87-003150 Palocrave Investments, Ltd., Inc.; James J. James; And Board Of County Commissioners Of Monroe County vs. Department Of Community Affairs Status: Closed Recommended Order on Thursday, January 26, 1989.

Summary: Whether respondent's violated local development regulations and building height restrictions.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALOCRAVE INVESTMENTS LTD. , )

INC., JAMES J. JAMES, and )

BOARD OF COUNTY COMMISSIONERS )

OF MONROE COUNTY , )

)

Petitioners , )

)

vs. ) CASE NO. 87-3150

)

STATE OF FLORIDA, DEPARTMENT )

OF COMMUNITY AFFAIRS , )

)

Respondent. )

________________________________)

STATE OF FLORIDA, DEPARTMENT )

OF COMMUNITY AFFAIRS , )

)

Petitioner , )

)

vs. ) CASE NO. 87-3639

)

MONROE COUNTY and PALOCRAVE )

INVESTMENTS, LTD., INC. , )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly

designated Hearing Officer, James E. Bradwell, held a public hearing in these

consolidated cases on September 8, 1988, in Key West, Florida.

APPEARANCES

For Petitioners : Michael Halpern, Esquire

Palocrave Harvey Duvall, Esquire

Investments 209 Duval Street

Ltd., Inc., and Key West, Florida 33040

James J. James

For Petitioner : Randy Ludacer, Esquire

Board of County Monroe County Attorney

Commissioners of 310 Fleming Street

Monroe County Key West, Florida 33040

For Respondent : John M. Carlson, Esquire

State of Florida, Department of Community Affairs

Department of 2740 Centerview Drive

Community Tallahassee, Florida 32399

Affairs

STATEMENT OF THE ISSUES

The issue presented for decision herein is whether or not petitioners

Palocrave Investments Ltd., Inc. ( Palocrave), and James J. James, violated the

building height restriction established in the Monroe County land development

regulations, and if so, what, if any, administrative penalty is appropriate.

INTRODUCTION

At the outset of the hearing, petitioner, State of Florida, Department of

Community Affairs, requested that official recognition be taken of Rule 9J-1,

Florida Administrative Code, pages 569, 1100, and 1224 of Webster's New World

Dictionary of the American Language, College Edition, Simon and Schuster, and

pages 1373 and 1394 of Webster's New World Dictionary of the American Language,

Second College Edition, Simon and Schuster. Petitioner's motion for official

recognition was granted pursuant to Section 221-6.020, Florida Administrative

Code. 1/

Palocrave applied for a permit and was granted one to construct an addition

to its building which exceeded the 35-foot height limitation. The Department,

on April 27, 1987, appealed the subject permit to the Florida Land and Water

Adjudicatory Commission (FLAWAC). Thereafter, Palocrave and the Department

entered into an agreement on April 24, 1987, which settled the appeal and

required, inter alia, that Palocrave file with the Monroe County Building

Department modified drawings for the building which would provide detailed

construction information necessary to identify how the building would be built

and how it would be of a height of 35 feet or less. Palocrave was required to

apply for a new or amended building permit from Monroe County to the extent that

it desired to construct an addition to the building which exceeded the 35-foot

height limitation and if and when such a permit was issued allowing such

construction, that that permit would be appealable to the FLAWAC pursuant to

Section 380.07, Florida Statutes, within 45 days from the rendition and

transmittal of the building permit to the Department. As a result of that

agreement, the Department dismissed its appeal of the subject building permit

and allowed the owner to resume the construction under the permit.

Petitioner, State of Florida, Department of Community Affairs (Department ),

presented the testimony of S. Stewart Sterlings, a registered architect; the

deposition of Angel C. Saqui, a registered architect; Bernard Zyskovitch, a

registered architect; and the depositions of Charles Waler and Eduardo Hillman-

Waller. James J. James testified in his own behalf and presented the testimony

of Joel Rosenblatt, an engineer; Richard Eid, a class "A" general contractor

licensed in Florida; James A. Flanner, a registered real estate broker; and

Francisco A. Benitez, a registered Architect in Florida. The Department

introduced exhibits 1-8 which were received In evidence and respondents,

Palocrave Investments Ltd., Inc., and James J. James introduced exhibits 1 and 2

which were received in evidence.

FINDINGS OF FACT

Based on my observation of the witnesses and their demeanor while

testifying, documentary evidence received and the entire record complied herein,

I make the following relevant factual findings:

1. Palocrave Investments, Ltd., Inc. ( Palocrave), is a corporation under

the laws of Florida whose address is 3972 NW 36th Street, Miami, Florida 33142.

2. The Department of Community Affairs (Department) is a state agency as

defined in Section 120.52(1), Florida Statutes, and is authorized to administer

and enforce the provisions of Chapter 380, Florida Statutes and rules and

regulations promulgated thereunder.

3. Palocrave is the owner of a lot in a portion of Section 13, Township 62

south, Range 38 east, Key Largo, Monroe County, Florida.

4. Most of Monroe County, including the subject property, is designated as

an area of critical state concern (ACSC) pursuant to Section 380.0552, Florida

Statutes (1986), and is subject to the provisions of Chapters 9J-14 and 28-20,

Florida Administrative Code (FAC), which comprise the comprehensive plan and

land development regulations for the Florida Keys ACSC.

5. On January 29, 1987, Palocrave applied for a Monroe County building

permit for the addition of a raised point to the roof of an existing house as

stated in the permit application signed by Albio Castro, as contractor, and

James J. James, as owner.

6. On February 26, 1987, Monroe County issued Palocrave building permit

C21282 for the addition, as applied for, including the construction of stairs,

balconies and a fence, based on the information provided in the documents

submitted with the application.

7. Permit C21282 authorizes the construction of a building that has a

portion of its elevation which exceeds a maximum height of 35 feet.

8. Respondent Palocrave built a permanent roof structure above the master

bedroom of the subject residence at the 35 foot level. At that point, a

decorative point was added which was not accessible, functionable, heated or

air-conditioned. The area which comprised the point rests atop the roof and is

sealed off over the habitable area of the master bedroom. The pointed structure

is of a conical shape with a maximum height of 44 feet and comprises less than

one-third of the total roof area.

9. Palocrave engaged the services of a registered engineer to complete the

drawings for the pointed addition of the gable roof. The house is of Victorian

design of which there are few in Monroe County.

10. Joel Rosenblatt, a registered engineer who was tendered and received

as an expert in structural and civil engineering, has been building roof systems

in Monroe County in excess of eight (8) years. The addition which is in excess

of the 35-foot height limitation is an embellishment and is not necessary for

the structural integrity of the roof system. The roof system is of a gable type

that's modified by a spiral point and is an architectural addition added only

for decorative purposes. (Testimony of Rosenblatt , Eid and Benitez ).

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has jurisdiction over the

subject of and the parties to this action pursuant to Section 120.57(1), Florida

Statutes.

12. The parties were duly noticed pursuant to the notice provisions of

Chapter 120, Florida Statutes.

13. The authority of the Department of Community Affairs is derived from

Chapter 380, Florida Statutes. Section 380.0552(8), Florida Statutes, provides

that the land development regulations approved pursuant to Sections 380.05(6),

(8) and (14), Florida Statutes, shall be the land development regulations for

the Florida Keys area of critical state concern.

14. Rule 28-20.021, Florida Administrative Code, amends and incorporates

by reference Section 9-430 of the Monroe County Land Development Regulations.

15. Section 9-430 of the Monroe County Land Development Regulations is

entitled "Maximum Height" and provides:

No structure or building shall be

developed that exceeds a maximum height

of thirty-five (35) feet.

16. Section 3-101.8-3 of the Monroe County Land Development Regulations

defines height as follows:

Height means the vertical distance

between grade and the highest part of

any structure, including mechanical

equipment, but excluding chimneys,

spires, steeples, radio or television

antenna, flag poles, solar apparatus and

utility poles.

17. The construction of the pointed addition at issue herein, which was

built up to the height of 44 feet, is a spire and is excluded pursuant to the

exceptions to the definition of height in Section 3-101.8-3 of the Monroe County

Land Development Regulations as incorporated by reference in Rule 28-20.021,

Florida Administrative Code.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that:

The Department enter a final order finding that Palocrave Investments Ltd.,

Inc., and James J. James' construction of the addition to its residence which

exceeds the 35 foot height limitation is a decorative spire and is therefore

permissible and excluded from the building height restrictions established in

the Monroe County Land Development Regulations and therefore is not in violation

of such regulations.

RECOMMENDED this 26th day of January, 1989, in Tallahassee, Leon County,

Florida.

_________________________________

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 26th day of January, 1989.

COPIES FURNISHED:

Michael Halpern, Esquire

Harvey Duvall, Esquire

209 Duval Street

Key West, Florida 33040

Randy Ludacer, Esquire

Monroe County Attorney

310 Fleming Street

Key West, Florida 33040

John M. Carlson, Esquire

Department of Community Affairs

2740 Centerview Drive

Tallahassee, Florida 32399

Thomas G. Pelham, Secretary

Department of Community Affairs

2740 Centerview Drive

Tallahassee, Florida 32399

Larry Keesey, Esquire

General Counsel

Department of Community Affairs

2740 Centerview Drive

Tallahassee, Florida 32399