STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

H. COMAN MUNROE and LORRAINE W. ) MUNROE, )

)

Appellants, )

)

vs. ) Case No. 96-2660VR

)

COUNTY OF MONROE, )

)

Appellee, )

)

and )

)

JAMES BRUCE and LEE DUXTAD, )

)

Intervenors. )

)

FINAL ORDER

Pursuant to notice, oral argument was held in this case by telephone conference call on November 20, 1997, before Michael M. Parrish, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Appellants: Kirk W. Munroe, Esquire

200 South Biscayne Boulevard, Suite 3100 Miami, Florida 33131-2317

For Appellee: Ralf G. Brookes, Esquire

Morgan & Hendrick Post Office Box 1117

Key West, Florida 33041

For Intervenors: Franklin D. Greenman, Esquire

Greenman & Manz

Gulfside Village Shopping Center 5700 Overseas Highway, Suite 40

Marathon, Florida 33050

STATEMENT OF THE ISSUE

The issue in this case is whether Resolution No. P9-96 of the Monroe County Planning Commission should be affirmed, reversed, or modified.

PRELIMINARY STATEMENT

A succinct description of the background and history of this case is contained in the Appellants' Initial Brief at pages

1 through 5, which includes the following:

This is the second development order for the same parcel of land.

In 1989, the Planning Director granted minor conditional use approval in Development Order No. 13-89. Volume 1, page 67, of the Record on Appeal. By resolution, the Planning Commission supported the issuance of this development order. 1 at 67 & 32.

Appellants and others appealed this decision to the Board of County Commissioners of Monroe County, Florida ("BOCC"), sitting as a Board of Appeals. Id. On January 29, 1992, by Resolution No. 074-1992, the BOCC granted the appeal and overturned Development Order No. 13-89. 1 at 67-69 & 32. In finding that "the requirements of basic minor conditional use have not been adhered to," the BOCC specifically found, inter alia, that

the record affirmatively reflected that the proposed project was not consistent with the purposes, goals and objectives pursuant to the requirements of Sec. 9.5-65(a), Monroe County Code; and [that]

the project failed to be consistent with the local community character as required by Sec. 9.5-65(b), Monroe County Code, in that the proposed development was a structure for multiple occupancy although surrounded by single-family residences which dominate the community

character. . . .

1 at 67-68.

The same property owners herein, Messrs.

Bruce and Duxstad, under the name Inn Resorts, Inc., sought certiorari review of this BOCC decision against them in the Circuit Court of the Sixteenth Judicial Circuit, in and for Monroe County, Florida, in the case entitled, Inn Resorts, Inc. v. Board of County Commissioners of Monroe County, Florida, Case No. 92-20-067-CA-18.

1 at 32 & 11. The Circuit Court denied relief to Inn Resorts. 1 at 32-39. In its order, the Court stated, inter alia,

1. The stated purpose of the SC district is: "to establish areas for commercial uses designed and intended primarily to serve the needs of the immediate planning area in which they are located. This district should be established at locations convenient and accessible to residential areas without the use of U.S. l." s. 9.5-206, Code.

   
   

2. Section 9.5-201 of the Code states that "All development within each land use district shall be consistent with the purposes stated for that land use district" (Emphasis added).

   
   

3. The record shows that the proposed use is designed and intended to "allow tourists to come into our Keys", rather than to serve the needs of the immediate planning district. . . . Nothing in the record tends to establish that the proposed use is consistent with the purpose of the SC District.

   
   

4. The record supports the BOCC's determination that the purposed use, as described by the applicant, is not consistent with the purposes of the SC District.

   
   

5. The Board correctly determined that the decisions of the Planning Department and Planning Commission departed from the express requirements of secs. 9.5-65,

9.5-201 and 9.5-206 of the Code. . . .

1 at 37-38.

Inn Resorts petitioned the Court for a modification of the order to permit a remand of the matter back to the Planning Director "to allow plaintiff to furnish additional information or to amend its application to comply with the County's Land Use Plan."

1 at 29-30. The Court agreed and modified its order by replacing the last paragraph with the following:

Accordingly, based on the record below, IT IS ADJUDGED that the Court does hereby remand INN RESORTS' application for a minor conditional use permit to the planning director for the purpose of allowing INN RESORTS to amend its application.

With a reduced project proposal, Messrs. Bruce and Duxtad (Inn Resorts, Inc.) again sought minor conditional use approval for the same parcel in 1995. 1 at 17.

On July 7, 1995, the Planning Director granted Minor Conditional Use Development Order #11-95. 1 at 11-15. The Planning Director made specific findings of fact which included the following:

3. The proposed project is consistent with Section 9.5-206, Land Use Development Regulations, because it is not designed as, nor does it have the amenities of, a resort which would attract and keep large numbers of tourists. The small number of rooms in the hotel, the lack of other commercial uses, such as restaurants and lounges, on the project site and the minimal scale of the project indicate that the proposed project is not designed for the tourist but will primarily serve the needs of the immediate planning area. . . .

. . .The hotel needs of the planning area would typically include guests of residents that could not be accommodated in a home and associates and customers of the local businesses. Hotel guests such as these, who are not seeking a full-service resort

atmosphere, would be inclined to stay at the proposed hotel

* * *

8. The proposed development is consistent with the community character of the immediate area which is determined to be a mixture of residential and commercial uses. . . .

1 at 12-13.

Appellants and others appealed the Planning Director's approval to the Planning Commission. 1 at 1-3.

Following a hearing held on February 23, 1996, the Planning Commission denied the appeal to revoke the development order by written Resolution No. P9-96 entered on April 8, 1996.

The Planning Commission's written Resolution P9-96 reads as follows:

RESOLUTION NO. P9-96

A RESOLUTION BY THE MONROE COUNTY PLANNING COMMISSION DENYING THE APPEAL FILED BY COMAN AND LORRAINE MUNROE TO REVOKE DEVELOPMENT ORDER NO. 11-95 ISSUED TO JAMES BRUCE AND LEE DUXSTAD (INN RESORTS) ON PROPERTY DESCRIBED AS LOTS 8, 9, 10, 11, AND 12, BLOCK 5, SEASIDE SUBDIVISION, SECTION 14, TOWN SHIP 62 SOUTH, RANGE 38 EAST, TALLAHASSEE MERIDIAN, KEY LARGO, MONROE COUNTY, FLORIDA, MILE MARKER 95, THE LAND USE DESIGNATION IS SUBURBAN COMMERCIAL (SC) AND THE REAL ESTATE NUMBERS ARE 00492320, 00492320-000100,

00492340, AND 00492350.

WHEREAS, the Monroe County Planning Commission during a regular session held on February 23, 1996, conducted a public hearing on an appeal by Coman and Lorraine Munroe requesting that the Planning Commission revoke Development Order No. 11-95 issued to James Bruce and Lee Duxstad (Inn Resorts) on

property described as Lots 8, 9, 10, 11, and

12, Block 5, Seaside Subdivision, Section 14, Township 62 South, Range 38 East, Tallahassee Meridian, Key Largo, Monroe County, Florida, Mile Marker 95, the Land Use Designation is Suburban Commercial (SC) and the Real Estate numbers are 00492320, 00492320-000100,

00492340, and 00492350; and

WHEREAS, the Planning Commission was presented with information via the following:

1. The arguments by both Attorneys, Kirk Munroe, appellant's counsel, and Frank Greenman, counsel for James Bruce and Lee Duxstad; and

   
   

2. The exhibits submitted by Mr. Coman Munroe and Ms. Maria Brandvold, a real estate appraiser; and

   
   

3. The sworn testimony of Mr. and Mrs. Coman Munroe, Stuart Munroe, Ms. Petra Schwartze, an architect, Mr. David deHaas, Ms. Maria Brandvold, Ms. Antonia Gerli, Development Review Coordinator and Mr. Bill Miller, Environmental Planner; and

WHEREAS, the Planning Commission has made the following Findings of Fact:

1. Based upon the Monroe County Code, Section 9.5-65 (a), the conditional use, as approved, is consistent with the purposes, goals, objectives, and standards of the plan and this chapter; and

   
   

2. Based upon the Monroe County Code, Section 9.5-65 (b), the conditional use, as approved, is consistent with the community character of the immediate vicinity of the parcel proposed for development; and

   
   

3. Based upon the Monroe County Code, Section 9.5-65 (d), the proposed use will not have an adverse effect on the value of surrounding properties; and

   
   

4. Based upon the Monroe County Code, Section 9.5-65 (e), the proposed use will not

   have an adverse effect on public facilities and services, including but not limited to roadways, park facilities, police and fire; and

   
   

5. Based upon the Monroe County Code, Section 9.5-286, Shoreline Setback, the proposed development complies with all setback requirements; and

   
   

6. Based upon the Monroe County Code, Section 9.5-294, the proposed development complies with the Wastewater Treatment criteria; and

   
   

7. Based upon the Monroe Code, Section 9.5-351, the project complies with the Off- Street Parking requirements; and

   
   

8. Based upon the Florida Keys Comprehensive Plan, Section 12-111 B-1, the proposed development complies with the density requirements; and

   
   

9. Based upon the Monroe County Code, the applicant shall transplant or replace the Bay Cedars which exists on the site; and

   
   

10. The appellants have not met their burden of proof by showing that the original approval was in error; NOW THEREFORE

    
    

    BE IT RESOLVED BY THE PLANNING COMMISSION OF

    MONROE COUNTY, FLORIDA, that the preceding Findings of Fact and Conclusions of Law, support their decision to:

    
    

    1. DENY the Administrative Appeal filed by Coman and Lorraine Munroe to revoke the Development Order No. 11-95 issued to James Bruce and Lee Duxstad (Inn Resorts) on property described as Lots 8, 9, 10, 11, and 12, Block 5, Seaside Subdivision, Section 14, Township 62 South, Range 38 East, Tallahassee Meridian, Key Largo, Monroe County, Florida.

PASSED AND ADOPTED by the Planning Commission of Monroe County, Florida, at a

regular meeting held on the 23rd day of February, 1996.

On or about May 6, 1996, the Munroes filed a timely application for an Administrative Appeal of a Planning Commission Decision to a Hearing Officer pursuant to the Hearing Officer Appellate Article (Article XIV) of the Monroe County Code. On the application form, the Appellants indicated that the "decision being appealed" was Resolution No. P9-96 of the Monroe County Planning Commission.

By letter dated May 31, 1996, and received on June 4, 1996, the Munroes' appeal was referred to the Division of Administrative Hearings for the assignment of an Administrative Law Judge to serve as a hearing officer to hear the appeal.

On August 1, 1996,1 the Munroes filed their Initial Brief. In their Initial Brief, the Munroes advanced arguments on three "issues," which arguments they summarized as follows:

SUMMARY OF ARGUMENT ONE

The Planning Commission's finding of fact, that the proposed project is not designed as a resort for tourists but rather primarily to serve the needs of the immediate planning area, is not supported by competent substantial evidence. (Emphasis in original.)

Appellants agree, if the proposed project is not designed as a resort but rather primarily to serve the needs of the immediate planning area, it is consistent with both the purpose of the SC District and the community character of the immediate neighborhood. The converse, however, also is true. If the

proposed project is designed as a resort to primarily serve the needs of the outsider/tourist and not those of the immediate planning area, it is not consistent with either the purpose of the SC District or the community character of the immediate neighborhood.

The Development Order in question, and presumably the Planning Commission (see Argument Three), specifically bases this consistency conclusion on a finding of fact that the proposed project was not designed as a resort for tourists but rather primarily to serve the needs of the immediate planning area. Again, the Appellants do not challenge the conclusion, if the finding of fact is accurate. If, on the other hand, the factual foundation for the conclusion is not accurate, and indeed the opposite is true, the conclusion must fall.

The factual finding, that the proposed project is not designed as a resort for tourists but rather to primarily serve the needs of the immediate planning area, is not supported by competent substantial evidence in the record. Indeed, the competent substantial evidence in the record supports the opposite conclusion: the proposed project is designed as a resort for tourists and not to primarily serve the needs of the immediate planning area.

TWO

The Planning Commission' s failure to consider the impact of the proposed project on the adequacy of the public facilities and services relating to traffic constitutes a departure from the essential requirements of law. (Emphasis in original.)

The Planning Commission refused to consider the adequacy of public facilities issue in the context of the surrounding properties and neighborhood. It refused to consider the impact of the proposed project on the existing traffic and parking problems in the

neighborhood. It refused to address the correct issue: Will the proposed use have an adverse effect on the public facilities and services? Instead, the Planning Commission considered the adequacy of public facilities issue in isolation. It considered only the adequacy of public facilities to serve the proposed project without taking into consideration the existing conditions in the area. This interpretation of the public facilities standard for a conditional use is legally incorrect. As a consequence, the Planning Commission did not consider all legally required standards and criteria.

This failure constitutes a departure from the

essential requirements of the law.

THREE

The Planning Commission's failure to make adequate findings of fact in its order constitutes a departure from the essential requirements of law. (Emphasis in Original.)

The Planning Commission's order contains no findings of fact and merely makes general conclusions in the language of the Code.

This is a departure from the essential requirements of law.

Monroe County filed an Answer Brief on September 16, 1996, and the Intervenors filed their Answer Brief on September 17, 1996. On October 1, 1996, the Intervenors filed a motion seeking leave to supplement their Answer Brief in order to address an issue in Monroe County's Answer Brief. Along with the motion, the Intervenors also filed their Supplement to Answer Brief. The motion was granted.

The Munroes filed their Reply Brief on October 15, 1996, and on October 17, 1996, Monroe County filed a Reply to Inn Resorts Supplement to Answer Brief.

On November 4, 1997, an Order Scheduling Oral Argument was issued, in which the parties were advised that oral argument would be heard by telephone conference call beginning at

1:00 p.m. on November 20, 1997. Oral argument was heard on November 20, 1997, as scheduled.

DISCUSSION

By means of this appeal, the Munroes are challenging the decision of the Planning Commission, memorialized in Planning Commission Resolution P9-96, to "DENY the Administrative Appeal filed by Coman and Lorraine Munroe to revoke the Development Order No. 11-95 issued to James Bruce and Lee Duxstad (Inn Resorts) on property described as Lots 8, 9, 10, 11, and 12,

Block 5, Seaside Subdivision, Section 14, Township 62 South, Range 38 East, Tallahassee Meridian, Key Largo, Monroe County, Florida."

Disposition of the issues raised by the parties requires that attention be given to several provisions of the Monroe County land development regulations. Attention is directed first to the following definitions, which appear as part of Section

9.5-4 of the regulations:

(A-2) Accessory uses or Accessory structures means a use or structure that is subordinate to and serves a principal use or structure; is subordinate in area, extent and purpose to the principal use or structure served; contributes to the comfort, convenience or necessity of occupants of the principal use or structure served; and is located on the same lot or on contiguous lots

under the same ownership and in the same land use district as the principal use or structure. . . .

* * *

(D-5) Destination resort means a planned development containing one (1) or more hotels as a principal use with accessory uses that provide on-site recreational, commercial and entertainment opportunities of a magnitude sufficient to attract visitors and tourists for tenancies of three (3) or more days.

Other relevant provisions of the land development regulations include the following:

Sec. 9.5-61. Purpose.

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.

* * *

Sec. 9.5-65. Standards applicable to all conditional uses.

When considering applications for a conditional use permit, the director of planning and the planning commission shall consider the extent to which:

1. The conditional use is consistent with the purposes, goals, objectives and standards of the plan and this chapter;

2. The conditional use is consistent with the community character of the immediate vicinity of the parcel proposed for development;

3. The design of the proposed development minimizes adverse effects, including visual impacts, or (sic) the proposed use on adjacent properties;

4. The proposed use will have an adverse effect on the value of surrounding properties;

5. The adequacy of public facilities and services, including but not limited to roadways, park facilities, police and fire protection, hospital and Medicare services, disaster preparedness program, drainage systems, refuse disposal, water and sewers, judged according to standards from and specifically modified by the public facilities capital improvements adopted in the annual report required by this chapter;

6. 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;

7. The development will adversely affect a known archaeological, historical or cultural resource;

8. Public access to public beaches and other waterfront areas is preserved as a part of the proposed development; and

9. The proposed use complies with all additional standards imposed on it by the particular provision of this chapter authorizing such use and by all other applicable requirements of the Monroe County Code.

* * * Sec. 9.5-67. Conditions.

The director of planning or the planning commission may attach such conditions to a conditional use permit as are necessary to carry out the purposes of the plan and to prevent or minimize adverse effects upon other property in the neighborhood, including but not limited to limitations on size, bulk and location; requirements for landscaping, lighting and provision of adequate ingress and egress and off-site but project-related improvements; duration of the permit; hours of operation; and mitigation of environmental

impacts. The planning commission or the director of planning may attach a condition requiring submission and approval of a final development plan pursuant to section 9.5-70 before development is commenced for either a minor or major conditional use.

* * *

Sec. 9.5-206. Purpose of the Sub Urban Commercial District (SC).

The purpose of the SC district is to establish areas for commercial uses designed and intended primarily to serve the needs of the immediate planning area in which they are located. This district should be established at locations convenient and accessible to residential areas without use of U.S. 1.

* * *

Section 9.5-235. Sub Urban Commercial District.

* * *

(b) The following uses are permitted as minor conditional uses in the Sub Urban Commercial District, subject to the standards and procedures set forth in article III, division 3:

* * *

(5) Hotels of fewer than twenty-five (25) rooms provided that:

1. The use is compatible with established land uses in the immediate vicinity; and

2. One (1) or more of the following amenities are available to guests:

   1. Swimming pool;

   2. Marina; or

   3. Tennis courts.

* * *

Sec. 9.5-256. Aggregation of development.

Any development which has or is a part of a common plan or theme of development or use, including but not limited to an overall plan of development, common or shared amenities, utilities or facilities, shall be aggregated for the purpose of determining permitted or authorized development and compliance with each and every standard of this chapter and for the purpose of determining the appropriate form of development review.

At this point it is also helpful to take note of a few basic principles of law that are applicable in cases of this nature.

In an appeal from Planning Commission action, a hearing officer may reject or modify challenged findings of fact only in accordance with Section 9.5-540(b) of the Monroe County Code, which provides, in pertinent part, as follows:

The hearing officer's 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 proceedings before the planning commission on which the findings were based did not comply with the essential requirements of law.

In determining whether contested findings are "based upon competent substantial evidence," within the meaning of Section 9.5-540(b) of the Monroe County Code, reference should be made to the following excerpt from De Groot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957):

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."

Further, a hearing officer, acting in his appellate review capacity, is without authority to reweigh conflicting testimony presented to the Planning Commission and to substitute his judgment for that of the Planning Commission on the issue of credibility. See Shaw v. Shaw, 334 So. 2d 13, 16 (Fla. 1976); Citibank, N.A. v. Julien J. Studley, Inc., 580 So. 2d 784, 785-86 (Fla. 3d DCA 1991), Haines City Community Dev. v. Heggs, 658

So. 2d 523, 530 (Fla. 1995).

In addition, it must be remembered that: "A decision if correct can, of course, be supported on grounds other than those assigned by the [lower tribunal]." City of Miami Beach v. 8701 Collins Ave., Inc., 77 So. 2d 428, 430 (Fla. 1954).

The central thesis of the first argument presented by the Appellants is that there is an absence of competent substantial evidence to support the factual finding that "the proposed project is not designed as a resort for tourists but rather to primarily serve the needs of the immediate planning area." In this regard, the Development Review Committee included in its findings of fact:2

3. The proposed project is consistent with Section 9.5-206, Land Development Regulations, because it is not designed as, nor does it have the amenities of, a resort which would attract and keep large numbers of tourists. The small number of rooms in the hotel, the lack of other commercial uses, such as restaurants and lounges, on the project site and the minimal scale of the project indicate that the proposed project is not designed for the tourist but will primarily serve the needs of the immediate planning area. In addition, the project site is located off of US 1 and will not attract pass-by traffic; and

Based on 1990 census data, Planning Area 34 contains approximately 2,000 housing units.

Based on information submitted by the applicant, Planning Area 34 contains approximately 50 commercial businesses including three small motels and two destination resorts. The hotel needs of the planning area would typically include guests of residents that could not be accommodated in a home and associates and customers of the local businesses. Hotel guests such as these, who are not seeking a full-service resort atmosphere, would be inclined to stay at the proposed hotel; . . . .

There is competent substantial evidence in the record to support the relevant findings quoted immediately above. Such being the case, the record is sufficient to support the ultimate

finding that the proposed project is consistent with the land development regulations. This consistency is shown in part by the fact that customers of Snappers, an existing business in the immediate planning area, often have a need for overnight lodging. The proposed project, which will be next door to Snappers, will fill that need, as well as the other needs mentioned by the Development Review Committee.3

The central thesis of the second argument presented by the Appellants is that the Planning Commission departed from the essential requirements of law when it "refused to consider the impact of the proposed project on the existing traffic and parking problems in the neighborhood." This argument fails because the evidence clearly shows that the proposed project will not be the source of any traffic and parking problems. The record supports a conclusion that the existing traffic and parking problems, and such problems to be anticipated in the future, are, and will be, attributable to activities at Snappers. Such problems, present and anticipated, are not attributable to the proposed project and are not an appropriate basis upon which to deny the proposed project. Rather, such problems appear to be traffic law enforcement issues that should be brought to the attention of the law enforcement officers charged with the enforcement of motor vehicle traffic regulations.4

The central thesis of the Appellants' last argument is that the Planning Commission departed from the essential requirements

of law by failing to make adequate findings of fact. In support of this argument the Appellants rely on Irvine v. Duval County Planning Commission, 466 So. 2d 357, 364 (Fla. 1st DCA 1985) (Zehmer, J., dissenting), reversed, 495 So. 2d 167 (Fla. 1986) (adopting J. Zehmer's dissent), adopted after remand, 504 So. 2d 1265 (Fla. 1st DCA 1986). The Irvine requirements regarding findings of fact in cases of this nature appear to have been diluted in the more recent decision in Board of County Commissioners of Brevard County v. Snyder, 627 So. 2d 469 (Fla. 1993), where the court observed, at 476:

While they may be useful, the board will not be required to make findings of fact. However, in order to sustain the board's action, upon review by certiorari in the circuit court it must be shown that there was competent substantial evidence presented to the board to support its ruling.

While it would have been helpful for the Planning Commission to have made more extensive and detailed findings of fact, under Snyder, supra, such is not required. The record in this case contains competent substantial evidence sufficient to support the Planning Commission's ruling. Accordingly, the Snyder standard has been met.

DECISION ON APPELLANTS' APPEAL

In view of the foregoing, Resolution No. P9-96 of the Monroe County Planning Commission is hereby 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 18th day of June, 1998, in Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 18th day of June, 1998.

ENDNOTES

1/ The Appellants requested, and were granted, an extension of time within which to file their Initial Brief. Ultimately, extensions of time for the filing of briefs were requested by, and granted to, all parties.

2/ Although the full text of the findings of fact of the Development Review Committee was not repeated in the written resolution of the Planning Commission, at the conclusion of the hearing on the matter, the vote of the Planning Commission included a vote "to adopt the findings of fact contained in the staff report." (See page 467 of the record.)

3/ The fact that some or all of the Snappers customers in need of lodging may be tourists does not detract from whether the proposed project would serve the "needs of the immediate planning area" in which it is located. Those customers, tourist or not, are already coming to the immediate planning area and have lodging needs while they are there. Thus, to the extent the proposed project addresses those needs, it will be serving "the needs of the immediate planning area."

4/ In its Answer Brief, the County suggests the possibility of remanding this case for further consideration under Section 9.5-

256. The provisions of Section 9.5-256 do not appear to be applicable to a case of this nature, because there is no showing of a "common plan or theme of development or use." The fact that the proposed project and the existing Snappers facility may each be expected to, at least to some extent, be complemented by, and benefited by, the presence of the other, is not sufficient to bring the proposed project within the scope of Section 9.5-256.

COPIES FURNISHED:

Kirk W. Munroe, Esquire

200 South Biscayne Boulevard Suite 3100

Miami, Florida 33131-2317

Ralf G. Brookes, Esquire Morgan & Hendrick

Post Office Box 1117

Key West, Florida 33041

H. Coman and Lorraine W. Munroe

149 Seaside Avenue

Key Largo, Florida 33037

Garth C. Coller

Monroe County Assistant Attorney 2798 Overseas Highway

Marathon, Florida 33050

Gail Moro

Planning Commission Coordinator County of Monroe

2798 Overseas Highway

Marathon, Florida 33050

Franklin D. Greenman, Esquire Greenman & Manz

Gulfside Village Shopping Center 5700 Overseas Highway, Suite 40

Marathon, Florida 33050

Docket for Case No: 96-002660VR

Orders for Case No: 96-002660VR