06-002438GM Robert Skeel, Stephanie Haider, John Mate Dave Marsch, Glen Sharp, March Schulman, Brian Albury, Jeff Kane, Joe Samere, Bob Moser, Roy Wilson, Par Fornell, Richard Jolliffe, Susan Jollife, Deborah Ferrer, Marian Mahlik, Eckart Scheinggraber, Et Al. vs. Department Of Community Affairs Status: Closed Recommended Order on Friday, January 12, 2007.

Summary: On vacation rentals, Respondent Village of Islamorada was consistent with the Comprehensive Plan and Principles Guiding Development in Florida`s Keys. The Division has no jurisdiction for constitutional issues.

Case No. 06-2438GM

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT SKEEL, STEPHANIE HAIDER, ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

JOHN MATE DAVE MARSCH, GLEN

SHARP, MARCH SCHULMAN, BRIAN RECOMMENDED ORDER

ALBURY, JEFF KANE, JOE SAMERE,

BOB MOSER, ROY WILSON, PAR

FORNELL, RICHARD JOLLIFFE,

SUSAN JOLLIFE, DEBORAH FERRER,

MARIAN MAHLIK, ECKART

SCHEINGGRABER, et al.,

Petitioners,

vs.

DEPARTMENT OF COMMUNITY

AFFAIRS,

Respondent,

and

VILLAGE OF ISLAMORADA, VILLAGE

OF ISLANDS

Intervenor.

On October 19, 2006, a final administrative hearing was held

in this case in Key Largo, Florida, before J. Lawrence Johnston,

Administrative Law Judge (ALJ), Division of Administrative

Hearings (DOAH).

APPEARANCES

For Petitioners: Andrew M. Tobin, Esquire

Post Office Box 620

Tavernier, Florida 33070-0620

For Department: Richard E. Shine, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

For Village: Mitchell A. Bierman, Esquire

James Eric White, Esquire

Weiss, Serota, Helfman, Pastoriza

Guedes, Cole & Boniske, P.A.

200 East Broward Boulevard, Suite 1900

Fort Lauderdale, Florida 33301

STATEMENT OF THE ISSUE

The issue in this case is whether Ordinance No. 06-03, as

adopted by the Village of Islamorada, Village of Islands

(Village), is consistent with the Principles for Guiding

Development set forth in Section 380.0552, Florida Statutes

(2006) (Guiding Principles). 1

PRELIMINARY STATEMENT

The Village adopted Ordinance No. 06-03 on February 23,

2006. On May 9, 2006, the Department of Community Affairs (DCA)

entered a Final Order approving the Ordinance. Petitioners filed

a Petition and subsequent Amended Petition for Administrative

Hearing contending for many reasons that the Ordinance was

invalid, including facial unconstitutionality and inconsistency

with the Village's Comprehensive Plan and with the Guiding

Principles. DCA referred the Amended Petition to DOAH on

July 12, 2006, for assignment of an ALJ. The Village intervened,

and a final hearing was scheduled for October 19-20, 2006.

On October 17, 2006, the Village and DCA filed a Motion in

Limine on grounds of lack of jurisdiction to determine

constitutional issues and waiver of almost all other issues

raised, in that the Ordinance implemented and tracked virtually

verbatim various provisions of the Village's Comprehensive Plan,

which has been finally determined to be "in compliance."

The Motion in Limine was taken up at the outset of the final

hearing, and it was ruled that DOAH did not have jurisdiction to

determine the facial constitutionality of the Ordinance and that

the Ordinance was not inconsistent with either the Comprehensive

Plan or the Guiding Principles to the extent that it tracked the

Comprehensive Plan verbatim. Those rulings disposed of the

entire Amended Petition except for the allegation that Section

30-1294(a)(5) of the Ordinance, which did not track the

Comprehensive Plan, was inconsistent with the Guiding Principles.

After those rulings, Petitioner called one expert witness,

Sheryl Bower. The Village called one expert witness, Ed Koconis,

and had Village Exhibits A through E admitted in evidence. DCA

called one expert witness, Rebecca Jetton, and had DCA Exhibits A

and B admitted in evidence.

After presentation of evidence, DCA requested a transcript

of the final hearing, and the parties requested and were given 15

days from the filing of the Transcript in which to file proposed

recommended orders (PROs). The Transcript was filed on

November 3, 2006, and a PRO was filed by the Village and DCA on

November 29, 2006; but on December 4, 2006, Petitioners filed a

Motion for Extension of Time to Serve P.R.O. and to Compel DCA to

Furnish Copy of the Trial Transcript. DCA filed a Response in

opposition, and an Order was entered on December 11, 2006, which

denied the demand that DCA furnish Petitioners a copy of the

Transcript, granted Petitioners ten days to file their PRO, and

granted the Village and DCA ten days to respond to Petitioners'

PRO. Instead of filing a PRO, on December 21, 2006, Petitioners

filed a Notice of Election Not to File Proposed Recommended

Order.

FINDINGS OF FACT

1. The Florida Keys were originally designated an Area of

Critical State Concern (ACSC) by the Administration Commission in

1975 and were re-designated by the Legislature in 1986. See

§ 380.0552, Fla. Stat. The Legislative Intent Subsection (2) of

the statute and the Guiding Principles together require an

effective land use management system that protects the natural

environment and character of the Keys, maintains acceptable water

quality conditions, ensures adequate public facility capacity and

services, and provides adequate emergency and post-disaster

planning to ensure public safety.

2. The Village's Comprehensive Plan has been adopted

pursuant to the Local Government Comprehensive Planning and Land

Development Regulation Act, as well as the authority of Section

380.0552(9), Florida Statutes. Provisions pertaining to vacation

rentals are established in Policies 1-2.1.10, 1-2.4.7, 1-2.4.8,

and 1-2.4.9. The policies allow vacation rentals but provide

limits for such uses within single-family and multi-family

residential properties within the Village. In addition, these

policies also provide for the establishment of land development

regulations (LDRs), which address enforcement and implementation

of those policies. The applicable Village Comprehensive Plan

Policies are as follows:

Policy 1-2.1.10: Restrict Development of New

Transient Units. Transient use shall be

defined as any use of any structure for a

tenancy of 28 days or lessansient uses

shall be considered as residential uses for

the purposes of transferring development

rights pursuant to conditions established in

Policy 1-3.1.4 of this Plan. Islamorada,

Village of Islands shall cap the number of

new transient units at the number of current

and vested hotel and motel rooms, campground

and recreational vehicle spaces existing

within the Village as of December 6, 2001.

Single family and multifamily residences

shall not be considered part of the above cap

but instead may be used for transient rental

use as provided for in Comprehensive Plan

Policies 1-2.4.7 and 1-2.4.8.

Policy 1-2.4.7: Limit Transient Rental Use

of Residential Properties. Islamorada,

Village of Islands shall continue to allow

the transient rental use of 28 days or less,

of single family and multifamily residential

properties within the Village, including

properties located within the Residential

Conservation (RC), Residential Low (RL),

Residential Medium (RM), Residential High

(RH), Mixed Use (MU) and Airport (A) Future

Land Use Map categories. Property owners

located in the RL, RM, RC, MU, RH and A

Future Land Use Map categories may continue

transient rental subject to the following

requirements:

1. Owners of such properties shall

annually register with the Village and shall

demonstrate at the time of registration:

a. That since December 6, 2001 the owner

had continuously either paid or filed for all

County tourist development taxes due, and

paid local impact fees, for the property it

wishes to register;

b. That owner has applied for

appropriate state licensure to conduct

transient rental for the property it wishes

to register and shall receive the license

within six months of application;

c. That the property is not registered

for a homestead tax exemption pursuant to

Article VII, Section 6 of the Constitution of

the State of Florida; and

d. That the property otherwise meets all

requirements of the Village Land Development

Regulations.

2. The annual registration shall allow

up to a total of 331 single family and

multifamily transient rental units. For each

annual registration period after the initial

registration period, the following shall

additionally apply:

a. No new transient rental unit shall be

allowed in any Residential Medium (RM) Future

Land Use Map category, in mobile home parks

or in the Settler's Residential zoning

district.

b. No new transient rental unit in the

RH and MU Future Land Use Map categories may

be registered unless it is assessed by the

Monroe County Property Appraiser at a value

in excess of 600% of the median adjusted

gross annual income for households within

Monroe County.

c. No new transient rental unit in the

RC, RL, or A Future Land Use Map categories

may be registered unless it is assessed by

the Monroe County Property Appraiser at a

value in excess of 900% of the median

adjusted gross annual income for households

within Monroe County.

3. The priority of registration for

transient rental units for all registration

periods, for purpose of the 311 unit cap,

shall be based upon the total number of

months that the unit owner has paid the

Monroe County tourist development tax, with

units registered in ascending order (i.e.,

those licenses demonstrating the most months

of payment shall be the last retired).

Notwithstanding paragraph 1.a. above, if the

331 unit cap is not reached in any year by

those units that have paid the Monroe County

tourist development tax, new units may be

given priority by registration date.

4. Property owners permitted transient

rental use pursuant to this policy shall lose

their privileges and retire their licenses

when ownership (in whole or in part) of the

unit is transferred, through an arm's length

sale of the property or the asset. If the

unit is owned by a natural person, the

transfer of the fee simple ownership of the

unit to the owner's spouse or children shall

not result in termination of the license.

Policy 1-2.4.8: Enforcement and

Implementation of Transient Rental

Regulations. Property owners permitted

transient rental use pursuant to Policy 1-

2.4.7 shall pay an annual fee to the Village

as established by resolution to be used for

code compliance related to transient rental

uses, with any excess funds to be used to

further affordable housing programs.

Transient rental unit owners shall lose their

privileges and their permits shall be revoked

for a property being used for transient

rental if the property had been found by non-

appealable Final Order on two occasions to

have violated the Village Code regarding

vacation renal units as provided for in the

land development regulations.

The Village shall establish land

development regulations which shall address

enforcement and implementation of transient

rental use, including, but not limited to,

the following: conspicuous notification on

transient rental properties; requiring each

unit to identify the unit manager who resides

within the village; regulating the number and

location of watercraft and automobiles on

site; lease agreements to disclose village

regulatory requirements and provide for

access for adequate code enforcement;

advertising to require identification of

state and village license numbers;

notification to adjacent property owners; and

fines, penalties, revocation of license for

violation of the regulations including but

not limited to the advertising of units that

are not lawfully licensed by the Village.

Policy 1-2.4.9: Affordable Housing Study.

The Village, based on its 2004 Workforce

Housing Study, shall analyze appropriate

policy revisions to the transient rental

comprehensive plan policies and prepare a

report no later than December 31, 2005. The

Village shall establish and support the

efforts of an Affordable/Workforce Housing

Citizen Advisory Committee to address the

relationship between affordable housing needs

and transient rental uses within the Village.

3. The applicable Village LDR, as modified by Ordinance No.

06-03 provides the following 2 :

Section 30-1294. Vacation rental uses

permitted within certain multifamily

developments . Vacation rental uses shall be

permitted to continue after May 1, 2003, in

properly located in the Residential High (RH)

future land use categ ory of the Village

Comprehensive Plan within multifamily

developments with mandatory property

associations, and if the member properly

owners pursuant to applicable association

requirements approve vacation rental uses

within such multifamily development .

Registration of Existing Vacation Rental

Units.

(a) The owner of a property located in

the RC, RL, RM, RH, MU, and A Future Land Use

Map categories may continue vacation rental

use provided that the owner's use of the unit

meets all of the following conditions:

(1) Since December 6, 2001, the

owner had continuously either paid or filed

for all County tourist development taxes due

and paid local impact fees for the unit it

wishes to register as a vacation rental use;

(2) The owner has applied for and

received the appropriate state licensure to

conduct vacation rental use for the unit;

(3) The property is not registered

for a homestead tax exemption pursuant to

Article VII, Section 6 of the Constitution of

the State of Florida;

(4) The unit is not a deed

restricted affordable housing unit; and

(5) The property otherwise meets all

requirements of the Village Land Development

Regulations.

4. The Florida Keys Principles for Guiding Development are

set out in Section 380.0552(7), Florida Statutes:

(a) To strengthen local government

capabilities for managing land use and

development so that local government is able

to achieve these objections without the

continuation of the area of critical state

concern designation.

(b) To protect shoreline and marine

resources, including mangroves, coral reef

formations, seagrass beds, wetlands, fish and

wildlife, and their habitat.

(c) To protect upland resources, tropical

biological communities, freshwater wetlands,

native tropical vegetation (for example,

hardwood hammocks and pinelands), dune ridges

and beaches, wildlife, and their habitat.

(d) To ensure the maximum well-being of the

Florida Keys and its citizens through sound

economic development.

(e) To limit the adverse impacts of

development on the quality of water

throughout the Florida Keys.

(f) To enhance natural scenic resources,

promote the aesthetic benefits of the natural

environment, and ensure that development is

compatible with the unique historic character

of the Florida Keys.

(g) To protect the historical heritage of

the Florida Keys.

(h) To protect the value, efficiency, cost-

effectiveness, and amortized life of existing

and proposed major public investments,

including:

1. The Florida Keys Aqueduct and water

supply facilities;

2. Sewage collection and disposal

facilities;

3. Solid waste collection and disposal

facilities;

4. Key West Naval Air Station and other

military facilities;

ansportation facilities;

6. Federal parks, wildlife refuges, and

marine sanctuaries;

7. State parks, recreation facilities,

aquatic preserves, and other publicly owned

properties;

8. City electric service and the

Florida Keys Electric Co-op; and

9. Other utilities, as appropriate.

(i) To limit the adverse impacts of public

investments on the environmental resources of

the Florida Keys.

(j) To make available adequate affordable

housing for all sectors of the population of

the Florida Keys.

(k) To provide adequate alternatives for the

protection of public safety and welfare in

the event of a natural or manmade disaster

and for a postdisaster reconstruction plan.

(l) To protect the public health, safety,

and welfare of the citizens of the Florida

Keys and maintain the Florida Keys as a

unique Florida resource.

5. Section 30-1294(a)(5) of Ordinance 06-03 has little to

no impact on the Guiding Principles, except Principles (a), (d),

(j), and (l). All it does it add to the Comprehensive Plan's

vacation rental provisions authorizing properties in certain

future land use categories to continued pre-existing vacation

rental use the requirement those properties "otherwise meet all

the requirements of the [LDRs]."

6. In regard to Principle (a), Section 30-1294(a)(5)

clearly provides further authority to the local government to

regulate land use and development. The evidence also proved that

this increased authority will strengthen the Village's

capabilities for managing land use and development and achieving

the objectives of the Guiding Principles without the continuation

of the ACSC designation.

7. Petitioners essentially make the argument that Section

30-1294(a)(5) is inconsistent with Principle (a) because "all

requirements" of the Village's LDRs is too broad, too difficult

to interpret, gives the planning director too much discretion to

interpret the requirement, and places an impossible burden on

applicants for vacation rental licenses, which ultimately will

discourage compliance and undermine the vacation rental

ordinance. The evidence did not prove any of those arguments.

8. In regard to Principle (d), Section 30-1294(a)(5)

further ensures the maximum well-being of the Florida Keys and

its citizens through sound economic development.

9. In regard to Principle (j), Section 30-1294(a)(5)

addresses the critical need for affordable housing within the

Florida Keys.

10. With regard to Principle (l), Section 30-1294(a)(5)

clearly demonstrates and provides for the public health, safety,

and welfare of the citizens of the Florida Keys and maintains the

Florida Keys as a unique Florida resource.

11. When the legislative intent behind Chapter 380, Florida

Statutes, is taken in account, it is clear that Section 30-

1294(a)(5) is not the type of land use decision that Chapter 380

is most concerned with. Because this provision does no harm to

the natural environment and waters of the Florida Keys ACSC, the

State's interest is protected. The issue is essentially local,

and deference should be afforded the Village in establishing such

regulations through its police powers.

12. Given the purpose of DCA's involvement in this matter,

the legislative intent of Chapter 380, Florida Statutes, and the

evidence presented in this proceeding, it is clear that Section

30-1294(a)(5) is consistent with the Guiding Principles,

considered as a whole.

CONCLUSIONS OF LAW

13. LDRs include local zoning, subdivision, building, and

other regulations controlling the development of land.

§ 380.031(8), Fla. Stat. The regulations adopted by Ordinance

No. 06-03 are LDRs.

14. Section 380.05(6), Florida Statutes, provides that DCA

has the burden of proving that the subject LDRs are "consistent"

with the Guiding Principles. See § 380.0552(7), Fla. Stat.

15. Section 380.0552(7), Florida Statutes, provides

guidance concerning the determination of whether an LDR should be

considered "consistent" with the Guiding Principles:

For the purposes of reviewing consistency of

the adopted plan or any amendments to that

plan with the principles for guiding

development and any amendments to the

principles, the principles shall be construed

as a whole and no specific provision shall be

construed or applied in isolation from the

other provisions.

Although Section 380.0552(7), Florida Statutes, does not

specifically mention LDRs, DCA looks at the Guiding Principles as

a whole in reviewing LDRs for consistency.

16. A separate determination of whether Section 30-

1294(a)(5) is also consistent with the legislative intent

provided in Section 380.0552(2), Florida Statutes, is not

required. It follows, however, that if Section 30-1294(a)(5) is

consistent with the Guiding Principles, it will not conflict with

the legislative intent.

17. In carrying out the general legislative intent behind

the statutory provisions for designation of ACSCs, as expressed

in Section 380.021, Florida Statutes, it is not necessary that

DCA ensure that every land planning action of a local government

positively enhance nature resources and waters within an ACSC.

It is only necessary that the local government, at a minimum, not

harm natural resources and waters.

18. The LDR subject to review in this case has little to no

direct impact on the natural resources and waters of the Florida

Keys ACSC. As a consequence, few of the Guiding Principles

specifically apply to Section 30-1294(a)(5). Essentially, this

provision only directly involves Principles (a), (d), (j), and

(l).

19. The evidence in this case proved that Section 30-

1294(a)(5) is consistent with Principle (a), which is to

strengthen the capabilities of the local government to regulate

land use and development so that it need not continue the ACSC.

20. The evidence in this case proved Section 30-1294(a)(5)

is consistent with Principle (d), which is to ensure the maximum

well-being of the Florida Keys and its citizens through sound

economic development.

21. The evidence in this case proved Section 30-1294(a)(5)

is consistent with Principle (j), which addresses the critical

need and concern of affordable housing within the Florida Keys.

22. The evidence in this case proved Section 30-1294(a)(5)

is consistent with Principle (l), which is to protect the public

health, safety, and welfare of the citizens of the Florida Keys

and maintain the Florida Keys as a unique Florida resource.

23. Under the circumstances of this case, the Village

should be given some leeway to exercise its judgment as to how

its police power should be exercised, as long as the evidence

proves that the local government's decision will not be harmful

to the natural resources or waters within the Florida Keys ACSC.

24. Based on the evidence, to the very limited extent that

Section 30-1294(a)(5) has a material bearing on any of the

Guiding Principles, it is consistent with them.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Community Affairs enter a

final order approving Ordinance No. 06-03 as consistent with the

Principles for Guiding Development set out in Section

380.0552(7), Florida Statutes.

DONE AND ENTERED this 12th day of January, 2007, in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 12th day of January, 2007.

ENDNOTES

1 / Unless otherwise indicated, all statute citations are to the

2006 codification of the Florida Statutes.

2 / Additional text is shown as underlined ; deleted text is shown

as strikethrough .

COPIES FURNISHED:

Thomas G. Pelham, Secretary

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

Shaw Stiller, General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

Richard E. Shine, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

Andrew M. Tobin, Esquire

Post Office Box 620

Tavernier, Florida 33070-0620

Nina L. Boniske, Esquire

Weiss, Serota, Helfman, Pastoriza

Guedes, Cole & Boniske, P.A.

2525 Ponce de Leon Boulevard, Suite 700

Coral Gables, Florida 33134

James Eric White, Esquire

Weiss, Serota, Helfman, Pastoriza

Guedes, Cole & Boniske, P.A.

200 East Broward Boulevard, Suite 1900

Fort Lauderdale, Florida 33301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

issue the final order in this case.