STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EGAN ADAMS and HENSON & HENSON, ) INC., )

)

Appellants, )

)

vs. ) CASE NO. 96-1717

)

MONROE COUNTY, FLORIDA. )

)

Appellee. )

)

FINAL ORDER

This is an appeal from a resolution of the Monroe County Planning Commission ("Planning Commission") denying appellant's request for issuance of a major conditional use permit to construct two small docks and to install a marine fueling station in the rear of property which currently contains a gas station and convenience store. 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 Patricia Hart Malono, the designated Administrative Law Judge of the Division of Administrative Hearings.

STATEMENT OF THE ISSUE

The appellant contends that the Planning Commission "did not base its decision on specific standards or criteria [set forth in the zoning regulation] as required. Nor was there any competent substantial evidence presented that would support the Planning Commission's findings."

PRELIMINARY STATEMENT

On January 24, 1995, Egan Adams, former owner of the subject property and co-appellant with the current property owners, Henson and Henson, Inc., submitted an Application for Development Approval to the Monroe County Planning Department. The application was submitted in response to a notice of violation of the Monroe County Code for the unpermitted installation of a marine fueling station consisting of a fuel pump and a makeshift docking area at the end of a canal leading off of Lake Surprise in Key Largo, Florida. The application requested approval for the installation of the fuel pump located on the shoreline of the canal and for the construction of two docks, one 9' x 16'4" and the other 13' x 12'8", to which boats could be tied during fueling.

The staff of the Monroe County Planning Department evaluated the application as one for a major conditional use permit because the fueling facility constitutes a marina as defined in the Monroe County Code, Land Development Regulations. Once the application was complete and documentation had been submitted addressing the areas of concern identified by the staff and by the Monroe County Development Review Committee, the staff issued its report recommending approval of the project, subject to fourteen enumerated conditions. In DRC Resolution No. D52-95, dated August 31, 1995, the Monroe County

Development Review Committee recommended that the request for major conditional use be approved subject to the conditions identified by the Planning Department staff.

The application and the case file packet compiled by the Planning Department, including the final staff memorandum dated November 21, 1995, were forwarded to the Planning Commission, which held a duly-noticed public hearing on January 10, 1996, during which the application was considered. The Planning Commission received the report of the Planning Department staff, which was presented under oath by Silvia Vargas, Senior Planner, and Bill Miller, Environmental Planner. Ms. Vargas and Mr. Miller testified that the application was subjected to a rigorous evaluation and that it complies with all applicable code provisions and regulations. Ms. Vargas and Mr. Miller recommended that the project be approved with fourteen conditions which were specified at the hearing.

In addition, the Planning Commission heard the sworn testimony of the appellant, of Robert Smith, an expert witness appearing on the appellant's behalf, and of seven members of the public who spoke in support of the project. The Planning Commission also heard the sworn testimony of the senior planner for the Department of Community Affairs located in Marathon, Florida, and of four members of the public who spoke in opposition. Photographs submitted by the appellant and by those appearing in opposition to the project were accepted into evidence and made part of the record, and a videotape prepared by an anonymous source which purported to show boats fueling at the site of the unpermitted fuel pump on various dated in 1995 was accepted into evidence and viewed at the hearing.

At the conclusion of the hearing, the members of the Planning Commission voted unanimously to deny the application for approval of a major conditional use. In Resolution No. P3-96, the Commission included the following Findings of Fact and Conclusions of Law to support its denial:

1. Based on the testimony presented at the public hearing, the existing development, which has been unlawfully constructed, and for which approval is now being sought has an adverse impact on the community character of the immediate neighborhood and on the water quality of the canal system within the immediate neighborhood;

2. Based on the evidence presented at the hearing, the West Indian manatee (Trichechus manatus), a federally listed endangered species, is present in the canal system adjacent to the development;

3. We find that the staff report and the fourteen conditions of approval which staff determined would be necessary to ensure that the development would be consistent with the Florida Keys Comprehensive Plan and the Monroe County Land Development Regulations, will be impossible to enforce and would not sufficiently protect the health, safety, or welfare of the neighborhood;

4. Additionally, the project has been proven in the past to pose a serious hazard

to the public health, safety and welfare as evidenced by the testimony regarding the fuel spill into the narrow, mostly residential canal, from this site.

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 conclusion 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.

Competent substantial evidence has been defined by the Florida Supreme Court in DeGroot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957), 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."

The Planning Commission's Findings of Fact and Conclusions of Law numbered

1 and 3 are rejected. A review of the record fails to reveal competent, substantial evidence to support the findings/conclusions that the community

character and the water quality in the immediate neighborhood would be adversely affected by the operation of the proposed marine fueling facility or that the conditions recommended by the Planning Department staff would be unenforceable and would not protect the health, safety, or welfare of the neighborhood. The Planning Commission's Finding of Fact and Conclusion of Law numbered 2 that the West Indian manatee is present in the canal adjacent to the proposed facility is supported by the evidence of record, but the Planning Commission did not identify any law, rule, or regulation which would bar approval of the proposed conditional use for this reason.

Finally, the Planning Commission's Finding of Fact and Conclusion of Law numbered 4 that there was a fuel spill in the canal as a result of fueling activity at the unpermitted fuel pump is supported by the evidence of record. There is, however, no competent substantial evidence in the record to support the finding that this fuel spill posed a serious hazard to the public health, safety, and welfare. Furthermore, the Planning Commission did not establish the relevance of this finding/conclusion to its decision to deny the application for a major conditional use permit.

Because the Findings of Fact and Conclusions of Law in Resolution No. P3-96 either are not supported by competent substantial evidence or are legally insufficient to justify its decision to deny the appellant's application for a conditional use permit, the order of the Planning Commission is REVERSED.

FINDINGS OF FACT

Based upon the evidence of record submitted with this appeal, the findings of fact of the Planning Commission are rejected and the following substituted:

1. The proposed use constitutes a marina pursuant to section 9.5-4(M-5) of the Monroe County Code, Land Development Regulations, and it must, therefore, be reviewed as a major conditional use.

   
   

2. The proposed development complies with all applicable Monroe County land development regulations.

   
   

3. The proposed development is limited to two fueling docks, one 9' x 16'4" and the other 13' x 12'8", and one fueling pump.

   
   

4. The proposed development does not include provisions for boat storage, boat ramps, or liveaboard docking.

   
   

5. The proposed development is not expected to generate additional vehicular traffic nor, as a result, demand additional on-site vehicular parking due to its exclusively water-oriented nature.

   
   

6. The proposed development does not include provisions for additional outdoor lighting.

   
   

7. The proposed development includes provisions for a five-year water quality monitoring program which contains adequate recommendations for spill containment, including provision of a containment kit and use of absorbent carpeting on the dock surface, as well as corrective measures to be undertaken by the applicant in the event of water quality deterioration.

8. Coordination with the United States Environmental Protection Agency is necessary to insure that the proposed water quality monitoring program follows the guidelines of this agency.

   
   

9. The proposed development is located in the vicinity of a designated critical habitat of the American crocodile, and the presence of the West Indian manatee in the area is documented.

   
   

10. The Florida Game and Fresh Water Fish Commission and the United States Fish and Wildlife Service have offered recommendations to mitigate the secondary impacts of the proposed development on these species of endangered wildlife, including the installation of an educational display and restrictions on the provision of additional marina facilities.

    
    

11. Additional conditions and restrictions are appropriate and may be imposed pursuant to sections 9.5-61 and 9.5-63 of the Monroe County Code, Land Development Regulations. Limitations are particularly necessary to minimize the impacts of the proposed development upon neighboring residential uses and the canal, in consideration of the water-oriented nature of the use.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter of and parties to this action pursuant to sections 9.5-535 and 9.5-536, article XIV, Monroe County Code, Land Development Regulations.

    
    

13. The application of Egan Adams for a major conditional use permit for a marine fueling facility complies with all applicable Monroe County land development regulations.

    
    

14. Section 9.6-61 of the Monroe County Code, Land Development Regulations, provides:

Conditional uses are those uses which are generally compatible with the other land uses permitted in a land use district but which require individual review of their location, design and configuration and the imposition of conditions in order to ensure the appropriateness of the use at a particular location

It is necessary in this case to impose conditions to ensure the appropriateness of the marine fueling facility at the location proposed.

WHEREFORE, the application for the requested conditional use permit is APPROVED subject to the following conditions:

1. The improvements, as requested by the applicant, shall be strictly limited to one 12'8" x 13' wooden dock, one 16'4" x 9' wooden dock, and one marine fueling pump. These facilities shall accommodate no more than two boats at a time. Any change to this described development will require additional approval, through the appropriate type of development review.

   
   

2. No commercial liveaboard uses or boat storage shall be authorized on this site. The applicant shall record a deed restriction containing this condition.

3. No boat ramps or boat lifts shall be authorized on this site. The applicant shall record a deed restriction containing this condition.

   
   

4. An approved informational/educational exhibit containing information about the American crocodile and West Indian manatee, their status as species of endangered wildlife, the effects of boating on their populations and habitats, and safe boat fueling and boating practices shall be installed at an approved location on or near the boat docks.

   
   

5. An approved informational sign shall be installed in the area of the docks informing all patrons of the need to preserve and respect the privacy of residents along the canal. Such sign shall include admonitions to persons using the facility to minimize the volume of music and oral communications and the use of lights.

   
   

6. No loudspeakers, whether for music or oral communication, shall be installed at the site.

   
   

7. In the interest of safety, on-site outdoor lighting is not precluded, but it shall be restricted to cutoff, business related uses only and shall not be directed in any way toward adjacent residential areas. In addition, other reasonable restrictions upon the installation, design, and location of on-site outdoor lighting may be imposed, and review and approval by the Monroe County planning staff will be required. Therefore, a detailed plan for the installation, design, and location of any proposed outdoor lighting fixtures shall be submitted for review and approval to the Planning Department prior to the issuance of a building permit.

   
   

8. No additional opening shall be created in the opaque fence along the canal.

   
   

9. Any permits, or exemption letters issued in lieu of permits, that may be required by the Army Corps of Engineers and/or the Department of Environmental Protection for the docks shall be obtained and submitted to the county prior to the issuance of a building permit.

   
   

10. The water quality monitoring plan, as amended, submmitted by the applicant shall be implemented. Water quality testing in the canal shall take place quarterly beginning at the time of issuance of building permits for the structures and shall be conducted pursuant to the monitoring program. The results of testing shall be provided to the County within one month of completion.

    
    

11. Absorbent carpeting shall be installed on the docks. It shall be non- flammable, and the type and installation of the carpeting shall comply with the requirements of the Florida Accessibility Code for Building Construction.

    
    

12. A spill containment kit, which shall include absorbent pads and flotation booms, shall be present at all times on or in the vicinity of the docks, and all personnel of the convenience store and gas station located on the property shall be trained in the appropriate use of the spill containment kit.

    
    

13. The applicant shall make provision for monitoring the marine fueling area either through the use of a remote electronic system or an on-site attendant to ensure proper use of the facility.

14. The hours of operation of the marine fueling facility shall be limited to the hours from 8:00 a.m. until dusk.

Pursuant to section 9.5-540(c), Monroe County Code, Land Development Regulations, this final order is "the final administrative action of Monroe County." It is subject to judicial review by petition for writ of certiorari to the appropriate circuit court.

DONE AND ORDERED this 20th day of December, 1996, in Tallahassee, Leon County, Florida.

PATRICIA HART MALONO

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUMCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 1996.

COPIES FURNISHED:

James Hendrick, Esquire Morgan and Hendrick Post Office Box 1117

Key West, Florida 33041

Gail Moro

Planning Commission Coordinator County of Monroe

2978 Overseas Highway

Marathon, Florida 33050

Garth Coller

Planning Commission Counsel County of Monroe

2978 Overseas Highway

Marathon, Florida 33050

Andrew M. Tobin, Esquire Mattson and Tobin

Post Office Box 586

Key Largo, Florida 33037

Henson and Henson, Inc. 106580 Overseas Highway Key Largo, Florida 33037

Egan Adams

159 Dubonnet

Tavernier, Florida 33070

Docket for Case No: 96-001717

Orders for Case No: 96-001717