Item F11
Board of County Commissioners
AGENDA ITEM SUMMARY
Meeting Date: March 20, 2002
Division: County Attorney
AGENDA ITEM WORDING:
Public Hearing for a Resolution of Recommended Order for Denial of Beneficial Use
for the application of Regina M. Gonzalez.
ITEM BACKGROUND:
Hearing Officer John Wolfe issued a Recommended Order of Beneficial Use
Determination on May 21, 2001.
PREVIOUS RELEVANT BOCC ACTION:
Adoption of Monroe County 2010 Comprehensive Plan and ROGO.
STAFF RECOMMENDATION:
Approval.
TOTAL COST: N/A
BUDGETED: Yes
No
Cost to County: N/A
APPROVED BY:
County Attorney
x
OMB/Purchasing
Risk Management
DIVISION DIRECTOR APPROV~
DOCUMENTATION: Included --2L- To Follow Not required
AGENDA ITEM #
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County Attorney
RESOLUTION NO.
-2002
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: REGINA M. GONZALEZ.
WHEREAS, on January 4, 1996, the Monroe County Year 2010 Comprehensive Plan became
effective; and
WHEREAS, the application of Regina M. Gonzalez for determination of beneficial use was heard
by Special Master John J. Wolfe on December 18, 2000; 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 Beneficial Use Determination is DENIED and it is determined that the applicant has
not been deprived of all economic use of their property and that the property may be filled for
development.
PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Florida, at a
regular meeting of the Board held on the 20th day of March 2002.
Mayor Charles McCoy
Mayor Pro Tem Dixie Spehar
Commissioner Murray Nelson
Commissioner George Neugent
Commissioner Nora Williams
(SEAL)
Attest: DANNY L. KOLHAGE, Clerk
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
By
By
Deputy Clerk
Mayor/Chairman
BENEFICIAL USE
MONROE COUNTY SPECIAL MASTER
In Re: Carol Foley
Regina Gonzalez
Richard & Carol May
Nils & Mary Norling
Peter, Anthony, Jack & George Tsavdaris
-Beneficial Use Application
/
PROPOSED
DENIAL OF BENEFICIAL USE
The above entitled matter was heard at a duly-advertised and regularly scheduled, public
hearing on December 18, 2000, before John 1. Wolfe, designated Beneficial Use Special Master. The
Applications for a Determination of Beneficial Use filed by each of the above applicants (the
"Applicants"), involve substantially identical issues and were consolidated for purposes of this
Hearing by agreement of the Applicants and Monroe County. Andrew Tobin represented the
Applicants. Assistant County Attorney Karen Cabanas, Director of Planning, Marlene Conaway,
Assistant to the Planning Director, Julie Thomson, and Biologist, Ralph Gouldy, represented Monroe
County.
ISSUE
Whether the Applicants have been denied all reasonable economic use of their property by
application of Policy 102.1.1 of the Year 2010 Comprehensive Plan (the "Plan"), as implemented
by a 1999 Memorandum of Agreement between Department of Community Affairs and Monroe
County (the "Memorandum"), and Section 9.5-343 of the Monroe County Code (the "Code"), and
whether the Applicants are entitled to relief under Policies contained in Objective 101.18.5 of the
Plan and Section 9.5-173 ofthe Code.
FINDINGS OF FACT
I. All properties of the Applicants subject to this Hearing are unimproved lots located on
Cer.ter Island, Duck Key, and are zoned Improved Subdivision - Masonry (IS-M).
2. The Applicants purchased their respective lots which are the subject ofthis Hearing (the
"Lots"), as shown below on the dates shown below:
Applicant( s) Lot. Block RE Number Purchase
Date
Carol Foley Lot 8, Block 4 00379900 1/15/87
Regina Gonzalez Lots 13 & 14, Block 4 00379950&00379960 8/18/89
Richard and Carol May Lot 21, Block 3 00379670 11/21/86
Nils and Mary Norling Lots 2 & 3, Block 14 00381900&00381910 12/14/80
Peter, Anthony, Jack & Lots 1,2 & 9, Block 13 00381800&00381810 4/30/87
George Tsavdaris & 00381880
3. In 1998, Monroe County completed a study, Advanced Identification of Wetlands (the
"ADID Study"), as directed in Policy 204.1.1 of the Plan which included a method to "score"
lots/properties with wetlands characteristics and assign a numeric value reflecting the quality of the
wetlands found on such lots/properties. The scoring methodology was implemented by the adoption
of interim standards for development in disturbed wetlands as set forth in the Memorandum.
Wetlands which score at 7.0 or higher are considered high functional capacity wetlands, and are so-
called "red-flag" wetlands, because development of such wetlands is prohibited under any
circumstances. Wetlands which score below 7.0, but greater than or equal to 4.6 are considered
moderate functional capacity wetlands. Wetlands which score less than 4.6 are considered low
functional capacity wetlands. Moderate and low functional capacity wetlands are suitable for
development with appropriate mitigation. The Memorandum specifically provides that the interim
standards are to be strictly construed.
4. All of the Lots, except the Tsavdaris lots listed above, were determined by the ADID
Study to have low functional capacity wetlands on all or portions of the Lots. The Tsavdaris lots
were determined to have moderate functional capacity wetlands on an or a portion of such lots. As
stated above, these wetlands are suit?ble for development with appropriate mitigation. Given the
small size of the Lots, it is most likely that the mitigation will be offsite mitigation to be
accomplished through payment of a fee to a restoration fund in the amounts determined in
accordance with the formula set forth in the Memorandum.
CONCLUSIONS OF LAW
5. The Lots are designated Improved Subdivision - Masonry (IS-M), which allows one
residential dwelling per lot.
6. The Applicants have not been deprived of all reasonable economic use of the Lots by the
application of Policy 102.1.1 of the Plan and Section 9.5-343 ofthe Code. Due to the fact that all
of the Lots have been determined to be either low or moderate functional capacity wetlands by
applying the interim standards set forth in the memorandum, the Lots may be filled for development
in accordance with the provisions of the Memorandum and Section 9.5-345 ofthe Code.
PROPOSED DETERMINATION
WHEREFORE, I recommend to the Board of County Commissioners that a final beneficial
use determination be entered denying Applicants' beneficial use applications.
DONE AND ORDERED this ~!~y of May, 2001.
County of Monroe
Department ofPlannin2 and
Environmental Resources
2798 Overseas Highway, Suite 410
Marathon, Florida 33050
Voice: (305) 2892500
FAX: (305) 2892536
Board of County Commissionen
Mayor George Neugent, Dist 2
Mayor Pro Tern Nora Williams, Dist. 4
Commissioner Sonny McCoy, Dist. 3
Commissioner Murray Nelson, Dist 5
Commissioner Dixie Spehar, Dist. I
MEMORANDUM
TO:
John Wolfe, Esq., Special Hearing Officer
From:
K. Marlene Conaway, Director
Department of Planning and Environmental Resources
Date:
November 13,2000
Subject:
Regina Gonzalez, Beneficial Use Case
Background on Subject Property
The applicant purchased the subject property in August of 1989. The property Lots 13 & 14,
Block 4, Center Island Duck Key, according to the plat thereof recorded in Plat Book 5 page 82,
of the Public Records of Monroe County. The subject lot is vacant and zoned IS-M.
The County Biologist examined the property for environmental status in April 2000. Lots 13 &
14 are characterized as containing some low quality wetlands on the lot.
Permitting History
No permits have been issued or applied for on this lot.
Development Potential
The improved Subdivision designation of the property allows one single family residential
dwelling and accessory uses to be located on the lot. As an improved subdivision, it has no TDR
value under the current code.
The Monroe County Year 2010 Comprehensive Plan, January 4, 1996, Policy 102.1.1 includes a
one hundred percent open space requirement for freshwater wetlands and a 50-foot buffer
around freshwater resources. In 1998, the County completed a study (ADID, or Advanced
Identification) of wetlands in Monroe County as directed in Plan Policy 204.1.1. A portion of
the study included a method to "score" wet lots and assign a numeric value, which reflects the
quality of the wetlands. A 1999 Memorandum of Agreement between Department of
Community Mfairs and Monroe County pursuant to Section 380.032, Florida Statutes
implemented the scoring methodology. Fill and development, with appropriate mitigation, are
allowed in disturbed wetlands of low and moderate functional capacity according to the MOD.
Lots 13 & 14 were scored 2.78 by the County Biologist and is therefore a low functional
capacity wetland. Low functional capacity wetlands are assigned a green-flag designation and
are considered suitable for development.
An application can be processed for construction of a single family dwelling on the subject lot.
The attached memo details the process to be followed when requesting a permit to develop in a
low functional capacity wetland. Of course, the applicant will also be required to obtain an
allocation under the Rate of Growth Ordinance (ROGO), a nutrient reduction credit, and will be
bound by all current Land Development Regulations.
Eligibility for Beneficial Use
Section 9.5-173 of the Monroe County Land Development Regulations requires the applicant to
demonstrate that the 2010 Comprehensive Plan and the Land Development Regulations in effect
at the time of the filing of the beneficial use application deprive the applicant of all reasonable
use of his or her property. Policy 101.185 of the Comprehensive Plan defines "all reasonable
economic use" as the minimum use of the property necessary to avoid a taking within a
reasonable period of time as established by law.
The subject property contains a disturbed low quality wetland; the lot may be filled and
developed with appropriate mitigation, and the required ROGO allocation, nutrient reduction
credit, and permits. The applicant is eligible to apply for an allocation under ROGO and
participate in the permitting process. Duck Key is located in the Middle Keys where competition
has been minimal since the incorporation of Marathon. Therefore, the Planning Department
finds that the applicant has not been denied all reasonable economic use of his property and is
therefore not eligible for beneficial use determination.
Recommendation:
It is recommended that the Special Hearing Officer find that the applicant has not been deprived
of all reasonable economic uses of his property and is not entitled to beneficial use relief.
cc. Timothy McGarry, Director of Growth Management
Mark Rosch, Monroe County Land Authority
Andrew Tobin, Esq.
Karen Cabanas, Esq.
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