~m al locati on. o.n ilPP] leant in the ROGO Sy~l(,"Hl rnHst ;)lso obtain a nutrient
reduclion credil in order to ohtain a b ullJlng p~~rmit. ::-Jutrj ent reduction credits ha n:: been in sllo~t
supply in recent YC i\(S , and 95 of the 1 ",9 persons who obtained fl1 location awards did not have
TIlllrll'nt n:::Judion Cfl:t.lits:. HOwc...."CT, it is anti cipated tb:It Monro~ Counly wiH obtain approximflteJy
200 nutrient reduui on credit!> 1n the m::ar JiLtun:: with the LittJe Venice wastewater treatment plan
coming on HJl(~ in Marathon, These would be handed oul on a first come first serve basis.
7. A -Rer receiving an a1 loc<Jlion <lwarc.l f()r a propCrlY located on Big Pine Key, an appJicant
also nmst obtf'lin [j letter of coordjmltion from the U, S. }i~h and W1ldli fOe Servlce ("USF & W").
USF & \V is nN isslIlng any sueh letters until it }lflS approved the I bbif<lt Om~ervation Plan for Big
Pine Key (the "HCP"), which \vas submitteJ by thl: Counly approximately 1 g months ago. Approval
had been ex peeted by the CClUnty "vit hin 6 months.
8, A t the dale of the hearing, t:urrent allo~a{lons were not being made pending resolutlon of
;:m administmtivc hearing for fl proposed nlle ,vJ)ich would restore some ofpn::viously lost ROGO
alloeatlon.s._ Thest: <lllocatiomi h<ld been losl, hCt:<lmc the State bad dctcnnincd that the County had
not m<lrle ,suffi cJ ent progress in bringing waste water tre<ltment plants on line" The State issucd the
proposed ruk aftn recognizing rccent progrcss, but it was appealed by two groups. if approved, It
is ex pecteJ that allOC(ltiQllS which Jlad heen lost for the lasl two yeap.> would be restored. TIle County
is working on rlJl ordinance which would protect the positions in line of persons ljke the Applicants
dl1C to the dday causeJ by the appeal 0 r the propo:-;ed rule. The last prt-allocation rankings the Lots
rtl:C"ived \va1:> for the fourth quarter ofY ear J 2 of ROCiO and covered the period from April ]4,2004
through hl1y J 3. 2004. The prc-<lHocation rankings Wl.'I'C 20, 21 and 22. !\'OIlC of the Jots with a
higber pre-al1QcatiQJl f\1nk.iDg for such qualier were locMed on Big Pine Key.
0. Fight market rate (lj ]('ICillioIlS m\'lY be issu~'d each year 011 ! Ii g Pine Key. TJlere are 32 \vhich
h,lVe been awarded. hut nO builJing pmTIlts i.~sued, hecause USF&W ha:-1 not issucd ldters of
coordination. The proposed JK"P wmdct [lllow the last two years wonh of unissued permits to he
issue(L
. ,
.
.
CONCLl~SIOj\S OF LA W
10, The Improved Subdivision designatiol1 of 1rH:~ l,ob allO\vs one single bmily n::siJcntial
J \vclling on eacb I.ot, and tl1en: are no enviro11lm:ntJl constraints to development on the Lots,
j 1, Poljcy 10 1.1 ~,5 of the Plan provides tklt neither the provi;<;ion.~ 0 j" the Plan, nor lht;
LDR'S shall depri've a properly oWller of all reawnilhlc economic use of [1 parcel of real property
whidl i.:; a lot Or parcel of Iecord as of the date of the phm. Thjs po~ky further provides that a
property owner may ;lpply for rdjef fmm tbe literal appllc<ltion of applicabk land USl: regulalion~
or of the Plan when suc.h applic.ation would havt: the effect of denyjng all ~:coJlOmicaHy reasaBa blc
use of tbat property, \mJ ess such dcpri viltioJl is show!} to be nt:(:e.~sary to prcvt::nt a nUlsanct: or 10
proteclthe health, sakty and w'dfirc oi"its citizCHS under Florida Jaw. AlJ reasonable economic use
is defined as "the minimum use of the property .necessary to aV<,11d <I taking: within a reasonahle
p~rioJ of lime as cSli."lblisl~C"J by ClLrrnlt land IJSl: eaSe; law".
12. Secti on 9,5. J 73 of the Code- impkml':Jlts the procedure contemplated by Polky ] 0 J . l S. 5
anJ pmviJe.'i that in orJcr to ,-,~t<lhl ish an enl i t!em tTIt 10 f:k:n die itl 1 , Use I clid~ an applicant IT] ust
del)l()n<;tr(lte that ,.t he C omprch<~nsj",c PJ nn [uld !and devc]opmel1t regu lations" deprive tbe applicant
of all rcasouflblc CCOllOmic usc of"tbe Lot.
1 J.. Applying the (lbov~~ swndn(t"l to the facts presented ]lcrein, it hilS to be conduded tbat the
Plan and the lDRs do nol deny the A ppl ic<.mts all reasonahle economic use of lhe r .ols. The
1\ ppJlcants muld have filed for Aom ill istratjve Rd ief i 11 a ttmdy manner after four yeJ.rs in the
sy.~tem. but did not do <;0- f,'ail i ng th(lt, the ROGO system (Hvards two perseverance points per year
after yeilf four instc<ld of one, This si gniJlcantly' crJwnccs the compGtitivc position ofthc Applicanl~
in ROGO. TIlt:: AppllGmt:-; al:-oo wu1d have CCll1lbined 1-ot.~ Wand 11 ('or additional points or
purcha:-;ed one or mpre 101s for deeJic.1tiO!l ('Iud obtf'lillCd additional poims. Tbe County and the State
have agreed upon a Rule to makG up Jor some of the prt:\'iou~ly lost allocations due to the failure of
tbe COlJnty to <JJt:qwlldy address waste water tlefltment. If thjs Rule. presently on flppcal by two
groups., is upheld, t11cre wjlJ be addilioIlal aHocations a vailable_ The Counly has passed the HCP and ,
is ,vaiting on USF&\V to responJ, This would free up the letter of coordination requirement, In
addition, if the propo.~ed oldi n;l1]CC roes into effect, the Applicant's positions in line 'will be
protected by not fllJowing Bel',,' npplicanls to '<huy their way" <lhe<ld of the Applicants.
,
PROPOSED DETERMINATION
WllI.::REFORE~ I recommelld to tbe Board of County Commissjoners thflt a final beneficial
use Jdennination he entered denying i\pplicanl~' bem::fi(:ial use <JppllcalloDS.
DONE AND ORDERED 111i, 21'1 d.y 01" Ma"l1, 2005. c- '-'
,\ A' " /
" /V~;J'/ ;;
/ : //"'r~ . - ~
John J. \yolk" .',
Spt::clal.'tyfaSltT
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