04-002417 Gap Properties Of Sw Florida-I, Inc., A Florida Corporation vs. The Planning Commission Of Monroe County Status: Closed DOAH Final Order on Wednesday, November 10, 2004.

Summary: Resolution denying appeal to make improvement on dock affirmed where comp. substituted evidence supported Commission`s findings

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GAP PROPERTIES OF SW )

FLORIDA - 1, INC., )

)

Appellant, )

)

vs. ) Case No . 04 - 2417

)

MONROE COUNTY PLANNING )

COMMISSION, )

)

Appellee. )

______________________________)

FINAL ORDER

Appellant, GAP Properties of SW Florida - 1, Inc. (GAP),

seeks review of Monroe County Planning Commission (Commission)

Resolution No. P17 - 04 (Resolution) dated March 24, 2004. The

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

pursuant to Article XIV, Section 9.5 - 535, Monroe Count y Code

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

submitted an Initial Brief. The Commission submitted an Answer

Brief. Oral argument was presented during a telephone hearing

held on October 29, 2004.

I. Issues

Appellant raises three iss ues on appeal: (1) whether the

Commission's Conclusion of Law determining that the Key - Tex

Shrimp Building Condominium Association, Inc. (Key - Tex) (in

which GAP owns a unit and is the subject of this appeal) must

obtain approval of a subdivision plat purs uant to Section 9.5 -

81, M.C.C., is erroneous and should be rejected or modified;

(2) whether there is competent substantial evidence to support

the Commission's Findings of Fact in paragraphs 6, 7, and 8 of

the Resolution that (a) the intensity on the Ke y - Tex property

has been increased since the property was converted to a

dockominium, and (b) the Key - Tex property was not a marina prior

to September 15, 1986, and is not deemed to have major

conditional use approval pursuant to Section 9 - 5.2(c), M.C.C.;

a nd (3) whether interpretations by the Monroe County (County)

Director of Planning and Environmental Resources concerning the

definition of a "marina," as defined in Section 9.5 - 4(M - 5),

M.C.C., and the filing of a subdivision plat under Section 9.5 -

81(a), M .C.C., are erroneous and should be rejected or modified.

II. Background

The property in question is located on Stock Island in an

unincorporated portion of the County near mile marker 3. It is

zoned as Maritime Industries District (MI) under Section 9. 5 -

250, M.C.C., a zoning district which allows commercial fishing

as a matter of right and a marina as a major conditional use.

Since well before 1986, the property in question was owned by

Key - Tex Shrimp Company, Inc., which operated a "fish house"

engage d in commercial fishing operations, including off - loading,

packing, and distributing seafood products, such as shrimp. On

December 11, 2002, a Declaration of Condominium Establishing

Key - Tex Shrimp Docks, A Condominium, was recorded in the

County's public records. The effect of this was to cause the

1,110 - foot dock to be subdivided into twenty - one separate units,

numbered as Units 1 - 21, creating what is known as a dockominium.

(This type of ownership arrangement occurs when a land

condominium also includ es submerged bay bottom.)

On March 27, 2003, another Declaration of Condominium

establishing the Key - Tex Shrimp Building Condominium, Inc., was

recorded in the County's public records. This declaration took

Unit 20 from the previously recorded Declaration of Condominium

and divided it into five additional units, numbered as Units 20A

through 20E. Therefore, there now exist twenty - five units on

the parcel previously known as the Key - Tex Shrimp Docks, with

each unit possessing a separate real estate (RE) nu mber, which

is used by the local tax assessor's office for the purpose of

identification, transferring ownership, and tax assessments.

On August 8, 2003, GAP purchased Unit 20B from Key - Tex

Shrimp Company, Inc. On August 26, 2003, a licensed electrical

co ntractor, acting on behalf of GAP, filed application number

03 - 1 - 03856 with the County seeking a building permit authorizing

GAP to "[i]nstall and wire three marine grade elect[ric]

pedestals" on GAP's property. The application was submitted in

the names of Key - Tex Shrimp Company, Inc., Appellant's

predecessor - in - title, and Joe O'Connell, president of Key - Tex

Shrimp Building Condominium Association, Inc., which acts as

agent for the condominium unit owners in dealing with the local

government. The pedesta ls were to have 50 - amp, 30 - amp, and 20 -

amp marine - style receptacles and were to receive power from

existing panels in an existing building. Once installed, they

would be used by boats docking at GAP's property to secure

"shore power," that is, electrical power, cable television,

telephone service, and other similar services while they were

docked.

By letter dated September 23, 2003, the County's Director

of Planning and Environmental Resources, K. Marlene Conaway,

denied the application for the following t hree reasons:

1. The site plan submitted shows the scope

of work is proposed on a single parcel.

This site was analyzed in a pre - application

meeting of April 30, 2001[,] and our records

indicate the Key - Tex shrimp docks as one

parcel with two buildings a nd accessory

docks. The current records from the

Property Appraiser maps indicate the

subdivision of this property into Lots 1 - 21

and A - D.

2. The application submitted is for work

located on a parcel that has been subdivided

without benefit of plat appr oval. Pursuant

to [Section] 9.5 - 81(b), "No building permit,

except for a single - family detached dwelling

and accessory uses thereto, shall be issued

for the construction of any building,

structure or improvement unless a final plat

has been approved in ac cordance with the

provisions of this division and recorded on

the lot on which the construction is

proposed." The Monroe County Property

Appraiser's records indicate there are more

than twenty - five parcels located on the

subject property.

3. The propert y historically has supported

Commercial Fishing Uses and Retail/

Manufacturing Uses allowed as of right

pursuant to [Section] 9.5 - 250(a). The

change of use to a Marina use requires

approval pursuant to [Section] 9.5 -

250(c)(2). In the Letter of Understand ing,

dated May 4, 2001, the Monroe County

Planning Department notified the property

owner that any change in use would require

Major Conditional Use approval.

The letter went on to say that in order to remedy this

matter, "an application for a major condi tional use and plat

approval are required," and that "[t]he proposed improvements

can be considered through the development review process of a

major conditional use."

On October 31, 2003, GAP filed its Application for

Administrative Appeal to Planning Com mission appealing the

decision of September 23, 2003, to deny its application number

03 - 1 - 03856. The bases for the appeal were that plat approval

was not required for the creation of land condominiums in the

County; that major conditional use approval was not required

because the property was functioning as a marina prior to

September 15, 1986, and therefore, it was deemed to have major

conditional use approval under Section 9 - 5.2(c), M.C.C.; and

that GAP's due process rights would be violated if the

Commi ssion relied on new reasons, other than those cited in

Ms. Conaway's letter, for denying the application. (The latter

ground was apparently raised because Appellant believed that

Ms. Conaway also intended to rely upon a letter dated October 7,

2003, fr om the County's Director of the Growth Management

Division to further bolster her decision.)

On March 10, 2004, the Commission conducted a quasi -

judicial hearing on GAP's appeal. At the hearing, GAP presented

the testimony of seven witnesses: Andy Griffi ths, Larry Foltz,

John Strothenke, Hugh Spinney, and Karl Walters, all residents

of the area; Alice Petrat, a principal in GAP; and Catherine

Harding, an expert. Ms. Conaway testified on behalf of the

County Planning Department staff.

Appellant's witnes ses presented testimony mainly on the

issue of whether the Key - Tex property functioned as a marina (as

opposed to a commercial fishing house) prior to September 15,

1986, when the current land development regulations were

adopted. If it was operating as a marina prior to that date,

then the property would be deemed to have a major conditional

use under the "deemer clause" in Section 9.5 - 2(c), M.C.C., which

provides that "[a]ll uses existing on the effective date

[September 15, 1986] of this chapter which w ould be permitted as

a conditional use under the terms of this chapter shall be

deemed to have a conditional use permit and shall not be

considered nonconforming."

In construing the term "marina," as defined in Section 9 -

5.4(M - 5), M.C.C., the Commission accepted Ms. Conaway's

interpretation that a marina contemplated "pleasure boats,"

rather than commercial fishing vessels. Consistent with this

interpretation, the Commission accepted evidence by the

witnesses that the property had functioned only as a c ommercial

fishing venture (that is, a commercial fishing dock) prior to

September 15, 1986, and that it was now being used as a marina

by multiple owners. For example, Mr. Foltz testified that prior

to 1986, during the winter months (November to April or May),

the property was used full - time as a fishing house. During the

summer months, the docks were rented for fishing purposes, all

services rendered were consistent with commercial fishing

purposes, and there were no pleasure boats, dry storage, or non -

f isherman live - aboards.

Mr. Strothenke also testified that before 1986, the

property consisted mainly of fishing boats, longline boats, and

other fishing vessels, and that the facility did not launch,

store, or haul boats.

Finally, Appellant's expert witn ess, Ms. Harding, indicated

in her report that she found nothing that would indicate that

the property had been functioning as a marina prior to the cut -

off date in 1986. She also acknowledged that an increase in

intensity would require a major conditiona l use permit.

Because the property is now being used as a marina and

Section 9.5 - 250(c)(2), M.C.C., provides that a marina is

permitted only as a major conditional use within a MI zoning

district, the Commission concluded that the application could

not be approved without a major conditional use permit.

As a further ground for denying the application, during the

review process, Ms. Conaway determined (although she did not

specifically say so in her letter of September 23, 2003) that

the intensity of the us e on the property had increased. On this

issue, the Commission accepted the testimony of Ms. Conaway that

County electric records indicated that prior to the conversion

of the Key - Tex property to a dockominium, there had been fifteen

pedestals on the prop erty. There are now twenty - three

pedestals, and Appellant seeks to add another three.

The Commission also accepted Ms. Conaway's testimony that

(a) by increasing the number of pedestals, more boats would be

docking at the facility, and (b) by creating s lips (in contrast

to the parallel parking of boats which had previously occurred

at the dock), the number of boats that could dock at the

facility would likewise increase. The Commission agreed with

Ms. Conaway's conclusion that an increase in the number of boats

using the dock equates to an intensification of use, and that

this constituted "development" within the meaning of Section

9.5 - 4(D - 8), M.C.C., and triggered the development (major

conditional use) approval process.

Finally, in reviewing the appl ication, Ms. Conaway noted

that the two RE numbers on the application were incorrect, and

that the property had actually been subdivided into a

dockominium, with each owner having a separate RE number.

Because there were now multiple units, she concluded that plat

approval was required before a permit could be issued. In this

vein, the Commission accepted her recommendation that the

condominium declarations filed by Key - Tex require plat approval

and recording under Section 9.5 - 81(a)(1), M.C.C., which requ ires

plat approval for "[t]he division of land into three (3) or more

parcels."

At the conclusion of the hearing, the Commission voted 4 - 1

to deny the application. This decision was memorialized by

Resolution No. P17 - 04 dated March 24, 2004. The Resoluti on made

the following Findings of Fact and Conclusions of Law:

1. Based on testimony of the Planning and

Environmental Resources staff, the issue of

the public hearing was whether the Planning

Department's decision denying GAP Properties

of SW Florida[ - 1] , Inc. and Key - Tex Shrimp

Building Condominium building permit

application # 03 - 1 - 03856 on August 25, 2003,

for the installation of three marine grade

electric pedestals for a property should be

reversed; and

2. Based on Monroe County Code Section 9.5 -

24(a)h [sic] of the Land Development

Regulations (LDRS) the Planning Director has

the authority to render interpretations of

the plan and the LDRS; and

3. As a matter of law, it is the

appellant's burden to provide evidence and

testimony that the conclus ion reached by the

Planning Director is inaccurate; and

4. Based on the Orange West, LTD verses

[sic] City of Winter Garden, District Court

of Appeal of Florida Fifth District case

[528 So. 2d 84 (Fla. 5th DCA 1988)]

concerning platting and condominium l aw, and

legal opinions received, we find that the

Key - Tex Shrimp Dock properties have been

subdivided and were subject to the platting

requirements in Section 9 - 5.81; and

5. Based on Monroe County Section 9.5 - 81(b)

we find that no building permit, excep t for

single - family detached dwellings and

accessory uses thereto, shall be issued for

the construction of any building, structure

or improvement unless a final plat has been

approved in accordance with the provisions

of this division and recorded for the lot on

which the construction is proposed; and

6. Based on testimony of staff and

witnesses we find that the Key - Tex property

docks and buildings have been divided into

boat slips and by providing slips for

dockage of boats, rather than tying up

parallel to the dock, the intensity of use

has increased; and

7. Based on testimony and documents

received we find that insufficient evidence

has been presented to determine that the

historical use of the site was as a marina;

and

8. Based on Monroe County Co de Section 9.5 -

4(C - 12) the definition of Commercial Fishing

and testimony of staff and witnesses, we

find the historical use of the property is

commercial fishing and a change of use to

Marina (M - 5) will require a Major

Conditional Use; and

9. Based on Monroe County Code Section 9.5 -

250 Maritime Industries, we find that a

Major Conditional Use is required before the

use of the property may be changed from

commercial fishing, an as of right use, to a

marina; and

10. Based on Monroe County Code Section

9 .5 - 4(D - 8) Development has occurred on the

Key - Tex Shrimp Dock properties without the

required development approval process being

followed; and

11. The Planning Commission concludes that

the sworn testimony of all witnesses were

insufficient both individu ally, and

collectively, with the record to rise to the

level of substantial and competent evidence

and such evidence ultimately does not meet

the burden of proof and demonstrate beyond a

predominance [sic] of evidence that the

decision made by the Planning Director was

incorrect. Furthermore, the Planning

Commission concludes that the sworn

testimony of these witnesses was

inconsistent, as admitted on the record,

possibly due to the significant lapse of

time, but taken in its totality the

testimony and evi dence offered, after being

evaluated and weighed, is insufficient to

meet and establish the burden of proof

imposed on the appellant; and

12. The Planning Commission concludes that

the sworn testimony submitted by the

appellant failed to meet the burden of proof

of demonstrating that the Planning Director

made the wrong decision in denying a permit

to the applicant.

On June 23, 2004, Appellant filed its Administrative Appeal

of Resolution No. P17 - 04 (Appeal). The Appeal was forwarded by

the County to DOA H on July 23, 2004. As noted above, Appellant

contends that the Commission's legal conclusion that the Key - Tex

condominium was required to submit a subdivision plat was

erroneous and should be modified or rejected; that the

Commission's findings that the intensity of use had increased,

and that the property was not operating as a marina prior to

September 15, 1986, were not supported by competent substantial

evidence and should be modified or rejected; and that

Ms. Conaway's interpretations regardi ng the definition of a

marina and the filing of a plat for a dockominium were erroneous

and should be modified or rejected. As further clarified by

Appellant's counsel at hearing, by its third ground, Appellant

essentially seeks a ruling that the Planning Director may not

offer legal opinions at Commission meetings, and that her

participation at Commission hearings, if at all, should be

limited to presenting her previously prepared decision.

III. Legal Discussion

The Division of Administrative Hearings h as 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

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 as follows:

The hearing officer's order may reject or

modify any conclusion of law or

interpretation of the Monroe County land

development regulations or comprehens ive

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

recor d, 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 were based

did not comply with the essential

requirement s 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.

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

the court discussed the meaning of "competent subs tantial

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

relevant 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 p roceedings 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 m aterial 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

presented 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 ques tion on appeal is not whether the record 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 Rehabilitative

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

GAP first contends that the Commission erred in concluding

(in paragraph 4 of the Resolution) that Key - Tex's properties

"have been subdivided and are subject to the platting

requirements in Section 9.5 - 81." Subsections (a) and (b) of

that regulation provide in part that

(a) Except as provided in subsections (b)

and (c) of this section, plat approval shall

be required for:

(1) The division of land into three (3) or

more parcels; or

(2) The division of land into two (2) or

more parcels where the land involved in the

division was previously divided without plat

approval within the prior two (2) years; or

. . .

(b) No building permit, except for single -

family detac hed dwellings and accessory uses

thereto, shall be issued for the

construction of a building, structure or

improvement unless a final plat has been

approved with the provisions of this

division and recorded for the lot on which

the construction is proposed .

The foregoing regulation mandates that an owner apply for,

and obtain, plat approval when dividing a parcel of property

into three or more parcels, or two or more parcels if the parcel

has been previously subdivided.

A parcel of land is defined in Sec tion 9.5 - 4(P - 1), M.C.C.,

as

any quantity of land and water capable of

being described with such definiteness that

its location and boundaries may be

established, which is designated by its

owner or developer as land to be used or

developed as a unit, or w hich has been used

or developed as a unit.

When the dockominium was formed, Appellant created twenty -

five separate units, or parcels of land, within the meaning of

Section 9.5 - 4(P - 1). By doing so, Appellant created the need for

plat approval in accorda nce with Section 9.5 - 81, M.C.C.

In reaching this conclusion, it is noted that traditional

multi - family, multi - story condominium conversions do not trigger

the requirement for a new plat because they do not involve the

division of land. Rather, they inv olve the division of

airspace. Land condominiums, however, may result in a division

of land (through the condominium declarations themselves) and

implicate the need for planning and subdivision review. This is

because, in a sense, they create new lots. Here, the Key - Tex

conversion created numerous individual condominium units, which

in turn raise a number of land use issues, such as parking,

floor space ratios, building permit allocation implications, and

change or intensification of use. By implicating these land use

considerations, Key Tex has subjected itself to land development

regulations, including Section 9.5 - 81, M.C.C., which address

these concerns. Compare Orange West, Ltd. v. City of Winter

Garden , 528 So. 2d 84, 86 (Fla. 3d DCA 1988)("[w]here

development of a condominium project constitutes a division of a

parcel of land, the developer is subject to municipal

regulations and ordinances"); City of Miami v. Rocio

Corporation , 404 So. 2d 1066, 1069 (Fla. 3d DCA 1981)(the

Condominium Act does not expressly or by implication preempt the

subject of condominium conversion to state government).

Therefore, for purposes of land use regulation (but not form of

ownership), the conversion of the Key - Tex property into a

dockominium, with a resulting divisio n of land, requires

approval under Section 9.5 - 81, M.C.C.

Appellant next contends that there is no competent

substantial evidence to support the Commission's finding that

the property was not operating as a marina prior to

September 15, 1986. To res olve this issue, reference to the

definitions of marina and commercial fishing is necessary.

Section 9.5 - 4(c)(C - 12), M.C.C., defines "commercial fishing" as

the catching, landing, processing or

packaging of seafood for commercial

purposes, including the m ooring and docking

of boats and/or the storage of traps and

other fishing equipment and charter boats

and spo[r]t diving uses.

On the other hand, a "marina" is defined in Section 9 -

5.4(M - 5), M.C.C., as

a facility for the storage (wet and dry),

launching and mooring of boats together with

accessory retail and service uses, including

restaurants and live - aboards, charter - boat

and sport diving uses, except where

prohibited, but not including docks

accessory to a land - based dwelling unit

limited to the use of owners or occupants of

those dwelling units.

Appellant contends that so long as a facility is used for

the storage, launching, and mooring of any type of boat,

including one used for commercial fishing, the facility

qualifies as a marina. Under this int erpretation, so long as

Key - Tex Shrimp Company, Inc., launched, stored, and moored a

boat used for commercial fishing purposes, and it provided an

accessory service, such as selling fuel, nets, ropes, and chains

for commercial fishing boats (which it did), it was using the

property as a marina prior to September 15, 1986.

Conversely, the Commission takes the position that a

commercial fishing house and a marina are mutually exclusive,

and that the latter use contemplates such activities as the

docking of pleasure boats, vessel storage, vessel launching,

non - fisherman live - aboards, and restaurants. The Commission

also points out that by defining the two terms separately in the

land development regulations, the County intended that there

would be two separa te categories of use, and that one use

(marina) is not inclusive of the other (commercial fishing).

As written, Section 9.5 - 4(M - 4), M.C.C., provides that in

order to constitute a marina, a facility must (a) be used for

storing, launching, and mooring boa ts (which would obviously

include boats engaged in the commercial fishing business, since

the definition makes no distinction between the types of boats

which qualify for this provision), and (b) provide accessory

retail and service uses typically associat ed with a marina, such

as restaurants, non - fisherman live - aboards, charter boat

operations, and sport diving uses. This construction of the

term is consistent with the Commission's interpretation of the

regulation and will be used in resolving this disput e.

There is competent substantial evidence to support the

Commission's finding that while Key - Tex Shrimp Company, Inc.,

met the first part of the definition by storing, launching, and

mooring boats, it did not provide accessory retail and service

uses typ ically associated with a marina, such as a restaurant,

charter boat operations, and sport diving uses, nor did non -

fisherman live - aboards stay on the premises. Therefore, it was

not operating as a marina prior to September 15, 1986, and is

not deemed to h ave a major conditional use under Section 9.5 -

2(c), M.C.C. Findings of Fact 7 - 9 are hereby sustained.

Finding of Fact 6 of the Resolution states that "the Key -

Tex property docks and buildings have been divided into boat

slips and by providing slips for do ckage of boats, rather than

tying up parallel to the dock, the intensity of use has

increased." By implication (but without saying so in the

Resolution), the Commission also found that after the conversion

of the property to a dockominium, the number of p edestals had

increased from fifteen to twenty - three (with three more being

sought by the instant application), and this constituted further

evidence of an increase in intensity of use on the property.

Appellant challenges these findings.

Article XIV, Divi sion 3, Sections 9.5 - 261 et seq. , M.C.C.,

set forth the density and intensity standards for all land uses.

Section 9.5 - 261, M.C.C., provides that no property can be

developed, used, or occupied at an intensity or density greater

than the standards set out in the Division without complying

with the development approval process.

There are no intensity standards in Division 3 that limit

the number of boats that may be docked at a marina, or measure

intensity by the number of electrical outlets (pedestals) o n the

property. Rather, intensity is logically measured by the size

of the dock. Therefore, even if Key - Tex has increased the

number of boats that may dock at the facility by creating new

slips, or has increased the number of pedestals since the

property was converted, there will be no change in intensity

under current M.C.C. standards. Therefore, it is concluded that

there is no competent substantial evidence to support the

Commission's finding on this issue, and that Finding of Fact 6

must be rejected.

Finally, as clarified by counsel during oral argument,

Appellant requests the entry of a final order which definitively

spells out that the Planning Director may not offer "legal

advice" at Commission meetings, and that her participation in

the process sh ould end after she makes a preliminary

determination on a pending application. Counsel has cited no

authority for granting this type of relief.

Clearly, the Planning Director may offer advice to the

Commission during its decision - making process. See § 9.5 - 24(h),

M.C.C. (planning director has the duty to "render

interpretations of the plan, this chapter or the boundaries of

the official land use district map"). Importantly, Appellant

was given the opportunity to present contrary evidence and to

cross - ex amine Ms. Conaway at the quasi - judicial hearing. At the

same time, if a party believes that the Planning Director has

given erroneous advice, or made an erroneous decision, as

Appellant asserts, it has the right to file an appeal under the

M.C.C. Given t hese procedural safeguards, Appellant's

contention is rejected.

DECISION

Based upon the foregoing, the Commission's decision in

Resolution No. P17 - 04 is AFFIRMED.

DONE AND ORDERED this 10th day of November, 2004, in

Tallahassee, Leon County, Florida.

S

DONALD R. ALEXANDER

Administrative Law Judge

Division 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 10th day of November, 2004.

COPIES FURNISHED:

James S. Mattson, Esquire

James S. Mattson, P.A.

Post Office Box 586

Key Largo, Florida 33037 - 0586

Tevis S. Reich, Esquire

Vernis & Bo wling of the Florida Keys, P.A.

81990 Overseas Highway, Third Floor

Islamorada, Florida 33036 - 3614

Nicole Petrick, Planning Commission Coordinator

Monroe County Growth Management Division

2798 Overseas Highway, Suite 410

Marathon, Florida 33050 - 4277

N OTICE 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

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

certiorari to the circuit court in the appropriate judicial

circuit.