Resolution 167-1988
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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
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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
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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.
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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
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