03-004720 Jeff Osborn And Smart Planning And Growth Coalition vs. Monroe County Planning Commission Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Monday, December 6, 2004.

Summary: The Monroe County Planning Commission, in approving a Major Conditional Use application, did not depart from the essential requirements of law. Also, the Commission`s findings of fact are supported by competent substantial evidence.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JEFF OSBORN and SMART PLANNING )

AND GROWTH COALITION, )

)

Appellants, )

)

vs. ) Case No. 03 - 4720

)

MONROE COUNTY PLANNING )

COMMISSION, )

)

Appellee, )

)

and )

)

NORTHSTAR RESORT ENTERPRISES )

CORPORATION, )

)

Intervenor. )

)

FINAL ORDER

Appellants, Smart Planning and Growth Coalition (Smart

Planning) and Jeff Osborn (Osborn), seek review of Monroe County

Planning Commission (Commission) Resolution No. P47 - 03, approved

by the Commission on June 25, 2003, and signed by the

Commission's Chair on September 10, 2003. Appellants' appeals

were timely filed. The Division of Administrative Hearings, by

contract, and pursuant to Article XIV, Sec tion 9.5 - 535, Monroe

County Code (M.C.C.), has jurisdiction to consider this appeal.

Appellants submitted separate Initial Briefs and Reply

Briefs. The Commission and Intervenor, Northstar Resort

Enterprises Corporation (Northstar), submitted separate A nswer

Briefs. Oral argument was presented in Monroe County, Florida,

on June 24, 2004. Citations to the record on appeal shall be by

the symbol (R) followed by a page reference. (A separate Final

Order was entered in Case No. 04 - 1568, a related case.)

I. Issues

Smart Planning contends that the Commission denied Smart

Planning procedural due process and departed from the essential

requirements of law by denying Smart Planning the right to

cross - examine witnesses during the Commission public hearing;

t hat there is no competent substantial evidence to support

Northstar's claim for credit for a 12 - unit motel allegedly

existing on the project site and there is no competent

substantial evidence to support the transfer of 126 recreational

vehicle spaces. (Th ese two issues are subject of the appeal in

Case No. 04 - 1568.); that the Commission departed from the

essential requirements of law by considering the existence of

Stan & Mary's Restaurant, which is the subject of litigation, to

satisfy part of the hotel d ensity requirements; that the

Commission departed from the essential requirements of law

because it approved a prohibited use within the Suburban

Commercial zoning district because the project will not

primarily serve the needs of the immediate planning ar ea in

which it is located; and that the Commission departed from the

essential requirements of law when it approved the project’s

angular entranceway at an angle of 50 degrees.

Osborn contends that the Commission denied him procedural

due process by consid ering undisclosed or secret knowledge,

denying Osborn the right to cross - examine witnesses, and by

receiving ex - parte communications. Osborn also contends the

Commission erred by failing to require the submission and

consideration of an Environmental Desi gnation Survey (EDS) and a

Community Impact Statement (CIS); by failing to require

Northstar to submit a marina application for approval of the

docks; by failing to require Northstar to comply with the off -

street parking requirements; by failing to require a deed

restriction to exclude the public from the project’s hotel and

amenities; by approving 8,158 square feet of commercial use even

though the Site Plan (A - 1) shows more commercial floor area not

counted by Northstar; by approving the project by and th rough

the use of an unforceable condition regarding Thurmond Street;

and by requiring Northstar to construct affordable housing units

off - site.

II. Background

1. The Application

On or about November 20, 2002, Northstar submitted an

Application of Deve lopment Approval (Application) for a Major

Conditional Use to the Monroe County Planning Department,

proposing to use the property located at Key Largo, Florida,

Mile Marker (MM) 99.5, for 89 hotel rooms and 8,158 square feet

of commercial use inclusive of a restaurant and bar. See

Endnote 3. The property is located in the Suburban Commercial

zoning district. The present use of the property is described

as limited commercial, Stan & Mary's Restaurant, a total of

9,250 square feet, 12 motel rooms, and 22 mobile homes. See

Endnote 1. Northstar's agent, Donald L. Craig, A.I.C.P.,

submitted the Application. (R221 - 222).

Northstar stated that following approval of the Major

Conditional Use by the Commission, Northstar would apply for

Minor Conditional Use ap proval in order to obtain the

Transferable Development Rights (TDRs) and Transferable ROGO

Exemptions (TREs) required for the density of 89 hotels rooms on

the site. (R231). (The Sender and Receiver site applications

are the subject of the appeal in Case No. 04 - 1568.)

The Application included "Attachment A" which provided that

several documents "may be required to be submitted with [the]

application," and the applicant was directed to "consult with a

Planner." (R223).

The Application contained a "Proje ct Overview" that stated

in part:

Northstar Resort will be a resort hotel of

89 rooms and assorted amenities, inclusive

of a restaurant and bar for the sole use of

the patrons of the resort, dock space for

the resort’s boats, support storage and

administ rative areas, as well as parking for

these uses.

The resort is a redevelopment of existing on

site facilities, inclusive of the 47 unit

mobile home park, a 12 unit transient motel,

and 9,250 square feet of existing commercial

use located on the 3 parcels denoted A, B

and C on the survey, Appendix A hereto.[ 1 ]

The project area also includes the existing

Stan & Mary's restaurant located to the west

of the existing Blue Lagoon property. This

property and restaurant were acquired in

order to have substantia l sufficient

commercial floor area, a restaurant and the

necessary liquor license to serve the needs

of the guests. This property has a long

history of being used for both transient and

permanent residential uses, together with

commercial use. The existi ng proposal

combines all of the parcels, including the

Blue Lagoon Motel, to achieve the necessary

site area to support 89 rooms and the

supporting commercial floor area. The 89

rooms are created by the use of the existing

12 motel units and the importati on []

sufficient transferable development rights

(TDRs) and Transferable ROGO Exemptions

(TREs) to achieve the desired density.

Developments such as this are allowed by

County Code, Section 9.5 - 120.4(b)a.iii)

which promotes the transfer and

redevelopmen t of existing transient uses,

such as motels, hotels and recreational

vehicles parks. This code was specifically

enacted in order to deal with the existing

and ongoing moratorium on the creation of

new transient accommodations within the

County.

TDRs a nd ROGO Exemptions have been

identified and will be purchased upon

completion of the development review process

for this project. This transfer will be by

means of Minor Conditional Use approval.

(R231).

Northstar stated that it had not applied for County permits

prior to this Application. However, Northstar also noted that

several pre - application meetings had been held with County staff

to identify the requirements for this project. The Director of

Planning, Ms. K. Marlene Conaway, wrote several l etters

(including a letter of understanding) to Mr. Craig regarding

this project. (R232 - 233, 371 - 380).

Northstar also noted that the repair and recondition of the

existing docks on site would require the approval of the Florida

Department of Environmental Protection (DEP) and the U.S. Army

Corps of Engineers. (R233). Northstar also stated that the

Florida Department of Transportation (DOT) "will require

approvals for the change of access to the site. At present,

access to all of the parcels making up th e site is uncontrolled

and is available from any location from U.S. Highway 1. This

will change to the locations indicated on the site plan. An

additional access point on Thurmond Street for staff and

emergency access will require County road access perm its." Id.

The Application included a zoning map, an aerial photograph

of the project site, undated photographs of, for example, Blue

Lagoon at U.S. 1, and Blue Lagoon (existing residential and

commercial), as well as photographs of Stan & Mary's Restauran t.

(R235 - 240).

The Application described the site as 8.17 acres or

approximately 355,967 square feet with the entire area being

upland and including no wetlands. (R242).

Northstar described the entire site as disturbed and

containing no native vegetati on, with the exception of a small

mangrove fringe on the northwestern waterfront of Parcel A as

shown on the Site Plan (A - 1). 2 Northstar stated that there are

significant sized trees on the site that will be protected to

the maximum extent possible and in tegrated into the Landscaping

Plan included with the Application. (R242).

Northstar described the “Community Character of the

Immediate Vicinity:”

The community character of the immediate

area can best be described as mixed, with

low commercial developmen t south of U.S.

Highway 1; commercial development consisting

of a motorcycle repair shop and meeting hall

to the east of the site on parcels fronting

U.S. Highway 1; and residential single -

family homes and institutional (FKAA water

storage facility) to the east of the site.

To the north of the site are the open waters

of Florida Bay.

(R242).

Northstar stated that this project, like all major

conditional uses, must be consistent with Article III, Sections

9.5 - 65 and 9.5 - 68, M.C.C. (R243).

Northstar inc luded a density analysis with its Application,

which provided an analysis of hotel units, commercial floor

area, and residential density. Northstar calculated that the 15

TDRs and 77 TREs would be required. (R244 - 245).

Northstar addressed several of the Monroe County Code

provisions. (R246 - 249). Regarding parking and loading

standards, Northstar proposed 89 spaces for the hotel rooms; 11

spaces for the boat slips; 1 space for the boat ramp; 123 spaces

for the restaurant; 1 space for the retail area; and 12 spaces

for employees. (R247).

Regarding Section 9.5 - 335 pertaining to Environmental

Performance Standards, Northstar stated that "[t]he site has no

native vegetation, and requirements for this section do not

apply, with exception of an open space rati o of 20%. The

proposed development is consistent with Section 9.5 - 335."

(R248). But see Endnote 2. (Section 9.5 - 335 provides: "It is

the purpose of this division to provide for the conservation and

protection of the environmental resource of the Flori da Keys by

ensuring that the functional integrity of natural areas is

protected when land is developed.")

Regarding Section 9.5 - 421, Access Standards, Northstar

stated: "Access to the site will be simplified by the

limitation of access to the site to 2 points. One will be the

main entrance at the middle of the site, and second for staff

and emergency vehicles from Thurmond Street. This approach will

reduce the number of entrances from at least 6 to 2." (R249).

Northstar noted that "[c]lear site trian gles are shown on the

attached site plan, which are consistent with Section 9.5 - 427."

Id.

Appendix C of the Application contained several letters

written to, among others, the Florida Keys Electric Coop, the

U.S. Fish and Wildlife Service, the DEP, the Fl orida Department

of Health and Rehabilitation Services, the South Florida Water

Management District (District), the Florida Keys Aqueduct

Authority, the Monroe County Fire Marshall, the Florida Fish

Game and Freshwater Fish Commission, and Solid Waste Mana gement

for the County of Monroe (as well as a response). (R269 - 277).

Responses appear in the Supplemental Record, July 15, 2004.

Appendix D of the Application contained numerous plans

included a Site Plan shown as drawing number A - 1. (R281). This

Site Plan is dated May 2, 2002, and showed the proposed project

in relation to U.S. Highway 1 and the south - bound lanes to the

south of the project, and Thurmond Street, including the ingress

and egress to the project as well as Thurmond Street to the west

of the project and, in part, the notation of a gate. Id. The

Site Plan also provided calculations for portions of the project

site, acreage for transient rental use, commercial use, and

accessory use. The commercial use is calculated to be 8,185

square fee t, see Endnote 3, which includes a 120 square feet for

a gift shop, 1,283 for a Tiki with portable bar, 4,752 square

feet denoted "A/C Enclosed Space" and 2,030 square feet denoted

covered porch seating. Also noted is the total of 190,425.10

square feet o f accessory use. (R281).

Appendix E of the Application included a Level III Traffic

Impact Study. (R312 - 369). See also (R400 - 410, supplemental

traffic information).

The record on appeal contains several pre - application

letters that pre - date the Norths tar project that is the subject

of this appeal. It appears that the first pre - application

conference and letter memorializing this conference is dated

January 25, 2002, and authored by Ms. Conaway. (R375 - 380).

On March 18, 2002, Ms. Conaway advised Mr. Craig of

corrections to Item 6 of her January 25, 2002, letter pertaining

to the number of TDRs needed for the project. (R372 - 374). On

September 20, 2002, Ms. Conaway notified Mr. Craig that the

Planning Department would review the Major Conditional Use

project with the understanding that the project, if approved,

would be contingent upon the acquisition of the TDRs and TREs.

(R371). Ms. Conaway further advised: "A thorough review for

completeness and compliance with all other aspects, must be

signed o ff on by the Director of Planning prior to scheduling

for a Planning Commission meeting date. If found to be

complete, then a staff report will be prepared pursuant to

Monroe County Code Section 9.5 - 69. If the proposed project is

found in compliance and approved by the Planning Commission then

prior to a Development Order being issued, complete

documentation must be submitted to staff concerning all TDR’s

and TRE’s required. It should be known that a minor conditional

use is required for both the sender and receiver sites for

TRE(s)." (R371).

After the Application was submitted, Northstar's engineer

furnished the Planning Department’s traffic engineer consultant

with additional information (R400 - 410), which resulted in a

written opinion issued on January 31, 2003, by traffic

consultant Mr. Raj Shanmugam, P.E., concluding that the traffic

report submitted by Northstar addressed the traffic issues.

(R411 - 413). Mr. Shanmugam noted that there are some changes

that may have to be made to the Site Plan to acc ommodate the

vehicle design and to meet the design standards and that the

Site Plan would need to be reviewed and modified as necessary.

(R413).

2. Staff Memoranda

On February 12, 2002, Mr. J.G. Buckley, Planner, and

Ms. Julie Cheon, Biologist, prepared a Memorandum for the

Development Review Committee (DRC). (R441 - 447). On May 9,

2003, Mr. Buckley and Ms. Cheon prepared a Memorandum for the

Commission, which is substantially similar to the Memorandum of

February 12, 2002. (R486 - 492). (It appears tha t the reference

to 2002 should be 2003.)

On May 1, 2003, the DRC considered the Northstar project

and unanimously recommended approval of Northstar's project with

conditions. (R448 - 452, 455 - 484.)

The staff Memorandum of May 9, 2003, referred to above,

restated the nature of the project to be the redevelopment of

the property with a resort hotel of 89 units with 8,158 square

feet of commercial use comprising a restaurant and bar facility,

lobby, storage, and various accessory structures including

outdoor swimming pools, spas, and extensive landscaping. 3 Staff

noted the need for 77 TREs and 15 TDRs in order to achieve the

requested maximum net density. (R486).

Staff described the project site and stated “[t]he site is

disturbed with scattered native gro wth. All native species four

inches diameter at breast height (dbh) and all listed species

must be transplanted or replaced at a ratio of two (2) to one

(1).” (R487). The community character of the immediate

vicinity is described: "The immediate vicin ity is characterized

by a mix of uses including several non - conforming residential

units adjacent to the site, some conforming residential

structures across Thurmond Street to the west, several

commercial retail uses in a Florida Keys Aqueduct Authority

wa ter storage facility." (R488).

Staff reviewed the project for compliance with numerous

provisions set forth in Article III, Section 9.5, M.C.C., and

found the project to be in compliance and did not find the

project “not in compliance” with any section of the Land

Development Regulations. 4 (R488). However, Staff stated that

“compliance has not been determined” for the project in light of

several provisions including surface water management,

wastewater treatment, transplantation plan, and access

standa rds. These areas were the subjects of draft conditions.

(R488 - 489, 491 - 492).

Staff noted that issues related to density and intensity,

i.e. , the TDR and TRE issues, needed to be discussed during the

Commission meeting. (R489).

Staff further determined t hat the Major Conditional Use was

consistent with the community character of the immediate

facility of the parcels proposed for development; that no

empirical evidence existed that the proposed redevelopment would

adversely affect the value of the surround ing properties; that

there was adequate water and electricity for the proposed

redevelopment; that there was no empirical evidence that would

indicate that Northstar does not have the financial resources or

technical capacity to complete the project as pro posed; and that

the proposed redevelopment would not adversely affect a known

archaeological, historical, or cultural resource. (R489 - 490).

Staff proposed several findings of fact and conclusions of

law and recommended approval with several conditions. (R488 -

492).

3. The Public Hearing

On June 25, 2003, the Commission held a public hearing on

the Application. (R1).

At the outset of the public hearing, Commission counsel,

Mr. John Wolfe, responded to Smart Planning's request of the

Commission to permi t cross - examination of witnesses. (R3 - 9).

(Mr. Lee Rohe, on behalf of Smart Planning, sent Mr. Wolfe a

letter of June 23, 2003, outlining his legal argument in support

of allowing cross - examination. (R10 - 12, 434 - 435).) Mr. Wolfe,

relying in part on a memo of June 24, 2003, prepared by

Assistant County Attorney Bob Shillinger (R436 - 438) and Article

III, Section 9.5 - 46, M.C.C., advised the Commission that there

was no right to cross - examine witnesses in this type of

proceeding/public hearing. Rather, c ross - examination questions

could be submitted to the Chair. (R3). Mr. Andrew Tobin,

counsel for Osborn, supported Mr. Rohe's argument and further

requested to intervene in this proceeding as a party. (R12 - 18).

After argument of counsel, Chair Ritz deni ed Smart Planning and

Osborn the right to cross - examine witnesses; however, both were

authorized to present evidence and make a presentation and offer

closing comments. (R18 - 19, 30 - 31). Questions could be submitted

through the Chair. (R21). Party status was not recognized.

(R21).

Mr. Buckley, a planner, presented the agenda item and the

staff report, including staff's recommendation of approval with

conditions. (R22 - 30).

Mr. Timothy Nicholas Thomes, counsel for Northstar, and

Mr. Craig, Northstar's ag ent and planner, discussed the merits

of the Northstar Application. (R31 - 39). Mr. Craig advised that

the restaurant, hotel, and amenities including the docks would

not be open to the general public. (R35 - 36).

Mr. Richard P. Eichinger, a senior traffic e ngineer for

Transport Analysis Professionals and an expert in traffic

engineering, testified regarding traffic issues related to the

project. (R38). Mr. Eichinger previously provided the Planning

Department with a Level III Traffic Impact Study and

suppl emental information in response to comments from

Mr. Shanmugam. (R39 - 43, 312 - 369, 400 - 410). (Mr. Shanmugam

reviewed the traffic report and determined that it adequately

addressed the traffic issues. He also noted there are some

changes that may have to be made to the Site Plan to accommodate

the design vehicle and to meet the design standards. (R412 -

413). He also stated during the public hearing that he would

like the turn - in and out of the project site to be designed so

that trucks can enter and leave safely. (R168 - 169). See also

(R219, conditions 4 and 5).) Mr. Eichinger believed that the

project met all the criteria in the Monroe County Code as to

traffic impact and access within the project site, including the

Thurmond Street and U.S. Highway 1. (R43 - 44).

Mr. Robert Barnes, the architect of record for the project,

testified that the design of the project is consistent with all

the site planning standards, including but not limited to the

set backs, building height, and location of the structure.

(R45 - 46).

Mr. Tobin and Mr. Rohe provided opening statements opposing

the project. (R49 - 55, 71 - 73).

Ms. Sheryl Bower, a land use planner, and Osborn testified

in opposition to the project. (R55 - 71). In part, Ms. Bower

stated, “[t]he project has ove r 17,000 square feet of commercial

square footage that was exempt from ROGO. Okay, some of it is

accessory to the hotel lobby, that kind of thing. But there is

a gatehouse, there’s a covered spa, there is a pool deck that

will most likely be serviced by the bar. There is nothing in

NROGO that specifically exempts hotel commercial square footage

from being subject to it. I asked staff if there is an

administrative interpretation available and the staff members I

talked to said no there is nothing that sa ys hotel square

footage is specifically exempted.” (R61). See also (R52 for

Mr. Tobin’s comments).

Mr. Miles Moss, a traffic engineer, testified that the

angle of the intersection of the driveway fronting U.S. Highway

1 at 50 degrees is inconsistent with the Monroe County Code

provision, which requires the angle to be not less than 80

degrees. According to Mr. Moss the proposed 50 - degree angle of

the driveway interferes with the driver’s ability to see and

yield the right - of - way to approaching vehicles. Mr. Moss also

discussed other issues dealing the line of sight, e.g. ,

visibility problems associated with trucks turning into the

property from the right - turn lane and the amount of "safe

distance" which is required but not proposed for the project.

(R73 - 80).

There was testimony from members of the public who

supported the project. Some indicated that the project would

generate additional tax revenue; would enhance the properties

around it; help employees; replace a worn - down hotel; and add

value in jo bs. (R89 - 91). Another person who traveled outside

Monroe County for work, looked forward to the resort being built

so that he could remain in Key Largo for employment. (R99 - 100).

See also (R628 - 630). Other local residents opposed the project.

(R81 - 87 , 95 - 99). See also (R493 - 494).

Mr. Bill Cullen of Key Largo, with degrees in architecture

and city planning, and representing his family, described the

adjacent properties to include a Kentucky Fried Chicken, a Pizza

Hut, Taco Bell, and a 50 - unit motel ac ross the street that was

built in 1951 and owned by his family. (R100 - 101). See also

(R488, 589). He also indicated that there were no Indian mounds

on the project site. Mr. Cullen explained that he has "lived

next to that property's previous crack inf ested incarnation,

suffering, thievery and disruptions associated with what can

best be described as a ghetto. The conversion of this property

was envisioned by the county going back to 1986. It was

specifically not designated a URM because the county re cognized

that it sat in the middle of Key Largo's commercial district

where highway to bay distance was limited and is significantly

removed from the residential communities adjacent." (R102).

Ms. Jill Patterson, speaking for Smart Planning, owns

proper ty with her husband in Rock Harbor within a mile of the

project. (R103 - 104). Ms. Patterson opposed the project.

(R104 - 107).

Mr. Bud Cornell, a commercial realtor who had sold the

property in the past, owns the Hungary Pelican Motel and the

Sunset Cove B each Resort just north of the project site.

(R107). See also (R593 - 594). He supports the project. (R107 -

110). See also (R111 - 113 for two other residents supporting the

project with one suggesting that it would bring revenue into the

community and the other who wanted the property cleaned up and

thought that it should be used for positive and economical

growth.)

After the public hearing session was closed, Mr. Tobin and

Mr. Rohe presented closing arguments in opposition to the

project. (R113 - 126). Mr . Thomes, on behalf of Northstar,

presented additional comments. (R126 - 129).

In rebuttal, Mr. Craig explained that Northstar did not

apply for a marina. Rather, Mr. Craig represented that the

proposed project would not be open to the public, including th e

existing docking facility, which currently contains 16 slips.

Mr. Craig stated that the docks are an accessory use. (R130,

186). Mr. Craig further represented that two slips would be

used for the hotel's sunset cruise boat and another for a

charter bo at owned by the resort. Only patrons will be able to

use the 14 existing slips. Mr. Craig further advised that the

docking facility would not have any refueling facility, storage

tanks, boat lifts, or mechanic shops on site. (R186 - 188). Mr.

Buckley rep resented that there was no planned expansion of the

existing facility and further that staff determined "that

additional marina study was not needed because in essence this

was an accessory structure that was already existing." (R138).

There was much di scussion regarding affordable housing.

See , e.g. , (R37, 60, 131, 149, 163 - 165). Mr. Craig offered

between 10 and 20 newly constructed affordable housing to be

constructed off - site. Mr. Craig also agreed that his client was

willing to build them and have them open as a condition of

receiving a Certificate of Occupancy for the resort. (R163 -

164). Ultimately, the Commission conditioned its approval of

the project on those representations. (R188, 219).

There was argument from Appellants’ counsel and tes timony

from Ms. Bower that the project should be denied because

Northstar did not submit an EDS and a CIS. (R53 - 54, 57 - 61).

In response, Mr. Craig explained that the information

submitted by Northstar in its Application was equivalent to the

information required in the EDS and the CIS. (R132). See Art.

III, § 9.5 - 69(a)(2)a.(i) - (x), M.C.C. and Art. III, § 9.5 -

69(a)(2)b.(i) - (viii), M.C.C. Mr. Craig stated that Northstar

would be required to meet county, state, and federal criteria

regarding the permitti ng process, for example, for the existing

docks.

Mr. McGarry, the Director of Growth Management for Monroe

County, advised that the project site was disturbed with

scattered native vegetation and that a transplantation plan was

required. This testimony responded to the testimony that there

were inconsistencies in the Northstar Application that were

ultimately resolved by staff in its May 9, 2003, Memorandum.

(R138, 487). See Endnote 2.

Mr. McGarry testified that staff had been under direction

to str eamline staff reports. Mr. McGarry indicated that the

factors required for a CIS are addressed in the Application or

with respect to the criteria in Section 9.5, M.C.C. He also

indicated that the Monroe County Code requires an EDS, which

also contains "d uplicate information, such things as the habitat

size, size of the lot" but "most importantly it is mainly geared

toward habitat that is of a sensitive nature." (R39).

Mr. McGarry testified that the biologist determined that the

project site was disturbe d with no hammock and that there was a

mangrove fringe, which will remain undisturbed. (R139). Mr.

McGarry testified that he questioned Monroe County's Director of

Marine Resources, George Garrett, considering the County's

obligation to assess the impact s of the Northstar project once

it is moved off - shore, and that Mr. Garrett advised him that the

County had little leverage to control activities further off

shore over 300 feet into the water which is regulated by the

DEP's Marine Patrol. (R139 - 140).

Mr. Buckley also stated that sister agencies will await

Monroe County's approval of the project before they will grant

approval or issue letters of intent. (R140). Staff included

the “letters of coordination” in their report so they were not

overlooked. Id . See also Supplemental Record, July 15, 2004,

responses to letters of coordination.

There was also testimony and discussion regarding the

number of parking spaces that should be made available on the

project site. See , e.g. ,(R135, 150 - 151, 158, 184, 19 1).

Mr. Craig testified that Northstar provided more parking than

needed (237 spaces (R247)) and, as a result, he requested the

Commission to approve fewer parking spaces, i.e. , 100 to 110

spaces. (R48 - 49).

Mr. McGarry indicated that 120 parking place s were

reasonable. (R184). Ultimately, the Commission determined, and

Mr. Craig agreed, that Northstar would be required to have 120

spaces for parking and that the surplus land resulting from the

reduction of parking places from 237 to 120 shall remain as open

space via a grant of conservation easemant. The reduction of

parking places was tied to the resort, including the restaurant,

being limited to hotel patrons. (R183 - 185, 191, 220). See also

(R175 - 176, 182).

There were concerns raised regarding vehicular traffic

associated with the Northstar hotel patrons and others utilizing

Thurmond Street. (R36 - 37, 43, 169 - 170, 190 - 192). Mr. Craig

testified that Northstar considered using Thurmond Street as an

entrance for several purposes. Originally, Nor thstar considered

this entrance to be used as an employee entrance but Northstar

agreed that it was not a good idea. Second, it was suggested

that it be used for additional emergency access to the project

site. A third reason was to provide access to the project site

using the back gate on Thurmond Street. (R36). See also (R170 -

174). Ultimately, the Commission concluded that vehicular

traffic associated with the Northstar hotel utilizing Thurmond

Street shall be restricted to automobiles and furthermor e that

there shall be no more commercial deliveries, no tractor - trailer

or bus usage of Thurmond Street. (R190 - 193).

There was also discussion whether the project, including

but not limited to the hotel, would be open to the public.

Mr. Craig stated th at it would not. See , e.g. ,(R35, 157).

Ultimately, the Commission determined that the Northstar hotel

and its amenities shall not be open to the public and any

departure from that concept shall require and amendment to a

Major Conditional Use. (R219).

The Commission was provided with a copy of an Amended

Complaint and a Notice of Lis Pendens filed on behalf of several

plaintiffs, including Edward D. Chzran. Northstar and

Constantin Zaharia are defendants. (R527 - 538). As alleged,

Mr. Chzran was the o wner and seller of Stan & Mary's Restaurant,

which was sold to Northstar. In part, the plaintiffs sought

rescission of the sale of Stan & Mary's Restaurant. (R533 - 534).

(It appears that this property was deeded to Northstar. (R256 -

258, 261 - 263, 528).) Mr. Wolfe advised the Commission that

Northstar had demonstrated that they own the property

notwithstanding the lawsuit. (R180 - 181). There is no

indication in this record whether the lawsuit has been resolved.

After hearing all the evidence and argume nt of counsel, the

Commission unanimously approved the Major Conditional Use,

adopting findings of fact and conclusions of law as follows:

1. Based on the materials submitted, to

develop an eighty - nine - unit hotel with 8,158

square feet of commercial use t he applicant

will need to document the existence of the

twelve - unit motel formerly on - site via a

valid Florida license. If documented, then

seventy - seven (77) Transferable ROGO

Exemptions (TRE) will be required to achieve

the total of eighty - nine units. In lieu of

said documentation 89 TRE will be required.

Additionally fifteen (15) Transferable

Development Rights (TDR) will be required to

qualify the proposed development to use the

maximum net density for the site per Section

9.5 - 4(D - 4) of the Monroe Co unty Land

Development Regulations. Therefore, we

conclude the appropriate licensing

documentation in combination with 77 TRE and

15 TDR must be obtained or a total of 89 TRE

in combination with 15 TDR must be obtained

prior to the issuance of a building p ermit.

2. Based on the materials submitted for

review the project will require an

Environmental Resources Permit from the

South Florida Water Management District

(SFWMD). Therefore, we conclude that said

permit must be obtained prior to the

issuance o f a building permit.

3. Based on the plans submitted a surface

water management/conceptual drainage plan is

represented on Sheet C - 1. Therefore, we

conclude that the County Engineer must

review and approve the surface water

management/conceptual drain age plan prior to

the issuance of a building permit.

4. Based on the material submitted, Florida

Department of Transportation (FDOT) permits

will be required for any reconfiguration of

existing access ways as well was any other

appropriate permits iden tified through the

FDOT pre - application process. Therefore, we

conclude that the applicant must receive

approval from the FDOT via a letter of

intent prior to the issuance of a building

permit.

5. Based on the plans submitted and the

comments of the M onroe County Traffic

Consultant, the right turn lane

(deceleration lane) does not meet FDOT

design standards. Therefore, we conclude

that the right turn lane must meet the FDOT

design standards and be approved by the

County Traffic Consultant.

6. Base d on the material submitted the

proposed development must coordinate with

the Florida Department of Health if

wastewater flows are less than or equal to

10,000 gallons per day or with the Florida

Department of Environmental Protection if

wastewater flows e xceed 10,000 gallons per

day. Therefore, we conclude that a complete

plan review to determine compliance the

provisions of Chapter 64E - 6 of the Florida

Administrative Code, and Chapter 381 of the

Florida Statutes by the appropriate agency

is required prio r to the issuance of a

building permit.

7. Based on the plans submitted a

transplantation plan has not yet been

submitted for review. Therefore, we

conclude that a transplantation plan must be

reviewed and approved by the County

Biologist prior to the issuance of a

building permit.

8. Based on the plans submitted the

proposed development will include renovation

of the existing docking facilities, however

no expansion of the docking facility is

allowed. Therefore, we conclude that all

aspects of th e proposed development that are

proposed in jurisdictional wetlands or

submerged lands will be subject to review

and approval by both the U.S. Army Corps of

Engineers and the Florida Department of

Environmental Protection.

9. Based on the material subm itted all

amenities associated with Northstar hotel

are for patron use only including the

restaurant, docking facilities, boat ramp,

swimming pool, etc. Therefore, we conclude

that the Northstar hotel and its amenities

will not be open to the public.

Fur thermore, any departure from this "gated"

concept will require an Amendment to a Major

Conditional Use.

10. Based on the plans submitted and the

comments of the Planning Commission the

proposed development will utilize the

maximum net density for the s ite. The

development will also create a need for

affordable employee housing that cannot be

met on - site. Therefore, we conclude based

on sworn testimony of the applicant's

representative that not less than ten (10)

and not more than twenty (20) newly

con structed affordable employee housing

units consistent with Section 9.5 - 4(A - 5) and

(E - 1) will be constructed off - site.

11. Based on the statements of the

applicant's agent, the signage for the hotel

shall be "limited and appropriate."

Therefore, we concl ude that one, non -

electrified, but lighted, sign may be placed

in the property's frontage on U.S.1 to

indicate the location of the Northstar

hotel.

12. Based on the agreement of the

applicant's agent, no motorized personal

water craft, including but no t limited to

jet skis and wave runners, will be rented or

allowed to be used from the Northstar's

docking facility or boat ramp.

13. Based on the agreement of the

applicant's agent, the existing docking

facility will remain at sixteen slips.

Therefore , we conclude that two slips will

appropriated for the hotel's two boats

described as a sunset cruise boat and a

charter boat respectively while the

remaining fourteen (14) slips will be for

patron use only.

14. Based on the agreement of the

applicant' s agent, any vehicular traffic

utilizing Thurmond Street is restricted to

automobiles. Therefore, we conclude that

there shall be no commercial deliveries, no

tractor - trailer or bus usage of Thurmond

Street for the purpose of entering or

exiting the North star hotel.

15. Based on Section 9.5 - 61 of the Monroe

County Land Development Regulations the

required parking shall be one hundred - twenty

(120) spaces. Therefore, we conclude that

the surplus land resulting from the

reduction of parking spaces from 2 38 to 120

shall remain as open space via a grant of

conservation easement (GOCEA).

16. Based on the agreement of the

applicant's agent, one of the two existing

boat ramps shall be removed. Therefore, we

conclude that there shall be only one boat

ramp available for patron use.

17. Based on the plans submitted, all

outdoor lighting for the proposed

development must meet the criteria of

sections 9.5 - 391 - 395 with regard to cut - off

lights and lighting in close proximity to

the waterfront.

(R216 - 21 8).

The approval was based on the following conditions:

1. The applicant shall document the

existence of the twelve - unit motel formerly

on - site via a valid Florida License. If

documented, then the applicant shall need 77

Transferable ROGO Exemptions (TRE) to

construct eighty - nine (89) hotel units; if

not documented then the applicant shall

utilize 89 TRE to construct eighty - nine (89)

units prior to the issuance of a building

permit.

2. The applicant shall obtain an

Environmental Resources Permit f rom the

South Florida Water Management District

prior to the issuance of a building permit.

3. The County Engineer shall review and

approve the surface water management/

conceptual drainage plan prior to the

issuance of a building permit.

4. The appl icant shall obtain Florida

Department of Transportation (FDOT) permits

for any reconfiguration of access ways and

any other appropriate permits identified

through the FDOT pre - application process

prior to the issuance of a building permit.

5. The propose d right turn, deceleration

lane shall meet FDOT design criteria and be

approved by the Monroe County Traffic

Consultant prior to the issuance of a

building permit.

6. A complete plan review to determine

compliance with the provisions of Chapter

64E - 6 o f the Florida Administrative Code and

Chapter 381 of the Florida Statutes for on -

site wastewater treatment by the appropriate

agency (Florida Department of Health, if

flow is less than 10,000 gallons a day or

Florida Department of Environmental

Protection, if flow is more than 10,000

gallons a day) prior to the issuance of a

building permit.

7. The transplantation plan must be

submitted and approved by the County

Biologist prior to the issuance of a

building permit.

8. All aspects of the proposed de velopment

that are in jurisdictional wetlands or

submerged lands, including the renovation of

the existing sixteen slip docking facility

must be reviewed and approved by both the

U.S. Army Corps of Engineers and the Florida

Department of Environmental Prot ection prior

to the issuance of a building permit.

9. The Northstar hotel and its amenities

shall not be open to "the public" and any

departure from this "gated" concept shall

require an Amendment to a Major Conditional

Use.

10. Not less than ten ( 10) and not more

than twenty (20) newly constructed

affordable housing employee housing units

consistent with Sections 9.5 - 4(A - 5) and 9.5 -

4(E - 1) shall be constructed off - site. The

employee units shall be completed prior to

the issuance of a Certificate of Occupancy

for the Northstar hotel.

11. One non - electrified, but lighted, sign

shall be placed in the property's frontage

on U.S.1 to indicate the location of the

Northstar hotel.

12. No motorized personal water craft,

including but not limited to, jet skis and

wave runners will be rented from or allowed

to be used from the Northstar's docking

facility.

13. The existing docking facility will

remain at sixteen (16) slips with two slips

being appropriated for the hotel's sunset

cruise boat and ch arter boat while the

remaining fourteen (14) slips will be for

patron use only.

14. Vehicular traffic associated with the

Northstar hotel utilizing Thurmond Street

shall be restricted to automobiles and there

shall be no commercial deliveries, no

tract or trailers or bus usage of Thurmond

Street.

15. Pursuant to Section 9.5 - 61 of the

Monroe County Land Development Regulations

the required parking shall be one - hundred

twenty (120) spaces. The surplus land

resulting from the reduction of parking

space s from two - hundred thirty - eight (238)

to one - hundred twenty (120) shall remain as

open space via a Grant of Conservation

Easement (GOCEA).

16. One of the two existing boat ramps

shall be removed leaving one boat ramp for

patron use.

17. All outdoor lighting for the proposed

development must meet the criteria of

Sections 9.5 - 391 - 395 with regard to cut - off

lights and lighting in close proximity to

the waterfront.

(R218 - 220). See also (R188 - 193).

III. Legal Discussion

The Division of Administra tive Hearings has jurisdiction

over the subject matter of this proceeding and of the parties

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

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

commission." Art. XIV, § 9.5 - 540(b) , M.C.C. The scope of the

hearing officer's review under Article XIV is:

The hearing officer's order may reject or

modify any conclusion of law or

interpretation of the Monroe County land

development regulations or comprehensive

plan in the planning commi ssion's order,

whether stated in the order or necessarily

implicit in the planning commission's

determination, but he may not reject or

modify any findings of fact unless he first

determines from a review of the complete

record, and states with particulari ty in his

order, that the findings of fact were not

based upon competent substantial evidence or

that the proceeding before the planning

commission on which the findings were based

did not comply with the essential

requirements of law.

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

administrative action of Monroe County." Art. XIV, § 9.5 -

540(c), M.C.C.

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

court discussed the meaning of "competent substantial evidence"

and stated:

We hav e used the term "competent substantial

evidence" advisedly. Substantial evidence

has been described as such evidence as will

establish a substantial basis of fact from

which the fact at issue can be reasonably

inferred. We have stated it to be such

relev ant evidence as a reasonable mind would

accept as adequate to support a conclusion.

. . . In employing the adjective "competent"

to modify the word "substantial" we are

aware of the familiar rule that in

administrative proceedings the formalities

and the introduction of testimony common to

the courts of justice are not strictly

employed. . . . We are of the view,

however, that the evidence relied upon to

sustain the ultimate findings should be

sufficiently relevant and material that a

reasonable mind woul d accept it as adequate

to support the conclusion reached. To this

extent, the "substantial" evidence should

also be "competent."

Id. at 916. (citations omitted).

A hearing officer (administrative law judge) acting in his

or her appellate review capa city is without authority to reweigh

conflicting testimony presented to the Commission or to

substitute his or her judgment for that of the Commission on the

issue of the credibility of witnesses. See Haines City

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

The question on appeal is not whether the record contains

competent substantial evidence supporting the view of the

appellant; rather, the question is whether competent substantial

evidence supports the findings made by the Commissi on. Collier

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

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

Dusseau v. Metropolitan Dade County, Board of County

Commissioners , 794 So. 2d 1270, 1275 - 1276 (Fla. 2001); Dorian v.

Da vis , 874 So, 2d 661, 663 (Fla. 5th DCA 2004). In Dusseau ,

supra , the court stated:

the “competent substantial evidence”

standard cannot be used by a reviewing court

as a mechanism for exerting covert control

over the policy determinations and factual

find ings of the local agency. Rather, this

standard requires a reviewing court to defer

to the agency's superior technical expertise

and special advantage point in such matters.

This issue before the court is not whether

the agency's decision is the “best” d ecision

or the “right” decision or even a “wise”

decision, for these are technical and

policy - based determinations properly within

the purview of the agency. The circuit

court has no training or experience -- and

is inherently unsuited -- to sit as a rovi ng

“super agency” with plenary oversight in

such matters.

Dusseau , 794 So. 2d at 1275 - 1276.

The issue of whether the Commission "complied with the

essential requirements of law" is synonymous with whether the

Commission "applied the correct law." Haines City Community

Development , 658 So. 2d at 530.

Appellants contend that they were denied procedural due

process of law and that the Commission departed from the

essential requirements of law by denying the Appellants party

status and the right to cr oss - examine witnesses during the

Commission hearings. See pages 14 and 15, supra . The

Commission did not depart from the essential requirements of law

in interpreting the Monroe County Code regarding these issues.

Osborn raises other procedural due proc ess issues. See page 3,

supra .

Under the Monroe County Code, the review criteria are

limited and do not include consideration of whether procedural

due process was afforded by the Commission. Because the

decision to grant or deny a permit is a quasi - ju dicial action,

Appellants may, if they wish, seek review of this final order by

filing a petition for the writ of certiorari with the

appropriate circuit court. See Upper Keys Citizens Association

and Florida Keys Chapter Izaak Walton League of America v.

Monroe County and Florida Keys Electric Cooperative Association,

Inc. , Case No. 01 - 3914 (DOAH March 5, 2003), and cases sited

therein at page 31.

Smart Planning made the Commission aware of the litigation

involving Stan & Mary's Restaurant, but the reco rd on appeal

does not reveal the outcome of this litigation. The record

includes competent substantial evidence that Northstar is the

owner of the property where Stan & Mary's Restaurant was

located. The Commission did not depart from essential

requireme nts of law in considering the Stan & Mary's Restaurant

for the purpose of satisfying part of the density analysis.

Smart Planning argues that the Commission departed from the

essential requirements of law in approving the Northstar project

in so far as approval is based on the hotel and its amenities

being closed to public.

"The purpose of the [Suburban Commercial District] is to

establish areas for commercial uses designed and intended

primarily to serve the needs of the immediate planning area in

whi ch they are located. This district should be established at

locations convenient and accessible to residential areas without

use of U.S. 1." Art. VII, § 9.5 - 206, M.C.C. Hotels providing

25 or more rooms are authorized in the suburban commercial

district . Art. VII, § 9.5 - 235(c)(4), M.C.C. Planning staff

determined that the project was in compliance with Section 9.5 -

206, M.C.C., notwithstanding staff's finding and conclusion that

the resort and its amenities will not be open to the public.

(R488, 491).

Smart Planning contends that Northstar's project is not

intended primarily to serve the needs of the immediate planning

area of the project site.

Planning staff described the community character of the

immediate vicinity of the project as a mix of comm ercial and

residential uses. Several members of the public who supported

the Northstar project indicated that it would generate

additional tax revenue, help employees, and add value in jobs.

Also, some believed that the project would enhance the area due

to the deteriorated condition of the existing project site.

(R89 - 113). There is competent substantial evidence to support

the Commission's approval of the project.

Smart Planning contends that the Commission departed from

the essential requirements o f law when it approved the project's

angular entrance way, which is shown on the Site Plan (A - 1) an

angle of 50 degrees.

Article VII, Section 9.5 - 296(m), M.C.C., provides that

"[s]treets shall be laid out so as to intersect as nearly as

possible at right angles, and no street shall intersect any

other street at less than eighty (80) degrees.") (Osborn makes

similar issues with respect to traffic and entrance way

considerations.

Northstar submitted a detailed traffic study, as

supplemented, in support of its Application. Monroe County's

traffic consultant, Mr. Shanmugam noted that several changes

would have to be made to meet design standards. (R413). See

also (R168 - 169). Planning staff recommended conditions (R491),

which were adopted by the Commissi on. (R216 - 217). See pages

28 - 30, supra . In essence, the project was approved with

conditions, which must be met prior to the issuance of a

building permit. See Art. III, § 9.5 - 61, M.C.C. ("Conditional

uses are those uses which are generally compatible with the

other land uses permitted in a land use district, which require

individual review of their location, design and configuration

and the imposition of conditions in order to ensure the

appropriateness of the use at a particular location.") See also

Art. III, §§ 9.5 - 62 and 9.5 - 67, M.C.C. The Commission did not

depart from the essential requirements of law in approving the

project subject to these conditions.

There is competent substantial evidence to support the

Commission’s finding that the proje ct site had an existing

docking facility with 16 slips. (R130, 138, 186 - 188). Planning

staff determined that Northstar did not plan for any expansion

of the existing facility and further determined "that any

additional marina study was not needed because in essence this

was an accessory structure that was already existing." (R138).

The Commission did not depart from the essential requirements of

law in implicitly determining that the 16 - slip docking facility,

will be use solely by patrons of the resort a nd hotel, which is

the principal use of the property. See generally Art. I, § 9.5 -

4 (A - 2), M.C.C., for the definition of accessory uses or

accessory structures which mean, in part, "a use or structure

that is subordinate to and serves a principal use or s tructure;

is subordinate in an area extend and purpose to the principal

use or structure served; contributes to the comfort, convenience

and necessity of occupants of the principal use or structure

served; and is located on the same lot or on contiguous lo ts

under the same ownership and the same land use district as

principal use or structure."

Osborn contends that the Commission's decision should be

reversed because the Commission did not require a deed

restriction to prohibit the use of the hotel facilit ies by the

public. The Commission expressly conditioned its approval of

the project based on its finding and conclusion that the "hotel

and its amenities shall not be open 'to the public' and any

departure this 'gated' concept shall require an Amendment t o a

Major Conditional Use." (R217, 219). The Commission did not

depart from the essential requirements of law in not requiring a

deed restriction to supplement the Commission’s finding and

condition.

Osborn further contends that the Commission departe d from

the essential requirements of law in approving this project

based upon its approval of 120 parking spaces. After much

discussion during the public hearing, the Commission concluded

that 120 parking spaces was adequate given the requirements of

the project and further found and concluded "that the surplus

land resulting from the reduction of parking spaces from 238 to

120 shall remain as open space via a grant of conservation

easement. (R218 - 222). There is competent substantial evidence

to support requiring Northstar to provide 120 parking spaces and

conditioning the approval based on the requirement of Northstar

providing Monroe County with more open space via a grant of

conservation easement.

Osborn also contends that the Commission departed fr om the

essential requirements of law in conditioning approval of the

project based on an unenforceable condition, i.e. , that

vehicular traffic associated with the hotel utilizing Thurmond

Street shall be restricted to automobiles with no commercial

deliver ies and no tractor trailer or bus usage of Thurmond

Street. (R220). There was evidence presented to the Commission

regarding the traffic situation on Thurmond Street and, in

particular, at the gate entrance to the project site. The

evidence supports thi s condition, which is subject to

enforcement, and there is no showing that the Commission did not

have the authority to impose this condition.

Osborn argues that the Commission departed from the

essential requirements of law by approving the project, in part,

by allowing Northstar to provide for the construction of off -

site affordable housing. There is competent substantial

evidence to support the need for affordable housing in light of

the project and that designing and constructing affordable

housing off - site is appropriate to satisfy the need. (R217,

219).

Osborn contends that the Commission departed from the

essential requirements of law by not requiring Northstar to

provide an EDS and a CIS. See pages 20 - 22, supra . See also

Endnote 4

The Monro e County Code provides that "[a]s a part of the

application for Major Conditional Use, a applicant shall be

required to submit that following, except for those

inappropriate to the proposed development due to the limited

size or scale of the development as determined by the planning

director: a. an environmental designation survey consisting of"

numerous items. See Art. III, § 9.5 - 69(a)(2)a.(i) - (x), M.C.C.

The Monroe County Code also requires a CIS. Art. III, § 9.5 -

69(a)(2)b.(i) - (viii), M.C.C.

Attach ment A, which accompanied Northstar's Major

Conditional Use Application, sets forth numerous documents which

may be required to be submitted with the application. The

applicant is directed to consult with a planner. Photographs of

the site are necessary in all cases. (R223). It appears that

the application, with attachments, provided the requested

information.

Planning staff described the project and also determined

that about one - third of the site is vacant and approximately

two - thirds of the site h ouses a variety of derelict vehicles and

other non - functioning equipment and machinery as well as the

structures, which are described by staff. (R486, 489).

The site is also disturbed with scattered native growth.

The staff recommended that a transp lantation/replanting plan

must be reviewed and approved "by the Upper Keys Biologist prior

to the issuance of a building permit." (R487, 492). Staff also

determined that "[t]he proposed redevelopment will not adversely

affect a known archaeological, hist orical, or cultural

resource." (R490).

Several letters of coordination accompanied Northstar's

application. (R269 - 270). The record contains responses. See

Supplemental Record, July 15, 2004. In part, the South Florida

Water Management District’s st aff reviewed the information

submitted on November 26, 2002, regarding the Northstar Resort,

and based upon submitted information, determined that "it

appears that an Environmental Resource Permit will be required."

Id. See also December 2, 2002, letter from DEP and December 28,

2000, letter from the Department of Community Affairs.

Northstar submitted numerous plans with its Application

including but not limited to a Site Plan (A - 1). The Site Plan

indicated the location of an "unaltered natural shore line" and

also included a statement that existing scattered red mangroves

would remain in the area indicated. (R281). Other shoreline

areas are designated. Id. The Application also included a

conceptual drainage plan, required landscaping plan, and oth er

drawings. (R307, 308).

With respect to a CIS, Northstar's Application complied

with the requirements of the Monroe County Code including but

not limited to providing detailed descriptions of the proposed

development, assessments of public facilities and water supply,

public facilities - waste water management, traffic studies, and

letters of coordination.

Based on all the evidence presented, the Commission

concluded that Northstar will be required to obtain necessary

permits from, including but not l imited to, the South Florida

Water Management District, the Florida Department of Health, the

U.S. Army Corps of Engineers, and DEP. (R216 - 219).

The Commission did not depart from the essential

requirements of law in approving the project, notwithstand ing

the lack of a formalized EDS or CIS.

Finally, Osborn contends that the Commission departed from

the essential requirements of law in approving the project

without requiring Northstar to comply with NROGO.

Staff determined that the current project site, in part,

consisted of 9,250 square feet of existing commercial floor area

of which 8,158 square feet of commercial floor area will be

utilized for the proposed redevelopment. (R487, 489). See also

(R372 - 380). The Site Plan (A - 1) dated May 2, 2002 , indicated

86,074.75 square feet of transient residential use, 8,185 square

feet of commercial use, and 190,425.10 square feet of accessory

use. (R281). (Osborn contends that Northstar’s proposal to use

between 12,000 to 37,454.11 square feet of access ory use is

improperly exempt from NROGO.)

During the public hearing, Osborn's counsel, relying on

Ms. Bower, briefly suggested that every square foot of

commercial use and every square foot of hotel room is proposed

for the project. (R52). Ms. Bower c ontended in one recorded

paragraph that there was over 17,000 square feet of commercial

square footage that would be exempt from NROGO if the project

were approved. (R61). See also pages 16 - 17, supra .

Planning staff had the opportunity to review the d etails of

the project, including the Site Plan (A - 1), which included the

separate designations/calculations for transient residential

use, commercial use, and accessory use. Planning staff

determined the number of TREs and TDRs that would be required to

p lace 89 transient residential units and 8,158 square feet of

commercial floor area on site. Planning staff also determined

the appropriate density/intensity ratios and percentages.

(R486, 490). These calculations were the subject of

Ms. Conaway’s Januar y 25 and March 18, 2002, letters, and in

particular, her statement on January 25, 2002, that “[u]ses such

as restaurants, commercial retail shops, gymnasiums and other

similar uses not absolutely necessary to a hotel shall be

considered as commercial floor area” and in her statement of

March 18, 2002, that "[a]ny commercial floor area in excess of

the existing 9,250 s.f. would require competition in the Non -

residential Rate of Growth Ordinance (NROGO) for the excess once

the NROGO is affective ." (R372, 376 )(emphasis in original).

See also (R384).

Based upon all the evidence presented during the public

hearing, the Commission approved Northstar's request for a Major

Conditional Use for the construction of a resort hotel with 89

units, 8,158 square of c ommercial use and other amenities.

(R218).

This point on appeal was presented in a cursory fashion

during the public hearing. Nevertheless, the Commission

implicitly rejected the assertion that Northstar proposed to

construct more than 8,158 square fee t of commercial use and

thus, rejected the argument that the alleged excess of accesory

uses should have been subject to competition pursuant to NROGO.

In so doing, the Commission did not depart from the essential

requirements of law.

DECISION

Based on the foregoing, the Commission's decision in

Resolution No. P47 - 03 is AFFIRMED.

DONE AND ORDERED this 1st day of November, 2004, in

Tallahassee, Leon County, Florida.

S

___________________________________

CHARLES A. STAMPELOS

Administrative Law Judge

Divis ion of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of November, 2004.

ENDNOTES

1 / Prior to the filing of the Northstar Application, in a letter

of understanding of January 25, 2002, as modified on March 18,

2002, Ms. Conaway determined that the project site contai ned

“multiple commercial uses with a combined total of 9,250 square

feet.” (R376). See also (R487, 489, Staff Memorandum, May 9,

2003,) and (R245, Northstar’s density analysis).

2 / During the public hearing before the Commission, Mr. Craig

acknowledg ed and Mr. Buckley confirmed that the site is

disturbed with scattered vegetation and a transplantation plan

is required and must be approved by the County Biologist prior

to the issuance of a building permit. (R138 - 139, 219). The

mangrove area is identi fied on the Site Plan (A - 1) and will

remain undisturbed. (R139, 281).

3 / The Application stated and Resolution No. P47 - 03 approved

Northstar’s Application to use 8,158 square feet of commercial

use. (R215 - 216, 218, 221 - 222). The Site Plan (A - 1) dated May

5, 2002, refers to 8,185 square feet of commercial use. (R28).

4 / Notwithstanding Staff’s determination of compliance with

Section 9.5 (R488), Staff’s Memorandum does not expressly cite

to the provisions of Article III, Section 9.5 - 69, M.C.C.,

dea ling with Major Conditional Uses and whether the project is

consistent with applicable provisions. For example, Article

III, Section 9.5 - 69(a)(2), M.C.C., provides that " [a]s a part

of the application for major conditional use, an applicant shall

be requ ired to submit the following, except for those

inappropriate to the proposed development due to the limited

size or scale of the development as determined by the planning

director." These items include, in part, an EIS consisting of

several enumerated ite ms and a CIS also consisting of several

items. See (R380, Ms. Conaway stating: “The applicant will be

required to submit a community impact statement provided the

conditional use is sought.”)

COPIES FURNISHED :

Lee Robert Rohe, Esquire

Lee Robert Rohe , P.A.

Post Office Box 420259

Summerland Key, Florida 33042

Timothy Nicholas Thomes, Esquire

Timothy Nicholas Thomes, P.A.

99198 Overseas Highway, Suite 8

Post Office Box 3318

Key Largo, Florida 33037

Derek V. Howard, Esquire

Morgan & Hendrick

Post Off ice Box 1117

Key West, Florida 33041 - 1117

Andrew M. Tobin, Esquire

Post Office Box 620

Tavernier, Florida 33070 - 0620

Nicole Petrick, Planning Commission Coordinator

Monroe County Growth Management Division

2798 Overseas Highway, Suite 400

Marathon, Flo rida 33050

NOTICE OF RIGHTS

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

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

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

certiorari to the circuit court in the appropriate judicial

circuit.