STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

d/b/a Fisherman's Hospital, )

)

Appellant, )

)

vs. ) Case No. 97-2879

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

)

Appellees. )

)

FINAL ORDER

Pursuant to notice, oral argument was held in this case by telephone conference on April 1, 1998, before Patricia Hart Malono, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Appellant: James S. Mattson, Esquire

Andrew M. Tobin, Esquire Mattson & Tobin

Post Office Box 586

Key Largo, Florida 33037

For Appellees: Garth C. Coller

Assistant County Attorney

2798 Overseas Highway, Suite 440

Marathon, Florida 33030 Attorney for Monroe County

Douglas M. Halsey, Esquire Charles G. Stephens, Esquire HALSEY & BURNS, P.A.

First Union Financial Center

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

Attorneys for Barry J. Mankowitz, M.D.

STATEMENT OF THE ISSUE

This is an appeal from a resolution of the Monroe County Planning Commission ("Planning Commission") granting the application of Barry J. Mankowitz, M.D., for a variance from the off-street parking requirements of the Monroe County Code. The appeal was transferred from the Planning Commission to the Division of Administrative Hearings pursuant to Article XIV, Monroe County Code, the Hearing Officer Appellate Article. The issue presented in the appeal is whether Resolution No. P33-97 of the Planning Commission should be affirmed, reversed, or modified.

PRELIMINARY STATEMENT

In a Variance Application filed with the Monroe County Planning Department ("Planning Department") on August 22, 1997, Dr. Barry Mankowitz requested a variance from the off-street parking standards contained in Section 9.5-351, Monroe County Code. Dr. Mankowitz is a physician and part-owner of Lots 1, 2, 3, and 45, Block 3, Lida Subdivision in Marathon, Florida.

Currently, the Florida Keys Medical Complex ("Medical Complex")1 is located on this property, and Dr. Mankowitz applied for both the variance at issue in this case and for a major conditional use permit to construct an ambulatory surgical center adjacent to the Medical Complex.

In the Variance Application, Dr. Mankowitz specified that the application requested "[v]ariance from parking standards

contained in section 9.5-351(a) [sic]2 location of parking spaces utilized in shared parking calculations, or in the alternative, section 9.5-351(c), number of required spaces 26, instead of the required 48 spaces." A letter to the Planning Department from Donald Craig of the Craig Company accompanied the application, and Mr. Craig clarified the variance request as follows:

As the County has requested I have completed a for [sic] variance application for the Marathon Surgical Center project in order to resolve the issue regarding the shared parking proposed for the project. To reiterate, the reason for the variance request is the County has interpreted that Section 9.5-351(h) of the Land Development Regulations requires any shared parking proposal to demonstrate that the two separate land uses occur on the same lot. As you know the proposed Marathon Surgical Center is located on lots 1, 2, 3, and 45 of Block 3 of the Lida Subdivision, while the Elk's Lodge, the separate land use which is the subject of the shared parking proposal, occupies lots 1,3, and 4 of the Lida First Addition.

The attached application requests the County to grant either

1. A variance to allow the shared parking proposed to occur on the two separate parcels named above,

   
   

   or, if the County does not wish to grant the variance for lot location, then,

   
   

2. A variance from the 48 spaces required to

26 on site spaces to be located entirely on the Surgical Center parcel.

The shared parking proposal referred to in the letter relates to a Mutual Parking Lease entered into by the Florida Keys Medical Complex, Inc., and the Benevolent and Patriotic

Order of Elks #2139. The properties on which the Medical Complex and the Elks Club facility are located are separated by a narrow street but are otherwise contiguous. The lease provides in pertinent part:

WHEREAS both properties are zoned Suburban Commercial under the Monroe County Land Development regulations; and

WHEREAS neither party to this agreement has adequate parking to meet the needs of its patrons; and

WHEREAS the Elks service and social operations generally occur between 6:00 p.m. and midnight and on weekends; and

WHEREAS the Doctor's office services its clients between 9:00 a.m. and 4:00 p.m. on weekdays only; and

WHEREAS both parties have agreed that it is in their mutual interest to share the parking that their two properties contain so that each party may be benefitted by the use of the parking of the other;

WHEREAS it is the intention of the parties to provide parking for their services that meets the requirements of the Monroe County Regulations.

WHEREAS the Elks have a parking lot that contains 31 parking spaces and one loading zone serving a building of 5300 square footage;

WHEREAS the Doctor's office is a medical office of 6400 square feet and a planned outpatient surgical center of approximately 7,600 square feet to utilize 39 parking spaces.

NOW THEREFORE and in consideration of the mutual covenants and conditions contained herein and for other good and valuable consideration the parties agree as follows:

1. In consideration of the covenants, and agreements hereinafter reserved and contained on the part of the parties to be observed and performed, the Doctor's office leases to the Elks 29 parking spaces and the Elks lease from The Doctor's office 29 parking spaces for the term and upon the terms and conditions hereinafter set forth.

   
   

2. This Mutual Parking Lease shall become effective on March 10, 1995 and the execution of the parties hereto.

   
   

3. The obligations of the parties hereunder shall commence as of March 10, 1995. The term and duration of this lease shall be for a period of thirty years continuing through the year 2025. Both parties grant to the other party an option to renew this lease upon terms and conditions agreeable to both parties at the conclusion of this lease.

* * *

9. The Elks shall have exclusive use of 29 spaces in the Doctor's office parking premises from 6:00 p.m. until 6:00 a.m. of each and every day during the term of this lease. The Doctor's office shall have exclusive use of 29 spaces of the Elk's parking premises from 9:00 a.m. to 4:00 p.m. of each and every day during the term of this lease.

* * *

13. Upon the signing of this Mutual Parking Lease and upon the observance and performance of the covenants, terms and conditions of the Mutual Parking Lease, both parties shall peaceably and quietly hold and enjoy the leased premises for the term hereof without hindrance or interruption by the other party or any other person or persons lawfully or equitably claiming by, through, or under the other party, subject nevertheless, to the terms and conditions of this lease. Both parties reserves [sic] the right to make reasonable inspections of the premises during

the term of this Agreement subject to reasonable notice in advance being given the other party.

* * *

16. Tenants shall not assign this lease or any interest therein, or sublet the premises, or any part thereof or any right or privilege appurtenant thereto, or allow any person other than the other party and their agents and employees to occupy or use the premises or any part thereof, without first obtaining the prior written consent of Owner. No written consent is required for the assignment of this lease to a corporation, a majority of the voting stock of which is owned by a party hereunder, the liability of the party under this lease shall survive any such assignment. The consent of a party to one assignment, sublease, or occupancy or use shall not be construed to be a consent to any subsequent assignment, sublease, occupancy or use by any other person. Any attempted assignment or sublease shall be void and shall terminate this Lease Agreement.

* * *

19. This Agreement shall be binding on the Parties, their respective successors, assigns and personal representatives.

* * *

23. This Mutual Parking Lease shall terminate upon the conclusion of this lease or upon the following events:

1. Either party undertaking a change in the use of the land that would reduce the need for the use of the other parties parking. However, so long as the other party needs the parking that is contemplated under this agreement, this agreement shall continue in full force and effect;

   
   

2. Either party may cancel this agreement upon 180 days written notice to the party so long as the termination of this agreement

does not result in any prosecution enforcement against either party by any government agency.

The staff of the Department of Planning prepared a Variance Staff Report, in which it identified the precise description of the requested variance as follows:

The applicant is requesting a variance to Sec. 9.5-351(h)(1) which allows a reduction in the number of parking spaces required when two (2) or more uses with peak parking demands at different times occupy the same lot. The applicant is proposing to share parking with the Elks Club, located across 82nd Street from the applicant's property.

In the event that the variance for shared parking cannot be granted, the applicant is seeking a variance to Sec. 9.5-351(c), Required Number of Off-Street Parking Spaces. The proposed development on the property requires a total of 42 parking spaces. The applicant is requesting that the number of parking spaces be reduced to 26.

The section of the Monroe County Code relating to off-street parking requirements is 9.5-351. Subsection (c) of Section

9.5-351 provides a formula by which the required number of off- street parking spaces for various uses is calculated. Pursuant to this formula, as computed by the staff in its report, "[t]he proposed addition and the existing medical offices together require a total of 42 spaces. The existing development on the property (medical offices) provides 41 parking spaces. The proposed surgical center will delete 15 spaces, leaving only 26 available on the site."

Section 9.5-351(h) establishes the parameters for "shared parking." Section 9.5-351(h)(1) provides: "The purpose of this subsection is to permit a reduction in the total number of parking spaces which would otherwise be required in instances when a lot is occupied by two (2) or more uses which typically do not experience peak parking demands at the same time." Section 9.5-351(2) provides a formula for the computation of the number of spaces which must be provided to satisfy shared parking requirements. Pursuant to this formula, as computed by the staff in Attachment B to its report, the Medical Complex and the Elks Club would need a total of eighty-three parking places if the Elks Club were treated as a restaurant and a total of sixty-eight parking places if the Elks Club were treated as a bar, lounge, or bottle club. After construction of the ambulatory surgical center, the total number of parking places available at the Medical Complex and the Elks Club would be forty-six, according to the calculations of the planning staff.

The Planning Department staff included in its report an extensive analysis of the variance application to determine if the variance met the five conditions set forth in Section 9.5- 523(e), Monroe County Code, which must be considered in granting or denying a variance. The staff summarized its analysis as follows:

IV. FINDINGS OF FACT:

1. Based upon the application, staff finds that the applicant is creating the parking

   problem by maximizing the FAR [floor area ratio] of the proposed development.

   Therefore, staff concludes that there is not good and sufficient cause to grant the variance.

   
   

2. Based upon the application, staff finds that the applicant has an existing use on the property and is creating the parking problem with the proposed expansion. Therefore, staff concludes that denying the variance would not result in an exceptional hardship to the applicant.

   
   

3. Based on the shared parking calculations prepared by the staff, there would not be sufficient parking available to meet the requirements of Sec. 9.5-351(h). Thus, staff concludes that granting the variance could increase threats to public expense and create a nuisance.

   
   

4. Based on the survey, staff finds that there are no unique or peculiar conditions on the property. Based on research conducted by the staff, there are other properties in the Marathon area which could support the proposed development and the required parking. Thus, staff concludes that the applicant does not meet the condition of unique or peculiar circumstances.

   
   

5. Based on Sec. 9.5-351(c), the proposed use requires 42 parking spaces, but the applicant is only providing 26 spaces. The applicant has not submitted any documentation to justify this reduced parking rate. Therefore, staff concludes that granting the variance would allow the applicant a special privilege not conferred to other properties within the same land use district.

Finding that the variance application did not meet any of the five conditions, the staff recommended that Dr. Mankowitz's application for a variance be denied.

A hearing was held before the Planning Commission on December 5, 1996, for consideration of Dr. Mankowitz's application for a parking variance.3 At the hearing, the Planning Department's staff report was read into the record, sworn testimony of both witnesses and members of the public was taken, documents were offered and received into evidence, and arguments were presented. Following the presentation of evidence and argument, a vote was taken among the members of the Planning Commission, all of whom were present.

The Planning Commission unanimously approved the variance, and its action was memorialized in Resolution No. P33-97, which provides as follows:

RESOLUTION NO. P33-97

A RESOLUTION BY THE MONROE COUNTY PLANNING COMMISSION APPROVING THE REQUEST OF DR. BARRY

J. MANKOWITZ FOR A VARIANCE TO SEC. 9.5- 351(h), SHARED PARKING REQUIREMENTS, TO ALLOW THE FLORIDA KEYS MEDICAL CENTER, INC., LOCATED ON LOTS 1, 2, 3, AND 45, BLOCK 3, LIDA SUBDIVISION, FIRST ADDITION, TO SHARE PARKING WITH THE ELKS CLUB LODGE #2139, LOCATED ON LOTS 1, 3, AND 4, BLOCK 4, LIDA SUBDIVISION, FIRST ADDITION, KEY VACA, MONROE COUNTY, FLORIDA, MILE MARKER 51.5. THE LAND USE DESIGNATION IS SUBURBAN COMMERCIAL (SC) AND THE REAL ESTATE NUMBERS ARE 00348170- 000100, 00348170-000200, 00348170-000300, 00348170-000400.

WHEREAS, during a regular meeting held on December 5, 1996, the Monroe County Planning Commission conducted a public hearing on the request filed by Dr. Barry J. Mankowitz for a variance to allow the Florida Keys Medical Complex to share parking with the Elks Club Lodge #2139; and

WHEREAS, Dr. Barry J. Mankowitz has applied for conditional use approval to construct a 7,216 sq. ft. two-story outpatient surgery center as an addition to an existing medical office building; and

WHEREAS, the proposed development is located on property legally described as Lots 1, 2, 3, and 45, Block 3, Lida Subdivision,

First Addition, Section 12, Township 66 South, Range 32 East, Tallahassee Meridian, Key Vaca, Monroe County, Florida; and

WHEREAS, the Elks Club Lodge #2139 is located on property described as Lots 1, 3, and 4, Block 4, Lida Subdivision, First Addition, Section 1, Township 66 South, Range

32 East, Tallahassee Meridian, Key Vaca, Monroe County, Florida; and

WHEREAS, the above-described properties are located in the Suburban Commercial land use district; and

WHEREAS, the Planning Commission was presented with the following evidence, which by reference is hereby incorporated as a part of the record of said hearing:

1. The Variance Application received by Monroe County Planning Department on August 22, 1996, including a site plan

   prepared by Gordon & Associates, Architects, dated March 20, 1997; and

   
   

2. A mutual parking lease between the Florida Keys Medical Complex, Inc. and

   the Benevolent and Patriotic Order of Elks #2139, signed on March 14, 1995; and

   
   

3. The staff report prepared by Jill Jernigan, Planner, dated September 30, 1996, recommending denial of the variance request; and

   
   

4. The sworn testimony of the Growth Management Staff; and

   
   

5. Presentations by Allison J. DeFoor,

attorney for the applicant, and testimony and evidence presented by Dr. Barry J. Mankowitz, applicant, Mr. Bill Stotts, member of the Elks Club, Mr. Michael Gordon, expert in architectural design for ambulatory medical facilities, Mr. Joaquin Vargas, expert in traffic engineering, and Mr. Donald Craig, expert in planning; and

WHEREAS, the Planning Commission has made the following Findings of Facts and Conclusions of Law based on the evidence presented:

1. Based on the proposed location of the surgical center, adjoining the existing medical office building, the doctors will not have to travel on U.S. Highway One from their offices to the hospital to perform some medical procedures. Therefore we find that the proposed surgical center will not result in an increase in traffic; and

2. Based on testimony provided by Dr. Barry

   J. Mankowitz, the owners of the Florida Keys Medical Center wish to expand the current facilities to include an ambulatory surgical center, which can operate at dramatically reduced costs since procedures can be performed on site. Therefore, we find that the proposed surgical center will aide in lowering health care costs for citizens of Monroe County; and

   
   

3. Based on comments made by Dr. Barry J. Mankowitz, through Allison J. DeFoor, attorney for the applicant, the building is proposed to be constructed to withstand a category five (5) hurricane in order to provide for post-hurricane health care. Therefore, we find the project will benefit the public in terms of health, safety and welfare; and

   
   

4. Based on the mutual parking lease provided, the shared parking arrangement will be available to both properties for a period of thirty (30) years, continuing through the year 2025. Therefore, we conclude that there

   will be adequate parking facilities available for both uses; and

   
   

5. Based on the testimony of the applicant, the proposed development will provide a needed service to the community. Therefore, we conclude that the benefits to the public which will be provided by this development outweigh any detriment which may be caused by not meeting the parking requirements; NOW THEREFORE,

BE IT RESOLVED BY THE PLANNING COMMISSION OF

MONROE COUNTY, FLORIDA, that the preceding Findings of Fact and Conclusions of Law, support their decision to APPROVE the Variance request of Dr. Barry J. Mankowitz to allow the Florida Keys Medical Center, Inc. to share parking facilities with the Elks Club Lodge No. 2139 with the following conditions:

1. If the mutual parking lease agreement is terminated or revoked, the Florida Keys Medical Center, prior to dissolution of the agreement, shall provide the additional required parking.

   
   

2. This variance shall become null and void if the mutual parking lease agreement is amended or cancelled by either party.

PASSED AND ADOPTED by the Planning Commission of Monroe County, Florida, at a regular meeting held on the 5th day of December, 1996.

On or about May 12, 1997, Marathon H.M.A., Inc., filed an Application for an Appeal to the Hearing Officer pursuant to Article XIV, Monroe County Code, the Hearing Office Appellate Article.4 It specifically appealed the decision of the Planning Commission to approve "a variance to Sec. 9.5-351(h)MCC, shared parking requirements. See Resolution No. P33-97." Marathon H.M.A., Inc., operates a hospital in Marathon, Florida, under a

lease from Fisherman's Hospital, a not-for-profit corporation providing health care to the residents of Marathon and the middle Keys. It did not appear at the public hearing on Dr. Mankowitz's applications and indicated its interest in the Planning Commission's decision to grant the application for a variance by filing the instant appeal in its capacity as "a resident or real property owner." See Section 9.5-523(d), Monroe County Code.

Marathon H.M.A., Inc., does business as, and will be referred to herein as, "Fisherman's Hospital."

This case was submitted for decision on the record compiled by the secretary to the Planning Commission in accordance with Section 9.5-537 and -538, Monroe County Code; on the arguments presented in Fisherman's Hospital's Initial and Reply Briefs; on the arguments presented in the Appellees' Answer Brief; and on the arguments presented by counsel for the parties during oral argument on April 1, 1998.

DISCUSSION

The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Article XIV, Monroe County Code. The scope of the hearing officer's review under that article is as follows:

The hearing officer's order may reject or modify any conclusion of law or interpretation of the Monroe County land development regulations or comprehensive plan in the planning commission's order, whether stated in the order or necessarily implicit in the planning commission's determination, but he may not reject or modify any findings

of fact unless he first determines from a review of the complete record and states with particularity in his order that the findings of fact were not based upon competent substantial evidence or that the proceeding before the planning commission on which the findings were based did not comply with the essential requirements of law.

In De Groot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957), the court discussed the meaning of "competent substantial evidence" and stated:

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."

In addition, a hearing officer acting in his or her appellate review capacity is without authority to reweigh conflicting testimony presented to the Planning Commission or to substitute his or her judgment for that of the Planning Commission on the issue of credibility. See Haines City Community Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995); 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).

There is competent substantial evidence in the record to support the findings of fact included by the Planning Commission in Resolution No. P33-97 to support its decision to approve Dr. Mankowitz's application for a variance. The uncontroverted evidence considered by the Planning Commission establishes that "the proposed ambulatory surgical center will not result in an increase of traffic; . . . will aid in lowering health care costs for the citizens of Monroe County; . . .[and] will benefit the public in terms of health, safety, and welfare." In addition, the Planning Commission's conclusions that, under the shared parking arrangement with the Elks Club, "there will be adequate parking facilities available for both uses" and that "the benefits to the public which will be provided by this development outweigh any detriment which may be caused by not meeting the parking requirements" may reasonably be inferred from the record herein.

These findings and conclusions are not, however, sufficient as a matter of law to support the Planning Commission's decision to grant Dr. Mankowitz's application for a variance from the off- street parking requirements in Section 9.5-351, Monroe County Code. Section 9.5-523(e) provides:

(a) Variances may be granted to the requirements contained in divisions 10, 9, 4, 11, and 14, article VII, pursuant to the standards and procedures set forth in

subparagraph (e) of this section, but only if a variance is not otherwise available as part of the conditional use approval process.

* * *

(e) The planning commission, in granting or denying a variance under this section, shall consider whether the following conditions are met:

1. A showing of good and sufficient cause;

   
   

2. Failure to grant the variance would result in exceptional hardship to the applicant;

   
   

3. A determination that the granting of the variance will not result in additional threats to public expense which would not otherwise occur; create a nuisance; or

   cause fraud or victimization of the public;

   
   

4. Unique or peculiar circumstances or conditions which apply to the property

   but which do not apply to other properties in the same land use district;

   
   

5. The granting of the variance would not confer upon the applicant any special privilege denied by these regulations to other properties in the same land use district.

The planning commission, in determining whether the foregoing conditions for a variance are met, shall consider the following factors relevant:

1. Physical characteristics of the proposed construction for which a variance is requested;

   
   

2. Whether it is possible to use the property without the variance;

   
   

3. The increased or decreased danger to life and property if the variance is or is not requested;

4. The importance to the community of the services to be provided if the proposed variance is granted;

   
   

5. The compatibility of the proposed variance in light of existing and permitted development in the immediate area;

   
   

6. The safety of access to the property for ordinary and emergency vehicles if the variance is or is not granted.

   
   

7. The additional or lessened costs of providing governmental services if the variance is or is not granted.

"Variance" is not otherwise defined in the Monroe County Code.

Fisherman's Hospital argues that Resolution No. P33-97 should be quashed and a final order entered denying the variance application because the variance application does not meet the five conditions set forth in Section 9.5-523(e). In response, Monroe County and Dr. Mankowitz argue that, while all the conditions must be considered by the Planning Commission, they need not all be met. They assert that "[t]he Planning Commission complies with the requirements of the Code through the consideration of the aforementioned conditions in its decision making process" and that "[i]t has been the long-standing position of the County to construe Section 9.5-523(e) to require that one or more of the conditions be met." (Emphasis in original.) This interpretation of Section 9.5-523(e) is rejected.

Monroe County and Dr. Mankowitz do not cite to any precedent in support of the interpretation they suggest, and, although

there is no indication on the face of Section 9.5-523(e) that the list is in the conjunctive, the only reasonable construction is that all five of the conditions must be met in order for a variance to be granted. In addition, the five conditions set forth are clearly designed to avoid granting the Planning Commission unbridled discretion in granting or denying a variance by establishing the standards that must be met if an application is to be approved. Support for this interpretation of

Section 9.5-523(e) is found in the second provision of that section, which provides: "The planning commission, in determining whether the foregoing conditions for a variance are met, shall consider the following [seven] factors relevant."

The Planning Commission did not include in Resolution No. P33-97 findings of fact on the five conditions stated in

Section 9.5-523(e). However, in Board of County Commissioners of Brevard County v. Snyder, 627 So. 2d 469, 476 (Fla. 1993), the court reviewed a decision of the Board of County Commissioners to deny an application to rezone a parcel of property and observed:

While they may be useful, the board will not be required to make findings of fact.

However, in order to sustain the board's action, upon review by certiorari in the circuit court it must be shown that there was competent substantial evidence presented to the board to support its ruling.

Therefore, while it would have been helpful for the Planning Commission to have made findings of fact relating to the

conditions stated in Section 9.5-523(e), it is not required to do so.

The record in this case does not contain competent substantial evidence sufficient to support the Planning Commission's decision to approve Dr. Mankowitz's application for a variance from the off-street parking requirements of the Monroe County Code.5 Even assuming that the conditions stated in Section 9.5-523(e)(1), (3), (4), and (5) are met, a variance can be granted only if the applicant demonstrates that he would suffer an exceptional hardship if the variance were not granted. "Exceptional hardship" is defined in Section 9.5-4(E-4), Monroe County Code, as follows: "Exceptional hardship means a burden on a property owner that substantially differs in kind or magnitude from the burden imposed on other similarly situated property owners in the same land use district as a result of adoption of these regulations." There is no evidence in the record that Dr. Mankowitz would suffer exceptional hardship as a result of the adoption of the off-street parking regulations in Section 9.5- 351, Monroe County Code, and, therefore, the decision of the Planning Commission to approve Dr. Mankowitz's application for a variance from these regulations is not supported by competent substantial evidence.

DECISION

Based on the foregoing, Resolution No. P33-97 of the Monroe County Planning Commission is REVERSED.

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 common law certiorari to the circuit court in the appropriate judicial circuit.

DONE AND ORDERED this 4th day of June, 1998, 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

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 4th day of June, 1998.

ENDNOTES

1/ The Medical Complex contains the offices of four doctors.

2/ This is apparently a typographical error in the application. The correct code section is 9.5-351(h), and this code section will be referred to throughout this order.

3/ At the same meeting, the Planning Commission also considered Dr. Mankowitz's application for a major conditional use permit to construct the ambulatory surgical center, which was approved, and his applications for a change to the Future Land Use Map for two lots from Residential High to Mixed Use/Commercial and for a Map Amendment to rezone these two lots from Urban Residential/Mobile Home to Suburban Commercial, which were denied.

4/ Fisherman's Hospital also appealed Resolution No. P34-97, in which the Planning Commission approved Dr. Mankowitz's application for a major conditional use permit. This appeal was identified as DOAH Case No. 97-2551 and was consolidated with the instant appeal until it was severed and dismissed in a Final Order entered December 8, 1997.

5/ The preface to Resolution No. P33-97 indicates that the Planning Commission granted Dr. Mankowitz a variance from the requirements of Section 9.5-351(h). However, Dr. Mankowitz requested a variance either from Section 9.5-351(c), which requires that the Medical Complex and the ambulatory surgical center have a total of forty-two parking spaces, or from Section 9.5-351(h), which permits a reduction in the number of parking spaces required when a building occupies one lot, is used for two distinct purposes, and the use for each distinct purpose peaks at a different time.

If the Planning Commission had based its decision to approve the variance on a waiver of the "same lot" requirement in Section 9.5-351(h)(1), there would still be a substantial shortfall in the number of parking spaces available to the Medical Complex and ambulatory surgical center and to the Elks Club if the lease were treated as a shared parking arrangement. The Planning Department staff calculated the required number of spaces using the formula set out in Section 9.5-351(h)(2) and concluded that, at a minimum, sixty-eight parking spaces would be required to comply with the shared parking requirements of Section 9.5-351(h).

Accordingly, a variance from the "same lot" requirement in

Section 9.5-351(h)(1) would not be sufficient to grant a variance from the shared parking requirements of Section 9.5-351(h).

The record lends support to a conjecture that the Planning Commission may have intended to approve a variance from the provisions of Section 9.5-351(c), which, according to the calculations of the Planning Department staff, would require that the combined Medical Complex and proposed ambulatory surgical center provide a total of forty-two parking spaces. The Planning Commission could have concluded that sufficient parking would be provided by the twenty-six parking spaces which would be available on Dr. Mankowitz's property after construction of the ambulatory surgical center if taken together with the twenty parking spaces which the staff considered available on the Elks Club property. On this basis, the Planning Commission could have decided to waive the number of parking spaces required by Section 9.5-351(c).

There is, however, another alternative which the Planning

Commission may have considered in reaching its decision to approve the variance application: The Medical Complex has a thirty-year leasehold interest in the Elks Club property under which it has the exclusive right to the use of at least twenty parking spaces on that property between the hours of 9:00 a.m. and 4:00 p.m. The Planning Commission could have concluded from the evidence submitted that the forty-six parking spaces available on Dr. Mankowitz's property and under the Mutual Parking Lease satisfied the requirements of Sections 9.5-351(c) and 9.5-351(g), Monroe County Code. Under the former section, the Medical Complex expansion must provide forty-two parking spaces, and under the latter section, off-street parking spaces for uses other than single- and multi-family residential uses "shall be located on the same lot as the use which such facilities are intended to serve or upon a lot within three hundred (300) feet." Of course, if this had been the basis for the Planning Commission's decision, it would have been unnecessary for the Planning Commission to grant a variance.

COPIES FURNISHED:

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

Post Office Box 586

Key Largo, Florida 33037

Garth Coller

Assistant County Attorney

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 HALSEY & BURNS, P.A.

First Union Financial Center

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

1 The Medical Complex contains the offices of four doctors.

2 This is apparently a typographical error in the application. The correct code section is 9.5-351(h), and this code section will be referred to throughout this order.

3 At the same meeting, the Planning Commission also considered Dr. Mankowitz's application for a major conditional use permit to construct the ambulatory surgical center, which was approved, and his applications for a change to the Future Land Use Map from Residential High to Mixed Use/Commercial for two lots and for a Map Amendment to rezone these two lots from Urban Residential/Mobile Home to Suburban Commercial, which were denied.

4 Fisherman's Hospital also appealed Resolution No. P34-97, in which the Planning Commission approved Dr. Mankowitz's application for a major conditional use permit. This appeal was identified as DOAH Case No. 97-2551 and was consolidated with the instant appeal until it was severed and dismissed in a Final Order entered December 8, 1997.

5 It is not possible to determine from the text of Resolution No. P33-97 whether the Planning Commission granted Dr. Mankowitz a variance from the requirements of Section 9.5-351(c) or of Section 9.5-351(h). Dr. Mankowitz requested a variance either from Section 9.5-351(c), which requires that the Medical Complex and the ambulatory surgical center have a total of forty-two parking spaces or from Section 9.5-351(h), which permits a reduction in the number of parking spaces required when land or a building occupies one lot, is used for two distinct purposes, and the use for each distinct purpose peaks at a different time. In Resolution No. P33-97, the Planning Commission stated only that it approved the variance request "to allow the Florida Keys Medical Center Inc. to share parking facilities with the Elks Club Lodge No. 2139," with certain conditions.

If the Planning Commission had based its decision to approve the variance on a waiver of the requirement in Section 9.5-351(h) that shared parking arrangements exist between uses which are located on the same lot, there would still be a substantial shortfall in the number of parking spaces available to the Medical Complex and the Elks Club under the lease agreement providing for shared parking. Dr. Mankowitz's expert performed a study and calculated that fifty-five would be the maximum number of spaces which would be occupied at any one time on the two properties; the Planning Department staff calculated the number of spaces using the formula set out in Section 9.5-351(h)(2) and concluded that, at a minimum, sixty-eight parking spaces would be required to comply with the shared parking requirements of Section 9.5-351(h).

The record tends to support the conclusion that the Planning

Commission approved a variance from Section 9.5-351(c), which, according to the calculations of the Planning Department staff, would require that the combined Medical Complex and proposed ambulatory surgical center provide a total of forty-two parking spaces. The Planning Commission could have concluded that the twenty-six parking spaces which would be available on Dr.

Mankowitz's property after construction of the ambulatory surgical center, together with the twenty parking spaces which the staff considered available on the Elks Club property, would provide an adequate number of parking spaces for the Medical Complex.

There is, however, another alternative which the Planning Commission may have considered in reaching its decision: Since the Medical Complex has a leasehold interest in the Elks Club property under which it has the exclusive right to the use of at least twenty parking spaces on that property between the hours of 9:00 a.m. and 4:00 p.m., it could be that the Planning Commission felt it met the requirements of Section 9.5-351(g), Monroe County Code, which requires that off-street parking spaces for uses other than single- and multi-family residential uses "shall be located on the same lot as the use which such facilities are intended to serve or upon a lot within three hundred (300) feet." Of course, if this had been the basis for the Planning Commission's decision, it would have been unnecessary for the Planning Commission to grant a variance.

Docket for Case No: 97-002879

Orders for Case No: 97-002879