11-005619 Vof, Llc vs. Monroe County Planning Commission And Brian And Chris Lancaster Status: Closed DOAH Final Order on Wednesday, June 27, 2012.

Summary: Planning Commission Resolution denying application for conditional use permit did not depart from essential requirements of the law, nor did the Commission's actions deny due process to applicant.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VOF, LLC, ) )

Appellant, ) )

vs. ) Case No. 11-5619

)

MONROE COUNTY PLANNING )

COMMISSION AND BRIAN AND )

CHRIS LANCASTER, )

)

Appellees. )

________________________________)

FINAL ORDER

Pursuant to section 102-185(f), Monroe County Code (M.C.C.),

Appellant, VOF, LLC (VOF or Appellant), seeks review of Monroe

County Planning Commission (Commission) Resolution No. P29-11

rendered on September 14, 2011, which denied Appellant's appeal

of Development Order 02-11 issued on March 21, 2011. The

Development Order denied VOF's application for a minor

conditional use permit to redevelop an existing single-family

residence as a "rental management company," coupled with a guest

swimming pool and related amenities. A seven-volume Record of

the underlying proceeding was filed on December 12, 2011. A

140-page Supplemental Record consisting of Exhibits A and B was

filed by Appellant on January 11, 2012. On February 1, 2012,

Appellant submitted an Initial Brief. Monroe County (County) and

Appellees, Brian and Chris Lancaster (Intervenors or the

Lancasters), who own a single-family residence adjacent to the

subject property, filed separate Answer Briefs on March 20, 2012.

Appellant submitted its Reply Brief on April 17, 2012. Oral

argument was heard by video teleconference at facilities in

Marathon and Tallahassee on May 23, 2012. The parties waived

their right to file proposed final orders.

ISSUES

Appellant raises three issues on appeal: (1) whether the

Commission departed from the essential requirements of the law by

determining that VOF's proposed swimming pool is not part of a

"resort hotel"; (2) whether the Commission departed from the

essential requirements of the law by determining that VOF's

proposed swimming pool is an inappropriate use in the Destination

Resort (DR) zoning district; and (3) whether the Commission

denied VOF due process by allowing Intervenors to present

evidence at the Commission hearing on July 13, 2011. For the

reasons expressed below, the Commission did not depart from the

essential requirements of the law when it rendered Resolution No.

P29-11, and it did not deny VOF due process during its hearing.

BACKGROUND

A lengthy procedural history dating back almost five

years precedes this appeal. The subject property is located at

1128 Greenbriar Road on Duck Key in an unincorporated part of

the County. Much of Duck Key's development is governed by a

Development of Regional Impact (DRI) approved by the County on

December 4, 1986, and includes the Hawks Cay Resort Hotel. The

DRI agreement has now expired. The parties agree, however, that

the DRI is not an issue in the case. Although located on the

same Key as the resort, the subject property and around 250 other

"units" (many of which are used for rental purposes) are not

owned by, or affiliated with, the Hawks Cay Resort Hotel.

VOF purchased the property on January 22, 2008. It consists

of approximately 10,500 square feet, or around one-quarter acre;

only a vacant single-family home (664 square feet), built in

1966, sits on the parcel. A small canal runs between Greenbriar

Road and Indies Drive to the south; the Lancasters reside at 115

Indies Drive, which is directly across the canal from the subject

property.

The property lies within the DR zoning district, which is

contemplated to contain two principal uses: "single-family homes

as of right" and "one or more resort hotels as the principal use

. . . on sites of at least ten gross acres." § 130-32, M.C.C.

Section 130-81 defines the specific uses allowed as-of-right in

the district, as well as the permitted minor and major

conditional uses. Section 130-81(b) provides that a resort hotel

is allowed in the DR district as a minor conditional use but only

if the hotel is located on a site having at least ten gross acres

and has the ten features (amenities) enumerated in section 130-

commercial retail feature.

On December 14, 2007, when VOF had a contract to purchase

the property, and again on February 1, 2008, VOF's agent,

Mr. Craig, attended two pre-application conferences with County

staff to discuss a proposal to convert the single-family

residence into a guest check-in/welcome center, construct a

swimming pool for the benefit and use of the owners and guests of

units not affiliated with Hawks Cay Resort Hotel, and carry out

related improvements, such as adding a dock area around the pool,

a tiki hut, landscaping, and additional off-street parking. 1

In response to VOF's inquiry, on March 5, 2008, the Senior

Director of the Planning and Environmental Resources Department

(Department) issued a Letter of Understanding. See R., 666-671.

This document reflects the substance of the pre-application

conference. See § 110-3, M.C.C. The Letter of Understanding

concluded that the proposed redevelopment could be classified as

"accessory uses/structures" in that they would be subordinate to

and serve the principal structures and uses, i.e. , the off-site

vacation rental homes. However, the Letter of Understanding

pointed out that under section 9.5-4(A-2) (now renumbered as

section 101-1) an accessory use or structure must be "on the same

lot [as the principal structures or use] or on contiguous lots

under the same ownership." Therefore, the Letter of

Understanding concluded that the accessory uses, including the

pool, could not be built since the vacation rental homes to be

serviced by the proposed amenities were located off-site. As

authorized by the M.C.C., VOF appealed the March 5, 2008 Letter

of Understanding to the Commission, which scheduled a hearing on

the appeal on July 23, 2008, but the item was tabled pending

further discussions by VOF and staff.

Before the first appeal was heard, on September 25, 2008,

VOF's agent took a different tack and submitted a letter to the

Department asking if the land development regulations (LDRs)

allowed the subject property, as a matter of right, to be used as

a "rental management company use specializing in vacation rental

management on Duck Key." R., 673-674. As-of-right means that

except for securing a building permit, an applicant requires no

special approval from the County to establish a use. The letter

noted that a number of commercial retail uses were operating in

the DR zoning district within the greater Marathon area,

including at least six rental management companies, that were

incidental to, and not directly supportive of, the principal uses

allowed in the zoning district. The letter further indicated

that these entities were allowed to operate with only a building

permit and business license. Although Appellant contends that

its letter was intended to apply to the original development

proposal that was the subject of the first Letter of

Understanding, the letter did not mention that the request

related to the previously rejected redevelopment plan nor did it

mention a swimming pool, a tiki hut, or any other recreational

use. For this reason, the County staff has consistently treated

VOF's inquiry as relating only to an office.

After a pre-application conference was held, on November 24,

2008, the Department issued a second Letter of Understanding

denying the request on the ground a rental management company was

not an as-of-right permitted "commercial/retail use" in the

DR zoning district. See R., 676-677. It also stated that while

section 9.5-243 (now section 130-81) allowed such a commercial

use as a minor conditional use, this was permissible only if

there was a resort hotel on the subject property in the first

instance. Because there was no "resort hotel" on the subject

property, the second Letter of Understanding concluded that the

proposed use was not permitted in the DR zoning district. The

second Letter of Understanding did not discuss the use of a

swimming pool on the property but simply responded to VOF's

specific request for an interpretation of the County's LDRs

concerning "whether or not a commercial/office use, referred to

as an independent rental management company, can be approved on

the [subject property as a matter of right]." R., 676.

Appellant then timely appealed the second Letter of Understanding

to the Commission.

Pursuant to advice from Commission counsel, the appeals of

the first and second Letters of Understanding were treated as

separate appeals, and they were heard as consecutive items at a

lengthy Commission hearing on February 25, 2009. See R., 212-

600. Over VOF's objection, the Lancasters were allowed to

intervene in opposition to both appeals. After a vote on the

first appeal was taken, in an effort to streamline the second

appeal and avoid repetitive matters, the parties agreed to

incorporate the transcription of the first appeal, up to the

motion and vote, into the transcript of the second appeal. See

R., 365-366. The purpose of the "insert" was to incorporate the

lengthy testimony concerning procedural issues and the history of

Duck Key as a DRI presented during the first appeal; however, it

was not intended to change the nature of the second appeal. No

other elements of the first appeal, including the site plan for

the redevelopment, were incorporated into the record of the

second appeal. Finally, the parties agreed that the part of the

first appeal that dealt with accessory uses was "irrelevant" to

the issues raised in the second appeal. Id.

On April 8, 2009, the Commission issued Resolution No. P11-

09, which upheld the first Letter of Understanding. See R., 679-

683. In doing so, the Commission concluded, as did the

Department below, that because the accessory and principal uses

were not located on the same lot or on contiguous lots under the

same ownership, the proposal did not meet the requirements of the

LDRs. This decision was not appealed by VOF.

By a 4-1 vote, the Commission also issued Resolution No.

P12-09 on April 8, 2009, which ruled in favor of Appellant on its

appeal of the second Letter of Understanding. See R., 685-693.

As described in Resolution No. P12-09, the "precise" issue

decided by the Commission was whether section 9.5-243 (now

section 130-81) authorized "a proposed rental management company"

on the subject property. R., 685. On this narrow issue, the

Resolution determined that (a) the proposed rental management

company is a "commercial retail" use within the meaning of

section 130-81(b)(10); (b) this type of commercial retail use is

allowed as a minor conditional use in the DR zoning district; and

(c) the proposed rental management company will be operated in

connection with a resort hotel. R., 692. The Resolution

concluded by stating that it was approving "the administrative

appeal request of [VOF] to overturn a decision . . . that a

proposed rental management company may not be permitted" on VOF's

property. Id. While the Resolution does not explain the basis

for the Commission's conclusion that the office would serve a

resort hotel, and the record is vague and confusing on this

point, 2 the Commission apparently construed an unknown number of

off-site rental properties on the Key, not owned or affiliated

with the Hawks Cay Resort Hotel, as a "resort hotel" with whom

the rental management company would be associated. The

Resolution noted, however, that the proposed change in use on the

property from vacant residential to commercial would require VOF

to obtain a minor conditional use permit. 3 Notably, no reference

is made in the Resolution to the proposed "guest swimming pool"

except in Finding of Fact 5, which recites the action taken in

the first appeal memorialized in Resolution No. P11-09. R., 687.

Appellees contend the Resolution's determination that the

transient rental units constituted a "resort hotel" is "patently

in error." However, neither party appealed the Resolution since

they believe it simply authorizes VOF to apply for a minor

conditional use permit to operate a rental management office, but

with no recreational uses, such as a pool, and they are willing

to accept this small change on the property.

Fourteen months later, on August 24, 2010, VOF's agent

submitted to the Planning Director a minor conditional use permit

application. See S.R., 0003-0108. The application was

subsequently revised on December 9, 2010. See S.R., 0109-140.

As described in the cover letter to the application, VOF proposed

to establish a "rental management company in the existing single-

family structure," including certain "features and accessory

uses." Among the features and accessory uses were "an accessory

use swimming pool and associated equipment . . . for the use of

the customers . . . [and] the employees of the company as an

employment benefit." S.R., 0003. The cover letter further

explained that while rental management functions would be

performed on the subject property, "no key pick up or welcoming

functions will occur at this site." Id. In other words, rather

than the property serving as a guest check-in/welcome center, the

main use would be a guest swimming pool. 4

Under section 110-69, a minor conditional use permit

application is first reviewed by the Development Review Committee

(DRC), composed of several members of the County staff, which

forwards a report and recommendations to the Planning Director,

who then renders a development order. Any affected person

dissatisfied with the development order may then appeal that

decision to the Commission. See § 102-185, M.C.C. There are

nine standards for consideration in determining whether a

conditional use should be approved. See § 110-67(1)-(9), M.C.C.

A meeting of the DRC was conducted on January 25, 2011. See

R., 158-209. Presentations were made by the County, VOF, and

Intervenors. The County staff characterized the application as

simply a request to build a swimming pool and rental management

company at the site. The staff noted that Resolution No. P12-09

only approved a vacation rental management company, and nothing

more, but that VOF had "decided to add back in the pool, and just

reclassify it no longer as an accessory use, but as a component

of the minor conditional use or principal use." R., 159. To be

consistent with what it believed Resolution No. P12-09

authorized, the staff recommended that a development order be

issued approving a permit for the rental management company,

requiring a revised site plan, and removing the swimming pool and

associated equipment. Because a swimming pool had been added to

the application, the staff also addressed that issue. It first

noted that the pool would be used by different people not

associated directly with the retail use but with the off-site

rental properties, and thus it could create issues for other

residents in the neighborhood, such as the Lancasters, and be

inconsistent with the community character in the immediate

vicinity of the use. Also, the staff briefly noted that the

adverse visual effects of the pool may not have been sufficiently

minimized, and that a guest swimming pool on the property may

have an adverse effect on the values of adjacent properties.

VOF argued that the pool had always been a part of the

second appeal, and that Resolution No. P12-09 approved the

management rental office with a swimming pool as permitted uses

in the DR zoning district, subject to VOF obtaining a minor

conditional permit. VOF also contended that once the Commission

determined that the property would be operated in conjunction

with a resort hotel, and approved a rental management company as

a commercial retail feature of the hotel under section 130-

81(b)(10), it could rely on another part of the regulation,

section 130-81(b)(6), as authority to obtain a permit for the

pool as a feature of the hotel. However, in order to meet the

standards for a swimming pool under that provision, there must be

"active and passive water-oriented recreational facilities"

available on the property, and the pool must have at least "seven

square feet of water surface (excluding hot tubs and Jacuzzi) per

hotel room." Assuming arguendo that a swimming pool was

implicitly approved by the Commission in Resolution No. P12-09,

VOF submitted no evidence to the DRC to show that it complied

with these requirements. Also, VOF could not provide the number

of persons who might be using the pool.

On March 21, 2011, the Planning Director issued Development

Order 02-11, which denied VOF's request for a minor conditional

permit to renovate the existing single-family home, construct a

swimming pool, and make other associated site improvements. See

R., 655-664.

To begin with, the Development Order noted that the second

administrative appeal "only concerned the vacation rental

management company and a swimming pool was not considered."

R., 661. It also acknowledged that Resolution No. P12-09

determined that a rental management company may be permitted on

the subject property so long as it is associated with a resort

hotel and meets the requirements for a minor conditional use

permit. Id. As to VOF's proposed swimming pool, the Development

Order referred to section 110-67, which enumerates the standards

applicable to all conditional uses. In the Conclusions of Law,

the Order determined that the applicant did not meet the standard

in section 110-67(2), which requires that the conditional use be

consistent with the community character of the immediate vicinity

of the parcel proposed for the development. Id. The Order also

concluded that the applicant did not meet the standard in section

110-67(3), which requires that the design of the proposed

development minimize adverse effects, including visual impacts,

of the proposed use on adjacent properties. R., 662. The Order

further concluded that the applicant did not meet the standard in

section 110-67(4), which requires that the proposed use not

adversely affect the value of surrounding properties. Id.

However, the County now admits this conclusion is "not supported"

by the record. See County's Answer Brief, p. 7. Finally, the

Development Order observed that all of the deficiencies were

related to the swimming pool but that VOF could reapply for a

vacation rental management center at any time. See R., 663.

Pursuant to section 102-185, VOF timely appealed the

Development Order to the Commission. See R., 631-642. The staff

prepared a report dated July 1, 2011, in which it continued to

support the denial of the minor conditional use permit

application on the basis of its inclusion of the guest swimming

pool. See R., 648-653. On July 13, 2011, the Commission

conducted a hearing on the appeal. See R., 1-137. The hearing

was properly noticed by the Appellant. Appellant points out that

by now, the composition of the Commission had changed since

Resolution No. P12-09 had been adopted in February 2009, and only

two members who had heard that appeal were still on the panel.

At the outset of the hearing, argument of counsel was heard

regarding the intervention of the Lancasters and the scope of the

proceeding. The Lancasters had previously been granted

intervenor status in the two earlier administrative appeals and

had participated in the DRC meeting. Over the objection of VOF,

the Commission voted to allow the Lancasters to participate as an

intervening party and to allow their expert to address, by

testimony and submission of an exhibit, the issues raised in the

appeal. VOF maintains that this action violates a procedural

requirement in the code.

Besides the participation of the staff, the parties'

counsel, and Intervenors' expert, one member of the public,

Bill Crowley, who resides at 120 Indies Drive just across the

canal to the south of the site, spoke briefly in opposition to

the application.

As to the scope of the hearing, Appellees agreed that even

though Resolution No. P12-09 was based on a faulty interpretation

of the LDRs, it was now final and Appellant could convert the

residence to a rental management office as a minor conditional

use, but no other uses were permitted. Thus, they contended the

only issue to be decided was whether to approve or deny the

Development Order, which denied VOF's application for a minor

conditional use permit to construct a swimming pool, but gave VOF

the option to reapply for a rental management office at any time.

On the other hand, VOF argued that Resolution No. P12-09

already determined that the off-site vacation rental units

constituted a "resort hotel," that a rental management office and

pool were commercial retail uses expressly permitted by the LDRs

in the DR zoning district, and that both uses would be operated

in connection with a resort hotel. Because the Resolution had

never been appealed and these determinations were now binding,

VOF argued that the Commission was required to overturn the

Development Order and approve the application.

At the conclusion of the hearing, the Commission voted

unanimously to uphold Development Order 02-11 and deny

Appellant's appeal. That decision is embodied in Resolution

No. P29-11 rendered on September 14, 2011. See R., 149-153.

Prior to its vote, the Commission specifically noted that it was

not considering the testimony and memorandum presented by

Intervenors' expert, but was relying solely on the staff report

and the record below. See R., 135. Appellant points out,

however, that the Resolution contains language in a preamble

whereas clause that the Commission reviewed the sworn testimony

of Intervenors' expert and his memorandum, which were made a part

of the record below. See R., 150-151. Appellees respond that

the penultimate paragraph of the Resolution clarifies exactly

what the Commission considered, i.e. , "only on the record below,

and the staff report with attachments[.]" R., 152.

The Resolution made the following findings of fact:

1. The subject property is located in a

Destination Resort (DR) District. 2. The subject property has a Future Land

Use Map (FLUM) designation of Mixed Use/

Commercial. 3. The tier map overlay designation of the

subject property is Tier 3.

4. The proposed redevelopment plan involves

converting an existing single-family

residence into a rental management office,

constructing a swimming pool for customers of

the rental management office, redesigning

off-street parking areas to accommodate the

new use, and carrying out associated

improvements. The use of the rental

management office would serve customers in

any location but the pool would be only for

customers of the rental management office who

are renting vacation rental units on Duck

Key. 5. Following the [DRC] public meeting on

January 25, 2011, the Senior Director of

Planning & Environmental Resources denied the

minor conditional use permit for the proposed

development plan, which was memorialized in

Development Order No. 02-11. 6. A resort hotel is permitted with a minor

conditional use permit, provided the site

contains at least 10 acres and provides

several amenities listed in Section 130-

81(b)(6). One of the required amenities

listed in Section 130-81(b)(6) is active and

passive water-oriented recreational

facilities must be available, a minimum of a

swimming pool, or swimming areas, at the rate

of seven square feet of water surface

(excluding hot tubs and Jacuzzi) per hotel

room (this requirement may be converted to

linear feet of shoreline swimming area at a

ratio of one linear foot of beach per seven

square feet of required water surface.) In

order to have a swimming pool, the pool must

be part of a resort hotel on the same

property containing 10 acres. There is no

resort hotel on the subject property.

Therefore, the proposed swimming pool does

not comply with the requirements of the

Monroe County Code. 7. Pursuant to §102-185 of the Monroe County

Code, the Planning Commission shall have the

authority to hear and decide appeals from any

decision, determination or interpretation by

any administrative official with respect to

the provisions of the Monroe County Land

Development Code and the standards and

procedures hereinafter set forth, except that

the Board of County Commissioners shall hear

and decide appeals from administrative

actions regarding the floodplain management

provisions of the Land Development Code. 8. Planning & Environmental Resources

Department staff recommended upholding the

decision of the Senior Director of Planning &

Environmental Resources to deny the

administrative appeal request.

The Resolution also made the following Conclusions of Law:

1. The administrative appeal request is

allowed under provisions of the Monroe County

Land Development Code. 2. At the February 25, 2009 public hearing

regarding the second appeal, the Planning

Commission made the narrow decision that the

proposed rental management office may be

permitted with a minor conditional use

permit. 3. A swimming pool used by members of the

public who are customers of the rental

management office as proposed is not allowed

unless it is part of a resort hotel approved

under a minor conditional use permit as

prescribed in Monroe County Code §130-81(b).

R., 140-142. There is no resort hotel on the subject

property. LEGAL DISCUSSION

Pursuant to a contract between the Division of

On October 14, 2011, VOF timely appealed that decision. See

Administrative Hearings (DOAH) and the County, DOAH has

jurisdiction to consider this appeal under section 102-213. The

hearing officer "may affirm, reverse or modify the order of the

planning commission." § 102-218(b), M.C.C. In rendering a final

order, the hearing officer is subject to the following

limitations:

The hearing officer's order may reject or

modify any conclusion of law or

interpretation of the 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 the law.

Id.

"The hearing officer's final order shall be the final

administrative action of the county." § 102-218(c), M.C.C. The

order must be rendered "within 45 days of oral argument." § 102-

218(b), M.C.C.

The issue of whether the Commission "complied with the

essential requirements of the law" is synonymous with whether the

Commission "applied the correct law." Haines City Cmty. Dev. v.

Heggs , 658 So. 2d 523, 530 (Fla. 1995). When used as an appellate standard of review, competent

substantial evidence has been construed to be "legally sufficient

evidence" or evidence that is "sufficiently relevant and material

that a reasonable mind would accept it as adequate to support the

conclusion reached." DeGroot v. Sheffield , 95 So. 2d 912, 916

(Fla. 1957). So long as there is competent substantial evidence

supporting the findings, both implicit and explicit, made by the

Commission in reaching its decision, they will be sustained.

See , e.g. , Fla. Power & Light Co. v. City of Dania , 761 So. 2d

1089, 1093 (Fla. 2000); Collier Med. Ctr., Inc. v. Dep't of

Health & Rehab. Servs. , 462 So. 2d 83, 85 (Fla. 1st DCA 1985).

I. The correct interpretation of section 130-81

Section 130-81 lists the permitted uses within the DR zoning

district. It reads in relevant part as follows:

(a) The following uses are permitted as of

right in the destination resort district: (1) Single-family detached dwellings,

provided that the lot has sufficient land

area and dimensions to meet the requirements

of F.A.C. ch. 64E-6 [which relates to onsite

sewage treatment and disposal systems];

* * *

(b) The following uses are permitted as

minor conditional uses in the destination

resort district, subject to the standards and

procedures set forth in chapter 110, article

III: one or more resort hotels provided

that: (1) The hotel has restaurant facilities on

or adjacent to the premises that will

accommodate no less than one-third of all

hotel guests at maximum occupancy at a single

serving; (2) There are at least two satellite eating

and drinking facilities, each accommodating

at least 25 persons; (3) A separate meeting/conference and

entertainment area that can also function as

a banquet facility;

(4) A lobby that provides 24-hour telephone

and reservation service; (5) Active and passive recreation land-based

activities are available, with a minimum of

tennis courts or racquetball courts, or a

spa/exercise room, provided the standards

given below and at least two additional

active and one additional passive

recreational facility, including, but not

limited to, the following:

* * *

(6) Active and passive water-oriented

recreational facilities are available, a

minimum of a swimming pool, or swimming

areas, at the rate of seven square feet of

water surface (excluding hot tubs and

Jacuzzi) per hotel room (this requirement may

be converted to linear feet of shoreline

swimming area at a ratio of one linear foot

of beach per seven square feet of required

water surface): (7) Access to U.S. 1 by way of:

a. An existing curb cut;

b. A signalized intersection; or

c. A curb cut that is separated from

any other curb cut on the same side of

U.S. 1 by at least 400 feet; (8) Each hotel establishes and maintains

shuttle transport services to airports and

tourist attractions to accommodate ten

percent of the approved floor space in guest

rooms; and . . . . (9) On-site employee housing living space is

provided in an amount equal to ten percent of

the approved floor area in guest rooms; and

such housing shall be of any of the following

types: dormitory, studio, one bedroom, two

bedrooms and shall be in addition to the

approved hotel density and shall be used

exclusively by employees qualifying under the

employee housing provisions elsewhere in this

chapter; and

(10) Commercial retail is provided at a

minimum of 200 square feet to include

convenience retail, food sales and gifts in

one or more sites, excluding restaurants as

required by subsection (b)(1) of this

section, and in addition one and 1.3 square

feet commercial retail per each guest room

greater than 150 rooms. Additional

commercial retail may consist of dive shops,

boat rentals, gift shops, barber/beauty

services, travel agencies, provided that

there is no extension signage advertising

these amenities to the general public.

Water-related services and activities shall

be located immediately proximate to the water

unless otherwise prohibited.

Subsection (c) lists the major conditional uses allowed in the DR

zoning district, but they are not relevant to this controversy.

One of the first rules of statutory construction is that the

plain meaning of the statute (ordinance) is controlling. See

,

e.g. , Beshore v. Dep't of Fin. Servs. , 928 So. 2d 411, 412 (Fla.

1st DCA 2006). If the language is clear and unambiguous, as it

is here, there is no need to engage in statutory construction.

Id. at 412. Subsection (a) first defines the uses permitted as

of right (single-family detached dwellings), while subsections

(b) and (c) define the minor and major conditional uses permitted

within the DR district. Notably, subsection (b) provides that

the only minor conditional use permitted within the district is

"one or more resort hotels," which must be located on a site

containing at least ten or more gross acres and have the ten

features enumerated in paragraphs (b)(1) through (10) of the

regulation. See also § 130-32, M.C.C. ("Destination resorts are

contemplated to contain: (1) Single-family homes as of right; or

(2) One or more resort hotels as the principal use, . . . to be

located on sites of at least ten gross acres"). Paragraphs

resort hotel, provided the property contains one or more resort

hotels.

The regulation goes on to provide that the several

enumerated "uses" in paragraphs (b)(1) through (10) are not

themselves permitted as minor conditional uses. Rather, they are

mandatory features of "one of more resort hotels" and can only be

developed as part of a minor conditional use on the property,

i.e. , a resort hotel on ten or more gross acres. Otherwise,

under the guise that it is operating in connection with other

unidentified rental units located elsewhere in the Key, any

single-family site in the DR zoning district could be redeveloped

not only as a guest swimming pool, but as a restaurant, a

meeting/conference and entertainment area, a lobby providing 24-

hour telephone and reservation service, a recreational facility,

or any combination of the enumerated resort hotel features set

forth in those paragraphs, assuming it meets the standards for

those features. The result would be a nonsensical interpretation

of the regulation, and it would assume that the drafters intended

a patchwork of commercial, non-residential uses to emerge in

single-family neighborhoods. Therefore, section 130-81(b) cannot

be read as authorizing minor conditional use review, much less

approval, for a swimming pool or for any of the enumerated "uses"

because the "uses" are actually mandatory features of a resort

hotel. In sum, the amenities are only applicable to properties

consisting of one or more resort hotels.

II. Departure from the Essential Requirements of the Law

Resolution No. P29-11 sustained Development Order 02-11 and

determined, in Finding of Fact 6, that a "pool must be a part of

a resort hotel on the same property containing 10 acres"; that

"[t]here is no resort hotel on the subject property"; and that

"the proposed swimming pool does not comply with the requirements

of the Monroe County Code." R., 152. VOF contends these

findings are contrary to the Code and constitute a departure from

the essential requirements of the law. However, the findings are

consistent with the language in sections 130-32 and 130-81(b).

Section 130-32 provides that a destination resort hotel is

contemplated to be located on a site containing at least ten

gross acres of land; VOF's parcel is only one-quarter acre in

size. Section 130-81(b) defines the only conditional use allowed

in the DR district as one or more resort hotels. A guest

swimming pool is a required amenity or feature of a resort hotel,

not a stand-alone use to be located on an off-site parcel.

Finally, the findings are consistent with section 101-1, which

defines the words, terms, and phrases used in the LDRs, and makes

a clear distinction between a "hotel" and a "vacation rental." A

"hotel" means:

a building containing individual rooms for

the purpose of providing overnight lodging

facilities for periods not exceeding 30 days

to the general public for compensation with

or without meals, and which has common

facilities for reservations and cleaning

services, combined utilities and on-site

management and reception.

On the other hand, a "vacation rental or unit" means:

an attached or detached dwelling unit that is

rented, leased, or assigned for tenancies of

less than 28 days duration. Vacation rental

use does not include hotels, motels, RV

spaces, which are specifically addressed in

each district."

There is no single building on VOF's property that qualifies

as a "hotel," and there is no resort hotel with the amenities

listed in section 130-81(b)(1)-(10). Conversely, the transient

rental units scattered throughout the Key, and which the swimming

pool is intended to serve, are more akin to vacation rental

units, which by definition do "not include hotels." Thus, the

Commission correctly concluded in Resolution No. P29-11 that a

"swimming pool used by members of the public who are customers of

the rental management office as proposed is not allowed unless it

is part of the resort hotel approved under a minor conditional

use permit as prescribed by [section] 130.81(b). There is no

resort hotel on the subject property." R., 152. In short, the

Commission got it right when it sustained Development Order 02-11

by relying on the plain language in the Code.

VOF contends, however, that Resolution No. P12-09 has

already conclusively determined, rightly or wrongly, that the

transient rental units constitute a resort hotel; that the

proposed redevelopment, including a swimming pool, will be

operated in connection with the hotel; and because that

determination was never appealed, it is now binding on the

parties. See § 102-185(c), M.C.C. (the "failure to file such an

appeal shall constitute a waiver of any rights under this chapter

to appeal any interpretation or determination made by an

administrative official"). But there are numerous indicia in the

record to indicate that Resolution No. P12-09 did not address the

swimming pool issue. First, the swimming pool was not mentioned

in Mr. Craig's letter dated September 25, 2008, see R., 673-674,

which started the sequence of events leading to the issuance of

Resolution No. P12-09. In response to Mr. Craig's inquiry, the

second Letter of Understanding specifically stated that it was

considering only a request by VOF to place a rental management

office on the property as a matter of right. See R., 676. Later

on, during the hearing on the appeal of the second Letter of

Understanding, at no time did VOF advise the Commission that

anything other than a "rental management company" was being

proposed for consideration, nor did VOF correct the introductory

statement of staff that a swimming pool had been removed from the

request. See R., 540-600. In fact, no representative of VOF

even mentioned the swimming pool in the context of the second

appeal. Id. When Resolution No. P12-09 was rendered, it

authorized only a "rental management company" as a minor

conditional use in connection with a hotel; no mention was made

of a guest swimming pool except for reciting the action taken in

Resolution No. P11-09. See R., 685-693. Moreover, the

Resolution states that the "precise" issue before it was whether

a rental management company could be placed on the property.

See , R., 685. In Development Order 02-11, rendered after the

entry of Resolution No. P12-09, Conclusion of Law 5 stated that

the "second administrative appeal only concerned the vacation

rental management company and a swimming pool was not

considered." R., 661. This understanding of the issues was

reconfirmed in Resolution No. P29-11, which concluded that

Resolution No. P12-09 "made the narrow decision that the proposed

rental management office may be permitted with a minor

conditional use permit." R., 152. Finally, while not persuasive

by itself, one of the two holdover Commissioners from 2009

recalled that "in [Resolution No.] 12-09 [he didn't] believe that

there was any understanding that there was to be a pool admitted,

and [he] was really surprised to see this come before us again."

R., 134. Collectively, these indicia support a conclusion that

Resolution No. P12-09 considered only the narrow issue first

presented in Mr. Craig's letter of September 25, 2008.

Therefore, the Commission did not depart from the essential

requirements of the law when it concluded in Resolution No. P29-

11 that "the Planning Commission made the narrow decision [in

Resolution No. P12-09] that [only] the proposed rental management

office may be permitted with a minor conditional use permit."

R., 152.

VOF contends, however, that even if Resolution No. P12-09

did not address the issue of a swimming pool, it made a

dispositive determination that the proposed commercial retail use ( i.e.

, rental management company) would be operated in connection

with a resort hotel. See R., 692. Based on this determination,

VOF argues that it logically follows that a swimming pool, or for

that matter any other required feature of a hotel, should be

permitted on the property as of right to serve the guests of the

transient units.

VOF's argument must fail for two reasons. First, Resolution

No. P12-09 is limited to the facts in that case. While based on

an incorrect interpretation of the LDRs, the Resolution simply

held that a proposed rental management office would be operated

in connection with a resort hotel, and that the conversion of the

property to that use was permissible subject to VOF obtaining a

minor conditional use permit. It did not authorize VOF, as a

matter of right, to place any other hotel feature on the property

as a conditional use. Had it intended to do so, the Resolution

would have spoken to that issue. Second, even if VOF is correct

that once a determination is made that a property will be

operated in connection with a resort hotel, any other hotel

feature, including a pool, can then be placed on the property,

VOF must still comply with section 130-81(b)(6). That provision

allows swimming pools operated in connection with a resort hotel

within the DR district, but only if:

(6) Active and passive water-oriented

recreational facilities are available, a

minimum of a swimming pool, or swimming

areas, at the rate of seven square feet of

water surface (excluding hot tubs and

Jacuzzi) per hotel room . . . .

There is no record evidence to show that VOF complies with

this requirement. When asked about the regulation during the DRC

meeting, VOF did not know the number of units or rooms that would

make up the "resort hotel"; thus, the required size of the pool

could not be determined. See

R., 177-178. VOF contends,

however, that this issue was never addressed at the Commission

level and therefore it cannot be considered in this appeal. But

the DRC meeting is a part of the record below, see R., 157-209,

and section 130-81(6)(b) was specifically cited in Finding of

Fact 17 of the Development Order. See R., 658-659. The

Development Order also noted that the record was insufficient to

determine whether VOF satisfied this requirement. See R., 661.

These factual and legal determinations, and others, are

implicitly approved in Finding of Fact 6 of Resolution P29-11.

See R., 151-152.

Besides having to comply with section 130-81(b)(6), VOF must

also meet the standards in section 110-67, which apply to all

conditional uses. Among them is a requirement in subsection (2)

that the conditional use be "consistent with the community

character of the immediate vicinity of the parcel proposed for

development." There is competent substantial evidence that this

standard was not met, based on the fact that any number of people

not associated with the site could be using the pool at any time

of the day. See , e.g. , R., 160.

VOF again argues that this issue was not explicitly

addressed in Resolution No. P29-11, and therefore the standards

in section 110-67 cannot be considered in this appeal. But

Resolution No. P29-11 upheld the decision in Development Order

02-11, which determined in Conclusion of Law 6 that the proposed

pool would contravene the standard in subsection (2). See R.,

661. By concluding that the application "does not comply with

the requirements of the Monroe County Code," see R., 152, the

Commission implicitly affirmed the determination in the

Development Order that the standard was not met.

Given the foregoing disposition of the issues, it is

unnecessary to reach the other arguments raised by the parties.

III. Due Process Violation

In its Initial Brief, VOF contended that the Commission

denied it due process by allowing the Lancasters to present new

evidence at the hearing on July 13, 2011, in contravention of

section 102-185(e). More than likely because Appellees have

responded in their Answer Briefs that due process concerns cannot

be addressed in this proceeding, VOF now contends in its Reply

Brief that rather than raising a due process issue, it is

actually asserting that the Commission failed to comply with the

essential requirements of the law by not following its own

procedural rules.

At the July 13, 2011 hearing, over the objection of VOF, the

Commission allowed the Lancasters to intervene in support of the

County's position, to present argument through their counsel, and

to present testimony and one exhibit through their expert. VOF

contends that this action violated section 102-185(e), which

governs the appeal process for development orders, and reads as

follows:

(e) Action of the commission. The planning

commission shall consider the appeal at a

duly called public hearing following receipt

of all records concerning the subject matter

of the appeal. Any person entitled to

initiate an appeal may have the opportunity

to address the commission at that meeting;

and argument shall be restricted to the

record below except that a party appealing an

administrative decision, determination or

interpretation shall be entitled to present

evidence and create a record before the

planning commission; any appeals before the

hearing officer shall be based upon and

restricted to the record.

This provision allows any

person entitled to initiate an

appeal, including VOF, Intervenors, and the County, to address

the Commission at its public hearing concerning the record below.

Because the Lancasters were a party below, and were entitled to

initiate an appeal, no error occurred in allowing them to

intervene at the Commission level and to present argument

concerning "the record below." The regulation goes on to provide

that only the party appealing the decision, in this case VOF, is

allowed "to present evidence and create a record before the

planning commission." In recognition of this limitation, the

Commission noted at the conclusion of the hearing that in making

its decision, it was relying only on the staff report and record

below "minus the testimony of intervenor." R., 134-135. As a

practical matter, VOF argues that it was impossible for the

Commission to ignore the testimony and memorandum presented by

Intervenors' expert. It also contends that "[t]he [resulting]

prejudice to VOF is manifest." See Initial Brief, p. 38. During

oral argument, VOF's counsel suggested that at a minimum, the

case should be remanded to the Commission for a new hearing that

comports with the requirements of section 102-185(e).

Even if the Commission did not strictly adhere to the

requirements of section 102-185(e), VOF did not demonstrate how

it was prejudiced by that error. VOF has failed to cite any

specific testimony by the expert, or portion of his exhibit,

which contradicts the Lancasters' contention that their expert

was simply addressing the issues already before the Commission,

and providing commentary concerning what had actually transpired

in the previous administrative appeals. Whether couched as a due

process violation, or a departure from the essential requirements

of the law, VOF's argument is deemed to be unavailing.

DECISION

Based on the foregoing, Resolution No. P29-11, which

sustained Development Order 02-11, is affirmed in all respects.

DONE AND ORDERED this 27th day of June, 2012, in

Tallahassee, Leon County, Florida.

S

D. R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us Filed with the Clerk of the

Division of Administrative Hearings

this 27th day of June, 2012.

ENDNOTES

1/ Guests renting units not affiliated with Hawks Cay Resort

Hotel must now pay a resort fee to that hotel in order to use its

swimming pool and other recreational facilities. If a swimming

pool is allowed on VOF's property, guests renting units managed by

VOF can use VOF's swimming pool and avoid paying a fee to the

hotel. 2/ Just before voting, one Commissioner observed that because

there was already "a resort hotel there," the commercial retail

use could be approved. R., 599. Whether he was referring to the

Hawks Cay Resort Hotel, or a cluster of transient units, is not

known. Another Commissioner noted that he voted in favor of VOF

because he believed that "this usage is provided for in the DR

zoning [and] . . . was also contemplated by the DRI." R., 598.

And a third Commissioner explained that the DRI was approved in

1986 and "changes come down through the ages and you have to open

the door for [proposals such as those presented by VOF]." R.,

598-599.

3/ "Conditional uses" are those uses that are "generally

compatible with the other land uses permitted in a land use

district, but which require individual review of their location,

design and configuration and the imposition of conditions in order

to ensure the appropriateness of the use at a particular

location." § 110-63, M.C.C. 4/ Even though the original proposal in 2007 was described as a

"guest check-in/welcome center" with related amenities, VOF later

acknowledged that "no one has to come [to the property] to

actually engage in that activity," and that "the majority of the

ongoing rental management activities actually take place off

site," with most of it done by telephone or internet. R., 178.

Thus, the swimming pool is the driving force behind the

application.

COPIES FURNISHED: Gail Creech, Clerk

Monroe County Planning Commission

Marathon Governmental Center

Suite 410

2798 Overseas Highway

Marathon, Florida 33050-4277 Edwin A. Scales, III, Esquire

Edwin A. Scales, P.A.

201 Front Street, Suite 333

Key West, Florida 33040-8347 Laura K. Wendell, Esquire

Weiss Serota Helfman Pastoriza

Cole & Boniske, P.L.

2525 Ponce de Leon Boulevard, Suite 700

Coral Gables, Florida 33134-6045 Susan M. Grimsley, Esquire

Assistant County Attorney

Post Office Box 1026

Key West, Florida 33041-1026 James E. White, Esquire

Weiss Serota Helfman Pastoriza

Cole & Boniske, P.L.

200 East Broward Boulevard, Suite 1900

Fort Lauderdale, Florida 33301-1949

NOTICE OF RIGHTS

Pursuant to article VI, section 102-218(c), M.C.C., this Final

Order is "the final administrative action of the county." It is

subject to judicial review by common law petition for writ of

certiorari to the circuit court in the appropriate judicial

circuit.