19-005645 Edwin Handte And Janice Handte vs. Monroe County Planning Commission Status: Closed DOAH Final Order on Wednesday, August 12, 2020.

Summary: The Commission's Resolution No. P35-19 is reversed and remanded for entry of a decision acknowledging a lawfully-established non-conforming vacation rental use at Appellants' duplex located at 1791 Narcissus Avenue in Big Pine Key, Florida.

A PPEARANCES

For Appellants : Lee Robert Roh e, Esquire

Lee R. Rohe, P.A.

30410 Sea Grape Terrace , Suite 2

Big Pine Key, Florida 33043

For Appellee: Peter H. Morris, Esquire

Monroe County Attorney's Office

1111 12th Street , Suite 408

Key West, Florida 33040

B ACKGROUND

The property and its du plex structure are located on Big Pine Key.

Appellants applied for building permits for both 1547 Narcissus and

1791 Narcissus only two days apart , and began operation of 1791 Narcissus

as a short - term rental within one year of 1547 Narcissus . 1 The history of the

construction of the two duplexes and the length of time each duplex has been

continuously operating as a short - term rental were nearly identical.

Appellants submitted the LOU application to the Planning Department on

August 1 5 , 2017. A circuit cou rt opinion was referenced in the application.

See Opinion, Edwin Handte and Janice E. Handte v. Monroe Cty. , No. 2016 -

AP - 4 - K (Fla. 16th Cir. Ct. May 2, 2017). The circuit court concluded that with

regard to the duplex at 1547 Narcissus , Appellants "had a p re - existing non -

conforming use which was 'grandfathered in.'" Id. In the LOU application,

Appellants argued that "[s]ince the duplex at 1791 Narcissus has the same

history as 1547 Narcissus, the County is requested to recognize the lawful

non - conformity st atus of 1791."

1 1547 Narcissus was the subject of DOAH Case No. 19 - 5649 in which the undersigned issued

a Final Order on July 6, 2020. The Final Order upheld a Planning Department LOU that

recognized the lawful establishment of a non - conform ing vacation rental use of the duplex at

1547 Narcissus Avenue, Big Pine Key .

The LOU for 1791 Narcissus was issued on A ugust 13, 2018 . The Senior

Planning Director determined that the duplex was lawfully established on

the subject property , but the evidence submitted did not support the

establishment of a non - confor ming vacation rental use prior to September 15,

1986. Appellants elected to appeal the Senior Planning Director's decision to

the Commission in August 2018.

The appeal hearing was held before the Commission on July 31, 2019. At

the hearing, the County pre sented the expert testimony of Devin Rains .

A ppellant Edwin Handte also testified.

Appellants' position was that Ordinance 004 - 1997, for the first time,

defined, regulated, and prohibited in certain residential zoning districts,

"vacation rental use." App ellants basically argued that their "grandfathered

in" use was recognized by the circuit court opinion regarding 1547 Narcissus,

and should be similarly applied to 1791 Narcissus. In addition, Appellants

argued that the use was not prohibite d by the pre - 19 86 and post - 1986 Land

Development Code ( LDC ) , and could continue unfettered by the 1997

regulation and its 2016 counterpart gover ning "vacation rental use." See

§ 134 - 1, Monroe Cty. Code.

The County's position was that Ordinance 004 - 1997 clarified the exi sting

prohibition on short - term rental, i.e., less than 28 days, of single - family

homes within residential districts. The County acknowledged the circuit

court's decision and recognized a lawfully - established non - conforming

vacation rental use for the dupl ex structure at 1547 Narcissus . In addition,

for 1547 Narcissus, the Monroe County LDC required that an annual special

vacation rental permit and a vacation rental manager's license must be

obtained and maintained to lawfully continue the duplex's vacation rental

use. Id.

In the proceeding below, h owever, the County's expert, Mr. Rains ,

testified that he specifically disagreed with the circuit court's opinio n where

it stated that vacation rentals were not allowed or disallowed by 1970 zoning,

i.e., pre - 1986 LDC. See Opinion, Edwin Handte .

By motion that passed, the Commission voted to uphold the Senior

Planning Director's decision. On September 25, 2019, the Commission

adopted Resolution No. P3 5 - 19, denying the Appellants’ appeal request.

Resolution No. P35 - 19 set forth that the Commission considered the full

record before it and concurred with the A ugust 13, 2018, LOU. This appeal

ensued.

S TATEMENT O F T HE I SSUE S

Appellants raised several issues on appeal, including: (1) whether

Appellee retroactively appli ed the LDC to Appellants' lawfully - established

non - conforming vacation rental use; (2) whether Appellee violated

Appellants' right to due process by applying Ordinance 004 - 1997, and its

2016 counterpart, retroactively to events which occurred and were

esta blished as a matt er of record prior to 1997; (3) whether Appellants

acquired vested rights when Ordinance 004 - 1997 was enacted, and the circuit

court opinion judicially recognized those vested rights; (4) whether the

Appellee erred by requiring compliance with Ordinance 004 - 1997, and its

2016 counterpart, in light of the doctrine of laches and equitable estoppel;

and ( 5 ) whether Appellee erred, under the doctrine of collateral estoppel, by

not applying the circuit court opinion.

L EGAL D ISCUSSION

Standard o f Review

Pursuant to a contract, DOAH has jurisdiction to consider this appeal

under section 102 - 213 of the Monroe County LDC. The hearing officer "may

affirm, reverse or modify the order of the planning commission." § 102 - 218(b),

Monroe Cty. Code. The hea ring officer's order is subject to the following

limitations:

The hearing officer's order may reject or modify any

conclusion of law or interpretation of the county

land development regulations or comprehensive

plan in the planning commission's order, whet her

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,

th at 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 essential requirements of the law.

Id . Thus, the undersigned must det ermine whether the findings in Resolution

No. P35 - 19 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

requirements of the law is synonymous with whether the Commission

"applied the correct law." Haines City Cmty. Dev. v. Heggs , 658 So. 2d 523,

530 (Fla. 1995). When used as an appellate standard of review, competent

evidence has been con strued 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." De Groot v.

Sheffield , 95 So. 2d 912, 916 (Fla. 1957). Substantial evi dence is evidence

that provides a factual basis from which a fact at issue may reasonably be

inferred. Id .

Procedural Due Process Violations

Unlike the three - tier judicial review of final administrative actions by a

circuit court, procedural or due proces s violations may not be considered. See,

e.g., Osborn v. Monroe Cty. Planning Comm'n , Case No. 03 - 4720 (Fla. DOAH

Nov. 1, 2004)("the review criteria are limited and do not include consideration

of whether procedural due process was afforded by the Commissi on").

Therefore, Appellants' argument that procedural due process violations

occurred during the appeal hearing in front of the Commission, is not within

the scope of this appeal.

Constitutional Issues

Judicial review of final administrative actions by a circuit court is the

proper forum to address constitutional claims. See Wilson v. Cty. of Orange ,

881 So. 2d 625, 631 - 32 (Fla. 5th DCA 2004); see also Holiday Isle Resort &

Marina Assoc. v. Monroe Cty ., 582 So. 2d 721, 722 (Fla. 3d DCA 1991).

Therefore, Ap pellants' arguments that the County's and Commission's

actions violated various constitutional provisions were not within the scope of

this appeal.

Vested Rights

Appellants argued that when the duplex became a la wful non - conforming

use , it acquired the ve sted rights to be exempt from the retroactive

application of substantive legislation, such as Ordinance 004 - 1997 and its

2016 counterpart. See Ordinance 004 - 1997; §§ 101 - 4( d) and 134 - 1, Monroe

Cty. Code. Appellants argued that they acquired vested rights w hen

Ordinance 004 - 1997 was enacted, and the circuit court opinion was a j udicial

declaration and recognition of those rights .

The r ecord reflects that Appellants did not apply for a vested ri ghts

determination under the LDC. This administrative remedy has been

available since the 1986 Monroe County LDC. This circuit has recognized

that this administrative remedy should first be exhausted before bringing a

challenge on vested rights grounds. See Opinion, Oceanside 104, LLC v. Scott

French and Teresa Staffor d, No. 2016 - CA - 0376 - K (Fla. 16th Jud. Cir. Jan. 25,

2019)(Garcia, J.).

Contrary to Appellants' arguments, the circuit court opinion did not

judicially declare and recognize their acquisition of a vested right to be

e xempt from the Monroe County LDC vacati on rental permit and license

requirements. See Dougherty ex rel. Eisenberg v. City of Miami , 23 So. 3d 156

(Fla. 3d DCA 2009)(reflecting that questions of law actually decided by the

circuit court appellate decision must govern the case).

Laches and Equit able Estoppel

Appellant s did not argue to the Commission that it should or could

overturn the LOU using the doctrines of laches or equitable estoppel. In

addition, these doctrines are recognized as equitable affirmative defenses

and not as standalone affir mative grounds for relief. See Mc C ray v. State,

699 So. 2d 1366, 1368 (Fla. 1997)("[L]aches is a doctrine asserted as a

defense[.]"). "Laches acts as a shield to an action, therefore, it has no application to” the case at bar where Appellant s seek to use i t as a sword.

Corona Prop s. of Fl a., Inc. v. Monroe Cty . , 485 So. 2d 1314, 1318 (Fla. 3 d

DCA 1986).

The case law cited by Appellants arose from code enforcement actions

where the doctrines were pled as affirmative defenses. Cf. Corkery v.

Anchorage, 426 P .3d 1078 (Alaska 2018). Appellants did not preserve this

argument before the Commission, and the case law dictates against use of

these doctrines in this type of administrative appeal.

Correct Application of the Law

The issue of whether the Commission com plied with the essential

requirements of the law is synonymous with whether the C ommission

"applied the correct law." Haines City Cmty. Dev., 658 So . 2d at 530 . One of

the first rules of statutory construction is that the plain meaning of the

statute (ordi nance) 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 statutory construction. Id. at 412.

The circuit court opinio n stated that Appellants sought to continue using

their property as a short - term rental, which was now prohibited in the zoning

district in which the duplex was located. See Opinion, Edwin Handte .

Ordinance 004 - 1997 defined the use and required that "[a]ll vacation rental

uses shall obtain annual special vacation rental permits regardless of when

the use was first established." The circuit court opinion determined the status

of the duplex at 1547 Narcissus Avenue as "a pre - existing non - conforming

use which was grandfathered in." The County acknowledged the circuit court's decision for 1547 Narcissus and r ecognized a lawfully established non -

confor ming vacation rental use for that duplex structure.

The circuit court decided a question of law . See Dougherty e x rel.

Eisenberg , 23 So. 3d at 156 ( reflecting that questions of law actually decided

by the circuit court appellate decision must govern the case). The circuit court

set forth the property's zoning history and concluded that vacation rentals

were not allo wed or disallowed by 1970 zoning . The circuit court also applied

the holdings in Allen v. City of Key West, 5 9 So. 3d 316 (Fla. 3d DCA 20 1 1) ,

and Rollison v. City of Key West, 875 So. 2d 659 (Fla. 3d DCA 2004) .

In Allen , the owners of properties being us ed for short - term rentals were

entitled to grandfather status because the properties had been devoted to

that use, in compliance with then - existing laws, prior to zoning restrictions

prohib iting such rentals. In Rollison , the court reiterated its prior

int erpretation of the "then - existing laws" to a similar set of facts and held

that the facts established a lawful non - conforming use. The use was

"grandfathered in" because it existed lawfully before the current restrictions

on short - term rentals. See Rolliso n , 875 So. 2d at 663.

T he circuit court opinion interpreted the " then - existing " zoning laws and

decided that vacation rentals were not allowed or disallowed by 1970 zoning .

As such, Appellants " had a pre - existing non - conforming use which was

'grandfathere d in.'" See Opinion, Edwin Handte . The record showed that the

history of the construction of the two duplexes at 1 547 and 1791 Narcissus

Avenue and the length of time each duplex has been continuously operating

as a short - term rental were nearly identical. The Commission's Resolution

No. P35 - 19 is contrary to law in view of the prior decision of the circuit court .

Thus, the County did not apply the correct law . See , e.g., Cusick ex rel Cusick

v. City of Neptune Beach, 765 So. 2d 175 , 177 (Fla. 1st DCA 2000) ( reflecting

that the doctrine of stare decisis applies a rule of law established in an earlier

case only to a later case that involves a similar factual situation).

Compliance with Ordinance 004 - 1997 and its 2016 counterpart

Contrary to Appellants' argume nts, the circuit court opinion did not

decide the question of whether the duplex was exempt from the vacation

rental permit and license requirements of the LDC. See Dougherty,

23 So. 3d 156 (reflecting that questions of law actually decided by the circuit

court appellate decision must govern the case). In this appeal, Appellants

have not produced any case law that stands for the proposition that

Appellants can conduct their vacation rental use unfettered by the County's

substantive regulations for vacation rental businesses. The plain language of

the LDC requires that an annual special vacation rental permit and a

vacation rental manager's license must be obtained and maintained to

lawfully continue the duplex's vacation rental use. See Ordinance 004 - 1997;

§ § 101 - 4( d) and 134 - 1, Monroe Cty. Code.

D ECISION

Based on the foregoing, the Commission's Resolution No. P35 - 19 is

reversed and remanded for entry of a decision consistent with this F inal

O rder.

D ONE A ND O RDERED this 12th day of August , 2020 , in Tallahass ee, Leon

County, Florida.

F RANCINE M. F FOLKES

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 12th day of August , 2020 .

C OPIES F URNISHED :

Peter H. Morris, Esquire

Monroe County Attorney's Office

1111 12th Street , Suite 408

Key West, Florida 33040

(eServed)

Lee Robert Rohe, Esquire

Lee R. Rohe, P.A.

30410 Sea Grape Terrace , Suite 2

Big Pine Key, Florida 33043

(eServed)

Ilze Aguila, Senior Coordinator

County of Monroe

Board of County Commissioners

2798 Overseas Highway , Suite 410

Marathon, Florida 33050

(eServed)

N OTICE O F R IGHT T O J UDICIAL R EVIEW

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

Order is the final administrative action 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.