88-004429 Department Of Community Affairs vs. Billy Marlar, D/B/A Rainbow Motel Status: Closed Recommended Order on Friday, August 18, 1989.

Summary: Building permit for parking lot denied because const was completed before the time expires to protest and the lot covered more than 50% of the non-tidal acreage.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

APALACHICOLA PLANNING AND )

ZONING COMMISSION AND BILLY )

MARLAR (RAINBOW MOTEL), )

)

Petitioners, )

)

vs. ) CASE NO. 88-4429

)

DEPARTMENT OF COMMUNITY AFFAIRS )

)

Respondent. )

___________________________________)

DEPARTMENT OF COMMUNITY AFFAIRS )

)

Petitioner, )

)

vs. ) CASE NO. 88-4790

)

APALACHICOLA PLANNING AND )

ZONING COMMISSION AND BILLY )

MARLAR (RAINBOW MOTEL), )

)

Respondents. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, these cases were heard in a consolidated hearing on

June 19, 1989 in Apalachicola, Florida, by Stephen F. Dean, assigned Hearing

Officer of the Division of Administrative Hearings. This hearing involves

approval of a building permit issued by the City of Apalachicola affecting land

in the Apalachicola Bay Area of State Concern. Said permit requires approval by

the Florida Land and Water Adjudicatory Commission (FLWAC). In addition, the

Department of Community Affairs (DCA) filed a Notice of Violation against the

development activity which was the subject of the building permit. The notice

of violation asserts that development commenced prior to the expiration of the

45 day period within which the issuance of the permit by the city could have

been challenged and that development was not in compliance with local codes and

ordinances.

APPEARANCES

For Department of Community Affairs:

L. Kathryn Funchess, Esquire

2740 Centerview Drive

Tallahassee, Florida 32399-2100

For Apalachicola Planning and Zoning Commission:

J. Patrick Floyd, Esquire

408 Long Avenue

Post Office Drawer 950

Port St. Joe, Florida 32456

For Billy Marlar, d/b/a Rainbow Hotel:

J. Ben Watkins, Esquire

41 Commerce Street

Apalachicola, Florida 32320

STATEMENT OF THE ISSUES

Whether the construction activity was begun within the 45 day period within

which the issuance of the permit by the city could have been challenged and was

not in compliance with local codes and ordinances.

PRELIMINARY STATEMENT

These petitions were forwarded by the indicated agencies to the Division of

Administrative Hearings to conduct a formal hearing pursuant to Section 120.57,

Florida Statutes. The two cases were consolidated for hearing and a Motion to

Dismiss the consolidated cases was denied. After hearing, the parties filed

proposed findings which were read, considered, and adopted or rejected as

indicated in Annex A. Only one recommended order will be entered in this

matter.

FINDINGS OF FACT

1. The Department of Community Affairs is the state land planning agency

empowered to enforce the provisions of Chapter 380, Florida Statutes, and the

rules promulgated thereunder. (Section 380.031-.032, F.S.).

2. Billy Marlar owns and operates the Rainbow Motel, located at 123 Water

Street, Apalachicola, Florida. (R. 9) Petitioner Marlar is the record title

holder of wharf lots 13 and 14 in the City of Apalachicola according to the map

or plat commonly used. Lots 13 and 14 are held in the name of Rainbow Motel and

Marina.

3. Lots 13 and 14 are located within the Riverfront District, as

identified in the Land Development Code of the City of Apalachicola. (R. 57)

Old plats reflect that the dimensions of wharf lots 13 and 14 are 206.54 feet

wide and approximately 70 feet deep, or 14,250.75 square feet. Over the years,

sand has accreted to the eastern boundary of these wharf lots and for the past

35 years there have been improved structures on the eastern boundary of the

property.

4. Although the Franklin County tax rolls reflect wharf lots 13 and 14 as

being approximately 200 feet wide by 180 feet deep, the Rainbow Hotel is built

on pilings over water or land which is tidal. Inspection of the property

reveals that the water line of the Apalachicola Bay lies approximately at the

western edge of the main portion of the hotel.

5. On May 13, 1988, Billy Marlar applied for a permit to construct a

concrete parking lot on wharf lots 13 and 14 in the City of Apalachicola.

(Rainbow Exhibit 2)

6. On May 16, 1988, the Apalachicola Planning and Zoning Commission

considered Mr. Marlar's application at a special meeting, and granted the permit

application. (Rainbow Exhibit 9).

7. On May 25, 1988, Permit No. 1172 was forwarded to the Department of

Community Affairs for consideration as a development order. (Rainbow Exhibit 2).

8. Prior to the permit being forwarded to DCA, construction of the parking

lot commenced. A portion of the parking lot was poured on May 23, 1988, and the

remainder of the parking lot was completed within 2 - 3 weeks of that date. (R.

50-51, 53).

9. The Land Development Code provides that lot coverage within the

Riverfront District shall contain a minimum of 50 percent pervious surface.

10. The term "pervious surface" means that water will percolate through

that surface that covers the earth. (R. 59).

11. The concrete parking lot constructed by Billy Marlar on wharf lots 13

and 14 is not a pervious surface. (R. 70).

12. The dimensions of the portion of the parking lot on lots 13 and 14 are

78 feet along the northern boundary, 205 feet along the eastern boundary, 78

feet along the southern boundary and 205 along western boundary. There is a

planter in the southwestern corner which has approximately 704 square feet. The

proposed finding submitted by the Department states that the parking lot

contains 12,589.87 square feet, which will be the area used. (DCA Exhibit 1 and

R. 71).

13. The dimensions of the pervious surface of the property are based upon

the area of the non-tidal portion of the two lots. The dimensions of the non-

tidal area of the two lots are determined from resolution of the conflicts in

the testimony and evidence presented and an examination of the property. The

western boundary is 215 feet; northern boundary is 112 feet; eastern boundary is

215 feet; and southern boundary is 122.5 feet. The total non-tidal area of the

two lots based upon these dimensions is 25,208 square feet. (Rainbow Exhibit 3).

14. Although the records of the Franklin County Property Appraiser's

Officer indicated the dimensions of wharf lots 13 and 14 were 200 feet wide by

180 feet deep, a substantial portion of the eastern boundary of that area is

submerged. (Rainbow Exhibit 3 and 5, R. 32). Conflicting evidence was presented

as to the dimensions of the non-tidal property from the street frontage to the

mean high water line. The drawings show a meander line along the mean high

water line; however, observation revealed water under the majority of the hotel,

particularly on the northeast corner. Based upon those observations, the

eastern boundary on non-tidal land is computed as a straight line parallel to

the western edge of the longest portion of the hotel and five (5) feet to the

east of longest portion of the hotel running from southern boundary to the

northern boundary. See pencil additions to Rainbow Exhibit 3 made by fact

finder after observation of the property pursuant to motion.

15. A portion of the Rainbow Motel and the Pot Restaurant extend over the

water. (R. 32 and Rainbow Exhibit 3). A portion of the hotel approximately 21.9

feet by 17.3 feet and 5 feet by 136.32 feet is located on the pervious surface

of lots 13 and 14. Approximately 33% of the restaurant, the dimensions of which

are 47 by 46 feet, is located on the pervious surface of lot 13. The buildings

cover a total of 1,781 square feet. The total impervious surface on lots 14 and

13 is 14,371 square feet. The total non-tidal area of the two lots is 25,209

square feet. The impervious surface must be reduced by 1767 square feet. (R.

76).

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has jurisdiction over the

parties hereto and the subject matter herein, pursuant to Section 120.57(1),

Florida Statutes.

17. The Department of Community Affairs (Department) is the state land

planning agency and is authorized by Section 380.07, Florida Statutes, (1987),

to appeal any development order issued by a local government in any Area of

Critical State Concern (ACSC) to the Florida Land and Water Adjudicatory

Commission (FLWAC).

18. Most of Franklin County, Florida, including the subject property, but

less all federally-owned lands, is designated as the Apalachicola Bay Area of

Critical State Concern, pursuant to Section 380.0555, Florida Statutes, (1987),

and is subject to the requirements of Section 380.0555(8), Florida Statutes

(1987).

19. At all times material to this cause of action, Ordinances Nos. 87-1

and 87-2 of the City of Apalachicola, Florida (Code), were the land development

regulations in effect having been adopted with modifications by the

Administration Commission of the State of Florida in Rule 28-22.201, Florida

Administrative Code, (F.A.C.). The ordinances are required to be administered

by the City pursuant to Section 380.0555(9)(a), Florida Statutes (1987).

20. Building a parking lot in the Riverfront District of Apalachicola,

Florida constitutes "development" as defined in Section 380.04, Florida Statutes

(1987).

21. Section 380.05(16), Florida Statutes (1987), provides: No person shall

undertake development within any area of critical state concern except in

accordance with this Chapter.

22. Marlar and Rainbow commenced this project prior to the expiration of

the 45 days within which to file an appeal of the notice of intent to issue.

Therefore, this is a permit application case and the burden of proof rests upon

Marlar and the Rainbow Motel.

23. Section 28-22.201(8)(d), Florida Administrative Code, identifies the

building restrictions within the Riverfront District and provides that lot

coverage shall contain a minimum of 50 percent pervious surface.

24. Although the testimony showed that the motel and restaurant were

located on unplatted property adjacent to wharf lots 13 and 14, the permit

issued clearly applied to wharf lots 13 and 14, as identified on the official

map of the City of Apalachicola, (DCA Exhibit 4) and as shown in the plat,

Rainbow Exhibit 3. Based upon the testimony and evidence presented and a view

of the property, the dimensions of the non-tidal portions of lots 13 and 14 were

determined to be 25,209 square feet. The area of impervious man-made structures

on the two lots was determined to be 14,371 square feet.

25. The concrete parking lot permitted by Permit No. 1172 does not meet

the minimum 50 percent pervious surface requirement of the Apalachicola Land

Development Code, pursuant to Section 28-22.2018(d), F.A.C., and is not in

compliance with the terms and conditions established for its construction.

26. The development of the concrete parking lot is contrary to the

provisions of the Section 28-22.201(8)(d), F.A.C., and the provisions of Section

380.0555, Florida Statutes.

RECOMMENDATION

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

RECOMMENDED:

That a Final Order be entered requiring Billy Marlar and Rainbow Hotel to

bring the project into compliance within 30 days by removal of 1767 square feet

of impervious surface from the non-tidal portions of lots 13 and 14.

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

August, 1989.

_________________________________

STEPHEN F. DEAN

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 August, 1989.

ANNEX A

Consideration of Proposed Findings of Fact

The proposed findings of the Department of Community Affairs were read and

considered as follows:

Paragraphs 1-10 Adopted.

Paragraph 11 The proposed dimensions are rejected as being contrary to the

best evidence of the dimensions of the non-tidal area of the two lots.

Paragraphs 12 & 13 Adopted.

The proposed findings of Marlar and Rainbow Hotel were read and considered as

follows:

Paragraphs 1 & 2 Adopted.

Paragraph 3 The existence of non-tidal land to a depth of 180 feet is

rejected as contrary to the best evidence.

Paragraph 4 & 5 Substantially adopted.

Paragraphs 6 & 7 Rejected as a finding, although included as portions of

the conclusions of law or statement of case.

Paragraph 8 Some land has accreted; however, that the accretion is all

pervious surface is rejected as contrary to best evidence.

Paragraph 9 The stormwater management plan is irrelevant to how much of the

pervious area of the two lots is covered with impervious structures.

Paragraph 10 The city map is rejected as the best evidence of the area of

the non-tidal area of the two lots.

COPIES FURNISHED:

L. Kathryn Funchess, Esquire

David L. Jordan, Esquire

C. Laurence Keesey, Esquire

Department of Community Affairs

2740 Centerview Drive

Tallahassee, Florida 32399-2100

Thomas G. Pelham, Secretary

Department of Community Affairs

2740 Centerview Drive

Tallahassee, Florida 32399-2100

Deborah Hardin-Wagner, Esquire

Governor's Legal Office

The Capitol, Room 209

Tallahassee, Florida 32399-0001

J. Ben Watkins, Esquire

41 Commerce Street

Apalachicola, Florida 32 320

J. Patrick Floyd, Esquire

408 Long Avenue

Post Office Drawer 950

Port St. Joe, Florida 32456

Honorable Jimmy Nichols

Mayor, City of Apalachicola

Post Office Box 10

Apalachicola, Florida 32320

Apalachicola Planning and Zoning

Commission

Post Office Box 10

Apalachicola, Florida 32320