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Item Q2 BOARD OF COUNTY COMMISSIONERS Agenda Item Summary Meeting Date December 15, 2004 Division County Attorney AGENDA ITEM WORDING Public Hearing of Resolution of the Recommended Beneficial Use Determination of Richard and Joyce Farmer. ITEM BACKGROUND: Special Magistrate John J. Wolfe issued a Proposed Beneficial Use Determination on August 25, 2004. PREVIOUS RELEVANT BOCC ACTION: Adoption of Monroe County Year 2010 Comprehensive Plan and ROGO. CONTRACT/AGREEMENTCHANGES N/A STAFF RECOMMENDAnONS Approval. TOTAL COST COST TO COUNTY BUDGETED Yes No SOURCE OF FUNDS APPROVED BY: County Attorney _ OMB/Purchasing Risk Management DIVISION DlRECTORAPPROVAL!QOlJL~ 11/;1//, J. R. COLUNS DOCUMENTAnON: Included AGENDA ITEM II Q~ County Attorney RESOLUTION NO. -2004 A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, APPROVING A BENEFICIAL USE DETERMINATION RECOMMENDED ORDER UPON THE APPUCATlON OF RICHARD AND JOYCE FARMER WHEREAS, a Special Master has issued a Beneficial Use Determination Recommended Order upon the application of Richard and Joyce Farmer; and WHEREAS, the Board of County Commissioners must take action on said Recommended Order; now therefore: BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA, as follows: 1. Authoritv to Act. Pursuant to Section 9.5-174, Monroe County Code, the Board of County Commissioners is the authority to approve, deny, or modify a Beneficial Use Determination Recommended Order issued by a Special Master. The decision by the Board of County Commissioners shall be made during a public hearing at which the public shall be given a right to be heard and make arguments for or against the proposed Determination. A duly noticed public hearing on this matter was held on December 15, 2004. 2. Procedural Findinas. The Board of County Commissioners finds from the record that Special Master John J. Wolfe conducted the BenefiCial Use Determination hearing on April 15, 2004, and said Special Master issued his written Beneficial Use Determination Recommended Order on August 25, 2004. The Board further finds that the Special Master conducted the evidentiary hearing in a manner consistent with Article VI, Monroe County Code, and the Year 2010 Comprehensive Plan. A copy of the Special Master's Recommended Order and its' Attachment A is hereby appended to, and made a part of, this Resolution. 3. Aooroval and Adootion of Findinas of Fact. The Board of County Commissioners hereby APPROVES the Findings of Fact numbered 1 through 6 as contained in the Recommended Order and ADOPTS the Findings of Fact as the findings of the Board. 4. Aporoval and AdoDtJon qf Conclusions of Law. The Board of County Commissioners hereby APPROVES the Conclusions of Law numbered 7 through 11 as contained in the Recommended Order and ADOPTS the Conclusions of Law as the conclusions of the Board. s. AdoDtion of ProDosed Determination. The Board of County Commissioners hereby APPROVES the Proposed Determination and ADOPTS i'{' as the FINAL DETERMINATION of the Board, and, therefore, Richard and Joyce Farmer shall have the relief as set forth in Paragraph 6 of the Findings of Fact. PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Florida, at a regular meeting of the Board held on the 15th day of December, 2004. Mayor Spehar Mayor Pro Tem McCoy Commissioner Nelson Commissioner Neugent Commissioner Spehar (SEAL) Attest: DANNY L.KOLHAGE, Clerk BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA By By Deputy Clerk Mayor/Chairperson jBUFarmer MONROE COUNTY ATTORNEY ~~~M JOHN R. COLLINS --1.ff~41 ATTORNEY Date l t ,y BENEFICIAL USE MONROE COUNTY SPECIAL MASTER In Re: Richard T. and Joyce E. Farmer Beneficial Use Application / PROPOSED BENEFICIAL USE DETERMINATION The application for a beneficial use determination was considered at a duly noticed hearing on April 15,2004, before John J. Wolfe, designated Beneficial Use Special Master for Monroe County. Franklin D. Greenman represented the Applicants, Richard T. and Joyce E. Farmer. Robert Shillinger, Jr. represented Monroe County. Jerry Buckley of the Monroe County Plaruring and Environmental Resources Department testified for Monroe County and Don Craig of the Craig Company testified for the Applicants. Having reviewed and heard all evidence presented, testimony of witnesses and argwnents of counsel, the undersigned Hearing Officer makes the findings offact and conclusions oflaw 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 Policy 204.2.6 of the Year 2010 Comprehensive Plan (the "Plan"), and Section 9.5- 348(d)(7) of the Monroe County Code (the "Code"), which require a vegetated setback of fifty (50) feet as an open space buffer for development adjacent to wetlands and Section 9.5-347(b) of the Code which limits clearing of the hammock on the property to 40% for development, and whether the Applicants are entitled to relief under Policy 101.18.5 of the Plan and Section 9.5-173 of the Code. FINDINGS OF FACT 1. The subject property is Lot 3, Block 2, Sunrise Cay, Ocean Reef Plat No. 15, according to the Plat thereof, as recorded in Plat Book 7, Page 20, of the Public Records of Monroe County, Florida (the "Lot"), and is within an Improved Subdivision (IS) land use district. The Lot is a 38,986.2 square foot (.895 acres) parcel and has existing homes on each side. Currently the property is vacant although a driveway providing access to the adjacent Lot 2 traverses a portion of Lot 3. There is also some landscaping present, both of which were permitted subject to buil~ing permit No.302635 issued on June 27,2000. 2. The Applicants purchased the Lot in March, 1999 for $3,000,000 and the current Monroe County Property Appraiser Property Record Card assesses its value at $2,281,500. The Applicants purchased the property with the expectation of building a single-family residence consistent in size and architectural design with that of the other established residences in the z:\...\clients\planning commission\...\Farmer determination immediate vicinity. The lots in this area were created in 1981 with the intent of placing single;family residences on them as part of the "planned unit development" known as the Ocean Reef Club. This was consistent with the 1981 zoning designation ofRU-l, which was the predecessor to the current Improved Subdivision zoning category that allows one single-family residence per platted lot. 3. Several constraints exist that diminish the extent to which the Lot may be developed. A portion of the Lot is designated as hardwood hammock, more specifically, low hammock (less than five feet in elevation) of moderate quality, which requires a .60 open space ratio. Therefore, only 40% of the hammock area may be cleared for development. Furthermore, due to the Lot's proximity to wetlands that occur on the eastern half of the property, a 50-foot wetland setback is required by Code Section 9.5-348(d)(7). The wetlands area is located landward of a fringing mangrove line at the easternmost portion of the Lot, and is described as undisturbed salt marsh, which extends westward to the edge of the hammock. 4. The Lot is not in an acquisition area nor is it a single parcel that would be of any value to the County. 5. The Applicants, in an attempt to resolve this matter as consistent as possible with both their goal to construct a single family residence on the Lot and the applicable provisions of the Plan and Code requirements related to setbacks from wetlands and limitations on clearing ofh~ocks, have proposed the construction of a tennis court on the Lot with the ensuing construction of a single- family residence, in the footprint of the tennis court, to be completed within a ten-year period. Accessory structures are allowed on contiguous lots under single ownership if a principal use exists on one of the parcels. As the Applicants own the adjacent, contiguous parcel and have a principal residence located there the placement of an accessory structure on Lot 3 would be consistent with Code Section 9.5-4(A-2). A standard tennis court is 114 feet long and 60 feet wide or 6,840 square feet. The buildable area of Lot 3 would support the construction of a tennis court and, later a single- family residence of the same dimensions if the wetland setback distance is relaxed. 6. Monroe County staffbelieves, as stated in the Memorandum submitted at the hearing, that "given the context of existing development on similar parcels at the Ocean Reef Club, the appraised fair market value as reflected by the Monroe County Property Appraiser of the subject property, and the expectation for development held by the applicant as reflected in the purchase price of the parcel to not allow the construction of a single-family residence would deprive the applicant of all reasonable economic use." County staff agrees with the proposal of the Applicants, with certain conditions, and pursuant to Code Section 9.5-173(a)(2) makes the following recommendation: Monroe County would grant to the Applicants the right to construct a single-family residence within a maximum buildable area of sixty (60) feet by one hundred fourteen (114) feet in the location outlined in the schematic attached hereto as Exhibit A. This location makes it such that the buildable' area shall not encroach closer than thirty (30) feet from the wetland boundary while meeting the other bulk requirements. It is also recommended that not more than forty-five percent (45%) of the hammock area be cleared for buildable area. z:\...\clients\planning commission\...\Farmer determination The recommendation is subject to the following conditions: 1. HOU$e construction will not commence before five years from the date of the acceptance of this proposed agreement, but must commence before the tenth anniversary of the date of the acceptance of the proposed agreement; 2. The Applicant shall be required to replant the disturbed area outside of the buildable area on the Lot in order to protect and improve the adjacent wetland area. This shall be accomplished by submitting a replanting plan to the Monroe County biologist, and upon approval shall be implemented by the Applicants within six (6) months of the approval date. ; 3. Prior to the house construction, the Applicants may build a tennis court in the same buildable area that the house will be located. The design of the tennis court shall be such that the storm water runoffwill enhance the adjacent wetland area; and 4. In the event that the construction ofa single-family residence is not commenced within ten (10) years of the date of the approval of this agreement, this agreement shall be void. CONCLUSIONS OF LAW 7. Policy 101.18.5 of the Plan provides that neither the provisions of the Plan, nor the Land Development Regulations (the "Regulations") 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 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 FIOljda Law. All reasonable economic use is defined 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 iri 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 CQurt 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 z:\...\clients\planning commission\...\Fanner determination '. Act. The Court confirmed the standard that when government regulations deny all economically beneficial or productive use ofland, 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 inability to construct a single family residence on the Lot under the Plan and Regulations in effect at the time the Applicants filed the subject Beneficial Use Application would deny the Applicants all reasonable economic use of the Lot. However, under Section 9.5-173(a)(2) and through this proceeding, Monroe County has, at the request of the Applicants, agreed to partially grant the Applicants Beneficial Use relief as set forth in Paragraph 6 above, in order to provide reasonable use of the Lot. The proposed recommendation is consistent with the provisions of Section 9.5-173(a)(2) of the Code. While just compensation is the preferred option where beneficial use has been deprived by operation of environmental policies or objectives contained in the Plan and the Code, it is not appropriate in this case, because the Lot is surrounded by development on each side, is not in an acquisition area, would have no value to the County, development would occur on the least environmentally sensitive area of the Lot in accordance with Section 9.5-345(f) of the Code, and the relaxation of the wetlands setback is already allowable under certain circumstances in the Code. 11. The relief granted herein provides the Applicant a 6,840 square foot buildable area, which constitutes a reasonable economic use of the Lot. PROPOSED DETERMINATION 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 25th day of August, 2004. John J. z:\... \clients\planning commission\...\Fanner determination = !i 0 ~ ~ u ~ t^~t ~ i. q ~ ..J.. Q.c ~C.l~< -:S ~ I ~ Q,) (jf.) ~ ~ "0 r;) ~ u ca::: o "'-,\ I .......... ~ ..- c o "- - -.J a.. -- ~ ~ -- +I 0 . ~ o ..1::. ,.... 0- (.() . - "'~ I <3 ._ ~ <.;j ~ ".J ~ ~~ ~ ~~j 6.t. o ....,.... p ~~ ~ S. tl ~ 'v! - ~ .- c.J ~ QJ = QJ =4:: J. ~ . QJ II e ;... J. ~ ~ tl ~V) ..::c CJ = -:S ~ 1,- ~ ~~~ = ... 9,b = .- o '.. U -;; ~ - ~ Y2 ~ i i- ~ ~ ~~ .. u.::~ ~ ~ ~ -or ~ ~1{)2 --to ~~~~t N ~~ , , I , = ~ (0 ~ ~ ~ Q,) '" '" ~ '" ~""'- ~ ~r- ~ ~ A Tt\-' . Jg N l~ .0 ~.z -f = Q,) ~