STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BIG PINE KEY JOINT VENTURE, )

)

Appellant, )

vs. ) CASE NO. 96-1619

)

MONROE COUNTY, political )

subdivision of the State of )

Florida, )

)

Appellee, )

and )

)

WILLIAM MALLERS, )

)

Intervenor. )

)

FINAL ORDER

This is an appeal from Resolution No. P 71-95 of the Monroe County Planning Commission (Commission) denying Appellant's request for issuance of a major conditional use permit to construct thirty eight additional hotel rooms, two additional employee housing units, and four thousand square feet of additional commercial space for a proposed hotel project known as Mariner's Resort. This appeal was taken pursuant to Article XIV of the Monroe County Code, Land Development Regulations, the Hearing Officer Appellate Article. Oral argument was heard by Susan B. Kirkland, the designated Administrative Law Judge of the Division of Administrative Hearings.

Section 9.5-540(b), Monroe County Code, Land Development Regulations, provides that, on appeal of an order of the Planning Commission, an administrative law judge of the Division of Administrative Hearings may enter an order affirming, reversing, or modifying the Planning Commission's order. That section further provides:

The . . . order may reject or modify any conclusions of law or interpretation of the Monroe County land development regulations or comprehensive plan in the planning commission's order, whether stated in the order or necessarily implicit in the planning commission's determination, but he may not reject or modify any findings of fact unless he first determines from a review of the complete record, and states with particularity in his order, that the findings of fact were not based upon competent substantial evidence or that the proceeding before the planning

commission on which the findings were based did not comply with the essential requirements of law.

In DeGroot v. Sheffield, 95 So.2d 912, 916 (Fla. 1957), the Florida Supreme Court defined "competent substantial evidence" as follows:

We have used the term "competent substantial evidence" advisedly. Substantial evidence has been described as such evidence as will establish a substantial basis of fact from which the fact at issue can be reasonably inferred. We have stated it to be such relevant evidence as a reasonable mind would accept as adequate to support a conclusion. [Citations omitted.] In employing the adjective "competent" to modify the word "substantial," we are aware of the familiar rule that in administrative proceedings the formalities in the introduction of testimony common to the courts of justice are not strictly employed. [Citations omitted.] We are of the view, however, that the evidence relied upon to sustain the ultimate findings should be sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached. To this extent the "substantial" evidence should also be "competent."

TRAFFIC IMPACT

The Marina Resort site is located at the corner of Vista Linda Drive and Atlantis Drive in Big Pine Key, Monroe County, Florida. At the time the application was made for a major conditional use permit, twenty-six motel units, an office, two employee residences, a restaurant, bait shop with fuel station, marina and other amenities were located at the site; however, the motel and restaurant were no longer in operation as of at least 1986.

In the resolution the Commission set forth the following findings: [T]he reconstruction and re-occupation of

previously existing hotel and restaurant

constitutes "development" as defined in Code [Section] 9.5-4(D-8): Development means the carrying out of any building activity, the making of any material change in the use or appearance of any structure or land or water, or the subdividing of land into two or more parcels, because the activity is a "recon- struction . . . or material change in the external appearance of [the] structure or land", 9.5-4(D-8)(a)(1), or a "renewal, improvement and alteration" that affects more than "only the color or decoration of the exterior of the structure[s]," Code [Section] 9.5-4(D)(c)(1), AND the activity is the "carrying out of [a] building activity, [and] the making of [a] material change in the ... external appearance of a structure [and] land.

..," Code [Sections] 9.5-4(D-8) . . .

The Commission then concluded that because the reconstruction of the twenty-six units constituted development, those units should be considered for purposes of impact analyses required for conditional uses and the traffic moratorium under Code Section 9.5-292. Thus, the Commission considered the

number of trips that would be generated by the existing units in determining the traffic impact.

The Amended CIAS and Executive Summary dated June 8, 1995, and submitted by the Applicant states:

During phase I the existing twenty-six (26) motel rooms will be renovated into twenty- four (24) rooms, a storage room and a laundry room. . . . The existing rooms will consist of one room and one bathroom. The existing kitchenettes will be removed. The existing guest rooms will have a connecting door between two rooms. However such combinations will still be counted as two rooms for purposes of County Land Development Regulations density calculations.

* * *

The existing motel buildings will have the rear porches enclosed with wood, operable louvered doors/panels to allow more shading and an unconditioned, breeze-catching, yet private living area. The entrances to each unit are composed of an inside, solid door and an outer, operable louvered door. Thus, the solid doors may be opened while the louvered doors remain closed, allowing the occupants to take advantage of the prevailing and frequent breezes on site. Bathrooms in

existing buildings will have a louvered window allowing direct venting of humid air to the outside without increasing air conditioning loads. Existing high-consumption water fixtures will be replaced with fixtures having the lowest practical flow available.

Insulation will be added wherever possible.

The Amended CIAS and Executive Summary further states that the kitchen will be modernized and expanded by 900 square feet.

The record contains aerial photographs of the site as it currently exists and drawings showing the proposed changes to the resort site. The architect for the project, Sienna Leon, testified that a new hotel lobby and office will be built between the two buildings housing the existing units. The lobby and office are shown on the site plan as connecting the two buildings.

There is substantial competent evidence in the record to support the Commission's finding that the renovations to the existing hotel and restaurant constitute development as defined by Section 9.5-4(D-8) of the Monroe County Code. Thus, the Commission did not err in considering the impact of the existing as well as the proposed hotel units.

Appellant argues that the Commission was estopped to determine that the trips that would be generated by the motel units which were in existence but out of operation should be considered in the traffic impact analyses because the Monroe County staff had taken a different position during their review of the application. If Appellant's position were accepted there would be no need for the Commission to hold a public hearing in considering the application, the Commission would accept the recommendation of the staff and issue an order in accordance with the recommendation. The Commission has the final authority to approve or disapprove a request for a major conditional use permit pursuant to Section 9.5.69 of the Monroe County Code.

The Commission found that the following trip generation would result from the proposed hotel project:

[A]n additional 583 average daily trips on

U.S. 1 would be generated by the proposed reconstruction and expansion of the previously-existing hotel/restaurant structures, including an additional 237 average daily trips generated by recon- struction of the previously-existing hotel units, employee housing and restaurant (Phase I) and 346 average daily trips generated by the proposed addition of 38 hotel units (Phase II).

* * *

[A]n additional 810 average daily trips on Sands Road will be generated by the proposed reconstruction and expansion of the Hotel and Restaurant, which includes an additional 329 average daily trips generated by the recon- struction (Phase I) and 481 average daily trips generated by the proposed addition of

38 hotel units (Phase II).

The Commission's finding is based on the expert testimony of Raj Shanmugan and is supported by competent substantial evidence.

The Commission found the following:

[A]n inadequate level of service "E" exists on the Big Pine Key segment of U.S. 1 based on the 1994 Public Facilities Capacity

Assessment ("Annual Traffic Report") completed in March 1994 and as reaffirmed in the data and analysis conducted in March 1995 for the 1995 Annual Traffic Report that was

introduced in the record.

* * *

[T]he previously-existing hotel and restaurant was not in use or occupied as a hotel since sometime before September 15, 1986 and was

not in use or occupied as a restaurant since approximately 1984. The fact that these uses were discontinued is evidenced by the expiration, and failure to obtain renewals, of the annual occupational licenses for the

property, and by the testimony of members of the public based on their personal knowledge that the hotel and restaurant were already vacant and not in use on September 15, 1986.

* * *

[T]he previously-existing hotel units, employee housing and restaurant were not occupied, or in use, when the Annual Traffic Report finding an inadequate level of service on the Big Pine Key segment of U.S. 1 was completed in March 1994.

* * *

1. he reconstruction and occupancy of the previously-existing hotel units, employee housing and restaurant uses will generate additional trips not included in the 1994 Annual Traffic Report and further reduce the capacity of U.S. 1.

   
   

   These findings are also supported by competent substantial evidence.

   
   

   Appellant proposed several mitigation alternatives to be considered in mitigating the traffic impacts that would be attributable to the project.

   Appellant proposed that the signal light at the intersection of U.S. 1 and Wilder Road be retimed. The Commission found the following:

   
   

   1. the signalization study of the traffic light at U.S. 1 and Wilder Road did not adequately take into account, or address, the fact that the traffic signal is already self- actuated, i.e., it is triggered by the presence of traffic waiting at the signal; and

   2. this actuated signal is currently triggered by actual traffic needs and currently functions at near optimal cycles; and

   3. the applicant has failed to provide reasonable assurances that re-timing the traffic signal cycle would result in significant improvements to the level of service on U.S. 1 . . .

The Commission's findings are based on the expert testimony of Raj Shanmugan and are supported by competent substantial evidence.

Appellant proposed left turn lanes on U.S. 1 to mitigate the additional traffic that would result from the project. The Commission found the following:

1. the creation of left-hand turn lane(s) on the Big Pine Key segment of U.S. 1 as proposed by the applicant does not adequately reduce or mitigate the impacts of the proposed development on the level of service on U.S. 1; and

2. left-hand turn lanes at each and every intersection along U.S. 1 would be required to mitigate the impacts of the proposed development on the level of service on

   U.S. 1; and

3. no methodology has been approved or accepted for the use of left-hand turn lanes as mitigation of inadequate level of service on roadways; and

4. left hand turn lanes have not been approved or accepted by the State of Florida Department of Transportation (DOT) as adequate mitigation for inadequate level of service; and

5. DOT will not approve improvement to

1. 1 on Big Pine Key until the DOT Study Committee has recommended a method(s) of improving the level of service on U.S. 1 which will not adversely impact the Key Deer listed on the federal and state endangered species list . . .

   
   

   Appellant proposed to demolish the Dutchman's Restaurant, a fast food restaurant with a small video arcade located on U.S. 1, less than two miles from the proposed resort. Appellant had planned to obtain the trip benefits associated with the restaurant to offset traffic impacts generated by the project. The Commission found the following:

   
   

   1. approximately 70-80 percent of the trips generated by Dutchman's Restaurant attenuated within the first mile; and

   2. any mitigation by the demolition of Dutchman's Restaurant would be limited to impacts generated by the proposed Mariner's Resort on the levels of service on that portion of the U.S. 1 Big Pine Key segment within one (1) mile from Dutchman's Restaurant (the Northern most portion of the Big Pine

      Key segment) and

   3. the applicant erred in calculating the number or trips generated by the Dutchman's Restaurant because the square footage of Dutchman's Restaurant already included the square footage of the video arcade; and

   4. the "double-dipping" of trips generated by the video arcade and as additional restaurant square footage was improper and results in a higher estimated trip generation than can be expected; and

   5. the video area did not contain enough video machines to constitute a full video arcade under the most recent edition of the ITE trip generation manual; and

   6. applicant's data as to the number of trips generated by Dutchman's Restaurant is inaccurate and provides no reasonable assurance that demolition of Dutchman's

Restaurant will compensate for the trips generated by either the additional or the previously-existing hotel and restaurant uses over the entire length of the U.S. 1 segment containing Big Pine Key . . .

The Commission's findings are based on the expert testimony of Raj Shanmugan and are supported by competent substantial evidence. Additionally there was evidence that the restaurant is no longer in operation and that since the cessation of business, the level of service on U.S. 1 still remains inadequate.

ENDANGERED KEY DEER

The Commission found the following:

1. he proposed resort will have significant adverse secondary impacts on the endangered Key Deer, resulting from increased human-deer contacts which will occur as visitors from the resort interact with Key Deer on Big Pine and No Name Keys; from increased traffic mortality as visitors, employees, delivery persons and others travel to and from the resort; AND that the proposed resort will have adverse cumulative impacts when considered with existing and other reasonably expected development on Big Pine Key.

   
   

   The Appellant argues that the Commissioned erred in finding that the proposed project will have significant adversary secondary impacts on Key Deer. There is competent substantial evidence to support the Commission's finding based on the testimony of Diana Stevenson and Dr. Monica Folk.

   
   

   Appellants argue that there is no standard by which to gauge the secondary impact on the Key Deer. There was no testimony concerning a specific numerical standard to determine the impact on the Key Deer. However, there was ample testimony that there will be an increase in human-deer contact which would result from interaction between the resort visitors and the Key Deer, causing the deer to be less fearful of humans, and that the increase in traffic will increase the deaths of the Key Deer because traffic mortality is the primary cause of the decrease in the Key Deer population.

   
   

   The Commission specifically found the following relating to Appellant's proposed mitigation of secondary impacts to the Key Deer:

   
   

   1. the proposed education program, while beneficial to the long-term survival of the Key Deer, is insufficient to mitigate the secondary and cumulative impacts to Key Deer resulting from the proposed project;

   2. the proposed location of the watering- hole on the Dutchman's Restaurant property is too close to U.S. 1 and may attract Key Deer to areas of higher traffic mortality resulting in increased road kills, other proposed locations were not specified by a legally-

      binding agreement pursuant to Code [Section] 9.5-65(f);

   3. the proposed watering hole is speculative and has not been reviewed or approved by any state or federal agency or Key Deer expert;

   4. a Habitat Conservation Plan (HCP) prepared in accordance with Section 10 of the federal Endangered Species Act would constitute an adequate, approved and accepted method of mitigation for direct, secondary and cumulative impacts to endangered species, including the Key Deer; and

   5. the applicant has not agreed to prepare a Habitat Conservation Plan or proposed a definite, legally-binding agreement to part- icipate in the preparation of an HCP meeting the requirements of Code [Section] 9.5-65(f).

Appellant submits that the Commission erred in finding that Appellant's proposed mitigation was insufficient to offset the adverse secondary and cumulative impacts on the Key Deer because the Commission had no standard upon which to determine whether the proposed mitigation was adequate.

The standards concerning impacts to Key Deer are expressly contained in the Comprehensive Plan. If the proposed project is inconsistent with the policies contained in the 1986 Comprehensive Plan, it cannot be approved. Section 163.3194, Florida Statutes, Machado v. Musgrove, 519 So.2d 629, 635 (Fla. 3rd

DCA 1987), rev. denied, 529 So.2d 693 (Fla. 1988).

The Comprehensive Plan contains the following standards concerning Key Deer:

Terrestrial Wildlife Management Policies 1.1, "Development activities which may degrade, destroy or severely impact productive areas for wildlife will be required to assess possible means and, to the extent practicable, adopt protective measures for abating these impacts on wildlife populations and habitat;"

1. "Recognizing that each wildlife group has its own requirements and tolerances, the adequacy of protective measures will be evaluated for each individual species occupy- ing the habitat;" 1.2 "The County will exert special protective efforts regarding the preservation of rare, endemic, endangered, or threatened species as identified by Federal and State agencies. . . .;" 2.1 "Intensive development will be directed away from the habitat of rare, endemic, endangered or threatened species;" 2.4 " Any major develop- ment project, public or private, will be reviewed to assess its impact on wildlife species of special concern in regard to the habitat, breeding, and feeding characteristics of such species. Adequate protective measures

   will be required to forestall potentially adverse impacts;" and 4. "The County will encourage and support scientific studies related to wildlife management in the Keys and will utilize the recommended management principles in the deliberations concerning

   the impacts of the various land uses upon the wildlife resources of the area.

   
   

   1986 Florida Comprehensive Plan, p. 208.

   
   

   Each species' needs would have to be analyzed to determine whether the proposed development would have an adverse impact on the wildlife and what protective measures would be needed to mitigate adverse impact. Expert testimony was presented during the hearing to establish that the mitigation was inadequate. The absence of a precise numerical standard is not a denial of due process when the decision that the mitigation is insufficient is based on competent substantial expert testimony as it was in this case.

   
   

   COMMUNITY CHARACTER

   
   

   The Commission found the following as it relates to the impact on community character of the immediate vicinity surrounding the proposed project.

   
   

   1. resort development of this size will result in an additional 810 average daily trips on Sands Road generated by the proposed reconstruction and expansion of the Hotel and Restaurant . . . is a significant increase above and beyond existing traffic levels and is not consistent with the community character of the immediate planning area, and will have adverse effects on adjacent properties including the residential neighborhood surrounding Sands Road because the conditional use, at the size and scope proposed, would have "undesirable social, cultural, economic and environmental impacts on the community character," and result in an "undesirable change in the community character of the planning area."

* * *

[C]onverting the previously-existing hotel and restaurant into a project of this size will result in adverse community impacts resulting from the increased amount of traffic generated by the project, the narrow

width and residential character of Sands Road, (See photographs of Sands Road and the existing children at play sign contained in record),

and the evidence and testimony concerning secondary and cumulative impacts to the endangered Key Deer.

* * *

[T]he proposed plan to mitigate the impacts to residences surrounding Sands Road by utilizing County Road cannot be guaranteed or

enforced and is not legally-binding, Code [Section]9.5-65(f). This proposal is contrary to common-sense, natural human behavior and expert testimony concerning traffic patterns and the tendency of motorists to take the shortest available route, or a plainly-visible "short-cut," to and from a destination. . .

Appellant contends that the Commission's finding that the resort at the size proposed will have an adverse impact on the community character of the immediate vicinity is not based on competent substantial evidence. A review of the record shows that such finding is based on competent substantial evidence. The immediate vicinity of the project consists of a rural, residential neighborhood. The expert testimony of traffic engineer Raj Shanmugan was that the resort will generate an additional 810 average daily trips on Sands

Road with 481 of those trips being attributable to the proposed addition of 38 hotel units. The substantial number of daily trips would have an adverse impact on the community character of the residential neighborhood surrounding the proposed resort.

CONSISTENCY

The Commission found that:

[T]he proposed Major Conditional Use, at the size and scale proposed, is INCONSISTENT with those purposes, goals, objectives and standards of the plan and this chapter concerning traffic concurrency, adverse impacts to the character of the neighborhood in the immediate vicinity of Sands Road, and adverse and undesirable secondary and cumulative impacts to endangered species as set forth in this Resolution. Code [Section] 9.5-65(a).

The Commission's findings that the proposed project is inconsistent with the purposes, goals, objectives and standards of the comprehensive plan and the Monroe County Code is supported by competent substantial evidence.

FINANCIAL AND TECHNICAL ABILITY AND LEGAL PROVISIONS TO GUARANTEE IMPROVEMENTS

Subsection 9.5-66(f) of the Monroe County Code provides:

The applicant for conditional use approval has the financial and technical capacity to complete the development as proposed and has made adequate legal provision to guarantee the provision and development of any open space and other improvements associated with the proposed development. . . .

The Commission found the following:

[T]he applicant has never developed a hotel

or resort project, that the proposed financial

analysis does not provide reasonable assurance that the applicant will complete the proposed development, and THE COMMISSION FINDS that

the applicant has not made adequate and binding legal provisions to guarantee the provision and development of adequate mitigation and other improvements associated with proposed project.

Appellant has not developed a hotel or resort project before; however, that alone does not mean that the Appellant does not have the financial and technical ability to complete the project. Applicant's Exhibit 36 shows that there will be a negative cash flow from operations of $67,436 based on a project of 64 units using the most optimistic projections of revenue and the least projections of cost. Applicant's expert witness, Scott Berman, indicated that a 64-unit project was a "better deal" than a 24-unit project but he could not say that a 64-unit would be successful.

Based on the record, Appellant has failed to demonstrate that it has the technical and financial ability to complete the project.

EX-PARTE COMMUNICATIONS

The hearing in this case began on June 30, 1995, at which time it was disclosed that two of the commissioners had attended a public meeting to hear a speaker address an issue unrelated to this project. However, during the community meeting one of the speakers at the meeting commented on the proposed hotel project. The commissioners were unaware when they went to the meeting that the hotel project would be discussed. The commissioners were instructed that they could not consider any comments that they may have heard at the community meeting in their consideration of the application. The commissioners indicated that they would not consider the comments in making their decision.

In Jennings v. Dade County, 589 So.2d 1337, 1341 and 1342 (Fla. 3rd DCA), rev. denied, 598 So.2d 75 (Fla. 1992), the Third District Court of Appeal adopted the following criteria in determining the prejudicial effect of an ex parte communication:

[w]hether, as a result of improper ex parte communication, the agency's decision making process was irrevocably tainted so as to make the ultimate judgement of the agency unfair, either as to an innocent party or to the public interest that the agency was obliged to protect. In making this determi- nation, a number of considerations may be relevant: the gravity of the ex parte communication; whether the contacts may have influenced the agency's ultimate decision; whether the party making the improper

contacts benefited from the agency's ultimate decision; whether the contents of the communications were unknown to opposing parties, who therefore had no opportunity to respond; and whether vacation of the agency's decision and remand for new proceedings would serve a useful purpose. Since the principal

concerns of the court are the integrity of the process and the fairness of the result, mechanical rules have little place in a

judicial decision whether to vacate a voidable agency proceeding. Instead, any such decision must of necessity be an exercise of equitable decision.

Based on the above criteria, it cannot be concluded that Appellant was denied due process because two commissioners attended a community meeting in which the proposed project was discussed. The public hearing on the Appellant's application lasted several days over many months. Appellant had ample opportunity to present its case and be heard. The commissioners stated that the comments that they heard prior to the hearing on the application would not influence their decision on the application and that they would base their decision on the evidence presented at the hearing. There is competent substantial evidence to support the findings of the commission and the vacation of the proceeding and a rehearing would serve no useful purpose.

The resolution of the Commission denying Appellant's application for a major conditional use permit is AFFIRMED.

Pursuant to Section 9.5-540(c) of the Monroe County Code, this final order is "the final administrative action of Monroe County." It is subject to judicial review by common-law certiorari to the circuit court.

DONE AND ORDERED this 16th day of January, 1997, in Tallahassee, Leon County, Florida.

SUSAN B. KIRKLAND

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 16th day of January, 1997.

COPIES FURNISHED:

Mark D. Solov, Esquire Ronald L. Weaver, Esquire

Stearns, Weaver, Miller, Weissler, Alhadeff and Sitterson, P.A.

Museum Tower, Suite 2200

150 West Flagler Street Miami, Florida 33130

Ralf G. Brookes, Esquire Morgan and Hendrick

317 Whitehead Street

Key West, Florida 33041

Richard Grosso, Esquire

424 Farmington Drive Plantation, Florida 33317

Garth Coller

Planning Commission Counsel

Monroe County, Regional Service Center 2978 Overseas Highway

Marathon, Florida 33050

Gail Moro, Planning Commission Coordinator Monroe County, Regional Service Center 2978 Overseas Highway

Marathon, Florida 33050

Docket for Case No: 96-001619

Orders for Case No: 96-001619