STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ROBERT STOKY and RUTH STOKY, )
)
Appellants, )
)
vs. ) Case No. 00-0377DRI
)
MONROE COUNTY, FLORIDA, )
)
Appellee. )
)
FINAL ORDER
Pursuant to notice, oral argument was held in this case by telephone on July 24, 2001, before Patricia Hart Malono, a duly- designated administrative law judge of the Division of Administrative Hearings, following submission of appellate briefs by the Appellants and the Appellee.
APPEARANCES
For Appellants: Steven P. Shea, Esquire
Post Office Box 765 Islamorada, Florida 33036-0765
For Appellee: Karen K. Cabanas, Esquire
Morgan & Hendrick
317 Whitehead Street
Key West, Florida 33040 STATEMENT OF THE ISSUE
This is an appeal from Resolution No. P60-99 of the Monroe County Planning Commission ("Planning Commission"), in which the Planning Commission approved the decision of the Monroe County
Planning Department ("Planning Department") denying two applications for building permits submitted by the Appellants, Robert and Ruth Stoky ("the Stokys"). One application requested a building permit to reconstruct a screened porch and to build an elevated deck in the rear of the Señor Frijoles/Cactus Jack's restaurants, which are located at 103900 Overseas Highway, Key Largo, Florida; this application was assigned building permit number 99-3-857 ("permit number 99-3-857"). The second application requested a building permit to reconstruct a trellis as a separate structure associated with the Sundowner restaurant, also located at 103900 Overseas Highway, Key Largo, Florida; this application was assigned building permit number 99-3-858 ("permit number 99-3-858").
The instant appeal was forwarded by the Planning Commission to the Division of Administrative Hearings pursuant to Article XIV, Monroe County Code, the Hearing Officer Appellate Article, and Monroe County ("the County") has appeared as Appellee in this case. In their Initial Brief, the Stokys abandoned their appeal of the decision of the Planning Commission approving the Planning Department's denial of their application for permit number 99-3-858; therefore, the ultimate issue presented in this appeal is whether the Planning Commission's Resolution
No. P60-99 should be affirmed, reversed, or modified with
respect to the its decision approving the Planning Department's denial of the Stokys' application for permit number 99-3-857.
PRELIMINARY STATEMENT
Relevant to the issue presented in this appeal, on April 8, 1999, the Stokys submitted an application to the Planning Department for a building permit to allow them to reconstruct a screened porch and to construct an elevated deck adjacent to the screened porch at the Señor Frijoles/Cactus Jack's restaurants in Key Largo, Florida. The existing screened porch was essentially destroyed in November 1998 by tornadoes associated with Tropical Storm Mitch, and only a concrete slab extending across the rear of the restaurants, along the water, remained.
In a letter dated May 19, 1999, the Planning Department notified the Stokys of its intent to deny the application for permit number 99-3-857 and stated the reasons for the denial as follows:
1. Application #98-3-857 [sic] is for replacement of an existing screened porch. A site visit made on December 8, 1998 and photographs taken on that date do not show the existence of a screen porch where it is indicated on the site plan. In addition, a review of the Monroe County Building Department records since 1988 shows no evidence that a screen porch was ever permitted in the area shown on the site plan. The plans also show a concrete slab to be covered by an elevated wood deck.
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Furthermore, the plan showing the "scope of work" on the current application shows that the roof of the structure would further encroach into the shoreline setback in violation of Section 9.5-286(a) of the Monroe County Land Development Regulations.
Based on the above facts, staff concludes that both projects [permit numbers 99-3-857 and 99-3-858] would be an increase in commercial space and are subject to the provisions of objective 101.3 of the Monroe County Year 2010 Comprehensive Plan, which requires Monroe County to maintain a balance between residential and non-residential development by establishing a non- residential permit allocation system. No new commercial development can be permitted until a non-residential Rate of Growth Ordinance is adopted. Therefore the proposed projects cited above cannot be approved at this time.
The Stokys were advised in the denial letter of their right to appeal the Planning Department's decision to the Planning Commission.
The Stokys timely filed their Application for Administrative Appeal to Planning Commission. The basis for the appeal with respect to permit number 99-3-857 was set forth as follows:
The paragraph bearing the number "1" does not provide a valid basis for denial. The portion of the structure sought to be replaced was destroyed by a tornado one month prior to the site visit on 12/8/98. It is not unreasonable that a destroyed structure would remain destroyed one month after it was destroyed. It is not a violation of the Monroe County Code for the Planning Department to be unable to locate a
permit. The structure at issue has been on the premises at least 30 years. The portion destroyed may have been added on after construction. The County does not dispute the owners' statement that the portion of the structure sought to be replaced had been in existence for many years, and in any event more than four years.
The Planning Commission held a public hearing on August 18, 1999, during which it considered the Stokys' appeal of the Planning Department's decision to deny their application for a building permit to reconstruct the screened porch and to construct an elevated deck at the Señor Frijoles/Cactus Jack's restaurants.
At the hearing, the Planning Commission heard the sworn testimony of staff member Donny Lang, of Appellant Robert Stoky, and of John Biamonte, who spoke as a member of the public. The Planning Commission also heard the arguments of both the Stokys' attorney and the Planning Commission's attorney. In addition, the staff report dated August 4, 1999, was read into the record, and the report, together with Staff Exhibits 1 through 8, was submitted to the Planning Commission and made part of the record on appeal.
In pertinent part, the staff report provides the following as the basis for its recommendation that the Planning Commission deny the Stokys' appeal:
REQUEST:
Description of Project:
The project at Señor Frijoles/Cactus Jack's (application #99-3-857) involves reconstructing a deck and screen porch enclosure.
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Location of Projects:
Señor Frijoles/Cactus Jack's and Sundowner's Restaurants are located on the Island of Key Largo, Part of Lot 8, Parcels "C" & "D", in Key Largo at Mile Marker 103.9 bayside, RE #0084990-000100 and #0084930-
000100. The property is located in the Mixed Use (MU) land use district.
Project Applicant/Appellant: Applicant/Owner: Robert Stoky and Ruth
Stoky
Agent: Andrew M. Tobin, Esq.
Precise Decision Being Appealed:
Denial of building permit application #99-3-857 for a replacement of porch . . . .
Date of Decision: May 19, 1999.
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BASIS OF STAFF DECISION AND DISCUSSION OF APPEAL:
The subject property consists of three waterfront restaurants located on a 35,768 square foot parcel in a Mixed Use land use district. Both applications being appealed are for repair of damage caused by Tropical Storm Mitch in November of 1998.
1. Permit application #99-3-857 for Señor Frijoles/Cactus Jack's is to "replace porch". Tornado winds removed a screened porch dining area at the rear of Senior [sic] Frijoles Restaurant leaving only an elevated deck. The deck with screen porch was set back from the seawall edge (mean high water) 2 feet on one side and 5 feet on the other side. The applicant is also proposing to construct an elevated deck above an existing concrete patio currently used for dining at the back of Cactus Jack's restaurant which is attached to Señor Frijoles Restaurant. The existing patio has similar shoreline setbacks as the adjoining deck. Both the rear yard and the shoreline setbacks for the Mixed Use District are twenty (20) feet, making the structure non- conforming as to shoreline setbacks per Section 9.5-286 of the Monroe County Code.
A search of aerial photographs and County property appraiser records shows this deck and porch addition was not present on a 1972 photograph (see staff exhibit #1) or on the 1978 property appraiser's (inspection) worksheet (see staff exhibit #2) yet was present on the 1982 property appraiser's (inspection) worksheet (see staff exhibit #3) and on a 1998 photograph (see staff exhibit #4). Staff exhibit #5 shows this addition and its locational relationship to both the concrete structure at Cactus Jack's and the shoreline. The regulations prior to those presently in use, Comprehensive Zoning Ordinance of Monroe County, required a minimum rear setback in the BU-2 zoning district of 25 feet and a minimum setback from any manmade waterway of 20 feet, except boat service buildings could build up to the apparent mean high water line for marine oriented businesses.
On February 10, 1970, the building that is now Señor Frijoles Restaurant, then owned by George Brewer, received sign permits to
become Spouter's 6 Pub (named for the Brewer's terrier). The restaurant was later renamed Pier 6 Restaurant, and finally in late 1980, renamed Señor Frijoles at Deep 6 Marina. This establishes that this structure was not a boat service building since before the addition appeared. The addition to the rear of this structure could not have met the setback requirements under either the previous code or under the present code. A complete and exhaustive search of the permit history of this property shows no permits nor variances for the screened porch addition that is proposed to be reconstructed. The Planning Department views the screened porch and deck as illegal non-conforming structure[s].
Monroe County Code Section 9.5-4 (N-8) states "non-conforming structure means any structure lawfully existing on the effective date of this chapter other than a sign, or any amendment to it rendering such structure non-conforming, which does not comply with all of the regulations of this chapter, or any amendment thereto". Since this addition could have not been lawfully established, it is an illegal non-conforming structure.
Monroe County Code Section 9.5-141 (Non- conformities Purpose) states "The purpose of this article is to regulate and limit the continued existence of uses and structures established prior to the enactment of this chapter that do not conform to the provisions of this chapter. Many non- conformities may continue, but the provisions of this article are designed to curtail substantial investment in the non- conformities and to bring about their eventual elimination in order to preserve the integrity of this chapter."
Monroe County Code Section 9.5-144 (e)(2), Nonconforming Structures, states:
"Any part of a non-conforming structure which is damaged or destroyed to the extent of less than fifty (50) percent of the fair market value of such structure may be restored as-of-right if a building permit for reconstruction shall be issued within six (6) months of the date of damage." The Planning Department contends the non- conforming part of the structure was substantially damaged by Tropical Storm Mitch and may not be restored.
"Except as provided in article VII, Division 6, in regard to mobile homes and Section 9.5-267, any nonconforming structure which is damaged or destroyed so as to require substantial improvement may be repaired or restored only if the structure conforms to the provisions of the land use district in which it is located. Fair market value shall be determined by reference to the official tax assessment rolls for that year or by an appraisal by a qualified independent appraiser. The extent of damage or destruction shall be determined by the building official, in consultation with the director or planning, by comparing the estimated cost of repairs or restoration with the fair market value."
Though the entire structure was not substantially damaged, the non-conforming deck and screened porch was [sic] substantially damaged by Tropical Storm Mitch. A site visit by the Planning Department on December 8, 1998 found the screened enclosure at the back of Señor Frijoles was entirely gone. The rear deck and screened porch does [sic] not conform to the shoreline setbacks as required by the previous and present code, and as such, may not be permitted to be replaced. The cost of repairs to only the Señor Frijoles portion of the deck and screened porch is estimated by C&E Construction at $22,081.00 on application #99-3-857.
Additionally, Policy 101.8.10 of the Monroe County Year 2010 Comprehensive Plan states "With the following exception, non- conforming structures which are damaged or destroyed so as to require substantial improvement shall be repaired or restored in conformance with all applicable provisions of the current Monroe County Code.
Substantial improvement or reconstruction of non-conforming single-family homes shall comply with setback provisions of the Monroe County Land Development Regulations except where compliance would result in reduction of lot coverage as compared to the pre- destruction footprint of the house. In such cases, the maximum shoreline setback shall be maintained and in no event, shall the shoreline setback be less than ten (10) feet from mean high water."
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The Planning Department recommends DENIAL of the request by Robert Stoky and Ruth Stoky for building permit application #99-3-857 regarding the reconstruction of a deck and screen porch enclosure at Señor Frijoles/Cactus Jack's . . . .
A record of building permits issued for parcel number RE#0084980-000100 from 1969 through 1999 was attached to the staff report.1
At the conclusion of the hearing, the Planning Commission approved by a unanimous vote the Planning Department's decision to deny the Stokys' application, and its action was memorialized in Resolution No. P60-99, which provides in pertinent part:
Commission conducted a public hearing on the request filed by Robert Stoky and Ruth Stoky appealing the denial of building permit[] #99-3-857 for replacement of a porch . . . ; and
Building permit applications #99-3-857 for a replacement of a porch and #99-3-858 for the reconstruction of a deck-separate structure. Both were received by the Monroe County Planning Department on April 8, 1999 and included site plans prepared by David DeHaas and sealed by Daryle Osborne, P.E.
Staff report prepared by Donny Lang, Senior Planner, dated August 4, 1999; and
Aerial photographs of the property labeled Staff Exhibits #1 and #4; and
Property appraiser's worksheets labeled Staff Exhibit[s] #2 and #3; and
Photographs of the subject property labeled Staff Exhibit[s] #5 through #8; and
The Comprehensive Zoning Ordinance of Monroe County, revised August 23, 1975; and
Sworn testimony by the Growth Management Staff; and
The comments of Karen Cabanas, Planning Commission Counsel; and
Relating to permit application #99-3-857:
Based on testimony by staff, we find that a site inspection found the screened porch at the back of Senior [sic] Frijoles was entirely destroyed. Therefore, we conclude that the porch part of the structure was substantially damaged and may not be replaced per Section 9.5-144 of the Monroe County Code; and
Based on the Site Plan submitted, we find that the proposed porch is located in both of the twenty (20) foot shoreline setbacks. Therefore, we conclude that the proposed replacement porch does not comply with Section 9.5-286 of the Monroe County Code; and
Based on aerial photographs and Property Appraiser records, we find that the deck and porch were constructed between 1978 and 1982. The Comprehensive Zoning Ordinance at that time required 25 foot minimum rear yard setbacks and 20 foot manmade waterway setbacks. The deck and porch were constructed two feet from the seawall on one side and five feet from the seawall on the other side. Therefore, we conclude that the deck and porch could not have been permitted; and
Based on the permitting history of the property, we find no evidence of the damaged porch ever being issued a permit.
Therefore, we conclude that a permit may not be issued for a replacement screened porch;
* * *
Resolution No. P60-99 was signed on November 3, 1999. On or about December 3, 1999, the Stokys filed an
Application for an Appeal to the Hearing Officer pursuant to Article XIV, Monroe County Code, Sections 9.5-535 - 9.5-542, the Hearing Officer Appellate Article. In its application, the Stokys appealed the decision of the Planning Commission in Resolution No. P60-99 approving the Planning Department's decision to deny both of the Stokys' applications for building permits. The basis for appeal of the decision regarding permit number 99-3-857 stated in the Application for an Appeal to the Hearing Officer is as follows:
Planning Commission failed to properly apply provisions of Monroe County LDR's to Stoky's post-tornado applications to repair structures. Planning Commission failed to properly interpret and apply regulations pertaining to non-conforming uses, shoreline setbacks, partial destruction, intensity, height, setbacks, definitions, and other portions of Section 9.5, Monroe County Code.
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 Stokys' Initial and Reply Briefs; on the arguments presented in Monroe County's Answer Brief; and on the arguments presented by counsel for the parties during oral argument on
July 24, 2001.
DISCUSSION
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties hereto pursuant to Article XIV, Sections 9.5-535 through -542, Monroe County Code. The hearing officer's order in such an appeal "may affirm, reverse, or modify the order of the planning commission." Section 9.5-540(b), Monroe County Code. The scope of the hearing officer's review under Article XIV 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.
Id. The hearing officer's final order shall be the final administrative action of Monroe County. Section 9.5-540(c), Monroe County Code.
In De Groot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957), the court discussed the meaning of "competent substantial evidence" and stated:
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."
A hearing officer acting in his or her appellate review capacity is without authority to reweigh conflicting testimony presented to the Planning Commission or to substitute his or her judgment for that of the Planning Commission on the issue of the credibility of witnesses. See Haines City Community Development v. Heggs, 658 So. 2d 523, 530 (Fla. 1995); 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 term "departure from essential requirements of law" has been defined by a number of courts in describing the scope of certiorari review to be accorded by circuit courts to administrative, quasi-judicial decisions. In Sams v. St. Johns
County Code Enforcement Board, 712 So. 2d 446, 446 (Fla. 5th DCA 1998), the court followed the definition of the term quoted by the Florida Supreme Court in Heggs:
The required "departure from the essential requirements of law" means something far beyond legal error. It means an inherent illegality or irregularity, an abuse of judicial power, an act of tyranny perpetrated with disregard of procedural requirements, resulting in a gross miscarriage of justice. The writ of certiorari properly issues to correct essential illegality but not legal error.
658 So. 2d at 527-28 (quoting Jones v. State, 477 So. 2d 566,
569 (Fla. 1985)(Boyd, C.J., concurring specially.) See also Metropolitan Dade Co. v. Blumenthal 675 So. 2d 598 (Fla. 3d DCA 1995). Given the deliberate use by the drafters of Section 9.5- 540(b), Monroe County Code, of such a "term of art," it must be assumed that the term is to be given the generally-accepted meaning, and the definition contained in the cited cases is accepted for purposes of this appeal.
In the following analysis, the issues are those stated in the Stokys' Initial Brief:
Issue No. 1: This matter should be remanded to the Commission for further fact finding pursuant to Appellant's Motion for Remand.
The Stokys' first issue is presented as a Motion for Remand, and they request that this matter be remanded to the Planning Commission for further evidentiary proceedings to allow them the opportunity to present "critical" new evidence that they obtained after the August 18, 1999, Planning Commission hearing. As grounds for this request, the Stokys assert that the Planning Commission based its decision to approve the Planning Department's denial of the Stokys' application on grounds that were not included in the May 19, 1999, denial letter but that were raised for the first time in the August 4, 1999, staff memorandum. According to the Stokys, a copy of this memorandum was not made available to them or their attorney until just prior to the August 18, 1999, hearing,3 and they argue that "basic fairness and due process guarantees" were violated because they were not allowed "time to prepare a defense to rebut the new allegations." The Stokys also assert that they have uncovered "new" evidence that would support the approval of their application.
Section 9.5-521, Monroe County Code, authorizes the Planning Commission to hear appeals from the decisions of the
County's administrative officials, and the scope of the appeal and the procedures which are applicable to such an appeal are set forth in that section. Specifically, Section 9.5-521(e), Monroe County Code, provides:
Action of the Commission: The planning
commission shall consider the appeal [of a decision of an administrative official] at a duly called public hearing following receipt of all records concerning the subject matter of the appeal. Any person entitled to initiate an appeal may have an opportunity to address the commission at that meeting; and argument shall be restricted to the record below except that 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.
(Emphasis added.) Pursuant to Section 9.5-535, Monroe County Code, a hearing officer may "review by appeal" certain decisions of the Planning Commission, and the order prepared by the hearing officer is considered the final administrative action of Monroe County. Section 9.5-540(b) and (c), Monroe County Code.
The law is well-settled that, in order to present a claim of error on appeal, either the issue must have been brought to the attention of the "trial court," in this case, the Planning Commission, through an appropriate objection or motion, or the error must be a "fundamental error." See Leviton v. Philly
Steak-Out, Inc., 533 So. 2d 905, 906 (Fla. 3d DCA 1988)("[T]he
defendants did not request a continuance of the summary judgment hearing so that they could complete their discovery and cannot now be heard to complaint that they were not given a reasonable time to complete same."); Batista v. Walter & Bernstein, P.A.,
378 So. 2d 1321, 1323 (Fla. 3d DCA 1980)("[B]y failing below to move for a continuance on the grounds that they were surprised by the alleged change in theory, the defendants are precluded from now contending that they were prejudiced by the rulings in question.").
A contemporaneous motion or objection is required so that the trial court has an opportunity to correct the alleged error:
The requirement of a contemporaneous objection is based on practical necessity and basic fairness in the operation of a judicial system. It places the trial judge on notice that error may have been committed, and provides him an opportunity to correct it at an early stage of the proceedings. . . .
To meet the objectives of any contemporaneous objection rule, an objection must be sufficiently specific both to apprise the trial judge of the putative error and to preserve the issue for intelligent review on appeal.
Castor v. State, 365 So. 2d 701, 703 (Fla. 1978)(citations omitted); see also Lowe Investment Corp. v. Clement, 685 So. 2d 84, 85 (Fla. 2d DCA 1996)("Timely objections are necessary to give a trial court the opportunity to correct errors.").
The contemporaneous objection rule is not applicable when the claimed error is fundamental, and such an error may be raised for the first time on appeal. Fundamental error has been held to arise "only when it affirmatively appears that it could not have been cured below if met with a timely objection." Wagner v. Nottingham Associates, 464 So. 2d 166, 170 (Fla.
3d DCA 1985). In Hagan v. Sun Bank of Mid-Florida N.A., 666 So. 2d 580, 586 (Fla. 2d DCA 1996), the court defined fundamental error as
an error so extreme that it could not be corrected . . . if an objection had been lodged, and that it so damaged the fairness of the trial that the public's interest in our system of justice justified a new trial even when no lawyer took the steps necessary to give a party the right to demand a new trial.
Donny Lang, the senior planner with the Planning Department who prepared both the May 19, 1999, letter and the August 4, 1999, staff memorandum, read the August 4 staff memorandum into the record at the August 18, 1999, hearing, and he testified at length about the contents of the staff memorandum. There is no question that the Planning Commission relied both on Mr. Lang's testimony and on the analysis included in the staff memorandum in reaching its decision to approve the Planning Department's denial of the Stokys' application for permit number 99-3-857.
However, there is nothing in the record of the August 18 hearing
that can be construed as a request by the Stokys for a continuance of the hearing, nor is there anything in the record that can be construed as an objection by the Stokys to
Mr. Lang's testimony or to the introduction of the August 4 staff memorandum into the record of the hearing.4 Rather, the Stokys' attorney argued that the Planning Department waived any grounds for denial of the application that were not raised in the May 19, 1999, denial letter. He then questioned Mr. Lang on the merits of the grounds for the Planning Department's denial of the permit application discussed in the August 4 staff memorandum, and he argued that the Planning Department had failed to prove that the grounds were supported in fact.5
The Planning Commission did not commit fundamental error by proceeding with the August 18 hearing and considering the information contained in the August 4 staff memorandum in reaching its decision on the Stokys' appeal. Had the Stokys placed before the Planning Commission their contention that they had inadequate notice of the issues raised in the August 4 staff memorandum and needed time to prepare a defense by either moving for a continuance of the hearing or stating an objection to the introduction of the August 4 staff memorandum and Mr. Lang's testimony, the Planning Commission would have had the opportunity to consider the Stokys' arguments and to cure any prejudice that might have been established by the Stokys.
Because they did not move for continuance or object to the introduction of the August 4 staff memorandum, the Stokys failed to preserve for this appeal the issues of inadequate notice and of prejudice to their ability to gather evidence to rebut the allegedly "new grounds" set forth in the August 4 staff memorandum to support Planning Department's decision to deny the Stokys' application for a permit to reconstruct the screened porch.
The Stokys also argue in support of their Motion for Remand that they have engaged in extensive research since the
August 18, 1999, hearing and have obtained "critical new evidence" that many building permits for structures built over
20 years ago were lost or missing from Monroe County records; the Stokys contend that this case should be remanded for further fact-finding proceedings so they can present this evidence to the Planning Commission. They also argue that they should be allowed to present to the Planning Commission evidence that they obtained subsequent to the August 18 hearing regarding the "pre- 1986 availability of building permits to waterfront businesses desiring to build in the shoreline setback."6
The Stokys acknowledge, however, on page 1 of their Initial Brief that the May 19, 1999, denial letter from the Planning Department stated among the reasons for the denial of the Stokys' application to reconstruct the screened porch that "a
review of the Monroe County Building Department records since 1988 shows no evidence that a screen porch was ever permitted in the area shown on the site plan." The May 19 denial letter also contains a reference to the "further" encroachment of the screened porch into the shoreline setback. Accordingly, the Stokys were on notice in May 1999 that the absence of a permit for the porch and the encroachment of the screened porch into the shoreline setback lines were issues that would be considered by the Planning Department at the August 18, 1999, hearing.
They should have prepared their case accordingly and cannot now be heard to complain of a lack of notice of these grounds for the permit denial.
For these reasons, the Motion for Remand is denied.7
Issue No. 2: Appellants were denied procedural due process by the Department's failure to provide Appellants or their attorney a copy of the August 4, 1999, Staff Memorandum upon which the Commission relied in approving the denial of the building permit, even after a specific discovery request was made by Appellants.
An administrative tribunal has no jurisdiction to resolve constitutional issues. See Department of Revenue v. Young
American Builders, 330 So. 2d 864 (Fla. 1st DCA 1976). Because the decision to grant or deny a building permit is a quasi- judicial action, the Stokys may, if they wish, seek review of this final order by filing a petition for a writ of certiorari with the appropriate circuit court. See Board of County
Commissioners of Brevard County v. Snyder, 627 So. 2d 469 (Fla. 1993). In such a proceeding, one of the issues to be resolved by the circuit court is whether the administrative proceeding has been conducted in accordance with the constitutional requirements of procedural due process. See Educational Development Center, Inc. v. City of West Palm Beach Zoning Board
of Appeals, 541 So. 2d 106, 108 (Fla. 1989).
Issue No. 3: The Department's inability to locate a building permit between twenty and thirty years old, in light of Monroe County's history of lost permits as verified by at least one Commission member, and in view of similar construction by restaurants during and after that time period, were [sic] not competent substantial grounds to deny the permit application.
The Stokys argue that there is no competent substantial evidence in the record to support the Planning Commission's finding in paragraph 2 of Resolution No. P60-99 that there was "no evidence of the damaged porch ever being issued a permit," the finding on which the Planning Commission based its conclusion in paragraph 2 of Resolution No. P60-99 that "a permit may not be issued for a replacement screened porch." First, competent substantial evidence in the record supports the Planning Commission's finding that the screened porch was added to the structure which is now the Señor Frijoles/Cactus Jack's restaurants between 1978 and 1982: Neither the 1972 aerial photograph of the restaurants nor the drawing prepared by the Monroe County property appraiser in March 1978 show a screened
porch attached to the building; however, the June 1982 property appraiser's drawing of the Señor Frijoles restaurant shows a structure approximately 12' x 40' attached to the main restaurant building.8
There are three facts that are apparently undisputed in this appeal: First, a building permit would have been necessary prior to the original construction of the screened porch attached to the Señor Frijoles/Cactus Jack's restaurants. See Section 9.5-111(a), Monroe County Code ("No development shall occur except pursuant to a building permit.") and Section 9.5- 4(D-8), Monroe County Code ("Development means carrying out any building activity . . . ."). Second, a building permit could not be issued for the screened porch under the County's existing Comprehensive Plan and Land Use Regulations because, as shown in the site plans, the proposed construction encroaches into the shoreline setback restrictions currently in effect. Third, the subject application is for a building permit to reconstruct the previously-existing screened porch following its destruction by the tornadoes spawned by Tropical Storm Mitch in November 1998.
Section 9.5-144, Monroe County Code, provides in pertinent part:
Authority to continue: A nonconforming
structure devoted to a use permitted in the land use district in which it is located may be continued in accordance with the provisions of this section.
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(e) Termination:
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(2) Damage or destruction:
Any part of a nonconforming structure which is damaged or destroyed to the extent of less than fifty (50) percent of the fair market value of such structure may be restored as of right if a building permit for reconstruction shall be issued within six (6) months of the date of the damage.
. . . [A]ny nonconforming structure which is damaged or destroyed so as to require substantial improvement may be repaired or restored only if the structure conforms to the provisions of the land use district I which it is located. Fair market value shall be determined by reference to the official tax assessment rolls for that year or by an appraisal by a qualified independent appraiser. The extent of damage or destruction shall be determined by the building official, in consultation with the director of planning, by comparing the estimated cost of repairs or restoration with the fair market value.
Accordingly, a nonconforming structure can be restored under the conditions stated in Section 9.5-144, Monroe County Code.
A nonconforming structure is defined in Section 9.5-4(N-8), Monroe County Code, as follows:
Nonconforming structure means any structure
lawfully existing on the effective date of this chapter other than a sign, or any amendment to it rendering such structure nonconforming, which does not comply with
all of the standards and regulations of this chapter or any amendment thereto.
(Emphasis added.) Therefore, in order for the screened porch to be a "nonconforming structure" it must have been "lawfully existing" at some point in time, and, importantly, the screened porch could be "lawfully existing" only if it was built pursuant to a duly-issued building permit.
Mr. Lang testified before the Planning Commission that no building permit had been was issued for the original construction of the screened porch; that he performed exhaustive research in the Monroe County records; that he knew the names of all of the owners of the subject property extending back into the 1960's;9 and that Monroe County maintains ledgers in which all of the building permits issued in Monroe County are recorded chronologically under the property owners' names. Mr. Lang further testified that, in addition to reviewing the Planning Department's building-permit records, he reviewed the ledger entries under the names of each of the owners of the subject property, "back into the sixties." Finally, Mr. Lang testified that, as a result of his research,
"I have copies or the original permits of probably 85 to 90 percent of the permits issued since the late sixties right here. Some of them I don't have, but I at least have a description of what the work was that the permit was issued for and the permit number and the date."
The Stokys did not introduce any evidence rebutting the Planning Department's evidence that no building permit had been issued for the initial construction of the screened porch. The Stokys assert in their briefs that Monroe County has a history of problems in preserving and locating building permits, but, in support of this assertion, they refer only to comments made during the hearing by their attorney and by Commissioner Hill with respect to the difficulties of tracking down building permits in Monroe County. These comments were not made under oath and do not, therefore, constitute "evidence" sufficient to rebut the reasonable inference implicit in the Planning Commission's findings that no permit was issued for the screened porch.
There is competent substantial evidence in the record of the August 18, 1999, hearing to support the Planning Commission's finding that no building permit was issued for the original construction of the screened porch. Furthermore, the Planning Commission has correctly interpreted the Monroe County Code as prohibiting the issuance of permit number 99-3-857 for reconstruction of the screened porch and of an elevated deck at the rear of the Señor Frijoles/Cactus Jack's restaurants: In the absence of a building permit for the original construction of the screened porch, the porch was never a "lawfully existing"
structure. It was, therefore, an illegal structure and not a nonconforming structure that may be restored.
Issue No. 4: The Department's reliance on the 50 percent rule without advance notice to Appellants or their attorney was a violation of due process. The finding that the premises were damaged over 50 percent was based on an incorrect interpretation of the law and not on competent, substantial evidence. The Commission's findings were not legally sufficient to justify its denial of the Appellants' application.
As discussed above, the screened porch at the rear of the Señor Frijoles/Cactus Jack's restaurants was not a "lawfully existing" structure. Therefore, a permit cannot be issued pursuant to Section 9.5-144, Monroe County Code, to reconstruct the porch. Consequently, it is not necessary to reach the issue of whether the cost of restoring the screened porch will be less than 50 percent of the fair market value of the structure.
Issue No. 5: The Department's reliance on the "shoreline setback" rule ignores clear precedent in permitting structures within the shoreline setback. It was a violation of equal protection, and the Department's decision was not based on competent, substantial evidence nor was legally sufficient to justify its denial of the Appellants' application.
In paragraph 2 of Resolution No. P60-99, the Planning Commission found that the screened porch is located within the current 20-foot shoreline setback requirement in Section 9.5- 286, Monroe County Code, and concluded that a building permit could not be issued for the screened porch under the current Code. Although the Stokys do not take issue with this finding and conclusion, they do take issue with the Planning
Commission's conclusion in paragraph 3 of Resolution No. P60-99 that the screened porch could not have been permitted when it was originally constructed because it violated the shoreline setback requirements in effect prior to the 1986 Monroe County Comprehensive Plan. Because there is competent substantial evidence to support the Planning Commission's finding that no building permit was issued for the original construction of the screened porch, it is irrelevant whether a building permit could have been issued to the Señor Frijoles/Cactus Jack's restaurants under a "marine-oriented businesses" exception to the shoreline setback requirements prior to 1986.
Issue No. 6: The County should be equitably estopped from affirmatively asserting the lack of a prior permit, 50 percent rule and shoreline setback violation due to the conduct of the County in permitting the use for twenty to thirty years, and the conduct of its Staff in agreeing to issue a permit in return for certain agreements.
The arguments of the Stokys with respect to this issue are rejected as without merit. As the Stokys point out in their Initial Brief, the doctrine of equitable estoppel can be applied to a governmental entity only when the property owner has relied, in good faith and to his or her detriment, on some act or omission of the governmental entity. The fact that the Stokys had the "use of the screened porch for twenty to thirty years without interference from the County" does not establish
that they relied to their detriment on any act or omission of the County.10
In addition, the Stokys argue that the County should be estopped from denying permit number 99-3-857 because Mr. Lang offered to issue a building permit for reconstruction of the screened porch if Ms. Stoky would sign an affidavit "agreeing that there would be no restaurant seating or commercial use under the structure."11 Mr. Lang did testify that he provided Ms. Stoky with an affidavit to this effect, but this was in reference to the application for permit number 99-3-858, which was for reconstruction of the trellis at the Sundowner's restaurant, and not in reference to the application for permit number 99-3-857 to reconstruct the screened porch in the rear of the Señor Frijoles/Cactus Jack's restaurants.12
Issue No. 7: The four-year statute of limitation bars denial of the permit application.
The Stokys argue that their application for a permit to reconstruct the screened porch must be approved because, prior to its destruction in November 1998, the screened porch had been in place for more than four years. This argument is rejected as without merit. The only support the Stokys cite in their argument is the decision of the Circuit Court for the Sixteenth Judicial Circuit in LaTorre v. Monroe County, Case No. 96-1109, (October 6, 2000), a copy of which was not provided to the
undersigned, that the four-year statute of limitations bars a code-enforcement action. The action in the instant case is not a code-enforcement action, and the Stokys did not present any argument to establish that any statute of limitation bars the County from denying an application for a building permit.
DECISION
Based on the foregoing, the decision of the Monroe County Planning Commission in Resolution No. P60-99 approving the decision of the Monroe County Planning Department to deny the application of Robert and Ruth Stoky for a building permit to reconstruct a screened porch and to construct an elevated deck in the rear of the Señor Frijoles/Cactus Jack's restaurants is AFFIRMED.
DONE AND ORDERED this 12th day of October 2001, 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 12th day of October, 2001.
ENDNOTES
1/ The parcel number on documents from the property appraiser's office, Staff Exhibits 2 and 3, is RE #8499. It appears, however, that the reference on the attachment to the staff report to RE # 8498 is a typographical error because the permits were issued for the Señor Frijoles, Cactus Jack's, Sundowners restaurants or for the predecessors of these restaurants.
2/ The undersigned assumes that this paragraph was included in error, since it appears that the four numbered paragraphs following this introduction actually set forth the Planning Commission's findings of fact and conclusions of law.
3/ In the Initial Brief, the Appellants assert that neither they nor their attorney received a copy of the staff memorandum until "well after the hearing." This statement was corrected in the Appellants' Reply Brief, and counsel for the Appellants acknowledged during oral argument that he did receive a copy of the staff memorandum on August 18, just prior to the hearing on the Stokys's application.
4/ In their Reply Brief at page 4, the Stokys state that their attorney "specifically objected to introduction of these new issues set forth in the August 4, 1999, Memorandum," which statement is supported by a citation to the Record at page 40, lines 13 through 25. The Stokys also cited this passage to support a statement in their Initial Brief at page 6 that neither they nor their attorney was aware of the August 4 staff memorandum prior to the August 18 meeting. These assertions are not supported by the cited passage, which reflects that the Stokys' attorney made the following statement:
The whole nonconforming issue, and the substantial reconstruction, or substantial repair issue, is fraught with disaster.
First of all, the County didn't use the substantial reconstruction process for the basis for the denial. So I think I'm within my legal rights here to say they waived them. By not raising it, it's waived. They don't get to come in on August 4th, three months after the denial, and say, Oh, we need to come up with some new reasons.
That's changing the rules; that's moving the goal post. I submit to you that they're
stuck with the reasons that they came up with on May 5th [sic].
The only allusion to the lack of notice regarding new grounds in the August 4 staff memorandum to support the Planning Department's denial of the Stokys' application is found in the Record at page 43, lines 1 through 9, in a statement made by the Stokys' attorney:
. . . it is unfair to tell this applicant, one week before this hearing, or two weeks before this hearing before this body, that now he's got to prove that this is a non- substantial improvement to the patio. They didn't ask him to do that when he applied for the permit, so they waived it. They waived it. It's too late. . . .
5/ See, e.g., Record at page 42, lines 5 through 25, and at page 43, lines 9 through 11.
6/ Initial Brief at page 10.
7/ Because of this ruling, it is not necessary to address the issue of whether the Hearing Officer Appellate Article, Article XIV, Sections 9.5-535 through -542, Monroe County Code, confers on a hearing officer the authority to remand a case to the Planning Commission for further evidentiary proceedings.
8/ Although Mr. Lang initially testified that the structure had been built between 1972 and 1978, he later corrected his testimony and stated that the porch had been added between 1978 and 1982, which corresponds to the evidence in the aerial photographs and the property appraiser's drawings.
9/ The Stokys assert in their Reply Brief that the record reflects that a lessee of the restaurants, Ernie Bean, obtained a building permit in 1980. The record does reflect that a building permit was issued to a person identified as "Bean," but there is nothing in the record to establish that Mr. Bean was not the owner of the subject property.
10/ Initial Brief at page 20.
11/ Initial Brief at page 20.
12/ See Record at 17-18.
COPIES FURNISHED:
Steven P. Shea, Esquire Post Office Box 765
Islamorada, Florida 33036-0795
Karen K. Cabanas, Esquire Morgan & Hendrick
317 Whitehead Street
Key West, Florida 33040
Judith Chambers
Planning Commission Coordinator County of Monroe
Planning Department
2798 Overseas Highway, Suite 410
Marathon, Florida 33050-2227
NOTICE OF RIGHTS
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.
| Issue Date | Proceedings |
|---|---|
| Oct. 12, 2001 | Final Order issued (hearing held July 24, 2001). CASE CLOSED. |
| Oct. 01, 2001 | Supplement to the Record of the Administrative Appeal filed by Petitioners. |
| Sep. 20, 2001 | Letter to J. Chambers from Judge Malono requesting that record volume that was forwarded to DOAH be supplemented issued. |
| Jul. 24, 2001 | CASE STATUS: Hearing Held; see case file for applicable time frames. |
| Jul. 13, 2001 | Notice of Telephone Conference (hearing set for July 24, 2001, 10:00 a.m.). issued. |
| May 03, 2001 | Reply Brief of Robert Stoky and Ruth Stoky (filed via facsimile). |
| Apr. 26, 2001 | Notice of Filing, Monroe County`s Exhibit A (filed via facsimile). |
| Apr. 20, 2001 | Order Extending Time for Filing Reply Brief issued. |
| Apr. 18, 2001 | Unopposed Motion for Extension of Time to File Appellant`s Reply Brief (filed via facsimile). |
| Apr. 13, 2001 | Order Accepting Answer Brief as Timely Filed issued. |
| Apr. 11, 2001 | Appellee Monroe County`s Answer Brief (filed via facsimile). |
| Apr. 11, 2001 | Unopposed Motion to Accept Late Filing of Appellee`s Answer Brief (filed via facsimile). |
| Feb. 02, 2001 | Order Extending Time for Filing Answer Brief issued. |
| Jan. 30, 2001 | Unopposed Motion for Enlargement of Time to Serve Answer Brief (filed by Respondent via facsimile). |
| Jan. 22, 2001 | Initial Brief of Robert Stoky and Ruth Stoky filed. |
| Dec. 20, 2000 | Order Extending Time for Filing Initial Brief issued. |
| Dec. 19, 2000 | Order Substituting Counsel issued (the law firm of White and Case, LLP, is granted permission to withdraw as counsel and S. Shea, is substituted as counsel of record for the Appellants). |
| Dec. 19, 2000 | Unopposed Motion for Extension of Time to File Appellant`s Brief (filed via facsimile). |
| Dec. 15, 2000 | Unopposed Motion for Extension of Time to File Appellant`s Brief (filed via facsimile). |
| Dec. 15, 2000 | Letter to Judge P. Malono from S. Shea In re: advise on motion status (filed via facsimile). |
| Dec. 15, 2000 | Motion for Substitution of Counsel (filed by E. Goldberg via facsimile). |
| Dec. 15, 2000 | Notice of Entry of Appearance (filed by S. Shea via facsimile). |
| Dec. 15, 2000 | Motion for Substitution of Counsel (filed by E. Goldenberg via facsimile). |
| Sep. 15, 2000 | Order Extending Time for Filing Initial Brief issued. |
| Sep. 15, 2000 | Unopposed Motion for Enlargement of Time to Serve Initial Brief (filed via facsimile). |
| Jun. 14, 2000 | Order Extending Time for Filing Initial Brief sent out. (appellants shall file their initial brief by 9/25/2000) |
| Jun. 09, 2000 | Unopposed Motion for Enlargement of Time to Serve Initial Brief (filed via facsimile). |
| Jun. 09, 2000 | Unopposed Motion for Enlargement of Time to serve Initial Brief (filed via facsimile). |
| May 19, 2000 | Order on Stipulation for Substitution of Counsel sent out. (D. Halsey) shall remain the appellants` counsel) |
| May 11, 2000 | Order for Substitution of Counsel (For Judge Signature) filed. |
| May 11, 2000 | (D. Halsey) Stipulation for Substitution of Counsel filed. |
| May 01, 2000 | Order Extending Time for Filing Initial Brief sent out. (appellants shall filed their initial brief by June 25, 2000) |
| Apr. 25, 2000 | (Petitioner) Unopposed Motion for Enlargement of Time to Serve Initial Brief (filed via facsimile). |
| Mar. 24, 2000 | Order sent out. (the unopposed motion for enlargement of time to serve initial brief is granted, appellants shall file their initial brief by 4/26/2000) |
| Mar. 21, 2000 | Unopposed Motion for Enlargement of Time to serve Initial Brief (filed via facsimile). |
| Mar. 13, 2000 | Order Substituting Counsel sent out. (J. Mattson is granted permission to withdraw for appellants D. Halsey and the law firm of Halsey & Burns P.A. are hereby as substituted counsel of record) |
| Mar. 10, 2000 | (J. Mattson) Motion to Withdraw and Motion to Substitute Counsel (filed via facsimile). |
| Feb. 29, 2000 | Order Extending Time for Filing Initial Brief sent out. (Appellants shall file their briefs by 3/24/00) |
| Feb. 23, 2000 | (J. Mattson) Unopposed Motion for Extension of Time to Serve Initial Brief (filed via facsimile). |
| Feb. 16, 2000 | Letter to J. York from J. Chambers Re: Error in the notation of a document date; Planning Department Documents filed. |
| Jan. 31, 2000 | Order Extending Time for Filing Initial Brief sent out. (Appellants shall file their Initial Brief by 2/23/00) |
| Jan. 27, 2000 | Cover Letter from J. Chambers filed. |
| Jan. 27, 2000 | Index of the Record for Administrative Appeal filed. |
| Jan. 27, 2000 | Application for An Administrative Appeal (1 Volume Binder) filed. |
| Jan. 27, 2000 | Notification Card sent out. |
| Jan. 21, 2000 | Application for An Appeal to the Hearing Officer filed. |
| Jan. 21, 2000 | Unopposed Motion for Extension of Time to Serve Initial Brief filed. |
| Jan. 03, 2000 | Index of the Record for Administrative Appeal filed. |
| Jan. 03, 2000 | Agency Referral Letter filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 12, 2001 | DOAH Final Order | Planning Commission`s order approving Planning Department`s denial of building permit is affirmed. Original structure was built without permit. It is, therefore, an illegal structure that cannot be reconstructed as a nonconforming structure. |
