17-006177GM Patricia J. Edwards And Henry A. Olynger, Jr./Tic vs. Monroe County Planning Commission Status: Closed Recommended Order on Tuesday, March 27, 2018.

Summary: Petitioners' application for a beneficial use determination was denied because their as-applied takings claim was not ripe.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PATRICIA J. EDWARDS AND HENRY A.

OLYNGER, JR./TIC,

Petitioners,

vs. Case No. 17 - 6177GM

MONROE COUNTY PLANNING

COMMISSION,

Respondent.

_______________________________/

RECOMMENDE D ORDER

This matter was heard before the Division of Administrative

Hearings (DOAH) by its assigned Administrative Law Judge,

Francine M. Ffolkes, on January 16, 2018, at video

teleconferencing sites in Tallahassee and Key West, Florida.

APPEARANCES

For P etitioner s : Van D. Fischer, Esquire

VDF Law, PLLC

Post Office Box 420526

Summerland Key, Florida 33042

For Respondent: Derek V. Howard, Esquire

Monroe County Attorney's Office

1111 12th Street, Suite 408

Post Office Box 1026

Key West, Florida 33041 - 1026

STATEMENT OF THE ISSUE

The issue is whether to approve the PetitionersÓ

application for a beneficial use determination (BUD) regarding

their property on Ramrod Key, Florida, and if approved, to

determine the type of relief that is appropriate.

PRELIMINARY STATEMENT

In 2016, the Petitioners filed a BUD application under

section 102 - 102, et. seq. , Monroe County Code. In 2017, the

Petitioners filed an Amended BUD A pplication. The Petitioners

asserted that a December 4, 2015, denial of their single - family

residential building permit application constituted an

as - applied taking of their property. The denial stated that the

p roperty did not constitute a ÐlotÑ for purposes of density. As

relief, the Petitioners seek to have the property awarded a

density allocation for development of one dwelling unit and a

building permit issued.

Pursuant to a contract, the BUD A pplication wa s referred by

the Respondent, Monroe County Planning Commission (County), to

DOAH for a hearing before a special magistrate (administrative

law judge). See § 102 - 105, Monroe Cnty. Code. The parties

filed their Joint Pre - hearing Stipulation on January 2, 2018, in

which the parties separately listed their exhibits and the

Petitioners indicated that they were not calling any witnesses.

At the start of the hearing, the County lodged hearsay

objections to two appraisals that were identified as Attachments

10 a nd 11 to the Amended BUD A pplication in the PetitionersÓ

list of exhibits. The County followed up with objecting to the

entire Amended BUD A pplication as hearsay since the Petitioners

were not presenting any direct evidence that would be

corroborated by t he Amended BUD A pplication. The undersigned

ruled that the Amended BUD A pplication was not admitted into

evidence for the truth of the matters asserted therein, but only

admitted to show that an Amended BUD A pplication was submitted

to the County. 1/

Des pite not being listed as a witness in the Joint Pre -

hearing Stipulation, the undersigned allowed Henry A.

Olynger, Jr., to testify on behalf of the Petitioners. The

County presented the testimony of Kevin Bond, Monroe County

Planning and Development R eview Manager, who was accepted as an

expert in land planning. A November 9, 2017, memorandum to the

Special Magistrate was accepted into evidence.

Neither party hired a court reporter to preserve the record

of the hearing. Therefore, there is no transcr ipt of the

proceeding. The Petitioners filed a written Closing Argument

and the County filed a motion to strike the PetitionersÓ Closing

Argument. The CountyÓs motion to strike is denied.

Proposed Recommended Orders were filed by the parties, and

they we re considered in the preparation of this Recommended

Order.

FINDING S OF FACT

The following findings of fact are taken from the partiesÓ

joint pre - hearing stipulation, and the direct evidence adduced

at the hearing.

The Property

1. The PetitionersÓ prope rty is located at 475 Brown

Drive, Ramrod Key, in Monroe County. According to the

Monroe County Property Appraiser , the size of the site is

0.95 acres. The property is vacant and contains disturbed and

undisturbed wetland habitat. The propertyÓs immedia te vicinity

is described as residential development of single - family units

to the west and south, environmentally sensitive lands to the

south and east, and open water to the north.

2. The property is legally described as Ðbeing a portion

of Tract ÒAÓ, R amrod Shores Third Addition, according to the

plat thereof, as recorded in Plat Book 6, Page 108 of the Public

Records of Monroe County, FloridaÑ having real estate number

00209971 - 004600. The propertyÓs current Land Use Map Zoning

Districts are Improved Subdivision (IS) and Native Area (NA).

The propertyÓs Future Land Use Map (FLUM) d esignations are

Residential Medium (RM) and Residential Conservation (RC). The

Tier Designation is Tier III Infill Area.

Relevant Prior County Actions

3. On December 1 9, 1972, the Monroe County Board of County

Commissioners (BOCC) passed Resolution No. 146 - 1972 approving

the Plat of Ramrod Shores Third Addition and filed for record in

Plat Book 6 at Page 108 of the Public Records of Monroe County .

The landowner was Jam es M. Brown, as Trustee. The subject

property is within Tract A of this plat.

4. In 1986, Monroe County adopted a revised set of zoning

regulations via Ordina nce No. 33 - 1986. Ordinance No. 33 - 1986

also approved a revised series of zoning maps (also know n as the

Pattison Maps) for all areas of the unincorporated county by

reference. With the adoption of the 1986 Land Development

Regulations and zoning maps, most of the PetitionersÓ property

was designated as IS zoning with a small portion as NA.

5. In 1 992, a revised series of zoning maps were approved

(also known as the Craig Maps) for all areas of the

unincorporated county. With the adoption of the revised (Craig)

zoning maps, the PetitionersÓ property remained designated as IS

with a small portion as NA.

6. In 1993, the County adopted a set of FLUM maps pursuant

to a joint stipulated settlement agreement and section 163.3184,

Florid a Statutes. BOCC Ordinance No. 016 - 1993 memorialized the

approval. The FLUM maps took effect in 1997 after approval f rom

the state land planning agency. With the adoption of the FLUM

maps, the PetitionersÓ property was designated as RM and a small

portion as RC.

7. On March 23, 2015, the Petitioners were provided a

Letter of Current Site Conditions for the subject prop erty. The

letter summarized the environmental habitats on the property and

the applicable portions of the Comprehensive Plan and Land

Development Code. The letter stated the KEYWEP score for

disturbed portions of the wetland was 4.45. The score of 4.45

means the property was buildable, disturbed wetlands. The

undisturbed wetlands consist of tidal mangroves and were by

definition Ðred flagÑ wetlands. Disturbed wetlands may be

developed under section 118 - 10, Monroe County Code. Development

is not permit ted in undisturbed wetlands where 100 percent open

space is required.

8. On November 24, 2015, the Petitioners applied for a

building permit to construct a single - family detached

residential dwelling unit. On December 4, 2015, the CountyÓs

Planning and E nvironmental Resources Department (the Department)

sent the Petitioners a notice that the Department denied their

building permit application number 15106233. The notice

informed the Petitioners that the DepartmentÓs decision may be

appealed within 30 cal endar days. No appeal was filed to

challenge the propriety of the DepartmentÓs decision.

9. The DepartmentÓs December 4, 2015, notice stated that

the Ramrod Shores Third Addition Plat shows that the

PetitionersÓ property is located within Tract A. Alth ough

Tract A was subdivided into seven parcels, this was never shown

as lots on an approved and duly recorded plat. The Department

determined that the property did not meet the definition of

ÐlotÑ in section 101 - 1, Monroe County Code, and d id not meet th e

residential density requirements of the IS Land Use District in

order to allow the proposed development of a dwelling unit. See

§ 130 - 157, Monroe Cnty. Code.

10. On December 7, 2016, the Department received the

agentÓs BUD A pplication, File No. 2016 - 2 02. On December 22,

2016, the Department sent the agent a Notice of Deficiencies

pursuant to section 102 - 105, Monroe County Code, after the

application was reviewed by staff to determine if the

application was complete and included the materials and

infor mation listed in section 102 - 105(b). On January 6, 2017,

the Department received additional materials and information

from the agent. On January 27, 2017, the Department notified

the agent that the application was determined to be sufficient.

11. On Mar ch 28, 2017, the Department forwarded the BUD

application to DOAH for adjudication. After the Petitioners

sought to amend their application with a new basis for relief,

DOAH relinquished its jurisdiction.

12. On June 12 , 2017, the Petitioners submitted an Amended

BUD Application to the Department. After sending a second

Notice of Deficiencies and receiving additional materials and

information from the agent , the Department determined that the

application was sufficient.

13. The Amended BUD Application was suspended for 60 days,

pursuant to BOCC Resolution No. 214 - 2017, as a temporary

emergency measure after Hurricane Irma made landfall in the

Florida Keys on September 10, 2017. On November 9, 2017, the

Department forwarded the BUD A pplication to DOAH for

adjudication.

PetitionersÓ Actions

14. The Petitioners purchased the subject property on

April 23, 1990. Between 1990 and 1991, the Petitioners

submitted an application to the Department of Health and

Rehabilitative Services (HRS) for an on - site aero bic septic

system. At first, the HRS denied the application based on lot

size issues. The HRS Variance Review Board recommended

disapproval of the septic system application on June 7, 1991, on

the grounds of insufficient lot size and an illegal canal.

15 . After the Petitioners failed to obtain HRS approval in

1991, they took no further steps to develop the property until

they submitted an application for a Letter of Current Site

Conditions on January 30, 2015, and an application for a single -

family resi dence on November 24, 2015.

16. Mr. Olynger testified that the Petitioners purchased

the property because of the ocean view and expected to build a

house on the property. He testified that after the HRS denials

in the early 1990s, he started the process of trying to develop

the property again in 2014 because central sewer was now

available.

IS Land Use District

17. Due to the density requirements for the IS Land Use

District of one dwelling unit per lot, the Petitioners are

unable to construct a singl e - family home, which is an as - of -

right use in the IS Land Use District.

18. The IS Land Use District permits other as - of - right and

conditional uses. While Mr. Olynger disputed the economic

productivity of some of these uses, it was not disputed that t he

property could potentially be used for (a) recreational

purposes; (b) a community park; (c) beekeeping; (d) wa stewater

system; (e) Rate of Growth Ordinance ( ROGO) points or

transferable development rights (TDRs) ; or (f) sold to a

neighbor for open space , yard expansion or an accessory use ,

such as a pool.

19. Mr. Bond testified that that the CountyÓs

Comprehensive Plan and Code allow landowners competing for the

limited number of building allocations in the point - based ROGO

to buy and donate vacant parc els such as the subject property to

increase their ROGO scores. The subject property qualifies as a

ROGO Lot and there is an active secondary market of people

buying and trading ROGO Lots in Monroe County.

20. Mr. Bond also testified that the Petition ers could

apply for Future Land Use Map and Land Use (Zoning) District Map

amendments to a category that would allow for the construction

of a single - family dwelling based upon an adopted acreage

density standard. The Petitioners have not made any such

ap plications.

21. There was no direct evidence on the fair market value

of the property, as encumbered by the regulation. 2/

CONCLUSIONS OF LAW

22. Pursuant to a contract with DOAH, after 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), Monroe Cnty. Code. The hearing

process is governed by the following broad guidelines set forth

in subsection 102 - 106(b):

At the hearing, the landowner or landown erÓs

representative shall present the landownerÓs

case and the Planning Director or his or her

representative shall represent the countyÓs

case. The special magistrate may accept

briefs, evidence, reports, or proposed

recommendations from the parties.

23. Section 102 - 109(a) provides:

[R]elief . . . may be granted where a court

of competent jurisdiction 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 co gnizable defense, including

lack of investment - backed expectations,

statutes of limitation, laches, or other

preclusions to relief.

24. The Petitioners have the burden of showing that relief

is appropriate. See § 102 - 109(b), Monroe Cnty. Code. The

Pet itioners have alleged an as - applied regulatory taking.

25. Section 101 - 104, Monroe County Code, defines when a

landowner can apply for BUD relief:

Relief under this division cannot be

established until the landowner has received

a final decision on d evelopment approval

applications from the county, including

building permit allocation system

applications, appeals, administrative relief

pursuant to sections 138 - 27 [ROGO] and 138 -

54 [NROGO], and other available relief,

exceptions, or variances, unless t he

applicant asserts that a land development

regulation or comprehensive plan policy, on

its face, meets the standards for relief in

section 102 - 109.

26. The BUD process requires the Petitioners to receive a

final decision on various fo rms of relief list ed in section 102 -

104 before applying for relief under the BUD process. The

evidence established that the Petitioners did not appeal the

denial of their building permit, did not apply for

administrative relief under the ROGO provisions, and did not

apply for any zoning district map or future land use map

amendments to a category that would allow for the construction

of a single - family dwelling based upon an adopted acreage

density standard. See § 102 - 104, Monroe Cnty. Code.

27. For an as - applied takin gs 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 opportunity to grant waivers

and variances or other relief. See Collins v. Monroe Cnty. , 999

So. 2d 709, 716 (Fla. 3d DCA 2008); § 102 - 104, Monroe Cnty.

Code.

28. Under the provisions of the Monroe County Code, this

Amended BUD A pplication fails to comply with the exhaustion

requirement of section 102 - 104 and applicable c ase law.

Therefore, the PetitionersÓ as - applied claim is not ripe and

should be denied.

29. A court of competent jurisdiction likely would

determine that the PetitionersÓ as - applied claim is not ripe,

which is a cognizable defense precluding a judicial finding of

liability. See § 102 - 109, Monroe Cnty. Code.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Board of County Commissioners deny the

PetitionersÓ application for relief under section 102 - 104,

Monroe County Code.

DONE AND ENTERED this 27th day of March , 2018 , in

Tallahassee, Leon County, Florida.

S

FRANCINE M. FFOLKES

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

123 0 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 27th day of March , 2018 .

ENDNOTE S

1/ Hearsay alone cannot form the basis for a finding of fact.

See £ 120.57(1)(c), Fla. Stat. (2017)(ÐHearsay evidence may be

used for the purpose of supplementing or explaining other

evidence, but it shall not be sufficient in itself to support a

finding unless it would be admissible ov e r objection in civil

actions.Ñ).

2/ Appraisals were specifically objected to by the County as

hearsay documents. The appraisals were attachments to the BUD

application, which was not admitted into evidence for the truth

of the matters asserted therein. Since direct evidence

regarding appraised values was not presented by the Petitioners,

no finding of fact can be made using only hearsay as the basis.

Id.

COPIES FURNISHED:

Ilze Aguila, Senior Coordinator

County of Monroe

Board of County Commissioners

Suite 410

2798 Overseas Highway

Marathon, Florida 33050

(eServed)

Derek V. Howard, Esquire

Monroe County Attorney's Office

1111 12th Street, Suite 408

Post Office Box 1026

Key West, Florida 33041 - 1026

(eServed)

Van D. Fischer, Esquire

VDF Law, PLLC

Pos t Office Box 420526

Summerland Key, Florida 33042

(eServed)

NOTICE OF FURTHER RIGHT S

This Recommended Order will be considered by the Board of County

Commissioners at a public hearing. See § 102 - 108, M onroe Cnty.

Code. The time and place of such hear ing will be noticed by the

County.