12-003047 Sunset Marina Residences Of Key West Condominium Association, Inc. vs. City Of Key West And Department Of Economic Opportunity Status: Closed Recommended Order on Tuesday, March 26, 2013.

Summary: Department of Economic Opportunity demonstrated that the proposed City of Key West land development regulations are consistent with the Comprehensive Plan and the principles for guiding development for the City of Key West Area of Critical State Concern.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUNSET MARINA RESIDENCES OF KEY )

WEST CONDOMINIUM ASSOCIATION, )

INC. , )

)

Petitioner , )

)

vs. ) Case No. 12 - 3047

)

CITY OF KEY WEST AND DEPARTMENT )

OF ECONOMIC OPPORTUNITY , )

)

Respondent s . )

)

RECOMMENDED ORDER

The final hearing in this case was held by video

teleconference on February 8, 2013, at sites in Tallahassee and

Key West, Florida, before Bram D. E. Canter, Administrative Law

Judg e of the Division of Administrative Hearings ("DOAH").

APPEARANCES

For Petitioner: Barton William Smith, Esquire

Smith Oropeza, P.L.

138 - 142 Simonton Street

Key West, Florida 33040 - 6627

For Respondent City of Key West :

Larry R. Erskine, Esquire

Larry R. Erskine, P.A.

Post Office Box 4035

Key West, Florida 33041 - 4035

For Department of Economic Opportunit y:

Sherry A. Spiers, Esquire

Department of Economic Opportunity

MSC 110

107 East Madison Street

Tallahassee, Florida 32399 - 6545

STATEMENT OF THE ISS UES

The issues to be determined in this case are whether the

land development regulations (LDRs) adopted by the City of Key

West in Ordinance No. 12 - 16 are consistent with the City of Key

West Comprehensive Plan and the Principles for Guiding

Development for the City of Key West Area of Critical State

Concern, and whether Final Order No. DEO - 12 - 109 of the

Department of Economic Opportunity ("DEO") , which approved the

LDRs, is valid.

PRELIMINARY STATEMENT

On June 5, 2012, the City of Key West adopted Ordin ance No.

12 - 16, which amended the LDRs in the City of Key West Code that

regulate the land uses allowed in the Public and Semi - Public

( " PS " ) land use district. On August 3, 2012, DEO approved the

LDRs in Final Order No. DEO - 12 - 109, determining that the LD Rs

are consistent with the Principles for Guiding Development for

the City of Key West Area of Critical State Concern and the

CityÓs Comprehensive Plan.

DEO's Final Order was published in the Florida

Administrative Weekly on August 17, 2012. Petitioner fi led a

timely petition for hearing to challenge the Final Order and the

LDRs that were approved. DEO referred the petition to DOAH to

conduct an evidentiary hearing and prepare a recommended order.

At the final hearing, Petitioner presented the testimony

o f: Wendy Coles , Joanne Alexander , and Owen Trepanier, who was

accepted as an expert in land use planning, comprehensive

planning, and zoning. Respondents City of Key West and DEO

presented the testimony of: Donald Leland Craig, the CityÓs

Planning Direc tor, who was accepted as an expert in land use

planning, comprehensive planning, and zoning; and

Rebecca Jetton, the Administrator of the DEOÓs Area of Critical

State Concern Program.

The partiesÓ Joint Exhibits 1 - 18 and Key West Exhibit 1

were admitted in to evidence.

The one - volume Transcript of the final hearing was filed

with DOAH. The parties submitted proposed recommended orders

that were carefully considered in the preparation of this

Recommended Order.

FINDINGS OF FACT

The P arties

1. Petitioner i s a not - for - profit corporation comprised of

owners of condominium units located at the Sunset Marina

Residences property within the City of Key West.

2. The City of Key West is a Florida municipality. It is

located within the City of Key West Area of Cri tical State

Concern.

3. DEO is the state land planning agency and has the

statutory duty to review and approve LDRs adopted in an area of

critical state concern. See § 380.05(6), (11), Fla. Stat.

(2012). 1

The Proposed LDRs

4. The proposed LDRs are in se ctions 122 - 1016, 122 - 1017,

122 - 1018, and 122 - 1022 of the City of Key West Code.

Petitioner's challenge focused on section 122 - 1017, which was

amended to include emergency and temporary homeless shelters in

its description of permitted uses in the PS distr ict:

Uses permitted in the public and semipublic

services districts are as follows:

* * *

(13) Essential public services and

facilities inclusive of but not limited to;

drainage facilities, and emergency services;

i.e. staging areas responsive to dec lared

emergency, with the exception of shelters

for the homeless, which are regulated as a

conditional use ;

Standing

5. PetitionerÓs property is located near two PS districts,

one of which is a former City landfill and the other is the site

of the Monr oe County Jail, SheriffÓs Department administrative

offices, and the Keys Overnight Temporary Shelter. Petitioner's

condominium units are separated from the inactive landfill by an

area of wetlands (designated Conservation Outstanding Waters),

which creat es a natural buffer. The condominium units are

separated from the existing shelter by an inlet of the Gulf of

Mexico and a General Commercial zoning district on the opposite

upland.

6. In its petition for hearing, Petitioner alleged that

it's members wo uld be substantially affected by the proposed

LDRs because Petitioner's members have been "involved in the

development and enforcement of the City of Key West's Comp. Plan

and implementing land development regulations" and they "rely on

the Comp. Plan and its implementing land development regulations

to protect their quality of life and ability to safely evacuate

from the Florida Keys in the event of a hurricane or other

emergency."

7. At the final hearing, Petitioner made only a vague

reference to advers e effects from the existing Keys Overnight

Temporary Shelter, without any identification of the impacts.

Petitioner never articulated how the operation of a homeless

shelter on the nearest PS - designated lands would result in

injury to its members. Petiti oner focused on hurricane

evacuation, implying that its members would be impeded in their

attempt to evacuate Key West if the LDRs are approved.

Whether a Homeless Shelter is a Residential Land Use

8. Petitioner argues that proposed section 122 - 1017 is

i nconsistent with Policy 1 - 2.6.1 of the CityÓs Comprehensive

Plan, which describes the land uses allowed under the PS land

use designation:

The Public and semi - public institutional (PS

or HPS) land use designation is intended to

accommodate existing public and semi - public

services including: governmental

administration buildings; public schools and

not - for - profit educational institutions;

hospital facilities and supportive heath

care units; arts and cultural or civic

facilities; essential public services and

facilities; cemeteries; the City landfill;

fire and emergency operation facilities;

public and private parks and recreation

areas; utilities; extensive open areas

comprising major committed public and semi -

public open spaces; and other similar

activities as shall be identified in the

land development regulations.

9. The Comprehensive Plan establishes intensity limits for

land uses in PS districts, based on floor area ratio.

10. Residential uses are not among the land uses

identified in Policy 1 - 2.6.1. Residential land uses are

regulated elsewhere in the Comprehensive Plan by density limits

or dwelling units per acre.

11. Petitioner contends that homeless shelters are

residential land uses , which are not allowed in PS districts.

The City contends, a nd DEO agrees, that homeless shelters are

not residential uses, but are institutional land uses and also

essential public services and facilities, which are authorized

land uses in the PS district.

12. The Comprehensive Plan does not define the terms

"in stitutional" or " essential public services and facilities. "

13. The term "residential uses" is defined in the

Comprehensive Plan as " activities within land areas used

predominantly for housing."

14. Petitioner argues that emergency shelters and

temporar y shelters are types of housing and, therefore, meet the

definition of residential uses. The term "housing" is not

defined. The term " housing unit " is defined in the

Comprehensive Plan as an " occupied or vacant house, apartment or

a single room occupied by one individual known as a single room

occupancy which is intended as separate living quarters. " A

homeless shelter does not consist of housing units.

15. Chapter 86 of the City Code defines Ðresidential

activitiesÑ as single - family/two - family dwellin gs and accessory

units, multifamily dwellings, manufactured housing, group homes,

and approved home occupations. Hospitals, nursing homes, and

other similar facilities provide temporary housing for the ill,

infirm, or injured, but they are not treated as residential

activities in the City Code.

16. Emergency shelters, whether for homeless persons or

for persons with homes, are not ordinarily thought of as the

residences of the sheltered persons. Nevertheless, to add to

the confusion, the Comprehensive P lan defines the word

"sheltered" as " a person or family whose primary nighttime

residence is a supervised, publicly or privately operated

shelter."

17. Petitioner argues that homeless shelters are

residential in nature because they provide housing for sl eeping,

dining, bathing, and storage of personal items, all of which are

characteristics of residences.

18. The definition of "residential uses" in the

Comprehensive Plan , by itself, is not helpful to resolve this

dispute . However, when all the definiti ons and related

provisions of the Comprehensive Plan and the City Code are

considered together, they reflect a fundamental distinction

between residences and institutional housing, such as hospitals,

nursing homes, mental institutions, jails, and prisons - -

institutional housing is supervised and controlled by the public

or private operator ; a residence is not .

19. Like a hospital patient, a homeless person does not

have control over his or her room and its contents and cannot

exclude others. The supervi sory staff cannot be locked out and

they remain in control of almost all aspects of the occupancy.

In a residence, the occupant has exclusive use and control of

the premises, or much greater use and control than in

institutional housing.

20. Therefore, the City's interpretation of the term

"institutional" in Policy 1 - 2.6.1 of the Comprehensive Plan as

including homeless shelters is a reasonable interpretation.

21. Providing shelter to homeless persons is now a public

function performed by nearly all ci ties in Florida and the

United States. The City's interpretation of the term "essential

public services and facilities" in Policy 1 - 2.6.1 to include

homeless shelters is also a reasonable interpretation.

Growth Management

22. In its petition, Petitione r claim s that the proposed

LDRs would result in "uncontrolled population growth."

Petitioner presented no evidence to prove this claim. The claim

is speculative. The City presented evidence that the number of

homeless persons in the City is decreasing.

23. Due to the difficulty in evacuating Key West during a

hurricane, a Building Permit Allocation System ("BPAS") was

established to limit future growth so that it will not prevent

achievement of the goal to evacuate Key West 24 hours before

hurricane - fo rce winds make landfall. BPAS limits are derived

from a hurricane evacuation model and are based on the ability

of residents to drive to safe areas.

24. Petitioner contends that the LDRs are invalid because

they violate BPAS by failing to account for th e greater numbers

of homeless persons that would have to be evacuated during a

hurricane. It has already been noted that Petitioner did not

prove its claim that the LDRs would increase the population of

homeless persons in the City.

25. The City's hurri cane evacuation plan calls for

evacuating the "special needs population," including homeless

persons (in buses), before the 24 - hour period in which the

permanent population must be evacuated. Furthermore, the

hurricane evacuation model is based on the est imated number of

cars involved in the evacuation and the model assumes that the

homeless do not have cars. The proposed LDRs would have no

effect on BPAS.

26. There are three existing or approved facilities in Key

West, two for homeless women and childr en and one for persons

with HIV/AIDS, which were subject to BPAS. Petitioner contends

that these projects support its contention that homeless

shelters must be accounted for in BPAS. However, the three

facilities were shown to be unique because they are essentially

apartment buildings. Their occupancy is not supervised in the

same way that homeless shelters are supervised. In addition,

because these projects are for the working poor who are expected

to have automobiles, they will affect the 24 - hour evac uation

model.

Principles for Guiding Development

27. DEO must determine that the challenged LDRs are

consistent with the Principles For Guiding Development for the

City of Key West, as set forth in Florida Administrative Code

Rule 28 - 36.003(1). Althoug h the petition for hearing included a

claim that the proposed LDRs are inconsistent with these

principles, Petitioner appears to have abandoned the claim in

its proposed recommended order.

28. Providing emergency and temporary shelters for the

homeless p opulation achieves two principles for guiding

development stated in rule 28 - 36.003(1):

(a) Strengthen local government

capabilities for managing land use and

development.

* * *

(h) Protection of the public health,

safety, welfare, and economy of th e City of

Key West, and the maintenance of Key West as

a unique Florida Resource.

29. The challenged LDRs strengthen the CityÓs ability to

manage future land development by establishing criteria for the

approval of homeless shelter as conditional uses.

30. Providing shelters for the homeless obviously protects

the public health, safety, and welfare of homeless persons who

use the shelters. The shelters also help to decrease

panhandling and loitering in public areas by homeless persons,

especially in a reas with high visibility and use by tourists.

CONCLUSIONS OF LAW

31. In order to have standing to challenge a proposed LDR

as inconsistent with the applicable local government

comprehensive plan, a person must be substantially affected by

the proposed LDR. See § 163.3213(5)(a), Fla. Stat.

32. To be substantially affected, a petitioner must show

(1) it " will suffer injury in fact which is of sufficient

immediacy to entitle him to a hearing, " and, (2) that the

" substantial injury is of a type or nature which the proceeding

is designed to protect. " Agrico Chem. Co. v. DepÓt of Envtl

Reg. , 406 So. 2d 478, 482 (Fla. 2d DCA 1981).

33. For an association to meet the requirements of

standing, it must demonstrate that a substantial number of its

members wou ld have standing as individuals. See Fla. Home

Builders Ass'n v. Dep't of Labor & Emp. Sec. , 412 So. 2d 351, 353

(Fla. 1982).

34. Petitioner failed to demonstrate that its members will

suffer an injury. Petitioner's main premise for standing, that

the LDRs would cause hurricane evacuation to be impeded, was not

proven. Petitioner failed to demonstrate that its members would

be substantially affected by the proposed LDRs. However, because

an evidentiary hearing was held on all disputed issues , Findings

of Fact and Conclusions of Law are presented here.

35. DEO has the burden of proof to show the validity of

its Final Order. See § 380.05(6), Fla. Stat.

36. Sections 380.05(6) and 380.05(11) require that

proposed LDRs be consistent with the principles for guiding

development that have been established for an area of critical

state concern .

37. The standard of proof applicable to DEO's

determination that the proposed LDRs are consistent with the

Principles for Guiding Development for the City of Key W est Area

of Critical State Concern is preponderance of the evidence. See

§ § 120.57(1)(j) , 380.05(6), Fla. Stat. DEO met its burden on

this issue.

38. Section 163.3194(1)(b) requires that all LDRs adopted

by a local government be consistent with the loc al governmentÓs

comprehensive plan.

39. Section 163.3194( 3)(a) provides:

[ A] land development regulation shall be

consistent with the comprehensive plan if

the land uses, densities or intensities, and

other aspects of development permitted by

such order or regulation are compatible with

and further the objectives, policies, land

uses, and densities or intensities in the

comprehensive plan and if it meets all other

criteria enumerated by the local government.

40. The standard of proof applicable to DEO' s

determination that the proposed LDRs are consistent with the

City of Key West Comprehensive Plan is the "fairly debatable

standard." See § 163.3213(5)(a), Fla. Stat. The fairly

debatable standard of review " requires approval of a planning

action if rea sonable persons could differ as to its propriety. "

Martin C nty. v. Yusem , 690 So. 2d 1288, 1295 (Fla. 1997). DEO

met its burden on this issue.

41. In summary, DEO's determination is valid.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law , it is

RECOMMENDED that the Department of Economic Opportunity

enter a final order determining that Petitioner is not

substantially affected by the proposed LDRs, and approving the

LDRs adopted by the City of Key West O rdinance No. 12 - 16 .

DONE AND ENTERED this 26th day of March , 2013 , in

Tallahassee, Leon County, Florida.

S

BRAM D. E. CANTER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallaha ssee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 26th day of March , 2013 .

ENDNOTE

1/ All references to the Florida Statutes are to the 2012

cod ification.

COPIES FURNISHED :

Barton William Smith, Esquire

Smith Oropeza, P.L.

138 - 142 Simonton Street

Key West, Florida 33040 - 6627

Sherry A. Spiers, Esquire

Department of Economic Opportunity

MSC 110

107 East Madison Street

Tallahassee, Florida 323 99 - 6545

Larry R. Erskine, Esquire

Larry R. Erskine, P.A.

Post Office Box 4035

Key West, Florida 33041 - 4035

Jessie Panuccio, Executive Director

Department of Economic Opportunity

MSC 110

107 East Madison Street

Tallahassee, Florida 32399 - 6545

Robert H. Sechen, General Counsel

Department of Economic Opportunity

MSC 110

107 East Madison Street

Tallahassee, Florida 32399 - 6545

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of t his Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.