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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. 3: ~~~ :~:J -') ~,. 0[:2::: rrJ A -< n" f-- 00: ~:;;o :;: ...... C) -In' :<,.-t:I: . )> ." C") j;: ,." Mayor Charles McCoy Mayor Pro Tem Dixie Spehar Commissioner Murray Nelson ~~o . sioner George Neugent r~O ner Bert Jimenez -.;;) 18 <3 ~~ !~\,\~ o. .... .1#OLHAGE. Clerk -~ ~ ,~~~ 'f \<~i;" ~~ ~C:,:~~,:~/ . By~~"::lC ~~ Deputy Clerk jdbuBPK21 yes veR ye!': yeR yes w W 1..0 BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA By '-.3 I::::) C:;:, 1-..:) '- c= ., r ,." CJ -q (:) :::0 - ..- N -.J \J 3: ::::0 ,." n (:) ::::0 o 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. 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