01-003582 Thomas Lesick And Dagmar Lesick vs. Monroe County Status: Closed DOAH Final Order on Tuesday, January 22, 2002.

Summary: Monroe County denied request for determination of build-back rights in event of destruction of home on Money Key. Local ordinance provided for such rights if structure was used as primary residence. Appellant qualified and appeal was granted.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THOMAS LESICK and DAGMAR )

LESICK, )

)

Appellants, )

)

vs. ) Case No. 01 - 3582

)

MONROE COUNTY, )

)

Appellee. )

)

FINAL ORDER

This is an appeal fr om Monroe County Planning Commission

Resolution No. P32 - 01, which upheld by a 2 - 2 vote, the decision

of K. Marlene Conaway, Director of Planning and Environmental

Resources for the County, to deny the request of Appellants,

Thomas and Dagmar Lesick, for a determination that they have

density build - back rights under Section 9.5 - 268 of the County's

Land Development Regulations (LDRs).

APPEARANCES

For Appellants: Wayne LaRue Smith, Esquire

The Smith Law Firm

330 Whitehead Street

Suite 201

Key West, Florida 33050

For Appellee: Karen K. Cabanas, Esquire

Morgan & Hendrick

317 Whitehead Street

Key West, Florida 33040

STATEMENT OF THE ISSUE

Under Section 9.5 - 540(b) of the LDRs, the issue on this

appeal is whether the Planning Commission's decision should be

affirmed, reversed, or modified.

PRELIMINARY STATEMENT

Under Section 9.5 - 536 of the LDRs, jurisdiction was invoked

by filing of an Application for an Appeal to the Hearing Officer

with the Planning Commission on August 8, 2001. (Under Section

120.65(7), Florida Statutes (2001), Administrative Law Judges

(ALJs) of the Division of Administrative Hearings (DOAH) serve

as hearing officers for the County by contract.) The appeal was

forwarded to DOAH for assignme nt of an ALJ on September 4, 2001.

The indexed record - on - appeal was filed on September 10, 2001.

Appellants' Initial Brief was filed on September 28, 2001. The

County's Answer Brief was filed on October 19, 2001. After

granting of a motion for extensio n of time, Appellants' Reply

Brief was filed on November 19, 2001. Counsel for the parties

appeared in Key West on December 18, 2001, to present oral

argument by televideo conference. All written and oral

arguments have been considered, along with the en tire record - on -

appeal.

FINDINGS OF FACT

1. The Planning Commission's Resolution No. P32 - 01 lists

the following findings of fact in support of its decision, while

noting that the Lesicks' request was denied by a vote of 2 - 2:

1. [T]he Lesicks have a single - family

structure, on 5.24 acres on Money Key, in

the Offshore Island Land Use District.

. . . .

2. [I]t is the intent of the LDRs and the

2010 Plan that nonconforming uses should not

be rebuilt if destroyed.

3. Based on the Monroe County Cod e and the

Monroe County 2010 Plan, we find that the

"grandfather clauses" in Section 9.5 - 268 and

Policy 101.3.23 are intended to protect

existing residents of the County by

permitting the replacement of their homes if

destroyed and that Money Key currently is

not being used as a principal residence.

4. [T]he structure on Money Key is

currently being used for vacation rentals

and therefore does not qualify for the

exemption in Section 9.5 - 268 of the [LDRs],

even though the property had both a

homestead e xemption and a public lodging

license in 1996.

5. Therefore, we conclude that approval of

the applicant's request would violate the

intent of the Monroe County 2010

Comprehensive Plan and the [LDRs].

Other "findings of fact" listed in Resolution No. P32 - 01 clearly

were conclusions of law.

2. To the extent that they are findings of fact,

statements as to the intent of the County's Plan and LDRs are

not supported by competent substantial evidence. They are

contrary to the unambiguous language of th e County's Plan and

LDRs, as indicated in the Conclusions of Law, infra .

3. Otherwise, the findings of fact are supported by

competent substantial evidence. The evidence was that the

Lesicks occupied the structure on Money Key from on April 19,

1994, a nd claimed a homestead exemption beginning in 1995. They

applied for a Florida Public Lodging License on May 19, 1995,

and the structure was registered with an opening date of May 25,

1995. Until renting the structure in March 1996, they continued

to occ upy it (including on January 4, 1996, a critical date

under the Plan and the LDRs). After renting it in March 1996,

they ceased occupying it; however, they continued to claim

homestead exemption on the property through 1998.

CONCLUSIONS OF LAW

4. Secti on 9.5 - 535 of the County's LDRs provides:

"Hearing officers shall review by appeal planning commission

action when authorized by the Monroe County [LDRs] or chapter

19, Monroe County Code." Section 9.5 - 521(a) of the LDRs

provides for appeals to the plann ing commission "from any

decision, determination or interpretation made by any

administrative official with respect to [chapter 9.5 of the

LDRs]," except for administrative actions regarding floodplain

management; Section 9.5 - 521(f) provides for Section 9. 5 - 535

appeals to a hearing officer from decisions of the planning

commission. Under those provisions, there is jurisdiction over

this appeal.

5. Under Section 9.5 - 262 of the LDRs, density in the

Offshore Island District is restricted to 0.1 units per a cre.

Since Money Key is only 5.24 acres, the structure on it is

nonconforming as to density. This section is found in Article

VII, Land Use Districts; Division 3, Land Use Intensities.

6. Section 9.5 - 268 of the LDRs (also in Article VII,

Division 3) p rovides:

Notwithstanding the provisions of sections

9.5 - 262 and 9.5 - 263 [the latter of which is

not applicable here], the owners of land

upon which a dwelling unit or a mobile home

used as a principal residence prior to the

effective date of the plan was lawful on the

effective date of this chapter shall be

entitled to a density allocation of one (1)

dwelling unit for each such unit in

existence on the effective date of this

chapter.

7. The terms "effective date of the plan" and "effective

date of thi s chapter" are not clear because both the County's

comprehensive plan and its LDRs have been amended several times,

but the parties agree that, for purposes of the Lesicks'

request, the terms should be considered synonymous, and both

refer to January 4, 19 96. With this understanding, the rest of

the language of Section 9.5 - 268 is clear and unambiguous. As

owners of Money Key, where there was a dwelling unit used as a

principal residence prior to January 4, 1996, which was lawful

on that date, the Lesicks are entitled to a density allocation

of one (1) dwelling unit. See Southeastern Utilities Service

Co. v. Redding , 131 So. 2d 1,2 (Fla. 1957)(administrative

interpretation contrary to the "plain and unequivocal language"

of a statute is reversible as being "clearly erroneous"); Eager

v. Florida Keys Aqueduct Authority , 580 So. 2d 771, 772 (Fla. 3d

DCA 1991)(language neither ambiguous nor convoluted should be

applied as written, not interpreted to mean something else).

8. The County argues that provisions of its comprehensive

plan and other LDRs create ambiguity by revealing an intent to

disallow residential density under the Lesicks' facts. See

Pinecrest Lakes, Inc. v. Shidel , 795 So. 2d 191 (Fla. 4th DCA

2001)(development order must be consistent with c omprehensive

plan). But no such ambiguity arises from the provisions cited

by the County.

9. Under the County's 2010 Comprehensive Plan, the

Offshore Island District is in the Future Land Use category

called Residential Conservation. Policy 101.4.1 of the 2010

Plan states:

The principal purpose of the Residential

Conservation land use category is to

encourage preservation of open space and

natural resources while providing for very

low - density residential development in areas

characterized by a predo minance of

undisturbed native vegetation. . . . In

addition, Monroe County shall adopt [LDRs]

which allow any other nonresidential use

that was listed as a permitted use in the

[LDRs] that were [sic] in effect immediately

prior to the institution of the 2010

Comprehensive Plan (pre - 2010 LDR's), and

that lawfully existed on such lands on

January 4, 1996 to develop, redevelop,

reestablish and/or substantially improve

provided that the use is limited in

intensity, floor area, density and to the

type of use t hat existed on January 4, 1996

or limit to what the pre - 2010 LDR's allowed,

whichever is more restricted. Maximum

permitted densities shall be based upon the

results of the habitat analysis required by

Division 8 of the Monroe County [LDRs], as

amended.

There is nothing in Policy 101.4.1 that would extinguish the

Lesicks' entitlement to rebuild one dwelling unit on Money Key.

10. The County's 2010 Plan also includes an Objective

101.8, which states:

Monroe County shall eliminate or reduce the

frequ ency of uses which are inconsistent

with the applicable provisions of the land

development regulations and the Future Land

Use Map, and structure which are

inconsistent with applicable codes and

[LDRs].

Conversely, this objective would allow uses which are consistent

with the applicable provisions of the land development

regulations and the Future Land Use Map. Allowing the Lesicks

to rebuild one dwelling unit on Money Key is consistent with

Section 9.5 - 268.

11. Policy 101.8.4 states:

With the exce ption of non - conforming uses

located in the Mixed Use/Commercial Fishing

Future Land Use category, if a structure in

which a non - conforming use is located is

damaged or destroyed so as to require

substantial improvement, then the structure

may be repaired or restored only for uses

which conform to the provisions of the

Future Land Use category and zoning district

in which it is located.

Again, allowing the Lesicks to rebuild one dwelling unit on

Money Key conforms to the provisions of the Future Land Use

category and zoning district, including Section 9.5 - 268.

12. It also is noted that Pinecrest involved an action

brought under Section 163.3215, Florida Statutes, to enjoin a

local government from taking action on a development order "that

is not consis tent with the comprehensive plan . . . ." It was

not an action brought under Section 163.3213, Florida Statutes,

for administrative review of LDRs to ensure their consistency

with the comprehensive plan. Pinecrest does not determine the

result in an acti on under Section 163.3215 where local

government action on a development order is consistent with LDRs

which arguably are inconsistent with the comprehensive plan.

13. Section 9.5 - 141 of the LDRs states:

The purpose of this article is to regulate

and limit the continued existence of uses

and structures established prior to the

enactment of this chapter that do not

conform to the provisions of this chapter.

Many nonconformities may continue, but the

provisions of this article are designed to

curtail su bstantial investment in

nonconformities and to bring about their

eventual elimination in order to preserve

the integrity of this chapter.

This is a statement of purpose for Article V, Nonconformities.

14. Section 9.5 - 143(f)(2) of the LDRs (also in Article V,

Nonconformities) states:

Damage or Destruction: Except as provided in

section 9.5 - 63 if a structure in which a

nonconforming use is located is damaged or

destroyed so as to require substantial

improvement, then the structure may be

repaired or restored only for uses which

conform to the provisions of the land use

district in which it is located.

It is not clear that this provision applies to density, as well

as uses. But even if it does apply to density, allowing the

Lesicks to rebuild one dwelling unit on Money Key conforms to

the provisions of the land use district, including Section 9.5 -

268.

15. The County argued in its Answer Brief that the Lesicks

have no build - backs rights because, under Section 9.5 - 241(6),

vacation rental use is no nconforming in Offshore Island zoning

district unless the use was "established (and held valid state

public lodging establishment licenses) prior to January 1,

1996." But in oral argument, the County seemed to concede that

the Lesicks' vacation rental use was established on May 25,

1995. Even if the Lesicks' vacation rental use were

nonconforming under Section 9.5 - 241(6), this would not prohibit

build - back of the dwelling unit. It might prohibit use of a

rebuilt dwelling unit for vacation rental, but it would not

prohibit other permissible uses in Offshore Island District,

such as use as a primary residence.

DISPOSITION

Based on the foregoing Findings of Fact and Conclusions of

Law, the appeal is granted, and the decision of the County

Planning Commissi on is reversed.

DONE AND ORDERED this 22nd day of January, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalache e 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 22nd day of January, 2002.

COPIES FURNISHED :

Karen K. Cabana s, Esquire

Morgan & Hendrick

317 Whitehead Street

Key West, Florida 33040

Wayne LaRue Smith, Esquire

The Smith Law Firm

330 Whitehead Street

Suite 201

Key West, Florida 33050

Judith Chambers, Planning Commission Coordinator

County of Monroe, Planning Department

2798 Overseas Highway

Suite 410

Marathon, Florida 33050 - 2227