03-004721 Scotty`s, Inc.; Walgreens Co.; And Gadinsky Real Estate, Llc vs. Monroe County Status: Closed DOAH Final Order on Wednesday, February 9, 2005.

Summary: Resolution denying application is affirmed where applicant failed to show that the project was consistent with purpose of land use category in which property was located.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCOTTY'S, INC.; WALGREENS )

COMPANY; and GADINSKY REAL )

ESTATE, LLC, )

)

Appellants, )

)

vs. ) Case No. 03 - 4721

)

MONROE COUNTY PLANNING )

COMMISSION, )

)

Appellee, )

)

and )

)

FLORIDA KEYS CITIZENS )

COALITION, )

)

Intervenor. )

______________________________)

FINAL ORDER

Appellants, Scotty's, Inc. (Scotty's), Walgreens Company

(Walgreen), and Gadinsky Real Estate, LLC (Gadinsky), seek

review of Monroe County Planning Commission (Commission)

Resolution No. P36 - 03 (Resolution) dated September 10, 2003.

The Division of Administrative Hearings (DOAH), by contract, and

pursuant to Article XIV, Section 9.5 - 535, Monroe County Code

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

submitted an Initial Brief. The Commission submitted an Answer

Brief. Intervenor, Florida Keys Citizens Coalition, submitted

an Answer Brief, as amended, in support of the Resolution.

Finally, Appellants submitted a Reply Brief. Oral argument was

presented during a telephone hearing held on January 31, 2005.

I. Issues

Appellants raise three issues on appeal: (1) whether t he

findings in the Resolution are supported by competent

substantial evidence; (2) whether the Commission departed from

the essential requirements of the law by not applying the

correct law; and (3) whether the matter should be remanded to

the Commission f or further action because the Resolution failed

to set forth in writing any changes in the proposed project

that would make it eligible for approval, as required by

Section 380.08(3), Florida Statutes (2004).

II. Background

The property in questi on is located at 30351 Overseas

Highway (U.S. Highway 1) in Big Pine Key (near mile marker 30)

between Marathon and Key West, Florida. The Big Pine Key

community (including the entire island) has approximately 5,000

residents.

A Scotty's hardware and ga rden store presently occupies the

property. On the eastern side of the site is an Eckerd's drug

store while a commercial trucking company sits next to the

western boundary. The rear (north side) of the property is

bordered by Slash Pineland habitat. A m ixture of commercial

retail facilities are found across the street (U.S. Highway 1).

Scotty's property lies within the Suburban Commercial (SC)

land use district, whose purpose is "to establish areas for

commercial uses designed and intended primarily to serve the

needs of the immediate planning area in which they are located."

Since 1983, the subject property (consisting of 3.01 acres)

has been owned and occupied by Scotty's, which has a contract

with Walgreen for the sale of the property, conditioned o n the

approval of the application. The transaction is being handled

by Gadinsky, a Miami Beach real estate firm.

On April 14, 2003, Gadinsky, on behalf of Appellants, filed

an application with the County Planning Department seeking to

amend a Major Cond itional Use approval to redevelop the existing

Scotty's hardware and garden store by removing an existing

25,921 - square foot structure on the property and replacing it

with a 16,510 - square foot structure consisting of a Walgreen

drug store, a drive - through window for the pharmacy, and a

2,000 - square foot liquor store. (If Walgreen simply intended to

remodel the present structure, rather than demolish it, no

application, except for minor building permits, would be

required since the site enjoys non - conformi ng use status.

Apparently, however, because Walgreen is removing the existing

structure and redeveloping the site, it loses the non - conforming

status enjoyed by Scotty's and becomes subject to all M.C.C. and

Plan requirements, including one that it obtain a new major

conditional use permit.) The appropriate criteria for

evaluating an application for a conditional use are set forth in

Section 9.5 - 65, M.C.C.

Based upon a review of the application and supporting

documents, on May 29, 2003, a County planner a nd biologist

submitted a joint memorandum to the Commission recommending that

the application be approved, subject to six conditions. The

memorandum noted, among other things, that the conditional use

is consistent with the purposes, goals, objectives, an d

standards of the Comprehensive Plan (Plan) and applicable land

development regulations, including Section 9.5 - 65, M.C.C.

On June 10, 2003, the staff report was considered (at a

hastily convened meeting) by the Development Review Committee

(consisting of six County staffers), which recommended that the

application be approved. See Development Review Committee

Resolution No. D16 - 03, dated June 11, 2003. The Resolution

adopted verbatim as its own the findings and conditions set

forth in the staff report.

O n June 11, 2003, the Commission conducted a public hearing

on the application. Appellants presented the testimony of four

witnesses in support of the application: Donald Craig, a

planner accepted as an expert; Richard P. Eichinger, a traffic

engineer acc epted as an expert; Patty Philcox, manager of the

Walgreen's store in Marathon; and Roy Ripak, district manager

for Walgreen. Intervenor presented the testimony of Susan

Eanes, who owns a liquor store near the project; Sherry

Phillips, a resident of the a rea; Cheryl Bower, a land use

consultant accepted as an expert; and Miles Elliot Moss, a

traffic engineer accepted as an expert. In addition, the

following members of the public testified in opposition to the

application: Larry Sullivan, president of the Big Pine Key

Civic Association; Chris Smith, Katie Lang, Bill Lowey, Dennis

Henize, and Katherine Wheeler, all Big Pine Key residents;

George Neugent, a County Commissioner with offices in Big Pine

Key; Barry Patterson, a Key Largo resident; Edith Sweeney , the

owner of a Hallmark card shop in Big Pine Key; and Meri - Lynn

Britz, the owner of a Big Pine Key bar and package store.

Finally, K. Marlene Conaway, director of the County Department

of Planning and Environmental Resources, and Aref Joulani, a

County senior administrator for planning and policy, testified

for the County staff.

At the Commission hearing, Appellants' two experts,

Eichinger and Craig, focused primarily on traffic impacts of the

project and whether the application satisfied the criteria i n

Section 9.5 - 65, M.C.C., respectively. Witness Craig also noted

that the application was consistent with the proposed Livable

CommuniKeys Planning Program (Program), which when completed,

will create master plans for each community in the County,

includi ng Big Pine Key. The two Walgreen representatives

testified generally concerning the type and frequency of truck

deliveries that would occur on the site. The Walgreen district

manager also orally agreed to withdraw the request to sell

liquor on the premi ses and to redesign the architecture on the

site if that would resolve the objections raised by Intervenor

and residents of Big Pine Key who appeared in opposition to the

application. (Apparently, these proposed concessions did not

satisfy the concerns of the opponents.)

At the hearing, at least three witnesses (Neugent,

Sullivan, and Wheeler) testified that Big Pine Key was an

environmentally sensitive area and that it was the most unique

area in the Florida Keys. There was also testimony by witness

Bowe r that due to environmental and space constraints, Big Pine

Key has a limited amount of remaining development potential.

In addition, numerous witnesses (Eanes, Bower, Smith, Lang,

Wheeler, Neugent, and Britz) testified that the community

character of Bi g Pine Key is rural. This testimony was

consistent with the same determination (that the character of

the community is rural) made during the planning process begun

in 2000 for the Program. (Under the Program, a master plan for

each community, including Big Pine Key, will be adopted.

According to witness Wheeler, the Program and Plan envisioned

Big Pine Key as "a rural community with a small town

atmosphere." Just before it considered Appellants' application

at its meeting on June 11, 2003, the Commissi on formally

recommended that the proposed master plan for Big Pine Key be

adopted by the County. The final disposition of that

recommendation is not of record.) Similarly, Appellants'

witness Eichinger described the proposed new store as a "rural

store," which differentiated it from typical Walgreen stores

found in urban areas, such as Key Largo and Marathon.

All parties at the hearing agreed that the criteria in

Section 9.5 - 65, M.C.C. should be used in evaluating the merits

of the application. Paragraph (a) of that section provides that

in considering applications for a conditional use permit, the

Commission shall consider the extent to which the use "is

consistent with the purposes, goals, objectives and standards of

the [comprehensive] plan and this ch apter." The conditional use

must also be consistent with "the community character of the

immediate vicinity of the parcel proposed for development," and

it must "minimize adverse effects . . . on adjacent properties."

See § 9.5 - 65(b) and (c), M.C.C.

In interpreting the terms "immediate vicinity" and

"adjacent properties," the Commission implicitly rejected

Appellants' view that only the immediate commercial neighborhood

around Scotty's should be considered in determining whether the

use was consistent w ith the community character and minimized

adverse impacts on adjacent properties. Instead, it accepted

the testimony of witness Bower that it should consider a

"planning area in the context of surrounding properties or

neighborhoods," as provided for in S ection 9.5 - 63(c), M.C.C.,

and therefore consistency with, and impacts on, a larger

geographic area is required. Because Section 9.5 - 63(c), M.C.C.,

is not cited in the Resolution, and the record is silent on this

point, it is unknown whether the Commission read the two

provisions in pari materia , used Section 9.5 - 63(c), M.C.C., as

the basis for broadly interpreting the terms of Section 9.5 -

65(b) and (c), M.C.C., or without specifically saying so simply

relied on Section 9.5 - 63(c), M.C.C., to the exclusion o f the

other provision. It is fair to say, however, that the

Commission interpreted the provisions in Section 9.5 - 65(b) and

(c), M.C.C., broadly and considered the impacts of the project

on the entire island, and not just the immediate area around the

stor e.

Witness Bower also testified that the conditional use was

inconsistent with Plan Objective 105.1, which directs the County

to implement growth initiatives that, among other things,

"preserve the natural environment, [and] maintain and enhance

the comm unity character and quality of life." This is because

the proposal, if approved, would not maintain the rural

character of the community. Numerous other witnesses (Eanes,

Wheeler, Lang, Smith, Sullivan, Loewy, Henize, Britz, and

Neugent) reached the same conclusion. (Objective 105.1 is not

mentioned in the Resolution, however, as a basis for denying the

application.)

As noted above, the property is located within the SC

district. The purpose of the SC district "is to establish areas

for commercial uses designed and intended primarily to serve the

needs of the immediate planning area in which they are located."

In commenting on this provision, witness Bower testified that in

a community of only 5,000 persons, and with a finite amount of

commercial space still available, it was contrary to good

planning practices to establish a new drugstore next door to an

existing drug store (Eckerd's). There was testimony by other

witnesses (Eanes, Sullivan, Henize, and Wheeler) that the needs

of the community were alr eady represented by the existing

Eckerd's and liquor stores on Big Pine Key.

Although Appellants' witness Eichinger testified that the

intensity of use, and associated net daily trips generated by

the site, would actually be decreased by replacing Scotty 's with

a Walgreen store, testimony by witness Eanes indicated that at

the present time, there are very few customers in Scotty's

parking lot. In the same vein, witness Phillips pointed out

that on Monday, June 10, 2003, or the day before the Commission

h earing, she observed only three vehicles in the Scotty's

parking lot at 1:30 p.m. Witness Smith added that the existing

store "does not generate any kind of traffic," while a staff

member (Conaway) indicated that Scotty's business has declined

in recent y ears (presumably leading to its decision to sell the

property). This conclusion was echoed by witness Lowey who said

that Scotty's "is a place that has been looking for a way out

for quite a long time."

At the same time, witness Bower testified that the proposed

Walgreen store is more akin to a convenience store than a

traditional drug store, which is one of the highest - intensity

uses, and that more traffic would be generated by that type of

business. Also, witness Loewy observed that the Walgreen store

will operate from 8:00 a.m. until 10:00 p.m., seven days per

week, or 35 hours more per week than Scotty's is now open. This

was confirmed by Appellants' witness Philcox. (The application

indicates that the store reserves the right to operate 24 hours

p er day, seven days per week, at some point in the future.)

Finally, witness Moss noted that the existing Scotty's hardware

store is a "very low generation" store in terms of traffic, and

that in comparison, a Walgreen store would be a "very high -

generatio n store." His conclusion was bolstered by the

observations of the witnesses noted above. This testimony

formed in part the basis for the Commission's finding that the

intensity on the property will increase if a Walgreen store is

constructed.

In calcula ting the traffic impacts of the new store,

Appellants' expert Eichinger used the Sixth Edition of the

Institute of Transportation Engineers Trip Generation Manual

(Manual) for trip generation data and the Trip Generation

Handbook for pass - by data. He also indicated that the Manual

was used as an authoritative source more than 95 percent of the

time in determining trip generation. 1 At the same time, however,

Intervenor's expert Moss testified that the Manual and Handbook

have a number of limitations (such as non - current data on pass -

by trips, no data for a liquor store, no land use category for a

drug/convenience store, and no trip generation rate for a store

like Scotty's); that Appellants assumed the wrong square footage

for the existing Scotty's store, w hich caused an overstatement

of existing traffic at Scotty's; and that pass - by trips are more

accurately derived by personal interviews of drivers stopping at

Scotty's, rather than relying on Handbook numbers which are

taken from other locations throughout the United States.

In terms of safety, Mr. Moss testified that there are

serious traffic safety hazards associated with truck deliveries

to the site, due to the configuration of the parking lot and the

requirement that off - loading trucks use Key Deer Bo ulevard

(State Road 940) when exiting the property. That road, which

intersects with U.S. Highway 1 east of Scotty's parcel, may be

accessed from the northeastern corner of the property. As to

this concern, even witness Eichinger acknowledged that due to

the property's configuration and the limited turning and access

space, the site presents an inherent challenge to truck drivers

who will off - load supplies at the new store. (Again, however,

this concern was not addressed in the Resolution.)

At the conclu sion of the hearing, the Commission denied the

application by a 5 - 0 vote. On September 10, 2003, the

Commission entered its Resolution No. P36 - 03, which memorialized

its earlier decision. The Resolution made the following

Findings of Fact and Conclusions of Law:

1. Based on the fact that Big Pine Key is

within the boundaries of the National Key

Deer Refugee and in an area of significant

environmental constraints there is an

extremely limited amount of development

potential on Big Pine Key. Therefore, we

find that Big Pine Key has a unique

community character.

2. Based on the 1986 Comprehensive Land Use

Plan, the 1996 (Year 2010) Comprehensive

Land Use Plan and subsequent planning

processes, including the Big Pine Key HCP

(Big Pine/No Name Key Habitat Conservation

Plan) and Big Pine Key LCP (Livable

CommuniKeys Program) planning process; the

character of Big Pine Key has been defined.

Therefore, we find that the community

character of Big Pine Key is rural.

3. Based on Section 9.5 - 65, "when

consideri ng applications for conditional

uses, the Director of Planning and the

Planning Commission shall consider to the

extent which the conditional use is

consistent with purposes, goals and

objectives, and standards of the

Comprehensive Plan and this Chapter."

Therefore, we find that the project will not

meet the general standards set forth in

Section 9.5 - 65 including but not limited to:

the project is not consistent with the

surrounding community character, and the

project does not minimize adverse effects on

the surrounding properties.

4. Based on Section 9.5 - 206, the purpose of

Suburban Commercial (SC) district is to

establish areas for commercial uses designed

and intended primarily to serve the needs of

immediate planning area in which they are

located. Therefore, we find that the

proposed use of the property does not meet

the purpose of the SC land use district.

5. Based on the expert testimony and

exhibits, we find that the existing Scotty's

hardware store is not a medium intensity use

and the applic ant failed to demonstrate that

the proposed Walgreen's is not a change of

use to a higher intensity and that the

intensity is within the same category as the

existing use.

6. Based on staff and expert's testimony

recognizing the level of service concurre ncy

moratorium, the level of service is

substandard in Big Pine Key. The state

statutes and local comprehensive plan

policies and Land Development Regulations

prohibit the issuance of building permits

where there is degradation of an inadequate

level of s ervice. Therefore, we find that

the evidence submitted demonstrates an

adverse impact on the US 1 Highway level of

traffic, and that the project is in conflict

with Florida State Statutes and the Monroe

County Year 2010 Comprehensive Plan.

7. Based on expert and public testimony, we

find that the project is not consistent with

the purposes, goals, objectives, policies

and standards of the Year 2010 Comprehensive

Land Use Plan, including but not limited to:

protecting and enhancing the quality of life

of the residents, and the planned future

development of Big Pine Key, Livable

CommuniKeys Program, initiated on Big Pine

Key in April, 2000.

On October 10, 2003, Appellants filed their Application for

An Appeal to the Hearing Officer (Appeal) challenging th e

Resolution, which denied their application. As noted above, and

as clarified in Appellants' Initial Brief and by counsel during

oral argument, the bases for the Appeal are that the Resolution

is not supported by competent substantial evidence, that the

Commission departed from the essential requirements of the law

by misconstruing certain provisions in the M.C.C., and that the

Resolution did not identify the changes that would be necessary

in order for the Commission to approve the application.

III. Leg al Discussion

The Division of Administrative Hearings has jurisdiction

over the subject matter of this proceeding and of the parties

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

officer [administrative law judge] "may affirm, reverse or

mo dify 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 as follows:

The hearing officer's order may reject or

modify any conclusion of law or

interpretation of the M onroe County land

development regulations or comprehensive

plan in the planning commission's order,

whether stated in the order or necessarily

implicit in the planning commission's

determination, but he may not reject or

modify any findings of fact unless he first

determines from a review of the complete

record, and states with particularity in his

order, that the findings of fact were not

based upon competent substantial evidence or

that the proceeding before the planning

commission on which the findings w ere based

did not comply with the essential

requirements of the 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.

Section 9.5 - 47(b), M.C.C., requires in part that all

decisions be in writing and adopted by resolution and that they

include at least the following elements:

(3) A clear statement of specific findings

of fact and a statement of the basis upon

which such facts were determined, with

specific reference to the relevant standards

set forth in this chapter, including but not

limited to the standards in section 9.5 - 65.

In DeGroot v. Sheffield , 95 So. 2d 912, 915 (Fla. 1957),

the court discussed the meaning of "competent substantial

evidence" and stated:

We have used the term "competent substantial

evidence" advisedly. Substantial evidence

has been described as such evidence as will

establish a substantial basis of fact from

which the fact at issue can be reasonably

inferred. We have stated it to be such

releva nt 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 i ntroduction of testimony common to

the courts of justice are not strictly

employed. . . . We are of the view,

however, that the evidence relied upon to

sustain the ultimate findings should be

sufficiently relevant and material that a

reasonable mind would accept it as adequate

to support the conclusion reached. To this

extent, the "substantial" evidence should

also be "competent."

A hearing officer acting in his or her appellate review

capacity is without authority to reweigh conflicting testimony

presen ted to the Commission or to substitute his or her judgment

for that of the Commission on the issue of 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 re cord contains

competent substantial evidence supporting the view of Appellant;

rather, the question is whether competent substantial evidence

supports the findings made by the Commission. Collier Medical

Center, Inc. v. Department of Health and Rehabilita tive

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

The issue of whether the Commission "complied with the

essential requirements of law" is synonymous with whether the

Commission "applied the correct law." Haines City Community

Development , 658 So. 2 d at 530.

Finally, while Appellants seek to discount (and not have

considered) the testimony of the members of the public who

testified at the hearing, their testimony should be accepted as

competent substantial evidence, as long as it is based on facts.

Marion County v. Priest , 786 So. 2d 623, 626 (Fla. 5th DCA

2001). See also Metropolitan Dade County v. Section 11 Property

Corporation , 719 So. 2d 1204, 1205 (Fla. 3d DCA 1998)(fact - based

testimony of neighbors regarding the aesthetic incompatibility

of a project with surrounding neighborhood constituted competent

substantial evidence). Observations or comments by

Commissioners, however, are not made under oath and do not

constitute competent substantial evidence. See Stoky v. Monroe

County , DOAH Case No. 00 - 0377DRI (Final Order Oct. 12, 2001).

The Resolution appears to deny the application on four

grounds. First, the Resolution finds that the project will be

contrary to Section 9.5 - 65(b) and (c), M.C.C., because the

community (comprising the entire island) is rural in character.

In this context, the Resolution finds that the project will

adversely affect "the community character of the immediate

vicinity" and fails to minimize adverse impacts on "adjacent

properties." See Findings of Fact 1, 2, and 3. Second, the

Resolution finds that the proposed use of the property does not

meet the purpose of the SC land category, as described in

Section 9.5 - 206, M.C.C. See Finding of Fact 4. Third, although

the Resolution does not identify a particular standa rd that

applies to its finding, it finds that Appellants failed to show

that they were not increasing the intensity of use on the

property. See Finding of Fact 5. Finally, the Resolution finds

that the increased traffic impacts associated with a new stor e

will violate concurrency standards and other provisions in the

land development regulations, Plan, and Florida Statutes. See

Finding of Fact 6.

To resolve the first ground, it is necessary to determine

the manner in which the land development regulati ons should be

construed. The case of Mandelstam v. City Commission of the

City of South Miami , 539 So. 2d 1139 (Fla. 3d DCA 1988) is

instructive and provides that land development regulations which

impose restrictions on the use of real property must be s trictly

construed in favor of the landowner. In other words, permitted

uses must be interpreted broadly, while prohibited uses should

be strictly construed. Mandelstam at 1140. When applying this

standard to the regulations in issue, the terms "immediat e

vicinity of the parcel" and "adjacent properties" found in

Section 9.5 - 65(b) and (c), M.C.C., should be strictly construed,

so that only the impacts on the area immediately surrounding the

project should be considered, rather than the entire island. In

the same vein, while not cited in the Resolution but apparently

relied upon by the Commission, the term "surrounding properties

and neighborhood" found in Section 9.5 - 63(c), M.C.C., should be

construed in the same manner. Because the Commission

misconstru ed these provisions by requiring that the impacts of

the project on the entire island be considered, it departed from

the essential requirements of the law. (Rather than considering

the project's compatibility with, and impacts on, the existing

commercial area immediately surrounding the site, as the M.C.C.

requires, the Commission measured the project's compatibility

and impacts against the rural character of the entire island,

and not just the commercial core where the property lies.)

Findings of Fact 1 - 3 must accordingly be rejected.

Next, Section 9.5 - 206, M.C.C., provides that the purpose of

the SC land use district, in which Scotty's property is located,

is to "establish areas for commercial uses designed and intended

primarily to serve the needs of t he immediate planning area in

which they are located." In relying on this provision as a

ground for denying the application, the Commission made the

following findings in paragraph 4 of the Resolution:

Based on Section 9.5 - 206, the purpose of

Suburban C ommercial (SC) district is to

establish areas for commercial uses designed

and intended primarily to serve the needs of

the immediate planning area in which they

are located. Therefore, we find that the

proposed use of the property does not meet

the purp ose of the SC land use district.

Appellants argue that not only is there is no evidence to

support the finding, "common sense would dictate that a

pharmacy, by its very nature, is a paradigm [model] of a use

intended to serve the needs of the local area." They further

contend that if the Commission's interpretation of the provision

is accepted, it would give the Commission unfettered discretion

to pick and choose which projects meet "the needs of the

immediate planning area."

In making this finding, the C ommission accepted the

testimony of expert witness Bower that with only a finite amount

of commercial space available on Big Pine Key, it makes no sense

from a planning perspective to place two drug stores side by

side. In addition, numerous witnesses tes tified that "the needs

of the immediate planning area" are already served by the

existing Eckerd's drug store and several existing liquor stores

on Big Pine Key. There is, then, competent substantial evidence

to support the finding. Likewise, the Commiss ion's

interpretation of the provision (that placing two drug stores

side by side would not meet the needs of the immediate planning

area) is a reasonable one, is in harmony with the plain language

in the regulation, and does not constitute a departure from the

essential requirements of the law.

In Finding of Fact 5, the Resolution denies the application

essentially on the ground that the intensity of use will

increase. However, the Resolution does not identify a relevant

standard to which this finding appl ies. See § 9.5 - 47(b)(3),

M.C.C. This is probably because intensity of use is not a part

of the evaluation standards for determining whether a major

conditional use should be approved, but rather appears to be

relevant only to the level of conditional use review. (A minor

conditional use application is reviewed and approved by the

Planning Director while a major conditional use application is

reviewed by the Planning Staff and is subject to approval by the

Planning Commission. See §§ 9.5 - 68 and 9.5 - 69, M .C.C.) Whether

a particular commercial retail use in the SC land use category

falls into the low, medium, or high intensity use is a function

of the vehicular trips generated by the use. See § 9.5 - 4(C - 14),

M.C.C. Because the Commission improperly consid ered intensity

as a standard for evaluating the merits of a major conditional

use application, it departed from the essential requirements of

the law. Finding of Fact 5 is hereby rejected.

In Finding of Fact 6, the Resolution states that Appellants

failed to conform with a "level of service concurrency

moratorium" and that there is an "inadequate level of service"

in Big Pine Key. It also finds that the project will have "an

adverse impact on U.S. Highway 1 level of traffic," and (without

any greater spec ificity) that it conflicts with "Florida State

Statutes and the Monroe County Year 2010 Comprehensive Plan."

As clarified in Appellee's Answer Brief, the Commission "was not

concerned with the mere generation of traffic," but rather "the

concern was with the attendant hazards of traffic generation to

public safety [that is, the inherent difficulty in trucks

exiting on Key Deer Boulevard] and the federally endangered Key

Deer." Neither concern, however, is identified in the finding.

Except for testimony re garding an increase in traffic due

to an increase of intensity of use on the property, there is no

competent substantial evidence to support any aspect of this

finding. No witness testified concerning an existing

concurrency moratorium, what the adopted L evel of Service

standards in the area are, or how the application conflicts with

"Florida State Law and the . . . Comprehensive Plan." A belated

contention that Finding of Fact 6 relates to Section 9.5 - 65(e),

M.C.C., has been rejected. That standard requ ires that the

Commission take into account the "adequacy of . . . roadways"

when considering major conditional uses. But no witness

mentioned this provision during the hearing, and it is not

referred to in the Resolution. Lacking competent substantial

ev idence, Finding of Fact 6 is rejected.

Appellants also complain that Finding of Fact 7 is

generalized, conclusory, and unsubstantiated, and that it does

not support the Commission's action. While Appellants'

characterization of the paragraph as generalize d is correct, the

paragraph is more in the nature of a conclusion of law, which

simply summarizes the findings in paragraphs 1 through 6.

Because of this, it cannot be used as a basis to deny the

application.

Finally, Appellants contend that the matter sh ould be

remanded to the Commission for the purpose of allowing the

Commission to "set forth in writing any changes in Scotty's

project that would make it eligible for approval." (Appellants'

suggestion that the failure to include findings mandates

reversa l of the Resolution is rejected. Assuming that such

findings are required, only a remand would be warranted, so that

the Commission could make appropriate findings on this issue.)

In support of this contention, Appellants cite to Section

380.08(3), Flori da Statutes (2004), which reads as follows:

(3) If any governmental agency denies a

development permit under this chapter, it

shall specify its reasons in writing and

indicate any changes in the development

proposal that would make it eligible to

receive the permit.

Other than citing the statute, Appellants have cited no

authority for this proposition.

Compliance with Chapter 380, Florida Statutes, is beyond

the scope of review in this type of proceeding. See § 9.5 -

540(b), M.C.C. Therefore, the review process does not encompass

the issue of determining whether a Resolution specifies "any

changes in the development proposal that would make it eligible

to receive the permit," or whether the specified changes (if

identified) are adequate within the meanin g of the statute.

Although some changes are no longer relevant, the

Resolution implicitly states (through its findings) that without

a reduction in traffic impacts, changes which minimize the

impacts on the rural character of the neighborhood, and a

prop osed use other than a major chain drug store/convenience

store that complies with Section 9.5 - 206, M.C.C., there are no

modifications to the application that would allow the requested

development. Assuming arguendo that the cited statute applies

here, the implicit reasons arguably satisfy the statute. See

Coscan Florida, Inc. v. Metropolitan Dade County , 586 So. 2d 80,

83 (Fla. 1st DCA 1991)(a governmental agency need not specify

changes that would make the proposal eligible for a permit if

none are avail able).

In summary, Findings of Fact 1 - 3 and 5 are not relevant to

the evaluation standards in the M.C.C. and are hereby rejected.

Reliance on those findings as a basis to deny the application

constitutes a departure from the essential requirements of th e

law. Because it lacks competent substantial evidence, Finding

of Fact 6 must also be rejected. The remaining finding (Finding

of Fact 4) is supported by competent substantial evidence, is

hereby sustained, and by itself can serve as a basis for denial

of the application. See Dorian v. Davis , 874 So. 2d 661, 663

(Fla. 5th DCA 2004)(a local government's quasi - judicial decision

should be upheld if there is any competent substantial evidence

to support it). Finally, there is no requirement that the

matter be remanded to the Commission to make further findings on

what changes, if any, would make the project eligible for

approval.

DECISION

Based upon the foregoing, Findings of Fact 1 - 3, 5, and 6 in

Resolution No. P36 - 03 are rejected. In all other respects ,

Resolution No. P36 - 03, which denied Appellants' application for

a major conditional use, is AFFIRMED.

DONE AND ORDERED this 9th day of February, 2005, in

Tallahassee, Leon County, Florida.

S

DONALD R. ALEXANDER

Administrative Law Judge

Division of Admin istrative 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 9th day of February, 2005.

ENDNOTE

1/ Nothing in the Plan or the M.C.C. requires that the

Commission determine traffic generation based strictly on the

Manual or Handbook. Section 9.5 - 69(a)(2)b.(v)1., M.C.C., simply

requires in part, and with no greater specifi city, that an

applicant provide "a projection of expected vehicle trip

generation at the completion of each development phase . . . ."

Therefore, even though the County Planning Staff routinely uses

the Manual and Handbook and requires that all applicants present

their traffic studies based upon these documents, the Commission

is not required to accept the evidence as conclusive.

COPIES FURNISHED:

Nicholas W. Mulick, Esquire

Nicholas W. Mulick, P.A.

91645 Overseas Highway

Tavernier, Florida 33070 -

Der ek V. Howard, Esquire

Morgan & Hendrick

Post Office Box 1117

Key West, Florida 33041 - 1117

Lee R. Rohe, Esquire

Lee R. Rohe, P.A.

Post Office Box 420259

Summerland Key, Florida 33042 - 0259

Nicole Petrick, Planning Commission Coordinator

Monroe County Gro wth Management Division

2798 Overseas Highway, Suite 410

Marathon, Florida 33050 - 4277

NOTICE OF RIGHT TO JUDICIAL REVIEW

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

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

i s subject to judicial review by common law petition for writ of

certiorari to the circuit court in the appropriate judicial

circuit.