02-001578 Greg Steryou And Alice Steryou vs. Monroe County Planning Commission Status: Closed DOAH Final Order on Tuesday, September 3, 2002.

Summary: Monroe County Planning Commission decision to deny amendment to minor conditional use for proposed 3,658 square foot indoor restaurant was not supported by competent substantial evidence.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GREG STERYOU and ALICE STERYOU, )

)

Appellants, )

)

vs. ) Case No. 02 - 1578

)

MONROE COUNTY PLANNING )

COMMISSION, )

)

Appellee. )

)

FINAL ORDER

Appe llants, Greg and Alice Steryou (Appellants or Steryous),

seek review of Monroe County Planning Commission (Commission)

Resolution No. P 04 - 02, denying their application for an

amendment to a minor conditional use to construct a 3,658 square

foot restaurant to replace a restaurant (Knuckleheads) destroyed

in 1998 by Hurricane Georges. Resolution No. P 04 - 02 is dated

March 13, 2002, and this appeal was timely filed. The Division

of Administrative Hearings, by contract, and pursuant to

Article XIV, Section 9 .5 - 535, Monroe County Code (M.C.C.), has

jurisdiction to consider this appeal.

I.

The Steryous raise several issues on appeal: (1) whether

there is competent substantial evidence to support the

Commission's Findings of Fact related to the Commission's de nial

of the requested amendment to a minor conditional use;

(2) whether the Commission violated the Steryous' due process

rights when the Commission considered and decided the Steryous'

two applications (parking variance and amendment to a minor

conditiona l use) on different dates; (3) whether the Commission

is equitably estopped from denying the amendment to a minor

conditional use, after granting the parking variance; and,

(4) whether the Commission has departed from the essential

requirements of law by c ausing a de facto revocation of the

parking variance when it denied the amendment to a minor

conditional use.

The Steryous filed an Initial Brief and a Reply Brief and

the Commission filed an Answer Brief. Oral argument was held on

August 19, 2002, and su pplemented on August 26, 2002.

II.

The Steryous own Lots 1 and 2 located on 3100 Overseas

Highway, in Saddlebunch Keys, Monroe County, Florida. The total

area of the two lots is 18,259 square feet, or approximately 0.42

acres. The Steryous purchased thes e lots in 1996. The lots are

vacant because the original restaurant built in 1956, was

destroyed by Hurricane Georges in 1998, and demolished and

removed in 2000, after Monroe County determined that the

restaurant could be rebuilt.

It is not disputed th at the Steryous may build a restaurant

on the lots as a minor conditional use. However, the size and

nature of the proposed restaurant are at issue in this

proceeding.

The former restaurant offered indoor seating (3,063 square

feet, see Planning Commiss ion Resolution No. P 04 - 02, paragraph

6), and outdoor seating. The proposed restaurant is considered

to be a "quality restaurant," different from, and, as found by

the Commission, "not consistent with the [former] neighborhood

restaurant . . . and the com munity character of the immediate

vicinity." Id.

The Steryous propose to construct a 3,658 square foot,

enclosed seating area restaurant on the two lots. They wish to

serve liquor, in addition to beer and wine, formerly served. In

order to satisfy state liquor law, the new restaurant must have

150 seats under roof.

In order to accommodate the planned design of the restaurant

on the two lots, the Steryous need a variance from the required

number of off - street parking spaces (reduced from 55 to 34) and

app roval of an amendment to a minor conditional use, which

includes a request for a waiver of the yard setback requirements.

The Steryous filed two separate, but related, applications with

the Monroe County Planning Department.

The Commission approved the application for a parking

variance during the January 2002 meeting. However, the

Commission denied the application for an amendment to a minor

conditional use during the February 2002 meeting, which is the

subject of this appeal.

III.

The Steryous' lots a re located in the Sub Urban Commercial

(SC) land use district and the Future Land Use Map (FLUM)

designation is Mixed Use/Commercial (MC). 1

The Steryous' lots are bordered to the south by an unnamed

right - of - way that terminates on a body of water, i.e. , Su garloaf

Bay, which is adjacent to and west of these lots. Two vacant

lots are located directly south of the right - of - way and share the

same land use designation and are located in the same land use

district.

There are 12 lots directly east of the Steryo us' lots, and

adjacent to West Circle Drive, and another eights lots to the

south of these lots which also have the same land use designation

and are located in the same land use district. (Two vacant

commercial parcels are located directly east of the St eryous'

lots, and beyond that is Bay Point Pizza and Baby's Coffee.) Bay

Point Public Park is located directly south of these 20 lots.

The entrance to a trailer park and single family homes is a

block south of the Steryous' lots.

U.S. Highway 1 is to the north of the Steryous' lots. There

is undeveloped land (Saddlebunch Keys) to the north and northeast

of U.S. Highway 1.

Article VII, Section 9.5 - 269, M.C.C., provides that the

maximum square footage for a medium - intensity commercial retail

use is 4,565 sq uare feet (18,259 x 0.25). The maximum floor area

ratio for a medium - intensity commercial retail proposed use in a

Sub Urban Commercial District is 0.25. Id. (Low intensity is

0.35 and high intensity is 0.15. Id. ) The floor area ratio in

this case is 0.20 (3,658 / 18,259), below the maximum floor area

ratio. 2

IV.

While not the subject of this appeal, although interrelated,

on October 25, 2001, the Steryous filed an application with the

Monroe County Planning Department, requesting a variance from the

" off - street parking" requirements of Article VII, Section 9.5 -

351(c), M.C.C., which requires that a sit - down restaurant

maintain 15.0 off - street parking places per 1,000 gfa. (A 3,658

square foot sit - down restaurant requires approximately 55 off -

street par king spaces.) In this application, the Steryous

requested a variance for 21 spaces from the 55 spaces required by

Section 9.5 - 351(c). (A drive - in/fast food restaurant requires

17.5 parking spaces per 1,000 gfa. Id. )

The Commission has the authority to g rant or deny a variance

pursuant to Article XII, Section 9.5 - 523, M.C.C., which requires

consideration of whether five specific conditions are met by the

applicant, including whether there is a showing of good and

sufficient cause; whether the failure to g rant the variance would

result in exceptional hardship to the applicant; whether the

granting of the variance will result in additional threats to

public expense which would not otherwise occur, create a

nuisance, or cause fraud or victimization of the pub lic; whether

unique or peculiar circumstances or conditions apply to the

property, but which do not apply to other properties in the same

land use district; and whether the granting of the variance would

confer upon the applicant any special privilege deni ed by these

regulations to other properties in the same land use district.

In their application, the Steryous provided information regarding

each of these conditions.

Additionally, the Commission, in determining whether these

conditions for a variance ar e met, is required to consider

several other factors including, but not limited to, the physical

characteristics of the proposed construction for which a variance

is requested; whether it is possible to use the property without

the variance; and the compat ibility of the proposed variance in

light of existing and permanent development in the immediate

area. Id.

Among other things, this application includes an aerial

photograph of the area, a copy of the relevant portions of Monroe

County's land use map, an amended plat of the area, photographs,

a survey, a proposed site plan, and a response to each criteria.

As will be discussed in more detail below, during a regular

meeting held on January 9, 2002, the Commission conducted a

public hearing to consider the application for a parking variance

and the application for an amendment to a minor conditional use.

After hearing evidence, including a staff Memorandum (Memorandum

I) of December 21, 2001, which analyzes the parking variance

request and the application for an amendment to a minor

conditional use, the Commission approved the parking variance

request by a vote of three to two, with Commissioners P. Morgan

Hill, Jerry Coleman, and Alicia Putney voting in the affirmative,

and Chair David C. Ritz and Vice - Cha ir Denise Werling voting in

the negative. The Commission's decision was reduced to writing

and issued as Planning Commission Resolution No. P 03 - 02, and

signed by the Commission Chair on March 13, 2002. The Commission

continued consideration of the appli cation for an amendment to a

minor conditional use until the February 2002 meeting. (The

parties agreed to supplement the Record on Appeal with a copy of

the parking variance application and Resolution No. P 03 - 02.)

In support of its decision to approve t he parking variance,

the Commission made the following Findings of Fact and

Conclusions of Law:

1. Based on the Site Plan submitted by the

applicant, we find that Hurricane Georges

destroyed the restaurant that previously

existed and the applicant's propo sed

development is to be brought into compliance

with Monroe County Code to the greatest

extent practicable. Therefore, we conclude

that the applicant has shown good and

sufficient cause.

2. Based on the application submitted, we

find that granting this variance would cause

no fraud, victimization of the public,

threats to the public expense, or public

nuisance.

3. Based on the application submitted, the

site in question is unique in orientation

with one side fronting the water. Therefore,

we find t hat there are particular conditions

which apply to the property and not to others

in the district.

4. Based on the application submitted, we

find the granting of this variance would

bring the proposed restaurant into compliance

with the code, and to ap prove this variance

would not grant a special privilege to this

development. . . .

V.

In November of 2001, the Steryous filed an application for

an amendment to a minor conditional use. As in the case of the

first application, the Steryous request ed permission to construct

a 3,658 square foot restaurant on the two lots and noted that

site improvements included construction of 34 parking spaces,

landscaping, including buffer, planting and parking lot

landscaping, stormwater management provisions, an d a sewage

treatment facility.

The Steryous also requested waivers to the minimum yard

setback requirements. The front yard setback in the Sub Urban

Commercial District shall not be less than 25 feet. Combined

side yard setbacks must be a total of 15 feet, with one side yard

of ten feet where there are two side yards. The rear yard

setback shall be a minimum of ten feet. See Article VII, Section

9.5 - 281, M.C.C. See also Article III, Section 9.5 - 66, M.C.C. for

the authority to waive minimum yard setback requirements.

The first requested waiver was to permit a front yard

setback (off U.S. Highway 1) of ten feet to accommodate eight

parking spaces (including two handicapped spaces), and another

waiver to permit a rear yard setback of five feet from the

required ten feet to accommodate an additional 11 parking spaces.

The rear yard setback waiver is also necessary to allow a 10' by

23' loading area. (For the size of the proposed restaurant,

Section 9.5 - 352 requires one 10' by 25' loading and unl oading

space.)

Without approval of the requested setback waivers, the

Steryous would only be able to provide 15 parking spaces. See

Resolution No. P 04 - 02, paragraph 5.

The Commission has the authority to approve applications for

conditional use p ermits. Article III, Section 9.5 - 62, M.C.C. In

part, "the planning commission is empowered, within its review of

conditional use applications, to modify or to deny any

application which may not be appropriate within any particular

planning area in the co ntext of surrounding properties and

neighborhoods as well as on grounds of insufficient submittals

for adequate review or contrary to objectives and goals of the

comprehensive plan." Article III, Section 9.5 - 63(c), M.C.C. In

particular,

When considering applications for a

conditional use permit, the director of

planning and the planning commission shall

consider the extent to which":

(a) The conditional use is consistent with

the purposes, goals, objectives and standards

of the plan and this chapter;

(b) The conditional use is consistent with

the community character of the immediate

vicinity of the parcel proposed for

development;[ 3 ]

(c) The design of the proposed development

minimizes adverse effects, including visual

impacts, or [sic] the proposed use on

adjacent properties;

(d) The proposed use will have an adverse

effect on the value of surrounding

properties. . . .

Article III, Section 9.5 - 65(a) - (d), M.C.C. (emphasis in

original). An annotation appears in the Monroe County Code to

Section 9.5 - 65, which indicates that subsection (d) was changed

from "adjacent property" to "surrounding properties."

Further,

[t]he director of planning or the planning

commission may approve a conditional use

permit that modifies or waives the minimum

yard requirements set out in section 9.5 - 281

of this chapter provided that the director or

commission expressly finds that the

modification or waiver will enhance the

ability of the proposed conditional use to

meet the general standards set out in section

9.5 - 65 for all conditional uses.

Article III, Section 9.5 - 66, M.C.C. (emphasis added.)

Additionally,

[t]he director of planning or the

planning commission may attach such

conditions to a conditional use permit as are

necessary to carry out the purpo ses of the

plan and to prevent or minimize adverse

effects upon other property in the

neighborhood, including but not limited to,

limitations on size, bulk and location;

requirements for landscaping, lighting and

provision of adequate ingress and egress an d

off - site but project - related improvements;

duration of the permit; hours of operation;

and mitigation of environmental

impacts. . . .

Article III, Section 9.5 - 67, M.C.C.

Subject to satisfying applicable Monroe County Code

Standards, the Monroe County C ode permits commercial retail

medium - intensity uses or minor conditional uses in the Sub Urban

Commercial District (SC). See , e.g. , Article VII, Sections 9.5 -

4(C - 14) and 9.5 - 235(b)(1)a., M.C.C.

The purpose of the Sub Urban Commercial land use

district i s "to establish areas for commercial uses

designed and intended primarily to serve the needs of

the immediate planning area in which they are located.

This district should be established at locations

convenient and accessible to residential areas without

use of U.S. 1." Article VII, Section 9.5 - 206, M.C.C.

As noted above, the total area of the Steryous' lots is

18,259 square feet. Article VII, Section 9.5 - 269, M.C.C.,

provides that the maximum square footage for a medium - intensity

commercial retail use is 4,565 square feet. (Here, the Steryous

propose a 3,658 square foot sit - down restaurant.) The maximum

floor area ratio for a medium - intensity commercial retail

proposed use in a Sub Urban Commercial District is 0.25. Id.

The proposed floor area ratio in this case is 0.20, below the

maximum floor area ratio. See page 5, and footnote 2, supra .

It is undisputed that the front yard for the lots borders on

U.S. Highway 1 and includes a setback of 25 feet. The Steryous

are requesting a variance of 15 fee t in part to accommodate eight

parking spaces. This leaves a ten - foot front yard setback. The

west side setback, which faces the Bay, is 20 feet and no setback

waiver is requested. The rear yard setback is ten feet and the

Steryous are requesting a waiv er of five feet, which would leave

a rear yard setback of five feet. The combined side yard

setbacks must be a total of 15 feet. The proposed setback for

the side yard, which borders West Circle Drive, is planned to be

three feet (accommodating 11 parkin g spaces), with a combined

side yard setback of 23 feet, when combined with the 20 feet

which abuts the Bay. See Resolution No. P 04 - 02, paragraphs 2

and 5 (yard setback waivers needed to develop 19 of the 34

parking spaces required by the parking varianc e).

On December 21, 2001, Robert Will, Planner, and Dianna

Stevenson, Biologist, prepared Memorandum I to the Commission

which analyzes the merits of the two applications, i.e. , parking

variance and amendment to a minor conditional use. The authors

will be referred to collectively as staff.

Staff noted that "[t]he community character of the immediate

vicinity is low density commercial to the northeast along U.S. 1

and a trailer park and single family residential to the

southeast. Also located in the s outheast is Bay Point Public

Park. Directly behind the site are two vacant lots, and directly

to the west of the site is Sugarloaf Bay." Staff indicated that

"[t]he proposed Knuckleheads is to replace the 3,063 square foot

structure [enclosed seating are a] and 1,860 square feet of

outdoor seating which previously existed on the site."

Memorandum I at page 3 of 11. Compare with Resolution No. P 04 -

02, paragraph 6, finding that the prior restaurant had 3,063

square feet of enclosed seating area.

Staf f recommended that the applications were in compliance

with several provisions of the Monroe County Code and not in

compliance with others. In particular, staff determined that the

applications were not in compliance without the setback waivers

for the mi nimum yard requirements pursuant to Section 9.5 - 281.

In support, staff stated:

The front yard setback in the SC district

shall be not less than 25 feet, combined side

yard setbacks must be a total of 15 feet, and

the rear yard setback shall be 10 feet. T he

proposed development provides a front yard

set back of 10 feet, combined side yard

setbacks of 23 feet, and a rear yard setback

of 5 feet. The applicant wishes to request a

setback waiver from the Planning Director

pursuant to Section 9.5 - 66. The requ ested

waiver would allow the applicant to provide

an additional 8 parking spaces in the front

yard (including two handicapped spaces) and

an additional 11 parking spaces in the rear.

The rear yard setback waiver is also

necessary to allow the 10' by 23' f oot

loading area required by Section 9.5 - 352.

The Director of Planning and Environmental

Resources will approve the setback waiver

with an increase of landscaping to mitigate

any impacts on the community character.

Without the setback waiver the applican t will

only be able to provide 15 parking spaces.

Memorandum I, page 4 of 11. Staff also found that the

applications were not in compliance with the off - street parking

requirements of Section 9.5 - 351, and stated:

The size of the required parking spaces m ust

be a minimum of 8 feet, 6 inches in width and

a minimum of 18 feet in length. The required

number of off - street parking spaces must be

15.0 per 1,000 gross floor area of the

structure. The sit down, quality restaurant

that the applicant proposes to b uild will be

3,658 square feet in size, requiring by code

to have 55 parking spaces. The proposed site

plan indicates 34 parking spaces, including

the required two handicapped accessible

spaces. All of the proposed spaces are of

the correct size, but 8 s paces are located

partially within the front yard setback and

11 are within the rear yard setback. A

setback waiver has been requested and is

addressed in the analysis of Section 9.5 - 281.

Without the setback waiver from the Director

of Planning, only 15 spaces will be provided.

A variance for the remaining 21 parking

spaces has been requested and will be heard

by the Planning Commission on their January

9, 2002 regular meeting. The Overseas

Heritage Bike Trail runs in front of the site

and the restauran t will provide a bike rack

as illustrated on the site plan.

Memorandum I, page 6 of 11.

Staff also stated that the applications are not in

compliance with the number and size of loading spaces, parking

lot landscaping, street trees, scenic corridor and buffer yards.

Id.

Staff stated that the applications are in compliance with

the traffic study required by Section 9.5 - 426, pending submission

of additional materials requested by the traffic consultant and

staff noted:

If a project is expected to generate between

250 and 500 trips per day, a traffic report

is to be submitted for approval. A Level III

traffic report prepared by T.A.P., Inc. was

submitted in October 2000 and a revised

traffic report was submitted in August 2001.

Both reports were sent to the Monroe County

traffic consultant for analysis and approval.

In the initial review of the traffic report

there was a discrepancy in the floor area of

the proposed restaurant. The traffic

consultant also requested further information

for his an alysis including a site plan

showing vehicle maneuverability and site

triangles, an illustration of adjacent

driveways within 700 feet of the project,

extension of trip length to include Big Pine

Key, and the reserve capacities of all

affected segments of the road. T.A.P. Inc.

has responded to these issues in a letter

dated November 2, 2001. In a response letter

to T.A.P. Inc. dated November 14, 2001 the

traffic consultant recommended approval of

the traffic report on the condition that a

site plan indica ting delivery vehicle and

garbage truck maneuverability be provided and

the trip distribution table be updated with

the revised trip generation and trip lengths.

Memorandum I, page 7 of 11.

Furthermore, staff determined that the applications were

con sistent with the requirements of Section 9.5 - 65(b), in that

the minimum conditional use is consistent with the character of

the immediate vicinity of the parcel proposed for the development

in accordance with the following analysis: "The site of the

propo sed development fronts on U.S. 1 and is bounded by Sugarloaf

Bay on the southwestern side. A block behind the site is the

entrance to two large residential neighborhoods and Bay Point

Park. The proposed medium - intensity commercial use is consistent

with the community character of the area." Id. at page 8 of 11.

However, staff determined that the applications were not

consistent with Section 9.5 - 65(c), in that the design would not

minimize adverse effects, including visual impacts, of the

proposed use on adjacent properties and staff noted as follows:

The site is too small to accommodate the size

of the proposed restaurant given the parking

requirement. While the size of the

restaurant is within the required FAR of

0.25, the site will not support the

c orresponding parking requirement for the

size and intensity of the structure. The

applicant provides 34 of the 55 required

parking spaces and requests a variance for

the remaining 21 spaces. Of the 34 parking

spaces provided, 19 of them are partially

wi thin the rear and front yard setbacks and

require a waiver from the Planning Director

to be permitted. If the waiver is not

granted, only 15 parking spaces will be

available on site. The restaurant is

proposed to have 150 seats in order to

receive a lice nse to sell liquor on the

premises. Assuming that ninety percent of

the patrons arrive by car, 4.1 persons must

ride in each vehicle to fill 150 seats. If

the required 55 spaces were provided only 2.5

persons would need to arrive per vehicle. It

is ass umed that the remaining ten - percent of

patrons would either ride a bicycle or walk

to the establishment. The above calculations

do not factor in the parking that is required

for the staffing of a restaurant seating 150.

Additional materials have been req uested by

the traffic consultant including a diagram of

how delivery and trash vehicles could

maneuver on the site, creating an additional

site design concern. Based on the lack of

available parking and the concern of larger

vehicle maneuverability, the d esign of the

site will result in adverse effects on the

adjacent properties due to patrons parking on

the street, bike path, or in adjoining

neighborhoods.

Id. at page 8 of 11. Staff also stated that "[t]he proposed

project may have an adverse effect on adjoining property values

because of the parking overflow that may occur if the restaurant

is full. However, the site [the former restaurant] has

previously had a more intense commercial use with significantly

less landscaping." Id. at page 8 of 11. See Article III,

Section 9.5 - 65(d), M.C.C.

The staff recommended denial for the following reasons:

1. The project is not in compliance with the

off - street parking requirements of section

9.5 - 351. The 34 provided spaces are not

adequate to accommodate the p roposed use of a

sit - down restaurant, which requires 55

parking spaces.

2. The design of the project places an

unnecessary burden on the surrounding

properties because of the lack of parking

available on - site and the maneuverability of

delivery and tra sh vehicles.

VI.

Commission Meetings

January 9, 2002, Meeting

On January 9, 2002, the Commission met. See pages 5 - 8,

supra . According to the transcript of the meeting, it appears

that the applications were referenced as agenda items 6 (parking

var iance) and 7 (amendment to a minor conditional use).

Ms. Marlene Conaway, the Planning Director, in response to a

question from Chair Ritz, indicated that it was fine with her for

the Commission to consider both items together "because there is

one staff report that needs to talk about the whole thing and -- ."

Mr. Will discussed the staff Memorandum I with the

Commission. Mr. Will initially discussed the parking variance

application and among other things, advised that "to approve this

variance would be t o grant a special privilege not shared by

other properties."

Mr. Will also discussed the merits of the second application

for the minor conditional use and reiterated the position taken

by staff in the December 21, 2001, Memorandum. In particular,

Mr. W ill noted:

* * *

Staff is concerned that with only 34

parking spaces, 19 of which are partially

within the rear and front - yard setbacks which

require a waiver from the planning director,

with a restaurant proposed to have 150 seats

in order to receive the appropriate alcohol

license, then with the 34 spaces that are

there, and assuming that 94, 90 percent of

the patrons arrive by car, about four people

per car could be accommodated and they

wouldn't have adequate parking. And that

doesn't include staff fo r the restaurant.

So based on lack of available parking,

and also concern of larger vehicle

maneuverability, the design of the site would

result in adverse effects on adjacent

properties due to patrons parking on the

street, on the bike path, or in the adjoining

neighborhood.

* * *

The Steryous were represented by Mr. Donald L. Craig,

A.I.C.P.

Mr. Craig advised, in part, that the proposed restaurant

would be approximately 3,650 square feet "the absolute minimum

that [their] architect could come up wi th to meet the

requirements of obtaining a liquor license. It requires 150

seats under roof, according to state law."

Mr. Craig indicated that the Steryous had prepared and

obtained responses (637 signatures) to petitions (prepared by the

Steryous) fro m neighbors and others requesting their input as to

whether they would support a restaurant in its new location with

a variance of 21 parking spaces and approval of a minor

conditional use. The record contains these petitions and letters

of support.

According to Mr. Craig, 59 percent of those who were polled

on Bay Point (south of the Steryous' lots) said that they would

continue to, in the future, come to the restaurant by either foot

or bicycle, or by car pool. The record also contains letters of

support for the applications from residents of the area. There

is no opposition from any person who submitted a letter, or

signed a petition, or who testified during the January 9, 2002,

Commission meeting. Several local residents testified in favor

of the applications. No one from the public testified in

opposition to the applications.

Ms. Conaway reiterated staff's position that "[t]he site is

too small for the proposed use." She recommended that the

applicants look at adjacent lots in order to obta in more room for

parking. She "was certainly willing to recommend setback waivers

so we could get as many cars as possible on that site, because

without those waivers, the size of the restaurant would become a

very small drop - through restaurant instead of a place where

people could come." But, she believed that "this large of a

waiver is just too much."

In response to several questions posed by Commissioner

Putney, Mr. Will and Ms. Conaway indicated that while the actual

building for the restaurant wou ld be larger than its predecessor,

the outdoor seating was eliminated.

Mr. Craig also noted that the Steryous wanted to make the

restaurant a quality restaurant and to upgrade it from selling

beer and wine to having a liquor license. The problem is tha t in

order to obtain a liquor license, the restaurant must have a

minimum of 150 seats. Mr. Craig also indicated that unlike its

predecessor, the proposed restaurant would be open only for lunch

and dinner, thus reducing the breakfast trade traffic that h ad

occurred previously.

After more discussion, Commissioner Putney was still

concerned with the number of parking spaces being given away if

the parking variance was approved. The other commissioners were

equally divided with Commissioners Hill and Col eman favoring the

applications and Chair Ritz and Vice - Chair Werling being opposed.

After hearing further argument, Commissioner Coleman made a

"[m]otion to grant" and seconded by Commissioner Hill. Chair

Ritz announced that there was "a motion and a sec ond to grant the

variance." After a roll call vote, Commissioners Hill, Coleman,

and Putney voted in favor of the motion to grant the parking

variance and Chair Ritz and Vice - Chair Werling voted against the

motion. The motion passed. See page 8, supra , for the

Commission's written Findings of Fact and Conclusions of Law --

Resolution No. P 03 - 02.

After the vote, Mr. Wolf (Commission counsel) indicated on

the record that there had been no vote on the minor conditional

use. Further discussion ensued.

Th ere was an initial motion and a second to approve item 7,

relating to the conditional use and the setback waivers.

Ms. Conaway reminded the Commission that "staff had recommended

denial because of the parking." She further stated "[s]o what

you're doing is approving it with conditions and we don't have

conditions here. We need to -- we need to state the conditions

that are necessary. That would be part of the approval. And I

imagine they're the normal ones; the storm water management, the

permit from t he Aqueduct Authority. You don't need a permit from

the -- [fire marshal]." Landscaping would also have to be

approved by Ms. Conaway.

Commissioner Coleman noted that if the parties could not

agree on the conditions, that the matter would return to the

Commission and that that was part of Commissioner Coleman's

motion. Ms. Conaway also indicated that they needed more traffic

information. Ms. Conaway also noted that there was an issue

relating to the reduction of the loading platform.

Commissioner Co leman then withdrew his prior motion to

approve the minor conditional use and moved to continue the

matter pending the Steryous working with Ms. Conaway and

returning to the Commission on February 6, 2002. The motion was

seconded by Commissioner Hill and the motion was approved

unanimously.

VII.

February 6, 2002, Meeting

On January 18, 2002, Planner Will and Biologist Stevenson

submitted a second and revised Memorandum (Memorandum II) to the

Commission in light of the anticipated meeting date of

Februar y 6, 2002.

Staff found the application in compliance with respect to

the purpose of the Sub Urban Commercial District. Memorandum II,

page 3 of 10. Staff stated:

The purpose of the SC district is to

establish areas for commercial uses designed

and int ended primarily to serve the needs of

the immediate planning [sic] area in which

they are located. This district should be

established at locations convenient and

accessible to residential areas without the

use of U.S. 1. The parcel of the proposed

resta urant is close to two large residential

areas, Bay point Trailer Park and Bay Point

Subdivision who would not have to use U.S. 1

to travel to the site. Knuckleheads would be

the only sit - down restaurant in the area,

providing a service for which residents

currently have to travel out of the

neighborhood. Additionally, the site fronts

the Overseas Heritage Bike Trail.

Id.

Staff found the application in compliance for minor

conditional uses, Section 9.5 - 235(b)(1), stating, in part, that

"[t]he proposed restaurant is expected to generate 322 average

daily trips, or 88 per 1,000 square feet of development,

classifying it as medium intensity. The proposed development is

3,658 square feet, between the threshold of 2,500 and 10,000

square feet permitted as a minor conditional use. Access to the

restaurant will not be via U.S. 1 but rather an existing curb cut

on West Circle Drive." Id. See also footnote 2.

Staff determined that the project was in compliance with the

non - residential intensity of use a nd open space requirements set

forth in Section 9.5 - 269.

Staff noted that the application for conditional use was not

in compliance without a setback waiver from the minimum yard

setback requirements of Section 9.5 - 281, and stated:

The front yard setback i n the SC district

shall be not less than 25 feet, combined side

yard setbacks must be a total of 15 feet, and

the rear yard setback shall be 10 feet. The

proposed development provides a front yard

set back of 10 feet, combined side yard

setbacks of 23 fee t, and a rear yard setback

of 5 feet. The applicant wishes to request a

setback waiver from the Planning Commission

pursuant to Section 9.5 - 66. The requested

waiver would allow the applicant to provide

an additional 8 parking spaces in the front

yard (in cluding two handicapped spaces) and

an additional 11 parking spaces in the rear.

The Director of Planning and Environmental

Resources requested an increase of

landscaping to mitigate any impacts on the

community character. Without the setback

waiver the applicant will only be able to

provide 15 parking spaces.

Memorandum II, pages 4 of 10. Staff also stated that the

application was now in compliance with the off - street parking

requirements of Section 9.5 - 351 because the parking variance had

been granted by the Commission on January 9, 2002.

Further, staff concluded that the application was now in

compliance with the number and size of loading spaces as provided

in Section 9.5 - 352 and stated:

The proposed development is required to have

one 10' by 25' loading zone on the site. In

the south - east corner of the parking lot, a

10' by 23' zone was provided within the

setback area. The applicant agreed to limit

delivery times to before 11:00 AM, before the

restaurant is open to the public. This would

be a condition on the building permit.

Memorandum II, pages 6 of 10. Staff also stated that the

application was in compliance with the parking lot landscaping

requirements, street trees, scenic corridor, and bufferyards.

(The applicant also added another par king space (increased from

34 to 35 parking spaces) to accommodate the need for loading zone

space.) Id. ("No structure or land which abuts U.S. 1, SR 905

or SR 940, a boundary between two (2) different land use

districts, or fronts on a major street sha ll hereafter be

developed, used or occupied unless a scenic corridor or

bufferyard is provided in accordance with the requirements of

this division." Article VII, Section 9.5 - 375, M.C.C. Bufferyard

standards are set forth in Section 9.5 - 379.)

Staff also noted that the traffic report, as amended and

updated, was in compliance with the requirements of Section 9.5 -

426. Staff stated:

If a project is expected to generate between

250 and 500 trips per day, a traffic report

is to be submitted for approval. A Level III

traffic report prepared by T.A.P., Inc. was

submitted in October 2000 and a revised

traffic report was submitted in August 2001.

Both reports were sent to the Monroe County

traffic consultant for analysis and approval.

In a response letter to T .A.P. Inc. dated

November 14, 2001 the traffic consultant

recommended approval of the traffic report on

the condition that a site plan indicating

delivery vehicle and garbage truck

maneuverability be provided and the trip

distribution table be updated with the

revised trip generation and trip lengths.

The requested information was received by the

Planning Department on January 18, 2002 and

was also sent to the traffic consultant.

Memorandum II, page 8 of 10 (emphasis added.)

Staff maintained its earlier position that the "proposed

medium - intensity commercial use is consistent with the community

character of area" and continued to suggest that "[t]he proposed

project may have an adverse effect on adjoining property values

because of the parking overflow t hat may occur if the restaurant

is full. However, the site [the former restaurant] has

previously had a more intense commercial use with significantly

less landscaping." Memorandum II, page 8 of 10. See Article

III, Section 9.5 - 65(b) - (d), M.C.C. Howeve r, staff revised its

recommendation regarding compliance with Section 9.5 - 65(c) and

stated:

The Planning Commission has granted a

variance for 21 parking spaces, therefore the

provided 34 parking spaces are adequate. The

building is designed to have all of the

seating indoors which will reduce the amount

of noise affecting the surrounding

neighborhood. The buffer and parking lot

landscaping will greatly enhance the site to

minimize adverse effects on adjacent

properties.

Memorandum II, page 8 of 10.

With respect to the requirements of Section 9.5 - 65(e), staff

stated:

The traffic study submitted by the applicant

states that the proposed restaurant will

generate 256 less trips than the previous

establishment. In a letter dated

November 14th, 200 1 Raj Shanmugam P.E.

traffic consultant for Monroe County, concurs

with this statement. According to the 2001

Monroe County Public Facilities Report, the

level of service (LOS) for segment four of

U.S. 1 (in which the site is located) has

sufficient capac ity to maintain the proposed

development.

Id.

In the February 6, 2002, Memorandum II, staff recommended

approval of the amendment to a minor conditional use (with

conditions) and in support made the following Findings of Fact

and Conclusions of Law :

* * *

2. Based on Section 9.5 - 66 of the Monroe

County Code, the Planning Commission can

approve a waiver to the minimum yard

requirements (Section 9.5 - 281) if the waiver

will enhance the ability of the project to

meet the general standards for all

condi tional uses. Given the physical

constraints of the site and the required

amount of parking to be provided, the

requested setback waivers (15 feet in the

font, and 5 feet in rear) would enhance the

ability of the applicant to provide as much

parking as pos sible with minimal impact on

the buffer zones. Therefore, Staff concludes

that the yard setback waiver is warranted.

3. Based on the revised landscaping plan

submitted January 18, 2002, additional

landscaping has been provided. Because a

setback wavier has been requested (see item

2, above) to increase the amount of parking

available on the site, the Director of

Planning and Environmental Resources has

requested additional landscaping to be added

to protect community character and prevent

adverse effect s on the surrounding

properties. Each setback that is reduced

shall provide additional landscaping equal to

the percentage the setback is reduced. For

example, if a setback is reduced by 50%, the

landscaping standard for that area shall be

increased by 5 0%. The additional landscaping

required shall be as follows: two (2) street

trees, four (4) canopy trees, one (1)

understory tree, and fifteen (15) shrubs.

* * *

6. Based on Section 9.5 - 351 Off - street

parking standards, Staff finds that the

applicant is required to provide 55 parking

spaces and based on the submitted site plan

35 parking spaces are provided. At the

regular meeting on January 9, 2002 the

Planning Commission granted a variance for 21

parking spaces. Therefore, Staff finds that

the proj ect is in compliance with Section

9.5 - 351.

7. Based on the submitted site plan, the

designated loading area has the dimensions

10' by 23' and encroaches onto the rear yard

setback by 5 feet. Section 9.5 - 352 requires

the loading area to be 10' by 25'. H owever,

if the rear yard setback waiver is granted

the 5 foot encroachment is acceptable.

Because the loading area is only designated

as 23 feet long but is required to be 25

feet, loading vehicles may extend the

additional two feet into the ingress and

e gress to the site. Therefore, Staff finds

that the hours of deliveries shall be limited

to before 11 AM, and a sign shall be erected

indicating that deliveries must be made

before this time.

8. Based on the revised traffic report

submitted by T.A.P., In c. and correspondence

between the Monroe County traffic consultant

Raj Shanmugam, P.E. of U.R.S. and T.A.P.

regarding additional traffic issues not

raised in the submitted report, additional

materials have been submitted addressing

these issues. Therefore , Staff concludes

that the project is in compliance with

Section 9.5 - 426.

* * *

Id. at pages 9 and 10 of 10.

On February 6, 2002, the Commission met to consider the

Steryous' application for amendment to a minor conditional use,

which included th e setback waivers.

Mr. Will discussed the items which changed the staff's

recommendation, and stated in part:

* * *

Because the variance was granted the

parking spaces of, the 34 parking spaces are

now in compliance with code because of the

variance gra nted.

In addition to those 34, there has been

one extra parking space added, for a total of

35, the reason for that being is as per Mr.

Craig's suggestion at last month's meeting.

The staff has recommended that the

loading zone be transformed into a pa rking

space on the condition that loading,

deliveries, loading and unloading and such,

is done before 11:00 a.m. on weekdays, and

the condition, this condition is because the

restaurant will not be open for breakfast and

therefore there will be no problem, there

won't be patrons crowding in and around while

loading and unloading is to be done. Staff

felt comfortable with this condition.

Because of the parking situation, adding one

more space seemed a reasonable concession.

Also, increased landscaping tha t has

been requested by the Planning Director has

been provided. The increased landscaping was

due to a setback waiver that the Commission

will be asked to consider granting as part of

the minor conditional use.

Also, revised information regarding the

traffic study has been submitted to the

Monroe County Planning Traffic Consultant.

He has notified me through a letter that I

received yesterday that everything is fine in

terms of traffic and maneuverability. He

approves of the project from that perspec tive

* * *

Mr. Craig, on behalf of the Steryous, agreed with the staff

report and confirmed, in part, that the restaurant will not be

open for business in the morning (not until 11:00 a.m.) to allow

for delivery of goods.

Commissioner Putney, who ra ised concerns during the initial

meeting, clarified her concerns. (No Commissioner requested

reconsideration of the previous vote to approve the parking

variance.) She was concerned with the potential impact of

traffic on the level of service; the increa se in intensity, in

relation to the effect of the increase and intensity on the level

of service, i.e. , changing the restaurant from a "Key - zee 2,614

square foot restaurant with a couple of outbuildings and picnic

tables being turned into a 3,658 square fo ot enclosed

restaurant. . . ."

Commissioner Putney was also concerned with the applicant's

traffic engineer's prediction that there would be 256 less trips

if the proposed restaurant is built.

Chairman Ritz agreed with Commissioner Putney and believed

that "the project is too large for the site."

Commissioner Coleman moved to approve the amendment to a

minor conditional use, i.e. , to permit the construction of the

restaurant as proposed, which received a second from Commissioner

Hill. The motion was defeated by a vote of three to two, with

Commissioners Werling, Putney, and Ritz voting in the negative.

Commissioner Putney stated that she had not received the

traffic report that said that the proposal would not have an

effect on the level of servic e, and Ms. Conaway indicated that it

was incorporated into the staff report. See Memorandum II, page

7 of 10.

Ms. Conaway explained that the traffic engineers who

performed the traffic study, as amended, which was submitted to

staff, examined the square footage of the property and applied

various formulas.

Mr. Craig stated that there were 150 seats available on site

with respect to the prior restaurant, i.e. , indoors and outdoors,

and that the proposed restaurant would accommodate 150 seats only

indoor s.

Commissioner Werling suggested that the proposed restaurant

would not go with the community character of this specific

neighborhood.

After some discussion among the commissioners, Commissioner

Putney moved to deny on the grounds of her concern wit h the

traffic study, the intensity of use, adverse impacts on the

community character, and that the design did not minimize adverse

effects in light of Section 9.5 - 65(c). (Record on Appeal, pages

81 - 82.)

Commissioner Putney formally moved and voted t o deny the

application for a minor conditional use, with Chair Ritz and

Vice - Chair Werling voting in the same manner. Commissioners Hill

and Coleman voted against the motion (and to approve the

conditional use and setback waivers).

The Commission's voice vote and the reasons given in support

of the vote, were memorialized in the Commission's Resolution No.

P 04 - 02, which is the subject of this appeal. The Commission

made Findings of Fact and Conclusions of Law in this Resolution

and in part stated:

1. B ased on the application and materials

presented at the pre - application meeting,

Greg and Alice Steryou are applying to

rebuild Knuckleheads restaurant which was

destroyed in Hurricane Georges in 1998.

Therefore, we conclude that the restaurant is

redevelo pment of existing floor area and not

subject to Monroe County Code Section 9.5 -

124, Non - Residential Permit Allocation

System.

2. Based on the approval of a variance for

21 spaces from the 55 required by Monroe

County Code Section 9.5 - 351 granted by the

P lanning Commission on January 9, 2002, the

open space ratio and the parking lot

landscaping required for the provided 34

parking spaces and requested setback waivers

are in compliance with Monroe County Code.

3. Based on the application, a minimum yard

s etback waiver from the Planning Commission

has been requested to increase the amount of

parking available on the site. The Director

of Planning and Environmental Resources has

suggested additional landscaping to be added

to protect community character and prevent

adverse effects on the surrounding

properties. Each setback that is reduced

shall provide additional landscaping equal to

the percentage the setback is reduced.

Therefore, based on the revised site plan

submitted January 18, 2002, we conclude th at

the following additional landscaping has been

provided as per the Director's suggestion:

two (2) street trees, four(4) canopy trees,

one (1) understory tree, and fifteen (15)

shrubs.

4. Based on Section 9.5 - 66, we find that the

requested reduction in the minimum yard

requirements will not enhance the ability of

the proposed project to meet the general

standards set forth in Section 9.5 - 65

including but not limited to: the project is

not consistent with the surrounding community

character, and the pro ject does not minimize

adverse effects on the surrounding

properties, even with increased landscaping

standards provided above in Finding 3.

Therefore, we conclude that there is not

sufficient merit to grant the requested

setback waiver.

5. Based on the submitted site plan, we find

that without the requested setback waiver the

applicant may not develop 19 of the 34

parking spaces provided. Only 15 parking

spaces would be provided. Therefore, even

with the approved parking variance, we

conclude that the project is not in

compliance with Section 9.5 - 351.

6. Based on the increase in size of the

enclosed seating area of the restaurant (from

3,063 to 3,658 square feet) and the change in

use to a sit - down, quality restaurant, we

find that the project is not consistent with

the neighborhood restaurant that previously

existed on the site and the community

character of the immediate vicinity.

Therefore, we conclude that the project is

not in compliance with Section 9.5 - 65(b).

7. Based on the small size of the lot, the

design of the project does not minimize

adverse impacts on the surrounding

properties. The site is not large enough to

accommodate the associated parking

requirement of a 3,658 square foot quality

sit - down restaurant. Therefore, we conclude

tha t the project is not in compliance with

Section 9.5 - 65(c).

8. Based on the application, we find that a

Stormwater Management Plan has been

submitted. A letter of coordination with the

South Florida Water Management District

(SFWMD) is needed. Therefore , we conclude

that compliance with Section 9.5 - 293 cannot

be determined until a letter of coordination

has been submitted.

9. Based on the submitted site plan, the

designated loading area has the dimensions

10' by 23' and encroaches onto the rear yard

se tback by 5 feet. Section 9.5 - 352 requires

the loading area to be 10' by 25'.

Therefore, we conclude that the loading zone

is not in compliance with Section 9.5 - 352 of

Monroe County Code.

10. Based on the revised traffic report

submitted by T.A.P. Inc. and correspondence

between the Monroe County traffic consultant

Raj Shanmugam, P.E. of U.R.S. and T.A.P.

regarding additional traffic issues not

raised in the submitted report, additional

materials have been submitted in order for

report approval. Therefo re, we conclude that

the traffic report is complete and in

compliance with Section 9.5 - 426.

VIII.

LEGAL DISCUSSION

The Division of Administrative Hearings has jurisdiction

over the subject matter of this proceeding and of the parties

pursuant to Article XIV, Section 9.5 - 535, M.C.C. The hearing

officer "may affirm, reverse or modify the order of the planning

commission." Article XIV, Section 9.5 - 540(b), M.C.C. The scope

of the hearing officer's review under Article XIV is:

The hearing officer's order m ay reject or

modify any conclusion of law or

interpretation of the Monroe County land

development regulations or comprehensive plan

in the planning commission's order, whether

stated in the order or necessarily implicit

in the Planning Commission's determi nation,

but he may not reject or modify any findings

of fact unless he first determines from a

review of the complete record and states with

particularity in his order, that the findings

of fact were not based on competent

substantial evidence or that the proceeding

before the planning commission on which the

findings were based did not comply with the

essential requirements of law.

Id. "The hearing officer's final order shall be the final

administrative action of Monroe County." Article XIV, Section

9 .5 - 540(c), M.C.C.

In DeGroot v. Sheffield , 95 So. 2d 912 (Fla. 1957), the

Court discussed the meaning of "competent substantial evidence"

and stated:

We have used the term "competent substantial

evidence" advisedly. Substantial evidence

has been descri bed as such evidence as will

establish a substantial basis of fact from

which the fact at issue can be reasonably

inferred. We have stated it to be such

relevant evidence as a reasonable mind would

accept as adequate to support a

conclusion. . . . In emp loying the adjective

"competent" to modify the word "substantial"

we are aware of the familiar rule that in

administrative proceedings the formalities

and the introduction of testimony common to

the courts of justice are not strictly

employed. . . . We ar e of the view, however,

that the evidence relied upon to sustain the

ultimate findings should be sufficiently

relevant and material that a reasonable mind

would accept it as adequate to support the

conclusion reached. To this extent, the

"substantial" evi dence should also be

"competent."

Id. at 916 (citations omitted.)

A hearing officer (Administrative Law Judge)acting in his or

her appellate review capacity is without authority to reweigh

conflicting testimony presented to the Commission or to

substi tute his or her judgment for that of the Commission on the

issue of the credibility of witnesses. See Haines City Community

Development v. Heggs , 658 So. 2d 523, 530 (Fla. 1995).

The question before the undersigned is not whether the

record contains comp etent substantial evidence supporting the

view of the Steryous; rather, the question is whether competent

substantial evidence supports the findings made by the

Commission. See generally Collier Medical Center, Inc. v. State,

Department of Health and Re habilitative Services , 462 So. 2d 83,

85 (Fla. 1st DCA 1985).

In Dusseau v. Metropolitan Dade County, Board of County

Commissioners , 794 So. 2d 1270, 1275 - 1276 (Fla. 2001), the Court

reiterated:

that the "competent substantial evidence"

standard cannot b e used by a reviewing court

as a mechanism for exerting covert control

over the policy determinations and factual

findings of the local agency. Rather, this

standard requires a reviewing court to defer

to the agency's superior technical expertise

and spec ial vantage point in such matters.

The issue before the court is not whether the

agency's decision is the "best" decision or

the "right" decision or even a "wise"

decision, for these are technical and policy -

based determinations properly within the

purvie w of the agency. The circuit court has

no training or experience -- and is

inherently unsuited -- to sit as a roving

"super agency" with plenary oversight in such

matters.

The issue of whether the Commission "complied with the

essential requiremen ts of law" is synonymous with whether the

Commission "applied the correct law." Haines City Community

Development , 658 So. 2d at 530.

Based upon a review of the entire record in this case,

Resolution No. P 04 - 02 is reversed.

The Commission, by s eparate action in Resolution No. P 03 - 02,

authorized an off - street parking variance for 21 parking spaces,

finding in part that approval of "this variance would not grant a

special privilege to this development" and that "the site in

question is unique in orientation with one side fronting the

water." Stated otherwise, the Commission authorized the Steryous

to provide 34 parking places for the 150 potential (seated)

patrons of the restaurant, who may travel to the restaurant by a

motor vehicle. In taking this action, the Commission implicitly,

if not expressly, acknowledged that the size of the proposed

restaurant and expected number of patrons in light of the reduced

parking spaces, was not an impediment to the project.

In Resolution No. P 04 - 02, the Commission found that the

project is not consistent with the surrounding properties (and

immediate vicinity) community character 4 and does not minimize

adverse effects on the surrounding properties because, in effect,

"[t]he site is not large enough to ac commodate the associated

parking requirement of a 3,658 square foot quality sit - down

restaurant."

The "adjacent properties" to the south and east are within

the Sub Urban Commercial land use district and have a FLUM

designation of Mixed Use/Commerci al. Under the Monroe County

Code, these lots can have commercial retail use and accommodate a

potential intensity of use equal to or greater than the proposed

restaurant. It is uncontroverted that the floor area ratio, the

open space ratio, intensity, an d the density of the proposed

project are consistent with the applicable provisions of the

Monroe County Code.

However, the fact that the proposed restaurant is different

than the former restaurant in size and quality is not controlling

here. These f actors may become relevant in light of a defined

"community character" which, on this record, is missing. This is

especially problematic when, as here, there are no written

standards or guidelines establishing the criteria for determining

what is the "com munity character."

It is uncontroverted that Bay Point Trailer Park, Bay Point

Subdivision, and a public park, are south and close to the

proposed site and that Bay Point Pizza and Baby's Coffee are east

of the two vacant commercial lots, which are d irectly east of the

proposed site.

But, there is no competent substantial evidence to support

the Commission's findings, 5 implicit or otherwise, that the

proposed restaurant " will have an adverse effect on the value of"

these "surrounding properti es," which are also within the

"immediate vicinity" of the proposed site, or that the proposed

restaurant will adversely affect adjacent properties, such that

the adverse effects need to be minimized, or that the proposed

restaurant is inconsistent with th e "community character of the

immediate vicinity of the parcel." See Article III, Section 9.5 -

65(b) - (d), M.C.C.

Also, it is uncontroverted that the proposed restaurant will

not impact or adversely affect the Level of Service (LOS) 6 of the

roads in the vicinity of the project in light of the proposed

intensity of use of the restaurant. Importantly, the Commission

accepted the traffic report, as amended and supplemented, which

was the only competent substantial evidence to determine whether

the roads ha ve sufficient capacity to maintain their LOS after the

proposed restaurant is built, given its medium intensity. Any

finding to the contrary is not supported by competent substantial

evidence. See generally Debes v. City of Key West , 690 So. 2d 700

(Fla. 3d DCA 1997). 7

The only plausible rationale for denying the amendment to a

minor conditional use and the setback waivers is because there are

not enough parking places to accommodate the expected number of

potential patrons (150) and, as a result, th e patrons arriving by

motor vehicle might be expected to park on the right - of - way and

other off - site areas, thus creating "adverse effects" on adjacent

and surrounding properties. This was the initial reason given by

Mr. Will for recommending denial of th e parking variance. See ,

e.g. , (Record on Appeal, page 8). But Mr. Will changed his

overall recommendation after the Commission approved the parking

variance and the Steryous submitted additional information and

agreed to conditions, although in Memorand um II he indicated

"[t]he proposed project may [not will] have an adverse effect on

adjoining property values. . . ." Memorandum II, page 8 of 10

(emphasis added.)

As noted herein, the Commission already determined that the

size of the restaurant was not an impediment to granting the

Steryous a parking variance for 21 parking spaces, leaving the

restaurant with 34 parking spaces for its patrons. This

determination, based on the same record as this appeal, is

inconsistent and irreconcilable with the Commis sion's finding that

"[t]he site is not large enough to accommodate the associated

parking requirement of a 3,658 square foot quality sit - down

restaurant," which is the reason why the Commission denied the

setback waivers and the amendment to a minor condit ional use.

Further, the Commission determined that the proposed loading

area was not in compliance with Section 9.5.352. The Commission

correctly finds that the proposed loading area dimensions are two

feet short, i.e. , 10' by 23' rather than 10' b y 25', and are to be

placed within the existing rear year setback, requiring a waiver

for this additional space. However, as noted by staff, the

Steryous have agreed to provide an additional parking space (35

total) to afford additional space for loading and have also agreed

to limit weekday deliveries before 11:00 a.m. While these facts

were presented to the Commission, given the ultimate disposition

of this case, it is uncertain whether the Commission would

disapprove the minor conditional use based on this issue alone or

that a rear yard setback waiver for the loading area would be

inconsistent with the criteria for approval as a minor conditional

use. Thus, it would appear appropriate for the Commission to

consider this issue anew.

IX.

DECISION

Based upon the foregoing, Monroe County Planning Commission

Resolution No. P 04 - 02 is REVERSED. 8

Pursuant to Article XIV, Section 9.5 - 540(c), M.C.C., this

Final Order is "the final administrative action of Monroe County."

It is subject to judicial review by common law petition for writ

of certiorari to the circuit court in the appropriate judicial

circuit.

DONE AND ORDERED this 3rd day of September, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

CHARLES A. STAMPELOS

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 o f Administrative Hearings

this 3rd day of September, 2002.

ENDNOTES

1 / The Monroe County Year 2010 Comprehensive Plan (Plan), Future

Land Use Policy 101.4.5, provides in part: "The principal purpose

of the Mixed Use/Commerc ial land use category is to provide for

the establishment of commercial zoning districts where various

types of commercial retail and office may be permitted at

intensities which are consistent with the community character and

the natural environment. Emp loyee housing and commercial

apartments are also permitted. This land use category is also

intended to allow for the establishment of mixed use development

patterns, where appropriate. Various types of residential and

non - residential uses may be permitte d; however, heavy industrial

uses and similarly incompatible uses shall be prohibited. . . ."

2 / The traffic report, as amended, presented by the Steryous,

indicates that the proposed use is a medium - intensity commercial

retail use, based on the propos ed restaurant generating 322

average daily trips, or 88 per 1,000 square feet of development.

In Resolution No. P 04 - 02, the Commission found the traffic

report, as amended, submitted by the Steryous was complete and in

compliance with Section 9.5 - 426.

3 / " Community character means those indices of the composite

nature of an area which are described in chapter II, volume 1 of

the comprehensive plan." Article I, Section 9.5 - 4(C - 17), M.C.C.

(emphasis in original.) During oral argument, as supplemented by

a second conference call on August 26, 2002, the parties agreed

that Exhibit B (Future Land Use Element) attached to the

Steryous' Initial Brief, is the technical portion of the Monroe

County Comprehensive Plan referred to in this definition, and

does not provide standards or criteria for determining what is

"community character." (The Record on Appeal is supplemented

with this document.)

4 / There are no standards, guidelines, or criteria in the Monroe

County Code which define, with any degree of prec ision, the term

"community character." But see footnote 3, supra .

5 / There is no competent substantial evidence in this record

regarding how the "values," dollar or otherwise, of surrounding

properties would be reduced or adversely affected if the propo sed

minor conditional use is approved.

6 / "Level of service means a quantitative measure describing

operational conditions within a traffic stream." Article I,

Section 9.5 - 4(L - 4), M.C.C.

7 / Statements made by the Commissioners during the meetings are

helpful regarding their intent, but are not evidence.

8 / The Steryous' estoppel and due process arguments are rejected.

The Commission approved the parking variance during the first

meeting, but did not approve the minor conditional use and

setback waiv ers. The Steryous, while admittedly receiving some

encouragement from staff and some of the Commission members,

could not have reasonably believed that the Commission had

approved the setback waivers during the first meeting. The

Steryous were afforded d ue process of law during the Commission's

consideration of both applications. Also, the Commission did not

de facto revoke the approved parking variance, although the

approval of the parking variance had a significant impact on the

outcome of this appeal for the reasons stated herein.

COPIES FURNISHED :

Karen K. Cabanas, Esquire

Morgan & Hendrick

317 Whitehead Street

Key West, Florida 33040

Lee R. Rohe, Esquire

Post Office Box 420259

Summerland Key, Florida 33042

Judith Chambers

Planning Commission Coordinator

Monroe County Planning Department

2798 Overseas Highway, Suite 410

Marathon, Florida 33050 - 2227

NOTICE OF RIGHTS

Pursuant to Article XIV, Section 9.5 - 540(c), M.C.C., this

Final Order is "the final administrative action of Monroe

County." It is subject to judicial review by common law petition

for writ of certiorari to the circuit court in the appropriate

judicial circuit.