STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAWRENCE R. DION d/b/a ) DION'S QUIK MART, )

)

Appellant, )

)

vs. ) CASE NO. 94-1196VR

)

COUNTY OF MONROE, )

)

Appellee. )

)

FINAL ORDER

This is an appeal, pursuant to the Hearing Officer Appellate Article (Article XIV) of the Monroe County Code, of a resolution issued by the Monroe County Planning Commission (hereinafter referred to as the "Commission") denying Appellant's request for a major conditional use permit to install gasoline pumps and storage tanks at his Quik Mart convenience store located at the intersection of Sands Road and Avenue A in Big Pine Key. Oral argument was heard by the undersigned Hearing Officer of the Division of Administrative Hearings, Stuart

1. Lerner, on September 16, 1994. The resolution under review sets forth the following "Findings of Fact" and "Conclusions of Law" upon which the Commission's decision was based

   
   

   1. The applicant's traffic engineer's report is defective because it did not analyze or report access conditions to Dion's from Sands Road and Avenue A; and that it only reported/analyzed access conditions to Dion's from U.S. Route 1; 1/ and that

      
      

   2. Testimony showed that two (2) 10 x 25 foot loading zones shown on the applicant's site plan are inadequate for the unloading of goods since the size of some trucks accessing Dion's exceed 50 feet and that there is insufficient "stacking space" available to vehicles using the gas pumps without infringing on nearby properties and rights of way; and that

      
      

   3. This Board was more persuaded by the testimony of the Director of Engineering which showed that the County's minimum parking standards would be violated as vehicles could not enter the back parking lot without infringing upon other parking spaces and that the access conditions mentioned in Finding #1 (above) would not be appropriate within the context of the surrounding properties and neighborhood (9.5-63(c) 2/); and that

      
      

   4. The applicant failed to sustain his burden of proof, in that, he did not show sufficient grounds for the issuance of a waiver of setbacks once the project exceeded the threshold of a minor conditional use review and instead had to be reviewed as a major conditional use.

Appellant contends that the Commission's resolution to deny his permit application does not comply with the requirements of Irvine v. Duval County Planning Commission, 495 So.2d 167 (Fla. 1986), wherein the Florida Supreme

Court, on review of Irvine v. Duval County Planning Commission, 466 So.2d 357 (Fla. 1st DCA 1985), sided with the dissenting judge below, Judge Zehmer, and held that "once the petitioner [who had sought from the Duval County Planning Commission a special exception to sell beer and wine for consumption on the premises of his business] met the initial burden of showing that his application met the statutory criteria for granting such exceptions, 'the burden was upon the Planning Commission to demonstrate by competent substantial evidence presented at the hearing and made a part of the record, that the (special) exception requested by petitioner did not meet such standards and was, in fact, adverse to the public interest.'" It is Appellant's position that, in the instant case, the Commission

failed to show by competent substantial evidence that the Major Conditional Use approval requested by the Applicant would adversely affect the public health, safety, welfare, morals, order, comfort, convenience, appearance, prosperity or general welfare of the neighborhood or that increased use of Applicant's property would not be compatible with other uses existing in the District.

Since no other competent substantial testimony or evidence was produced by the Planning Commission contrary to the traffic expert produced by the Applicant, the decision of

the Planning Commission should be reversed and the Applicant's application for major conditional use should be granted.

Having carefully considered the record, as well as the briefs submitted by the parties and their presentations at oral argument, the Hearing Officer disagrees with Appellant.

The granting or denying of an application for a conditional use permit constitutes quasi-judicial action. See City of Melbourne v. Hess Realty Corporation, 575 So.2d 774, 775 (Fla. 5th DCA 1991). The disposition of such an application is therefore governed by the same principles of law that apply when an application for a special exception is under consideration. Accordingly, once an applicant seeking a conditional use permit from the Commission has met his initial burden of showing that his proposed conditional use meets the applicable criteria set forth in the Monroe County Code, the burden then shifts to the Commission to demonstrate by competent substantial evidence presented at a public hearing and made part of the record that the proposed conditional use actually does not meet the requirements of the Monroe County Code and, in fact, is adverse to the public interest. 3/ See Board of County Commissioners of Monroe County v. Key Largo Associates, LTD, 569 So.2d 517, 518 (Fla. 3d DCA 1990); Flowers Bakery Co. v. City of Melbourne, 537 So.2d 1040, 1041 (Fla. 5th DCA 1989). In determining whether the Commission has met this burden of proof, reference should be made to the following excerpt from De Groot v. Sheffield, 95 So.2d 912, 916 (Fla. 1957):

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."

Furthermore, it must be remembered that the Hearing Officer, acting in his appellate review capacity, is without authority to reweigh conflicting testimony presented to the Commission and to substitute his judgment for that of the Commission on the issue of credibility. See 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).

An examination of the record in the instant case reveals that there is competent substantial evidence, primarily in the form of testimony given by John Scharch, the owner of a competing convenience store that sells gasoline products, 4/ and David Koppel, P.E., a traffic engineer and Monroe County's Director of Engineering, concerning design problems related to internal and external traffic flow and parking, which supports the Commission's finding that, because of these design problems, Appellant's proposed conditional use does not meet the requirements of the Monroe County Code and is in fact adverse to the public interest. Accordingly, the resolution of the Commission denying Appellant's application for such conditional use based upon these design problems is hereby AFFIRMED.

Pursuant to Section 9.5-540(c) of the Monroe County Code this final order is "the final administrative action of Monroe County." It is subject to judicial review by common-law certiorari to the circuit court.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 5th day of October, 1994.

STUART M. LERNER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 5th day of October, 1994.

ENDNOTES

1/ Section 9.5-292(a) of the Monroe County Code, which requires that "all development or land shall be served by adequate public facilities," specifically provides that "[a]ll secondary roads to which traffic entering or leaving the development or use will have direct access [and] shall have sufficient available capacity to operate at level of service D as measured on an annual average daily traffic (AADT) basis."

2/ Section 9.5-63(c) of the Monroe County Code provides, in pertinent part, as follows:

The planning commission is empowered, within its review of conditional use applications, to modify or to deny any application which may not be appropriate within any particular planning area in the context of surrounding properties and neighborhoods . . . .

Such "inappropriate" development is also proscribed by the provision in Section 9.5-1 of the Code which imposes the general requirement that "all development . . . be conceived, designed and built in accordance with good planning and design practices."

3/ A proposed conditional use that is adverse to the public interest is necessarily inconsistent with the requirements of the Monroe County Code inasmuch as one of the stated purposes of the County's Land Development Regulations which comprise Chapter 9.5 of the Code is "to foster and preserve public health, safety, comfort and welfare."

4/ That John Scharch, as Appellant notes in its Initial Brief, is Appellant's "principal competitor in the Big Pine Key area" and therefore has an interest in the disposition of Appellant's application did not render Scharch's testimony before the Commission incompetent. His interest in the outcome of the proceeding merely went to the credibility of his testimony and did not disqualify him from testifying. See Martuccio v. Department of Professional Regulation, Board of Optometry, 622 So.2d 607, 609 (Fla. 1st DCA 1993).

COPIES FURNISHED:

Hugh R. Papy, Esquire 1214 Laird Street

Key West, Florida 33040

Ralf G. Brookes, Esquire Morgan & Hendrick

Post Office Box 1117

Key West, Florida 33041

Robin Carmichael, Planning Coordinator Planning Department

Monroe County Government Center 2798 Overseas Highway, Suite 410

Marathon, Florida 33050-2227

Garth Coller, Esquire

Monroe County Government Center 2798 Overseas Highway, Suite 440

Marathon, Florida 33050-2227

Docket for Case No: 94-001196VR

Orders for Case No: 94-001196VR