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Resolution 258-1997 County Attorney RESOLUTION NO. 258 -1997 A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA. APPROVING THE BENEFICIAL USE RECOMMENDED ORDER OF THE HEARING OFFICER, SUBJECT TO CERTAIN SPECIFIED REVISIONS, IN THE CASE OF COCONUT GROVE BANK, AS TRUSTEE FOR STUART MARR AND HARLEY DAVIDSON, FOR THE CONSTRUCTION OF ONE SINGLE FAMILY HOME ON EACH OF LOTS 1.2, & 3, BLOCK 1A. SUNSET BAY SUBDIVISION, GRASSY KEY. WHEREAS, Comprehensive Plan Policy 101.18.5 and Section 9.5-171 of the Land Development Regulations establish a beneficial use procedure under which an owner of real property may apply for relief from the literal application of applicable land use regulations 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 protect the health, safety and welfare of its citizens under Florida law; and WHEREAS, a hearing was held on August 29, 1996, and a Recommended Order issued by the designated hearing officer on May 6, 1997 which recommends that Monroe County grant three building permits (one for each lot) for single family homes with the setbacks shown -,- on the Morton Street site plan; that said building permits be exempt from th~R~ of ~owt~ ~ ,..~ 2: ,." Ordinance and Permit Allocation System. that such permits be deducte~g?d! th~erm~ ::-~ r- :-... 0 Allocation System, or that Monroe County purchase such lot or lots at the !?~~ setc:fs>rth i1P '-. - " :::0 -0 1"'1,. paragraph 34 of the Recommended Order; and n ~ g 0', t::J WHEREAS, a public hearing was held by the Board of County Commissioners on June 18, 1997, at which certain revisions to the Recommended Order of the Hearing Officer, as enumerated herein, were determined to be necessary to conform the Recommended Order to the provisions of the Comprehensive Plan; NOW THEREFORE BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA. that: Section 1. The Findings of Fact and Conclusion of Law set forth in the Recommended Order of the Vested Rights Hearing Officer are approved, subject to the following revisions: A. Paragraph 33 of the Beneficial Use Order recommended by the Vested Rights Hearing Officer is rejected, and the following language is substituted: 33. The Petitioner has not demonstrated that application of the Dwelling Unit Allocation Ordinance (commonly referred to as the Rate of Growth Ordinance or "ROGO") would prevent the Petitioner from constructing dwelling units on the lots. Petitioner has not even applied for allocations under ROGO. much less been denied. Nor has Petitioner established vested rights under ROGO. Code Section 9.5-121 (f). Therefore. building permit applications will be subject to the Dwelling Unit Allocation Ordinance, Monroe County Code Section 9.5-121, et. seq. B. The following provision is added to the Beneficial Use Order, in Paragraph 35: 35. At the time of building permit issuance, conditions for the protection of endangered species nesting habitat may be required. C. Paragraph 15 of the Beneficial Use Order recommended by the Vested Rights Hearing Officer is amended to, read as follows: 15. Relief is granted to allow Petitioner to build a single family home on each lot, by partially relieving Petitioner from the provision of ~ 9.5-345(1), Monroe County Code, so as to provide for a 37+/- foot turtle nesting setback instead of a 50- foot setback, and to eliminate the front (street) setback by reducing it from 25 feet to zero. Section 2. In conformity with the recommendation of the Vested Rights Hearing Officer, negotiations to purchase the subject lots shall be initiated by Monroe County. The Monroe County Land Authority is hereby requested to commence such negotiations, and is encouraged to seek to reduce public expenditure by pursuing public/private acquisition strategies and purchase of less than a fee simple interest (e.g., conservation easement) consistent with the objectives of the Comprehensive Plan. PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Florida, at a regular meeting of the Board held on the 16t%ay of July ,1997. Mayor Douglass Mayor Pro T em London Commissioner Harvey Commissioner Freeman Commissioner Reich no ~ no yes ~ (SEAL) ATTEST: DANNY L. KOLHAGE, CLERK BY~-J Dep Cler By aa/resord2/cocoOOl BENEFICIAL USE MONROE COUNTY HEARING OFFICER In Re: Coconut Grove Bank:, as trustee for Stuart Marr and Harley Davidson, Case No. BENEFICIAL USE ORDER The above entitled matter was heard on August 29, 1996, by Randolph W. Sadtler, Esquire, designated Vested Rights Hearing Officer. Andrew M. Tobin, of Mattson & Tobin represented Petitioner. RalfG. Brookes, of Morgan & Brookes, represented Monroe County. Issue At issue is whether Petitioner should be afforded beneficial use under Policy 101.18.5 of the Comprehensive Plan (1994). The County has argued that the Lots 1,2, and 3, should not be considered separately and should be considered as one parcel for purposes of determining the extent of beneficial use. Petitioner argues that beneficial use must be determined as to each Lot. The applicable provision of the Comprehensive Plan states: It is the policy of Monroe County that neither the provlSlons of this Comprehensive Plan nor the Land Development Regulations 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 adoption of this Comprehensive Plan. Policy 101.18.5. Findings of Fact 1. In 1978 Petitioner purchased Lots 1, 2, and 3 Block lA, Sunset Bay, a platted subdivision filed for record August 1961, and recorded in Plat Book 5 page 46 of the public records of Monroe County, Florida (hereinafter the "Lots"), Petitioner paid $45,000 for the three Lots. Ex. 1. 2. At the time said Lots were purchased they were zoned RU-l which permitted single family homes and were in all respects buildable according to the land development regulations in effect. In 1986, the Lots were rezoned Improved Subdivision which also permits single family homes to be built on each Lot "as of right." 3. Stuart Marr testified on behalf of Petitioner. Mr. Marr has been a real estate broker and real estate developer in the Florida Keys for over 20 years. He has personally developed and platted three subdivisions in Monroe County. He testified that the Lots were suited for a home on each Lot when he purchased them and that he intended to sell the Lots separately or to build 3 homes (one on each Lot). Three separate appraisals by Appraisal First dated November 1988, confirm Mr. Marr's testimony (Lot 1 valued at $98,000; Lot 2 valued at $98,000; and Lot 3 valued at 100,000). Ex. 2, 3, 5. According to Mr. Marr the area is completely dominated by single family homes, which is the only reasonable use for the Lots. 4. Sometime prior to 1991, Stuart Marr transferred Lot 2 to his brother Harley Davidson, who later transferred Lot 2 to the Coconut Grove Bank, as trustee. Ex. 1 a. 5. Each of the three lots has been separately assessed and taxed by the Monroe County Property Appraiser and Tax Collector. 6. Beginning in 1991, Petitioner began the process of building a single family home on each Lot by a) employing a contractor to process the applications; b) employing an architect to prepare 3 separate sets of building plans; c) obtaining a survey and percolation tests for the Lots; d) obtaining permits from the Monroe County Health Department for septic tanks for each Lot; e) obtaining FKAA approval for each Lot; t) obtaining approval from the Florida Keys Electric Cooperative to install electric meters and meter poles on each Lot; and g) paying a separate application fee for each Lot. Ex. 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19,20,21,22,23, 24. 7. Petitioner was then informed by the Monroe County Building and Planning Department that he would be required to obtain a shoreline setback variance before building permits could be issued. 8. On or about July 1993, Petitioner duly applied to the Planning Commission for a shoreline setback variance. Petitioner's agent was informed by the Building and Planning Department that the application would receive more favorable treatment if the variance was for two homes, rather than three. Although Petitioner followed the County's advice, the variance applications were denied by the Planning Commission pursuant to Resolutions No. P50-93 and P05-94. 9. The Planning Commission determined that Petitioner had not met its burden of proof in showing a hardship in that, "he would be able to build a 15 ft. wide house without the granting of a variance." 10. Thereafter Petitioner filed an action against Monroe County for just compensation for depriving Petitioner of all reasonable economic use for all 3 Lots. Coconut Grove Bank v. Monroe County, Case No. 94-10161-CA-18. 11. Based on the County's motion and the Court's order, Petitioner applied to the Planning Commission for a second time to vary both the street and beach berm turtle nesting setback lines on Lots 1, 2, and 3 in order to build three homes 12. On May 11, 1995, the Planning Commission approved a variance for Lot 1 only to vary the front (street) setback 25 feet (to zero). Resolution No. P22-95, dated July 11, 1995. 13. The parties stipulated to the value of the Lots under two different scenarios: Scenario 1 assumes that one home could be built on each of the lots in accordance with the Morton Street site plan by Garant. In that case, Lot 1, would be valued between $85,000 and $90,000; Lot 2 would be valued between 100,000 and 105,000; and Lot 3 would be valued between $85,000 and $90,000. The total for three lots would be between $270,000 and $285,000. Scenario 2 assumes that Lots 1, 2, and 3 would only accommodate 1 home. In that case Lots 1,2, and 3 would have a combined value of between $115,000 and $125,000. 14. The parties disputed the value of the Lots as unbuildable. Monroe County's appraiser stated that the Lots would have "pride of ownership" value which was not quantified or supported by comparable sales for "pride of ownership." Mr. Marr's opinion concerning the nominal value of the Lots is more persuasive. 15. The minimum relief that would allow Petitioner to build a single family home on each lot is to discontinue or abandon 9 9.5-345(1), MCC, in part to provide for a 37:t foot turtle nesting setback instead of 50 feet, and to vary the street setback 25 feet to zero. The location of the homes and setback lines for lots 1, 2, and 3, is shown on the "Morton Street" site plan and survey. Conclusion of Law 16. The threshhold issue is whether the properties should be treated as one parcel, due in large part to common legal ownership (Coconut Grove Bank, Trustee) or as three seperate parcels based on equitable ownership (Stuart Marr and Harley Davidson). 17. If legal ownership is controlling, the facts of this case should be analyzed by the rule enunciated in Department of Transpotation, Division of Administration v. Jirik, 498 S02d 1253 (Fla, 1986). 18. Jirik lists three factors to be considered when determining, in a takings action, whether multiple lots should be treated as one parcel or separate lots: physical contiguity, unity of ownership and unity of use. Id. At 1254 19. The evidence supports a finding of physical contiguity and this issue is not in dispute. 20. Unity of legal ownership is not in dispute, however, there is no unity of equitable ownership. 19. The Jirik Court also provides guidance in applying these factors stating "The three factors are not inflexible but rather are working rules courts have adopted to do substantial justice". Id. 20. The Jirik Court adopted a presumption regarding similarly situated property stating: "In respect to city property, in fact unoccupied, but which appears to have been platted or divided into blocks and lots, nothing more being shown, the property should be treated as lots and blocks, intended for such use and not as one entire tract."ld. at 1255 citing Wilcox v. St. Paul & Northern Pacific Railway Co., 35 Minn. 439, 29 N,W. 148, 150. 21. Further, the Florida Supreme Court opined as follows: "Given the complexity and formalities of modem-day city planning, we believe that a presumption of seperateness as to vacant platted urban lots is reasonable and would facilitate the determination of the seperateness issue in the absence of contrary evidence"ld. at 1256 22. It is the County's position that the use approved by the Planning Commission establishes a unity of use as to all lots allowing for treatment of the three lots as one parcel for condemnation purposes, 22. The position taken by the County suggest that a use which requires unity creates unity which overcomes the Wilcox presumption. 23. If the Wilcox presumption is to have any effect on resolving the issue of seperateness, the unity of use must occur prior to the taking and at the election of the property owner. 24. Additionally, if the County's position were adopted, the Wilcox presumption would have no significance since it could always be argued that if multiple lots were considered a parcel a less dense use could be permitted. 24. The facts presented in this case indicate that the property owner had always intended to develop each lot seperately, notwithstanding exploring other options which may have resulted in a less dense use of the three lots. 25. Accordingly, the testimony of Stuart Marr being uncontroverted, the Wilcox presumption is applied and three lots will be treated as separate. 26. "A taking occurs where regulation denies substantially all beneficial or productive use of land". Tampa-Hillsborough County Expressway Authority v. A.G. Ws. Corporation, 640 S02d 54 (Fla. 1994). 27. Testimony at the hearing suggested only two possible uses for these lots: placement of a structure fifteen feet wide on each lot as suggested by the Planning Commission; "pride of ownership" value which has not been quantified. 28. It is questionable that a fifteen foot wide structure would be permissible under other provisions of the Monroe County Land Development Regulations. 29. The "pride of ownership" value is coextensive with the nominal value placed on the property by Mr. Marr. 30. Without a front and rear setback variance as shown on the Morton Street site plan the Lots are unbuildable. Moreover, without the ability to build a single family home on each Lot, the Lots have only nominal value. 31. Comprehensive Plan, Policy 10 1.18. 5 reqUIres that each Lot be separately considered for purposes of a beneficial use determination. Accord: Department of Transportation v. Jirik, 498 So. 2d 1253 (Fla. 1986). 32. The minimum relief which would prevent a taking is to grant a building permit for a single family home on each lot, to wit: 1) a permit for a single family home on Lot 1; 2) a permit for a single family home on Lot 2; and 3) a permit for a single family home on Lot 3; with the setbacks shown on the Morton Street site plan. 33. In that Petitioner applied for building permits before the Rate of Growth Ordinance (No. 16-1992) was enacted on July 1, 1992, and because the relief under Policy 101.18.5 is for the "granting of a permit for development which shall be deducted from the Permit Allocation System," Petitioner shall not be subject to the Permit Allocation System or ROGa. 34. By stipulation between the Parties, the lots are valued as follows: Lot 1 $85,000.00 Lot 2 $100,000.00 Lot 3 $85,000.00 Total $270,000.00 IT IS THEREFORE the recommendation of this Hearing Officer that Monroe County grant three (3) building permits (one for each Lot) for single family homes with the setbacks shown on the Morton Street site plan and that said building permits be exempt from the Rate of Growth Ordinance (No. 16-1992) and Permit Allocation System, further that such permits be deducted from the Permit Allocation System or in the alternative that Monroe County purchase from the property owner such lot or lots at the prices set forth in paragraph 34 above, DONE AND ORDERED at Marathon, Monroe County, Florida this ?~ day of ?~ ,1997. ~~t4 / ~-~ Randolph . Sadder, sqUire FBN 377163 Vested Rights Hearing Officer