01-002409GM Charles Rossignol vs. Islamorada, Village Of Islands And Department Of Community Affairs Status: Closed Recommended Order on Friday, November 16, 2001.

Summary: Plan provision adopting transient rental restrictions in residential areas and plan amendment relaxing conditions under which temporary grandfathering provision may be lost are supported by data and analysis in preserving neighborhoods and communities.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLES ROSSIGNOL, )

)

Petitioner, )

)

vs. ) Case No. 01 - 2409GM

)

ISLAMORADA, VILLAGE OF )

ISLANDS and DEPARTMENT OF )

COMMUNITY AFFAIRS, )

)

Respondents. )

________________ ______________)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing in

Islamorada, Florida, on August 15, 2001.

APPEARANCES

For Petitioner: Charles Rossignol, pro se

25 3 Tollgate Boulevard

Islamorada, Florida 3303

For Respondent Islamorada, Village of Islands:

Nancy Stroud

Weiss Serota Helfman

Pastoriza & Guedes, P.A.

3107 Stirling Road, Suite 300

Fort Lauderdale, Florida 33312

For Respondent De partment of Community Affairs:

David L. Jordan, Deputy General Counsel

Cari L. Roth, General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399 - 2100

STATEMENT OF THE ISSUE

The issue is whether Is lamorada Ordinance 01 - 05, which

amended Policy 1 - 2.4.7 of Islamorada's comprehensive plan, is in

compliance, as provided by Chapter 163, Part II, Florida

Statutes.

PRELIMINARY STATEMENT

In January 2001, Islamorada transmitted its adopted

comprehensive pla n to the Department of Community Affairs. The

Department of Community Affairs issued a statement and notice of

intent to find the plan not in compliance. The Department of

Community Affairs commenced DOAH Case No. 01 - 1216GM to challenge

the comprehensive plan. No other parties intervened.

On May 7, 2001, Islamorada and the Department of Community

Affairs entered into a stipulated settlement agreement under

which Islamorada agreed to adopt certain plan amendments. On

April 26, 2001, Islamorada adopted O rdinance 01 - 05, which

contained the remedial amendments identified in the stipulated

settlement agreement. These amendments altered Policy 1 - 2.4.7,

but not Policy 1 - 2.1.0.

The Department of Community Affairs determined that, with

the remedial plan amendm ents, the plan was in compliance. On

May 21, 2001, the Department of Community Affairs issued a

cumulative notice of intent to find the plan amendments in

compliance. On June 12, 2001, the Administrative Law Judge

assigned to DOAH Case No. 01 - 1216GM issu ed an order closing

file.

On June 6, 2001, Petitioner filed a petition challenging

Policies 1 - 2.4.7 and 1 - 2.1.0, which govern vacation rental uses.

The petition was filed within 21 days of the issuance of the

cumulative notice of intent, but not within 2 1 days of the

issuance of the original notice of intent.

As amended on June 13, 2001, the petition states that, if

Policies 1 - 2.1.0 and 1 - 2.4.7 are found in compliance, Petitioner

will be deprived of the income that he has derived from renting

his Islam orada home for the past 20 years. The amended petition

alleges that the policies are not supported by data and

analysis.

On July 24, 2001, Islamorada adopted Ordinance 01 - 11, which

rescinded the portion of the remedial plan amendment changing

Policy 1 - 2. 4.7 and restored the policy to its form, as

originally adopted in the transmittal plan.

At the hearing, Petitioner called eight witnesses and

offered into evidence seven exhibits: Petitioner Exhibits 1 - 7.

Islamorada called three witnesses and offered in to evidence 11

exhibits: Islamorada Exhibits 1 - 6 and 8 - 12. Department of

Community Affairs called one witness and offered into evidence

no exhibits. All exhibits were admitted.

The court reporter filed the transcript on September 4,

2001. The parties filed their proposed recommended orders by

October 1, 2001.

FINDINGS OF FACT

1. Respondent Islamorada, Village of Islands (Islamorada),

was incorporated on December 31, 1997. At the time of its

incorporation, the Monroe County comprehensive plan applied to

requests for development orders in the jurisdiction of

Islamorada.

2. After conducting a number of public hearings and

workshops, Islamorada adopted its initial comprehensive plan by

Ordinance 00 - 09 on January 24, 2001 (Plan). On March 15, 2001,

Respondent Department of Community Affairs (DCA) published its

Notice of Intent to Find the Islamorada Comprehensive Plan not

in compliance with Chapter 163, Part II, Florida Statutes, which

is the Local Government Comprehensive Planning Act (Act). DCA

commenced Dep artment of Community Affairs v. Islamorada, Village

of Islands , DOAH Case No. 01 - 1216GM, to challenge the Plan.

3. As the only parties to DOAH Case No. 01 - 1216GM, DCA and

Islamorada entered into a Stipulated Settlement Agreement, under

which Islamorada agree d to adopt certain remedial amendments.

Consequently, on April 26, 2001, Islamorada adopted Ordinance

01 - 05, which contained the remedial amendments. On May 24,

2001, DCA published its Notice of Intent to Find the

Comprehensive Plans and Remedial Compreh ensive Plan Amendments

in compliance with the Act. Consequently, on June 6, 2001, the

Administrative Law Judge issued an Order Closing File in DOAH

Case No. 01 - 1216GM.

4. On the same day, Petitioner filed his Petition, which

alleges that Policies 1 - 2.4.7 an d 1 - 2.1.0 are not supported by

data and analysis.

5. Ordinance 01 - 05 did not change Policy 1 - 2.1.0. For the

reasons noted in the Conclusions of Law, Petitioner therefore is

unable to challenge Policy 1 - 2.1.0.

6. With deletions stricken through and additions

u nderlined, Ordinance 01 - 05 revised Policy 1 - 2.4.7 as follows:

Policy 1 - 2.4.7: Limit Transient Rental Use

of Residential Properties. Islamorada,

Village of Islands shall continue to

prohibit the transient rental use of 28 days

or less, of residential prop erties within

the Village, including properties located

within the Residential Conservation (RC),

Residential Low (RL), Residential Medium

(RM), and Mixed Use (MU) Future Land Use

categories, except in tourist commercial

Zoning Districts as provided for un der

Policy 1 - 2.10 of this Planansient

rental use may be allowed continue in multi -

family developments with 24 - hour on - site

security , excluding mobile home parks, in

the Residential High (RH) FLUM categories

based on an existing use as of May 1, 1999,

upon a majority approval of all property

owners within a mandatory owner association

organized under Florida law, pursuant to the

association requirements, and compliance

with all applicable State regulations and

Village codes . Property owners located in

the RL, RM, RC and MU future land use

categories with valid transient rental

licenses as of May 1, 1999 will have until

May 1, 2003 to cease rentals of 28 days or

less. Owners of such properties shall

register with the Village and shall

demonstrate to the Village that:

1. The transient use of 28 days or less

of the property in question was existing as

of May 1, 1999, and continues to exist;

2. All State and local licenses necessary

for the conduct of transient rental use of

the property have been se cured; and

3. All impact fees have been paid.

Property owners permitted transient rental

use pursuant to this Policy shall lose their

privileges and retire their licenses prior

to May 2, 2003 upon :

ansfer of ownership of the property at

which th e transient rental activity takes

place; or

2. A combination of two of the any of the

following being recorded: Code Violations

as determined by the Hearing Officer and/9or

Sheriffs Field Contacts and/or substantiated

written letters of complaint from n eighbors

submitted and on record with the Village.

the property being determined by

nonappealable Final Order on more than two

(2) occasions to have violated the Village

Code.

7. After Islamorada adopted Ordinance 01 - 05, Petitioner

filed his petition chall enging Policy 1 - 2.4.7. After Petitioner

filed his petition, Islamorada adopted Ordinance 01 - 11, which

repealed the amendments contained in Ordinance 01 - 05 and

restored Policy 1 - 2.4.7 to its original form. However,

Islamorada adopted Ordinance 01 - 11 on Ju ly 24, 2001 -- three weeks

prior to the start of the hearing in this case. DCA had not yet

issued a notice of intent, and the amended plan language was

therefore largely irrelevant in this case.

8. For the same reasons, as explained in the Conclusions of

La w, that Petitioner may not challenge Policy 1 - 2.1.10, he may

not challenge Policy 1 - 2.4.7; Petitioner's challenge is limited

to the revisions contained in Ordinance 01 - 05.

9. The revisions contained in Ordinance 01 - 05 relax the

restrictions governing trans ient rentals, as contained in the

original Plan. In its original form, Policy 1 - 2.4.7 required

the cessation of transient rentals not in compliance with the

policy by the earliest of: a) May 1, 2003, b) the conveyance of

the rental property, or c) a comb ination of two Code violations

or verified neighborhood complaints. The revisions eliminate

the conveyance as an event terminating the right to enter into

transient rentals, so, after the adoption of Ordinance 01 - 05,

affected property owners could convey residences without

depriving their grantees of the right to make transient rentals

prior to May 1, 2003. The revisions also eliminate verified

neighborhood complaints as a basis for the loss, prior to May 1,

2003, of the right of affected property owners to make transient

rentals prior to May 1, 2003.

10. The ruling that Petitioner may not challenge Policy

1 - 2.4.7 in its original form moots Petitioner's case. It is

evident that Petitioner does not oppose the relaxation of

restrictions on transient rentals, as achieved by Ordinance

01 - 05.

11. In any event, data and analysis amply support the

decision of Islamorada to relax the restrictions that it had

imposed upon transient rentals. Neighborhood complaints supply

a nebulous standard, and substantiation of such c omplaints,

without defining the extent of verification, provides little

more guidance.

12. Legal counsel supported the elimination of the

restriction on conveyances. Given the close proximity of the

ultimate compliance deadline, the restriction on conveyanc es

probably did not substantially affect the market value of

affected properties, so Islamorada could find data and analysis

supporting the inclusion or exclusion of this condition

shortening the timeframe for compliance upon the sale of an

affected reside nce.

13. Even if Petitioner had timely challenged Policy

1 - 2.4.7, in its original form, data and analysis support the

planning decision of Islamorada to restrict transient rentals.

Transient rentals in residential neighborhoods facilitate a

constant churning of home occupants. To the extent that this

process displaces longer - term occupancy, transient rentals

impede the process by which neighborhoods and communities form

and residents in these neighborhoods and communities connect

with each other.

14. The commod ification of neighborhoods in the service of

tourism provides positive economic development to those property

owners seeking to make transient rentals. However, to some

extent, these economic gains are offset by those residents who

wish to sustain less ec onomically intense lifestyles. The

desires of such residents may be ill - served by local merchants

who price their goods to the more economically intense lifestyle

of the tourist or by the replacement of more prosaic retailers,

such as hardware stores, wit h the more ephemeral retailers, such

as t - shirt stores.

15. To find support in data and analysis, the community

envisioned by Islamorada in its Plan is not required to achieve

the highest and best use for the greatest number of owners of

property or the owners of the greatest area of property within

the village's planning jurisdiction. On this record, data and

analysis clearly support the planning decision initially made by

Islamorada in adopting Policy 1 - 2.4.7, as well as the planning

decision later made by I slamorada in relaxing the restrictions

contained in this policy.

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has

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

163.3184(9)(b) and (16)(f), Florida Statutes. (All references

to Sections are to Florida Statutes.)

17. Section 163.3184(1)(b) requires that the challenged

Plan provision be in compliance with, among other provisions,

Section 163.3177. Section 163.3177(8) requires that a plan be

supported by data, and Section 163.3177(6)( a) requires that plan

provisions governing future land uses be supported by various

data and analysis. Rule 9J - 5.005(2), Florida Administrative

Code, requires that the challenged Plan provision be supported

by data and analysis.

18. Section 163.3184(9)(a) req uires that a person

challenging a plan provision prove, to the exclusion of fair

debate, that the provision is not in compliance.

19. Section 163.3184(16)(f)1 limits the scope of a

challenge to a plan amendment. This provision describes the

process in which D CA initially finds a plan or plan amendment

not in compliance and the local government adopts a remedial

plan amendment that satisfies the original objections of DCA.

Section 163.3184(16)(f)1 directs the Administrative Law Judge to

realign any remaining p arties and proceed under Section

163.3184(9).

20. Contemplating the participation of parties that were

not parties to the original case commenced by DCA, Section

163.3184(16)(f)1 states in part: "Any affected person not a

party to the realigned proceeding m ay challenge the plan

amendment which is the subject of the cumulative notice of

intent by filing a petition with the agency as provided in

subsection (9)." Not only does Section 163.3184(16)(f)1 require

the use of the fairly debatable standard of proof, but it also

limits the new party to a challenge of the plan amendment.

Petitioner contends that he had waited to file a challenge to

the Plan until Islamorada had resolved DCA's initial challenge

in order to identify with greater certainty the Plan's appr oach

to transient rentals. This contention is not without its

appeal, but Section 163.3184(16)(f)1 clearly restricts

Petitioner's challenge to the amendments to the Plan because he

did not timely challenge any provisions of the Plan when it was

first adop ted.

21. Petitioner may thus not challenge Policy 1 - 2.1.10

because this policy was not the subject of Ordinance 01 - 05.

22. Petitioner may challenge the revisions to Policy

1 - 2.4.7 because it was revised by Ordinance 01 - 05. Although

revisions of specific scope mig ht permit an affected person to

challenge the entire plan provision, as amended, rather than

merely the plan amendments, the revisions here are clearly

severable. The revisions repeal conditions under which owners

of affected property would lose their rig ht to make transient

rentals prior to May 1, 2003.

23. Petitioner has failed to prove to the exclusion of

fair debate that the revisions relaxing the restrictions on

transient rentals, as set forth in Policy 1 - 2.4.7, are not

supported by data and analysis.

24. Eve n if the revisions were of such a scope as to allow

Petitioner to challenge amended Policy 1 - 2.4.7, in its entirety,

he has failed to prove to the exclusion of fair debate that

Policy 1 - 2.4.7, as amended, is not supported by data and

analysis.

RECOMMENDA TION

It is

RECOMMENDED that the Department of Community Affairs enter

a final order dismissing Petitioner's challenge to Ordinance

01 - 05 and finding the amendments contained in the ordinance to

be in compliance with Chapter 163, Part II, Florida Statutes .

DONE AND ENTERED this 16th day of November, 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 - 9 675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of November, 2001.

COPIES FURNISHED:

Steven M. Seibert

Secretary

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 100

Tallahassee, Florida 32399 - 2100

Cari L. Roth

General Counsel

Department of Community Affa irs

2555 Shumard Oak Boulevard, Suite 325

Tallahassee, Florida 32399 - 2100

Charles Rossignol

253 Tollgate Boulevard

Islamorada, Florida 33036

Nancy Stroud

Weiss Serota Helfman

Pastoriza & Guedes, P.A.

3107 Stirling Road, Suite 300

Fort Lauderdale, F lorida 33312

David L. Jordan

Deputy General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399 - 2100

John R. Herin, Jr.

Weiss, Serota, Helfman, Pastoriza & Guedes

2665 South Bayshore Drive

Suite 420

Miami, F lorida 33133

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 th e final order in this case.