STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HERNANDEZ INVESTMENT )

GROUP, INC., )

)

Appellant, )

) Case No. 97-4581

vs. )

)

MONROE COUNTY, FLORIDA, )

)

Appellee. )

)

FINAL ORDER

This is an appeal from Resolution No. P35-97 of the Monroe County Planning Commission (Commission) denying the Appellant's "as-of-right" building permit application to construct a fast food restaurant on Tract C of Plat of Tradewinds Subdivision, Monroe County, Florida. This appeal was taken pursuant to Article XIV of the Monroe County Code, Land Development Regulations, the Hearing Officer Appellate Article. Oral argument was heard by Susan B. Kirkland, the designated Administrative Law Judge of the Division of Administrative Hearings.

Appellant, Hernandez Investment Group, Inc. (Hernandez), is a successor in interest to Landmark Equity, Inc. (Landmark), the previous owner of Tract C of the Tradewinds Shopping Center (Tradewinds). At the time Tradewinds' major development was approved in 1986; Tract C had been designated a separate, platted tract. A fast food restaurant on Tract C was included in

Tradewinds' major development approval.

Prior to the expiration of Tradewinds' original major development approval, building permits were issued, construction was completed, and certificates of occupancy were issued for Tracts A and D of the shopping center. The fast food restaurant originally approved for Tract C was never constructed.

Tradewinds' major development approval expired on December 12, 1986.

In February 1995, representatives from Landmark and McDonald's Corporation (McDonald's) met with the Monroe County planning staff for a pre-application conference to discuss the construction of a fast food restaurant on Tract C. In a letter of understanding dated February 22, 1995, Director of Planning Lorenzo Aghemo advised McDonald's as follows:

Since both the original County approval and the DCA agreement with the shopping center encompass the parcel now proposed for development of the McDonald's and the site plan submitted shows that the proposed development will share the shopping center's existing wastewater disposal facilities, as well as existing U.S. 1 access drives, and certain utilities, the proposed development must comply with Sec. 9.5-256, 'Aggregation of Development,' which requires that the project be reviewed as part of the existing shopping center for purposes of determining compliance with the standards and regulations of Chapter 9.5 of the Monroe County Code and to establish the appropriate form of development review.

Consequently, and pursuant to Sec. 9.5-

73 of the current Land Development Regulations, the proposed development will be reviewed as a modification of an existing

major conditional use, subject to public hearing before the Planning Commission. Further, the applicants must submit, as part of their application for development approval, floor area, open space, parking, and other pertinent shopping center data, as these data relate to their proposed development. Consideration shall be given to potential additional impacts resulting from the proposed McDonald's, in light of an approved expansion of the existing K-Mart.

McDonald's submitted an application for an "as-of-right" building permit rather than apply for a conditional use permit. By letter dated January 4, 1996, Monroe County Planner Sheryl Bower informed McDonald's that the development could not be processed as an "as-of-right" permit and that the development of Tract C must be reviewed as a modification to a major conditional use.

On April 17, 1996, Landmark and McDonald's filed an action against Monroe County for a writ of mandamus to compel the county to process the application under the "as-of-right" provision of the Monroe County Code. McDonald's Corporation v. Monroe County, Case No. 96-20-194. The case was dismissed on July 15, 1996, for failure to exhaust administrative remedies with leave to appeal within 30 working days any adverse administrative decisions concerning the denial of the plaintiff's application for a building permit.

On August 20, 1996, Landmark appealed the January 4, 1996, letter concerning the "as-of-right" application. The Planning Commission held a hearing on the appeal and affirmed the Planning

Director's decision to deny the "as-of-right" building permit application.

At issue in this case are two provisions of the Monroe County Code, Sections 9.5-2(c) and 9.5-256. Section 9.5-2(c) provides:

Existing Uses: All uses existing on the effective date of this chapter which would be permitted as a conditional use under the terms of this chapter shall be deemed to have a conditional use permit and shall not be considered nonconforming.

Section 9.5-256 provides:

Any development which has or is a part of a common plan or theme of development or use, including but not limited to an overall plan of development, common or shared amenities, utilities or facilities, shall be aggregated for the purpose of determining permitted or authorized development and compliance with each and every standard of this chapter and for the purpose of determining the appropriate form of development review.

Appellant contends that Section 9.5-2(c) does not apply to Tract C because there is no existing use for Tract C, a vacant lot. Thus, Appellant argues, Tract C is not deemed to have a conditional use permit, and the application for development of Tract C should be processed as an "as-of-right" permit. Because of the existing facts in this case, Appellant's argument is without merit.

The Planning Commission found that Tract C was included in the original major development plan for Tradewinds and was to be developed as a fast food restaurant. Tract C was part of the

common plan and overall theme of the development of Tradewinds. Additionally, the Planning Commission found that Tract C shared utilities and facilities with Tradewinds, including: the signalized access drive for Tradewinds, sewage treatment facilities, storm water management system, and the sharing and generation of pedestrian traffic to and from the shopping center. These findings are supported by competent substantial evidence and, as such, should not be overturned. Section 9.5-540, Monroe County Code.

A fundamental rule of statutory construction is that statutory provisions which are part of the same act should be read in pari materia. Florida Jai Alai, Inc. v. Lake Howell Water & Reclamation District, 274 So. 2d 522 (Fla. 1973). In the instant case, Sections 9.5-2(c) and 9.5-256 should be read together. It is true that Tract C alone does not have an existing use but the inquiry does not stop once it is determined that Tract C is a vacant lot. A determination must be made whether Section 9.5-256, Monroe County Code, is applicable. The Planning Commission correctly determined that Section 9.5-256 is applicable to Tract C because of the original overall plan of development for Tradewinds and the shared amenities and utilities. Tract C should be aggregated with Tradewinds for the purpose of determining the correct development process.

The next question to be answered is whether Tradewinds is subject to Section 9.5-2(c), Monroe County Code. Tradewinds was

originally approved as a major development under the Monroe County Code in existence at the time the development was approved. With the adoption by Monroe County of the 1986 land development regulations, the term "major development" was replaced with the term "major conditional use." Sections

9.5-2(c) and 9.5-7, Monroe County Code. Pursuant to Section

9.5-2(c), Tradewinds, an existing major development, is deemed to have a major conditional use permit. Because the authorization to proceed with further development at Tradewinds expired on December 12, 1986, any additional development at Tradewinds must be reviewed under the land regulations currently in effect.

Section 9.5-73, Monroe County Code, requires that changes or additions to an existing major development/conditional use must reviewed as a modification or amendment to a conditional use.

The development of Tract C requires review as a modification or amendment to a major conditional use.

Appellee contends that the appeal to the Planning Commission was untimely filed. Based on the Circuit Court's order allowing an appeal with thirty working days of the court's order, Appellee's argument is without merit.

The resolution of the Planning Commission denying Appellant's application for an "as-of-right" building permit is 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 this 5th day of June, 1998, in Tallahassee, Leon County, Florida.

SUSAN B. KIRKLAND

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 5th day of June, 1998.

COPIES FURNISHED:

Andrew M. Tobin, Esquire Mattson and Tobin

Post Office Box 586

Key Largo, Florida 33037

Gail Moro

Planning Coordinator

Monroe County Government Center 2798 Overseas Highway

Marathon, Florida 33030

Garth Coller

Attorney for Monroe County Monroe County Government Center 2798 Overseas Highway

Marathon, Florida 33030

Ralf G. Brookes, Esquire Morgan & Brookes

317 Whitehead Street

Key West, Florida 33040

Docket for Case No: 97-004581

Orders for Case No: 97-004581