13-004632GM Scott And Toni Beauchamp vs. Monroe County Planning Commission Status: Closed Recommended Order on Thursday, July 10, 2014.

Summary: Petitioners' application alleging that the County's enactment of a zoning ordinance constituted taking of property denied where statute of limitations had run, property still had some value, and Petitioners had not exhausted all administrative remedies.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCOTT AND TONI BEAUCHAMP,

Petitioners,

vs. Case No. 13 - 4632GM

MONROE COUNTY PLANNING

COMMISSION,

Respondent.

_______________________________/

RECOMMENDED ORDER

This matter was he ard before the Division of Administrative

Hearings (DOAH) by its assigned Administrative Law Judge, D . R.

Alexander, on May 23, 201 4 , at video teleconferencing sites in

Tallahassee and Marathon, Florida.

APPEARANCES

For Petitioner s: Andrew M. Tobin, Esquire

Andrew M. Tobin, P.A.

Post Office Box 620

Tavernier , Florida 33070 - 0620

For Respondent: Derek V. Howard , Esquire

Assistant County Attorney

Post Office Box 1026

Key West, Florida 3304 1 - 1026

STATEMENT OF THE ISSUE

The issue is whether to approve P etitioners' application

for a beneficial use determination (BUD) o n their property

in Key Largo, Florida, and if approved , to determine the t ype of

relief that is appropriate.

PRELIMINARY STATEMENT

This proceeding was initiated after Petitioners were

advised by the Monroe County Planning Commission (Commission)

that they could not build a single - family residen ce on their

property because of zoning restrictions adopted by Monroe County

(County) in 1986. P ursuant to section 102 - 10 5 , Monroe County

Code (M . C . C . ), P etitioner s f iled an application for a BUD ,

claiming that the 1986 regulatory action by the County

con stitutes a compensable taking of their property. This

administrative remedy , the current version of which was adopted

by the County in 2007, is available to property owners to secure

relief through a non - judicial process when they b elieve that a

land deve lopment regulation (LDR) or comprehensive plan policy

has deprived them of all beneficial use of their property.

See § 102 - 102, M . C . C . ; F uture Land Use Element Policy 101.18.5 .

Pursuant to a contract, the application was referred by the

Commission to D OAH for a hearing before a special magistrate

(administrative law judge). See § 102 - 105, M.C.C.

At the hearing, Scott D. Beauchamp testified on his own

behalf and presented the testimony of Emily Schemper , County

Principal Planner; Randolph D. Wall, a bui lder and former

Planning Commissioner; and Robert A. Smith, an environmental

consultant and accepted as an expert . The County presented the

testimony of Emily Schemper, who was accepted as an expert.

County Composite Exhibit 1 was also received.

There is no transcript of the hearing . P roposed

Recommended Orders w ere filed by the parties , and they h ave been

considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioners purchased their property in September 2006

for $60,000.00 (or at the peak of the Florida housing boom ) .

The parcel is located at the corner of Meridian Avenue and

Lycaloma Avenue, mile marker 94.5, on the Gulf of Mexico side of

U.S. Highway 1 in Key Largo. It is also identified as Block 9,

Lot 1 , Section 3 of t he Bay Haven Subdivision , a n older ,

partially - developed subdivision comprised of four sections and

several hundred lots .

2. Since September 15, 1986, the subdivision, including

Petitioners' lot, has been zoned Suburban Residential (SR),

which allows onl y one residential unit per two acres. No

challenge to that action was taken by any person, and no

contention has been made that the County failed to follow the

established procedure for adopting its LDRs. A challenge to the

validity of the LDRs is now barred by the statute of

limitations. 1 See § 95.11(3)(p), Fla. Stat.

3 . The Bay Haven Subdivision is located in South Key Largo

and was first platted after World War II. Building permits for

all existing homes in the subdivision were applied for befor e

the zoning change became effective in September 1986. Due to

the SR restrictions, around 250 lots remain vacant at this time,

including 99 in Section 3 where Petitioners' lot is located.

Many of these vacant lots have been deeded by their owners to

the County for conservation purposes in exchange for points that

can be used with a Rate of Growth Ordinance (ROGO) 2 allocation to

develop other property in the County.

4 . Petitioners' corner lot lies at the intersection of two

streets and has an irregular shape with a large radius at the

intersection. It is bordered on two sides by single - family

homes , measures 8,276 square feet, or around 0.19 acres , and is

s omewhat larger than the typical subdivision lot size of 5,000

square feet.

5 . Mr. Beauchamp, who resides in Wisconsin, testified that

he purchased the property with the expectation of building a

home when he retired as an air traffic controller . Before

purchasing the property, he assumed that it was zoned Improved

Subdivision (IS ) because this was the zoning incorrectly shown

on the multiple listing service sheet provided by his realtor.

6 . N either Mr. Beauchamp nor his realtor was fa miliar with

County zoning classifications or permissible uses for the

parcel . 3 S ometime in 200 6 they visited a C ounty office to secure

further information. Mr. Beauchamp says t hey spoke with two

unidentified "planners," who told them that a single - family home

could be built on the property. However, nothing was confirmed

in writing, and there is no record of the m eeting. Other than

this meeting, neither Mr. Beauchamp nor his realtor took any

other steps to verify the zoning on the property and /or any

development restrictions that might apply . Based solely on the

oral advice given by these two unnamed County emplo yees , the

Beauchamps purchased the lot.

7 . According to Petitioners' expert, Robert Smith, before

purchasing a vacant lot in the Keys, normal due diligence would

require a prospective purchaser to arrange a pre - application

conference with Planning Departm ent staff a nd secur e a written

Letter of Understanding confirming the rights of the property

owner. See § 110 - 3, M.C.C. However, Petitioners (and their

realtor) did not com plete appropriate due diligence; they simply

checked with an unidentified County e mployee and without any

other assurance purchased the property. 4

8 . In May 2012, Petitioners' agent, Randy Wall, a builder

and former Planning Commissioner but not an attorney , met with a

representative of the County Building Department to begin the

proce ss of securing approval to build a single - family residence

on the property. Mr. Wall was advised that the zoning on the

property was SR, which allows only one dwelling unit per two

acres. This was confirmed in an email dated July 13, 2012, from

the Assis tant Director of Planning, which stated as follows:

The parcel has a zoning designation of SR

which requires Two (2) acres per residential

unit. As noted by planning staff, this

parcel does not have sufficient land area

for the zoning and associated densi ty.

9 . At the meeting, Mr. Wall also inquired about the

possibility of changing the zoning on the property from SR to IS

(which would allow construction of a single - family home) , but

decided not to pursue that option because he recognized the poor

prospe ct s of securing a zoning change for a single lot in a

large subdivision , when scores of other lots were subject to the

same restriction. He assumed , probably correctly, that this

might invite a spot zoning challenge .

10 . Other than having a discussion wi th County

representatives , Mr. Wall did nothing more. He did not file an

application for a residential dwelling unit allocation under the

County ' s ROGO process , or any other f ormal application for

relief, such as a change in the zoning district or land us e

designation , a variance, or an exception .

11 . Believing that the County staff would "fix the

problem" because the County had made "a mistake" in

reclassifying the entire subdivision as SR , Mr. Wall prepared

and filed a BUD application, which was eventua lly deemed to be

complete on September 27 , 2013. The BUD process is intended "to

provide a means to resolve a landowner's claim that a [LDR] or

comprehensive plan policy has had an unconstitutional effect on

property in a nonjudicial forum." § 102 - 103(a) , M.C.C.

1 2 . An applicant for a BUD must include a statement

"describing the [LDR], comprehensive plan policy, or other final

action of the county, which the applicant believes necessitates

relief under th is division." § 102 - 105(b)(5), M.C.C. The

applic ation at issue simply state d that "the adoption of the

land use designation of SR for the subdivision of Bay Haven

constituted a compensable taking." The application did not

refer to any comprehensive plan policy or final action taken by

the County. As r elief, t he application r equest ed th at the

County take one of the two following actions: (a) change the

F uture Land Use Map and zoning designations to allow a residence

to be built on the lot ; or (b) notwithstanding the SR zoning,

i ssue a permit for develo pment.

1 3 . The BUD process requires applicants to state whether

they are alleging a facial or as - applied regulatory taking as

the basis for administrative relief. See § 102 - 104, M.C.C.

U nless a landowner asserts that a LDR or comprehensive plan

provisio n, on its face, has caused a taking of his property,

r elief is permitted only after "the landowner has received a

final decision on development approval applications from the

county, including building permit allocation system allocations,

appeals, adminis trative relief pursuant to section 138 - 54, and

other available relief, exceptions, or variances." Id.

1 4 . Mr. Wall did not formally appl y for any type of

development approval and received no final decision , as

contemplated by the Code . However, Mr. Wa ll testified that he

" understood " the County was waiving that requirement in this

instance. He also stated in t he application that "Joe Haberman

contracted [sic] the Beauchamps and informed them that staff had

deemed this phase unnecessary and to move dir ectly to submitting

a [BUD] application." Other than this assertion, t here is no

evidence to confirm this understanding , and the County 's

Principal Planner testified that a waiver had not been granted .

She also confirmed that no development approval appl ication ha d

been filed, and no final decision ha d been made , both required

b y the Code in order to seek relief under an "as applied"

theory. Therefore, rightly or wrongly, as plainly stated in the

application, P etitioners ' basis for relief is that the LDR on

its face constitutes a taking of their property. 5

1 5 . Besides a single - family home , which is impermissible

here due to size limitations of the lot , t wo other uses are

permitted as of right in the SR district: community parks and

beekeeping. See § 13 0 - 94, M.C.C. Also, a property owner may

apply for a minor conditional use, subject to approval by the

Planning Director. Permissible m inor conditional uses include

public or private community tennis courts and swimming pools;

public buildings and uses; p arks and community uses ;

institutional uses ; and churches, synagogues, and houses of

worship. Id. However, Mr. Beauchamp testified that he is not

interested in any of these uses since he believes most, if not

all, would be offensive to a residential neig hborhood or simply

impractical due to the size of his lot. The property can also

be sold to the owners of adjacent Lot 11 to be used as a side

yard , its use before being purchased by Petitioners. Finally,

t he Principal Planner testified that th ere are tr ansferable

development rights (TDRs) on the property , whose value at this

time is unknown. See § 130 - 160, M.C.C. Therefore, the

Beauchamps are not deprived of all economically beneficial use

of their property. Cf. § 102 - 110(c), M.C.C. ("[t]he highest,

c ommon, or expected use, is not intended as an appropriate

remedy, unless expressly required by applicable statute or case

law").

1 6 . There was no evidence from a property appraiser on the

fair market value of the parcel, as encumbered by the

regulation.

CONCLUSIO NS OF LAW

1 7 . Pursuant to a contract with DOAH, a fter a BUD

application is determined to be complete, it is transmitted to a

special magistrate (administrative law judge) to set a hearing

date. See § 102 - 105(d)(2), M . C . C. The hearing process i s

governed by the following broad guidelines established in

sub section 102 - 106(b ) :

At the hearing, the landowner or landowner's

representative shall present the landowner's

case and the planning director or the

planning director's representative shall

repr esent the county's case. The special

magistrate may accept briefs, evidence,

reports, or proposed recommendations from

the parties.

1 8 . Section 102 - 109 (a) provides that r elief under the BUD

process :

may be granted where a court of competent

jurisdictio n likely would determine that a

final action by the county has caused a

taking of property and a judicial finding of

liability would not be precluded by a

cognizable defense, including lack of

investment - backed expectations, statute of

limitations, laches, or other preclusions of

relief. "

19 . The applicant has the burden of showing that relief is

appropriate. See § 102 - 109(b), M . C . C.

2 0 . An applicant must allege and then prove (a) that the

enactment of a LDR or comprehensive plan provision, on its fa ce,

constitutes a taking of the property; or (b) that "other final

action" has been taken on a development approval application,

which results in a taking of the property.

2 1 . The statute of limitations for the two remedies begins

to run at different ti mes. F or a f acial takings claim , it

begins to run on the date of the enactment of the regulation

effectuating the alleged taking. Collins v. Monroe Cnty. , 999

So. 2d 709, 713 (Fla. 3d DCA 2008) . For an as - applied takings

claim , it does not begin to run until the property owner has

obtained a final decision from the land use authority regarding

the application of the regulations to the property. See Beyer

v. City of Marathon , 37 So. 3d 932, 934 (Fla. 3d DCA 2010).

22. If the statute of limitations has run, or the zoning

ordinance does not preclude all development of the property, a

takings claim must necessarily fail. Beyer at 934 ; Collins at

713. Here, the four - year statute of limitations accrued with

the enactment of the 1986 zoning ordinance and p recludes a

finding of liability on the part of the County . See § 102 - 109,

M.C.C. While the parties dispute the economic productivity of

the other uses allowed on the property , it was not disputed that

the Code permits other uses; the parcel can be sold t o the

owners of adjacent Lot 11 to be used as a side yard; and there

are TDRs associated with the parcel that can be used for other

purposes. Therefore, even if the claim had been timely filed,

the mere enactment of the regulation did not constitute a tak ing

of all economic value of the land.

23. For an as - applied takings claim to be considered ripe,

a property owner must have taken reasonable and necessary steps

to allow the County to exercise its judgment regarding

development plans, including the opp ortunity to grant waivers

and variances or other relief . See Collins at 716; § 102 - 104,

M.C.C. Petitioners suggest , however, that given the

circumstances here, the filing of a development application

would be futile. Although the final action prerequisi te may be

satisfied by proof that attempts to comply would be futile,

futility is not established until at least one meaningful

application has been filed. Glisson v. Alachua Cnty. , 558 So.

2d 1030, 1036 (Fla. 1st DCA 1990)(quoting Unity Ventures v. Lake

Cnty. , 841 F.2d 770 , 775 (7th Cir. 1987) ) . It is undisputed

that no "meaningful application" has been filed, and no final

action has been taken. Also, there is insufficient proof to

establish that the County intended to waive this requirement.

Therefore , even if the Beauchamps' application does not

implicate a facial taking s claim , an as - applied claim is not yet

ripe and should be denied.

24. In summary, a court of competent jurisdiction likely

would determine that a final action of the county has not caused

a taking of property and a judicial finding of liability would

be precluded by a cognizable defense. See § 102 - 109, M.C.C.

Therefore, the application should be denied.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Board of County Commissioners deny

Petitioners ' application for relief under the BUD Ordinance.

DONE AND ENTERED this 10th day of July , 20 1 4 , in

Tallahassee, Leon County, Florida.

S

D . R. ALEXANDER

Administrative Law Judge

Divi sion of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 10th day of Ju ly , 201 4 .

ENDNOTE S

1 Even though the County gave timely and proper notice that a new

zoning code and comprehensive plan were being adopted,

Petitioners' agent, Mr. Wall, opined that many property owners,

including himself, were unaware of the ramificat ions of the

changes and failed to contest the LDRs or otherwise take any

interest in the amendment process.

2 At the direction of the State, the ROGO was implemented in

order to provide for the safety of residents in the event of a

hurricane evacuation and to protect the significant natural

resources of the County. ROGO is a competitive permit allocation

system whereby those applications with the highest scores are

awarded building permits. Even though there are currently more

than 8,000 privately own ed vacant lots in unincorporated Monroe

County, F lorida Administrative Code Rule 28 - 20.140 allows the

County to issue only 197 building permits per year for new

residential development within unincorporated Monroe County in

order to maintain established hu rricane evacuation clearance

times . This limitation on ROGO permits extends through the year

2023. See County Ex. 1, Staff Report, pp. 12 - 13.

3 The undersigned finds it puzzling that a licensed realtor in

the Keys would be unfamiliar with zoning dist ricts , related

development restrictions , and the appropriate steps necessary to

verify that information.

4 The record does not show how many times the property was sold

between 1986 and 2006 . In any event, t he undersigned assumes the

latest sellers fai led to disclose the SR zoning restrictions when

the y sold the property to the Beauchamps in 2006 .

5 At hearing, and in their Proposed Recommended Order,

Petitioners took the position that their application implicated

an as - applied takings claim. They di d not directly respond to

the County's treatment of the application as a facial takings

claim.

COPIES FURNISHED:

Gail Creech, Clerk

Monroe County Planning Commission

Suite 410

2798 Overseas Highway

Marathon , Florida 33050 - 2227

Andrew M. Tobin, Esquir e

Andrew M. Tobin, P.A.

Post Office Box 620

Tavernier , Florida 33070 - 0620

Derek V. Howard , Esquire

Assistant County Attorney

Post Office Box 1026

Key West, Florida 3304 1 - 1026

NOTICE OF FURTHER RIGHTS

This Recommended Order will be considered by the B oard of County

Commissioners at a public hearing . See § 102 - 108, M . C . C. The

time and place of such hearing will be noticed by the County.