Item P12
BOARD OF COUNTY COM MISSlON ~I:RS
A(~E~DA rTF.l\'1 SlT\l:\1ARY
Meeting Date"...~o1.rch l-,i 2()\)~_
Hulk Item: Yes No .. .~_.."
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SiatlTontact P~r~oJ]: Bob Shillinger x3470
AG E N 1);\ ITEM \-\lOR HI:\G: Presentation of scttll~mcnt offer in Helen (( (JreJ!or rmnwrr \'.
.llonroe COff/!/V, CA P 02-S20.
ITEM BAC h:.G H:O I.! NO: lhe Fmmert~ mcd suit in ::002 s.ecking damages for a regulatory taking
they flllcgcd r~~sult(d Crom appiication or th(> Coullly' s, \......~tlanJ ['egulatimt:. tn ~heir vacant propelty in
Oc.ean Reef Th~ Emmerls. ~ub'ieqlJellt]y am~mted their compbillt with (l count seeki ng to have the
f..:ourt enjoin the County from appfy"ing any land dc.....ctopmcnt regulations. i:nacted aite!" Seplemb€I' 15..
1 ()X6, to the subject propeny, ba:scd on their aHegalion 0(' ves.led righls The ~uurl gnmt.ed the County"~
motion Cor panial summary judgmellt. and dismissed that count More rcccntly_ tbe Emmcns amended
their compbint to ~ncllldiJ d~~d(!mtory judgmcm claim::; se-eking to hav~ the Cuut! d~lar~ '.vhat, if <lllY,
.....cstcd rights lhey have to develup lh~ ~mhject property \vitnout regard to the County's wetland
regulatiollS. The 'f.:mmert~ argue that the Cou nty us-cd incomxt map~ in determining 1 he w~l bmls that
exi!>t Oll their propcny. The Emmcn<; propuse Jmpping their ~llit and tf1elr dil im for aHorney's fees and
costs if the Coumy aKre~s to iSliue rhe permit that they hilVC rcqUCSKd.
D~rek Howard, the County's colln~el conknds thaI the F:mmerts C(lrHlot sustaln any of their claims j~)I" a
mllnbCf of n:;ason~ induding statl1t.~ of limitat'orlj, coJ lateral estoPI'd, and iIlslLflicient evidenn.~
Coun:'.el auvises rhat th~ Fmmcrts could obtain a permit 10 build it hQuse within a footprint of 2,600
~ql:arc feet tom0I10v..... The Emmert.., l1owt'ver, seek to build v,..jtrlin a larger tbulpnrlt. CmHls~1 fimhcr
ad ...i~c~ thm the CJ->e is po~tured tor it County victory ailer the next f()und of motions hCJ!""i ngs
Tn date, the Calmty has expended appr(lximate!y $')5,nO{l jf] altorncv'~ fce~ jll det~mling t.hi:; aniof1
~)H,EVIOl)S RELEVANT ROCe ..\CTIO,'\: On Augu:':t 21, 2D02, the !1oard adopted re~olution
~48<~OO~ '..vl1id approved a Bcndki<il l.f.~e Det~mlina.tion order which authorized 11 ll1otliti~(:ltior1 of the
wedal1d regulations to permil u~)f ::.r,ldi,riolla I square footage il)l lhe pHJp{)S~1. hOllSC
CONTRACT/.."\G REEM E1'lT CHA NG ES: NJ A
ST A FF n.ECOi\1l\1El\ DA TIOJ\'S~ I .itigiltioll couns.el opposes. :-i~l dlng f~1r the proposed terllls.
TOTAL COST: n/a
COST TO COt "TY~ .IJ!~
Rf.""E.l\t.[ PRODLTI."'-IG; Yc~
No A.X
BUDGKlt:U; Yes ~o
SOl1RCE OF Fl1,~ns: !1/a
AI\10l1 NT Pt.~R MONTH n/a Year nia
I' I'PRO,"' E D BY ~
County' Auy _J<!.~..
OMH!Vurcl1asing _ Risk Management
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". U7.a.rmc A <Hu~dm. Interim COUnlv Atwmev
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DlVISIO" DIRECTOR API~ROV1\L:
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1\ m Rcqu lred
nISPOS1110N~
AG E(~ 1);\ ITEM H
County Attorney
AESOLUTJON ND___J4!_...z.gg2
A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS Of
MONROE COUNTY, EVIDENCING THE BOARD.S APPROVAL OF Ii
RECOMMENDED BENEFICIAL USE DETlERMINAnON PROMULGATED BY
THE SPECIAL MASTER, IN RE: THE APPUCAnON OF HELEN H.
EMMERT
WHEREAS, on January 4, 1996, the Monroe County Year 2010 Comprehensive P~an
became effective; and
WHEREAS, the application of HELEN EMMERT for determ~nat'on of beneficial use was
heard by Speci~1 Master John J. Wolfe on November 8, 2001; now therefore
BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE
COUNTY, FLORIDA, that:
The Ffndings of Fact, Conclusions of Law and recommendations of the Special Master
as set forth in the Proposed Partia~ Grant of Benefielal Use on the appncation of HELEN
EMMERT, are hereby APPROVED, subject to the conditions listed in the attached Proposed
Benelicial Use Determinationl dated May 23, 2002.
PASSED AND ADOPTED by tne Board of County Commlss.oners of Monroe County, Florida, at
a reg\llar meeting of the Board held on the 21st doy of August, 200"
Mayor MccOy
~~'o~~r Pr-o Tem Spehar
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BOARD OF COUNTY COMMISSIONE~S
OF MOI\IROE COUNTY, FLORIDA
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BENEF1CIAL USE
MOr-."ROE COUNTY SPECIAL MASTER
In Re: Helen H. Emmert
Beneficial Use ApplieatlQn
PROPOSED
PARTIAL GRANT OF BENEF1CLU USE
The applicatlon for a beneficial use dt.."termination was considere.d at a duly nohced hearing
on November 8, 2001, before John J. Wolfe, designated Beneficial Use Speclal Master for Monroe
County- Andr~w M, Tobin represented the ApplicaJlL Karen K. Cabanas represented Monroe
County. Having rev i ewo:l and heard all evidence pn::sented. testimony ofwitnes.ses and arguments
of counsel, the Wldersigned Hearing Officer makes the findings of fact and conclusions of law and
proposes the determmatlon as set fmth belm~.
ISSUE
\'Vhelher the Applicants have been denied all reasonable ~onomic Ulie of their propeny by
application of Polici cs 204,2,1 and 203,1 ,3 of the Y ~ar 20 10 Comprehensive Plan (the ..p Ian .'). and
w hethl:! the App lie IlIll!l are entitled l<l relief under Po licy 101.18. 5 of the Plan and Seclion 9.5-173
of the Monroe County Code (thc "Code"),
Whelher the additional effecl of the Ocean Reef deed TCstrictioll5 and building regulations
are 10 be COD5idered whi(:h, in combination with applicabte provisions of the Plan and ('...ode. make
the subject property mIDuildable.
FINDINGS OF FACT
1, The subject property is located at Harbor Course, Section Four, Ocean ReeL PIal
No, 13. Lot 2(,. Block 3, RE#0573670-002600 (tne "Lot"), and is within an bnproved Subdivision
(IS) land use district with a futute land use desi.gnationofResidential Mediwn (RM), The Lot is an
approximately 24.000 &quare fOOl wedge~shliped parcel and has existing homes on each side
2. In 1988. the O<::ean Reef Club on behalf of its members applied for a positjve
determination of vested rights to complete the remaining development contemplated by the 1977
Master Plan of the Ocean Reef Club.
3, The Ocean Reef Master Development Plan was formally vested under Res.olulions
539~198g and 478-1988. The Monroe CQunty BoardofCountyComrnissioners determined that the
1977 Master Plan should be ve81erl nby use and density categories in existence, prior to September
15, 1986-" This vesting did not exempt Ocean Reef properties from regulations promulgated to
protect environmental resources,
10) It~ ~ llWre ~
~ JUN 0 6 ZOO! ~,
4, Applicant purchased the Lot in 1983, believing the Lot was buHdablt:. At me ljme of
pUI1:hase, there were no regulations that would have prevented Applicant from filling the Lot or from
constructing the home depicted on the site plan introduced by Applicant at the hearing. and
previ ousl y subm i tied to the P.lanning Department.
), On March 23, 1999. County Biologist Jeanette Hobbs prepared a Letter of Cunenl
Site Conditions: which described a majority of the Lot as saltmarsh and buttonwood wetlands, POlii;)I
204.2,1 of tile Plan, adopted January 4. 1996. requires a 100% open ~ace ratio for undisturbed
saltmarsh and buttonwood wetlands. Attachc:d to h~ k:uer was a sketch showing the buildable area
of the property partly within the hammock area located near the front of the Lot.
6. The 10Q<l/o open space requirement results from the wetlands on the Lot being
considered "red flag" we!lands_ The wetlands have been cha.racterized as "undisturbed", though the
testimony demonstrates that they arc isolatc:d wetlands io that an area. of nn exists between s.uch
wetlands and lbc dredged canal known as Dispatch Creek IOGated at the rear of the Lot. The County
pamit!! dc:vdopml;:l1i with mitigation in wetlands areas other than "red (lag" wetlands. The Florida
Department of Environmental Protection and the U.S. A!Tl'IY Corps of Engineers would typi-cally
allow SOme development in these wetlands with appropriate mitIgation.
7, Pursuant to the Applicant's r~uest, on November 14. 1999, a pre-application letter
or understandi ng was prepan:d by County Planning Di rector Marlene Conaway which concluded that
due lo the inability to fi 11 <<red -flag" wetlands under the Code and the :setback requirements, only .'an
odd shaped.. smali upland area within the hammocks habitat at the eastem edge of the property is
available fnr development. This ilTegular area consists of approximately 1,800 square feet", The site
plan introduced by Applicant at the hearing was rejected because 2/3 of the site plan was in the
saltmarsh and buttonwood area,
8, On July 19,2001, My, Tobin. on behalf of applicant, submitted a wetland mitigation
proposal prcparro by Robert Smith, which proposed filling a pertion of the wetlands on lhe Lot <<in
exchlillge for CTealing a functional mangrove wetland habitat on the filledand disturbed area adjacent
to the canal on a 2:} basiS" (the Mitjgation Proposal"). The Mitigation Proposal Wa!: !i;uhmirted a~
the hearing, but continued to be unacceptable to the County based on the prohibition against filling
.'red-flagn wetlands and other rcasOrui testified lO by Jt:anene Hobbs.
9. The Lot is subject to the following priVIlc d~ restrictions and building re~'Ulatioru;
which are administered by the Ocean Reef Homeownen; Association and its Architectural Revi~'
Committee, to wit: a) the minimum size of the first nOM must be 1,400, square fcet" t:xdusivc of
porches, planters, garages. and pa.tios:~ b) a minimum roof overhang of 2 feet is required; e) no
porches or patios along a side of a structure that abuts an adjoining residence or let; d) a front
sethack of28 feet; e) a front setbacll:. above 12 feet must have a 12:] 2 setback slope: f) a side setback
of 18 feet; g) a side setback a.bove first 12 feet must have a 11: 12 setback slope. No fences or
obstnu:hons arc: permitted in the building setback areas.
10. Under Monroe County';s Land Development Regulations CillRs") and the Plan. the
Lot hll5 a buildable area of approximately 1,800 square feet.
11. Monroe County. through this process and pursuant 10 Section 9,5.173(a)(2) of the
Code, has agreed to panially grant the Applicant Beneficial Use in order to expand rht: hUlldable area
of the Lot l.O approximately 2,300 - 2.500 square feet ("'The RevisM BlIlld3ble Area"), by aUowing
the following:
1. With speclfic stonnwater ID3ll.iIgeTIlent measures, as set fom in the
8/21/2000 letter from Tim McGarry and pursuant In Policy 203,1.3
of the Pldn, the 50-foot wetland setback. may be reduced to 10 feet.
1. Reduction of the front yard 5e1b~k to 1:5 feet from the requim:l 25-
foot fron1 yard setback.
3. The Applicant may dear 40"/0;1 of the 5,459 square foot hammock
area.
12, The Ocean Reef Conununity Assocjation's ("ORCA") regulations require the
Applic:ant to maintain a 2g-foo~ fronl yard setback.
1]. Due to the 1ocation 0 f the wetland and hammock areas on the Lot, OJ. substantia:!
portior. of the R~vised Buildable Area is located within the ORCA-~uired 28-foot front yard
sctbfICk.
14. According to the testimony of David Ritz, the ORCA Community Administrator,
the A.rchilecluraJ Revie'W Committee is responsible for reviewing all plans for conformance with the
restrictions and building regulations at Ocean Re~f. rvtr. Ritz testified that when he learned about the-
County's proposed sIte plan showing approximately 2.300 square feet ofhui1dable area, he polled
the Architectural Review Committee and was informed they did not believe a variance was available,
~1r, Ritz noted in a letter dated June 27. 2001, that nine of the most recent built homes in Ocean
Reefhad an average 5izc of 4,333 square feet (If enclosed space, Mr. Rill did not believe that the
County's proposal was acceplable to ORCA given the design standards of other homes and the
community ch.aracter of Ocean Reef:
15. Due to the vested rights of Ocean Reef and jts unique circ urnstances as set forth in
various County documents submitted at the hearing, the County has in the past consistentJy
anempted to render dctenrunatjOl1s giving deference to the 1977 Master Plan.
16. The combination ofthe application of the applicable provisions of the Plan and Code,
primarily the County's prohibition of any development in <)-00 flag" wetlands, together with the
application oithe ORCA re!;mctions and ofbul1dlng regulations, primarily the setback requircm.enls,
make the Lot unbuildahle.
CONCLUSIONS OF LAW
17. Policy 101.18,5, provides that neither the provision:s of the Plan, nor tht: LOR'S
shaH deprive a property owner ofal] reasonable economic U&C ofa pared ofroal property which is
a lot or parcel ofrocord as oflhe date ofthc Plan. This policy further provides thai a property oWIlm-
may apply for relief from the literal application of applicable land we regulations OJ of the Plan
when such application would have the eff~t of denying an econonll(;ally reasonable use of that
property unless such deprivation is shoYrn to be necessary to prevent a nuisance or to protect the
health. safety and welfare of its dtio;n::i Ullder Florida Law. All reasonable economic use lS defined
as "the minimum use of the propeny ne<::essary to avoid a taking within a reasonable period oftime
as e~tabHshed by current land use case law",
18_ Seclion 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 thai ''the Comprehensive Plan and land develop-ment regulatlons" depri"Ve thl:
A ppl ieant of all reasonab le economic use of the Lot
19. As is made clear by Policy ] 01,1 g.5, the standards applied to determine whether a
regulatory taking has occurred are constitutionally ba.sed as set forth in current land use case law.
This subj~t has been addressed hy the U.S. Supreme Coun in a. number of cases. but there are lWO
notable cases applicable ~o the .facts presented here. Both c~es inyol....ed landowners who claimed
Ulat they had been deprived by government regulation of an economically beneficial use of th.eir
property,
In Lucas \I, South Carolina Coastal Council, 505 US. 1003, 112 5,0, 2886. 120 LEd, 798
(1992}, the property owner had purchllSed two ocean front lots to build single rarnlly hom~. Two
years laler aU development On the lots .....as prohibited by South Carohna's Beachfront Management
AC1, The Court confirmed the standard that when govenunent regulations deny all economically
bem:ficiaJ or productive use of land, the property o,",ller is entitled to compensation as a laking, In
lhe Lucas case dearly all use was prohibited.
In Palazzolo v. Rhode Isl<U'ld.. 533 U.S. 606. 121 S.U. 2448, 1:50 LEd. 2d 592 (2001), the
property owner ha.d purchased approx im ate! y 20 ac res 0 f I and for development. Many years later,
but prior to dev~lopment, regulations promulgated by the Rhode Island Coa...tal Resources
Management Council designated salt marshes of the type (}n the Palazzolo property as protected
coastal wetlands and signi ficarJtly limited development. \Vben his development projecl was turned
down. 1:11 ~ property own er sued all eging a taking under the ~ sti1Ildard, In t h.al Ca5Ct i.1. port.i on 0 f
the land was s.till developable, whi ch was ascCItained to have $200,000 of de'Velopmenl value. WhlJ e
this was significantly k:ss than the de\lelopmem value of the pan:el as a whole. tbe Supreme Court
I1pheld the Rhode lsland Supreme Court's holding that all economically beneficial use Was not
deprived. Jd at 630.
20. Applying the above standard to the facts prcs.cnll:.d hCJ~in of the Code, it has to be
concluded that The Plan and LDRs in effect at the time the Applicant filed the subjecl Beneficial
Use Application do not deny the Applicant all reasonable economic Us!:: ofthc- Lot. Applicoml could.
wilham consideration of the ORC A restrictions, construct a residence of approximately 1.800 s.q llare
feet. However. under Section 9.Sw 173('1)(2) and through this proceeding. Monroe County has agreed
tQ partially grant the Applicant Beneficial Use reJief as set forth in Paragraph 11 above, in order to
provide additional reasonable use of the Lot,
21. The relief granted herein provides the Applicant a 2,300-2.500 square foot Revised
Buildable Area. and said Area constitutes a reasonable economic use of the Lot.
22. ORCA 's deed restrictions iIIld building regula6oo.s are reasonable and serve as
legitima.te privateplannjng devices of the developers and owners of Ocean Reefpmperty. However,
while the Applicant maybe prohibited by ORCA from building >Vithin the portion of the required
28~f{X)t front yard setback otherwise permissible hy Monroe County, that deprivation of use lS not
caused by the Plan or LD~. Con~uently, the restrictions imposed by ORCA cannot serve as a
basis for BeneficiaJ Use relief.
PROPOSEDDETERNUNATION
As stated above, illlder existing law, I have fO conclude that the ApplJcant has not been
denied all reasonable economic USe ofthe Lot- However, with the combination ofthe Plan wd Code
provision~ and the ORCA restrictions, the Lot win almost certainly be unbuildable, This result is
due to the restrictive provisions of the Plan which prohibit a.ll development in ''n-rl_llagn wetlands
and which do not distinguish between isolated small wetlands surrounded by developed lots in a
long planned and dev eloped subd i vision versus larger tracts 0 fhigh quality ''red flag" wetland!>. This
i:,l a policy del.c:nnination contained in lhe Plan and due to the fact that wme, and more than a token,
reasonable economic use of the 1,01 remains, it is beyund the scope of authority granted to a
Beneficial Use Special Mastcr ~o go bf::yond the confines contained therein.
Based upon the above findings of Fact and Conduslons ofl..aw, T recommend m the Board
of County Commissioners that a final beneficial use detennirnuion be entered partially granting
Applicants' beneficial use application in acoordancewith the relief set fonh in Paragraph 11 above,
DONE AND ORDERED this 23111 day of May, 2002.
'I
John J.
,
Speci