Judges: STEPHEN F. DEAN
Agency: Department of Community Affairs
Latest Update: Aug. 18, 1989
Summary: 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.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.
88-4429.PDFSTATE 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
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.).
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.
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.
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.
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)
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).
On May 25, 1988, Permit No. 1172 was forwarded to the Department of Community Affairs for consideration as a development order. (Rainbow Exhibit 2).
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).
The Land Development Code provides that lot coverage within the Riverfront District shall contain a minimum of 50 percent pervious surface.
The term "pervious surface" means that water will percolate through that surface that covers the earth. (R. 59).
The concrete parking lot constructed by Billy Marlar on wharf lots 13 and 14 is not a pervious surface. (R. 70).
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).
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).
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.
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
The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter herein, pursuant to Section 120.57(1), Florida Statutes.
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).
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).
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).
Building a parking lot in the Riverfront District of Apalachicola, Florida constitutes "development" as defined in Section 380.04, Florida Statutes (1987).
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.
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.
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.
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.
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.
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
(904) 488-9675
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
Docket for Case No: 88-004429
Orders for Case No: 88-004429
| Issue Date |
Document |
Summary |
|
Nov. 13, 1989 |
Agency Final Order
|
|
|
Aug. 18, 1989 |
Recommended Order
|
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.
|
