03-002397 Dorothy Parker vs. Monroe County Planning Commission Status: Closed DOAH Final Order on Wednesday, November 26, 2003.

Summary: The Planning Commission`s Resolutions to approve minor and major conditional uses did not depart from the essential requirements of law and were supported by competent substantial evidence.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DOROTHY PARKER, )

)

Appellant, )

)

vs. ) Case Nos. 03 - 2397

) 03 - 2398

MONROE COUNTY PLANNING ) 03 - 2399

COMMISSION, )

)

Appellee, )

)

and )

)

TAYLOR POINT DEVELOPMENT )

CORPORATION and ESTATE OF )

KONSTANTINOS "GUS" BOULIS, )

)

Intervenors. )

)

FINAL ORDER

Appellant, Dorothy Parker (Parker), seeks review of Monroe

County Planning Commission (Commission) Resolution Nos. P20 - 03,

P21 - 03, and P22 - 03, approved by the Commission on March 26,

2003. 1 Parker's appeals were 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 these consolidated appeals. Parker

submitted an Initial Brief and a Reply Brief. The Commission

and Intervenors submitted separate Answer Briefs. Oral argument

was presented during a telephone hearing held on November 17,

2003.

I. Issues

P arker raises four issues on appeal: (1) whether the

Commission departed from the essential requirements of law by

approving a transfer of 1,800 square feet of commercial floor

area without consideration of a master plan for Key Largo in

violation of Monroe County Comprehensive Plan (Plan), and Monroe

County's NROGO (non - residential rate of growth ordinance),

Article IV, Section 9.5 - 124(a)(5), M.C.C., and Plan Objective

101.20 and Policy 101.20.1; (2) whether the Commission erred in

failing to require an aff idavit of ownership from The Quay

Restaurant (The Quay), the sender site, and whether the

Commission violated procedural due process when it incorrectly

referred to Section 9.5.265 instead of Section 9.5 - 124 in the

published legal notice of hearing; (3) wh ether the Commission

erred in authorizing the transfer of 1,800 square feet of

commercial floor area to the receiver site pursuant to Article

IV, Section 9.5 - 124(10)b.vi., M.C.C., which requires, in part,

that the receiver site not be "located in a 'V' Zon e pursuant to

Section 9.5 - 124.8(a)(8)"; and (4) whether the Commission erred

in approving a Major Conditional Use application by not

requiring a variance for the site plan's parking, fire turning

radius, and side yard setbacks.

II. Background

On or about January 28, 2003, Taylor Point Development

Corp. (Taylor Point), by its agent, Donald L. Craig, A.I.C.P.,

The Craig Company, filed an application to transfer 1,800 square

feet of commercial floor area from The Quay Restaurant (the

sender site) on Key Larg o, Monroe County, Florida. (Record on

Appeal (R:) (R: 223, 345.))

The sender site has approximately 9,925 square feet of non -

residential floor area, and was not in operation at the time the

application was filed. The application refers to the sender

si te property owner as "KB Holdings." The application contains

a document entitled "Sender Site Attachment A" (R: 225), which

provides in part:

· PROOF OF OWNERSHIP: The owner of land

who transfers non - residential floor area

shall prepare an affidavit of ow nership and

an affidavit of intent to transfer in

conformance with a form provided by the

director of planning. The affidavit shall

be filed with the director of planning at

least thirty (30) days prior to the

submission of an application for Transfer of

Commercial Floor Area which will be reviewed

as a Minor Conditional Use.

No such affidavits accompanied this application.

On or about January 28, 2003, a second application was

filed on behalf of the receiver site and a Minor Conditional Use

was requested . The applicant's name is Taylor Point Development

Corp., and the application was filed by Mr. Craig. The receiver

site property owner is listed as Taylor Point Development Corp.

The legal description of the receiver site property is provided:

"See att ached survey. A portion of Lots 8 & 10, Section 11,

Township 61 South, Range 32 East on Key Largo, Model Land

Company Plat." See (R: 258, 269) and discussion below. The

street address is 10380 Overseas Highway, Key Largo, Florida.

The existing use of t he receiver site was listed as "conference

rooms, ancillary offices and incomplete conference center." The

gross floor area in square feet of the receiver site was

represented to be 10,960 square feet.

The instructions to this receiver site application

included, in part: " PROOF OF OWNERSHIP O F RECEIVING SITE :

deed, lease or appending sale contract." (R: 259.) Included

with the application was an authorization form signed under oath

by Joan Wagner, a Personal Representative. (R: 261.) This

authoriza tion form stated, in part: "I, Joan Wagner, do hereby

authorize Donald L. Craig and The Craig Company to act on my

behalf in all matters pertaining to the filing of NROGO minor

and any other conditional use applications for the transfer of

Commercial Floo r area from the "Quay" restaurant located on Key

Largo to the Taylor Point Conference Center also located in Key

Largo, Florida." Id.

The receiver site application also contains a Quit - Claim

Deed executed October 1, 1994, by Twin Harbors, Inc. to Taylor

P oint Development Corp., for land described as follows: "LOTS

1, 2, 3 AND 4 OF TAYLOR'S POINT, ACCORDING TO THE MAP OR PLAT

THEREOF, AS RECORDED IN PLAT BOOK 4, PAGE 148 OF THE PUBLIC

RECORDS OF MONROE COUNTY, FLORIDA." (R: 266.) (The receiver

site prope rty legal description provides, in part: "A portion of

Lots 8 and 9, Section 11, Township 61 South, Range 39 East on

Key Largo, according to Model Land Company's Plat. . . . AND

ALSO KNOWN AS: Lots 1 through 4. . . ." (R: 269, 298, 328.)

On or about Feb ruary 3, 2003, Mr. Craig filed a third

application for development approval for a Major Conditional

Use. (R: 290.) The applicant's name and property owner are

listed as Taylor Point Development Corp. The application

indicates that the present use of the property is "[c]onference

rooms, offices, incomplete building" and the proposed use of the

property is listed as "12,760 sq. ft. conference center and

offices." (R: 291.) This application also references the

NROGO transfer applied for on January 28, 20 03. Numerous

documents are attached to this application, including but not

limited to proof of ownership, which consists of the Quit - Claim

Deed mentioned above. A location map, photographs, sealed and

signed survey, a revised site plan (R: 329), floor pl ans, and

other documents accompanied the application. (R: 292.)

Jeff Stuncard, Senior Planner, prepared separate memoranda

to the Development Review Committee regarding the sender and

receiver site applications. (R: 234 - 235, 270 - 272.)

Mr. Stuncard, in c onjunction with Niko Reisinger, biologist,

prepared a separate Memorandum to the Development Review

Committee regarding the third application for the requested

Major Conditional Use. (R: 360 - 366.)

On March 12, 2003, the Development Review Committee

unani mously approved the transfer of the commercial floor area

of 1,800 square feet from the sender site, The Quay, to the

finished structure at Taylor Point. (R: 236 - 238, 273 - 275.) On

March 25, 2003, the Development Review Committee unanimously

recommended t o the Commission approval of the Major Conditional

Use for the Taylor Point Development Corp. to complete ancillary

offices and a conference center. (R: 367 - 371.)

On March 11, 2003, Mr. Stuncard prepared two separate

memoranda (for the Commission) regard ing the sender and receiver

site applications which were almost identical to the memoranda

he prepared for the Development Review Committee. (R: 239 - 240,

276 - 278.)

Mr. Stuncard's Memorandum regarding the sender site

application reflects that the applican t was requesting a

transfer of floor area of 1,800 square feet of commercial floor

area from The Quay, which has 9,925 square feet of non -

residential floor area, and is currently not in operation. (R:

239.) Mr. Stuncard, under the heading "Staff Review," states:

The application requests approval of the

transfer of 1,800 sq. ft. of non - residential

floor area from property located on the

North 1/2 of Tract 8 and Tracts 9 & 10,

Second Amended and Revised Plat of Lee

Shores, Plat Book 2, Page 97, MM 102, Key

Largo, to property located on a portion of

Lots 8 & 10, Section 11, Township 61 South,

Range 39 East on Key Largo, Model Land

Company Plat, MM 103.8, Key Largo. The

records of the Monroe County Property

Appraiser indicate that the building on the

sender s ite was built in 1958. It served as

the Quay restaurant until recently closing.

Any development on the receiver's site would

require additional Major Conditional Use

approval.

Staff recommended approval of the transfer of floor area from

the sender sit e as requested with two conditions which required

demolition of the sending site structure prior to the issuance

of a building permit for the non - residential floor area on the

receiver site. (R: 240.)

Mr. Stuncard also issued a Memorandum (for the receiv er

site application) with respect to the transfer of the 1,800

square feet of commercial floor area from the sender site to the

receiver site. In particular, under the section noted "Staff

Review," the Memorandum states:

The application requests approval of the

transfer of 1,800 sq. ft. of non - residential

floor area from property located on the

North 1/2 of Tract 8 and Tracts 9 & 10,

Second Amended and Revised Plat of Lee

Shores, Plat Book 2, Page 97, MM 102, Key

Largo, to property located on a portion of

Lots 8 & 10, Section 11, Township 61 South,

Range 32 East on Key Largo, Model Land

Company Plat, MM 103.8, Key Largo. The

records of the Monroe County Property

Appraiser indicate that the southernmost

building on the receiver site was built in

1972. It c urrently serves as conference and

office space. The second building on the

site, which is unfinished, is at the

northern end of the property and is 7,436

square feet. The Property Appraiser records

do not indicate that the building is on - site

because the structure never received a

certificate of occupancy. Any development

on the receiver site would require

additional Major Conditional Use approval.

1. 9.5 - 124.3.a.(10)b. The receiver site

evaluated for site conditions meets the

following criteria:

i. Has existing lawfully established

non - residential floor area and is an

infill site; and

ii. Is located in the same ROGO subarea

as the sender site; and

iii. Is not a commercial retail high

intensity use that will generate more

than 150 trips per 1,00 0 square feet

of floor area; and

iv. Is not located on Big Pine Key, No

Name Key or within a CARL acquisition

area; and

v. Receives no negative environmental

points when evaluated; and

vi. Is not located in a "V" zone; and

vii. Is not located in a coastal barrier

resources system; and

viii. Is not located in an offshore

island/conservation land protection

area.

The receiver structure is the 3,524 square

foot building closest to U.S. 1. It is not

in the "V" zone and has not received any

negative e nvironmental points.

(R: 277.)

Staff recommended approval of the floor area transfer to

the receiver site with three conditions, including the

demolition as described above, and the recordation of the

transfer of ownership and all other legal documents prior to the

issuance of a development order. (R: 278.)

On March 21, 2003, Mr. Stuncard and Mr. Reisinger prepared

a Memorandum to the Commission regarding the application for the

Major Conditional Use filed on behalf of Taylor Point

Development Corp. ( R: 372 - 378.) The proposed use and size of

the project is described as follows:

The applicant is proposing to complete a

conference facility at its Taylor Point site

at Mile Marker 103.8, adjacent to the

Marriott Hotel. The proposed project will

consist o f the existing building which will

be modified to provide additional conference

room space and ancillary offices, and the

existing building to the north (bayside)

will be completed. Presently, the

construction of the building, which was

authorized by a ve sted rights order dating

from 1998, has been halted.

The proposed redevelopment will be

accomplished in two (2) stages involving the

use of transferable non - residential floor

area made available through the county's

"NROGO" system. Specifically, 1,800 sq uare

feet of commercial floor area now located in

the Quay Restaurant at Mile Marker 102 will

be transferred to the site. The 1,800

square feet will be transferred to the

Taylor Point site to the building closest to

US 1, where it will be used to provide

conference space and ancillary support

offices. The 1,800 square feet already on

the second floor of this building will be

internally transferred to the building whose

construction has been halted.

Existing on site at the present time is

approximately 7 ,426 square feet of

restaurant and conference center, which is

incomplete, and the operating building of

3,524 square feet.

(R: 372.)

Staff reviewed the application for compliance with the

requirements of Article IV, Section 9.5 - 65, M.C.C., which are

appl icable to all conditional uses. (R: 374.) In part, staff

determined that the "dimensions of the required parking spaces"

were not in compliance with Section 9.5 - 351(a). Staff also

determined that the minimum yards and shoreline setback

requirements were "in compliance and require staff discussion."

(R: 122, 375.) Staff noted regarding this item: "The building

and access road that are there were approved and constructed in

their current location, and vested by Resolution #194 - 1998."

Id. See also (R: 35 1 - 352.)

Relevant here, staff made the following Findings of Fact

and Conclusions of Law:

1. Based on the plans submitted, the

required number of parking spaces is being

met, however only 14 of these spaces meet

the required 8'6" X 18' dimensions. This

leaves 24 spaces with inadequate dimensions.

This issue must be addressed prior to the

issuance of a building permit.

2. Based on the plans submitted, two (2)

handicap spaces must be located on the site.

One (1) of these spaces is represented and

on e (1) is not. A revised site plan must

show the additional handicapped parking

space prior to the issuance of a building

permit.

3. Based on the plans submitted, one (1)

10' X 25' loading zone is required. This

has not been depicted, but must be shown on

the site plan prior to the issuance of a

building permit.

4. Based on the plans submitted, clear site

triangles need to be provided for both

directions of US 1 prior to the issuance of

a building permit.

* * *

11. Based on the plans submitted and th e

comments of the Monroe County Traffic

Consultant, a revised site plan must show

the vehicle maneuverability within the site

prior to the issuance of a building permit.

(R: 376 - 377.)

Staff recommended approval of the Major Conditional Use

application wi th conditions reflecting the above Findings of

Fact and Conclusions of Law, including that the applicant must

"meet the parking space dimension requirements, or receive a

variance prior to the issuance of a building permit"; that

"[t]he applicant must meet the handicapped parking space

requirement prior to the issuance of a building permit"; and

that "[t]he applicant must add the required clear site triangles

to the site plan prior to the issuance of a building permit."

Vehicle maneuverability and a loadin g zone meeting the

requirements previously mentioned must be met prior to the

issuance of a building permit. (R: 377 - 378.)

On March 26, 2003, a hearing was held before the Commission

to consider the three applications. (R: 1 - 214.) After hearing

testimo ny from members of the public, including but not limited

to Jill Patterson and Ms. Parker, and after considering other

evidence, and argument of counsel who represented the applicant

and Ms. Parker, the Commission approved each of the

applications. The Co mmission's decisions were memorialized in

three separate resolutions, Resolution Nos. P20 - 03, P21 - 03, and

P22 - 03. (R: 220 - 223, 254 - 256, 285 - 288.)

In particular, in Resolution No. P20 - 03, the Commission

conditionally approved Taylor Point Development Corp. 's request

for an application for a Minor Conditional Use for the transfer

of existing non - residential floor area from the sender. The

Commission noted, in part, that "[t]he applicant produced an

Affidavit of Ownership and Intent to Transfer letter signed by

Ace Blackburn, Jr., on March 26, 2003. It was determined by the

Director of Planning [Marlene Conaway] that this notarized

document meets the requirements of ownership." (R: 220.) See

also (R: 202 - 211.) The same statement is set forth in

Commission Resolution No. P21 - 03, regarding the receiver site

application decision. (R: 254.)

In a separate "WHEREAS" portion of Resolution No. P21 - 03,

the Commission stated: "the receiver site has two (2)

structures that total 10,960 square feet of nonresidenti al floor

area. The receiver structure is the existing, finished 3,524

square foot building closest to US 1. The other structure is

the existing, unfinished 7,436 square foot building closest to

Florida Bay." (R: 254.) With respect to the requirements o f

Article IV, Section 9.5 - 124.3.a.(10)b.vi., the Commission found

"the receiver structure is the 3,524 square foot building

closest to U.S. 1, which is not in the 'V' Zone, and has not

received any negative environmental points." (R: 255.) In

Resolution Nos. P20 - 03 and P21 - 03, the Commission adopted the

conditions recommended by staff. (R: 222, 256.) (Resolution

No. P20 - 03 was unanimously approved, whereas Resolution No. P21 -

03 was approved 4 to 1.)

In Resolution No. P22 - 03, the Commission conditionall y

approved the Taylor Point Development Corp.'s request for a

Major Conditional Use application for the completion of a

conference facility. (R: 285.) The Commission makes a

statement regarding the affidavit of ownership and affidavit of

intent to transf er letter referred to above in this Resolution.

(R: 285.) The Commission also noted in a "WHEREAS" clause:

[T]he proposed redevelopment will be

accomplished in two (2) stages involving the

use of transferable non - residential floor

area made available thr ough the County's

"NROGO" system. 1,800 square feet of

commercial floor area will be transferred to

the Taylor Point site (to the building

closest to US 1) where it will be used to

provide conference space and ancillary

support offices. The 1,800 square feet

already on the second floor of this building

will be internally transferred to the

unfinished building (closest to the bay).

(R: 285.)

Additionally, the Commission made the following Findings of

Fact and Conclusions of Law:

1. Based on the plans su bmitted, the

required number of parking spaces is being

met. Two (2) of the spaces are to be

located on the adjacent parcel, which is

within 300' of the subject property.

2. Based on the plans submitted, several of

the parking spaces may have inadequate

dimensions at the entrance to the space due

to the existing columns of the structure.

3. Based on the plans submitted, two (2)

handicapped spaces must be located on the

site.

4. Based on the plans submitted, one (1)

10' X 25' loading zone is required.

5. Based on the plans submitted, clear site

triangles need to be provided for both

directions of U.S. 1.

* * *

12. Based on the plans submitted and the

comments of the Monroe County Traffic

Consultant, a revised site plan must show

the vehicle maneuv erability within the site.

* * *

14. No enlargement or expansion of the

existing footprint of the building is

permitted.

(R: 286 - 287.)

In light of the Commission's Findings of Fact and

Conclusions of Law, the Commission, in approving the Major

Conditi onal Use application, also imposed several conditions,

including but not limited to the following:

1. A variance to the parking space

dimensions is granted for the entrance to

the spaces where impeded by the existing

columns for the structure. The remai nder of

the space must meet the minimum parking

space dimensions.

* * *

3. The applicant must meet the handicapped

parking space requirement by providing two

(2) handicapped parking spaces on the

revised site plan prior to the issuance of a

building permi t.

4. The applicant must meet the loading zone

requirements prior to the issuance of a

building permit.

5. The applicant must add the required

clear site triangles to the site plan prior

to the issuance of the building permit.

* * *

12. A revised si te plan must show the

vehicle maneuverability within the site plan

prior to the issuance of a building permit.

* * *

14. No enlargement or expansion of the

existing footprint of the building is

permitted.

(R: 287.)

The Commission unanimously approved th e requested Major

Conditional Use application. (R: 288.)

III. 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 h earing

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 may reject or

modify any conclusion o f 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

determination, but he may not reject or

mod ify 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 upon competent substantial evidence or

that the proceeding before the planning

co mmission 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 described as such evidence as will

esta blish 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 employing 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 are 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" evidence 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

substitute his or her judgment for th at 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 on appeal is not whether the record contains

competent substantial evidence supporting the vi ew of the

appellant; rather, the question is whether competent substantial

evidence supports the findings made by the Commission. Collier

Medical Center, Inc. v. State, Department of Health and

Rehabilitative Services , 462 So. 2d 83, 85 (Fla. 1st DCA 1985 ).

The issue of whether the Commission "complied with the

essential requirements of law" is synonymous with whether the

Commission "applied the correct law." Haines City Community

Development , 658 So. 2d at 530.

Parker contends that the Commission dep arted from the

essential requirements of law when it did not require compliance

with Objective 101.20 and Policy 101.20.1 of the Plan and

Article IV, Section 9.5 - 124(a)(5) of the NROGO.

Objective 101.20 of the Plan provides: "Monroe County

shall address local community needs while balancing the needs of

all Monroe County communities. These efforts shall focus on the

human crafted environment and shall be undertaken through the

Livable CommuniKeys Planning Program." Policy 101.20.1 provides

in part that "Monroe County shall develop a series of Community

Master Plans. Master Plans will be developed in accordance with

the following principles . . ."

Article IV, Section 9.5 - 124(a)(5), M.C.C. provides: "(a)

Purpose and intent : The purposes and intent of the non -

residential rate of growth ordinance are: . . . (5) To allocate

the non - residential floor area annually hereunder, based on the

goals, objectives and policies of the comprehensive plan and the

Livable CommuniKeys master plans." (Emphasis in origi nal.)

Essentially, Parker argues that the Commission cannot

approve a transfer of existing non - residential, here, commercial

square footage floor area unless and until Monroe County adopts

a master plan pursuant to Objective 101.20 and Policy 101.20.1.

I t is undisputed that Monroe County has not adopted a

master plan for Key Largo pursuant to this Objective and Policy.

However, adoption of a master plan is not required as a

condition precedent to approval of a transfer of commercial

floor area as contemp lated here under NROGO. The plain language

of the Plan provisions indicates that the intent is to require

consideration of community needs in light of developed master

plans when they are developed.

Further, Article IV, Section 9.5 - 124.3(a)(10)a. - d., M.C. C.,

sets forth the criteria to be considered for eligibility for the

"[t]ransfer off - site of existing non - residential floor area" and

these criteria do not require consideration of a master plan.

The general purpose and intent section in Article IV, Secti on

9.5 - 124(a)(5), M.C.C., should not be read to create an additional

criterion for approval of the transfer of commercial floor area

as approved by the Commission.

Second, Parker contends that the Commission erred in

approving the transfer from the sender site, The Quay, without a

proper affidavit of ownership provided with the sender site

application.

The former owner of The Quay was Konstantinos "Gus" Boulis,

who died in 2001. His estate is in probate in circuit court.

As noted above, the sender site a pplication requires an

affidavit of ownership of the person who transfers non -

residential floor area. The affidavit is to be filed with the

Director of Planning. (There is no cited provision of the

Monroe County Code which requires an affidavit of owners hip for

the sender site in an application requesting the transfer of

non - residential (commercial) floor area.)

The sender site application was signed under oath by Mr.

Craig on January 28, 2003. Mr. Craig is the agent for the

applicant, Taylor Point Devel opment Corp. Mr. Craig, as the

agent for Taylor Point Development Corp., also signed the

receiver site application under oath on January 28, 2003. On

January 23, 2003, Ms. Joan Wagner, a Personal Representative for

the Estate of Konstantinos "Gus" Boulis , executed under oath, an

"Authorization Form" which authorized Mr. Craig and "The Craig

Company to act on [her] behalf in all matters pertaining to the

filing of NROGO minor and any other conditional use applications

for the transfer of Commercial Floor a rea from the 'Quay'

restaurant located on Key Largo to the Taylor Point Conference

Center also located on Key Largo, Florida." This affidavit

accompanied the receiver site application.

This issue was discussed at length during the Commission

meeting. Con sideration of the sender site application was

continued to allow the applicant's attorney to provide the

Commission with an appropriate affidavit of ownership. When

consideration was resumed, the applicant's attorney produced a

sworn affidavit of Ace J. B lackburn, Jr., who stated that he is

a Personal Representative of the Estate of Gus Boulis, with the

case involving the estate pending in the circuit court in

Broward County, Florida, Case No. 2001 - 882; that The Quay Key

Largo restaurant property is an ass et of the Estate subject to

administration; that on behalf of the Estate and other Personal

Representatives, "it is the intent of the owner of the Quay Key

Largo restaurant to transfer 1800 square feet of commercial

development off - site to the Taylor Point Development Corp. site

in Key Largo, Florida"; and that "[t]he Estate's agents,

including Nicholas W. Mulick, Esq. and Donald L. Craig, are

fully authorized to take all reasonable steps to effectuate the

transfer of the square footage." (R: 424.) This a ffidavit is

mentioned by the Commission in Resolution Nos. P20 - 03 and P21 -

03, reciting, in part, that "[i]t was determined by the Director

of Planning that this notarized document meets the requirements

of ownership." (R: 202 - 211, 220, 254.) See Art. IV, §§ 9.5 - 42,

9.5 - 44, 9 - 5.62, and 9 - 5.64, M.C.C. This statement and the

implicit finding that there was sufficient evidence presented of

ownership and authorization are supported by competent,

substantial evidence.

Parker also contends that the "publish ed legal notice" for

the Commission hearing incorrectly referenced Section 9.5 - 265,

instead of Section 9.5 - 124, which resulted in a denial of

procedural due process. (Section 9.5 - 265 pertains to

transferable residential development rights not commercial, and

Section 9.5 - 124 pertains to NROGO (non - residential rate of

growth ordinance).)

The Record on Appeal does not contain any hearing notice, a

point discussed during oral argument. Therefore, it is

difficult to determine if the notice of hearing was

imp ermissibly defective. But see (R: 3) in which Commission

counsel John Wolfe introduced the item for consideration and

stated in part: "Minor conditional use application. The Quay

Restaurant is requesting a transfer of commercial floor area as

permitted in Section 9.5 - 265 of Monroe County Code. Square

footage of 1,800 will be transferred from the sender site, the

Quay Restaurant, to the receiver site." See also (R: 78.)

Compare with (R: 18 - 19) argument of Jill Patterson. The

Planning Director, Ms. Con away, stated that the citation to

Section 9.5 - 265 "was an administrative error." (R: 93.) The

incorrect cite is mentioned by Mr. Wolfe and Ms. Patterson. In

context, it is clear that the request is to transfer commercial

floor area and not residential d evelopment rights.

Nevertheless, Parker did not ask to continue the hearing

based on a lack of notice or a defect therein and, in fact,

participated in the hearing and was represented by counsel. If

there was a defect in the hearing notice, and there is no

finding made herein that there was, it was waived by Parker.

See City of Jacksonville v. Huffman , 764 So. 2d 695 (Fla. 1st

DCA 2000); Schumacher v. Town of Jupiter , 643 So. 2d 8 (Fla. 4th

DCA 1994), rev. denied , 654 So. 2d 919 (Fla. 1995).

Next, P arker argues that the Commission erred in approving

the transfer of the 1,800 square feet of commercial floor area

from the sender site to the receiver site in light of Article

IV, Section 9.5 - 124.3(a)(10)b.vi. which states: " Criteria for

redevelopment of non - residential floor area off - site : In order

to redevelop off - site, a receiver site shall be evaluated for

site conditions and shall meet all of the following criteria:

. . . vi. Is not located in a 'V' zone pursuant to subsection

9.5 - 124.8(a)(8)." (E mphasis in original.) (Subsection 9.5 -

124.8(a)(8) pertains to coastal high hazard area and assigns

points which are intended to discourage development in a coastal

high hazard area.) Staff evaluated this issue and stated that

"[t]he receiver site has 10, 960 square feet of non - residential

floor area. The site has two (2) structures. One is the

existing conference room and ancillary offices, which consists

of 3,524 square feet and the other structure is the existing,

but unfinished conference space. It i s 7,436 square feet in

size." (R: 276.) Staff also considered Subsection 9.5 -

124.3(a)(10)b.vi. as it applied to the receiver site

application, and determined that "[t]he receiver structure is

the 3,524 square foot building closest to U.S. 1. It is not i n

the 'V' Zone and has not received any negative environmental

points." (R: 277) (This statement was adopted by the

Commission in Resolution No. P21 - 03. (R: 255.)) See also (R:

372) in which staff analyzes this issue in the context of the

application f or the Major Conditional Use application, in part,

as follows:

The proposed redevelopment will be accomplished in two

(2) stages involving the use of transferable non -

residential floor area made available through the

county's "NROGO" system. Specificall y, 1,800 square

feet of commercial floor area now located in the Quay

Restaurant at Mile Marker 102 will be transferred to

the site. The 1,800 square feet will be transferred

to the Taylor Point site to the building closest to US

1, where it will be used to provide conference space

and ancillary support offices. The 1,800 square feet

already on the second floor of this building will be

internally transferred to the building whose

construction has been halted.

Existing on site at the present time is appr oximately

7,436 square feet of restaurant and conference center,

which is incomplete, and the operating building of

3,524 square feet.

(R: 372.)

Article IV, Section 9.5 - 124, M.C.C, defines "site" to mean

"the parcel(s) of land or parcels required to be aggregated

under section 9.5 - 256 to be developed or from which existing

non - residential floor area is to be transferred or received ."

(Emphasis added.) " Parcel of land means any quantity of land

and water capable of being described with such definiteness that

its location and boundaries may be established, which is

designated by its owner or developer as land to be used or

developed as a unit, or which has been used or developed as a

unit." Art. IV, § 9.5 - 4(P - 1), M.C.C. (Emphasis in original.)

The Taylo r Point property consists of four (4) lots as set

forth in a deed and survey. (R: 266; 269.) There is competent,

substantial evidence to support the Commission's implicit

finding that the receiving structure is located on Lot 1 (and in

the "A" zone), on a separate and independent site and parcel

from parts of Lots 2 - 4, a portion of which is located in the "V"

zone. The Commission's Resolution No. P21 - 03 approves the

transfer of the commercial floor area to the receiver site, not

the contemplated subseque nt transfer of this floor area to the

unfinished building closest to the bay, see (R: 254 - 255),

notwithstanding the Commission's statement in the fourth

"WHEREAS" clause of Resolution No. P22 - 03 that "the proposed

development will be accomplished in two (2 ) stages. . . ." (R:

285.) See also Commission Answer Brief, p. 12. No decision is

reached herein regarding whether the 1,800 square feet of floor

area may be transferred as an "internal transfer." Id.

Finally, Parker contends that the Commission er red in

approving the Major Conditional Use application without

requiring a variance for parking, fire turning radius, and side

yard setbacks. Parker contends that such approval violates

procedural due process because of "a lack of notice and a real

opport unity to be heard." Parker Initial Brief, p. 17.

Parking is planned for underneath the building. The

underneath space is open except for columns, which are depicted

in a revised Site Plan dated February 4, 2003. (R: 329.)

Staff determined that the requ ired number of parking spaces

was met, except that "only 14 of these spaces meet the required

8'6" X 18' dimensions," which "leaves 24 spaces with inadequate

dimensions." Staff noted that this "issue must be addressed

prior to the issuance of a building p ermit" (R: 376), and

specifically noted that the "dimensions of required parking

spaces," pursuant to Section 9.5 - 351(a), were not in compliance.

(R: 374.)

During the hearing, Mr. Craig explained that this issue,

and comments made during the hearin g, referred to the support

columns depicted on the Site Plan. (R: 128, 329.) (Mr. Craig

also referred to a revised Site Plan of March 17, 2003, in order

to respond to comments from staff, but the March 17, 2003,

revised Site Plan was not substituted for the February 4, 2003,

revised Site Plan. (R: 138 - 139.)) But for the columns, the

proposed planned parking spaces would meet code requirements.

Art. IV, § 9.5 - 351(a), M.C.C. In order to protect the columns

from being hit by a motor vehicle, Mr. Craig re quested a

decrease in the width of several parking spaces from eight and

one - half feet to eight feet. Mr. Craig also stated that if the

Commission felt the columns were not in need of protection which

he did not recommend, then the parking spaces would be eight and

one - half feet wide. (R: 129.) It was Mr. Craig's position that

the Commission could waive the eight and one - half foot

requirement. (R: 134.)

The Commission inquired of Mr. Stuncard regarding reducing

the width of only the parking spaces affe cted by the columns.

Mr. Stuncard supposed that decision would be within the

Commission's discretion. (R: 180.) Mr. Stuncard received

additional clarification from the Commission that "allowing the

entryway of each space to not meet the minimum, as long as the

remainder of the spaces do." (R: 183.)

This parking space issue was discussed by the applicant,

analyzed by staff, commented upon and objected to by Ms. Parker

and Ms. Patterson, and resolved by the Commission when the

Commission approved the Maj or Conditional Use. The Commission

did not depart from the essential requirements of law.

Regarding the application for a Major Conditional Use, the

applicant is not requesting to alter the footprint of the

existing structure. The Commission conditional ly approved a

project (a Major Conditional Use) to complete a conference

facility. (R: 285.) In particular, the Commission expressly

stated: "No enlargement or expansion of the existing footprint

of the building is permitted." (R: 287 at paragraph 14. )

Notwithstanding, there is conflicting evidence on the

setback issue, and it is a subject of some confusion, see , e.g. ,

(R: 131, 142, 149, 159.) For example, Frederick H.

Hildebrandt's boundary survey indicates that the east side of

the "C.B.S. Building" has a boundary note of 4.50 feet on the

northeast corner and 4.63 feet on the southeast corner, which

indicates an encroachment on the five foot side yard setback.

(R: 269, 328.) The revised Site Plan of February 4, 2003,

reflects a five foot side yard setback and a rear setback, but

with no discernable encroachment. (R: 329.)

The setback issue was evaluated by staff and presented to

the Commission, with Ms. Patterson raising the issue. See ,

e.g. , (R: 149, 380.)

Staff determined that the yards and sh oreline setbacks were

in compliance. (R: 122, 375.) See also p. 10, supra . This

determination appears to be based on the vested rights

determination in Resolution No. 194 - 1998 (R: 351 - 352). Id.

During the hearing, questions were raised regarding the v ested

rights determination and not specifically resolved, (R: 173 - 179,

190 - 200), except for the Commission's conditional approval of

the Major Conditional Use application for the completion of a

conference facility and the Commission's express determinatio n

that the existing footprint of the building may not be enlarged

or expanded. (R: 188, 287.) It appears that the Commission did

not consider the project as new construction, id. , and Article

IV, Section 9.5.281, M.C.C., (minimum yard setbacks) "[a]pplie s

to new construction only." 2 The Commission did not depart from

the essential requirements of law.

Finally, Parker does not cite to a specific provision of

the Monroe County Code which prohibits, absent a variance, a

fire turning radius within a setback .

DECISION

Based upon the foregoing, the Commission's decisions in

Resolution Nos. P20 - 03, P21 - 03, and P22 - 03 are AFFIRMED.

DONE AND ORDERED this 1st day of December, 2003, in

Tallahassee, Leon County, Florida.

S

___________________________________

CH ARLES 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 Cler k of the

Division of Administrative Hearings

this 1st day of December, 2003.

ENDNOTES

1 / Parker filed separate applications in order to appeal each

Resolution. Each appeal was assigned a separate case number,

i.e. , DOAH Cas e Nos. 03 - 2397, 03 - 2398, and 03 - 2399, which were

consolidated. Ultimately, one consolidated Record on Appeal,

consisting of three volumes, was filed and considered in this

appeal. Order, July 17, 2003. Without objection Taylor Point

Development Corporati on and Estate of Constantine "Gus" Boulis

were granted leave to intervene. Order, July 24, 2003.

2 / The expiration of the vested rights determination is

mentioned in Appellant's Statement of the Case and Facts in the

Initial Brief, page 8, footnote 4, b ut no legal argument is

made. The Commission, in its Answer Brief, relies, in part, on

the vested rights determination. Commission Answer Brief, p.

13. In the Reply Brief, Appellant, in response to the

Commission's Answer Brief, argues for the first tim e that

"[o]nce vested rights were extinguished, the present day

requirements of the Code, including the variance provisions,

should apply." Reply Brief, p. 11 - 12. See Snyder v. Volkswagen

of America, Inc. , 574 So. 2d 1161 (Fla. 4th DCA 1991)("An issue

ra ised for the first time on appeal in appellants' reply brief,

even though properly preserved for appeal, will not be

considered by this court." (Citations omitted.)) See also Art.

XIV, § 9.5 - 539(d), M.C.C. No decision is reached regarding the

issue raise d in the Reply Brief.

COPIES FURNISHED :

Karen K. Cabanas, Esquire

Morgan & Hendrick

317 Whitehead Street

Key West, Florida 33040

Nicholas W. Mulick, Esquire

Nicholas W. Mulick, P.A.

91645 Overseas Highway

Tavernier, Florida 33070

Lee Robert Rohe, Esquire

Lee Robert Rohe, P.A.

25000 Overseas Highway, Suite 2

Summerland Key, Florida 33042

Nicole Petrick, Planning Commission Coordinator

Monroe County Growth Management Division

2798 Overseas Highway, Suite 400

Marathon, Florida 33050

NOTICE OF RIG HTS

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 judic ial circuit.