19-001605 Robert And Solangel Verde vs. Monroe County Planning Commission Status: Closed DOAH Final Order on Wednesday, December 4, 2019.

Summary: County failed to prove that total retail cost of repairs and improvements to trailer that is a nonconforming use equals or exceeds 50% of the value of the trailer, so it must issue an after-the-fact building permit.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT AND SOLANGEL VERDE ,

Petitioner s ,

Case No. 19 - 1605

vs.

MONROE COUNTY PLANNING COMMISSION ,

Respondent.

_______________________________/

AMENDED FINAL ORDER TO ACKNOWLEDGE ADDIT IONAL PETITIONERS'

COUNSEL AT HEARING

On July 18 and 19, 2019 , Robert E. Meale , Administrative

Law Judge of the State of Florida, Division of Administrative

Hearings (DOAH), conducted the final hearing by videoconference

in Marathon and Tallahassee, Florida.

APPEARANCES

For Petitioner s : Solangel Verde, Esquire

6011 West 16th Avenue

Hialeah, Florida 33012

Andrew M. Tobin, Esquire

Andrew M. Tobin, P.A.

Post Office Box 620

Tavernier, Florida 33070 - 0620

For Respondent: Peter H. Morris, Esquire

Assistant Monroe County Attorney

Monroe County Attorney's Office

1111 12th Street, Suite 408

Key West, Florida 33040

STATEMENT OF THE ISSUE

The issue is whether Petitioner s are entitled to an

after - the - fact building permit for work done to their

manufactured home o n Big Pine Key following Hurricane Irma.

PRELIMINARY STATEMENT

On January 7, 2019, Petitioners filed with Respondent an

application for a permit to "put [ a storm - damaged] t railer back

on foundation on roadside end" -- work 1 that already had been

completed. Attached to the application was a letter from a

licensed professional engineer, some photographs of metal straps

and concrete block stacks for elevating and anchoring the

trailer , a nd a crude drawing of a cross section of one stack

supporting an I - beam forming part of the trailer's chassis .

By letter s dated January 31 and February 22, 2019, 2

Respondent denied Petitioners' application for an after - the - fact

per mit. The letter advises that , as a nonconforming use, the

t railer is subject to Respondent's Substantial

Improvement/Substantial Destruction (SI/SD) ordinance, so that,

if the damage equals or exceeds 50% of its value , the t railer

must be demolished. The letter raises other issues, but, at the

hearing, Respondent limited the issue to whether the damage from

the storm plus the unpermitted improvements equaled or exceeded

the 50% threshold in the SI/SD ordinance.

On March 21, 2019, Petitioners filed an admi nistrative

appeal of the decision . On March 25, 2019, Respondent referred

the file to DOAH , pursuant to a contract between Respondent and

DOAH .

At the hearing, Petitioners called six witne sses and

offered into evidence 16 ex hibits: Petitioners Exhibits

A through G, I through O, Q, and T . Respondent called three

witne sses and offered into evidence 23 exhibits : Respondent

Exhibits A through W . All exhibits were admitted .

The court reporter filed the transcript on September 17,

2019. The parties timely filed proposed final orders by

November 1 2 , 2019.

FINDINGS OF FACT

1. On June 24, 2014, Petitioners paid $115,000 3 to acquire

title to a lot in unincorporated Monroe County bearing the

address of 31480 Avenue F, Big Pine Key (Lot). The Lot is in

the Ave nues neighborhood within the Sands subdivision, which

consists of site - built and manufactured homes. The Lot measures

100 feet deep and 40 feet wide. Because the back 20 feet of the

Lot is submerged bottom of a canal , the effective area of the

lot is 80 feet deep by 40 feet wide . The Lot is at the southern

end of Big Pine Key, just north of Route 1.

2. A bout 400 feet -- or six lots -- to the east of the Lot is

water that connects to the open waters of the Atlantic Oce an

about two miles to the south and to the Gulf of Mexico a greater

distance to the north . The landward extent of the canal at the

back of the Lot extends three or four lots to the west. The

Avenues neighborhood features an alternating series of evenly

s paced canals and lettered avenues , all running in an east - west

direction. The six canals are of roughly equal dimensions . The

canal behind the Lot is the second closest to the ocean.

3. The Lot is in Federal Emergency Management Agency

(FEMA) flood zone AE, indicative of a relatively high risk of

flooding. The base flood elevation of the Lot is nine feet

above mean sea level . 4 The base flood elevation is the elevation

specified for a structure to avoid floodwaters from the base

flood event , which is th e flood ing projected to result in a

flooding event with an annual probability of occurrence of 1% . 5

The prevailing elevation of t he Sand s subdivision is only three

feet above mean sea level , so that the base flood event would

inundate the subdivision by an average of about six feet of

water .

4. T he AE zone is associated more with rising and wind -

driven water . The VE zone, which extends from the water to a

point three lots east of the Lot, is associated with the

stronger water forces of surging wat er . These zones reflect the

projected relative risks to structures posed by the depth of a

flood and the energy of the water column in terms of velocity

and, where applicable, wave action.

5. W hen they acquired the Lot, Petitioners also acquired

the ti tle to a 56 - foot by 12 - foot 1970 Ritz - Craft, Inc.,

manufactured home located on the Lot (Trailer). O riginally

purchased for about $2000 , the Trailer has been located on the

Lot continuously since at least December 28, 1971 , when a

predecessor - in - interest of Petitioners filed with the Monroe

County property appraiser's office a Declaration of Mobile Home

as Real Property . When acquired by Petitioners , the Trailer

stil l had many of its original fixtures, including the original

Formica counter, bathroom, and trailer tub , and the finished

floor was composed of vinyl strips glued together, the walls

were covered in wood paneling, and the kitchen cabinets were

made of wood. Given practices prevailing in the industry at the

time of the manufacture of the Trailer , the subflooring,

cabinets, and unfinished counters were likely particleboard,

which is highly susceptible to water damage, and the walls were

likely plywood, although these components may have been replaced

over the years.

6. The front of the Trailer is the 12 - foot end facing

Avenue F to the north , and t he back of the Trailer is the

12 - foot end facing the canal to the south. Abutting one side of

the Trailer is a freestanding wood deck measuring 16 feet by 8

feet.

7. At all material times , the Trailer's foundation has

consist ed of stacks of concrete blocks forming piers under the

Trailer. These stacks elevate the Trailer so that the finished

floors were about three feet above grade. If the elevation of

the Lot approximated the average elev ation in the Sands

subdivision, without regard to wave action and tide , storm surge

would need to exceed six feet to submerge the finished floors of

the Trailer.

8. In their first three years of ownership, Petitioners

performed the usual maintenance on the Trailer, including a

paint job , but did not alter the components described above .

The only major work took place in May 2017 when Petitioners paid

$2210 t o Privateer Alliance, a certified general contractor, to

disconnect their septic tank and connect to central sewer lines.

9. On September 10, 2017, Hurricane Irma, a category - four

storm, made landfall at Cudjoe Key. The storm caused extensive

flooding and wind damage in the Florida Keys, but especially in

Big Pine Key, which is about ten miles e ast of Cudjoe Key. The

damage along Avenue F indicated that the causative force was

moving water more than from rising water , and structures east of

the Lot suffered more damage than structures farther from the

water. 6

10. In compliance with a mandatory evacuation order,

neither Petitioner was in the Trailer when Hurricane Irma

struck . T he storm inflicted the most damage to t he Sands

subdivision , among residential areas . O n Big Pine Key,

floodwaters reached five to eight feet above mean sea level, and

f loodwaters in the vicinity of the Trailer persisted for about

12 hours , as noted by Respondent. 7

11. Respondent offered into evidence Composite Exhibit L,

page 1, which is a map entitled, " Coastal Depth Grid ." The map

depicts the portion of the Avenues that includes the Lot. The

map bears coloring that, according to the legend, is intended to

report the flooding depths from Hurricane Irma . A lthough the

variations in color are too slight to differentiate among the

varying depths shown in the legend , Re spondent construed the

Coastal Depth Grid to show nine feet of floodwater over the Lot .

12. Respondent offered no predicate for t he Coastal Depth

Grid . To the contrary, one of Respondent's witnesses, Mary

Wingate, who is a 24 - year employee working in R espondent's

Floodplain Office of its Building Department, testified to a

more reasonable floodwater depth of five to eight feet. A

floodwater depth no higher than the low end of Ms. Wingate's

estimate is supported by the damage to the interior of the

Trai ler, as discussed below. 8 For these reasons, the Coastal

Depth Grid is not credited as a source of a finding of

floodwater of nine feet above mean sea level over the Lot .

13. F ollowing a major storm, prior to the order allowing

residents to return to t heir homes, building or safety

inspectors visit affected areas and make initial determinations

of the safety of individual residen ces . I f a structure is

determined to be unsafe, the inspector posts a red card that

states, "Destroyed , " so as to prevent reoccupation or

re - energizing of the residence .

14. Fifty to sixty inspectors for the entire Keys started

inspections in the upper keys on September 13 or 14. Reflective

of the devastation caused by Hurricane Irma in the Florida Keys,

three weeks passed before a building inspector visited the Lot

o n October 3, 2017 . At that time, the building inspector, who

is a licensed professional engineer, determined that the Trailer

had been destroyed, so the inspector posted a red card on the

Trailer. This determi nation was based on damage to the front of

the Trailer , which was visible from the street ; the inspector

did not examine the interior, the utilities, or the back of the

Trailer.

15. From the street, the inspector correctly determined

that the walls, win dows, and doors had been unaffected, but the

siding and trim would require repair. For the roof and roof

structure, the inspector checked boxes stating that these

elements required repair and replacement; perhaps, the seemingly

inconsistent checkmarks wer e intended to mean that repair would

be sufficient for some parts of the roof and some parts of the

roof structure, but replacement would be necessary for other

parts of these two elements. In fact, neither the roof nor roof

structure required replacement, although the roof required the

replacement of a damaged roof panel. In a brief narrative, the

inspector noted on the inspection form : "Building completely

off foundations & separated from entry stairs & deck."

16. Perhaps due to a daunting workload, the inspector

failed to notice that the back of the Trailer was still on its

concrete block stacks. The front of the Trailer had been driven

off its stacks , likely by storm surge, and reste d about four

feet from its original position, still somewhat above grade

because it rested atop debris .

17. On October 1 4, 2019, a building inspector conducted

another inspection of the Trailer and determined that the damage

equaled or exceeded 50% of i ts assessed value, pursuant to the

SI/SD ordinance , which i s discussed in the Conclusions of Law.

Again, th is inspection did not include an examination of the

interior of the Trailer.

18. The October 14 determination relied on a FEMA - supplied

tool , Compo site Exhibit L, page 2 (FEMA Tool) , for estimating

damage based on a " long - duration " saltwater inundation of a

manufactured home. Two problems preclude reliance on the FEMA

Tool. First, t he inspector used the above - described Coastal

Depth Grid to determine that the Lot was subjected to a

floodwater depth of nine feet -- or six feet above the finished

floor of the Trailer . Because the actual floodwater depth was

substantially less than nine feet, the FEMA To ol produced an

excessive estimate of damage. Second, the inspector applied the

FEMA Tool to a flooding event that was not shown to be of long

duration, as required for use of the tool. 9

19. It is impossible to determine which of the two flaws

in the us e of the FEMA Tool produced the greater distortion in

damage estimates. E ven when using a more - reasonable input of

three to four feet of flooding above the finished floor -- i.e.,

six to seven feet of floodwaters -- the FEMA T ool predict s that

the air conditi oning unit, subfloor, finished floor, and bottom

cabinets would be completely destroyed. The air conditioning

unit , which is installed in the wall, was undamaged , as were t he

bottom cabinets. The flooring components are discussed below ,

but were not comp letely destroyed . The FEMA T ool predict s

near - total to total destruction of the plumbing , doors, and wall

finishes, which, as discussed below, were substantially

undamaged. The FEMA Tool predict s damage of 38% to 72% to the

electrical system, which was undamaged. In other respects, as

well, the FEMA Tool over - estimate s the extent of the damage to

the Trailer. The failure of the parties to offer into evidence

the FEMA tool for short - duration saltwater flooding to a

manufactu red home precludes a finding as to the extent to which

the actual floodwaters were substantially shallower than even

Ms. Wingate's estimate or the duration of inundation was very

brief.

20. In either case, the repairs undertaken by Petitioners

are a good measure of the damage to the Trailer, except for the

finished floor . First, Petitioners rented some jacks and, with

one or more friends, lifted the front of the Trailer, restacked

the concrete blocks , and reset the Trailer atop them .

Apparently at the sa me time, Petitioners also restored the wood

deck to its prestorm condition. The retail value of this work

was $1000.

21. Second, the storm damaged the weatherhead or cap that

shields the electric service line from the elements where the

line enters the T railer. The retail value of the work to

replace the weatherhead and perform the electrical safety

inspection required before the power company would restore power

to the Trailer was $1060.

22. Third, the storm caused minor damage to one or more

plumbing lines. The retail value of this repair work was $240.

23. Fourth , various exterior panels required repair or

replacement due to damage. The retail value of the repairs

was $575 , and t he retail value of the replacement of 16 outer

panels was $1280.

24. Fifth, the storm destroyed the skirting along the

bottom of the Trailer. The retail value of this replacement

work was $1056.

25. Sixth, the retail value of minor trim repairs

necessitated by the storm was $500.

26. The retail value of the above - de scribed work was

$5711.

27. During the same time period, Petitioners performed

additional work for which they never obtained a permit. The

Conclusions of Law explain the relevance of the retail value of

this work, which consisted of the installation of five new

windows at $1075, the application of window sealant, caulking

and hardware totaling $295, and the installation of a new front

door for $320 . The retail value of this work, which did not

address floodwater damage , was $1690. This work plus the

p reviously described work thus totaled $7401.

28. This leaves the finished floor and subflooring and one

panel of plywood that had separated from the wall and was

flopping . The plywood paneling is de minimis . One panel of

wall plywood separated from the wall, although it is unclear how

that happened, and the repair would represent an insignificant

expense, even if the panel had to be replaced.

29. One of the Petitioners testified that there was water

damage on the floor at the front of the Trailer extend ing across

the front room and into the living area, where it discolored the

bottom four inches of a sofa cover and left a muddy residue. At

the back of the trailer, Petitioner found a water mark about

one - half inch high along metal bunkbeds. According to this

witness, t he walls bore no dirt or mud , and neither they nor the

cabinets were damaged by the water , but t he vinyl floor tiles

separated by no more than 1/8th of an inch due to ungluing from

exposure to the water. This testimony is credited. T he

fl oodwater that entered the Trailer left a silty deposit on the

floor , so it was relatively easy to determine the vertical reach

of any floodwater that entered the Trailer, and the limited

damage to the roof and sides of the Trailer does not appear to

have a llowed significant, if any, amounts of rain water into the

Trailer.

30. The crucial questions , which are left unanswered in

this record , involve the extent of the work necessary to restore

the finished floor and sub flooring to their prestorm condition

and the retail value of the cost of this work. One of

Petitioner's witnesses was David Koppel, who is a licensed

professional engineer with considerable experience in the

assessment of damages, partly from a 22 - year ca reer with

Respondent . In December 2018, Mr. Koppel inspected the

foundation, tie - downs, interior and underneath of the Trailer,

both flooring units, and the walls and cabinets and concluded

that the structural elements were "sound" and everything was

inta ct as it was built, except for a little "swelling and

separation" of the finished floor, which Mr. Koppel testified

was so minor that its repair or replacement would be left to the

owners' choice. Mr. Koppel opined that all work had been

performed in conf ormance with the 1970 Building Code, which was

in effect when the original building permit was issued.

31. Mr. Koppel's testimony is problematic in two regards . 10

He mistook the vinyl floor for a wood floor , and he

misidentified the referent as the owner s' preference instead of

the prestorm condition, as explained in the Conclusions of Law .

Otherwise, Mr. Koppel's testimony is credited. There is no

evidence that Petitioners repaired or replaced any of the items

that Mr. Koppel inspected, prior to his in spection, so he would

have found any damage, such as rot or mildew, that would have

developed in the intervening 15 months between the storm and his

inspection. This leaves as the sole open question as to damages

the retail value of the cost of the work t o repair or replace

the damaged portion of the finished floor -- a n issue that is not

addressed in the record.

32. Lastly, it is necessary to determine the prestorm

value of the Trailer. The property appraiser assessed the

Trailer at $17, 769 . After a 20% adjustment, as discussed in the

Conclusions of Law, Respondent increased the value of the

Trailer to $21,323.

33. Petitioners' witness, an experienced real estate

appraiser, testified that the Trailer was worth $53,618, using

the cost app roach to value. Her total estimate of the cost of

the structure, if new, was $73,450, which she reduced by $19,832

for depreciation.

34. Petitioners' appraiser never explained why she

estimated only $20,000 or 27% for depreciation for a 50 - year - old

man ufactured home. Her appraisal also lacked comparable sales

to back up her cost approach to value and never took into

account published sources of market values for used manufactured

homes . Petitioners' evidence does not persuade that a

manufactured home, parked beside the ocean for 50 years , is

worth today over $50,000 . Thus, Petitioners failed to overcome

the adjusted assessed value of $21,323 . However, the proved

retail value of the work associated with damage and improvements

of $7401 is less than 50 % of the value of the Trailer of

$21,323.

35. Following the storm, Petitioners and contractors

performed the above - described work. By May 12, 2018, Respondent

initiated an investigation into the substantial unpermitted work

that Petitioners had undertake n. On June 8, 2018, Respondent

issued a Notice of Violation/Notice of Hearing for July 26, 2018

(NOV). The NOV alleges the unpermitted work and requires

corrective action of obtaining an after - the - fact or demolition

permit.

36. The hearing before the special magistrate took place

on September 27, 2018. At the hearing, as stated in Petitioners

Exhibit F, Respondent 's counsel advised the special magistrate:

This one isn't terribly complicated or

terribly difficult in that we just need the

after the fact permit so that the

inspections can be performed to make sure

that the utilities are connected, safely

reconnected, reattached. It's currently on

the blocks in the proper situation,

hopefully it doesn't happen again.

The NOV proceeding concluded with the parties' agreement that

Petitioners would file an application for an after - the - fact

permit , although the discussion indicates that Respondent was

focusing exclusively on the neces sity of a permit to replace the

Trailer on its concrete block stacks and to replace the wood

deck to its original position abutting the Trailer . The after -

the - fact permitting process then ensued, as described in the

Preliminary Statement.

CONCLUSIONS OF L AW

37 . DOAH ha s jurisdiction to issue a final order , pursuant

to a contract with Respondent. Monroe County Land Development

Code (Code) section 122 - 9(a) authorizes DOAH "to hear and decide

appeals from administrative actions regarding the floodplain

mana gement provisions of this Land Development Code." Code

section 122 - 9(b) authorizes a property owner to initiate an

appeal.

38. Code section 122 - 9(e) provides that DOAH shall

consider the appeal "pursuant to [Florida Administrative Code]

Rule 28 - 106.201(3 ). This rule directs an agency to refer to

DOAH a petition involving "disputed issues of material fact"

with a request that DOAH assign an administrative law judge to

"conduct the hearing."

39. The nature of this proceeding is important because it

determ ines the burden of proof, as well as the standard of proof

and the scope of admissible evidence. If this proceeding is an

appeal, it is not a de novo hearing, but instead a review of the

administrative action taken by Respondent to determine if the

action is supported by competent substantial evid e nce and

presumably imposes on Petitioners, as the appellants, the burden

of overturning the denial of their after - the - fact permit . If

the proceeding is a de novo hearing, it is governed by the

preponderance stan dard , the parties may introduce evidence not

already considered by Respondent , and the burden of proving

SI/SD is on Respondent, as discussed below .

40. T he reference to rule 28 - 106.201(3) seems to

incorporate a traditional DOAH factfinding hearing. T he process

leading up to the transmittal of the file to DOAH did not afford

the parties an opportunity to develop a factual record, apart

from Petitioners' filing of a few documents and Respondent's

disposition of Petitioners' request for a permit. Until

Respondent denied the after - the - fact permit, Petitioners would

not even have been aware of the specific issues in their case.

Also, t o limit the DOAH proceeding to an appeal of Respondent's

already - taken administrative action would duplicate the judicial

review that is already available in this case , 11 rather than

assign to DOAH duties more consistent with its traditional

responsibilities of factfinding and quasi - adjudicating.

41. Because this proceeding is a de novo hearing on an

application for a pe rmit, the applicant generally has the burden

of proof, but the agency has the burden of proving any

affirmative ground for denial. Osborne Stern & Co. v. Dep't of

Banking & Fin. , 670 So. 2d 932, 934 (Fla. 1996) ; Clearwater v.

Abdullaj , 474 So. 2d 1290, 12 91 (Fla. 2d DCA 1985) (in denying

an application for rezoning, the city failed to satisfy its

burden of proving that the residential development rights for a

larger parcel, of which the subject parcel was a part, had been

exhausted by the city's earlier zo ning approval of a master site

plan) .

42. The parties do not dispute that the Trailer is a

" nonconforming structure ," as defined in Code section 122 - 3 ; 12

among other possible matters, the Trailer fails to conform to

the present requirement s for anchoring and finished - floor

elevation . The point of this case is that the Trailer would

have to be demolished or brought up to current Building Code

requirements, if the work to repair the damage and to make

improvements equaled or exceeded 50% of t he value of the

Trailer.

43. Code s ect io n 122 - 4(a) generally requires that new

construction and "substantial improvements" within an area of

special flood hazard meet applicable floodplain development

requirements, including anchoring and finished - floor elevation.

Effectively addressing the Trailer, Code section 122 - 4(b)(4)(f)

provides:

An existing manufactured home that is

damaged or otherwise in need of repair,

reconstruction, improvement, or replacement

the value of which meets or exceeds 50

percent of the value of the manufactured

home without the repair, reconstruction,

improvement or replacement shall not be

repaired, reconstructed, improved or

replaced . . ..

44. "S ubstantial improvement" means:

any reconstruction, rehabilitation,

addition, or o ther improvement of a

structure, the cost of which equals or

exceeds 50 percent of the market value of

the structure before the "start of

construction" of the improvement. This term

includes structures which have incurred

"substantial damage, "regardless o f the

actual repair work performed. 19

§ 122 - 4.

45. "S ubstantial damage" means:

damage of any origin sustained by a

structure whereby the cost of restoring the

structure to it's before damaged condition

would equal or exceed 50 percent of the

market value of the structure before the

damage occurred. All structures that are

determined to be substantially damaged are

automatically considered to be substantial

improvements, regardless of the actual

repair work performed. If the cost

necessary to fully repair the structure to

its before damage condition is equal to or

greater than 50 percent o f the structure's

market value before damages, then the

structure must be elevated (or flood proofed

if it is non - residential) to or above the

base flood elevation (BFE), and meet other

applicable NFIP requirements. Items that

may be excluded from the cos t to repair

include plans, specifications, survey costs,

permit fees, and other items which are

separate from the repair. Items that may

also be excluded include demolition or

emergency repairs (costs to temporarily

stabilize a building so that it's safe to

enter to evaluate and identify required

repairs) and improvements to items outside

the building, such as the driveway, septic

systems, wells, fencing, landscaping and

detached structures.

§ 122 - 4.

46. Lastly, "market value" means:

the county propert y appraiser's value of the

structure plus 20 percent. A uniform

appraisal report for determination of market

value submitted by the applicant may be used

if the county Building Official considers

such appraisal consistent with local

construction costs. Wh ere appraisal is not

accepted because it appears to be

inconsistent with local construction costs

an applicant may request review by an

independent third party appraiser duly

authorized by the county. The cost of

independent review shall be borne by the

a pplicant. The reviewing appraiser shall

determine if the appraisal value reasonably

reflects an appropriate value of the

structure. The independent appraiser's

determination shall be in writing.

Professionals preparing appraisal shall be

required to pos sess certifications as state

certified residential appraisers for

appraising one to four family residential

properties and state certified general

appraisers for all other properties

including commercial and multi - residential.

§ 122 - 4.

47. For the reasons set forth in the Findings of Fact,

Respondent has failed to prove that the total cost of the work

described above equals or exceeds 50% of the market value of the

Traile r. Petitioners thus are entitled to an after - the - fact

permit.

ORDER

I t is

ORDERED THAT the Monroe County Planning Department shall

issue an after - the - fact permit for the work described above.

DONE AND ORDERED this 4th day of December , 2019 , in

Tallahassee, Leon County, Florida.

ROBERT E. MEALE

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 4th day of December , 201 9 .

ENDNOTES

1/ As used in this final order, "work" refers to all labor,

materials, and equipment used for all repairs and improvements.

2 / Petitioners claimed not to have received the earlier letter,

so Respondent resent it to give Petitioners a chance to

challenge the denial.

3 / Nothing in the record suggests that this was not an

armslength transaction. The identity of the grantor was J.W.B.

Investm ents L.L.C., a Maryland limited liability company. One

year earlier, the improved Lot sold for $110,000. Previous

sales prices of the improved Lot were $48,500 in early 1987 and

$45,000 in late 1986.

4 / Actually, it is nine feet NGVD (National Geodetic Vertical

Datum), but, for present purposes, 0 NGVD may be regarded as

mean sea level.

5 / This is also referred to as the 100 - year flooding event.

6 / The trailers on the south side of Avenue F immediately west

of the Lot suffered only minor damage. Th e trailers immediately

east of the Lot on the south side of Avenue F occupy a

canalfront lot, whose trailer was destroyed, and a streetside

lot, whose trailer was driven off its fo undations. The trailer

to the east of these trailers was completely destroyed. The

improvement on the south side of Avenue F closest to the water

was gone.

The pattern was slightly different on the north side of Avenue

F, where some of the damage would be associated with a differe nt

canal. The westernmost trailer, one or two lots west of the

Lot, was gone. The trailer immediately across from the Lot

suffered foundation problems. The trailer to the east was off

its foundation, and the trailer to the east of this trailer was

destr oyed.

7 / Respondent's proposed final order, para. 22.

8 / This finding assumes that the Trailer was unable to float a

sufficient time and vertical distance effectively to reduce the

depth of the floodwater.

9 / This may have been a material omission. S trictly for the

purpose of determining the materiality of this omission, the

administrative law judge takes official notice of a FEMA

publication entitled, "Final Report: Depth - Damage Relationships

for Structures, Contents, and Vehicles and Content - to - Str uctural

Value Ratios (CSVR) in Support of the Donaldsonville to the

Gulf, Louisiana, Feasibility Study (March 2003) "

https://www.mvn.usace.army.mil/Portals/56/docs/PD/Donal dsv -

Gulf.pdf . Containing a table similar to the FEMA Tool, as well

as another table for short - duration inundation, the report states, at page 8, that "short duration" is one day and "long

duration" is one week.

10 / At the hearing, Respondent raised the prospect that the

Trailer had been installed on the Lot without a building permit

because Petitioner could not find a copy of the permit in its

files. Testimony established that, in the intervening 50 years,

the building permit may have been lost. Assumi ng that

Respondent timely raised this issue, the administrative law

judge declines to find that the Trailer's installation on the

Lot was unpermitted in the first place.

11 / In Broward Cnty. v. G.B.V. Int'l , 787 So. 2d 838, 843 (Fla,

2001), the court noted that Florida courts have used the common

law writ of certiorari to review actions of local governments

that are not otherwise subject to judicial review under chapter

120 , Florida Statutes . Tier - one certiorari review, which is

typically performed by a circuit court, is to determine whether

the local government provided procedural due process, the

proceeding met the essential requirements of the law, and the

findings and determination are supported by competent

substantial evidence.

Respondent's el ection to use the services of DOAH may respond to the requirements in G.B.V. International for a written order

with findings and a formal reason for the decision. Broward

Cnty. v. G.B.V. Int'l , 787 So. 2d at 846. It is unclear whether

Respondent's letter s denying the after - the - fact permit satisfy these requirements.

12 / All citations to the Monroe County Floodplain Development

Code are from the online version at

https://library.municode.com/fl/monroe_county/codes/land_develop

ment_code?nodeId=CH122FLMA_S122 - 4STISBUPEARSPFLHA

COPIES FURNISHED:

Robert Verde

Solangel Verde

6011 West 16th Avenue

Hialeah, Florida 33012

(eServed )

Steve Williams, Esquire

Monroe County

2798 Overseas Highway, Suite 300

Marathon, Florida 33050

Andrew M. Tobin, Esquire

Andrew M. Tobin, P.A.

Post Office Box 620

Tavernier, Florida 33070 - 0620

(eServed)

Peter H. Morris, Esquire

Assistant Monroe County Attorney

Monroe County Attorney's Office

1111 12th Street, Suite 408

Key West, Florida 33040

(eServed)

NOTICE OF RIGHT TO JUDICIAL REVIEW

Any aggrieved party, including Monroe County, may have appellate

rights with regard to this Final Order. As final administrative

action, this Final Order is subject to judicial review by common

law petition for certiorari to the circuit court in and for

Monroe County, Florida.