Monroe County Revoked Building Rights of 215 Property Owners

Fewer than a dozen of the 215 know about it. Worse, two Monroe County Planning Commissioners, who voted to pass the ordinance that stripped these building rights, admitted in an appeal hearing that they did not understand the consequences of their votes.   Isn’t it the Commissioners’ fiduciary responsibility to Monroe County residents to know what they are voting for and how their vote affects the residents who elected them?

On April 2, 2015, the Monroe County Planning Commission enacted ordinance #003-2015 regarding setbacks. The stated purpose of this ordinance was to establish, modify and clarify setbacks for various types of property. However, tucked into page 4 of the 10-page ordinance was a single line that stripped the building rights from 215 unsuspecting property owners and affected the value of roughly a thousand existing homes. It reads:

A lot means a duly recorded lot as shown on a plat approved by the County.

Prior to this ordinance, a buildable lot was defined as:

a parcel for individual use…

With the enactment of this ordinance, deeded parcels became useless, worthless, unbuildable land. Mayte Santamaria, Senior Planning Director for Monroe County, estimates that approximately 215 vacant properties are affected. None were notified. Only about a dozen of the affected owners, some of whom were recently denied building permits, are aware that their building rights were revoked and their property is now worthless.

Although a precise list of the estimated 215 properties affected is still unavailable from the Planning Department, Ms. Santamaria did provide an unofficial partial list that includes 34 parcels in Key Largo (the western portion of Twin Lakes), 44 in Tavernier (15 canal and oceanfront properties in Sunrise Point and 29 in Tavernier Beach), 76 in Big Pine Key, 9 in Big Coppitt and all properties in Cutthroat Lake Estates on Cudjoe Key.

Determining whether a property is a deeded parcel or a platted lot isn’t straight-forward. It can only be confirmed by consulting the property’s survey or deed. Ironically, the Monroe County Property Appraiser’s website and Property Tax bills refer to deeded parcels and platted lots as “lots” and both parcels and lots are assigned a “lot number.” Property owners could easily assume that since they have a lot number they are unaffected.

Also, if property is within a developed neighborhood surrounded by homes, it would be easy to assume the property is unaffected. However, many of the affected parcels are in neighborhoods that are more than 70% developed in designated (IS) Improved Subdivisions, Tier III locations, with the highest number of ROGO points and even paid assessments for sewers! Now, these properties are worthless as they cannot even be sold for ROGO points.

Ms. Santamaria suggests that one could raise bees on such properties. That’s little consolation for those who paid as much as $940,000 for now worthless properties.

Esteban Madruga owns property at 1523 Shaw Drive in the Twin Lakes subdivision in Key Largo. Mr. Madruga was issued a ROGO allocation for a building permit in 2001 which was extended in August 2009. In early 2016, Mr. Madruga was ready to build and sought a building permit. It was denied. His previously buildable property no longer met the definition of a lot and was now unbuildable and worthless.

John Slattery closed on his property at 1516 Shaw Drive on April 13, 2015, just eleven days after the ordinance was enacted. He intended to build his dream vacation home on the property, as the real estate agent’s listing promised. Mr. Slattery’s due diligence included approvals from the Department of Environmental Protection and the Army Corps of Engineers. The Building Department issued a permit to clear the lot, yet denied the building permit on December 4, 2015, stating the property did not meet the (new) definition of a lot. When Mr. Slattery inquired of Ms. Santamaria why nearly 30 neighbors were allowed to build and he was not, Ms. Santamaria replied “those building permits were issued by mistake and it’s a mistake we cannot continue.”

Until recently, the Property Appraiser’s Office was unaware of the actions of the Planning Commission and the consequence of this lot definition change. As more affected residents petition that the valuation of their property (and their tax bill) should be $0.00, the consequences will become clear as the tax base drops precipitously. It’s logical to estimate that at least $1 million in County property tax revenue will be lost from the 215 property owners directly affected.

A nonconforming structure is defined as a structure that complied with zoning and development regulations at the time it was built but which, because of subsequent changes to the zoning and/or development regulations, no longer fully complies with those regulations. Therefore, the existing homes which received building permits “by mistake” are now non-conforming.

The mistakenly issued building permits to which Ms. Santamaria refers involve as many as 1000 Keys homeowners beyond the 215 who can no longer build. Nonconforming structures cannot be financed or re-financed, insured nor rebuilt if damaged by a hurricane or fire. Is such a property even marketable? It’s unclear exactly how much non-conformity diminishes the value of property, but certainly the Property Appraiser should expect many more valuation appeals. It could be argued that this could reduce the County’s tax revenue by an additional $7 million.

Mr. Slattery is the first of the 215 property owners to officially appeal his property valuation to the Monroe County Property Appraiser. Slattery insists that unless the Property Appraiser can provide three comps proving that an unbuildable lot has value, his property valuation should be $0.00. His appeal hearing is scheduled for 9am on Tuesday, January 17th at the Harvey Government Center, 1200 Truman Avenue, 2nd Floor, Key West.

Two of Key Largo-resident Rich Mahshie’s properties are negatively affected by the ordinance’s lot definition change. He owns a now unbuildable canal-front property adjacent to Mr. Slattery on Shaw Drive. Mahshie had assumed his premium waterfront parcel had a saleable value of about $300,000-$350,000 and that he would one day sell it to finance his retirement. Mahshie currently resides in a home he built a just few parcels away on Shaw Drive — one that was “mistakenly” permitted. At a recent Planning Commission meeting, Mahshie inquired about his home’s future if a storm caused significant damage. Ms. Santamaria indicated that “the department would work with him in the event of a catastrophe.” Mahshie, visibly distressed by this vague answer, commented to his neighbors that this was un-American.

Attorneys Russell Yagel and Nicholas Mulick discovered the obscure lot-definition change in ordinance #003-2015. Mr. Mulick represented Mr. Slattery at his appeal hearing to the Planning Commission this past July. Two of the three Commissioners who presided over the hearing, William Wiatt and Denise Werling, admitted they did not understand the consequences of the ordinance for which they voted. It begs the question to the Commission, why not reverse what you had not intended to do?

Summerland Key Attorney, Van Fischer, represents a client in Cudjoe Key whose building rights were revoked with the same ordinance. Mr. Fischer argues that the building permit denials are an error because the Monroe County Land Development Code conflicts with the 2030 Comprehensive Plan. Florida Law expressly provides that when the provisions of a Comprehensive Plan and Land Regulations are inconsistent, the Comprehensive Plan prevails. Unfortunately, the appeal period for Mr. Fischer’s client expired, therefore Mr. Fisher’s argument was not considered.   The Planning Commission and County Attorney Bob Shillinger apparently believe there is no expiry for the injustice created. Thankfully for Keys residents, Commissioners’ terms do expire.

As many as 1200 Keys property owners face significant financial hardship due to ill-informed votes by Commissioners and “mistakes” made by the Planning Department. Mr. Mahshie is indeed correct — it’s un-American.

Contact Information:

Mayte Santamaria   PH: 305/289-2500; email: [email protected]

Scott Russell, Monroe County Property Appraiser PH: 305/292-3420

Esteban Madruga PH: 305/979-3455; email: [email protected]

John Slattery PH: 561/371-7527; email: [email protected]

Rich Mahshie PH: 305/394-9707; email: [email protected]

Nicholas Mulick PH: 305/852-9292; email: [email protected]

Van Fischer PH: 305/849-3893; email: [email protected]

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