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

2. 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.

3. 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

4. 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.

5. 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.

6. ZONING MAP

7. AERIAL
Subject Property
2006

8. SITE PLAN
Proposed accessory dwelling unit

9. SITE PLAN
WALL

10. FLOOR PLAN
Accessory dwelling unit

11. SITE PHOTOGRAPH
SUBJECT SITE
APPLICANT’S RESIDENCE

12. SITE PHOTOGRAPH
PROPOSED ACCESSORY DWELLING UNIT
PRINCIPAL RESIDENCE

13. SITE PHOTOGRAPH
PRINCIPAL RESIDENCE
PROPOSED ACCESSORY DWELLING UNIT

14. 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

15. 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 ).

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

17. BZA Application
Application identifies father as ADU resident

18. Father’s Death Certificate

19. Staff Recommendation and BCC Action Requested
Deny Special Exception request
The relative identified in application (father) passed away in February 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 (2))
The use will be a detrimental intrusion into a surrounding area (Sec (3))
Approve requested variance for wall consistent with BZA recommendation (7’ tall with 8’ columns)

20. 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

21. 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.”

22. 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 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).

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