STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF COMMUNITY AFFAIRS, )

)

Petitioner, )

)

vs. ) CASE NO. 91-3472DRI

) GEORGE H. SANDS and JUDY S. SANDS, ) Owners, PG CONSTRUCTION, INC., )

General Contractor, and )

MONROE COUNTY, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on February 19, 1992, in Homestead, Florida.

APPEARANCES

For Petitioner, Katherine Castor Department of Assistant General Counsel

Community Affairs: Department of Community Affairs

2740 Centerview Drive

Tallahassee, Florida 32399-2100

For Respondents, Franklin D. Greenman, Esquire George and Judy 5800 Overseas Highway Number 40 Sands: Marathon, Florida 33050

For Respondent, PG

Construction, Inc.: No appearance

For Respondent,

Monroe County: No appearance

STATEMENT OF THE ISSUES

At issue in this proceeding is whether a certain development order (permit) issued by Monroe County to George and Judy Sands, as owners, and PG Construction, Inc., as contractor, for the construction of a single family dwelling unit is consistent with the Monroe County comprehensive plan and land development regulations.

PRELIMINARY STATEMENT

This is an appeal, pursuant to Section 380.07, Florida Statutes, to the Florida Land and Water Adjudicatory Commission from a development order (permit) of Monroe County which granted the application of respondents, George and Judy

Sands (Sands), as owners, and respondent, PG Construction, Inc., as contractor, to construct a single family dwelling unit on the Sands' property. On appeal, petitioner, Department of Community Affairs (Department), contended that the subject permit was inconsistent with the Monroe County comprehensive plan and land development regulations since it would authorize the replacement of a nonconforming structure or use contrary to the maximum net density standards applicable to residential development in a sparsely settled land use district.

At hearing, George and Judy Sands testified on their own behalf, and offered the expert testimony of Donna M. Bosold, a Monroe County planner; Arthur Stephenson, a Monroe County assistant building official; Lorenzo Aghemo, the Monroe County Director of Planning; Bill Anderson, a Monroe County deputy property appraiser; and David de Haas-Grosseck, a design consultant. Sands' (respondents') exhibits 1-12 and 14 were received into evidence. 1/ The Department called Kenneth Metcalf, accepted as an expert in comprehensive planning, as a witness, and Department's (petitioner's) exhibits 1 and 4-14 were received into evidence.

The transcript of the hearing was not ordered, and the parties were granted leave, at their request, until March 16, 1992, to file proposed findings of fact. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the conclusion of the hearing. Rule 22I- 6.031, Florida Administrative Code. The parties' proposed findings of fact are addressed in the appendix to this recommended order.

FINDINGS OF FACT

The parties

1. Respondents, George and Judy Sands (Sands), are the owners of Lot 15, Tropical Coral Reef Estates, Plantation Key, Monroe County, Florida; a property located within that part of Monroe County designated as an area of critical state concern, and upon which they have received a development order (permit) from Monroe County to construct a single family dwelling unit. Respondent, PG Construction, Inc., is the contractor that applied for the permit on behalf of the Sands.

   
   

2. Respondent, Monroe County (Monroe County), is a local government within the Florida Keys Area of Critical State Concern designated by Section 380.0552, Florida Statutes, and is responsible for the implementation of, and the issuance of development orders that are consistent with, the Monroe County comprehensive plan and land development regulations, as approved and adopted in Chapters 9J-14 and 28-20, Florida Administrative Code.

   
   

3. Petitioner, Department of Community Affairs (Department), is the state land planning agency charged with the responsibility of administering and enforcing the provisions of Chapter 380, Florida Statutes, and all rules promulgated there-under. Sections 380.031(18) and 380.032(1), Florida Statutes. Here, the Department has filed a timely appeal to the issuance of the subject permit, and contends that construction of the dwelling unit is inconsistent with the Monroe County comprehensive plan and land development regulations since it would exceed allowable density limitations.

   
   

   Background

   
   

4. The subject property is approximately .45 acres, and was purchased by the Sands in January 1990. At the time of purchase, the property supported a

   concrete block residence, two bedrooms and one bath, of approximately 900 square feet and a wood-frame residence, two bedrooms and one bath, of approximately 625 square feet. Both buildings were constructed in 1948 and were, pertinent to this case, used by the Sands' predecessor in title as a principal residence prior to and as of the effective date of the Monroe County land development regulations (September 15, 1986).

   
   

5. Following their acquisition of the property, the Sands undertook to upgrade both structures with the intention of offering use of the residences to employees of their business, which was located across the street from the property. 2/ Ultimately, however, the Sands decided to replace, rather than remodel, the wood-frame residence, and employed David de Haas-Grosseck (de Haas), a consultant and designer of residential properties, who was of the opinion that such replacement was permissible under the provisions of Section 9.5-268, Monroe County land development regulations (MCLDR), discussed infra, to attend the necessary details. 3/

   
   

6. On February 5, 1991, de Haas, on behalf of the Sands, filed an application with Monroe County for a building permit to construct a modular single family residence upon the property. Thereafter, the County advised de Haas that since the wood-frame structure was to be removed a demolition permit would also be required. Accordingly, on February 11, 1991, de Haas applied for a demolition permit to remove such structure.

   
   

7. The demolition permit (permit number 9130002904) was issued by the County on February 11, 1991, and rendered to the Department on February 13, 1991. The building permit (permit number 9130002861) was issued by the County on February 25, 1991, and rendered to the Department on February 27, 1991.

   Under existing law, such permits were not effective until expiration of the time within which the Department was authorized to appeal their issuance, to-wit: 45 days after they were rendered to the Department.

   
   

8. The Sands, having been expressly so advised by de Haas, were acutely aware of the limitations on their building permit. Consequently, the Sands requested a waiver of the Department's appeal period. By letter of March 21, 1991, the Department denied such request and stated:

   
   

   Dear Mr. Sands:

   
   

   Monroe County issued you permit number 913-2861 on February 25, 1991. The DCA received the permit on February 27, 1991. Therefore, the Department's 45-day appeal period expires on April 13, 1991.

   
   

   Subsequent to the issuance of the permit by

   the County, you requested a waiver of the DCA's appeal period. At this time, the Department declines to issue you the waiver. Changes or additional information may be needed to meet County Code requirements. Our concerns include that the proposed development exceeds the allowable density in a SS zoning district.

   
   

   DCA staff will continue to review your plans and the permit, which may warrant

   action by the Department . . . .

9. Notwithstanding the Sands' express knowledge that their building permit was not effective, as well as express advice from the Department that it had concerns regarding the propriety of such development, the Sands, following the expiration of the Department's appeal period on their demolition permit, demolished the wood-frame structure on or about April 4, 1991. Thereafter, by petition filed with the Florida Land and Water Adjudicatory Commission on April 12, 1991, the Department timely challenged the propriety of Monroe County's decision to issue the building permit. 4/

   
   

10. The Sands, notwithstanding express knowledge that their building permit was not effective pending the Department's appeal, proceeded to construct the modular unit on the property. Such unit is approximately 650 square feet in size, excluding the two enclosed screen porches which measure 10' X 20' each, and complies with current building code requirements. The Sands' decision to construct such unit pending appeal was voluntary, and they proceeded with such construction at their own risk considering the nature of this proceeding.

    
    

    Consistency of the building permit with the Monroe County comprehensive plan and land development regulations

    
    

11. The Sands property is located within what the Monroe County land development regulations (MCLDR) define as a sparsely settled residential land use district. The purpose of such district is stated in Section 9.5-209, MCLDR, to be as follows:

    
    

    . . . to establish areas of low density residential development where the predominate character is native or open space lands.

    
    

12. Consistent with the purpose of such land use district, the Monroe County land development regulations permit, as of right, only the following uses:

    
    

    1. Detached residential dwellings;

    2. Beekeeping;

    3. Home occupations -- Special use permit requiring a public hearing;

    4. Accessory uses.

       
       

       Section 9.5-238(a), MCLDR. Moreover, consistent with the purpose of the district, the density or intensity of development is limited by Section 9.5-261, MCLDR.

       
       

13. Pertinent to this case, 9.5-261, MCLDR, addresses the issue of land use intensity or density, and provides:

    
    

    No structure or land in Monroe County shall hereafter be developed, used or occupied at an intensity or density greater than the standards set out in this division. . . .

    
    

    And, Section 9.5-262, MCLDR, establishes the maximum residential density in a sparsely settled residential land use district at .5 dwelling units per acre. Accordingly, a minimum of two acres is required under the Monroe County land

    development regulations to permit, as of right, one detached residential dwelling.

    
    

14. Notwithstanding the provisions of Section 9.5-262, MCLDR, the Monroe County land development regulations provide an exception to the density limitations otherwise imposed by such section for certain dwelling units existent on the effective date of the regulations. Pertinent to this case, Section 9.5-268, MCLDR, provides:

    
    

    Notwithstanding the provisions of section

    9.5-262 . . . the owners of land upon which a dwelling unit . . . used as a principal residence prior to the effective date of the plan was lawful on the effective date of this chapter shall be entitled to a density allocation of one (1) dwelling unit for each such unit in existence on the effective date of this chapter.

    
    

15. Here, the Department and Monroe County disagree as to the proper interpretation of the foregoing provision. The Department interprets such provision to apply only to the owner of such residence on the effective date of the plan. Under such interpretation, the density benefits offered by Section 9.5-268, MCLDR, would be lost where, as here, such owner sold the property. In contrast, Monroe County interprets such provision to essentially establish an allowable density on the effective date of the plan, and to accord subsequent owners the benefit of such increased density allocation. 5/ Such interpretation, while not the only possible interpretation, is not inconsistent with the comprehensive plan or clearly erroneous, and therefore permissible. 6/ Accordingly, the subject permit is consistent with the Monroe County comprehensive plan and land development regulations. 7/

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Sections 120.57(1) and 380.07(3), Florida Statutes.

    
    

17. This is an appeal, pursuant to Section 380.07, Florida Statutes, from a development order of Monroe County granting the Sands' request for a building permit to construct a single family dwelling unit on their property in Plantation Key, Monroe County, Florida. Pursuant to the provisions of Section 120.57(1), Florida Statutes, the propriety of Monroe County's action was reviewed de novo. Transgulf Pipeline Co. v. Board of County Commissioners of Gadsden County, 438 So.2d 876 (Fla. 1st DCA 1983).

    
    

18. The ultimate burden of persuasion rested on the Sands to establish their entitlement to the permit authorizing their proposed development. Young

    v. Department of Community Affairs, 567 So.2d 2 (Fla. 1st DCA 1990), and Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981). Here, the Sands have satisfied their burden of proof by demonstrating that construction of the subject dwelling unit is consistent with the Monroe County comprehensive plan and land development regulations.

    
    

19. Dispositive of whether construction of the Sands' dwelling unit is consistent with the Monroe County land development regulations is the interpretation to be accorded Section 9.5-268, MCLDR. Generally, an

    administrative construction of a statute by an agency responsible for its administration is entitled to great deference and should not be overturned unless clearly erroneous. Department of Environmental Regulation v. Goldring,

    477 So.2d 532 (Fla. 1985); All Seasons Resorts, Inc. v. Division of Land Sales, Condominiums, and Mobile Homes, 455 So.2d 544 (Fla. 1st DCA 1984); and Sans Souci v. Division of Land Sales and Condominiums, 421 So.2d 623 (Fla. 1st DCA 1982). The same deference has been accorded to rules which have been in effect over an extended period and to the meaning assigned to them by officials charged with their administration. Pan American World Airways, Inc. v. Florida Public Service Commission, 427 So.2d 716 (Fla. 1983), and State Department of Commerce, Division of Labor v. Matthews Corp., 358 So.2d 256 (Fla. 1st DCA 1978). Moreover, the agency's interpretation does not have to be the only one or the most desirable one; it is enough if it is permissible. Pan American World Airways, Inc. v. Florida Public Service Commission, supra, and Florida Power Corp. v. Department of Environmental Regulation, 431 So.2d 684 (Fla. 1st DCA 1983). Here, no less deference should be accorded Monroe County's interpretation of its land development regulations where, as here, such interpretation evidences due consideration for private rights of ownership and is not contrary to its comprehensive plan. 8/ See e.g. Thomson v. Village of Tequesta Board of Adjustment, 546 So.2d 457 (Fla. 4th DCA 1989). Such being the standard, it is concluded that Monroe County's interpretation of Section 9.5- 268, MCLDR, is a permissible interpretation. Accordingly, the subject development is consistent with the Monroe County comprehensive plan and land development regulations, and the Sands have demonstrated their entitlement to their permits.

    
    

20. The Sands have also urged in this case that the Department should be equitably estopped from contesting the propriety of Monroe County's issuance of the subject permit because it failed to appeal the demolition permit or to advise the Sands before the expiration of the Department's appeal time on the demolition permit that the wood-frame residence could not be replaced.

    
    

21. The doctrine of equitable estoppel may be applied against the state, although only in exceptional circumstances, upon a showing of the following elements:

. . . (1) a representation as to a material fact that is contrary to a later-asserted position; (2) reliance on that representation; and (3) a change in position detrimental to the party claiming estoppel, caused by the representation and reliance thereon.

Tri-State Systems, Inc. v. Department of Transportation, 500 So.2d 212, 215 (Fla. 1st DCA 1986). Here, for the reasons set forth in the findings of fact, not one element of the doctrine finds support in the credible proof adduced at hearing.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is recommended that the Florida Land and Water Adjudicatory Commission enter a final order affirming Monroe County's decision to issue building permit number 9130002861, and dismissing the appeal filed by the Department of Community Affairs.

RECOMMENDED in Tallahassee, Leon County, Florida, this 12th day of June 1992.

WILLIAM J. KENDRICK

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 12th day of June 1992.

ENDNOTES

1/ At the conclusion of the hearing, the parties were granted leave to file any further provisions of the Monroe County comprehensive plan or land development regulations they desired the Hearing Officer to consider within ten days of the date of hearing. The Sands elected to file such request with respect to the Monroe County land development regulations (MCLDR) table of contents, as well as Section 9.5-4(d-8), MCLDR. Such documents have been marked respondents' exhibit 14, and received into evidence.

2/ The Sands never resided upon the property or evidenced any intention that it be their residence, primary or otherwise.

3/ According to the Sands, the decision to replace the wood-frame structure, rather than to remodel it, was not based on any structural failing of the house that would have prevented its remodeling, but upon Mrs. Sands' personal preference. There is no contradictory proof of record, and the Sands' testimony is credited.

4/ In their post hearing memorandum of law, the Sands contend that the demolition permit and building permit were part of one common scheme, the replacement of the wood-frame structure with the modular unit, and that the Department's failure to appeal the demolition permit, or to advise them before the Department's appeal period expired on the demolition permit that it intended to appeal the building permit, estops it from contesting the propriety of the building permit. Such claim of estoppel is not, however, supported by the facts or, as discussed infra, the law.

Here, while the demolition permit and building permit may have been part of the Sands' plan to replace the wood-frame structure, they were separate permits, rendered to the Department on separate occasions. Merely because the Department did not find the demolition permit objectionable, and therefore appeal it, did not mislead the Sands to reasonably believe their building permit was not objectionable and would not be appealed. To the contrary, the Sands recognized each permit was separate, with its own 45-day appeal period, and even requested a waiver of the appeal period with regard to the building permit. The Sands, notwithstanding the Department's refusal to waive its appeal period, as well as notice to them that the proposed development may be objectionable, proceeded to demolish their existing structure before the effective date of the building permit. Such demolition was at their own risk, and was not the subject of any

reliance by the Sands on any act or failure to act by the Department that could be characterized as a misrepresentation.

5/ Such interpretation was made by the Director of Planning for Monroe County who, pursuant to Section 9.5-24, MCLDR, is authorized to render interpretations of such regulations. Section 9.5-24, MCLDR, has been further codified at 9J-14 and 28-20, Florida Administrative Code.

6/ In its proposed recommended order, the Department suggests that Monroe County's interpretation is contrary to the Monroe County's comprehensive plan's future land use objective which requires the County to "establish a land use management system that promotes orderly and balanced growth" and the plan's growth management objective that requires the County to "manage growth" and "ensure that future development is consistent with the long term functional integrity of the natural resources of the Florida Keys." Such suggestion is rejected as unpersuasive, there being no credible proof to demonstrate that the replacement of residential structures such as the Sands', or others similarly situated, would be inconsistent with the achievement of such goals.

7/ The Department has conceded, through its planner, Kenneth Metcalf, that density is the only perceived problem with the subject permit, and that resolution of that issue is dispositive of the case. However, the parties also took issue with whether the wood-frame structure existent on the property when it was acquired by the Sands was a nonconforming structure or use as defined by Section 9.5-4(N-8) and (N-9), MCLDR, and whether, if nonconforming, the provisions of Sections 9.5-143 and 9.5-144, MCLDR, precluded its replacement.

With regard to such issues, the proof demonstrated that the wood-frame structure was nonconforming, as was the land use under the density limitations of Section 9.5-261, MCLDR, and that absent the exemption provided by Section 9.5-268, MCLDR, the replacement of the building would not be consistent with the Monroe County land development regulations.

8/ While there may be differences between the standard used to gauge the propriety of a county's interpretation of its land development regulations and the standard used to gauge the propriety of an agency's interpretations of statutes or rules, such differences are not significant where, as here, the county's interpretation evidences due consideration for private rights of ownership and is not inconsistent with its comprehensive plan.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-3472DRI

The Department's proposed findings of fact are addressed as follows:

1. Addressed in paragraph 3.

2. Addressed in paragraph 2.

3. Addressed in paragraphs 1 and 4.

4. To the extent pertinent, addressed in footnote 2.

5. Addressed in paragraphs 4 and 10, and footnote 2.

6. Addressed in paragraph 7.

7. To the extent pertinent, addressed in paragraphs 7 and 9.

8. Rejected as contrary to the facts as found. See paragraph 9.

9. To the extent pertinent, addressed in footnote 2.

The Sands did not submit proposed findings of fact in the form of a proposed recommended order but did submit a post hearing memorandum of law consisting of observations of testimony, argument and law. Such memorandum of law has been

reviewed and considered in the preparation of this recommended order; however, its observations are not specifically addressed in view of its format.

COPIES FURNISHED:

Franklin D. Greenman, Esquire 5800 Overseas Highway #40

Marathon, Florida 33050

PG Construction, Inc.

150 Ocean Drive Tavernier, Florida 33070

Randy Ludacer, Esquire Monroe County Attorney

1. Fleming Street

   Key West, Florida 33040

   
   

   Katherine Castor, Esquire Department of Community Affairs 2740 Centerview Drive

   Tallahassee, Florida 32399-2100

   
   

   Douglas M. Cook, Secretary Florida Land and Water

   Adjudicatory Commission Executive Office of the Governor

2. Carlton Building Tallahassee, Florida 32301

Carolyn Dekle, Director

South Florida Regional Planning Council 3400 Hollywood Boulevard

Suite 140

Hollywood, Florida 33021

Bob Herman

Monroe County Growth Management Division Public Service Building, Wing III

5825 Jr. College Road Stock Island

Key West, Florida 33040

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-003472DRI

Orders for Case No: 91-003472DRI