STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALOCRAVE INVESTMENTS LTD., ) INC., JAMES J. JAMES, and ) BOARD OF COUNTY COMMISSIONERS ) OF MONROE COUNTY, )

)

Petitioners, )

)

vs. ) CASE NO. 87-3150

) STATE OF FLORIDA, DEPARTMENT ) OF COMMUNITY AFFAIRS, )

)

Respondent. )

) STATE OF FLORIDA, DEPARTMENT ) OF COMMUNITY AFFAIRS, )

)

Petitioner, )

)

vs. ) CASE NO. 87-3639

) MONROE COUNTY and PALOCRAVE ) INVESTMENTS, LTD., INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in these consolidated cases on September 8, 1988, in Key West, Florida.

APPEARANCES

For Petitioners: Michael Halpern, Esquire Palocrave Harvey Duvall, Esquire

Investments 209 Duval Street

Ltd., Inc., and Key West, Florida 33040 James J. James

For Petitioner: Randy Ludacer, Esquire Board of County Monroe County Attorney Commissioners of 310 Fleming Street Monroe County Key West, Florida 33040

For Respondent: John M. Carlson, Esquire

State of Florida, Department of Community Affairs Department of 2740 Centerview Drive

Community Tallahassee, Florida 32399 Affairs

STATEMENT OF THE ISSUES

The issue presented for decision herein is whether or not petitioners Palocrave Investments Ltd., Inc. (Palocrave), and James J. James, violated the building height restriction established in the Monroe County land development regulations, and if so, what, if any, administrative penalty is appropriate.

INTRODUCTION

At the outset of the hearing, petitioner, State of Florida, Department of Community Affairs, requested that official recognition be taken of Rule 9J-1, Florida Administrative Code, pages 569, 1100, and 1224 of Webster's New World Dictionary of the American Language, College Edition, Simon and Schuster, and pages 1373 and 1394 of Webster's New World Dictionary of the American Language, Second College Edition, Simon and Schuster. Petitioner's motion for official recognition was granted pursuant to Section 221-6.020, Florida Administrative Code. 1/

Palocrave applied for a permit and was granted one to construct an addition to its building which exceeded the 35-foot height limitation. The Department, on April 27, 1987, appealed the subject permit to the Florida Land and Water Adjudicatory Commission (FLAWAC). Thereafter, Palocrave and the Department entered into an agreement on April 24, 1987, which settled the appeal and required, inter alia, that Palocrave file with the Monroe County Building Department modified drawings for the building which would provide detailed construction information necessary to identify how the building would be built and how it would be of a height of 35 feet or less. Palocrave was required to apply for a new or amended building permit from Monroe County to the extent that it desired to construct an addition to the building which exceeded the 35-foot height limitation and if and when such a permit was issued allowing such construction, that that permit would be appealable to the FLAWAC pursuant to Section 380.07, Florida Statutes, within 45 days from the rendition and transmittal of the building permit to the Department. As a result of that agreement, the Department dismissed its appeal of the subject building permit and allowed the owner to resume the construction under the permit.

Petitioner, State of Florida, Department of Community Affairs (Department), presented the testimony of S. Stewart Sterlings, a registered architect; the deposition of Angel C. Saqui, a registered architect; Bernard Zyskovitch, a registered architect; and the depositions of Charles Waler and Eduardo Hillman- Waller. James J. James testified in his own behalf and presented the testimony of Joel Rosenblatt, an engineer; Richard Eid, a class "A" general contractor licensed in Florida; James A. Flanner, a registered real estate broker; and Francisco A. Benitez, a registered Architect in Florida. The Department introduced exhibits 1-8 which were received In evidence and respondents, Palocrave Investments Ltd., Inc., and James J. James introduced exhibits 1 and 2 which were received in evidence.

FINDINGS OF FACT

Based on my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record complied herein, I make the following relevant factual findings:

1. Palocrave Investments, Ltd., Inc. (Palocrave), is a corporation under the laws of Florida whose address is 3972 NW 36th Street, Miami, Florida 33142.

2. The Department of Community Affairs (Department) is a state agency as defined in Section 120.52(1), Florida Statutes, and is authorized to administer and enforce the provisions of Chapter 380, Florida Statutes and rules and regulations promulgated thereunder.

   
   

3. Palocrave is the owner of a lot in a portion of Section 13, Township 62 south, Range 38 east, Key Largo, Monroe County, Florida.

   
   

4. Most of Monroe County, including the subject property, is designated as an area of critical state concern (ACSC) pursuant to Section 380.0552, Florida Statutes (1986), and is subject to the provisions of Chapters 9J-14 and 28-20, Florida Administrative Code (FAC), which comprise the comprehensive plan and land development regulations for the Florida Keys ACSC.

   
   

5. On January 29, 1987, Palocrave applied for a Monroe County building permit for the addition of a raised point to the roof of an existing house as stated in the permit application signed by Albio Castro, as contractor, and James J. James, as owner.

   
   

6. On February 26, 1987, Monroe County issued Palocrave building permit C21282 for the addition, as applied for, including the construction of stairs, balconies and a fence, based on the information provided in the documents submitted with the application.

   
   

7. Permit C21282 authorizes the construction of a building that has a portion of its elevation which exceeds a maximum height of 35 feet.

   
   

8. Respondent Palocrave built a permanent roof structure above the master bedroom of the subject residence at the 35 foot level. At that point, a decorative point was added which was not accessible, functionable, heated or air-conditioned. The area which comprised the point rests atop the roof and is

   sealed off over the habitable area of the master bedroom. The pointed structure is of a conical shape with a maximum height of 44 feet and comprises less than one-third of the total roof area.

   
   

9. Palocrave engaged the services of a registered engineer to complete the drawings for the pointed addition of the gable roof. The house is of Victorian design of which there are few in Monroe County.

   
   

10. Joel Rosenblatt, a registered engineer who was tendered and received as an expert in structural and civil engineering, has been building roof systems in Monroe County in excess of eight (8) years. The addition which is in excess of the 35-foot height limitation is an embellishment and is not necessary for the structural integrity of the roof system. The roof system is of a gable type that's modified by a spiral point and is an architectural addition added only for decorative purposes. (Testimony of Rosenblatt, Eid and Benitez).

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject of and the parties to this action pursuant to Section 120.57(1), Florida Statutes.

    
    

12. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

13. The authority of the Department of Community Affairs is derived from Chapter 380, Florida Statutes. Section 380.0552(8), Florida Statutes, provides that the land development regulations approved pursuant to Sections 380.05(6),

    (8) and (14), Florida Statutes, shall be the land development regulations for the Florida Keys area of critical state concern.

    
    

14. Rule 28-20.021, Florida Administrative Code, amends and incorporates by reference Section 9-430 of the Monroe County Land Development Regulations.

    
    

15. Section 9-430 of the Monroe County Land Development Regulations is entitled "Maximum Height" and provides:

    
    

    No structure or building shall be developed that exceeds a maximum height of thirty-five (35) feet.

    
    

16. Section 3-101.8-3 of the Monroe County Land Development Regulations defines height as follows:

    
    

    Height means the vertical distance between grade and the highest part of any structure, including mechanical equipment, but excluding chimneys, spires, steeples, radio or television antenna, flag poles, solar apparatus and utility poles.

    
    

17. The construction of the pointed addition at issue herein, which was built up to the height of 44 feet, is a spire and is excluded pursuant to the exceptions to the definition of height in Section 3-101.8-3 of the Monroe County Land Development Regulations as incorporated by reference in Rule 28-20.021, Florida Administrative Code.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that:

The Department enter a final order finding that Palocrave Investments Ltd., Inc., and James J. James' construction of the addition to its residence which exceeds the 35 foot height limitation is a decorative spire and is therefore permissible and excluded from the building height restrictions established in the Monroe County Land Development Regulations and therefore is not in violation of such regulations.

RECOMMENDED this 26th day of January, 1989, in Tallahassee, Leon County, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 26th day of January, 1989.

COPIES FURNISHED:

Michael Halpern, Esquire Harvey Duvall, Esquire

209 Duval Street

Key West, Florida 33040

Randy Ludacer, Esquire Monroe County Attorney

310 Fleming Street

Key West, Florida 33040

John M. Carlson, Esquire Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399

Thomas G. Pelham, Secretary Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399

Larry Keesey, Esquire General Counsel

Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399

Docket for Case No: 87-003150

Orders for Case No: 87-003150