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Resolution 038-2002 FILED FOR RECORD 1002 FEB I 5 AH II: '-+ 7 Board of County Commissioners RESOLUTION NO. 038 -2002 o.ArgL~~ci~~fbTION OF THE BOARD OF COUNTY COMMISSIONERS OF MONROE~i!)WR'Ul9-60UNTY" FLORIDA CONCERNING ROGO EXEMPTION ISSUES WHEREAS, the Board of County Commissioners has given due consideration to the ROGO exemption issues described in the attached memorandum from County Attorney James Hendrick to Growth Management Director Tim McGarry; and WHEREAS, the Board of County Commissioners finds that the matters set forth in the said memorandum accurately state the position of the Board of County Commissioners; now, therefore BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA that the attached memorandum is hereby APPROVED as the position statement of the Board of County Commissioners of Monroe County, Florida. PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Florida, at a Special Meeting of said Board held on the 12th day of February, 2002. MayorCharles McCoy ayor Pro Tem Dixie Spehar missioner Murray Nelson issioner George Neugent sioner Nora Williams yes yes absent yes yes BOARD OF COUNTY COMMISSIONERS OF MONROE CO NTY, FLORIDA By jdresROGOx memorandum To: Tim McGarry, Director Growth Management Division From: Jim Hendrick, County Attorney Re: ROGO exemption, Hawk's Cay DRI Notwithstanding the Memorandum to you from Karen Cabanas dated October 18, 2001, concluding that the Hawk's Cay DRI approval of 444 units are vested, questions continue to be raised concerning the status of those units. Most recently, the BOCC received a letter from the respected Environmental & Land Use Law Center, contending that "the development units for which vested rights or other recognition are sought simply do not exist." The letter contends that the previous approval is not "unexpired" under either Section 9.5-120.4 (g), Monroe County Code, or under DRI vesting law. In support of that conclusion, the author suggests that the previous approval "expired upon being amended in 1996". Having carefully considered that argument, I have concluded that the opinion previously stated by Karen Cabanas is valid, and that the previous approval did not expire upon amendment. First, as to the issue whether the units are vested under DRI law, it should be noted that nothing in the October 18, 2001 Memorandum found the units to be vested under statutory or common law standards. The Memorandum refers to the project as "vested" only in the limited sense utilized in LDR Section 9.5-120.4(g), i.e., (g) Vested rights: Landowners with a valid, unexpired development of regional impact approval granted by the county prior to July 13, 1992 shall be exempt from the residential ROGO system. Thus, it would be more accurate to describe the Landowner (rather than the units) as ROGO-Exempt (rather than "vested"). Viewed in that light, the issue is clear, and the necessity for a lengthy vesting analysis is obviated. Does the Hawk's Cay landowner have a valid, unexpired DRI approval? Yes. To contend that an approval "expires" when it is amended is to defy the plain meaning of "amendment". Was DR! approval granted prior to July 13, 1992? Yes; subsequent amendment does not vitiate the original approval, because the statutory DR! process requires subsequent amendments to be measured against, and not to deviate substantially from, the impacts assessed and authorized in the original impact approval. Accordingly, Hawk's Cay Investors, as the landowner having a valid, unexpired DR! impact approval predating the 2010 Comprehensive Plan, is ROGO-exempt. The above legal analysis fmds support in the policy on which ROGO is founded. As noted in the Memorandum, "At the time the hurricane [ evacuation model] calculations were made, the property was assumed to have 444 units. Therefore, the reclaiming of these units does not impact hurri,eane evacuation calculations, as both ROGO and the hotel moratorium are based on a hurricane evacuation model which assumes these units already exist." As you know, I served as a consultant to the County in the drafting of the Comprehensive Plan, and specifically with respect to ROGO. Dwelling unit data compilation utilized in the hurricane evacuation model were prepared by Price Waterhouse, utilizing 1990 census data augmented by calculations of, inter alia, unoccupied units that hadn't been counted in the census because they were under construction, subsequently permitted, or vested but unbuilt. In the latter category were the then-unbuilt Hawk's Cay DR! units. The ROGO base unit count on which Comprehensive Plan Objective 101.2 and Policies 101.2.1, et seq., rests, includes all 444 Hawk's Cay units authorized under the original DR! approval. s T. Hendrick unty Attorney