16-000587 Norman Wartman vs. Monroe County Planning Commission Status: Closed DOAH Final Order on Tuesday, June 28, 2016.

Summary: There is competent substantial evidence in the record to support the decision of the Monroe County Planning Commission which denied Appellant's application for a Vacation Rental Exemption.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NORMAN WARTMAN,

Appellant ,

vs. Case No. 16 - 0587

MONROE COUNTY PLANNING

COMMISSION,

Appellee .

_______________________________/

FINAL ORDER

Pursuant to section 102 - 214 of the Monr oe County Land

Development Code (ÐCodeÑ), Appellant, Norman Wartman, seeks

review of a decision of the Monroe County Planning Commission.

Briefs were submitted by the parties and oral argument was

presented on June 13, 2016, by video teleconference at sit es in

Tallahassee and Key West, Florida , before Bram D. E. Canter, the

Hearing Officer assigned by the Division of Administrative

Hearings (ÐDOAHÑ).

PRELIMINARY STATEMENT

On June 30, 2015, the Monroe County Planning and

Environmental Resources Department (ÐDepartmentÑ) received an

application from Appellant for a Vacation Rental Exemption for

property located at 1500 Ocean Bay Drive, Unit R - 3, in Key Largo,

Florida. On September 2, 2015, the application was denied by the

DepartmentÓs Director. Appellant appealed the decision to the

Monroe County Planning Commission.

On November 18, 2015, following public notice, a public

hearing was held by the Planning Commission on the matter. At

the conclusion of the hearing, the Planning Commission voted to

uphold t he decision of the Director. Resolution No. P37 - 15 was

then issued by the Planning Commission on December 16, 2015,

which contained findings of fact and conclusions of law

pertaining to the Planning CommissionÓs decision.

Pursuant to section 102 - 214 of t he Code, Appellant filed an

appeal of the Planning CommissionÓs decision to a Hearing

Officer. Through a contract between Monroe County and DOAH, an

Administrative Law Judge was assigned to act as Hearing Officer.

The record was prepared by Monroe County and filed with DOAH.

The parties filed briefs and oral argument was received.

DECISION ON APEAL

In the letter to Appellant denying his application for a

Vacation Rental Exemption, the Director of the Department stated:

Pursuant to [Code] § 134 - 1(b)(1), the

property must have a ÐhomeownerÓs

associationÑ or Ðproperty ownerÓs

association Ñ that expressly regulates or

manages vacation rental uses. The subject

property is a part of the Townhouses of

Kawama, a ÐcondominiumÑ and therefore does

not qualify for a n exemption under the

provision of [Code] § 134 - 1(b)(1).

Two weeks before the Planning CommissionÓs public hearing,

the Department issued a Memorandum regarding the appeal and a

copy was provided to Appellant. The Memorandum discusses the

homeownerÓs as sociation issue as a basis for denial of the

Vacation Rental Exemption, but also states a second basis for

denial:

It should be noted that even if Townhouses of

Kawama was a HOA or POA, the documents (see

Attachment A) submitted as proof by the

Appellant d o not expressly regulate or manage

vacation rental uses as required by Code

Section 134 - 1(b)(1).

Section 102 - 218(a) of the Code provides that the Hearing

Officer may reject or modify any conclusion of law or

interpretation of the Code in the Planning Comm issionÓs order,

but may not reject or modify any of the findings of fact unless

he states that the findings are not based upon competent

substantial evidence. Resolution No. P37 - 15 does not make

specific findings of fact regarding the central facts in dis pute,

but, instead, identifies the record it considered and then

concludes that, based upon this record, the DirectorÓs decision

to deny the application is approved. It can be reasonably

inferred that the Planning Commission found the supporting facts

in the Memorandum of the Department to be true and accurate.

ISSUES

Appellant contends that the only issue for determination is

whether his unit is included in a qualifying homeownerÓs

association; that the issue of whether the association expressly

regulat es vacation rental uses cannot be asserted in this appeal

as a basis for denying AppellantÓs application because it was not

mentioned in the DirectorÓs letter of denial. This contention

fails because the decision of the Director was a ministerial

decision and merely preliminary, if challenged, to a quasi -

judicial proceeding before the Planning Commission. Although

referred to as an appeal in section 102 - 185 of the Code, the

Planning Commission Ós review is not appellate in nature because

the review is not confined to the information provided to the

Director of the Department. Instead, an app licant may present

new argument and evidence to the Planning Commission in support

of his or her application.

AppellantÓs receipt of the DepartmentÓs Memorandum two we eks

in advance of the Planning Commission hearing, setting forth two

grounds for denial of the application, provided Appellant with

adequate notice of the second ground for denial and adequate

opportunity for Appellant to attempt to refute it. Appellant w as

afforded due process on the second ground for denial and it is

properly before the Hearing Officer for determination.

LEGAL DISCUSSION

The homeownerÓs association i ssue was complicated by

AppellantÓs submittal into the record of several documents

pert aining to Townhouses of Kawama Condominium Association, Inc.,

and a document entitled ÐK a wama Homeowners Association (Master

Association),Ñ which states that K a wama Homeowners Association

Ðowns, operates and regulates the use of all common areas.Ñ A

maste r association is used in condominium management.

Appellant has the burden of proof in this proceeding to show

the Planning CommissionÓs decision was not supported by competent

substantial evidence in the record. It does not matter that there

may be evide nce in the record , even a preponderance of the

evidence as viewed by the Hearing Officer, to support the

AppellantÓs position that K a wama Homeowners Association , Inc. is a

qualifying association. I t may be a qualifying association, but

its status and purp ose was not made clear by Appellant . The re is

competent substantial evidence in the record indicat ing that

AppellantÓs unit is not regulated by a qualifying association.

Appellant also failed to prove he qualif ies for the Vacation

Rental Exemption b y show ing that K a wama HomeownerÓs Association

ÐexpresslyÑ regulate s vacation rental uses , as required by

section 134 - 1(b)(1). Appellant argues that, because K a wama

HomeownerÓs Association regulates the rental of units by their

owners , no matter the duration of the rental, it must be found

that K a wama HomeownerÓs Association expressly regulates vacation

rental uses. This argument fails to give the word ÐexpresslyÑ

its ordinary and intended meaning as used in section 134 - 1.

Section 134 - 1(a) states in relevant pa rt:

An owner or agent is required to obtain an

annual rental permit for each dwelling unit

prior to renting any dwelling unit as a

vacation rental, as defined in section 101 - 1,

except as provided under subsection (b) of

this section.

Section 101 - 1 defines ÐVacation rental or unitÑ as a detached

dwelling unit that is rented for less than 28 days.

To meet the requirement of section 134 - 1(b)(1) that a

homeownerÓs association expressly regulate vacation rental uses

(as defined in the Code), the association mus t have regulations

that use a less - than - 28 - days - rental criterion or include an

express reference to the definition of vacation rental in the

Code. Otherwise, the regulation is not express. The record does

not include any K a wama Homeowners Association doc uments that use

a less - than - 28 - days - rental criterion or refer to the CodeÓs

definition of vacation rental.

The Planning CommissionÓs finding that AppellantÓs

homeownerÓs association does not expressly regulate vacation

rental uses is supported by competen t substantial evidence in the

record.

It is not the role of the Hearing Officer to determine

whether the regulatory scheme established in the Code is the best

means to accomplish Monroe CountyÓs objectives. The Planning

CommissionÓs decision is based on c ompetent substantial evidence

and was made in a proceeding that complied with the essential

requirements of law. Accordingly, it is

ORDERED that the decision of the Monroe County Planning

Commission is AFFIRMED.

DONE AND ORDERED this 28th day of June , 201 6 , in

Tallahassee, Leon County, Florida.

S

BRAM D. E. CANTER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Fili ng (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 28th day of June , 2016 .

COPIES FURNISHED:

Robert B. Shillinger, Jr., Esquire

Monroe County Attorney's Office

Post Office Box 1026

Key West, Flo rida 33041 - 1026

(eServed)

Steven T. Williams, Esquire

Monroe County Attorney's Office

1111 12th Street , Suite 408

Key West, Florida 33040

(eServed)

Michael Adrian Rajtar, Esquire

Rajtar & Associates, P.A.

2004 Polk Street

Hollywood, Florida 33020

(eSe rved)

Gail Creech, Clerk

Monroe County Planning Commission

2798 Overseas Highway, Suite 410

Marathon, Florida 33050

NOTICE OF RIGHT TO JUDICIAL REVIEW

Pursuant to article VI, section 102 - 218(c), of the Monroe County

Land Development Code, this Final Order is the final

administrative order of the county. It is subject to judicial

review by common law petition for writ of certiorari to the

circuit court in and for Monroe County, Florida .