STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT BOLDERSON and )

ANN BOLDERSON, )

)

Appellants, )

)

vs. ) Case No. 97-4749

)

COUNTY OF MONROE, )

)

Appellee. )

)

FINAL ORDER

Pursuant to notice, oral argument was held in this case by telephone conference call on February 16, 1998, before Stuart M. Lerner, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Appellants: David R. Spitznagel, Esquire

99228 Overseas Highway Key Largo, Florida 33037

For Appellee: Garth Coller, Esquire

Monroe County

Office of the Land Use Attorney 2798 Overseas Highway, Suite 440

Marathon, Florida 33050-2227 STATEMENT OF THE ISSUE

Whether Resolution No. P54-97 of the Monroe County Planning Commission should be affirmed, reversed or modified.

PRELIMINARY STATEMENT

The Boldersons own three contiguous lots (specifically Lots 2, 3 and 9 on Block 1, and hereinafter referred to

collectively as the "Property") in Lime Grove Estates, a residential subdivision in Key Largo that for land use purposes has been designated an Improved Subdivision, in which commercial uses are prohibited. There is a residential structure (Building) on the Property. The Boldersons desire to conduct their antique business from the Building, as well as use it as their residence.

The Boldersons purchased the Property from the Fryes. The sale was consummated on June 16, 1997.

The Building served as the Fryes' residence. A portion of the home was devoted to Mr. Frye's knife sharpening business.

Before selling the Property to the Boldersons, the Fryes, through their realtor, requested the Monroe County Planning Department (Planning Department) to advise them as to whether a "new business," specifically an antique store, could be established on the premises. Antonia Gerli, the Planning Department's Development Review Coordinator, responded to the inquiry by writing a letter to the Fryes, which was dated

April 30, 1997, and read, in pertinent part, as follows:

This letter is in response to a fax addressed to me by your realtor, Suzanne McCallum, concerning a new business on your property which is zoned Improved Subdivision (IS).

Although you have operated a knife sharpening business out of the downstairs portion of your residence for more than 14 years, and you were issued an occupational license by the Tax Collector's Office, there is no evidence that this use was ever legally permitted by the Building and Zoning Department.

On January 4, 1996, Monroe County's 2020 Comprehensive Plan was approved by the Governor and Cabinet. Under the plan, no commercial use whatsoever is allowed in the IS land use district, and any existing legally permitted commercial uses are considered non-conforming. If the sharpening business had been legally permitted it would now constitute a nonconforming use.

You have the right to appeal this decision. . . .

After conferring with the Planning Department's Director of Growth Management, Gerli, on May 5, 1997, sent a second letter to the Fryes, which read as follows:

This letter is in response to a fax addressed to me by your realtor, Suzanne McCallum, concerning a new business on your property which is zoned Improved Subdivision (IS).

After my letter denying the use of your property for an antique store, the Planning Department established a new internal policy that will provide relief for your situation.

Since your business commenced prior to 1986, you are entitled to retain a low-intensity commercial retail use on the property.

Therefore, if the property is purchased by a buyer who wishes to establish another low- intensity commercial use, in this case an antique store, the County will recognize that the new use may continue as a legal nonconforming use.

However, if the use is destroyed or abandoned, it may not be reestablished and may be replaced only by a use that is permitted in the Improved Subdivision land use district.

On May 23, 1997, the Fryes' neighbors, the Padfields, filed an Application for Administrative Appeal to Planning Commission (Application). On the Application form, the Padfields indicated,

among other things, that the "decision being appealed" was the "change of business use on Lots 2, 3, & 9, Blk. 1, Lime Grove Estates." Appended to the Application form was a narrative statement, which read as follows:

Subject: Planning Department's Plantation Key Office "new internal policy" granting new use of Lime Grove Estates property known as lots 2, 3 and 9 as "antique retail sales" from previous "knife sharpening service."

The residents of Lime Grove Estates, knowing of the planned sale and use of lots 2, 3 and 9, Blk 1 (IS zoned), as a retail sales antique business object to and are grieved by said action and the fact that an antique business of any kind has never been in operation at the aforementioned location.

Mr. Frye, without notice to any of his neighbors has, for the purpose of sale of aforementioned property, applied and been granted, by "a new internal policy" a change of license from knife sharpening service to antique retail sales. A business he nor anyone else has ever conducted on [the]aforementioned property.

Mr. Frye, a disabled veteran of senior citizen standing[,] was permitted to operate a knife sharpening service from his home. No one wished to object to his attempt to pursue a living from his home that had little, if any, impact on his neighbors. We are grieved that he would not return such concern now that he is leaving our community.

We, the residents of Lime Grove Estates, specifically William and Jeanette Padfield, adjacent property owners, are pursing a legal course of action to halt the abuse of our rights. Having been counselled, it is apparent several improprieties, as referred to, exist.

We are also concerned that said business would require parking facilities on US 1

A/K/A Overseas Highway and Redbird Road with egress and exit openings. Said openings and increased traffic would create hazardous conditions.

Therefore, we pray our course of action will prevent the subject property being used in violation of laws, codes[,] etc. of Monroe County and the State of Florida.

The property owners of Lime Grove Estates have continually invested their lives and resources in the enhancement of properties. We will continue to protect the domestic residential tranquillity of our neighborhood at all cost, pursuing the issue to the fullest extent, allowed by law.

This was never legally permitted by the zoning Dept. when Mr. Frye opened his knife sharpening service.

There are no more commercial uses permitted in I.S. zones as of Jan. 1996.1

The Padfields' appeal was heard by the Monroe County Planning Commission (Planning Commission) at the Planning Commission's July 23, 1997, meeting. At the hearing, witnesses gave sworn testimony, documents were offered and received into evidence, and arguments were presented.

Following the presentation of evidence and argument, a vote was taken among the Planning Commission members present. The vote was four-to-one in favor of sustaining the Padfields' appeal.

The Planning Commission's action was memorialized in Resolution No. P54-97, which provided as follows:

RESOLUTION NO. P54-97

A RESOLUTION BY THE MONROE COUNTY PLANNING COMMISSION APPROVING THE ADMINISTRATIVE APPEAL FILED BY WILLIAM AND JEANETTE PADFIELD CONCERNING ADMINISTRATIVE OPINION RENDERED BY THE PLANNING DEPARTMENT ON MAY 5, 1997, AUTHORIZING A CHANGE IN BUSINESS USE FROM A KNIFE-SHARPENING SHOP TO AN ANTIQUE STORE ON PROPERTY DESCRIBED AS LOTS 2,3, & 9, BLOCK 1, LIME GROVE ESTATES, REAL ESTATE NUMBER 048.

WHEREAS, during a regular meeting held on July 23, 1997, the Monroe County Planning Commission conducted a public hearing of the appeal filed by William and Jeanette Padfield of an administrative opinion rendered by the Planning Department on a change of business use from a knife-sharpening business to an antique store; and

WHEREAS, the Planning Commission was presented with the following evidence, which by reference is hereby incorporated as a part of the record of said hearing:

1. The application for an Administrative Appeal by William and Jeanette Padfield; and

   
   

2. The staff report prepared by Antonia Gerli, Development Review Coordinator, dated June 30, 1997; and

   
   

3. The letter to Mr. and Mrs. Richard Frye, dated May 5, 1997, from Antonia Gerli; and

   
   

4. The letter to Ms. Antonia Gerli, dated May 13, 1997, and to County Commissioner Mary Kay Reich, dated May 19, 1997, from Linnea Sheets; and

   
   

5. The petition signed by neighboring property owners in Lime Grove Estates and other correspondence indicating opposition to allowing change of business use; and

   
   

6. The sworn testimony of Robert Herman, Director of Growth; and

   
   

7. The presentation of the applicants' case by their representative, Attorney John Jabro; and

8. The sworn testimony of witnesses Barry Patterson and Richard LaMarra; and

   
   

9. The sworn testimony of witnesses Jill Patterson, Linnea Sheets, Ed Sheets, Maude Nichols, Adam Koslofsky, Joan Mowery, and Dagny Johnson, representing the Upper Keys Citizens Association; and

   
   

10. The reading of John Hammerstrom's letter by Garth Coller in the record; and

    
    

11. The sworn testimony of Robert and Ann Bolderson, new owners of the subject property; and

    
    

12. The sworn testimony of Richard Venezia, President of the Homeowners Association of Venetian Shores; and

    
    

13. Cross examination of the witnesses by John Jabro and David Spitznagel, Attorney for the Boldersons; and

    
    

14. Closing remarks by Attorneys David Spitznagel and John Jabro.

WHEREAS, the Planning Commission has made the following Findings of Facts and Conclusions of Law based on the evidence and testimony presented:

1. That no record exists of any County approval or permits for the knife sharpening business use formerly conducted on the bottom floor of the residence by the property's previous owners; and

   
   

2. That commercial uses are no longer permitted in the land use district in which the property is located; and

   
   

3. That a non-conforming use is entitled to continue under the Land Development Regulations, subject to limits on its expansion and enlargement, even with a change in ownership of the property; and

4. That the historical extent and identity of business activity conducted on [the] property since the mid-1980's, identified as a knife sharpening business, was of a very limited extent, characteristic more of a home occupation than a full-fledged commercial enterprise.

   
   

5. That the limited extent and intensity of the business activity on the site did not warrant granting it recognition as a non- conforming "deemed" conditional use under the County's Land Development Regulations, even if such use were in existence prior to September 15, 1986; and

   
   

6. That the case for the Planning Department's administrative opinion rendered in its letter of May 5, 1997, recognizing the historical business use on the property as non-conforming was not sufficiently proven; and

   
   

7. That without the designation as a non- conforming "deemed" conditional use for the knife-sharpening business, an antique store or any other commercial use cannot be approved for the subject property; NOW THEREFORE,

BE IT RESOLVED BY THE PLANNING COMMISSION OF

MONROE COUNTY, FLORIDA, that the preceding Findings of Fact and Conclusions of Law, support its decision to APPROVE the appeal filed by William and Jeanette Padfield, overturning the administrative opinion rendered by the Planning Department regarding the change in use on property described as Lots 2, 3, and 9, Block 1, Lime Grove Estates, Key Largo, Monroe County, Florida, Real Estate Number 0485150.

PASSED AND ADOPTED by the Planning Commission of Monroe County, Florida, at a regular meeting held on the 23rd day of July, 1997.

On or about September 3, 1997, the Boldersons filed an 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 Appellant indicated that the "decision being appealed" was Resolution No. P54-97 of the Planning Commission.

On October 10, 1997, the Boldersons' 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 October 21, 1997, the Boldersons filed their Initial Brief. In their Initial Brief, the Boldersons advanced arguments on four "issues," which arguments they summarized as follows:

The Planning Commission erred in passing Resolution No. P54-97 in the following respects:

SUMMARY ISSUE ONE

1. The Planning Commission ruled on an issue that was not the subject matter of the appeal. The subject matter of the appeal was a policy of the Planning Department allowing the new owners of the subject property to continue a nonconforming use (a commercial retail use in the Improved Subdivision Land use district) on the property. This was a county-wide policy affecting all property owners in the same situation as the Boldersons. The Planning Commission ignored the evidence of its own Planning Department, and overruled the administrative opinion rendered by the Planning Department regarding the change in use on the subject property, without substantial evidence. De Groot v. Sheffield, 95 So. 2d 912, Supreme Court of Florida, En Banc. The Planning Department notified the Planning Commission that under the Monroe County Code, there was no change of use on the Frye/Bolderson property. The Planning Commission made a subjective

   decision on the individual property rather than an objective decision on the county-wide policy that was the subject matter of the appeal. The Planning Commission should be reversed.

   
   

   SUMMARY ISSUE TWO

   
   

2. The Planning Department made no appealable finding regarding the Frye/Bolderson property because the change from a knife sharpening business to an antiques business is not a change of use. Monroe County Code Section 9.5-4(D-8)(c) specifically states that a change in use of land or structure from a use within a specified category of use is not development. Monroe County made no decision specifically relating to the Frye/Bolderson property. The Planning Department made an investigation into the Frye/Bolderson property and found that it was in existence prior to 1986. The Application for Administrative Appeal filed by the Padfields states that the decision being appealed was the "Change in Business Use on Lots 2, 3, and & 9, Blk. 1, Lime Grove Estates." According to [the] Monroe County Code there was no change of use, and therefore nothing to be appealed. The appealable issue was the policy that would ensure that older nonconforming structures and uses were afforded equitable treatment in the absence of the ability to legitimately register the nonconformity.2 The Planning Commission failed to act on the appealable issue, the policy, and should be reversed.

   SUMMARY ISSUE THREE

   
   

3. There is no substantial evidence for the Findings of Fact, Paragraphs 4, 5, 6, and 7, in Resolution No. P54-97, approving the Administrative [A]ppeal filed by William and Jeanette Padfield. The Planning Department made an investigation into the use of the Frye/Bolderson property and issued a report stating that the Frye sharpening business had been at this property since before 1986. A substantial amount of testimony, verbally and by affidavit[,] was presented to the Planning

   Commission supporting the fact that this business has been in existence since before 1986. All of this testimony demonstrated that the Frye/Bolderson property satisfied the standards of the Monroe County Code Section 9.5-4(D-8)(c).3 Once Frye/Bolderson met the code criteria for their continued use of the property[,] the burden was upon the Planning Commission to demonstrate, by competent substantial evidence presented at the hearing and made part of the record[,] that continued use did not meet such standards and was in fact, adverse to the public interest. (Irvine v. Duval County Planning Commission, 495 So. 2d 167). The only evidence at the hearing was from complaining neighbors who attended the hearing waiving placards and signs, none of which had done any investigation, and two admitted that they had seen only one room in the lower level of the Frye sharpening business. Once the County Planning Department determined that there was no change of use of the property the burden shifts to the Planning Commission to demonstrate [otherwise] by competent substantial evidence presented at a public hearing and made part of the record. There was no substantial evidence to overturn the Planning Department's finding that there was no change of use on the Frye/Bolderson property, in accordance with the Monroe County Code. The Planning Commission should be reversed.

   SUMMARY ISSUE FOUR

   
   

4. The Planning Commission does not have the authority to grant the Padfields' appeal because of the doctrine of equitable estoppel set out in Hollywood Beach Hotel Corp. v. City of Hollywood, 329 So. 2d 10, Supreme Court of Florida. Both the people who purchased the property and the people that sold the property contacted the Planning Department.(R9) They were told that the County had no jurisdiction of approval or denial and it (the business use) could remain. The letter from Antonia Gerli was relied on by the Boldersons when they closed

their purchase of the Frye property on

June 16, 1997. Mr. and Mrs. Bolderson acting in good faith, based on the May 5, 1997 Planning Department letter, made a substantial change in their position in the purchase of the Fryes' property. The doctrine of equitable estoppel as set out in Hollywood Beach Hotel Company v. the City of Hollywood, Supra, preclude[s] a municipality from exercising its zoning power where a property owner (1) in good faith (2) upon some act or omission of the government (3) has made such a substantial change in position or has incurred extensive obligation and expenses that it would be highly inequitable and unjust to destroy the right he acquired. The Planning Commission should be reversed.

Monroe County filed an Answer Brief on December 15, 1997.4 The Boldersons filed a Reply Brief on December 19, 1997.

Through the issuance, on December 30, 1997, of a Notice of Oral Argument, the undersigned advised the parties that "oral argument in the instant case [would] be held by telephone conference call on February 16, 1998, commencing at 2:00 p.m." Oral argument was heard on February 16, 1998, as scheduled.5

DISCUSSION

On this appeal, the Boldersons are challenging the decision of the Planning Commission, memorialized in Planning Commission Resolution No. P54-97, to ”APPROVE the appeal filed by William and Jeanette Padfield [and thus] overturn[] the administrative opinion rendered by the Planning Department regarding the change in use on property described as Lots 2, 3, and 9, Block 1, Lime Grove Estates, Key Largo, Monroe County, Florida." The "administrative opinion" the Planning Commission "overturn[ed]"

was set forth in the May 5, 1997, letter from Antonia Gerli to the Fryes. In her letter, Gerli advised the Fryes that, pursuant to a "new internal policy" adopted by the Planning Department, Monroe County would allow a buyer who purchased the Property from the Fryes to operate an antique store or "to establish another low intensity commercial use" on the Property. Such use of the property, Gerli stated in her letter, would be viewed by the County as a "legal nonconforming use" inasmuch as the Fryes' knife sharpening business, which the Planning Department had determined constituted a "low intensity commercial use," had "commenced prior to 1986" (when Monroe County's land development regulations became effective).

The Planning Department's "administrative opinion" that use of the Property as an antique store would be a "legal nonconforming use" was appealed to the Planning Commission by the Padfields, next-door neighbors of the Fryes, pursuant to that portion of Section 9.5-142 of the Monroe County Code which provides that the Planning Department's "[e]valuation of nonconformity claims" is "subject to appeal as provided in article XII." Article XII of the Monroe County Code, specifically Section 9.5-521 thereof, authorizes the Planning Commission to "hear and decide" appeals from Planning Department determinations initiated by, among others, an "adjacent property owner."

The Planning Commission properly exercised its authority to

"hear and decide" the Padfields' appeal. Contrary to the assertion made by the Boldersons, it did not "rule[] on an issue that was not the subject matter of the appeal." It is abundantly clear from an examination of the Padfields' Application for Administrative Appeal to Planning Commission and the narrative statement appended thereto that the Padfields were contesting the Planning Department's decision that use of the Property as an antique store would be a "legal nonconforming use" and that they were not merely challenging the "new internal policy" that the Planning Department had applied to reach its decision. In overturning the Planning Department's decision, as it was urged to do by the Padfields, the Planning Commission did not stray beyond the scope of the appeal issues that were before it.

The Planning Commission's reversal of the Planning Department's decision was based upon its assessment of the evidence adduced at the July 23, 1997, Planning Commission meeting concerning the "extent and intensity of the business activity conducted on [the] [P]roperty [by Mr. Frye] since the mid-1980's." The Planning Commission found that such business activity constituted an accessory or secondary use of the Property incidental to its primary use for residential purposes and that it was more in the nature of a "home occupation"6 than a "commercial retail use."7 The Planning Commission therefore concluded that "an antique store or any other commercial use" of the Property would constitute a "change in use" that "cannot be

approved" under the Monroe County Code, Section 9.5-143(e) of which provides as follows:

Change in Use: A nonconforming use shall not be changed to any other use unless the new use conforms to the provisions of the land use district in which it is located.

The Boldersons take issue with the Planning Commission's finding that there would be such "change in use." They contend that a knife sharpening business, like the one Mr. Frye operated, and an antique store are both "commercial retail low-intensity" uses and that therefore the establishment of the an antique store on the Property would constitute neither "development," within the meaning of Section 9.5-4(D-8) of the Monroe County Code, nor a "change in use," within the meaning of Section 9.5-143(e) of the Monroe County Code.

In an appeal from Planning Commission action, a hearing officer may reject or modify challenged findings, such as the "change of use" finding at issue in the instant case, only in accordance with Section 9.5-540(b) of the Monroe County Code, which provides as follows:

Within forty-five (45) days of oral argument, the hearing officer shall render an order which may affirm, reverse or modify the order of the planning commission. 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."

In addition, it must be remembered that 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).

The Planning Commission's finding in the instant case that "an antique store or any other commercial use" of the Property would constitute an impermissible "change in use," within the meaning of Section 9.5-143(e)of the Monroe County Code, was "based upon competent substantial evidence" (primarily in the form of testimony from neighbors and others with information concerning the "extent and intensity of the business activity conducted on [the] [P]roperty [by Mr. Frye]"), and an unassailable interpretation of the pertinent provisions of the Monroe County Code. Furthermore, there is no indication that the Planning Commission's finding was tainted by any procedural error or irregularity.

Although the record reveals that the Planning Department, based upon the information it had available to it, had determined that the establishment of an "antique store" or "another low- intensity commercial use" on the Property would not constitute a "change in use," the Planning Commission was not bound by the Planning Department's finding, nor was it restricted to considering only the information the Planning Department had relied upon in making its determination. The proceeding before the Planning Commission (that the Padfields had initiated by filing their Application for Administrative Appeal to Planning Commission), unlike the instant proceeding before the

undersigned, was a de novo hearing, at which the Padfields and the other participants had the opportunity to present relevant evidence for the Planning Commission's consideration, regardless of whether such evidence had been considered by the Planning Department, and the Planning Commission was free, based upon its assessment of such evidence and its interpretation of the pertinent provisions of the Monroe County Code, to agree with the Padfields and find, contrary to what the Planning Department had determined, that there would be a prohibited "change in use" if an "antique store" or "another low-intensity commercial use" were established on the Property. See Section 9.5-521(e), Monroe County Code("[A] party appealing an administrative decision, determination or interpretation shall be entitled to present evidence and create a record before the planning commission; any appeals before the hearing officer shall be based upon and restricted to the record."); cf. Young v. Department of Community Affairs, 625 So 2d 831, 833 (Fla. 1993)(proceeding initiated by filing "appeal" of development order pursuant to Section 380.07, Florida Statutes, to Florida Land and Water Adjudicatory Commission, is de novo proceeding; "although [S]ection 380.07(2) provides for an 'appeal' of a development order . . . , this term must be interpreted in its 'broadest, non-technical sense . . . to mean merely an application to a higher authority;" "to interpret 'appeal' as used in this statute in its most narrow technical sense would render the statute illogical"); Lagrutta v.

City Council of the City of Stockton, 9 Cal. App. 3d 890, 894-95,

96 Cal. Rptr. 627, 629 (Cal. Ct. App. 1970)("[P]etitioners confuse judicial review of zoning decisions with administrative review (as in the instant case). Judicial review is generally limited in scope. . . . 'Although administrative review is usually called an appeal, in most jurisdictions it is a de novo proceedings in which the entire case is repeated. . . . We know of no reason why the [Stockton city] council should be restricted solely to a review of the record before the [Stockton planning] commission where specific procedures have not been established by ordinance."); Anderson v. Pittenger, 197 Cal. App. 2d 188, 195,

17 Cal. Rptr. 54, 58 (Cal. Dist. Ct. App. 1961)("After the appeal [of the granting of a zoning variance by the West Covina planning commission] was taken [to the West Covina city council], the function of the council was not merely to review the proceedings before the commission and affirm, reverse, or modify the order of the commission. . . . The council was not bound by the findings of the commission. As stated, the hearing before the council must be a public hearing after notice thereof is published.

There is no limitation upon the right of the council to hear new or additional testimony. If the council were bound by the findings of the commission, there would be no point in requiring the council to hold a public hearing. The council is not bound by the findings of the commission or by the testimony before the commission. Under the provisions of the ordinance the council

may hear the matter de novo and make its own determination as to whether the facts are such to require, under the provisions of the zoning ordinance, the granting of the variance.").

Even if the Boldersons were able to demonstrate (which they are not) that the Planning Commission erred in finding that an "antique store" or "another low-intensity commercial use" on the Property would not represent a continuation of a nonconforming use that was in existence prior to the effective date

(September 15, 1986) of Monroe County's land development regulations, reversal of the Planning Commission resolution approving the Padfields' appeal would still not be warranted.8

To be entitled to protection under Article V of the Monroe County Code, a nonconforming use must not only have been in existence continuously since prior to September 15, 1986, it must have been lawful "when established." The burden is on the party seeking the benefit of Article V's protection to prove that the nonconforming use in question was lawfully established. Cf. Hall v. Zoning Board of Appeals of Edgartown, 549 N.E. 2d 433, 438-39 (Mass. App. Ct. 1990)("The plaintiffs have the burden of showing they are entitled to the protection of the statute [relating to nonconforming uses]. . . . They must show, first, that the prior use was lawful. . . . Apart from other requirements for establishing a valid prior nonconforming use, the plaintiffs have not shown that any prior use of their properties, which under the present by-law would be unlawful, was lawful before November of

1982. The plaintiffs have not produced the applicable zoning by- law as it existed at the time of the amendment."); Ianieri v.

Zoning Board of Adjustment of the Township of East Brunswick, 468 A. 2d 1072, 1075-76 (N.J. Super. Ct. 1983)("[A] use must have been legal under a prior zoning ordinance to be a valid nonconforming use. . . . Defendants seek to justify the attempted blanket validation of all uses of property, regardless of their legality, by characterizing it as a 'grandfathering' provision designed to avoid the difficult proof problems presented in establishing valid nonconforming uses. However, placing this burden upon a party who claims a nonconforming use 'comports with the policy of the law not to favor such a use.'"); Province of Meribah Society of Mary, Inc. v. Village of Muttontown, 538 N.Y.S. 2d 850, 852 (N.Y. App. Div. 1989)("A party who raises a claim of a nonconforming use must establish that the use was legally created."); Petti v. City of Richmond Heights, 449 N.E. 2d 768, 769-70 n.1 (Ohio 1983)("'[A] use not permitted by the applicable zoning ordinance when the use was established does not constitute a nonconforming use. . . .' Accordingly, to qualify as a nonconforming use, the use must have been legal when the use as offices was commenced in 1967. Because

appellant argued that his property qualified for a nonconforming use, he had the burden of establishing that it met the requirements necessary to qualify for a nonconforming use.

However, he failed to introduce the zoning ordinance in effect at

the time the use was established."); Worth v. Smeal, 701 A. 2d 997, 998 n.2 (Pa. Commw. Ct. 1997)("A 'legal, non-conforming use' is an activity or structure predating a relevant zoning restriction, the benefit of which is available only for the lawful use which existed on the land when the zoning ordinance took effect. The burden in upon the party proposing the existence of a non-conforming use to prove both its existence and its legality before the enactment of the zoning restriction."); City of Pharr v. Pena, 853 S.W. 2d 56, 63 (Tex. Civ. App.

1993)("An illegal preexisting use of the property at the time that the zoning ordinance is passed, even if the prior illegality is later removed, does not allow the former illegal use to continue as a preexisting nonconforming use."); Town of Sandgate v. Colehamer, 589 A. 2d 1205, 1211 (Vt. 1990)("We will accept for purposes of argument that the storage of junk vehicles is the kind of use protected by the preexisting nonconforming use policy, and we will also assume that such a use cannot be prohibited by a new zoning provision. To achieve this status, however, the landowner (or here, possessor) has the burden of showing that the use was lawful under the zoning provisions before the amendment."). In the instant case, the record is devoid of proof that, had the Fryes used the Property primarily for commercial purposes prior to the September 15, 1986, effective date of the Monroe County land development regulations, such use would have been permitted under the laws in effect at

the time.9 The absence of such proof is fatal to any claim that use of the Property primarily for commercial purposes (such as use as an "antique store" or "another low-intensity commercial use") should now be allowed as a nonconforming use entitled to protection under Article V of the Monroe County Code.

The Boldersons argue that, because they had purchased the Property in reliance upon the Planning Department's "administrative opinion" that such use of the Property would be permissible under Article V of the Monroe County Code, the Planning Commission was equitably estopped from "overturning the administrative opinion." It is true, as the Boldersons point out, that the common law doctrine of equitable estoppel may be applied against a governmental entity such as the Planning Commission, however, such application is warranted "'only in rare instances and under exceptional circumstances. To sustain a claim of estoppel against the state or one of its subdivisions, there must be (1) a representation as to some material fact by the party estopped . . .; (2) reliance upon the representation by the party claiming estoppel; and (3) a change in such party's position caused by his reliance on the representation to his detriment. Furthermore, the [representation] on which the aggrieved party relied must be one on which he had a right to rely.'"10 Monroe County v. Hemisphere Equity Realty, Inc., 634 So. 2d 745, 747 (Fla. 3d DCA 1994), citing, with approval, from Calusa Golf, Inc. v. Dade County, 426 So. 2d 1165, 1167 (Fla. 3d

DCA 1983).

A review of the record in the instant case does not reveal the presence of those "exceptional circumstances" necessary to sustain the Boldersons' estoppel claim. The "representation" upon which the Boldersons claim to have relied was more in the nature of a legal opinion than a statement of fact. It was based upon information provided to the Planning Department concerning the historical use of the Property that (according to the Planning Commission's findings, which are supported by competent substantial evidence and therefore must be accepted) was misleading, inaccurate and/or incomplete and, as a result, it authorized the Fryes and their successors in interest to engage in activity on the Property that would be in violation of the provisions of the Monroe County Code. As the Boldersons should have been aware, the Planning Department's "administrative opinion" was subject to appeal by, among others, adjacent property owners. Such an appeal was filed by the Fryes' next- door neighbors, the Padfields, before the Boldersons purchased the Property from the Fryes. The Padfields' appeal was still pending at the time of the Boldersons' purchase of the Property. Had the Planning Commission, in disposing of the Padfields' appeal, ruled that it was estopped from overturning the Planning Department's "administrative opinion," as the Boldersons now suggest it should have, such action would have unfairly deprived the Padfields, who themselves made no representations to the

Fryes or Boldersons upon which an estoppel claim could be based, of their right under the Monroe County Code to appeal the Planning Department's "administrative opinion." Lastly, the Boldersons have not demonstrated that their reliance on the Planning Department's "administrative opinion" has operated "to [their] detriment." While they may have purchased the Property in reliance upon the "administrative opinion" and may not now, in light of the Planning Commission's decision to "approve" the Padfields' appeal, be able to use the Property in the manner they desire, there is no indication in the record that they have suffered or will suffer any financial loss as a result of the purchase. The record is silent as to the price the Boldersons paid for the Property and the cost of any renovations or other investments they may have made in anticipation of their using the Property as a site for an antique store; nor does the record reveal the current fair market value of the Property. In the absence of any evidence suggesting what the Boldersons would receive if they resold the Property compared to what they have invested in it, it cannot be said that the Boldersons have been financially disadvantaged by their purchase of the Property. For all of the foregoing reasons, the doctrine of equitable estoppel did not bar the Planning Commission from overturning the Planning Department's "administrative opinion." See Department of Revenue v. Anderson, 403 So. 2d 397, 400 (Fla. 1983) ("Another general rule is that the state cannot be estopped through mistaken

statements of the law."); Godson v. Town of Surfside, 8 So. 2d 497, 498-99 (Fla. 1942)("We recognize it as the general rule that a "'building permit issued in violation of law or under mistake of fact may be rescinded, although construction may have commenced.' 9 Am.Jur., Buildings, page 204. By this authority it is stated that some decisions recognize the doctrine of equitable estoppel against the city under certain circumstances but we do not find in this record [which included evidence that the permit applicant had supplied inaccurate information to the issuing authority] a situation which will justify invoking the exception . . . . We conclude the lower court correctly interpreted the evidence and applied the proper legal principles in upholding the action of the city council in stopping any further progress of the work when it was learned by that body that further progress would simply result in a violation of one of the city ordinances, which it was their duty to enforce."); Ammons v. Okeechobee County, 23 Fla. L. Weekly D399 (Fla. 4th DCA February 4, 1998)("Here there is nothing but a simple, rather glaring, mistake by the zoning official, which was completely unauthorized and in violation of the legislative direction through the county's ordinances. Estoppel cannot be asserted against a government entity based upon mistaken statements of law. . . . The appellants were on constructive notice of the contents of the ordinance and are presumed to have constructive knowledge of the nature and extent of the powers of governmental

agents who issue permits. . . . The official did not have the authority to certify compliance with zoning regulations when the ordinance on its face precluded the [commercial] activity [that did not qualify as a home occupation] which the appellants sought to conduct on the [residentially-zoned] property. It would not serve public policy well to permit such mistakes to persist when they affect public welfare, like planning and zoning decisions do. Thus, the official could properly withdraw the unauthorized occupational license."); Monroe County v. Hemisphere Equity Realty, Inc., 634 So. 2d 745, 748 (Fla. 3d DCA 1994)("The

issuance of the second building permit by the Upper Keys Building Department employee was also not sufficient to estop the County from enforcing its two-year build-out ordinance. Generally, estoppel cannot be asserted against a county for an illegally issued permit."); Hillsborough County v. Kortum, 585 So. 2d 1029, 1033 (Fla. 2d DCA 1991)("In 1984, Hillsborough County issued permits to the Kortums for enlarging a septic tank drainfield which extended into the right-of-way. . . . [T]heir applications [however] failed to disclose that the improvements would be constructed on a road right-of-way. We conclude these permits were issued under a mistake of fact. 'When a building permit is issued which is contrary to the law as the result of a mutual mistake of fact, the doctrine of equitable estoppel will not lie.'"); Cordes v. Department of Environmental Regulation, 582 So. 2d 652, 654-55 (Fla. 1st DCA 1991)("[E]ven if such

representation were made, it would have amounted to a mistaken statement of law that could not be used as a basis for applying the principle of equitable estoppel against the Department under the circumstances of this case."); Great Outdoors Trading, Inc. v. City of High Springs, 550 So. 2d 483, 488 (Fla. 1st DCA 1989)("[T]he trial court's determination regarding nonconforming use and equitable estoppel [in this case involving the City's repeal of an ordinance, Ordinance 87-6, pursuant to which the appellant had been granted an alcoholic beverage license] was predicated on the view that the referendum petitions [to repeal Ordinance 87-6] were filed before appellant was issued an alcoholic beverage license. We agree with the trial court's determinations that estoppel would not lie because appellant's actions in securing a license and selling alcoholic beverages on the premises all occurred after the petitions were filed, although Ordinance 87-6 had taken effect."); Nelson Richard Advertising v. Department of Transportation, 513 So. 2d 181, 183 (Fla. 1st DCA 1987)("The present case [involving the revocation, based upon zoning considerations, of previously-issued sign permits] does not meet the above criteria for estoppel.

Appellant's applications for sign permits indicated that the property was zoned 'commercial or industrial.' The property was actually zoned agricultural . . . . Appellant asserts that by the issuance of the permits, DOT implicitly agreed with appellant that the property was zoned 'commercial or industrial.' Even

assuming this to be true, the facts do not satisfy the 'representation' element necessary for estoppel to apply. Appellant submitted erroneous information on the applications, although the hearing officer found there was no evidence that false or misleading information was knowingly supplied. He also told DOT about his confusion relating to the zoning classification, and presumably, DOT's inspector could have and should have been aware of the correct zoning on the property. It appears, nevertheless, that DOT and appellant were mutually mistaken as to the zoning classification of the property. When a building permit is issued which is contrary to the law as the result of a mutual mistake of fact, the doctrine of equitable estoppel will not lie."); T & L Management, Inc. v. Department of Transportation, 497 So. 2d 685, 687 (Fla. 1st DCA 1986)("We agree with the conclusion of law of the hearing officer in each of these cases [involving the revocation of previously-issued sign permits] that estoppel is not appropriate because it was the applicant--not the agency--which made the initial representations upon which the department relied, when originally approving the permits."); Corona Properties of Florida, Inc. v. Monroe County,

485 So. 2d 1314, 1317 (Fla. 3d DCA 1986)("Ordinarily, a governmental entity may not be estopped from enforcement of its ordinances by an illegally issued permit."); Long v. Department of Administration, Division of Retirement, 428 So. 2d 688, 693 (Fla. 1st DCA 1983)("The State cannot be estopped through

mistaken statements of law."); Dade County v. Gayer, 388 So. 2d 1292, 1294-95 (Fla. 3d DCA 1980)("While at first blush it seems that the application of the rule may be harsh, it would be inconceivable that public officials could issue a permit, either inadvertently, through error, or intentionally, by design, which would sanction a violation of an ordinance adopted by the legislative branch of the government. Only the duly constituted members of the Metropolitan Dade County Commission enjoy that prerogative and then only in accordance with established procedure. Hollywood Beach Hotel Company v. City of Hollywood, supra, and Sakolsky v. City of Coral Gables, 151 So. 2d 433 (Fla.1963), cited therein, relied upon by the Circuit Court in its order, did not involve estoppel for some act unauthorized or prohibited by law. Those cases, along with Town of Largo v.

Imperial Homes Corporation, 309 So. 2d 571 (Fla. 2d DCA 1975), are classic examples of an act that was legal when the government sanctioned it (by issuing a permit), but purportedly became illegal by virtue of a change in the political climate or by the governmental sanction later being withdrawn after a permittee had relied upon it to his financial detriment."); Dade County v.

Bengis Associates, Inc., 257 So. 2d 291, 292 (Fla. 3d DCA 1972)("We reverse upon a holding that a governmental entity is not estopped from enforcement of its ordinances by an illegally issued permit which is issued as a result of a mutual mistake of fact."); Corkill Electric Company v. City of Chicago, 554 N.E. 2d

1027, 1032 (Ill. App Ct. 1990)("[I]n the present case there were no allegations of conduct on the part of Burnham Park that was relied upon by Corkill or that was intended to mislead or conceal. Accordingly, there is no basis for Corkill's assertion that Burnham Park is estopped from maintaining an action under section 11-13-15 to remove the sign. . . . The doctrine of estoppel operates only between parties and their privies. . . .

In the present case, the interests of Burnham Park as a tenant of real property within 1,200 feet of Corkill's sign and the interests of the city are neither mutual nor successive. Thus, there is no privity between Burnham Park and the city and the fact that the city might have been guilty of misrepresentation or concealment in issuing the permit does not warrant application of the doctrine of equitable estoppel to Burnham Park."); H. E. Sargent, Inc. v. Town of Wells, 676 A. 2d 920, 924-25 (Me.

1996)("Sargent argues that even if the Crediford Road pit was not operating legally on April 24, 1993 [for purposes of qualifying for nonconforming use status under the Wells Land Use Ordinance], the ZBA [Wells Zoning Board of Appeals] was compelled to apply the doctrine of estoppel to bar declaring the pit illegal because in 1989 the town Code Enforcement Officer by letter assured Sargent the pit was lawful pursuant to town ordinances. In

the totality of circumstances, to the extent that Sargent relied on the Wells Code Enforcement Officer's letter for assurance that the gravel pit was operating legally in 1989, that reliance is

unreasonable. Sargent had been informed that the gravel pit's legality was conditioned on its compliance with State law.

Sargent itself had conveyed incorrect historical information to . . . the town concerning the date the gravel removal operation commenced. . . . The town of Wells is not estopped from declaring the gravel pit was illegally operating on April 24, 1993.").

DECISION ON APPELLANT'S APPEAL

In view of the foregoing, Resolution No. P54-97 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 ENTERED this 3rd day of March, 1998, in Tallahassee, Leon County, Florida.

STUART M. LERNER

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 3rd day of March, 1998.

ENDNOTES

1 The final two paragraphs of this narrative statement were handwritten. The remaining paragraphs were typed.

2 Section 9.5-142 of the Monroe County Code provides as follows with respect to "registration" of "nonconforming uses and structures":

All claims of nonconforming uses and structures shall be registered with the development review coordinator in a form provided by the director of planning within

1. year of the service of individual notice by mail to all landowners of record of the adoption of the plan and the requirement to register nonconforming uses and structures. Individual notice by mail shall be deemed served upon the deposit of a duly stamped notice in the U.S. mails addressed to the owner of record according to the most recent listing of the Property Appraiser of Monroe County. Failure to register a claim of nonconforming use or structure within one (1) year after adequate legal notification by the director of planning shall constitute a waiver of the right to claim nonconforming use status. Evaluation of nonconformity claims shall be on a case-by-case basis by the director of planning based on the lawful nature of the use or structure when established, subject to appeal as provided in article XII.

   It appears that the Planning Department never provided "individual notice by mail to all landowners of record of the adoption of the plan and the requirement to register nonconforming uses and structures." Accordingly, Mr. Frye's failure to have registered his knife sharpening business as a nonconforming use under Section 9.5-142 is of no legal consequence. Cf. Board of Zoning Appeals, Bloomington, Indiana v. Leisz, 686 N.E. 2d 935, 938-39 (Ind. 1997)(where property owners not mailed notice of grandfathering registration requirement for nonconforming uses "owners' failure to register the property as a nonconforming use under the grandfathering provision did not work a forfeiture of their vested property right to the nonconforming uses.").

   3 Section 9.5-4(D-8) of the Monroe County Code provides, in pertinent part, as follows:

   
   

   "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, . . . .

   
   

   (a) Except as provided in subsection (c) hereof, for the purpose of this chapter, the following activities or uses shall be taken to involve "development": . . .

   
   

2. A change in the intensity of use of land . . .

   
   

   (c) For the purpose of this chapter, the following operations or uses shall not be taken to involve "development": . . .

   
   

3. A change in use of land or structure from a use within a specified category of use to another use in the same category unless the change involves a change form a use permitted as of right to one permitted as a minor or major conditional use or from a minor to a major conditional use.

4 Monroe County had previously been granted, without objection, an extension of time to file its Answer Brief.

5 The Padfields did not participate in oral argument, nor did they provide the undersigned with written argument in the form of a brief or otherwise.

6 "Home occupation" is defined in Section 9.5-4(H-6) of the Monroe County Code as follows:

"Home occupation" means a business, profession, occupation or trade conducted within a residential building or accessory structure for gain or support by a resident of the dwelling which:

1. Is incidental and secondary to the residential use of the building;

   
   

2. Does not change the essential residential character or use;

   
   

3. Employs no more than one (1) person who is a nonresident of the building;

   
   

4. The resident of the dwelling unit holds a valid occupational license for the use;

5. Is confined to no more than twenty (20) percent of the total floor area of the dwelling;

   
   

6. Does not display or sell any stock-in trade on the premises;

   
   

7. Is not visible from any other residential structure;

   
   

8. Does not store outside of the dwelling any equipment or materials used in the home occupation;

   
   

9. Does not utilize mechanical, electrical or other equipment which produces noise, electrical or magnetic interference vibration, heat, glare, or other nuisance outside the residential building or accessory structure; and

   
   

10. Does not increase the average daily automobile trips generated by the residence in which the home occupation is located.

Section 9.5-4(H-6) further provides as follows:

Such a home occupation may be conducted only after approval of the planning commission, which shall hold a special use hearing on the request, except in commercial fishing residential where a special use permit is not required. The planning commission may deny or grant a special use for the home occupation with such other conditions deemed in the public interest and consistent with these requirements.

7 "Commercial retail use" is defined in Section 9.5-4(C-14) of the Monroe County Code as follows:

"Commercial retail use" means a use that sells goods or services at retail which are subdivided into the following three (3) classifications:

1. "Commercial retail low-intensity" means commercial retail uses that generate less than fifty (50) average daily trips per one thousand (1,000) square feet.

2. "Commercial retail medium-intensity" means retail uses that generate between fifty

(50) and one hundred (100) average daily trips per one thousand (1,000) square feet.

(b) "Commercial retail high-intensity" means retail uses that generate above one hundred

(100) average daily trips per one thousand (1,000) square feet.

8 "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).

9 Monroe County's "first zoning ordinance . . . c[a]me into effect [in] 1960." Dowd v. Monroe County, 557 So. 2d 63 (Fla. 3d DCA 1990).

10 "A successor in interest [to a property owner to whom such a representation is made] must show his own entitlement to the benefit of an estoppel and may not make a showing by merely purchasing the property." Franklin County v. Leisure Properties, Ltd. by Brown, 430 So. 2d 475, 480 (Fla. 1st DCA 1983).

COPIES FURNISHED:

David R. Spitznagel, Esquire 99228 Overseas Highway

Key Largo, Florida 33037

Garth C. Coller, Esquire

Monroe County Land Use Attorney 2798 Overseas Highway, Suite 440

Marathon, Florida 33050

James T. Hendrick, Esquire Morgan & Hendrick

317 Whitehead Street

Key West, Florida 33040

William and Jeanette Padfield 1313 Mockingbird Road

Key Largo, Florida 33037

Planning Commission Coordinator 2798 Overseas Highway, Suite 410

Marathon, Florida 33050-2227

1 The final two paragraphs of this narrative statement were handwritten. The remaining paragraphs were typed.

2 Section 9.5-142 of the Monroe County Code provides as follows with respect to "registration" of "nonconforming uses and structures":

All claims of nonconforming uses and structures shall be registered with the development review coordinator in a form provided by the director of planning within

1. year of the service of individual notice by mail to all landowners of record of the adoption of the plan and the requirement to register nonconforming uses and structures. Individual notice by mail shall be deemed served upon the deposit of a duly stamped notice in the U.S. mails addressed to the owner of record according to the most recent listing of the Property Appraiser of Monroe County. Failure to register a claim of nonconforming use or structure within one (1) year after adequate legal notification by the director of planning shall constitute a waiver of the right to claim nonconforming use status. Evaluation of nonconformity claims shall be on a case-by-case basis by the director of planning based on the lawful nature of the use or structure when established, subject to appeal as provided in article XII.

   It appears that the Planning Department never provided "individual notice by mail to all landowners of record of the adoption of the plan and the requirement to register nonconforming uses and structures." Accordingly, Mr. Frye's failure to have registered his knife sharpening business as a nonconforming use under Section 9.5-142 is of no legal consequence. Cf. Board of Zoning Appeals, Bloomington, Indiana v. Leisz, 686 N.E. 2d 935, 938-39 (Ind. 1997)(where property owners not mailed notice of grandfathering registration requirement for nonconforming uses "owners' failure to register the property as a nonconforming use under the grandfathering provision did not work a forfeiture of their vested property right to the nonconforming uses.").

   3 Section 9.5-4(D-8) of the Monroe County Code provides, in pertinent part, as follows:

   "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, . . . .

   
   

   (a) Except as provided in subsection (c) hereof, for the purpose of this chapter, the following activities or uses shall be taken to involve "development": . . .

   
   

2. A change in the intensity of use of land . . .

   
   

   (c) For the purpose of this chapter, the following operations or uses shall not be taken to involve "development": . . .

   
   

3. A change in use of land or structure from a use within a specified category of use to another use in the same category unless the change involves a change form a use permitted as of right to one permitted as a minor or major conditional use or from a minor to a major conditional use.

4 Monroe County had previously been granted, without objection, an extension of time to file its Answer Brief.

5 The Padfields did not participate in oral argument, nor did they provide the undersigned with written argument in the form of a brief or otherwise.

6 "Home occupation" is defined in Section 9.5-4(H-6) of the Monroe County Code as follows:

"Home occupation" means a business, profession, occupation or trade conducted within a residential building or accessory structure for gain or support by a resident of the dwelling which:

1. Is incidental and secondary to the residential use of the building;

   
   

2. Does not change the essential residential character or use;

   
   

3. Employs no more than one (1) person who is a nonresident of the building;

4. The resident of the dwelling unit holds a valid occupational license for the use;

   
   

5. Is confined to no more than twenty (20) percent of the total floor area of the dwelling;

   
   

6. Does not display or sell any stock-in trade on the premises;

   
   

7. Is not visible from any other residential structure;

   
   

8. Does not store outside of the dwelling any equipment or materials used in the home occupation;

   
   

9. Does not utilize mechanical, electrical or other equipment which produces noise, electrical or magnetic interference vibration, heat, glare, or other nuisance outside the residential building or accessory structure; and

   
   

10. Does not increase the average daily automobile trips generated by the residence in which the home occupation is located.

Section 9.5-4(H-6) further provides as follows:

Such a home occupation may be conducted only after approval of the planning commission, which shall hold a special use hearing on the request, except in commercial fishing residential where a special use permit is not required. The planning commission may deny or grant a special use for the home occupation with such other conditions deemed in the public interest and consistent with these requirements.

7 "Commercial retail use" is defined in Section 9.5-4(C-14) of the Monroe County Code as follows:

"Commercial retail use" means a use that sells goods or services at retail which are subdivided into the following three (3) classifications:

1. "Commercial retail low-intensity" means commercial retail uses that generate less than fifty (50) average daily trips per one thousand (1,000) square feet.

   
   

2. "Commercial retail medium-intensity" means retail uses that generate between fifty

(50) and one hundred (100) average daily trips per one thousand (1,000) square feet.

(b) "Commercial retail high-intensity" means retail uses that generate above one hundred

(100) average daily trips per one thousand (1,000) square feet.

8 "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).

9 Monroe County's "first zoning ordinance . . . c[a]me into effect [in] 1960." Dowd v. Monroe County, 557 So. 2d 63 (Fla. 3d DCA 1990).

10 "A successor in interest [to a property owner to whom such a representation is made] must show his own entitlement to the benefit of an estoppel and may not make a showing by merely purchasing the property." Franklin County v. Leisure Properties, Ltd., 430 So. 2d 475, 480 (Fla. 1st DCA 1983).

Docket for Case No: 97-004749

Orders for Case No: 97-004749