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Resolution 167-1988 .;0- ,'. Monroe County Commission RESOLUTION NO. 167 -1988 A RESOLUTION OF THE BOARD OF COUNTY COMMIS- SIONERS OF MONROE COUNTY, FLORIDA, ACCEPTING AND ADOPTING THE FINDINGS OF FACT, CONCLU- SIONS OF LAW AND RECOMMENDED ORDER CONCERNING THE VESTED RIGHTS HEARING OF MADEIRA BAY, INC. WHEREAS, on February 9, 1988, a vested rights hearing was held in Key West, Monroe County, Florida, concerning Madeira Bay, Inc., and WHEREAS, in accordance with said hearing, John E. Bigler, Jr., Hearing Officer for Monroe County, Florida, entered a Findings of Fact, Conclusions of Law and Recommended Order concerning said Madeira Bay, Inc., and WHEREAS, the Board of County Commissioners of Monroe County, Florida, now desires to accept and adopt said Findings of Fact, Conclusions of Law and Recommended Order concerning said Madeira Bay, Inc., now, therefore, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA, that the Board hereby accepts and adopts, pursuant to Section 8-302(b)(5) of the Florida Keys Comprehensive Plan's Land Development Regulations, the said Findings of Fact, Conclusions of Law and Recommended Order entered by John E. Bigler, Hearing Officer, concerning Madeira Bay, Inc., a copy of which is attached hereto and made a part hereof. PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Florida, at a regular meeting of said Board held on the 5th day of April, A.D. 1988. BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA g,1~~~;jf~~1 -' ~ ./ MAYOR/CHAIRMAN BY: (SEAL) Attest : DANNY L. KOLH1\.GE, Clerk ~<lO ~. / OL- o CLERK STATE OF FLORIDA COUNTY OF MONROE VESTED RIGHTS HEARING MADEIRA BAY, INC., Petitioner, vs. . . MONROE COUNTY, Respondent. I FINDINGS OF FACT, CONCLUSIONS OF LAW AND RECOMMENDED ORDER Pursuant to notice, this cause came o~ for Hearing before John E. Bigler, Jr., duly designated Hearing Officer, commencing at or about 10:00 a.m. on Tuesday, February 9, 1988, in Key West, Monroe County, Florida. The appearances were as follows; APPEARANCES For Petitioner: Thomas Davison IV, Esquire and Fred Tittle, Esquire Tittle & Tittle, P.A. 91760 Overseas Highway Tavernier, Florida 33p70 Randy Ludacer, Esquire Assistant County Attorney 310 Fleming Street Key West, Florida 33040 Wayne Taylor, County Staff Member, Monroe County Planning Board 5825 Jr. College Road Key West, Plorida 33040 This cause arose upon the filing of an application for For Respondent: , " determination of Vested Rights dated August 12, 1987, filed by TITTLE & TITTLE, P.A., on behalf of Madeira Bay, Inc. The Hearing was held pursuant to a legal authority and jurisdiction as found in Sect1on, 4-107 and Chapter 8, . Volume 3, ,. Florida Keys Comprehensive Plan. The Hearing was conducted under the rules ot procedure as set forth in Chapter 28-5, Florida Administrative Code and Chapter 120, Florida statutes. the following witness at the Hearing: 1. Julia Marion Moeller, who gave sworn testimony. The Petitioner called The hearing was open' to the public and provisions were made for public input, if any. RECEIVED- MAR 2 9 1988 COUNTY ADMINISTRATOR .0 At the commencement of the Hearing, counsel for the Petitioner filed with the Hearing Officer four affidavits attesting to posting of notice as required by Section 5-105 of the Monroe County Comprehensive Land Use Plan as to the Hearing. Filed immediately thereafter was a Joint Stipulation for Positive Determination of Vested Rights executed by Fred Tittle as attorney for the Petitioner and Randy Ludacer for and on behalf of Monroe County. Exhibits supporting that joint stipulation were additionally filed. The issues to be resolved in this proceeding are whether or not the Petitioner meets the standards for vested Rights as set forth in Division 3, Vested Rights, Volume 3, Florida Keys Comprehensive Land Use Plan of Monroe County. FINDINGS OF FACT 1. Charles Richard Moeller and Julia M. Moeller purchased the subject property for $250,000.00 in 1982. 2. Affidavits were submitted by Madeira Bay, Inc. establishing that the notices required pursuant to 9.5-45 of the Monroe County Code, had been properly posted. 3. The Petitioner, Madeira Bay, Inc. a/k/a Madeira Bay Condominium, is a Florida corporation which acquired the subject property, 2.3 acres in Is1amorada, Monroe County, Florida in 1985. J 4. Madeira Bay, Inc. purchased the property relying on valid unexpired governmental acts of Monroe County authorizing the specific development for which a determination is sought. 5. Charles Richard Moeller, Julia M. Moeller and Madeira Bay, Inc. have made obligations and expenditures totalling more than $636,538.40 ~or development 'of the subj~ct property relying' on valid unexpired governmental acts of Monroe County authorizing the specific development, through August of 1987. 6. The Petitioner has demonstrated that they have satisfied Section 9.5-183 of the Monroe County Code in the following manner: I (8) Under Section 9.5-183(a)(1): Application pages 19, 20, 21, 23, 24, 27, 29, 30 and 32 and sworn testimony which was not objected to or otherwise impeached, set forth the Governmental acts of Monroe County authorizing the specific development. (b) Under Section 9.5-183(a)(2): Application pages 6, 7, 8, and 9 and sworn testimony support the fact that the Petitioner has made obligations and expenditures which were incurred in reliance upon the authorizing acts of the County and which are not reasonably usable in a development permitted by the current Monroe County Comprehensive Land Use Plan. (C) Under Section 9.5-183(a)(3)a.: Application pages 6, 7, 8 and 9 and sworn testimony support the Petitioner's position with regard to the fact that actual construction had commenced and that the expenses and obligations incurred are unique to the development previously approved by Monroe County prior to the effective date of these new land use regulations. (d) Under Section 9.5-183(a)(3)b.: The Vested Rights Application and sworn testimony supports the fact that the Petitioner would suffer irreparable injury if the project were not allowed to continue under the old Land Use Plan. (e) Under Section 9.5-183(a)(3)c.: Application page 12 supports the fact that the project when initially I commenced would be economically viable to the Petitioner. (f) Under Section 9.5-183(a)(3)d.: Application page 4, 49, 50 and 51 , Petitioner made and testimony support the fact ~hat the substantial " obligations without knowledge of the current zoning changes nor did the Petitioner know how the ch~nges would effect the subject property prior-to the substantial expenditure. of funds. (g) Under Section 9.5-183(a)(3)e.: Application page 6 and sworn testimony supports the fact that the Petitioner has made substantial expenditures and has constructed the infrastructure for an eight unit single family residential condominium. It would be impossible for the Petitioner to make a reasonable return on the expended expenses if they were required to develop in a manner consistent with the new Comprehensive Land Use Plan of Monroe County. . 7. With reference to Section 9.5-184(a) of the Monroe County Code, the Petitioner has already expended substantial funds and has incurred many obligations, as documented throughout the Application, and testimony which demonstrate that the only relief available under this Land Use plan would be to grant a positive determination of vested. Rights by the County, with which the County has stipulated, for the completion of the Development, which consists of eight single family residential units in a condominium complex, as contemplated and permitted. CONCLUSIONS OF LAW As a result of the documents placed into evidence and the testimony given at this Hearing, the following Conclusio~s of Law are made: 1. This Hearing Officer ratifies the Joint Stipulation for a Positive Determination of Vested Rights entered into between the Petitioner. Madeira Bay, Inc. and Monroe County. 2. Trtis Hearing Officer finds as a Conclusion of Law, that I the Petitioner has satisfied each of the criteria set forth in Section 9.5-183, Standards for 'vested Rights, of the Monroe County Code. 3. Additionally, this Hearing Officer finds as a Conclusion of Law, that the Petitioner is entitled to 8 positive . determination of vested rights under Florida Statutes Chapter 380.05(18) (1985), which states in part: "Neither the designation of an area of critical state concern nor the adoption of any regulations for such an are. shall in any way limit or modify the rights of any person to complete any development that has been authorlzed...by a building permit or other authorization to commence development on which there has been reliance and a change of position...lf a developer has by his actions in reliance on prior regulations obtained vested or other legal rights that in law would have prevented a local government from changing those regulations 1n a way adverse to his interests, nothing " . in this chapter authorizes any governmental agency to abridge those rights". RECOMMENDATION Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witness, and the pleadings and arguments of the parties, and the stipulation entered into between the parties, it is therefore, , . RECOMMENDED that the Petitioner, Madeira Bay, Inc., a/k/a Madeira Bay Condominium, be and are entitled to a positive determination of vested rights under both Section 8-303 of the new Monroe County Comprehensive Land Use plan (Codified as Section 9-5.183 of the Monroe County Code), as well as, Florida Statutes Chapter 380.05(18) (1985), in this Proceeding. DONE and ORDERED this 21 day of March, 1988, in Key West, Monroe County, Florida. ~ JO BIGLER, ESQUIRE He ring Officer for Monroe County 604 Whitehead Street Key west, Florida 33040 (305) 294-8363 copies to: WAYNE TAYLOR 5825 Junior College stock Island Key West, Florida 33040 RANDY LUDACER, ESQ. 310 Fleming street Key West, Florida 33040 , FRED TITTLE, ESQ. Post Office Drawer 535 Tavernier, Florida 33070 THOMAS DAVISON, IV, ESQ. Post Office Drawer, 535 Tavernier, Florida 33070 COUNTY ADMINISTRATOR Public Service Building Wing 3 Stock Island, FL 33040 ~