13-001245 Bluewater Key Rv Ownership Park Property Association, Inc. vs. Monroe County Planning Commission Status: Closed DOAH Final Order on Friday, November 15, 2013.

Summary: The Planning Commission's approval of the Letter of Development Rights Determination was supported by competent substantial evidence, did not depart from essential requirements of the law, and was not prohibited by statute of limitations or equity.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BLUEWATER KEY RV OWNERSHIP PARK

PROPERTY OWNERS ASSOCIATION,

INC. ,

Appellant ,

vs. Case No. 1 3 - 1245

MONROE COUNTY PLANNING

COMMISSION ,

Appellee .

/

FINAL ORDER

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

Appellant , Bluewater Key R V Ownership Park Property Owners

Association, Inc., ( Bluewater or Appellant), seeks r eview of

Monroe County Planning Commission (Commission ) Resolution

No. P 07 - 13 , which was passed and adopt ed by the Commission on

January 30, 2013, and rendered on March 1, 2013 . The Appeal to

the Hearing Officer was filed by Bluewater with the Monroe County

Planning & Environmental Resources Department on February 28,

2013.

Resolution No. P07 - 13 denied Bluewater 's appeal of a Letter

of Development Rights Determination that had been issued by the

Monroe County Growth Management Division on April 25, 2012 . The

Letter of Development Rights Determination determined that three

i mproved recreational vehicle lots located on property owned by

Bluewater , referred to as worker camper sites, were not lawfully

established at the time of the approval of the underlying

recreational vehicle park plat.

A three - volume R ecord of the underly ing proceeding ,

consisting of pages 000001 through 000440, was filed on April 15,

2013 . Bluewater filed a Motion for Extension of Time to File

Initial Brief, which was g ranted, and the Initial Brief was

thereafter timely filed on May 13, 2013 . The Commis sion filed a

Motion for Extension of Time to File Answer Brief, which was

granted, and the Answer Brief was thereafter timely filed on

June 17, 2013. Bluewater filed a Motion for Extension of Time to

File Reply Brief, which was granted, and the Reply Brie f was

thereafter timely filed on June 28 , 2013. Oral argument was

heard by video teleconferenc e at facilities in Marathon and

Tallahassee on September 30, 2013 . The parties waived their

right to file proposed final orders.

ISSUES

Bluewater raises four is sues on appeal: (1) whether the

Commission erred in failing to recognize that the three disputed

recreational vehicle lots were auxiliary Ð worker camperÑ site s

that were not subject to individual permitting under the land

development code; (2) whether the Commission failed to apply an

applicable statute of limitations; (3) whether the Commission is

estopped from denying approval for the three disputed

recreational vehicle spaces under the 2003 ÐMcGarry letterÑ ; and

(4) whether the Commission erred in retro actively applying the

1992 Monroe County Residential Rate of Growth Ordinance (ROGO) ,

to activities approved by the 198 9 plat approval. For the

reasons expressed below, the Commission did not depart from the

essential requirements of the law when it rende red Resolution

No. P07 - 13 .

BACKGROUND

The Bluewater Key RV Resort is located at 2950 U.S.

Highway 1 on Saddlebunch Key in Monroe County, Florida . The

Bluewater Key RV Resort came into existence as the Saddlebunch RV

Park, envisioned and developed in the l ate 1980s by Lloyd Good.

For purposes of this Final Order, the property will be described

as the ÐRV ParkÑ or ÐBluewater,Ñ regardless of its name at the

time of a described event.

Near the front gate of the RV Park , on common parcel s known

as Parcel C and Parcel D, are improved spaces for three

recreational vehicles (RVs) to park and hook up to Bluewater

services. Those three lots form the basis for the dispute

herein.

The Commission asserts that the three lots are unpermitted

RV lots and, since t hey have never been permitted, are subject to

the ROGO .

Bluewater asserts that the lots are, and have been, used by

persons providing upkeep of the RV Park common areas , and

services to BluewaterÓs lot owners , and that those Ð worker

camperÑ sites consti tute accessory uses for the Bluewater

property. Alternatively, Bluewater asserts that the lots were

known to the Commission at the time of the 1989 plat approval

thus preventing the Commission from taking action regarding the

lots under a statute of limit ations; that the lots are the

subject of an ÐamnestyÑ agreement memorialized by a 2003 ÐMcGarry

letterÑ ; and that the application of the 1993 ROGO to the lots

would constitute an unlawful retroactive application of the ROGO.

Evidence in the Record of the Commission Hearing

The CommissionÓs position largely hinges on the lack of any

contemporaneous evidence of the existence of the disputed worker

camper lots , and the lack of any effort or intent on the part of

Mr. Good to identify or account for the worker camper lots during

the permitting process. Thus, according to the Commission, the

lots were never permitted, do not lawfully exist, and may not be

rebuilt or be exempt from the ROGO.

Preliminary approval s and notices for the development of the

RV P ark included the following:

Ʊ On April 6, 1987, the Utility Board of the City of

Key West provided Mr. Good with a notice of availability of

electrical service sufficient to serve a recreational park of 80

units.

Ʊ On June 22, 1987, an impact fee summary was prepared

for the prop osed RV P ark. The fees assessed included those for

transportation, community park, library, police, and solid waste

services . Impact fees were assessed for 80 tr ansient residential

units, and one permanent residential unit. No impact fee s were

assessed for the worker camper lots .

Ʊ On July 28, 1987, a Certificate of Compliance with

the Monroe C ounty comprehensive plan was issued to Mr. Good for

an Ð80 Unit RV Park.Ñ The Certificate of C ompliance allowed Mr.

G ood to proceed with obtaining other necessary permits for the

developmen t of the RV Park .

Ʊ Prior to June 1987, Mr. Good submitted a Notice of

Intent to Construct Works Pursuant to General Permit to the South

Florida Water Management District. The works to be constructed

or altered under the general permit were Ð80 improve[d ] sites for

r/v, pool, laund[]ry (5 washers, 5 dryers) and a recreation room

(Building).Ñ No mention was made of additional permane nt ,

improved RV lots to serve the worker camper s .

Over the course of the following two years, a number of

building permits w ere issued by the Monroe County Building

Department for , among other things, the construction of a sew age

treatment plant and associated mains and facilities , site

preparation, road paving and drainage, and the provision of

facilities for the electrical se rvice . Each of the permits

identified th e improvements as serving an 80 - unit RV Park .

On July 20, 1988, Mr. Good submitted a Monroe County

Application for Plat Approval, Vacation, or Resubdivision for the

Saddlebunch Recreational Vehicle Park, which was described as

consisting of 80 RV lots. Aside from the 80 RV lots, the

application identified ÐOtherÑ areas as ÐStreets,Ñ ÐPark,Ñ and

ÐUtility Areas.Ñ No mention was made of the worker camper lots .

On April 27, 1989, the Commission, by its adoption of

Resolution 01 - 89, approved the plat for the RV Park, authorizing

the creation of 80 RV lots.

On September 21, 1989, Mr. Good wrote the Commission to

discuss the common areas associated with the RV P ark, and the

extent to which they should be considered as accessory uses

exempt from impact fees. In his letter, Mr. Go od discussed a

pool and recreation building as being accessory uses for the RV

P ark. The recreation building was described as containing Ða

managerÓs apartment, a laundry room for the lot owne rÓs use, two

bathrooms, and a large meeting hall. The use is clearly

accessory and necessary to the RV spaces and will not constitute

an increase in intensity or use.Ñ Mr. Good concluded his letter

by stating that:

Lastly t his recreation building, pool a nd

managerÓs apartment were permitted as of

right as accessory uses under section 9.5 -

244(a)(3) and constitute a necessary

component of the RV Park itself. Without

this type of structure or use the

Recreational Vehicle Park would not function

within it s purpose . . . as an area Ðsuitable

for development of destination resorts for

recreational vehicles.

I request that the Rec building, pool and

managerÓs apartment be exempt from impact

fees as accessory uses under the plan, and

submit that any impact fe es assessed and

payable for each of the 80 RV spaces covers

all reasonable impacts for these uses.

No mention was made of the worker camper lots as accessory uses .

No provision was made to account for reasonable impacts of the

worker campers or for any i ncrease in intensity or use at the RV

P ark occasioned by the occupancy of the worker campers.

Finally, on September 27, 1989, the Monroe County Building

Department issued a Certificate of Occupancy for the RV Park.

The Building Permit and fee schedule at tached thereto makes note

of the 80 transient residential (RV) spaces and the permanent

residential unit, but makes no mention of the improved worker

camper lots .

McGarry Letter

In 1993, Timothy McGarry, the Monroe County Director of

Growth Management, along with a number of county officials, met

with residents of the RV Park regarding unpermitted improvements

to the RV lots that had been made by some of the residents . The

attendees toured the property.

On May 1, 2003, Mr. McGarry sent a letter to the ÐBluewater

Key RV Resort Property Owner.Ñ The emphasis of the McGarry

letter was on appurtenant structures associated with the 80 RV

lots, i.e., tiki huts, storage facilities, walkways, spas, and

the like. There was no discussion of any of the RV Park c ommon

areas.

Bluewater asserts that the McGarry letter, in and of itself,

created an amnesty for any unpermitted improvements. To the

contrary, the McGarry letter advised owners to contact the Growth

Management Division to set up an appointment for an i nspection of

unpermitted improvements in order to identify and provide a

mechanism for their approval. If an owner failed to contact the

county or take steps to bring their property into compliance by

June 30, 1993, Ðthe County will follow up with further

inspections and pursue possible code enforcement action, if

warranted.Ñ As stated by Joe Haberman, the Monroe County

Planning and Development Review Manager , the letter had the

effect of acting as a Ðstay of prosecutionÑ rather than a blanket

amnesty.

On May 3, 2003, Bluewater acknowledged receipt of the

McGarry letter, and noted that Ðeach owner has until June 30th to

contact the county to set up an inspection of their lot for

possible code non - compliance.Ñ The letter continued with

Bluewater indicating that it would Ðsend a written copy (of the

McGarry letter) to each owner so that they can make their own

determination of what course of action they want to pursue.Ñ

There is no evidence in the record of this proceeding to

suggest that Bluewater ever cont acted Monroe County to advise it

of the worker camper lots . Thus, the remedies for unpermitted

improvements provided in the McGarry letter are not applicable or

available to remedy any unpermitted improvement of the worker

camper lots .

Bluewater argue s that the worker camper lots were open and

obvious to anyone on the property. Thus, the inspectors sh ould

have seen the worker campers, and cited the owner of the RV Park

for a violation had there been any problem. The evidence

supports a finding that t he worker camper lots were improved as

early as 1987 and , for some of the time, were occupied by RVs.

However, the record lacks evidence of any specific information

provided by Bluewater to the inspectors regarding the use or

permanence of the RVs. Certa inly during the 1987 - 1989 period of

construction , it would not have been out of the ordinary for

there to have been any number of construction trailers and

vehicles on the site. After that time, the evidence provided to

the Commission was that the worker campers came and went. In the

absence of some actual notice to Monroe County regarding the use

and permanence of the worker campers, knowledge of the use cannot

be attributed by supposition.

Chapter 138, Article II of the Monroe County Code

establi shes the ROGO. Section 138 - 21 generally provides that the

ROGO applies to all residential dwelling units for which a

building permit is required , a nd for which building permits were

not issued prior to July 13, 1992 . Section 138 - 22 establishes

types of development not affected by the ROGO , none of which are

applicable in this case.

On April 23, 2010, Bluewater filed a Request for a Letter of

Development Rights Determination , and requested acknowledgement

from Monroe County that the Bluewater RV Park inc luded 85

residential units that were lawfully in existence and therefore

exempt from further allocation decisions under the ROG. The 85

dwelling units included the 80 RV lots that were created and sold

to individuals, the permanent managerÓs apartment, an 81st RV

lot, 1/ and the three worker camper lots.

Bluewater contends that the disputed worker camper lots were

subject to the various building permits issued for the RV Park

between 1987 and 1989, which resulted in the September 27, 1989 ,

issuance of the Certificate of Occupancy . Bluewater asserts that

the Commission erred in determining that the worker camper lots

were not lawfully permitted or approved, and are , therefore , not

exempt from the ROGO permit allocation system , as reflected in

Resolution No . P07 - 13 .

On April 25, 2012, t he Senior Director of Planning and

Environmental Resources issued the Letter of Development Rights

Determination which found that the RV Park lawfully consisted of

80 transient residential dwelling units and one permanent

re sidential dwelling unit, and which determined that the worker

campers lots, having not been lawfully established, were not

exempt from the R OGO permit allocation system.

On May 15, 2012, Bluewater timely appealed the Letter of

Development Rights Determin ation to the Commission. Bluewater

filed a number of memoranda in support of its appeal.

The staff of the Growth Management Division prepared a

report dated J anuary 13, 2013 , in which it continued to support

the Letter of Development Rights Determinatio n , and the denial of

the exempt ion of the worker camper lots from the ROGO permit

allocation system.

The hearing was set for January 30, 2013, and was properly

noticed by Bluewater. On January 30, 2013 , the Commission

conducted a hearing on the appeal.

At the hearing, the Commission was represented by Steve

Williams of the Monroe C ounty AttorneyÓs Office. Rey Ortiz, the

Planning and Biological Plans Examiner Supervisor , presented the

staff report to the Commission. Counsel for Bluewater was

allowed t o question staff, and to make a presentatio n on behalf

of Bluewater. The T ranscript of the hearing notes several

Ðunidentified speakers,Ñ who by the context of the statements

appeared to be owners of one or more of the 80 permitted lots in

the RV Park. T estifying at the hearing were members of the

Commission staff, including Mr. Ortiz and Joe Haberman; Richard

Nageotte, a n RV lot owner and member of the Bluewater board of

directors; Ron LaCroix, a n RV lot owner and vice - president of

Bluewater; Suellen Sch wobel, a n RV lot owner; Wayne Wuerl, a n RV

lot owner; Alicia Putney, who appeared to be a n RV lot owner;

William Ogle, who owned several RV lots; Skip Oetzel, a n RV lot

owner; Mike Hecht, who read a letter from Mr. Nageotte into the

record; Carl Schwobel, a n RV lot owner and president of

Bluewater; and Joyce Newman, a resident of Big Pine Key.

At the conclusion of the hearing, the Commission voted

unanimously to deny to appeal and uphold the April 25, 2012 ,

Letter of Development Rights Determination . Tha t decision is

memorialized in Resolution No. P 07 - 13 rendered on March 1, 2013 .

The Resolution made the following findings of fact :

1. The administrative decision appealed is a

determination that three existing RV spaces

on part of Tract D were not lawfu lly

established. In addition, the appellant

asserted that the CountyÓs ÐstatuteÑ of

limitations would have barred the County from

requiring an after - the - fact Ðbuilding permitÓ

four years after the RVÓs arrived at the

site; and

2. RV spaces are a type o f dwelling unit .

As defined in Monroe County Code Section 101 -

1, a dwelling unit is one (1) or more rooms

physically arranged to create housekeeping

establishment for occupancy by one (1) family

with separate toilet facilities. Further, as

defined in Mon roe County Code Section 138 -

19(a), a residential dwelling unit is a

dwelling unit as defined in Monroe County

Code Section 101 - 1, and expressly includes

the following other terms also specifically

defined in Section 101 - 1: lawfully

established hotel room, campground spaces,

mobile homes, transient residential units,

institutional residential units (except

hospital rooms) and live - aboards. Further,

RV spaces are transient residential units.

As defined in Monroe County Code Section 101 -

1, a transient resid ential unit , is a

dwelling unit used for transient housing such

as a hotel or motel room, or space for

parking a recreational vehicle or travel

trailer; and

3. There are no records in the Growth

Management DivisionÓs file approving the

existence or righ t to have any [sic] the

subject RV spaces; and

4. Pursuant to Monroe County Code Section

110 - 140, a building permit is required for

any work specified in Monroe County Code

Chapter 6 (Buildings and Construction) and

any change in the intensity, density, or use

of land authorized as a permitted as - of - right

use under [the Land Development Code]. A RV

space affects intensity, density, and use.

Therefore, a building permit was required to

establish any additional RV spaces; and

5. RV spaces established w ithout the benefit

of permit(s) are not considered lawful and

not exempt from the Residential Rate of

Growth Ordinance (ROGO) permit allocation

system; and

6. On April 23, 2010, Bluewater Key RV

Ownership Park Owners Association, Inc.

applied to the Pla nning & Environmental

Resources Department for a Reque st for a

Letter of Development Rights Determination;

and

7. On April 25, 2012, the Senior Director of

Planning & Environmental Resources, Townsley

Schwab, issued a Letter of Development Rights

Determi nation to Bluewater Key RV Ownership

Park Property Owners Association determining

that only 80 transient residential dwelling

units (in the form of RV spaces on Lots 1 - 80)

and one (1) permanent residential dwelling

unit (in the form of an apartment) are

la wfully - established; and

8. In the April 25, 2012 Letter of

Development Rights Determination, it was

specifically determined that there was not

adequate evidence that the three RV spaces on

part of tract D were lawfully established;

and

9. Pursuant to Monroe County Code Section

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 th e land development

regulations of the Monroe County Code, except

for appeals regarding the floodplain

management provisions . . . .

The Resolution made the following Conclusions of Law:

1. The administrative appeal was processed

and heard by the Planning Commission in a

manner consistent with the provisions of the

Monroe County Code; and

2. Based on the information provided in the

April 25, 2012 Letter of Development Rights

Determination (and attachments thereto), the

three RV spaces, or worker camper sites, were

not lawfully established with an approved

permit(s) as required by the Land Development

Code. There are no records in the Growth

Management DivisionÓs files approving the

existence or right to have any of the subject

RV spaces. Therefore, as the RV spaces were

established without the benefit of permit(s),

and they are not considered lawful and they

are not exempt from the Residential Rate of

Growth Ordinance (ROGO) permit allocation

system; and

3. Regarding the AppellantÓs reference to a

st atute of limitations, the provision is

related to Code Compliance and, as such, not

a relevant consideration to the subject

administrative decision . . . .

The Resolution concluded by resolving that:

The preceding Findings of Fact and

Conclusions of Law su pport [the CommissionÓs]

decision to [sic ] denying an administrative

appeal by Bluewater Key RV Ownership Park

Property Owners Association an d affirming an

administrative decision by Townsley Schwab,

Senior Director of Planning & Environmental

Resources, t hat the three (3) recreational

vehicle spaces, referred to by [Bluewater] as

worker camper sites, were not lawfully

established and established without the

benefit of permit(s) on property legally

described as part of Tract D, Saddlebunch

Recreational Vehi cle Park (Plat Book 7, Page

51), Monroe County, Florida, having real

estate number 00120490.000184.

On February 28, 2013, Bluewater timely appealed th e

CommissionÓs decision .

LEGAL DISCUSSION

Pursuant to a contract between t he Division of

Administrative Hearings (DOAH) and Monroe County , DOAH has

jurisdiction to review by appeal the action of the Commission

pursuant to s ection 102 - 213 , M.C.C.

In rendering a final order, th e undersigned is subject to

the following standard of review :

Within 45 days of oral argument, the hearing

officer shall render an order that may

affirm, reverse or modify the order of the

planning commission. T he hearing officer's

order may r eject or modify any conclusion of

law or interpretation of the county land

development regul ations 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 o f 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 e ssential requirements of the law.

§ 102 - 218(b), M.C.C.

The standard of review under section 102 - 21 8(b) , M.C.C. , is

substantially similar to the certiorari standard applied by

Article V courts. That standard has been applied to mean Ð that

Ò applied the correct law Ó is synonymous with Ò observing the

essential requirements of law. ÓÑ Haines City Cmty. Dev. v.

Heggs , 658 So. 2d 523, 530 (Fla. 1995) ; see also Miami - Dade C nty .

v. Omnipoint Holdings, Inc. , 863 So. 2d 195, 199 (Fla. 2003);

Wolk v. Bd. of Co . C omm'rs , 117 So. 3d 1219, 1223 - 1224 (Fla. 5th

DCA 2013). The correct law may derive from the Monroe County

Code of Ordinances. Wolk v. Bd. of Co. Comm'rs , 117 So. 3d at

1224.

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) ; se e also Town of Manalapan v. Gyongyosi , 828 So. 2d

1029, 1032 (Fla. 4th DCA 2002)(ÐThe Òcompetent substantial

evidenceÓ standard of review . . . Òis tantamount to legally

sufficient evidence.ÓÑ) . S o long as there is competent

substantial evidence supportin g the findings made by the

Commission in reaching its decision , th ose findings 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). Whether the record also contains competent substantial

evidence to support a different result is irrelevant. Clay C nty .

v. Kendale Land Dev., Inc. , 969 So. 2d 1177, 1181 (Fla. 1st DCA

2007). The scope of review regarding the competent substantial

evidence standard requires only that the undersigned:

review the record to assess the evidentiary

support for the agency's decision. Evidence

contrary to the agency's decision is outside

the scope of the inquiry at this point, for

t he reviewing court above all cannot reweigh

the Ð pros and cons Ñ of conflicting evidence .

While contrary evidence may be relevant to

the wisdom of the decision, it is irrelevant

to the lawfulness of the decision. As long

as the record contains competent s ubstantial

evidence to support the agency's decision,

the decision is presumed lawful and the

court's job is ended.

Dusseau v. Metro. Dade C nty . Bd. of Co . Comm' r s , 794 So. 2d 1270,

1276 (Fla. 2001) .

I. Whether the three disputed recreational vehicle spaces were

auxiliary Ð worker camperÑ sites that were not subject to

permitting.

Sec tion 138 - 19 (a) , M.C.C., establishes definitions to be

applied to the ROGO as follows:

Definitions. The following words, terms and

phrases, when used in this article, sh all

have the meanings ascribed to them in this

section, except where the context clearly

indicates a different meaning:

* * *

Lawfully established for ROGO/NROGO exemption

means a residential dwelling unit or

nonresidential floor area that has received a

permit or other official approval from the

division of growth management for the unit

and/or nonresidential floor area.

* * *

Residential dwelling unit means a dwelling

unit as defined in section 101 - 1, and

expressly includes the following other term s

also specifically defined in section 101 - 1:

rooms, hotel or motel, campground spaces,

mobile homes, transient residential units,

institutional residential units (except

hospital rooms) and live - aboard vessels.

Section 101 - 1, M.C.C., establishes definiti ons to be used in

construing c hapter 138, Article II , which include the following

terms that are pertinent to this proceeding:

Accessory use or accessory structure

means a use or structure that:

(1) Is subordinate to and serves an existing

principal use or principal structure; and

(2) Is subordinate in area, extent and

purpose to an existing principal use or

principal structure served; and

(3) Contributes to the comfort, convenience

or necessity of occupants of the principal

use or principal stru cture served; and

(4) Is located on the same lot/parcel or on

a lot/parcel that is under the same ownership

as the lot/parcel on which the principal use

or principal structure is located; and

(5) Is located on the same lot/parcel or on

a contiguous lo t/parcel as an existing

principal use or principal structure,

excluding accessory docking facilities that

may be permitted on adjacent lots/parcels

pursuant to section 118 - 12; and

(6) Is located in the same land use (zoning)

district as the principal us e or principal

structure, excluding off - site parking

facilities pursuant to section 114 - 67

Accessory uses include the utilization of

yards for home gardens, provided that the

produce of the garden is for noncommercial

purpose . In no event shall an access ory use

or structure be established prior to the

principal use to which it is accessory .

Accessory uses shall not include guest units

or any other potentially habitable

structures . Habitable structures are

considered to be dwelling units as defined in

th is section.

* * *

Development means the carrying out of

any building activity, the making of any

material change in the use or appearance of

any structure on land or water, or the

subdividing of land into two or more parcels.

(1) Except as provided in subsection (3) of

this definition, for the purposes of this

chapter, the following activities or uses

shall be taken to involve "development":

* * *

b. A change in the intensity of use of

land, such as an increase in the number

of dwelling units in a structure or on

land or a material increase in the

number of businesses, manufacturing

establishments, offices or dwelling

units in a structure or on land;

* * *

(2) The term "development" includes all

other activity customarily associated with

it. When appropriate to the context,

"development" refers to the act of developing

or to the result of development. Reference

to any specific operation is not intended to

mean that the operation or activity, when

part of other operations or activities, is

not development. Reference to particular

operations is not intended to limit the

generality of this definition.

(3) For the purpose of this chapter, the

following operations or uses shall not be

taken to involve "development":

a. Work involving the mainte nance,

renewal, improvement or alteration of

any structure, if the work affects only

the color or decoration of the exterior

of the structure or interior alterations

that do not change the use for which the

structure was constructed;

b. Work involving the maintenance of

existing landscaped areas and existing

rights - of - way such as yards and other

nonnatural planting areas;

c. A change in use of land or structure

from a use within a specified category

of use to another use in the same

category unless t he change involves a

change from a use permitted as of right

to one permitted as a minor or major

conditional use or from a minor to a

major conditional use;

d. A change in the ownership or form of

ownership of any parcel or structure;

e. The creation or termination of

rights of access, riparian rights,

easements, covenants concerning

development of land, or other rights in

land unless otherwise specifically

required by law; or

f. The clearing of survey cuts or other

paths of less than four feet in width

and the mowing of vacant lots in

improved subdivisions and areas that

have been continuously maintained in a

mowed state prior to the effective date

of the plan, the trimming of trees and

shrubs and gardening in areas of

developed parcels that are no t required

open space and the maintenance of public

rights - of - way and private accessways

existing on the effective date of the

ordinance from which this chapter is

derived or approved private rights - of -

way.

(4) The term "development" also means the

to urist housing use or vacation rental use of

a dwelling unit, or a change to such a use

(i.e., conversion of existing dwelling units

to vacation rental use) . Vacation rental use

of a dwelling unit requires building permits,

inspections and a certificate of occupancy.

* * *

Dwelling unit means one or more rooms

physically arranged to create a housekeeping

establishment for occupancy by one family

with separate toilet facilities . The

abbreviation "DU" means dwelling unit.

* * *

Residence or residential use, as applied

to any lot, plat, parcel, tract, area or

building, means used or intended for use

exclusively for dwelling purposes, but not

including hotel rooms.

* * *

Transient residential unit means a

dwelling unit used for transient housing such

a s hotel or motel room, seasonal residential

unit, or space for parking a recreational

vehicle or travel trailer.

Section 138 - 21 describes the type of development affected by

the ROGO as follows:

The residential ROGO shall apply to all

residential dwellin g units for which a

building permit is required by this chapter

and for which building permits have not been

issued prior to July 13, 1992, except as

otherwise provided herein.

Section 138 - 22 establishes types of development not affected

by the ROGO, an d provides, in pertinent part, as follows:

The residential ROGO shall not apply to

the development described below:

(1) Redevelopment on - site. Redevelopment,

rehabilitation or replacement of any

lawfully established residential

dwelling unit or space that does not

increase the number of residential

dwelling units above that which existed

on the site prior to the redevelopment,

rehabilitation or replacement shall be

exempt from the residential ROGO system.

When read in its entirety, the Monroe County Code

establishes a process by which a residential dwelling unit , which

includes an R V as a transient residential unit , may be exempt

from the ROGO, provided that the residential dwelling unit was

lawfully created, as evidenced by a permit or other approval .

The Commission determined, based on competent, substantial

evidence in the record, including the testimony offered at the

hearing, that the worker camper lots had not been lawfully

created, and were thus not exempt from the ROGO.

II . Whether the Commis sionÓs approval of the Letter of

Development Rights Determination and denial of BluewaterÓs appeal

departed from the e ssential r equirements of the l aw .

Resolution No. P 07 - 13 sustained Letter of Development Rights

Determination , and determined correctly th at the disputed worker

camper lots had been established without the benefit of permit s

and were therefore not exempt from the ROGO permit allocation

system . T he findings are consistent with c hapter 138, M.C.C. ,

which establishes the ROGO, and section 101 - 1, which defines the

words, terms, and ph r ases used in the ROGO. Bluewater has

neither alleged nor argued that the decision of the Commission

was taken without regard to the procedural requirements and

protections to be afforded to one challenging the Com missionÓs

action. BluewaterÓs disagreement hinges on the substance of the

CommissionÓs action. As set forth herein, the Commission applied

the correct law and acted in accordance with the competent

substantial evidence before it when it sustained the Let ter of

Development Rights Determination , and thus did not depart from

the essential requirements of the law in taking its action .

III . Whether the Commission was bound by an applicable statute

of limitations .

The issue before the undersigned is the det ermination of the

number of existing units that were lawfully created pursuant to

past permitting decisions , or were created before the permits

were required . If the disputed RV lots were not lawfully

created, they are not exempt from the ROGO permit allo cation

system.

This case is no t a code enforcement proceeding designed to

mete out fines and penalties for violations of the Monroe County

Code. The issue of whether a statute of limitations might apply

to prevent a code enforcement officer from issuing a notice of

infraction upon discovery of a code violation, and whether any

applicable statute of limitations would run from the date of the

creation of the violation or from the date of discovery of the

violation , are not issues before the undersigned .

A s to the applicability of a statute of limitations to a

fundamentally administrative proceeding as is the one at issue,

it is well established that statutes of limitation do not apply.

Cf. Sarasota C nty . v. Nat'l City Bank , 902 So. 2d 233, 234 - 235

(Fla. 2 nd DCA 2005) (Ð. . . the statutes of limitation in chapter

95 do not apply to administrative license revocation proceedings.

. . . Nothing in section 95.11(3)(c) suggests that the

legislature intended it to apply to quasi - judicial proceedings

initiated pur suant to any administrative law, and we are inclined

to conclude the same as to all of chapter 95. Enforcement

proceedings brought under part I of chapter 162 are

administrative actions that simply are not subject to the statute

of limitations provided in section 95.11(3)(c). Ñ ); Stoky v .

Monroe C nty . , Fl a . , Case No. 00 - 0377DRI (Fla. DOAH Oct. 12,

2001) (Ð The Stokys argue that their application for a permit to

reconstruct the screened porch must be approved because [it] had

been in place for more than four y ears. This argument is

rejected as without merit. The only support the Stokys cite in

their argument is the decision of the Circuit Court for the

Sixteenth Judicial Circuit in LaTorre v. Monroe County , Case No.

96 - 1109, (October 6, 2000), . . . that the four - year statute of

limitations bars a code - enforcement action . The action in the

instant case is not a code - enforcement action, and the Stokys did

not present any argument to establish that any statute of

limitation bars the County from denying an appli cation for a

building permit. Ñ).

Based on the foregoing, the Letter of Development Rights

Determination is not prohibited by the application of a statute

of limitations.

IV. Whether the Commission is estopped from denying approval for

the three disputed worker camper lots under the 2003 ÐMcGarry

letter . Ñ

Bluewater asserts variously that the Commission is estopped

from determining that the worker camper lots were not lawfully

established due to the May 1, 2003 , ÐMcGarry letter,Ñ or that the

passage of ti me since the worker camper lots were first used on

the property warranted the application of the doctrine of laches

to prevent the Commission from taking any action inconsistent

with a determination of their lawful existence.

As set forth in the findings o f fact, at no time did

Bluewater advise Monroe County of the existence of the worker

camper lots . It was not until 201 0 , when Bluewater made

application for a determination as to the number of dwelling

units that could be rebuilt and exempt from the ROGO, that the

worker camper lots were revealed. Thus, the application of

estoppel or laches against the Commission to prevent its action

is based on BluewaterÓs view of what the Commission should have

known, or on knowledge attributed to the Commission bas ed on

conjecture and supposition, rather than on actual and direct

knowledge.

Estoppel

With regard to the allegation that the Commission was

estopped by its prior actions, or lack thereof, from determining

that the unpermitted worker camper lots were not e xempt from the

ROGO, it is well established that:

The burden is on the party asserting estoppel

to prove facts giving rise to estoppel . See

Jarrad v. Assocs. Discount Corp . , 99 So. 2d

272, 277 (Fla. 1957) ("The burden of proving

all the facts essential to the working of an

estoppel rests on the party asserting it or

on whose behalf it is applied. Ñ (citing

First Nat'l Bank of Arcadia v. Savarese , 101

Fla. 480, 134 So. 501 (Fla. 1931)));

Flanigan's Enters., Inc. v. Barnett Bank of

Naples , 614 So. 2d 1198, 1 200 (Fla. 5th DCA

1993) ("It is well established that when

estoppel is raised as a defense, the burden

of proof is on the party asserting it. Ñ

(citing Ennis v. Warm Mineral Springs, Inc . ,

203 So. 2d 514 (Fla. 2d DCA 1967))); State v.

Hadden , 370 So. 2d 84 9, 852 (Fla. 3d DCA

1979) ("The burden of proving an estoppel

rests on the party invoking it, and every

fact essential to estoppel must be proved. Ñ

(citing Erwin v. Dekle , 60 Fla. 56, 53 So.

441 (Fla. 1910))); Ennis v. Warm Mineral

Springs, Inc . , 203 So. 2d 514, 519 (Fla. 2d

DCA 1967) ("The burden of proving estoppel

rests upon the party invoking it. Ñ (citing

Connelly v. Special Rd. & Bridge Dist. No. 5 ,

99 Fla. 456, 126 So. 794 (Fla. 1930))).

City of Jacksonville v. Coffield , 18 So. 3d 589, 596 (Fla. 1st

DCA 2009 ) . In that case, the First District Court of Appeal

continued its analysis of the doctrine of estoppel by holding

that:

Equitable estoppel is appropriate where the

proof shows "(1) a property owner's good

faith reliance (2) on some act or o mission of

the government and (3) a substantial change

in position or the incurring of excessive

obligations and expenses so that it would be

highly inequitable and unjust to destroy the

right he acquired. Ñ Equity Res. Inc. v.

County of Leon , 643 So. 2d 1 112, 1117 (Fla.

1st DCA 1994) (quoting Franklin County v.

Leisure Props., Ltd . , 430 So. 2d 475, 479

(Fla. 1st DCA 1983)) . In a land use context,

we said:

One party will not be permitted to

invite another onto a welcome mat and

then be permitted to snatch the mat away

to the detriment of the party induced or

permitted to stand thereon . A citizen

is entitled to rely on the assurances or

commitments of a zoning authority and if

he does, the zoning authority is bound

by its representations, whether they be

i n the form of words or deeds. . . .

Id . at 1120 (quoting Town of Largo v.

Imperial Homes Corp . , 309 So. 2d 571, 573

(Fla. 2d DCA 1975)) . Thus a necessary

precondition for equitable estoppel against

the government is a governmental act or

omission that in vites a citizen "onto a

welcome mat."

Id. at 597.

It is equally well established that e quitable estoppel is to

be applied against governmental entities only in rare instances

and under exceptional circumstances . Monroe C nty . v. Hemisphere

Equity Realt y , 634 So. 2d 745 , 747 (Fla. 3rd DCA 1994).

This case therefore presents no rare or exceptional

circumstance that would warrant the application of estoppel

against the Commission. Rather, t his case involves nothing more

than an unpermitted and undisclo sed improvement to property that,

upon its discovery, was found to be unauthorized and therefore

ineligible for an exemption from an applicable land use

ordinance. The fact that the Monroe County Growth Management

Division offered to work with RV Park pro perty owners to resolve

disputes over disclosed unpermitted improvements did not create a

blanket amnesty for all unpermitted improvements. Thus, the

McGarry letter did not create an equitable bar regarding the

previously undisclosed worker camper lots.

Bluewater cites to the case of Castro v . Miami - Dade Code

Enforcement , 967 So. 2d 230 (Fla. 2007), as supporting the

application of estoppel in this case. The assertion fails due to

the fact that Castro involved the county Ós issuance of a permit

for a spe cific improvement, i.e. a family room addition. There

was no question that the permit authorized the family room, as

did subsequent permits for the re - roofing of the family room and

for iron works involving the family room. When, more than 20

years later , it came to the attention of the county that the

family room violated a setback, the county attempted to take

enforcement action for the alleged code violation and to require

that the family room addition be demolished. In that case, the

Court determined that the countyÓs knowing issuance of the permit

for the construction of the family room, among other

considerations, warranted the application of equitable estoppel

to prevent the countyÓs intended action.

Contrary to the situation before the Court in Ca stro ,

Bluewater was unable to produce a single piece of competent,

substantial evidence that the worker camper lots were the subject

of any permit or approval from the Commission. Rather, the

permits and supporting information were limited to the 80 RV

lo ts. Furthermore, when Mr. Good identified the accessory uses

for the RV Park, he identified only the recreation building,

including the managerÓs apartment and laundry, and the pool. No

mention was made of the worker camper lots. Therefore, unlike

Castr o and its explicit recognition of the use being permitted,

the record is devoid of any form of notice by which knowledge of

the worker camper lots could be attributed to the Commission.

Thus, the Castro opinion offers no support for the application of

equ itable estoppel in this case.

Laches

With regard to the allegation that the Commission was

prevented by the application laches from determining that the

unpermitted worker camper lots were not exempt from the ROGO, d u e

to the length of time that had elaps ed since RVs were first

parked at the lots, it is well established that:

. . . l apse of time alone is insufficient to

support a finding of laches. The test in

determining whether laches exists is

whether the delay has resulted in injury,

embarrassment, or disadvantage to any person,

and particularly to the person against whom

the relief is sought. Furthermore, laches is

an affirmative defense. As such, the burden

of proving it is on those who assert it, and

it must be proved by very clear and positive

ev idence.

Smith v. Bithlo , 344 So. 2d 1288, 1289 (Fla. 4th DCA 1977) .

More recently, the Third District Court of Appeal has

described the standard for the application of laches as follows:

The affirmative defense of laches required

[the party asserting the defense] to prove

four elements: (1) conduct on her part giving

rise to the Code Enforcement notices of

violation; (2) unreasonable delay by Code

Enforcement despite knowledge of [the party

asserting the defense] 's violations; (3) a

lack of knowledge by [t he party asserting the

defense] that Code Enforcement would proceed

on the violations; and (4) injury or

prejudice to [the party asserting the

defense] when the violations were prosecuted.

. . . In this case, the special magistrate

found that Code Enforce ment did not have

actual knowledge of [the party asserting the

defense] 's violations until 2006 . The trial

court found that information in the records

of the Monroe County Property Appraiser

should have been imputed to the County Code

Enforcement office. As a matter of law,

however, mere notice to one independent

office or agency of government is not imputed

to another such office.

Monroe C nty . v. Carter , 41 So. 3d 954, 957 (Fla. 3rd DCA 2010).

As set forth herein, there is no competent, substantial

evid ence to support a finding that the Commission, or any

representative of Monroe County, was ever provided with specific

notice of the worker camper lots. In fact, when identifying

accessory uses to be associated with the RV Park, Mr. Good

identified the po ol and the recreational building, both of which

were permitted accessory use improvements ( see description of

Permit No. 891 - 0359), but made no mention of the worker camper

lots. Furthermore, there is nothing in the descriptions of the

permits issued for the property that would suggest that electric

or sewer service was being provided for worker camper lots.

As set forth above, t his case involves an unpermitted and

undisclosed improvement to property that, upon its discovery, was

found to be unauthorized and therefore ineligible for an

exemption from an applicable land use ordinance. The conduct

that gave rise to the CommissionÓs action was the direct result

of BluewaterÓs predecessor in title. The responsibility for

taking action to bring property up t o code runs with the land.

Monroe C nty . v. Whispering Pines Asso c. , 697 So. 2d 873, 875

(Fla. 3rd DCA 1997). Given the lack of notice to Monroe County

regarding the establishment of the worker camper lots, there was

no unreasonable delay by the Commissio n in determining that the

lots were not lawfully established and permitted, and were th u s

not exempt from the ROGO.

Based on the foregoing, Bluewater failed to demonstrate that

the action of the Commission should be set aside by application

of the equitabl e doctrine of laches.

V. W hether the Commission retroactively appl ied ROGO standards

to the activities approved by the 1989 plat approval.

As indicated herein, the CommissionÓs action as to the

development rights existing on the Bluewater property was based

on whether the three improved worker camper lots were lawfully

established under applicable provisions of the Monroe County

Code. T he CommissionÓs determination that the lots were created

without having been permitted, and that permits for the thre e

lots were required when the Saddlebunch RV Park was approved ,

constituted a reasonable and permissible interpretation of the

Monroe County C ode. Furthermore, the CommissionÓs decision was

supported by co mpetent substantial evidence , and the proceeding

h eld before the C ommission complied with the essential

requirements of the law .

D ECISION

Based on the foregoing , Resolution No. P 07 - 13 , which denied

BluewaterÓs appeal of the April 25, 2012 , Letter of Development

Rights Determination , is affirmed in all re spects .

DONE AND ORDERED this 1 5 th day of November , 20 1 3 , in

Tallahassee, Leon County, Florida.

S

E. GARY EARLY

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 15 th day of November , 20 1 3 .

ENDNOTE

1/ The 81st RV lot was determined by Resolution No. P07 - 13 to be

not exempt under the ROGO. The lot was subsequently authorized by

Minor Conditional Use Permit Development Order No. 03 - 13, which

approved a transfer of ROGO exemption to Bluewater. The

resolution of that matter has no effect on this proceeding.

COPIES FURNISHED:

Lee Robert Rohe, Esquire

Lee R. Rohe, P.A.

Suite 2

25000 Overseas Highway

Summerland Key, Florida 33042

Steven T. Williams, Esquire

Monroe County AttorneyÓs Office

Suite 408

1111 12th Street

Key West, Florida 33040

Gail Creech , Clerk

Monroe County Planning Commission

2798 Overseas Highway, Suite 410

Marathon, Florida 33050

NOTICE OF RIGHT S

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

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

It is subject t o judicial review by common law petition for writ

of certiorari to the circuit court in the appropriate judicial

circuit.