20-002787 Edwin Handte And Janice Handte vs. Monroe County Planning Commission Status: Appeal.

Summary: The Commission's Resolution No. P06-20 is reversed and remanded for entry of a decision acknowledging a lawfully established non-conforming vacation rental use at Appellants' property on Key Largo, Florida.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

E DWIN H ANDTE A ND J ANICE H ANDTE ,

Appellants ,

vs. Case No. 20 - 2787

M ONROE C OUNTY P LANNING C OMMISSION ,

Appellee .

/

F INAL O RDER

In this administrative appeal to the Division of Administrative Hearings

(DOAH), Appellants, Edwin Handte and Janice E. Handte (Appellants), seek

review of Resolution No. P06 - 20 rendered by Appellee, Monroe County

Planning Commission (Commissio n), on May 22, 2020. The Resolution upheld

the Letter of Understanding (LOU) dated June 20, 2019, in which the Acting

Senior Director of the Monroe County Planning and Environmental

Resources Department (Planning Department) notified Appellants that the

Pl anning Department recognized the lawful establishment of 936 square feet

of floor area of non - residential office use as exempt from Monroe County's

Rate of Grow th Ordinance ( ROGO ) , and three apartments as exempt from

the ROGO at 103365 Overseas Highway, Key Largo , Florida (Property).

However, the LOU also notified Appellants that the Planning Department

w as unable to recognize the lawful establishment of a non - conforming

vacation rental use of three existing apartments at the Property.

A three - volume Record of the underlying proceeding before the

Commission was filed with DOAH by its Clerk on July 19, 2020. B riefs were

filed by the parties and oral argument was held by Zoom videoconference on

December 1, 2020.

A PPEARANCES

Fo r Appellants: Lee Robert Rohe, 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 P roperty and its three dwelling units are located on Key Largo.

Appellants obtained the Property's building permit on November 6, 1985. The

three dwelling units are efficiency apartments of approximately 300 square

feet each. The Property began operation and was continuously operated as

short - term rental s since June 1987. It is undisputed that when the P roperty

was gr anted a building permit on November 6, 1985 , it was ten months prior

to enactment of the 1986 Monroe County Land Development Code (LDC). The

Certificate of Occupancy (CO) was granted on June 17, 1987 .

Although the P roperty has been zoned Improved Subdivis ion - Masonry

( IS - M ) since September 1986, the P roperty was previously zoned Business

Use ( BU - 1 ) when the building was planned and approved before the

September 15, 1986 , change in zoning based on enactment of the 1986 LDC .

The P roperty was purchased and pe rmitted under the BU - 1 designation. The

BU - 1 district allowed uses that included apartments as an accessory use to a

commercial principal use . The floor plans in the building permit reflect

commercial square footage and the three efficiency apartments. At that time,

the LDC did not specify or limit the duration of use for t he accessory

apartments .

The permitting and rental operation history of the Property are almost

identical to the permitting and rental operation history of Appellants'

properties on Big Pine Key at 1547 Narcissus Avenue and 1791 Narcissus

Avenue. The 1 547 Narcissus Avenue property was the subject of DOAH

Case No. 19 - 5649 in which the undersigned issued a Final Order on July 6,

2020. Th at Final Order affirmed Commission Resolution No. P34 - 19 that

recognized the lawful establishment of a non - conforming vacation rental use

of the two existing dwelling units at 1547 Narcissus Avenue . Th at Final

Order also affirmed the Commission's determination that 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 vacation rental use. See §§ 101 - 4(d) a nd 134 - 1, Monroe

Cty. Code.

The 1 791 Narcissus Avenue property was the subject of DOAH Case

No. 19 - 564 5 in which the undersigned issued a Final Order on August 12,

2020. That Final Order reversed and remanded Commission Resolution No.

P35 - 19 . Resolution N o. P35 - 19 did not recognize the lawful establishment of a

non - conforming vacation rental use of the two existing dwelling units at

1 791 Narcissus Avenue. Th e Final Order also reiterated the conclusion t hat

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 a vacation rental use. See §§ 101 - 4(d) and

134 - 1, Monroe Cty. Code.

Appel lants submitted th e instant LOU application to the Planning

Department on August 1 3 , 2017. As with the prior applications for the

properties on Big Pine Key, a circuit court 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 regarding the duplex at 1547 Narcissus, Appellants "had a

pre - existing non - conforming use which was 'grandfathered in.'" Id. In the

LOU application, Appellants essentially argued that Monroe County ( County )

should recognize the lawful non - conformity status of the Property based on

the similarities with the properties on Big Pine Key .

The LOU for the Property w as issued on June 20, 2019. The Planning

Department determined that the building was lawfully established on the

subject property, but the evidence submitted did not support the

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

1986. Appellants elected to appeal the Pla nning Department's decision to the

Commission in July 2019.

The appeal hearing was held before the Commission on February 26,

2020. At the hearing, the County presented 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." Appellants basically argued that their "grandfathered

in" use was recognized by the ci rcuit court opinion regarding 1547 Narcissus

and should be similarly applied to the Property. In addition, Appellants

argued that the use was not prohibite d by the pre - 1986 and 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, i.e., less than 28 days, of single - family

homes within residential dist ricts. In the proceeding below, the County's

expert , Mr. Rains, testified that he specifically disagreed with the circuit

court's opinion where it stated that vacation rentals were not allowed or

disallowed by the 1970 's zoning, i.e., pre - 1986 LDC. See Opi nion, Edwin

Handte .

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

Planning Department's LOU. On May 22, 2020, the Commission adopted

Resolution No. P 06 - 20 , denying the AppellantsÔ appeal request. Resolution

No. P 06 - 20 set forth tha t the Commission considered the full record before it

and concurred with the June 20, 2019, LOU. This appeal ensued.

S TATEMENT OF T HE I SSUES

Appellants raised two issues for resolution in this appeal . First,

Appellants seek revers al of the LOU and Resolution No. 06 - 20 , and

recogni tion of a lawful non - conforming vacation rental use of the Property .

Second, Appellants seek clarification that the y are not subject to any

provisions of section 134 - 1, Monroe County L DC , regarding the Property.

L EGAL D ISC USSION

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 C ty. 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 commiss ion's 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 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 und ersigned must determine whether the findings in Resolution

No. P 06 - 20 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 standar d 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." De Groot 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 Due Process Violations

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

circuit court, procedural 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 proceeding in front of the Commission, is not

within the scope of this appeal.

Correct Application of the Law

T he 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 ., 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

un ambiguous, 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 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 co urt opinion determined the status

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

use which was grandfathered in." In DOAH Case No. 19 - 5649 , t he County

acknowledged the circuit court's decision for 1547 Narcissus and recognized a

l awfully established non - conforming vacation rental use for that duplex

structure.

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

Eisenberg v. City of Miami, 23 So. 3d 156, 157 (Fla. 3d DCA 2009 ) (reflecting

that questions of law actual ly 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 allowed or disallowed by

the 1970 zoning. The circuit court also applied the ho ldings in Allen v. City of

Key

West , 59 So. 3d 316 (Fla. 3d DCA 2011), and Rollison v. City of Key West , 875

So. 2d 659 (Fla. 3d DCA 2004).

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

entitled to grandfather status because t he properties had been devoted to

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

prohibiting such rentals. In Rollison , the court reiterated its prior

interpretation of the "then - existing laws" to a similar set of facts and h eld

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 Rollison , 875 So. 2d at 663.

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

decided that vacation rentals were not allowed or disallowed by the 1970

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

was 'grandfathered in.'" See Opinion, Edwin Handte . The record showed that

the histo ry of the construction of the two duplexes on Big Pine Key , and the

length of time each duplex has been continuously operating as a short - term

rental , were nearly identical to the history of the Property on Key Largo . The

Commission's Resolution No. P 06 - 20 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 i ts 2016 c ounterpart

Contrary to Appellants' arguments, 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

at 157 (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 languag e 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

Property '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. P06 - 20 is

reversed and remanded for entry of a decision consistent with this Final

Order.

D ONE A ND O RDERED this 6 th day of May , 2021 , in Tallahassee, Leon

County, Florida.

S

F RANCINE M. F FOLKES

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 6 th day of May, 2021.

C OPIES F URNISHED :

Peter H. Morris, Esquire Ilze Aguila, Senior Coordinator

Monroe County Attorney's Office County of Monroe

1111 12th Street , Suite 408 Board of County Commissioners

Key West, Florida 33040 2798 Overseas Highway , Suite 410

Marathon, Florida 33050

Lee Robert Rohe, Esquire

Lee R. Rohe, P.A. Derek V. Howard, Esquire

30410 Sea Grape Terrace , Suite 2 Monroe County Attorney's Office

Big Pine Key, Florida 33043 1111 12th Street, Suite 408

Post Office Box 1026

Key West, Florida 33041 - 1026

N OTICE OF R IGHT TO 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

f or Monroe County, Florida.