17-006521 John T. Slattery And Susan Slattery vs. Monroe County Planning Commission Status: Closed DOAH Final Order on Friday, March 23, 2018.

Summary: The Appellants' property did not satisfy the Monroe County Code provisions and the denial of their building permit is affirmed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN T. SLATTERY AND SUSAN

SLATTERY,

Appellant s ,

vs. Case No. 17 - 6521

MONROE COUNTY PLANNING

COMMISSION,

Appellee .

_______________________________/

FINAL ORDER

In this administ rative appeal to the Division of

Administrative Hearings (DOAH), the Appellants, John T. Slattery

and Susan M. Slattery (the Appellants), seek review of

Resolution No. P18 - 16 (Resolution) rendered by the Appellee,

Monroe County Planning Commission (Plannin g Commission) on

September 7, 2016. The Resolution upheld the denial of the

AppellantsÓ building permit application for a single - family

detached dwelling unit on Parcel 18, a portion of Tract A, Twin

Lakes First Addition, according to the Plat thereof, re corded in

Plat Book 5, Page 68, of the Public Records of Monroe County

(County).

A two - volume Record of the underlying proceeding before the

Planning Commission was filed with DOAH by its Clerk on

December 7, 2017. Briefs were filed by the parties and or al

argument was held by video teleconference at sites in Marathon

and Tallahassee on January 22, 2018.

BACKGROUND

On December 2, 2015, the Appellants applied for a buildi ng

permit to construct a single - family detached residential

dwelling unit (Application No. 15306367). The subject property

is legally described as Parcel 18, a portion of Tract A, Twin

Lakes First Addition, according to the Plat thereof, recorded in

Plat Book 5, Page 68, of the Public Records of Monroe County,

Florida, having real estate n umber 00551000 - 001800. The Twin

Lakes First Addition plat was duly recorded and approved by the

Board of County Commissioners on March 13, 1962. There are no

fixed boundaries, numbered, or letter ed lots or blocks (or

parcels) identified on the recorded p lat for Tract Aact A

was subsequently divided into 41 parcels in the early 1970s that

were never shown as lots or parcels on a plat, re - plat, or

amended plat approved by the County and recorded by the Clerk of

Court. Thus, the parcels were created wi thout County plat

approval. Plat approval has been required by the CountyÓs Land

Development Re gulations since 1963. See also § 177.071, Fla.

Stat.

The CountyÓs Department of Planning Department determined

that the subject property did not meet the d efinition of ÐlotÑ

and therefore did not meet the residential density requirements

of the Improved Subdivision (IS) Land Use District in order to

allow the proposed development of a dwelling unit. In the Staff

Report to the Planning Commission, the Depart ment noted the

definitions of ÐlotÑ in sec tion 101 - 1, Monroe County Code.

ÐBuildable lotÑ is defined in secti on 101 - 1 as Ða duly recorded

lot that complies with each and every requirement of the

county's zoning and subdivision codes immediately prior to t he

effective date of the ordinance from which this chapter is

derived.Ñ As amended by Ordinance 003 - 2015, adopted January 21,

2015, and effective April 2 015, ÐlotÑ is defined in

secti on 101 - 1 as Ða duly recorded lot as shown on a plat

approved by th e county.Ñ

With the adoption of Monroe CountyÓs 1986 Land Development

Regulations and zoning maps, the AppellantsÓ property was

designated as IS zoning. The IS Land Use District requirements

were that a lot owner w as entitled to develop a single - family

d etached dwelling on the lot, provided that the Ðlot was a

lawful buildable lot eligible for a building permit on the

effective date of these regulations.Ñ A buildable lot was

defined as Ða duly recorded lot that complies with each and

every requirement of the CountyÓs zoning and subdivision codes

immediately prior to the effective date of this Plan.Ñ

See § 9 - 303, Monroe Cnty. Code (1986). The stated purpose of

the IS Land Use District was Ðto accommodate the legally vested

residential development r ights of the owners of lots in

subdivisions that were lawfully established and improved prior

to the adoption of this chapter.Ñ This purpose statement has

not changed since 1986. See § 130 - 36, Monroe Cnty. Code. Under

section 130 - 157, Monroe County Code , the IS Land Use District

has a maximum residential allocated density of one (1) dwelling

unit per lot.

On December 4, 2015, the Department sent the Appellants

notice that the Department failed the planning review of their

building permit application. On December 30, 2015, the

Department received AppellantsÓ application for appeal to the

Planning Commission, requesting that the denial be overturned.

The appeal hearing was held before the Planning Commission

on July 26, 2016. At the hearing, the CountyÓ s Planning

Director stated that since 1986 , the County has issued permits

that were inconsistent with the IS zoning density standards.

However, the subdivision of Tract A into parcels was never shown

on a plat, re - plat, or amended plat approved by the Cou nty and

recorded by the Clerk of Court. The Planning DirectorÓs

position was that Ordinance 003 - 2015 clarified the definition of

Ðlot , Ñ but did not change it. Therefore, the AppellantsÓ

property did not meet the definition of ÐlotÑ and did not meet

the r esidential density requirements of the IS Land Use District

in order to allow the proposed development of a dwelling unit.

By motion that passed, the Planning Commission voted to uphold

the Planning DirectorÓs decision.

On September 7, 2016, the Planni ng Commission adopted

Resolution No. P18 - 16 , denying the AppellantsÓ appeal request in

accordance with the July 26, 2016, vote. The Resolution set

forth findings of fact and conclusions of law based on the

record evidence and testimony at the hearing. Th is appeal

ensued.

ISSUES

The Appellants raise several issues on appeal, including:

(1) whether Ordinance 003 - 2015 did not comply with the

constitutional single subject rule and did the CountyÓs

application of the Ordinance violate the Florida Constitutio n;

(2) whether the County exceeded its police power in enacting

Ordinance 003 - 2015 and failed to follow the essential

requirements of the law when it applied the ordinance to the

AppellantsÓ property; (3) whether the Planning CommissionÓs

decision violated its obligations to support, protect, and

defend the Unites States and Florida Constitutions; and (4)

whether the Appellants were deprived of their fundamental due

process rights during the Commission hearing.

LEGAL DISCUSSION

Standard of Review

Pursuan t to a contract, DOAH has jurisdiction to consider

this appeal under section 102 - 213, Monroe County Code. The

hearing officer Ðmay affirm, reverse or modify the order of the

planning commission.Ñ £ 102 - 218(b), Monroe Cnty. Code. The

hearing officerÓs or der is subject to the following limitations:

The hearing officerÓs order may reject or

modify any conclusion of law or

interpretation of the county land

development regulations or comprehensive

plan in the planning commissionÓs order,

whether stated in the order or necessarily

implicit in the planning commission's

determination, but he may not reject or

modify any findings of fact unless he first

determines from a review of the complete

record, and states with particularity in his

order, that the findings o f fact were not

based upon competent substantial evidence or

that the proceeding before the planning

commission on which the findings were based

did not comply with the essential

requirements of the law.

Id . Thus, the undersigned must determine whether t he

findings in the Resolution are based on competent substantial

evidence, and whether the proceeding on which the findings were

based complied with the essential requirements of the law.

The issue of whether the Commission complied with the

essential re quirements of the law is synonymous with whether the

Commission Ðapplied the correct law.Ñ Haines City Cmty. Dev. v.

Heggs , 658 So. 2d 523, 530 (Fla. 1995). When used as an

appellate standard of review, competent evidence has been

construed to be Ðlegall y sufficient evidenceÑ or evidence that

is Ðsufficiently relevant and material that a reasonable mind

would accept it as adequate to support the conclusion reached.Ñ

DeGroot v. Sheffield , 95 So. 2d 912, 916 (Fla. 1957).

Substantial evidence is evidence t hat provides a factual basis

from which a fact at issue may reasonably be inferred. Id .

Procedural or Due Process Violations

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. Planning Comm'n , Case No. 03 - 4720 (Fla. DOAH

Nov. 1, 2004)(Ðthe review criteria are limited and do not

include consideration of whether procedural due process was

afforded by the CommissionÑ). Therefor e, the Appellants

argument that procedural due process violations occurred during

the appeal hearing in front of the Planning Commission, is not

within the scope of this appeal.

Constitutional Issues

Judicial review of final administrative action by a circ uit

court is the proper forum to address constitutional claims.

See Wilson v. Cnty. of Orange , 881 So. 2d 625, 631 - 632 (Fla. 5th

DCA 2004); see also Holiday Isle Resort & Marina Assoc. v.

Monroe Cnty. , 582 So. 2d 721, 722 (Fla. 3d DCA 1991).

Therefo re, the Appellants arguments that the CountyÓs and

Planning CommissionÓs actions violated various provisions of the

United States and Florida Constitutions are not within the scope

of this appeal.

Correct Application of the Law

The issue of whether the Pla nning Commission complied with

the essential requirements of the law is synonymous with whether

the Planning Commission Ðapplied the correct law.Ñ Haines City

Cmty. Dev. v. Heggs , 658 So. 2d 523, 530 (Fla. 1995). One of

the first rules of statutory const ruction is that the plain

meaning of the statute (ordinance) is controlling. See , e.g. ,

Beshore v. Dep't of Fin. Servs. , 928 So. 2d 411, 412 (Fla. 1st

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

here, there is no need to engage in statu tory construction. Id .

at 412.

Section 101 - 1, Monroe County Code , defines Ð[ b ]uildable

lotÑ as Ða duly recorded lot that complies with each and every

requirement of the county's zoning and subdivision codes

immediately prior to the effective date of the ordinance from

which this chapter is derived.Ñ ÐLotÑ is defined in secti on

101 - 1 as Ða duly recorded lot as shown on a plat approved by the

county.Ñ Under section 130 - 157, Monroe County Code, the IS Land

Use District has a maximum residential allocated d ensity of

one (1) dwelling unit per Ðlot.Ñ

It is undisputed that the subject property is not recorded

on a plat, re - plat or amended plat. Therefore, the AppellantsÓ

property does not meet the definition of ÐlotÑ and does not meet

the residential density requirements of the IS Land Use District

in order to allow the proposed development of a dwelling unit.

Vested Rights

The Appellants argue that their property is legally vested

because it satisfies each of the criteria and the purpose of the

IS Land Us e District, and the County has approved building

permits for other parcel owners in the subdivision. The

CountyÓs Planning Director acknowledged the County has issued

permits that were inconsistent with the IS Land Use District

requirements. The subdivis ion of Tract A into parcels was never

approved and recorded on a plat, re - plat, or amended plat. The

IS Land Use District entitled a lot owner to develop a single

family detached dwelling on a Ðbuildable lot,Ñ which was defined

as Ða duly recorded lot tha t complies with each and every

requirement of the CountyÓs zoning and subdivision codes

immediately prior to the effective date of this Plan.Ñ

See § 9 - 303, Monroe Cnty. Code (1986). The record reflects that

no prior owner of the property applied fo r a vested rights

determination or challenged adoption of the 1986 Land

Development Regulations.

ÐFlorida common law provides that vested rights may be

established if a property owner or developer has (1) in good

faith reliance, (2) upon some act or omissi on of government,

(3) made such a substantial change in position or has incurred

such extensive obligations and expenses (4) that it would make

it highly inequitable to interfere with the acquired right.Ñ

Monroe Cnty. v. Ambrose , 866 So. 2d 707, 710 (Fla. 3d DCA 2003).

Mere purchase of land does not create a right to rely on

existing zoning. Id . at 711. The Appellants did not rely on

any direct representations from the County. Instead, the

Appellants formulated a subjective expectation based on their

o wn observations and research. ÐA subjective expectation that

land can be developed is no more than an expectancy and does not

translate into a vested right to develop the property.Ñ Id . at

711 (citing Namon v. DepÓt of Envtl. Reg . , 558 So. 2d 504 (Fla.

3 d DCA 1990).

The CountyÓs Planning Director acknowledged the County has

issued permits that were inconsistent with the IS Land Use

District requirements. Even if those permits were mistakenly

issued in violation of the law, the Appellants do not have the

right to obtain a building permit by making an equitable

estoppel argument against the County. See , e.g. , Corona Props .

of Fla., Inc. v. Monroe Cnty. , 485 So. 2d 1314 (Fla. 3d DCA

1986)(reflecting that estoppel may not be asserted against a

county for a p ermit issued in error); Citrus Cnty. v. Halls

River Dev., Inc. , 8 So. 3d 413, 423 (Fla. 5th DCA

2009)(Ð[E]quitable estoppel will not lie for a permit issued

contrary to law as result of mutual mistake of fact.Ñ).

The AppellantsÓ property did not satisfy th e criteria and

the purpose of the IS Land Use District, and the County is not

estopped from denying the AppellantsÓ building permit

application.

DECISION

Based on the foregoing, the Planning CommissionÓs denial of

the AppellantsÓ building permit is affirme d.

DONE AND ORDERED this 23rd day of March , 2018 , in

Tallahassee, Leon County, Florida.

S

FRANCINE M. FFOLKES

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallaha ssee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 23rd day of March , 2018 .

COPIES FURNISHED:

Ilze Aguila, Senior Coordinator

County of Monroe

Board of County Commissioners

Suite 410

2798 Overseas Highway

Marathon, Florida 33050

(eServed)

Van D. Fischer, Esquire

VDF Law, PLLC

Post Office Box 420526

Summerland Key, Florida 33042

(eServed)

Derek V. Howard, Esquire

Monroe County Attorney's Offic e

1111 12th Street, Suite 408

Post Office Box 1026

Key West, Florida 33041 - 1026

(eServed)

NOTICE OF RIGHT TO JUDICIAL REVIEW

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

this Final Order is the final administrative action of the

cou nty. It is subject to judicial review by common law petition

for writ of certiorari to the circuit court in and for Monroe

County, Florida.