Resolution 368-2000
County Attorney
RESOLUTION NO. 368 -20000
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 SPECIAL MASTER. IN RE: THE APPUCATION OF BARBARA MOTT
WHEREAS, on January 4, 1996, the Monroe County Year 2010 Comprehensive Plan
became effective; and
WHEREAS, the application of BARBARA MOTT for determination of beneficial use was
heard by Special Master J. Jefferson Overby on February 16,2000; 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 BARBARA
MOTT is accordingly APPROVED, subject to the conditions listed in the attached Proposed
Beneficial Use Determination, dated May 15, 2000.
PASSED AND ADOPTED by the Board of County Commissioners of Monroe County,
Florida, at a regular meeting of the Board held on the 20th day of September, 2000.
Mayor Shirley Freeman
Commissioner Wilhelmina Harvey
"au mmissioner George Neugent
issioner Mary Kay Reich
ssioner Nora Williams
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BENEFICIAL USE
MONROE COUNTY SPECIAL MASTER
In Re: Barbara Mott- 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 January 23, 1998, by 1. Jefferson Overby, designated
Beneficial Use Special Master. Nicholas Mulick, Esq., now of Hershoff, Lupino, &
Mulick, represented the applicant, Barbara Mott, 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 to give the county time to
complete and adopt its ADID (wetlands) program. The County has now done so and the
matter was re-set to February 16,2000, at a regularly scheduled and advertised public
hearing, held at the Government Center in Marathon. Nicholas Mulick represented the
applicant, Barbara Mott, and Assistant County Attorney Garth Coller and Planning
Director K. Marlene Conaway, 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. The Applicant purchased the subject property in December 9, 1988, which
are two lots of record, located at Lots 15 & 16, Block 4, Center Island, Duck Key Resub,
Section 2, Part 1, Duck Key, Book 5, Page 82 (RE #00379970-000000 & 00379980-
000000, respectively). The subject lots are vacant and are zoned Improved Subdivision
(IS). Lots 15 & 16 are characterized as low functional capacity freshwater wetlands.
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.
A. The Monroe Land Development Regulations and the
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Comprehensive Plan require restrictive open space for disturbed wetlands. These
requirements render lots 15 & 16 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 suitable for
development using the current Advance Identification Wetlands (ADID)regulations, with
mitigation.
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 101.18.5,
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 with mitigation.
WHEREFORE, I recommend to the Board of County Commissioners that a final
beneficial use determination be entered approving limited development on these lots
(Lots 15 & 16) 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 15 & 16 or one
single family dwelling if the lots are combined.
2. Both lots shall be required to retain a 20 percent (20%) open space
requirements and no filling shall be allowed within the designated open spaces.
3. The applicant shall be required to obtain an allocation under the
County's Rate of Growth Ordinance (ROGO) and shall be bound by all current and future
county Land Developments except Comprehensive Plan Policies 203.1.3 (wetland
setbacks) and 204.2.4 (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
15 & Lot 16.
4. This Beneficial use determination shall not exceed ten (10) years
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and is contingent upon the applicant's releasing Monroe County from all liability, if any,
past, present and future, with regards to the subject properties.
DONE AND ORDERED this 15 day of May, 2000.
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