12-003516 Hoover Property Islamorada, Llc vs. Monroe County Planning Commission And Residents For Protecting Community Character Status: Closed DOAH Final Order on Thursday, May 23, 2013.

Summary: Planning Commission's Resolution denying applications to renovate building and then lease to ICE was supported by competent substantial evidence and was not a departure from essential requirements of the law.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HOOVER PROPERTY ISLAMORADA, )

LLC, )

)

Appellant, )

)

vs. ) Case No . 1 2 - 3516

)

MONROE COUNTY PLANNING )

COMMIS SION AND RESIDENTS FOR )

PROTECTING COMMUNITY CHARACTER, )

)

Appellee s. )

________________________________)

FINAL ORDER

In this administrative appeal, Appellant, Hoover Property

Islamorada, LLC ( Hoover or Appellant) , see ks r eview of Monroe

County (County) Planning Commission (Commission ) Resolution

No. P 37 - 12 (Resolution) rendered on September 26, 2012 . The

Resolution upheld an administrative decision by the County

Planning Director denying Ho over's two application s for site work

and renovation of an office building located at 91605 Overseas

Highway, Tavernier . Hoover intends to lease the building to the

United States Customs and Border Protection Marine Division and

Immigration and Customs En forcement Division (ICE) , both a part

of the Department of Homeland Security. A fter a two - volume

R ecord of the underlying proceeding was filed by the Commission

Clerk , Appellant submitted an Initial Brief in support of its

appeal; the Commission and Resid ents for Protecting Community

Character (RPCC), an unincorporated association comprised of

approximately 100 homeowners in the immediate area, filed

separate Answer Brief s ; and Appellant filed a Reply Brief. Oral

argument was heard by video teleconferenc e at facilities in

Marathon and Tallahassee on May 16 , 2012 . 1 The parties waived

their right to file proposed final orders.

ISSUES

Appellant raises t hree issues on appeal: (1) whether the re

is competent substantial evidence to support certain findings i n

the Resolution; ( 2) whether the Commission departed from the

essential requirements of the law by incorrectly applying and

interpreting the definition of "public building s " ; and (3)

whether the Commission denied Hoover "a fair and impartial

hearing" by b asing its decision " on a plebiscite from a hos tile

crowd." For the reasons expressed below, the Commission 's

Resolution is affirmed .

BACKGROUND

The property in question is slightly less than one acre in

size (0.96 acres) and lies on the south side of U.S. Highway 1 at

mile marker 91.6 in Tavernier . From at least January 1967 until

2009 , when it relocated to new offices across the street , the

Florida Keys Electric Cooperative Association maintained

administrative offices at the site. A 10,300 square - foot

building on the site remains vacant at this time. The building

directly abuts a long - existing, stable, single - family

neighborhood in the Tavernier Historic Preservation District , the

only historic district in unincorporated Monroe County.

A pproximately 2 0 single - family residences are located within 300

feet of the s ubject property , as well as ten vacant lots that can

be developed with additional single - family homes in the future.

The property is located within the Suburban Commercial (SC)

land use zonin g district, the purpose of which is "to establish

areas for commercial uses designed and intended primarily to

serve the needs of the immediate planning area in which they are

located." § 130 - 43, M onroe County Code (M .C.C. ). Among other

uses, t he SC zoni ng district specifically a llows "office uses "

and "public buildings " as of right. See §§ 130 - 93(a)(1 ) and 130 -

93(a)(6), M.C.C. P ublic building s are defined as "office and

service buildings, uses or facilities owned or operated by a

governmental agency, i ncluding publicly and privately owned

utilities, which are compatible with or provide services to the

immediate vicinity in which the building is located." § 101 - 1,

M.C.C.

On September 13, 2011, Hoover filed with the County two

building permit applicati on s for site work and interior

remodeling of the vacant building. After the renovation is

completed, the building will be leased to ICE. 2 Because of

national security requirements, the actual building plans are

sealed, but they were reviewed by the membe rs of the Commission

and its staff prior to the Commission's decision. As described

in a letter from the Real Estate Acquisition Division of the

General Services Administration (GSA) , the following activities

w ill take place at the site:

The proposed faci lity will serve agency

professionals involved in the administrative

and investigative tasks. The office will

operate with customary business hours and

will not routinely require after - hours

occupation of the building. As described

below, most of the uses within the building

provide general office support for agency

personnel. A small portion of the building

is set aside to process individuals that are

found within the immediate vicinity and that

are under investigation for customs

violations. These indi viduals are processed

at this location for transportation to other

US Customs facilities outside Monroe County.

No individuals are housed at the facility or

kept overnight.

The building will be occupied with the

following uses. The majority of the

build ing, approximately 6,830 square feet

(sf) will be made up of offices, conference

rooms, break rooms, fitness facilities,

lockers and bathrooms for agency employees.

1,249 sf. of the building will be used for

storage including file storage and FEMA

storage facilities. 1,318 sf. is made up of

hallways, janitor rooms and an electrical

closet. 761 sf. of the building will provide

a processing room and two interview rooms.

234 sf. w ill provide two holding cells for

individuals detained in the surrounding are a

while transportation to other U.S. Customs

facilities outside of the area is arranged.

Such transportation is provided on an as -

needed basis.

R ., 298 - 99.

After reviewing the applications, the Senior Director of

Planning & Environmental Resources, Tow nsley Schwab, advised

Hoover by letter that the application s had " failed " ( i.e., were

denied) because (a) the proposed facility was not intended

primarily to serve the needs of the immediate planning area, as

required by section 130 - 43 ; and (b) based upon the plans

submitted, the proposed facility was not compatible with the

immediate vicinity , a requirement for qualifying as a " public

building " under section 101 - 1 . R., 296.

In making these determinations, Mr. Schwab determined that

t he "immediate planni ng area" is "Lower Key Largo (Tavernier),"

as reflected on a comprehensive plan document, R., 300 ; and he

used a 300 - foot radius around the subject property as " the

immediate vicinity . " R., 290. Because the terms "immediate

vicinity" and "vicinity" are n ot defined in the Code or

comprehensive plan, a 300 - foot radius was deemed to be

appropriate as it is the typical standard for neighbor

notification of pending special approvals. Id. The parties

agree that o ne of Mr. Schwab's duties is to interpret Code

provisions such as these. See § 102 - 21(b)(2)(h), M.C.C.

Hoover then timely filed an appeal to the Planning

Commission, R., 151 - 156, which scheduled a hearing on August 31,

2012. At the appeal hearing, besides receiving legal advice and

argument from al l counsel, the Commission heard testimony by

Joseph Haberman, the County Planning and Development Review

Manager, who explained the staff report; Hoover's chief financial

officer , Mrickey; RPC C's professional land use planner ,

Mr. Stuncard ; and eigh teen members of the public, all of whom

opposed the applications. R., 1 - 139.

At the conclusion of the hearing, the Commission voted

unanimously to deny the applications. This decision was

memorialized by Resolution No. P37 - 12 issued on September 26,

20 12. R. , 146 - 150. The Resolution made the following findings

of fact :

1. The subject property is located within

two different Land Use District map

boundaries. The parcel identified by real

estate number 00506940.000000 is designated

as Suburban Commerc ial (SC) and the parcels

identified by real estate numbers

00506890.000000 and 00506860.000000 are

designated as Improved Subdivision (IS); and

2. The subject property is located within

two different Future Land Use Map category

boundaries. The parcel i dentified by real

estate number 00506940.000000 is designated

as Public Facilities (PF) and the parcels

identified by real estate numbers

00506890.000000 and 00506860.0 00000 are

designated as Residential Medium (RM); and

3. There is an existing building on the

subject property, located on the parcel

identified by real estate number

00506940.000000; and

4. There is not a building permit on file in

the Building Department's records for the

building's initial construction. The

earliest building permit o n file is Building

Permit #12440, issued on January 17, 1967 for

an addition to an existing building

identified as "FLA. KEYS ELECT. COOP.

OFFICE." Building plans within the file show

the building in a manner near its current

configuration; and

5. On S eptember 13, 2011, the property owner

applied for a building permit for site work

associated with a proposed federal government

building on private property (file #113 -

4530). The application was reviewed and

consequently failed by Planning &

Environmental Resources Department staff; and

6. Also on September 13, 2011, the property

owner applied for a building permit for

interior remodeling of an existing building

associated with a proposed federal government

building on private property (file #113 -

4533). The application was reviewed and

consequently failed by Planning &

Environmental Resources Department staff; and

7. During review of file #113 - 4530, the

Planning Department staff determined that

prior to approval of any building permit

affecting the appearance of the site, a

special certificate of appropriateness by the

Historic Preservation Commission would be

required; and

8. On November 9, 2011, an agent of the

property owner applied for the required

special certificate of appropriateness; and

9. On December 9, 2011, the Planning &

Environmental Resources Department issued a

letter requesting additional information for

staff to review the special certificate of

appropriateness application and building

permit applications; and

10. In the April 24, 2012 letter, following

a review by Planning & Environmental

Resources Department staff, the Senior

Director of Planning & Environmental

Resources Department determined that the

County is unable to approve the building

permit applications for the follo wing

reasons:

(a) The property is located within a

Suburban Commercial (SC) land use district.

According to Monroe County Code Section 130 -

43, "the purpose of the SC district is to

establish areas for commercial uses designed

and intended primarily to s erve the needs of

the immediate planning area in which they are

located." Based on the plans submitted, the

proposed facility does not fulfill this

purpose, as the proposed facility is not

intended primarily to serve the needs of the

immediate planning ar ea of Lower Key Largo

(Tavernier), designated as Planning Area/

Enumeration District #15 in Monroe County

Year 2010 Comprehensive Plan Technical

Document Chapter 2.2.

(b) Public buildings may be permitted in the

SC district. As defined in Monroe Count y

Code Section 101 - 1, "public buildings mean s

[sic] office and service buildings, uses or

facilities owned or operated by a

governmental agency, including publicly and

privately owned utilities, which are

compatible with or provide services to the

immediat e vicinity in which the building is

located." Based on the plans submitted, the

proposed facility is not compatible with the

immediate vicinity; and

11. An agent of the appellant responded to

the December 9, 2011 request by providing

additional informat ion. Following a further

review of the initial and additional

information, on April 24, 2012, the Planning

& Environmental Resources Department issued a

letter stating that the Department was unable

to approve the building permit applications;

and

12. O n May 24, 2012, the appellant filed an

application for an administrative appeal to

the Planning Commission, requesting that the

Planning Commission overturn the decisions by

the Senior Director of Planning &

Environmental Resources ; and

13. As set forth in §102 - 21(b)(2)h. of the

Monroe County Code, the planning director has

the authority and duty to render

interpretations of the Monroe County

Comprehensive Plan and the Monroe County Land

Development Code.

14. Pursuant to §102 - 185 of the Monroe

County Co de, 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 Land

Development Code and the standards and

procedures h ereinafter set forth, except that

the Board of County Commissioners shall hear

and decide appeals from administrative

actions regarding the floodplain management

provisions; and

15. Planning & Environmental Resources

Department staff recommended to uphol d the

decision of the Senior Director of Planning &

Environmental Resources; and

16. In the August 22, 2012 staff report,

following a further review by Planning &

Environmental Resources Department staff, the

Senior Director of Planning & Environmental

Resources Department determined that the

County is unable to approve the permit

applications for the additional reason:

In 1993, the facility on the property was

owned and operated by a public utility. As a

result, the County applied the Public

Facilitie s (PF) designation. Monroe County

Comprehensive Plan Policy 101.4.13 states the

principal purpose of the Public Facilities

(PF) land use category is to provide for land

owned by public utilities and service

providers. The current owner is not a public

ut ility or service provider. In addition,

the proposed occupant is not a public utility

or service provider. Therefore, the proposed

use is inconsistent with Policy 101.4.13[.]

R., 147 - 149. It also included the following pertinent

conclusions of law:

2. Based on the Monroe County Code, the

information provided within the sworn

testimony, documents, photographs and other

documentation provided by Monroe County, the

appellant and public, the proposed facility

would not be consistent with the purpose as

set forth in § 130 - 43 of the Monroe County

Code;

3. Based on the Monroe County Code, the

information provided within the sworn

testimony, documents, photographs and other

documentation provided by Monroe County, the

appellant and the public, the proposed

fa cility would not be consistent with the

definition of public facility as set forth in

§ 101 - 1 of the Monroe County Code;

R., 150. Although the staff report recommended a third reason

for denying the applications Î - that the proposed use was

inconsistent with the Future Land Use Map - - the Commission voted

to uphold the denial of the applications for the reasons cited in

the two conclusions.

On October 26, 2012, Hoover timely appealed that decision.

R., 142 - 145. The filing of the appeal automatically s tays the

effectiveness of the Resolution pending the outcome of this

appeal. § 102 - 220, M.C.C.

LEGAL ANALYSIS

Pursuant to a contract between t he Division of

Administrative Hearings (DOAH) and the County, DOAH has

jurisdiction to consider this appeal under s ection 102 - 213 . The

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

planning commission." § 102 - 218(b), M.C.C. The hearing

officer 's order is subject to the following limitations :

The hearing officer's order may r eject 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 o r 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 planni ng commission on which the

findings were based did not comply with the

essential requirements of the law.

Id. Thus, DOAH's review of a Commission decision is limited by

the Code to a two - part review: whether the Commission's decision

is based on compe tent substantial evidence, and whether the

decision departed from the essential requirements of the law.

Unlike the three - tier judicial review of final administrative

action by a circuit court, procedural or due process violations

may not be considered. See, e.g. , Osborn v. Monroe Cnty.

Plan ning Comm. , Case No. 03 - 4720, 2004 Fla. Div. Adm. Hear. LEXIS

2583 at *40 - 41 (Fla. DOAH Nov. 1, 2004)("the [Commission] review

criteria are limited and do not include consideration of whether

procedural due process was afforded by the Commission").

Therefore, an argument by Appellant that it was denied a fair and

impartial hearing due to "[t]he hostile, ill - informed, but

unanimous opposition" of the public witnesses is not within the

scope of this appeal.

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 r eview, 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. Sheffiel d , 95 So. 2d 912, 916

(Fla. 1957). S o 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 & Li ght 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).

In determining whether the Commission's decision is supported by

competent substantial evidence, the hearing of ficer cannot

second - guess the wisdom of the decision, reweigh conflicting

testimony presented to the Commission, or substitute his judgment

for that of the Commission as to the credibility of witnesses.

Haines City Cmty. Dev. , 658 So. 2d at 530. Thus, it is

immaterial that the record contains evidence supporting the view

of the Appellant so long as there is any competent substantial

evidence supporting the findings made by the Commission in

reaching its decision. Fla. Power & Light Co. , 761 So. 2d at

10 93.

These concepts are particularly relevant here because there

are conflicts in the evidence and the Commission resolved these

conflicts contrary to Hoover's position.

A. Point I

Appellant contends that the Resolution is not supported by

competent s ubstantial evidence in three respects: the Commission

erroneously assumed that the lessee will be operating a

"detention facility" on the site ; a repealed comprehensive plan

map was used to de termine the " immediate vicinity " around the

property ; and the C ommission relied on improper, unsubstantiated

comments from members of the public to support its decision. At

oral argument, Appellant withdrew its contention that a repealed

map was improperly used to determine the immediate vicinity

around the property.

Hoover first asserts that the County incorrectly assumed

that the proposed use of the building was a " detention facility. "

This argument is directed at a determination in the staff report ,

and relied upon by the Commission, that the facility could not

qualify as a public building under section 101 - 1 because "any

facility which involves the detention of individuals would not be

compatible with the immediate single - family area . " 3 R., 291.

Contrary to Appellant's claim, however, t here is no finding in

th e Resolution that the intended use is a "detention facility . "

While the exact plans of the facility are sealed due to

national security requirements , the record shows that the

proposed facility contains more than one holding room, an armory,

and a secure l oading bay. R., 351. The general public cannot

access the property. In a letter supporting the applications,

t he GSA acknowledge d that a "small part of the building is set

aside to process individuals found within the immediate area and

that are under i nvestigation for customs violations" ; that the

building will contain "a processing room and two interview

rooms" ; and that there will be "two holding cells for individuals

detained in the surrounding area while transportation to other

U.S. Customs faciliti es outside of the area is arranged."

R., 298 - 299. Also, Hoover's chief financial officer testified

that "[i]f a suspect is brought into the facility, they will be

interviewed[,]" a process that "takes about three to five hours,

after which the suspect ma y be taken to the county jail, to a

federal facility or released." R., 31.

At the same time, there was testimony by RPCC's expert

planner describing the nature and character of the immediate

vicinity as a "small town" residential area, designated as a

h istoric district by the County because of its unique

characteristics, and who opined that the intended use would not

be compatible with the immediate vicinity. The special character

of the neighborhood was further corroborated by the testimony of

various residents . Notably, the building is separated from the

closest single - family homes by only "a ten - foot - wide street . "

R., 69. Therefore, the Commission had competent substantial

evidence to support its determination that the prop osed facility

would " not be compatible with the immediate vicinity . " R., 148 -

149 . The fact that there is contrary testimony by Hoover's

representative that the facility could coexist with the

neighborhood i s immaterial. Haines City Cmty. Dev. , 658 So. 2d

at 530.

Appellant als o contends that the Commission's decision was

improperly influenced by public comments at the hearing, which

were based on inaccurate information and not supported by any

evidence. Appellant cites to testimony by members of the public

who characterized th e facility as a "jail," " detention center,"

and the like, claimed that it would generate nighttime traffic,

disturbances, and high intensity illumination , and made other

unsubstantiated assertions .

As pointed out by the County, the Commission has no cont rol

over the content of public comments. Under Appellant's logic,

the Commission would be forced to vet each speaker before a

meeting , allow only those it considered to be "informed" to offer

comments , and prevent "uninformed" members of the public from

p articipating . However, t he Commission's responsibility is to

afford all participants due process, place the proper weight, if

any, upon the testimony of public speakers, and base its decision

on competent substantial evidence. See Carillon Cmty.

Resident ial v. Seminole Cnty. , 45 3d 7, 10 (Fla. 5th DCA

2010)(participants in quasi - judicial proceeding are entitled to

some measure of due process). These same due process measures

are embodied in CS/CS/SB 50, which creates new section 286.0114,

Florida Statute s, requiring that member s of the public be given a

reasonable opportunity to be heard by a board or commission

before it takes official action on a proposition. If approved by

the Governor, the law takes effect October 1, 2013.

Appellant cites several cas es which hold that opinions of

neighbors, without more, do not constitute competent substantial

evidence. See, e.g. , City of Apopka v. Orange Cnty. , 299 So. 2d

657, 660 (Fla. 4th DCA 1974)(error to deny special exception

application where evidence in oppo sition to application was in

the main laymen's opinions unsubstantiated by any competent

facts); Pollard v. Palm Bch. Cnty. , 560 So. 2d 1358, 1359 - 60

(Fla. 4th DCA 1990) (Stone, J., dissenting) (lay witnesses'

speculation about potential "traffic problems, l ight and noise

pollution," and general unfavorable impacts of a proposed land

use are not considered competent substantial evidence). But cf.

Metro. Dade Cnty. v. Section II Prop. Corp. , 719 So. 2d 1204,

1205 (Fla. 3d DCA 1998) , rev. denied , 735 So. 2d 12 87 (Fla.

1999) (fact - based testimony of neighbor s regarding incompatibility

of project with surrounding neighborhood, coupled with site plan

and drawings, constituted competent substantial evidence to

support denial of exception).

The Commission's decision was not based solely or even

primarily on the comments of the lay witnesses, as Appellant

suggests. Among other things, the Commission relied on a

detailed staff report, the building plans submitted by Hoover,

the expert testimony of Mr. Haberman and Mr. Stuncard, and the

testimony of Hoover's chief financial officer, who candidly

acknowledged that the facility contained holding cells, interview

room, and armory, and that suspects would be detained and held

for questioning for up to five hours. Even if th e public

comments deemed to be objectionable by Appellant are disregarded

in their entirety, there is ample competent substantial evidence

in the record to support the challenged findings .

B . Point II

Hoover argues that the Commission departed from the

essential requirements of the law in two respects: by

misinterpreting t he definition of "public building s " in

section 101 - 1; and by finding that the provision of services must

be exclusively for the " immediate vicinity " in which the building

is located , while forbidding the provision of services in

additional areas, including the " imme diate planning area" in

section 130 - 43.

"P ublic building s " are defined in section 101 - 1 as :

o ffice and service buildings, uses or

facilities owned or operated by a

gover nmental agency , including publicly and

privately owned utilities, which are

compatible with or provide services to the

immediate vicinity in which the building is

located.

All parties agree that the facility will be operated by a

governmental agency , the reby satisfying the first part of the

definition . Appellant contends , however, that if the facility is

compatible with the immediate vicinity, or if it provides

services to the immediate vicinity, the requirements of the

definition have been met. 4 Th eref ore, Appellant argues that even

if the C ommission's determination that the facility is not

compatible with the neighborhood is sustained, the C ommission

must still issue a permit because the facility will provide

services to the immediate vicinity .

By co ncluding that the intended use "would not be consistent

with the definition of a public facility [ building ] as set forth

in § 101 - 1 , " the Resolution implicitly found that the facility is

not compatible with, nor will it provide services to, the

immediate v icinity . R., 150. This conclusion is drawn from

fact - based evidence that the facility's primary purpose is to

serve as a staging area for agents to apprehend (both on water

and land) , temporar ily det ain , and process individuals suspected

of engaging in a wide range of unlawful activities . Notably,

Hoover 's witness described ICE's "primary mission" as promoting

"homeland security and public safety through the criminal and

civil enforcement of federal laws governing border patrol,

customs, trade, and immig ration." R., 24. None of these

activities can be reasonably construed as providing a specific

benefit or service to those persons residing within a 300 - foot

radius of the building , as contemplated by the Code . There is

competent substantial evidence to support the Commission's

determination that the proposed facility is inconsistent with

both components of section 101 - 1. The Co mmission did not

misappl y or misconstrue the provision.

Appellant also points out that there are inconsistent

geographic limitat ions in section 130 - 43 ("immediate planning

area") and section 101 - 1 ("immediate vicinity") ; and that the

Commission erroneously found that the provision of services must

be exclusively for the immediate vicinity in which the building

is located . Appellan t argues that the two conflicting geographic

limitations should be harmonized, and so long as the public

building provides services to both the immediate planning area

and the immediate vicinity, the intended use satisfies the

requirements of the Code .

T o begin with, Appellan t defines the immediate planning area

as the entire Upper Keys stretching from the Channel 5 Bridge to

the Dade County line , including the Village of Islamorada and the

Towns of Tavernier and Key Largo . This area is much larger than

the immediate planning area of " Lower Key Largo (Tavernier) "

found to be appropriate by the Co mmission , a finding that is

clearly supported by the record . Second, the Commission did not

determine that the provision of services must be exclusively for

the immediate vicinity in which the building is located. To the

contrary, it specifically concluded that "the proposed facility

would not be consistent with the purpose as set forth in § 130 -

43." R., 150. This conclusion is drawn from fact - based evidence

th at the proposed " commercial " uses , described above, were not

intended primarily to serve the needs of t he immediate planning

area of Lower Key Largo (Tavernier), as required by section 130 -

43. The Commission did not depart from the essential

requirements of the law in construing the relevant provisions in

this fashion.

C . Point III

Finally, Appellant contends that the "Commission committed

error by basing its decision on the improper influence of a

hostile crowd." To the extent this argument raises a due process

concern, i.e., that Hoover was not afforded a fair and impartial

hearing, the issue cannot be raised in this appeal. See § 102 -

218(b), M.C.C. To the extent Appellant is arguing that the

Commission relied on unsubstantiated testimony to support i ts

decision, th is argument has been addressed in Point I.

A review of the record shows that eighteen members of the

public made comments to the Commission. The comments were given

in an orderly fashion, were generally brief, did not incite

fellow speake rs, contain threats, or rise to a level that would

require involvement by law enforcement personnel.

Appellant argues , however, that the Commission relied on

"crowd sentiment" and was improperly influenced by a " hostile "

audience when it made its decisio n. 5 For example, it cites a

comment by one Commissioner during deliberations that it was

"incredibly important to take into account . . . "what [the

neighborhood] views are on compatibility," R., 129, while another

Commissioner stated that he was "strongl y swayed by the

community's input." R., 131. But when the Commission finally

voted o n the matter, all Commissioners confirmed that their

decision to uphold the denial of the applications was based on

Mr. Schwab's letter, the evidence presented at the hea ring , the

building plans, and the testimony of all participants , including

two experts . Id. The argument is rejected.

D ECISION

Based on the foregoing , Resolution No. P 37 - 12 is affirmed in

all respects .

DONE AND ORDERED this 23rd day of May , 20 1 3 , in Tall ahassee,

Leon County, Florida.

S

D . R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, 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 23rd day of May , 20 1 3 .

ENDNOTE S

1/ After oral argument, Appellant filed a Notice of Supplemental

Authority containing 12 pages of land use maps taken from the

County's comprehensive plan , ostensibly to show that the entire

Upper Keys should be used as the "immediate planning area . "

2 / Since 1986, the ICE offices have been located approximately

five miles south of the subject property. R., 24.

3 / While disputing the underlying premise t hat the facility

"detains" individuals , Hoover's counsel agreed that "any facility

which involves the detention of individuals would not be

compatible with the single - family area." R., 19.

4/ The provision is poorly worded. As written, an intended use

by a governmental agency could be clearly incompatible with the

immediate vicinity, yet be entitled to a permit if it provides

services to the same area. Appellant suggests that under those

circumstances, the only way to deny a permit would be for the

C om mission to demonstrate that the intended use would be adverse

to the public interest , an issue not raised here .

5 / Appellant points out that "[d]uring the hearing, a show of

hands in opposition was allowed , " and this influenced the

Commission's decisio n. Initial Brief at 31. However, this was in

response to a member of the public who, while testifying, asked

for a show of hands of the people in the audience who opposed the

applications; the request was not posed by a Commissioner. R.,

82. The number of persons, if any, who raised their hands is

unknown. There is no evidence that this action i nfluenced the

Commissioners in their decision - making.

COPIES FURNISHED:

Gail Creech, Clerk

Monroe County Planning Commission

Marathon Governmental Center

Sui te 410

2798 Overseas Highway

Marathon, Florida 33050 - 4277

Franklin D. Greenman, Esquire

Franklin D. Greenman, P.A.

5800 Overseas Highway, Suite 41

Marathon, Florida 33050 - 2744

Nicholas W. Mulick , Esquire

Nicholas W. Mulick, P.A.

91645 Overseas Highway

Tavernier, Florida 33070 - 2558

S teven T. Williams, Esquire

Assistant County Attorney

1111 12th Street, Suite 408

Key West, Florida 3304 0 - 3005

NOTICE OF RIGHT S

Pursuant to a rticle VI, s ection 102 - 218(c), M.C.C., this Final

Order is "the final administ rative 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.