03-002398 Dorothy Parker vs. Monroe County Planning Commission
 Status: Closed
DOAH Final Order on Wednesday, November 26, 2003.


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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.

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.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 12/01/2003
Proceedings: Final Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 11/26/2003
Proceedings: DOAH Final Order
PDF:
Date: 11/26/2003
Proceedings: Final Order. CASE CLOSED.
PDF:
Date: 10/13/2003
Proceedings: Reply Brief of Appellant to Appellees and Intervenors (filed via facsimile).
PDF:
Date: 10/02/2003
Proceedings: Intervenors` Answer Brief (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: 09/15/2003
Proceedings: Monroe County`s Answer Brief (filed via facsimile).
PDF:
Date: 09/09/2003
Proceedings: Initial Brief of Appellant Dorothy Parker (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: Order. (consolidated cases are: 03-002397, 03-002398, 03-002399)
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).
PDF:
Date: 07/11/2003
Proceedings: Appellant`s Motion for Extension of Time in Which to Serve the Initial Brief up to and Including July 24th (filed via facsimile).
PDF:
Date: 07/01/2003
Proceedings: Initial Order.
PDF:
Date: 06/30/2003
Proceedings: Meeting of the Monroe County Planning Commission filed.
PDF:
Date: 06/30/2003
Proceedings: Application for an Administrative Appeal of a Planning Commission Decision to a Hearing Officer filed.

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

Related Florida Statute(s) (1):