19-005649 Edwin Handte And Janice Handte vs. Monroe County Planning Commission Status: Closed DOAH Final Order on Monday, July 6, 2020.

Summary: The Monroe County Planning Commission's Resolution No. P34-19 was affirmed.

A PPEARANCES

For Petitioner: Lee Robert R ohe, Esquire

Lee R. Rohe, P.A.

Suite 2

30410 Sea Grape Terrace

Big Pine Key, Florida 33043

For Respondent: Ilze Aguila, Senior Coordinator

County of Monroe

Board of County Commissioners

Suite 410

2798 Overseas Highway

Marathon, Florida 33050

Peter H. Morris, Esquire

Monroe County Attorney's Office

Suite 408

1111 12th Street

Key West, Florida 33040

A two - volume Record of the underlying proceeding before the Commission

was filed with DOAH by its Clerk on October 22, 2019. Briefs were filed by

the par ties and oral argument was held by video teleconference at sites in

Marathon, Key West, and Tallahassee , Florida on February 24, 2020.

B ACKGROUND

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

Appellants submitted the LOU application to the Planning Department on

August 17, 2017. A circuit court opinion accompanied the application. See

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 Appellants "had a

p re - existing non - conforming use which was 'grandfathered in.'" Id. The LOU

was issued on April 16, 2018, wherein the Senior Planning Director: (a)

recognized a lawfully established non - conforming duplex structure containing

two dwelling units on the subject property, and that their replacement would

be thereby exempt from Monroe County's Rate of Growth Ordinance permit

allocation system; (b) recognized a lawfully established non - conforming

vacation rental use for the duplex structure; and (c) concluded that the LDC

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

man a ger's license must be obtained and maintained to lawfully continue the

duplex's vacation rental use. Appellants elected to appeal the Senior

Planning Director's decisi on to the Commission in August 2018.

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

the hearing, the County presented the expert testimony of Devin Rains and

Reynaldo Ortiz. Appellant 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." Appellants basically argued that their "grandfathered

in" use was not prohibite d by the pre - 1986 an d post - 1986 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 existing

prohibition on short - term rental s , 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 duplex structure. In addition, the Monroe County

LDC required that an annual special vacation rental permit and a vacation rental man a ger's license must be obtained and maintained to lawfully

continue the duplex's vacation rental use. Id.

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

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

adopted Resolution No. P34 - 19, denying the Appellants’ appeal request. The

Resolution set forth that the Commission considered the full record before it

and concurred with the April 16, 2018, LOU. This appeal ensued.

I SSUES

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

Appellee retroactively applied the LDC to Appellants' lawfully established

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

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

2016 counterpart, retroactively to events which occurred and were established as a matter of record prior to 1997; (3) whether the Appellee erred by requiring compliance w ith Ordinance 004 - 1997, and its 2016

counterpart, in light of the doctrine of laches and equitable estoppel; (4) whether Appellants acquired vested rights when Ordinance 004 - 1997 was

enacted , and the circuit court opinion judicially recognized those vested

rights; and (5 ) whether Appellants' compliance with Ordinance 004 - 1997 and

its 2016 counterpart, would be unduly burdensome.

L EGAL D ISCUSSION

Standard of 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 hearing 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, whether

stated in the order or necessarily implicit in the

planning commission's determination, but he ma y

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 of fact were not based upon competent substantial evidence or that the

proceeding bef ore 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 the findings in the

Resolution are based on competent substantial evidence, and whethe r 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 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). Substantial evidence is evidence that 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 s by a

circuit court, procedural or due process 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 Commission").

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 action s by a circuit court is the

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

881 S o. 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, Appellants' arguments that the County's and Commission's actions violated various constitutional provisio ns were not within the scope of

this appeal.

Laches and Equitable Estoppel

Appellants 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 recognize d as equitable affirmative defenses and

not as standalone affirmative grounds for relief. See McGray 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 it 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 wer e pled as affirmative defenses. Cf. Corkery v.

Anchorage, 426 P. 3d 1078 ( A laska 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.

Vested Rights

Appellants argued that when the duplex became a lawful, non - conforming

use , it acquired the vested rights to be exempt from the retroactive

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

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

Cty. Code. A ppellants argued that they acquired vested rights when

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

declaration and recognition of those rights .

The record 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 Oceanside 104, LLC v. Scott French

and Teresa Stafford, 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 vacation 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 a ctually decided by the

circuit court appellate decision must govern the case).

Correct Application of the Law

The issue of whether the Commission complied with the essential

requirements of the law is synonymous with whether the C ommission

"applied the c orrect 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 (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 statutory construction. Id. at 412.

The circuit court opinion stated that Appellants sought to continue using

their property as a short term rental, which was now p rohibited in the zoning

district in which the duplex was located. See Edwin Handte and Janice E.

Handte v. Monroe Cty. , No. 2016 - AP - 4 - K (Fla. 16th Cir. Ct. May 2, 2017).

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 and the LOU recognized a lawfully established non -

conforming vacation rental use for the duplex structure.

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

decide the question of whethe r 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, Appe llants 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 an nual special vacation rental permit and a vacation rental

man a ger'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.

Appellant s argued that it would be burdensome to obtain a County permit

and license , that requiring an on - site vacation rental manager was a

hardship, and that having to do so would in effect nullify the recognition of a lawful non - conforming vacation rental use . The record reflect s that one half

of the duplex at 1547 Narcissus has been continuously occupied by an on - site

resident manager . In addition, Mr. Rains testified that it would be possible

for Appellant s to obtain a special vacation rental permit and license from the

County if they submitted applications for them, and that a potential buyer of

the property would have the same ability to do so .

The record did not establish any alleged hardship. Also, an alleged

hardship is not unconstitutional. Cf. Legal Tender Cases , 79 U. S. 457, 552

(1870) (" [I]t is not every hardship that is unjust, much less that is

unconstitutional; and certainly it would be an anomaly for us to hold an act of

Congress invalid merely because we might think its provisions harsh and

unjust. " ).

D ECISION

Based on the foregoing, the Commission's denial of Appellants' appeal

request is affirmed.

D ONE A ND O RDERED this 6th day of July , 2020 , in Tallahassee, Leon

County, Florida.

F RANCINE M. F FOLKES

Administrative Law Jud ge

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 6th day o f July , 2020 .

C OPIES F URNISHED :

Peter H. Morris, Esquire

Monroe County Attorney's Office

Suite 408

1111 12th Street

Key West, Florida 33040

(eServed)

Lee Robert Rohe, Esquire Lee R. Rohe, P.A.

Suite 2

30410 Sea Grape Terrace

Big Pine Key, Florida 33 043

(eServed)

Ilze Aguila, Senior Coordinator

County of Monroe

Board of County Commissioners

Suite 410

2798 Overseas Highway

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 Count y 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.