Resolution 315-2004 •
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. County Attorney
RESOLUTION NO. 91 s -2004
A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF
MONROE COUNTY, EVIDENCING THE BOARD'S APPROVAL OF. A
RECOMMENDED BENEFICIAL USE DETERMINATION PROMULGATED
BY THE SPECIAL MASTER, IN RE: THE APPLICATION OF STEVE
MILLER AND TONIA SLEDD
WHEREAS, on January 4, 1996, the Monroe County Year 2010 Comprehensive Plan
became effective; and
WHEREAS, the application of Steve Miller and Tonia Sledd for determination of
beneficial use was heard by Special Master John J. Wolfe on March 25, 2004; now
therefore:
BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE
COUNTY, FLORIDA, that:
The Findings of Fact and Conclusions of Law and recommendations of the Special
Master as set forth in the proposed determination are APPROVED and the application of
Steve Miller and Tonia Sledd is accordingly APPROVED, subject to the conditions listed in
the attached Proposed Beneficial Use Determination, dated May 7, 2004
PASSED AND ADOPTED by the Board of County Commissioners of Monroe County,
Florida, at a regular meeting of the Board held on the 18th day of August, 2004.
Mayor Nelson yes
Mayor Pro Tern Rice yes
Commissioner McCoy yes
° TCorg ssioner Neugent _ yes
4� k`71,e `C.nr 'yq`sioner Spehar yes
- -: 21,- BOARD OF COUNTY COMMISSIONERS
OLHAGE, clerk OF MONROE COUNTY, FLORIDA
Y By
Deputy Clerk ayor/Chairperson
,-, 7/2W2004
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c� ,-_ ULANN . HUTTON
s �D A oISTANT 7N7ATTORNEY
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1
BENEFICIAL USE
MONROE COUNTY SPECIAL MASTER
In Re: Steve Miller and Tonia Sledd
Beneficial Use Application
PROPOSED
PARTIAL GRANT OF BENEFICIAL USE
The application for a beneficial use determination was considered at a duly noticed hearing
on March 25, 2004, before John J. Wolfe, designated Beneficial Use Special Master for Monroe.
County.Andrew M.Tobin represented the Applicant. Robert Shillinger represented Monroe County.
Having reviewed and heard all evidence presented,testimony of witnesses and arguments of counsel,
the undersigned Hearing Officer makes the findings of fact and conclusions of law and proposes the
determination as set forth below.
ISSUE
Whether the Applicants have been denied all reasonable economic use of their property by
application of Sections 9.5 -339.2,Automatic High Quality Forest Designation,and 9.5-347,Open
Space Requirements, of the Monroe County Code (the "Code"), and whether the Applicants are
entitled to relief under Policy 101.18.5 of the Year 2010 Comprehensive Plan (the "Plan") and
Section 9.5-173 of the Code.
FINDINGS OF FACT
1. The subject property is located at 227 South Harbor Drive, Key Largo, Florida
33037, and is described as Lot 15, Block 3, Bay Harbor, Amended Plat, according to the Plat
thereof, as recorded in Plat Book 2, Page 91, of the Public records of Monroe County, Florida(the
"Lot"),and is within an Improved Subdivision(IS)land use district.The Lot is a 5,068.5 square foot
parcel and has existing homes on each side.
2. The Applicants filed an application to build a single family residence on the Lot in
September, 2003. The Lot is contiguous with, and part of, a large hardwood hammock area that
exceeds thirteen (13) acres in size. The application included a Habitat Evaluation Index (HEI)
prepared by a consultant hired by the applicant establishing the quality of the hammock on the Lot
as"moderate quality". However, County staff determined that the Lot was"high quality"because,
according to Code Section 9.5-339.2, Automatic High Quality Forest Classification, "Tropical
hardwood hammocks of twelve and one-half acres of more in size shall be classified as high quality
hammocks".
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3. The Applicant proposed a development of 2,025 square feet. The Applicant's plan
would require 60%development of the 5,068.5 square foot Lot,which is the permitted development
for"moderate quality hammock". However, Section 9.5-347, Open Space Requirements,provides
that development proposals in "high quality hammock" must provide 80% open space, with the
remaining 20%available for development. Providing 80%open space results in a 20%development
area of 1013.7 square feet.
4. Although Code Section 339.2 requires the automatic high quality forest designation,
the County staff determined that the vegetation on the Lot is of a lesser quality because of the
presence of invasive exotics. The Lot's interior contains large patches of invasive plants,including
Florida Holly/Brazilian Pepper(Schinus terebinthifolius)and Mother-In-Law's-Tongue(Sanseveria
spp.),the extent of these species is estimated at beyond 40%of the Lot. The Lot is also surrounded
on two sides by developed properties,both of which are relatively cleared. The third side is bounded
by a paved roadway. The roadway is part of a subdivision which is nearly 50%built out. The Land
Authority has stated that the Lot is not on the Authority's Conservation and Natural Areas
Acquisition Map and is not targeted for acquisition.
5. County staff believes that Applicant has not been denied all reasonable economic use
of the Lot. However, staff points out that in similar cases under the beneficial use process, the
County has permitted increased clearing allowances to 2,000 square feet to facilitate the construction
of a dwelling unit. Staff notes the example of Policy 204.2.6 of the Plan, which provides for a
reduction of the 50 foot setback from wetlands if the setback required by the Plan and the Code
results in a lot with less than 2,000 square feet of buildable area.
6. Monroe County, through this process and pursuant to Section 9.5-173(a)(2) of the
Code, has agreed to the partial grant to the Applicant of a Beneficial Use determination in order to
expand the buildable area of the Lot to 2,000 square feet and to allow parking in the front yard
setback, subject to the following conditions:
1. A construction impact zone be included in the 2,000 square feet cleared area,
and
2. A deed restriction be placed on the remaining open space as detailed in
Section 9.5-337 of the Code.
CONCLUSIONS OF LAW
7. Policy 101.18.5,provides that neither the provisions of the Plan, nor the LDR'S
shall deprive a property owner of all reasonable economic use of a parcel of real property which is
a lot or parcel of record as of the date of the Plan. This policy further provides that a property owner
may apply for relief from the literal application of applicable land use regulations or of the Plan
when such application would have the effect of denying all economically reasonable use of that
property unless such deprivation is shown to be necessary to prevent a nuisance or to protect the
health,safety and welfare of its citizens under Florida Law.All reasonable economic use is defined
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as"the minimum use of the property necessary to avoid a taking within a reasonable period of time
as established by current land use case law".
8. Section 9.5-173 of the Code implements the procedure contemplated by Policy
101.18.5 and provides that in order to establish an entitlement to Beneficial Use relief an Applicant
must demonstrate that "the Comprehensive Plan and land development regulations" deprive the
Applicant of all reasonable economic use of the Lot.
9. As is made clear by Policy 101.18.5,the standards applied to determine whether a
regulatory taking has occurred are constitutionally based as set forth in current land use case law.
This subject has been addressed by the U.S. Supreme Court in a number of cases,but there are two
notable cases applicable to the facts presented here. Both cases involved landowners who claimed
that they had been deprived by government regulation of all economically beneficial use of their
property.
In Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 112 S.Ct. 2886, 120 L.Ed. 798
(1992),the property owner had purchased two ocean front lots to build single family homes. Two
years later all development on the lots was prohibited by South Carolina's Beachfront Management
Act. The Court confirmed the standard that when government regulations deny all economically
beneficial or productive use of land, the property owner is entitled to compensation as a taking. In
the Lucas case clearly all use was prohibited.
In Palazzolo v. Rhode Island, 533 U.S. 606, 121 S.Ct. 2448, 150 L.Ed. 2d 592 (2001), the
property owner had purchased approximately 20 acres of land for development. Many years later,
but prior to development, regulations promulgated by the Rhode Island Coastal Resources
Management Council designated salt marshes of the type on the Palazzolo property as protected
coastal wetlands and significantly limited development. When his development project was turned
down,the property owner sued alleging a taking under the Lucas standard. In that case, a portion of
the land was still developable,which was ascertained to have$200,000 of development value.While
this was significantly less than the development value of the parcel as a whole,the Supreme Court
upheld the Rhode Island Supreme Court's holding that all economically beneficial use was not
deprived. Id at 630.
10. Applying the above standard to the facts presented herein of the Code, it has to be
concluded that The Plan and LDRs in effect at the time the Applicant filed the subject Beneficial
Use Application do not deny the Applicant all reasonable economic use of the Lot, but does deny
the Applicant substantial economic use. Applicant could construct a residence of approximately
1,014 square feet. However, under Section 9.5-173(a)(2) and through this proceeding, Monroe
County has agreed to partially grant the Applicant Beneficial Use relief as set forth in Paragraph 6
above, in order to provide additional reasonable use of the Lot.
11. The relief granted herein provides the Applicant a 2,000 square foot buildable area,
which constitutes a reasonable economic use of the Lot.
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PROPOSED DETERMINATION
As stated above,the Applicant has not been denied all reasonable economic use of the Lot.
However, as Staff has noted, the required automatic designation as high quality forest ignores the
actual lesser quality of the vegetation on the Lot and denies the applicant reasonable economic use
of a substantial portion of the Lot. A literal application of the Code would actually make the
removal of the invasive exotics less likely, whereas granting a building permit would require
removal of the invasive exotics and make the Lot more compatible with the contiguous hammock.
It would also be more consistent with relief granted in similar situations pursuant to the Code.
Based upon the above Findings of Fact and Conclusions.of Law,I recommend to the Board
of County Commissioners that a final beneficial use determination be entered partially granting
Applicants' beneficial use application in accordance with the relief set forth in Paragraph 6 above.
DONE AND ORDERED this 7' day of May, 2004.
77/
John J. lfe
Specia ast r
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