STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF COMMUNITY )

AFFAIRS, )

)

Petitioner, )

)

vs. ) CASE NO. 91-1086

)

BOOT KEY HARBOR PLAZA and )

MONROE COUNTY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on Monday, April 1, 1991, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Sherry A. Spiers, Esquire

G. Steven Pfeiffer, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100

For Respondent William E. Williams, Esquire Boot Key Harbor Huey, Guilday, Kuersteiner & Plaza: Tucker, P.A.

106 East College Avenue Highpoint Center, Suite 900 Post Office Box 1794 Tallahassee, Florida 32302

For Respondent No appearance Monroe County:

STATEMENT OF THE ISSUES

At issue in this proceeding is whether a major conditional use development order issued by Monroe County to Boot Key Harbor Plaza for development of a commercial complex in Marathon, Florida, is consistent with the Monroe County comprehensive plan and land development regulations.

PRELIMINARY STATEMENT

This is an appeal, pursuant to Section 380.07, Florida Statutes, to the Florida Land and Water Adjudicatory Commission from a major conditional use development order issued by Monroe County. The development order granted Boot Key Harbor Plaza's application for major conditional use approval to develop a

commercial complex on a parcel of land in Marathon, Florida. As authorized, the development may proceed without conditions on development. The Department of Community Affairs ("Department") contends that the development order violates the Monroe County comprehensive plan and land development regulations by failing to place conditions on development as required by the regulations.

After filing this appeal, the Department and Boot Key Harbor Plaza, in consultation with Monroe County planning staff, negotiated a settlement of the issues raised in the appeal. Respondent Monroe County elected not to sign the Settlement Agreement, thereby leaving this appeal unresolved.

Prior to hearing, Monroe County advised the Department by letter that it would not participate in the proceedings and had no preference as to the location for the final hearing. A copy of the letter was filed with the Hearing Officer herein. Although duly noticed, Monroe County did not appear at the final hearing.

The Department and Boot Key Harbor Plaza entered into a Prehearing Stipulation wherein they agree that the major conditional use development order issued by Monroe County to Boot Key Harbor Plaza does not comply with the Monroe County land development regulations, as alleged by the Department in its Petition for Appeal. They further stipulated that the conditions on development set forth in the Settlement Agreement executed by them are consistent with the applicable provisions of the Monroe County land development regulations, and that no issues of fact and law remain to be litigated between them. Monroe County did not join in the Prehearing Stipulation.

At hearing, the Department's only witness was James L. Quinn, the Department's Area of Critical State Concern Administrator, who was accepted as an expert in land use planning, and in Department policy and administration of the Florida Keys Area of Critical State Concern program. One Hearing Officer Exhibit was accepted into evidence. Petitioner offered nine exhibits, each of which was accepted into evidence without objection. Boot Key Harbor Plaza did not call any witnesses or offer any exhibits.

After hearing, the Department and Boot Key submitted a joint proposed recommended order. Each proposed finding of fact is accepted and is incorporated in this Recommended Order.

FINDINGS OF FACT

1. Most of Monroe County, including the subject property, is designated an area of critical state concern under Sections 380.05 and 380.0552, Florida Statutes.

   
   

2. Respondent Boot Key Harbor Plaza is the owner and developer of a tract of submerged land and uplands totalling 33 acres, more or less, located at approximately Mile Marker 49 Oceanside in Marathon, Monroe County, Florida. It proposes to develop the property with a commercial complex containing approximately 98,100 sq. ft. of commercial retail space, a sit-down restaurant of 2,650 sq. ft. more or less, a free standing fast food restaurant of 3,200 sq. ft. more or less, a marina of 33 wet boat slips, 16 employee housing units, and associated utilities, accessory uses, and required parking, known as Boot Key Harbor Plaza ("the project"). The proposed development is depicted on that certain site plan prepared by A. J. Verde - Architects, P.A., Miami, Florida, dated 7-18-89, revised seven (7) times, the last revision dated 12-21-89.

3. The subject property is in an Urban Commercial (UC) land use district. The commercial' complex proposed by Boot Key Harbor Plaza includes high intensity retail uses, commercial apartments, and a marina, all of which are allowed as conditional uses in a UC district.

   
   

4. On August 20, 1990, the Monroe County Board of County Commissioners adopted Resolution No. 395-1990, which is the subject of this proceeding. The Resolution overturned a prior decision of the Monroe County Planning Commission denying major conditional use approval for the project. In overturning the Planning Commission decision, the Board of County Commissioners granted major conditional use approval to Boot Key Harbor Plaza.

   
   

5. The Resolution states that "[a]ny stipulated agreement made by the applicant [Boot Key Harbor Plaza] concerning conditions are hereby adopted and made part of this Resolution." The Department and Boot Key Harbor Plaza stipulated that there is no agreement concerning conditions which was or could have been adopted and made part of the Resolution.

   
   

6. The Department contends, and Boot Key Harbor Plaza concedes, that the Monroe County land development regulations require that conditions on development be included in any conditional use approval for development in Monroe County, Florida.

   
   

7. Central to the issues raised in the Department's Petition for Appeal are Sections 9.5-61, et seq., Monroe County Code, which govern conditional uses, and in particular the following provisions:

   
   

   Sec. 9.5-61. Purpose.

   Conditional uses are those uses which are generally compatible with the other land uses permitted in a land use district, but which require individual review of their location, design and configuration and the imposition of conditions in order to ensure the appropriateness of the use at any particular location. (emphasis added)

   
   

   Sec. 9.5-67. Conditions.

   The director of planning or the planning commission may attach such conditions to a conditional use permit as are necessary to carry out the purposes of the plan and to prevent or minimize adverse effects upon other property in the neighborhood, including but not limited to limitations on size, bulk and location; requirements for landscaping, lighting and provision of adequate ingress and egress and off-site but project-related improvements; duration of the permit; hours of operation; and mitigation of environmental impacts. The planning commission or the director of planning may attach a condition requiring submission and approval of a final development plan pursuant to section 9.5-70 before development is commenced for either a minor or major conditional use.

8. The Settlement Agreement executed by the Department and Boot Key Harbor Plaza identifies conditions on development which are appropriate for the proposed development and which are consistent with the Monroe County comprehensive plan and land development regulations.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Sections 120.57(1) and 380.07(3), Florida Statutes.

   
   

10. This is an appeal by the Department of Community Affairs to the Florida Land and Water Adjudicatory Commission, pursuant to Section 380.07, Florida Statutes, from a development order of Monroe County granting major conditional use approval to Boot Key Harbor Plaza for development of a commercial complex in Marathon, Monroe County, Florida, in an area of critical state concern. Under Section 120.57(1), Florida Statutes, the propriety of Monroe County's action was reviewed de novo.

    
    

11. The ultimate burden of persuasion rested upon Boot Key Harbor Plaza to establish its entitlement to the major conditional use approval. Graham v. Estuary Properties, Inc., 399 So. 2d 1374 (Fla. 1981); Florida Department of Transportation v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981). Boot Key Harbor Plaza's proposed development, as reflected on the Site Plan last revised 12-21-89, may be permitted under the Monroe County land development regulations if appropriate conditions are imposed.

    
    

12. Resolution No. 395-1990, the development order adopted by Monroe County, does not comply with the Monroe County comprehensive plan and land development regulations in that it fails to place conditions on the development. Therefore, Boot Key Harbor Plaza is not entitled to develop its proposed commercial complex under the Resolution.

    
    

13. While not entitled to develop under Resolution No. 395- 1990 as adopted by Monroe County, Boot Key Harbor Plaza is entitled to a specification of what changes in its proposal or what changes to the development order are necessary to make it eligible for development approval. Section 380.08(3), Florida Statutes. In its final order herein, the Florida Land and Water Adjudicatory Commission may issue a decision granting permission to develop pursuant to the standards of Chapter 380, Florida Statutes, and may attach conditions and restrictions to the decision. Section 380.07(4), Florida Statutes.

    
    

14. Based upon the evidence adduced, including the Settlement Agreement executed by the Department and Boot Key Harbor Plaza, and based upon the Prehearing Stipulation filed herein, Boot Key Harbor Plaza's proposed development may be permitted in Monroe County. The development order would conform with the existing Monroe County land development regulations if each of the following conditions was attached to development approval:

1. Site Planning and Building Requirements.

   
   

   1. A final parking layout plan shall be developed in conformance with the latest professional standards. The standards recommended in the article "End Islands as an Element of Site Design" by Virgil G. Stover and Frank J. Koepke, ITE Journal, November 1989 (attached to the Settlement Agreement, and attached hereto as Exhibit A and incorporated herein) shall be adopted for this project.

      Additional stop signs and adequate turning radii shall be included in the project design as approved by the Monroe County Planner.

      
      

   2. The outdoor lighting shall be architecturally and functionally compatible with the unique historical character and scale of the community and the Florida Keys.

      
      

   3. Bicycle racks shall be placed at a minimum of one for every 100 linear feet of building frontage.

      
      

   4. The solid waste receptacles for each building pad shall be located adjacent to the loading zones in the project.

      
      

   5. The outparcels shall be designed to be architecturally compatible with the entire development in terms of color, materials, form, shape, roofing, trim, window, and other architectural elements.

      
      

   6. Building pad #1 may be relocated within the portion of the site bounded by the western property line, U.S. 1, the main access drive, and the future easement to allow more flexibility in constructing the future road on the West side of the project site.

      
      

   7. The westernmost corner of the proposed McCory's store shall be beveled or modified to maximize driver visibility and minimize the creation of a blind spot.

      
      

   8. The developer will actively solicit a day care center as a use, and will provide a secured outdoor activity area contiguous to the structure occupied by the day care center.

      
      

   9. The remaining area behind retail area #3 or behind retail area #4 shall be developed as a passive recreation area for the use of employees. Plans shall include seating areas and canopy and understory trees and shrubs and ground cover arranged to provide shade and buffer from the adjacent building and traffic areas. The amount of landscape material shall equal a Class C buffer yard.

      
      

   10. The open space in front of the proposed Rite-Aid store shall be developed with landscape material and furniture to provide an attractive activity area for people.

       
       

   11. Unless otherwise specifically excepted in these conditions, all development shall be set back twenty (20) feet from the landward limit of the mangroves along the shoreline of the property. The mangrove fringe shall be preserved.

   
   

2. Landscaping and drainage.

   
   

   1. The Monroe County Biologist and the Department of Community Affairs shall approve a final landscape plan and Preservation/replacement/transplantati0n plan for existing trees prior to issuance of a building permit for any part of the project. The preservation/replacement/transplantation plan shall identify a nursery from which replacement plants or trees shall be obtained, and shall identify the location to which transplanted plants and trees shall be moved, and shall otherwise comply with all criteria in Section 9.5-344, Monroe County Code (1990). The County Biologist will coordinate with the County Planner in the

      review of open space behind retail area #4 and in front of the proposed Rite- Aid store to insure that the specific requirements contained in Sections a(9) and a(10) above are satisfied.

      
      

   2. The area between the paved areas and the mangrove fringe shall be revegetated with native plants at the density of a Class D buffer of 100% native plants and with native ground cover, all of which shall be nursery stock. An osprey nesting pole shall be placed at a location to be identified in consultation with the Florida Game and Fresh Water Fish Commission without regard to setbacks or buffers.

      
      

   3. The U.S. 1 buffer shall be a thirty (30) foot Class D buffer.

      
      

   4. Canopy trees shall be provided in each landscape island in the parking lot, and the canopy trees in the front buffer shall be located within five (5) feet of the parking spaces. Fifty percent (50%) or larger pervious areas shall be located between the "heads" of parking spaces. Fifty percent (50%) of the trees in the islands shall exceed the minimum size requirements of Section 9.5- 367, Monroe County Code (1990), in order to provide more immediate shade and canopy size. The County Biologist shall coordinate with the County Planner and Department of Community Affairs? staff and work with project representatives to assist in identifying an acceptable mixture of plant material to satisfy these requirements as part of the final landscape plan and preservation/replacement/transplantation plan.

      
      

   5. All outdoor storage shall be screened from view by a solid fence, wall, or hedge of at least six (6) feet in height and shall meet applicable open space, setback, and buffer requirements.

      
      

   6. A six (6) foot high wall or fence and dense landscaping shall be placed around the solid waste receptacles and sewage treatment plant.

      
      

   7. A final drainage plan prepared by a Florida Registered Engineer shall demonstrate compliance with the Monroe County Code (1990), and shall be approved by the South Florida Water Management District before Monroe County approves the plan and issues a building permit for the project or any part of the project. The purpose of the drainage plan is to ensure that runoff is properly contained on site and directed away from nearshore waters. Driveway and pavement areas located at the rear of the project shall be designed and constructed to direct stormwater runoff away from the shoreline of the property.

   
   

3. Natural Resources Protection.

   
   

   The type of roofing material used shall be consistent with the recommendations of the local representative of the Florida Game and Fresh Water Fish Commission. Roof access shall be located and designed to minimize disruption of nesting sites. Roof access shall be limited to maintenance and repair during the nesting season of Least Terns (April 1 to October 1).

   
   

   1. A final lighting plan for the rear of the buildings shall be approved by the County Biologist and the Department of Community Affairs prior to the issuance of a building permit. The lighting plan shall limit the intensity of lights to no more than 1.5 foot candles to minimize any adverse environmental effects of nearshore lighting.

   2. The sewage treatment plant, in addition to the level of treatment required by the Florida Department of Environmental Regulation, shall be designed and operated in such a way that it will utilize the most current proven technology to effectively remove organic matter and nutrients to the maximum extent practical. Documentation and a statement that this condition has been met shall be submitted to the Monroe County Growth Management Division and the Department of Community Affairs prior to the issuance of a building permit. The borehole will be located in the northeast quadrant of the property north of the "future easement" identified on the site plan.

   
   

4. Marina Development.

   
   

   1. A water quality monitoring program as required by Section 9.5-345(m)5, Monroe County Code (1990), shall be developed and implemented in conjunction with the Monroe County Department of Environmental Resources and the Department of Community Affairs.

      
      

   2. Building permits for the docks shown on state-owned land on the Site Plan shall not be issued until the property owner has obtained a lease and all other applicable approvals and submitted proof of same to the Monroe County Growth Management Division.

      
      

   3. A pump out facility for the use of marina tenants shall be provided.

      
      

   4. There shall be a dinghy dock to allow access to the shopping center.

      
      

   5. Liveaboards as defined in Section 9.5-4(L-6), Monroe County Code (1990), shall not be permitted at the marina.

      
      

   6. A harbor masters office including restrooms for the exclusive use of marina clients and their guests shall be located in or behind retail area #4 or in an equally convenient location to the marina.

      
      

   7. Nothing in this development authorization shall relieve the owner or developer from obtaining all state or federal leases and permits as may be required by law for marina development.

   
   

5. Affordable Housing.

   
   

   1. Apartments constructed on site will be managed as employee housing as defined in the Monroe County Code, which definition does not prohibit the units from being made available to employees from off site and thus allows flexibility to property owner.

      
      

   2. On-site laundry facilities shall be available for use by tenants of the employee housing units.

   
   

6. Accessibility.

   
   

   1. All construction shall comply with applicable handicapped design criteria under the Monroe County Code and the Florida Statutes in effect when construction occurs.

      
      

   2. Handicapped curb cuts shall be aligned with pedestrian crosswalks.

   
   

7. Phasing and Future Development.

   1. The retail buildings shall be designated as Phase I, pad #1 shall be designated as Phase II, pad #2 shall be designated as Phase III, and pad #3 shall be designated as Phase IV. Said phases may be permitted in any sequence as long as all improvements necessary to support a particular phase of the development is fully installed prior to application for or issuance of a Certificate of Occupancy for that phase.

      
      

   2. The layout of pad #2 shall be evaluated as a minor conditional use under Section 9.5-68, Monroe County Code (1990), when the facility is proposed for construction.

   
   

8. Construction Management and Guarantees.

   
   

   The property owner shall provide a guarantee for the signal warrant study and possible signal installation as recommended by a traffic study to be submitted by the owner to Monroe County. This guarantee shall be in a form consistent with Section 9.5-85, Monroe County Code (1990), Improvement Guarantees, Section 9.5-86, Monroe County Code (1990), Pre-acceptance Maintenance of Public Improvements, Section 9.5-87, Monroe County Code (1990), Damage and Nuisance Guarantee, Section 9.5-88, Monroe County Code (1990), Acceptance of Public Improvements, and Section 9.5-89, Monroe County Code (1990), Limitations as to County Maintenance.

   
   

9. Recording.

Pursuant to Sections 9.5-71 and 9.5-72, Monroe County Code, conditional use approval for Boot Key Harbor Plaza shall be recorded in the public records of Monroe County, Florida, prior to issuance of a building permit, and shall not be transferred to a successive owner without notification to the Monroe County development review coordinator within five (5) days of the transfer.

RECOMMENDATION

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

final order denying Boot Key Harbor Plaza permission to develop under Resolution No. 395-1990, as adopted by Monroe County. It is further recommended that such final order grant Boot Key Harbor Plaza permission to develop the proposed commercial complex on its property in Marathon, Florida, described in Exhibit B hereto, as depicted on the Site Plan prepared by A. J. Verde - Architects, P.A., Miami, Florida, dated 7-18-89, revised seven (7) times, the last revision dated 12-21-89, as a conditional use development, subject to all applicable provisions of the Monroe County Code and under the conditions agreed to by the Department and Boot Key Harbor Plaza and set forth in paragraph 6, subsections a through i, of the above Conclusions of Law.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 3rd day of April, 1991.

CLAUDE B. ARRINGTON

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 3rd day of April, 1991.

COPIES FURNISHED:

William E. Sadowski, Secretary Department of Community Affairs 2740 Centerview Drive

Tallahassee, FL 32399-2100

1. Steven Pfeiffer, General Counsel Department of Community Affairs 2740 Centerview Drive

   Tallahassee, FL 32399-2100

   
   

   Sherry A. Spiers, Esquire Department of Community Affairs 2740 Centerview Drive

   Tallahassee, FL 32399-2100

   
   

2. Ray Allen, Esquire 618 Whitehead Street Key West, FL 33040

William E. Williams, Esquire

Huey, Guilday, Kuersteiner & Tucker, P.A.

106 East College Avenue Highpoint Center, Suite 900 Post Office Box 1794 Tallahassee, FL 32302

Randy Ludacer

Monroe County Attorney

310 Fleming Street Key West, FL 33040

Honorable Wilhelmina Harvey Mayor, Monroe County Board of County Commissioners

Monroe County Courthouse

500 Whitehead Street Key West, FL 33040

Jack Osterholt, Director

South Florida Regional Planning Council 3400 Hollywood Boulevard

Suite 140

Hollywood, FL 33021

Douglas M. Cook, Secretary

Florida Land and Water Adjudicatory Commission Office of the Governor

The Capitol

Tallahassee, FL 32399-0001

David Maloney

Assistant General Counsel Office of the Governor The Capitol, Room 209

Tallahassee, FL 32399-0001

Docket for Case No: 91-001086

Orders for Case No: 91-001086