(CONTINUED FROM APRIL 14, 2009) BCC PUBLIC HEARING ON BZA #SE-06-03-014, March 2, 2006 BCC, April 18, 2006 Remanded from Circuit Court APPLICANT/APPELLANT: Dean Tasman (CONTINUED FROM APRIL 14, 2009) June 9, 2009

SPECIAL EXCEPTION STANDARDS UNDER FLORIDA LAW The applicant for the special exception request has the initial burden of demonstrating that his/her request is consistent with the comprehensive policy plan and meets the criteria for granting the special exception; and (2) If the applicant carries that initial burden, the burden shifts to those opposing the special exception to show by competent substantial evidence that the request is not consistent with the comprehensive policy plan and does not meet those criteria.

BACKGROUND CASE: SE-06-03-014 APPLICANT: Dean Tasman REQUEST: Special Exception in R-1 zone to convert 921 sq. ft. of existing residence into an Accessory Dwelling Unit for applicant’s father and Variance to construct wall 8 ft. in height in lieu of 4 ft. within front yard TRACT SIZE: ½ acre LOCATION: West side of Dean Rd., between McCulloch Rd. and University Blvd. DISTRICT: #5

Case History Case initially heard by BZA in March 2006 and BCC in April 2006 BZA recommended approval of, and BCC approved, request for Special Exception for Accessory Dwelling Unit (ADU) for applicant’s father, with condition prohibiting rental of ADU Applicant brought action in Circuit Court contesting ADU rental prohibition March 2008, Court invalidated condition prohibiting rental of ADU, and quashed BCC decision approving Special Exception and Variance and remanded Court did not order BCC on remand to approve applicant’s ADU request without rental prohibition. BCC must decide on remand today whether to approve applicant’s ADU request without rental prohibition.

Definition of ADU “Accessory Dwelling Unit” means living quarters (including kitchen and bathroom facilities) separate and distinct from and secondary and subordinate to primary single-family dwelling unit.

ZONING MAP

AERIAL Subject Property 2006

SITE PLAN Proposed accessory dwelling unit

SITE PLAN WALL

FLOOR PLAN Accessory dwelling unit

SITE PHOTOGRAPH SUBJECT SITE APPLICANT’S RESIDENCE

SITE PHOTOGRAPH PROPOSED ACCESSORY DWELLING UNIT PRINCIPAL RESIDENCE

SITE PHOTOGRAPH PRINCIPAL RESIDENCE PROPOSED ACCESSORY DWELLING UNIT

APPLICANT’S PROPOSAL Applicant resides in 2-story, 7,919 sq. ft home Proposes an ADU for his father Proposed ADU = 921 sq. ft. (2 bedroom / 2 bath) Separate entrance for proposed ADU Proposed height of wall along Dean Road = 8 ft. w/ 9 ft. columns

STAFF ANALYSIS Request complies with ADU size and use requirements ADU ordinance allows rental after relative has occupied the ADU for 3 years after issuance of ADU Certificate of Occupancy or upon death of ADU relative after occupancy Due to Court challenge, no Certificate of Occupancy was issued for applicant’s ADU, no permit was issued for wall (per County Code Sec. 30-46).

STAFF ANALYSIS Applicant’s father passed away in February 2008 No living relative to initially occupy ADU, as required by County Code

BZA Application Application identifies father as ADU resident

Father’s Death Certificate

Staff Recommendation and BCC Action Requested Deny Special Exception request The relative identified in application (father) passed away in February 2008. Therefore ADU cannot be initially occupied by relative, as required by County Code. The use is not similar and compatible with the surrounding area and the pattern of surrounding development (Sec. 38-78 (2)) The use will be a detrimental intrusion into a surrounding area (Sec. 38-78 (3)) Approve requested variance for wall consistent with BZA recommendation (7’ tall with 8’ columns)

Applicable Law It is well established and settled that a Court reviewing a local governing body’s quasi-judicial land use decision may only reverse the quasi-judicial decision or uphold it. Court cannot properly direct local government to take specific action on request for land development permit, such as special exception, when case is remanded to local governing body. Here, Court reversed BCC’s April 2006 decision approving special exception for ADU solely because of condition prohibiting rental of ADU, and remanded case to BCC. Court did not direct, and could not properly direct, BCC to approve special exception for ADU on remand. It did direct that if BCC on remand approves special exception for an ADU, it cannot properly attach a no rental condition to approval Therefore, question for BCC today is whether to approve special exception request for ADU, knowing that if it approves special exception, it cannot impose no rental prohibition

Applicable Law Broward County v. G.B.V. Case (Florida Supreme Court): “When the [local governing body’s] order is quashed, . . . it leaves the subject matter, that is, the controversy pending before the . . . commission . . ., as if no order or judgment had been entered and the parties stand on the pleadings and proof as it existed when the order was made with all the rights of all the parties to proceed further as they may be advised to protect or obtain the enjoyment of their rights under the law in the same manner and to the same extent which they might have proceeded had the order reviewed not been entered.”

APPLICATION OF LAW TO THIS CASE Here, three years have elapsed since BCC’s initial decision. During that span of time, BCC’s make-up has materially changed, and a key fact underlying Mr. Tasman’s special exception request and on which the BCC initially reviewed the request is no longer present: Three County Commissioners present today did not participate in April 2006 hearing The relative identified in applicant’s special exception request has passed away Accordingly, given that certain conditions have changed substantially since April 2006, we advise the BCC that is warranted “to proceed further” by rehearing Mr. Tasman’s application, and making a decision today that is not inconsistent with Court’s decision (that if it approves ADU special exception, it does not attach a no rental condition).

(CONTINUED FROM APRIL 14, 2009) BCC PUBLIC HEARING ON BZA #SE-06-03-014, March 2, 2006 BCC, April 18, 2006 Remanded from Circuit Court APPLICANT/APPELLANT: Dean Tasman (CONTINUED FROM APRIL 14, 2009) June 9, 2009