Resolution 454-1999
County Attorney
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~ ==A ii:~UTION OF THE BOARD OF COUNTY COMMISSIONERS OF MONROE
e::: ~C:I' EVIDENCING THE BOARD' S APPROVAL OF A RECOMMENDED
~ ..... BE. . AL USE DETERMINATION PROMULGATED BY THE SPECIAL MASTER, IN RE:
l4. . ,THEJA ICATION OF STUART C. APTE
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-.l <:) W"S, on January 4,1996, the Monroe County Year 2010 Comprehensive Plan became
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RESOLUTION NO.454 -1999
WH EREAS, the application of Stuart Apte for determination of beneficial use was first heard
by Special Master J. Jefferson Overby on February 12, 1998, and continued to give the County
time to complete and adopt its ADID wetlands program; 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 Special Master
as set forth in the proposed determination are APPROVED and the application of Stuart Apte is
accordingly APPROVED, subject to the conditions listed in the attached Proposed Beneficial Use
Determination, dated March 30, 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.
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/....;MaY0{,Wilhelmina Harvey
/. Commissioner Shirley Freeman
I,,,,,. Commissioner George Neugent
,.;"i~ Commissioner Mary Kay Reich
,~..,.;,\~. .. COl1?missioner Nora Williams
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Y L. KOLHAGE, Clerk
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
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Mayor/Chairman
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Deputy Clerk '
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BENEFICIAL USE
MONROE COUNTY SPECIAL MASTER
In Re: Stuart C. Apte- Beneficial Use
Application
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PROPOSED
BENEFICIAL USE DETERMINATION
The above entitled matter was originally heard at a duly-advertised and regularly
scheduled, public hearing on February 12, 1998, by J. Jefferson Overby, designated
Beneficial Use Special Master. Richard Fowler, Esq., of Fowler & Fowler, represented
the applicant, Stuart C. Apte, and Assistant County Attorney Garth Coller, Planning
Director Timothy J. McGarry, Director of Planning and Ross Alliston, Director of
Monroe County Division of Environmental Resources, represented Monroe County. This
case was continued by the hearing officer until after December 31, 1998 to give the
county time to complete and adopt its ADID (wetlands) program. The County has not yet
done so and the matter was re-set to January 25, 1999 at a regularly scheduled and
advertised public hearing and continued at the applicant's request to the regularly
scheduled and advertised public hearing of March 26, 1999, held at the Harvey
Government Center in Key West.
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.Cas 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 Applicant purchased the subject property in October 1959, which are
three lots of record, located at Lots 1,2, and 3, Block 8, Windward Beach Estates, Little
Torch Key CRE #00222640000000216629, 00222650000000216629,
0022266000000021662, respectively). The subject lots are vacant and are zoned
Improved Subdivision (IS). Lot 3 is characterized as disturbed with mangroves, Lots 1 &
2 are characterized as disturbed with saltmarsh and buttonwood association.
2. The Applicant has no permitting history other than the recording of the
subdivision plat.
3. The Improved Subdivision zoning of the subject property allows one
residential dwelling and accessory uses to be permitted on each lot, but for the
implementation of the 2010 Comprehensive Plan. The subject lots have no TDR value
under the current code.
CONCLUSIONS OF LAW
4. The Applicant's lots are designated Improved Subdivision (IS), which
allows one residential dwelling on each lot.
5. Application of Policy 204.2.6 of the 2010 Comprehensive Plan has
rendered the lots unbuildable.
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A. The'Monroe Land Development Regulations and the
comprehensive Plan require restrictive open space for disturbed wetlands and setback
requirements render lots 1 & 2 unbuildable.
B. The applicant has no ability for obtaining a variance from the
regulations for this lot which prevents development.
C. The applicant filed a timely application for determination of
beneficial use.
D. The subject property has been identified as unsuitable for
development using the proposed Advance Identification Wetlands (ADID)regulations.
6. 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 applicant's lots, which are located within an Improved Subdivision;
and
B. the extent to which the regulation has interfered with the
applicant's reasonable investment-backed expectation that some use could be made of
these lots; and
C. Staff recommendations.
7. The Planning Department has admitted that the applicant has been denied
all reasonable economic use of his property.
8. A strict application of Policy 204.2.6 would prevent or prohibit the
applicant from developing a single family dwelling on each lot.
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9. Although just compensation is the preferred option under Policy 10 1.18.5,
neither the applicant is interested in selling, nor the land authority is interested in
acquisition of these wetland, disturbed lots, which are located in a mostly-developed,
small-lot subdivision.
10. Limited development of these lots should be approved as the minimum
necessary to avoid a taking based on current land use case law, and that these lots are
suitable for development under specific conditions.
WHEREFORE, I recommend to the Board of County Commissioners that a final
beneficial use determination be entered approving limited development on these lots
(Lots 1 & 2) subject to the following conditions:
1. The applicant shall be allowed to submit a building permit
application for construction of a single family house on each of Lots 1 & 2.
2. Both lots shall be required to retain a 20 percent (20%) open space
requirements.
3. The applicant shall be required to obtain an allocation under the
County's Rate of Growth Ordinance (RaGa) and shall be bound by all current and future
county Land Developments except Comprehensive Plan Policies 203.13 (wetland
setbacks) and 204.24 (ADID), and then only as conditioned and provided for in this
beneficial use determination to allow construction of a single family house on each of Lot
1 & Lot 2.
4. This Beneficial use determination shall not exceed five (5) years
and is contingent upon the applicant's releasing Monroe County from all liability, if any,
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past, present and future, with regards to the subject properties.
DONE AND ORDERED this 30th day of March, 19 .
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