07-005735GM Salvador Gutierrez, Jr., Ed Lewis, Llc, C.O. Jones, Jr., Llc; Et. Al. vs. Monroe County And Department Of Community Affairs Status: Closed Recommended Order on Tuesday, October 14, 2008.

Summary: Ordinance detailing the beneficial use determination process was consistent with Principles for Guiding Development in the Florida Keys.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SALVADOR GUTIERREZ, JR., ED )

LEWIS, LLC, C.O. JONES, JR., )

LLC, BILL ATKINS AND BONNIE )

ATKINS, ARTHUR ANGELICA AND )

PATRICIA ANGELICA, GIRALDO )

CASTELLON, JAMES CHEEK AND )

AUDREY CHEEK, GARY G. GRAVES, )

JEAN-SEBASTIEN GROS, RUTH )

HINDELANG, CHARLES HUMPHRIES )

AND JOAN HUMPHRIES, CHARLES N. )

LIEBNITZER TTE, NELLIE DALE )

LIGHTNER, VIGINIA SADLER, JAMES )

DAVIDSON, DUFFIELD MATSON, ) )

GLORIA MATSON-ZAPF TTE, JAMES )

MONTEFUSCO AND KATHLEEN )

MONTEFUSCO, HAROLD OLSEN AND )

BEVERLEY OLSEN, CRAIG OSBORNE, )

JHN PALMER TTE, PAPA CONCH LLC, )

ERNEST C. POPPLEIN, ANDRES )

REINO, GARY SANDS, SCOTT )

STRAHAN, ROGER AKERS, SANDRA )

HENNING T/C, IDA MAE CORENBLUM, )

MARILYN SCHWACK TR, BELLA )

SCHWARTZ, E & O LAND )

DEVELOPMENT CORP., ENOS )

MITCHELL, RICHARD MELAHN, )

STEPHEN ROHATY, HERBERT SHAW, )

JR., DAVID T. VOIT, KENNETH R. )

WILSON and CHRISTINE E. WILSON )

T/E, )

)

Petitioners, )

)

vs. ) Case No. 07-5735GM

)

MONROE COUNTY and DEPARTMENT OF COMMUNITY AFFAIRS, )

)

)

Respondents. )

RECOMMENDED ORDER

On June 24, 2008, a final administrative hearing was held in

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

Administrative Law Judge, Division of Administrative Hearings

(DOAH).

APPEARANCES

For Petitioners: James S. Mattson, Esquire

Post Office Box 586

Key Largo, Florida 33037-0586

For Department of Community Affairs:

Richard E. Shine, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

For Monroe County:

Derek V. Howard, Esquire

Monroe County Attorney's Office

1111 12th Street, Suite 408

Key West, Florida 33040-3005

STATEMENT OF THE ISSUE

The issue in this case is whether Monroe County Ordinance

035-2007, which amends the County's Beneficial Use Determination

(BUD) procedures, is consistent with the Principles for Guiding

Development in the Florida Keys Area of Critical State Concern

(ACSC), which are in Section 380.0552(7), Florida Statutes (the

Principles for Guiding Development).

PRELIMINARY STATEMENT

On October 28, 2007, the Department of Community Affairs

(DCA, or Department) entered its Final Order No. DCA07-OR-263,

which determined that Monroe County Ordinance 035-2007 was

consistent with the Principles for Guiding Development. While

denominated a Final Order, it actually was notice of DCA's intent

to make a final determination as to the validity of Ordinance

035-2007, and the Petitioners timely challenged DCA's intended

action by filing a Petition for Formal Administrative Proceeding

(Petition). The Petition was referred to DOAH for assignment of

an Administrative Law Judge to conduct a hearing, which was

noticed for June 24-26, 2008, in Key West.

At the final hearing, the County presented the testimony of

Marlene Conaway and Edward Tyson Smith and had County Exhibits 1,

3, 4, and 5 admitted in evidence. The Department called Mayte

Santamaria and had DCA Exhibits 1 and 2 admitted in evidence.

Petitioners called Salvador Gutierrez, Jr., James S. Mattson, and

Robert Gallaher. Since Mr. Mattson is one of the attorneys

representing Petitioners, he was allowed to testify only to

matters that were uncontested or a formality, and there was no

reason to believe that substantial evidence would be offered in

opposition to his testimony. See Rule 4-3.7, Rules Regulating

The Florida Bar. Petitioners had one Exhibit admitted in

evidence.

After presentation of evidence, initially no party ordered a

transcript of the final hearing, and the parties were given until

July 24, 2008, to file proposed recommended orders (PROs).

However, DCA decided to order a transcript, and the parties were

given 21 days after the filing of the Transcript to file PROs.

The Transcript was filed on August 11, 2008, making PROs due by

September 1, 2008. No party has filed a PRO. However, DCA and

the County have filed a Motion to Dismiss, to which Petitioners

have responded. The Motion to Dismiss, which argues the evidence

presented at the final hearing, is denied; the issues raised in

the Motion to Dismiss are treated in this Recommended Order.

FINDINGS OF FACT

1. Monroe County Ordinance 035-2007 was adopted on July 18,

2007. The Ordinance makes changes in the County's BUD

procedures, non-judicial procedures by which a property owner may

seek relief from the literal application of County Comprehensive

Plan provisions and land development regulations (LDRs). It

repeals Article VI, Division II, Sections 9.5-171 through 9.5-174

of the Monroe County Code and replaces them with Sections 9.5-171

through 9.5-179.

2. The Petition alleges that Ordinance 035-2007 is

inconsistent with the Principles for Guiding Development because

it increases the time and expense of obtaining a BUD. The

Petition also alleges that Ordinance 035-2007 exacerbates

"condemnation blight" in the Florida Keys and will hold down the

apparent market value of undeveloped land in the Florida Keys so

that the State and County can acquire undeveloped lands at less

than fair market value.

Petitioners

3. There was no evidence to prove the standing of several

of the Petitioners. The evidence presented on Petitioners'

standing is reflected in the following findings of fact.

4. Salvador Guttierrez filed for a BUD determination on a

lot he owns in Rock Harbor in the Florida Keys and that the

application was denied under the BUD procedures in effect at this

time (i.e. , before the challenged amendments.)

5. The following Petitioners "own land, vacant land, in

Monroe County": Roger Akers and Sandra Henning, as tenants in

common; Ida Mae Cornblum and Marilyn Schwack, as tenants in

common, and Bella Schwartz; E&O Land Development Corp. and Enos

Mitchell; Richard Melahn; Stephen Rohaty; Herbert Shaw, Jr.;

David T. Voit; and Kenneth R. Wilson and Christine E. Wilson, as

tenants by the entirety. It was alleged that those Petitioners

intend to file BUD applications, but there was no evidence to

that effect.

6. Ed Lewis, LLC, and C.O. Jones, Jr., LLC, own undeveloped

platted lots with platted access roads in the Florida Keys that

have been acquired beginning in 2003. Mr. Gutierrez testified

without contradiction that eighty-five percent of those lots

cannot be developed as currently zoned, are unlikely to be

rezoned, and cannot obtain building authorization under the

County's Rate-of-Growth Ordinance (ROGO) because they are in Tier

1 of the County's new Tier System. He also testified without

contradiction that the LLCs have decided to file BUD applications

on those lots.

Effect of Amendments

7. The Petition alleges that Ordinance 035-2007 will

increase the time and expense of obtaining a BUD.

8. Without Ordinance 035-2007, applicants in the BUD

process learn the requirements of obtaining a BUD during the

processing of an application. As a result, the process can take

more time and cost more. Ordinance 035-2007 essentially details

the requirements of obtaining a BUD and places time limits on BUD

procedures. This makes the process more predictable and

coherent. Ordinance 035-2007 does not make substantive changes

or other significant procedural changes.

9. By better detailing the BUD process, Ordinance 035-2007

improves the BUD process and makes it more efficient, making it

more consistent with Comprehensive Plan Future Land Use Element

Policy 101.18.5, which requires the adoption of the BUD

procedure. In so doing, Ordinance 035-2007 will strengthen the

County's capabilities for managing land use and development so

that it is able to achieve these objectives without the

continuation of the Florida Keys ACSC designation. It also will

help to ensure the maximum well-being of the Florida Keys and its

citizens through sound economic development and help protect the

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

Keys and maintain the Florida Keys as a unique Florida resource.

10. It was not proven that Ordinance 035-2007 will increase

the time or expense of obtaining a BUD.

11. There was evidence that the State and County have

purchased undeveloped lands in the Florida Keys at lower prices

than some other properties in the Florida Keys. It was not

proven that there is "condemnation blight" in the Florida Keys

(or that Ordinance 035-2007 will exacerbate "condemnation blight"

in the Florida Keys ). It also was not proven that Ordinance

035-2007 will hold down the apparent market value of undeveloped

land in the Florida Keys so that the State and County can acquire

undeveloped lands at less than fair market value.

CONCLUSIONS OF LAW

12. All land development regulations adopted within an area

of critical state concern must be consistent with the Principles

Stat.

13. If DCA enters a final order approving or rejecting an

ordinance in an area of critical state concern, and the final

order is challenged, the proceeding on the challenge is conducted

under Section 120.57(1), Florida Statutes. The proceeding is de

novo , and DCA has the burden of proving the validity of the final

order. See § 380.05(6), Fla. Stat.; Rathkamp, et al. v.

Department of Community Affairs , Case No. 97-5952, 1998 Fla. ENV

LEXIS 342 (DOAH September 30, 1998; DCA December 4, 1998), aff’d ,

740 So. 2d 1209 (Fla. 3d DCA 1999); Abbe, et al. v. Department of

Community Affairs, et al. , Case No. 99-0666GM, 99-0667GM, 99-

1081DRI 2001 Fla. ENV LEXIS 53 (DOAH August 30, 2000; DCA March

13, 2001). The standard of proof required of the Department in

this situation is a preponderance of the evidence. See §

120.57(1)(j), Fla. Stat.

Standing of Petitioners

14. To have standing, a person must allege and prove an

injury which is of sufficient immediacy and of the type and

nature intended to be protected by the pertinent statutes and

rules. See §§ 120.52(12) and 403.412(5), Fla. Stat. (2007). See

also Agrico Chemical Co. v. Dept. of Environmental Reg. , 406

So. 2d 478, 482 (Fla. 4th DCA 1981). The person asserting

standing has the burden of proof. See Dept. of Health and Rehab.

Services v. Alice , 367 So. 2d 1045, 1052 (Fla. 1st DCA 1979).

15. Some of the Petitioners presented no evidence as to

their standing.

16. As to the other Petitioners, Respondents take the

position in this case that Petitioners must prove the filing or

imminent filing of a valid BUD application in order to prove

sufficient immediacy of Ordinance 035-2007’s effect on them under

the legal authorities. This position is rejected.

17. On the other hand, mere ownership of undeveloped land

in Monroe County is insufficient proof of an immediate effect

from Ordinance 035-2007. For that reason, the following

Petitioners did not prove their standing to challenge Ordinance

035-2007: Roger Akers; Sandra Henning; Ida Mae Cornblum; Marilyn

Schwack; Bella Schwartz; E&O Land Development Corp.; Enos

Mitchell; Richard Melahn; Stephen Rohaty; Herbert Shaw, Jr.;

David T. Voit; Kenneth R. Wilson; and Christine E. Wilson.

18. The following Petitioners not only proved ownership of

undeveloped land in Monroe County, they also proved sufficient

immediacy of the effect of Ordinance 035-2007 on them: Salvador

Gutierrez, Jr.; Ed Lewis, LLC; and C.O. Jones, Jr., LLC. For

that reason, they proved their standing to challenge Ordinance

035-2007.

19. Respondents contend that Salvador Gutierrez, Jr., did

not prove standing because he has had a BUD application denied.

But if he re-applies, he will be governed by the BUD procedures

set out in Ordinance 035-2007. For that reason, he still has

standing.

Applicable Guiding Principles

20. The legislative intent of the "Florida Keys Area

Statutes:

(a) To establish a land use management

system that protects the natural environment

of the Florida Keys.

(b) To establish a land use management

system that conserves and promotes the

community character of the Florida Keys.

(c) To establish a land use management

system that promotes orderly and balanced

growth in accordance with the capacity of

available and planned public facilities and

services.

(d) To provide for affordable housing in

close proximity to places of employment in

the Florida Keys.

(e) To establish a land use management

system that promotes and supports a diverse

and sound economic base.

(f) To protect the constitutional rights of

property owners to own, use, and dispose of

their real property.

(g) To promote coordination and efficiency

among governmental agencies with permitting

jurisdiction over land use activities in the

Florida Keys.

21. The Principles for Guiding Development in the Florida

Keys are set forth in Section 380.0552(7)(a)-(l), Florida

Statutes:

(a) To strengthen local government

capabilities for managing land use and

development so that local government is able

to achieve these objectives without the

continuation of the area of critical state

concern designation.

(b) To protect shoreline and marine

resources including mangroves, coral reef

formations, seagrass beds, wetlands, fish and

wildlife, and their habitat.

(c) To protect upland resources, tropical

biological communities, freshwater wetlands,

native tropical vegetation, (for example,

hardwood hammocks and pinelands), dune ridges

and beaches, wildlife, and their habitat.

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

Florida Keys and its citizens through sound

economic development.

(e) To limit the adverse impacts of

development on the quality of water

throughout the Florida Keys.

(f) To enhance natural scenic resources,

promote aesthetic benefits of the natural

environment, and ensure that development is

compatible with the unique historic character

of the Florida Keys.

(g) To protect the historical heritage of the

Florida Keys.

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

effectiveness, and amortized life of existing

and proposed major public investments,

including:

1. The Florida Keys Aqueduct and water

supply facilities;

2. Sewage collection and disposal

facilities;

3. Solid waste collection and disposal

facilities;

4. Key West Naval Air Station and

other military facilities;

ansportation facilities;

6. Federal parks, wildlife refuges, and

marine sanctuaries;

7. State parks, recreation facilities,

aquatic preserves, and other publicly

owned properties;

8. City electric service and the

Florida Keys Electric Co-op; and

9. Other utilities, as appropriate.

(i) To limit the adverse impacts of public

investments on the environmental resources of

the Florida Keys.

(j) To make available adequate affordable

housing for all sectors of the population of

the Florida Keys.

(k) To provide adequate alternatives for the

protection of public safety, and welfare in

the event of a natural or manmade disaster

and for a post-disaster reconstruction plan.

(l) To protect the public health, safety,

and welfare of the citizens of the Florida

Keys and maintain the Florida Keys as a

unique Florida resource.

22. The introductory language in Section 380.0552(7),

Florida Statutes, states in pertinent part:

State, regional, and local agencies and units

of government in the Florida Keys Area shall

coordinate their plans and conduct their

programs and regulatory activities consistent

with the principles for guiding development

. . . . For the purposes of reviewing

consistency of the adopted plan or any

amendments to that plan with the principles

for guiding development and any amendments to

the principles, the principles shall be

construed as a whole and no specific

provision shall be construed or applied in

isolation from the other provisions.

This statutory language establishes a balancing test. An LDR

which is not entirely consistent with a single principle should

not be rejected for that reason alone if it furthers other

principles and is consistent with the Principles as a whole.

23. Ordinance 035-2007 is consistent with Principles (a),

(d), and (l); it is not inconsistent with the other Principles;

and it consistent with the Principles as a whole.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that that the Department of Community Affairs

enter a Final Order that Monroe County Ordinance 035-2007 is

consistent with the Principles For Guiding Development for the

Florida Keys Area of Critical State Concern.

DONE AND ENTERED this 14th day of October, 2008, in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 14th day of October, 2008.

COPIES FURNISHED:

Thomas Pelham, Secretary

Department of Community Affairs

2555 Shumard Oak Boulevard

Suite 100

Tallahassee, Florida 32399-2100

Shaw Stiller, General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard

Suite 325

Tallahassee, Florida 32399-2160

James S. Mattson, Esquire

Post Office Box 586

Key Largo, Florida 33037-0586

Derek V. Howard, Esquire

Monroe County Attorney's Office

1111 12th Street, Suite 408

Key West, Florida 33040-3005

Andrew M. Tobin, Esquire

Post Office Box 620

Tavernier, Florida 33070-0620

Richard E. Shine, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

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

this Recommended Order should be filed with the agency that will

issue the final order in this case.