07-004364GM The Lodging Association Of The Florida Keys And Key West, Inc. vs. Islamorada, Village Of Islands And Department Of Community Affairs
 Status: Closed
Recommended Order on Wednesday, October 22, 2008.


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Summary: Ordinance 07-11 of Islamorada, Village of Islands, is inconsistent with the Principles for Guiding Development in the Florida Keys because it allows for more hotel and motel rooms in violation of the cap on new transient units.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8THE LODGING ASSOCIATION OF THE )

14FLORIDA KEYS and KEY WEST, )

20INC., )

22)

23Petitioner, )

25)

26vs. ) Case No. 07-4364GM

31)

32ISLAMORADA, VILLAGE OF ISLANDS )

37and DEPARTMENT OF COMMUNITY )

42AFFAIRS, )

44)

45Respondents. )

47)

48RECOMMENDED ORDER

50The final hearing in this case was held on December 11 and

6212, 2007, in Islamorada, Florida; on January 10, 2008, by video

73teleconference; and on January 22, 2008, by telephone, before

82Bram D. E. Canter, an Administrative Law Judge of the Division

93of Administrative Hearings (DOAH).

97APPEARANCES 1

99For Petitioner The Lodging Association of the Florida Keys

108and Key West, Inc.:

112Nicholas W. Mulick, Esquire

116Nicholas W. Mulick, P.A.

12091645 Overseas Highway

123Tavernier, Florida 33070

126For Respondent Department of Community Affairs:

132Richard E. Shine, Esquire

136Department of Community Affairs

1402555 Shumard Oak Boulevard

144Tallahassee, Florida 32399-2100

147STATEMENT OF THE ISSUE

151The issue in this case is whether the land development

161regulations (LDRs) adopted through Ordinance 07-11 by

168Islamorada, Village of Islands (Islamorada), are consistent with

176the Principles for Guiding Development in the Florida Keys, set

186forth in Section 380.0552(7), Florida Statutes (2007). 2

194PRELIMINARY STATEMENT

196On May 10, 2007, Islamorada adopted Ordinance 07-11,

204LDRs, by redefining “Room, hotel, or motel”; and amending

213Section 30-852, “Off-street Parking,” by changing the required

222parking spaces for hotel and motel rooms.

229On August 4, 2007, Respondent, Florida Department of

237Community Affairs (Department), issued Amended Final Order No.

245DCA 07-OR-139A, which found Ordinance 07-11 inconsistent with

253four of the Principles for Guiding Development of the Florida

263Keys (Principles) set forth in Section 380.0552(7), Florida

271Statutes.

272On August 30, 2007, Petitioner, The Lodging Association of

281the Florida Keys and Key West, Inc. (The Lodging Association),

291filed an Amended Petition for Administrative Hearing challenging

299the Department’s Amended Final Order. The Department referred

307the matter to DOAH to conduct an evidentiary hearing and prepare

318a recommended order.

321At the final hearing, the parties’ Joint Exhibits 1 through

33111 were accepted into evidence. The Department presented the

340testimony of Edward Koconis, who was accepted as an expert in

351comprehensive planning; Ada Mayte Santamaria, accepted as an

359expert in comprehensive planning; and John Zegeer, accepted as

368an expert in traffic engineering. The Department’s Exhibits 12

377through 14 were accepted into evidence. The Lodging Association

386presented the testimony of Donald Craig, who was accepted as an

397expert in comprehensive planning; James Bernardin, a hotelier

405and member of The Lodging Association; Stephen Kurutz, a

414hotelier and member of The Lodging Association; William Wagner,

423Fire Chief and emergency manager for Islamorada; Frank Rego,

432accepted as an expert in hotel/motel management and the tourist

442industry; Deborah Gillis, a hotelier in Islamorada and a member

452of The Lodging Association; and Richard Eichinger, accepted as

461an expert in traffic engineering and planning. The Lodging

470Association offered no individual exhibits. Islamorada did not

478appear at the final hearing or present any evidence.

487Official Recognition was taken of City of Marathon

495Ordinance No. 2004-017, DCA Final Order No. 05-OR-035, South

504Florida Water Management District Order 2007-870-DAO-WS, and

511Village Resolution No. 06-08-62.

515Following the hearing, the Department filed a Motion to

524Relinquish Jurisdiction, arguing that The Lodging Association

531had failed to prove its standing. The motion was denied.

541The six-volume Transcript of the final hearings was filed

550with DOAH. The Lodging Association and the Department filed

559Proposed Recommended Orders, which were carefully considered in

567the preparation of this Recommended Order.

573FINDINGS OF FACT

5761. The Lodging Association is a trade association with an

586office in Key West, Florida. The Lodging Association is a not-

597for-profit association, created to monitor, initiate, advance,

604support or oppose legislation, policies and other governmental

612regulations that affect the lodging industry in Monroe County,

621including Islamorada. Membership in The Lodging Association

628includes owners and operators of the hotels and motels in

638Islamorada.

6392. Islamorada is a municipality within Monroe County which has adopted a comprehensive plan and LDRs.

6553. The Department is the state land planning agency with

665the power and duty to exercise general supervision of the

675administration and enforcement of the Area of Critical State

684Concern program, and to approve or reject LDRs adopted by local

695governments within areas of critical state concern.

7024. The Florida Keys were designated an Area of Critical

712State Concern by the Administration Commission in 1975 and re-

722designated by the Legislature in 1986 pursuant to Section

731380.0552, Florida Statutes.

7345. Ordinance 07-11, would make the following changes to the existing LDRs regulating hotels and motels:

750Room, hotel or motel , - means a unit in a

760public lodging establishment as defined by

766F.S. Section 509.013(4)(a) intended for

771transient lodging only for periods not

777exceeding 30 daysansient occupancy

781shall conform to the definition contained in

788F.S. Section 509.013(8) as to transient

794occupancy. For the purposes of density

800restriction under this chapter:

804(1) A hotel or motel room may be a single

814room or a suite and may include a kitchen

823but no more than 1 1/2 bathrooms. An

831existing hotel or motel room may be

838redeveloped to a unit no less than 150

846square feet and not exceeding 2,000 square

854feet of habitable floor area and consisting

861of no more than two (2) full bathrooms and

870three (3) bedrooms, one (1) kitchen, one-

877half bathroom and one (1) additional living

884area (excluding bedrooms), provided that the

890average habitable floor area of all hotel or

898motel units on the property does not exceed

9061,500 square feet and that the rates of

915redevelopment set forth in (3) below are

922met; and

924(2) All entrances to a hotel or motel room

933shall share the same key or means of

941controlling access so that the hotel or

948motel room as defined herein is not

955divisible into separately rentable units;

960and

961(3) Suites co ntaining more than one bedroom

969and 1½ baths may be constructed; however,

976each bedroom/full bath combination shall be

982considered a hotel/motel unit . A property

989with existing hotel or motel units may be

997redeveloped pursuant to the following

1002equivalency rates :

10056. Ordinance 07-11 also amended Section 30-852 of

1013Islamorada LDRs which establishes the required parking spaces

1021for various uses. Ordinance 07-11 changes the parking space

1030requirement for hotel rooms from 1.0 spaces per unit (without

1040regard to numbers of bedrooms) to 1.0 space for a one-bedroom

1051unit, 1.2 spaces for a two-bedroom unit, and 1.5 spaces for a

1063unit with three or more bedrooms.

10697. Evidence was presented by The Lodging Association to

1078show that the principal objective of the ordinance is to respond

1089to the trend in the hospitality industry for larger hotel and

1100motel rooms to accommodate families for longer stays.

11088. The Department reviewed Ordinance 07-11 to determine

1116whether it is consistent with the Principles for Guiding

1125Development (Principles) set forth in Section 380.0552(7),

1132Florida Statutes:

1134(a) To strengthen local government

1139capabilities for managing land use and

1145development so that local government is able

1152to achieve these objectives without the

1158continuation of the area of critical state

1165concern designation.

1167(b) To protect shoreline and marine

1173resources, including mangroves, coral reef

1178formations, seagrass beds, wetlands, fish

1183and wildlife, and their habitat.

1188(c) To protect upland resources, tropical biological communities, freshwater wetlands,

1198native tropical vegetation (for example,

1203hardwood hammocks and pinelands), dune

1208ridges and beaches, wildlife, and their

1214habitat.

1215(d) To ensure the maximum well-being of the

1223Florida Keys and its citizens through

1229sound economic development.

1232(e) To limit the adverse impacts of

1239development on the quality of water

1245throughout the Florida Keys.

1249(f) To enhance natural scenic resources,

1255promote the aesthetic benefits of the

1261natural environment, and ensure that

1266development is compatible with the unique

1272historic character of the Florida Keys.

1278(g) To protect the historical heritage of

1285the Florida Keys.

1288(h) To protect the value, efficiency, cost-

1295effectiveness, and amortized life of

1300existing and proposed major public

1305investments, including:

13071. The Florida Keys Aqueduct and water supply facilities;

13162. Sewage collection and disposal

1321facilities;

13223. Solid waste collection and disposal

1328facilities;

13294. Key West Naval Air Station and other military facilities;

1339ansportation facilities;

13416. Federal parks, wildlife refuges, and

1347marine sanctuaries;

13497. State parks, recreation facilities, aquatic preserves, and other publicly owned

1360properties;

13618. City electric service and the Florida

1368Keys Electric Co-op; and

13729. Other utilities, as appropriate.

1377(i) To limit the adverse impacts of public investments on the environmental resources

1390of the Florida Keys.

1394(j) To make available adequate affordable

1400housing for all sectors of the population of

1408the Florida Keys.

1411(k) To provide adequate alternatives for

1417the protection of public safety and welfare

1424in the event of a natural or manmade

1432disaster and for a post-disaster

1437reconstruction plan.

1439(l) To protect the public health, safety,

1446and welfare of the citizens of the Florida

1454Keys and maintain the Florida Keys as a

1462unique Florida resource.

14658. In its Amended Final Order and in the parties’ Joint

1476Pre-hearing Stipulation, the Department asserted that Ordinance

148307-11 is inconsistent with four of the Principles, which are

1493repeated below:

1495(a) To strengthen local government

1500capabilities for managing land use and

1506development so that local government is able

1513to achieve these objectives without the

1519continuation of the area of critical state

1526concern designation.

1528* * *

1531(d) To ensure the maximum well-being of the Florida Keys and its citizens through

1545sound economic development.

1548* * *

1551(j) To make available adequate affordable

1557housing for all sectors of the population of

1565the Florida Keys.

1568* * *

1571(l) To protect the public health, safety,

1578and welfare of the citizens of the Florida

1586Keys and maintain the Florida Keys as a

1594unique Florida resource.

1597Principle (a) - Managing Land Use and Development

16059. The Department asserts that Ordinance 07-11 is

1613inconsistent with Principle (a) because the ordinance is

1621inconsistent with five policies of the Islamorada Comprehensive

1629Plan and, therefore, fails to properly manage land use and

1639development.

1640Policy 1-2.1.10

164210. The Department contends that Ordinance 07-11 is inconsistent with Policy 1-2.1.10 which states, “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

1687Village as of December 6, 2001.”

169311. Much of the confusion in this case surrounding the

1703issue of the cap on hotel/motel rooms arises from the practice

1714in Islamorada and elsewhere in Monroe County of defining a hotel

1725or motel room in a manner that differs from its common meaning

1737to the general public, which is the space that one rents from

1749the clerk at the desk, with one entrance and one key. Instead,

1761a room is defined according to the number of bedrooms and

1772bathrooms, so that the space one rents with a single entrance

1783and key can be defined in the LDRs as one, two, or even three

1797hotel rooms. An analogy would be if a vehicle were defined for

1809regulatory purposes according to its output of emissions, so

1818that if your vehicle had relatively high levels of emissions, it

1829might be counted as two or three vehicles.

183712. Although much testimony was devoted to this disputed

1846issue, it is clear that Ordinance 07-11 would allow for the

1857creation of more hotel and motel rooms in Islamorada (as “room”

1868was previously defined). There are many examples that could be

1878given of how Ordinance 07-11 would allow for more hotel and

1889motel rooms, but one example is that a room with two bedrooms

1901and two bathrooms counts as two units under the existing

1911ordinance, but is only one unit under Ordinance 07-11.

192013. Ordinance 07-11 allows a hotel owner to enlarge a

1930hotel room in a manner that under the former ordinance would

1941have been treated as creating another hotel room – a violation

1952of Policy 1-2.1.10. Without changing the policy, Ordinance 07-

196111 defines away the violation.

196614. When Islamorada adopted Policy 1-2.1.10 to cap the number of hotel/motel rooms at the number of “current” rooms, the policy could only mean the number of rooms that existed under the definition of hotel/motel room that was then in

2006effect. Otherwise, the policy would be ineffectual as a cap.

20163

201715. Despite the findings made above, the determination of

2026whether Ordinance 07-11 should be rejected is complicated by the

2036fact that, in 2005, the Department approved a similar ordinance

2046of the City of Marathon. Like Islamorada, Marathon had formerly

2056counted one bedroom and one and one half bathrooms as one

2067hotel/motel unit. Marathon Ordinance 2004-017 redefined

2073hotel/motel rooms so that a room with three bedrooms and two and

2085a half bathrooms now counts as one unit. Marathon’s

2094comprehensive plan also has a cap on hotel/motel rooms.

210316. The Department’s approval of Ordinance 2004-17 appears to have been based in large part on the “density reduction” provisions in the Marathon ordinance. For example, one-bedroom units may be redeveloped as two-bedroom units “at the rate of 90 percent,” and one-bedroom units may be redeveloped as three-

2152bedroom units “at the rate of 85 percent.” The density

2162reduction provisions in Ordinance 2004-017 are easiest to

2170understand with an example using ten existing units. Applying

2179the 90 percent rate, ten existing one-bedroom units can be

2189redeveloped into nine two-bedroom units.

219417. There is no practical way to apply the reduction rates when just one or a few units are redeveloped, because applying the rate results in fractional units. For example, using the 90

2227percent reduction rate, 1 one-bedroom unit cannot be redeveloped

2236as .9 two-bedroom units, and 2 one-bedroom units cannot be

2246redeveloped as 1.8 two-bedroom units. In these two examples,

2255the hotel owner would be allowed to create 1 and 2 two-bedroom

2267units, respectively. Therefore, the density reduction rate has

2275no effect in these (and other) scenarios.

228218. Marathon’s density reduction provisions do not prevent

2290more hotel and motel rooms from being created. In the example

2301given above, the nine redeveloped two-bedroom units would have

2310counted as 18 units under the definition in Marathon’s former

2320ordinance. With admirable candor, the Department’s expert

2327planner testified that it was her opinion that Marathon

2336Ordinance 2004-17 is inconsistent with Marathon’s cap on

2344hotel/motel rooms. However, it does not take an expert planner

2354to see the inconsistency.

235819. Counsel for the Department argued that Marathon Ordinance 2004-017 materially differs from Village Ordinance 07- 11 because the density reduction provisions in the Marathon ordinance created an “equivalency” with regard to the additional vehicles associated with larger hotel/motel units. Islamorada Ordinance 07-11 also has similar density reduction provisions, but the Department does not think they create a similar equivalency. However, the Department’s argument about

2423equivalency is not persuasive because it requires that the cap

2433on hotel/motel rooms be read as a cap on the traffic generated

2445by hotel/motel rooms, which is contrary to the plain wording of

2456Policy 1-2.2.10. Furthermore, as explained above, the density

2464reduction rates do not apply to many redevelopment scenarios

2473that can result in larger hotel/motel rooms that generate more

2483traffic.

248420. Unlike the Marathon ordinance, Village Ordinance 07-11 also allows for the creation of new hotel/motel rooms through “disaggregration.” This term was used by the Department to describe how the ordinance can be applied in reverse to create smaller, separate hotel/motel rooms which could later be enlarged. For example, an existing two-bedroom/one-bathroom unit (defined as one unit under the former ordinance) could be redeveloped under Ordinance 07-11 as two separate one-

2555bedroom/one-bathroom units, and then redeveloped again as two

2563separate two-bedroom/two-bathroom units (defined as four units

2570under the former ordinance).

257421. The Department demonstrated that Ordinance 07-11 allows for new hotel/motel rooms to be created beyond the current number of hotel/motel rooms. Therefore, it is not fairly debatable whether Ordinance 07-11 is consistent with Policy 1-2.1.10. Because the ordinance is inconsistent with the

2617comprehensive plan, it is also inconsistent with Principle (a).

2626Policy 1-2.2.4

262822. Policy 1-2.2.4 provides that nonconforming uses (due

2636to their density) may only be redeveloped to the same density.

264723. There are hotel and motels in Islamorada that are

2657nonconforming because their density is greater than is currently

2666allowed. The Department contends that Ordinance 07-11 is

2674inconsistent with Policy 1-2.2.4 because the ordinance would

2682allow more rooms and thereby increase the density at

2691nonconforming hotels and motels. The Lodging Association argues

2699that Ordinance 07-11 does not increase density, but merely

2708allows more bedrooms and bathrooms.

271324. The prohibition against increasing nonconforming uses

2720is a general provision found in all local government codes. It

2731does not prevent the periodic redefinition of what constitutes a

2741nonconforming use. In other words, the policy has the same

2751meaning as if it read, “However nonconforming uses are defined,

2761do not make them worse.”

276625. The cap on hotel/motel rooms in Policy 1-2.1.10 is different in this respect. It is a unique policy that is expressly tied to a specific condition and time – “the number of

2799current hotel and motel rooms . . . existing within the Village

2811as of December 6, 2001.”

281626. A density limit and the cap on hotel/motel rooms serve

2827different purposes. It was not explained by the Department and

2837it is not apparent how the purpose served by the density limit

2849for hotel/motels is thwarted if a bedroom or bathroom is added

2860to a single hotel unit. On the other hand, the purpose served

2872by the cap on the number of hotel/motel rooms that existed on

2884December 6, 2001, is clearly thwarted by a re-definition of

2894“room” that allows more hotel/motel rooms than existed on that

2904December 6, 2001.

290727. The disaggregation of hotel/motel rooms can create more separate units (greater density), not just larger units. Nevertheless, the Department did not adequately explain why

2932Policy 1-2.2.4 could not be applied by Islamorada as a limit on

2944any disaggregation that would result in the creation of

2953additional units at a nonconforming hotel or motel.

296128. It is fairly debatable whether Ordinance 07-11 is consistent with Policy 1-2.2.4.

2974Policy 1-2.2.6

297629. Policy 1-2.2.6 prohibits the enlargement or extension of non-conforming structures. The Department asserted that

2991Ordinance 07-11 “creates a possibility of redeveloping and

2999expanding the size of hotel/motel units to a previously existing

3009non-conforming structure,” but the evidence presented by the

3018Department on this issue was insufficient to explain what kinds

3028of non-conforming structures would be affected by the ordinance,

3037or to demonstrate how the ordinance would require noncompliance

3046with Policy 1-2.2.6.

304930. Ordinance 07-11 is not facially inconsistent with the policy. The Department did not adequately explain why Policy 1- 2.4.6 could not be applied by Islamorada as a limit on any application of Ordinance 07-11 that would result in a nonconforming structure.

309131. It is fairly debatable whether Ordinance 07-11 is consistent with Policy 1-2.2.6.

3104Policy 2-1.6.3

310632. Policy 2-1.6.3 establishes a 24-hour hurricane evacuation time. Hurricane evacuation is a major issue for Islamorada and for all local governments in the Florida Keys because of their low elevation, exposure to storm surge, flooding, and high winds, and limited evacuation routes.

314933. The hurricane evacuation model used for the Florida Keys predicted in 2001 (the last time the model was run) that more than 24 hours would be needed to evacuate the Keys.

3181Therefore, Islamorada and other local governments in the Keys

3190developed “staged” evacuation plans whereby transient units are

3198evacuated 48 hours prior to the arrival of hurricane force

3208winds, then mobile home residents 36 hours prior to that time,

3219and other residents are evacuated 24 hours prior.

322734. These staged evacuation plans have been accepted by the Department as consistent with the requirement for 24-hour

3245hurricane evacuation. Despite the prediction of the hurricane

3253evacuation model, the Department allows local governments in the

3262Florida Keys to add new residences and associated vehicles every year; 28 each year in Islamorada.

327835. The Department contends that Ordinance 07-11 is inconsistent with Policy 2-1.6.3 because the ordinance allows for the creation of more hotel/motel units and larger units which will generate more traffic and make hurricane evacuation

3313more difficult.

331536. It is undisputed that Ordinance 07-11 will increase

3324the need for parking spaces at hotels and motels in Islamorada.

3335The Department showed there would be an unquantified increase in

3345the number of vehicles associated with larger hotel and motel

3355rooms. More vehicles means more time would be needed to

3365evacuate transient units in Islamorada. However, the Department

3373did not show that Ordinance 07-11 would prevent Islamorada from

3383evacuating transient units in conformance with the staged

3391evacuation plan.

339337. The Department points out that, for fast-forming and

3402fast-approaching hurricanes, Islamorada will not always have

3409time to evacuate residents and visitors in the time frames

3419called for in the staged evacuation plan. However, the

3428Department could have used the occurrence of fast-forming and

3437fast-approaching hurricanes as a rationale to oppose the

3445adoption of staged evacuation plans by Islamorada and other

3454local governments in the Florida Keys. Instead, the Department

3463determined that staged evacuation plans are consistent with the

3472statutory requirement and the comprehensive plan policies

3479calling for 24-hour hurricane evacuation, despite the

3486possibility of fast-forming and fast-approaching hurricanes.

3492Therefore, to prove that Ordinance 07-11 is inconsistent with

3501Policy 2-1.6.3, it is not enough for the Department to merely

3512show that Ordinance 07-11 would lead to more vehicles associated

3522with transient units. The Department must prove that Ordinance

353107-11 would prevent Islamorada from evacuating transient units

3539under the time frames of the staged evacuation plan.

354838. Insufficient competent evidence was presented about the hurricane evacuation model, about the model’s assumptions, and whether the model’s assumptions are still relevant to

3572current circumstances, to assist the Administrative Law Judge to

3581make findings regarding the potential effects of Ordinance 07-11

3590on the modeled evacuation times.

359539. William Wagner, formerly an emergency management

3602coordinator for Monroe County and currently the chief for

3611emergency services for Islamorada, testified that the staged

3619evacuation plan has been implemented two or three times since

3629its adoption and there have been no problems evacuating the

3639transient population within the time frames of the plan. It was

3650his opinion that doubling the current number of hotel/motel

3659units in Islamorada would not prevent evacuation of the Florida

3669Keys in compliance with the goals of the staged evacuation plan.

368040. It is fairly debatable whether Ordinance 07-11 is consistent with Policy 2-1.6.3.

3693Policy 3-1.1.8

369541. Policy 3-1.1.8 requires Islamorada to adopt LDRs “that establish a fair and equitable method for requiring developers of new and expanded businesses and private developers of housing to provide or subsidize housing for employees.” The Department contended that Ordinance 07-11 is inconsistent with this policy because the ordinance creates a need for more employees without providing affordable housing for them.

375642. However, Islamorada recently adopted an LDR which

3764requires developers to provide at least 30 percent affordable

3773housing on site or pay a fee which Islamorada will use to

3785provide affordable housing elsewhere. Based on Islamorada’s

3792adoption of the affordable housing LDR, the Department changed

3801its position and now states that Ordinance 07-11 is “neutral”

3811with respect to affordable housing.

381643. It is fairly debatable whether Ordinance 07-11 is

3825consistent with Policy 3-1.1.8.

3829Principle (d) - Sound Economic Development

383544. In its Proposed Recommended Order, the Department

3843asserts that Ordinance 07-11 is inconsistent with Principle (d),

3852but does not explain why. The Department makes a general

3862reference to protection of natural habitat and provision of

3871affordable housing, but no evidence was presented to demonstrate

3880that Ordinance 07-11 would result in adverse impacts to the

3890natural environment, and the Department withdrew its contention

3898that affordable housing was an issue.

390445. The Department failed to prove by a preponderance of the evidence that Ordinance 07-11 is inconsistent with Principle (d).

3924Principle (j) – Affordable Housing

392946. As discussed above, the Department changed its initial position and now states that Ordinance 07-11 is neutral with

3948regard to affordable housing.

395247. The Department failed to prove by a preponderance of

3962the evidence that Ordinance 07-11 is inconsistent with Principle

3971(j).

3972Principle (l) – Health, Safety, and Welfare

397948. The principal basis for the Department’s contention that Ordinance 07-11 is inconsistent with Principle (l) is the Department’s allegation that the ordinance will increase the traffic associated with hotels and motels and, therefore, adversely affect hurricane evacuation. For the reasons already discussed in the context of Policy 2-1.6.3 of the Islamorada Comprehensive Plan, the Department failed to prove by a preponderance of the evidence that Ordinance 07-11 is

4048inconsistent with Principle (l) with regard to hurricane

4056evacuation.

405749. Another basis for the Department’s contention that Ordinance 07-11 is inconsistent with Principle (l) is the ordinance’s alleged effect on potable water supply in Islamorada. In the Department’s Amended Final Order, there was one passing reference to the lack of data and analysis regarding “potential impacts on potable water supply.” There was no

4111mention of a potable water supply issue in the parties’ Joint

4122Pre-Hearing Stipulation. In its Proposed Recommended Order, the

4130Department simply asserts that “Ordinance 07-11 fails to address

4139the impacts on potable water supply.”

414550. The burden was on the Department to prove that Ordinance 07-11 would create potable water supply problems. It

4164failed to meets its burden. The Department did not prove by a

4176preponderance of the evidence that Ordinance 07-11 is

4184inconsistent with Principle (l).

4188CONCLUSIONS OF LAW

419151. The Division has jurisdiction pursuant to Sections 120.569, 120.57(1), and 380.05(6), Florida Statutes.

420552. LDRs “enacted, amended, or rescinded” by a local government in the Florida Keys must be submitted to the

4224Department for review to determine whether the LDRs are

4233consistent with the principles for guiding development of the

4242area. § 380.0552(9), Fla. Stat. An LDR does not become

4252effective unless it is approved in a final order issued by the

4264Department. See

4266§ 380.05(6), Fla. Stat.

427053. Ordinance 07-11 is a regulation controlling the use of

4280land. Therefore, the ordinance is a land development

4288regulation. See § 380.031(8), Fla. Stat.

429454. The proceeding to review a final order of the Department approving or rejecting an LDR in an area of critical state concern is de

4319novo . Findings of fact and conclusions of

4327law set forth in the Department’s final order are not

4337controlling.

433855. This case is one of first impression, in that the

4349Department has not previously rejected an LDR adopted by a local

4360government in the Florida Keys ACSC.

4366Standing

436756. A party whose substantial interests have been

4375determined by the Department’s final order approving or

4383rejecting an LDR adopted by a local government in an ACSC may

4395institute a proceeding to challenge the agency’s determination.

4403See § 308.05(6), Fla. Stat. The Department contends that The

4413Lodging Association lacks standing as a person whose substantial

4422interests are affected, citing Agrico Chemical Company v.

4430Department of Environmental Regulation , 406 So. 2d 478 (Fla. 2d

4440DCA 1981).

444257. First, the Department argues that The Lodging

4450Association failed to allege an injury because the Department’s

4459rejection of Ordinance 07-11 does not prevent members of The

4469Lodging Association from redeveloping their hotel and motels

4477under the existing Village LDRs. That argument misses the point

4487that the Department’s action prevents members of The Lodging

4496Association from redeveloping their properties in the manner

4504allowed by Ordinance 07-11.

450858. Then, the Department argues that the injury alleged by

4518The Lodging Association is not the type of injury which the

4529proceeding is designed to protect. The Department contends that

4538Sections 380.05 and 380.0552, Florida Statutes, were designed to

4547protect the natural resources and environment of the Florida

4556Keys, not the future economic interests of hotel and motel

4566owners.

456759. However, Chapter 380 contains numerous references to The Principles, themselves, include objectives related to “managing land use and development,” and “sound economic

4591development.” Therefore, the types of injuries which this

4599proceeding is designed to protect (against) include the

4607Department’s approval of LDRs that mismanage growth or promote

4616unsound economic development in the Florida Keys, and the

4625Department’s rejection of LDRs that effectively manage growth or

4634promote sound economic development in the Florida Keys.

464260. Finally, the Department contends that, even if the

4651Department’s rejection of Ordinance 07-11 can constitute an

4659injury to a hotelier in Islamorada, it could only affect a hotel

4671or motel owner who has his redevelopment plans in hand, because

4682for all the others, the alleged injury is speculative. However,

4692Ordinance 07-11 affects the development rights of every

4700hotel/motel owner in Islamorada, whether they are in the process

4710of re-developing their properties or have no current plans to do

4721so. The standing analysis for determining the injury caused by

4731agency action on a local government ordinance (a legislative

4740act) is different than for agency action on a development order

4751(a quasi-judicial act).

475461. It is concluded that The Lodging Association has standing to challenge the Department’s Amended Final Order.

4771Burden of Proof

477462. In this proceeding, the Department has the burden of

4784proving the validity of its final order. § 380.05(6), Fla.

4794Stat.

4795Standard of Proof

479863. The Department’s rejection of an LDR in an ACSC must be based on a determination of inconsistency with the Principles for Guiding Development. See

4823§ 380.0552(9), Fla. Stat. The

4828Principles must be “construed as a whole, and no specific

4838provision may be construed or applied in isolation from the

4848other provisions.” See § 380.0552(7), Fla. Stat.

485564. Because the Principles are contained in statutes administered by the Department, the Department’s burden of proof

4872is to demonstrate inconsistency with the Principles by a

4881preponderance of the evidence.

488565. The Department’s burden requires more than expressing a concern that the LDR might cause a particular problem

4903amounting to an inconsistency with one of the Principles for

4913Guiding Development, with the burden shifting to the petitioner

4922to present evidence that resolves the Department’s concern.

4930Instead, the Department must present evidence that affirmatively

4938demonstrates the existence of the inconsistency.

494466. The Department has previously determined that inconsistency with the comprehensive plan also establishes an inconsistency with Principle (a), regarding the management of

4967land use and development. See

4972Rathkamp v. Department of

4976Community Affairs , DOAH Case No. 97-5952 (September 30, 1998),

4985DCA Final Order December 4, 1998), 1998 Fla. ENV LEXIS 342,

4996aff'd, 740 So. 2d 1209 (Fla. 3d DCA 1999).

500567. However, Section 163.3213(5)(b), Florida Statutes, which is generally applicable to Department determinations that an LDR is inconsistent with a local government comprehensive plan, states:

5030The adoption of a land development

5036regulation by a local government is

5042legislative in nature and shall not be found

5050to be inconsistent with the local plan if it

5059is fairly debatable that it is consistent

5066with the plan.

5069Therefore, when the Department contends that an LDR is

5078inconsistent with Principle (a) based on the LDR’s inconsistency

5087with the comprehensive plan, the fairly debatable standard must

5096be applied to determine whether the LDR is inconsistent with the

5107plan. Otherwise, the Legislature’s clear intent to give

5115deference to a local government’s interpretation of its own

5124legislative acts would be circumvented.

512968. The Department proved that it is beyond fair debate that Ordinance 07-11 is inconsistent with Policy 1-2.1.10 of the Islamorada Comprehensive Plan. Therefore, the Department proved that Ordinance 07-11 is inconsistent with Principle (a).

516469. The Department failed to prove that it is beyond fair

5175debate that Ordinance 07-11 is inconsistent with Policies 1-

51842.2.4, 1-2.2.6, 2-1.6.3, or 3-1.1.8 of the Islamorada

5192Comprehensive Plan.

519470. The arguments made by the Department regarding Policies 1-2.2.4, 1-2.2.6, 2-1.6.3, and 3-1.1.8 could be treated as arguments that Ordinance 07-11 has adverse consequences to non-conforming uses, non-conforming structures, hurricane evacuation, and affordable housing that are inconsistent with

5233Principle (a), without regard to any policies of the

5242comprehensive plan. If the arguments could be transformed in

5251this manner, the preponderance of the evidence standard would be

5261applicable. However, the Department failed to prove by a

5270preponderance of the evidence that Ordinance 07-11 is

5278inconsistent with Principle (a) based on alleged adverse

5286consequences to non-conforming uses, non-conforming structures,

5292hurricane evacuation, and affordable housing.

529771. The Department failed to prove by a preponderance of

5307the evidence that Ordinance 07-11 is inconsistent with

5315Principles (d), (j), or (l).

532072. The principle of stare decisis operates in

5328administrative law. Gessler v. Dept. of Business and

5336Professional Regulation , 627 So. 2d 501, 504 (Fla. 4th DCA

53461993). An agency must follow its own precedents unless it

5356adequately explains on the record its reasons for not doing so.

5367See Bethesda Healthcare System, Inc. v. Agency for Health Care

5377Admin. , 945 So. 2d 574 (Fla. 4th DCA 2006); Nordheim v. Dept. of

5390Environmental Protection , 719 So. 2d 1212, 1214 (Fla. 3d DCA

54001998).

540173. There is an adequate explanation in the record for why the Department’s approval of Marathon Ordinance 2004-17 should not be followed in this case: the Marathon ordinance is

5430inconsistent with the cap on hotel/motel rooms that is contained

5440in the Marathon Comprehensive Plan. Furthermore, Village

5447Ordinance 07-11 has the additional fault of allowing for

5456disaggregation of units, a fault not found in the Marathon

5466ordinance.

546774. Ordinance 07-11 is inconsistent with the Principles

5475when they are construed as a whole.

5482RECOMMENDATION

5483Based on the foregoing Findings of Fact and Conclusions of

5493Law, it is:

5496RECOMMENDED that the Department of Community Affairs enter

5504a Final Order rejecting Ordinance 07-11 as inconsistent with the

5514Principles for Guiding Development set forth in Section

5522380.0552(7), Florida Statutes.

5525DONE AND ENTERED this 22nd day of October, 2008, in

5535Tallahassee, Leon County, Florida.

5539BRAM D. E. CANTER

5543Administrative Law Judge

5546Division of Administrative Hearings

5550The DeSoto Building

55531230 Apalachee Parkway

5556Tallahassee, Florida 32399-3060

5559(850) 488-9675 SUNCOM 278-9675

5563Fax Filing (850) 921-6847

5567www.doah.state.fl.us

5568Filed with the Clerk of the

5574Division of Administrative Hearings

5578this 22nd day of October, 2008.

5584ENDNOTES

55851 / Islamorada, Village of Islands, did not appear at the final

5597hearing.

55982 / All references to the Florida Statutes are to the 2007

5610codification unless otherwise noted.

56143 / There has been a reduction in hotel and motel rooms in

5627Islamorada caused by their conversion to permanent residences.

5635It would appear, therefore, that new hotel and motel rooms could

5646be added in Islamorada, up to the number that existed on

5657December 6, 2001, without violating Policy 1-2.1.10. However,

5665Ordinance 07-11 does not limit the creation of new hotel/motel

5675rooms to the number of rooms that have been lost since

5686December 6, 2001.

5689COPIES FURNISHED :

5692Thomas Pelham, Secretary

5695Department of Community Affairs

56992555 Shumard Oak Boulevard

5703Suite 100

5705Tallahassee, Florida 32399-2100

5708Shaw Stiller, General Counsel

5712Department of Community Affairs

57162555 Shumard Oak Boulevard

5720Suite 325

5722Tallahassee, Florida 32399-2160

5725Beverly Raddatz

5727Islamorada, Village of Islands

573187000 Overseas Highway

5734Post Office Box 568

5738Islamorada, Florida 33036

5741Nina L. Boniske, Esquire

5745Weiss, Serota, Helfman, Pastoriza

5749Guedes, Cole & Boniske

57532525 Ponce DeLeon Boulevard, Suite 700

5759Coral Gables, Florida 33134-6045

5763Nicholas W. Mulick, Esquire

5767Nicholas W. Mulick, P.A.

577191645 Overseas Highway

5774Tavernier, Florida 33070

5777Richard E. Shine, Esquire

5781Department of Community Affairs

57852555 Shumard Oak Boulevard

5789Tallahassee, Florida 32399-2100

5792NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

5798All parties have the right to submit written exceptions within

580815 days from the date of this Recommended Order. Any exceptions

5819to this Recommended Order should be filed with the agency that

5830will issue the Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 10/22/2008
Proceedings: Recommended Order
PDF:
Date: 10/22/2008
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 10/22/2008
Proceedings: Recommended Order (hearing held December 11-12, January 10 and January 22, 2008). CASE CLOSED.
PDF:
Date: 09/04/2008
Proceedings: Order (Petitioner`s Motion for Extension of Time within which to File Proposed Recommended, is granted).
PDF:
Date: 09/03/2008
Proceedings: Petitioner`s Motion for Extension of Time within which to File Proposed Recommended Order filed.
PDF:
Date: 09/02/2008
Proceedings: Petitioner`s Proposed Recommended Order filed.
PDF:
Date: 08/29/2008
Proceedings: Respondent Department of Community Affairs` Proposed Recommended Order filed.
PDF:
Date: 08/11/2008
Proceedings: Order (parties` proposed recommended orders, not to exceed 70 pages, shall be filed no later than August 29, 2008).
PDF:
Date: 08/08/2008
Proceedings: Respondent, Department of Community Affairs` Motion for Clarification of Petitioner`s Agreed Motion to Extend Time for Filing Proposed Recommended Orders and Expanding the 30 Page Limit for Proposed Recommended Orders filed.
PDF:
Date: 08/06/2008
Proceedings: Agreed Motion to Extend Time for Filing Proposed Recommended Orders and Expanding the 30-Page Limit for Proposed Recommended Orders filed.
PDF:
Date: 07/01/2008
Proceedings: Order on Motion to Relinquish Jurisdiction.
PDF:
Date: 07/01/2008
Proceedings: Respondent, Department of Community Affairs` Motion to Strike Petitioners Response as Untimely and Reply filed.
PDF:
Date: 06/30/2008
Proceedings: Petitioner`s Response in Opposition to Department of Community Affairs` Motion to Relinquish Jurisdiction filed.
PDF:
Date: 06/13/2008
Proceedings: Record of Proceedings (Volumes 1-A and 1-B) filed.
PDF:
Date: 06/13/2008
Proceedings: Department of Community Affairs` Notice of Filing Transcripts filed.
PDF:
Date: 06/13/2008
Proceedings: Respondent, Department of Community Affaris` Motion to Relinquish Jurisdiction filed.
PDF:
Date: 06/13/2008
Proceedings: Respondent, Department of Community Affairs` Motion to Relinquish Jurisdiction filed.
Date: 05/30/2008
Proceedings: Transcript (Volume III) filed.
PDF:
Date: 05/16/2008
Proceedings: Transcript (Volume I & II) filed.
PDF:
Date: 04/21/2008
Proceedings: Status Report filed.
PDF:
Date: 01/22/2008
Proceedings: Petitioner`s Notice of Filing Exhibits filed.
Date: 01/22/2008
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 01/14/2008
Proceedings: Order Re-scheduling Hearing by Telephone (hearing set for January 22, 2008; 9:00 a.m.)
Date: 01/10/2008
Proceedings: CASE STATUS: Hearing Partially Held; continued to January 22, 2008.
PDF:
Date: 01/07/2008
Proceedings: Notice of Filing Department of Community Affairs` Exhibits filed.
PDF:
Date: 12/20/2007
Proceedings: Order Re-scheduling Hearing by Video Teleconference (hearing set for January 10, 2008; 9:00 a.m.; Miami and Tallahassee, FL).
Date: 12/11/2007
Proceedings: CASE STATUS: Hearing Partially Held; continued to date not certain.
PDF:
Date: 12/07/2007
Proceedings: Petitioner`s Answers to Department of Community Affair`s First Set of Interrogatories filed.
PDF:
Date: 12/05/2007
Proceedings: Joint Pre-hearing Stipulated filed.
PDF:
Date: 12/03/2007
Proceedings: Petitioner`s Motion to Allow Witness to Testify by Telephone filed.
PDF:
Date: 11/29/2007
Proceedings: Amended Notice of Hearing (hearing set for December 11 and 12, 2007; 9:00 a.m.; Islamorada, FL; amended as to additional day).
PDF:
Date: 10/03/2007
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 10/03/2007
Proceedings: Notice of Hearing (hearing set for December 11, 2007; 9:00 a.m.; Islamorada, FL).
PDF:
Date: 09/26/2007
Proceedings: Undeliverable envelope returned from the Post Office.
PDF:
Date: 09/26/2007
Proceedings: Response to Initial Order filed.
PDF:
Date: 09/20/2007
Proceedings: Initial Order.
PDF:
Date: 09/20/2007
Proceedings: Order Dismissing Petition with Leave to Amend filed.
PDF:
Date: 09/20/2007
Proceedings: Amended Final Order filed.
PDF:
Date: 09/20/2007
Proceedings: Final Order filed.
PDF:
Date: 09/20/2007
Proceedings: Amended Petition for Administrative Proceeding filed.
PDF:
Date: 09/20/2007
Proceedings: Agency referral filed.

Case Information

Judge:
BRAM D. E. CANTER
Date Filed:
09/20/2007
Date Assignment:
09/20/2007
Last Docket Entry:
10/22/2008
Location:
Miami, Florida
District:
Southern
Agency:
Department of Community Affairs
Suffix:
GM
 

Counsels

Related DOAH Cases(s) (2):

Related Florida Statute(s) (6):