Resolution 121-1987
Commissioner Eugene Lytton, Sr.
RESOLUTION NO. 121 -1987
A RESOLUTION REQUESTING THE PLANNING
DIRECTOR, COUNTY ATTORNEY AND SPECIAL COUNSEL
TO BRING, IN ORDINANCE FORM, BEFORE THE
DEVELOPMENT REVIEW COMMITTEE, THE PLANNING
COMMISSION AND THE BOARD OF COUNTY COMMIS-
SIONERS CERTAIN CHANGES TO THE MONROE COUNTY
DEVELOPMENT REGULATIONS.
WHEREAS, numerous errors of omission and inclusion exist in
the Development Regulations of Monroe County, Florida; and
WHEREAS, it is desired to better serve the citizenry of
Monroe County by correcting those errors in a manner consistent
with the Monroe County Comprehensive Plan; now, therefore,
BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF
MONROE COUNTY, FLORIDA, that:
1. The Planning Department, County Attorney, and Special
Counsel are hereby directed to put into ordinance form the
changes to the Development Regulations set forth in the
memoranda of January 5, and January 20, 1987, authored by
Commissioner Eugene Lytton, Sr., which memoranda are hereby
incorporated and made a part of this Resolution by reference, for
presentation to the Development Review Committee, the Planning
Commission and the Board of County Commissioners as amendments to
the Development Regulations of Monroe County, Florida.
PASSED AND ADOPTED by the Board of County Commissioners of
Monroe County, Florida, at a regular meeting of said Board held
on the 3~b
day of
((JARCU
, A.D. 1987.
BOARD OF COUNTY COMMISSIONERS
OF MON ~--eeuNTY; lLORID4A f
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(SEAL)
Attest: DANNY L. KOLHAGE, Clerk
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APPROVED AS TO FORM
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(305) 294,4641
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BOARD OF COUNTY COMMISSIONERS
~yor Jerry Hemandez-Dist. 1
Mlyor Pro tern Gene Lytton-Dist.
Wm. Billy Freernan-Dist. 3
Mike Puto-Dist. 4
John Stormont-Dist. 5
January 5, 1987
Mayor Jerry Hernandez
310 Fleming Street
Key West, FL 33040
Dear Mayor Hernandez:
At our regular Commission meeting in Key West on February
17th, 1987 it is my intent to sponsor a resolution, directed to
the Monroe County Planning Department, concerning "recommended"
changes to the Land Use Plan. The resolution will be proposed as
an official act under Land Use Plan 13-101(b) & (c) with pro-
visions of the 6 month review process.
The proposed changes represent the most glaring omissions,
inequities or injustices and are offered under Land Use Plan
13-101 D-5(b).
(IV) New Issues - Logical deliberate post analysis vis
frenzied reactive passage.
(V) Recognition of a need for additional detail or compre-
hensiveness.
It is my fervent hope that a majority of the recommended
changes will receive widespread support from members of the Board
of County Commissioners, so that a strong message of manifest
intent can be portrayed, and adoption under Land Use Plan 13-101
D-5(d) will be facilitated.
All recommended changes have been subject of prior corre-
spondence to which each of you has been privy. They are general-
ly summarized as follows:
Mayor Jerry Hernandez
January 5, 1987
Page 2
DEFINITIONS:
1. Develop and insert comprehensive definition for:
a. shopping center
b. building site
2. Amplify definition of:
a. accessory use
3. Add corpus juris definition for:
a. joint tenancy - Chapter V-13.06 FREC Handbook
b. tenancy in common - Chapter V-13.07 FREC Handbook
ADDITIONS:
1. Develop treatment and inclusion of signs. They are clas-
sified as structures (3-101 5-15). Should be designated accesso-
ry use - as of right in most commercial or industrial districts
as long as they conform (9-1301). Exempt from 45 day Department
of Community Affairs review period.
2. Develop treatment and inclusion of fences. They are clas-
sified as structures (3-101 5-15). Should be designated accesso-
ry use - as of right in ALL residential districts. Standards to
be developed for all other districts consistent with maximizing
the principle of beneficial use.
3. Construction of Plan: Citation: 2-101. Add paragraph 3 to
sub-section A. Manifest Intent: It is the intent and purpose of
the County Commission that in construing this plan the broadest
interpretations be given to the same to carry out and effectuate
its purposes while at the same time maximizing protection of
civil liberties and property rights of citizens as required by
both state and federal constitutions. Any interpretation incon-
sistent with the intent of this paragraph shall be resolved in
favor of the citizen.
4. Burden of Proof: Citation: 2-101. Add paragraph 4 to
sub-section A. Burden of Proof: It shall be the duty of any
state agency or entity to prove, in its legal sense, that they
County Commission has acted unlawfully, capriciously or in bad
faith in its implementation, interpretation and application of
this plan.
Mayor Jerry Hernandez
January 5, 1987
Page 3
MODIFICATIONS:
1. Tree and mangrove trimming provlslons. There is no basis
for our regulation to be more prohibitive or punitive than state
statute. Wherever and whenever the Land Use Plan is in contra-
diction or contravention of state statute regarding trimming,
remove Land Use Plan verbiage and replace with exact wording of
403.931(1) and/or 403.931(5) Florida Statutes as appropriate.
2. Transferable Development Rights (TDR's):
a. Remove down-density constraints (9-305 A-7).
b. Ratify definitively that each IS or CFV District lot
has a 1.0 allocated density PER LOT vis per acre and thus a full
1.0 TDR entitlement (9-302 & 9-303). This will acknowledge each
lot's full development right existing prior to the effective date
of the plan and ameliorate, to some extent, the compensation
impact consideration.
c. Determine if TDR is an officially marketable item under
Florida Statute.
d. Background comments follow:
Section 9-305 A GENERAL states: All residential development
rights allocated or established in Sections 9-302 or 303 SHALL BE
TRANSFERABLE IN WHOLE OR IN PART FROM ONE PARCEL OF LAND TO ANY
OTHER, ....
That is a totally false and misleading statement and is in
direct conflict with 9-305 A-7 which infers transfers can be made
only to a parcel of land having an equal or higher density
allocation. This denies a TDR transfer, e.g. from an SS District
to a Native District or from an SR District to an SS District yet
the maximum net density column in 9-302 infers the ability to
increase density in those districts? These districts may ulti-
mately prove to be the only economically and strategically viable
sites for affordable housing concentration!
Having been present during all confounding hearings on TDR's
I can recall no discussion concerning down-density constraints.
In fact, the presentation on TDR's was so novel and confusing to
public, staff and Commission that little or no consensus of
understanding existed. I know for certain that the provisions of
903 A-7 were never introduced or discussed at public hearing.
Mayor Jerry Hernandez
January 5, 1987
Page 4
Since no quantitative figure appears for IMPROVED SUBDIVI-
SION in the Maximum Residential Density chart in 9-302 and in
view of the textual content of 9-303 it is the opinion and
position of this Commissioner that every lot, regardless of size,
in an Improved Subdivision and Commercial Fishing Village has a
1.0 allocated density PER LOT vis per acre and thus each IS or
CFV lot has a full 1.0 TOR entitlement.
The deed anticipated by 9-305 B-2 should be reviewed by the
County Attorney for legal sufficiency. He is the final arbiter
of all legal matters or issues of Monroe County.
Sub-section B does not provide the mechanics for mandatory
recordation of deeds or other instrumentalities which is normally
the prerogative of the purchaser. Under general law a deed does
not even have to be recorded. See Chapter V-13.22 General
Information - Florida Real Estate Commission Handbook.
Is it to be presumed that maintenance, responsibility and
personal liability be transferred to the receiver even though the
lot or parcel could remain, forever contiguous to the transferer?
This should be expressed explicitly in the plan and incorporated
in a standard clause in the deed. We do not want large develop-
ers abandoning "physical" ownership once the receiving site
development is completed - or does physical ownership of the lot
or parcel remain in the transferer as occurs in mineral rights
deeds?
Where in the plan is the application of Section 9-305
discussed concerning areas of County Critical Concern? I can
find no reference or allusion in Chapter 11 of the plan.
It is presumed that the value of a TOR will be fixed by
supply and demand principles of the marketplace - negotiation
between buyer and seller.
During the explanation of TOR's by our consultant it was
stated that TOR's were in fact an official addition to what is
commonly known as the private property "bundle of rights". I
hope that statement has legal basis.
The most logical, professional and best equipped for market-
ing of TOR's is our local real estate industry. I would hope,
after assuring themselves that they can legally broker this new
and novel property right, that they would take the initiative in
this respect.
Mayor Jerry Hernandez
January 5, 1987
Page 5
Unfortunately, no one can adequately understand or interpret
Chapter 9 until it is revisited, refined and amplified. I
believe this section of seriously flawed and could not, even
though adopted in the body of the plan, represent the manifest
intent of the Commission. Even educated and fully qualified
environmental and land consultants cannot interpret at this very
moment. It remains vague and too many crucial issues are inade-
, quately addressed or not addressed at alII
3. Three year septic inspection (9-504). Officially consult
with removal industry for data base history and establish a
realistic time interval (if required at all).
4. Open Space Ratios (9-809). Present maximums of 80%+ are
punitive and represent a flagrant "TAKING", except for open
waters, GENUINE freshwater wetlands and TIDALLY FLUSHED
mangroves. Propose 60% maximum with access and setbacks elim-
inated from net computation. Chart (9-302) to be revised for OSR
Column. Place period after numeral 8 in footnote - delete
remainder of comment.
5. Impact Fees: (12-l01E, l2-102B, 12-103B, 12-104D, 12-10SC).
Impact occurs when residential unit is occupied or commercial
building opens its doors for business. This could be several
months to several years between permit application and occupancy
and can involve significant amounts of money up-front without
benefit. Recommend impact fees be collected as an element of the
certificate of occupancy process (6-107).
DELETIONS:
1. Definition of Common Ownership (3-101 C-1).
2. Contiguous Property Provision (9-303). Remove final
paragraph in its entirety.
GENERAL COMMENT:
Unit and unless the Department of Community Affairs, the
county consultant or the Director of Building, Planning & Zoning
can isolate and identify the ACTUAL number of such lots or
parcels, this Commissioner moves for the removal of this abusive
and discriminatory provision. A valid, logical density decision
cannot be made without data base. It is my opinion that there is
no immediately available process to discover the quantity and
therefore this provision is capricious, arbitrary and punitive.
Mayor Jerry Hernandez
January 5, 1987
Page 6
Without reliable statistics this provlslon conceivably can punish
property owners without due cause of due process by needlessly
removing an exorbitant number of lots from the development pool.
GENERAL CONCLUSION:
These recommendations have been tracted on the Working
Manual - Volume III of the Land Use Plan. Any provisions or
policies in Volumes I or II inconsistent with these changes will
be amended, modified or deleted as appropriate.
These recommended changes in no way imply a completed review
process. These are the items requiring immediate attention. I
have talked and listened to environmental realists, property
owners, builders and realtors for over 2 years. I can report a
consensus in these changes. Hopefully the individual petitions
and the results of the public hearings will add depth and dimen-
sion to a growing concern for a solution to the inequity of the
plan.
Sincerely,
Eugene R. Lytton, Sr.
County Commissioner
District 2
ERL:mkn
cc: Capt. Torn Brown, County Administrator
Mr. Lucien Proby, County Attorney
Mr. Torn Koenig, Chairman, Monroe County Planning Commission
Mr. Charles Pattison, Director, Planning, Building & Zoning
O.~~r: &~~3~~E
130512944641
Ext. 415
District Two
3180 Overseas Highway
Bay Point
Kff( West, FL 33040
January 20, 1987
MlJ,'Or Jerry Hernandez
310 Fleming Street
Key West, Fl33040
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BOARD OF COUNTY COMMISSIONERS
MAYOR Wilhelmine Harvey, District 1
Ed Swift, District 2
Wm. Billy Freeman, District 3
Mayor Pro tem Alison Fahrer, District 4
John Stormont. District 5
Deer Mayor Hernanooz:
P lease refer to my Jetter of January 5th, t 987 concerning intent to sponsor resolution
for land Use P 180 changes,
On Page 6 under deletions. the contiguous property provision (9-301) for Urben
R~icEnt1al Mobile tbne District was if1ldYertently omitted. This district fa Just 15 importent
since for the present, end the fensll.ble future. it is the only gBnuine, existing... for
8ffordsble housing potential. The Lend Use PIIII did not create 8 single ..Ional URM lot
cnywhere county-wide. To remove the limited existing lots from the dlvelopment pool is
fool hearty,
ACTION: Letter - ..... 6 - ...... ..et.... ....:
3. Contiguous Property PMlYtsfon (9-301). ft_an ftnal per..-aph In
its entirety.
Sincerely.
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Eugene R, LyttOn, Sr.
County Commis:sioner
District 2
ERL:mkn
cc: Capt. Tom Brown, County Administrator
Mr. CherJes Pattison, Director. BuiJdino, Planning & Zoning
Mr. Lucien Proby, County Attorney
Mr. Tim Koenig, Chairman, Monroe County PlenningQxnmission
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