03-001480 Smart Planning And Growth Coalition vs. Monroe County Planning Commission Status: Closed DOAH Final Order on Friday, August 15, 2003.

Summary: The Division has no jurisdiction in an appeal from Monroe County Planning Commission Non-Residential Rate of Growth Ordinance allocation. Case dismissed.

ST ATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SMART PLANNING AND GROWTH )

COALITION, )

)

Appellant, )

)

vs. )

) Case No. 03 - 1480

MONROE COUNTY PLANNING )

COMMISSION, )

)

Appellee. )

)

FINAL OR DER

Appellant, Smart Planning and Growth Coalition (Coalition),

seeks review of Monroe County Planning Commission (Commission)

Resolution No. P10 - 03, which allocates commercial floor area

under Monroe County's Non - Residential Rate of Growth Ordinance

(NRO GO), Ordinance No. 032 - 2001, now codified as Section 9.5 -

124, et seq. , Monroe County Code (M.C.C.). Resolution No.

P10 - 03 is dated March 12, 2003, and this appeal was timely

filed.

In its Initial Brief, the Coalition asserted essentially

that, because S ection 9.5 - 124(a)(5) of the NROGO ordinance

requires allocations to be made "based on the goals, objectives

and policies of the comprehensive plan and the Livable

CommuniKeys master plans," and because no such master plans have

been adopted as yet, no NROG O allocations can be made at this

time. The Coalition also asserted: that, since there are no

such master plans, the NROGO allocations under appeal would be

inconsistent with Monroe County Comprehensive Plan Future Land

Use Element Objective 101.20 and P olicy 101.20.1, which

essentially require development of Community Master Plans to

guide future development; and that Section 163.3194(1)(a) and

(3)(b), Florida Statutes (2002), requires "all development" and

"development orders" to be consistent with the local

comprehensive plan and "all other criteria enumerated by the

local government." Finally, the Coalition asserted that the

Commission violated Section 9.5 - 45(c), M.C.C., by not posting

notice of the NROGO allocation hearing at the properties

"subject to the hearing."

In its Answer Brief, the Commission first attacked the

Coalition's standing to appeal as an "aggrieved or adversely

affected party" under the definition in Section 163.3215(2),

Florida Statutes (2002). Next, the Commission contended tha t

neither Section 163.3194 nor Section 9.5 - 45(c), M.C.C., applies

because NROGO allocations are not "development," "development

orders," or "development approvals." Finally, the Commission

contended that community master plans are not "mandatory" -- i.e. ,

a re not indispensable to allocation of NROGO floor area.

In its Reply Brief, the Coalition asserted essentially both

that it has standing, and that both Section 163.3194, Florida

Statutes, and Section 9.5 - 45(c), M.C.C., apply because NROGO

allocations are "development approvals" and "development

orders." The Coalition also reasserted its position that

community master plans are indispensable to NROGO allocations.

None of the briefs addressed the jurisdiction of the

Division of Administrative Hearings (D OAH), which the

Administrative Law Judge (ALJ) raised at the outset of oral

argument, and which is dispositive.

DOAH acquires jurisdiction over appeals of this nature only

by contract and under Article XIV, Section 9.5 - 535, M.C.C. By

contract, DOAH ALJs act as hearing officers for Monroe County

under Section 9.5 - 535, which provides: "Hearing officers shall

review by appeal planning commission action when authorized by

the Monroe County land development regulations or chapter 19,

Monroe County Code." (E mphasis added.) For example, Sections

9.5 - 69(e) and 9.5 - 521(f), M.C.C., authorize hearing officer

appeals from action of the Commission deciding an appeal to the

Commission that was taken and heard under the authority of

Sections 9.5 - 69(c), which is the a ppeal procedure specified for

major conditional uses, or 9.5 - 521(a) - (e), which is the appeal

procedure specified by Section 9.5 - 68(f) for minor conditional

uses and also generally available for "appeals from any

decision, determination or interpretation by any administrative

official . . . ." But Resolution P10 - 03 was not action on such

an appeal to the Commission; rather, it was action taken by the

Commission in the first instance to allocate NROGO floor area

under Section 9.5 - 124, M.C.C. There does not appear to be any

authority in the land development regulations or anywhere in the

Monroe County Code for hearing officer appeals of NROGO

allocations by the Commission. For that reason, DOAH does not

have jurisdiction, and this appeal is DISMISSED.

DONE AND ORDERED this 15th day of August, 2003, in

Tallahassee, Leon County, Florida.

S

____________________________________

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahas see, 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 15th day of August, 2003.

COPIES FURNISHED :

Lee Robert Rohe, Esquire

Post Offi ce Box 420259

Summerland Key, Florida 33042

Karen K. Cabanas, Esquire

Morgan & Hendrick

Post Office Box 1117

Key West, Florida 33041

Nicole Petrick, Staff Assistant

Monroe County Planning Department

2798 Overseas Highway, Suite 400

Marathon, Florida 3 3050

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 th e appropriate judicial

circuit.