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Home » Cases Under Administrative Hearing » 03-004722

03-004722 Smart Planning And Growth Coalition vs. Monroe County Planning Commission
 Status: Closed
DOAH Final Order on Wednesday, September 29, 2004.

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Summary: Intervention in support of the Appellee, Monroe County Planning Commission, is dismissed. The Commission`s Resolution was reversed on the confession of an error. The Appellant`s receipt of a floor are transfer is approved.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8HINOTE CONSTRUCTION, )

11)

12Appellant, )

14)

15vs. ) Case No. 03 - 4722

22) (Resolution P30 - 03)

27MONROE COUNTY PLANNING )

31COMMISSION, )

33)

34Appellee, )

36)

37and )

39)

40SMART PLANNING AND GROWTH )

45COALITION, )

47)

48Intervenor. )

50)

51FINAL ORDER

53On June 2, 2004, a Partial Final Order (Final as to

64Resolution P29 - 03) was entered in this case. In addition to

76disposing of the appeal from Resolution P29 - 03 of the Monroe

88County Planning Commission (Planning Commission), it also:

95granted Hinote Construction's (Hinote's) Motion to Vacate Order

103Dismissing [Its] Appeal [from the Planning Commission's

110Resolution P30 - 03, which denied Hinote's Application for

119Transfer of Development Ri ghts to receive the transfer of

129commercial floor area from John C. Moore (Moore) (so as to avoid

141application of the Non - residential Rate of Growth Ordinance to

152Hinote's Walgreen Pharmacy project)]; denied the Joint Motion

160[filed by Hinote and the Planning Commission] for Entry of an

171Order Consistent with the Parties' Settlement Agreement;

178reinstated Hinote's appeal; and granted Smart Planning and

186Growth Coalition (Smart Planning, or Intervenor) the right to

195intervene as an appellee. Hinote's Initial Brief was filed on

205July 19, 2004.

208On July 26, 2004, an Order Granting Counsel for Intervenor

218Leave to Withdraw and Extending Time for Answer Briefs was

228entered in this case. It extended the time for answer briefs to

240September 9, 2004. It also ordered: "With in 15 days, the

251Intervenor shall confirm in writing its actual, legal name and

261corporate status so that the caption can be changed

270accordingly." It also ordered: "[I]f no attorney makes an

279appearance on behalf of the Intervenor within 15 days, the

289partie s shall file (jointly, if appropriate) a written brief

299within 25 days stating and supporting their position or

308respective positions as to whether the Intervenor is required to

318be represented by an attorney in this appeal."

326On July 27, 2004, an Order to S how Cause was entered in

339this case. It ordered the parties to show cause on or before

351September 9, 2004, why Hinote's appeal from the Planning

360Commission's Resolution P30 - 03 should not be dismissed for lack

371of subject matter jurisdiction. It specifically provided that

379it did not toll the time for filing answer briefs.

389On September 1, 2004, Hinote and the Planning Commission

398filed a Joint Memorandum of Law Pursuant to Order to Show Cause

410(taking the position that jurisdiction over Hinote's appeal

418exists) . The Intervenor did not respond to the Order to Show

430Cause.

431On September 2, 2004, Hinote filed a Memorandum on Whether

441Intervenor Is Required to Be Represented by an Attorney (taking

451the position that the Intervenor is not required to be

461represented by an attorney in this appeal). Neither of the

471other parties responded on this issue.

477On September 9, 2004, the Planning Commission filed a

486Notice Conceding Error and Waiver of Answer Brief. The

495Intervenor did not file an answer brief.

502On September 17, 2004, a Second Order to Show Cause was

513entered, which required the Intervenor to show cause in writing

523( i.e. , file a written explanation) on or before September 27,

5342004, why its intervention should not be dismissed for failure

544to respond to the Orders en tered on July 26 and 27, 2004, and

558for failure to file an answer brief, and why the Planning

569Commission's Resolution P30 - 03 should not be reversed without

579the necessity of oral argument, based upon the Planning

588Commission's confession of error. The Interv enor has not

597responded to the Second Order to Show Cause.

605Based on the foregoing, and because Hinote and the Planning

615Commission adequately explained in their filing on September 1,

6242004, why jurisdiction over Hinote's appeal exists, the Planning

633Commiss ion's Resolution P30 - 03 is reversed at this time based on

646the Planning Commission's confession of error, and Hinote's

654Application for Transfer of Development Rights to receive the

663transfer of commercial floor area from Moore is granted. (The

673Telephonic Mo tion Hearing on subordinate issues scheduled for

682September 30, 2004, is canceled as unnecessary in light of this

693Final Order.)

695DONE AND ORDERED this 29th day of September, 2004, in

705Tallahassee, Leon County, Florida.

709S

710J. LAWRENCE JOHNSTON

713Administrative Law Judge

716Division of Administrative Hearings

720The DeSoto Building

7231230 Apalachee Parkway

726Tallahassee, Florida 32399 - 3060

731(850) 488 - 9675 SUNCOM 278 - 9675

739Fax Filing (850) 921 - 6847

745www.doah.state.fl.us

746Filed with the Clerk of the

752Division of Administrati ve Hearings

757this 29th day of September, 2004.

763COPIES FURNISHED :

766Derek V. Howard, Esquire

770Morgan & Hendrick

773Post Office Box 1117

777Key West, Florida 33041

781Nicholas Mulick, Esquire

784Nicholas W. Mulick, P.A.

78891645 Overseas Highway

791Tavernier, Florida 33070

794Adam Koslofsky, President

797Smart Planning and Growth Coalition

80252 Orange Drive

805Key Largo, Florida 33037

809Nicole Petrick

811Planning Commission Coordinator

814Monroe County Growth Management Division

8192798 Overseas Highway, Suite 400

824Marathon, Florida 33050

827NOTICE OF RIGHTS

830Pursuant to Article XIV, Section 9.5 - 540(c), M.C.C., this Final

841Order is "the final administrative action of Monroe County" and

851is subject to judicial review by common law petition for writ of

863certiorari to the circuit court in the appro priate judicial

873circuit.

Dockets
Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 09/29/2004
Proceedings: DOAH Final Order
PDF:
Date: 09/29/2004
Proceedings: Final Order cover letter.
PDF:
Date: 09/29/2004
Proceedings: Final Order. CASE CLOSED.
PDF:
Date: 09/23/2004
Proceedings: Notice of Telephonic Motion Hearing (Motion hearing set for September 30, 2004; 11:00 a.m.).
PDF:
Date: 09/23/2004
Proceedings: (Proposed) Notice of Telephonic Hearing (filed by N. Mulick via facsimile).
PDF:
Date: 09/17/2004
Proceedings: Second Order to Show Cause (Intervenor shall show cause by September 27, 2004).
PDF:
Date: 09/09/2004
Proceedings: Appelle`s Notice Conceding Error and Waiver of Answer Brief (filed via facsimile).
PDF:
Date: 09/02/2004
Proceedings: Appellant`s Memorandum on Whether Intervenor is Required to be Represented by an Attorney (filed via facsimile).
PDF:
Date: 09/01/2004
Proceedings: Joint Memorandum of Law Pursuant to Order to Show Cause (filed via facsimile).
PDF:
Date: 07/27/2004
Proceedings: Order to Show Cause (the parties shall show cause on or before September 9, 2004, why the appeal filed by Hinote should not be dismissed).
PDF:
Date: 07/26/2004
Proceedings: Order Granting Counsel for Intervenor Leave to Withdraw and Extending Time for Answer Briefs.
PDF:
Date: 07/19/2004
Proceedings: Appellant`s Initial Brief (P30-03) (via efiling by Nicholas Mulick).
PDF:
Date: 07/12/2004
Proceedings: Motion to Extend Time within which to File Appellant`s Initial Brief (filed by N. Mulick via facsimile).
PDF:
Date: 07/06/2004
Proceedings: Lee Robert Rohe`s Amended Motion to Withdraw as Attorney for Intervenor (filed via facsimile).
PDF:
Date: 07/01/2004
Proceedings: Lee Robert Rohe`s Motion to Withdraw as Attorney for Intervenor (filed via facsimile).
PDF:
Date: 06/23/2004
Proceedings: Order Extending Time (Appellant`s Initial Brief due July 13, 2004).
PDF:
Date: 06/23/2004
Proceedings: Motion to Extend Time within which to File Appellant`s Initial Brief (filed by N. Mulick via facsimile).
PDF:
Date: 06/16/2004
Proceedings: Notice of Unavailability (filed by N. Mulick via facsimile).
PDF:
Date: 06/02/2004
Proceedings: DOAH Final Order
PDF:
Date: 06/02/2004
Proceedings: Partial Final Order. DOAH JURISDICTION RETAINED.
PDF:
Date: 05/14/2004
Proceedings: Amended Notice of Telephone Hearing (Amended as to meet-me telephone no.).
PDF:
Date: 05/14/2004
Proceedings: Notice of Telephone Hearing. (motion hearing will be held May 21, 2004; 2:00p.m.)
PDF:
Date: 05/13/2004
Proceedings: (Proposed) Notice of Telephonic Hearing (filed via facsimile).
PDF:
Date: 05/12/2004
Proceedings: Letter to Judge Johnston from L. Rohe responding to Hinote`s request for a telephone hearing (filed via facsimile).
PDF:
Date: 05/12/2004
Proceedings: Letter to Judge Johnston from L. Rohe regarding N. Mulick Motion to Vacate Order Dismissing Appeal and related motions (filed via facsimile).
PDF:
Date: 05/06/2004
Proceedings: Appellant`s Response to Motion by Smart Planning and Growth Coalition to Intervene/Motion in Opposition of Motion to Vacate Order Dismissing Appeal (filed via facsimile).
PDF:
Date: 04/15/2004
Proceedings: Letter to R. Gordon from S. Rohe enclosing missing pages from Smart Planning and Growth Coalition`s Initial Brief (filed via facsimile).
Date: 04/14/2004
Proceedings: CASE STATUS: Oral Argument Held.
PDF:
Date: 04/09/2004
Proceedings: Smart Planning and Growth Coalition`s Motion to Intervene/Motion in Opposition of Motion to Vacate Order Dismissing Appeal (filed via facsimile).
PDF:
Date: 04/07/2004
Proceedings: Smart Planning and Growth Coalition`s Reply Brief to Monroe County and Hinote Construction Corporation (filed via facsimile).
PDF:
Date: 04/05/2004
Proceedings: Joint Motion for Entry of an Order Consistent with the Parties` Settlement Agreement (filed via facsimile).
PDF:
Date: 04/05/2004
Proceedings: Motion to Vacate Order Dismissing Appeal (filed by N. Mulick via facsimile).
PDF:
Date: 03/18/2004
Proceedings: Order Dismissing Hinote Appeal.
PDF:
Date: 03/18/2004
Proceedings: Notice of Hearing (oral argument set for April 14, 2004; 2:00 p.m.; Key Largo, FL).
PDF:
Date: 03/16/2004
Proceedings: Appellant Smart Planning and Growth Coalition`s Motion for Extension of Time in which to Serve the Reply Brief up to and including April 6, 2004 (filed via facsimile).
PDF:
Date: 03/16/2004
Proceedings: Answer Brief by Intervenor, Hinote Construction Co. (filed via facsimile).
PDF:
Date: 03/01/2004
Proceedings: Order Extending Time for Filing and Enlarging Page Limit for Reply Brief.
PDF:
Date: 02/27/2004
Proceedings: Notice of Substitution of Counsel (filed by D. Howard, Esquire, via facsimile).
PDF:
Date: 02/17/2004
Proceedings: Order Extending Time (the time to file Intervenor`s Answer Brief is extended to March 15, 2004).
PDF:
Date: 02/16/2004
Proceedings: Motion to Extend Time within which to file Intervenor`s Answer Brief (filed via facsimile).
PDF:
Date: 02/13/2004
Proceedings: Appellant`s Motion for Extension of Time to file Reply Brief (filed via facsimile).
PDF:
Date: 02/10/2004
Proceedings: Monroe County`s Answer Brief (filed via facsimile).
PDF:
Date: 01/30/2004
Proceedings: Order Clarifying Proceeding, Granting Intervention, Correcting Caption, and Denying Enforcement of Stay.
PDF:
Date: 01/28/2004
Proceedings: Appellee Monroe County`s Response to Petition for Leave to Intervene by Hinote Construction and Response to Appellant`s Motion to Enforce Automatic Stay (filed via facsimile).
PDF:
Date: 01/27/2004
Proceedings: Affidavit of Adam Kosloesky (signed) filed via facsimile.
PDF:
Date: 01/26/2004
Proceedings: Affidavit of Adam Kosloesky (unsigned) filed via facsimile.
PDF:
Date: 01/26/2004
Proceedings: Appellant`s Motion to Enforce Automatic Stay to Cease Construction Activity (filed via facsimile).
PDF:
Date: 01/23/2004
Proceedings: Petition for Leave to Intervene by Hinote Construction (filed via facsimile).
PDF:
Date: 01/16/2004
Proceedings: Order Dropping Parties (Hinote Construction and Arnie Diaz are dropped as appellants).
PDF:
Date: 01/15/2004
Proceedings: Initial Brief of Appellant (filed by L. Rohe via facsimile).
PDF:
Date: 12/31/2003
Proceedings: Appellant Smart Planning and Growth Coalition`s Motion to Drop Hinote Construction and Arnie Diaz as Appellants (filed via facsimile).
PDF:
Date: 12/19/2003
Proceedings: Order Extending Time. (the parties shall serve the Initial Brief by January 16, 2004).
PDF:
Date: 12/19/2003
Proceedings: Order Correcting Caption and Clarifying Procedures.
PDF:
Date: 12/18/2003
Proceedings: Appellants Smart Planning and Growth Coalition`s and Arnie Diaz`s Motion for Extension of Time in which to Serve the Initial Brief up to and including January 16, 2004 (filed via facsimile).
PDF:
Date: 12/17/2003
Proceedings: Initial Order.
PDF:
Date: 12/16/2003
Proceedings: Monroe County Planning Department Application for an Appeal to the Hearing Officer filed.
PDF:
Date: 12/16/2003
Proceedings: Agency referral filed.

Case Information

Judge:
J. LAWRENCE JOHNSTON
Date Filed:
12/16/2003
Date Assignment:
12/17/2003
Last Docket Entry:
09/29/2004
Location:
Key Largo, Florida
District:
Southern
Agency:
Contract Hearings
 

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