04-001568 Smart Planning And Growth Coalition And Jeff Osborn 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 Planning Commission, in approving two Minor Conditional Use Applications, 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

SMART PLANNING AND GROWTH )

COALITION and JEFF OSBORN, )

)

Appellants, )

)

vs. )

)

MONROE COUNTY PLANNING ) Case No. 04 - 1568

COMMISSION, )

)

Appellee, )

)

and )

)

NORTHSTAR ENTERPRISES RESORT )

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 Nos. P55 - 03 and P56 -

03, approved by the Commission on September 24, 2003, and signed

by the Chair of the Commission on October 22, 2003. Appellants’

appeals were timely filed and consolidated.

The Division of Administrative Hearings, by contract, and

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

(M.C.C.), has jurisdiction to consider these appeals.

Appellants filed separate Initial Briefs and Smart Planning

filed a Reply Brief, which Osborn adopted. The Commission and

Intervenor, Northstar Ente rprises Resort Corporation

(Northstar), filed separate Answer Briefs. Oral Argument was

presented by telephone on September 17, 2004.

Citations to the record on appeal in Case No. 04 - 1568 shall

be by the symbol (R) followed by a page reference. Citations to

the record on appeal in Case No. 03 - 4720 shall be by the symbol

(SR) followed by a page reference. See Endnote 2.

I. Issues

Smart Planning contends that the Commission denied it

procedural due process of law and departed from the essential

requireme nts of law by denying Appellants’ counsel the right to

cross - examine witnesses during the Commission hearing and in

denying party status to Appellants. Smart Planning contends

that there is no competent substantial evidence to support the

Commission’s det ermination to authorize the transfer of 126

Recreational Vehicle (RV) spaces from the Florida Keys R.V.

Resort (the Sender site) to the Receiver site (Northstar’s

property and site for a proposed hotel and the subject of a

Major Conditional Use) or to reco gnize the existence and lawful

establishment of a 12 - unit motel on the Receiver site. Smart

Planning also contends that the Commission departed from the

essential requirements of law by ignoring the pending ordinance

doctrine.

Osborn incorporates the ar guments made by Smart Planning

and likewise contends that there is no competent substantial

evidence to support the transfer of 126 RV spaces from the

Sender site and further that the moratorium adopted by the Board

of County Commissioners of Monroe County (Board) prohibits the

transfer of these RV spaces to the Receiver site.

II. Background

A. General

Northstar sought development approval for the transfer of

126 RV spaces from the off - site Sender site. Northstar filed a

Sender site application with su pporting documents to accomplish

this request. (R95). Northstar also filed a separate

application to receive Transferable ROGO Exemptions (TREs) in

the form of RV spaces for the Receiver site. (R286 - 288). Both

applications sought the approval of Minor Conditional Uses.

In a collateral proceeding before the Commission, Northstar

applied for approval of a Major Conditional Use for

authorization to construct 89 hotel rooms and 8,158 square feet

of commercial use on the Receiver site. 1 On June 25, 2003, the

Commission approved this application by Resolution No. P47 - 03.

The Chair of the Commission signed this Resolution on

September 10, 2003. (SR215 - 220). Resolution No. P47 - 03 is the

subject of a pending appeal in Case No. 03 - 4720 brought by Smart

Plann ing and Osborn. A separate Final Order has been entered

this date in Case No. 03 - 4720. 2

B. The Sender Site Application

1. Generally

On April 21, 2003, Northstar's agent, Mr. Donald L. Craig,

A.I.C.P., of The Craig Company, signed an application reques ting

development approval for the transfer of 126 RV spaces located

at the Florida Keys R.V. Resort, Mile Marker (MM) 106.003,

106.003 Overseas Highway, Key Largo, Florida, the Sender site.

Northstar requested the transfer of TREs. 3 (R95).

The Sender s ite application represents there are 13 mobile

homes that will remain on the Sender site and that the proposed

use of the Sender site property will be for affordable housing

for moderate income levels. (R96).

The Sender site application included several documents:

1. A description of the property is

included. (R100).

2. Also included is a “miscellaneous

receipt” from Monroe County indicating the

fees for the Sender and Receiver site

applications were received on July 18, 2003.

(R101).

3. Appendix A includes a commercial

contract and two addendums to the commercial

contract relating to the purchase and sale,

in part, of the Sender site property

(Northstar is the purchaser.) (R104 - 111).

4. Appendix B consists of 18 pages of

Monroe County Property Rec ord Cards for the

Sender site property. (R113 - 130). These

documents include building sketches and were

apparently run on April 17, 2003. Page 17

in part refers to Florida Keys R.V. Resort

at MM 106 and identifies 16 buildings

including an office (with a date of 1973), a

camp building (1973), and 13 mobile homes

with varying dates and 1 mobile home

identified as being used for storage.

(R129). The second half of page 17 lists a

“history of taxable values” from years 1982

thru 2002 for land, buildings, a nd

miscellaneous/equipment. The document also

states: “139 R.V. SITES . BA.” (R129).

5. Appendix C consists of two occupational

tax certificates issued by Monroe County

with expiration dates of September 30, 2001,

one for laundry machines and the secon d for

a trailer park and campground at the Florida

Keys R.V. Resort. These documents also

state: “ THIS IS ONLY A TAX. YOU MUST MEET

ALL COUN TY PLANNING AND ZONING

REQUIREMENTS.” (R132). Appendix C also

includes an “operating” permit for the

Florida Keys R.V. Resort issued by the

Florida Department of Health and

Rehabilitation Services (DHRS) indicating,

in part, 126 RV park authorized spaces and

13 mobile home park authorized spaces.

(R133). This permit number 44 - 54 - 00037 has

an expiration date of Sept ember 30, 1997.

Also included is a Florida Department of

Health (DOH) “official receipt,” permit

number 44 - 54 - 00037, issued September 26,

2002, for Florida Keys R.V. Resort for

mobile home/RV park program and notes 13

mobile home spaces and 126 RV spaces.

(R134).

6. Appendix D includes a list of adjacent

property owners. (R136 - 139).

7. Appendix E is a site map indicating the

location of the Florida Keys R.V. Resort in

or around MM 106. (R141).

8. Appendix F are undated site photographs

for the F lorida Keys R.V. Resort indicating

what purports to be RV sites, a lake, RV

sites and debris collection, and the back of

property and debris collection. (R143 - 145).

9. Appendix H is an unsealed survey from

Hal Thomas a Florida registered surveyor.

Thi s appears to be a survey of the Sender

site, which is described in the upper right

hand portion of the survey. (R148).

2. Staff Memoranda

Mr. J. G. Buckley, a Planner, and Mr. Niko Reisinger, a

Biologist, submitted a Memorandum dated June 9, 2003, to t he DRC

regarding the Sender site application. (R191 - 194). The DRC

considered the Sender site application on June 17, 2003, and

unanimously recommended approval. (R195 - 198).

On August 26, 2003, Mr. Buckley and Mr. Reisinger prepared

a similar Memorandum for the Commission regarding the Sender

site application. (R200 - 202). The Memorandum restated that

Northstar proposed to transfer 126 TREs in the form of 126 RV

spaces off - site with 77 of the TREs utilized to develop an 89 -

room hotel on the Receiver site . (R200).

The Memorandum stated that the Sender and Receiver sites

are in the Suburban Commercial land use (zoning) district with

the future land use map designation of Mix Use/Commercial. The

Sender site is described as disturbed with isolated native trees

and the Receiver site is described as disturbed with scattered

native growth. The Memorandum describes the community character

of the immediate vicinity of the Sender and Receiver sites.

(R201).

The Memorandum sets forth an analysis of the Sender site as

follows:

The sender site, a 9.8 - acre parcel at Mile Marker 106

contains the Florida Keys RV Park, a Florida State

licensed RV Park. The site has been determined, by the

Planning Department, to have 126 RV spaces that are

eligible for transfer off - site. The site also has a

license for thirteen (13) mobile homes that are not part

of this transfer. The property is zoned Suburban

Commercial and the current use is a non - conforming one.

The Biologist has determined the site to be disturbed

with some s cattered native trees. There is no hammock on

the property. The sender site is equivalent to the

receiver site in terms of environmental sensitivity.

Only 77 of the 126 RV spaces will be transferred to the

designed receiver site. The remaining 49 space s will be

held in reserve until a suitable receiver site is found.

(R201).

After analyzing provisions of the Monroe County Code, i.e. ,

Article IV, Section 9.5 - 120.4.(b)a.i) - iii), M.C.C. (R160 - 165),

and having found the Sender site to be in compliance w ith these

Land Development Regulations and Article III, Section 9.5 - 65,

M.C.C., the Planning and Environmental Resources Staff

recommended approval for the transfer of 126 RV spaces off - site,

with 77 TREs going to the Receiver site. (R200 - 202). See also

(R73).

3. The Public Hearing

On September 24, 2003, the Commission considered the Sender

site application. The Commission considered Northstar's

Receiver site application later on the same day at a separately

convened public hearing. (R232).

During the public hearing on the Sender site application,

the central issue was whether there were 126 RV spaces on the

Sender site that are eligible for transfer from the Sender site.

During the public hearing, there were numerous witnesses

testifying for and a gainst approval of the Sender site

application. The Commission also considered documentary

evidence.

A summary of the relevant testimony and evidence follows.

On September 2, 1987, the Department of Health and

Rehabilitative Services (DHRS) conducted an inspection of the

Barefoot Key R.V. Resort (Barefoot), which is also known as the

Florida Keys R.V. Resort. Permit number 44 - 037 - 87 is noted on

this report. This inspection report indicated that there were

authorized spaces for 75 RVs and 44 mobile home s. (R214).

The DHRS issued an “operating permit” (permit number 44 -

037 - 88) with an expiration date of September 30, 1988, for the

site and identified 75 Park RVs and 44 mobile home park

authorized spaces. (R215).

On August 1, 1990, Barefoot made an application to the DHRS

for a permit (permit number 44 - 037 - 90) for 75 RV spaces and 44

mobile home spaces. This was an annual renewal. (R206). On

August 1 , 1990, the DHRS issued another inspection report for

the site noting authorized spaces for 75 RVs and 44 mobile

homes, with 101 occupied spaces. (R216).

In or around September of 1991, the DHRS issued an

“operating permit” (permit number 44 - 037 - 92) to Florida Keys

R.V. Resort noting 96 RV Park authorized spaces and 28 mobile

home park authorized sp aces. This permit had an expiration date

of September 30, 1992. (R217).

On or about December 2, 1992, a DHRS application form for

mobile home permit and recreational vehicle park permit, permit

number 44 - 037 - 92, was filled out in the name of Florida Ke ys

R.V. Resort, requesting a capacity change from 96 RVs and 28

mobile homes to 132 RVs and 13 mobile homes. The owners are

listed as Edward J. and Laurie S. Mertens. (R14 - 15)(SR578).

See pages 14 - 15, infra , regarding Mr. Buckley and Mr. Craig’s

explana tions of, what appears to be, this document.

The DHRS issued another “operating permit” (permit number

44 - 037 - 93) with an expiration of September 30, 1993, for 75 RV

Park authorized spaces and 44 mobile home park authorized

spaces. (R204, 218).

On Jul y 15, 1994, the DHRS issued another RV Park and

mobile home inspection report (permit number 44 - 037 - 93), which

has the number 75 with a line through it and replaced with the

number 126 for authorized RV spaces and the number 44 with a

line through it and a designation of 13 authorized mobile home

spaces with a total of 65 RV and 15 mobile home occupied spaces.

The owners are listed as Edward J. and Laurie S. Mertens.

(R205). See also (R55 - 56)(SR85, 580). There is no evidence in

the record to indicate wh y the numbers were stricken and

replaced with the other numbers. Id. However, under the

section of the inspection report designated “comments and

instructions,” there is a handwritten notation stating: “New

operating permit must show correct allocation of spaces.”

(R205)(SR580).

The DHRS issued another “operating permit” (permit number

44 - 54 - 00037) to the Florida Keys R.V. Resort in care of the

owner, Riskey Inc., with an expiration date of September 30,

1997, indicating 126 RV Park authorized spaces and 13 Mobile

Home Park authorized spaces. (R133, 219).

On September 26, 2000, the Department of Health (DOH)

issued an “official receipt,” permit number 44 - 54 - 00037, to

Florida Keys R.V. Resort and noted 126 RV spaces and 13 mobile

home spaces. The pe rmit expired on September 30, 2001. (R220).

On September 27, 2001, Mr. Edward Koconis, A.I.C.P, Island

Planning Team Director, advised Mr. Craig of the following:

After reviewing the history of Florida Keys RV Park

including permit records and State of F lorida

Department of Health operating permits, as well as

several visits to the site with other members of

Planning staff, it is the decision of this department

that Florida Keys RV Park has 13 mobile home spaces

and 126 RV spaces.

Therefore, these unit s may be transferred to the Blue

Lagoon site provided that any and all activity is in

compliance with the Year 2010 Comprehensive Plan and

the Monroe County Code, particularly Section 9.5 -

120.4, which is the section dealing with transferring

development of f - site.

(R166). 4

During the public hearing, Commission Chair Jerry Coleman

denied Appellants party status and the opportunity to cross -

examine witnesses. Appellants were allowed to submit questions

for witnesses through the Chair. (R17 - 21, 38)(SR3 - 2 1, 50).

Mr. Buckley discussed the staff's recommendation regarding

the Sender site application. This was the first time staff

prepared a TRE staff report. Staff was satisfied that the

Sender site application should be approved. (R3 - 5). 5

Ms. Conaway, tes tified during the hearing. Ms. Conaway

stated that before the middle of the 1980's, it was “very

difficult to find any records at all” pertaining to particular

land uses. (R24). See also (SR148).

Staff evaluated several types of documents and other

in formation in order to assess whether 126 RV spaces were in

existence on the Sender site as of January 4, 1996, were

accounted for in the hurricane evacuation model, which forms the

basis of ROGO, and whether they were lawfully established.

Ms. Conaway ex plained that she could not find a permit per

se that was issued by a Monroe County planning department entity

recognizing the number of RV spaces on the Sender site.

Therefore, she looked at other information including the

operating permit issued by the D HRS with an expiration of

September 30, 1997, which indicated that there were 126 RV Park

authorized spaces and 13 mobile home park authorized spaces.

(R31 - 32, 45, 133, 219). A DOH official receipt indicated 126 RV

spaces, but Ms. Conaway stated that wou ld relate to the maximum

number of RV spaces that could be on the Sender site. (R46,

134). (Ms. Conaway stated that staff “work[s] with the Health

Department.” (R25)).

Ms. Conaway clarified that the DOH/DHRS licenses/official

receipts are based on the c oncerns of these departments for

sewage capacity, but the officials also visit the site. (R45 -

46).

Ms. Conaway stated that staff also looked at aerial

photographs that are a part of the research they performed. She

indicated that it was “almost impossib le to count spaces in the

aerial” photographs, but that was something they looked at to

find out how the property was used. (R33).

The property record cards were used to show the other uses

on the property. (R33). Ms. Conaway stated that the property

appraiser cards of record show 13 mobile homes, but not the

number of RV spaces on the Sender site. (R27). Ms. Conaway

explained that the occupational licenses (R132) do not provide

the number of RVs, only that the property was a trailer park and

campgro und. (R30).

Referring to page 17 of the property appraiser cards, for

Ms. Conaway, it was important that the history went back to 1982

and that there were camp buildings, for example, on the Sender

site. (R35, 129). Mr. Craig explained that page 17 al so

mentions 13 mobile homes, although the number of mobile homes is

not at issue. (R34).

Mr. Buckley also stated that Ms. Dianne Bair, the Flood

Plain Administrator, was asked in 1992 to make a list of all

mobile homes and RV parks. Her unofficial coun t indicated in a

memo to Mr. Timothy McGarry, Director of Growth management,

dated September 24, 2003, that Florida Keys R.V. Resort,

formerly Barefoot Key Resort in 1992, had 124 spaces (28 RVs and

96 mobile homes). Mr. Buckley clarified that the numbers were

transposed on Ms. Bair's memo (R231) and should reflect 96 RV

spaces and 28 mobile homes. (R37). See also (R217)(SR 578).

This memo is consistent with the September 1991, “operating

permit” and the December 2, 1992, application discussed at page

9, supra ; however, the memo is not an official Monroe County

document. Id.

Ms. Conaway relied on the DHRS operating permit, the DOH

official receipt, the occupational tax receipts, the property

appraisers record cards, and other information recited above in

reaching her determination that there were 126 RV spaces on the

Sender site property in or around 1996. (R36). 6

Mr. Bud Cornell testified that he had a history of being

associated with the Sender site property. He sold it the last

three times. He testified that the property was purchased (by

the last two purchasers) because it had 126 RV spaces and 13

mobile home spaces. (R60 - 61)(SR107 - 110). Mr. Craig reiterated,

“[t]hose RV spaces are there.” (R62 - 63).

Mr. Buckley testified that he reviewed a d ocument issued by

the DHRS in 1992 that accounts for 132 RV spaces on the Sender

site for the purpose of the hurricane evacuation log, although

the Planning Department determined that only 126 RV spaces were

qualified. Mr. Buckley clarified that the 1992 document “was an

application [sic] was approved by HRS. It reflects the ensuing

licenses which all reflect from that point in time on 126 RV

spaces and 13 mobilehomes [sic]. It was – just to clarify.”

Mr. Craig explained, “basically it’s an application a nd

inspection report.” (R5, 14 - 16). The 1992 application appears

to be in the record on appeal at (SR 578), although Mr. Buckley

advised the Commission that he did not believe it was in their

packet because he received it the morning of the public hearin g.

(R5). See page 9, supra .

There was also testimony and argument of Appellants’

counsel in opposition to Northstar’s Sender site application.

For example, Ms. Sheryl Bower, A.I.C.P., who has a master’s

degree in urban planning, expressed very strong concerns

regarding the number of RV spaces on the Sender site. In part,

Ms. Bower opined that the Sender site was “over - density already.

They can accommodate 78 RVs on that property.” Based on her

review of licenses and other documents of record, Ms. Bo wer

stated that the number of RV spaces, for example, 75 RV spaces

listed on several documents, could not have been increased

without the approval of a conditional use. (R47 - 50). See

Endnote 9. See also (R 54 - 56, for Mr. Rob Cook’s testimony).

Ms. Bow er and Mr. Lee Rohe, representing Smart Planning,

also stated that the proposed transfer of RV spaces violated the

moratorium adopted by the Board. (R51 - 53).

After hearing argument of counsel, Chair Coleman concluded,

without dissent, that the moratoriu m issue would not be heard.

(R52).

After hearing all of the evidence, the Commission approved

the Sender site application with Commissioner Werling voting no.

(R72). But see (R93, Resolution No. P55 - 03, showing

Commissioner Werling voting in the affir mative.) The Commission

found that 126 RV spaces were in existence on the Sender site as

of January 4, 1996, were accounted for in the hurricane

evacuation model that forms the basis of ROGO, and were lawfully

established. The Commission concluded that 1 26 RV spaces are

eligible and may be transferred off - site. The Commission

concluded that the 13 mobile home spaces would remain on the

Sender site. (R72 - 73, 92).

C. Receiver Site Application

1. Generally

Northstar submitted an application for develo pment approval

for the transfer of ROGO exemptions to the Receiver site. This

application is dated April 21, 2003, and is signed by the agent

for Northstar, Mr. Craig. (R286 - 288).

The application indicated, in part, that the Receiver site

is expected t o have 89 hotel rooms utilizing 77 TREs for 77 of

the 89 hotel rooms. (R287). The land use district for the

Receiver site is Suburban Commercial. Northstar indicated that

the present use of the property included a 12 - unit motel, 45 -

unit mobile home park , various retail commercial, single - family

homes, and a restaurant. The proposed use of the property is

for a resort hotel with a restaurant. No affordable housing

units are associated with the Receiver site. (R287).

Northstar indicated that it had fi led a Major Conditional

Use application in November of 2002, which is the subject of the

appeal in Case No. 03 - 4720. (R288). As in the case with the

Sender site application, the record does not indicate precisely

when the Receiver site application was fi led. However, there is

competent substantial evidence to support a conclusion that the

Receiver site application was filed on or about April 21, 2003.

See Endnote 3.

The Receiver site application was submitted with an

Appendices A - G as follows:

1. App endix A consists of several warranty

deeds. (R296 - 305).

2. Appendix B consists of Monroe County

property record cards. (R307 - 323).

3. Appendix C consists of a list of

adjacent property owners. (R325 - 329).

4. Appendix D is an aerial photograph t hat

includes the project site and adjacent

property. (R331).

5. Appendix E contains undated site

photographs of the receiver site, including:

Blue Lagoon at U.S. 1; an interior picture,

existing residential, commercial; a vacant

interior parcel; a vacan t parcel to the Bay;

existing storage area; and Stan & Mary's

Restaurant. (R333 - 337).

6. Appendix F is an unsealed survey of the

Receiver site dated September 21, 2001.

(R339 - 340).

7. Appendix G is a site plan dated

May 2, 2002. This document has a drawing

number of A - 1. (R342).

2. Staff Memoranda

Mr. Buckley and Biologist, Ms. Julie Cheon, submitted a

Memorandum to the DRC dated June 6, 2003, pertaining to the

Receiver site application. (R360). 7 This Memorandum stated that

Northstar has p roposed to develop an 89 - room hotel with

amenities and proposed to transfer (pursuant to the Sender site

application) 126 TREs in the form of 126 RV spaces off - site with

77 of the TREs being utilized to develop the 89 - room hotel at

the Receiver site. Id.

The land use (zoning) district designations are the same

for the Sender and Receiver sites, i.e. , Suburban Commercial,

and both sites share the same future land use map designation,

i.e. , Mixed Use/Commercial. The Receiver site consists of 8.1

acres and Sender site consists of 9.8 acres. The Receiver site

is disturbed with scattered native growth and the Sender site is

disturbed with isolated native trees. Staff characterizes the

community character of the immediate vicinity of the Receiver

site as a mix of uses including conforming and non - conforming

residential, commercial retail, and a Florida Keys Aqueduct

Authority (FKAA) water storage facility. (R361).

Staff determined that the purposed development of the

Receiver site is consistent with the mi x of uses that composes

the community character of the immediate vicinity; that there

was no empirical evidence that the purposed use would adversely

affect the value of the surrounding properties; that there was

adequate water and electricity for the purp osed use based on

letters of coordination issued from the FKAA and the Florida

Keys Electrical Coop; that the project will have on - site waste

water treatment plant; that there was no indication that the

purposed use would adversely impact any of the listed public

facilities; that there was no empirical evidence that Northstar

does not have the financial resources or the technical capacity

to complete the development as proposed; and that the purposed

development will not adversely affect a known archeologic al,

historical, or cultural site. (R362 - 363).

Staff also determined that the Receiver site is composed of

four - aggregated parcel zoned as Suburban Commercial. “The

habitat has been determined by the Biologist to be disturbed

with some scattered native trees; there is no hammock on - site.

The receiver site has been determined by the Biologist to be of

comparable environmental quality as the sender site. Both are

disturbed with some native vegetation but neither site has any

hammock.” (R363).

Staff a nalyzed the Receiver site application for compliance

with a Receiver site receiving TREs from the Sender site.

(R363 - 364). See Art. IV, § 9.5 - 120.4(b)a.(1)a.(i) and (ii),

M.C.C. (R162 - 163).

The Planning and Environmental Resources staff recommended

appr oval for the receivership of 77 RV spaces to the designated

receiver site based upon staff’s determination that the Receiver

site application complied with the applicable criteria. (R364).

See also (R372).

On June 17, 2003, the DRC considered the Recei ver site

application, and unanimously approved the application. (R365 -

368).

3. Northstar Submits Additional Information: the 12 - unit motel

The Commission approved Northstar's request for a Major

Conditional Use to develop an 89 - room hotel on the Receiv er

site. (SR215 - 220). In approving this project, the Commission

expressly stated (as a condition) that Northstar “shall document

the existence of the twelve - unit motel formerly on - site via a

valid Florida license. If documented, then [Northstar] shall

n eed ansferable ROGO Exemptions (TRE[s]) to construct

eighty - nine (89) hotel units; if not documented then [Northstar]

shall utilize 89 TRE[s] to construct eighty - nine (89) units

prior to the issuance of a building permit.” (SR218). (During

the public hearing on the Major Conditional Use application,

Mr. John Wolfe explained that the Commission had “been asked in

here to find that these 12 units exist. That’s pretty clear.”

(SR 144). However, during the public hearing on the Major

Conditional Use Ap plication (Case No. 03 - 4720), the Commission

was not satisfied with the evidence regarding the 12 - unit motel

issue and, as a result, imposed the condition. (SR148).)

On or about July 17, 2003, Mr. Craig sent a letter with

attachments to Mr. Buckley providing additional information

regarding Northstar's claim of the existence of the 12 - unit

motel, 45 - unit mobile home park, and a marina on the Blue Lagoon

property that is part of the Receiver site. (R169, 348).

The information provided by Mr. Craig included several

documents including a letter from Mr. Anthony Perez, a

Management Review Specialist with the Department of Business and

Professional Regulation, who advised Monroe County Building &

Zoning by letter dated July 13, 2000, “that Blue Lagoon R esorts

Int'l, Inc., owner & operator Blue Lagoon Resorts located at

99096 Overseas Highway, Key Largo, Florida, had a state

operational license with our Division through 1998. This 12 -

unit motel, Control # 54 - 01633 H, at this time ceased operations

and no further business has taken place thus its state license

was cancelled. At any future date when a suitable structure

that meets all Monroe County building & zoning codes is

constructed and approved our Division will license and regulate

according, and rei ssue a minimum of a 12 - unit motel license.” A

copy of the “license account” for the same control number is

consistent with Mr. Perez' letter. (R348, 350 - 351).

The Department of Business Regulation (DBR) issued a

license to “R & R Publishing Inc. Blue L agoon Resort Motel &

Mar” with an expiration of October 1, 1992, indicating 12 motel

units with a license number 54 01633H - Transient. (R254, 352).

This is the same number referred to in Mr. Perez' July 13, 2000,

letter although it is referred to as a con trol number rather

than a license number. The DOH issued separate operating

permits to Blue Lagoon Resorts International, Inc., both

indicating 45 mobile home spaces and 0 RV spaces, with

expiration dates of October 1, 1999. (R353). See also (R354).

Th e DHRS issued an “operating permit” to “Blue Lagoon Resort &

Marina R & R Publishing, Inc. - owner” indicating 45 mobile park

and 0 RV park authorized spaces. The expiration date is not

legible. (R355).

Mr. Craig also attached a copy of an occupationa l license

issued by Monroe County with an expiration of September 30,

1992, issued to Blue Lagoon Marina with a notation that the

“licensee was hereby licensed to engage in the business

profession or occupation of [] marina” at 99096 Overseas

Highway, part of the Receiver site. (R356). Other Monroe

County occupational licenses dated September 30, 2003, pertained

to trailer park/campground, water sport rentals, marina and

storage, merchandise vending, and retail/grocer at the same

address of 99096 Overseas Highway. (R357 - 359). See also (R181 -

190, for other licenses).

Regarding this issue, Ms. Conaway's January 25, 2002,

letter of understanding to Mr. Craig, in paragraph 2, page 2 of

6, stated: “There was a hotel license for a 12 - unit hotel on

the Blue Lagoon resort site (Parcel C) that was valid in 1994 -

1995. It is not clear where these motel units were located on

the site. These transient units may be credited toward the

proposed project.” (SR376). Compare with (SR382, 386, and

389). (Mr. Koconis’ letters to Ms. Joy Martin of January 22,

2001, and to Mr. Craig of March 6, 2001, stated, in part: “There

was a hotel license for a 12 - unit hotel on the Blue Lagoon

Resort site that was valid in 1994 - 1995. It is not clear where

these motel units were loc ated on the site. These transient

units may be credited provided that the motel was permitted and

the hotel license has been maintained.” (R375)(SR382).)

4. The Public Hearing

On September 24, 2003, the Commission conducted a public

hearing regarding th e Receiver site application. (R232).

Mr. Buckley briefly presented the item for consideration.

(R234 - 235). The Commission, consistent with the prior ruling,

denied Smart Planning and Osborn party status and denied them

the opportunity to cross - examine witnesses although questions

could be submitted through the Chair. (R237 - 241). In advising

the Commission on this issue, Mr. Wolfe relied on Article III,

Section 9.5 - 46, M.C.C., which provides hearing procedures for

applications for development approval. (R239)(SR3 - 9). Smart

Planning and Osborn were offered the opportunity to, and did

offer evidence before the Commission regarding the Receiver site

application.

During the public hearing, there was evidence, documentary

and testimonial, which supported and detracted from the approval

of the Receiver site application. Smart Planning and Osborn

objected to the Receiver site application, in part, because of

the lack of evidence indicating that there was a 12 - unit motel

on the Receiver site and the applica bility of the pending

ordinance doctrine. Ms. Bower and others also opposed the

application.

By letter dated July 17, 2003, Mr. Craig provided

documentation to Mr. Buckley, in part relating to Northstar's

claim of the existence of the 12 - unit motel. (R1 69). See pages

20 - 23, supra , and Endnote 5.

The Buckley/Reisinger Memorandum (Sender site) of

August 26, 2003, and the Buckley/Cheon Memorandum (Receiver

site) of August 26, 2003, do not mention the existence of the

12 - unit motel. (R200 - 202; 370 - 372). See also Endnote 7.

However, Mr. Buckley and Ms. Cheon prepared a Memorandum to

the Commission, dated May 9, 2003, analyzing Northstar’s Major

Conditional Use application. (SR 486 - 492). In particular, they

describe the proposed use and size of the sit e, in part, as

follows: “Parcel “C” (Blue Lagoon Parcel) contained the Blue

Lagoon Resort. The Blue Lagoon Resort had a valid operating

permit for 45 mobile homes as well as a hotel license for a 12 -

unit motel.” (SR487). See also (SR489, “[t]he site has twelve

(12) transient units from the Blue Lagoon motel.”) Staff

recommended a finding of fact that the subject site contains a

mix of uses including a 12 - motel unit motel.” (SR490). As

noted herein, the Commission required Northstar to document the

e xistence of the 12 - unit motel. (SR218).

Notwithstanding, there was testimony and documentary

evidence received and considered by Commission during the public

hearing on the Receiver site application. See (R19 - 20, 24 - 25

for Mr. Buckley’s initial expla nation (during the public hearing

on the Sender site application) of the direction staff received

from the Commission. See also (R253).) However, during the

public hearing on the Receiver site application, Mr. Andrew

Tobin, Osborn's counsel, specifically asked staff to identify

the evidence they relied on to determine the existence of the

12 - unit motel. (R253). Chair Coleman advised that Mr. Tobin,

could ask that question because the Commission had asked staff

to “research that very same question.” (R2 53). Mr. Buckley

responded that staff received direction "to provide a license

for a hotel." Mr. Buckley advised the Commission that the

license he reviewed was issued by the DBPR, with an expiration

date of October 1, 1992, indicating that it was issued to “R & R

Publishing Inc. Blue Lagoon Resort Motel & Mar” referencing 12

motel lodging units. (R19 - 20, 24 - 25, 253 - 254, 345, 352). Ms.

Conaway advised the Commission that staff asked Mr. Craig to

provide them with information which resulted in Mr. Craig' s July

17, 2003, letter with attachments. (R254, 348, 359). Mr. Craig

included, among other documents, a copy of the DBR license.

(R352).

It appears that Mr. Buckley and other planning staff relied

on the information provided by Mr. Craig on July 17, 2 003, as

well as three previous letters of understanding that were

incorporated into the Commission’s consideration of the original

Major Conditional Use application submitted by Northstar, “all

of which referred to a license for 12 - unit motel, although the

location of those units are not clearly defined.” (R254 - 255).

See also (SR375 - 386, 570 - 577, 603).

Mr. Buckley advised the Commission that he believed he was

only required to present a license to the Commission: “that was

the direction, no additional research was done on that.”

(R255). See Endnote 5.

Mr. Craig reiterated that they presented the Commission

“with each and every license that [they] had that [they] could

find in the record trail” pertaining to the 12 - unit motel.

(R263)(SR130 - 131). He also referred to the testimony of

Mr. Bill Cullen who testified during the public hearing on the

Major Conditional Use. Id. See also (SR100 - 103). 8 Referring to

the hotel units, Mr. Craig stated: “They were in the big

building that was on the middle of t he site that you have

property record cards for. Also in that large house that is

there, it still remains there. If you can’t see that by walking

out on the site then perhaps you need glasses.” (R263). But

see (R249, 253)(SR81 - 86), for Mr. Rob Cook’s t estimony and

(SR61 - 62) for Ms. Bower’s testimony.) Mr. Cook’s research

indicated that the licensure file with DBPR (formerly DBR)

regarding the 12 - unit motel was closed in or around October 1,

1998. (SR81 - 82, 562). Compare with (R345, 352 - DBR license f or

the 12 - motel units, expiration October 1, 1992). Mr. Cook’s

testimony is consistent with Mr. Perez’ July 13, 2000, letter,

which indicated that the 12 - unit motel was licensed through 1998

and had ceased operation. (R346).

Mr. Bud Cornell also provide d the Commission with a two -

page document dated March 17, 2003, and testified regarding the

12 - unit motel issue. (R259 - 260)(SR107 - 110, 593 - 594).

Ms. Conaway was satisfied with the documentation of record

including, but not limited to, the information pro vided by

Mr. Craig with the July 17, 2003 letter. (R253 - 254). See

Endnote 5.

Toward the end of the public hearing on the Receiver site

application, Chair Coleman stated:

Thank you Mr. Thomes. It’s coming back to

me staff and fellow commissioners when we

were here in June I believe on this project

we did not -- our directions were defined --

all the other evidence about the 12 units

had already been entered. It wasn't just

this one ‘92 receipt. Our directions we

were approving a project with the caveat,

not a condition, the caveat that you were to

satisfy the Planning Director that the 12

units, in your normal how you would be

satisfied, existed. It was not to bring to

this proceeding here today the burden of

proving 12 units. Okay. So that has been

almost injected maybe, and if you go back

and look, unfairly because we approved this

project. And this is just moving 77. And

the question of the existence of the 12

units was a caveat that make sure while we

are approving this if it isn't bring it

back . That's my recollection, okay. We

didn't say we are going to retry this thing

again. And it’s unfair to say this one

license -- I know there was a lot more

evidence. There's direct testimony that was

resolved in that other meeting. With that

we are b ringing it to the board.

(R265 - 266).

Immediately thereafter, Commissioner David Ritz,

Mr. Buckley, and Ms. Conaway had a question and answer

session regarding whether other negative or positive

points should have been awarded. (R267 - 269). See

also (R2 60 - 262). With these clarifications by staff,

Commissioner Ritz moved to approve the staff

recommendation that received a second by Commissioner

Mapes. The Commission unanimously approved staff’s

recommendation, i.e. , to approve the Receiver site

applicat ion. (R269 - 270).

The Commission’s approval of the Major Conditional Use

(including the 89 - unit hotel) was specifically conditioned on

Northstar's documenting the existence of the 12 - unit motel

formerly on - site via a valid Florida license. If documented ,

Northstar's needed 77 TREs to construct the hotel.

(R266)(SR218). The Commission ultimately approved Northstar's

request for the receivership of 77 TREs. (R283). But, the

Commission did not make any specific finding pertaining to the

12 - unit motel is sue. (R281 - 284).

Nevertheless, staff recommended the receivership of 77 TREs

having been satisfied of the existence of the 12 - unit motel. By

approving the Receiver site application as recommended by staff

and having considered the evidence regarding the existence of

the 12 - unit motel, the Commission implicitly approved this

determination by staff. While Appellants objected to the

competency and sufficiency of the evidence on this issue,

Appellants did not object to the Commission’s consideration of

the issue during consideration of the Sender and Receiver site

applications.

III. Legal 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 “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

mo dify any conclusion of law or

interpretation of the Monroe 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 b efore 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 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 proceedings the formalities

and the introduction of testimony common to

the courts of justice are not strictly

employed. . . . We are of the view,

howeve r, 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.”

Id. at 916. (citations omitted).

A hearing officer (administrative law judge) 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 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 su pporting the view of the

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). See also

Dusseau v. Metropolitan Dade County, Board of County

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

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

supra , the court stated:

the “competent substantial evid ence”

standard cannot be used by a reviewing court

as a mechanism for exerting covert control

over the policy determinations and factual

findings of the local agency. Rather, this

standard requires a reviewing court to defer

to the agency's superior techn ical expertise

and special advantage point in such matters.

This issue before the court is not whether

the agency's decision is the “best” decision

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 roving

“super agency” with plenary oversight in

such matters.

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

The issue of whet her 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 cross - examine witnesses during the

Commission hearings. Under the Monroe County Code, the review

criteria are limited a nd 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 - judicial

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 Ma rch 5, 2003), and cases cited

therein at page 31.

Appellants also argue that the Commission’s decision to

approve the Sender site application should be reversed because

there is no competent substantial evidence to support the

Commission’s finding that 1 26 RV spaces were (1) in existence as

of January 4, 1996, on the Sender site; (2) were accounted for

in the hurricane evacuation model which forms the basis for

ROGO; and (3) were lawfully established.

The evidence on this issue is not free from doubt.

Planning staff acknowledged the paucity of documents that

demonstrate compliance with the criteria. In fact, there is no

permit per se of record issued by a Monroe County planning

department entity that approved the existence and lawful

establishment of 1 26 RV spaces on the Sender site. (R31 - 32).

The term “lawfully established” is not defined in the

Monroe County Code and the Commission did not affirmatively

interpret this criterion.

However, Attachment A, which is part of the Sender site

applicatio n, required the applicant to provide documentation

including proof that the units or spaces are lawfully

established and legally existing. Attachment A enumerates

documentation which must be submitted and, in part, states:

“Copy of Deed of Ownership, Pro perty Record Card AND

documentation that the units and/or spaces were accounted for in

the hurricane evacuation model which forms the basis of ROGO

(lawfully established on or before January 4, 1996) in the form

of:. . .OR. . .Other relevant documentation may be used to

satisfy both tests, if an applicant cannot provide the above

materials, but this substitute requires approval of the Planning

Director.” (R98).

The staff Memoranda concluded that the Sender site

application complies with the three criteria, but affords no

explanation. (R194, 202). Ms. Conaway stated that they look at

information “around ’96”; “we are looking for from ’96 to ’97

when the Comprehensive Plan was determined.” (R27, 31). (Chair

Coleman stated: “January 1st, 1996. We want to see that they

were lawfully established recognized.” Id. ) Ms. Conaway,

referring to a state license, was asked: “does that mean that it

is authorized lawfully built spaces for Monroe County purposes?”

Ms. Conaway responded: “[w]hat it means is I could not find a

permit ever given here because of our permitting system. So

this is what we used to determine if it is a lawfully permitted

use.” (R31 - 32).

It is not proper for the undersigned to weigh or reweigh

the evidence, including but not limited to M s. Conaway’s

explanation for using the 1996 date to determine whether the 126

RV spaces were in existence and “lawfully established.”

Based upon a review of the entire records on appeal in Case

Nos. 04 - 1568 and 03 - 4720, it is concluded that there is

compet ent substantial evidence to support the Commission’s

findings that the Sender site application should be approved and

that the 126 RV spaces meet the eligibility requirements of

Article IV, Section 9.5 - 120.4(b)a.i) - iii), M.C.C. (R83). As a

result, 126 RV spaces are eligible and may be transferred off -

site. 9

Appellants also argue that there is no competent

substantial evidence to support Northstar's request for

authorization to utilize the 12 - unit motel toward the proposed

89 - unit hotel. Northstar claims that the 12 - unit motel is

derived from the Blue Lagoon Motel, which allegedly was located

on part of the Receiver site.

The Commission did not resolve this issue in Resolution No.

P47 - 03. (SR216). Rather, the Commission approved Northstar's

request fo r a Major Conditional Use for the construction of a

hotel with 89 units, 8,158 square feet of commercial space and

other amenities on the Receiver site. The Commission was not

satisfied with the evidence regarding the 12 - unit motel issue.

See , e.g. , (SR1 42 - 149). Mr. McGarry advised the Commission that

the issue would return to the Commission. (SR148, 189).

The project was approved with the condition that Northstar

document the existence of the 12 - unit motel formerly on - site.

Importantly, the condition further recited that if a 12 - unit

motel was documented, then Northstar needed 77 TREs to construct

the 89 hotel units. Otherwise, Northstar needed 89 TREs to

construct the 89 - unit hotel prior to the issuance of a building

permit. (SR148, 216).

In this case, the Commission approved what Northstar

requested, i.e. , receivership of 77 TREs. (R283). Staff

recommended approval of the Receiver site application (the

receipt of 77 TREs) because staff determined that Northstar

satisfied the condition regarding proof of the existence of the

12 - unit motel. (SR218). See also (SR23).

It is concluded that the Commission implicitly approved the

existence of the 12 - unit motel and there is competent

substantial evidence to support this decision.

Finally, the Appell ants contend that the Commission

departed from the essential requirements of law by ignoring the

pending ordinance doctrine in approving the transfer of the 126

RV spaces. The parties agree that Northstar's Major Conditional

Use application filed on or ab out November of 2002, and

Northstar's Sender and Receiver site applications filed on or

about April 21, 2003, are inextricably linked. (The parties

disagree when the Sender and Receiver site applications were

filed. See Endnote 3.)

Resolution No. 120 - 2 003, adopted by the Board on March 19,

2003, directed the Monroe County Planning staff “to immediately

undertake such development review as is necessary to take

forward to the Planning Commission as expeditiously as possible

a recommendation regarding a mo ratorium on the transfer of

(TRE’s) of redevelopment rights from sender units which are RV

spaces to sender units which are hotel or motel rooms, using the

draft ordinance (Exhibit A) attached hereto and incorporated

herein by reference as a guideline.”) See Supplemental Record,

Aug. 31, 2004.

The Board of County Commissioners of Monroe County (Board)

adopted Ordinance No. 025 - 2003 on June 18, 2003, after both

applications were submitted for consideration. (R224 - 226).

In the Project Overview of the Majo r Conditional Use

application, Northstar stated: “The 89 rooms are created by the

use of the existing 12 motel units and the importation [sic]

sufficient transferable development rights (TDRs) and

Transferable ROGO Exemptions (TREs) to achieve the desired

density. . . .The TDRs and 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.” (SR231). The record in Case

No. 03 - 4720 also contained several letters from Ms. Conaway to

Mr. Craig referencing Northstar's proposal to use TDRs and TREs

coupled with the requested Major Conditional Use. See , e.g. ,

(SR371 - 380). In particular, in a letter dated January 25, 2002,

Ms. C onaway stated in part: “There was a hotel license for a

12 - unit motel on the Blue Lagoon Resort (Parcel C) that was

valid in 1994 - 1995. It is not clear where these motel units

were located on the site. These transient units may be credited

toward the pu rposed project.” (SR376).

Based upon the forgoing, Northstar's Major Conditional Use

application contemplated separate conditional use approval

components, including both Major and Minor Conditional Use

approvals, which were required to complete the ent ire project.

As such, they are inextricably intertwined.

The moratorium, albeit contemplated by the Board in

March of 2003, was not adopted until June 18, 2003. The

planning for the moratorium and the actual adoption post - date

the filing of Northstar's Major Conditional Use application and

predate the letters of understanding issued by planning staff.

The pending ordinance doctrine does not apply in this case. See

Smith v. City of Clearwater , 383 So. 2d 681 (Fla. 2d DCA 1980),

pet. dism. , 403 So. 2d 4 07 (Fla. 1981).

DECISION

Based on the foregoing, the Commission's decisions in

Resolution Nos. P55 - 03 and P56 - 03 are AFFIRMED.

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

Tallahassee, Leon County, Florida.

S

CHARLES A. STAMPELOS

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 1st day of November, 2004.

ENDNOTES

1 / See Jeff Osborn and Smart Planning and Growth Coalition v.

Monroe County Planning Commission and Northstar Resort

Enterprises Corp oration , Case No. 03 - 4720 (DOAH November 1,

2004) at page 45 n.3.

2 / Although the Commission approved the Major and Minor

Conditional Uses requested by Northstar by separate Resolutions,

it is apparent that the evidence in both cases is inextricably

link ed and should be considered in this appeal. For example, in

Resolution No. P47 - 03, the Commission approved Northstar's

request for a Major Conditional Use for the construction of a

resort hotel with 89 units, 8,158 square feet of commercial

space and othe r amenities on the Receiver site. However, the

Commission required Northstar to “document the existence of the

twelve - unit motel formerly on - site via a valid Florida license.

If documented, then [Northstar] shall need ansferable ROGO

Exemptions (TRE [s]) to construct eighty - nine (89) hotel units;

if not documented then [Northstar] shall utilize 89 TRE[s] to

construct eighty - nine (89) units prior to the issuance of a

building permit.” (SR218). The Commission did not determine in

Case No. 03 - 4720 whet her a 12 - unit motel existed on the Receiver

site and further did not resolve any Sender/Receiver site issues

in Resolution No. P47 - 03. However, there is evidence regarding

the 12 - unit motel issue compiled in the record in Case No. 03 -

4720. Smart Planning ’s unopposed motion to supplement the

record with the record on appeal, Volumes 1 - 4, in Case No. 03 -

4720, is granted. Johnson v. State , 660 So. 2d 648, 653 (Fla.

1995).

3 / The record on appeal in Case No. 04 - 1568 does not indicate

when this application was actually filed with the Monroe County

Planning and Environmental Resources Department. However, on

April 29, 2003, Mr. Timothy Nicholas Thomes, counsel for

Northstar, advised Mr. Tim McGarry and Ms. K. Marlene Conaway,

Growth Management Division, tha t the Northstar application was

filed “prior to any proposed consideration of the moratorium on

the transfer recreational vehicle spaces to hotel and motel

units off - site.” Mr. Thomes also renews a request for

expediting consideration of Northstar's trans fer application

dated April 21, 2003. (R167). On June 11, 2003, Ms. Jill

Patterson requested a hearing before the Development Review

Committee (DRC) scheduled for June 17, 2003, with respect to

items one and two relating to Northstar's Sender and Receive r

site applications. (R168, 344). Biologist, Mr. Niko Reisinger,

and Planner, Mr. J. G. Buckley, submitted a Memorandum dated

June 9, 2003, to the DRC summarizing the Sender site

application. The DRC considered the Sender site application at

a meeting h eld June 17, 2003. (R197). Apparently, the Sender

and Receiver site application fees were not received by Monroe

County until July 18, 2003. (R101). Based on this chronology,

it appears that there is competent substantial evidence to

support a conclusi on that the Sender site application was filed

on or about April 21, 2003.

4 / During the public hearing on the Sender site application,

Ms. Conaway explained that under the regulation, she had the

authority to make this determination. Usually every lette r has

her name on it. She was surprised that the Koconis letter

(R166) did not “because this one was researched a number of

times even before Embassy Suites there was another hotel looking

to do similar things. So people have been counting out there

for a long time.” (R71).

5 / Mr. Buckley also stated: “The Director of Planning

[Ms. Conaway] is comfortable, based on the commission’s

direction, that the documentation of the 12 units existing then

did require Northstar to transfer 77 TREs rather than t he full

total of 89. So that’s why we are considering the transfer of

126 RV spaces with 77 of those spaces going toward the receiver

site for the proposed Northstar hotel.” (R4, 16). Mr. Wolfe

also clarified that the Commission (during the public heari ng on

the Major Conditional Use) asked staff to “clarify the receiver

site of 12 units. That would determine whether or not 77 units

had to be transferred in or 89. So they went back and found the

license from the state on the 12.” (R24). See also page s 20 -

27, infra , for more discussion of the 12 - unit motel issue.

6 / Attachment A, which is part of the Sender site application,

required the applicant to provide documentation including proof

the units or spaces are lawfully established and legally

exist ing. Attachment A enumerates documentation which must be

submitted and, in part, states: “Copy of Deed of Ownership,

Property Record Card AND documentation that the units and/or

spaces were accounted for in the hurricane evacuation model

which forms the basis of ROGO (lawfully established on or before

January 4, 1996) in the form of:. . .OR. . .Other relevant

documentation may be used to satisfy both tests, if an applicant

cannot provide the above materials, but this substitute requires

approval of the Pl anning Director.” (R98).

Ms. Conaway stated that they look at information “around

’96”; “we are looking for from ’96 to ’97 when the Comprehensive

Plan was determined.” (R27, 31). (Chair Coleman stated:

“January 1st, 1996. We want to see that th ey were lawfully

established recognized.” Id. ) Ms. Conaway, referring to a

state license, was asked: “does that mean that it is authorized

lawfully built spaces for Monroe County purposes?” Ms. Conaway

responded: “[w]hat it means is I could not find a permit ever

given here because of our permitting system. So this is what we

used to determine if it is a lawfully permitted use.” (R31 - 32).

7 / On August 26, 2003, Mr. Buckley and Ms. Cheon submitted a

Memorandum to the Commission that is substantiall y the same as

the Memorandum submitted to the DRC, which is incorporated by

reference herein. (R370 - 372). Staff made the same

recommendation. (R372).

8 / Bill Cullen owns the property immediately adjacent to the

Receiver site. He testified that he mo ved to Key Largo in the

1960's and is quite familiar with the Receiver site and the

surrounding area. He also stated: “Twelve motel units were

there and I'll gladly testify under oath as to their location

and existence any time you would like.” (SR102).

9 / Even if it was determined that 126 RV spaces did not meet the

criteria for transfer, the evidence, including the testimony of

Ms. Bower, supports the eligibility of 75 to 78 RV spaces on the

Sender site. See pages 8 - 10, 15, supra . Further, while he

relied on the expertise of Ms. Bower, Mr. Tobin thought the

Sender site could only have 10 units per acre. The Sender site

is “9.8 upland acres” which could yield 98 RV spaces if

Mr. Tobin’s analysis is applied. (R41, 191, 200).

COPIES FURNISHED :

A ndrew M. Tobin, Esquire

Post Office Box 620

Tavernier, Florida 33070 - 0620

Lee R. Rohe, Esquire

Lee R. Rohe, P.A.

Post Office Box 420259

Summerland Key, Florida 33042

Kerry L. Willis, Esquire

Dirk M. Smits, Esquire

Vernis & Bowling of the Florida Keys, P.A.

81990 Overseas Highway

Islamorada, Florida 33036 - 0529

Timothy Nicholas Thomes, Esquire

Timothy Nicholas Thomes, P.A.

99198 Overseas Highway, Suite 8

Post Office Box 3318

Key Largo, Florida 33037

Nicole Petrick, Planning Commission Coordinator

Mo nroe County Growth Management Division

2798 Overseas Highway, Suite 400

Marathon, Florida 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.