Resolution 352-1999
County Attorney
RESOLUTION NO.
352
-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 HEARING OFFICER. IN RE: THE APPLICATION OF
MICHAEL GILBERT AND BILL LEMON. d/b/a FOUR STAR EQUIPMENT RENTALS
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 Michael Gilbert and Bill Lemon was originally heard as a
determination for Vested Rights by Hearing Officer Randolph W. Sadtler, but
subsequently converted into a Beneficial Use case and heard by Hearing Officer J.
Jefferson Overby; 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 Beneficial Use application of Michael Gilbert and Bill Lemon d/b/a Four Star
Equipment Rentals is accordingly, APPROVED.
PASSED AND ADOPTED by the Board of County Commissioners of Monroe County,
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Florida, at a regular meeting of the Board held on the 22nd day of July, 1999.
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BOARD OF COUNTY COM~SI~ERj;
OF MONROE COUNTY, FLO~DA ...
Mayor Wilhelmina Harvey
Commissioner Shirley Freeman
Commissioner George Neugent
q-et;'hmissioner Mary Kay Reich
..'<;ommissioner Nora Williams
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Attest: DANNY L. KOLHAGE, Clerk
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BENEFICIAL USE
MONROE COUNTY SPECIAL MASTER
INRE:
MICHAEL GILBERT and
BILL LEMON - Beneficial
Use Application
/
PROPOSED BENEFICIAL USE DETERMINATION
The above-entitled matter was originally heard at a duly advertised and regularly scheduled,
public hearing in May of 1997 by the former Special Master, Randolph W. Sadtler. The matter was
originally filed for a determination of Vested Rights pursuant to Section 9.5-181 et. seq. of the
Monroe County Code and scheduled for a final determination by the Monroe County Commission
during the summer of 1998. Pursuant to an agreement between the Applicants and the Monroe
County staff, the "Vested Rights" case was converted into a Beneficial Use case which was duly
advertised and regularly scheduled.
The Beneficial Use Determination Hearing commenced January 25th, 1999 and was
continued to February 12th, 1999 at the applicant's request. The applicants called three (3)
witnesses, Donald Craig, Edgar Braswell, and Timothy McGarry, the Monroe County Director of
Planning. The County did not call any additional witnesses. Attorney David Paul Horan represented
the applicants, Gilbert and Lemon, and Assistant County Attorney, Garth Coller and Attorney Karen
Cabanas of Morgan & Brooks, 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. On March 31 st, 1977, Monroe County issued Permit 22-2225 for the construction
of a 2,500 square foot CBS commercial structure on the subject property.
2. Subsequent permits were issued for completion ofthe previously approved work
on June 21,1978 (Permit #3831-A) and November 8,1990 (Permit #901-1801). The permit
holder, however, died shortly thereafter and the partially completed project was essentially
abandoned as a result of probate litigation.
3. On August 30th, 1994, as a result of probate litigation involving the deceased
permit holder, there was a sale of the subject property with the partially completed structure to
the applicants, Gilbert and Lemon. At the time the applicants purchased the property, it was and
is currently zoned Suburban Commercial (SC).
4. The applicants' expert witness, Edgar Braswell, is a General Contractor with ten
(10) years of experience in the Florida Keys.
5. In order to construct the partially completed structure that applicants purchased on
the subject property (using today's market prices) would require an expenditure of approximately
One Hundred Eighty-four Thousand ($184,000.00) Dollars.
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6. All of the general site work on the subject property has been done, the foundation
work has been completed, the building slab is in place (including the columns and walls), and the
building is about ready to receive the tie-beams. The partial structure presently existing
represents over half of the cost (using today's market prices) of the final completed structure.
7. In order to complete the construction, the reinforcing bar may have to be sand-
blasted and treated where it emerges from the columns and other work may be required to bring
it up to code.
8. Based upon the testimony ofthe expert witnesses and the Court's review of the
plans and the photographs of the subject property, to allow it to remain in its present condition
would constitute a continuing eyesore to the public.
9. To deny beneficial use would essentially deprive the applicants Gilbert and
Lemon of any economically reasonable beneficial use of the property and the improvements that
today would cost in excess of One Hundred Eighty-four Thousand ($184,000.00+) Dollars, not
including the cost of the land itself.
10. Without a Beneficial Use Determination in favor of the applicants, the completion
of the structure on Big Pine Key would be impossible in the foreseeable future and denial of
beneficial use would be a denial of any reasonable economic use of the partially completed
structure now or in the future.
11. Even if the substantially completed structure was excluded from consideration,
the use of the applicants' property for outdoor storage would require a Monroe County
Commercial Development Permit (which has not been issued) and such storage would be
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restricted to no more than 25% of the total property, in spite of the fact that the completed
structure occupies well in excess of25% ofthe property.
12. If/After the Commercial Development Moratorium is lifted, the Monroe County
Comprehensive Plan limits commercial development on Big Pine Key to a total of239 sq.ft. of
commercial development for every residential unit that is allowed to be built each year. Under
the present Monroe County Development Regulations, a total of eight (8) units of residential
housing are allocated to Big Pine per year. Mr. McGarry, Monroe County's Director of Growth
Management, testified that he did not believe that the eight (8) residential units could or would
be built on Big Pine Key each year based on the present status of the number of "negative points"
that are awarded and the competing of these points with other properties in the Lower Keys.
13. Future commercial construction on Big Pine Key is inextricably intertwined with
the number of residential units that are allowed to be constructed in the future (239 sq.ft. for each
residential unit constructed) and future Big Pine residential units may be five or six (5 or 6) years
in the future, and will probably cost an extra Twenty-five Thousand to Thirty Thousand ($25,000
to $30,000) Dollars each in "mitigation dollars", requiring a hopeful builder to acquire additional
lots in order to qualify for one of the residential building permits.
14. In Monroe County, and specifically Big Pine Key, there is presently a
Commercial Rate of Growth Moratorium (Commercial ROGO) prohibiting any commercial
development and this includes substantially completed structures such as exist on the applicants
improved real property.
15. The applicants, purchased the property and substantially completed structure in
1994, prior to Monroe County's adoption of the Year 2010 Comprehensive Plan. The
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applicants, had every reason to expect they would be allowed to complete the substantial
completed building already existing on the property. It is unrefuted that nearly all of the
purchase price paid by the applicants was attributed to the existing structure.
CONCLUSIONS OF LAW
1. The applicants' property is designated "Suburban Commercial" and the
application of the 2010 Comprehensive Plan and the present Commercial Building Moratorium
(RaGa) has not only rendered the applicants' property unbuildable, but it has also rendered the
substantially completed building on the property unusable for any reasonably economic purpose.
2. The original permit and the subsequent permits issued with regard to the
construction of the substantially completed building existing on the property were issued prior to
Monroe County's adoption of the Residential Rate of Growth Ordinance (ROGO) and the
Commercial Rate of Growth Ordinance (Commercial ROGO) and the County's Commercial
Development Moratorium. It would be unfair and unreasonable, and an inequitable financial
burden on the applicants to require them to bear the additional costs and delays of waiting until
the end of the Commercial Development Moratorium and then requiring the applicants to enter
the County's Commercial ROGO system. Furthermore, denial of beneficial use would require
the demolition of the prior improvements on the subject property.
3. Pursuant to the Objective and Policy #101.18 adopted by Monroe County for the
purpose of the determination of beneficial use and for the effect of such determination, I have
considered the economic impact of the policy or regulations that prohibit the completion of the
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presently existing substantially completed building on the applicants' property and has
considered the extent to which present Monroe County regulations have interfered with the
applicants' reasonable investment backed expectations.
4. Although just compensation could be the "preferred option" under Policy
101.18.5, there is no evidence that the Land Authority is interested in acquisition of the lot and
partially completed structure which is located in the developed commercial area of Big Pine Key.
5. The completion of the presently existing and substantially completed building
should be approved as the minimum necessary to avoid a "taking" based on current land-use case
law.
WHEREFORE, I recommend to the Board of County Commissioners that a Final
Beneficial Use Determination be adopted approvin~ completion of the structure on the
applicants' property due to the applicants' having met the criteria for eligibility set forth at 9.5-
172 Monroe County Code. This approval should be subject to the following conditions:
A. The applicants shall re-submit an application for a building permit using the same
footprint and the existing improvements, including written approval by the Department of Health
for a waste water disposal and treatment system.
B. This Beneficial Use Determination shall not exceed five (5) years and is
contingent upon the applicants releasing Monroe County from any and all liability, past, present
and future, with regard to the subject property and improvements thereon.
C. The applicants shall not be required to pay any impact fees for their building
permit under this Beneficial Use Determination and the applicants shall further be exempt from
Monroe County's Commercial Rate of Growth Ordinance because the original permits were
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issued and the applicants acquired the property prior to the adoption by Monroe County of its
Commercial Rate of Growth Ordinance.
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DONE AND ORDERED this "2/0 day of June, 1999.
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