Resolution 249-1988
Monroe County vvwmission
RESOLUTION NO. 249 -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 OCEANSIDE ISLAND
ASSOCIATES.
WHEREAS, on November 4, 1987, a vested rights hearing was
held in Key West, Monroe County, Florida, concerning Oceanside
Island Associates, and
WHEREAS, in accordance with said hearing, H. Ray Allen,
Hearing Officer for Monroe County, Florida, entered a Findings of
Fact, Conclusions of Law and Recommended Order concerning said
Oceanside Island Associates, 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
Oceanside Island Associates, now, therefore,
BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF
MONROE COUNTY, FLORIDA, as follows:
1. That the Board hereby accepts and adopts, pursuant to
Section 8-302(b)(S) of the Florida Keys Comprehensive Plan's Land
Development Regulations, the said Findings of Fact, Conclusions
of Law and Recommended Order entered by H. Ray Allen, Hearing
Officer, concerning Oceanside Island Associates, a copy of which
is attached hereto and made a part hereof.
2. That the Clerk of the Board is hereby directed to
forward a certified copy of this Resolution to the Department of
Community Affairs, P.O. Box 990, Key West, Florida 33041.
PASSED AND ADOPTED by the Board of County Commissioners of
Monroe County, Florida, at a regular meeting of said Board held
on the 21st day of June, A.D. 1988.
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
By:g~ .t
C/ m1AIf
(SEAL)
Attest:DANNy L. KOLHAGE, Clerk
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llPPROVfD AS TO FO.'?M
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STATE OF FLORIDA
COUNTy-oF MONROE
VESTED RIGHTS HEARING
OCEANSIDE ISLAND ASSOCIATES,
Petitioner,
v s.
MONROE COUNTY,
Respondent.
/
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
RECOMMENDED ORDER
Pursuant to notice, this cause came on for hearing before H.
Ray Allen, duly designated Hearing Officer, on November 4, 1987
in Key West, Florida. The appearances were as follows:
APPEARANCES
For Petitioner:
James T. Hendrick, Esquire
MORGAN & HENDRICK, P.A.
317 Whitehead Street
Key West, Fla. 33040
For Respondent:
Randy Ludacer, Esquire
Asst. County Attorney
310 Fleming Street
Key West, Fla. 33040
This cause arose upon the filing of an application for
determination of Vested Rights dated April 3, 1987 filed by
MORGAN & HENDRICK, P.A., on behalf of Oceanside Island
Associates.
The hearing was held pursuant to legal authority and
jurisdiction as found in Section 4-107 and Chapter 8, Volume 3,
Florida Keys Comprehensive Plan. The hearing was conducted under
the rules of procedure as set forth in Chapter 28-5, Florida
Administrative Code and Chapter 120, Florida Statutes. The
Petitioner called the following ~itnesses at the hearing:
1. Ms. Sandra McKay
2. Mr. Robert Birenbaum.
The Respondent presented the following witness:
1. Mr. Dorr Fox.
Interested members of the public who testified were:
1. Mr. Charles Bragan.
2. Mr. Axel Strauch.
1
The parties stipulated to the introduction of Joint Exhibits
1 and 2. Joint Exhibit 2 comprised of fifteen (15) documents.
Additionally, the Petitioners introduced six (6) Exhibits.
The parties elected to have a court reporter present at the
hearing and at the conclusion of the hearing availed themselves
of the right to file Proposed Findings of Facts, Conclusions of
Law and Proposed Recommended Order. Pursuant to the parties
agreement, an extension of time was granted regarding the
submittal of Proposed Findings of Facts, Conclusions of Law and
Proposed Recommended Order with a corresponding waiver of Section
8-302, Volume 3, Florida Keys Comprehensive Plan.
The issues to be resolved in this proceeding are wnether or
not the Petitioner meets the standards for Vested Rights as set
forth in Division 3, Vested Rights, Volume 3, Florida Keys
Comprehensive Plan.
FINDINGS OF FACTS
1. The Petitioner, Oceanside Island Associates, is a
Florida General Partnership which acquired the subject property,
a Fourteen (14) acre island in Marathon, Monroe County, Florida
in 1983.
2. Affidavits were submitted by Oceanside Island Associates
establishing that the notices required pursuant to Section 9.5-
45, Monroe County Code, had been properly posted.
3. Oceanside Island Associates purchased the property for
4.1 Million ($4,100,000.00) Dollars.
4. Oceanside Island Associates purchased the property after
confirming that the property was approved for development through
the Major Development Aproval process in Monroe County, as a 108
unit condominium project to be developed as a time share resort.
The Major Development Approval authorized the construction of six
(6) four (4) story buildings to~ether with customary amenities.
5. Minor modifications were made to Captex, Inc.'s Major
Development Approval plan which \oJere approved and extended the
commencement and completion dates to June, 1981 which was the
last official action taken by Monroe County.
6. At the time Oceanside Island Associates acquired the
property, it had been cleared, and fill had been placed on the
site for the first three (3) buildings authorized under the
Development Order. Also Oceanside Island Associate's predecessor
in title Captex, Inc. had constructed a seawall on the canal
side of the property approximately 2,800 lineal feet.
7. Ms. McKay testified that Oceanside Island Associates
would not have purchased the property but for the Major
Development Approvals which authorized the construction of the
One Hundred Eight (108) unit time share project.
8. Oceanside Island Associates purchased the property for
4.1 Million ($4,100,000.00) Dollars which it considered to be a
reasonable price at the time and included in the purchase price
were the following improvements and assets as of 1983:
( a. )
Acquisition of water hook-up and system
development fee rights for 108 units for a total of Eighty Nine
Thousand Nine Hundred and Ten ($89,910,00) Dollars.
These
payments include a Sixty Four Thousand ($64,000.00) Dollar system
development fee payment for the 108 units which is neither
refundable nor transferable.
(b.) The purchase and spreading of fi 11 for three (3)
buildings at a cost of One Hundred Twenty Two Thousand Eight
Hundred Fifty Six ($122,856.00) Dollars.
( c. )
Two Thousand Eight Hundred (2,800') feet of
lineal seawall valued at no less than Five Hundred Thousand
($500,000.00) Dollars.
( d. )
General Contractor's fee and design costs
including payment to
"
engineers,
architects,
planning firm in
excess of One Hundred Three Thousand Four Hundred ($103,400.00)
Dollars.
(e.) Preparation of condominium documents and a time
sharing franchise fee in the approximate sum of Ninety Thousand
($90,000.00) Dollars.
9. At the time Oceanside Island Associates purchased the
property, one or more members of the partnership were aware that
some change in the County's Land Use Regulations were under
consideration.
Applicant secured advice of counsel and otherwise
satisfied itself that it's rights under the Major Development
Plan were vested.
10. At the time this development was approved the time
share market was strong in the Florida Keys.
This was evidenced
by the success of Marathon Key Beach Club Bayside which by
January of 1983 had sold ninety (90%) percent of the first twenty
(20) units which had been constructed in Marathon, Florida.
11. The viability of the project was further demonstrated
by an appraisal which established a value of the project in 1983
as a time share operation of approximately Four Million
($4,000,000.000) Dollars.
12. The pro-forma prepared for Marathon Key Beach Club by
persons experienced in the time share industry and familiar
with the Florida Keys property values established that the
project was viable at the time the Development Order was granted
and continued through 1983.
Subsequently, time sharing lost it's
luster and the value of the property as a time share project
diminished.
13. Testimony by Ocean Island Associates was that of the
4.1 Million ($4,100,000.00) Dollars, purchase price,
approximately 1.5 Million ($1,500,000.00) Dollars was comprised
of a non-recourse promissory note and purchase money mortgage to
Captex, Inc. which has gone into bankruptcy and has defaulted
under it's obligations to the partnership. Captex, Inc. had an
option to re-purchases the property which is now held by another
partnership named Flamingo. There is no likelihood that Flamingo
will exercise its option because the option price exceeds Four
,
Million ($4,000,000.00) Dollars.
14. Of the 1.4 Million ($1,400,000.00) Dollars invested by
Oceanside Island Associates a substantial portion of the money
was paid to the mortgage holders for principal and interest on
purchase money obligations.
It was the testimony that small sums
were paid to environmental planners, attorneys and for other
miscellaneous expenditures.
15. Nowhere in the testimony of the witnesses was there any
mention of any construction work ever being commenced by the
Petitioner, Oceaside Island Associates, since they purchased the
property from Captex, Inc. in 1983, The only construction
and/or improvements that have been placed on the property has
been the 2,800 feet of linear seawall placed on the canal side of
the property and the placement and spreading of fill for three
(3) buildings all of which were done by Captex, Inc. prior to the
purchase by Oceanside Island Associates in 1983.No building
permits, except for fill, were ever issued on this property.
16. Oceanside Island Associates witnesses testified that of
the expenditure--s that Captex, Inc. made totalling some Four
Hundred Seven Thousand Two Hundred Forty Two ($407,242.00)
Dollars in reliance on the Development Order issued by Monroe
County for the development of the project none of these
expenditures except for a portion of the Aqueduct Authority
payments and a portion of the fees paid to KeyCology, Inc. would
be reasonably useful for any project other than the one
authorized by the Major Development Approval. Some of the work
performed by KeyCology, Inc. would have been reasonably necessary
or useful for a single family project because the culverting
under the acess bridge was necessary for water flow and that the
dredging of the canal would be beneficial for the boats of any
owners who might care to dock them at the property; further some
of the docks for which Keycology, Inc. secured permits would be
useful for a single family development. Of the Sixty Four
Thousand ($64,000.00) Dollars paid for One Hundred Eight (108)
units system development fees which is non-refundable and non-
transferable, of the remaining Twenty Five Thousand Nine Hundred
Ten ($ 2 5 , 9 1 0 . 0 0 ) Dol I a r spa i d-t 0 the F lor i d a Key s A que d u c t
Authority could be applicable to a smaller project. However, the
bulk of the costs for designing the condominium and buildings,
the drawing of the condo documents and the time share franchise
fees are not reasonably useful for a development other than that
authorized by the Major Development Approval.
17. The Land Use Plan designates this property SR with an
allocated density of Fourteen (14) units (1 unit per acre).
Although the maximum density of Ten (10) units per acre and open
space ratio of .5 would in theory permit a total of seventy (70)
units to be constructed upon the property which it would not be
possible to construct that many units without an acquisition of
Transfer Development Rights.
18. Other uses allowed under SR designation would be a
twelve (12) unit motel subject to Major Conditional Use Approval,
campgrounds, etc. which are not viable uses for this property
given its residential surroundings, its one mile distance from
U8-1 and the economics of such uses at this site.
19.
If this property were developed as
a single family
residential lot project, the value per lot would not exceed One
Hundred Thousand ($100,000.00) Dollars or a maximum total of One
Million Four Hundred Thousand ($1,400,000.00) Dollars less
subdivision costs Le., cost of platting, roads, utility lines
and like expenditures. The division of this property for single
family lots is therefore not an econmically reasonable alternative.
20. The value of the property under the Land Use Plan was
established by an auction conducted April of 1987 by the Auction
Company of America.
The auction was nationally advertised and
attended by over three hundred (300) people several of whom made
independant inquiries of the Monroe County Planning Department as
to the potential use of the property.
The auction produced a bid
of Two Million ($2,000,000.00) Dollars for the property.
21. The property has been offered for sale since the
auction through brokers in the State of Florida.
The best offer
which was secured was Two Million Seven Hundred Fifty Thousand
($2,750,000.00) Dollars which was contingent upon the ability to
develop the One Hundred and Eight (108) units.
.,
Even if the
property were sold at this price it was Oceanside Island
Associates testimony that they would still experience a loss.
22. The public costs of the development were assessed
through a Community Impact Statement and an Environmental
Designation Survey and were determined to be acceptable by the
Zoning Board at the time of the initial development approvals.
This project involves no further public costs than those weighed
by the Zoning Board in its 1978 approvals.
23. The two (2) members of the public which testified were
in opposition to the development as authorized under the Major
Development Approvals and made general references to a number of
concerns such as traffic.
They further testified that
approximately fifteen (15) other neighbors attended a Public
Hearing held before the Monroe County Commission during the Land
Use Planning process and that they and their neighbors opposed a
designation of the
property as a Designation Resort.
They
further assumed that many of the same people would object to the
development authorized by the Zoning Board.
This testimony from
the public is indiciative of neighborhood concerns regarding
large scale projects and were not probative of the issues being
considered under this procedure for Determination of Vested
Rights.
CONCLUSIONS OF LAW
An applicant is entitled to a positive determination of
Vested Rights if he demonstrates all of the standards for Vested
Rights as set forth in Section 8-303, Volume 3, Florida Keys'
Comprehensive Plan.
At the time of the issuance of the Major Development
Approval for Captex,
Inc., Oceanside Island Associates
predecessor in title, it was necessary to exercise a permit
within one (1) year, (Article 7, Major Development Project,
Section 6-238(e), Monroe County Code. Captex, Inc. has satisfied
this requirement, all that must be done is:
"1.) Exercise, as set forth herein, shall
mean that binding contracts for construction
of a main building or other improvements has
been met; or, in the absence of such
contracts, that the main building and other
improvements are under construction to a
substantial degree or that prerequisite
conditions involving substantial investment
shall be under contract or completed. When
construction is not part of the use, exercise
shall be at the use and operation as in
compliance with the conditions as set forth in
the final development plan."
Also at the time of issuance of the Major Development
Approval to Captex, Inc. Oceanside Island Associates predecesor
in title, it was further necessary to meet the requirements of
Section 6-226, Performance Standards, Major Development Project
Ordinance, Monroe County, Florida provides that:
"in addition to conforming with all
appropriate and applicable local, regional,
state, and federal standards, all proposed
major development projects shall be subject to
the following performance standards:
(a) construction of all major development
projects shall be initiated within one (1)
year and completed within two (2) years after
approval of the final development plan unless
otherwise specified or approved by the zoning
board."
Nowhere in the Exhibits introduced into evidence nor in the
testimony set forth by Oceanside Island Associates or Monroe
County does there show where any extension was granted by Monroe
County from the Final Approval of Major Development status given
on February 17,
1981 which extended the two (2) year time
provisions as set forth above to complete the project. The
project should have been completed no later than February 17,
1983 which, in fact, was not done in this case, since Oceanside
Island Associates did not even purchase the property until 1983.
Zoning aides do not have the authority to grant extensions
and the only reference to any extension of time is set forth in
Christina Neblett's letter dated February 17,1981. See Corona
Properties ~ Florida, Inc. ~~ Monroe County, 485 So. 2d. 1314
(Florida 3rd D.C.A., 1986).
It is therefore concluded that Major Development Approval
had lapsed.
At the time Oceanside Island Associates purchased the
property, one or more members of the partnership were aware that
some change in Monroe County's Land Use Regulations were under
consideration.
A land owner who is put on notice of a local
government pending change may ndt continue his plans and then
claim the expenditures for those plans should estopp the
government from enforcing new regulations.
See Anderson, 1
American Law of Zoning, Section 6.31 (2d ed. 1976), Franklin
County vs. Leisure Properties, Ltd., 430 So. 2d. 475 (Fla. 1st
D.C.A. 1983).
Expenditures were made and obligations were incurred in
reliance upon the Major Development Order which are not
reasonably useable in a development permitted by the current Land
Development Regulations of Monroe County.
In reliance on the
major development approval Captex,
Inc., Oceanside Island
Associates predecessor in title expended hundreds of thousands of
dollars on One Hundred Eight (108) units, for non-refundable
Florida Keys Aqueduct Authority system development charges,
Contractor's fees and design costs for condominium buildings,
condominium documents, and franchise fees.
Most of these
expenditures would not be reasonably useable in a development
permitted under the current land development regulations.
Although the seawall and causeway, fill, and docks could be
useable for low density housing permitted under ,today's
regulations.
Captex, Inc., Oceanside Island Associates predecessor in
title expended it's own money for acquisition of water hook-up
and system development fee rights for One Hundred Eight (108)
units from the Florida Keys Aqueduct Authority, the purchase and
spreading of fill for three (3) buildings, 2,800 linear feet of
seawall, general contractor's fe~ and design costs including
payment to engineers, architects and planning firm, preparation
of condominium documents and a time sharing franchise fee.
Oceanside Island Associates did not pay any further fees for
design nor construction, but the above referenced fees were paid
as part of the purchase price to Captex,
I nc.
Therefore,
Oceanside Island Associates cannot claim that they expended any
substantial monies other than the purchase price of land in
reliance upon the Major Development Approvals.
Land acquisition
costs, ,..hich is what Oceanside Island Associates paid, cannot be
advanced in support of a contention that they have made a
.~
susbstantial change in position.
See ~~ of Miami Beach ~~
8701 Collins Avenue, 77 So. 2d. 428 (Florida 1954); Town ~ Largo
vs. Imperial Homes Corporation, 309 So. 2d. 571 (Fla. 2nd DCA
1975).
The Petitioners cannot claim that they stand in the shoes of
Captex, Inc. nor that the expenditures made by their predecessors
in title equate to their reliance of Captex, I '
nc. s expenditures.
C i t Y 0 f Par k 1 and ::!..E..:... S e p t i mas, 4 2 8 So. 2 d . 6 8 1 (F 1 a . 4 t h DCA
1983),
~~~~~ ::!..~ Fi~~~ Y!~a!~i~ ~~~a~a~ and
Real Estate
Investment Trust 399 So. 2d 1068 (Fla. 2d DCA 1981).
See also
Franklin County vs. Leisure Property Ltd., 430 So. 2d. 475 (Fla.
1st DCA 1983).
(A successor in interest must show his own
entitlement to the benefit of an estoppel and may not make such a
showing by merely purchasing property).
There is no competant or substantial evidence presented that
there would be significant public costs in allowing the
development to go forward.
The impacts of this project were
weighed by the Zoning Board in it's Major Development Review and
were found to be acceptable.
Testimony by Oceanside Island Associates establishes that
the development approved by the Monroe County Zoning Board was
economically viable at the time of approval.
The evidence shows that Oceanside Island Associates have
made no efforts to construct their project from the time of
purchase in 1983 to the present, but have tried instead to sell
the land as a permitted project, once time share units were not
viable economically. The owner must substantially change his
position in order to avail himself of a positive Vested Rights
Determination, see Town of North Redington Beach ::!..E..:... Williams,
220 So. 2d. 22 (Fla. 2d D.C.A. 1969).
There was no testimony illicited from any witnesses that the
reason Oceanside Island Associates did not proceed forward with
development once they purchased the property in 1983 from Captex,
Inc. was due to any governmental activity on the part of Monroe
County.
RECOMMENDATION
Having considered the 'foregoing Findings of Fact,
Conclusions of Law, the evidence of record, the candor and
demeanor of the witnesses, and the pleadings and arguments of the
parties, it is, therefore
RECOMMENDED that the application of Oceanside Island
Associates for a Vested Rights Determination be denied.
DONE AND ORDERED this ~ day of
1988 in Key West, Florida.
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H. RAY A ,ESQ. ~
Hearing Officer
618 Whitehead Street
Key West, Fla. 33040
(305) 294-8401
Subsequent to the hearing, the parties submitted Proposed
Findings of Fact, Conclusions of Law and Proposed Recommended
Order.
These have been considered.
~Jhere not adopted and
incorporated herein, they were found to be irrelevant or
immaterial, or not supported by the weight of the evidence, and
have been rejected.
COPIES FURNISHED TO:
JAMES T. HENDRICK, ESQ.
MORGAN & HENDRICK, P.A.
317 Whitehead Street
Key West, Fla. 33040
RANDY LUDACER
ASST. COUNTY ATTORNEY
310 Fleming Street
Key West, Fla. 33040
nlannp JL. ~o[l)agt
BRANCH OFFICE
3117 OVERSEAS HIGHWAY
MARATHON, FLORIDA 33050
TEL, (305) 743-9036
CLERK OF THE CIRCUIT COURT
MONROE COUNTY
500 WHITEHEAD STREET
KEY WEST, FLORIDA 33040
TEL. (305) 294-4641
BRANCH OFFICE
P.O. BOX 379
PLANTATION KEY, FLORIDA 33070
TEL. (3051 852-9253
June 28, 1988
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Department of Community Affairs
Post Office Box 990
Key West, Florida 33041
~ "'1 '2.~ - B'1 ~ - , 05
Dear Sirs:
At a Regular Meeting in formal session on June 21,
1988, the Board of County Commissioners of Monroe County
adopted Resolution No. 249-1988 accepting and adopting the
Findings of Fact, Conclusions of Law and Recommended Order
concerning the Vested Rights Hearing of Oceanside Island
Associates.
Enclosed please find a certified copy of said
Resolution.
,.
Very truly yours,
Danny L. Kolhage
Clerk of Circuit Court
and ex officio Clerk
Board 0 County Commissioners
Enclosure
cc: Mayor E. Lytton
County Attorney
County Administrator
Asst. Co. Admin. - Growth Management
File
p 72', 873
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