88-003450 Department Of Community Affairs vs. Peter Louis Edwards, Wigwam, Inc. Status: Closed Recommended Order on Wednesday, October 18, 1989.

Summary: Disapproval of Monroe County development order allowing proposed hotel and marina for insufficient traffic studies and density exceeding that allowed

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF COMMUNITY AFFAIRS, )

)

Petitioner, )

)

vs. ) CASE NO. 88-3450

)

PETER LOUIS EDWARDS; WIGWAM, INC., )

a Pennsylvania Corporation; and )

MONROE COUNTY, FLORIDA, )

)

Respondents. )

___________________________________)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned

Hearing Officer of the Division of Administrative Hearings, on July 12, 1989, in

Key West, Florida.

APPEARANCES

For Petitioner: David Jordan, Esquire

Department of Community Affairs

2740 Centerview Drive

Tallahassee, Florida 32399

For Respondent Fred Tittle, Esquire

Peter Louis Tittle & Tittle, P. A.

Edwards: Post Office Drawer 535

Tavernier, Florida 33070

Wigwam, Inc.: Fred Tittle, Esquire

Tittle & Tittle, P.A.

Post Office Drawer 535

Tavernier, Florida 33070

William J. Roberts, Esquire

Roberts, Egan and Routa

217 South Adams Street

Post Office Box 1386

Tallahassee, Florida 32302

Monroe County: Did Not Appear

ISSUE

Whether Development Order 13-87 issued by the Monroe County Planning

Commission on January 21, 1988, granting major conditional use approval to a

project known as Residence Inn Resort should be approved.

PRELIMINARY STATEMENT

On April 29, 1988, the Department of Community Affairs filed an appeal with

the Florida Land and Water Adjudicatory Commission, appealing a development

order issued by the Planning Commission of Monroe County, Florida, an area of

critical state concern. The appeal was filed pursuant to Section 380.07,

Florida Statutes. On July 15, 1988, Respondent Wigwam, Inc.'s, predecessor-in-

interest filed a Petition to Determine the Invalidity of a Proposed Rule,

pursuant to Section 120.54, Florida Statutes. The parties agreed to consolidate

the final hearings for the two proceedings, and a Final Order in the proposed

rule challenge proceeding has been issued simultaneously with this Recommended

Order.

The Department of Community Affairs presented the testimony of Rick Hall,

James L. Quinn, Lawrence V. Olney, and Maria D. Abadal. Additionally,

Petitioner's Exhibits numbered 1-15 were admitted in evidence.

Respondent Wigwam, Inc., presented the testimony of Ty Symroski, Charles

Pattison, D. Sullins Stuart, Dan Hoyt, Richard Mercer, and William L. Johnson.

Additionally, Wigwam, Inc.'s, Exhibits numbered 1-9 were admitted in evidence.

Although Respondent Wigwam was granted leave to file a post-hearing deposition

to be taken of a Mr. Petsky, which deposition would then become Respondent

Wigwam's Exhibit numbered 10, no such deposition was filed. Rather, a

deposition of a William Hunt was filed on July 27, 1989. That deposition

involved the presentation of opinion evidence based upon studies conducted after

the final hearing. Although no request was made by the parties to substitute

the deposition of William Hunt for the deposition of Mr. Petsky, and although no

motion was made by Respondent Wigwam to reopen the final hearing to take

additional evidence, and although no motion was made by Respondent Wigwam to

perform studies after the close of evidence on July 12, 1989, Petitioner

Department of Community Affairs has not objected to consideration of the

deposition on any of those grounds or on any other grounds. Accordingly, the

deposition has been marked as Respondent Wigwam, Inc.'s, Exhibit numbered 10 and

has been considered by the undersigned as part of the evidence in this

proceeding. It should be noted that the deposition has not been dispositive of

any of the issues in this proceeding or in the consolidated case, DOAH Case No.

88-3469RGM.

Respondent Monroe County, Florida, chose not to participate in the final

hearing in this cause. However, Monroe County is not dismissed as a party to

this Section 380.07 appeal since it is the local government which issued the

Development Order under appeal.

Petitioner Department of Community Affairs and Respondent Wigwam, Inc.,

submitted post-hearing proposed findings of fact in the form of proposed

recommended orders. A ruling on each proposed finding of fact can be found in

the Appendix to the Recommended Order.

FINDINGS OF FACT

1. Respondent Wigwam, Inc., is the present equitable owner of the subject

parcel of land, is the successor to the development authorizations for a

proposed hotel and marina known as Residence Inn Resort to be constructed on

that parcel, and is the developer of the project. Respondent Peter Louis

Edwards is the legal owner of the subject parcel of land.

2. The subject parcel is a tract of land located at Mile Marker 52.4 on

U.S. 1, on a portion of Government Lot 2, in Section 6, Township 66 South, Range

33 East on Key Vaca, Marathon, Monroe County, Florida.

3. The site plan prepared for Ocean Resort now know as Residence Inn

Resort, Marathon, Florida, by Kris Mihelich, Inc., last revision 9/3/87, pages

SD-1 to SD-6 is the site plan approved by Monroe County for the subject parcel.

4. The subject parcel consists of 4.82 acres of land above water located

between U.S. 1 and the Atlantic Ocean. The subject parcel includes within its

boundaries a dredged harbor at least 8 feet deep below mean sea level at mean

low tide.

5. The current Monroe County Land Use Maps show the land use designation

for the subject parcel as Destination Resort (hereinafter "DR") for the

oceanward three-quarters of the parcel and Suburban Residential (hereinafter

"SR") for the landward one-quarter of the parcel adjacent to U.S. 1.

6. The companion case, Residence Inn Resort v. Department of Community

Affairs, DOAH Case No. 88-3469RGM (Final Order issued simultaneously herewith),

is a challenge to a proposed rule of the Department of Community Affairs

rejecting a portion of a Monroe County ordinance which would change the

designation of the "SR" portion of the parcel to "DR" so that the entire parcel

would be designated "DR." That rule challenge has been dismissed in the Final

Order issued simultaneously with this Recommended Order. Accordingly, the

designations for the subject parcel remain "DR" for the oceanward portion and

"SR" for the landward portion. Even if the rule challenge had been successful

thereby allowing the entire parcel to be designated "DR," the Findings of Fact

and Conclusion of Law contained within this Recommended Order would remain the

same.

7. The Development Order under appeal in this cause, Planning Commission

Resolution No. 13-87, would approve a major conditional use for the subject

parcel. That Development Order would allow construction of a 96-unit hotel

resort and would allow the harbor located within the property to be used as a

marina. The 96-unit density is computed by including 24 transferrable

development rights known as TDRs purchased by Wigwam, Inc., which increase the

density on the subject parcel to 96-units.

8. The maximum permittable density for this parcel designated "DR" in part

and "SR" in part is not sufficient to allow a 96-room hotel. The maximum

permittable density if the entire parcel were designated "DR," or as the parcel

is now designated as partially "DR" and partially "SR," will not allow the

development of 96 permanent dwelling units.

9. Section 3-101.P-4. of the Monroe County Land Development Regulations

provides that "permanent residential unit means a dwelling unit that is designed

for, and capable of, serving as a residence for a full housekeeping unit which

includes a kitchen composed of at least a refrigerator and stove."

10. Section 3-101.T-2 of the Monroe County Land Development Regulations

provides that "temporary residential unit means a dwelling unit used for

transient housing such as a hotel, motel or guestroom that does not contain a

kitchen ...."

11. The 96 hotel rooms approved by Monroe County in the Development Order

under review herein each include a kitchen. If each unit of the proposed

Residence Inn Resort is constructed with a kitchen, as Resolution 13-87 would

allow, each of the 96 units would be a permanent unit.

12. The Institute of Transportation Engineering (hereinafter "ITE") Trip

Generation Manual is a compilation of traffic data that has been accumulated

over a number of years by transportation engineers on many types of land uses.

The data has been categorized by land use and summarized in terms of average

number of trips generated by each individual type of land use. The ITE studies

of trip generation rates are performed by placing a standard traffic counter

with a pneumatic hose at the entrances and exits to the land use in question.

The traffic counter records both hourly and daily summaries of vehicle trips

over the traffic counter. The ITE trip generation rate for hotels and motels is

10.189 daily trips per occupied room. The ITE trip generation rate for hotels

is 8.7 trips per room on a weekday basis. The ITE definition of a hotel for the

purpose of that trip generation rate is a place of lodging, providing sleeping

accommodations, restaurants, a cocktail lounge, meeting and banquet rooms with

convention facilities, and other retail and service shops.

13. The only significant difference between the proposed Residence Inn

Resort and the typical hotel studied in the ITE Trip Generation Manuel is that

the proposed Residence Inn Resort has a marina. All of the other proposed

amenities are typically found in ordinary hotels. The proximity of the proposed

Residence Inn Resort to an airport is also not unusual for hotels. As discussed

hereinafter, the marina, which is the only real distinguishing feature between

hotels and the Residence Inn Resort, does not qualify for approval as part of

this project since it is not in compliance with the Monroe County Land

Development Regulations.

14. A hotel providing 50 or more rooms is permitted as a major conditional

use in a destination resort district only if

the applicant has demonstrated through a

traffic impact study prepared by a qualified

professional that traffic generated by the

use will not exceed 50% of the trips

generated by a hotel or motel as shown in

the Institute of Transportation Engineering

Trip Generation Manual.

Section 9-213.B.1.c., Monroe County Land Development Regulations.

15. Prior to the issuance of the subject Development Order by Monroe

County, Respondent Wigwam, Inc., prepared a transportation study for the

proposed development. That transportation study did not demonstrate, and made

no attempt to demonstrate, that the traffic generated by the proposed Residence

Inn Resort would not exceed 50% of the trips generated by a hotel or motel as

shown in the ITE Trip Generation Manual. On the contrary, the transportation

report submitted to Monroe County simply utilized the same trip generation rates

that appear in the third edition of the ITE Trip Generation Manual.

16. A June 21, 1988, letter directed to Monroe County from Post, Buckley,

Shuh and Jernigan after the Development Order under appeal in this cause had

already issued indicates that Monroe County simply assumed that the proposed

Residence Inn Resort would have a trip generation rate 50% less than the trips

generated by a hotel or motel as shown in the ITE Trip Generation Manual. No

traffic impact studies submitted to Monroe County prior to the issuance of the

Development Order under review in this case support such a conclusion.

17. Respondent Wigwam, Inc., presented the testimony of two experts in the

field of transportation engineering, Dan Hoyt and Richard Mercer. Both Mr. Hoyt

and Mr. Mercer had prepared transportation reports subsequent to the issuance of

the Development Order under review in this cause, which concluded that the

traffic generated by the proposed Residence Inn Resort would not exceed 50% of

the trips generated by a hotel or motel as shown in the ITE Trip Generation

Manual. Both believed that the number and type of amenities included in the

proposed Residence Inn Resort would be so attractive that the hotel guests would

not want to leave the premises. However, Mr. Hoyt's opinion is based upon a

list of amenities significantly larger than the amenities actually approved for

the Residence Inn Resort. A large part of Mr. Mercer's opinion is based on the

assumption that the type of people that will be guests at the proposed Residence

Inn Resort simply will not want to leave the hotel, and not upon any particular

merit to the amenities planned for the hotel. Both experts testified that their

conclusions were based upon their overall professional judgment rather than upon

specific empirical data.

18. The Department presented the testimony of one transportation expert,

Rick Hall. Mr. Hall testified that there are two methods of demonstrating an

"internal trip capture rate" (the retention of guests on-site due to the number

of amenities which guests would normally have to travel to off-site) that is

greater than what is normally expected. The first and best method is to take

empirical measurements of similar types of facilities that are already

constructed. In the case of Residence Inn Resort, an existing hotel or motel

with a marina located in Monroe County would be a similar facility for purposes

of taking traffic generation measurements. No one has performed such an

empirical study for the proposed Residence Inn Resort.

19. The second method of demonstrating a greater internal capture rate is

to move into the theoretical realm, as was attempted by Mr. Hoyt and Mr. Mercer.

However, when the internal capture rate predicted by Mr. Hoyt and Mr. Mercer is

tested with common sense, as was ably done on cross-examination, it is apparent

that the amenities of the proposed Residence Inn hotel are not sufficient to

keep 50% of the average number of trips on-site. For example, 112 trips per day

would have to be assigned to the 5-table barbecue picnic area, 50 trips per day

assigned to the small beach, and numerous trips to the other small amenities.

Messrs. Hoyt and Mercer did not increase the number of trips off-site for

persons to purchase those items necessary to utilize the barbecue/picnic area or

for preparing meals and snacks in the kitchens provided in each unit, did not

consider the fact that the small beach anticipated to keep the guests of the 96-

room hotel on-site would only be approximately 50 feet by 150 feet once

constructed, and considered no data regarding actual use by hotel guests of the

proposed small sports court based upon such usage at similar facilities.

20. A more reasonable internal trip capture rate for the Residence Inn

Resort is 20% of the ITE Trip Generation Manual rate. However, this 20% is

attributed to the marina proposed for the project, which marina is disapproved

in this Recommended Order as set forth below.

21. The dredged harbor within the subject parcel is at least 8 feet deep.

Just oceanward of the project boundary, the undredged ocean bottom shoals to

less than 4 feet at mean low tide. This area is more than 4 feet deep measured

from mean sea level.

22. A marina is permitted as a major conditional use in a destination

resort district provided that "the parcel proposed for development has access to

water of at least 4 feet below mean sea level at mean low tide." Section 9-

213.B.2.a., Monroe County Land Development Regulations. The Land Development

Regulations define the phrase "water of at least 4 feet below mean sea level at

mean low tide" to mean

locations that will not have a significant

adverse impact on off-shore resources of

particular importance. For the purposes of

this definition, off-shore resources of

particular importance shall mean ...

shallow water areas with natural marine

communities with depths at mean low tide of

less than four (4) feet ...

Section 3-101.W-1., Monroe County Land Development Regulations.

23. The shallow water area just oceanward of the project boundary is

comprised of a natural marine community of seagrass beds. The dominant species

is turtle grass, also known as Thallassia.

24. Monroe County Development Order No. 13-87 was rendered to the

Department on April 7, 1988, and no earlier. The Department timely filed the

Notice of Appeal and Petition in this cause.

25. There is no basis for application of the doctrine of equitable

estoppel in this proceeding, requiring the Department of Community Affairs and

the Florida Land and Water Adjudicatory Commission to approve the Development

Order issued by Monroe County which is the subject matter of this proceeding.

CONCLUSIONS OF LAW

26. The Division of Administrative Hearings has jurisdiction over the

subject matter hereof and the parties hereto. Section 120.57(1), Florida

Statutes.

27. In their Prehearing Stipulation the parties hereto stipulated that the

project site is too small to support a density of 96 permanent dwelling units.

The inclusion of a kitchen in each hotel unit makes that unit by definition a

permanent dwelling unit. Although Wigwam, Inc., argues that the units do not

meet the definition of permanent residential unit contained in the Monroe County

Land Development Regulations because Wigwam is not designing the dwelling units

to serve as a residence, Wigwam is designing units that include kitchens

composed of at least a refrigerator and stove. Accordingly, the subject

Development Order, which permits construction of 96-units with kitchens,

violates the Monroe County Land Development Regulations.

28. The Final Order issued simultaneously herewith in the companion rule

challenge (DOAH Case No. 88-3469RGM) upholds the Department's proposed rule

rejecting Monroe County's proposed change to the land use designation of the

subject property. Therefore, the land use designation remains as it was--

partially "DR" and partially "SR." Since the maximum permittable density of the

parcel as presently designated is not sufficient to allow development of 96

permanent or temporary dwelling units, as stipulated by the parties in their

Prehearing Stipulation, the development authorized by Planning Commission

Resolution No. 13-87 is in violation of the Monroe County Land Development

Regulations, and not even a 96-unit hotel without kitchens can be approved.

29. Wigwam, Inc., has also failed to demonstrate that the traffic

generated by the proposed Residence Inn Resort will not exceed 50% of the trips

generated by a hotel or motel as shown in the ITE Trip Generation Manual. The

one study in existence prior to the issuance by Monroe County of the Development

Order under appeal in this proceeding did not attempt to demonstrate a reduction

in traffic but simply utilized the rates given in the ITE Trip Generation

Manual. A letter subsequent to the issuance of the Development Order indicates

that the traffic consultant and some employees of Monroe County assumed that

there would be a reduction without any basis for that reduction being

established or required. The two subsequent studies performed by Wigwam,

Inc.'s, experts are unconvincing. One study relies on a comparison between the

proposed Residence Inn Resort and a hotel located in Miami, Florida, without

establishing the necessary factual basis for invoking such a comparison. Both

studies assume amenities which have not been approved for the Residence Inn

Resort. Both studies are simply based upon the assumption that guests will not

leave the premises. The amenities proposed for the Residence Inn Resort which

have been approved by Monroe County in the Development Order under appeal in

this proceeding are not very different from the amenities offered by typical

hotels as defined in the ITE Trip Generation Manual except for the marina. Both

of Wigwam, Inc.'s, experts based their prediction of trip reductions on all

amenities in the aggregate, and neither of them assigned a particular reduction

to the marina alone. Accordingly, the development authorized by the subject

Development Order is in violation of the Monroe County Land Development

Regulations.

30. The marina at the proposed Residence Inn Resort does not have access

to water of at least 4 feet below mean sea level at mean low tide. The shallow

water area between the marina and open water is covered with a natural marine

community with a depth at mean low tide of less than 4 feet. Although Wigwam,

Inc., performed a study after the conclusion of the final hearing in this cause

and introduced that study as its late-filed Exhibit numbered 10 without

objection from the Department of Community Affairs to show that there could be a

channel between the harbor inside the subject property and open water, that

study fails to demonstrate that there would not be significant adverse impact on

the natural marine community existing oceanward of the property boundary.

Moreover, that study did not exist when this project was approved by the

Development Order under consideration herein and was never considered by Monroe

County. Since the marina does not meet the requirements of the Monroe County

Land Development Regulations, the development authorized by the subject

Development Order is in violation of those Regulations.

31. This appeal of a Development Order issued within an area of critical

state concern was filed with the Florida Land and Water Adjudicatory Commission

within 45 days after rendition. Section 380.07(2), Florida Statutes.

Accordingly, the appeal in this cause was filed in a timely manner.

32. Wigwam, Inc., argues that equitable estoppel should be applied in this

cause, requiring the Department of Community Affairs and the Florida Land and

Water Adjudicatory Commission to approve the development proposed by Wigwam,

Inc., embodied in the Development Order under review. Wigwam reasons that since

it did not know that the Department of Community Affairs and the Administration

Commission had never approved the designation of "DR" for the entire parcel but

had only approved the designation "DR" for the oceanward three-quarters of the

parcel and the designation "SR" for the landward one-quarter of the parcel, and

since it has expended significant sums of money in attempting to obtain approval

for its development which it might not have spent if it had known that the

subject parcel in which it holds a beneficial interest was too small for the

development it would like to build on that parcel, then its development should

be approved. Wigwam's argument is without merit. Wigwam has never received

approval from the Department of Community Affairs and the Administration

Commission for a "DR" designation for its entire parcel, and Wigwam has never

received a final development order for its proposal since Chapter 380, Florida

Statutes, requires approval of a development order issued by Monroe County

before that development order becomes final. The effectiveness of the

Development Order issued below was automatically stayed by operation of law when

the Department of Community Affairs filed this appeal. Section 380.07(2),

Florida Statutes. Wigwam cites no authority for its proposition that it should

be allowed to develop the property in which it has a beneficial interest as it

wishes because it has expended large sums of money attempting to obtain

governmental approval for a project which does not meet the governing

regulations.

RECOMMENDATION

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

Recommended that the Florida Land and Water Adjudicatory Commission issue a

Final Order:

1. Denying the proposed 96-unit Residence Inn Resort and marina as

preliminarily approved by Monroe County in the Development Order appealed

herein;

2. Providing that the proposed hotel without marina may be approved if:

a. None of the hotel rooms contain kitchens;

b. The density is reduced to comply with the current "DR" and "SR"

land use designations; and

c. Wigwam, Inc., is able to demonstrate a 50% reduction in trips from

the motel and hotel rate as shown in the ITE Trip Generation Manual.

3. Providing further that a different project may be approved so long as

it complies with the Monroe County Land Development Regulations.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 18th day of

October, 1989.

_________________________________

LINDA M. RIGOT

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 18th day of October, 1989.

APPENDIX TO RECOMMENDED ORDER

DOAH CASE NO. 88-3450

1. Petitioner's proposed Findings of Fact numbered 1-24 have been adopted

either verbatim or in substance in this Recommended Order.

2. Respondent Wigwam, Inc.'s, proposed Findings of Fact numbered 1-3, 5,

and 7-12 have been adopted either verbatim or in substance in this Recommended

Order.

3. Respondent Wigwam, Inc.'s, proposed Findings of Fact numbered 4 and 6

have been rejected as being subordinate to the issues under consideration

herein.

4. Respondent Wigwam, Inc.'s, proposed Findings of Fact numbered 13 and

21-25 have been rejected as not constituting findings of fact but rather as

constituting statements of a party's position.

5. Respondent Wigwam, Inc.'s, proposed Findings of Fact numbered 14-20 and

26-32 have been rejected as being irrelevant to the issues under consideration

in this cause.

6. Respondent Wigwam, Inc.'s, proposed Finding of Fact numbered 33 which

is 2 1/2 pages long has been rejected primarily because it is contrary to the

weight of the credible evidence in this cause.

7. Respondent Wigwam, Inc.'s, proposed Finding of Fact numbered 34 has

been rejected as not being supported by the weight of the evidence in this

cause.

COPIES FURNISHED:

David Jordan, Esquire

Department of Community Affairs

2740 Centerview Drive

Tallahassee, Florida 32399

William J. Roberts, Esquire

Roberts, Egan and Routa

217 South Adams Street

Post Office Box 1386

Tallahassee, Florida 32302

Fred Tittle, Esquire

Tittle & Tittle, P. A.

Post Office Drawer 535

Tavernier, Florida 33070

Lucien Proby, Esquire

Monroe County Attorney

310 Fleming Street

Key West, Florida 33040

Thomas G. Pelham, Secretary

Department of Community Affairs

2740 Centerview Drive

Tallahassee, Florida 32399

Larry Keesey, General Counsel

Department of Community Affairs

2740 Centerview Drive

Tallahassee, Florida 32399

Patty Woodworth, Director

Land and Water Adjudicatory Commission

Planning and Budgeting

Executive Office of the Governor

The Capitol, PL-05

Tallahassee, Florida 32399-0001