Item P3 P.3
County f � .�� ",�, 1 BOARD OF COUNTY COMMISSIONERS
Mayor Craig Cates,District 1
Mayor Pro Tem Holly Merrill Raschein,District 5
The Florida Keys
Michelle Lincoln,District 2
James K.Scholl,District 3
David Rice,District 4
County Commission Meeting
March 22, 2023
Agenda Item Number: P.3
Agenda Item Summary #11778
BULK ITEM: No DEPARTMENT: County Attorney's Office
TIME APPROXIMATE: STAFF CONTACT: Bob Shillinger(305) 292-3470
Yes
AGENDA ITEM WORDING: Discussion and direction about a Bay Drive community proposed
amendment to Section 19-1 of the County Code that would permit the abandonment of platted public
roads that terminate in water in the limited circumstance where ownership would ultimately reside in
a home owners association that would assume access control and maintenance obligations.
ITEM BACKGROUND: The Commission has had numerous discussions regarding the use of a
platted right of way known as Bay Drive in the Sunset Point community. The 60 foot wide, over
200 foot long section of Bay Drive that terminates in Florida Bay is unpaved and covered in grass
with a sandy beach area at the waters edge. The subject property has been used for decades as a
point of access to the water by residents of the two adjoining subdivisions where Bay Drive is
located, as well as members of the surrounding community. Over the years, that beach and the grass
area has grown in popularity by visitors coming from far beyond the neighborhood and the
surrounding community. The additional users have exceeded the reasonable carrying capacity of the
property, with resulting deleterious effects on the surrounding neighborhood. Such effects include
heavy traffic, speeding, illegal parking, trespassing on private property, as well as heated
confrontations. Those issues have led to hundreds of calls for service with the Sheriff's Office.
While not a formal County park, the Board has adopted rules of conduct for use of the right of way
in a way that it functions as a quasi-park. Those rules have proven ineffective to maintain the health,
safety, and welfare of those living near the property. At the neighborhood's urging, the Board
adopted a limited closure order, reducing the hours of access to 7 am to 7 pm on Tuesdays,
Wednesdays, and Thursday's only. Those limitations have curbed the overuse and abuses of the
parcel but limited the ability of local residents to access the water through this property as they have
historically done.
In the past, surrounding property owners suggested that the County abandon Bay Drive as one
method to limit the access and use to the property. Under the current iteration of Section 19-1 of the
County Code, the Board is prohibited from granting such relief because the right of way terminates
in a body of open water and provides access to land on the water. After multiple discussions with
the Board in public meetings, some of those property owners retained counsel to explore a replat of
Packet Pg.4045
P.3
the 2 relevant subdivisions in a manner that would"undedicate" Bay Drive to the County for public
use. The County Attorney has opined that such a replat would require the consent of 100% of the
affected property owners in both plats. Meeting that threshold has proved challenging.
As an alternative to the replat, counsel for the neighborhood has drafted a proposed ordinance that
would amend Section 19-1 of the Code to allow a limited exception to the rule prohibiting road
abandonments. The proposed new language would add a paragraph (4)to Section 19-1(b) and
appears below in underlined and bold format:
Sec. 19-1. Abandonment of rights-of-way.
(a) All applications for the abandonment of public rights-of-way shall demonstrate the right-of-way is no longer
required for public use and convenience.Any proposed abandonment must demonstrate that such action
will not adversely affect public safety or convenience or otherwise have a negative impact on the county
system of streets or public or private utility facilities.
(b) No dedicated and accepted right-of-way in the county shall be abandoned where:
(1) The right-of-way terminates on a body of open water; or
(2) The right-of-way provides access to the public to land on open water; or
(3) The abandonment would preclude a way for the public to maintain access to the water.
(4) Notwithstanding the foregoing,a dedicated and accepted right-of-way in the county may be
abandoned,and any right of the county and the public in and to said right-of-way may be renounced
and disclaimed,where the right-of-way is in a recorded residential subdivision plat,and the
following conditions are satisfied:
(a)The abutting fee owners agree to dedicate the right-of-way as open space for use and enjoyment of
the owners within the residential subdivision;
(b)The abutting fee owners convey their reversionary interests to a homeowner's association made up
of at least 75%of owners in an abutting residential subdivision;
(c)The homeowners'association is both a corporation not for profit organized and in good standing
under chapter 617,and a "homeowners'association"as defined in s.720.301(9)with the power to
levy and collect assessments for routine and periodic major maintenance;
(d)The homeowner's association is responsible for maintenance of the right-of-way as open space;and
(e)Provided that no owner within an abutting residential subdivision may be denied entry to and
reasonable use of the open space.
The full text of the proposed revised ordinance appears as backup. The draft does not suggest any
changes to any subsection of Section 19-1 other than subsection (b). Subsection (a) as well as
subsections (c) through (m)would remain unchanged if the proposed ordinance was adopted.
Section 19-1(b)'s prohibition against abandoning roads and rights of way that terminate in open
water, abandonments that would prohibit access to public land on open water, or abandonments that
would preclude a way for the public to maintain access to the water has existed in one form or
another for decades. Prior commissions adopted and preserved these restrictions as a means of
preserving long standing public access to the water in the Florida Keys. The current ordinance
serves as a locally adopted restriction on the broad discretion that state law vests in county
commissions with respect to road abandonments. Even though this ordinance has existed in some
form for decades, it remains within the Board's province to modify or rescind this ordinance.
Because this proposal is a stark contrast to the position of multiple prior Boards, staff is positing this
Packet Pg.4046
P.3
neighborhood suggested proposal as a discussion item. If there is sufficient interest in considering
this proposal, staff would ask the Board's authorization to incur the expenses necessary to advertise
a public hearing on the proposed ordinance. The Board would retain the discretion at that public
hearing to approve, modify, or reject the language proposed by the neighborhood's counsel in the
draft ordinance.
In addition to Section 19-1 of the Code, there may be provisions of the Comprehensive Plan that
might also have to be revised. That process, if deemed necessary, would take considerably more
time than simply amending Section 19-1 of the Code would take. The specific provisions at
question would be Strategy 10.4 and Action Item 10.4.2 of the Tavernier Creek to Mile Marker 97
Livable CommuniKeys Master Plan. Those provisions read:
: trait g", 110A
1 ratec-t and inaintain A existing public acce, pouils, vk° thin the p1mumiag; e,a
Al on, a-ni 1 . .2: Do uni alloit, abanddatn:tient of c unt , wtied land with access to the
Sh re
PREVIOUS RELEVANT BOCC ACTION: While the Board has had many discussions of Bay
Drive in the past, this is the first discussion of this proposal to change Section 19-1(b) of the Code.
CONTRACT/AGREEMENT CHANGES:
n/a
STAFF RECOMMENDATION: None.
DOCUMENTATION:
Draft of Proposed Changes - Sunset Point
Bay Drive Aerial annotated
Bay Drive photo aerial
FINANCIAL IMPACT:
Effective Date:
Expiration Date:
Total Dollar Value of Contract:
Total Cost to County:
Current Year Portion:
Budgeted:
Source of Funds:
CPI:
Indirect Costs:
Estimated Ongoing Costs Not Included in above dollar amounts:
Packet Pg.4047
P.3
Revenue Producing: If yes, amount:
Grant:
County Match:
Insurance Required:
Additional Details:
n/a
REVIEWED BY:
Bob Shillinger Completed 02/15/2023 4:53 PM
Emily Schemper Completed 03/06/2023 9:45 AM
Judith Clarke Completed 03/06/2023 2:01 PM
Kevin Wilson Completed 03/06/2023 4:28 PM
Bob Shillinger Completed 03/07/2023 1:18 PM
Purchasing Completed 03/07/2023 1:24 PM
Budget and Finance Completed 03/07/2023 3:20 PM
Brian Bradley Completed 03/07/2023 3:29 PM
Lindsey Ballard Completed 03/07/2023 3:38 PM
Board of County Commissioners Pending 03/22/2023 9:00 AM
Packet Pg.4048
P.3.a
1 Section 19-1(b), Abandonment of rights-of-way, of the Monroe County Code is hereby
2 created to read as follows:
U)
0
CL
3 Sec. 19-1. Abandonment of rights-of-way.
4 (a) All applications for the abandonment of public rights-of-way shall demonstrate the right-of-way is no longer
5 required for public use and convenience.Any proposed abandonment must demonstrate that such action
6 will not adversely affect public safety or convenience or otherwise have a negative impact on the county
7 system of streets or public or private utility facilities.
0
4-
8 (b) No dedicated and accepted right-of-way in the county shall be abandoned where:
9 (1) The right-of-way terminates on a body of open water; or
10 (2) The right-of-way provides access to the public to land on open water; or
0
11 (3) The abandonment would preclude a way for the public to maintain access to the water.
12 (4) Notwithstanding the foregoing,a dedicated and accepted right-of-way in the county may be E
13 abandoned,and any right of the county and the public in and to said right-of-way may be renounced 0
14 and disclaimed,where the right-of-way is in a recorded residential subdivision plat,and the
15 following conditions are satisfied:
16 (a)The abutting fee owners agree to dedicate the right-of-way as open space for use and enjoyment of
17 the owners within the residential subdivision;
18 (b)The abutting fee owners convey their reversionary interests to a homeowner's association made up
19 of at least 75%of owners in an abutting residential subdivision;
20 (c)The homeowners'association is both a corporation not for profit organized and in good standing
21 under chapter 617,and a "homeowners'association"as defined in s.720.301(9)with the power to 0
22 levy and collect assessments for routine and periodic major maintenance; 0
U)
23 (d)The homeowner's association is responsible for maintenance of the right-of-way as open space; and
U
24 (e) Provided that no owner within an abutting residential subdivision may be denied entry to and
25 reasonable use of the open space.
26
0
CL
27 (c) In all other cases of abandonment, no right-of-way shall be abandoned unless there is an agreement to do so
28 by all affected property owners. For purposes of this subsection,an affected property owner is the owner of U)
C
29 property which directly adjoins the area subject to abandonment or, if the right-of-way is abandoned,will:
30 (1) Have access that is currently used by that property owner eliminated or diminished; U)
31 (2) Have the only platted access eliminated;
32 (3) Have the paved area adjacent to that property increased for turn-around purposes; or U
33 (4) Be increased in size.
0
34 (d) All right-of-way abandonments shall comply with the County Code and standard engineering requirements 0
35 for road,turn-around and fire-rescue access. If required for safety purposes,as determined by either fire CL
36 marshal or county engineer,a dedicated turn-around area shall be shown on the submitted survey and shall 0
37 be agreed to in writing and constructed with payment by the property owner(s)requesting abandonment.
38 (e) A right-of-way may be abandoned only at the terminal portion of the road and in its full width unless one of
39 the following applies:
E
c�
CODING:Words in strike through type are deletions from existing law;
Words in underlined type are additions.
Packet Pg.4049
P.3.a
7
1 (1) An adjacent lot owner has on the platted right-of-way or within a setback a substantial structure which C
0
2 predates the Special Session Law 59-1578 pertaining to maps, plats and right-of-way.The term
3 "substantial structure"specifically does not include wood or metal fences,sheds or tiki huts or other
4 items not listed which are accessory structures;or U)
0
CL
5 (2) The abandonment is requested by a county department or governmental agency for a public use;for
6 purposes of this subsection public use is a public facility and/or public/private utility; or
7 (3) The right-of-way area is unusual in size or shape and after abandonment the remaining right of way
8 width will be the same on both sides of the abandonment as show in Example 1.
0
4-
c�
C
exam 1 J
g E
M
10 (f) Any right-of-way abandonment at the end of a road requires adequate turning radius for public safety a
11 vehicles.The applicant shall coordinate with the Monroe County Fire Marshal, Engineering Department,and 0
12 Sheriff's Office prior to application submittal. E
U)
13 (g) For all right-of-way abandonments at the terminus of a road where a turn-around is required by the Monroe
14 County Fire Marshal, Engineering Department,or Sheriff's Office the applicant shall submit a survey showing
15 the proposed location and dimensions.
16 (h) All right-of-way abandonment requests shall require a survey prepared by a state licensed surveyor,dated E
0
17 not more than 180 days prior to the date of submission of the application.The survey shall depict the precise CL
18 location and dimensions of the area to be vacated and text from the recorded plat that dedicated the right-
U)19 of-way.The survey shall also depict all parcels of land within 200 feet of the subject right-of-way and all
20 public and private easements, public utility facilities and private franchise facilities located in or upon said
21 right-of-way.The planning director and county engineer may elect to waive elements of the survey
22 requirements in cases where it is determined that inclusion of an element on the survey is not necessary for
23 the evaluation of the application.
24 (i) Applicant must submit a copy of the recorded plat with the application. U
25 (j) All applications require a title certification, prepared not more than 90 days prior to submission of the U)
0
26 application specifying language from the plat that dedicated the right-of-way and the county's interest in the C
27 right-of-way. CL
4-
28 (k) Each abandonment application shall include written statements,dated not more than 90 days prior to the 0
29 date of submission of the application,from all public and private utilities servicing the subject property
30 including water,sewer,electric,telephone,and cable television stating any objection or required mitigation
31 to the proposed abandonment.
E
c�
CODING:Words in strike through type are deletions from existing law;
Words in underlined type are additions.
Packet Pg.4050
P.3.a
7
1 (1) Upon the filing of a complete application,as determined by the planning director the petition shall be C
2 reviewed by affected county departments as follows:
3 (1) Review for consistency with the comprehensive plan by the department of planning.
0
4 (2) Review for impact on public safety and convenience by the county engineer,sheriff,and fire marshal or CL
5 designees.
6 (3) Review for impact on transportation system and drainage by the county engineer,or designee.
7 (4) Review for title interest by county attorney.
8 (m) The board of county commissioners considers these a restriction on the rights of individuals who desire to
9 abandon properties in accordance with F.S. §336.09.
c�
10 (Code 1979, § 16-1;Ord. No. 15-1986,§§ 1-3; Ord. No.28-1998, § 1; Ord. No.017-2010, § 1; Ord. No.026-2015,
11 § 1)
0
12
13 E
14 C
0
15
0
C
0
U)
U)
c�
A
0
CL
U)
U
U)
0
CL
0
L-
CL
4-
0
E
c�
CODING:Words in strike through type are deletions from existing law;
Words in underlined type are additions.
Packet Pg.4051
P.3.b
(4;,
ublic.nel'" Monroe County, FL
Overview
CL
Legend
Major Roads
enter ine
Hooks
RoaC �
enter
� r
✓� /%%/� W Rights of Way 0
Condo Building �
I �
M
Conservation
w Easement 0
M . Key Names
Subdivisions
Parcels
0
v "
� II
s
' I
2
i
0
Date created:5/9/2017
Last Data Uploaded:5/9/20172:08:17AM
�� Developed by
Schneider The Schneider Corporation 00
E
U
Packet Pg.4052
P.3.c
;111i Publi ,net... Monroe County, FL
I C pi L. Overview
0
Al�r 0
Ill uuuppjijl
f m uuuuuum uuuum uu°°I ^'I Legend
Centerline
Easements 0
Hooks
Lot Lines
Road Center �
Rights of Way 0
Shoreline
E
Condo Building �
0 Key Names
Subdivisions �
Parcels
k,a �, lA��r�il, �� �,�� '��7�` ' � ✓��j//r �qnm�fi„o f8J
of to a�
�m
0
CL
Date created:5/28/2021
Last Data Uploaded:5/28/20214:18:09AM
Developed by " Ir1ICi r
E
U
Packet Pg.4053