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