Resolution 539-1988
Board of County Commissioners
RESOLUTION NO. 539 -1988
A RESOLUTION OF THE BOARD OF COUNTY COMMIS-
SIONERS OF MONROE COUNTY, FLORIDA, AMENDING
RESOLUTION NO. 478-1988 IN ORDER TO CORRECT
SCRIVENER'S ERROR.
WHEREAS, the Board of County Commissioners of Monroe County,
Florida, previously adopted Resolution No. 478-1988 on Septem-
ber 20, 1988, and
WHEREAS, Section 1 of said Resolution contains a scrivener's
error, which said Board desires to correct, now, therefore,
BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF
MONROE COUNTY, FLORIDA, as follows:
1. Section 1 of Resolution No. 478-1988 adopted by the
Board on September 20, 1988, is hereby amended to read as fol-
lows:
Section 1.
Said Board hereby accepts and
adopts, pursuant to Section 8-302(b)(5) of the Florida
Keys Comprehensive Plan's Land Development Regulations,
Findings of Fact, Conclusions of Law and Order, Amended
Findings of Fact, Conclusions of Law and Order
(Scrivener's Error) entered by John E. Bigler, Hearing
Officer, concerning Ocean Reef Club, Inc., copies of
which are attached hereto and made a part hereof.
2. The Clerk of the Board is hereby directed to forward a
certified copy of this Resolution to the Department of Community
Affairs.
PASSED AND ADOPTED by the Board of County Commissioners of
Monroe County, Florida, at a regular meeting of said Board held
on the 18th day of October, 1988.
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
BY&~'_~
Ma airman
(Seal)
Attest pANNY L. KOLHAGE, Clerk
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APPRCZ:J:~~~':=
AND(~~
BY ,
Attorney'. Office
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STATE OF FLORIDA
COUNTY OF MONROE
VESTED RIGHTS HEARING
OCEAN REEF CLUB, INC.,
et.al.,
petitioners,
vs.
Respondent.
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MONROE COUNTY,
AMENDED FINDINGS OF FACT, CONCLUSIONS OF LAW
AND ORDER (Scrivener's Error)
COMES NOW, John E. Bigler, Jr., Hearing officer and hereby
gives this notice of a scrivener's error in the Findings Of Fact,
conclusions Of Law And Order, ordered on the 19th day of August,
1988, and amends the following:
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1.
page 6, paragraph 4, the first line of the Acreage To
Be vested table should read as follows:
AREA ACREAGE
-
GROSS i OF UNITS
. OF UNITS . UNITS - EXISTING - TO COMPLETE
RU-3
34.50 approx.
8
276
o
276
.2. page 7, paragraph 8, last sentence should read as
follows:
The testimony has amply demonstrated that the
only available relief under this Land use plan
would be to grant a positive determination of
Vested Rights by the county, to which the county
has stipulated, Exhibit 5, for the completion
of the Development by use and density categories
in existence, prior to september 15, 1986.
f}~'{- (' ;l,t I
JOHN E. BIGLER,' JR:, ESQ.
Ii
Hearing Officer for Monroe county
604 Whitehead street
Key west, FL 33040
(305) 294-8363
Copies to: '
RANDY LUDACER, ESQ.
310 Fleming Street
Key west, Florida 33040
JOSEPH D. BOLTON, ESQ.
100 Chopin plaza
Miami, Florida 33131
"
THOMAS DAVISON IV, ESQ.
Post Office Drawer 535"
Tavernier, Florida 33070
FRED TITTLE, ESQ.
post Office Drawer 535
Tavernier, Florida 33070
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FILE
STATE OF FLORIDA
COUNTY OF MONROE
VESTED RIGHTS
HEARING m1ECC;gITW~~
AUG 22 1988
OCEAN REEF CLUB, INC.,
et. al . ,
"
Petitioners,
gaUNT'( Am~I:'
--yo I.4f
~w..\ .
vs.
MONROE COUNTY,
Respondent.
/
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
Pursuant to Notice, this cause came on for hearing before
John E. Bigler, Jr., duly designated
Hearing Officer, on
February 23, 1988, and on June 8, 1988, in Key West, Monroe
County, Florida. The appearances were as follows;
APPEARANCES
For Petitioners:
Thomas Davison IV, Esquire
and Fred Tittle, Esquire
Tittle & Tittle, P.A.
91760 Overseas Highway
Tavernier, Florida 33070
For Respondent:
Randy Ludacer, Esquire
Assistant County Attorney
310 Fleming Street
Key West, Florida 33040
Joseph D. Bolton, Esquire
Shutts & Bowen, P.A.
100 Chopin Plaza
Miami, Florida 33131
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For Intervenor:
This cause arose upon the filing of an application for
determination of Vested Rights dated June 5, 1985, filed by
~: Tittle & Tittle, P.A., on behalf of Ocean Reef Club, Inc.,
individual owners of platted and non-platted land, and Driscoll
Properties, Inc.
The hearings were 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
Page 1 of 10 Pages
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28-5, Florida Administrative Code and Chapter 120, Florida
statutes.
The Petitioner called the following witnesses at the hearing:
1. Mary Diane Bair, who gave sworn testimony.
2. Charles W. Broeman II, who gave sworn testimony.
3. Bradley Paul Dressler, who gave sworn testimony.
4. William H. Mitchell, Jr., who gave sworn
testimony.
The following Exhibits were introduced into evidence at the
two Public hearings:
Exhibits 1 through 4 are the Affidavits as to Notice of
hearing.
Exhibit 5 is a Joint Stipulation between the Petitioner and
Monroe County.
Exhibit 6 is the Master Plan Application.
Exhibit 7 is the Application aerial photograph of 6/15/77.
Exhibit 8 is the Application for zoning Map of June, 1977.
Exhibit 9 is the Master Development Plan of June, 1977
(county maintained).
Exhibit 10 is the aerial photograph of December, 1986.
Exhibit 11 are Publication Affidavits as to the hearing.
Exhibit 12 is the Intervenor's sketch of the proposed
clubhouse.
Exhibit 13 is the 1986 Master Development Plan.
Exhibit 14 is the 1986 Master Development Plan (county's
r
copy) .
Exhibit 15 County Attorney letter of December 5, 1980.
Exhibit 16 Driscoll Development Agreement of July 2, 1974.
The hearings were open to the public and provisions were
made for public input, if any.
At the June 8, 1988, hearing
Joseph D. Bolton, Esq., was permitted to proceed as a designated
Intervenor and representative of the Golf Village Condominium
Association.
At the commencement of the first hearing, Counsel for the
Petitioners filed with the Hearing Officer four affidavits
Page 2 of 10 Pages
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attesting to posting of Notice as required by Section 5-105 of
the Monroe County Comprehensive Land Use Plan as to the hearing.
Exhibits 1-4.
The second hearing had like public notice.
Exhibit 11.
Filed immediately thereafter was a Joint Stipulation for
Positive Determination of vested Rights executed by Fred Tittle
as attorney for the Petitioners and Randy Ludacer for and on
behalf of Monroe County. Exhibit 5.
The issues to be resolved in this proceeding are whether or
not the Petitioners meet the standards for Vested Rights as set
forth in Division 3, Vested Rights, Volume 3, Florida Keys
Comprehensive Land Use Plan of Monroe County.
At the commencement of the second hearing, Counsel for the
Petitioners filed with the Hearing Officer four affidavits
attesting to the re-posting of Notice as required by Section 5-
105 of the Monroe County comprehensive Land Use Plan for this
hearing.
FINDINGS OF FACT
1. Mary Diane Bair, Administrative Aide to the Monroe
County Planning Director, testified that during the course of her
employment with Monroe County, she became very familiar with the
Ocean Reef Club, Inc. ' s major development project application
dated June 29, 1977. This Application was proffered into
t
evidence in its entirety and is known as the "Master Plan" of
Ocean Reef.
Exhibits 6 and 9.
Contents of this Master plan
,. .
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package included an aerial photograph, Exhibit 7, of the Ocean
Reef Club complex, as well as, a corresponding zoning map using
the zoning in existence as of 1977 and numerous other documents
for substantiation.
Exhibit 8.
Ms. Bair testified that there
had been minor changes made to the "Master Plan" since 1977 in
which the Ocean Reef Club, Inc. sought and received County
approval for various changes to the then existing zoning. Each
Page 3 of 10 Pages
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of these changes were granted and occurred prior to September 15,
1986.
There was no testimony to contradict the facts as
presented by this witness.
2. Charles W. Broeman, III, Executive Vice President, in
charge of construction development for Ocean Reef Club, Inc.,
testified as to the history of the Ocean Reef Club, its
geographic makeup, and the percentage of land which has currently
been developed.
3. Mr. Broeman testified concerning Section 9.5-183 of the
Monroe County Code in the following manner:
A.
Under Section 9.5-183(a)(I): Charles
Broeman
presented a historical background of the Ocean Reef Club from the
time the Club was first developed through the present. The
Ocean Reef Club plan was for development to be in phases, rather
than all at once. Additionally, Mr. Broeman testified that the
major development plan application was submitted in 1977 and was
approved by
the County.
Mr. Broeman then reviewed the
development of the Ocean Reef Club complex that had occurred
since the adoption of the major development plan in 1977 through
the date of the adoption of the new Zoning Plan, of September 15,
1986. This testimony was unrefuted.
B.
Under Section 9.5-183(a)(2): Mr.
Broeman
testified that at least fourteen (14) million dollars have been
spent over the years for the development of this complex. He
t
stated
that
approximately
two
hundred
thousand dollars
($200,000.00) are annually spent to maintain the three 18 hole
golf courses. With regard to the amount of property that would
not be reasonably usable in a development permitted by the new
plan, Mr. Broeman stated that the hotel densities have changed,
as well as, the road widths, and that new height restrictions on
structures have been imposed that were not previously required.
This, he said, would have a tremendous negative impact on the
Ocean Reef Club as it currently exists.
Page 4 of 10 Pages
C. Under Section 9.5-183(a)(3)a: Mr. Broeman advised
that roughly ninety percent, or more, of the construction within
the Ocean Reef Club complex has been completed, and that
approximately ninety-five percent of the total expenditures
within the complex have been made with all infrastructure in
place to complete this project.
D. Under Section 9.5-183(a)(3)b: Mr. Broeman stated
that the injury to Ocean Reef would be incalculable if the
complex were not granted Vested Rights, because of the loss of
the right of Ocean Reef Club, Inc. and, the individual property
owners, to the use of their property which they had purchased
under the then existing Land Use Plan. Mr. Broeman testified
that the Ocean Reef Club complex pays anywhere from seventeen
percent (17%) to twenty percent (20%) of the entire ad valorem
taxes of Monroe County, including those in Key West.
E. Under Section 9.5-183(a)(3)c: The Hearing
Officer, took judicial notice of the fact that the Ocean Reef
Club was, in fact, economically viable. See Exhibit 10.
F. Under Section 9.5-183(a)(3)d: Mr. Broeman stated
that, to the best of his knowledge, when the Ocean Reef Club
complex was begun there was no zoning of any nature within Monroe
County. During the last 25 to 30 years Ocean Reef had continued
to develop in conformity with the law in effect at the time as
evidenced by the testimony that hundreds of permits have been
granted during those years. The Ocean Reef Club was 85% to 90%
completed before the current Land Use Plan was conceived for
Monroe County. This was further evidenced by County prior
approvals. See Exhibit 15.
G. Under Section 9.5-183(a)(3)e: Mr. Broeman
testified that in the normal type of development the profit on a
project is made at the completion of the project. Mr. Broeman
had previously testified that the development within Ocean Reef
was approximately ninety-five percent (95%) completed and
t
Page 5 of 10 Pages
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.therefore the profit incentive was still left to be realized.
4. At the June 8th hearing, Mr. Broeman testified as to
the relationship between the number of acres in a particular use
and density classification and the number of available units that
could be built on these acres. The below reflects his testimony:
ACREAGE (From Task Surveyors)
To Be Vested
GROSS II OF UNITS
AREA ACREAGE II OF UNITS = UNITS - EXISTING = TO COMPLETE
RU-3 34.50 approx. 8 276 0 27
GU 12.00 approx. 1 12 0 12
RU-7 13.99 approx. 25 350 145 205
BU-2 72.60
RU-I 70.00 approx. 134
5. Mr. Broeman testified that what the Petitioner was
seeking to be vested was the completion of the remaining ten
percent (10%) of the Ocean Reef Development under the approved
Master Development Plan as of 1977 and its subsequent Amendments
through September 15, 1986.
There
was no
testimony to
contradict the facts as presented by this witness.
6. Bradley Paul Dressler, a Partner and Agent for Driscoll
Properties, Inc. testified concerning his corporate land
holdings within the Ocean Reef complex. Mr. Dressler testified
that Driscoll Properties, Inc. currently owns approximately one
hundred and seventy-two (172) single family lots and an eighteen
(18) hole golf course. Of the one hundred and seventy-two (172)
lots, thirty-eight (38) are platted and one hundred and thirty-
four (134) remain unplatted, but a substantial portion of the
infrastructure is in place and roads have been cut and cleared
for over 11 years ago. Mr. Dressler went on further to testify
concerning his financial expenditures on the subject property on
f
such items as the infrastructure, utilities
and roadways.
Finally, Mr. Dressler discussed the substantial injury that would
Occur in the event that the Driscoll Properties, Inc.'s portion
in the Ocean Reef Club complex was not granted Vested Rights.
Page 6 of 10 Pages
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Mr. Dressler stated that there has been an investment of
approximately three million dollars ($3,000,000.00) in
infrastructure costs, which excludes the land involved and that
this was his exposure in the event that the Ocean Reef Club
complex was not granted vested rights.
7. At the June 8th hearing, Mr. Dressler testified as to
the nature and intent of the Driscoll Properties' involvement
with the Ocean Reef Club development. Mr. Dressler read into the
record paragraph 16 of that Agreement which set forth the rights
and responsibilities of two parties involved thereunder dated
July 2, 1974, and under which they had been proceeding, investing
and developing for years prior to September 15, 1986. Exhibit
16. Mr. Dressler stated that Driscoll Properties sought to have
vested the remaining one hundred and thirty-four (134) single
family residential lots which are currently unplatted but
partially developed and which were part of Ocean Reef's Master
Development Plan, as approved in 1977 with subsequent Amendments
through September 15, 1986. There was no testimony to contradict
the facts as presented by the witness.
8. With reference to Section 9.5-184(a) of the Monroe
County Code, the Petitioners have demonstrated and this Hearing
Officer finds that the Petitioners have already expended
substantial funds and have incurred many obligations as
documented throughout the Application. The testimony has amply
demonstrated that the only available relief under this Land Use
plan would be to grant a positive determination of Vested Rights
by the County, to which the County has stipulated, Exhibit 5, for
the completion of the Development by use and density categories
in existence, as of September 15, 1986.
9. This Hearing Officer further finds:
A. Golf village Condominium is an existing
condominium project located within the Ocean Reef Development.
B. Golf village Condominium Association is a
c
page 7 of 10 Pages
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condominium association consisting of owners of condominium units
within Golf Village Condominium.
C. The land included within the published notice of
the Application for Vested Rights includes land within Golf
Village Condominium and land abutting and adjacent to Golf
Village Condominium.
D. That a portion of the property included within the
Application for Vested Rights was identified and was crosshatched
and outlined in green on Exhibit a (the "Green Area").
E. That the Golf Village Condominium Association and
certain individual members thereof are opposed to the Vesting
Application only as it applies to the "Green Area".
10. William H. Mitchell, Jr., a resident and member of the
Golf Village
testified on
Condominium Association, Inc. , was sworn and
behalf of the Intervenor on June a, 19aa, in
vesting as to the "Green Area" only identified on
admitted herein. Mr. Mitchell expressed his
;
opposition to
Exhibit a
contentment with the overall development actions of Ocean Reef as
a whole.
11.
That the "Green Area" lies between
Golf Village
Condominium and the road denominated as "Gate House Road" on the
Ocean Reef Master Plan.
12. That the "Green Area" consists of a landscaped area
developed with flowers and shrubs and tropical landscaping and is
adjacent to the access road to Golf Village Condominium.
13. That the "Green Area" has no permanent structures
1
located thereon.
14. The access road leading from Gate House Road to Golf
Village Condominium is in approximately the same location and
configuration as it has been since the construction of the Golf
Village Condominium.
15. That Exhibit 12, admitted herein, consists of a sketch
of a golf clubhouse building which is depicted as being located
within the "Green Area".
Page a of 10 Pages
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CONCLUSIONS OF LAW
As a result of the documents placed into evidence and the
testimony given in these hearings, the following Conclusions of
Law are made:
1. This Hearing Officer ratifies the Joint Stipulation for
a Positive Determination of Vested Rights entered into between
the Petitioners, Ocean Reef Club, Inc., et.al. and Monroe County.
2. This Hearing Officer finds as a Conclusion of Law, that
the Petitioners have satisfied each of the criteria set forth in
Section 9.5-183, Standards for vested Rights, required by the
Monroe County Code.
3. This Hearing Officer finds as a Conclusion of Law, that
the Petitioners are entitled to a positive determination of
vested rights under Florida Statutes, Chapter 380.05(18) (1985).
This Section states in part:
"Neither the designation of an area of critical state concern nor
the adoption of any regulations for such an area shall in any way
limit or modify the rights .of any person to complete any
development that has been authorized...bya 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 in a way adverse to
his interests, nothing in this chapter authorizes any
governmental agency to abridge those rights".
4. That the Master Plan, Exhibits 13 and 14, for Ocean
Reef does not have a site certain or site specific development
plan for the "Green AreaN, the cross-hatched designated area on
Exhibit 8, admitted herein, to which Intervenors oppose vesting
without input upon
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application for a building permit.
As to this specific parcel
ONLY, the residents and individual members of the Golf Village
Condominium Association are entitled to notice of any future
application for building permit, in this area only, before such
permit shall issue.
RECOMMENDATION
Having
considered
the
foregoing
Findings
of Fact,
Conclusions of Law, the evidence of record, the candor and
Page 9 of 10 Pages
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demeanor of the witnesses, and the pleadings and arguments of the
parties, it is therefore,
RECOMMENDED that the Petitioners, Ocean Reef Club, Inc.,
et.al., 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), and it is so ordered.
DONE and ORDERED this
/9' day of August, 1988, in Key
West, Monroe County, Florida.
JO ., ESQUIRE
He ring Officer or Monroe County
604 Whitehead Street
Key West, Florida 33040
(305) 294-8363
copies to:
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
JOSEPH D. BOLTON, ESQ.
100 Chopin Plaza
Miami, Florida 33131
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Pages 10 of 10 Pages