Resolution 110-1999
County Attorney
RESOLUTION NO. 110-1999
A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF MONROE
COUNTY, EVIDENCING THE BOARD'S APPROVAL OF A RECOMMENDED VESTED
RIGHTS DETERMINATION PROMULGATED BY THE VESTED RIGHTS HEARING
OFFICER, IN RE: THE APPLICATION OF DOROTHY ABBOTT, ET AL.
WHEREAS, on January 4, 1996, the Monroe County Year 2010 Comprehensive Plan
became effective; and
WHEREAS, development applications "in the pipeline" as of January 4, 1996 are subject
to a determination of vested rights pursuant to Policy 101.18.1 of the Plan; and
WHEREAS, the matter of Dorothy Abbott, et al. for determination of vested rights was
heard by Vested Rights Hearing Officer Larry Erskine, now therefore
BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY,
FLORIDA. that the Findings of Fact and Conclusions of Law are APPROVED and the Vested
Rights application of Dorothy Abbott, et al. 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 10th day of March, 1999.
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B'~~C.~~
Deputy Clerk
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
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By
Mayor/Chairman
jvrabbott
BEFORE THE VESTED RIGHTS HEARING OFFICER
MONROE COUNTY, FLORIDA
In Re: the applications of ABBOTT, DOROTHY, Lots 9 & 10, Blk 1, Pine Hammock;
Lot 6, Blk 16, Palm Villa; BERNARD, LANNOX & JEAN, Lot 7, Blk 4, Center Island;
BRENNER, WAYNE E., 45 Lots, Center Island; BROOKS, RACHEL, Lots 2 & 3, Blk 8,
Doctor's Arm 2nd Add.; BROWN, STEPHEN B., Lot 25, Blk 4, Pine Channel Estates, Sect. 2;
BURSTYN, SAM, Lot 11, Blk 9, Center Island; CITILAND INVESTMENTS
CORPORATION, 131 Lots in Reformed Plat of Grassy Key Beach; COLLINS, THOMAS &
PATRICIA, Lots 1 & 2, Doctor's Arm Subdivision, 3rd Add., Sect. A:, CUNNINGHAM,
THOMAS & CARMEL, Lot 11 & llA, Torchwood West Unit 1; DAVIS, DONALD, Lot 38,
Doctor's Arm 3rd Add.; DEL VALLE, AURELLO, Lot 24, Blk 10, Center Island; DUNST,
KLAUS, Lot 5, Blk C, Waloriss Subdivision; FRIEDMAN, JAMES, Lot 19, Blk 3, Center Island;
GARCIA, ANTONIA, Lots 9, 10, 15, 16, 17, 18,23 & 24, Blk 10, Thompson Sub.; GARDNER,
TED & VICTORIA, Lot 2, Blk 19, Coco Plum Beach; GIL, RUDOLFO & ALINA, Lot 14, Blk
3; GONZALEZ, JORGE, Lot 12, Blk 4, Center Island; GONZALEZ, REGINA, Lots 13 & 14,
Blk 4, Center Island; GULFSTREAM LP, 66 Lots, Sect. A, Ecstasy Sub.; 18 1/2 Lots, Vallhalla
Island; GUTIERREZ, SALVADORE, Lots 6,7 & 8, Blk 5, Harbor Shores; HILL, JACK, Lots 1,
21 & 22, Blk 9, Thompson Sub.; IGLESIAS, ERNESTO, Lots 24,25 & 27, Blk 3, Thompson
Sub.; JOHNSON, RICHARD, Lot 10, Blk 11, Lot 1, Blk 12, Tropical Bay 3rd Add.; KUHN,
CHARLES & JOANNA, Lots 14 & 15, Blk 8, Center Island; LANG, MICHAEL A., Lot 10 &
1/2 9, Blk 2, Torchwood West Unit 2; LEVINE, ARNOLD, Lots 13-16, Blk 2, Rainbow Beach
Estates; LOSCIDM, INC., Lot 3, Blk 10, Center Island; MAGRINI, JOSEPH & ELDA, Lot 21,
Blk 4, Pine Channel Estates, Sect. 2; MAY, RICHARD c., Lot 21, Blk 3, Center Island;
MILANO, ALFRED D., Lot 6, SugarloafBeach; NEFF, THOMAS 0., Lots 1 & 2, Sqr A, Lots
3-9, Sqr. A, Lots 1, 2, 15 & 16, Sqr. B, Crains Sub,; NIGHLAND, JUDY, Lot 15, Blk 2,
Torchwood West Unit 2; NORLING, NILS & MARY, Lots 2 & 3, Blk 14; OCEAN ISLE
TRUST, 64 Lots, Ocean Isle Estates; PEABODY, CHARLES & SUSAN, Lots 26, 27, 28, Blk 3,
Lots 21 & 22, Blk 7, Doctor's Arm Sub.; PISTINER, MARK & MELANIE, Lot 29, Doctor's
Arm, 3rd Add.; POSTEN, CHARLES, Lots 21 & 39, Blk 3, Lot 24, Blk 4, Buccaneer Point; R &
C PARTNERS, LTD., Lot 33, Sombrero Island, Lot 12-A, part of Tract 10, Edmond's Acreage
Tracts; RADENHAUSEN, KEITH P., Lot 6, Blk 37, Port Pine Heights, 2nd Add.; REUTER,
PAUL F., Lot 14, Blk 3, Pine Channel Estates Sect. 2; RFM DEVELOPMENT CORP., Lots 16
& 20, Blk 3, Center Island; RODRIGUEZ, EUGENIO & NORA, Lots 11 & 12, Blk 3,
Thompson Sub.; SCHNEIDER, ROBERT 1., Lots 1 & 2, Blk 4, Silver Shores Estates; SMITH,
RALPH, 15 SF Lots (VR 1), Lots 9-12, Blk 15, Coco Plum Beach; SYKES, MARCIA, Lot
10-12, Sqr..A, Crains SD; TOST, HUBERT & MARILYN, Lot 22, Blk 3, Matecumbe Ocean
Bay, Sect 1; and TSA VDARIS, JACK, Lots 1,2 & 9, Blk 13, Center Island.
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RECOMMENDED ORDER DENYING VESTED RIGHTS
TillS CAUSE came on to be heard by the undersigned Monroe County Vested Rights
Hearing Officer on April 27, 1998, at which time the undersigned reviewed the applications and
exhibits, heard oral presentation of witnesses, and heard the argument of attorneys on behalf of
the Petitioners and Monroe County.
Subsequent to the hearing referred to in the preceding paragraph, the undersigned
received and reviewed a Memorandum of Law submitted on behalf of the Petitioners. That
Memorandum contained an exhibit consisting of 377 pages detailing the legislative history of
Senate Bill 629, which is now codified as Section 380.05(18), Florida Statutes.
The undersigned also received and reviewed a Recommended Vested Rights
Determination prepared by counsel on behalf of Monroe County.
Finally, the undersigned has received and reviewed transcripts of the aforementioned
hearing of April 27, 1998 on the above-referenced matters.
FINDINGS OF FACT
1. With one exception, the Petitioners in this cause own platted lots that were recorded
in the Public Records of Monroe County prior to the September 15, 1986, Florida Keys
Comprehensive Plan, which plan pre-dated the current ROGO and the Year 2010 Plan.
2. Petitioner Alfred D. Milano's petition pertains to a lot in a subdivision which was
platted in 1989, subsequent to the effective date of the 1986 Florida Keys Comprehensive Plan.
3. The Petitioners in this cause have all filed petitions to confirm vested rights to build
one single-family home per platted lot, relying on the language contained in Section 380.05(18),
Florida Statutes, which reads as follows:
Neither the designation of an area of critical state concern nor the adoption of
any regulations for such an area shall in any way limit or modify the rights of
any person to complete any development that has been authorized by
registration of a subdivision pursuant to chapter 498 or former chapter 478, by
recordation pursuant to local subdivision plat law, or by a building permit or
other authorization to commence development on which there has been reliance
and a change of position, and which registration or recordation was
accomplished, or which permit or authorization was issued, prior to the
approval under subsection (6), or the adoption under subsection (8), of land
development regulations for the area of critical state concern. If a developer
has by his or her actions in reliance on prior regulations obtained vested or
other legal rights that in law would have prevented a local government from
changing those regulations in a way adverse to the developer's interests, nothing
in this chapter authorizes any governmental agency to abridge those rights.
Specifically, the Petitioners acknowledge that their claims for vested rights rest solely upon their
ownership of platted lots. That is, the Petitioners acknowledge that they have taken no steps to
develop the subject properties beyond purchase of the lots. None of the Petitioners herein sought
or obtained approvals for construction on the subject lots, nor did these Petitioners expend funds
toward any such proposed development.
4. These Petitions have been filed under, and must be construed according to, Policy
101. 18.2 of the Monroe County Year 2010 Comprehensive Plan. Monroe County argues that this
vested rights determination is also governed by "an Agreement between the Department of
Community Affairs and Monroe County" dated February 24, 1998, Inasmuch as the Petitions
herein were filed in January of 1997, over a year prior to the effective date of the agreement, it
would be inequitable to render this determination pursuant to that agreement.
5. Pursuant to Policy 10LI8.2(2)(a), an applicant for a vested rights determination shall
first have the burden of establishing that the applicant has reasonably relied upon an official act of
the county. Pursuant to subsection (2), a properly recorded subdivision plat may constitute such
an official act. Monroe County acknowledges that these Petitioners have satisfied the first
element of the vested rights test by virtue of their ownership of platted, recorded subdivision lots.
6. Pursuant to subsection (b), the applicant must satisfY the second element of vested
rights in demonstrating that the applicant "has made such a substantial change of position or has
incurred such extensive obligations and expenses that it would be highly inequitable or unjust to
affect such rights by requiring the applicant to now conform to the Comprehensive Plan and land
development regulations." Finally, the applicant must also demonstrate pursuant to subsection ( c)
"that the development has commenced and has continued in good faith without substantial
interruption. "
7. As indicated hereinabove, the Petitioners herein do not assert their entitlement to
vested rights determinations upon a claim that they have satisfied these last two elements. Rather,
the Petitioners take the position that these two provisions are in conflict with Section 380.05(18),
Florida Statutes. Therefore, according to the position advanced by the Petitioners, these two
elements are unenforceable under the theory of preemption in that a county ordinance, which, by
definition, is inferior to a state statute, cannot prohibit what the state statute expressly authorizes.
Relying solely on the language of Section 380.05(18), Florida Statutes, the Petitioners contend
that this provision should be construed so as to constitute "a categorical exemption from all land
development regulations. to The Petitioners contend that they have legislatively-created vested
rights to "complete the development authorized by the recordation of a plat pursuant to local
subdivision plat law", and that the development authorized therein is the construction of a
single-family home on each platted lot.
8. The Petitioners have supported their interpretation of this provision of Florida Law
with a detailed, well-reasoned analysis of the legislative history of Senate Bill 629, the bill that
became Section 380.05, Florida Statutes. The Petitioners' Memorandum of Law contains an
attachment consisting of377 pages of documents constituting that legislative history, which were
reviewed in their entirety by the undersigned.
CONCLUSIONS OF LAW
9. The Petitioners' requests for determinations of vested rights are based upon two
interpretations of Section 380.05(18), Florida Statutes. Accordingly, the Petitioners have
requested relief which is not within the scope of, or in direct compliance with, Policy 101.18.2.
Stated another way, the Petitioners have applied for relief pursuant to Policy 101,18.2, but allege
this provision is invalid and unenforceable.
10. Specifically, the Petitioners' positions rely first on their assertion that the State of
Florida's passage of Section 380.05(18), Florida Statutes, preempts the latter two elements of
Policy 101.18.2, as being in conflict with Section 380.05(18), Florida Statutes. Second, the
Petitioners' positions rely on an interpretation of Section 380.05(18), Florida Statutes which
would provide that this provision, standing alone, guarantees the owners of platted, recorded
subdivision lots the right to develop a single-family dwelling on each platted lot.
11. Inasmuch as the ability, authority, and jurisdiction to decide matters of statutory
interpretation is within the purview of the Courts of this State, the undersigned has no jurisdiction
to determine same.
12. Based on the foregoing, it is the recommendation of the hearing officer that the
Petitioners' requests for vested rights be denied.
DONE AND ORDERED in Monroe County, Florida, this Zj Sf day of Sf P.7l/yJ~
1998.
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LARRY R. ERSKINE, ESQ.
VESTED RIGHTS OFFICER
FLORIDA BAR #313521
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and exact copy of the foregoing was mailed via U.S.
Post Office to: James Mattson, Esq., Mattson & Tobin, P.O. Box 586, Key Largo, FL 33037;
Karen K. Cabanas, Esq., Morgan & Hendrick, 317 Whitehead Street, Key West, FL 33040; this
07/ day of ..Q-Pkn?~ , 1998.
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LARRYR. ERSKINE, ESQ.
MEYER & ERSKINE
31211 AVENUE A
BIG PINE KEY, FL 33043
(305) 872-3400
(305) 872-4822 FAX