STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUMMERWIND HOMEOWNER'S )

ASSOCIATION, )

)

Appellant, )

)

vs. ) Case No. 99-0705

)

COUNTY OF MONROE and )

MARC and ROBIN OSHEROFF, )

)

Appellees. )

)

FINAL ORDER

Pursuant to notice, oral argument was held in this case on July 22, 1999, in Tallahassee, Florida, before Patricia Hart Malono, a duly designated administrative law judge of the Division of Administrative Hearings.

APPEARANCES

For Appellant: Andrea M. Harum, Esquire

Albert E. Harum, Jr., P.A.

Oak Plaza Professional Center, Suite A1A 8525 Southwest 92nd Street

Miami, Florida 33156

For Appellees: Andrew M. Tobin, Esquire Marc and Robin MATTSON & TOBIN

Osheroff 88101 Overseas Highway

Islamorada, Florida 33036 STATEMENT OF THE ISSUE

This is an appeal from a resolution of the Monroe County Planning Commission ("Planning Commission") denying the administrative appeal of the Summerwind Homeowner's Association from the decision to grant a variance to Marc and Robin Osheroff

for a dock extension at their property, RE# 0088280. The instant 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 this appeal is whether Resolution No. P94-98 of the Planning Commission should be affirmed, reversed, or modified.

PRELIMINARY STATEMENT

Marc and Robin Osheroff ("Osheroffs") applied for a variance from the maximum dock length specification found in Section 9.5- 345(m)(2)b.1., Monroe County Code. The Osheroffs requested the variance in order to construct a 110-foot extension to their existing 158.5-foot dock, with mooring piles to be installed fifteen feet from the terminal end of the dock. The dock extension would be constructed on property owned by the Osheroffs and identified as Lot 19, K.O Thompson Tract, 95706 Overseas Highway, Key Largo. The Osheroffs applied for the variance because the proposed dock would exceed the dock length of 100 feet from the mean low water line specified in the Monroe County Year 2010 Comprehensive Plan Policy 212.5.4, which provides in pertinent part:

The following restrictions shall apply to all structures built over or adjacent to water (including but not limited to boat docks, fishing piers, swimming piers and observation decks):

1. the maximum permitted length of docks shall be commensurate with the shoreline

width of the land parcel at which the dock is located, subject to a maximum length of 100 feet from the mean low water line;

* * *

4. all fishing, swimming, and other piers and observation decks shall conform to design criteria to be adopted in the Land Development Regulations which prohibit their use as a dock.

A variance procedure, separate from that set forth in the current Land Development Regulations Section 9.5-523, shall be included in the Land Development Regulations to allow the minimum relaxation of the above restrictions which is necessary to provide the upland owner reasonable access to adjacent waters for recreational use. That variance procedure shall incorporate, among other criteria, requirements that such structures not be inconsistent with community character, not interfere with public recreational uses in or on adjacent waters, and pose no navigational or safety hazard.

This policy directive was enacted as part of Section

9.5-345(m)(2) of the Monroe County Land Development Regulations ("Monroe County Code"). This code section is part of the Intergovernmental Agreement to Set Interim Standards for Marine/Terrestrial Access in Monroe County ("Interim Dock Standards"), which was effective April 15, 1997. The variance application was considered pursuant to the provisions of Section 9.5-345(m) then in effect, which provided in pertinent part:

1. All structures on any submerged lands and mangroves shall be designed, located and constructed such that:

   
   

   * * *

   1. The length of structures shall be limited as follows except pursuant to a variance:

      
      

      1. The maximum length perpendicular to the shoreline shall be commensurate with the shoreline width of the land parcel at which the structure is located (at a ratio of two feet of structure length to one foot of shoreline length) subject to a maximum length of 100 feet from the mean low water line.

* * *

3. A variance may be jointly granted by the Directors of Planning and Environmental Resources to allow the minimum relaxation of the above restrictions, regarding length, which is necessary to provide the upland owner reasonable access to adjacent waters for recreational use. Variances will only be granted in consideration of, among other criteria, that such structure not be inconsistent with community character, not interfere with public recreational uses in or on adjacent waters, and pose no navigational or safety hazard. Shoreline property owners within 300 feet of the subject parcel will be notified of the proposed variance within 30 working days in advance of a permit for the variance in order to allow an opportunity for appeal.

Finally, consistent with the requirements of Monroe County Year 2010 Comprehensive Plan Policy 212.5.2, Section 9.5-

345(m)(2)g.1., Monroe County Code (Supp. 63), provides: "Docking facilities may be developed on any shoreline if there is a mean low water depth of at least minus four (4) feet at the terminal end of the docking facility, and continuous access to open water."

On June 16, 1998, a county biologist submitted a report on the Osheroffs' variance application that included the following recommendation: "It is recommended that the variance be granted, and suggested that lighting or reflectors be required on the terminus and at 25-50 foot intervals along the walkway, on both sides of the dock." In the report, the biologist describes the property as a single-family home located on a lot extending from US Highway 1 to Florida Bay. The biologist described the shoreline as follows:

The shoreline has an uplands bulkhead as shoreline protection. There are no mangroves present. The nearshore area is flat caprock with small depressions vegetated with Acetabularia (Mermaids Umbrella), Batophora, and filametous green and golden algae. There is some Turtlegrass wrack on the shore.

There is a T-shaped dock present now. Seagrass is present only as isolated, small (dinner plate size) patches, usually around the piles of the existing dock. The leadline depth at the terminus of the existing dock was only about 3 feet, winds were onshore at about 15 MPH when I measured. It appears that the proposed new terminus is over a bare spot.

The biologist described the adjacent lots as follows:

To the northeast there is a large, vacant tract of land that has a peninsula that extends into Florida Bay almost as far as the existing dock on this lot. Shallow water extends further into Florida Bay from this peninsula. To the southwest is an existing

L-shaped dock, shorter that Mr. Osheroff's existing dock. I do not recall ever being on this dock, it may not have 4 foot deep water at the terminus.

Finally, the biologist evaluated the items to be considered by Monroe County in granting a variance as follows:

1. The dock meets the requirements of current codes for size needing only the variance for length.

2. It is not possible to build a dock on this lot without the variance, due to insufficient water depth closer to the shoreline, especially due to the presence of the adjacent peninsula with its surrounding shallows.

3. There is no increased or decreased danger to life or property if the variance is granted. The adjacent dock to the southwest is shorter than the proposed Osheroff dock with its addition, but the presence of the peninsula and shallow water would prevent boating too close to this dock. (See aerial photograph with approximate boating navigation line marked.) It might be advisable to require either reflectors or lights on the dock. Since this is not a turtle nesting area, compliance with only the regular shoreline lighting criteria is suggested.

4. There are no important services to the

   community provided by the proposed dock. The use of the dock is residential only.

5. The dock is longer than the other docks in the immediate area, however we don't know if the other docks have adequate water depth. The presence of the peninsula and shallow water forces the Osheroffs to extend offshore.

6. Access to the property by normal emergency vehicles is not changed if the dock is built.

7. There are no increased or decreased costs of providing governmental services if the variance is granted or denied. The tax base in the County would be slightly increased if the dock is built.

In addition to the aerial photograph, the biologist attached to the report a copy of the plans for the dock extension, including the site plan, the site plan detail, the framing plan,

the elevation, and the handrail detail. The elevation portion of the plans shows that the ramp of the dock extension terminates at minus four feet at mean low water; the dock extends another thirty-eight feet to the terminal end of the dock, with the water depth shown at that point as minus four feet, eight inches at mean low water. The plans show that thirty feet of the dock extending beyond the end of the ramp accommodates two boatlifts, one on each side of the walkway, and the final eight feet is the terminal platform. The plans also show two mooring pilings located fifteen feet off the terminal end of the dock.

In a letter to the Osheroffs dated June 22, 1998, Timothy J. McGarry, Director of Planning for Monroe County, and M. Ross Alliston, Director of Environmental Resources for Monroe County, notified them that they had

determined that your application is in compliance with the dock length variance criteria contained in Monroe County Code section 9.5-345(m)(2)(b)(1). This

letter constitutes an approval of your variance application to construct a 110 foot addition to an existing dock that extends approximately 150 feet beyond mean low water, for a total length of 360 feet beyond mean low water.

In accordance with the requirements of Section 9.5-345(m)(2)b.3., Monroe County Code, the owners of property located within 300 feet of the Osheroffs' property were given notice of the right to appeal the decision of Mr. McGarry and Mr. Alliston to the Planning Commission.

The Summerwind Homeowner's Association ("Association"), which has three members, filed an Application for Administrative Appeal to Planning Commission on August 4, 1998. In an attachment to the application, the following items were stated as the bases for the appeal:

1. The Dock Length Variance is in violation of the Monroe County Year 2010 Comprehensive Plan, Policy 212.5.4, paragraphs 1 and 4;

   
   

2. The Dock Length Variance is in violation of the Land Development Regulations of Monroe County, Florida Section 9.5-345(m)(2)(b)(1) and (3);

   
   

3. A dock of the length proposed, designed to accommodate boats of considerable size, is inconsistent with the residential character of the community;

   
   

4. A dock of the length proposed would present a navigational hazard, would threaten the safety of boaters in the area and would interfere with public recreational use of adjacent waters.

Ralph Gouldy, a Senior Environmental Planner employed by Monroe County, prepared a report analyzing the merits of the Association's appeal. He quoted the applicable provisions of the Monroe County Year 2010 Comprehensive Plan and of the Monroe County Code, and he attached and incorporated the report of the county biologist. Based on his evaluation of the application for a variance and the information compiled by the county biologist, Mr. Gouldy recommended that the Planning Commission deny the Association's request that the dock length variance granted to the Osheroffs be rescinded.

A public hearing was conducted by the Planning Commission on November 18, 1999, at which it considered the Association's appeal of the decision of Mr. McGarry and Mr. Alliston to approve the variance requested by the Osheroffs. At the hearing, the Planning Commission heard the sworn testimony of staff members, of both expert and lay witnesses, and of members of the public; it received documents into evidence; and it heard arguments from the representatives of the Association and the Osheroffs.

At the conclusion of the hearing, the Planning Commission denied the Association's appeal by a three-to-two vote, and its action was memorialized in Resolution No. P94-98, which provides in pertinent part:

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 application for an Administrative Appeal filed by the Summerwind Homeowners Association; and

   
   

2. The staff report prepared by Ralph Gouldy, Senior Environmental Planner, dated October 15, 1998; and

   
   

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

   
   

4. The presentation of the appellant's case by their representatives, Mr. James Harum and Mr. Alan Estis; and

   
   

5. The presentation of the property owner's case by his representative, Attorney Andrew M. Tobin; and

   
   

6. The sworn testimony of members of the public; and

7. The comments of Planning Commission Counsel, Garth Coller, 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 staff report and the materials presented, we find that the existing dock is non-conforming with respect to the water depth requirements of the Monroe County Code. Therefore, we conclude that improvements to the dock must include extension of the structure to provide mooring sites with adequate water depth; and

   
   

2. Based on the materials presented, we find that extension of the structure to reach adequate mooring depth will result in a dock that exceeds the 100 foot maximum length allowed by the Interim Dock Standards, which became effective April 15, 1997. Therefore, we conclude that a variance with regard to length is necessary; and

   
   

3. Based on the evidence presented, we find that the variance for the dock extension meets the requirements set forth within the Interim Dock Standards. Therefore, we conclude that the Departments of Planning and Environmental Resources were correct in granting the variance; 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 Administrative Appeal filed by the Summerwind Homeowners Association regarding the granting of a variance to Marc and Robin Osheroff for a dock extension at their property, RE# 0088280.

Resolution No. P94-98 was signed on December 16, 1998.

On or about January 19, 1998, the Association filed an Application for an Appeal to the Hearing Officer pursuant to

Article XIV, Monroe County Code, Section 9.5-535, the Hearing Officer Appellate Article. In its application, the Association appealed the decision of the Planning Commission in Resolution No. P94-98 to deny its appeal of the approval of the variance requested by the Osheroffs. The bases for the Association's appeal of the Planning Commission decision set forth in the application include:

1. The Dock Length Variance granted is in violation of the Monroe County Year 2010 Comprehensive Plan, Policy 212.5.4, paragraphs 1 and 4;

   
   

2. The Dock Length Variance granted is in violation of the Land Development Regulations of Monroe County, Florida Section 9.5- 345(m)(2)(b)(1) and (3);

   
   

3. A dock of the length proposed, designed to accommodate boats of considerable size, is inconsistent with the residential character of the community;

   
   

4. A dock of the length and of the type of construction proposed would present a navigational hazard and would threaten the safety of boaters in the area; and

   
   

5. A dock of the length proposed would interfere with and would severely limit public recreational use of adjacent waters.

In its Initial Brief, the Association stated its points on appeal as follows:

POINT I

IS THE PROPOSED 283.5-FOOT DOCK THE MINIMUM RELAXATION NECESSARY TO PROVIDE THE OWNER REASONABLE ACCESS TO THE WATER FOR RECREATIONAL USE?

POINT II

DID THE COMMISSION TAKE INTO CONSIDERATION THE REQUISITE CRITERIA WHEN GRANTING THE VARIANCE?

POINT III

IN SUM, WAS THE COMMISSION PRESENTED WITH SUFFICIENT, RELIABLE EVIDENCE UPON WHICH TO CONCLUDE A VARIANCE IS WARRANTED.

This case was submitted for decision on the record compiled by the Planning Commission Coordinator in accordance with Section 9.5-537, Monroe County Code; on the arguments presented in the Association's Initial and Reply Briefs; on the arguments presented in the Osheroffs' Answer Brief; and on the arguments presented by counsel for the parties during oral argument on

July 22, 1999.

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 the credibility of witnesses. 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).

As noted above, Section 9.5-345(m)(2)b.3., Monroe County Code, sets forth the criteria that must be considered in order to grant a variance under that section. These criteria are, first, that the structure "not be inconsistent with community character;" second, that the structure "not interfere with public recreational uses in or on adjacent waters; and third, that the structure "pose no navigational or safety hazard." The Planning Commission did not include in Resolution No. P94-98 specific findings of fact with respect to each of these criteria. Rather, it found that, based on the evidence presented, "the variance for the dock extension meets the requirements set forth within the Interim Dock Standards." 1/

The Planning Commission's finding that the proposed dock extension satisfies the relevant criteria and its conclusion that "the Departments of Planning and Environmental Resources were correct in granting the variance" application of the Osheroffs is supported by the analysis and recommendation of Mr. Gouldy that the approval of the variance should not be rescinded and by the testimony of the Monroe County Planning Director, Mr. McGarry.

This finding and conclusion are also supported by the testimony of Glen Boe, the certified Professional Engineer who prepared the plans for the dock extension; the testimony of Robert Smith, a biologist who lives less than a mile from the Osheroffs' property and who is familiar with the bay in the vicinity of the proposed dock extension; the testimony of Tom McCullough, a licensed boat

captain who lives on Florida Bay, less than a mile from the Osheroffs' property, and who is familiar with the bay in the vicinity of the proposed dock extension; and by the documentary evidence received by the Planning Commission.

The Association' argument that the variance approved by Monroe County goes far beyond the "minimum relaxation" of the 100-foot-maximum dock length necessary to provide the Osheroffs

with "reasonable access to adjacent waters for recreational use," as permitted by Section 9.5-345(m)(2)b.3., Monroe County Code, is rejected. Based on the testimony of the witnesses identified above, there is competent substantial evidence in the record of the proceeding before the Planning Commission to support its finding, which is implicit in Resolution No. P94-98, that the variance approved by Monroe County allows the minimum relaxation necessary.

Based on the record developed before the Planning Commission at its November 18, 1998, hearing, the findings of fact included in and implicit in Resolution No. P94-98 are supported by competent substantial evidence. 2/ The proceeding also complied with the essential requirements of law; the members of the Association appeared and presented documentary and testimonial evidence; the Osheroffs appeared through counsel and presented documentary and testimonial evidence; and all members of the public who wished to speak at the hearing were given the opportunity to do so. 3/

DECISION

Based on the foregoing, Monroe County Planning Commission Resolution No. P94-98 is AFFIRMED.

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 petition for writ of certiorari to the circuit court in the appropriate judicial circuit.

DONE AND ORDERED this 19th day of October, 1999, 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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 19th day of October, 1999.

ENDNOTES

1/ 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 each of the criterion stated in Section 9.5-345(m)(2)b.3., Monroe County Code, it is not required to do so.

2/ The Association argues that "the evidence did not support the findings of the Commission's 3-person majority . . . and in fact, substantial evidence was presented to support conclusions to the contrary." (Initial Brief at 9). Even assuming that substantial evidence was presented to support findings of fact different from those included in the Planning Commission's resolution, the Planning Commission's findings of fact may be rejected or modified as a result of this appeal only if they "were not based upon competent substantial evidence." Section 9.5-540(b), Monroe County Code (emphasis added).

3/ In its Initial Brief, the Association described the hearing as a "fiasco of an evidentiary process which is apparent from the transcript and to which Appellants [sic] alluded prior in the brief." The evidentiary difficulties mentioned in Appellant's brief are not sufficiently specific to support this contention, nor was the contention supported by a review of the transcript.

COPIES FURNISHED:

Andrea M. Harum, Esquire Albert E. Harum, Jr., P.A.

Oak Plaza Professional Center, Suite A1A 8525 Southwest 92nd Street

Miami, Florida 33156

Andrew M. Tobin, Esquire MATTSON & TOBIN

88101 Overseas Highway

Islamorada, Florida 33036

Karen Cabanas, Esquire Assistant County Attorney

310 Fleming Street

Key West, Florida 33040

Judith Chambers, Planning Commission Coordinator County of Monroe - Planning Department

2798 Overseas Highway, Suite 410

Marathon, Florida 33050-2227

Docket for Case No: 99-000705

Orders for Case No: 99-000705