21-000494 Lower Density For Lower Sugarloaf, Llc, Sugarloaf Shores Property Owners Association, Inc., South Point Homeowners, Llc; Stuart Schaffer; Jack Marchant; John Coley And William L. Waldrop Family Trust 12/13/11 vs. Monroe County Planning Commission And Lower Keys Community Center Corporation Status: Closed DOAH Final Order on Thursday, July 22, 2021.

Summary: The Commission's decision to approve a major conditional use permit for a workforce affordable housing project on Sugarloaf Key was supported by competent substantial evidence and did not depart from the essential requirements of the law.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

L OWER D ENSITY F OR L OWER S UGARLOAF ,

LLC, S UGARLOAF S HORES P ROPERTY

O WNERS A SSOCIATION , I NC ., S OUTH

P OINT H OMEOWNERS , LLC; S TUART

S CHAFFER ; J ACK M ARCHANT ; J OHN

C OLEY A ND W ILLIAM L. W ALDROP

F AMILY T RUST 1 2/13/11 ,

Appellants ,

vs. Case No. 21 - 0494

M ONROE C OUNTY P LANNING

C OMMISSION A ND L OWER K EYS

C OMMUNITY C ENTER C ORPORATION ,

Appellees .

/

F INAL O RDER

Pursuant to sect ion 102 - 185(f), Monroe County Code (MCC) , 1 Appellants, Lower

Density For Lower Sugarloaf, LLC; Sugarloaf Shores Property Owners Association,

Inc.; South Point Homeowners, LLC; Stuart Schaffer; Jack Marchant; John Coley;

and the William L. Waldrop Family Tr ust 12/13/11 (Appellants), seek review of

Monroe County Planning Commission (Commission) Resolution No. P35 - 20

(Resolution).

The Resolution approved a development application requesting issuance of a

major conditional use permit by Lower Keys Community C enter Corporation

(LKCCC) for the proposed development of 88 multifamily deed - restricted affordable

employee housing dwelling units at the intersection of Overseas Highway/U.S.

Highway 1 and South Point Drive on Sugarloaf Key, near approximate mile

marker 16.7, oceanside (Application).

1 Part II of the Monroe County Code is often referred to as the Land D evelopment Code (LDC). For

purposes of this Final Order, relevant provisions will be referred to as being part of the MCC.

On December 16, 2020, the Commission held a duly noticed public meeting

(Public Meeting) to hear and consider the Application. Based on its consideration of

the record developed at the Public Meeting, the Commission passed a nd adopted the

Resolution, and approved the Application, on December 16, 2020. The Resolution

was rendered on January 8, 2021. The Ñ Appeal to Hearing Officer (State of Florida

Division of Administrative Hearings - DOAH) Ò (Appeal) was filed by Appellants

wi th the Monroe County Planning and Environmental Resources Department

(MCPERD) on February 5, 2021. The Appeal was referred to the Division of

Administrative Hearings (DOAH) on February 11, 2021. The ten - volume Record of

the underlying proceeding, consistin g of pages 1 through 1287, was thereafter

electronically filed on the docket and transmitted on a CD - R to DOAH on

February 12, 2021.

On February 16, 2021, a scheduling order was entered that established the

briefing schedule for the appeal pursuant to sect ion 102 - 217, MCC. Appellants filed

an Unopposed Motion for an Extension of Time to File the Initial Brief, which was

granted. The date for filing the initial brief was set for May 13, 2021.

On March 15, 2021, LKCCC, the owner of the property and applicant for the

major conditional use permit, moved to intervene in this proceeding. The motion

was granted, and LKCCC was accepted with full party rights as an Appellee .

On April 6, 2021, Appellants filed a Motion to Stay, requesting that this

proceeding be stay ed to allow a related Commission resolution, Resolution P36 - 20,

which approved an affordable housing project of Ñ greater than 20 units Ò for the

same project and property, to be resolved contemporaneous with this case.

On April 20, 2021, a telephonic heari ng was held on the Motion to Stay at which

all parties were represented. Due to the unavailability of the then - presiding

Administrative Law Judge (ALJ), Suzanne Van Wyk, the motion was heard by the

undersigned. At the commencement of the motion hearing, th e undersigned advised

the parties of a possible conflict created with the intervention of LKCCC, whose

counsel is a member of the law firm that served as ALJ Van Wyk Ô s ethics counsel in

her election campaign for judicial office in 2018. Appellants therea fter filed a

Motion to Recuse ALJ Van Wyk, and this case was transferred to the undersigned.

After consideration of the motion, responses, and argument, the Motion to Stay

was denied.

On May 10, 2021, Appellants filed a motion to extend the deadline to fil e the

Initial Brief by seven days, until May 20, 2021. The Motion was granted.

On May 14, 2021, Appellant s , without filing a motion for leave to do so, filed a

Supplement to Record. Appellant s did not file a memorandum of the authority

under which the supp lement was filed. On May 20, 2021, LKCCC filed a Motion to

Strike Appellants Ô Ñ Supplement to Record. Ò On June 8, 2021, the Motion to Strike

was granted, and the Supplement to Record has been given no consideration in the

development of this Final Order.

T he Initial Brief was timely filed on May 20, 2021. Appellees Ô Answer Briefs

were timely filed on June 22, 2021. On June 24, 2021, Appellant filed a Motion for a

5 - Day Extension of Time to File the Reply Brief, and on that same day the

undersigned entered a n Order to Show Cause directing Appellees to explain the

basis for any objection to the Motion. Upon review of the response to the Order to

Show Cause, the Motion for a 5 - Day Extension of Time was granted, and the Reply

Brief submission date was extended t o July 6, 2021. Appellants Ô 22 - page Reply Brief

was thereafter timely filed on that date, accompanied by a Motion to Exceed Page

Limit.

On July 12, 2021, Stuart Schaffer, a party to this proceeding, filed a Motion to

Appear Pro Se and Participate in the O ral Argument. Also, on July 12, 2021,

Appellants filed a Notice of Supplement al Authority of the Final Order in Florida

Keys Media, LLC v. Monroe County Planning Commission , Case No. 16 - 0277 ( Fla.

DOAH June 1, 2016).

Oral argument was heard by Zoom telecon ference on July 13, 2021, at which

Appellants Ô Motion to Exceed Page Limit and Mr. Schaffer Ô s Motion to Appear Pro

Se and Participate in the Oral Argument were granted. Appellees were also granted

leave to file a two - page response to the Florida Keys Med ia Final Order, which was

filed on July 19 , 2021.

I SSUES

Appellants raise five issues on appeal: (1) that the Commission erred in

approving the Application despite there being no competent substantial evidence of

LKCCC Ô s financial capacity to develop the property; (2) that the Commission erred

in approving the Application despite there being no competent substantial evidence

that the project will meet the Ñ local needs Ò requirement of the MCC; (3) that the

Commission Ôs Public Meeting denied Appellants due p rocess, and was

fundamentally unfair; (4) that the Commission erred in approving the Application

despite the failure of the project to comply with the Ñ phasing and aggregation Ò

requirements of the MCC for reserved outparcels; and (5) that the Commission

er red in approving the Application despite the failure of the project to comply with,

and the project Ô s inconsistency with, the Lower Keys Livable CommuniKeys Plan

( Ñ CommuniKeys Plan Ò ) .

B ACKGROUND

LKCCC proposes the development of 88 multifamily deed - restri cted affordable

employee housing dwelling units at the intersection of Overseas Highway/U.S.

Highway 1 and South Point Drive on Sugarloaf Key, near approximate mile marker

16.7, oceanside (the Project). The general description of the Project is as follows:

Dockside consists of 28 units [in one building with three

connected sections] on a parcel of 1.95 acres on the west

side of S. Point Drive, with the Landings [60 units in

seven structures] on a parcel of 3.34 acres on the east of

South Point Drive, adjace nt to a parcel which is not part

of this project. Also on the western side of the Dockside

parcel, there is another parcel, also not a part of the

project.

The Project is proposed with a new entrance to U.S. Highway 1 ( Ñ U.S. 1 Ò ) at the

Landings side that will serve as the primary and only entrance to the Landings.

The new entrance is designed with right turn in and right turn out lanes, and a

separate left turn lane for south - bound traffic.

The existing South Point Drive entrance from U.S. 1 is designed to add a right

turn in deceleration lane, a right turn out acceleration lane, and a left turn queuing

lane. A new roundabout is proposed for South Point Drive, designed to slow traffic

along South Point Drive and direct traffic into Dockside.

A new bus sto p is proposed for South Point Drive to serve public transit and

school busses.

Evidence in the Record of the Commission Public Meeting

The Application was filed on August 14, 2020 , by Donald Leland Craig, AICP,

and Erica Sterling of Spottswood, Spottswood , Spottswood & Sterling , PLLC,

seeking issuance of a major conditional use permit pursuant to

section 110 - 70, MCC.

A major conditional use permit is necessary pursuant to section 130 - 93(c)(9),

MCC, which requires dwelling units involving more than 18 unit s, designated as

employee housing, be approved by the Commission as a major conditional use

permit.

On October 1, 2020, a public community meeting was held in accordance with

section 110 - 70(c), MCC.

On or about December 7, 2020, the staff of MCPERD filed a supplemental Staff

Report in the Commission Ô s record of this proceeding, containing a review of

pertinent Monroe County Comprehensive Plan and MCC provisions, and

recommending approval of the Application, subject to recommended conditions of

approval.

Th e P ublic M eeting was properly noticed and set for December 16, 2020. On that

date, the Commission conducted a quasi - judicial hearing on the Application.

At the P ublic M eeting , the Commission was represented by John J. Wolfe ,

Esquire . Brad Stein, the Planni ng Development Review Manager, who was accepted

as an expert in planning, presented the supplemental Staff Report to the

Commission. Testifying at the Public Meeting were the following representatives

and professional consultants of LKCCC: Donald Craig, AI CP; Steven Kirk,

President of the managing member of LKCCC; Karl Peterson, P.E., LKCCC Ô s traffic

engineer; and Harry Delashmutt, LKCCC Ô s environmental and biological resources

expert. Offering testimony on behalf of Monroe County was Emily Schemper, Senior

Director of Planning and Environmental Resources, who was accepted as an expert

in planning; Michael Roberts, Assistant Director of Environmental Resources, who

was accepted as an expert in biology and environmental resources; and Mr. Stein.

Testimony wa s taken from 24 members of the public, mostly nearby residents,

with five in favor, and 19 in opposition to the Application.

Andrew Tobin , Esquire, appeared on behalf of Appellants, and provided oral

legal argument. Also appearing on behalf of Appellants w as Stuart Schaffer,

President of the Sugarloaf Shores Property Owners Association; Jack Marchant,

representing South Point Homeowners, LLC; John Coley, a party; Bill Waldrop, a

party representative; and expert witnesses Juan Calderon, P.E., a professional

traffic operational engineer; Max Forgee, a planner; Phil Frank, an environmental

consultant; and James Carras, a financial consultant. Several of Appellants Ô

speakers submitted written reports that were in the record before the Commission.

The Resolution identified the following evidence as having been presented at the

Public Meeting , which was incorporated and transmitted as part of the record:

1. Major conditional use permit development application

received by the [MCPERD] on August 14th, 2020;

2. Site plan ( Ñ Site Plan Ò ) prepared by PQH Group Design

Inc., signed - and - sealed by Aldo Minozzi, AIA, dated/on

October 19th, 2020;

3. Building elevations ( Ñ Building Elevations Ò ) prepared by

PQH Group Design Inc., signed - and - sealed by Aldo

Minozzi R.A., dated/on October 19th, 2020;

4. Building floor plans ( Ñ Building Floor Plans Ò ) prepared

by PQH Group Design Inc., signed - and - sealed by Aldo

Minozzi R.A., dated/on July 31, 2020;

5. Drainage plan ( Ñ Drainage Plan Ò ) prepared by GRAEF

(GRAEF USA), signed - and - sealed by Nelson H. Ortiz,

P.E., dated/on October 21, 2020;

6. Photometric plan ( Ñ Photometric Plan Ò ) prepared by

PQH Group Design Inc., signed - and - sealed by Thomas C.

Nielsen, P.E., dated/on October 19th, 2020;

7. Landscape plan ( Ñ Landscape Plan Ò ) signed - and - seale d

by Brown & Crebbin Design Studio Inc., by/via Richard

Brown, FRLA, dated/on October 22nd, 2020;

8. Existing conditions report ( Ñ Existing Conditions

Report Ò or Ñ ECR Ò ) prepared by Biosurveys, Inc., signed by

Harry DeLashmutt, March 16th, 2020;

9. Bounda ry survey ( Ñ Boundary Survey Ò ) by Florida Keys

Land Surveying, LLC, signed - and sealed by Eric A.

Isaacs, P.S.M., dated/on a revised date of July 29th, 2020;

10. Traffic study ( Ñ Traffic Study Ò ) by KBP Consulting,

Inc., signed - and - sealed by Karl B. Peterson, P.E., dated

December 2019, and furthermore updated dated

July 2020 and December 2020;

11. Sworn testimony of representatives of the property

owner and the property owner Ô s professional consultants,

·including but not limited to Donald Craig, AICP, Harry

Delashmutt, Karl Peterson, P.E., Steven Kirk, and Nelson

Ortiz, P.E.;

12. Sworn testimony of MCPERD professional staff,

including but not limited to the sworn testimony of the

Department Ô s Senior Director Emily Schemper, the sworn

testimony of the Assista nt Director of the Department Ô s

Environmental Resources Office Michael Roberts, and

sworn testimony of the Department Ô s Development

Review Manager Bradley Stein;

13. Written protest request forms from members of the

public, more particularly contained in the Department Ô s

file maintained for the instant development

application/request for hearing and consideration of the

subject major conditional use permit application received

from the property owner;

14. Written public comment from members of the publi c,

more particularly contained in the Department Ô s file

maintained for the instant development

application/request for hearing and consideration of the

subject major conditional use permit development

application received from the property owner;

15. Swor n testimony of various members of the public

speaking in support of and speaking in opposition to the

property owner Ô s development application;

16. A two - page (2 - page) letter from counsel for certain

members of the public, submitted by Andrew Tobin, Esq.,

dated December 11th, 2020, and oral legal argument of

Mr. Tobin;

17. Additional miscellaneous docume nts contained in the

Department Ô s file maintained for the instant development

application/request for hearing and consideration of the

subject major condi tional use permit development

application received from the property owner;

18. Advice and counsel of John J. Wolfe, Esq., counsel to

the [ ] Commission.

At the conclusion of the Public Meeting , the Commission voted unanimously to

approve the Application . That decision is memorialized in the Resolution, rendered

on January 8, 2021. The Resolution made the following Ñ initial Ò findings of fact:

1. The subject property is locat ed in the Suburban

Commercial ( Ñ SC Ò ) Land Use ( Ñ Zoning Ò ) District; and

2. The sub ject property is located the Mixed

Use/Commercial ( Ñ MC Ò ) Future Land Use Map ( Ñ FLUM Ò )

category; and

3. The subject property is located wit hin an area designed

Tier III ( Ñ Infill Area Ò ); and

4. Pursuant to [MCC] Section 130 - 93(c)(9), the proposed

developme nt shall require a major conditional use permit;

and

5. [MCC] Section 110 - 67 furnishes the standards which

are applicable to all conditional uses. When considering

applications for a conditional use permit, this tribunal

shall consider the extent to which :

(a) The conditional use is consistent with the purposes,

goals, objectives and policies of the Comprehensive Plan

and this [MCC];

(b) The conditional use is consistent with the community

character of the immediate vicinity of the parcel proposed

for de velopment;

(c) The design of the proposed development minimizes

adverse effects, including visual impacts, of the proposed

use on adjacent properties;

(d) The proposed use will have an adverse effect on the

value of surrounding properties;

(e) The adequ acy of public facilities and services;

(f) The applicant for conditional use approval has the

financial and technical capacity to complete the

development as proposed and has made adequate legal

provision to guarantee the provision and development of

any improvements associated with the proposed

development;

(g) The development will adversely affect a known

archaeological, historical or cultural resource;

(h) Public access to public beaches and other waterfront

areas is preserved as a part of the propose d development;

and

(i) The proposed use complies with all additional

standards imposed on it by the particular provision of the

[MCC] authorizing such use and by all other applicable

requirements; and

6. Development shall be consistent with the [MCC]; and

7. Development shall be consistent with the Monroe

County Comprehensive Plan; and

8. Development shall be consistent with the Principles for

Guiding Development in the Florida Keys Area of Critical

State Concern.

The Resolution then made the following Ñ further initial Ò findings of fact and

conclusions of law:

1. The property owner Ô s development application is

consistent with the provisions and intent of the Monroe

County Year 2030 Comprehensive Plan, specifically:

A. The development is consistent with the purpose of

the Mixed Use/Commercial ( Ñ MC Ò ) future land use map

category, as set forth in Policy 101.5.6; and

B. The development is consistent with the future land

use densities and intensities, as set forth in

Comprehensive Plan Policy 101.5.25.

2. The property owner Ô s development application is

consistent with the provisions and intent of the [MCC],

specifically:

A. With execution of attached conditions, the

development is consistent with the purpose of the

Suburban Commercial ( Ñ SC Ò ) Land Use ( Ñ Zon ing Ò )

District, as set forth in [MCC] Section 130 - 46; and

B. With execution of attached conditions, the land uses

of the development are permitted within the Suburban

Commercial ( Ñ SC Ò ) Land Use ( Ñ Zoning Ò ) District, as set

forth in [MCC] Section 130 - 93; and

C. With execution of attached conditions, the

development meets all of the standards for a

conditional use permit as set forth in [MCC] Section

110 - 67; and

3. The property owner Ô s development application is

consistent with the Principles for Guiding Development in

the Florida Keys Area of Critical State Concern.

The Resolution concluded by expressing the Commission Ô s concurrence with the

advice and counsel of its legal counsel; the documentary and testimonial contentions

of LKCCC in support of the Ap plication; and the recommendations, findings , and

conclusions of the MCPERD Ô s professional staff, and resolved that:

Following considered review of the full record before it,

based upon competent substantial evidence in the record,

more particularly refere nced above in the foregoing

prefatory and operative recitals, prefatory and operative

findings of fact, and prefatory and operative conclusions of

law, all detailing said evidence, and detailing the [ ]

Commission Ô s concurrence with particular oral asserti ons

of law and contentions or determinations of fact and law

in the record, the [ ] Commission hereby approves the

property owner Ô s development application requesting

approval of issuance of a major conditional use permit.

The Application approval was mad e subject to the following conditions:

1. The proposed development is currently in compliance

with Monroe County Comprehensive Plan Policies

301.1.1, 301.2.1, 301.2.2, 301.2.3 and 301.2.4, as well as

[MCC] Sections 114 - 2(a)(l)(a.), (b.) and (c.). There is

currently adequate roadway capacity available at this

time, but this shall not guarantee the adequacy or

availability of public facilities at subsequent stages of

development review. The applicant/property owner hereby

acknowledges and agrees that any t raffic level of service

conditions in the development order are preliminary, and

only represent a conditional concurrency determination. A

final concurrency review shall [be] completed during

building permit review to ensure adequate roadway

capacity is co nfirmed and the adopted level of service is

maintained. In areas of the County that are served by

marginal or inadequate facilities, developments may be

approved, provided that the development in combination

with all other permitted development will not de crease

travel speed by more than five percent (5%) below Level -

of - Service ( Ñ LOS Ò ) C, and mitigation is provided.

Mitigation may be in the form of specific improvements or

proportioned shared contribution towards improvements

and strategies identified by th e County, and/or by the

Florida Department of Transportation ( Ñ FDOT Ò ) to

address any level of service degradation beyond LOS C

and/or deficiencies. The applicant shall submit evidence of

an agreement between the applicant and the FDOT for

inclusion in any contract or agreement for improvements

to U.S. Highway 1. For roadway improvements required,

the applicant/property owner may utilize:

a. The necessary facilities and services will be in place at

the time a development permit is issued; or

b. The necessa ry facilities and services are in place at

the time a certificate of occupancy, or its functional

equivalent is issued. Prior to commencement of

construction, the applicant shall enter into a binding and

legally enforceable commitment to the County to assu re

construction or improvement of the facility; or

c. A binding executed contract in place at the time a

permit is issued which provides for the commencement

of the actual construction of the required facilities or

provision of services; or

d. An enfor ceable development agreement guaranteeing

that the necessary facilities and services will be in place

with the issuance of a permit. An enforceable

development agreement may include, but is not limited

to, development agreements pursuant to Section

163.322 0, Florida Statutes, or an agreement or

development order issued pursuant to Chapter 380,

Florida Statutes; or

e. A proportionate share contribution or construction

that is sufficient to accomplish one or more mobility

improvement(s) that will benefit a r egionally significant

transportation facility. A proposed proportionate fair -

share mitigation shall be reviewed pursuant to Section

126 - 2, [MCC].

2. Prior to issuance of the building permit, a Notice of

Intent from the FDOT for the proposed ingress and eg ress

directly from U.S. Highway 1 for the Landings portion of

the property owner Ô s project must be provided.

3. Prior to issuance of a Certificate of Occupancy for any

dwelling units within the Landings portion of the

property owner Ô s project, an issued FDOT permit for the

proposed ingress and egress directly from U.S. Highway 1

for the Landings portion of the project must be provided.

4. If the FDOT does not approve the proposed new access

point on U.S. Highway 1 for the Landings portion of the

projec t, the property owner Ô s project will be required to

come before the [ ] Commission as an Amendment to the

subject major conditional use permit.

5. Prior to issuance of building permit(s), the

applicant/property owner must obtain 88 Rate of Growth

Ordinan ce ( Ñ ROGO Ò ) allocations, either through a

reservation approved by the Monroe County Board of

County Commissioners, or through the permit allocation

system quarterly application process.

6. Prior to the issuance of a building permit(s) the fencing

must com ply with [MCC] Section 114 - 13.

7. Prior to the issuance of a building permit(s) for any

signage, all proposed signs must comply with [MCC]

Chapter 142.

8. Prior to the issuance of a building permit(s) all

standards and requirements of the American with

D isabilities Act ( Ñ ADA Ò ) must be met.

9. The scope of work has not been reviewed for compliance

with Florida Building Code prior to the issuance of

building permit(s), new development and structures shall

be found in compliance by, including but not limite d to,

the Monroe County Building Department, the Monroe

County Floodplain Administrator, and the local Office of

the Fire Marshal.

On February 5, 2021, Appellants timely appealed the Commission Ô s decision. On

February 11, 2021, the appeal was referred to DOAH for briefing and oral

argument.

L EGAL D ISCUSSION

Jurisdiction

Pursuant to a contract between DOAH and Monroe County, DOAH has

jurisdiction to review by appeal the action of the Commission pursuant to section

102 - 213, MCC.

Standard of Review

In ren dering a final order, the undersigned is subject to the following standard of

review:

Within 45 days of oral argument, the hearing officer shall

render an order that may affirm, reverse or modify the

order of the planning commission. The hearing officer Ô 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 Ô s

order, whether stated in the order or necessarily implicit

in the planning commission Ô s determ ination, 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.

§ 102 - 218(b), MCC.

The standard of review under section 102 - 218(b), MCC, has been applied to

determine whether th e Commission Ñ applied the correct law. Ò Haines City Cmty.

Dev. v. Heggs , 658 So. 2d 523, 530 (Fla. 1995); see also Miami - Dade Cty. v.

Omnipoint Holdings, Inc. , 863 So. 2d 195, 199 (Fla. 2003); Wolk v. Bd. of Cty.

Comm Ô rs , 117 So. 3d 1219, 1223 - 24 (Fla. 5 th DCA 2013). The correct law may derive

from the MCC. Wolk , 117 So. 3d at 1224.

When used as an appellate standard of review, competent substantial evidence

has been construed to be Ñ legally sufficient evidence Ò or evidence that is Ñ sufficiently

relevant and material that a reasonable mind would accept it as adequate to

support the conclusion reached. Ò DeGroot v. Sheffield , 95 So. 2d 912, 916 (Fla.

1957); see also Town of Manalapan v. Gyongyosi , 828 So. 2d 1029, 1032 (Fla. 4th

DCA 2002)( Ñ The Ó competent sub stantial evidence Ô standard of review ... Ó is

tantamount to legally sufficient evidence. ÔÒ ) . So long as there is competent

substantial evidence supporting the findings made by the Commission in reaching

its decision, those findings will be sustained. See, e.g., Fla. Power & Light Co. v. City

of Dania , 761 So. 2d 1089, 1093 (Fla. 2000); Collier Med. Ctr., Inc. v. Dep Ô t of HRS ,

462 So. 2d 83, 85 (Fla. 1st DCA 1985). Whether the record also contains competent

substantial evidence to support a different result is irrelevant. Clay Cty. v. Kendale

Land Dev., Inc. , 969 So. 2d 1177, 1181 (Fla. 1st DCA 2007); Fla. Power & Light Co. ,

761 So. 2d at 1093; Educ. Dev. Ctr., Inc. v. City of W . Palm Bch. Zoning Bd. of App. ,

541 So. 2d 106, 108 (Fla. 1989). The scope of revi ew regarding the competent

substantial evidence standard requires only that the undersigned:

review the record to assess the evidentiary support for the

agency Ô s decision. Evidence contrary to the agency Ô s

decision is outside the scope of the inquiry at th is point,

for the reviewing court above all cannot reweigh the Ñ pros

and cons Ò of conflicting evidence. While contrary evidence

may be relevant to the wisdom of the decision, it is

irrelevant to the lawfulness of the decision. As long as the

record contain s competent substantial evidence to support

the agency Ô s decision, the decision i s presumed lawful and

the court Ô s job is ended.

Dusseau v. Metro. Dade Cty. Bd. of C ty . Comm Ô rs , 794 So. 2d 1270, 1276 (Fla. 2001).

In determining whether the Commission Ô s d ecision is supported by competent

substantial evidence, the hearing officer cannot Ñ second - guess Ò the wisdom of the

decision, reweigh conflicting testimony, or substitute his or her judgment for that of

the Commission as to the credibility of witnesses. Ha ines City Cmty. Dev. v. Heggs ,

658 So. 2d at 530. Furthermore, the issue is not whether the Commission Ô s decision

is the best decision, the right decision, or even a wise decision. Ñ These are technical

and policy - based determinations properly within the pu rview of the [Commission]. Ò

Town of Manalapan v. Gyongyosi , 828 So. 2d at 1032. In sum, the undersigned Ô s

function here is to determine whether the Commission had before it any competent

substantial evidence supporting the findings in the Resolution, not w hether there is

competent substantial evidence to support a contrary position. Fla. Power & Light

Co. , 761 So. 2d at 1093; Educ. Dev. Ctr., Inc. , 541 So. 2d at 108 .

Issues on Appeal

I. Whether the Commission had competent substantial evidence of LKCCC Ô s

financial capacity to develop the property.

Section 110 - 67(f), MCC, provides that :

W hen considering applications for a conditional use

permit, the Planning Director and the Planning

Commission shall consider the extent to which:

* * *

(f) The applicant for conditional use approval has the

financial and technical capacity to complete the

development as proposed and has made adequate legal

provision to guarantee the provision and development of

any improvements associated with the proposed

development[.]

At paragraph 5 (f) of the Resolution Ô s initial findings of fact, the Commission

determined that:

The applicant for conditional use approval has the

financial and technical capacity to complete the

development as proposed and has made adequate legal

provisi on to guarantee the provision and development of

any improvements associated with the proposed

development[.]

Appellants argue that Ñ the County Ô s Staff Report concludes that Ó Staff has no

evidence to support or disprove the applicant Ô s financial and tech nical capacity. ÔÒ

However, the issue is not whether Monroe County staff had competent substantial

evidence to support its recommendation, but rather whether the Commission had

competent substantial evidence to support its decision.

Here, the Commission Ô s f inding that LKCCC has the financial capacity to

complete a development as proposed was supported by evidence of property

ownership, and by evidence that the project had been approved for funding by the

Florida Housing Finance Corporation (FHFC), which perf orms a financial analysis

as a condition of its funding application review. The FHFC acknowledged, in its

July 17, 2020, Order Granting Waiver of Rule 67 - 48.0072(21)(b), that LKCCC Ñ was

selected to receive State Apartment Incentive Loan (SAIL) funding and 9% Housing

Tax Credits under Request for Applications (RFA) 2018 - 115, to assist in the

construction of a workforce housing Development in Monroe County, Florida. Ò That

evidence is sufficient to establish that the Project is financially supported.

James Ca rras was retained by Appellant, Lower Density for Sugarloaf, LLC, to

Ñ conduct the financial feasibility analysis of the Dock Side and Landings projects. Ò

Mr. Carras has extensive experience in consulting and teaching community

economic development, includi ng affordable housing finance. He has been certified

as an economic development finance professional by the National Development

Coun cil . He has taught at Harvard University for the last seven years in the area of

Urban Development and Financing Affordable Housing, and previously taught

similar courses at Tuffs University, University of South Florida, and MIT. His

clients have included public agencies, nonprofit development organizations, and

private developers, and his work for those clients has included p reparing financing

applications, including low - income housing tax credits and other financing

incentives and options. Mr. Carras was asked to model whether the development

proposed by LKCCC, as well as potential alternative developments, wer e financially

f easible. At the P ublic Meeting , Mr. Carras testified that:

the project as proposed in terms of the 88 units, despite

the higher construction costs in 2020 and lower value of

the credits the project is still financially feasible, but also

the project is fi nancially feasible at a lower total number

of units.

Appellants argue that Mr. Carras was Ñ cut off, Ò and that he may have said

something different if given more time. However, his statement was clear, direct,

and, by his own testimony, supported by his mo deling. Thus, it constitutes

competent substantial evidence upon which the Commission was entitled to rely of

L KCCC Ô s financial capacity to complete the development as proposed. The

Commission Ô s decision did not depart from the essential requirements of th e law.

II. Whether the Commission had competent substantial evidence that the P roject

will meet the Ñ local needs Ò requirement of the MCC.

At paragraph 1 of the Resolution Ô s initial findings of fact, the Commission

determined that Ñ [t]he subject property i s located in the Suburban Commercial

( Ó SC Ô ) Land Use ( Ó Zoning Ô ) District[.] Ò

Section 130 - 46, MCC, provides that Ñ [t]he purpose of the [Suburban Commercial]

district is to establish areas for commercial uses designed and intended primarily to

serve the need s of the immediate planning area in which they are located. This

district should be established at locations convenient and accessible to residential

areas to reduce trips on U.S. 1. Ò

Section 130 - 93, MCC, provides, in pertinent part, that:

(c) The followin g uses are permitted as major conditional

uses in the Suburban Commercial district subject to the

standards and procedures set forth in Chapter 110,

Article III:

* * *

(3) Institutional residential uses involving 20 or more

dwelling units or rooms; pro vided that:

a. Access to U.S. 1 is by way of:

1. An existing curb cut;

2. A signalized intersection; or

3. A curb cut that is separated from any other curb cut on

the same side of U.S. 1 by at least 400 feet[.]

* * *

(9) Attached and detached dwelli ngs involving more than

18 units, designated as employee housing as provided for

in section 139 - 1.

At paragraph 2 of the Resolution , the Commission further determined that:

The property owner Ô s development application is

consistent with the provisions and intent of the [MCC],

specifically:

A. With execution of attached conditions, the development

is consistent with the purpose of the Suburban

Commercial ( Ñ SC Ò ) Land Use ( Ñ Zoning Ò ) District, as set

forth in [MCC] Section 130 - 46; and

B. With execution of at tached conditions, the land uses of

the development are permitted within the Suburban

Commercial ( Ñ SC Ò ) Land Use ( Ñ Zoning Ò ) District, as set

forth in [MCC] Section 130 - 93; ...

The proposed development site is in an established SC District. Thus, issues of

whether the SC District was Ñ established at locations convenient and accessible to

residential areas to reduce trips on U.S. 1 Ò were resolved with the adoption of

s ection 130 - 46, MCC, and are not at issue here.

Brad Stein, Monroe County Ô s Plan ning Develo pment Review Manager, testified

that Ñ the proposed conditional use is consistent with the purposes, goals, objectives,

and policies of the comprehensive plan and this land development code, including

the density for affordable housing. Ò The staff report re ferenced by Mr. Stein

provides that Ñ [t]he proposed employee housing dwelling units are an allowed use

with the SC district, and serve the affordable housing needs of Monroe County,

including the Lower Keys area. Ò

The staff report and expert opinion of Mr. Stein constitute competent substantial

evidence of the development Ô s service of the needs of the immediate planning area.

See Weyerhaeuser NR v. City of Gainesville , Case No. 20 - 0581 , FO at 12 (Fla. DOAH

May 5, 2021)(staff analysis and expert opinions of record are competent substantial

evidence supporting a local government Ô s decision); PGSP Neighbors United, Inc. v.

City of St. Petersburg , Case No. 20 - 4083 , FO at 19 (Fla. DOAH Mar. 3, 2021 ; Fla.

DEO Apr. 1, 2021)( Ñ The City Council properly relied upon th e Staff Report in

adopting the Ordinance, which further qualifies as competent, substantial

evidence. Ò ).

Furthermore, as argued by LKCCC, the Monroe County Comprehensive Plan

and the CommuniKeys Plan support that the proposed development meets the

needs o f the immediate planning area. Objective 101.19 of the Monroe County

Comprehensive Plan requires a Ñ balancing of local community needs with all

Monroe County communities. Ò The CommuniKeys Plan includes a direct planning

area that extends from m ile m arker 1 4.2 to m ile m arker 29, and establishes that

Ñ the Lower Keys LCP planning area serves primarily as a bedroom community

supporting more mature and intensely developed employment centers and

commercial areas in Stock Island, Key West, and the Upper Keys. Ò The staff report

notes that the SC district and the proposed Project serves the affordable housing

needs of the Lower Keys planning area as a whole.

There was competent substantial evidence to support the determination that the

immediate planning area to be served by the SC district extended beyond the

discrete confines of Sugarloaf Key. The SC district was created Ñ to establish areas

for commercial uses designed and intended primarily to serve the needs of the

immediate planning area in which they are locate d. Ò In performing its duty of

balancing local community needs, the Commission was obliged to apply and

harmonize the relevant standards applicable to its decision. In that regard:

Rules of statutory construction È apply to municipal

ordinances and city chart ers. ... Appellant argues that

this case implicates the rules of construction that specific

provisions control over general ones and that one

provision should not be read in such a way that it renders

another provision meaningless. Both rules are well -

esta blished. See Murray v. Mariner Health , 994 So. 2d

1051, 1061 (Fla. 2008). Another rule of construction

relevant to this issue is that all provisions on related

subjects be read in pari materia and harmonized so that

each is given effect. Cone v. State, Dep Ô t of Health , 886 So.

2d 1007, 1010 (Fla. 1st DCA 2004).

Katherine Ô s Bay, LLC v. Fagan , 52 So. 3d 19, 28 (Fla. 1st DCA 2010).

Based on the above, the Commission Ô s approval of affordable workforce housing

for persons employed outside of the bounds of Sugar loaf Key was based on its

analysis that the immediate planning area to be served by the SC district included

more mature and intensely developed employment centers and commercial areas.

Its decision was based on competent substantial evidence provided by t he

documentary submissions, the staff reports, and testimony of its staff and experts.

The Commission Ô s decision did not depart from the essential requirements of

the law.

III. Whether the Commission Ô s Public Meeting denied Appellants due process and

was fundamentally unfair.

Appellants object that, at the December 16, 2020 , P ublic M eeting , they were

limited to six minutes for their legal representative, three minutes apiece for

members of the public, including residents and other representatives, Ñ and a little

longer for experts. Ò Meanwhile, Ñ [t]he Planning Commission allows the Ó parties Ô -

the Staff and the Applicant - as much time as they need to present competent

substantial evidence in support of or in opposition to an application and allows time

for rebuttal; the Ó parties Ô are allowed to call and question witnesses and have the

ability to qualify witnesses as experts to bolster their credibility. Ò

Under the MCC, the review criteria are limited and do not include consideration

of whether procedural du e process was afforded by the Commission. See § 102 -

218(b), MCC; see also Osborn v. Monroe Cty. Planning Comm Ô n , Case No. 03 - 4720 ,

FO at 33 - 34 (Fla. DOAH Nov. 1, 2004)( Ñ the review criteria are limited and do not

include consideration of whether procedural due process was afforded by the

Commission Ò ); Handte v. Monroe Cty. Planning Comm Ô n , Case No. 19 - 5649 , FO at 6

(Fla. DOAH Aug. 12, 2020) ( Ñ Unlike the three - tier judicial review of final

administrative actions by a circuit court, procedural or due process violations may

not be considered. ... Therefore, Appellants Ô argument that procedural due process

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

within the scope of this appeal. Ò ).

As set forth herein, the Commission allo wed the public to participate in the

proceeding consistent with its established procedures. It further allowed the

Appellants individually, and their counsel and experts , to appear and to submit

documentary evidence. Thus, the Commission did not depart fro m the essential

requirements of the law in taking its action. 2 Nonetheless, the specific argument

raised by Appellant s that they were denied due process is not within the scope of

this appeal.

IV. Whether the Project complies with the Ñ phasing and aggreg ation Ò requirements

of the MCC for Reserved Outparcels.

Appellants argue that the failure of L KCCC to include two reserved outparcels

as Ñ proposed phases of development, Ò and to include them in the Project traffic

study, violated the Ñ phasing Ò and Ñ aggrega tion Ò provisions of the MCC. L KCCC

argues, on the other hand, that the outparcels are not part of the Project, and were

not submitted to the Commission for review or approval.

2 Appellants Ô argument appear s to have been considered and rejected by the Fifth District Court of

Appeal, which has established that , in quasi - judicial hearings, the parties to the proceeding Ñ must be

able to present evidence, cross - examine witnesses, and be informed of all the facts upon which the

(government agency) acts. Ò Carillon Cmty. Residential v. Seminole Cty. , 45 So. 3d 7, 11 (Fla. 5th

DCA 2010). However, the court was clear that adjoining landowners are not parties, and do not have

due process rights to cross - examine witnesses. Rather, the court established that the right of

participation of adjoining landowners Ñ does not, in any way, recognize a right on behalf of all

neighboring property owners to cross - examine any and all individuals who may speak for or against

the zoning application. To recognize such a right on behalf of all Ó interested persons Ô would create a

cumbersome, unwieldy procedural nightmare for local government bodies. Ò Id.

Section 110 - 70, MCC, provides, in pertinent part, that:

(a) Applications for m ajor conditional uses. An application

for a major conditional use permit shall be submitted to

the Planning Director in a form provided by the Planning

and Environmental Resources Department. The

application shall include:

* * *

(7) A community impact statement, including:

a. General description of proposed development:

1. Provide a general written description of the proposed

development; including any proposed phases of

development, the site size, the number and type of

existing and proposed dwelling units, the amount and

type of existing and proposed nonresidential floor area,

and parking demand and capacities; ...

* * *

e. Impact assessment on public facilities Ð transportation:

1. Provide a projection of the expected vehicle trip

generation; des cribe in terms of external trip generation

and average daily and peak hour traffic;

2. Provide a traffic study, if applicable, as specified in

Section 114 - 200[.]

Section 130 - 165, MCC, entitled Aggregation of Development, provides that:

Any development th at has or is a part of a common plan

or theme of development or use, including, but not limited

to, an overall plan of development, common or shared

amenities, utilities or facilities, shall be aggregated for

the purpose of determining permitted or authori zed

development and compliance with each and every

standard of this Land Development Code (includes

clearing limits) and for the purpose of determining the

appropriate form of development review.

The Application provides that Ñ the project [i.e., the 88 - u nit development] will be

built in one phase, Ò and further provides that the outparcels are not part of the

Project. Other than speculation and argument that failure to consider the

outparcels as part of a phased or aggregated development would lead to an a bsurd

result, there was no competent substantial evidence offered to establish such. There

was no allegation of any overall plan of development or shared amenities, utilities,

or facilities between the Project and the outparcels, save the likelihood that t he

outparcels would have to share an access point(s) onto U.S. 1.

Mr. Peterson, who ha s considerable experience in traffic engineering and

transportation planning in Monroe County, provided testimony, and a traffic impact

study that was included in the A p plication, and discussed at length at the

Commission meeting, which concluded that there is sufficient capacity on U.S. 1 to

accommodate the traffic associated with the Project, and that the study

intersections within the Project study area will operate at an acceptable level of

service. Mr. Peterson further testified that the data and assumptions upon which

the traffic impact study was based, including its trip distribution calculations, were

consistent with Department of Transportation practices, and with the published

Monroe County Traffic Report Guidelines. Furthermore, he testified that the trip

generation calculations for the Project were developed consistently with a trip

generation manual published by the Land Use Institute of Transportation

Engineer s that is widely considered to be the standard for estimating traffic

associated with various land use, and applied the most Ñ robust Ò and trusted data

set. As to the Ñ reserved Ò parcels, Mr. Peterson testified that nothing was planned for

those vacant parce ls, and that, in his opinion, it is not unusual for vacant land to

not be considered in a traffic impact study and analysis. He further noted that when

those parcels are proposed for development, they will be evaluated and be subject to

Commission review i n accordance with the conditions and guidelines required at

that time, a conclusion that was substantiated in the staff report recommended

action. Mr. Peterson provided competent substantial evidence to the Commission of

the Project Ô s compliance with s ecti ons 110 - 70 and 130 - 165 , MCC.

Furthermore, the staff report discussed both the scope of the proposed Project

and the traffic element at length. Staff made no determination that the outparcels,

though depicted on the site plan, should be considered as part o f a phased project, or

aggregated for the purpose of determining permitted or authorized development

and compliance with the MCC, including traffic elements.

The Commission Ô s decision was based on competent substantial evidence

provided by the documentar y submissions, expert testimony, the staff report, and

testimony of its staff. The Commission Ô s decision did not depart from the essential

requirements of the law.

V. Whether the Project complies with, and is consistent with , the CommuniKeys

Plan.

In th eir final point on appeal, Appellants argue that the Project is not consistent

with the CommuniKeys Plan. Their argument relates primarily to density, though

their briefs touch on traffic impacts and community character as well.

As stated by Mr. Stein, th e CommuniKeys Plan is Ñ a balancing of policies and

priorities for the overall planning area to remain a low density primarily residential

community, as well as provide affordable housing in the community. Ò As set forth

herein, the CommuniKeys Plan includes a planning area that extends from m ile

m arker 14.2 to m ile m arker 29. In addition, the CommuniKeys Plan recognizes that

the planning area is tied to and is designed to support the employment centers and

commercial areas in Stock Island, Key West, and the Upper Keys. Monroe County

Comprehensive Plan Policy 1.2.1 directs Monroe County to recognize the FLUM

categories and the land use districts as the primary regulatory tool for evaluating

development proposals. As applied here, the Mixed Use/Commercial FLUM and S C

zoning t o gether allow the development of employee housing with more than 18

units as a major conditional use, without the necessity of text or map amendments,

and without the need for a variance.

Mr. Stein also noted the Project Ô s compliance with C ommuniKeys Plan

objective 4.2, by which Ñ Monroe County shall encourage affordable and work force

housing in areas identified for appropriate for higher intensity commercial mixed

use and residential development, Ò and policy item 4.2.2., by which Ñ Monroe Co unty

will conduct an analysis to identify sites for affordable and workforce housing in

areas identified in the FLUM as residential hyde [sic] and mixed use commercial

land use. Ò

The CommuniKeys Plan identifies properties that are appropriate for medium t o

high - density residential development or commercial development under Monroe

County Ô s Comprehensive Plan, and the Project site is specifically mapped as an area

that is appropriate for medium to high density residential development.

As stated by Ms. Schem per, and detailed in the staff report, the Project density

is in compliance with the general density standards in the CommuniKeys Plan . The

general density standards apply to the entire CommuniKeys Plan community,

which stretch over a number of islands acr oss a number of miles. The Project area is

specifically identified as a medium to high density potential development area, and

is not considered a restricted low - density development area. Ms. Schemper further

testified that the CommuniKeys Plan indicates t hat the Commission should use the

current FLUM when evaluating development proposals. Although the

CommuniKeys Plan includes policies and priorities for the overall planning area to

maintain a low density primarily residential character, that overall commu nity

includes specific areas with varying density requirements, including those for

affordable housing, and including the adjacent Sugarloaf Key neighbor hood, which

is in a residential - medium category.

With regard to traffic and community character, both the record of the Public

Meeting , including the comprehensive traffic study, and the staff report were

replete with evidence of compliance with the traffic and community character

elements of the CommuniKeys Plan. Traffic has been previously discussed. As to

community character, there was ample evidence of restrictions and accommodations

made by L KCCC regarding building height, parking, buffers and expanded

setbacks, architectural design, lighting, fencing and limitations on waterway access,

and other eleme nts designed to accommodate the character of the existing

community. In response to inquiry, Ms. Schemper confirmed that L KCCC Ñ is not

asking for any waivers or variances from our rules and regulations and is in

compliance with the code and all of its requ irements, Ò and that Ñ they have actually

exceeded them in certain cases as well , Ò including those related to parking and

landscaping. Compliance with the traffic and community character elements of the

CommuniKeys Plan was supported with competent substant ial evidence.

Appellants argue that, despite what adjoining landowners will see, the Project

will violate the Ñ compatibility Ò provisions of section 163.3164(9), Florida Statutes,

which is Ñ a condition in which land uses or conditions can coexist in relativ e

proximity to each other in a stable fashion over time such that no use or condition is

unduly negatively impacted directly or indirectly by another use or condition. Ò

Appellants focus that argument on adverse traffic impacts from the proposed

development . The evidence, in the form of the traffic study, staff report, testimony

of Mr. Peterson and staff, and discussion by the Commissioners, all constitute

competent substantial evidence that the Project will not Ñ unduly negatively impact Ò

the existing reside ntial uses of Sugarloaf Key.

Finally, Appellants argue that the Commission approval failed to take into

account whether the Project will serve the Ñ local community, Ò suggesting that the

residents of the proposed workforce housing should be limited to servi ng the needs

of the Lower Sugarloaf Community Center from m ile m arker 16 to m ile m arker 17.

As has been discussed and described herein, the record of the Commission Ôs P ublic

M eeting and the staff report include extensive discussion of the extent and purpos e

of the CommuniKeys Plan planning area. That evidence provides support for the

Commission Ô s determination that the P roject meets the criteria established by the

CommuniKeys P lan, including the local needs elements. 3 The Commission Ô s

decision did not depa rt from the essential requirements of the law.

3 Appellants Ô reliance on Florida Keys Media, LLC v. Monroe County Planning Commission , Case

No. 16 - 0277 (DOAH June 1, 2016) , as support for a definition of the Ñ local community , Ò is misplace d.

Conclusion

It is not the role of the undersigned to determine whether the action taken by

the Commission is the best means to accomplish Monroe County Ô s objectives. As set

forth herein, the Commission applied the correct law, acted in accordance with

competent substantial evidence, and did not depart from the essential requirements

of the law when it adopted the Resolution.

D ECISION

Based on the foregoing, Resolution No. P35 - 20, which approved the issuance of a

major conditional use permit to LKCCC for the proposed development of 88

multifamily deed - restricted affordable employee housing dwelling units at the

intersection of Overseas Highway/U.S. Highway 1 and South Point Drive on

Sugarloaf Key, near approximat e mile marker 16.7, oceanside, is affirmed in all

respects.

D ONE A ND O RDERED this 2 2nd day of July, 2021, in Tallahassee, Leon County,

Florida.

S

E. G ARY E ARLY

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 2 2nd day of July, 2021 .

In that case, the ALJ determined that a 190 - foot - tall communications tower was aesthetically

incompatible with the surrounding residential area. After having described the project (tall tower,

noisy backup generator), and the specific documented evidenc e of the effect of the tower on property

values (evidence that is lacking here), the ALJ concluded that Ñ the proposed tower would be

incompatible with the surrounding residential area. Ò He further determined that the Ñ immediate

vicinity Ò applied not to whe ther the tower would serve the local community, as Appellants assert

here, but whether the tower was compatible with the character of the local community. The evidence

in this case was sufficient to constitute competent substantial evidence that the Projec t, as designed,

will be compatible with the local residential community, aesthetically and otherwise .

C OPIES F URNISHED :

Peter H. Morris, Esquire Andrew M. Tobin, Esquire

Monroe County Attorney Ô s Office Andrew M. Tobin, P.A.

1111 12th Street, Suite 408 Post Office Box 620

Post Office Box 1026 Tavernier, Florida 33070 - 0620

Key West, Flori da 33041 - 1026

Gle nn Thomas Burhans, Esquire

Ilze Aguila, Senior Coordinator Stearns, Weaver, Miller, Weissler,

County of Monroe Alhadeff & Sitterson

Board of County Commissioners Suite 700

Suite 410 106 East College Avenue

2798 Overseas Highway Tallahassee, Florida 32301

Marathon, Florida 33050

N OTICE OF R IGHTS T O J UDICIAL R EVIEW

Pursuant to article VI, section 102 - 218(c), MCC, this Final Order is Ñ the final

administrative action of the county. Ò It is subject to judicial review by common law

petition for writ of certiorari to the circuit court in the appropriate judicial circuit.