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.
Recommended Order on Wednesday, October 22, 2008.
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 Departments 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 Departments 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. Marathons
2094comprehensive plan also has a cap on hotel/motel rooms.
210316. The Departments 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. Marathons 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 Marathons former
2320ordinance. With admirable candor, the Departments expert
2327planner testified that it was her opinion that Marathon
2336Ordinance 2004-17 is inconsistent with Marathons 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 Departments 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
2894room 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 models assumptions, and whether the models 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 Islamoradas
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 Departments contention that Ordinance 07-11 is inconsistent with Principle (l) is the Departments 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 Departments contention that Ordinance 07-11 is inconsistent with Principle (l) is the ordinances alleged effect on potable water supply in Islamorada. In the Departments 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 Departments 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 Departments final order approving or
4383rejecting an LDR adopted by a local government in an ACSC may
4395institute a proceeding to challenge the agencys 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 Departments
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 Departments 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
4607Departments approval of LDRs that mismanage growth or promote
4616unsound economic development in the Florida Keys, and the
4625Departments 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
4651Departments 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 Departments 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 Departments 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 Departments burden of proof
4872is to demonstrate inconsistency with the Principles by a
4881preponderance of the evidence.
488565. The Departments 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 Departments 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 LDRs inconsistency
5087with the comprehensive plan, the fairly debatable standard must
5096be applied to determine whether the LDR is inconsistent with the
5107plan. Otherwise, the Legislatures clear intent to give
5115deference to a local governments 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 Departments 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.
- Date
- Proceedings
- 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: 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: 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: 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.
- 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: 12/03/2007
- 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).
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
-
Nina Lynn Boniske, Esquire
Address of Record -
Nicholas W Mulick, Esquire
Address of Record -
Beverly Raddatz
Address of Record -
Richard E. Shine, Assistant General Counsel
Address of Record -
Richard E Shine, Assistant General Counsel
Address of Record -
Richard E Shine, Esquire
Address of Record