Resolution 263-2002
RESOLUTION NO. 263 - 2002
County Attorney
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:
APPLICATION FOR 21 PROPERTIES ON BIG PINE kEY. FLORIDA
WHEREAS, on January 4,1996, the Monroe County Yeo.r 2010 Comprehensive Plan became effective:
WHEREAS, the application of 21 Big Pine Key property owners for determination of beneficial use
was heo.rd by Special Master J. Jefferson Overby on May 23,2002; now therefore:
WHEREAS, on January 4,1996, the Monroe County Yeo.r 2010 Comprehensive Plan became effective;
WHEREAS, the application of the 21 Big Pine Key property owners for determination of beneficial
use was heo.rd by Special Master J, Jefferson Overby on May 23, 2002; 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 determination are APPROVED and the application of the 21 Big Pine Key property owners is
accordingly APPROVED, subject to conditions 1 - 4 and 6 listed in the attached Proposed Beneficial Use
Determination, dated May 28, 2002.
PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Florida, at a
regular meeting of the Board held on the 19th day of June, 2002.
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Mayor Pro Tem Dixie Spehar
Commissioner Murray Nelson
~~o . sioner George Neugent
r~O ner Bert Jimenez
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BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
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BENEFICIAL USE
MONROE COUNTY SPECIAL MASTER
In Re: Monroe County Comprehensive Beneficial
Use Application for 21 Properties on
Big Pine Key
PROPOSED
BENEFICIAL USE DETERMINATION
The above entitled matter was originally heard at a duly-advertised and scheduled,
public hearing on May 23, 2002, by J. Jefferson Overby, designated Beneficial Use
Special Master. Timothy J. McGarry, Director of Growth Management, and K.Marlene
Conaway, Director of Planning and Environmental Resources, represented Monroe
County, as the applicant on behalf of 21 property owners on Big Pine Key.
ISSUE
Whether the owners of the 21 subject properties will be denied all reasonable
economic use of their properties by application of Policy 1401.4.5 of the Monroe County
Year 2010 Comprehensive Plan and Section 9.5-291, Monroe County Code, and whether
the applicants are entitled to relief under Policies contained in Objective 101.18 of the
Year 2010 Comprehensive Plan and Chapter 9.5, Article VI, Division 2, Monroe County
Code.
FINDINGS OF FACT
I. The 21 subject properties, which are shown by Real Estate Number and
Legal Description in Exhibit A ("Subject Beneficial Use Lots"), are all located on Big
Pine Key and have a zoning designation of Improved Subdivision, that allows for a single
family dwelling on each subject property.
Page 1 of?
2. The owners of these subject properties have filed and obtained approved
building permit applications to construct single family residences and accessory
structures( permit numbers shown in Exhibit A).
3. The 21 building permit applications for the subject properties received
ROGO allocation awards in the ROGO quarters shown in Exhibit A. Building
Department records indicate that the ROGO award dates for these 21 building permit
applications range from June 6, 1996, for property owner ("applicant") Number 1 to
November 5, 1997, for property owner Number 21.
4. Section 163.3180, Florida Statutes, requires local governments to establish
level of service standards for highway facilities and prohibits local governments from
approving development orders that generate additional traffic impacting such facilities
where insufficient capacity exists or will exist.
5. Policy 301.1.2 of the Monroe County Year 2010 Comprehensive Plan and
Section 9.5 292, Monroe County Code, establish a Level of Service standard of "c" for
U,S. Highway I and its segments based on the methodology of developed by the U.S.
Highway I Level of Service Task Force.
6. Policy 1401.4.5 of the Monroe County Year 2010 Comprehensive Plan
and Section 9.5-291, Monroe County Code, prohibit the issuance of any permits for new
development that is not served by adequate level of public facilities or will reduce the
level of public facilities and services below the established standard.
7. A moratorium on new traffic generating development affecting the Big
Pine Key segment of U.S. Highway I was imposed on March 15, 1995, pursuant to the
findings of the Annual Assessment of Public Facilities for 1994 that is prepared annually
to comply with Section 9.5-292 (a)(3), Monroe County Code.
8. Since 1994, except for a brief period between December 1997 and July
1998, the Level of Service on the Big Pine Key segment ofD.S. Highway I has been "D"
or worse with insufficient reserve capacity to allow any new additional traffic generating
development.
9. The only residential building permits issued for new residential during the
almost 7 consecutive years of this moratorium were 20 permits released through a
Chapter 380, Florida Statutes, agreement between the Florida Department of Community
Page 2 of7
and Monroe County, executed in May 1995, and eight permits released in 1998 during a
brief period where reserve capacity was determined to be available in the Big Pine Key
segment of U.S, Highway I due to a technical revision in the methodology for
determining the level of service on U.S. Highway I.
10. The moratorium has prohibited Monroe County from issuing building
permits for the 21 property owners. These property owners have been waiting from four
and one-half to six years to be issued their approved building permits, which does not
account for the additional time their applications were in the ROGO process.
11. The absence of any existing principal use on the subject 21 properties and
lack of adequate highway capacity on U.S. Highway I have precluded any other possible
use and enjoyment of these properties during this waiting period by the property owners.
12. Several of the subject property owners have filed complaint in court
against Monroe County alleging various claims based on the moratorium on Big Pine
Key due to the level of service and state concurrency mandate. A recent judgment by the
court, which has been appealed to the 3rd District Court of Appeals, was entered in favor
of Monroe County on the basis that concurrency is a State-imposed mandate, not a
County regulation; that the Florida Department of Transportation, not the County, is
responsible for upgrading U.S. Highway I, not the County; and, that the issuance of any
building permits by the County may violate state concurrency provisions.
13. The Florida Department of Transportation and Monroe County have been
unable to effectuate U.S. Highway 1 capacity improvements due to the Endangered
Species Act; however, it is anticipated that with the anticipated completion and adoption
of a Habitat Conservation Plan for Big Pine Key later this year that such improvements
will be able to be constructed.
14. The Growth Management Division staff report submitted a report in this
proceeding that opined that level of service deficiency on the Big Pine Key segment of
U.S. Highway I will take anywhere from six months to three years to satisfactorily
resolve, assuming no legal challenges to the Habitat Conservation Plan. Even if the level
of service issue were satisfactorily addressed and the moratorium lifted, the Division
staff s report indicated that it would still take another two to three years for all the
permits to be issued on the 21 subject properties.
Page 3 of7
15. The report further stated that the proposed Habitat Conservation Plan for
Big Pine Key clearly indicates that an additional 200 new residential units, including the
subject 21 properties, could be easily accommodated on Big Pine Key without adversely
affecting the endangered Key Deer population. -It further stated that the level of traffic to
be generated by the 21 dwellings would be ofa de minimus impact on U.S. Highway I.
CONCLUSIONS OF LAW
16. The single-family residential building permits for the 21 subject properties
have all received ROGO allocation awards, but can not be issued due to the concurrency
requirements of Section 163,3810, Florida Statutes, Policy 1401.45 of the Monroe
County Year 2010 Comprehensive Plan and Section 9.5-291, Monroe County Code.
17. The subject property owners have in good faith relied upon the Florida
Department of Transportation and Monroe County to expeditiously move forward to
address the level of service deficiency on Big Pine Key.
18. As acknowledged by the Growth Management Division Director, the
subject property owners have been diligently waiting for approximately four and one-half
to six years for resolution of the concurrency issue and release of their permits with the
imminent prospect of having to endure another two to three years before all their permits
will be issued.
19. The Growth Management Division, upon direction and authorization of
the Board of County Commissioners of Monroe County, has filed a timely
comprehensive application for beneficial use on behalf of the owners of the 21 subject
properties.
20. Pursuant to Policy 101.18.5 of the Monroe County Year 2010
Comprehensive Plan and Section 9.5-172, Monroe County Code, I have considered:
A. the economic impact of the Policy and regulations that prohibits issuance
of approved building permits for single family homes on the 21 subject
properties; and,
Page 4 of?
B. the extent to which the regulation has interfered with the applicant's
reasonable investment-backed expectation that some reasonable use could
be made of the lots; and,
C. the admission of the Growth Management Division that although the
County is not directly responsible, this long wait of the property owners
for release of their approved building permits may constitute a deprivation
of all reasonable economic use of the subject properties, even though this
deprivation may only be temporal rather than a complete prohibition of
any reasonable use as may have been envisioned under the County's
Comprehensive Plan; and,
D. the issues of fairness and equity that property owners relying on the good
faith of government are still unable to pursue reasonable expectations to
construct their new residences, even four and one-half to six years after
ROGO allocations were awarded; and
E. the recommendations of the Growth Management Division staff that
beneficial use of the subject properties is not directly related to
environmental regulations and these properties have little conservation
value, thereby making the preferred relief option, the issuance of the 21
building permits with conditions, based on a release schedule, consistent
with the proposed Habitat Conservation Plan of 10 permits per ROGO
year starting with ROGO Year 10 (ending July 12, 2002).
21. The strict application of Policy 1401.5 of the Monroe County Year 2010
Comprehensive Plan and Section 9.5-291, Monroe County Code, as required by Chapter
163, Florida Statutes, have prohibited the County from issuing approved building permit
applications for these 21 properties and that when considered along with the realistic
assumption that it may be another couple of years before these permits may be released,
constitutes a deprivation of all reasonable use of the properties.
22. The issuance of a building permits for the subject properties IS the
preferred relief option under Section 9.5-173, Monroe County Code.
WHEREFORE, I recommend to the Board of County Commissioners that a final
comprehensive beneficial use determination be entered recommending that the building
Page 5 of7
permits for the subject 21 properties be issued m accordance with the following
conditions and release schedule:
Conditions
I. Each property owner shall be required to obtain written approval from the
Department of Health of the on-site wastewater treatment and disposal system and
submit this approval to the Building Department prior to final approval and
issuance of the building permit.
2. Ifrequired, each property owner shall obtain a letter of coordination from the U.S.
Fish and Wildlife Service and submit it to the Building Department prior to
issuance of the building permit, unless the Habitat Conservation Plan for Big Pine
Key is approved and eliminates this requirement.
3. If necessary, each property owner shall make or cause to make revisions to the
existing building permit application and plans to incorporate building or site plan
changes required to comply with Conditions #1 and #2 above, and submit the
revised application and plans to the Building Department for approval.
4. Each property owner shall be required to pick up the approved building permit
and pay all remaining permitting and impact fees within 360 days of the written
notice from the Building Department to proceed to provide updated information
for release of the building permit to comply with Conditions #1 through #3 above.
5. Each property owner shall be required to sign an affidavit releasing Monroe
County from all liability, if any, past, present, and future regards to the subject
property, as a condition for issuance of the subject building permit.
6. This comprehensive beneficial use determination shall expire for any of the 21
subject properties, if the property owner fails to meet the 360 day requirement of
Condition #4 above, at which time any and all rights acquired under this
comprehensive determination shall be forfeited.
Schedule
I. The Building Department shall notify the property owners in writing of the notice
to proceed to provide updated information to that office so that the subject
building permit may receive final approval for issuance.
Page 6 of7
2.
The written notice to proceed shall be sent to each property owner in accordance
with the following release schedule:
o ROGO Year Ten (ending July 12, 2002): After June 19, 2002, written
notification shall be sent to property owners (applicants) Number 1
through lOon Exhibit A.
ROGO Year Eleven (ending July 11, 2003): After October I, 2002,
written notification shall be sent to property owners (applicants) Number
II through 20 on Exhibit A.
ROGO Year Twelve (ending July 13, 2004): After July 13, 2003,' written
notification shall be sent to property owner ( applicant) Number 21.
3. Should any owner of the subject 21 properties desire to be moved to a later time
as specified in paragraph two above, the planning director shall have the authority to
approve those transfers to a later time.
DONE AND ORDERED this 28th day of May 2002.
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ATTACHMENT-EXHffiIT A
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