STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUNSHINE KEY ASSOCIATES, INC., )

(National Homes Communities), )

)

Appellant, )

)

vs. ) Case No. 98-3531

)

COUNTY OF MONROE, FLORIDA, )

)

Appellee. )

)

FINAL ORDER

Pursuant to notice, oral argument was held in this case by telephone conference call on February 1, 1999, before Stuart M. Lerner, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Appellant: Franklin D. Greenman, Esquire

Greenman and Manz

5800 Overseas Highway, Suite 40

Marathon, Florida 33050

For Appellee: Karen K. Cabanas, Esquire

Morgan and Hendrick

317 Whitehead Street

Key West, Florida 33040 STATEMENT OF THE ISSUE

Whether Resolution No. P36-98 of the Monroe County Planning Commission should be affirmed, reversed or modified.

PRELIMINARY STATEMENT

Appellant owns property in Monroe County (hereinafter referred to as "Sunshine Key") that is located in a Recreational

Vehicle land use district. In or about July of 1997, representatives of Appellant met with Timothy McGarry, Monroe County's Director of Planning, and Dianne Bair, Monroe County's FEMA Coordinator, to request that Monroe County permit the placement of concrete blocks underneath recreational vehicles occupying spaces in Sunshine Key. Following the meeting,

Ms. Bair sent a letter, dated July 14, 1997, to Appellant's President, John Knorr, which read, in pertinent part, as follows:

During a recent meeting with yourself, your counsel Mr. Frank Greenman, Director of Planning Mr. Timothy McGarry and myself, you made a request that Monroe County give consideration to the placement of blocks beneath a road ready RV in order to level the unit while being located in your campground, Sunshine Key Recreational Vehicle Park. You indicated that the blocks would not remove the RV's from their wheels, but rather would stabilize the units. As I agreed I have discussed this with Growth Management Director, Robert L. Herman. The definition of road ready contained in Section 9.5-4(R[- 6])(3) clearly states that road ready means "on its wheels or internal jacking system." The defining of "road ready" does not include stabilization blocking. Therefore the answer to the question may blocks be used to stabilize an RV while located in an RV space is No. However, the internal jacking system may be used.

Appellant requested reconsideration. By letter dated August 26, 1997, Ms. Bair advised Appellant that "[t]he initial decision to deny [Appellant's] request to allow blocks to be used as stabilizers in lieu of an internal jacking system[] as defined in the Monroe County Code in Sunshine Key Park or any other Recreational Vehicle District within Monroe County remain[ed] the

same."

On or about October 23, 1997, Appellant filed an Application for Administrative Appeal to Planning Commission contesting the decision to "prohibit the use of stacked concrete blocks to stabilize and level an RV in an RV space at Sunshine Key." Appellant's appeal was heard by the Monroe County Planning Commission (Planning Commission) at the Planning Commission's April 2, 1998, meeting. At the hearing, witnesses gave sworn testimony, documents were offered and received into evidence, and arguments were presented.

Following the presentation of evidence and argument, a vote was taken among the five Planning Commission members present.

All five voted in favor of rejecting Appellant's appeal of the decision barring the use of concrete blocks to stabilize vehicles occupying spaces in Sunshine Key.

The Planning Commission's action was memorialized in Resolution No. P36-98, which provided as follows:

RESOLUTION NO. P36-98

A RESOLUTION BY THE MONROE COUNTY PLANNING COMMISSION DENYING THE APPEAL BY SUNSHINE KEY ASSOCIATES LIMITED PARTNERSHIP OF GROWTH MANAGEMENT DIVISION'S DENIAL OF A REQUEST TO ALLOW STACKED CONCRETE BLOCKS TO STABILIZE AND LEVEL RECREATIONAL VEHICLES ON PROPERTY DESCRIBED AS PARCEL 1, GOVERNMENT LOT 2, SECTION 25, TOWNSHIP 66 SOUTH, RANGE 30 EAST, OHIO KEY, MONROE COUNTY, FLORIDA, MILE MARKER 40.

WHEREAS, during a regular meeting held on April 2, 1998, the Monroe County Planning Commission conducted a public hearing on the

appeal filed by Sunshine Key Associates Limited Partnership to overturn the decision of the Growth Management Division denying the use of stacked concrete blocks to stabilize and level recreational vehicles within their park; and

WHEREAS, the proposed development is located on property legally described as parcel 1, Government lot 2, Section 25, Township 66 South, range 30 East; and

WHEREAS, the proposed development is located in the Recreational Vehicle (RV) 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 Appeal Application submitted by Franklin Greenman, agent for appellant; and

   
   

2. The staff report prepared by Dianne Bair, FEMA Coordinator, dated November 12, 1997; and

   
   

3. The sworn testimony of Growth Management Staff; and

   
   

4. Presentations by John Knorr, Junior, and Franklin Greenman; and

   
   

5. The comments of Garth Coller, Planning Commission Counsel; and

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

1. The definition of "highway ready" contained in Section 9.5-4(R-6), paragraph 3, Monroe County Code, states that a recreational vehicle must be on its wheels or "internal" jacking system. The definition does not include stabilization of recreational vehicles through the use of "external" concrete blocks." Therefore, any proposal for the use of concrete blocks for

   stabilization is inconsistent with the definition of "highway ready."

   
   

2. Pursuant to Section 9.5-244 of the Monroe County Code, recreational vehicle spaces are permitted as-of-right in the Recreational Vehicle land use district. Recreational vehicles may occupy the spaces only on a transient basis.

   
   

3. Based on the testimony of the applicant[] and [its] witnesses staff finds that concrete block supports are much heavier and more massive than pyramid jacks and therefore, less "highway ready"; and

   
   

4. Based on arguments by appellant[']s[] counsel we find that any "external" stabilization systems, including pyramid jacks and concrete blocks, are in direct conflict with the express language of 9.5- 4(R-6), and therefore contrary to the clear intent of the Board of County Commissioners; 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 DENY the appeal by Sunshine Key Associates Limited Partnership of the Division of Growth Management's decision to prohibit the use of concrete blocks as stabilizing mechanisms for recreational vehicles.

PASSED AND ADOPTED by the Planning Commission of Monroe County, Florida, at a regular meeting held on the 2nd day of April, 1998.

On or about July 1, 1998, Appellant filed an Application for an Administrative Appeal of a Planning Commission Decision to a Hearing Officer pursuant to the Hearing Officer Appellate Article (Article XIV) of the Monroe County Code. On the application form, Appellant indicated that the "decision being appealed" was

"Resolution Page 36-98 from Planning Commission" and that the "basis for [the] appeal" was as follows:

The decision of the Planning Commission is contrary to the intent and clear language of section 9.5-4(R-6) by imposing an unreasonable, unnecessary, arbitrary and capricious restriction on the Appellant's business and use of its property. The planning commission made its determination contrary to the law, and the facts and evidence presented at the hearing.

On July 30, 1998, Appellant's appeal was referred to the Division of Administrative Hearings for the assignment of an administrative law judge to serve as a hearing officer to hear the appeal.

On September 18, 1998, Appellant filed its Initial Brief.

In its Initial Brief, Appellant summarized its arguments on appeal as follows:

ARGUMENT I

The prohibition against concrete blocks as stabilizing devices for recreational vehicles in a recreational vehicles district is arbitrary and capricious and is not supported by any rational basis or public purpose.

ARGUMENT II

The County's use of its definition of recreational vehicle to prohibit concrete blocks for tie downs is an over broad and incorrect interpretation of its code.

Monroe County filed an Answer Brief on October 26, 1998.

Appellant filed a Reply Brief on November 30, 1998. In its Reply Brief, Appellant argued that "concrete block or stacked wood

stabilizing devices are lawful accessory uses under the Monroe County Land Development Regulations."

By Order issued December 14, 1998, the undersigned advised the parties that "oral argument in the instant case [would] be conducted by telephone conference call on February 1, 1999, commencing at 9:15 a.m."

Oral argument was heard on February 1, 1999, as scheduled.

DISCUSSION

On this appeal, Appellant is challenging the decision of the Planning Commission, memorialized in Planning Commission Resolution No. P36-98, to "DENY" the appeal filed by [Appellant] of the Division of Growth Management's decision to prohibit the use of concrete blocks as stabilizing mechanisms for recreational vehicles" on Appellant's property (Sunshine Key), a decision that was based upon the Planning Commission's interpretation of the definition of "recreational vehicle" found in the Monroe County Code. For the reasons stated below, the undersigned concludes that the Planning Commission's decision was correct.

The undersigned, in his capacity as a Monroe County hearing officer, must conduct his review of the challenged decision of the Planning Commission in accordance with Section 9.5-540(b) of the Monroe County Code, which provides as follows:

Within forty-five (45) days of oral argument, the hearing officer shall render an order which may affirm, reverse or modify the order of the planning commission. 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 proceedings before the planning commission on which the findings were based did not comply with the essential requirements of law.

In determining whether contested findings are "based upon competent substantial evidence," within the meaning of Section 9.5-540(b), 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."

In the instant case, competent substantial evidence supports

the Planning Commission's finding that Appellant's property (Sunshine Key) is "located in the Recreational Vehicle (RV) land use district" (a finding that Petitioner does not dispute).

Section 9.5-215 of the Monroe County Code states that "[t]he purpose of the RV district is to establish areas suitable for the development of destination resorts for recreational vehicles." Section 9.5-244(a) of the Monroe County Code describes the uses "permitted as of right in the Recreational Vehicle District."1

It provides as follows:

(a) The following uses are permitted as of right in the Recreational Vehicle District:

1. Recreational vehicle spaces;

   
   

2. Commercial retail uses of less than twenty-five hundred (2,500) square feet of floor area;

   
   

3. Accessory uses, including permanent owner/employee residential dwelling units. No more than one (1) permanent residential unit per three (3) RV spaces up to ten (10) percent of total spaces allowed or in existence.

A "recreational vehicle," as used in the foregoing provisions of the Monroe County Code, is defined in Section 9.5-4(R-6) as follows:

"Recreational vehicle" means a vehicle or portable structure built on a chassis and designed as a dwelling for travel, recreation or vacation for tenancies o[f] less than six

(6) months; which has a transportable body width not exceeding thirty-five (35) feet; and which does not qualify as mobile home; and:

1. The travel trailer or park trailer has been placed in a travel trailer park, campground or a storage yard;

   
   

2. The travel trailer or park trailer has current licenses required for highway travel; and

   
   

3. The travel trailer or park trailer is highway ready. This means that the travel trailer is on its wheels or internal jacking system and attached to this site only by the quick disconnect-type utilities commonly used in campgrounds and trailer parks or by security devices. No permanent additions such as Florida rooms shall be permitted.

The definition of "accessory uses," as used in Section 9- 5.244(a)(3) of the Monroe County Code, is found in Section 9.5- 4(A-2) of the Code, which provides as follows:

"Accessory uses or Accessory structures" means a use or structure that is subordinate to and serves a principal use or structure; is subordinate in area, extent and purpose to the principal use or structure served; contributes to the comfort, convenience or necessity of occupants of the principal use or structure served; and is located on the same lot or on contiguous lots under the same ownership and in the same land use district as the principal use or structure. Accessory uses include the utilization of yards for home gardens provided that the produce of the garden is for noncommercial purpose; however, in no event shall an accessory use or structure be construed to authorize a use or structure not otherwise permitted in the district in which the principal use is located, and in no event shall an accessory use or structure be established prior to the principal use to which it is accessory.

Accessory uses shall not include guest units

or any other potentially habitable structure. Habitable structures are considered to be dwelling units as defined below in this section.

Section 9.5-3(a) of the Monroe County Code provides that, as a general rule, "[a]ll provisions, terms, phrases and expressions contained in this chapter [Chapter 9.5, which contains Monroe County's land development regulations and includes the provisions of the Monroe County Code set out above] shall be liberally construed in order that the true intent and meaning of the board of county commissioners may be fully carried out." It is apparent from a reading of Sections 9.5-244 and 9.5-4(R-6) of the Monroe County Code that it was the intent of the Monroe County Commission to prohibit travel trailers and park trailers that are not on their wheels or, if stabilized, on an internal jacking system, from occupying space or otherwise using property in a Recreational Vehicle land use district. Had the Monroe County Commission wanted to allow, in the Recreational Vehicle land use district, travel trailers and park trailers stabilized by means other than an internal jacking system (such as the stacking of concrete blocks underneath the chassis of the trailer), it could have made specific reference in Section 9.5-4(R-6)(3) to these alternative means of stabilization (as it did to the internal jacking system). Its failure to have done so is compelling evidence that it had no such desire. See Thayer v. State, 335 So. 2d 815, 817 (Fla. 1976)("The law clearly requires that the legislative intent be determined primarily from the language of the statute because a statute is to be taken, construed and applied in the form enacted. . . It is , of course, a general

principle of statutory construction that the mention of one thing implies the exclusion of another; expressio unius est exclusio alterius. Hence, where a statute enumerates the things on which it is to operate, or forbids certain things, it is ordinarily to be construed as excluding from its operation all those not expressly mentioned."); Moonlit Waters Apartments v. Cauley, 666 So. 2d 898, 900 (Fla. 1996)("Under the principle of statutory construction, expressio unius est exclusio alterius, the mention of one thing implies the exclusion of another."); Hillsborough County v. NCJ Investment Company, 605 So. 2d 1287, 1288 (Fla. 2d DCA 1992)("Applying this principle to this case, the expressed enumeration of the requirement that a major modification must be supported by a resolution, which must have an extraordinary four- vote majority, indicates that a minor modification, which must only be supported by "approval," does not so require.").

Appellant argues that "[t]he use of stabilization devices not contemplated within the definition of recreational vehicle, are contemplated and fit within the definition of accessory uses," found in Section 9.5-4(A-2) of the Monroe County Code.

According to Appellant, "[t]he use of concrete blocks or stacked wood or an external jacking system for a stabilization device" is such an "accessory use" inasmuch as it "is subordinate to and serves the recreational vehicle's principal use" and "contributes to comfort, convenience and necessity." Appellant's argument, however, overlooks the fact that, once a "recreational vehicle"

is stabilized by a device other than an internal jacking system, it ceases to be a "recreational vehicle" entitled to occupy space or otherwise use property in a Recreational Vehicle land use district and therefore its presence on such property no longer provides a basis upon which otherwise unauthorized accessory uses may be allowed. Because "[t]he use of concrete blocks or stacked wood or an external jacking system for a stabilization device" is not subordinate to and does not serve a use that is permitted in a Recreational Vehicle land use district, it does not qualify as an "accessory use," as that term is employed in Section 9- 5.244(a)(3) of the Monroe County Code.

To accept Appellant's position that it is permissible to use "concrete blocks or stacked wood or an external jacking system" to stabilize travel trailers and park trailers occupying space in Sunshine Key would require the undersigned to ignore the clear intent of the Monroe County Commission to the contrary and to effectively add to Monroe County's land development regulations language that, by all appearances, was purposefully omitted.

This the undersigned cannot do. See Rinker Materials Corporation v. City of North Miami, 286 So. 2d 552, 553-54 (Fla.

1973)("[C]ourts generally may not insert words or phrases in municipal ordinances in order to express intentions which do not appear, unless it is clear that the omission was inadvertent, and must give to a statute (or ordinance) the plain and ordinary meaning of the words employed by the legislative body.");

Mandelstam v. City Commission of the City of South Miami, 539 So. 2d 1139, 1140 (Fla. 3d DCA 1988)("Courts and other governmental bodies are prohibited from inserting words or phrases into municipal ordinances to express intentions that do not appear."); Rose v. Town of Hillsboro Beach, 216 So. 2d 258, 259 (Fla. 4th DCA 1968)("Municipal ordinances are subject to the same rules of construction as are state statutes. Hence, the general rule applies that the courts may not insert words or phrases into an enactment in order to express a speculative intention unless it clearly appears that the omission was inadvertent."); Jacksonville Coach Company v. Decker, 206 So. 2d 476, 478 (Fla.

1st DCA 1968)("Neither the trial court nor this court can read into an ordinance or act an intent of the legislating body adopting said ordinance or act contrary to that set out in unambiguous language as we find the ordinance in question did.").

It appears that the determination made by the Planning Commission below concerning the use of stacked concrete blocks as stabilization devices for travel trailers and park trailers occupying space in Sunshine Key was neither arbitrary nor capricious,2 but rather was based on competent substantial evidence and an unassailable interpretation of the pertinent provisions of Monroe County's land development regulations.3 Furthermore, there is no indication that it was tainted by any procedural error or irregularity.

DECISION ON APPELLANT'S APPEAL

In view of the foregoing, Resolution No. P36-98 of the Monroe County Planning Commission 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 this 17th day of February, 1999, in Tallahassee, Leon County, Florida.

STUART M. LERNER

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 1999.

ENDNOTES

1/ Section 9.5-244(b) provides that hotels with less than 50 rooms (meeting specified conditions) and parks and community parks are "permitted as a minor conditional use in the Recreational Vehicle District," and Section 9.5-244(c) provides that hotels with 50 or more rooms (meeting specified conditions) and marinas (meeting specified conditions) are "permitted as a major conditional use in the Recreational Vehicle District."

2/ An "arbitrary" action is "one not supported by facts or logic, or [is] despotic." A "capricious" action is "one which is taken without thought or reason or [is] irrational[]." Agrico Chemical Co. v. Department of Environmental Regulation, 365

So. 2d 759, 763 (Fla. 1st DCA 1978).

3/ Whether the distinction made by the Monroe County Commission in these provisions between internal jacking systems and other stabilization devices is arbitrary or capricious is beyond the scope of this appeal. Cf. See Palm Harbor Special Fire Control District v. Kelly, 516 So. 2d 249 (Fla. 1987)("[I]t is axiomatic that an administrative agency has no power to declare a statute void or otherwise unenforceable."); Secretary of State v.

Milligan, 704 So. 2d 152, 157 (Fla. 1st DCA 1997)("[A]n administrative agency has no power to declare a statute void or otherwise unenforceable and there is no obligation to defer to an agency interpretation that results in a statute being voided by administrative fiat."); Holmes v. City of West Palm Beach, 627 So. 2d 52 (Fla. 4th DCA 1993)("[A]ppellee correctly contends that because it is an administrative agency, rather than a court, it cannot circumvent unambiguous statutory provisions in the interest of fairness and due process considerations. It

lacks the power to declare a statute void or otherwise unenforceable.").

COPIES FURNISHED:

Franklin D. Greenman, Esquire Greenman and Manz

5800 Overseas Highway, Suite 40

Marathon, Florida 33050

Karen K. Cabanas, Esquire Morgan and Hendrick

317 Whitehead Street

Key West, Florida 33040

Planning Commission Coordinator 2798 Overseas Highway, Suite 410

Marathon, Florida 33050-2227

1 Section 9.5-244(b) provides that hotels with less than 50 rooms (meeting specified conditions) and parks and community parks are "permitted as a minor conditional use in the Recreational Vehicle District," and Section 9.5-244(c) provides that hotels with 50 or more rooms (meeting specified conditions) and marinas (meeting specified conditions) are "permitted as a major conditional use in the Recreational Vehicle District."

2 An "arbitrary" action is "one not supported by facts or logic, or [is] despotic." A "capricious" action is "one which is taken without thought or reason or [is] irrational[]." Agrico Chemical Co. v. Department of Environmental Regulation, 365

So. 2d 759, 763 (Fla. 1st DCA 1978).

3 Whether the distinction made by the Monroe County Commission in these provisions between internal jacking systems and other stabilization devices is arbitrary or capricious is beyond the scope of this appeal. Cf. See Palm Harbor Special Fire Control District v. Kelly, 516 So. 2d 249 (Fla. 1987)("[I]t is axiomatic that an administrative agency has no power to declare a statute void or otherwise unenforceable."); Secretary of State v. Milligan, 704 So. 2d 152, 157 (Fla. 1st DCA 1997)("[A]n administrative agency has no power to declare a statute void or otherwise unenforceable and there is no obligation to defer to an agency interpretation that results in a statute being voided by administrative fiat."); Holmes v. City of West Palm Beach, 627 So. 2d 52 (Fla. 4th DCA 1993)("[A]ppellee correctly contends that because it is an administrative agency, rather than a court, it cannot circumvent unambiguous statutory provisions in the interest of fairness and due process considerations. It

lacks the power to declare a statute void or otherwise

unenforceable.").

Docket for Case No: 98-003531

Orders for Case No: 98-003531