STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF COMMUNITY AFFAIRS, )

)

Petitioner, )

)

vs. ) CASE NO. 91-7804DRI

) KEY LARGO ASSOCIATES, LTD., a )

Florida limited partnership, ) Owners; and MONROE COUNTY, a ) political subdivision of the ) State of Florida, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case in Tallahassee, Florida, on July 9, 1993, before J. Stephen Menton, a duly designated Hearing Officer from the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Terrell K. Arline

Assistant General Counsel Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

For Respondent: No appearance Monroe County

For Respondent: No appearance Key Largo

Associates, Ltd.

STATEMENT OF THE ISSUES

The issue in this case is whether a development order (Resolution No. 233- 1991) issued by Monroe County on June 26, 1991, to Key Largo Associates, Ltd., is inconsistent with Chapter 380, Florida Statutes, the Monroe County Comprehensive Plan and Land Use Regulations, and/or whether it violates a Joint Stipulation of Settlement previously executed by the Department of Community Affairs ("DCA"), Monroe County (the "County"), and Key Largo Associates, Ltd.'s predecessor in title.

PRELIMINARY STATEMENT

On or about June 26, 1991, Monroe County adopted Resolution No. 233-1991 (the "Development Order") which approved with modifications an application filed October 6, 1988, by Key Largo Associates, Ltd., for a major conditional use

permit for a project called Island Plaza Shopping Center (the "Project") located on Key Largo, Florida.

On September 6, 1991, DCA submitted a Notice of Appeal and a Petition with the Florida Land and Water Adjudicatory Commission ("FLWAC") pursuant to Section 380.07, Florida Statutes, challenging the issuance of the Development Order.

DCA alleged that the Development Order was inconsistent with and violated the Monroe County Comprehensive Plan and Land Development Regulations and also violated a Joint Stipulation of Settlement dated April 8, 1985, between DCA, Monroe County and the predecessor in title to the subject property. The case was referred to the Division of Administrative Hearings to conduct a hearing pursuant to Section 120.57, Florida Statutes.

For a variety of reasons, several hearings scheduled in this case were continued without objection from any of the parties. On February 23, 1993, Key Largo Associates, Ltd., filed a Notice of Sale of Subject Property. That Notice advised that the property which is the subject of the Development Order had been sold. The Notice also stated that Key Largo Associates no longer had an interest in the case and would not attend the hearing. As set forth in an Order Cancelling Hearing and Placing Case in Abeyance dated February 26, 1993, this case was placed in abeyance in order to allow the purchasers of the property an opportunity to review this matter and determine whether they wished to proceed with a hearing in this case. The purchasers were directed to file a status report on or before March 31, 1993, stating their intentions. As set forth in an Order To Show Cause dated April 9, 1993, no Status Report was received from the purchasers of the property. However, DCA expressed a desire to go forward with a hearing in order to present evidence in support of the allegations in its Petition. Pursuant to an Order Scheduling Hearing dated April 27, 1993, a hearing in this case was scheduled June 11, 1993. Both the purchasers of the property and the prior owners of the property were notified of the hearing. The case was subsequently rescheduled for hearing on July 9, 1993. Again, the purchasers of the property and the prior owners were notified of the time and place scheduled for the hearing.

Prior to the hearing, Key Largo Associates, Ltd., filed a Waiver of Formal Administrative Hearing advising that it did not intend to attend the hearing or offer any evidence to support its entitlement to the Development Order. Monroe County also filed a Waiver of Notice and Participation. Parker Real Estate Partners I, Ltd., a successor in interest to Key Largo Associates, Ltd., filed a Waiver of Formal Administrative Hearing and Consent to Entry of a Final Order.

Blackwater Associates Partnership, another successor in interest to Key Largo Associates, Ltd., was notified of the hearing but did not file a petition to intervene or otherwise seek to appear at the hearing.

At the hearing on July 9, 1993, DCA presented the testimony of one witness: James L. Quinn, the Administrator of the Area of Critical State Concern Program. Petitioner also offered four exhibits into evidence, all of which were accepted.

No transcript of the proceeding has been provided. DCA has timely submitted a proposed recommended order. DCA's proposed findings of fact have been adopted in substance in this Recommended Order.

FINDINGS OF FACT

Based upon the evidence adduced at the hearing and the entire record in this proceeding, the following findings of fact are made:

1. DCA is the State Land Planning Agency charged with the responsibility to administer the provisions of Chapter 380, Florida Statutes, and the regulations promulgated thereunder.

   
   

2. Monroe County is a political subdivision of the State of Florida and is responsible for issuing development orders for development in unincorporated Monroe County. The County issued the Development Order which is the subject of this proceeding.

   
   

3. Most of Monroe County, including the subject property, is within the Florida Keys Area of Critical Concern as designated in Sections 380.05 and 380.0552, Florida Statutes. Development orders issued by a local government agency for an area of critical state concern are subject to review by DCA pursuant to Section 380.07, Florida Statutes.

   
   

4. On April 8, 1985, DCA, Monroe County, and I. D. Properties, the previous owner of the subject property, executed a Joint Stipulation of Settlement regarding DCA's challenge to a prior development order for the subject property. That Joint Stipulation of Settlement required the preservation of certain tropical hammock on the site including Paradise Tree hammock.

   
   

5. After executing the Joint Stipulation of Settlement, I. D. Properties quitclaimed its interest in the site to Key Largo Associates, Ltd. Key Largo Associates, Ltd. proceeded to seek approval from Monroe County to develop the property inconsistent with the terms of the Joint Stipulation of Settlement. Those efforts resulted in the Development Order which is the subject of this case.

   
   

6. The County Commission issued the Development Order granting a major conditional use permit for the Project to Key Largo Associates, Ltd., after being ordered to do so by the Circuit Court for Monroe County. The Development Order purports to authorize the complete elimination of existing tropical hammock on the site including the Paradise Tree hammock.

   
   

7. The Development Order is inconsistent with the Monroe County Comprehensive Plan and the Land Development Regulations adopted thereunder. In addition, the Development Order is contrary to the terms of the Joint Stipulation of Settlement.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

   
   

9. Pursuant to Section 380.07(2), Florida Statutes, DCA can appeal to FLWAC the issuance of a development order in an area of critical state concern. A hearing on the issuance of a challenged development order is conducted pursuant to the provisions of Chapter 120, Florida Statutes. In such a proceeding, the propriety of the local government's decision to issue the development order is reviewed de novo. See Section 120.57(1), Florida Statutes; Transgulf Pipeline Co. v. Board of County Commissioners of Gadsden County, 438 So.2d 876 (Fla. 1st DCA 1983).

   
   

10. The person or entity seeking a permit has the ultimate burden of persuasion to establish their entitlement to the permit authorizing the proposed

development. Young v. Dept. of Community Affairs, 567 So.2d 2 (Fla. 1st DCA 1990); Florida Department of Transportation v. J. W. C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1991). In this case, no evidence was presented to establish that the Development Order should issue or that conditions could be attached to the permit that would enable the development to go forward. Indeed, the evidence presented established that the Development Order is inconsistent with the Monroe County Comprehensive Plan, the Land Development Regulations thereunder, and the Joint Stipulation of Settlement dated April 8, 1985.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a

final order which sustains the appeal filed by the Department of Community

Affairs and which rescinds the issuance of Monroe County Resolution No. 233- 1991.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 18th day of August 1993.

J. STEPHEN MENTON Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1993.

COPIES FURNISHED:

Terrell K. Arline Assistant General Counsel

Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

Betty J. Steffens, Esquire McFarlain, Wiley, Cassedy

& Jones

Post Office Box 2174 Tallahassee, Florida 32316-2174

Blackwater Associates Partnership 7225 S.W. 108th Terrace

Miami, Florida 33156

Ray Parker

Parker Real Estate

2028 North Dixie Highway

Fort Lauderdale, Florida 33305

Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

G. Steven Pfeiffer General Counsel

Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

David K. Coburn, Secretary FLWAC

Exec. Office of the Governor

311 Carlton Bldg. Tallahassee, Florida 32301

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: 91-007804DRI

Orders for Case No: 91-007804DRI