STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KIM MOORE; JUDY JACK, )

MARGARET and TIM SPRAGUE, )

NATHAN and BETH WALTON, ) WERNER REITEL, RENE and SHEILA ) CRUZ, LINDA YORDA, and FLORIDA ) KEYS AUDUBON SOCIETY, )

)

Appellants, )

)

vs. ) Case No. 99-2638

)

MONROE COUNTY DEVELOPMENT ) REVIEW COMMITTEE; MONROE COUNTY, ) FLORIDA; ANN and GARY VIOLET, ) VIOLET COMMUNICATIONS, )

)

Appellees. )

)

FINAL ORDER

Pursuant to notice, oral argument was held in this case by telephone on October 25, 1999, before Patricia Hart Malono, a duly-designated administrative law judge of the Division of Administrative Hearings.

APPEARANCES

For Appellants: Richard Grosso, General Counsel

Environmental and Land Use Law Center Shepard Broad Law Center

Nova Southeastern University 3305 College Avenue

Fort Lauderdale, Florida 33314

For Appellees: Robert C. Apgar, Esquire

Yeline Goin, Esquire

902-A North Gadsden Street Tallahassee, Florida 32303

STATEMENT OF THE ISSUE

This is an appeal from a resolution of the Monroe County Planning Commission ("Planning Commission") approving the Minor Conditional Use application of Ann and Gary Violet and Violet Communications for a radio tower and a transmitter equipment building to be constructed on Ramrod Key. The instant appeal was transferred from the Planning Commission to the Division of Administrative Hearings pursuant to Article XIV, Monroe County Code, the Hearing Officer Appellate Article. The issue presented in this appeal is whether Resolution No. P13-99 of the Planning Commission should be affirmed, reversed, or modified.

PRELIMINARY STATEMENT

In an Application for Development Approval dated June 7, 1996, Ann and Gary Violet ("Violets") requested approval to construct a radio communication tower and a 425-square-foot equipment building on property located on Ramrod Key in the Monroe County land use district designated as "Native Area." In an addendum to the application, the project was described as follows:

Violet Communications is proposing the installation of a radio communication transmitter tower and four hundred square foot accessory equipment building on a 12.8 acre parcel on the north side of Ramrod Key. The tower will provide necessary transmitting facilities for WKTS-FM, a radio station to be established in Marathon later this year. Construction permits have been

secured from the F.C.C. [Federal Communications Commission] for the new 100,000 watt FM station. The proposed construction has also been approved by the Federal Aviation Administration.

The proposed tower and accessory structure will not require any new employees. Further, few additional trips will be generated since only radio station or county personnel will use the property for occasional maintenance and upkeep.

Violet Communications has approached the Monroe County Department of Emergency Management Services with an offer to use a portion of the tower to meet their emergency communication needs with no cost to the County. As no new employees will be necessary to operate this tower, there will be no new impact on the Hurricane Evacuation Times for the residents of the County. Only the proposed equipment shed and concrete guy wire anchors will contribute to the impervious surface area of the parcel. For the most part, the site will remain undisturbed.

As the enclosed Location Map indicates, this parcel is designated NA, or Native Area on the County's Land Use Districts Map. The property is consistently designated on the Future Land Use Map as Residential Conservation. In accordance with

Section 9.5-239 of the Land Development Regulations (LDRs), radio communication towers are a minor conditional use allowed pursuant to the provisions set forth in Division 3. Policy 101.4.1 of the Monroe County Comprehensive Plan, [sic] states that further development in these Residential Conservation districts should be limited to either low-density residential or very low- intensity public uses. As mentioned above, there will be public uses, presumably associated with Monroe County, operating in conjunction with the applicant's proposed radio operation. Whatever the eventual configuration of public and private uses, the operation will be of a very low

intensity and of minimal environmental impacts. As such, the proposed development and use are in accordance with the County's provisions of both the LDRs and the Comprehensive Plan.

The proposed tower will be approximately 500 feet high and will be supported by three guy wires anchored in the least environmentally sensitive areas of the parcel. The portions of this relatively large tract that go unused will be made part of a conservation easement.

It is uncontroverted that the site of the proposed radio communication tower is located on Monroe County's Future Land Use Map in the Residential Conservation land use category.

Objective 101.4.1 of the Monroe County Year 2010 Comprehensive Plan provides in pertinent part:

The principal purpose of the Residential Conservation land use category is to encourage preservation of open space and natural resources while providing for very low-density residential development in areas characterized by a predominance of undisturbed native vegetation. Very low- intensity public and utilities uses are also allowed. . . .

It is uncontroverted that the site of the proposed radio communication tower is located within the Native Area land use district. Section 9.5-210 Monroe County Code Land Development Regulations ("LDRs") defines the purpose of the Native Area district: "The purpose of the NA district is to establish areas that are undisturbed with the exception of existing solid waste facilities, and because of their sensitive environmental

character should be preserved in their natural state." Section 9.5-239 of the LDRs defines the uses permitted in the Native Area land use district, in pertinent part, as follows:

1. The following uses are permitted as minor conditional uses in the Native Area District, subject to the standards and procedures set forth in article III, division 3:

   
   

   * * *

   
   

   1. Public buildings and uses, provided that:

      
      

      1. The parcel proposed for development is separated from any established residential use by a class C bufferyard; and

      2. The parcel proposed for development is at least two (2) acres;

   
   

   * * *

   
   

   (4) Radio, television and telephone communication systems, provided that the applicant demonstrates compliance with the standards in section 9.5-345. [1]/

2. The following uses are permitted as major conditional uses in the Native Area District, subject to the standards and procedures set forth in article III, division 3:

* * *

1. Communication towers, provided that:

   
   

   1. The parcel proposed is at least one (1) acre; and

   2. The tower is set back from the property line a distance equal to the height of the tower, and any guy supports are set back twenty (20) feet from any property line. (Ord. No. 33-1986, § 9-209; Ord.

No. 40-1987, §§ 56, 61; Ord. No. 19-1989,

§ 1(PD81))

Annotation: . . . Amendment 61 added subsection (b)(4), [2]/ with the intent of permitting communication towers in Native Area Districts.

When the Violets submitted their application for a minor conditional use permit for the communication tower and equipment building, Subsections 9.5-239(b)(3), (b)(4), and (c)(4) were part of the LDRs.

Article III, Division 3, of the LDRs sets forth the procedures to be used in processing applications for conditional use permits, the standards to be used in evaluating the applications, and the limitations on conditional uses in Monroe County. Conditional uses are defined in Section 9.5-61 of the LDRs as follows: "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."

There are two types of conditional uses under the LDRs, minor conditional uses and major conditional uses. Minor conditional uses are evaluated pursuant to the criteria in Section 5-65 of the LDRs, which sets forth the standards applicable to all conditional uses, and the procedures set forth

in Section 9.5-68 of the LDRs govern the process of approving applications for minor conditional use permits. Specifically, an application for a minor conditional use permit is submitted to the Monroe County Development Review Coordinator, the application is reviewed by the Development Review Committee, and the final decision is made by the Director of Planning for Monroe County, who issues a "development order granting, granting with conditions or denying the application for a minor conditional use permit." Section 9.5-68(a), (b), and (c) of the LDRs. Notice of the decision is sent to affected persons, who may request a hearing on the application by the Monroe County Planning Commission.

Applications for major conditional use permits are evaluated pursuant to the provisions of both Section 9.5-65 and Section 9.5-69 of the LDRs; the latter section sets forth the criteria and procedures specifically applicable to applications for major conditional use permits. The applicant for a major conditional use permit must submit numerous documents, surveys, and maps with the application, which is submitted to the Development Review Coordinator. The Development Review Committee reviews the application and makes a recommendation for its disposition to the Planning Commission, which conducts a public hearing and issues a development order "granting,

granting with conditions or denying the application for a major conditional use permit." Section 9.5-69 of the LDRs.

The LDRs also contain minimum "yard requirements" which are applicable to conditional uses as well as to other permitted uses. The yard requirements set forth in Section 9.5-281 of the LDRs provide that, in Native Area land use districts, structures shall have a front yard setback of twenty-five feet from the property line, side yard setbacks of ten and fifteen feet from the property line, and a rear yard setback of twenty feet from the property line. However, the Director of Planning or the Planning Commission may

approve a conditional use that modifies or waives the minimum yard requirements set out in section 9.5-281 of this chapter provided that the director or commission expressly finds that the modification or waiver will enhance the ability of the proposed conditional use to meet the general standards set out in Section 9.5-65 for all conditional uses.

The history of the Violets' application for a conditional use permit to erect a radio communication tower and equipment building is long and somewhat confusing, but this history is relevant to the final decision made by the Planning Commission in this case. The record reflects that, early in 1996, a pre- application meeting was held between Donald Craig, the Violets' representative and former Monroe County Director of Planning and Director of Growth Management, and the Monroe County Planning

Department staff in which Mr. Craig was apparently told that the radio communication tower could be permitted as a minor conditional use.

In a letter dated July 25, 1996, Jill Jernigan, who was at the time the Development Review Planner for the Monroe County Planning Department, notified Mr. Craig that the Violets' application for a minor conditional use permit for the radio communication tower had been received, and she referred to a letter of understanding dated February 14, 1996, in which the staff indicated that the communication tower was "not permitted in the Native Area land use district unless it could be considered a public building." Ms. Jernigan acknowledged receiving a copy of a letter sent by Mr. Craig to the Monroe County Director of Emergency Communications offering free use of the communication tower to the County for public communication; Ms. Jernigan also acknowledged receiving a copy of a memorandum written by the Director of Emergency Communications declining the offer because "we currently have numerous antenna's [sic] and equipment spaces in the Ramrod area." Ms. Jernigan notified Mr. Craig in the July 25, 1996, letter that the staff would recommend denial of the minor conditional use application unless the Monroe County Department of Emergency Communications agreed to use the communication tower for public communication and emergency management services, a position that was reiterated in

a letter from Antonia Gerli, the Planning Department's Development Review Coordinator, dated September 25, 1996, to Mr. Craig.

In a staff report submitted as a memorandum to the Monroe County Development Review Committee dated January 27, 1997, Ms. Jernigan and Dianna Stevenson, a biologist on the Planning

Department staff, presented the staff's analysis of the Violets' application in preparation for a meeting of the committee scheduled for February 4, 1997. In the memorandum, Ms. Jernigan stated that the staff recommended denial of the Violets' application, but this recommendation was based on grounds that are not relevant to this appeal. Pertinent to the issues raised herein is the staff's finding that the communication tower was in compliance with the requirements of Policy 101.4.1 of the Monroe County Year 2010 Comprehensive Plan. The staff based this conclusion on an interpretation of Policy 101.4.1 which held that the radio communication tower was a public use allowed in the Residential Conservation land use category because the proposed tower was considered a utility and was, furthermore, considered a public utility because the Department of Emergency Communications and the Violets had agreed that a portion of the equipment building and of the tower would be used to broadcast public information.

Ms. Jernigan also noted in the January 27, 1997, report that staff had determined that the application was in compliance with Section 9.5-239 of the Monroe County LDRs because radio communication systems were permitted in the Native Area land use district as minor conditional uses as long as the communication systems were for public uses. Ms. Jernigan again reasoned that the use of the radio communication tower was public because the Violets had agreed to provide space for the County's emergency communication systems.

Finally, Ms. Jernigan acknowledged in the January 27, 1997, staff report that the guy wire supports for the radio communication tower were to be located on the property lines of the site, in violation of the minimum yard requirements set forth in Section 9.5-281 of the LDRs for the Native Area land use district and in violation of the twenty-foot setback requirements in Section 9.5-239(c)(4)b of the LDRs, which is the section that permits radio communication towers in the Native Area land use district as major conditional uses. The staff recommended that the Director of Planning waive the minimum yard requirements in Section 9.5-281 of the LDRs, as permitted by Section 9.5-66 of the LDRs, because the "proposed location for the guy wire supports is the best configuration to avoid further environmental complications." No further mention was made of the setback requirements in Section 9.5-239(c)(4)b of the LDRs.

On March 18, 1997, the Development Review Committee met and considered the Violets' application for a minor conditional use approval to construct a "radio communication transmitter tower" and a 425-square-foot accessory equipment building on land designated as Native Area. 3/ After hearing from Mr. Violet and his representative, from members of the Planning Department staff, and from members of the public who both supported and opposed the application, the Development Review Committee voted to recommend approval of the application. There is nothing in the minutes of the hearing that explains why the Development Review Committee rejected the staff recommendation that the application be denied. The recommendation of the Development Review Committee was memorialized in DRC Resolution No. D14-97, which included recommended conditions that should be met before a development order or a building permit was issued. The proposed resolution was prepared for the signature of Antonia Gerli, the Development Review Coordinator, but the copy of the resolution contained in the record herein was not signed and there is no evidence of record that the resolution was ever signed.

The proposed Minor Conditional Use Development Order #3-97 approving the Violets' application for a minor conditional use permit to erect the radio communication tower was prepared based on DRC Resolution No. D14-97. The proposed development order

included proposed findings of fact and conclusions, as well as conditions which should be imposed prior to issuance of a building permit. The proposed development order was prepared for the signature of Timothy J. McGarry, Monroe County's Director of Planning, but the copy of the proposed development order included in the record herein was not signed by

Mr. McGarry, and there is no evidence of record that the proposed development order was ever signed. Even so, notice of the intent to grant the Violets' application must have been given to affected persons because a citizen requested a public hearing on the application before the Planning Commission.

The Planning Commission held a public hearing on the Violets' application on March 3, 1999. At the public hearing, the Planning Commission received, among other things, the staff report dated December 15, 1998, which was prepared by Edward Koconis, Monroe County's Development Review Senior Administrator, and by Ralph Gouldy, Monroe County's Senior Environmental Planner, in which the staff recommended that the Violets' application for a minor conditional use permit be denied. In the section of the report dealing with the background of the application, the staff recognized that, in the past, communication towers had been "permitted inconsistently in land use districts where they are permitted uses." The report continued:

In the past, towers were permitted in a variety of ways, including as public use or facility where towers were not explicitly listed as permitted uses. Such was the interpretation of the then Growth Management Division director and Acting Director of Planning with this application. The current Director of Planning has determined that this interpretation was inappropriate for this application given the fact that communication towers are listed as permitted uses in the Native Area land use district.

In the report, the staff found the project "not in compliance" with the permitted uses under Section 9.5-239 of the LDRs, which deals with permitted uses in the Native Area land use district and which is quoted in full above. Specifically, the staff found that the proposed radio communication tower did not meet either the height setback or the guy-wire-support setbacks required by Section 9.5-239(c)(4)b of the LDRs. In addition, the staff found the project "not in compliance" with the minimum yard requirements set forth in Section 9.5-281 of the LDRs because the guy wire supports were not set back from the property line the required distance. The staff acknowledged that, pursuant to Section 9.5-66 of the LDRs, the commission has the authority to waive the minimum yard requirements in

Section 9.5-281 but concluded that there exists no option "for modifying or waiving the setback requirements set forth in Section 9.5-239(c)(4)b of the LDRs.

The Planning Commission's decision is set forth in Resolution No. P13-99, which provides, in pertinent part, as follows:

WHEREAS, during a regular meeting held on March 3, 1999, the Monroe County Planning Commission conducted a public hearing on the request filed by Ann and Gary Violet for a minor conditional use to construct a radio tower with a maximum height of 547 feet and a 425 square foot transmitter equipment building; and

WHEREAS, the proposed development is located on property legally described as Tract B, Silver Shores Estates, Section 30, Township

66 South, Range 29 East, Tallahassee Meridian, Ramrod Key, Monroe County, Florida; and

WHEREAS, the above-described property is located in the Native Area (NA) land use district; 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 Minor Conditional Use Permit Application received by the Monroe County Planning Department on June 7, 1996, including elevation drawings, a site plan, and floor plans prepared by Bender and Associates Architects on June 6, 1996 and revised on March 3, 1997 and April 7, 1997, a boundary survey prepared by Frederick H. Hildebrandt on May 21, 1996, and a non- executed grant of conservation easement; and

   
   

2. The staff report prepared by Edward Koconis, Development Review Review Senior Administrator and Ralph Gouldy, Environmental Planner dated December 15,

   1998 and the entire package submitted therewith; and

   
   

3. A Vegetation Survey and Transplantation Plan prepared by Robert Smith on March 29, 1996; and

   
   

4. The sworn testimony of the Growth Management Staff; and

   
   

5. Presentation by Nicholas Mulick, Esq. and Donald Craig of the Craig Company, which included comments from Gary Violet, L.R.

   du Treil, David Snavely, and Robert Smith and Applicant Exhibit #1 - Memorandum (staff report) from Jill Jernigan and Dianna Stevenson to the Development Review Committee dated January 27, 1997; and

   
   

6. Public testimony in opposition to the tower, which included Public Exhibit #1 - Letter to Don Craig from Jill Jernigan dated July 25, 1996; Public Exhibit #2 - Letter to Don Craig from Antonia Gerli dated September 25, 1996; Exhibit #3 - Memo from Norm Leggett to Mike Puto dated June 11, 1996; and Exhibit #4 - Letter to Planning staff from Sam Cauley dated March 19, 1997; and

   
   

7. The comments of Garth Coller, Planning Commission Counsel; and

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

1. Based on the site plan, we find that the proposed radio communication tower does not meet the height setback from the property or the guy wire support setbacks as required in Section 9.5-239. The proposed guy wire anchors also violate the minimum yard requirements of Section 9.5-281. Therefore, we conclude that the project is not in compliance with Sections 9.5-239 and 9.5- 281; and

2. Based on the information submitted, we find that the radio communications tower shall be considered a communications system. We also find that there is good and sufficient cause to waive the minimum yard requirements of Section 9.5-281. Therefore, we conclude that the project is not subject to the guy wire support setbacks as required in Section 9.5-239 or the minimum yard requirements of Section 9.5-281; and

* * *

1. Based on the application, we find that the applicant has submitted a communications site lease, however this lease has not been approved by the County. The applicant has not provided documentation indicating that Monroe County Emergency Management needs space on this tower. Therefore, we conclude that a County approved communications site lease is required to approve the project as a minor conditional use; and

   
   

2. Based on the application and exhibits, we find that the applicant relied, to its detriment, on a finding by Ms. Gerli that the project should be treated as a minor conditional use with a communications site lease between the applicant and Monroe County for space on the tower for Emergency Management. Said lease shall be for a minimum of 20 years and an annual cost (rent) to the County not exceeding two (2) dollars. Therefore, we conclude that the radio communications tower shall be treated as a communication system and shall not be required to meet the standards of a communication tower as set forth in MCC Section 9.5-239(c)(4); 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 APPROVE the Minor Conditional Use request of Ann and Gary

Violet for a radio tower with a maximum height of 547 feet and a 425 square foot transmitter equipment building with the following conditions:

* * *

6. The applicant shall have an approved communications site lease with Monroe County for a minimum of 20 years and an annual cost (rent) to the County of not more than two

(2) dollars prior to the issuance of a building permit.

On or about May 18, 1999, the Appellants herein filed an Application for an Appeal to the Hearing Officer pursuant to Article XIV, Monroe County Code, Section 9.5-535, the Hearing Officer Appellate Article. In its application, the Association appealed the decision of the Planning Commission in Resolution No. P13-99 approving the minor conditional use application of the Violets, with conditions. In their Initial Brief, the Appellants stated their points on appeal as follows:

ARGUMENT I. THE PLANNING COMMISSION

IMPROPERLY FAILED TO REQUIRE THE COMMUNICATIONS TOWER TO COMPLY WITH THE REQUIREMENTS FOR COMMUNICATION TOWERS SET FORTH IN SECTION 9.5-239(c) AND SECTION 9.5-281.

ARGUMENT II. THERE IS NO COMPETENT,

SUBSTANTIAL EVIDENCE TO SUPPORT THE PLANNING COMMISSION'S FINDING THAT THE PROJECT IS NOT A TOWER.

ARGUMENT III. THE APPROVAL OF THE STRUCTURE

VIOLATES THE SETBACK

REQUIREMENT APPLICABLE TO TOWERS.

ARGUMENT IV. AS A MATTER OF LAW, THE

PLANNING COMMISSION IMPROPERLY BASED ITS DECISION ON "THE APPLICANT'S RELIANCE ON A STATEMENT BY PLANNING STAFF THAT THE PROJECT SHOULD BE TREATED AS A MINOR CONDITIONAL USE" WHERE THE LEGAL CRITERIA FOR AN ESTOPPEL DID NOT EXIST.

ARGUMENT V. THERE IS NO COMPETENT

SUBSTANTIAL EVIDENCE TO SUPPORT THE FINDING THAT THE APPLICANT RELIED TO ITS DETRIMENT ON A STATEMENT BY COUNTY STAFF THAT THE PROJECT

SHOULD BE TREATED AS A MINOR CONDITIONAL USE.

ARGUMENT VI. THE TOWER AND EQUIPMENT

BUILDING DO NOT MEET THE DEFINITION OF A PUBLIC BUILDING AND THEREFORE DO NOT QUALIFY AS A MINOR CONDITIONAL USE.

ARGUMENT VII. THE PROJECT IS INCONSISTENT

WITH THE PURPOSES, GOALS, OBJECTIVES AND STANDARDS IN THE COMPREHENSIVE PLAN AND LAND DEVELOPMENT REGULATIONS.

This case was submitted for decision on the record compiled by the Planning Commission Coordinator in accordance with Section 9.5-537, Monroe County Code; on the arguments presented in the Appellants' Initial and Reply Briefs; on the arguments presented in the Appellees' Answer Brief; and on the arguments

presented by counsel for the parties during oral argument on

October 25, 1999.

DISCUSSION

The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Article XIV, Monroe County Code. The scope of the hearing officer's review under that article is 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 proceeding before the planning commission on which the findings were based did not comply with the essential requirements of law.

The Planning Commission's finding that the proposed radio communication tower does not meet the height setback or the guy- wire-support setback requirements required by Section 9.5-239 of the LDRs is supported by the uncontroverted evidence. However, the Planning Commission's conclusion, incorporated in its findings of fact and conclusions of law numbered 2 and 8, that the proposed radio communication tower "shall be" considered a

communication system and that the proposed radio communication tower is not subject to the provisions of Section 9.5-239(c)(4) of the LDRs is rejected.

The uncontroverted evidence presented to the Planning Commission establishes that, from an industry point of view, a radio communication tower is considered a part of a radio communication system. This fact is not sufficient, however, to support the Planning Commission's conclusion that it can consider the Violets' application for a minor conditional use permit as an application to construct a radio communication system rather than as an application to erect a radio communication tower and a 425-square-foot equipment building.

As noted above, the permitted uses in Native Area land use districts are defined in Section 9.5-239 of the LDRs.

Section 9.5-239(b)(4) of the LDRs identifies a radio communication system as a permitted use, subject to approval of the project as a minor conditional use and the project's compliance with Section 9.5-345 of the LDRs, which sets forth environmental design criteria. Section 9.5-239(c)(4) identifies a communication tower as a permitted use, subject to approval of the project as a major conditional use only if the proposed site of the tower is at least one acre in area and if the tower meets the height and guy-wire-support setback requirements set forth in Section 9.5-239(c)(4)b of the LDRs. The provisions of

Section 9.5-239 of the LDRs are clear and unambiguous, and the only interpretation of this section that is consistent with and harmonizes the provisions of Section 9.5-239(b)(4) and (c)(4) of the LDRs is that a communication tower must meet the requirements of Section 9.5-239(c)(4) regardless of whether the tower is part of a communication system or is intended to stand alone. See Aetna Casualty & Surety Co. v. Huntington National Bank, 609 So. 2d 1315, 1317 (Fla. 1992)(statute must be given

clear meaning when language is clear and unambiguous). 4/ This interpretation is not only supported by the general

rules of statutory construction, it is also supported by the specific rules of construction found in Section 9.5-3 of the LDRs. Section 9.5-3(a) of the LDRs provides in pertinent part:

Where any provision of this chapter imposes greater restrictions upon the subject matter than a general provision imposed by the Monroe County Code or another provision of this chapter, the provision imposing the greater restriction or regulation shall be deemed to be controlling.

In this case, the subject matter of the Violets' application is the construction of a radio communication tower and adjacent equipment building. Even though a radio communication tower may be part of a radio communication system, Section 9.5-239(c)(4) of the LDRs singles out communication towers and imposes greater restrictions on the construction of a communication tower than on a radio communication system. Therefore, in accordance with

the above rule of construction, the proposed radio communication tower must satisfy the requirements of Section 9.5-239(c)(4) of the LDRs. Since the Planning Commission found that the radio communication tower proposed by the Violets does not meet the setback requirements in Section 9.5-239(c)(4)b and since neither the Planning Commission nor the Appellees herein cited a provision of the Monroe County Land Development Regulations allowing these setback requirements to be waived, the Violets' application for a minor conditional use permit to erect a radio communication tower in a Native Area land use district must be denied. 5/

The Appellees argue that, because the Planning Commission conditioned the issuance of a building permit for the radio communication tower and equipment building on the Violets' obtaining an approved communication site lease with Monroe County, it implicitly approved the application pursuant to Section 9.5-239(b)(2) of the LDRs, which allows public buildings and uses in Native Area land use districts as minor conditional uses. It appears from the language of the Planning Commission Resolution No. P13-99 that the reference to public uses was directed at what the Planning Commission considered to be the interpretation of Antonia Gerli that the radio communication tower could be permitted as a minor conditional use if the Violets obtained an approved communication site lease.

The record does not contain any support for the Planning Commission's interpretation of Ms. Gerli's position on the application. In finding of fact and conclusion numbered 1 in the DRC Resolution No. D14-97, the Development Review Committee found as follows:

Based on the proposed agreement between the Monroe County Emergency Communications Department and the applicant, a portion of the building and space on the tower will be used by Monroe County to broadcast public safety information. Therefore, we find that the proposed use is a public use allowed in the Residential Conservation future land use category.

This clearly does not relate to whether the radio communication tower should be considered a public use for purposes of determining whether it is a permitted use in Native Area land use districts.

Moreover, even if the Planning Commission intended to approve the radio communication tower as a public building or use under Section 9.5-239(b)(2) of the LDRs, the Planning Commission cannot do so for the same reasons it cannot approve the radio communication tower as a radio communication system: The specific provisions of Section 9.5-239(c)(4) of the LDRs governing the erection of communication towers in Native Area land use districts must be applied to the Violets' application rather than the provisions of Section 9.5-239(b)(2) of the LDRs governing public buildings and public uses. Furthermore,

because the Violets would own and operate the radio communication tower, it cannot be considered a public building as that term is defined in Section 9.5-4(P-18):

Public building means office and service buildings, uses or facilities owned or operated by a governmental agency, including publicly and privately owned utilities, which are compatible with or provide services to the immediate vicinity in which the building is located.

For the foregoing reasons, the Planning Commission erred in approving the application of the Violets for a minor conditional use permit to erect a radio communication tower. Because of this holding, it is not necessary to consider the remaining issues raised by the Appellants in this appeal.

DECISION

Based on the foregoing, Monroe County Planning Commission Resolution No. P13-99 is REVERSED.

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

appropriate judicial circuit.

DONE AND ORDERED this 8th day of February, 2000, in Tallahassee, Leon County, Florida.

PATRICIA HART MALONO

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 8th day of February, 2000.

ENDNOTES

1/ This section of the Monroe County Code Land Development Regulations sets forth environmental design criteria. The provisions of this section are not relevant to the issues raised in this appeal.

2/ From a consideration of the provisions of Section 9.5-239, the reference in the annotation to subsection (b)(4), which refers to communication systems, was in error and should have been to subsection (c)(4), which refers to communication towers.

3/ Apparently, the Development Review Committee met in February 1997 to consider the Violets' application but nothing in the record before the Planning Commission memorializes that meeting. In addition, it appears from references in the record that the site plan for the project was revised in March 1997 and that Ms. Jernigan issued another staff report in March 1997; nothing contained in the record indicates that Ms. Jernigan's assessment of the revised site plan or her second staff report was presented to the Planning Commission.

4/ Mr. Craig testified at the public hearing that the legislative intent in amending Section 9.5-239 to add subsection (c)(4) was to require that a communication tower comply with the

requirements of Section 9.5-239(c)(4) if the tower is not part of a communication system and to exempt a communication tower from the requirements of Section 9.5-239(c)(4) if the tower is part of a communication system. This testimony cannot be considered competent, substantial evidence of legislative intent because the language of Section 9.5-239(c)(4) is clear and unambiguous. See Aetna Surety & Casualty Co. v. Huntington National Bank 609 So. 2d at 1317(legislative history is irrelevant when wording of statute is clear).

5/ Even had the Violets applied for a major conditional use permit for the radio communication tower, the application would be denied for failure to satisfy the requirements of

Section 9.5-239(c)(4)b of the LDRs.

COPIES FURNISHED:

Richard Grosso, General Counsel Environmental and Land Use Law Center Shepard Broad Law Center

Nova Southeastern University 3305 College Avenue

Fort Lauderdale, Florida 33314

Robert C. Apgar, Esquire Yeline Goin, Esquire

902-A North Gadsden Street Tallahassee, Florida 32303

Karen Cabanas, Esquire Assistant County Attorney

310 Fleming Street

Key West, Florida 33040

Judith Chambers

Planning Commission Coordinator County of Monroe, Planning Department 2798 Overseas Highway, Suite 410

Marathon, Florida 33050-2227

Docket for Case No: 99-002638

Orders for Case No: 99-002638