22-001063DRI Department Of Economic Opportunity vs. City Of Marathon, And Boat Works Investment, Llc Status: Closed Recommended Order on Monday, October 17, 2022.

Summary: The Department established the Development Order adopted by the City's Resolution was inconsistent with the City's Comprehensive Plan and Land Development Regulations.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

D EPARTMENT OF E CONOMIC

O PPORTUNITY ,

Petitioner ,

vs. Case No. 22 - 1063DRI

C ITY OF M ARATHON , A ND B OAT W ORKS

I NVESTMENT , LLC ,

Respondents .

/

R ECOMMENDED O RDER

Pursuant to notice, a final hearing was held on July 13 and 14, 2022, in

Marathon, Florida, before Todd P. Resavage, an Administrative Law Judge

(ALJ) with the Division of Administrative Hearings (DOAH).

A PPEARAN CES

For Petitioner , Department of Economic Opportunity :

M ary Linville Atkins, Esquire

Valerie A. Wright, Esquire

Department of Economic Opportunity

Caldwell Building

107 East Madison Street, MSC 110

Tallahassee, Flori da 32399

For Respondent , City of Marathon :

Steven T. Williams, Esquire

City of Marathon

9805 Overseas Highway

Marathon, Florida 33050

For Respondent, Boat Works Investment, LLC:

Barton William Smith, Esquire

Chris topher B. Deem, Esquire

Smith Hawks, PL

138 Simonton Street

Key West, Florida 33040

S TATEMENT OF T HE I SSUE

Whether a development order, adopted by the City of Marathon

(Marathon) Resolution 2021 - 105 (Resolution), is consistent with Mara thonÔs

Comprehensive Plan (Comp. Plan), MarathonÔs Land Development

Regulations (LDRs), and Florida Statutes and rules governing the Florida

Keys Area of Critical State Concern (Florida Keys ACSC).

P RELIMINARY S TATEMENT

On November 9, 2021, MarathonÔs Cou ncil adopted the Resolution, and a

development agreement incorporated therein by and between Marathon and

Boat Works Investments, LLC (Boat Works), which authorizes the

development of property owned by Boat Works and located with in the Florida

Keys ACSC.

On December 6, 2021, Marathon rendered the Resolution, as well as the

development agreement (hereinafter ÑResolutionÒ refers to the Resolution

and development agreement), to the Department of Economic Opportunity

(Department) for review. The Department ti mely appealed the Resolution to

the Florida Land and Water Adjudicatory Commission (FLWAC).

On April 5, 2022, FLWAC forwarded the appeal to DOAH for the

assignment of an ALJ and an administrative proceeding on the matter. The

matter was initially assigne d to ALJ Francine M. F f lolkes. On April 27, 2022,

the matter was transferred to the undersigned for all further proceedings.

Upon obtaining mutually agreeable dates to conduct the final hearing, on

April 28, 2022, the matter was noticed for a final hearing to be conducted on

July 13 through 15, 2022, in Marathon, Florida.

On July 6, 2022, the partiesÔ Joint Pre - hearing Stipulation was filed,

setting forth certain admitted facts. Specifically, paragraph 5 of the

stipulation sets forth facts (a) through (y) as admitted, and which required no

additional proof at hearing. The same are deemed admitted, and where

relevant, are set forth in the Finding s of Fact section below.

The hearing proceeded as scheduled on July 13, 2022, and concluded on

July 14, 2022. A t hearing, the Department presented the testimony of Scott

Rogers, Rebecca Jetton, and Barbara Powell. The DepartmentÔs Exhibits 1,

1A - H, and 2 through 23 were admitted. Respondents jointly presented the

testimony of Amedeo DÔAscanio, George Garrett, and B rian Shea.

RespondentsÔ Exhibits 1 through 11 were admitted.

The Transcript was filed on August 16, 2022, and, therefore, proposed

recommended orders (PROs) were to be filed on or before August 26, 2022. On

August 19, 2022, the Department filed a motion requesting an extension of

time to submit PROs . Said motion was granted and the parties were granted

an extension of time to submit PROs by September 15, 2022. The parties

timely filed PROs , which have been considered in preparing this

Recommended Order.

F INDINGS OF F ACT

The Parties

1 . The Department is the state land planning agency with the power and

duty to exercise general supervision of the administration and enforcement

of t he Florida Environmental Land and Water Management Act of 1972 (the

Act) and all rules and regulations promulgated in accordance with the Act.

§§ 380.031(18), 380.032, and 380.05(6), Fla. Stat . The Department has the

authority and responsibility to review development orders issued in areas of

critical state concern pursuant to sect ions 380.031(18) and 380.032, Florida

Statutes.

2. Marathon is a local government that adopted the resolution at issue

and the local government with jurisdiction over the property that is the

subject of this appeal. Marathon was incorporated in the late 19 90s. Prior to

this time, it was part of unincorporated Monroe County . When Marathon

incorporated by charter, it initially utilized the CountyÔs Comp . Plan and

L DRs . M arathon adopted its own Comp . Plan in 2005 and its own L DRs in

2007 .

3. Boat Works is a F lorida limited liability company doing business in the

City of Marathon, Florida. Boat Works is the developer and owner of the

property that is the subject of the Resolution and was the applicant for

Resolution 2021 - 105, which approves development on the s ubject property.

Florida Keys ACSC and Regulatory Framework

4. The State of Florida has recognized the Florida Keys as a significant

resource for its environmental, natural, and historical characteristics. The

Florida Keys ACSC , designated by chapter 380 a nd Florida Administrative

Code Chapter 28 , was established to ensure a land use management system

was in place to protect the water quality, habitat areas, and character of the

Florida Keys and to provide adequate housing and citizen safety in the

Florida Keys .

5. Marathon is a municipality located within the Florida Keys ACSC . It is

subject to the requirements of p art II of c hapter 163, Fl orida Statutes , and

the relevant parts of p art I of c hapter 380 .

6. Part I of c hapter 380 requires that in a reas of c r itical s tate c oncern,

local governments adopt a comprehensive plan and land development

regulations that are consistent with the Principles of Guiding Development

for that a rea and that those comprehensive plans and land development

regulations be approved by the Department before they become effective .

MarathonÔs Comp. Plan and LDRs have been approved by the Department.

7. Section 380.05(16) provides that no person shall undertake any

development within any a rea of c ritical s tate c oncern except in accorda nce

with c hapter 380 .

8. Section 163.3194 requires that all government actions taken in regard

to development orders must be consistent with its comprehensive plan .

9. All development orders issued by Marathon must be consistent with

MarathonÔs Comp. Pla n.

10. All development orders issued by Marathon must be consistent with

MarathonÔs LDRs.

11. All development orders issued by Marathon must be consistent with

the statutes and rules governing the Florida Keys ACSC .

12. Florida Administrative Code Rule 73C - 44.002 requires Marathon, as a

local government in an area of critical state concern, to render to the

Department, as the State Land Planning Agency, all development orders

having the effect of permitting development as defined in s ection 380.04 .

13. The Department is the state land planning agency with the authority

and responsibility to review development orders issued in areas of critical

state concern and to appeal development orders to FLWAC that are deemed

inconsistent with the requirements of p a rt I of c hapter 380 .

14. An appeal of a development order in an area of critical state concern

by the state land planning agency may include consistency with the local

comprehensive plan.

The Property

15. The subject property is currently owned by Boat Works. It is located in

Marathon and is approximately 4.93 acres, consisting of 4.03 acres of uplands

and .9 acres of adjacent submerged land.

16. The property is located within the Florida Keys ACSC and within the

Mixed Use Commercial and Residential Hig h Future Land Use categories,

pursuant to MarathonÔs Comp . Plan.

17. The property was previously owned by Keys Boat Works. The former

vice president of Keys Boat Works, Sharon Bossert, credibly testified that the

property was used as a full - service boat ya rd and marina. Keys Boat Works

hauled, repaired, and stored vessels and operated as a marina.

18. Ms. Bossert credibly testified that the property included 32 wet slips

that were utilized for liveaboard vessels. 1 She further credibly testified that

the li veaboard slips were leased to liveaboard vessel owners. She lived on

a liveaboard 2 vessel on the property from 1991 through 1998 in a three -

bedroom motor yacht. She estimated that, in the 1990s, the average cost of

the vessels moored at the marina ranged f rom $500,000 to $ 750,000.

19. The Keys Boat Works marina provided its customers with laundry

facilities, bathrooms, showers, toilets, and a pump - out service was available,

on a weekly basis, for the vesselsÔ waste.

20. In 2005, MarathonÔs Marina Siting P lan documented 138 liveaboard

vessels and more than 1200 wet slips in Marathon. At the time, Keys Boat

Works self - reported 32 liveaboard vessels and 32 wet slips on the property.

21. Keys Boat Works operated the property as described above from 1983

throu gh 2006. In 2006, Keys Boat Works sold the property to Boat Works;

1 Section 36 - 80 of the LDRs provides that liveaboard vessels shall have the same meaning as

set forth in c hapter 327 , Florida Statutes . Section 327.02(23) defines Ñlive - aboard vesselÒ as

follows:

(a) A vessel used solely as a residence and not for navigation;

(b) A vessel for which a declaration of domicile has been filed

pursuant to s. 222.17 ; or

(c) A vessel used as a residence that does not have an effective

m eans of propulsion for safe navigation.

A commercial fishing vessel is expressly excluded from the

term Ñlive - aboard vessel.Ò

2 Although the term ÑliveaboardÒ is, at times, referred to as Ñlive - aboard,Ò for consistency it

will be referred to in this Order by the undersigned as Ñliveaboard.Ò

however, it continued to lease the property and operate the marina until

2018.

22. A portion of the wet slips associated with the subject property is

located over State of Florida sovereig n submerged land. Other portions of the

wet slips are located over bay bottom , owned by Boat Works.

23. It is undisputed that there are no liveaboard vessels currently moored

at the property. For all that appears in the record, liveaboards were last

associ ated with the subject property in 2006.

24. A ÑmarinaÒ is defined in MarathonÔs LDRs as follows:

Any recreational facility established for the

purposes of boating, fishing, in - water or dry storage

of boats, food services, transportation, guides, boat

rent als, and other customary accessory uses and

facilities. Overnight accommodations may be

provided only at certain approved marinas.

25. MarathonÔs LDRs further provide that a Ñlive - aboard marinaÒ is a

marina Ñwith one (1) or more live - aboard slips or live - a board mooring

anchors.Ò The subject propertyÔs use has historically met the definition of a

Ñlive - aboard marina.Ò

26. Amedeo DÔ As c anio is the manager of Boat Works and has been so

since 2006. He credibly testified regarding the number of units on the

pro perty since 2006 . When originally purchased, there were three dwelling

units , and 34 wet slips , 32 of which were permitted as liveaboards. Boat

Works then purchased ten apartments and five mobile homes, and

subsequently purchased several more lots which ad ded an additional 14

units.

27. Boat Works Ô final purchase was that of the Gulf Shore Apartments,

which added 20 units. In total, the Boat Works Ô property ultimately consisted

of the rights to build 52 dwelling units. At all times, these rights were

confi rmed by Marathon and the Department.

28. Brian Shea, the current planning director for Marathon, was

presented as an expert in MarathonÔs planning, the interpretation of

MarathonÔs Comp. Plan and LDRs, and the Principles for Guiding

Development for the Fl orida Keys ACSC . Mr. Shea credibly testified that he

reviewed an aerial photograph from 1975 of the property and matched it with

the survey, and then marked up the property as he went through the

application in order to align it with the documentation for the units on site.

In order to determine if a building right existed, Mr. Shea had to verify the

building right prior to 1996. Mr. Shea documented 52 units in the upland.

29. Boat Works sought, and received, the rights to redevelop the p roperty

in 2006 an d 2007. At that time, the p roperty was acknowledged to have 52

dwelling units, and 34 wet boat slips (of which 22 were transient liveaboards,

and ten were permanent liveaboards). The Department did not appeal that

determination of development rights in 200 6. Mr. Shea testified that the

determination of rights is typically done in a development agreement.

30. Thereafter, Boat Works sold approximately two acres of the property,

which included 40 of its 52 dwelling units . As a result, Boat Works was left

wit h the rights to 12 dwelling units. Testimony by all witnesses indicates

that the p roperty has the density to develop 20 . In other words, Boat Works

currently has the rights to 12 on the property, the appropriate approval to

build 20 , regardless , as discuss ed below, of whether a transfer of liveaboard

rights is currently permissible.

The Resolution

31. On November 9, 2021, Marathon adopted Resolution 2021 - 105, which

provides that it is Ñto amend and replace Resolution 2020 - 92 to conform to

the December 8, 20 20, City Council vote regarding approval of a Development

Agreement.Ò

32. The Resolution amended and superseded several previous

development orders issued for the subject property, including the following:

Initial Development Agreement as adopted by Resol utions 2006 - 185, 2016 - 32,

2017 - 46, and 2018 - 64; Resolution 2018 - 88; Resolution 2020 - 92; and

Conditional Use Development Order 2018 - 11.

33. On December 6, 2021, Marathon rendered the Resolution and the

development agreement approved therein to the Departme nt. After

consideration, the Department timely filed its appeal of the Resolution to

FLWAC on January 20, 2022.

34. The Resolution is a development order as defined by sections

380.031(3) and 380.07.

35. The Resolution must be consistent with MarathonÔs Comp. Plan,

LDRs, c hapter 28 - 18, and the p rinciples set forth in section 380.0552.

36. The Resolution and the development agreement approved therein

authorize the development of a maximum of 20 dwelling units, 34 existing

wet boat slips, a clubhouse/commu nity center, swimming pool(s), other

accessory uses, and up to 15,000 square feet of commercial floor area on the

subject property and requires all other development approvals required

under the LDR s .

37. To develop the subject property, the Resolution at tempts to assign

building rights to liveaboard vessels previously associated with the wet slips

on the subject property, which has historically been used as a liveaboard

marina and boat yard. The Resolution allows those ÑrightsÒ to be utilized for

the deve lopment of dwelling units on the uplands portion of the subject

property.

38. Paragraph F of the Development Agreement, entitled ÑVested

Development,Ò sets forth the following residential and non - residential

development as existing and vested on the proper ty, and that said vested

development rights shall not expire: 80,755 square feet of non - residential

(Keys Boat Works); 2,619 square feet of non - residential (store); 12 residential

permanent dwelling units (apartments and mobile homes); and 34 wet slips

(wh ich contained the twenty - two (22) transient units and ten (10) permanent

units per liveaboard vessels).

39. Paragraph G 1 of the Development Agreement, entitled ÑDevelopment

Authorized,Ò provides authorization for the residential and commercial

developmen t of 20 residential dwelling units (market rate); 15,000 square

feet of non - residential/commercial floor area; and 34 wet slips.

40. Paragraph G 1.a. provides as follows:

Declaration Restricting Wet Slips to No

Liveaboards . Owner shall record the Declara tion of

Restriction attached as Exhibit D to this

Development Agreement restricting the use of any

wet slips developed on the propertyÔs privately

owned submerged land or adjacent State of Florida

sovereign submerged lands to No Liveaboards in

perpetuity.

41. In essence, the Resolution seeks to acknowledge liveaboard vessels

previously associated/moored at the wet slips on the property (while used as a

liveaboard marina) as vested residential dwelling units, transferable to the

upland property as a buildin g right in exchange for deed - restricting the wet

slips from being used by liveaboard vessels in the future.

42. Respondents contend that the Resolution proposes redevelopment that

is Ñlike - for - like.Ò Accordingly, Respondents interpret the Resolution as

pr oviding that the 22 transient liveaboard wet slips are transient rights, and

would be limited to redevelopment of transient units upland; however, the

ten permanent liveaboard wet slips permit the redevelopment of permanent

site - build homes (or mobile home s) upland on the property.

43. The DepartmentÔs Petition sets forth several challenges to the

Resolution which are addressed, in turn, below.

Hurricane Evacuation

44. The safe evacuation of persons from the Florida Keys in the event of a

hurricane or nat ural disaster is one of the preeminent and overriding themes

throughout MarathonÔs Comp. Plan and LDRs.

45. At hearing, the DepartmentÔs expert witness, Rebecca Jetton, credibly

testified that p olicies 1 - 2.2.1, 1 - 2.2.2, 1 - 2.2.3, 1 - 3.5.4, 4 - 1.21.2, 4 - 1.21. 3,

4 - 1.21.4, and 4 - 1.21.5 of the City of MarathonÔs Comprehensive Plan are

intended to establish an orderly system of growth management and control

the number of residential dwelling units in order for Marathon to be able to

maintain hurricane evacuation c learance times and provide for a safe and

efficient evacuation.

46. Under these policies, and pursuant to section 380.0552(9), Marathon is

required to implement a staged/phased evacuation for hurricanes to maintain

an overall 24 - hour hurricane evacuation clearance time for the permanent

resident population.

47. Section 380.0552(9)(a) requires the permanent residents of the Florida

Keys to evacuate within 24 - hours in advance of a hurricaneÔs impending

landfall and also requires a hurricane evacuation stud y be conducted and

approved by the state land planning agency.

48. Pursuant to p olicies 1 - 2.2.1 and 4 - 1.21.3 of the Comp . Plan, l iveaboard

residents must evacuate 48 hours in advance of tropical storm winds,

whereas the mandatory evacuation of permanent re sidents is not until 30

hours in advance of tropical storm winds.

49. Objectives 1 - 2.2 and 4 - 1.21 of the Comp . Plan require that Marathon

maintain its hurricane evacuation time as required by the State. The

objectives set forth several policies related to the safe and efficient evacuation

of residents, hurricane preparedness, and last resort measures.

50. In 2011, the Governor and Cabinet directed the Department, pursuant

to c hapter 28 - 18 , to conduct a hurricane evacuation model and determine

how many dev elopment rights could be allocated to the Florida Keys while

still maintaining a 24 - hour hurricane evacuation.

51. The Division of Emergency Management, in conjunction with regional

planning councils and local governments, formed a work program tasked wit h

modeling hurricane evacuation in the Florida Keys. The work group reached

a consensus as to the variables to be considered for modeling hurricane

evacuation and then gathered data to establish the evacuation model.

52. Because there is a single road from the Florida mainland to and from

the Florida Keys, it was necessary to account for the number of vehicles that

would need to evacuate. For this reason, the modeling effort used data as to

the number of hotel rooms, nursing home beds, mobile homes, liveabo ard

vessels, and residential dwelling units to be able to quantify a vehicle count.

53. In developing the evacuation model, the work group included an

estimate, based on data over the prior 20 - year period, as to the percentage of

mobile homes likely to be converted to site - built dwelling units .

54. Data as to the number of wet slips and liveaboards in the Florida Keys

was gathered from multiple sources, including marina inventories and local

government reports. F or data as to the number of wet slips and li veaboards

located within Marathon , the hurricane modeling work group relied on

Marathon Ôs Marina Siting Plan, which contains an inventory undertaken in

2005 that relied on self - reporting by marina owners and operators.

55. Ultimately, a two - phase evacuati on model was established. Under the

two - phase evacuation model, transient residents (tourists) and/or anyone in

vulnerable dwelling units including nursing homes, mobile homes,

liveaboards, and the navy, are required to evacuate in Phase One, or 36 - 48

hour s in advance of a hurricaneÔs predicted landfall. Permanent residents, as

determined by the number of site - built homes, are required to evacuate in

Phase Two, or 24 hours in advance of a hurricaneÔs predicted landfall.

56. In 2012, the Department and loca l governments within the Florida

Keys, including Marathon , entered into a Memorandum of Understanding

agreeing to the two - phase evacuation procedures established by the

Hurricane Evacuation Model.

57. The DepartmentÔs witnesses identified the policies wit hin MarathonÔs

Comp. Plan that implement the two - phased evacuation system as p olicies

1 - 2.2.1, 1 - 2.2.2, 1 - 2.2.3, 1 - 3.5.4, 4 - 1.21.2, 4 - 1.21.3, 4 - 1.21.4, and 4 - 1.21.5 .

58. Policy 1 - 2.2.1.a of the Comp . Plan requires that:

Approximately 48 hours in advanc e of tropical

storm winds, a mandatory evacuation of non -

residents, visitors, recreational vehicles (RVs), live -

a boards (transient and non - transient), and military

personnel from the Keys shall be initiated. State

parks and campgrounds should be closed at this

time and entry into the Florida Keys by non -

residents should be strictly limited.

59. The DepartmentÔs expert witness, Barbara Powell, testified that

converting liveaboard vessels to site - built homes would adversely impact the

hurricane evacuation tim es under the current model because the workgroup

did not consider any data for the conversion of liveaboards or wet - slips to

dwelling units. She further testified that additional, unaccounted for site -

built homes would adversely impact the Florida Keys Ô ab ility to timely

evacuate as required by section 380.0552(9 ) .

60. Respondents argue the Resolution does not impair the Florida KeysÔ

ability to safely evacuate in the event of a hurricane because Marathon

intends to impose deed restrictions to require that the site - built homes on the

subject property evacuate in Phase One .

61. The owner and developer of Boat Works, Amedeo DÔAscanio, testified

that to ensure compliance with hurricane evacuation requirements, he

intended to put deed restrictions in place for dwelling units developed on the

uplands of the subject property that would require the owners/occupants,

even if they are considered to be permanent residents, to evacuate in Phase

One rather than Phase Two .

62. Mr. DÔAscanio also testified that after de veloping 19 dwelling units on

the subject property, Boat Works intends to transfer off - site the remaining

development rights derived from liveaboard vessels and use them to build

elsewhere within Marathon .

63. However, Mr. DÔAscanio acknowledged that the Resolution does not

require Boat Works to execute such deed restrictions and that although Boat

Works has already built and sold some of the parcels on the subject property,

no such deed restrictions have been executed.

64. Although no analysis was comple ted by Marathon to determine what

impact the conversion of liveaboard vessels and/or wet slips would have to the

uplands on U.S. Highway 1, the capacity of sewer systems to accommodate

additional units, or the impact to hurricane evacuation, Respondents ar gue

that the conversion of liveaboard vessels to site - built homes on the uplands of

the subject property will not violate MarathonÔs or the State Ôs hurricane

evacuation requirements.

65. The DepartmentÔs experts , however, similarly did not provide

testimo ny regarding the effect that this Resolution would have on hurricane

evacuation times . The Department did not run any models o r provide any

testimony or facts related to this Property and did not run any models or

provide any updated clearance times relate d to liveaboards .

66. The undersigned further finds noteworthy that, as liveaboard vessels

are primarily used solely as a residence, vehicle parking spaces are required

for liveaboard marina residents. Pursuant to MarathonÔs LDRs, vehicle

parking is expre ssly considered for liveaboard vessels. Specifically, s ection

107.46 of MarathonÔs LDRs provides, in pertinent part, as follows: ÑIn all

zoning districts, unless otherwise provided herein, the minimum parking

shall be provided in accordance with Table 107. 46.1 ÓParking Schedule.ÔÒ The

referenced parking schedule provides that for a liveaboard marina, the

minimum parking spaces required is 1.5 per slip.

67. Additionally, pursuant to section 327.59, marinas may not adopt,

maintain, or enforce policies which require vessels to be removed from

marinas following the issuance of a hurricane watch or warning, in order to

ensure that protecting the lives and safety of vessel owners is placed before

the interests of protecting property.

68. Based upon the foregoing , the Department failed to present sufficient

evidence to support a finding that the Resolution would result in increased

evacuation times, or that it is inconsistent with the safe and efficient

evacuation of residents from hurricanes .

Protect MarathonÔs M arina Community

69 . Objective 4 - 1.12 of the Comp . Plan , entitled ÑProtect MarathonÔs

Marina Community,Ò provides that the objective is to Ñ[p]rotect and enhance

the character, history, economic viability and environmental quality of

MarathonÔs marina commu nity through marina siting and operation criteria.Ò

The Department asserts that the Resolution is inconsistent with p olicy

4 - 1.12.9 of the Comp . Plan , entitled ÑWaterfront Community Character.Ò This

policy provides, in pertinent part, as follows:

The City shall encourage the maintenance of its

waterfront community character, public values and

traditional uses on the waterfront as identified in

the visioning associated with the marina siting

plan formulation process. To accomplish this, the

City shall adopt land development regulations

or other regulations to :

* * *

e. Ensure that changes in uses and services

provided at existing commercial fishing,

industrial and live - aboard marinas do not

occur unless those uses are demonstrably replaced

at anoth er facility.

f. Allow variances to lot, yard and bulk

regulations when the variance can be

demonstratively related to the support of water -

dependent traditional uses , such as public

access (as described in part ÑaÒ of this policy),

commercial fishing, in dustrial marinas and live - a -

board access and facilities , as stipulated in this

policy. (Emphasis added).

70. A plain reading of the above Comp. Plan policy establishes that

Marathon is required to adopt LDRs to ensure that the historical or

traditional us es of liveaboard marinas remain unchanged and moreover that

variances should be permitted to support water - dependent traditional uses

such as liveaboard access and facilities.

71. The Resolution at issue , however, provides for a significant change in

use of a liveaboard marina or liveaboard access and facilities . Indeed, the

Resolution expressly provides that Boat Works shall record a Declaration of

Restriction re stricting the use of any wet slips developed on the propertyÔs

privately - owned submerged land or adjacent State of Florida sovereign

submerged lands to preclude liveaboards i n perpetuity. Accordingly, the

undersigned finds that the Resolution is inconsistent with p olicy 4 - 1.12.9 of

the Comp . Plan .

BPAS & Vested Rights

72. MarathonÔs fundamental st rategy for managing growth is through the

B uilding Permit Allocation System (BPAS), which is set out in p olicy 1 - 3.5.1

of the Comp . Plan and MarathonÔs LDRs . 3 BPAS enables Marathon to

coordinate the rate of future residential dwelling units to protect the quality

of life for residents, enhance and protect natural resources, comply with

adopted level of service standards for public facilities, effectively time public

infrastructure and services, and support safe and timely evacuation prior to a

hurricane.

7 3. Under its BPAS, Marathon caps new residential development at 30

units per year, plus any unused allocations from a previous year. Allocations

are awarded to residents based on a competitive point system designed to

guide development to the least environ mentally sensitive areas. 4 The BPAS

is essential to meeting the statutory requirement that permanent residents of

the Florida Keys be able to evacuate within 24 - hours of a hurricane. 5 The

BPAS applies to the allocation of new dwelling units.

3 Article 1, chapter 107 and §§ 107.01 - 107. 12 , of the LDRs .

4 Fla. Admin. Code Ann. C h. 28 - 18 (2020) and p olicies 1 - 3.5.1 and 1 - 3.5.4 of the Comp . Plan.

5 § 380.0552(2), Fla. Stat.; Fla. Admin. Code Ann. Ch. 28 - 18 (20 20).

74. Regardin g Marathon Ôs Residential BPAS, p olicy 1 - 3.5.1 of the Comp .

Plan states, in part, ÑNo exemptions or increases in the number of allocations

may be allowed, other than that which may be expressly provided for in the

comprehensive plan or for which there is an existing agreement as of

September 27, 2005, for affordable housing between the Department and the

local government in the critical area.Ò

75. Absent obtaining a building right allocation through the BPAS,

property owners were provided the opportunity to establish Ñcommon law

vested rightsÒ at the inception of the Comp. Plan . 6 To obtain common law

vested rights, an application was required to have been submitted to the City

Manager or designee within six months after the effective date of the Comp.

Plan, w hich was July 7, 2005. 7 Section 102.105 - .112 of the LDRs detail the

procedures for making the application and the criteria, hearing, and review

process for seeking a vested rights determination.

76. The Department contends that Marathon did not provide an y

documentation to support whether any vested rights had been determined for

any of the dwelling units proposed to be developed on the subject property.

The Department further contends, and the undersigned finds, that Boat

Works did not seek a vested right s determination with regard to the

liveaboard vessels or wet slips associated with the subject property.

77. Mr. Garret credibly testified, however, that in addition to a vested

rights determination, building rights can be confirmed by a prior

development agreement. Here, Mr. Garret testified that a 2006 development

agreement was not appealed by the Department. At that time, the property

was acknowledged to have 52 dwelling units, and 32 liveaboard slips.

Mr. Shea similarly and credibly testified that the determination of rights

is typically done in a development agreement.

6 P olicies 1 - 3.6.1 through 1 - 3.6.6 of the Comp . Plan.

7 Policies 1 - 3.6.1 and 1 - 3.6.2 of the Comp . Plan and article 19, chapter 102 of the LDRs

78. Mr. Garret credibly testified that Marathon regulates liveaboard

vessels and liveaboard slips. As a permit process, Marathon regulates the

structure, and further regulates the live aboard use. Boat Works argues that

the liveaboard vessels were lawfully established dwelling units, and

therefore, the vested rights determination provisions of the Comp. Plan are

unnecessary to consider when reviewing the Resolution , and that the BPAS is

inapplicable.

79. The undersigned finds that liveaboard slips have been associated, and

for all that appears, permitted, with the subject property since at least 1991,

when Ms. Bossert was residing aboard a liveaboard vessel at the subject

property. The e xistence of the boat slips was affirmed in the 2005 Marathon

Marina Siting Plan, and again in the redevelopment in 2006.

80. In summary, the undersigned finds that the resolution is not

inconsistent with the BPAS in its approval to develop 20 dwelling uni ts on

the property, and the current existence of 12 dwelling units. The undersigned

further finds the evidence supports a finding that Boat Work s possesses the

ÑrightsÒ associated with the use of 32 liveaboard boat slips (22 transient and

10 permanent), re gardless of whether a transfer of these rights to upland

property, as set forth in the Resolution, is currently permissible .

Floating Structures and Liveaboard Vessels

81. The Petition avers that, pursuant to the Comp. Plan, Ñfloating

structuresÒ are expr essly prohibited from transferring any density, intensity ,

or building rights to any upland property. The Department contends that

liveaboard vessels fall within the definition, or is most comparable to, the

definition of a floating structure, and, therefo re, the Resolution approving the

transfer of liveaboard rights to the upland property is inconsistent with the

Comp Plan.

82. Policy 1 - 3.4.4 of the Comp . Plan entitled ÑProtect Established Floating

Structures,Ò provides , in pertinent part , as follows:

A ll floating structures anchored, moored, or

otherwise located within the City on or before May

7, 2004 may remain as a legal nonconforming use

in the City subject to the following conditions and

criteria:

* * *

d. No density or intensity shall be allocated to any

floating structure.

e. No registered floating structure shall be entitled

to transfer any density, intensity or building rights

to any upland property.

83. Section 36 - 80 of the LDRs provides that floating structures shall have

the same meaning as set forth in c hapter 327. Section 327.04(14), defines a

floating structure , as follows:

[A] floating entity, with or without accommodations

built thereon, which is not primarily used as a

means of transportation on water but which serves

purpo ses or provides services typically associated

with a structure or other improvement to real

property. The term includes, but is not limited to,

an entity used as a residence, place of business or

office with public access; a hotel or motel; a

restaurant or lounge; a clubhouse; a meeting

facility; a storage or parking facility; or a mining

platform, dredge, dragline, or similar facility or

entity represented as such. Floating structures

are expressly excluded from the definition of

the term ÑvesselÒ provided in this section .

Incidental movement upon water or resting

partially or entirely on the bottom does not, in and

of itself, preclude an entity from classification as a

floating structure. (Emphasis added).

84. No evidence was presented to support a finding that floating

structures, as defined above, have, at any time, been moored at the subject

property. The Resolution does not seek the approval of floating structures, as

defined above, to transfer any density, intensity , or building rights to the

Boat Work s upland property. Accordingly, the undersigned finds that the

Resolution is not inconsistent with p olicy 1 - 3.4.4 of the Comp . Plan.

Affordable Housing

85. The Petition asserts that Ñ[i]n as much as the Resolution appears to

approve the transfer of a live aboard vessels to the upland without replacing

the liveaboard vessel at another facility, it reduces the affordable housing

available in the City.Ò Accordingly, the Petition asserts that the Resolution is

inconsistent with Comp. Plan g oal 2 - 1, o bjective 2 - 1.1, and p olicies 1 - 3.5.16

and 4 - 1.12.9.

86. Goal 2 - 1 and o bjective 2 - 1.1 of the Comp . Plan are set forth as follows:

GOAL 2 - 1 CONSERVE HOUSING STOCK

To achieve a balanced and affordable range of

housing stock; to encourage the diversification and

distrib ution of the housing stock; to eliminate

substandard structures; and to conserve good

quality housing stock. §163.3177(6)(f). F.S.

Objective 2 - 1.1 Develop a Housing Program

The City shall continue to provide the framework

for a housing program that encour ages the creation

and preservation of affordable housing for all

current and anticipated future residents of the

City. §163.3177(6)(f)3. F.S.

87. Policy 1 - 3.5.16 of Comp . Plan provides, with respect to housing

affordability, as follows:

a. The transfer of density and building rights with

the CityÔs boundaries shall attempt to achieve the

following:

* * *

5. Protect housing affordability and facilitate the

provision of new affordable housing units

throughout the City.

* * *

10. Protec t housing affordability and facilitate the

provision of new affordable housing units

throughout the City.

88. In its PRO, the Department cites p olicy 1 - 1.1.1 of the Comp . Plan for

the proposition that the Resolution reduces MarathonÔs potential amount of

affordable housing. That policy provides, with respect to affordable housing,

as follows:

In order to enhance and preserve the existing

community character, the City shall continue to

maintain Land Development Regulations to reflect

the following desired development patterns that:

* * *

e. Protect, enhance, and increase the number of

affordable housing units.

89. The term Ñaffordable housingÒ is defined in article 3, s ection 110 of the

LDRs as:

Dwelling units which contain less than or equal to

1,800 square feet of habitable space meet all

requirements of the United States Department of

Housing and Urban Development minimum

property standards as to room sizes, fixtures,

landscaping and building materials, when not in

conflict with applicable laws of City; and are

restricted in perpetuity or as allowed by law for a

minimum 50 - year period o f use by households that

meet the requirements of at least one (1) of the

following income categories: Very - low, low, median,

moderate or middle. The requirements for these

income categories are as provided in Chapter 104,

ÑSpecific Use Regulations.Ò

90. The Department presented the expert testimony of Barbara Powell, a

regional planning administrator for the Department. She opined that

liveaboard vessels are ofte n used as Ñde - factoÒ affordable housing. Ms. Powell

did not present any testimony to support a finding that liveaboard vessels (in

general or those specific to the p roperty) meet the definition of affordable

housing. She further opined, however, that the p roposed development on the

Boat Works property would result in an affordable housing loss, as liveaboard

vessels would no longer be permitted in the boat slips. Ms. Powell conceded

that, unlike affordable dwelling units which are restricted with respect to

income and rent, liveaboards do not have such restrictions.

91. Ms. Bossert credibly testified that the average price of the liveaboard

vessels, in the 1990s, previously moored at the subject property ranged from

$500,000 to $750,000.

92. The undersigne d finds that insufficient evidence was presented to

support a finding that a liveaboard vessel satisfies the definition of affordable

housing. Accordingly, the undersigned finds that the Resolution does not

result in the diminution of affordable housing, a s defined, and, therefore, is

not inconsistent with the Comp. Plan or LDRs.

Transfer of Rights

93. It is undisputed that neither the Comp. Plan nor the LDRs expressly

permit the transfer of liveaboards or liveaboard boat slip rights (as either a

building right or development right) to the upland. 8 RespondentsÔ position

was summarized by RespondentsÔ expert, Brian Shea, who testified that if

something is not expressly prohibited in the Comp. Plan or LDRs, he would

interpret it as permissible. Further, if t he Comp. Plan does not expressly

permit, then one looks to the Comp. Plan or LDRs to find a similar use and

apply that criteri on when reviewing a development order. In contrast, one of

the DepartmentÔs experts, Rebecca Jetton, testified that if it is not e xpressly

allowed in the Comp. Plan or LDRs, she would interpret it as prohibited.

8 As noted above, p olicy 4 - 12.9 of the Comp . Plan directs Marathon to adopt LDRs to ensure

changes in uses and services provided at liveaboard marinas do not occur, and further directs

Marathon to adopt LDRs to allow variances to support water - dependent traditional uses

such as liveaboard access and facilities. Thus, in the absence of a Comp. Plan amendment,

an y LDR permitting such a transfer, in the absence of replacement at another facility, would

be inconsistent with the existing Comp. Plan.

94. Pursuant to article 3, s ection 110.00 of the LDRs , a ÑDwelling Unit

(Single - family residence)Ò is defined as:

A single unit providing complete and independent

living fac ilities for one (1) or more persons

including permanent provisions for living, sleeping,

cooking and sanitation. The term is applicable to

both permanent or rental residential development

and living.

95. Pursuant to the same LDR, a ÑResidential Development Ò is defined as

Ñ[a] residence or residential use; market rate dwelling units; campground

spaces; mobile homes; institutional residential use, live - aboard vessels;

employee and commercial workforce housing; and affordable housing.Ò Thus,

a particular livea board vessel may satisfy the definitional criteria for a

dwelling unit (single family residence) and does satisfy the definitional

criteria for a residential development.

96. Respondents, by analogy, presented credible evidence concerning the

ability and common practice (in the absence of express language in the Comp.

Plan or LDR) to transfer building rights between specific transient land -

based dwelling units, such as the redevelopment of recreational vehicle s (RV)

or camping sites into a hotel room and v ice versa, as well as permanent

dwelling unit s , such as mobile homes redeveloped into permanent homes.

97. In response, the Department presented credible evidence that to

conve r t an RV to a hotel room on a property, a demolition building permit is

require d to ensure the pad and pedestal are removed. In contrast, Marathon

does not issue building permits for liveaboard vessels. Similarly, a mobile

home would need to be demolished or removed to transfer the building right

to a different property or to redevel op on the same site. Likewise, to convert a

site - built home to a vacation rental requires a vacation rental license.

98. Pursuant to p olicy 1 - 3.5.16 of the Comp . Plan , the transfer of density

and building rights within MarathonÔs boundaries is permissible . This policy

provides that for both residential density and building rights, the same are

only transferable from a lower category of density to one of equal of higher

density.

99. Pursuant to a table referenced in the policy, the densities for market

rat e, affordable, licensed mobile home or RV park, and hotel/motel/RV spaces

and affordable hous ing , hotels, motels, RVs, and mobile homes are provided.

The table does not provide any density for liveaboard vessels or wet slips. The

table further documents th at the allocated and maximum net densities for

submerged lands shall be 0.

100. Pursuant to p olicy 1 - 3.2.3 of the Comp . Plan , Ñ[s]ubmerged lands, salt

ponds and mangrove forests shall not be assigned density for the purposes of

calculating development rig ht transfers.Ò

101. Article 3 , Transfer of Development Rights, s ection 107.19 of the

LDRs , provides the following introductory sentence: ÑA property owner may

apply to the City for verification and documentation of residential

development rights. All deve lopment rights established in Table 103.15.2

may be transferable in whole or in part from one (1) parcel of land to any

other , subject to the limitations of this Article.Ò

102. Article 2 , Transfer of Building Rights, s ection 107.13 of the LDRs

sets , for t he purpose of this Article , as follows: Ñ[t]he purpose of this Article is

to provide for the transfer of existing lawfully established dwelling units,

transient units, and commercial floor area from their existing locations to

other locations in the City.Ò

103. Section 107.14 of the LDRs authorizes the transfer of building rights

for lawfully established commercial floor area, transient units, and dwelling

units from one site to another site.

104. Section 107.15 A of the LDRs sets forth the Ñsending siteÒ criteria as

follows:

1. The parcel must have a documented building

right.

2. The sending site shall not have any open permits

or active code violations.

3. All bonds, assessments, back city taxes, fees and

liens (other than mortgages) affecting the p arcel

shall be paid in full prior to recordation of the

warranty deed for the transfer of the building

rights.

105. Here, a particular liveaboard vessel may satisfy the criteria for a

dwelling unit. Pursuant to article 3, s ection 110 of the LDRs , a Ñbuild ing

rightÒ is defined as Ñ[a] dwelling unit, transient unit or commercial floor area

that was in lawful existence in accordance with the Comprehensive Plan, as

of May 2, 2007.Ò Thus, a liveaboard vessel that is a dwelling unit may satisfy

the definitional criteria for a building right. Absent from the definition of a

Ñbuilding right,Ò however, is any reference to wet slips. Indeed, Mr. Garrett

credibly testified that ÑitÔs not an absolute that youÔve got that [liveaboard]

building right.Ò

106. Here, the pr oposed sending site is not a particular liveaboard vessel

(of which there are currently none), but rather, the individual wet slips. No

evidence was presented to support a finding that the wet slips, which

constitute an area of the water column, above Boat WorksÔ privately owned

bay bottom or leased sovereign submerged land, and permitted to moor a

liveaboard vessel, constitutes a ÑparcelÒ or a Ñparcel of land.Ò

107. The undersigned finds that the language set forth in s ections 107.13,

107.14, 107.15, and 107.19 of the LDRs is clear and unambiguous. Pursuant

to the plain meaning of the language, the undersigned finds that the transfer

of density and building rights is limited to transfers from one parcel of land

to another.

108. Accordingly, the undersigne d finds that the Resolution is inconsistent

with s ections 107.13, 107.14, 107.15, and 107.19 of the LDRs .

Principles of Guiding Development

109. The Petition alleges that Ñthe ResolutionÔs approval of the transfer of

liveaboard vessels to the Property a re [sic] inconsistent with the Principles of

Guiding Development established by 380.0552(7) as a whole and , specifically,

with paragraphs (a), (f), (g), (l), (m) and (n).Ò The alleged sections are set forth

as follows:

(7) Principles for guiding developme nt . -- State,

regional, and local agencies and units of

government in the Florida Keys Area shall

coordinate their plans and conduct their programs

and regulatory activities consistent with the

principles for guiding development as specified in

chapter 27F - 8 , Florida Administrative Code, as

amended effective August 23, 1984, which is

adopted and incorporated herein by reference. For

the purposes of reviewing the consistency of the

adopted plan, or any amendments to that plan,

with the principles for guiding d evelopment, and

any amendments to the principles, the principles

shall be construed as a whole and specific

provisions may not be construed or applied in

isolation from the other provisions. However, the

principles for guiding development are repealed 18

m onths from July 1, 1986. After repeal, any plan

amendments must be consistent with the following

principles:

(a) Strengthening local government capabilities for

managing land use and development so that local

government is able to achieve these objectives

without continuing the area of critical state concern

designation.

* * *

(f) Enhancing natural scenic resources, promoting

the aesthetic benefits of the natural environment,

and ensuring that development is compatible with

the unique historic char acter of the Florida Keys.

(g) Protecting the historical heritage of the Florida

Keys.

* * *

( l ) Making available adequate affordable housing

for all sectors of the population of the Florida Keys.

(m) Providing adequate alternatives for the

prote ction of public safety and welfare in the event

of a natural or manmade disaster and for a

postdisaster reconstruction plan.

(n) Protecting the public health, safety, and welfare

of the citizens of the Florida Keys and maintaining

the Florida Keys as a un ique Florida resource.

110. Ms. Powell testified that the Ñgoal of the Florida KeysÔ critical area is

to, at some point, become de - designated.Ò She further opined that when there

are inconsistencies in implementing the Comp. Plan, there is a violation of

p rinciple (a).

111. Mr. Garrett testified that, in his opinion, the Resolution was

consistent with principle (a) as Marathon had the capabilities to manage its

land use and development, and the development order did not concern

MarathonÔs ability to manage its land. Mr. Shea testified that, in his opinion,

the Resolution was consistent with principle (a) as the Resolution was done

properly through the land development regulations.

112. With respect to principles (f) and (g), Ms. Powell opined that the

Reso lution was inconsistent because, if the Resolution w ere approved,

Marathon would lose the traditional and historic uses of a marina,

liveaboards, fishing, and recreational boating.

113. Mr. Shea opined that the Resolution was not inconsistent with

princi ple (f) and (g) , as there were no historic structures on the p roperty, and

liveaboards are not part of the heritage of the Florida Keys. Mr. Garrett

provided testimony regarding the removal of vessels from the water and the

potential enhancement to the nat ural environment. He credibl y testified that

liveaboard vessels that remain in the water during a hurricane can damage

the environment. Specifically, he credibly testified that following Hurricane

Wilma, 545 vessels had to be recovered because they had run aground as a

result of the hurricane. Additionally, he credibly testified that a site - built

home has less of an impact on the water quality than a liveaboard vessel.

114. The partiesÔ positions concerning affordable housing, principle (l),

have been prev iously addressed above.

115. The Department contends t hat t he Resolution is inconsistent with

principles (m) and (n) as it relates to hurricane evacuation. The partiesÔ

positions concerning this issue have been previously addressed above.

116. The unders igned finds that the Resolution does not violate the above -

cited and discussed principles. While the undersigned has found that the

Resolution is inconsistent with p olicy 4 - 1.12.9 of the Comp . Plan, the

Resolution does not preclude the mooring of non - livea board vessels, and,

therefore, the undersigned finds that the Resolution is not inconsistent with

principle s (f) and (g). The undersigned finds that the Resolution does not

otherwise violate principles (a) , (l) , and (m).

Procedural Inadequacy

117. Finally , the Petition avers that the Resolution was not adopted in

accordance with s ection 163.225(1) and s ection 102.32 of the LDRs .

118. On November 10 and December 8, 2020, MarathonÔs City Council

held public hearings to consider Resolution 2020 - 92 and its inc orporated

development agreement related to the subject property owned by Boat Works.

119. On December 8, 2020, Marathon adopted Resolution 2020 - 92, and,

thereafter rendered it to the Department.

120. On April 9, 2021, the Department appealed Resolution 2 020 - 92, and

the matter was ultimately referred to DOAH. The matter proceeded to

hearing on November 1, 2021. At that time, Respondents claimed that

Resolution 2020 - 92, as rendered to the Department, did not accurately reflect

the terms and conditions as ad opted by the City Council. The matter was

placed in abeyance.

121. On November 9, 2021, the City Council held another public hearing

and adopted the subject resolution, Resolution 2021 - 105.

122. Resolution 2021 - 105 provides several terms and conditions th at differ

materially from those contained in Resolution 2020 - 92. No further public

hearings were held on Resolution 2021 - 105.

C ONCLUSIONS OF L AW

123. DOAH has jurisdiction over the parties to and subject matter of this

proceeding pursuant to sections 120 .569, 120.57(1), and 380.07(4), Florida

Statutes.

124. Hearings brought pursuant to section 380.07 are de novo . See Young

v. DCA , 625 So. 2d 831 (Fla. 1993). The Department has the burden of proof .

Id. at 835 (Ñ[W]hen the state land planning agency initia tes a proceeding

before the Florida Land and Water Adjudicatory Commission pursuant to

section 380.07, Florida Statutes (1987), that agency carries both the ultimate

burden of persuasion and the burden of going forward.Ò). The standard of

proof to establis h finding s of fact is a preponderance of the evidence.

§ 120.57(1)(j) , Fla. Stat .

125. Challenges by the Department under section 380.07 must allege that

the development order is not consistent with c h apter 380, p art I, or that the

development order is no t consistent with the local comprehensive plan.

§ 380.07(2), (3) , Fla. Stat .

126. The Principles for Guiding Development are contained within

c hapter 380, p art I. LDRs and the Comp. Plan are part of the local

comprehensive plan.

127. A development order i s consistent with the comprehensive plan Ñif

the land uses, densities or intensities, capacity or size, timing, and other

aspects of the development are compatible with and further the objectives,

policies, land uses, and densities and intensities in the c omprehensive plan

and if it meets all other criteria enumerated by the local government.Ò

§ 163.3194(3)(a) , Fla. Stat .

128. The comprehensive plan sets Ñgeneral guidelines and principles

concerning its purposes and contents [È] this shall be construed bro adly to

accomplish its stated purposes and objectives.Ò § 163.3194(4)(a), Fla. Stat .

129. The Principles for Guiding Development Ñmay not be construed or

applied in isolation,Ò but must be Ñconstrued as a whole.Ò £ 380.0552(7) ,

Fla. Stat .

130. Determinin g whether a proposed development order is consistent

with the comprehensive plan is subject to strict scrutiny review. Pinecrest

Lakes, Inc. v. Shidel , 795 So. 2d 191 (Fla. 4th DCA 2001). Strict scrutiny in

this context refers to the duty to Ñinsure that t he local government s comply

with the duty imposed by section 163.3194 to make decisions consistent with

the Comprehensive Plan.Ò Id . at 202 .

131. Section 163.3225, entitled ÑPublic hearings,Ò provides , as follows:

1) Before entering into, amending, or revo king a

development agreement, a local government shall

conduct at least two public hearings. At the option

of the governing body, one of the public hearings

may be held by the local planning agency.

(2)(a) Notice of intent to consider a development

agreem ent shall be advertised approximately 7

days before each public hearing in a newspaper of

general circulation and readership in the county

where the local government is located. Notice of

intent to consider a development agreement shall

also be mailed to a ll affected property owners

before the first public hearing. The day, time, and

place at which the second public hearing will be

held shall be announced at the first public hearing.

(b) The notice shall specify the location of the land

subject to the deve lopment agreement, the

development uses proposed on the property, the

proposed population densities, and the proposed

building intensities and height and shall specify a

place where a copy of the proposed agreement can

be obtained.

132. Article 8 , Developm ent Agreement, s ection 102.32 , Procedure for

Consideration and Approval, of the LDR s, similarly provides , in pertinent

part:

A. The Council may enter into a development

agreement with any person having a legal or

equitable interest in real property located within

the City by approval of a resolution, according to

the following procedures:

1. The development agreement shall be reviewed by

the PC and considered at two (2) public hearings of

the Council. The day, time and place of the second

Council hearing o n the development agreement

shall be announced at the first hearing, and it shall

be held at least seven (7) days after the first

hearing.

2. The Council shall vote whether to approve the

resolution approving the development agreement at

the second publi c hearing or thereafter.

3. Notice of each public hearing shall be given in

accordance with Fla. Stat. § 163.3225(2) and

Article 4 ÑNotice of Public Meetings and HearingsÒ

of this chapter.

133. The Department has met its burden of proof in establishing t hat the

Resolution and incorporated development order is inconsistent with the

Comp. Plan and MarathonÔs LDRs as set forth in the Findings of Fact above.

134. The Department has met its burden of proof in establishing that the

Resolution was not considere d at two public hearings, as required by s ection

163.3225 and s ection 102.32 of the LDRs .

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the Florida Land and Water Adjudicatory Commission

enter a fin al order denying the request of Boat Works and the City of

Marathon to approve the transfer of 32 wet slips permitted for liveaboard

vessels for development of dwelling units on the uplands of the subject

property.

D ONE A ND E NTERED this 17th day of Octob er , 2022 , in Tallahassee, Leon

County, Florida.

S

T ODD P. R ESAVAGE

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 17th day of October , 2022 .

C OPIES F URNISHED :

Barbara R. Leighty, Agency Clerk Mark A. Buckles, Esquire

(eServed) (eServed)

Joshua Elliott Pratt, Esquire Chris Spencer, Secretary

(eServed) ( eServed )

Valerie A. Wright, Esquire Dane Eagle, Executive Director

(eServed) (eServed)

Karen Gates, General Counsel Barton William Smith, Esquire

(eServed) (eServed)

Steven T. Williams, Esquire Christopher B. Deem, Esquire

(eServed) (eS erved)

Lucas S. Lanasa, Esquire Leslie E. Bryson, Esquire

(eServed) (eServed)

Mary Linville Atkins, Esquire

(eServed)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have the right to submit written exceptions within 15 days from

the date of this Recommended Order. Any exceptions to this Recommended

Order should be filed wit h the agency that will issue the Final Order in this

case.