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