88-003469RP Residence Inn Ocean Resort vs. Department Of Community Affairs
 Status: Closed
DOAH Final Order on Wednesday, October 18, 1989.


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Summary: Proposed rule rejecting change in land use designation valid, and doctrine of equitable estoppel not applicable in challenge to proposed rule

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8RESIDENCE INN RESORT, )

12)

13Petitioner, )

15)

16vs. ) CASE NO. 88-3469RP

21)

22DEPARTMENT OF COMMUNITY AFFAIRS, )

27)

28Respondent. )

30___________________________________)

31FINAL ORDER

33Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned

46Hearing Officer of the Division of Administrative Hearings, on July 12, 1989, in

59Key West, Florida.

62APPEARANCES

63For Petitioner: William J. Roberts, Esquire

69Roberts, Egan and Routa

73217 South Adams Street

77Post Office Box 1386

81Tallahassee, Florida 32302

84Fred Tittle, Esquire

87Tittle & Tittle, P. A.

92Post Office Drawer 535

96Tavernier, Florida 33070

99For Respondent: David Jordan, Esquire

104Department of Community Affairs

1082740 Centerview Drive

111Tallahassee, Florida 32399

114STATEMENT OF THE ISSUES

118Whether proposed Rule 9J-14.006 is an invalid exercise of delegated

128legislative authority.

130PRELIMINARY STATEMENT

132On April 29, 1988, Respondent Department of Community Affairs filed an

143appeal of a development order obtained by Petitioner Residence Inn Resort and

155issued by Monroe County, an Area of Critical State Concern. That appeal was

168filed pursuant to Section 380.07, Florida Statutes. On July 15, 1988,

179Petitioner Residence Inn Resort filed this Petition to Determine the Invalidity

190of a Proposed Rule, challenging proposed Rule 9J-14.006. This challenge to the

202proposed Rule was filed pursuant to Section 120.54, Florida Statutes. The

213parties agreed to consolidate the final hearings for the two proceedings, and a

226Recommended Order in the case of Department of Community Affairs v. Peter Louis

239Edwards; Wigwam, Inc., a Pennsylvania corporation; and Monroe County, Florida,

249DOAH Case No. 88-3450, the Section 380.07 appeal, has been issued simultaneously

261with this Final Order.

265Petitioner Residence Inn Resort presented the testimony of Ty Symroski,

275Charles Pattison, D. Sullins Stuart, Dan Hoyt, Richard Mercer, and William L.

287Johnson. Additionally, Petitioner's Exhibits numbered 1-9 were admitted in

296evidence. Although Petitioner was granted leave to file a post-hearing

306deposition to be taken of a Mr. Petsky, which deposition would then become

319Petitioner's Exhibit numbered 10, no such deposition was filed. Rather, a

330deposition of a William Hunt was filed on July 27, 1989. That deposition

343involved the presentation of opinion testimony based upon studies conducted

353after the final hearing. Although no request was made by the parties to

366substitute the deposition of William Hunt for the deposition of Mr. Petsky, and

379although no motion was made by Petitioner to reopen the final hearing to take

393additional evidence, and although no motion was made by Petitioner to perform

405studies after the close of evidence on July 12, 1989, Respondent Department of

418Community Affairs has not objected to consideration of the deposition on any of

431those grounds or on any other grounds. Accordingly, the deposition has been

443marked as Petitioner's Exhibit numbered 10 and has been considered by the

455undersigned as part of the evidence in this proceeding. It should be noted that

469the deposition has not been dispositive of any of the issues in this proceeding

483or in the consolidated case, DOAH Case No. 88-3450.

492Respondent presented the testimony of Rick Hall, James L. Quinn, Lawrence

503V. Olney, and Maria D. Abadal. Additionally, Respondent's Exhibits numbered 1-

51415 were admitted in evidence.

519Both parties submitted post-hearing proposed findings of fact in the form

530of proposed final orders. A ruling on each proposed finding of fact can be

544found in the Appendix to this Final Order.

552FINDINGS OF FACT

5551. Wigwam, Inc., the developer of Residence Inn Resort, is the present

567equitable owner of the subject parcel and is the successor to the development

580authorizations for a proposed hotel and marina.

5872. The subject parcel is a tract of land located at Mile Marker 52.4, on

602U.S. 1, on a portion of Government Lot 2, in Section 6, Township 66 South, Range

61833 East, on Key Vaca, Marathon, Monroe County, Florida.

6273. The subject parcel consists of 4.82 acres of land above water located

640between U.S. 1 and the Atlantic Ocean. Located within the subject parcel is a

654dredged harbor at least 8 feet deep below mean sea level at mean low tide.

6694. On January 23, 1986, the Monroe County Commission by resolution

680designated the entire subject parcel Destination Resort (hereinafter "DR").

690Petitioner offered no evidence to show that the Department of Community Affairs

702received a copy of that resolution or that the Department was aware of that

716resolution. The Department did not appeal the "DR" designation on that parcel

728of property as a development order, pursuant to Section 380.07(2), Florida

739Statutes.

7405. The current Monroe County Comprehensive Plan, Land Development

749Regulations, and Land Use Maps were adopted by the Monroe County Commission on

762February 28, 1986, by Resolution No. 049-1986. Those Land Use Maps showed the

775land use designation for the subject parcel as "DR" along the Atlantic Ocean and

"789SR" (Suburban Residential) along U.S. 1.

7956. The discrepancy between the January 23, 1986, Monroe County resolution

806and the final Land Use Maps adopted by Resolution No. 049-1986 was the result of

821an error made by Monroe County staff before transmittal of the Land Use Maps to

836the Department of Community Affairs and the Administration Commission.

845Petitioner offered no evidence to show that the Department of Community Affairs

857knew or should have known that the Land Use Maps transmitted to the Department

871contained a clerical error regarding the subject property.

8797. The current Monroe County Comprehensive Plan, Land Development

888Regulations, and Land Use Maps were approved by the Department of Community

900Affairs and the Administration Commission on July 29, 1986, and became effective

912on September 15, 1986.

9168. Since the adoption of the current Land Use Maps, the oceanward three-

929quarters of the subject parcel has been designated "DR" and the landward one-

942quarter of the subject parcel has been designated "SR".

9529. Land Use Map Amendment No. 100, adopted by the Monroe County Board of

966County Commissioners on November 18, 1987, and rejected by the Department of

978Community Affairs, which is the subject of this rule challenge, would

989redesignate the entire subject parcel "DR".

99610. Proposed Rule 9J-14.006, Florida Administrative Code, contains the

1005Department of Community Affairs' determination approving and rejecting several

1014Monroe County ordinances which amend the Monroe County Land Use Maps as to

1027hundreds of parcels of land and which amend other Monroe County Land Development

1040Regulations. As part of that proposed rule, Land Use Map Amendment No. 100 is

1054rejected by the Department of Community Affairs. The Petition filed in this

1066cause challenges the proposed Rule only as it relates to the subject parcel.

107911. Although Land Use Map Amendment No. 100 is intended to correct Monroe

1092County's clerical error by reflecting that the entire subject parcel is

1103designated "DR," it presents to the Department of Community Affairs a different

1115designation than that previously approved by the Department, i.e., it changes

1126the "SR" designation for the landward one-quarter of the subject property which

1138was approved by the Department of Community Affairs and the Administration

1149Commission to a designation of "DR," which change in designation is rejected by

1162the Department of Community Affairs as part of proposed Rule 9J-14.006, Florida

1174Administrative Code.

117612. The Development Order under appeal in the companion case, Planning

1187Commission Resolution No. 13-87, approves a major conditional use for the

1198subject property utilizing the "DR" designation by allowing construction of a

120996-unit hotel resort and utilization of the harbor within the subject property's

1221boundaries as a marina.

122513. Section 380.0552, Florida Statutes, requires any amendment to the

1235Monroe County Comprehensive Plan, Monroe County Land Development Regulations and

1245Land Use Maps to comply with the following principles for guiding development:

1257(a) To strengthen local government

1262capabilities for managing land use and

1268development so that local government is able

1275to achieve these objectives without the

1281continuation of the area of critical state

1288concern designation.

1290To protect shoreline and marine

1295resources, including mangroves, coral reef

1300formations, seagrass beds, wetlands, fish

1305and wildlife, and their habitat.

1310* * *

1313To protect the value, efficiency

1318cost-effectiveness, and amortized life of

1323existing and proposed major public

1328investments, including:

1330* * *

13333. Solid Waste collection and disposal

1339facilities.

1340* * *

134314. The dredged harbor on the subject parcel is at least 8 feet deep.

1357However, just oceanward of the project boundary, the undredged ocean bottom

1368shoals to less than 4 feet at mean low tide. This area is more than 4 feet deep

1386measured from mean sea level.

139115. A marina is permitted as a major conditional use in a "DR" resort

1405district provided that, "the parcel proposed for development has access to water

1417of at least 4 feet below mean sea level at mean low tide." Section 9-

1432213.B.2.a., Monroe County Land Development Regulations. The Land Development

1441Regulations define the phrase "water of at least 4 feet below mean sea level at

1456mean low tide" to mean

1461locations that will not have a significant

1468adverse impact on off-shore resources of

1474particular importance. For the purposes of

1480this definition, off-shore resources of

1485particular importance shall mean .

1490shallow water areas with natural marine

1496communities with depths at mean low tide of

1504less than four (4) feet ...

1510Section 3-101.W-1., Monroe County Land Development Regulations.

151716. The shallow water area just oceanward of the project boundary is

1529comprised of a natural marine community of seagrass beds. The dominant species

1541is turtle grass, also known as Thallassia.

154817. The harbor within the subject parcel does not have access to water of

1562at least 4 feet below mean sea level at mean low tide. The shallow water area

1578between the marina and open water is covered with a natural marine community

1591with a depth at mean low tide of less than 4 feet, and it has not been

1608demonstrated that access to open water from the proposed marina can be achieved

1621without significant adverse impact to that natural marine community.

163018. The "DR" designation allows, and often times contemplates, a marina

1641within the resort. Section 9-213.B.2., Monroe County Land Development

1650Regulations. The expansion of the "DR" designation where a marina could only be

1663constructed in violation of the Land Development Regulations does not comply

1674with principle for guiding development (b).

168019. Any development constructed on the subject parcel will utilize the

1691Long Key Solid Waste Facility, which has a maximum capacity of 3 to 4 years.

1706The increase in density between "SR" and "DR" will decrease the expected life

1719span of the facility. The increase in density will not comply with principle

1732for guiding development (h)3., which encourages protection of ... the value,

1743efficiency, cost-effectiveness, and amortized life of existing and proposed

1752major public investments, including solid waste collection and disposal

1761facilities."

176220. As used in the Monroe County Land Development Regulations, a

1773destination resort is a hotel complex that includes more amenities and

1784facilities than an ordinary hotel. These amenities and facilities are so

1795attractive that guests tend to spend more time on-site and, therefore, have less

1808impact off-site. Because of these reduced impacts, destination resorts have the

1819highest maximum net density of any Monroe County land use designation.

183021. The Monroe County Land Development Regulations state that the purpose

1841of the "DR" district

1845... is to establish areas suitable for the

1853development of destination resorts.

1857Destination resorts are contemplated to be

1863located on sites of at least 10 acres except

1872where the location and character of the site

1880or the development itself is such that off-

1888site impacts will be reduced.

1893Section 9-114, Monroe County Land Development Regulations.

190022. The subject parcel, at less than half of the normal 10 acres, is not

1915large enough to include all the amenities that are necessary for a destination

1928resort. In the companion Section 380.07 appeal of the development order,

1939Wigwam, Inc., the developer of Petitioner in this case, attempted and failed to

1952demonstrate that a proposed 96-room hotel could include enough amenities to

1963reduce off-site impacts to the extent required by the Monroe County Land

1975Development Regulations.

197723. Approval of the proposed map amendment would continue and expand an

1989improper land use designation for the parcel owned by Wigwam, Inc. Even the

2002expanded designation is not large enough to support a destination resort, and

2014Wigwam, Inc., failed to show that off-site impacts will be reduced. This

2026continuation of an improper land use designation would not comply with principle

2038for guiding development (a) which seeks "[t]o strengthen local government

2048capabilities for managing land use and development so that local government is

2060able to achieve these objectives without continuation of the area of critical

2072state concern designation.

2075CONCLUSIONS OF LAW

207824. The Division of Administrative Hearings has jurisdiction over the

2088parties hereto and the subject matter hereof. Sections 120.54 and 120.57(1),

2099Florida Statutes.

210125. The Department of Community Affairs is the State Land Planning Agency

2113as defined in Section 380.031(18), Florida Statutes. A portion of Monroe

2124County, including the subject parcel, has been designated the Florida Keys Area

2136of Critical State Concern by Section 380.0552, Florida Statutes.

214526. The principles for guiding development found in Section 380.0552(7),

2155Florida Statutes, apply to this case. Any amendments to the Land Use Maps

2168enacted by Monroe County must be submitted to the Department of Community

2180Affairs for approval or rejection, pursuant to Section 380.0552(9). Amendments

2190to the Land Use Maps become effective when approved by the Department. The

2203Department is directed to approve a proposed amendment to the Land Use Maps if

2217it is in compliance with the principles for guiding development; conversely, the

2229Department is without authority to approve a proposed amendment which is not in

2242compliance with the principles for guiding development.

224927. Since the proposed amendment to the Monroe County Land Use Map which

2262is the subject of this proceeding does not comply with the principles for

2275guiding development, the Department is directed by Section 380.0552 to reject

2286the amendment. Whether the Land Use Map showing Petitioner's parcel of land

2298transmitted to the Department and approved by the Department of Community

2309Affairs and the Administration Commission contained a clerical error is

2319unimportant. What was approved was the Land Use Map carrying the designation

"2331DR" for the oceanward three-quarters of the parcel and the designation "SR" for

2344the landward one-quarter of the parcel. Whether the amendment approved by

2355Monroe County corrects a clerical error or constitutes a change in designation

2367is immaterial since it does not comply with the principles for guiding

2379development, and the Department therefore need not, and cannot, approve that

2390amendment no matter why the amendment has been proposed.

239928. Section 380.0552(9), Florida Statutes, constitutes both the specific

2408authority for and the law implemented by proposed Rule 9J-14.006. That Section

2420provides that any land development regulation, and therefore the Land Use Maps

2432which are part of the Land Development Regulations, may be amended by local

2445government but the amendment shall become effective only upon approval by the

2457State Land Planning Agency. The State Land Planning Agency is required to

2469review the proposed change to determine its compliance with the principles for

2481guiding development. Accordingly, the Department is authorized to review for

2491approval or rejection Land Use Amendment No. 100, and proposed Rule 9J-14.006,

2503Florida Administrative Code, is a valid exercise of delegated legislative

2513authority. That proposed Rule, specifically as relates to that small portion of

2525the proposed Rule which has been challenged in this proceeding, is neither

2537arbitrary nor capricious; rather, it is in compliance with the legislative

2548mandate set forth in Section 380.0552, Florida Statutes. Petitioner's argument

2558that the Land Use Maps are not part of the Land Development Regulations is

2572without merit. E.L. "Shorty" Allen, et al. v. Honorable Bob Martinez, Governor,

2584et al., DOAH Case No. 88-5797R (Final Order entered March 20, 1989).

259629. Petitioner asserts that equitable estoppel bars rejection of Monroe

2606County's redesignation of the "SR" portion of the property to "DR." Claims of

2619equitable estoppel are inappropriate in a Section 120.54 rule challenge. In

2630such a proceeding, a substantially affected person may seek an administrative

2641determination of the invalidity of a proposed Rule on the ground that the

2654proposed rule is an invalid exercise of delegated legislative authority. A

2665Section 120.54 proceeding does not involve the determination of the

2675applicability of a rule to a particular person. It simply involves the

2687determination of whether there is statutory authority for the rule itself. Even

2699if equitable estoppel were appropriate in a proceeding challenging a proposed

2710rule, the evidence in this cause demonstrates that the only action taken by the

2724Department of Community Affairs with regard to the land use designation of the

2737subject parcel was to approve the present designation of "SR" and "DR," the

2750designations transmitted to it by Monroe County for approval. No evidence was

2762offered to show any action by the Department that could form the basis for an

2777estoppel against rejection of the proposed change.

2784Based upon the foregoing Findings of Fact and Conclusions of Law,

2795Petitioner has failed in its burden of proving that the portion of proposed Rule

28099J-14.006 rejecting Land Use Map Amendment No. 100 is an invalid exercise of

2822delegated legislative authority. It is, therefore,

2828ORDERED that the Petition to Determine the Invalidity of a Proposed Rule

2840filed in this cause is hereby dismissed.

2847DONE AND ORDERED in Tallahassee, Leon County, Florida, this 18th day of

2859October, 1989.

2861_________________________________

2862LINDA M. RIGOT

2865Hearing Officer

2867Division of Administrative Hearings

2871The DeSoto Building

28741230 Apalachee Parkway

2877Tallahassee, FL 32399-1550

2880(904) 488-9675

2882Filed with the Clerk of the

2888Division of Administrative Hearings

2892this 18th day of October, 1989.

2898APPENDIX TO FINAL ORDER

2902DOAH CASE NO. 88-3469RP

29061. Petitioner's proposed Findings of Fact numbered 1-10 have been adopted

2917either verbatim or in substance in this Final Order.

29262. Petitioner's proposed Findings of Fact numbered 11, 12, and 18-24 have

2938been rejected as being irrelevant to the issue under consideration herein.

29493. Petitioner's proposed Findings of Fact numbered 13-16 have been

2959rejected as not constituting findings of fact but rather as constituting

2970statements of the Department's position in this cause.

29784. Petitioner's proposed Finding of Fact numbered 17 has been rejected as

2990being unnecessary for determination of the issue herein.

29985. Respondent's proposed Findings of Fact numbered 1-20 have been adopted

3009either verbatim or in substance in this Final Order.

3018COPIES FURNISHED:

3020David Jordan, Esquire

3023Department of Community Affairs

30272740 Centerview Drive

3030Tallahassee, Florida 32399

3033William J. Roberts, Esquire

3037Roberts, Egan and Routa

3041217 South Adams Street

3045Post Office Box 1386

3049Tallahassee, Florida 32302

3052Fred Tittle, Esquire

3055Tittle & Tittle, P. A.

3060Post Office Drawer 535

3064Tavernier, Florida 33070

3067Carroll Webb, Executive Director

3071Administrative Procedures Committee

3074120 Holland Building

3077Tallahassee, Florida 32399-1300

3080Liz Cloud, Chief

3083Bureau of Administrative Code

30871802 The Capitol

3090Tallahassee, Florida 32399-0250

3093A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL

3107REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE

3117GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE

3128COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE

3144DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING

3155FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR

3168WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY

3181RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE

3196ORDER TO BE REVIEWED.

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Date
Proceedings
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Date: 10/18/1989
Proceedings: DOAH Final Order
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Date: 10/18/1989
Proceedings: Final Order (hearing held , 2013). CASE CLOSED.

Case Information

Judge:
LINDA M. RIGOT
Date Filed:
07/15/1988
Date Assignment:
08/31/1988
Last Docket Entry:
10/18/1989
Location:
Key West, Florida
District:
Southern
Agency:
Department of Community Affairs
Suffix:
RP
 

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