07-005390 Maria Barroso vs. Monroe County Planning Commission And Key Largo Ocean Resort Co-Op, Inc. Status: Closed DOAH Final Order on Wednesday, June 25, 2008.

Summary: The appeal from a decision of the Planning Commission was dismissed because Appellant failed to raise reviewable issues.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARIA BARROSO, )

)

Appellant, )

)

vs. )

) Case No. 07-5390

MONROE COUNTY PLANNING )

COMMISSION and KEY LARGO OCEAN )

RESORT CO-OP, INC., )

)

Appellees. )

)

FINAL ORDER OF DISMISSAL

Appellant Maria Barroso seeks review of Monroe County

Planning Commission Resolution P35-07, approved by the Planning

Commission on August 24, 2007. The Division of Administrative

Hearings, by contract, and pursuant to Article XIV, Section 9.5-

535, Monroe County Code, has jurisdiction to consider the appeal

and to issue a final order.

Leave to intervene as an Appellant was granted to Key Largo

Ocean Resort Co-op, Inc. (KLOR), a cooperative under Chapter

719, Florida Statutes (2007). Appellant KLOR was the applicant

for the site plan approval, which is the subject of this appeal.

Resolution P35-07

Resolution P35-07 approved the application of KLOR for an amendment to a major conditional use permit to demolish all existing structures and redevelop all infrastructure, amenities,

and redevelop all existing RVs, park models, and mobile home

residences on property located at 94825 Overseas Highway, Key

Largo, with 285 single-family permanent dwelling units,

accessory uses, gatehouse, office building, community center,

and grill/pub area, subject to numerous conditions stated in the

resolution. For simplicity, the subject of Resolution P35-07

will be referred hereafter in the same way it has been referred

to by the parties, as a site plan approval.

Issues Raised on Appeal

On September 20, 2007, Appellant filed a timely

“application for appeal,” stating the following basis for the

appeal:

Planning Commission Resolution No. P35-07 is

in direct contravention of and violates the

Monroe County Code, the Monroe County

Comprehensive Plan, the principles for

guiding development as provided in Chapter

380, Florida Statutes, and the terms and

conditions of development Agreement approved

by the Monroe County, Florida Board of

County Commissioners Resolution 242-2006,

dated June 21, 2006. Moreover, a

representative of Key Largo Ocean Resort

misrepresented to the Commission that it had

obtained the requisite statutory consent

required by Section 719.1055(1), Florida

Statutes, to the proposed site plan.

[Appellant] reserves the right to amend and

supplement this application for appeal with

additional information and grounds.

On January 28, 2008, Appellant moved to abate the appeal to

allow the circuit court, in a pending case involving these same

parties, to rule on whether KLOR’s application for approval of

the site plan was ultra vires , null, and void. Appellant’s

motion was granted and the appeal remained abated until

April 29, 2008, when the Administrative Law Judge set a briefing

schedule because the expected ruling of the circuit court had

been put off.

Appellant filed her Initial Brief on May 19, 2007. Two

issues were raised by Appellant: (1) whether the Planning

Commission failed to comply with the essential requirements of

law because it was based on a material misrepresentation made by

KLOR’s attorney; and (2) whether Appellant has standing. No

issue was raised regarding whether Resolution P35-07 violated

any of the applicable provisions of the Monroe County Code.

Before the deadline for filing answer briefs, the Planning

Commission filed a motion to dismiss the appeal, arguing that

Appellant failed to raise reviewable issues in its Initial

Brief. Appellant filed a response stating that her claim that

Resolution P35-07 was based on a material misrepresentation is a

proper issue for review because it is a claim that the Planning

Commission failed to comply with the essential requirements of

law.

The Alleged Misrepresentation

At the public hearing before the Planning Commission held

on July 25, 2007, one of the issues raised by persons opposed to

the proposed site plan was that it had not been properly

approved by the cooperative unit owners within KLOR. Their

claim of invalidity was based on Section 719.1055, Florida

Statutes (2007), which prohibits an amendment to the cooperative

documents which materially changes the configuration or size of

any cooperative unit, or makes other material changes identified

in the statute, unless all unit owners approve the amendment.

Appellant and some other unit owners claim that the site plan

approved by Resolution P35-07 makes the kinds of material

changes which all unit owners must approve, but such approval

was not obtained.

The other parties did not concede that approval of the site

plan requires the agreement of 100 percent of the cooperative

unit owners. Whether 100 percent approval is required is one of

the issues to be resolved in the case that is pending in the

circuit court.

In his presentation to the Planning Commission, the

attorney for KLOR made the following statement:

The law requires when a co-op changes in

material fashion the ownership interest of

the property that it be put to a vote of the

shareholders. I’m always the one that gets

to keep the original ballots. I’ve been

holding original ballots for elections now

for a couple of years. These are the

original ballots of the site plan that was

sent out in March of '02 and '03.

I will tell you there is a difference. At

that time, we put a tennis court where the

waste plant was because we thought the Key

Largo Waste Plant would be in effect. We’ve

had to change that. Other than that, the

lots and sizes and everything were the

same. There are 285 members, shareholders,

that have to vote. 51 voted against it.

That’s 85 percent approval.

Appellant claims this is a misrepresentation because the

cooperative unit owners did not vote on the site plan approved

by Resolution P35-07. In the discussion quoted above, however,

KLOR’s counsel did not say that the cooperative unit owners

voted on the site plan that was before the Planning Commission.

He made clear that the vote he was referring to was for an

earlier site plan.

Appellant further claims that the alleged misrepresentation

was material because the Planning Commission’s decision was

based on this misrepresentation. Appellant’s evidence for this

second claim is the following statement made at the public

hearing by the chairman of the Planning Commission:

We understand that 85 percent of the people

in this park have agreed to do this and

that’s the way our country operates, that’s

the way we operate, that’s majority rule,

and I’m afraid that’s going to be hard for

some of you, but that’s the way life is.

Appellant asserts that this statement shows that the

commissioners believed that the cooperative unit owners had

voted on the proposed site plan. However, it is reasonable to

infer that the chairman’s statement merely reflects what he was

told by KLOR’s attorney, that 85 percent of the unit owners had

agreed to an earlier site plan that was similar. Furthermore,

as explained below, the chairman's comment is not material.

Matters Outside the Record

Appended to Appellant’s Initial Brief are three documents

that are not part of the record created by the Planning

Commission. Appellant refers to these documents, in part, as

proof of factual issues presented in its Initial Brief. The

appended documents are (1) a motion filed in the circuit court,

(2) a transcript of the circuit court hearing on the motion, and

(3) the court’s order on the motion. These documents are not

part of the record on review and their inclusion with the

Initial Brief was improper. No consideration was given to the

documents by the Administrative Law Judge.

Legal Discussion

The Division of Administrative Hearings has jurisdiction

over the subject matter of this proceeding and of the parties

pursuant to Article XIV, Section 9.5-535, of the Monroe County

Code. Under Section 9.5-540(b), the scope of the hearing

officer’s review is stated as follows:

The hearing officer’s order may reject or

modify any conclusion of law or

interpretation of the Monroe County land

development regulations or comprehensive

plan in the planning commission’s order,

whether stated in the order or necessarily

implicit in the planning commission’s

determination, but he may not reject or

modify any findings of fact unless he first

determines from a review of the complete

record, and states with particularity in his

order, that the findings of fact were not

based upon competent substantial evidence or

that the proceeding before the planning

commission on which the findings were based

did not comply with the essential

requirements of law.

A hearing officer (administrative law judge) acting in his

or her appellate review capacity is without authority to reweigh

conflicting testimony presented to the Planning Commission. See

Haines City Community Development v. Heggs , 658 So. 2d 523, 530

(Fla. 1995).

The question on appeal is not whether the record contains

competent substantial evidence supporting the view of the

appellant; rather, the question is whether competent substantial

evidence supports the findings made by the Planning Commission.

Collier Medical center, Inc. v. Department of Health and

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

The question of whether the Planning Commission departed

from the essential requirements of law is the same as whether

the Planning Commission failed to apply the correct law. Haines

City Community Development , 658 So. 2d at 530. The correct law

to be applied in this particular case, which was not discussed

by Appellant, are the Monroe County Code criteria applicable to

the amendment of a major conditional use permit.

Appellant does not identify any criterion that the Planning

Commission failed to properly apply. Appellant does not allege

nor does the record show that there is any provision of the

Monroe County Code that requires, as a condition for the

amendment of a major conditional use permit, that an applicant

demonstrate that it has properly obtained the approval of its

unit owners, association members, board of directors, or any

other entity. Even assuming that Appellant is correct that the

statement of KLOR’s attorney was a misrepresentation, it was not

a material misrepresentation because it did not involve a

criterion that governed the Planning Commission’s decision.

There is no finding of fact in the Planning Commission’s

decision that Appellant claims is unsupported by competent

substantial evidence. There is no interpretation of the Monroe

County Code or other legal conclusion in the Planning

Commission’s decision that Appellant claims to be in error.

DECISION

Based on the foregoing, the appeal of Maria Barroso is

DISMISSED.

DONE AND ORDERED this 25th day of June, 2008, in

Tallahassee, Leon County, Florida.

BRAM D. E. CANTER

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 25th day of June, 2008.

COPIES FURNISHED :

Robert B. Shillinger, Jr., Esquire

Monroe County Attorney Office

Post Office Box 1026

Key West, Florida 33041-1026

John A. Jabro, Esquire

90311 Overseas Highway, Suite B

Tavernier, Florida 33070

Franklin D. Greenman, Esquire

Greenman, Manz & Ables

Gulfside Village, Suite 40

5800 Overseas Highway

Marathon, Florida 33050

Andrew M. Tobin, Esquire

Post Office Box 620

Tavernier, Florida 33070-0620

NOTICE OF RIGHTS

Pursuant to Article XIV, Section 9.5-540(c), Monroe County

Code, this Final Order is the final administrative action of

Monroe County. It is subject to judicial review by common law

certiorari to the circuit court in appropriate judicial circuit.