STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARATHON H.M.A., INC., )

)

Appellant, )

)

vs. ) Case No. 97-2551

) MONROE COUNTY, FLORIDA, and ) DR. BARRY J. MANKOWITZ, )

)

Appellees. )

)

FINAL ORDER

On May 9, 1997, Appellant, Marathon H.M.A., Inc., d/b/a Fisherman's Hospital, filed an Application for Appeal to the Hearing Officer from Ordinance No. 34-97 of the Monroe County Planning Commission ("Planning Commission"). In that resolution, the Planning Commission approved the application of Appellee Barry J. Mankowitz, M.D., for a major conditional use permit to expand his medical offices to include an outpatient surgery facility. The facility would be located more than two miles from Fisherman's Hospital. On July 14, 1997, the Appellant filed its Initial Brief, to which it appended the affidavits of Lester F. Blagg and Timothy R. Parry in support of its standing to pursue this appeal.

The issue presented for resolution in this appeal was framed by the Appellant in its Initial Brief. The Appellant asserted that the Planning Commission's decision to grant Dr. Mankowitz's application for a conditional use permit was dependent on its

decision to grant his application for a parking variance, which is the subject of the pending appeal in DOAH Case Number

97-2879.1 The Appellant argues that, if the parking variance is found to be invalid, the application for the major conditional use permit must be denied because the parking provided would be much less than that required by the land use regulations and, therefore, inconsistent with these regulations.

This cause came before the undersigned for consideration of Appellees' Motion to Dismiss, filed August 6, 1997; Appellant's Response to Appellees' Motion to Dismiss, filed August 29, 1997; and Appellees' Reply to Appellant's Response to Motion to Dismiss, filed September 16, 1997. In their motion, the Appellees seek to have the appeal dismissed on the ground that the Appellant does not have standing under the applicable provision of the Monroe County Code.

Because the Appellant did not appear or present evidence at the public hearing on Dr. Mankowitz's application, the facts stated in the affidavits appended to the Initial Brief are the only facts in the record to support the Appellant's standing to bring this appeal. The accuracy of the facts sworn to in the affidavits has not been challenged in the Motion to Dismiss, and these facts are properly considered for purposes of evaluating Appellant's standing.

The affiants assert in their affidavits that the Appellant is a Florida corporation which operates Fisherman's Hospital

pursuant to a written lease and that its principal place of business, Fisherman's Hospital, is located in Marathon, Florida. The affiants recite various facts relating to, among other things, the service area of the hospital, the services it provides, the expenditures it and the lessor of the hospital have made for capital improvements to the property, and selected regulatory requirements to which it is subject as an acute care hospital. One of the regulatory requirements identified was the responsibility of a rural hospital such as Fisherman's Hospital to provide 24-hour emergency room service and to serve persons regardless of their ability to pay.

Pertinent to the issue of standing to pursue this appeal, the affiants claim that the Appellant will be adversely affected by Resolution 34-97 because, if he is allowed to expand his medical office to construct an outpatient surgery facility,

Dr. Mankowitz will have "a disparate and unfair competitive advantage" over Fisherman's Hospital. Consequently, according to the affiants, the Appellant will likely "suffer a significant loss of operating cases and resulting revenues," which could result in the loss of "skilled health care operating personnel due to the loss of operating cases" and which could pose a threat to its ability to provide health care services.

The requirements for standing to appeal a Planning Commission decision involving a major conditional use application

are found in Section 9.5-69(e), Monroe County Code, which provides in part:

Appeal of a Conditional Use Approved by the Planning Commission: The applicant, an adjacent property owner, or any aggrieved or adversely affected person, as defined by Florida Statutes section 163.3215(2), or any person who presented testimony or evidence at the public hearing conducted pursuant to subsection (c), may request an appeal of the

planning commission's major conditional use decision under the hearing officer appellate article of these regulations . . ..

It is clear from the arguments presented by the Appellant in its response to the motion to dismiss that it bases its standing to pursue this appeal on that portion of Section 9.5-69(e) which permits an appeal to be filed by an "aggrieved or adversely affected person," as that term is defined in Section 163.3215(2), Florida Statutes.

Section 163.32152 is part of the Local Government Comprehensive Planning and Land Development Regulation Act and provides as follows:

(2) "Aggrieved or adversely affected party" means any person or local government which will suffer an adverse effect to an interest protected or furthered by the local government comprehensive plan, including interests related to health and safety, police and fire protection service systems, densities or intensities of development, transportation facilities, health care facilities, equipment or services, or environmental or natural resources. The alleged adverse interest may be shared in common with other members of the community at large, but shall exceed in degree the general interest in community good shared by all persons.

Prior to the 1985 enactment of Section 163.3215, the Florida Supreme Court held that standing under the Local Government Comprehensive Planning Act of 19753 would be determined using common law standards, which require "that a legally recognized right be adversely affected." Parker v. Leon County, 627 So. 2d 476, 479 (Fla. 1993)(citing Citizens Growth Management Coalition,

Inc. v. City of West Palm Beach, 450 So. 2d 204 (Fla. 1984)); see Renard v. Dade County, 261 So. 2d 832, 837 (Fla. 1972)("An aggrieved or adversely affected person having standing to sue is a person who has a legally recognizable interest which is or will be affected by the action of the zoning authority in question."). After the enactment of Section 163.3215, the court in Southwest Ranches Homeowners Association, Inc. v. Broward County, 502

So. 2d 931, 934 (Fla. 4th DCA 1987), stated that Section 163.3215 "liberalizes [common law] standing requirements and demonstrates a clear legislative policy in favor of the enforcement of comprehensive plans by persons adversely affected by local action," an interpretation quoted with approval by the Florida Supreme Court in Parker. 627 So. 2d at 479.

Nonetheless, in order to demonstrate standing pursuant to Section 163.3215(2), Florida Statutes, and, consequently, Section 9.5-69(e), Monroe County Code, a person must show some adverse effect to interests protected by the comprehensive plan which, even though it may be the same as the adverse effect on the community in general, must be greater in degree. For example, in Southwest Ranches, the court found that a homeowner's association had standing to seek an injunction prohibiting the enforcement of two ordinances which would allow installation of a sanitary landfill in an unincorporated section of Broward County. In holding that the association had standing, the court found that "[t]he Association is a group of property owners whose land

adjoins the proposed development and stands to be directly affected by the alleged aspects of the development which are

claimed to be inconsistent with the comprehensive plan; i.e. pollution, flooding, and deterioration of potable water supply." Southwest Ranches, 502 So. 2d at 931.

The Appellant claims in its response to the motion to dismiss that a grievance or adverse effect sufficient to confer standing exists when the ordinance challenged is "a development order which materially alters the use or density or intensity of use of a piece of property that is not consistent with the comprehensive plan." The Appellant relies for this conclusion solely on the observation in Parker that Section 163.3215(1) "authorizes an aggrieved or adversely affected party to bring an action to prevent a local government from taking action on a development order which materially alters the use or density or intensity of use of a piece of property that is not consistent with the comprehensive plan." 627 So. 2d at 479 (emphasis in original).

Appellant's argument is flawed because it misconstrues Section 163.3215(1). That section does not define the grievance or adverse effect necessary to make one an aggrieved or adversely affected party for purposes of standing to bring a suit pursuant to Section 163.3215. Rather, Section 163.3215(1) does nothing more than identify the grounds on which a person who is aggrieved or adversely affected, as defined in Section 163.3215(2), may bring suit to enjoin enforcement of a development order.

Therefore, the Appellant's argument on this point is not

persuasive; the Appellant must prove that it is aggrieved or adversely affected by Ordinance No. 34-97.

The Appellant identified only one interest which would be adversely affected if there were inadequate parking for persons using the outpatient surgery facility which is the subject of the conditional use permit. Mr. Parry claimed in his affidavit that the Appellant's interests would be adversely affected because "the governmental approvals being challenged . . . represent poor land use and planning decisions and will create a precedent for land use decisions which are contrary to the Monroe County Code." Assuming that this constitutes an interest protected or furthered by a local government comprehensive plan, the Appellant has not shown that its interest in good land use and planning decisions is different in degree from that of the community as a whole.

Therefore, the Appellant is not an aggrieved or adversely affected person with respect to this asserted interest.

Another interest identified by the Appellant which would allegedly be adversely affected by the Planning Commission's decision to grant Dr. Mankowitz's application for a conditional use permit relates exclusively to the adverse effects it would experience if Dr. Mankowitz were to construct an outpatient surgery facility. As noted above, in their affidavits, Mr. Blagg and Mr. Parry claim that the expansion of Dr. Mankowitz's medical offices to include an outpatient surgery facility would give Dr. Mankowitz "a disparate and unfair competitive advantage" over

Fisherman's Hospital and that the expansion would likely cause the Appellant "to suffer a significant loss of operating cases and resulting revenues."

The Appellant correctly observes in its response to the motion to dismiss that the cases cited by the Appellees which hold that economic and competitive interests are not sufficient to establish standing are inapposite. These cases construe the more stringent standing requirement for requesting an administrative hearing pursuant to Section 120.57, Florida Statutes (now Section 120.569, Florida Statutes (Supp. 1996)), which requires that a party's substantial interests be affected. However, the Appellant has the burden of establishing its standing to maintain this appeal, and it has not identified any judicial or statutory authority holding that economic or competitive interests are interests protected by a local government comprehensive plan. In fact, it is apparent that the legislature did not consider such interests protected under a comprehensive plan because it provides in Section 163.3215(6) that the court may impose sanctions if it finds that a complaint filed pursuant to Section 163.3215 is filed for "economic advantage" or for "competitive reasons."

Finally, the Appellant argues in its response to the motion to dismiss that the interest in "health and safety" is an interest protected by a comprehensive plan. The Appellant contends that, as a result of the alleged adverse economic impact

it would likely suffer were Dr. Mankowitz allowed to construct an outpatient surgery facility, it would be unable to provide its current level of health care services to the community. Even if Appellant's ability to provide a certain level of health care services is an interest protected by the Monroe County land use regulations, the alleged adverse effect on this interest is simply too speculative and too attenuated to confer standing on the Appellant to pursue this appeal.

For these reasons, the Appellant has failed to establish that it has standing pursuant to Section 9.5-69(e), Monroe County Code, to challenge the validity of Ordinance No. 34-97, in which the Monroe County Planning Commission approved Dr. Mankowitz's application for a major conditional use permit.

CONCLUSION

Based on the foregoing, the appeal of Marathon H.M.A., Inc., d/b/a Fisherman's Hospital, from Ordinance No. 34-97 of the Monroe County Planning Commission is dismissed.

Pursuant to Section 9.5-540(c), Monroe County Code, this Final Order is "the final administrative action of Monroe County." It is subject to judicial review by petition for writ of certiorari to the appropriate circuit court.

DONE AND ORDERED this 8th day of December, 1997, in Tallahassee, Leon County, Florida.

PATRICIA HART MALONO

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 8th day of December, 1997.

ENDNOTES

1/ Marathon H.M.A. also appealed the Planning Commission's Resolution 33-97, in which it approved Dr. Mankowitz's application for a variance. That appeal was assigned DOAH Case Number 97-2879. The two appeals were consolidated by order entered July 8, 1997, which was vacated and the cases severed by an order entered this date. The Motion to Dismiss the appeal relating to the variance was denied by a separate order entered this date.

2/ Section 163.3215 provides generally that certain actions taken by local government in a development order may be challenged in the courts by aggrieved or adversely affected parties in suits filed for injunctive or other relief, and the section defines the procedures which must be followed in doing so.

3/ The predecessor of the Local Government Comprehensive Planning and Land Development Regulation Act.

COPIES FURNISHED:

James S. Mattson, Esquire Andrew M. Tobin, Esquire Mattson & Tobin

Post Office Box 586

Key Largo, Florida 33037

Garth Coller, Esquire County of Monroe

2798 Overseas Highway, Suite 410

Marathon, Florida 33050

Gail Moro

Planning Commission Coordinator County of Monroe

2798 Overseas Highway, Suite 410

Marathon, Florida 33050

Ralf G. Brooks, Esquire MORGAN & HENDRICK

317 Whitehead Street Post Office Box 1117

Key West, Florida 33041

Douglas M. Halsey, Esquire Kirk L. Burns, Esquire

First Union Financial Center

200 South Biscayne Boulevard, Suite 4980 Miami, Florida 33131-5309

Timothy Parry, Vice President Marathon H.M.A., Inc.

3301 Overseas Highway

Marathon, Florida 33050

1 Marathon H.M.A. also appealed the Planning Commission's Resolution 33-97, in which it approved Dr. Mankowitz's application for a variance. That appeal was assigned DOAH Case Number 97-2879. The two appeals were consolidated by order entered July 8, 1997, which was vacated and the cases severed by an order entered this date. The Motion to Dismiss the appeal relating to the variance was denied by a separate order entered this date.

2 Section 163.3215 provides generally that certain actions taken by local government in a development order may be challenged in the courts by aggrieved or adversely affected parties in suits filed for injunctive or other relief, and the section defines the procedures which must be followed in doing so.

3 The predecessor of the Local Government Comprehensive Planning and Land Development Regulation Act.

Docket for Case No: 97-002551

Orders for Case No: 97-002551