Resolution 028-1999
County Attorney
RESOLUTION NO. 028 -1999
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 HERBERT 1. AND CHRISTINE W. PONTIN
3:c~~
o :v- .." r
x ...,.. rn ,.."
WHEREAS, on January 4, 1996, the Monroe County Year 2010 Co~ensre q:IJan
1"'1 ~ ~, , .."
c)' t- N 0
. o~' ~
became effective; and C::;O~ -0 ::u
~ 'c-, ~ ~ ,.."
WHEREAS, the application of Herbert T, and Christine W, Pontin for ~ir9tiorg,f
~ C'> 0 :;:0
);lO f1'\ \D 0
beneficial use was heard on May 28, 1998 by J, Jefferson Overby, SpeCIal Master, now
therefore
BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY,
FLORIDA:
The Findings of Fact and Conclusions of Law of the Recommended Beneficial Use
Determination of the Special Master are APPROVED, and the application of Herbert 1. and
Christine W. Pontin is accordingly DENIED,
PASSED AND ADOPTED by the Board of County Commissioners of Monroe County,
Florida, at a regular meeting of the Board held on the 13th day of January ,1999.
no
yes
yes
no
yeH
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
BY~~Q~~~~~
Deput Clerk
. .. ~\
By \..i::>. C!l ':IL.aJ ..... ... "'""---~ ~
Mayor/Chairman
jvrpontin3
BENEFICIAL USE
MONROE COUNTY SPECIAL MASTER
In Re: Herbert T. and Christine W. Pontin
Beneficial Use Application
/
FINAL BENEFICIAL USE DETERMINATION
The above entitled matter was originally heard at a duly advertised regularly scheduled.
public hearing in Marathon. Florida, on February 12. 1998, and continued to March 16, 1998 and May
28, 1998, at the request of the applicants. by J. Jefferson Overby. designated Beneficial Use Special
Master. Herbert T. Pontin, Applicant. represented by Mitchell J. Cook Esq.. (both were present at the
first hearing, waived their appearance at the final haring and supplemented the application in
writing in lieu of a personal appearance), and Assistant County Attorney. Garth Coller, Esq. and
Timothy J. McGarry, Planning Director represented Monroe County.
ISSUE
Whether the applicants will be denied all reasonable economic use of this property by
application of the Year 2010 Comprehensive Plan. and whether the applicants are entitled to relief
under Policies contained in Objective 101.18 of the Year 2010 Comprehensive Plan (as administered
and implemented in the "Agreement between the Department of Community Affairs and Monroe
County" dated February 23, 1998), the approved portions of Ordinance No. 052-1997 and the
Monroe County Code.
FINDINGS OF FACT
1. The subject property consists of three separate contiguous parcels with a combined
size of 21.07 acres. Two parcels. totaling approximately 2.6 acres in area (RE 111750 and RE111730)
are located on the ocean side along US 1, Big Pine Key. These parcels are zoned Native Area and
are characterized as disturbed with exotics. The parcels are both vacant. except for the parcel
abutting US 1 which has a truck with "unpermitted" advertising. The remaining parcel (REll179)
totals approximately 18,5 acres in area. The vacant parcel is zoned Native Area. The site is
characterized as having open water (3.6 acres). mangroves (5.7 acres). disturbed with exotics (0.5
acres). and salt marsh and buttonwoods (8.65 acres).
2. The applicants have been attempting to permit the placement of 95,000 cubic yards
of fill in parcel REll179 since 1984. The applicants have not received this permit since the US Army
Corps of Engineers and the Florida Department of Environmental Protection have not permitted the
request (these are pre-requisite permits in order for Monroe County to consider applicants' request).
Due to the presence of wetland Monroe County would have been unable to approve the fill permit.
Additionally, the applicants received a permit to clear exotic vegetation on parcel RE 11175 in 1989
and also received a demolition permit on parcel REll179 in 1989 to remove wooden poles in
response to a code enforcement action. An additional application for a fence permit was
approved in 1990.
3. The applicants filed for Vested Rights before the prior hearing officer on January 3,
1997. The hearing was held on July 31. 1997, and a recommendation of DENIAL was entered, by the
prior hearing officer on Julv 31. 1998.
4. County Staff have calculated the TDR value of the property as follows: the smallest
two parcels (REll1750 and 111730) have 0.65 development rights: and the largest parcel (REll179)
has 2.1625 development rights.
CONCLUSIONS OF LAW
5. The applicants' property is zoned Native Area and is characterized as disturbed with
exotics, Native Area zoning permits detached dwellings and bee keeping as of right: attached
dwellings (no more than 4 units), public buildings and uses, communication systems as minor
conditional uses; and communication towers as a major conditional use. The 2010 Comprehensive
Plan established a maximum density of .25 units per acre in Native Area. Additionally, TOR's cannot
be transferred into a Native Area Zone. Therefore, none of the parcels are of sufficient size to be
approved for residential development without the aggregation of all the lots. (When combined with
the larger parcel, at least two units could be built on the disturbed portions of the property.) It
should be noted that non-residential development is permitted in the Native Area district (located
within disturbed areas) without the aggregation of the three parcels.
6. Application of Policy 204.2.6 of the 2010 Comprehensive Plan has not rendered the
property un-buildable.
A. The applicants have not submitted a permit application to fill the property and
that has been denied by the County (per hearing of February 12, 1998).
B. The applicants have not exhausted administrative appeals and other options
available to them. They have not submitted any development proposals for uses that are permitted
in the Native Area district. Additionally, the property has not been offered for sale under the State's
CARL program.
C. The applicants could develop their property single family uses, if the parcels
are aggregated and other non-residential uses are permitted. The applicants have never submitted
any applications or proposals for any other type of development.
D. The lot has some reasonable economic use in terms of non-single family
development or for sale of partial TOR's.
E. The applicants have some "reasonable economic use" of the property.
7. All three parcels should be treated as a whole, since they meet the three criteria as
specified in Sec. 9.5-172(b)(7) of the Monroe County Code (physical continuity, unity of ownership,
and unity of use).
8. Pursuant to Policy 101.18.5 and Section 4(0) of the Agreement between DCA and
Monroe County, the Board of County Commissioners considered:
A. The economic impact of the Policy (or regulations) that prohibits development
on the applicants' property; and
B. The extent to which the regulation has interfered with the applicants'
reasonable investment-backed expectation that some use could be made of this property.
~:y:" HEREFORE, after due consideration, the Board of County Commissioners hereby enters its
,. . ,ll1ination of Beneficial Use as follows:
: ...~...~ /,
\\'~~J.;pPlic~nts' Request for Beneficial Use is hereby DENIED.
(~1\,LJ(:, ;>. BOARD OF COUNTY COMMISSIONERS
ATl"5T~R,A.NNY L. KOLHAGE, CLERK OF MONROE COUNTY, FLORIDA
BY~~
Mayor/Chairman
By-~'>:~M"'--
BENEFICIAL USE
MONROE COUNTY SPECIAL MASTER
In Re: Herbert T. & Christine W. Pontin-
Beneficial Use Application
/
PROPOSED DENIAL OF
BENEFICIAL USE DETERMINATION
The above entitled matter was originally heard at a duly-advertised and regularly
scheduled, public hearing in Marathon, Florida, on February 12, 1998, and continued to
March 16,1998 and May 28,1998, at the request ofthe applicant, by J. Jefferson Overby,
designated Beneficial Use Special Master. Herbert T. Pontin, Applicant, represented by
Mitchell J. Cook, Esq., of Horan and Horan (Both were present at the first hearing,
waived their appearance at the final hearing and supplemented the application in writing
in lieu of a personal appearance), and Assistant County Attorney, Garth Collier, Esq. and
Planning Director, Timothy J. McGarry, represented Monroe County.
ISSUE
Whether the applicant will be denied all reasonable economic use of his property
by application of Policy 204.2.6 of the Year 2010 Comprehensive Plan, and whether the
applicant is entitled to relief under Policies contained in Objective 101.18 of the Year
2010 Comprehensive Plan (as administered and implemented in the "Agreement between
the Department of Community Affairs and Monroe County" dated February 23, 1998),
the approved portions of Ordinance 052-1997 and the Monroe County Code.
FINDINGS OF FACT
1. The subj ect property consists of three separate contiguous parcels
with a combined size of21.07 acres. Two parcels, totaling approximately 2.6 acres in
area (RE 111750 and REII1730), are located on the ocean-side along US 1. These
parcels are zoned Native Area and are characterized as disturbed with exotics. The parcels
are both vacant, except for the parcel abutting U.S. 1 which has a truck with
"un-permitted" advertising. The remaining parcel (RE 11179) totals approximately 18.5
acres in area. The vacant parcel is zoned Native Area. The site is characterized as having
open water (3.6 acres), mangroves (5.7 acres), disturbed with exotics (0.5 acres), and salt
marsh and buttonwoods (8.65 acres).
2. The applicant has been attempting to permit the placement of
95,000 cubic yards of fill in parcel RE 11179 since 1984. The applicant has not received
this permit since the U. S Corps of Army Engineers and the Florida Department of
Environmental Protection have not permitted the request (these are pre-requisite permits
in order for Monroe County to consider applicants request). Due to the presence of
wetland Monroe County would have been unable to approve the fill permit. Additionally,
the applicant received a permit to clear exotic vegetation on parcel RE 11175 in 1989 and
also received a demolition permit on parcel RE11179 in 1989 to remove wooden poles in
response to a code enforcement action. An additional application for a fence permit was
approved in 1990.
3. The applicant filed for Vested Rights before the prior hearing
officer on January 3, 1997. The hearing was held on July 31, 1997 and a recommendation
2
of DENIAL was entered, by the prior hearing officer, July 31.1998.
4. County Staff have calculated the TDR value of the property as
follows: the smallest two parcels (RElll750 and 111730) have 0.65 development rights;
and the largest parcel (RE 11179) has 2.1625 development rights
CONCLUSIONS OF LAW
5. The Applicant's property is zoned Native Area and is characterized
as disturbed with exotics. Native Area zoning permits detached dwellings and bee
keeping as of right; attached dwellings (no more than 4 units), public buildings and uses,
communication systems as minor conditional uses; and communication towers as a major
conditional use. The 2010 Comprehensive Plan established a maximum density of .25
units per acre in Native Areas. Additionally, TDRs cannot be transferred into a Native
Zone Area. Therefore, none of the parcels are of sufficient size to be approved for
residential development without the aggregation of all the lots (When combined with the
larger parcel, at least two units could be built on the disturbed portions of the property). It
should be noted that non- residential development is permitted in the Native Area district
(located within disturbed areas) without the aggregation of the three parcels.
6. Application of Policy 204.2.6 of the 2010 Comprehensive Plan has
not rendered the property un-buildable.
A. The applicant has not submitted a permit application to fill the
property and that has been denied by the County(per hearing of Feb. 12, 1998).
B. The applicant has not exhausted administrative appeals and other
options available to him. He has not submitted any development proposals for uses that
3
are permitted in the Native Area district. Additionally, the property has not been offered
for sale under the State's CARL program.
C. The applicant could develop his property single family uses, if the
parcels are aggregated and other non-residential uses are permitted. The applicant has
never submitted any applications or proposals for any other type of development.
D. The lot has some reasonable economic use in terms of non-single
family development or for sale of partial TDRs.
E. The applicant has some "reasonable economic use" of the property.
7. All three parcels should be treated as a whole, since they meet the
three criteria as specified in Section 9.5-172(b)(7) of the Monroe County Code (physical
continuity, unity of ownership, and unity of use).
8. Pursuant to Policy 101.18.5 and Section 4(D) of the Agreement
between DCA and Monroe County, I have considered:
A. the economic impact of the Policy (or regulation) that prohibits
development on the applicants' property; and
B. the extent to which the regulation has interfered with the
applicants' reasonable investment-backed expectation that some use could be made of
this property.
WHEREFORE, I recommend to the Board of County Commissioners that a final
beneficial use determination be denied as the applicant has failed to demonstrate that his
property has met the criteria for eligibility as set for in Section 9.5-171 (a) - (d) of the
Monroe County Code.
4
DONE AND ORDERED this 6th day of October, 1998.
5