Resolution 452-1999
County Attorney
RESOLUTION NO.452 -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 LENNOX AND JEAN BERNARD ~ ~ ~ rT1
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WHEREAS, on January 4, 1996, the Monroe County Year 2010 Comprehensi-.@'<f!9!1 tfeta~
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WHEREAS, the application of Lennox and Jean Bernard for determination o~e~fic~ usEP
was heard by Hearing Officer Larry R. Erskine on April 21. 1999; now therefore
BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY,
FLORIDA. that:
The Findings of Fact and Conclusions of Law and recommendations of the Hearing Officer
as set forth in the proposed determination are APPROVED and the application of Lennox and
Jean Bernard is accordingly APPROVED, subject to the conditions listed in the attached
Recommended Order, dated June 2,1999.
PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Florida,
at a regular meeting of the Board held on the 9th day of September, 1999.
Mayor Wilhelmina Harvey
Commissioner Shirley Freeman
Commissioner George Neugent
.. _ . ioner Mary Kay Reich
.~ ComM' er Nora Williams
, . '"'-:. "
yes
yes
yes
yes
yes
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
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By ~d~.'~~-____~ ~
Mayor/Chairman
jbubernard
BEFORE THE HEARING OFFICER
FOR MONROE COUNTY, FLORIDA
INRE:
BENEFICIAL USE DETERMINATION )
FOR LENNOX AND JEAN BERNARD )
FOR LOT 7, BLOCK 4, CENTER ISLAND)
SUBDIVISION, DUCK KEY, FLORIDA. )
/
RECOMMENDED ORDER
The above-styled matter came on to be heard upon a duly-advertised and regularly scheduled
public hearing at the Monroe County Public Library on April 21, 1999, before Larry R. Erskine,
designated Hearing Officer. Andrew Tobin, Esq. appeared on behalf of the Applicants, and Garth
Coller, Esq. appeared on behalf of Monroe County.
Several witnesses were called to testify by the Bernards. Jon Grill, a local contractor, testified
that but for the wetland regulations imposed by the Monroe County Year 20 1 0 Comprehensive Plan,
the Applicants would have received a RaGa allocation and building permit in 1996 without
dedicating lots to the County. Robert Smith, a biologist, testified that the subject lot was a disturbed
salt marsh wetland, which would score low under the proposed new wetland definition. Appraisers
Richard Padron and Elaine Trujillo testified that the fair market value ofthe subject lot is $43,500
assuming the eligibility for a building permit.
Timothy McGarry, Director of Growth Management for Monroe County, and Ross Alliston,
Director of Environmental Resources, were called to testify on behalf of Monroe County. Mr.
McGarry was not in a position to state exactly how long the applicants would wait for a RaGa
allocation or Building permit. Mr. Alliston confirmed that the subject lot is unbuildable under the
current regulations, but would be buildable with appropriate mitigation under the proposed
regulations which would implement the Advance Identification of Wetlands (ADID) project.
ISSUE
Whether the Applicants will be denied all reasonable economic use of their property by
application of the Land Development Regulations and Policy 203.1.3 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 052-1977 and the Monroe County Code.
FINDINGS OF FACT
1. The subject property is a 7,700 square foot lot zoned Improved Subdivision. Approximately
5,000 square feet of the lot is classified freshwater wetlands. The lot and the surrounding area has
become a detention area for storm water.
2. The Applicants purchased the subject property in February of 1995 for $14,900. In 1995, the
Monroe County Property Appraiser assessed the property at $18,250. Since 1998, it has been
assessed at $50.
3. In April, 1996, the Applicants submitted an application for a building permit to construct a
single family dwelling. By his letter dated May 6, 1996, Ross Alliston denied the application, citing
the presence of freshwater wetlands on the lot.
4. The presence of freshwater wetlands over a majority of the site along with the minimum
wetlands setback requirements have rendered the lot unbuildable in that the Monroe County Land
Development Regulations and the Year 2010 Comprehensive Plan require a 100% open space ratio
for freshwater wetlands. Further, Policy 203.1.3 of the Comprehensive Plan requires a 50-foot
vegetated setback from all wetlands.
5. The subject property scores 2.78 pursuant to the Keys Wetland Evaluation Procedure.
Pursuant to the ADID project referred to herein above, any wetland with a score under 7.0 will be
suitable for filling and development with some form of mitigation. Accordingly, the subject lot
would be buildable with appropriate mitigation under the proposed regulations which would
implement the ADID project.
CONCLUSIONS OF LAW
6. The Applicants' lot is designated Improved Subdivision, which designation permits the
development of one single family dwelling.
7. In that a strict application of Policy 203.1.3 and the Land Development regulations of the
Year 2010 Comprehensive Plan would prohibit the Applicants from developing a single family
dwelling on the subject lot, the Applicants have demonstrated that they have been deprived of all
reasonable economic use of the property. Therefore, they are entitled to relief pursuant to Section
9.5-173(a) of the Monroe County Code.
8. Pursuant to Section 9.5-173(1 )(b), just compensation is the preferred remedy in situations
wherein "a strict, literal application or enforcement of the Comprehensive Plan or Land Development
Regulations in effect at the time of filing of the beneficial use application prevents all reasonable
use, but is required to protect the public health, welfare or safety."
9. In that the subject property has little environmental value and will be buildable under the
proposed ADID regulations, just compensation is not the preferred remedy.
10. Pursuant to Section 9.5-173(2), in situations wherein just compensation is not preferred, a
beneficial use "determination may allow for additional uses or density beyond that allowed by a
strict, literal application of the Comprehensive Plan and Land Development Regulations in effect
at the time of filing of the beneficial use application."
11. Pursuant to Section 9.5-1 73(2)(b ), the Applicants can obtain reasonable economic use of the
property, and, further, a taking is avoided, by a determination which results in an exemption or
waiver of the offending regulations referred to above.
RECOMMENDATION
12. The Applicants shall be permitted to submit a building permit application for the
construction of a single family dwelling on the subject lot.
13. The Applicants shall be exempt from the setback and open space provisions of Policies
203.1.3 and 204.24 of the Monroe County Comprehensive Plan, and there shall be an open space
requirement of 20 percent with no filling permitted within the designated open space.
14. The Applicants shall be required to obtain an allocation under Monroe County's Rate
of Growth Ordinance and shall be bound by all current and future Land Development Regulations,
except as provided for herein above.
IS. This beneficial use determination shall not exceed five years, and shall be contingent
upon the execution of a release by the Applicants wherein Monroe County is released from all
liability with regard to the subject property.
DONE AND ORDERED this 2nd day of June, 1999.
~~
Larry R. Erskine
Hearing Officer