00-005128GM Department Of Community Affairs vs. City Of Marathon And Banana Bay Of Marathon, Inc. Status: Closed Recommended Order on Friday, December 7, 2001.

Summary: Development order allowing landowner to transfer density from 12 boat slips to 12 motel rooms was inconsistent with the land development regulations.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF COMMUNITY )

AFFAIRS, )

)

Petitioner, )

)

vs. ) Case No. 00 - 5128GM

)

CITY OF MARATHON and BANANA )

BAY OF MARATHON, INC., )

)

Respondents. )

__________________ ____________)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing in

Marathon, Florida, on June 7 and 8, 2001.

APPEARANCES

For Petitioner: Andrew S. Grayson

Assistant G eneral Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399 - 2100

For Respondent City of Marathon:

Mitchell A. Bierman

Weiss Serota

2665 South Bayshore Drive, Suite 420

Miami, Florida 33133

For Respondent Banana Bay of Marathon, Inc.:

James S. Mattson

James S. Mattson, P.A.

Post Office Box 586

Key Largo, Florida 33037

STATEMENT OF THE ISSUE

The issue is whether a development order adopted by

Respondent City of Marathon by Res olution PC00 - 09 - 04 is

consistent with the comprehensive plan, land development

regulations, and statutes.

PRELIMINARY STATEMENT

By Notice of Appeal dated December 21, 2000, Petitioner

appealed to the Florida Land and Water Adjudicatory Commission a

develo pment order issued by Respondent City of Marathon in favor

of Respondent Banana Bay of Marathon, Inc. The development

order is Resolution PC00 - 09 - 04.

By Petitioner's Petition for Appeal of Development Order

dated December 21, 2000, Petitioner alleged tha t Respondent City

of Marathon issued a development order to Respondent Banana Bay

of Marathon, Inc. The petition alleges that the development

order allows Respondent Banana Bay of Marathon, Inc., to add 12

permanent transient dwelling units to the upland portion of its

property in return for Respondent Banana Bay of Marathon,

Inc.'s, restricting the use of 12 of its 30 adjacent boat slips

to vessels without plumbing facilities and declining to provide

cable television to these 12 boat slips.

The petition alleges that the development order is

inconsistent with various provisions of the comprehensive plan

and land development regulations, as well as Chapters 163, Part

II, and 380, Florida Statutes.

The petition alleges that the 30 boat slips are not

"dwelli ng units" under the comprehensive plan and thus do not

receive an allocation of density under the plan. The petition

alleges that the development order circumvents the requirements

of the plan's Permit Allocation System by effectively assigning

to the boa t slips transferable development rights. The petition

alleges that the development order is inconsistent with the

plan's prohibition against new transient residential units,

including hotel or motel rooms, until December 31, 2001.

The petition alleges th at the development order violates

the plan and land development regulations because the order

increases the existing 25 - unit motel in the Suburban Commercial

zoning district to 37 units, which exceeds the allowable density

for that district.

At the hearin g, Petitioner called three witnesses and

offered into evidence 21 exhibits: Petitioner Exhibits 1 - 21.

Respondent Banana Bay of Marathon, Inc., called four witnesses

and offered into evidence five exhibits: Banana Bay Exhibits

1 - 4. All exhibits were adm itted, except Petitioner Exhibits 16

and 17 and Banana Bay Exhibit 5, which were proffered.

The court reporter filed the last portion of the transcript

on August 13, 2001. The parties completed the preparation of

the evidentiary record with the filing of the testimony of one

witness on August 13, 2001. Petitioner and Respondent Banana

Bay of Marathon, Inc., filed proposed recommended orders on

September 24, 2001.

On October 10, 2001, Petitioner filed Department of

Community Affair's Response to Respon dent's Motion to Correct

Error in Banana Bay's Proposed Recommended Order. In the

response, Petitioner stipulated, for the purpose of this case

only, to the use of Land Development Regulation Code Section

9.5 - 4(T - 4) in the form set forth below. For the p urpose of this

case only, the Administrative Law Judge has accepted the

stipulation, which resolves a dispute concerning the content of

this regulation.

FINDINGS OF FACT

1. Respondent City of Marathon (Marathon) was incorporated

on November 30, 1999. It ad opted as its land development

regulations (LDR) the LDRs of Monroe County in effect at the

time of Marathon's incorporation. Marathon is within The

Florida Keys Area of Critical State Concern.

2. This case involves a development order that Marathon

issued to Respondent Banana Bay of Marathon, Inc. (BB). As

Planning Commission Resolution 00 - 09 - 04, the development order

authorizes BB to add 12 motel rooms to an existing motel in

return for imposing certain restrictions on the use of wet slips

at its adjacent marina that is part of the same motel/marina

development. The restrictions require the removal of cable

television connections from 12 slips and limitation upon vessels

using these 12 slips to those without plumbing facilities. For

the remaining wet sli ps at the marina, the development order

requires BB to limit their use to no more than 18 vessels at one

time and to provide mandatory sewage pumpout for these vessels.

At various points in the record and this recommended order,

references to a "transfer" of 12 marina slips for 12 motel rooms

refer to the conditions set forth in this paragraph.

3. BB owns 7.39 acres of upland and 2.67 acres of adjacent

bay bottom in Marathon at mile marker 49.5 (Subject Property or,

as developed, Banana Bay). The Subject P roperty runs from U.S.

Route 1 to the water. The Subject Property contains 60 motel

rooms in two buildings, a conference room, a motel office,

support buildings, three apartments suitable for employee use,

and a marina. The marina includes 40 - 50 slips, d epending upon

the size of the moored vessels.

4. The Subject Property is zoned Suburban Commercial (SC)

and Mixed Use (MU). About 2.4 acres (104,544 square feet)

running about 350 feet from U.S. Route 1 is SC. About 4.99

acres (217,364 square feet) is z oned MU. The additional 2.67

acres of adjacent bay bottom are also zoned MU, although the

submerged acreage is unimportant for reasons discussed below.

Twenty - five of the motel rooms are in SC, and 35 of the motel

rooms are in MU, although the distinctio n between zoning

districts is also unimportant for reasons discussed below.

5. LDR Code Section 9.5 - 267 authorizes ten "rooms" per

”acre" as "allocated density" for motel uses in SC and MU and 15

"rooms" per "buildable acre" as "maximum net density" for mot el

uses in SC and MU. (There is no difference between "hotels" and

"motels" in this case; all references to "motels" include

"hotels.")

6. Three fundamental questions emerge concerning the

application of these two density limitations to this case. The

f irst is whether BB must satisfy both the "allocated density"

and "maximum net density" limitation. This is not a difficult

issue; BB's proposal must satisfy each of these density

limitations.

7. The second question is what is included in the areas

under each of these density limitations. Notwithstanding the

use of "gross acres" in the "allocated density" formula, it is

necessary to net out certain areas -- just less than is netted out

in the "maximum net density" formula.

8. The third question is what con stitutes a "room." When

applied to marine - based units, the definition of a "room"

presents a difficult and important issue. As a whole, the LDRs

imply that no marine - based dwelling units should count as

"rooms," but one provision specifically requires th e inclusion

of "live - aboard" units in density calculations.

9. The first question requires little analysis. As noted

below in the discussion of the two types of areas, "allocated

density" and "maximum net density" provide two separate measures

of the int ensity of use of land. The allowable density for

"maximum net density" is never less than the allowable density

for "allocated density" because "maximum net density" is a

safeguard to ensure that, after netting out from the parcel

those areas reserved for open space, setbacks, and buffers, the

intensity of use will not be excessive. Nothing whatsoever in

the LDRs suggests that Marathon may issue a development order

for a proposal that satisfies the "maximum net density," but not

the "allocated density." These two densities limitations

operate in tandem, not in the alternative.

10. The calculation of the "allocated density" requires

consideration of the second and third questions identified

above. The issue of area seems straightforward. LDR Code

Section 9.5 - 4(D - 3) defines "density or allocated density" as

"the number of dwelling units or rooms allocated per gross acre

of land by the plan." LDR Code Section 9.5 - 4(D - 4) defines

"maximum net density" as "the maximum density permitted to be

developed per unit of land on the net buildable area of a site,

as measured in dwelling units or rooms per acre."

11. LDR Code Section 9.5 - 4(G - 4) defines "gross area" as

"the total acreage of a site less submerged lands and any

dedicated public rights - of - way." LDR Code Section 9.5 - 4(N - 4)

defines "net buildable area" as "that portion of a parcel of

land which is developable and is not open space required by

section 9.5 - 262 or 9.5 - 343 or required minimum bufferyard under

article VII division 11 or required setbacks under section

9 .5 - 281."

12. The area of land involved in determining "allocated

density" is greater than the area of land involved in

determining "maximum net density." But the area of land

involved in determining "allocated density" is itself a net

amount. The LDRs expr essly require reducing the gross areas by

any submerged land and dedicated public rights - of - way.

13. However, any reasonable application of the LDRs also

requires reducing the gross areas used for the motel "allocated

density" calculation by the minimum area s required to support

other uses on the Subject Property. If the only use of the

Subject Property were motel rooms, the "allocated density" limit

of ten units per acre (10:1) would allow 73.9 rooms. But the

Marathon Planning Commission Staff Report dated September 18,

2000, correctly netted from the Subject Property the land areas

required to support the commercial aspects of the hotel and the

commercial apartments. These reductions leave a total of 5.86

acres available to support the motel rooms. At a density of

10:1, the Subject Property could therefore support a total of 58

motel rooms.

14. The Planning Commission incorrectly used the 15:1

ratio for "maximum net density" in concluding that the Subject

Property could support a total of 67.65 motel rooms. Evidently,

the Planning Commission used the "maximum net density" because

it was not using "gross area" or "gross acres" (the terms are

synonymous under the Code) in calculating the area.

15. The netting reduction necessary to calculate whether

BB's proposal satisfies the "maximum net density" limitation

would require the calculation of the area of the Subject

Property that must be devoted to open space, setbacks, and

buffers. The Planning Commission probably undertook this step

in calculating the "maximum n et density" for the Subject

Property, as its figures seem to include unstated deductions for

the 20 percent open space plus another factor, probably for

setbacks and buffers -- all of which are discussed in its report.

However, the Planning Commission erron eously neglected to apply

the "allocated density" limitation to the "gross acres,"

exclusive of submerged land, public rights - of - way, and the

minimum land required to support the other upland uses. As

noted above, doing so would have yielded no more than 58 motel

rooms.

16. At present, the Subject Property contains 60 hotel or

motel rooms. The Subject Property therefore cannot support the

addition of another 12 hotel or motel rooms, given its

"allocated density" of only 58 rooms.

17. In general, BB justifies th e addition of 12 rooms to

the front motel by arguing that it is only transferring these

units from the 12 existing wet slips. It is unnecessary to

determine whether a transfer under these facts is lawful when,

if these 12 slips count as units, the Subject Property is

already 14 units over its "allocated density." The resolution

of the third question -- what constitutes a "room" -- dispenses with

this argument.

18. Thirty of the existing 40 - 50 boat slips in the marina

have water, electric, and cable hook - ups and a re presently used

for some form of habitation. Most vessels berth at the marina

for two or three days, although the average stay is slightly

over one month. The average stay at the 30 slips offering

utilities, though, is two to three months.

19. Typically, t wo persons use a vessel berthed at the

marina for more than a couple of days. BB seals the discharge

ports of all vessels mooring at the marina for any appreciable

period of time. BB provides a sewage pumpout service for these

and other vessels. The was tewater from the marina operations

goes to a septic tank, in contrast to the wastewater from the

motel operations, which goes to an onsite package plant.

20. Persons mooring at the marina for at least two months

normally obtain telephone service and may obta in cable

television service, in addition to the potable water and

electrical services provided by BB. The marina also provides

rest rooms, laundry facilities, showers, a bar, limited food

service, and a mail box. However, BB rules require that all

person s berthing at the marina register a permanent address

because the slips are "not considered permanent housing."

21. At the request of the Florida Keys Aqueduct Authority

and the Monroe County Planning Department, BB has limited rental

agreements at the marina to a maximum of one month, although

some persons enter into back - to - back rental agreements. Persons

staying more than one week often have cars.

22. Contrary to BB's contentions, none of these slips

provides additional density for the Subject Property, and

the refore the 12 slips are not available for transfer to the

motel. For the same reason, as discussed below, the proposed

transfer of the 12 units would also violate the Rate of Growth

Ordinance (ROGO).

23. In two respects, the record reveals that the

conversion of marine - based residential uses to upland

residential uses might facilitate the achievement of important

land use planning objectives. First, the wastewater collected

from the marina is directed to a septic tank, and the wastewater

collected from the mo tel is directed to a package plant. Absent

a significantly reduced flow from the marine - based residential

use, the upland residential use would therefore impact the

adjacent waters to a lesser extent. Second, marine - based

residential users may be more re luctant to evacuate for an

approaching hurricane than upland residential users. Absent a

significantly greater number of visitors during hurricane season

if the 12 units were taken from the marina slips and added to

the motel, the upland residential use m ight therefore facilitate

timely hurricane evacuation of the vulnerable Keys. However,

the record was relatively undeveloped on these two points, and

these possible advantages to the conversion of marine - based

residential uses to upland - based residential uses do not

override the LDRs.

24. The LDRs may treat the more intense residential use

associated with "live - aboards" differently than the less intense

residential use associated with other moored vessels. Although

the LDRs' treatment of "live - aboards" may no t be entirely

consistent, any inconsistency is irrelevant in this case because

the moored vessels at the Banana Bay marina do not qualify as

"live - aboards."

25. As stipulated for the purpose of this case, LDR Code

Section 9.5 - 4(T - 4) defines a "transient reside ntial unit" as "a

dwelling unit used for transient housing such as a hotel or

motel room, or space for parking a recreational vehicle or

travel trailer." LDR Code Section 9.5 - 4(D - 31) defines a

"dwelling unit" as "one (1) or more rooms physically arranged to

create a housekeeping establishment for occupancy by one (1)

family with separate toilet facilities." LDR Code Sections

9.5 - 4(D - 23) through 9.5 - 4(D - 30) identify the various types of

dwellings that may contain "dwelling units.” These dwellings

are, res pectively, detached zero - lot - line dwellings, multifamily

apartment dwellings, attached dwellings, detached individual

dwellings, duplex dwellings, commercial apartment dwellings,

rooftop dwellings, and townhouse dwellings. The frequent

references to "open yards" in these definitions precludes the

application of these definitions to moored vessels, even "live -

aboards."

26. The exclusion of all moored vessels, including

"live - aboards," from density calculations is also suggested by

two other portions of the LDRs. As is typical, LDR Code Section

9.5 - 120.1 provides that the mechanism for enforcing density

limitations is in the issuance of building permits, but this

enforcement mechanism is of doubtful use in regulating vessel

moorings, which do not typically involve the issuance of a

building permit. Also, the density definitions discussed above

both refer to the development of various types of residential

uses on "land."

27. Moreover, none of the zoning districts established in

Marathon's LDRs measures the inten sity of marina uses, including

vessels moored for extended periods as live - aboards, by imposing

some sort of marine density limitation, either by including the

moored dwelling units or the submerged acreage. Because the

LDRs did not intend to include such marine - based uses in density

calculations, LDR Code Section 9.5 - 267, which is a table setting

forth "allocated densities" and "maximum net densities," covers

only upland - based uses, including recreational vehicle or

campground spaces per acre, and does no t extent to marine - based

uses, such as live - aboard marina slips.

28. However, two provisions in the LDRs require density

calculations to include "live - aboards." LDR Code Section

9.5 - 308, which seems to be an older provision in the LDRs,

provides that "each li ve - aboard shall count as a dwelling unit

for the purpose of calculating density limitations in the

district in which it is permitted." Better incorporated into

the present regulatory scheme of the LDRs, LDR Code Section

9.5 - 120.1 defines a "residential d welling unit" as a "dwelling

unit," including a "transient rental unit," as defined in LDR

Code Section 9.5 - 4(T - 3), and "live - aboard vessels," as defined

in LDR Code Section 9.5 - 4(L - 6).

29. However, LDR Code Section 9.5 - 4((L - 6) states that a

"live - aboard ves sel" is "any vessel used solely as a residence

or any vessel represented as a place of business, a professional

or other commercial enterprise, or a legal residence." The

record does not suggest that any of the moored vessels were used

"solely" as a resid ence, as distinguished, for instance, from a

vessel used for residential and recreational purposes, or that

any of the mixed - use vessels served as the occupants' legal

residence.

30. Absent a finding that the moored vessels constitute

"transient residential units," ROGO does not support this

proposed transfer of residential uses from marine - based to

upland - based. LDR Code Section 9.5 - 123(f)(3) authorizes the

transfer of an existing "residential dwelling unit" from one

site to another within the same subare a. However, LDR Code

Section 9.5 - 122 defines a "residential dwelling unit" to extend

only to "live - aboards." For the reasons already discussed, the

less intense residential uses associated with the vessels moored

at Banana Bay's marina preclude their tre atment as "residential

dwelling units" eligible for transfer to the motel.

31. Petitioner has proved that the development order is

materially inconsistent with the LDRs. LDR provisions governing

the density and intensity of residential development go to the

heart of effective land use planning, especially in an area as

sensitive as the Keys. For these reason, it is unnecessary to

consider the consistency of the development order with the more

general provisions of Marathon's comprehensive plan, on which

Mar athon's LDRs are based.

CONCLUSIONS OF LAW

32. The Division of Administrative Hearings has

jurisdiction over the subject matter. Sections 120.57(1) and

380.07(4), Florida Statutes. (All references to Chapters and

Sections are to Florida Statutes.)

33. Petitioner has the burden of proof in this case.

Young v. Department of Community Affairs , 625 So. 2d 831 (Fla.

1993).

34. Section 380.05(16) provides that no person may

undertake development within an area of critical state concern,

except in accordance with Chapter 3 80. Numerous provisions of

Chapter 380 govern the land use restrictions to be incorporated

into LDRs and comprehensive plans. Section 380.07(2) authorizes

Petitioner to appeal development orders to the Florida Land and

Water Adjudicatory Commission. Sec tion 380.07(5) provides that

the Florida Land and Water Adjudicatory Commission shall enter

an order granting or denying permission to develop, pursuant to

the standards of Chapter 380.

35. Petitioner has proved that the Florida Land and Water

Adjudicatory Com mission should enter an order denying BB's

request for a development order.

RECOMMENDATION

It is

RECOMMENDED that the Florida Land and Water Adjudicatory

Commission enter a final order denying the request of Banana Bay

of Marathon, Inc., to approve the t ransfer of 12 slips to 12

rooms in a motel on the Subject Property.

DONE AND ENTERED this 7th day of December, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee , Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 7th day of December, 2001.

COPIES FURNISHED:

Barbara L. Leighty, Clerk

Growth Management and

Strategic Planning

The Capitol, Suite 2105

Tallahassee, Florida 32399

Charles Canaday, General Counsel

Office of the Governor

Department of Legal Affairs

The Capitol, Suite 209

Tallahassee, Florida 32399 - 1001

Cari L. Roth, General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399 - 2100

Mitchell A. Bierman

Weiss Serota

2665 South Bayshore Drive

Suite 420

Miami, Florida 33133

James S. Mattson

James S. Mattson, P.A.

Post Office Box 586

Key Largo, Florida 33037

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions

to this recommended order must be filed with the agency that

will issue the final order in this case.