STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUNSET MARINA RESIDENCES OF KEY ) WEST CONDOMINIUM ASSOCIATION, ) INC., )

)

Petitioner, )

)

vs. )

) CITY OF KEY WEST AND DEPARTMENT ) OF ECONOMIC OPPORTUNITY, )

)

Respondents. )

Case No. 12-3047

)

RECOMMENDED ORDER

The final hearing in this case was held by video teleconference on February 8, 2013, at sites in Tallahassee and Key West, Florida, before Bram D. E. Canter, Administrative Law Judge of the Division of Administrative Hearings ("DOAH").

APPEARANCES

For Petitioner: Barton William Smith, Esquire

Smith Oropeza, P.L.

138-142 Simonton Street

Key West, Florida 33040-6627 For Respondent City of Key West:

Larry R. Erskine, Esquire Larry R. Erskine, P.A. Post Office Box 4035

Key West, Florida 33041-4035

For Department of Economic Opportunity:

Sherry A. Spiers, Esquire Department of Economic Opportunity MSC 110

107 East Madison Street Tallahassee, Florida 32399-6545

STATEMENT OF THE ISSUES

The issues to be determined in this case are whether the land development regulations (LDRs) adopted by the City of Key West in Ordinance No. 12-16 are consistent with the City of Key West Comprehensive Plan and the Principles for Guiding Development for the City of Key West Area of Critical State Concern, and whether Final Order No. DEO-12-109 of the Department of Economic Opportunity ("DEO"), which approved the

LDRs, is valid.

PRELIMINARY STATEMENT

On June 5, 2012, the City of Key West adopted Ordinance No. 12-16, which amended the LDRs in the City of Key West Code that regulate the land uses allowed in the Public and Semi-Public ("PS") land use district. On August 3, 2012, DEO approved the LDRs in Final Order No. DEO-12-109, determining that the LDRs are consistent with the Principles for Guiding Development for the City of Key West Area of Critical State Concern and the City’s Comprehensive Plan.

DEO's Final Order was published in the Florida

Administrative Weekly on August 17, 2012. Petitioner filed a

timely petition for hearing to challenge the Final Order and the LDRs that were approved. DEO referred the petition to DOAH to conduct an evidentiary hearing and prepare a recommended order.

At the final hearing, Petitioner presented the testimony of: Wendy Coles, Joanne Alexander, and Owen Trepanier, who was accepted as an expert in land use planning, comprehensive planning, and zoning. Respondents City of Key West and DEO presented the testimony of: Donald Leland Craig, the City’s Planning Director, who was accepted as an expert in land use planning, comprehensive planning, and zoning; and

Rebecca Jetton, the Administrator of the DEO’s Area of Critical State Concern Program.

The parties’ Joint Exhibits 1-18 and Key West Exhibit 1 were admitted into evidence.

The one-volume Transcript of the final hearing was filed with DOAH. The parties submitted proposed recommended orders that were carefully considered in the preparation of this

Recommended Order.

FINDINGS OF FACT

The Parties

1. Petitioner is a not-for-profit corporation comprised of owners of condominium units located at the Sunset Marina Residences property within the City of Key West.

   
   

2. The City of Key West is a Florida municipality. It is located within the City of Key West Area of Critical State Concern.

3. DEO is the state land planning agency and has the statutory duty to review and approve LDRs adopted in an area of critical state concern. See § 380.05(6), (11), Fla. Stat. (2012).1

   The Proposed LDRs

   
   

4. The proposed LDRs are in sections 122-1016, 122-1017, 122-1018, and 122-1022 of the City of Key West Code. Petitioner's challenge focused on section 122-1017, which was amended to include emergency and temporary homeless shelters in its description of permitted uses in the PS district:

   Uses permitted in the public and semipublic services districts are as follows:

   
   

   * * *

   
   

   (13) Essential public services and facilities inclusive of but not limited to; drainage facilities, and emergency services; i.e. staging areas responsive to declared emergency, with the exception of shelters for the homeless, which are regulated as a conditional use;

   
   

   Standing

   
   

5. Petitioner’s property is located near two PS districts, one of which is a former City landfill and the other is the site of the Monroe County Jail, Sheriff’s Department administrative

   
   

   offices, and the Keys Overnight Temporary Shelter. Petitioner's condominium units are separated from the inactive landfill by an area of wetlands (designated Conservation Outstanding Waters), which creates a natural buffer. The condominium units are separated from the existing shelter by an inlet of the Gulf of Mexico and a General Commercial zoning district on the opposite upland.

6. In its petition for hearing, Petitioner alleged that it's members would be substantially affected by the proposed LDRs because Petitioner's members have been "involved in the development and enforcement of the City of Key West's Comp. Plan and implementing land development regulations" and they "rely on the Comp. Plan and its implementing land development regulations to protect their quality of life and ability to safely evacuate from the Florida Keys in the event of a hurricane or other emergency."

7. At the final hearing, Petitioner made only a vague reference to adverse effects from the existing Keys Overnight Temporary Shelter, without any identification of the impacts. Petitioner never articulated how the operation of a homeless shelter on the nearest PS-designated lands would result in injury to its members. Petitioner focused on hurricane evacuation, implying that its members would be impeded in their attempt to evacuate Key West if the LDRs are approved.

   
   

   Whether a Homeless Shelter is a Residential Land Use

   
   

8. Petitioner argues that proposed section 122-1017 is inconsistent with Policy 1-2.6.1 of the City’s Comprehensive Plan, which describes the land uses allowed under the PS land use designation:

   The Public and semi-public institutional (PS or HPS) land use designation is intended to accommodate existing public and semi-public services including: governmental administration buildings; public schools and not-for-profit educational institutions; hospital facilities and supportive heath care units; arts and cultural or civic facilities; essential public services and facilities; cemeteries; the City landfill; fire and emergency operation facilities; public and private parks and recreation areas; utilities; extensive open areas comprising major committed public and semi- public open spaces; and other similar activities as shall be identified in the land development regulations.

   
   

9. The Comprehensive Plan establishes intensity limits for land uses in PS districts, based on floor area ratio.

10. Residential uses are not among the land uses identified in Policy 1-2.6.1. Residential land uses are regulated elsewhere in the Comprehensive Plan by density limits or dwelling units per acre.

11. Petitioner contends that homeless shelters are residential land uses, which are not allowed in PS districts. The City contends, and DEO agrees, that homeless shelters are not residential uses, but are institutional land uses and also

    
    

    essential public services and facilities, which are authorized land uses in the PS district.

12. The Comprehensive Plan does not define the terms "institutional" or "essential public services and facilities."

13. The term "residential uses" is defined in the Comprehensive Plan as "activities within land areas used predominantly for housing."

14. Petitioner argues that emergency shelters and temporary shelters are types of housing and, therefore, meet the definition of residential uses. The term "housing" is not defined. The term "housing unit" is defined in the Comprehensive Plan as an "occupied or vacant house, apartment or a single room occupied by one individual known as a single room occupancy which is intended as separate living quarters." A homeless shelter does not consist of housing units.

15. Chapter 86 of the City Code defines “residential activities” as single-family/two-family dwellings and accessory units, multifamily dwellings, manufactured housing, group homes, and approved home occupations. Hospitals, nursing homes, and other similar facilities provide temporary housing for the ill, infirm, or injured, but they are not treated as residential activities in the City Code.

16. Emergency shelters, whether for homeless persons or for persons with homes, are not ordinarily thought of as the

    
    

    residences of the sheltered persons. Nevertheless, to add to the confusion, the Comprehensive Plan defines the word "sheltered" as "a person or family whose primary nighttime residence is a supervised, publicly or privately operated shelter."

17. Petitioner argues that homeless shelters are residential in nature because they provide housing for sleeping, dining, bathing, and storage of personal items, all of which are characteristics of residences.

18. The definition of "residential uses" in the Comprehensive Plan, by itself, is not helpful to resolve this dispute. However, when all the definitions and related provisions of the Comprehensive Plan and the City Code are considered together, they reflect a fundamental distinction between residences and institutional housing, such as hospitals, nursing homes, mental institutions, jails, and prisons -- institutional housing is supervised and controlled by the public or private operator; a residence is not.

19. Like a hospital patient, a homeless person does not have control over his or her room and its contents and cannot exclude others. The supervisory staff cannot be locked out and they remain in control of almost all aspects of the occupancy. In a residence, the occupant has exclusive use and control of

    
    

    the premises, or much greater use and control than in institutional housing.

20. Therefore, the City's interpretation of the term "institutional" in Policy 1-2.6.1 of the Comprehensive Plan as including homeless shelters is a reasonable interpretation.

21. Providing shelter to homeless persons is now a public function performed by nearly all cities in Florida and the United States. The City's interpretation of the term "essential public services and facilities" in Policy 1-2.6.1 to include homeless shelters is also a reasonable interpretation.

    Growth Management

    
    

22. In its petition, Petitioner claims that the proposed LDRs would result in "uncontrolled population growth." Petitioner presented no evidence to prove this claim. The claim is speculative. The City presented evidence that the number of homeless persons in the City is decreasing.

23. Due to the difficulty in evacuating Key West during a hurricane, a Building Permit Allocation System ("BPAS") was established to limit future growth so that it will not prevent achievement of the goal to evacuate Key West 24 hours before hurricane-force winds make landfall. BPAS limits are derived from a hurricane evacuation model and are based on the ability of residents to drive to safe areas.

    
    

24. Petitioner contends that the LDRs are invalid because they violate BPAS by failing to account for the greater numbers of homeless persons that would have to be evacuated during a hurricane. It has already been noted that Petitioner did not prove its claim that the LDRs would increase the population of homeless persons in the City.

25. The City's hurricane evacuation plan calls for evacuating the "special needs population," including homeless persons (in buses), before the 24-hour period in which the permanent population must be evacuated. Furthermore, the hurricane evacuation model is based on the estimated number of cars involved in the evacuation and the model assumes that the homeless do not have cars. The proposed LDRs would have no effect on BPAS.

26. There are three existing or approved facilities in Key West, two for homeless women and children and one for persons with HIV/AIDS, which were subject to BPAS. Petitioner contends that these projects support its contention that homeless shelters must be accounted for in BPAS. However, the three facilities were shown to be unique because they are essentially apartment buildings. Their occupancy is not supervised in the same way that homeless shelters are supervised. In addition, because these projects are for the working poor who are expected

    
    

    to have automobiles, they will affect the 24-hour evacuation model.

    Principles for Guiding Development

    
    

27. DEO must determine that the challenged LDRs are consistent with the Principles For Guiding Development for the City of Key West, as set forth in Florida Administrative Code Rule 28-36.003(1). Although the petition for hearing included a claim that the proposed LDRs are inconsistent with these principles, Petitioner appears to have abandoned the claim in its proposed recommended order.

28. Providing emergency and temporary shelters for the homeless population achieves two principles for guiding development stated in rule 28-36.003(1):

    1. Strengthen local government capabilities for managing land use and development.

       
       

       * * *

       
       

       (h) Protection of the public health, safety, welfare, and economy of the City of Key West, and the maintenance of Key West as a unique Florida Resource.

       
       

29. The challenged LDRs strengthen the City’s ability to manage future land development by establishing criteria for the approval of homeless shelter as conditional uses.

30. Providing shelters for the homeless obviously protects the public health, safety, and welfare of homeless persons who

    
    

    use the shelters. The shelters also help to decrease panhandling and loitering in public areas by homeless persons, especially in areas with high visibility and use by tourists.

    CONCLUSIONS OF LAW

    
    

31. In order to have standing to challenge a proposed LDR as inconsistent with the applicable local government comprehensive plan, a person must be substantially affected by the proposed LDR. See § 163.3213(5)(a), Fla. Stat.

32. To be substantially affected, a petitioner must show

    
    

    (1) it "will suffer injury in fact which is of sufficient immediacy to entitle him to a hearing," and, (2) that the "substantial injury is of a type or nature which the proceeding is designed to protect." Agrico Chem. Co. v. Dep’t of Envtl Reg., 406 So. 2d 478, 482 (Fla. 2d DCA 1981).

33. For an association to meet the requirements of standing, it must demonstrate that a substantial number of its members would have standing as individuals. See Fla. Home

    Builders Ass'n v. Dep't of Labor & Emp. Sec., 412 So. 2d 351, 353 (Fla. 1982).

34. Petitioner failed to demonstrate that its members will suffer an injury. Petitioner's main premise for standing, that the LDRs would cause hurricane evacuation to be impeded, was not proven. Petitioner failed to demonstrate that its members would be substantially affected by the proposed LDRs. However, because

    
    

    an evidentiary hearing was held on all disputed issues, Findings of Fact and Conclusions of Law are presented here.

35. DEO has the burden of proof to show the validity of its Final Order. See § 380.05(6), Fla. Stat.

36. Sections 380.05(6) and 380.05(11) require that proposed LDRs be consistent with the principles for guiding development that have been established for an area of critical state concern.

37. The standard of proof applicable to DEO's determination that the proposed LDRs are consistent with the Principles for Guiding Development for the City of Key West Area of Critical State Concern is preponderance of the evidence. See

    §§ 120.57(1)(j), 380.05(6), Fla. Stat. DEO met its burden on this issue.

38. Section 163.3194(1)(b) requires that all LDRs adopted by a local government be consistent with the local government’s comprehensive plan.

39. Section 163.3194(3)(a) provides:

    
    

    [A] land development regulation shall be consistent with the comprehensive plan if the land uses, densities or intensities, and other aspects of development permitted by such order or regulation are compatible with and further the objectives, policies, land uses, and densities or intensities in the comprehensive plan and if it meets all other criteria enumerated by the local government.

    
    

40. The standard of proof applicable to DEO's determination that the proposed LDRs are consistent with the City of Key West Comprehensive Plan is the "fairly debatable standard." See § 163.3213(5)(a), Fla. Stat. The fairly debatable standard of review "requires approval of a planning action if reasonable persons could differ as to its propriety." Martin Cnty. v. Yusem, 690 So. 2d 1288, 1295 (Fla. 1997). DEO met its burden on this issue.

41. In summary, DEO's determination is valid.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Department of Economic Opportunity enter a final order determining that Petitioner is not substantially affected by the proposed LDRs, and approving the LDRs adopted by the City of Key West Ordinance No. 12-16.

DONE AND ENTERED this 26th day of March, 2013, in Tallahassee, Leon County, Florida.

S

BRAM D. E. CANTER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 2013.

ENDNOTE

1/ All references to the Florida Statutes are to the 2012 codification.

COPIES FURNISHED:

Barton William Smith, Esquire Smith Oropeza, P.L.

138-142 Simonton Street

Key West, Florida 33040-6627

Sherry A. Spiers, Esquire Department of Economic Opportunity MSC 110

107 East Madison Street Tallahassee, Florida 32399-6545

Larry R. Erskine, Esquire Larry R. Erskine, P.A. Post Office Box 4035

Key West, Florida 33041-4035

Jessie Panuccio, Executive Director Department of Economic Opportunity MSC 110

107 East Madison Street Tallahassee, Florida 32399-6545

Robert H. Sechen, General Counsel Department of Economic Opportunity MSC 110

107 East Madison Street Tallahassee, Florida 32399-6545

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 12-003047

Orders for Case No: 12-003047