03-002398
Dorothy Parker vs.
Monroe County Planning Commission
Status: Closed
DOAH Final Order on Wednesday, November 26, 2003.
DOAH Final Order on Wednesday, November 26, 2003.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8DOROTHY PARKER, )
11)
12Appellant, )
14)
15vs. ) Case Nos. 03 - 2397
22) 03 - 2398
26MONROE COUNTY PLANNING ) 03 - 2399
33COMMISSION, )
35)
36Appellee, )
38)
39and )
41)
42TAYLOR POINT DEVELOPMENT )
46CORPORATION and ESTATE OF )
51KONSTANTINOS "GUS" BOULIS, )
55)
56Intervenors. )
58)
59FINAL ORDER
61Appellant, Dorothy Parker (Parker), seeks review of Monroe
69County Planning Commission (Commission) Resolution Nos. P20 - 03,
78P21 - 03, and P22 - 03, approved by the Commission on March 26,
922003. 1 Parker's appeals were timely filed. The Division of
102Administrative Hearings, by contract, and pursuant to Article
110XIV, Section 9.5 - 535, Monroe County Code (M.C.C.), has
120jurisdiction to consider these consolidated appeals. Parker
127submitted an Initial Brief and a Reply Brief. The Commission
137and Intervenors submitted separate Answer Briefs. Oral argument
145was presented during a telephone hearing held on November 17,
1552003.
156I. Issues
158P arker raises four issues on appeal: (1) whether the
168Commission departed from the essential requirements of law by
177approving a transfer of 1,800 square feet of commercial floor
188area without consideration of a master plan for Key Largo in
199violation of Monroe County Comprehensive Plan (Plan), and Monroe
208County's NROGO (non - residential rate of growth ordinance),
217Article IV, Section 9.5 - 124(a)(5), M.C.C., and Plan Objective
227101.20 and Policy 101.20.1; (2) whether the Commission erred in
237failing to require an aff idavit of ownership from The Quay
248Restaurant (The Quay), the sender site, and whether the
257Commission violated procedural due process when it incorrectly
265referred to Section 9.5.265 instead of Section 9.5 - 124 in the
277published legal notice of hearing; (3) wh ether the Commission
287erred in authorizing the transfer of 1,800 square feet of
298commercial floor area to the receiver site pursuant to Article
308IV, Section 9.5 - 124(10)b.vi., M.C.C., which requires, in part,
318that the receiver site not be "located in a 'V' Zon e pursuant to
332Section 9.5 - 124.8(a)(8)"; and (4) whether the Commission erred
342in approving a Major Conditional Use application by not
351requiring a variance for the site plan's parking, fire turning
361radius, and side yard setbacks.
366II. Background
368On or about January 28, 2003, Taylor Point Development
377Corp. (Taylor Point), by its agent, Donald L. Craig, A.I.C.P.,
387The Craig Company, filed an application to transfer 1,800 square
398feet of commercial floor area from The Quay Restaurant (the
408sender site) on Key Larg o, Monroe County, Florida. (Record on
419Appeal (R:) (R: 223, 345.))
424The sender site has approximately 9,925 square feet of non -
436residential floor area, and was not in operation at the time the
448application was filed. The application refers to the sender
457si te property owner as "KB Holdings." The application contains
467a document entitled "Sender Site Attachment A" (R: 225), which
477provides in part:
480· PROOF OF OWNERSHIP: The owner of land
488who transfers non - residential floor area
495shall prepare an affidavit of ow nership and
503an affidavit of intent to transfer in
510conformance with a form provided by the
517director of planning. The affidavit shall
523be filed with the director of planning at
531least thirty (30) days prior to the
538submission of an application for Transfer of
545Commercial Floor Area which will be reviewed
552as a Minor Conditional Use.
557No such affidavits accompanied this application.
563On or about January 28, 2003, a second application was
573filed on behalf of the receiver site and a Minor Conditional Use
585was requested . The applicant's name is Taylor Point Development
595Corp., and the application was filed by Mr. Craig. The receiver
606site property owner is listed as Taylor Point Development Corp.
616The legal description of the receiver site property is provided:
"626See att ached survey. A portion of Lots 8 & 10, Section 11,
639Township 61 South, Range 32 East on Key Largo, Model Land
650Company Plat." See (R: 258, 269) and discussion below. The
660street address is 10380 Overseas Highway, Key Largo, Florida.
669The existing use of t he receiver site was listed as "conference
681rooms, ancillary offices and incomplete conference center." The
689gross floor area in square feet of the receiver site was
700represented to be 10,960 square feet.
707The instructions to this receiver site application
714included, in part: " PROOF OF OWNERSHIP O F RECEIVING SITE :
725deed, lease or appending sale contract." (R: 259.) Included
734with the application was an authorization form signed under oath
744by Joan Wagner, a Personal Representative. (R: 261.) This
753authoriza tion form stated, in part: "I, Joan Wagner, do hereby
764authorize Donald L. Craig and The Craig Company to act on my
776behalf in all matters pertaining to the filing of NROGO minor
787and any other conditional use applications for the transfer of
797Commercial Floo r area from the "Quay" restaurant located on Key
808Largo to the Taylor Point Conference Center also located in Key
819Largo, Florida." Id.
822The receiver site application also contains a Quit - Claim
832Deed executed October 1, 1994, by Twin Harbors, Inc. to Taylor
843P oint Development Corp., for land described as follows: "LOTS
8531, 2, 3 AND 4 OF TAYLOR'S POINT, ACCORDING TO THE MAP OR PLAT
867THEREOF, AS RECORDED IN PLAT BOOK 4, PAGE 148 OF THE PUBLIC
879RECORDS OF MONROE COUNTY, FLORIDA." (R: 266.) (The receiver
888site prope rty legal description provides, in part: "A portion of
899Lots 8 and 9, Section 11, Township 61 South, Range 39 East on
912Key Largo, according to Model Land Company's Plat. . . . AND
924ALSO KNOWN AS: Lots 1 through 4. . . ." (R: 269, 298, 328.)
938On or about Feb ruary 3, 2003, Mr. Craig filed a third
950application for development approval for a Major Conditional
958Use. (R: 290.) The applicant's name and property owner are
968listed as Taylor Point Development Corp. The application
976indicates that the present use of the property is "[c]onference
986rooms, offices, incomplete building" and the proposed use of the
996property is listed as "12,760 sq. ft. conference center and
1007offices." (R: 291.) This application also references the
1015NROGO transfer applied for on January 28, 20 03. Numerous
1025documents are attached to this application, including but not
1034limited to proof of ownership, which consists of the Quit - Claim
1046Deed mentioned above. A location map, photographs, sealed and
1055signed survey, a revised site plan (R: 329), floor pl ans, and
1067other documents accompanied the application. (R: 292.)
1074Jeff Stuncard, Senior Planner, prepared separate memoranda
1081to the Development Review Committee regarding the sender and
1090receiver site applications. (R: 234 - 235, 270 - 272.)
1100Mr. Stuncard, in c onjunction with Niko Reisinger, biologist,
1109prepared a separate Memorandum to the Development Review
1117Committee regarding the third application for the requested
1125Major Conditional Use. (R: 360 - 366.)
1132On March 12, 2003, the Development Review Committee
1140unani mously approved the transfer of the commercial floor area
1150of 1,800 square feet from the sender site, The Quay, to the
1163finished structure at Taylor Point. (R: 236 - 238, 273 - 275.) On
1176March 25, 2003, the Development Review Committee unanimously
1184recommended t o the Commission approval of the Major Conditional
1194Use for the Taylor Point Development Corp. to complete ancillary
1204offices and a conference center. (R: 367 - 371.)
1213On March 11, 2003, Mr. Stuncard prepared two separate
1222memoranda (for the Commission) regard ing the sender and receiver
1232site applications which were almost identical to the memoranda
1241he prepared for the Development Review Committee. (R: 239 - 240,
1252276 - 278.)
1255Mr. Stuncard's Memorandum regarding the sender site
1262application reflects that the applican t was requesting a
1271transfer of floor area of 1,800 square feet of commercial floor
1283area from The Quay, which has 9,925 square feet of non -
1296residential floor area, and is currently not in operation. (R:
1306239.) Mr. Stuncard, under the heading "Staff Review," states:
1315The application requests approval of the
1321transfer of 1,800 sq. ft. of non - residential
1331floor area from property located on the
1338North 1/2 of Tract 8 and Tracts 9 & 10,
1348Second Amended and Revised Plat of Lee
1355Shores, Plat Book 2, Page 97, MM 102, Key
1364Largo, to property located on a portion of
1372Lots 8 & 10, Section 11, Township 61 South,
1381Range 39 East on Key Largo, Model Land
1389Company Plat, MM 103.8, Key Largo. The
1396records of the Monroe County Property
1402Appraiser indicate that the building on the
1409sender s ite was built in 1958. It served as
1419the Quay restaurant until recently closing.
1425Any development on the receiver's site would
1432require additional Major Conditional Use
1437approval.
1438Staff recommended approval of the transfer of floor area from
1448the sender sit e as requested with two conditions which required
1459demolition of the sending site structure prior to the issuance
1469of a building permit for the non - residential floor area on the
1482receiver site. (R: 240.)
1486Mr. Stuncard also issued a Memorandum (for the receiv er
1496site application) with respect to the transfer of the 1,800
1507square feet of commercial floor area from the sender site to the
1519receiver site. In particular, under the section noted "Staff
1528Review," the Memorandum states:
1532The application requests approval of the
1538transfer of 1,800 sq. ft. of non - residential
1548floor area from property located on the
1555North 1/2 of Tract 8 and Tracts 9 & 10,
1565Second Amended and Revised Plat of Lee
1572Shores, Plat Book 2, Page 97, MM 102, Key
1581Largo, to property located on a portion of
1589Lots 8 & 10, Section 11, Township 61 South,
1598Range 32 East on Key Largo, Model Land
1606Company Plat, MM 103.8, Key Largo. The
1613records of the Monroe County Property
1619Appraiser indicate that the southernmost
1624building on the receiver site was built in
16321972. It c urrently serves as conference and
1640office space. The second building on the
1647site, which is unfinished, is at the
1654northern end of the property and is 7,436
1663square feet. The Property Appraiser records
1669do not indicate that the building is on - site
1679because the structure never received a
1685certificate of occupancy. Any development
1690on the receiver site would require
1696additional Major Conditional Use approval.
17011. 9.5 - 124.3.a.(10)b. The receiver site
1708evaluated for site conditions meets the
1714following criteria:
1716i. Has existing lawfully established
1721non - residential floor area and is an
1729infill site; and
1732ii. Is located in the same ROGO subarea
1740as the sender site; and
1745iii. Is not a commercial retail high
1752intensity use that will generate more
1758than 150 trips per 1,00 0 square feet
1767of floor area; and
1771iv. Is not located on Big Pine Key, No
1780Name Key or within a CARL acquisition
1787area; and
1789v. Receives no negative environmental
1794points when evaluated; and
1798vi. Is not located in a "V" zone; and
1807vii. Is not located in a coastal barrier
1815resources system; and
1818viii. Is not located in an offshore
1825island/conservation land protection
1828area.
1829The receiver structure is the 3,524 square
1837foot building closest to U.S. 1. It is not
1846in the "V" zone and has not received any
1855negative e nvironmental points.
1859(R: 277.)
1861Staff recommended approval of the floor area transfer to
1870the receiver site with three conditions, including the
1878demolition as described above, and the recordation of the
1887transfer of ownership and all other legal documents prior to the
1898issuance of a development order. (R: 278.)
1905On March 21, 2003, Mr. Stuncard and Mr. Reisinger prepared
1915a Memorandum to the Commission regarding the application for the
1925Major Conditional Use filed on behalf of Taylor Point
1934Development Corp. ( R: 372 - 378.) The proposed use and size of
1947the project is described as follows:
1953The applicant is proposing to complete a
1960conference facility at its Taylor Point site
1967at Mile Marker 103.8, adjacent to the
1974Marriott Hotel. The proposed project will
1980consist o f the existing building which will
1988be modified to provide additional conference
1994room space and ancillary offices, and the
2001existing building to the north (bayside)
2007will be completed. Presently, the
2012construction of the building, which was
2018authorized by a ve sted rights order dating
2026from 1998, has been halted.
2031The proposed redevelopment will be
2036accomplished in two (2) stages involving the
2043use of transferable non - residential floor
2050area made available through the county's
"2056NROGO" system. Specifically, 1,800 sq uare
2063feet of commercial floor area now located in
2071the Quay Restaurant at Mile Marker 102 will
2079be transferred to the site. The 1,800
2087square feet will be transferred to the
2094Taylor Point site to the building closest to
2102US 1, where it will be used to provide
2111conference space and ancillary support
2116offices. The 1,800 square feet already on
2124the second floor of this building will be
2132internally transferred to the building whose
2138construction has been halted.
2142Existing on site at the present time is
2150approximately 7 ,426 square feet of
2156restaurant and conference center, which is
2162incomplete, and the operating building of
21683,524 square feet.
2172(R: 372.)
2174Staff reviewed the application for compliance with the
2182requirements of Article IV, Section 9.5 - 65, M.C.C., which are
2193appl icable to all conditional uses. (R: 374.) In part, staff
2204determined that the "dimensions of the required parking spaces"
2213were not in compliance with Section 9.5 - 351(a). Staff also
2224determined that the minimum yards and shoreline setback
2232requirements were "in compliance and require staff discussion."
2240(R: 122, 375.) Staff noted regarding this item: "The building
2250and access road that are there were approved and constructed in
2261their current location, and vested by Resolution #194 - 1998."
2271Id. See also (R: 35 1 - 352.)
2279Relevant here, staff made the following Findings of Fact
2288and Conclusions of Law:
22921. Based on the plans submitted, the
2299required number of parking spaces is being
2306met, however only 14 of these spaces meet
2314the required 8'6" X 18' dimensions. This
2321leaves 24 spaces with inadequate dimensions.
2327This issue must be addressed prior to the
2335issuance of a building permit.
23402. Based on the plans submitted, two (2)
2348handicap spaces must be located on the site.
2356One (1) of these spaces is represented and
2364on e (1) is not. A revised site plan must
2374show the additional handicapped parking
2379space prior to the issuance of a building
2387permit.
23883. Based on the plans submitted, one (1)
239610' X 25' loading zone is required. This
2404has not been depicted, but must be shown on
2413the site plan prior to the issuance of a
2422building permit.
24244. Based on the plans submitted, clear site
2432triangles need to be provided for both
2439directions of US 1 prior to the issuance of
2448a building permit.
2451* * *
245411. Based on the plans submitted and th e
2463comments of the Monroe County Traffic
2469Consultant, a revised site plan must show
2476the vehicle maneuverability within the site
2482prior to the issuance of a building permit.
2490(R: 376 - 377.)
2494Staff recommended approval of the Major Conditional Use
2502application wi th conditions reflecting the above Findings of
2511Fact and Conclusions of Law, including that the applicant must
"2521meet the parking space dimension requirements, or receive a
2530variance prior to the issuance of a building permit"; that
"2540[t]he applicant must meet the handicapped parking space
2548requirement prior to the issuance of a building permit"; and
2558that "[t]he applicant must add the required clear site triangles
2568to the site plan prior to the issuance of a building permit."
2580Vehicle maneuverability and a loadin g zone meeting the
2589requirements previously mentioned must be met prior to the
2598issuance of a building permit. (R: 377 - 378.)
2607On March 26, 2003, a hearing was held before the Commission
2618to consider the three applications. (R: 1 - 214.) After hearing
2629testimo ny from members of the public, including but not limited
2640to Jill Patterson and Ms. Parker, and after considering other
2650evidence, and argument of counsel who represented the applicant
2659and Ms. Parker, the Commission approved each of the
2668applications. The Co mmission's decisions were memorialized in
2676three separate resolutions, Resolution Nos. P20 - 03, P21 - 03, and
2688P22 - 03. (R: 220 - 223, 254 - 256, 285 - 288.)
2701In particular, in Resolution No. P20 - 03, the Commission
2711conditionally approved Taylor Point Development Corp. 's request
2719for an application for a Minor Conditional Use for the transfer
2730of existing non - residential floor area from the sender. The
2741Commission noted, in part, that "[t]he applicant produced an
2750Affidavit of Ownership and Intent to Transfer letter signed by
2760Ace Blackburn, Jr., on March 26, 2003. It was determined by the
2772Director of Planning [Marlene Conaway] that this notarized
2780document meets the requirements of ownership." (R: 220.) See
2789also (R: 202 - 211.) The same statement is set forth in
2801Commission Resolution No. P21 - 03, regarding the receiver site
2811application decision. (R: 254.)
2815In a separate "WHEREAS" portion of Resolution No. P21 - 03,
2826the Commission stated: "the receiver site has two (2)
2835structures that total 10,960 square feet of nonresidenti al floor
2846area. The receiver structure is the existing, finished 3,524
2856square foot building closest to US 1. The other structure is
2867the existing, unfinished 7,436 square foot building closest to
2877Florida Bay." (R: 254.) With respect to the requirements o f
2888Article IV, Section 9.5 - 124.3.a.(10)b.vi., the Commission found
"2897the receiver structure is the 3,524 square foot building
2907closest to U.S. 1, which is not in the 'V' Zone, and has not
2921received any negative environmental points." (R: 255.) In
2929Resolution Nos. P20 - 03 and P21 - 03, the Commission adopted the
2942conditions recommended by staff. (R: 222, 256.) (Resolution
2950No. P20 - 03 was unanimously approved, whereas Resolution No. P21 -
296203 was approved 4 to 1.)
2968In Resolution No. P22 - 03, the Commission conditionall y
2978approved the Taylor Point Development Corp.'s request for a
2987Major Conditional Use application for the completion of a
2996conference facility. (R: 285.) The Commission makes a
3004statement regarding the affidavit of ownership and affidavit of
3013intent to transf er letter referred to above in this Resolution.
3024(R: 285.) The Commission also noted in a "WHEREAS" clause:
3034[T]he proposed redevelopment will be
3039accomplished in two (2) stages involving the
3046use of transferable non - residential floor
3053area made available thr ough the County's
"3060NROGO" system. 1,800 square feet of
3067commercial floor area will be transferred to
3074the Taylor Point site (to the building
3081closest to US 1) where it will be used to
3091provide conference space and ancillary
3096support offices. The 1,800 square feet
3103already on the second floor of this building
3111will be internally transferred to the
3117unfinished building (closest to the bay).
3123(R: 285.)
3125Additionally, the Commission made the following Findings of
3133Fact and Conclusions of Law:
31381. Based on the plans su bmitted, the
3146required number of parking spaces is being
3153met. Two (2) of the spaces are to be
3162located on the adjacent parcel, which is
3169within 300' of the subject property.
31752. Based on the plans submitted, several of
3183the parking spaces may have inadequate
3189dimensions at the entrance to the space due
3197to the existing columns of the structure.
32043. Based on the plans submitted, two (2)
3212handicapped spaces must be located on the
3219site.
32204. Based on the plans submitted, one (1)
322810' X 25' loading zone is required.
32355. Based on the plans submitted, clear site
3243triangles need to be provided for both
3250directions of U.S. 1.
3254* * *
325712. Based on the plans submitted and the
3265comments of the Monroe County Traffic
3271Consultant, a revised site plan must show
3278the vehicle maneuv erability within the site.
3285* * *
328814. No enlargement or expansion of the
3295existing footprint of the building is
3301permitted.
3302(R: 286 - 287.)
3306In light of the Commission's Findings of Fact and
3315Conclusions of Law, the Commission, in approving the Major
3324Conditi onal Use application, also imposed several conditions,
3332including but not limited to the following:
33391. A variance to the parking space
3346dimensions is granted for the entrance to
3353the spaces where impeded by the existing
3360columns for the structure. The remai nder of
3368the space must meet the minimum parking
3375space dimensions.
3377* * *
33803. The applicant must meet the handicapped
3387parking space requirement by providing two
3393(2) handicapped parking spaces on the
3399revised site plan prior to the issuance of a
3408building permi t.
34114. The applicant must meet the loading zone
3419requirements prior to the issuance of a
3426building permit.
34285. The applicant must add the required
3435clear site triangles to the site plan prior
3443to the issuance of the building permit.
3450* * *
345312. A revised si te plan must show the
3462vehicle maneuverability within the site plan
3468prior to the issuance of a building permit.
3476* * *
347914. No enlargement or expansion of the
3486existing footprint of the building is
3492permitted.
3493(R: 287.)
3495The Commission unanimously approved th e requested Major
3503Conditional Use application. (R: 288.)
3508III. Legal Discussion
3511The Division of Administrative Hearings has jurisdiction
3518over the subject matter of this proceeding and of the parties
3529pursuant to Article XIV, Section 9.5 - 535, M.C.C. The h earing
3541officer "may affirm, reverse or modify the order of the planning
3552commission." Article XIV, Section 9.5 - 540(b), M.C.C. The scope
3562of the hearing officer's review under Article XIV is:
3571The hearing officer's order may reject or
3578modify any conclusion o f law or
3585interpretation of the Monroe County land
3591development regulations or comprehensive
3595plan in the planning commission's order,
3601whether stated in the order or necessarily
3608implicit in the planning commission's
3613determination, but he may not reject or
3620mod ify any findings of fact unless he first
3629determines from a review of the complete
3636record, and states with particularity in his
3643order, that the findings of fact were not
3651based upon competent substantial evidence or
3657that the proceeding before the planning
3663co mmission on which the findings were based
3671did not comply with the essential
3677requirements of law.
3680Id. "The hearing officer's final order shall be the final
3690administrative action of Monroe County." Article XIV, Section
36989.5 - 540(c), M.C.C.
3702In DeGroot v . Sheffield , 95 So. 2d 912 (Fla. 1957), the
3714court discussed the meaning of "competent substantial evidence"
3722and stated:
3724We have used the term "competent substantial
3731evidence" advisedly. Substantial evidence
3735has been described as such evidence as will
3743esta blish a substantial basis of fact from
3751which the fact at issue can be reasonably
3759inferred. We have stated it to be such
3767relevant evidence as a reasonable mind would
3774accept as adequate to support a conclusion.
3781. . . In employing the adjective "competent"
3789to modify the word "substantial" we are
3796aware of the familiar rule that in
3803administrative proceedings the formalities
3807and the introduction of testimony common to
3814the courts of justice are not strictly
3821employed. . . . We are of the view,
3830however, that the evidence relied upon to
3837sustain the ultimate findings should be
3843sufficiently relevant and material that a
3849reasonable mind would accept it as adequate
3856to support the conclusion reached. To this
3863extent, the "substantial" evidence should
3868also be "competent."
3871Id. at 916. (Citations omitted.)
3876A hearing officer (administrative law judge) acting in his
3885or her appellate review capacity is without authority to reweigh
3895conflicting testimony presented to the Commission or to
3903substitute his or her judgment for th at of the Commission on the
3916issue of the credibility of witnesses. See Haines City
3925Community Development v. Heggs , 658 So. 2d 523, 530 (Fla. 1995).
3936The question on appeal is not whether the record contains
3946competent substantial evidence supporting the vi ew of the
3955appellant; rather, the question is whether competent substantial
3963evidence supports the findings made by the Commission. Collier
3972Medical Center, Inc. v. State, Department of Health and
3981Rehabilitative Services , 462 So. 2d 83, 85 (Fla. 1st DCA 1985 ).
3993The issue of whether the Commission "complied with the
4002essential requirements of law" is synonymous with whether the
4011Commission "applied the correct law." Haines City Community
4019Development , 658 So. 2d at 530.
4025Parker contends that the Commission dep arted from the
4034essential requirements of law when it did not require compliance
4044with Objective 101.20 and Policy 101.20.1 of the Plan and
4054Article IV, Section 9.5 - 124(a)(5) of the NROGO.
4063Objective 101.20 of the Plan provides: "Monroe County
4071shall address local community needs while balancing the needs of
4081all Monroe County communities. These efforts shall focus on the
4091human crafted environment and shall be undertaken through the
4100Livable CommuniKeys Planning Program." Policy 101.20.1 provides
4107in part that "Monroe County shall develop a series of Community
4118Master Plans. Master Plans will be developed in accordance with
4128the following principles . . ."
4134Article IV, Section 9.5 - 124(a)(5), M.C.C. provides: "(a)
4143Purpose and intent : The purposes and intent of the non -
4155residential rate of growth ordinance are: . . . (5) To allocate
4167the non - residential floor area annually hereunder, based on the
4178goals, objectives and policies of the comprehensive plan and the
4188Livable CommuniKeys master plans." (Emphasis in origi nal.)
4196Essentially, Parker argues that the Commission cannot
4203approve a transfer of existing non - residential, here, commercial
4213square footage floor area unless and until Monroe County adopts
4223a master plan pursuant to Objective 101.20 and Policy 101.20.1.
4233I t is undisputed that Monroe County has not adopted a
4244master plan for Key Largo pursuant to this Objective and Policy.
4255However, adoption of a master plan is not required as a
4266condition precedent to approval of a transfer of commercial
4275floor area as contemp lated here under NROGO. The plain language
4286of the Plan provisions indicates that the intent is to require
4297consideration of community needs in light of developed master
4306plans when they are developed.
4311Further, Article IV, Section 9.5 - 124.3(a)(10)a. - d., M.C. C.,
4322sets forth the criteria to be considered for eligibility for the
"4333[t]ransfer off - site of existing non - residential floor area" and
4345these criteria do not require consideration of a master plan.
4355The general purpose and intent section in Article IV, Secti on
43669.5 - 124(a)(5), M.C.C., should not be read to create an additional
4378criterion for approval of the transfer of commercial floor area
4388as approved by the Commission.
4393Second, Parker contends that the Commission erred in
4401approving the transfer from the sender site, The Quay, without a
4412proper affidavit of ownership provided with the sender site
4421application.
4422The former owner of The Quay was Konstantinos "Gus" Boulis,
4432who died in 2001. His estate is in probate in circuit court.
4444As noted above, the sender site a pplication requires an
4454affidavit of ownership of the person who transfers non -
4464residential floor area. The affidavit is to be filed with the
4475Director of Planning. (There is no cited provision of the
4485Monroe County Code which requires an affidavit of owners hip for
4496the sender site in an application requesting the transfer of
4506non - residential (commercial) floor area.)
4512The sender site application was signed under oath by Mr.
4522Craig on January 28, 2003. Mr. Craig is the agent for the
4534applicant, Taylor Point Devel opment Corp. Mr. Craig, as the
4544agent for Taylor Point Development Corp., also signed the
4553receiver site application under oath on January 28, 2003. On
4563January 23, 2003, Ms. Joan Wagner, a Personal Representative for
4573the Estate of Konstantinos "Gus" Boulis , executed under oath, an
"4583Authorization Form" which authorized Mr. Craig and "The Craig
4592Company to act on [her] behalf in all matters pertaining to the
4604filing of NROGO minor and any other conditional use applications
4614for the transfer of Commercial Floor a rea from the 'Quay'
4625restaurant located on Key Largo to the Taylor Point Conference
4635Center also located on Key Largo, Florida." This affidavit
4644accompanied the receiver site application.
4649This issue was discussed at length during the Commission
4658meeting. Con sideration of the sender site application was
4667continued to allow the applicant's attorney to provide the
4676Commission with an appropriate affidavit of ownership. When
4684consideration was resumed, the applicant's attorney produced a
4692sworn affidavit of Ace J. B lackburn, Jr., who stated that he is
4705a Personal Representative of the Estate of Gus Boulis, with the
4716case involving the estate pending in the circuit court in
4726Broward County, Florida, Case No. 2001 - 882; that The Quay Key
4738Largo restaurant property is an ass et of the Estate subject to
4750administration; that on behalf of the Estate and other Personal
4760Representatives, "it is the intent of the owner of the Quay Key
4772Largo restaurant to transfer 1800 square feet of commercial
4781development off - site to the Taylor Point Development Corp. site
4792in Key Largo, Florida"; and that "[t]he Estate's agents,
4801including Nicholas W. Mulick, Esq. and Donald L. Craig, are
4811fully authorized to take all reasonable steps to effectuate the
4821transfer of the square footage." (R: 424.) This a ffidavit is
4832mentioned by the Commission in Resolution Nos. P20 - 03 and P21 -
484503, reciting, in part, that "[i]t was determined by the Director
4856of Planning that this notarized document meets the requirements
4865of ownership." (R: 202 - 211, 220, 254.) See Art. IV, §§ 9.5 - 42,
48809.5 - 44, 9 - 5.62, and 9 - 5.64, M.C.C. This statement and the
4895implicit finding that there was sufficient evidence presented of
4904ownership and authorization are supported by competent,
4911substantial evidence.
4913Parker also contends that the "publish ed legal notice" for
4923the Commission hearing incorrectly referenced Section 9.5 - 265,
4932instead of Section 9.5 - 124, which resulted in a denial of
4944procedural due process. (Section 9.5 - 265 pertains to
4953transferable residential development rights not commercial, and
4960Section 9.5 - 124 pertains to NROGO (non - residential rate of
4972growth ordinance).)
4974The Record on Appeal does not contain any hearing notice, a
4985point discussed during oral argument. Therefore, it is
4993difficult to determine if the notice of hearing was
5002imp ermissibly defective. But see (R: 3) in which Commission
5012counsel John Wolfe introduced the item for consideration and
5021stated in part: "Minor conditional use application. The Quay
5030Restaurant is requesting a transfer of commercial floor area as
5040permitted in Section 9.5 - 265 of Monroe County Code. Square
5051footage of 1,800 will be transferred from the sender site, the
5063Quay Restaurant, to the receiver site." See also (R: 78.)
5073Compare with (R: 18 - 19) argument of Jill Patterson. The
5084Planning Director, Ms. Con away, stated that the citation to
5094Section 9.5 - 265 "was an administrative error." (R: 93.) The
5105incorrect cite is mentioned by Mr. Wolfe and Ms. Patterson. In
5116context, it is clear that the request is to transfer commercial
5127floor area and not residential d evelopment rights.
5135Nevertheless, Parker did not ask to continue the hearing
5144based on a lack of notice or a defect therein and, in fact,
5157participated in the hearing and was represented by counsel. If
5167there was a defect in the hearing notice, and there is no
5179finding made herein that there was, it was waived by Parker.
5190See City of Jacksonville v. Huffman , 764 So. 2d 695 (Fla. 1st
5202DCA 2000); Schumacher v. Town of Jupiter , 643 So. 2d 8 (Fla. 4th
5215DCA 1994), rev. denied , 654 So. 2d 919 (Fla. 1995).
5225Next, P arker argues that the Commission erred in approving
5235the transfer of the 1,800 square feet of commercial floor area
5247from the sender site to the receiver site in light of Article
5259IV, Section 9.5 - 124.3(a)(10)b.vi. which states: " Criteria for
5268redevelopment of non - residential floor area off - site : In order
5281to redevelop off - site, a receiver site shall be evaluated for
5293site conditions and shall meet all of the following criteria:
5303. . . vi. Is not located in a 'V' zone pursuant to subsection
53179.5 - 124.8(a)(8)." (E mphasis in original.) (Subsection 9.5 -
5327124.8(a)(8) pertains to coastal high hazard area and assigns
5336points which are intended to discourage development in a coastal
5346high hazard area.) Staff evaluated this issue and stated that
"5356[t]he receiver site has 10, 960 square feet of non - residential
5368floor area. The site has two (2) structures. One is the
5379existing conference room and ancillary offices, which consists
5387of 3,524 square feet and the other structure is the existing,
5399but unfinished conference space. It i s 7,436 square feet in
5411size." (R: 276.) Staff also considered Subsection 9.5 -
5420124.3(a)(10)b.vi. as it applied to the receiver site
5428application, and determined that "[t]he receiver structure is
5436the 3,524 square foot building closest to U.S. 1. It is not i n
5451the 'V' Zone and has not received any negative environmental
5461points." (R: 277) (This statement was adopted by the
5470Commission in Resolution No. P21 - 03. (R: 255.)) See also (R:
5482372) in which staff analyzes this issue in the context of the
5494application f or the Major Conditional Use application, in part,
5504as follows:
5506The proposed redevelopment will be accomplished in two
5514(2) stages involving the use of transferable non -
5523residential floor area made available through the
5530county's "NROGO" system. Specificall y, 1,800 square
5538feet of commercial floor area now located in the Quay
5548Restaurant at Mile Marker 102 will be transferred to
5557the site. The 1,800 square feet will be transferred
5567to the Taylor Point site to the building closest to US
55781, where it will be used to provide conference space
5588and ancillary support offices. The 1,800 square feet
5597already on the second floor of this building will be
5607internally transferred to the building whose
5613construction has been halted.
5617Existing on site at the present time is appr oximately
56277,436 square feet of restaurant and conference center,
5636which is incomplete, and the operating building of
56443,524 square feet.
5648(R: 372.)
5650Article IV, Section 9.5 - 124, M.C.C, defines "site" to mean
"5661the parcel(s) of land or parcels required to be aggregated
5671under section 9.5 - 256 to be developed or from which existing
5683non - residential floor area is to be transferred or received ."
5695(Emphasis added.) " Parcel of land means any quantity of land
5705and water capable of being described with such definiteness that
5715its location and boundaries may be established, which is
5724designated by its owner or developer as land to be used or
5736developed as a unit, or which has been used or developed as a
5749unit." Art. IV, § 9.5 - 4(P - 1), M.C.C. (Emphasis in original.)
5762The Taylo r Point property consists of four (4) lots as set
5774forth in a deed and survey. (R: 266; 269.) There is competent,
5786substantial evidence to support the Commission's implicit
5793finding that the receiving structure is located on Lot 1 (and in
5805the "A" zone), on a separate and independent site and parcel
5816from parts of Lots 2 - 4, a portion of which is located in the "V"
5832zone. The Commission's Resolution No. P21 - 03 approves the
5842transfer of the commercial floor area to the receiver site, not
5853the contemplated subseque nt transfer of this floor area to the
5864unfinished building closest to the bay, see (R: 254 - 255),
5875notwithstanding the Commission's statement in the fourth
"5882WHEREAS" clause of Resolution No. P22 - 03 that "the proposed
5893development will be accomplished in two (2 ) stages. . . ." (R:
5906285.) See also Commission Answer Brief, p. 12. No decision is
5917reached herein regarding whether the 1,800 square feet of floor
5928area may be transferred as an "internal transfer." Id.
5937Finally, Parker contends that the Commission er red in
5946approving the Major Conditional Use application without
5953requiring a variance for parking, fire turning radius, and side
5963yard setbacks. Parker contends that such approval violates
5971procedural due process because of "a lack of notice and a real
5983opport unity to be heard." Parker Initial Brief, p. 17.
5993Parking is planned for underneath the building. The
6001underneath space is open except for columns, which are depicted
6011in a revised Site Plan dated February 4, 2003. (R: 329.)
6022Staff determined that the requ ired number of parking spaces
6032was met, except that "only 14 of these spaces meet the required
60448'6" X 18' dimensions," which "leaves 24 spaces with inadequate
6054dimensions." Staff noted that this "issue must be addressed
6063prior to the issuance of a building p ermit" (R: 376), and
6075specifically noted that the "dimensions of required parking
6083spaces," pursuant to Section 9.5 - 351(a), were not in compliance.
6094(R: 374.)
6096During the hearing, Mr. Craig explained that this issue,
6105and comments made during the hearin g, referred to the support
6116columns depicted on the Site Plan. (R: 128, 329.) (Mr. Craig
6127also referred to a revised Site Plan of March 17, 2003, in order
6140to respond to comments from staff, but the March 17, 2003,
6151revised Site Plan was not substituted for the February 4, 2003,
6162revised Site Plan. (R: 138 - 139.)) But for the columns, the
6174proposed planned parking spaces would meet code requirements.
6182Art. IV, § 9.5 - 351(a), M.C.C. In order to protect the columns
6195from being hit by a motor vehicle, Mr. Craig re quested a
6207decrease in the width of several parking spaces from eight and
6218one - half feet to eight feet. Mr. Craig also stated that if the
6232Commission felt the columns were not in need of protection which
6243he did not recommend, then the parking spaces would be eight and
6255one - half feet wide. (R: 129.) It was Mr. Craig's position that
6268the Commission could waive the eight and one - half foot
6279requirement. (R: 134.)
6282The Commission inquired of Mr. Stuncard regarding reducing
6290the width of only the parking spaces affe cted by the columns.
6302Mr. Stuncard supposed that decision would be within the
6311Commission's discretion. (R: 180.) Mr. Stuncard received
6318additional clarification from the Commission that "allowing the
6326entryway of each space to not meet the minimum, as long as the
6339remainder of the spaces do." (R: 183.)
6346This parking space issue was discussed by the applicant,
6355analyzed by staff, commented upon and objected to by Ms. Parker
6366and Ms. Patterson, and resolved by the Commission when the
6376Commission approved the Maj or Conditional Use. The Commission
6385did not depart from the essential requirements of law.
6394Regarding the application for a Major Conditional Use, the
6403applicant is not requesting to alter the footprint of the
6413existing structure. The Commission conditional ly approved a
6421project (a Major Conditional Use) to complete a conference
6430facility. (R: 285.) In particular, the Commission expressly
6438stated: "No enlargement or expansion of the existing footprint
6447of the building is permitted." (R: 287 at paragraph 14. )
6458Notwithstanding, there is conflicting evidence on the
6465setback issue, and it is a subject of some confusion, see , e.g. ,
6477(R: 131, 142, 149, 159.) For example, Frederick H.
6486Hildebrandt's boundary survey indicates that the east side of
6495the "C.B.S. Building" has a boundary note of 4.50 feet on the
6507northeast corner and 4.63 feet on the southeast corner, which
6517indicates an encroachment on the five foot side yard setback.
6527(R: 269, 328.) The revised Site Plan of February 4, 2003,
6538reflects a five foot side yard setback and a rear setback, but
6550with no discernable encroachment. (R: 329.)
6556The setback issue was evaluated by staff and presented to
6566the Commission, with Ms. Patterson raising the issue. See ,
6575e.g. , (R: 149, 380.)
6579Staff determined that the yards and sh oreline setbacks were
6589in compliance. (R: 122, 375.) See also p. 10, supra . This
6601determination appears to be based on the vested rights
6610determination in Resolution No. 194 - 1998 (R: 351 - 352). Id.
6622During the hearing, questions were raised regarding the v ested
6632rights determination and not specifically resolved, (R: 173 - 179,
6642190 - 200), except for the Commission's conditional approval of
6652the Major Conditional Use application for the completion of a
6662conference facility and the Commission's express determinatio n
6670that the existing footprint of the building may not be enlarged
6681or expanded. (R: 188, 287.) It appears that the Commission did
6692not consider the project as new construction, id. , and Article
6702IV, Section 9.5.281, M.C.C., (minimum yard setbacks) "[a]pplie s
6711to new construction only." 2 The Commission did not depart from
6722the essential requirements of law.
6727Finally, Parker does not cite to a specific provision of
6737the Monroe County Code which prohibits, absent a variance, a
6747fire turning radius within a setback .
6754DECISION
6755Based upon the foregoing, the Commission's decisions in
6763Resolution Nos. P20 - 03, P21 - 03, and P22 - 03 are AFFIRMED.
6777DONE AND ORDERED this 1st day of December, 2003, in
6787Tallahassee, Leon County, Florida.
6791S
6792___________________________________
6793CH ARLES A. STAMPELOS
6797Administrative Law Judge
6800Division of Administrative Hearings
6804The DeSoto Building
68071230 Apalachee Parkway
6810Tallahassee, Florida 32399 - 3060
6815(850) 488 - 9675 SUNCOM 278 - 9675
6823Fax Filing (850) 921 - 6847
6829www.doah.state.fl.us
6830Filed with the Cler k of the
6837Division of Administrative Hearings
6841this 1st day of December, 2003.
6847ENDNOTES
68481 / Parker filed separate applications in order to appeal each
6859Resolution. Each appeal was assigned a separate case number,
6868i.e. , DOAH Cas e Nos. 03 - 2397, 03 - 2398, and 03 - 2399, which were
6885consolidated. Ultimately, one consolidated Record on Appeal,
6892consisting of three volumes, was filed and considered in this
6902appeal. Order, July 17, 2003. Without objection Taylor Point
6911Development Corporati on and Estate of Constantine "Gus" Boulis
6920were granted leave to intervene. Order, July 24, 2003.
69292 / The expiration of the vested rights determination is
6939mentioned in Appellant's Statement of the Case and Facts in the
6950Initial Brief, page 8, footnote 4, b ut no legal argument is
6962made. The Commission, in its Answer Brief, relies, in part, on
6973the vested rights determination. Commission Answer Brief, p.
698113. In the Reply Brief, Appellant, in response to the
6991Commission's Answer Brief, argues for the first tim e that
"7001[o]nce vested rights were extinguished, the present day
7009requirements of the Code, including the variance provisions,
7017should apply." Reply Brief, p. 11 - 12. See Snyder v. Volkswagen
7029of America, Inc. , 574 So. 2d 1161 (Fla. 4th DCA 1991)("An issue
7042ra ised for the first time on appeal in appellants' reply brief,
7054even though properly preserved for appeal, will not be
7063considered by this court." (Citations omitted.)) See also Art.
7072XIV, § 9.5 - 539(d), M.C.C. No decision is reached regarding the
7084issue raise d in the Reply Brief.
7091COPIES FURNISHED :
7094Karen K. Cabanas, Esquire
7098Morgan & Hendrick
7101317 Whitehead Street
7104Key West, Florida 33040
7108Nicholas W. Mulick, Esquire
7112Nicholas W. Mulick, P.A.
711691645 Overseas Highway
7119Tavernier, Florida 33070
7122Lee Robert Rohe, Esquire
7126Lee Robert Rohe, P.A.
713025000 Overseas Highway, Suite 2
7135Summerland Key, Florida 33042
7139Nicole Petrick, Planning Commission Coordinator
7144Monroe County Growth Management Division
71492798 Overseas Highway, Suite 400
7154Marathon, Florida 33050
7157NOTICE OF RIG HTS
7161Pursuant to Article XIV, Section 9.5 - 540(c), M.C.C., this
7171Final Order is "the final administrative action of Monroe
7180County." It is subject to judicial review by common law
7190petition for writ of certiorari to the circuit court in the
7201appropriate judic ial circuit.
- Date
- Proceedings
- PDF:
- Date: 12/01/2003
- Proceedings: Final Order cover letter identifying the hearing record referred to the Agency.
- PDF:
- Date: 10/13/2003
- Proceedings: Reply Brief of Appellant to Appellees and Intervenors (filed via facsimile).
- PDF:
- Date: 09/24/2003
- Proceedings: Notice of Oral Argument (set for November 17, 2003; 3:00 p.m.; Tallahassee, FL).
- PDF:
- Date: 09/22/2003
- Proceedings: Order. (Appellant`s motion to consolidate reply brief to Appellee and Intervenors is granted; Appellant may file one reply brief, not to exceed 30 pages, due 10 days from receipt of Intervenor`s answer brief)
- PDF:
- Date: 09/19/2003
- Proceedings: Appellant`s Motion to Consolidate Reply Brief to Appellee and Intervenors (filed via facsimile).
- PDF:
- Date: 09/15/2003
- Proceedings: Monroe County`s Response to August 29, 2003, Order (filed via facsimile).
- PDF:
- Date: 09/02/2003
- Proceedings: Appellant`s Reply to Response of County re Remand and for Extension of Time (filed via facsimile).
- PDF:
- Date: 08/29/2003
- Proceedings: Order. (Petitioner`s motion to extend the time for the filing of her initial brief is denied; the Commission`s motion to expedite this proceeding is granted; Parker`s initial brief shall be filed within ten days of this order)
- PDF:
- Date: 08/28/2003
- Proceedings: Monroe County`s Response to Motion for Remand and for Extension of Time and Monroe Countys Motion for Expedited Proceedings (filed via facsimile).
- PDF:
- Date: 08/28/2003
- Proceedings: Letter to Judge Hooper from N. Petrick enclosing the revised index and record Volumes (three volumes) of an Administrative Appeal by Dorothy Parker filed.
- PDF:
- Date: 08/27/2003
- Proceedings: Appeallant`s Motion for Remand to Monroe County Planning Commission for Further Proceeding and for Extension of Time for Filing Initial Brief (filed via facsimile).
- PDF:
- Date: 08/27/2003
- Proceedings: Letter to Judge Stampelos from N. Petrick enclosing page 422 that was mistakenly exclude in your original revised volumes of an Administrative Appeal by Dorothy Parker filed.
- PDF:
- Date: 07/24/2003
- Proceedings: Order on Motion to Intervene. (motion to intervene is granted; Intervenors, Taylor Point Development Corporation and the Estate of Konstantinos "Gus Boulis)
- PDF:
- Date: 07/21/2003
- Proceedings: Motion for Leave to Intervene by Taylor Point Development Corporation and the Estate of Konstantinos "Gus" Boulis (filed via facsimile).
- PDF:
- Date: 07/17/2003
- Proceedings: Letter to N. Petrick from Judge Stampelos enclosing complete records previously filed with the Division of Administrative Hearings with respect to the appeal of Monroe County Planning Commission Resolution Nos. P20-03, P21-03, P22-03.
- PDF:
- Date: 07/15/2003
- Proceedings: Order. (Dorothy Parker motion for extension of time to serve her initial brief on or before July 24, 2003, is granted, and the initial brief shall be filed on or before July 24, 2003; the parties shall advise within seven days of this order whether Case Nos. 03-2397, 03-2398, 03-2399, should be consolidated for the entry of one final order).
Case Information
- Judge:
- CHARLES A. STAMPELOS
- Date Filed:
- 06/30/2003
- Date Assignment:
- 07/01/2003
- Last Docket Entry:
- 12/01/2003
- Location:
- Tallahassee, Florida
- District:
- Northern
- Agency:
- Contract Hearings
Counsels
-
Karen K. Cabanas, Esquire
Address of Record -
Nicholas W Mulick, Esquire
Address of Record -
Lee R Rohe, Esquire
Address of Record -
Lee R. Rohe, Esquire
Address of Record -
Lee Robert Rohe, Esquire
Address of Record