Item R22
BOARD OF COUNTY COMMISSION
AGENDA ITEM SUMMARY
Meeting Date_1!20/05 - KW
Division .(gunty Attorney's Offic~
Bulk Item: Yes
No ---,-L
Staff Contact Person: Bob Shillinger
AGENDA ITEM WORDING:
Approval to advertise a Public Hearing to be held June 15, 2005 at 3 :00 p, OJ. in Marathon, Florida to
consider the adoption of a Resolution approving the Reconunended Beneficial Use Determination of the
Special Master and denial of the Beneficial Use Applic,ation of Merrick and Suzanne Kalan.
ITEM BACKGROUND:
PREVIOUS RELEVANT BOCC ACTION:
CONTRACT/AGREEMENT CHANGES:
STAFF RECOMMENDATIONS:
Approval
TOT AI. COST:
N/A
BUDGETED: Yes
No
COST TO COUNTY:.._n__.~LiL_______
SOl'RCE OF" FUNDS:
REVENUE PRODUCING: Yes
No --2<_.~__.__ AMOUNT PER MONTH____ Year
APPROVED BY: County Att4.__ OMB/Purchasing ___ Risk Management_
DIVISION DIRECTOR APPROVAL:
l, (\, ' / \ I
1s~.~~~ciru-W#'A~TO-RNEY--
DOCUMENTA TION:
1 nc1udedd~X..__
Not Required_
DISPOSITION:
AGENDA ITEM #__..___._,____
Rc\'iscd 2105
NOTICE OF PUBLIC HEARING OF BENEFICIAL USE
NOTICE IS HEREBY GIVEN TO WHOM IT MAY CONCER.~ that on June 15,2005 at 3:00 P.M. at
the Marathon Government located at 2798 Overseas Highway; MM 47.5 (Gulf); Marathon, Florida the
Board of County Commissioners of Monroc County intends to consider thc following Vested Rights/
Beneficial Use Final Determination:
Applicant Name
Property Descriotion
Merrick and Suzanne Kalan
Lot 10 and adjoining Lot 11, Block 4
Plat of Cahill Pines and Palms Subdivision, Big Pine Key, FL
Pursuant to Section 286,0 J 05, Florida Statutes, notice is given that if a person decided to appeal any decision
made by the Board with respect to any mattcr considered at such hearings or meetings, he will need a record
of the proceedings, and that, for such purpose, he may need to ensure that a verbatim record of the
proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based.
Copies of the above-referenced determination(s) are available for review at the various public libraries in
Monroe County, Florida,
Dated at Key West, Florida, this 1 st day of April, 2005,
(SEAL)
DANNY L KOLHAGE, Clerk of the Circuit Court
and ex officio Clerk of the Board of County
Commissioners of Monroe County, rlorida
Publication date(s):
Key West Citizen
Keynoter
(Su) 5/8/2005
(Sa) 517/2005
BENEFICIAL USE
'JONROE COL"NTY SPECIAL 1\'1ASTER
1n Re: Merrick and Suzanne Kalan
-Beneficial Use Application
})ROPOSED
DENIAL OF BENEFICIAL USE
The above entitled matter was heard at a duly-advertised and regularly scheduled public
hearing on October 26, 2004, before John J. Wolfe, designated Beneficial Use Special Master.
Andre\\' Tobin represented I\1erriek and Suzanne Kalan (the "Applicants"). Derek Howard
represented Monroe C:ollnty and Director of Planning & Environmental Resources, Marlene
COJ1mvay, Beth LaFleur, Planner and Administrative Assistant, Julie Thomson. were present for
Monroe County.
ISSUE
\Vhether the l\pplieants have been denied all reasonable economic use of their property due
to the fact that they have not received building permits for their property, and whether the Applicants
are entitled to relief under the Policies of Objective 101.18.5 of the Monroe County Year 2010
Comprehensive Plan (the "Plan"), <lIld Section 9.5-173 ofthc Monroe County Code (the "Code").
FINDINGS OF FACT
1. The property of the Apphcants subject to this Hearing are unimproved lots located in
Cahi11 Pines and Palms Subdivision, Big Pine Key, and are zoned 1mproved Subdivision (1S), This
zoning allows one single family residential dwelling and accessory uses for each lot.
2. Thc Applicants pmchased Lot 10, Block 4 (RE # 00244200-(00000), in May, 1983 for
555,000, and the adjoining Lot 11 (RE H 00244210-00(000) for $ 1 .00. The Applicants purchased
Lot] 8, Block 4 (RE # 00244280-0(0000) in July, 1983 for $26,000, Such lots arc hereinafter
collectively referred to as the "Lots",
3, All of the Lots are upland lots located on a canal. The shoreline of Lot 10 has been altered
by a seawalL All of the Lots arc nearly devoid of vegetation with the exception of some invasive
exotics on Lots 10 and 11 and the presence of various nati ve species along the southern property line
of Lot 18 and mangrove fringe on the shoreline of Lot ] 8.
4. The Applicants applied for building permits and entered the Rate of Growth Ordinance
("'ROGO"') allocation system on April 18, 1997. A1110t3 on Big Pine Key scores a minus ten points
for critical habitat due to requirements in the Plan to protect the habitat of Key Deer. Thus, Big Pine
"
Key lots generally enter the ROGO system \vith relatively low point scores unless the applicant
purchases or combines lots to obtain a higher scoring. The Applicants did not do either. Each Lot
has a total of 18 ROGO points, which includes 10 perseverance points. They received one
perseverance point for each of the first four years in the ROGO system and two perseverance points
for each afthe three years thereaDer. They will continue to receive two perseverance points per year
as long as they are in the RUGO system.
5. The ROGO system allows applicants to apply for Administrative Relief after being in the
system for four years pursuant to Code Section 9.5-122.2(f). The Board of County Commissioners
conducts a hearing and may as a result of such hearing award an allaeation( s) in tIle next succeeding
quarterly allocation period, offer to purchase the property at its fair market value, or suggest other
relief as may be necessary or appropriate. Applicants applied for Administrative Relief, but did so
one year after the deadline for applying, and thus are no longer eligible to apply tor Administrative
Relief..
6, A iter recei ving an al location, an appl icant in the RUGO system III ust also obtain a nutrient
reduction credit in order to obtain a building pennit. Nutrient reduction credits have been in short
supply in recent :years. and 95 of the 159 persons who obtained allocation awards did not have
nutrient redw:tion credits. Hov,,'ever, it is anticipated that Monroe County will obtain approximately
200 nutrient reduction credits in the near future \ovith the Little Venice wastewater treatment plan
coming on line in 1\1arathon. These wOldd be handed out on a first come first serve basis.
7. After receiving an allocation mvard for a property located on Big Pine Key, an applicant
also must obtain a letter of coordination from the U.S. Fish and \Vildlife Service ("USF&W").
USf & W is not issuing any such letters until it has approved the Habitat Conservation Plan for Big
Pine Key (the "Hep"), which was submitted by the County approximately 1 8 months ago. Approval
had heen expected by the County within 6 months.
8. At the date of the heming, current allocations were not being made pending resolution of
an administr8tive hearing Jor a proposed rule which would restore some ofpreviousJy lost ROGO
allocations. These allocations had hcen lost, because the State had determined that the County had
not made sufficient progress in bringing \vaste water treatment plants on line. The State issued the
proposed rule after recognizing recent progress, but it was appealed hy two groups. If approved, It
is expected that allocations vvhich had been lost for the last two years would be restored. The County
is \vorking on an ordinance \vhich would protect the positions in line of persons like the Applicants
due to the delay caused by the appeal of the proposed rule. The last pre-allocation rankings the Lots
received was for the fOUl1h quarter ofY car 12 ofROGO and covered the period from Aprill4, 2004
through July 13, 2004. The pre-allocation rankings \vere 20, 21 and 22, None of the lots with a
higher pre-allocation ranking for such quarter were located on Big Pine Key.
9. Eight market rate allocations may be issued each year on Big Pine Key. There arc 32 which
have been awarded, hut no building pen-nits issued, because USF& W has not issued letters of
coordination. The proposed Hep would allow the lasl1\vo years vvorth of unissued permits to be
issued.
CONCLUSIONS OF LAW
1 0, The Improved Subdivision desi gnation of the Lots allows one single family residential
dwelling on each Lot, and there are no environmental constraints to development on the Lots.
11. Policy 101.18.5 of the Plan provides that neither the pmvisions of the Plan, nOT the
LDR'S shall deprive a property o\vner of all reasonable economic use of a parcel of real property
...vhieh is a lot or parcel of record as of the date of the plan. This policy fmiher provides that a
property owner may apply for relief from the literal application of applicable land use rq,rulations
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 \velfare of its citizens under Florida 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".
12. 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.
13. Applying the above standard to the facts presented herein, it has 10 be concluded that the
Plan and the LDRs do not deny the Applicants all reasonahle economic use of the Lots. The
Applicants could have filed for Administrative Relief in a timely manner after four years in the
system, but did not do so. failing that, the ROGO system awards two perseverance points per year
after year fClUf instead of one. This significantly enhances the competitive position of the Applicants
in ROGO. The Applicants also could have combined Lots 10 and J 1 for additional points or
purchased one or more lots for dedication and obtained additional points. The County and the State
have agreed upon a Rule to make up for some of the previously lost all ocati cms due to the failure of
the County to adequately address waste \....ater treatment. If this Rule, presently on appeal by two
groups, is upheld, there v\iill be additional allocations available. The County has passed the Hcr and
is waiting on lJ Sf & W to respond. Thi s \/"'ould ti'ee up the letter of coordination requirement. In
addition, if the proposed ordinance goes into effect. the Applicant's positions in line will be
protected by not all owing nevv" applicants to "'buy their way" ahead of the Applicants.
PROPOSED DETERl\n~A lION
\Vl-l EREfORL I recommend to the I30ard of County Commissioners that a final beneficial
use determination be entered denying Applicants' beneficial use app]icalions.
DONE AND ORDERED this 21st day of March, 2005.
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John J. Wolfe
Special Master