STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT ) OF COMMUNITY AFFAIRS, )

)

Petitioner, )

)

vs ) CASE NO. 88-0286

)

MONROE COUNTY, and )

CIRCLE K CORPORATION, )

)

Respondents. )

)

RECOMMENDED ORDER

On October 24, 1988, a hearing was held in the above-styled case. At hearing, the parties stipulated to the submittal of this case for resolution upon an agreed record, that if the case were tried no party would submit any proof other than that contained in the agreed record, and that traditional burdens of proof should be applied in evaluating the record.

APPEARANCES

For Petitioner: John N. Carlson, Jr., Esquire

Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

For Respondent, Randy Ludacer, Esquire Monroe County: County Attorney's Office

302 Fleming Street

Key West, Florida 33040

For Respondent, Kenneth A. Jones, Esquire Circle K Humphrey, Jones & Myers, P.A. Corporation: 1625 Hendry Street, Third Floor

Fort Myers, Florida 33901 PRELIMINARY STATEMENT

This is an appeal, pursuant to Section 380.07, Florida Statutes, to the Florida Land and Water Adjudicatory Commission (Adjudicatory Commission) from a development order of Monroe County which granted the application of Circle K Corporation for a building permit to construct a convenience store, with three fuel tanks, on Big Pine Key, Monroe County, Florida. As permitted, the development would allow direct access to U.S. 1 (State Road 5) by way of a curb cut which the petitioner, Department of Community Affairs (Department) contends violates existing land development regulations. The Adjudicatory Commission forwarded the Department's appeal to the Division of Administrative Hearings, and requested the assignment of a Hearing Officer to conduct a hearing pursuant to Section 120.57(1), Florida Statutes.

As heretofore noted, the parties waived their right to a hearing on the merits, and stipulated to the submittal of this case for resolution upon an agreed record, that if the case were tried no party ou1d submit any proof other than that contained in the agreed record, and that traditional burdens of proof should be applied in evaluating the record. The parties' agreed record has been marked as Hearing Officer exhibit 1.

Pursuant to Section 120.57(1)(b)4, Florida Statutes, all parties were accorded the opportunity to submit proposed findings of fact. The Department and Circle K Corporation elected to file such proposals, and they have been addressed in Appendix I to this recommended order.

FINDINGS OF FACT

1. Respondent, Circle K Corporation (Circle K), is the owner of a piece of property at mile marker 30.5, big Pine Key, Monroe County, Florida. As sited, the subject property is located within that part of Monroe County designated as an Area of Critical State Concern (ACSC).

   
   

2. On June 26, 1986, Circle K applied to Monroe County for a building permit to construct a convenience store, with two service islands for the sale of gasoline, upon the subject property. As sited, the property occupies the southeast corner of the intersection of U.S. 1, also known as State Road 5, and Chapman Road.

   
   

3. As proposed, the convenience store would face U.S. 1, and would accord its patrons direct access to U.S. 1 by way of a curb cut that was located 80 feet from the intersection of U.S. 1 and Chapman Road, and direct access to Chapman Road by way of a curb cut that was located 60 feet from the intersection of U.S. 1 and Chapman Road. Attached hereto as Appendix II is a copy of Circle K's site plan, which graphically depicts the proposed project and curb cuts.

   
   

4. Pertinent to this case, that portion of Circle K's plan which sought approval to gain direct access to U.S. 1 by way of a curb cut that was located

   80 feet from Chapman Road was denied by Monroe County's Planning Director. Circle K appealed that decision to the Monroe County Planning Commission which, on September 3, 1987, reversed the decision of the planning director and approved Circle K's proposal. In so doing, the planning commission articulated the following reasons for its action:

   
   

   The decision of the Planning Director is overturned and the appeal is granted pursuant to: (1. Section 9-1404 granting temporary parallel access on the basis that to deny this would create a safety hazard. AND (2. The FD0T permit is to be considered superior to local driveway permitting.

   
   

5. The FDOT (Florida Department of Transortation) permit referenced in the Commission's decision was a connection permit issued by FDOT to Circle K on May 28, 1987. That permit authorized Circle K to connect its driveway to U.S. 1, provided the connection was constructed in accordance with existing FDOT regulations, and carried the following legend conspicuously stamped thereon:

   VALIDITY OF THIS PERMIT IS CONTINGENT UPON PERMITTEE OBTAINING NECESSARY PERMITS FROM ALL OTHER AGENCIES INVOLVED.

   
   

6. On September 25, 1987, the Monroe County Building and Zoning Department, in accordance with the Commission's decision, issued Permit No. A18731 to Circle K. That permit approved Circle K's plan to construct a convenience store on the subject property, with direct access to U.S. 1 as initially proposed.

   
   

7. Petitioner, Department of Community Affairs (Department), pursuant to Section 380.07, Florida Statutes, filed a timely appeal with the Florida Land and Water Adjudicatory Commission (Adjudicatory Commission) contesting the propriety of the aforesaid permit (development order) because it authorized development with direct access to U.S. 1 by way of a curb cut spaced less than

   400 feet from an existing street on the same side of U.S. 1.

   
   

   Monroe County land development regulations

   
   

8. Pertinent to this case, Monroe County Land Development Regulations (MCLDR) provide:

   
   

   ... ACCESS STANDARDS

   Sec. 9-1401. Major Road Access.

   No structure or land shall be developed, used or occupied unless direct access to U.S. 1 or County Road 905 is by way of a curb cut that is spaced at least 400 feet from any other curb cut that meets the access standards of the Florida Department of Transportation or an existing street on the same side of U.S. 1 or County Road 905.

   Sec. 9-1402. Parallel Access.

   Lots that cannot meet the major access standard in Section 9-1401 shall take access from platted side streets, parallel streets or frontage roads.

   Such access shall be acquired by installing a parallel street or frontage road, through combined parking lots or by combining lots by sharing drives, or the provision of easements of access.

   * * *

   Sec. 9-1404. Temporary Access.

   No applicant shall be denied development approval for the sole reason that the lot cannot meet the requirements of Sections 9-1401 or 9- 1402. To provide access the Director of Planning shall issue a temporary access permit provided that the landowner's site plan provides for the eventual connection to a parallel access on an adjoining property, and that the owners

   agree, with suitable legal documents to close the temporary access when connection to adjoining properties is feasible.

   
   

9. The foregoing provisions of Monroe County's land development regulations have been found consistent with the Principles for Guiding Development for the Florida Keys Area of Critical State Concern, and constitute land development regulations for the Florida Keys Area of Critical State Concern in Monroe County.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

11. This is an appeal, pursuant to Section 380.07, Florida Statutes, from a development order of Monroe County granting Circle K's application for a permit to construct a convenience store with direct access to U.S. 1 in an area of critical state concern. Pursuant to the provisions of Section 120.57(1) , Florida Statutes, the propriety of Monroe County's action was reviewed de novo. Transgulf Pipeline Co. v. Board of County Commissioners, 438 So.2d 876 (Fla. 1st DCA 1983).

    
    

12. The ultimate burden of persuasion rested on Circle K to establish its entitlement to the permit authorizing it to construct a convenience store with direct access to U.S. 1. Graham v. Estuary Proerties, Inc., 399 So.2d 1374 (Fla. 1981), and Florida De-artment of Transportation v. J. W. C. Co., Inc. 396 So.2d 778 (Fla. 1st DCA 1981). Circle K has failed to demonstrate that its proposal complies with the land development regulations applicable to this case. 1/

    
    

13. While there may have been some confusion in the past as to whether the Florida Department of Transportation (FDOT) had preempted jurisdiction to regulate access to roads on the state highway system, it is now established that counties may adopt standards for access permitting on such system which meet or exceed FDOT standards so long as they are not inconsistent with FDOT's standards. Section 335.182(2) , Florida Statutes. Accordingly, since there was no demonstrated inconsistency between FDOT's standards and Monroe County's land development regulations, FDOT's standards do not preempt county jurisdiction and Circle K was required to demonstrate compliance with Monroe County's land development regulations to gain permit approval with direct access to U.S. 1.

    2/

    
    

14. Pertinent to this case, Section 9-1401, MCLDR, construed in pari materia with Sections 9-1402 and 9-1404, MCLDR, precludes approval of Circle K's project if the subject curb cut on U.S. 1 is located within 400 feet of either an existing FDOT approved curb cut or an existing street on the same side of

    U.S. 1 as the proposed project. No proof was offered which would demonstrate the proximity of the subject curb cut to existing FDOT approved curb cuts, but the proof did establish that it was to be located within 80 feet of the intersection of Chapman Road(an existing street) and U.S. 1. 3/ Under such circumstances, Circle K is, pursuant to Section 9-1402, NCLDR, required to gain access to U.S. 1 by way of Chapman Road. Notably, in addition to seeking direct access to U.S. 1 by way of the subject curb cut, Circle K also proposes access to Chapman Road, which abuts its property, by way of a curb cut that is only 60 feet from the intersection of that road with U.S. 1.

15. As sited, Circle K's development can comply with the access standards established by Sections 9-1401 and 9-1402, NCLDR, and there was no proof offered, whether for reasons of public safety or otherwise, that would militate against their application or support the approval of a permit for temporary access to U.S. 1 under Section 9-1404, NCLDR.

    
    

16. While not entitled to the requested permits Circle K is entitled to a specification of what changes in its proposal are necessary that would make it eligible to receive a permit. Section 380.08(3), Florida Statutes. Based on the evidence adduced, Circle K's application would conform with existing land development regulations, and would be subject to approval, if it eliminated any direct access from the property to U.S. 1.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a

final order reversing Monroe County's decision to issue permit number A18731,

and deny Circle K's application for such permit. It is further recommended that such final order specify those items set forth in paragraph 7, Conclusions of Law, as the changes necessary that would make Circle K's proposal eligible to receive the requested permit.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of December, 1988.

WILLIAM J. KENDRICK

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1050

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 27th day of December, 1988.

ENDNOTES

1/ Circle K has asserted that the subject permit is not subject to review because "the creation or termination of rights of access, riparian rights, easements, covenants concerning development of land, or other land rights" are not, pursuant to Section 380.04(3)(h), Florida Statutes, considered "development." Circle K's assertion is not well founded since that subsection merely applies to the acquisition of land rights, not to the ultimate development of the property. Here, Circle K's acquisition of a connection permit from FDOT for access to FDOT right-of-way is not subject to review under Chapter 380 because it is not development, but Circle K's application for a permit to construct the convenience store with appurtenant structures and driveways is development and subject to Chapter 380 review. See: Section 380.04(1), (2) and (4), Florida Statutes.

2/ Section 335.182(2), Florida Statutes, was effective July 1, 1988, and is applicable to these proceedings. Davidson v. City of Coral Gables, 119 So.2d 704 (Fla. 3d DCA 1960).

3/ Circle K asserted that Section 9-1401, NCLDR, could be satisfied if the subject curb cut was either 400 feet from an existing FDOT approved curb cut or

400 feet from an existing street. Circle K's assertion is not persuasive. When read in pari materia, the subject sections require rejection of Circle K's proposal if it is within 400 feet of either an existing FDOT curb cut or street. Were Circle K's assertion meritorious, it still would have failed to demonstrate entitlement to the subject permit because it failed to demonstrate that the subject curb cut was at least 400 feet from an existing FDOT approved curb cut.

APPENDIX I

The Department's proposed findings of fact are addrcssed as follows:

1. Addressed in paragraph 6.

2. Addressed in paragraph 1.

3. Addressed in paragraphs 1-3.

4 & 5. Addressed in paragraphs 4 and 5.

6. Addressed in paragraph 5.

7-11. Addressed in paragraphs 2 and 3, and paragraph 6, Conclusions of Law.

12-15. Addressed in paragraph 5.

16. Addressed in paragraphs 2 and 3. 17-29. Addressed in paragraphs 8 and 9.

Circle K's proposed findings of fact are addressed as follows:

1 & 2. Addressed in paragraphs 1-3.

3 & 4. Addressed in paragraph 5.

5 & 6. Addressed in paragraphs 2 and 3.

1. Addressed in paragraph 6.

2. Addressed in paragraph 7.

APPENDIX II

On file with the Department's records.

COPIES FURNISHED:

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

Tallahasee, Florida 32399-2100

Randy Ludacer, Esquire County Attorney's Office

302 Fleming Street

Key West, Florida 33040

Kenneth A. Jones, Esquire Humphrey, Jones & Myers, P.A. 1625 Hendry Street

Third Floor

Fort Myers, Florida 33901

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

The Honorable Bob Martinez Governor, State of Florida The Capitol

Tallahassee, Florida 32399

The Honorable Robert A. Butterworth Attorney General

State of Florida The Capitol

Tallahassee, Florida 32399-1050

The Honorable Doyle Conner Commissioner of Agriculture State of Florida

The Capitol

Tallahassee, Florida 32399-0810

The Honorable Betty Castor Commission of Education State of Florida

The Capitol

Tallahassee, Florida 32399

The Honorable Jim Smith Secretary of State State of Florida

The Capitol

Tallahassee, Florida 32399-0250

The Honorable William Gunter Treasurer and Insurance Commissioner State of Florida

The Capitol

Tallahassee, Florida 32399-0300

The Honorable Gerald A. Lewis Comptroller, State of Florida The Capitol

Tallahassee, Florida 32399-0250

Patty Woodworth, Director

Land and Water Adjudicatory Commission Planning & Budgeting

Executive Office of the Governor The Capitol, PL-05

Tallahassee, Florida 32399-0001

Docket for Case No: 88-000286

Orders for Case No: 88-000286