Item S11BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: September 21, 2012 Division: Growth Management
Bulk Item: Yes _ No X Department: Planning & Environmental Resources
Staff Contact Person/Phone #: Christine Hurley — 289-2500
Joseph Haberman - 289-2532
AGENDA ITEM WORDING: A public hearing to consider an Ordinance establishing Section 110-144 of the
Monroe County Code, creating a regulation directing Growth Management Division staff on how to review and act upon
building permit applications for a site with a known unlawful use that is prohibited by the Land Development Code.
ITEM BACKGROUND: Following the effective date of Ordinance #2012-008, July 1, 2012, MCC §6-107 has been
removed from the Monroe County Code. The rationale for abolishing the section and its provisions relates to floodplain
management issues, not land use issues. Monroe County has floodplain compliance programs to assure illegal post -FIRM
structures below base flood elevation and the violations associated with such structures are remedied.
Although normally used as a mechanism to rectify floodplain management related violations on a site by withholding
building permit application approvals, the provisions set forth in MCC §6-107 have also been utilized as a mechanism to
rectify land use related violations. There is not a regulation with similar language in the Land Development Code. The
Land Development Code should be amended to continue providing a building permit plan reviewer, with an option to not
approve a permit application if there is a known unlawful use on the site that cannot be permitted after -the -fact by the
building permit application in which the reviewer is reviewing. This would not be applicable to nonconforming uses.
Doing such would not be inconsistent with the rationale for abolishing MCC §6-107, as that amendment was carried out
for legalities specifically associated with floodplain management, not land use. Further, as land use is controlled by
regulations in the Land Development Code, not in MCC Chapter 6, such a regulation would be more appropriately located
in the Land Development Code.
Planners who review applications for land use issues need a specific regulation to cite in order to withhold the issuance of
a building permit (excluding those related to life and safety) on a site that has a known violation related to a permitted use.
It is inappropriate and contradictory for the County to allow improvements on a site that would facilitate and/or improve
an unlawful use that cannot be permitted. Such could be viewed as a tacit approval of the unlawful use or recognition that
it is lawful. Further, the County needs mechanisms to eliminate non -approved unlawful uses that are beyond the time
limitations of code enforcement prosecution (4 years).
During a regularly scheduled meeting held on April 24, 2012, the DRC reviewed the subject request and recommended
approval to the BOCC. During regularly scheduled meetings held on May 30, 2012 and June 27, 2012, the Planning
Commission reviewed the subject request and recommended approval to the BOCC.
PREVIOUS RELEVANT BOCC ACTION:
On April 17, 2002, the BOCC adopted Ordinance #010-2002, which among other changes amended the requirements
related to processing building permits on sites with unlawful uses and improvements in MCC Section 6-26. The section
was later renumbered as MCC Section 6-107.
On April 18, 2012, the BOCC adopted Ordinance #2012-008, which removed the provisions set forth in MCC Section 6-
107 from MCC Chapter 6, Buildings and Construction.
This item was heard and discussed by the BOCC at the August 15, 2012 meeting in Key Largo. The BOCC decided to
continue the public hearing on the item to the September 21, 2012 meeting in Marathon.
CONTRACT/AGREEMENT CHANGES: n/a
STAFF RECOMMENDATIONS: Approval.
TOTAL COST: INDIRECT COST: _
DIFFERENTIAL OF LOCAL PREFERENCE:
COST TO COUNTY:
REVENUE PRODUCING: Yes No
BUDGETED: Yes No
SOURCE OF FUNDS:
AMOUNT PER MONTH Year
APPROVED BY: County Atty x OMB/Purchasing Risk Management
DOCUMENTATION: Included x Not Required
DISPOSITION: AGENDA ITEM #
MONROE COUNTY PLANNING & ENviRoNMENTAL RESOURCES DEPARTMENT
We strive to be caring, professional and fair
To: Monroe County Board of County Commissioners
Through: Christine Hurley, AICP, Director of Growth Management
Townsley Schwab, Senior Director of Planning & Environmental Resources
From: Joseph Haberman, AICP, Planning & Development Review Manager
Date: August 20, 2012
Subject: AN ORDINANCE BY THE MONROE COUNTY BOARD OF COUNTY
COMMISSIONERS AMENDING THE MONROE COUNTY CODE TO ADD
SECTION 110-144, UNLAWFUL LAND USES; ESTABLISHING PROCEDURES
TO REVIEW AND ACT UPON BUILDING PERMIT APPLICATIONS FOR A
SITE WITH A KNOWN UNLAWFUL USE, PROVIDING FOR SEVERABILITY;
PROVIDING FOR REPEAL OF CONFLICTING PROVISIONS; PROVIDING
FOR TRANSMITTAL TO THE STATE LAND PLANNING AGENCY AND THE
SECRETARY OF STATE; PROVIDING FOR CODIFICATION, PROVIDING
FOR AN EFFECTIVE DATE.
Meeting: September 21, 2012 (continued from August 15, 2012)
2 I RE UEST
3
4 The Planning & Environmental Resources Department is proposing an amendment to the text
5 of the Monroe County Code (MCC) to establish a new section, §110-144, in order to create a
6 regulation directing Growth Management Division staff on how to review and act upon
7 building permit applications for a site with a known unlawful use that is prohibited by the
8 Land Development Code.
9
10 II RELEVANT PRIOR COUNTY ACTIONS:
11
12 On April 17, 2002, the BOCC adopted Ordinance #010-2002, which among other changes,
13 amended the requirements related to processing building permits on sites with unlawful uses
14 and improvements in MCC §6-26. The section was later renumbered as MCC §6-107.
15
16 On April 18, 2012, the BOCC adopted Ordinance #2012-008, which removed the provisions
17 set forth in MCC §6-107 from MCC Chapter 6, Buildings and Construction (attached).
18
19 During a regularly scheduled meeting held on April 24, 2012, the Development Review
20 Committee reviewed the subject request and recommended approval to the BOCC.
21
Page 1 of 4 (File #2012-038)
I During regularly scheduled meetings held on May 30, 2012 and June 27, 2012, the Planning
2 Commission reviewed the subject request and recommended approval to the BOCC.
3
4 III REVIEW
5
6 Following the effective date of Ordinance #2012-008, July 1, 2012, MCC §6-107 has been
7 removed from the Monroe County Code. The rationale for abolishing the section and its
8 provisions relates to floodplain management issues, not land use issues. Monroe County has
9 floodplain compliance programs to assure illegal post -FIRM structures below base flood
10 elevation and the violations associated with such structures are remedied. Further, a new
11 Certificate of Compliance Program has been proposed to the Federal Emergency
12 Management Agency (FEMA). If the program is approved and implemented, MCC §6-107
13 would have been unusable for floodplain management regulation enforcement.
14
15 Although normally used as a mechanism to rectify floodplain management related violations
16 on a site by withholding building permit application approvals, the provisions set forth in
17 MCC §6-107 have also been utilized as a mechanism to rectify land use related violations.
18 There is not a regulation with similar language in the Land Development Code. The Land
19 Development Code should be amended to continue providing a building permit plan
20 reviewer, with an option to not approve a permit application if there is a known unlawful use
21 on the site that cannot be permitted after -the -fact by the building permit application in which
22 the reviewer is reviewing. Doing such would not be inconsistent with the rationale for
23 abolishing MCC §6-107, as that amendment was carried out for legalities specifically
24 associated with floodplain management, not land use. Further, as land use is controlled by
25 regulations in the Land Development Code, not in MCC Chapter 6, such a regulation would
26 be more appropriately located in the Land Development Code.
27
28 As a note, this proposed amendment is not contingent on the abolishment of MCC §6-107. If
29 the amendment to abolish MCC §6-107 is appealed and it is decided that the provisions
30 should remain in MCC Chapter 6, Buildings and Construction, the provisions of this
31 proposed section would be consistent with those set forth in MCC §6-107 and would not
32 necessarily be redundant in that they would not be located in the same chapter of the Monroe
33 County Code.
34
35 Planners who review applications for land use issues need a specific regulation to cite in
36 order to withhold the issuance of a building permit (excluding those related to life and safety)
37 on a site that has a known violation related to land use. It is inappropriate and contradictory
38 for the County to allow improvements on a site that would facilitate and/or improve an
39 unlawful use that cannot be permitted. Such could be viewed as a tacit approval of the
40 unlawful use or recognition that it is lawful. Further, the County needs mechanisms to
41 eliminate non -approved unlawful uses that are beyond the time limitations of code
42 enforcement prosecution. This proposed amendment uses the language of MCC §6-107 as a
43 base. The notable differences are a) the proposed amendment applies to any unlawful use,
44 not only those existing on the effective date of the ordinance establishing the section and b)
45 the proposed amendment applies only to unlawful uses and not "improvements" which is an
46 undefined_term.in the Land -Development Code.
Page 2 of 4 (File #2012-038)
1 Therefore, staff recommends the following changes (Deletions are s'r and
2 additions are underlined. Text to remain the same is in black):
3
4 Sec. 110-144. Unlawful es.
5
42 IV RECOMMENDATION
43
44 Staff has found that the proposed text amendment would be consistent with the provisions of
45 §102-158(d)(5)(b): 1. Changed projections (e.g., regarding public service needs) from those
46 on which the text or .boundary was based; 2. Changed assumptions (e.g., regarding
Page 3 of 4 (File #2012-038)
I demographic trends); 3. Data errors, including errors in mapping, vegetative types and
2 natural features described in volume I of the plan; 4. New issues; 5. Recognition of a need for
3 additional detail or comprehensiveness; or 6. Data updates. Specifically, staff has found that
4 the proposed text amendments are necessary due to new issues.
5
6 Staff recommends that the Board of County Commissioners amend the Monroe County Code
7 as stated in the text of this staff report.
Page 4 of 4 (File #2012-038)
MONROE COUNTY, FLORIDA
MONROE COUNTY BOARD OF COUNTY COMMISSIONERS
ORDINANCE NO. -2012
AN ORDINANCE BY THE MONROE COUNTY BOARD OF
COUNTY COMMISSIONERS AMENDING THE MONROE
COUNTY CODE TO ADD SECTION 110-144, UNLAWFUL LAND
USES; ESTABLISHING PROCEDURES TO REVIEW AND ACT
UPON BUILDING PERMIT APPLICATIONS FOR A SITE WITH
A KNOWN UNLAWFUL USE; PROVIDING FOR SEVERABILITY;
PROVIDING FOR REPEAL OF CONFLICTING PROVISIONS;
PROVIDING FOR TRANSMITTAL TO THE STATE LAND
PLANNING AGENCY AND THE SECRETARY OF STATE;
PROVIDING FOR CODIFICATION; PROVIDING FOR AN
EFFECTIVE DATE.
WHEREAS, Planners who review applications for land use issues need a specific regulation to
cite in order to withhold the issuance of a building permit (excluding those related to life and
safety) on a site that has a known violation related to land use; and
WHEREAS, it is inappropriate and contradictory for the County to allow improvements on a
site that would facilitate and/or improve an unlawful use that cannot be permitted. Such could be
viewed as a tacit approval of the unlawful use or recognition that it is lawful. Further, the
County needs mechanisms to eliminate non -approved unlawful uses that are beyond the time
limitations of code enforcement prosecution; and
WHEREAS, during a regularly scheduled meeting held on April 24, 2012, the Monroe County
Development Review Committee reviewed the ordinance and recommended approval to the
Board of County Commissioners; and
WHEREAS, during regularly scheduled public hearings held on May 30, 2012 and June 27,
2012, the Planning Commission reviewed the ordinance and recommended approval to the Board
of County Commissioners.
NOW, THEREFORE, BE IT ORDAINED BY THE MONROE COUNTY BOARD OF
COUNTY COMMISSIONERS:
Section 1. Section 110-144 shall be established as follows (deletions are stFiekea dffea and
additions are underlined):
Pagel of 3
Sec.110-144. Unlawful land uses.
The term unlaw&l land use, as used in this section, means anv land use that has not received
a permit or other official approval from the division of growth management and cannot be
approved on a given site pursuant to the permitted uses set forth in chapter 130, article III of
this Land Development Code and/or policies related to permitted land uses in the
Comprehensive Plan.
a Building_permit application improving a known, unlawful land use. The planning and
environmental resources department shall not approve anv building_ permit application for
an improvement to a structure with a known, unlawful land use until the unlawful land
use is either a) permitted in accordance with the Land Development Code or b)
eliminated.
b) Building permit application not related to a known, unlawful land use. The planning and
environmental resources department may approve a building permit application on a site
with a known, unlawful land use if it is determined that the scope of work would not
improve or facilitate the unlawful land use. In the event of such an approval, the County
shall place a notation on the permit that the approval does not condone or approve the
unlawful land use and inform the applicant that the property owner is subject to possible
code compliance prosecution.
c) Buildingpermit application improving a known, unlawful land use addressing public
health and safeU. Building_ permit applications that are limited exclusively to addressing
imminent risks to public health and safety may be approved under any circumstance. By
way of illustration and not limitation, building_ permit applications may be approved for
repairs and/or replacement of roofs, other building structural components, plumbing
and/or electric — however only to the extent necessary to address imminent risks to public
safety and health as determined by the planning director, who may consult with the
building official, county engineer and/or fire marshal to determine the allowable extent of
such improvements. In the event of such an approval, the CoMly shall place a notation
on the permit that the approval does not condone or approve the unlawful land use and
inform the applicant that the property owner is subject to possible code compliance
prosecution.
d) Nonconforming use. Building_ permits applications may be pproved for lawful,
nonconforming uses in accordance with section 102-56.
Section 2. Severability.
If any section, paragraph, subdivision, clause, sentence or provision of this ordinance shall be
adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect,
impair, invalidate, or nullify the remainder of this ordinance, but the effect thereof shall be
confined to the section, paragraph, subdivision, clause, sentence, or provision immediately
involved in the controversy in which such judgment or decree shall be rendered.
Page 2 of 3
Section 3. Conflicting Provisions.
In the case of direct conflict between any provision of this ordinance and a portion or provision
of any appropriate federal, state, or County law, rule code or regulation, the more restrictive shall
apply.
Section 4. Transmittal.
This ordinance shall be transmitted to the Florida State Land Planning Agency as required by F.S.
380.05 (11) and F.S. 380.0552(9).
Section 5. Filing.
This ordinance shall be filed in the Office of the Secretary of the State of Florida but shall not
become effective until a notice is issued by the Florida State Land Planning Agency or
Administration Commission approving the ordinance.
Section 6. Inclusion in the Monroe County Code.
The provisions of this Ordinance shall be included and incorporated in the Code of Ordinances
of the County of Monroe, Florida, as an addition to amendment thereto, and shall be
appropriately renumbered to conform to the uniform marking system of the Code.
Section 7. Effective Date.
This ordinance shall become effective as provided by law and stated above.
PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Florida
at a regular meeting held on the day of , 2012.
Mayor David Rice
Mayor Pro Tem Kim Wigington
Commissioner Heather Carruthers
Commissioner Sylvia Murphy
Commissioner George Neugent
MONROE COUNTY BOARD OF COUNTY COMMISSIONERS
Attest: DANNY L. KOLHAGE, CLERK
Deputy Clerk
Mayor David Rice
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