STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
IN RE: CITY OF KEY WEST )
ORDINANCE NOS. 76-8, 76-12 ) CASE NO. 76-1594
)
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated hearing officer, G. Steven Pfeiffer, held a public hearing in this case on February 21 and 22, 1977 in Key West, Florida.
The following appearances were entered: Louis F. Hubener, Tallahassee, Florida, for the Appellant, Division of State Planning; Jeffrey N. Marks, Miami, Florida, for the Respondent, City of Key West; David Paul Horan, Key West, Florida, for the Respondents Edward A. Strunk III and Marian T. Strunk; and Edward B. Johnson, Jr., Key West, Florida, for the Intervenor, Albert L. Williams, Jr.
On or about April 19, 1976, the City of Key West, Florida ("City" hereafter) adopted its Ordinance No. 76-8. This ordinance had the effect of rezoning certain real property located within the City from the classification "HP-2", an historic preservation district, to "M-1", a light industrial and warehousing district. On or about May 17, 1976, the City adopted its Ordinance No. 76-12. This ordinance granted a variance from zoning regulations pertaining to the same property so as to permit construction to within three feet of the property line. The ordinances were adopted upon the application of the Respondents Edward A. Strunk III, and Marian T. Strunk ("Respondents" hereafter).
On or about September 1, 1976, the Division of State Planning ("DSP" hereafter) filed an appeal of the ordinances to the Florida Land and Water Adjudicatory Commission. In accordance with Section 120.57(1)(b)(3), Florida Statutes (1976 Supp.), the Land and Water Adjudicatory Commission forwarded the petition to the Division of Administrative Hearings for the assignment of a hearing officer and the scheduling of a hearing. The City and the Respondents thereafter filed requests for formal proceeding, and motions in opposition to the DSP petition. A prehearing conference was scheduled, and arguments on the motions were heard. After arguments were presented the Hearing Officer indicated that the motions would be denied, but DSP indicated that it wished to file an amended petition. Accordingly the motions in opposition to the petition were granted by order entered October 19, 1976, and DSP was granted leave to file an amended petition. The amended petition was filed on October 29, 1976.
The City and the Respondents filed answers, affirmative defenses, and motions in opposition to the amended petition. These motions were denied by order entered November 30, 1976. On or about October 18, 1976, Albert L. Williams, Jr. ("Intervenor hereafter) filed a "Motion to Intervene in Appeal as a Materially Affected Party". A "Petition in Intervention" accompanied the motion. The Motion to Intervene was granted through the order entered November 30. The final hearing, originally scheduled to be conducted on January 11 and 12, and continued at the request of the City, was scheduled by notice dated January 5, 1977.
At the final hearing DSP called the following witnesses: Jack F. Matthews, the City Clerk of the City of Key West, Florida; William J. Murtagh, an expert witness in the field of historic preservation; Edward E. McClure, an employee of the Department or Urban and Regional Planning at Florida State University, and an expert witness in the field of zoning; Terrence H. Nolan, an employee of the Florida Department of State, Division of Archives and History, who conducted an historic survey of the City of Key West; J. Rodney Little, the head of the historical preservation section of the Florida Department of State, Division of Archives and History; and Edward A. Strunk III, one of the Respondents. The Intervenor appeared as a witness on his own behalf. The City and the Respondents presented testimony through the cross examination of other witnesses, and called no additional witnesses.
Hearing Officer's Exhibits 1-18, DSP Exhibits 1-21, 23 and 24; Strunk Exhibits 1-13; and Intervenor's Exhibits 1-6, were offered into evidence and were received. The comprehensive zoning plan of the City of Key West was forwarded to the Hearing Officer after the hearing, and in accordance with discussion at the hearing, has been made a part of the record as Hearing Officer's Exhibit 19. DSP Exhibit 22 was identified at the hearing, but was neither offered nor received. The parties have submitted post-hearing proposed findings of fact, conclusions of law, and recommended orders and memoranda of law.
In addition to the other evidence presented in the case, the Hearing Officer accompanied counsel for the parties on an inspection of Ann Street where the rezoned property is located, and of the entire block bounded by Ann Street, Green Street, Simonton Street and Front Street. The findings of fact which follow are based, in part, upon the inspection.
FINDINGS OF FACT
The Respondents are owners of property located on Ann Street between Green and Front Streets in the City of Key West, Florida. The Respondents operate a lumber yard, and building supply business which fronts on Simonton Street, which is one block to the east of Ann Street, and runs parallel to Ann Street. The back of the Respondents' lumber yard adjoins the back of their Ann Street property. Prior to April, 1976, the Respondents' lumber yard was located in a zoning district designated "M-1". The Ann Street property was in a district designated "HP-2". The boundary line separating the districts ran up the middle of the block between Ann Street and Simonton Streets. The Respondents purchased the Ann Street property with full knowledge that it was in the HP-1 zoning district. In 1974, shortly after they purchased it, Respondents began to seek a rezoning of their Ann Street property so that they could use it in connection with their lumber business. This use would not have been permissible in an "HP-2" district. The Respondents originally proposed to construct a large warehouse on the property, but are now proposing to utilize the property solely for outdoor storage of lumber and building supplies. In response to the Respondents' application for zoning change, the City adopted its Ordinance Number 76-8 on or about April 19, 1976. A copy of the ordinance was received in evidence as DSP Exhibit 7. Through this ordinance the City rezoned the Strunk's Ann Street property to "M-1". The Strunks desired to place a wall around the property nearer to the property line than was permissible under the City's zoning regulations. Upon their application the City, on or about May 17, 1976, adopted its Ordinance Number 76-12. This ordinance provided a variance in the City's zoning regulations permitting the Respondents to construct their wall
within three feet of the front property line on Ann Street. A copy of Ordinance 76-12 was received in evidence at the hearing as DSP Exhibit 17.
On or about June 7, 1976, the Key West Old Island Restoration Commission approved the Respondents' plans to construct the wall on the Ann Street property.
A portion of the City of Key West, including all of the property involved in this matter has been designated an historical preservation district. The entire area of the City of Key West is within an area designated as an area of critical state concern. The Old Island Restoration Commission has been established to preserve the integrity of the historical preservation district. The Commission must approve any development within the district.
The Intervenor owns property adjacent to the Respondents' Ann Street property which was rezoned by Ordinance Number 76-8. The Intervenor is using his property as his personal residence. The Intervenor's residence is the sort of structure which the State was seeking to protect by designating the area an historical preservation district. The value of the Intervenor's property will decrease as a result of the zoning change. In addition to intervening in the instant matter, the Intervenor has filed a lawsuit against the City and the Respondents contesting the zoning change. The lawsuit remains pending.
The Respondents have constructed the wall authorized by the Old Island Restoration Commission, and are utilizing their Ann Street property for the open storage of lumber and building supplies.
The portion of Ann Street that lies between Green and Front Streets is not a particularly significant portion of the historical preservation district. Several structures with historical significance due to their age, and due to their architectural and chronological relationship to other structures within the district, front on that block of Ann Street. The Intervenor's residence is such a structure. Other structures on the block include a patio restaurant; a hardware store; several small residential structures which have no historic significance; the headquarters of the "Key West Citizen", a newspaper; and a paint and body shop. Of the structures on the block only the Intervenor's residence bears a significant relationship to the historical preservation district. The restaurant and the hardware store are older structures, but they have been modified to such an extent as not to be readily recognizable as historically significant. Other structures on the block do not reflect the integrity of the historical preservation district. The next block of Ann Street, which lies between Green Street and Caroline Street has several significant historical structures. The old city hall, which has been the subject of a major renovation project, and several large houses known as "conch" houses are located on that block of Ann Street.
The primary significance that the block of Ann Street between Front Street and Green Street has insofar as its relationship with the historical preservation district is concerned is that it is a boundary for the district. It served to buffer and protect the district from intrusions that would not be compatible with the district generally.
The wall constructed by the Respondents, and use of the property for the open storage of lumber and building supplies, are not incompatible with the rest of that block of Ann Street. The wall, and use of the area for open storage of lumber and building supplies would be incompatible with the next block of Ann Street, and with other areas in the historical preservation
district. The Respondents' wall is no less compatible with the historical preservation district than is the newspaper building, the body shop, or the smaller houses. Use of the property for the open storage of lumber and building supplies is no less compatible with the historical preservation district than is the hardware store, which uses its backyard, also fronting on Ann Street, for open storage of hardware materials, or the body shop.
Uses permissible under the City's "M-1" zoning classification are not per se in violation of the spirit of the historical preservation district. The boundaries of the historical preservation district include several zoning districts which are classified "M-1". This includes the Respondents' lumber yard which fronts on Simonton Street. Action taken by the City to rezone the Respondents' property does not have the effect of removing the property from the historical preservation district. The action has merely the effect of changing a zoning classification within the district. While the zoning classification
"M-1" could per se violate the integrity of the historical preservation district if it were done in another portion of the district, it does not violate the spirit of the district in this case due to the proximity to a present M-1 district, and due to other structures that already exist on that block of Ann Street.
Evidence was presented at the hearing from which it could be concluded that any zoning intrusion of a less restrictive sort within the historic preservation district affronts the integrity of the district because of the possibility of further intrusion. This is a valid concern in general terms; however, in the instant case no such real danger is presented. If the Respondents sought to construct a structure on their property facing Ann Street which would not be compatible with the historical preservation district, and specifically with that portion of the district which lies on Ann Street between Green Street and Front Street, they would need an additional development order in the form of a building permit, and approval from the Old Island Restoration Commission. If the permitting procedure failed to adequately protect the integrity of the district, the possibility of an appeal to the Land and Water Adjudicatory Commission would remain.
The change in zoning of the Respondents' Ann Street property will not interfere with the boundary function which the block between Green Street and Front Street serves in relation to the historical preservation district. Ann Street is narrow, and would not be suitable for heavy commercial traffic. The entire street is merely two blocks long. Large trucks could not utilize the street for access to the Respondents' lumber business. It is significant that the Respondents would need to obtain a development order, and approval from the Old Island Restoration Commission before any new construction can be undertaken, and before any structures presently on the property are removed. All of the protective measures presently available to prevent violation of the integrity of the district remain and can be invoked.
There was testimony offered at the hearing to the effect that the Old Island Restoration Commission in considering whether to approve the Respondents' wall was advised that it could only consider whether the wall was appropriate in an M-1" district. There was further testimony that the Commission did not, and thought that it could not consider whether the wall met historic preservation criteria. All such testimony was hearsay. There was no direct testimony to support a finding of fact respecting these matters. If the Commission had been so advised, the advice would have been erroneous.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to this action, and over the subject matter. Section 120.57, Florida Statutes (1976 Supp.)
The area known as the Florida Keys has been designated an area of critical state concern by the Florida Administration Commission in accordance with the provision of Section 380.05 Florida Statutes (1975). Ch. 22F-8, Florida Administrative Code. A portion of the City of Key West has been designated by the Florida Legislature as an historic preservation district. Ch. 69-1187, Laws of Florida (1969).
Chapters 22F-8 (Principles for Guiding Development of the Florida Keys Area of Critical State Concern) and 22F-12 (Regulations for the Florida Keys Area of Critical State Concern), Florida Administrative Code specify criteria to be utilized as guidelines by the City of Key West in formulating development orders. Under the provisions of section 380.07(2), Florida Statutes (1976 Supp.) the Division of State Planning may appeal any development order issued respecting an area of critical state concern to the Florida Land and Water Adjudicatory Commission. City of Key West Ordinances 76-8 and 76-12 are development orders within the meaning of Chapter 380. Section 380.031(2) defines a "development order" as "any order granting, denying, or granting with conditions an application for a development permit." A "development permit" is defined in section 380.031(3) as "any building permit, zoning permit, plat approval, or rezoning, certification, variance, or other action having the effect of permitting development as defined in this chapter." Section 380.04 provides:
"'Development' means the carrying out of any building or mining operation or the making of any material change in the use or ap- pearance of any structure or land and the
dividing of land into three or more parcels."
The ordinances are properly the subject of an appeal to the Florida Land and Water Adjudicatory Commission. The Division of State Planning has the burden of establishing that the development orders are inconsistent with the guidelines and criteria set out in Chapters 22F-8 and 22F-12.
The Intervenor has established that his interests are materially affected by Ordinances 76-8 and 76-12. Leave to intervene was properly granted in accordance with Section 380.07(2) Florida Statutes (1975).
The Division of State Planning and the Intervenor have failed to establish that Ordinances 76-8 and 76-12 violate the requirements of Chapters 22F-8 and 22F-12. It is clear from the evidence that the specific wall constructed by the Respondents would violate the requirements of Chapter 22F- 12(2) if it were located in some other portion of the historical preservation district. Similarly use of the property for the open storage of lumber and building supplies would violate the requirements of the chapters in some other portion of the district. On the particular block of Ann Street between Front Street and Green Street, however, the development orders do not offend the requirements of the rules.
It is possible that the Respondents, or their assigns, might eventually wish to install a structure on the property which would violate the
requirements of the rules. Before such a structure could be completed, however, a building permit would need to be issued, and approval would need to be obtained from the Old Island Restoration Commission. If the local government permitting procedure was inadequate to preserve the district, an appeal could be taken, as has been done in this case, pursuant to section 380.07.
Considerable evidence was offered at the hearing to the effect that Ordinances 76-8 and 76-12 are unwise, were not adopted in accordance with law, or are invalid as constituting "spot zoning". The only questions to be resolved in this administrative proceeding are whether the ordinances comport with the requirements of Chapters 22F-8 and 22F-12, Florida Administrative Code. Other questions respecting the validity of the ordinances must be addressed, if at all, in some other forum.
Respondents have contended that the instant appeal has been improperly pursued because DSP could have intervened in a lawsuit involving the issue of the legal propriety of Ordinances 76-8 and 76-12. This lawsuit is presently pending before the Circuit Court in Monroe County. Respondents have further contended that DSP has improperly plagiarized pleadings from the civil litigation. These contentions are utterly without merit, and are wholly unsupported by the evidence. The instant appeal was properly brought in accordance with the provisions of Section 380.07(2). Although there is a common factual setting for the administrative and judicial actions, the legal issues are entirely distinct. Nothing in this recommended order constitutes a finding or conclusion with respect to the legality of Ordinances 76-8 and 76-12, except in relation to Chapters 22F-8 and 22F-12, Florida Administrative Code.
The appeal of the Division of State Planning should be dismissed and the City of Key West development Ordinances 76-8 and 76-12 should be approved.
RECOMMENDED ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby,
That the appeal filed by the Division of State Planning from the City of Key West Ordinances 76-8 and 76-12 should be dismissed, the relief sought by the Division of State Planning should be denied, and City of Key West Ordinances 76-
8 and 76-12 should be approved.
RECOMMENDED this 24th day of June, 1977, in Tallahassee, Florida.
G. STEVEN PFEIFFER Hearing Officer
Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304
COPIES FURNISHED:
Honorable Reubin O'D. Askew Governor, State of Florida
The Capitol
Tallahassee, Florida 32304
Honorable Bruce A. Smathers Secretary of State
The Capitol
Tallahassee, Florida 32304
Honorable Robert L. Shevin Attorney General
The Capitol
Tallahassee, Florida 32304
Honorable Doyle Conner Commissioner of Agriculture The Capitol
Tallahassee, Florida 32304
Honorable Ralph D. Turlington Commissioner of Education
The Capitol
Tallahassee, Florida 32304
Honorable William Gunter State Treasurer and Insurance Commissioner The Capitol
Tallahassee, Florida 32304
Honorable Gerald Lewis Comptroller
The Capitol
Tallahassee, Florida 32304
Office of the Secretary Department of Administration
530 Carlton Building Tallahassee, Florida 32304
Louis F. Hubener, Esquire Division of State Planning 660 Apalachee Parkway
Tallahassee, Florida 32304
Manuel W. James, Esquire City Attorney
P. O. Box 511
Key West, Florida 33040
David Paul Horan, Esquire
517 Whitehead Street Key West, Florida 33040
Jeffrey N. Marks, Esquire
2020 N. E. 163rd Street, Suite 300 North Miami Beach, Florida 33161
Edward B. Johnson, Jr., Esquire
410 Fleming Street
Key West, Florida 33040
Appendix STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
IN RE: CITY OF KEY WEST )
ORDINANCE NOS. 76-8, 76-12 ) CASE NO. 76-1594
)
APPENDIX TO RECOMMENDED ORDER,
RULINGS IN ACCORDANCE WITH FLORIDA STATUTES SECTION 120.59(2)
The parties have submitted post-hearing legal memoranda including proposed findings of fact, conclusions of law, and recommended orders. Rulings upon proposed findings of fact and a statement of grounds for denying written applications or other requests in connection with this proceeding are set out herein in accordance with Section 120.59(2), Florida Statutes (1976 Supp.).
Proposed findings of fact submitted by the Division of State Planning numbered 1-7 and 9 have been substantially adopted in the findings of fact set out in the Recommended Order. Division of State Planning proposed finding of fact number 8 is supported by the evidence, and has been substantially adopted in the findings of fact set out in the recommended order; however, it should be pointed out that the wall constructed by the Respondents and use of the Respondents' Ann Street property for the outdoor storage of lumber and building supplies is as compatible with the architectural character, scale, and qualities of the historical preservation district as are numerous other of the structures and uses found on the first block of Ann Street. Division of State Planning findings of fact numbered 10, and 12-16 find support in the evidence; however, they involve consideration of matters beyond the scope of Chapter 22F-8 and 22F- 12, Florida Administrative Code. Questions involving the advisability of the ordinances are pertinent to this administrative proceeding only if the questions relate to the criteria set out in 22F-8 and 22F-12. Division of State Planning proposed finding of fact number 11 is rejected.
At the conclusion of his post-hearing memorandum of facts and law, the Intervenor has set out separately numbered paragraphs which could be construed as proposed findings of fact, or as a request in connection with the proceeding. Paragraphs 1 and 2 have been substantially adopted in the findings of fact set out in the Recommended Order. Paragraphs 3, 4, and 5 are rejected.
At the conclusion of its post-hearing memorandum, the City of Key West has set out separately numbered proposed recommendations. These proposed recommendations constitute requests in connection with the proceeding. The proposed recommended order suggested by the City of Key West has been substantially adopted. Paragraphs 1-3 of the proposed recommendations are hereby rejected.
The Respondents, Edward A. Strunk III and Marian T. Strunk, have set out proposed findings of fact in 20 separately numbered paragraphs. A major portion of the Respondents' proposed findings constitute summaries of the testimony, or comments upon the testimony rather than findings of fact. The following rulings upon the proposed findings of fact do not constitute rulings respecting the accuracy of the summaries. Comments respecting the evidence contained in the proposed findings, and legal conclusions contained in the proposed findings have been ignored. Accordingly no rulings respecting proposed findings numbered 3-7 and 9-11 have been made. Respondents' proposed findings numbered 1, 2, 8, 14, 15, and 16 have been substantially adopted in the findings of fact set out in the Recommended Order. Respondents' proposed finding number 12 has been adopted to some extent. There was some evidence offered at the hearing respecting the alleged violation of Chapters 22F-8 and 22F-12, however, the evidence was insufficient to justify disapproval of the ordinances. Paragraphs 17-20 of the Respondents' proposed findings constitute matters which are not relevant to this proceeding. Respondents' proposed finding number 13 has been rejected. At the conclusion of their post-hearing memorandum the Respondents set out 4 separately numbered paragraphs under the heading "Proposed Recommendations". These proposed recommendations could be construed as constituting requests in connection with this proceeding. Each of the proposed recommendations is hereby rejected. The recommended order proposed by the Respondents has been substantially adopted.
ENTERED this 24th day of June, 1977, in Tallahassee, Florida.
G. STEVEN PFEIFFER Hearing Officer
Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
IN RE: CITY OF KEY WEST )
ORDINANCE NOS. 76-8, 76-12 ) CASE NO. 76-1594
)
SUPPLEMENT TO FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDED ORDER
On June 24, 1977, the undersigned Hearing Officer entered a Recommended Order in the above case, and forwarded it to the Florida Land and Water Adjudicatory Commission for final action. The Recommended Order was presented to the Land and Water Adjudicatory Commission at its regular meeting on September 6, 1977. The Commission voted to return the matter to the Hearing Officer for entry of more detailed Findings of Fact and Conclusions of Law. By letter dated September 8, 1977 the Department of Administration, through its Assistant Secretary, informed the undersigned of the Commission's action, and returned the complete record in the case to the office of the Division of Administrative Hearings.
By letters dated September 13, and September 28, 1977 the parties were invited to advise the undersigned as to what further proceedings should be conducted in the case, and as to what further Findings of Fact and Conclusions of Law should be entered. The Appellant, Division of State Planning, and the Respondents Edward A. Strunk III and Marian T. Strunk, and the City of Key West have responded. None of the parties requested the scheduling of a further evidentiary proceeding. This Supplement to the June 24 Recommended Order has accordingly been entered based upon the record made at the hearing conducted on February 21 and 22. Full consideration has been given to statements provided by the parties in response to action taken by the Land and Water Adjudicatory Commission.
This case is an appeal taken by the Division of State Planning from two ordinances adopted by the City of Key West. The ordinances affected a rezoning of property owned by Edward A. Strunk III, and Marian T. Strunk, and granted a variance from zoning regulations pertaining to the property. The property lies within an area of the City of Key West which has been designated by the Florida Legislature as an historic preservation district. The questions raised in the appeal were whether the rezoning of the property, and the variance from zoning regulations were consistent with the guidelines and criteria in the Principles for Guiding Development of the Florida Keys Area of Critical State Concern, Chapter 22F-8, Florida Administrative Code; and the Regulations for the Florida Keys Area of Critical State Concern, Chapter 22F-12, Florida Administrative Code. In the June 24 order the undersigned recommended that the appeal be dismissed, and that the ordinances be approved. The Land and Water Adjudicatory Commission has requested clarification with respect to Paragraphs 8 and 9 of the Findings of Fact set out in the Recommended Order. These paragraphs provide as follows:
"8. Uses permissible under the City's 'M-1 zoning classification are not per se in violation of the spirit of the historical preservation district. The boundaries of the historical preservation district include
several zoning districts which are classified 'M-1'. This includes the Respondents' lumber yard which fronts on Simonton Street. Action taken by the City to rezone the Respondents' property does not have the effect of removing the property from the historical preservation district. The action has merely the effect of changing a zoning classification within the district. While the zoning classifica- tion 'M-1' could per se violate the integrity of the historical preservation district if it were done in another portion of the district,
it does not violate the spirit of the district in this case due to the proximity to a present M-1 district, and due to other structures that already exist on that block of Ann Street.
9. Evidence was presented at the hearing from which it could be concluded that any zoning intrusion of a less restrictive sort within the historical preservation district affronts the integrity of the district because of the possi-
bility of further intrusion. This is a valid concern in general terms; however, in the instant case no such real danger is presented. If the Respondents sought to construct a structure on their property facing Ann Street which would not be compatible with the histo- rical preservation district, and specifically with that portion of the district which lies on Anne Street between Green Street and Front Street, they would need an additional deve- lopment order in the form or a building per- mit, and approval from the Old Island Restoration Commission. If the permitting procedure failed to adequately protect the integrity of the district, the possibility
of an appeal to the Land and Water Adjudi- catory Commission would remain.
The change in zoning of the Respondents' Ann Street property will not interfere with the boundary function which the block between Green Street and Front Street
serves in relation to the historical preser- vation district. Ann Street is narrow, and would not be suitable for heavy commercial traffic. The entire street is merely two blocks long. Large trucks could not utilize the street for access to the Respondents' lumber business. It is significant that
the Respondents would need to obtain a development order, and approval from the Old Island Restoration Commission before any new construction can be undertaken, and before any structures presently on the
property are removed. All of the protective measures presently available to prevent violation of the integrity of the district remain and can be invoked."
The Land and Water Adjudicatory Commission has specifically asked for a clarification as to whether approval from the Key West Old Island Restoration Commission would be required before the property owner put the property to any uses other than open storage of lumber; and whether the undersigned Hearing Officer considered all permissible uses under the M-1 zoning classification, or merely the use proposed by the property owners.
SUPPLEMENTAL FINDINGS OF FACT
1. In formulating Paragraph 8 of the Findings of Fact set out in the June
24 Recommended Order, the undersigned Hearing Officer considered all uses permissible under the City of Key West "M-1" zoning classification to the extent that the evidence would permit such consideration. Uses permitted under the "M- 1" zoning classification are set out at Page 15E of Hearing Officer's Exhibit
It is clear from the evidence that introduction of industrial uses into the historic preservation districts in areas where industrial uses are incompatible with the surroundings would have a deleterious effect upon the district. Intrusion of industrial uses into a non-industrial portion of the district could
have a "domino effect" eventually resulting in a loss of the characteristics of the district which its designation as an historic preservation district was designed to preserve. The crucial question is whether the industrial use is incompatible with that part of the historic preservation district in which it is being introduced. In the instant case the block of Ann Street between Front Street and Green Street is dominated by commercial and light industrial uses. A patio restaurant, a hardware store, several small residential structures with no historic significance, the headquarters of a newspaper, and a paint and body shop are located on the block. One vacant lot is used for open storage of hardware supplies. Use of the subject property for the open storage of lumber does no more to offend the historic preservation district than do uses which already dominate the block.
If the property owners seek to place any new structures on the property, or to remove any existing structures from the property, they will need to obtain approval from the Old Island Restoration Commission. There is a possibility that the property owners could utilize the property for any of the uses permitted under the "M-1" zoning classification without obtaining approval from the Old Island Restoration Commission if they did so without constructing new buildings or removing old buildings. There was no evidence presented at the hearing from which any conclusion can be made respecting what, if any, such uses could be undertaken. None of the permissive uses are, in and of themselves, less compatible with the historic preservation district than uses which already appear on the street. No evidence was presented from which it could be concluded that any uses permissible under the "M-1" classification would, without further construction, be more injurious to historic preservation than the open storage of lumber.
SUPPLEMENTAL CONCLUSIONS OF LAW
The burden of establishing the invalidity of the local development orders rests with the Appellant, Division of State Planning. Absent proof to the contrary it must be assumed that the local development orders are valid. No evidence was offered at the hearing that would support a conclusion that the property owners could put the subject property to a use permissible under the "M-1" zoning classification, which use would be incompatible with that portion of the historic preservation district where the property lies, without the need for additional construction and thus approval from the Old Island Restoration Commission. No evidence was offered at the hearing that would support a conclusion that any of the uses permissible under the "M-1" classification
would, by their mere presence, be incompatible with that portion of the district where the property lies.
SUPPLEMENTAL RECOMMENDED ORDER
Based upon the foregoing Supplemental Findings of Fact and Conclusions of Law, and based upon the Recommended Order entered on June 24, 1977, it is, hereby,
RECOMMENDED:
That the appeal filed by the Division of State Planning from the City of Key West ordinances 76-8 and 76-12 be dismissed, that the relief sought by the Division of State Planning be denied, and that City of Key West ordinances 76-8 and 76-12 be approved.
RECOMMENDED this 1st day of November, 1977, in Tallahassee, Florida.
COPIES FURNISHED:
Honorable Reubin O'D Askew Governor, State of Florida The Capitol
Tallahassee, Florida 32304
Honorable Bruce A. Smathers Secretary of State
The Capitol
Tallahassee, Florida 32304
Honorable Robert L. Shevin Attorney General
The Capitol
Tallahassee, Florida 32304
Honorable Doyle Conner Commissioner of Agriculture The Capitol
Tallahassee, Florida 32304
Honorable Ralph D. Turlington Commissioner of Education
The Capitol
Tallahassee, Florida 32304
Honorable William Gunter State Treasurer and Insurance Commissioner The Capitol
Tallahassee, Florida 32304
Honorable Gerald Lewis Comptroller
The Capitol
Tallahassee, Florida 32304
Office of the Secretary Department of Administration
530 Carlton Building Tallahassee, Florida 32304
Henry Dean, Esquire Division of State Planning
G. STEVEN PFEIFFER Hearing Officer
Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
660 Apalachee Parkway
Tallahassee, Florida 32304
Manuel W. James, Esquire City Attorney
P. O. Box 511
Key West, Florida 33040
David Paul Horan, Esquire
517 Whitehead Street Key West, Florida 33040
Jeffrey N. Marks, Esquire
2020 N. E. 163rd Street, Suite 300 North Miami Beach, Florida 33161
Edward B. Johnson, Jr., Esquire
410 Fleming Street
Key West, Florida 33040
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
FLORIDA LAND AND WATER ADJUDICATORY COMMISSION
IN RE: CITY OF KEY WEST CASE NO. 76-1594 ORDINANCE NOS. 76-8, 76-12 APPEAL NO. 76-9
/
FINAL ORDER
This appeal, brought pursuant to Section 380.07, Florida Statutes, was considered by the Florida Land and Water Adjudicatory Commission, on final hearing after notice, on November 22, 1977.
On September 1, 1976, the Division of State Planning appealed two development orders issued by the City Commission of the City of Key West styled as Ordinance No. 76-8 and Ordinance 76-12, affecting a lot owned by Edward A. Strunk, III and Marion T. Strunk, his wife. Ordinance 76-8 rezoned the lot from HP-2, Historic Preservation District to M-1, light industrial and warehousing.
Ordinance No. 76-12 granted a variance permitting building to within throe feet of the front property line.
The appeal was referred to the Division of Administrative Hearings for formal proceedings. The assigned hearing officer, G. Steven Pfeiffer, conducted a hearing in Key West on February 21 and 22, 1977, and on June 24, 1977, entered his Findings of Fact, Conclusions of Law, and Recommended Order and an Appendix to Recommended Order.
Appearances wore entered by Louis F. Hubener, Tallahassee, Florida, for the Appellant, Division of State Planning; Jeffrey N. Marks, Miami, Florida, for the Respondent, City of Key West; David Paul Horan, Key West, Florida, for the Respondents Edward A. Strunk, III, and Marion T. Strunk; and Edward B. Johnson, Jr., Key West, Florida, for the Intervenor, Albert L. Williams, Jr.
Exceptions to the Recommended Order were filed by the Appellant Division and by the Respondents Strunk. The Recommended Order, recommending that the appeal be dismissed and the ordinances approved, together with the exceptions, were considered by the Commission at its meeting on September 6, 1977.
After discussion, the Commission referred the appeal back to the hearing officer for more specific findings as to whether, in making his determinations, the hearing officer considered all of the uses permissible under the M-1 zoning classification or only those uses which the respondents Strunk were presently making of the property.
On November 1, 1977, the hearing officer submitted his Supplement to Findings of Fact, Conclusions of Law, and Recommended Order stating that he considered all uses permissible under the M-1 zoning to the extent that the evidence would permit such consideration; that introduction of industrial uses into the historic preservation districts in areas where industrial uses are incompatible with the surroundings would have a deleterious effect upon the district and have a "domino effect" there. However, in the instant case, the block of Ann Street on which the Strunk property fronts is dominated by commercial and light industrial uses and that the use of the lot for the open storage of lumber does no more to offend the historic preservation district than do uses which already dominate the block. Further, that no evidence was presented from which it could be concluded that permissible uses not requiring further construction that would have to be approved by the Old Island Restoration Commission would be more injurious to historic preservation than the open storage of lumber. He thereupon repeated his recommendation that the appeal be denied and the ordinances be approved.
At its meeting on November 22, 1977, the appeal was presented to the Commission for final hearing by Mr. Wallace W. Henderson, Assistant Secretary of Administration and the Commission entered the following order:
ORDER
The Florida Land and Water Adjudicatory Commission orders:
That the hearing officer's Findings off Fact, Conclusions of Law and Recommended Order, the Appendix to Recommended Order and the Supplement to Findings of Fact, Conclusions of Law and Recommended Order are adopted as the Order of the Commission.
That exceptions 1 and 4 of Respondents Strunk are granted.
All other exceptions of Respondents Strunk add all exceptions of Appellant Division of State Planning are denied.
Entered in Tallahassee, Florida by the Florida Land and Water Adjudicatory Commission through the Secretary of Administration this 30th day of November, 1977.
Lt. Governor J. H. Williams Secretary of Administration
BY: Wallace W. Henderson Assistant Secretary of
Administration
COPIES FURNISHED:
Members of the Commission Counsel of Record
Hearing Officer
| Issue Date | Proceedings |
|---|---|
| Dec. 01, 1977 | Final Order filed. |
| Jun. 24, 1977 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 30, 1977 | Agency Final Order | |
| Jun. 24, 1977 | Recommended Order | Uphold zoning ordinances as not violative of historical preservation or owner's rights. |
