STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TROPIC LEISURE RECREATION ) DEVELOPMENT, INC., a Florida )

corporation, )

)

Petitioner, )

)

vs. ) Case No. 99-1224DRI

) ISLAMORADA, VILLAGE OF ISLANDS, )

a political subdivision of the ) State of Florida, )

)

Respondent, )

)

and )

) DEPARTMENT OF COMMUNITY AFFAIRS, )

)

Intervenor. )

)

RECOMMENDED ORDER

The parties stipulated that this matter would be decided on the record of proceedings below at which the Village Council of Islamorada, sitting as the local planning agency, denied Petitioner's request for a waiver from a non-residential building moratorium. At the request of the parties, the following procedure was approved by the undersigned. The parties were given an opportunity to submit briefs, reply briefs, and memoranda in support of their respective positions. Following those submittals, the parties were given an opportunity to make oral argument. Pursuant to notice, oral

argument was held on August 26, 1999, at Miami, Florida, before Claude B. Arrington, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Nicholas W. Mulick, Esquire

Nicholas W. Mulick, P.A. Islamorada Professional Center 81990 Overseas Highway, Suite 201

Islamorada, Florida 33036

For Respondent: Daniel A. Weiss, Esquire

Weiss, Serota, Helfman, Pastoriza and Guedes, P.A.

2665 South Bayshore Drive, Suite 420

Miami, Florida 33133

For Intervenor: David L. Jordan, Esquire

Department of Community Affairs 2555 Shummard Oak Boulevard Tallahassee, Florida 32399-2100

STATEMENT OF THE ISSUES

Whether the Florida Land and Water Adjudicatory Commission (FLWAC) has jurisdiction of the Respondent's decision to deny Petitioner's application for a waiver from a non-residential building moratorium. 1/

Whether Petitioner was denied procedural due process by the manner in which the public hearing to consider Petitioner's application for a waiver from Respondent's non-residential building moratorium was conducted.

Whether the decision of the Village Council of Islamorada, sitting as the local planning agency, to deny Petitioner's

application for a waiver was consistent with the essential requirements of law and supported by competent, substantial evidence.

PRELIMINARY STATEMENT

At the oral argument, Petitioner submitted a compilation of the record of the proceedings below, which it prepared and numbered sequentially. This compilation was admitted into evidence without objection. Included in Petitioner's compilation is a transcript of the formal hearing before the Village Council. Reference to the record below in this Recommended Order is to the record as compiled and numbered by Petitioner.

Petitioner and Respondent made extensive arguments in support of their respective positions. Those arguments may be gleaned by reviewing the written submittals filed by the Petitioner and the Respondent. The Intervenor adopted the arguments of the Respondent, with the exception of Respondent's argument that FLWAC lacks jurisdiction in this matter.

Intervenor did not appear at the oral argument. No transcript of the oral arguments has been filed.

The oral arguments of the Petitioner and the Respondent together with all written submittals filed by the parties have been duly-considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Islamorada, Village of Islands, became incorporated as a Florida municipality on March 26, 1998, pursuant to

   Chapter 97-348, Laws of Florida (the Special Act), and the ensuing referendum approving the Village's charter. Islamorada, Village of Islands, is located in Monroe County, and is an area of critical state concern.

2. Section 4 of the Special Act provides, in pertinent part, as follows:

   The village shall be a body corporate and shall have all the powers of a municipality under the Constitution and laws of the State of Florida, as fully and completely as though such powers were specifically enumerated in this charter, unless otherwise prohibited by or contrary to the provisions of this charter. The village shall have all governmental, corporate, and proprietary powers necessary to enable it to conduct municipal government, perform municipal functions, and render municipal services, and may exercise any power for municipal services unless expressly prohibited by law. The powers of the village shall be liberally construed in favor of the village.

   
   

3. Section 5(1) of the Special Act created a five-person village council. Section 5(6) of the Special Act provides as follows:

   Except as otherwise prescribed herein or provided by law, legislative and police powers of the village shall be vested in the council. The council shall provide for the exercise of its powers and for the

   performance of all duties and obligations imposed on the village by law.

   
   

4. Section 9(6) of the Special Act provided for the transition of comprehensive plan and land development regulations, in pertinent part, as follows:

   1. Until such time as the village adopts a comprehensive plan, the applicable provisions of the Comprehensive Plan of Monroe County, as the same exists on the day the village commences corporate existence, shall remain in effect as the village's comprehensive plan. However, all planning functions, duties, and authority shall thereafter be vested in the Village Council of Islamorada which shall be deemed the local planning agency until and unless the council establishes a separate local planning agency. . . .

   2. All powers and duties of the planning commission, zoning authority, any boards of adjustment, and the County Commission of Monroe County, as set forth in these transitional zoning and land use regulations, shall be vested in the Village Council of Islamorada until such time as the village council delegates all or a portion thereof to another entity. . . .

      
      

5. On June 11, 1998, the Village Council passed and adopted on the second (and final) reading, Ordinance 98-04, entitled: AN ORDINANCE OF ISLAMORADA, VILLAGE OF ISLANDS, FLORIDA, PROVIDING FOR A MORATORIUM ON THE ISSUANCE OF DEVELOPMENT ORDERS AND DEVELOPMENT PERMITS FOR NEW NON- RESIDENTIAL DEVELOPMENT WITHIN THE CORPORATE LIMITS OF THE VILLAGE; PROVIDING FOR SEVERABILITY; AND PROVIDING FOR AN EFFECTIVE DATE. Ordinance 98-04 became effective on July 28,

   1998, when the Florida Department of Community Affairs entered its Final Order approving the ordinance.

6. Ordinance 98-04, provides, in pertinent part, as follows:

   WHEREAS, pursuant to Section 6 of the Special Act authorizing the incorporation of Islamorada, Village of Islands (the "Village"), there is presently in effect within the Village the Comprehensive Plan and Land Development Regulations of Monroe County (the "County Code"), providing for the regulation of development within the Village; and

   WHEREAS, non-residential development is currently regulated pursuant to such County Code provisions; and

   WHEREAS, the Village Council desires to implement comprehensive regulations for non- residential development, so that the public safety is protected and aesthetic and visual qualities of the Village are protected from impairment by non-residential development; and

   WHEREAS, the Village Council desires to insure [sic] that during the pendency of the necessary study activity for the formulation and implementation of more comprehensive regulations of non-residential development, that additional non-residential development is not initiated, constructed, or modified, so that the regulations produced by the Village's study activity will be fully effective.

   WHEREAS, the comprehensive plan adoption and amendment process stimulates an accelerated amount of development permit requests. If approved, such accelerated development will lead to further deterioration of current hurricane evacuation clearance time for the Village.

   This will increase the existing potential for loss of life and injury to persons and property and will cause further

   deterioration in the level of service on existing roadways, and will lead to irreversible environmental degradation.

   WHEREAS, the initiation, construction or modification of additional non- residential developments during the formulation and implementation of more comprehensive regulations of non-residential development will cause immediate harm to the health, safety and welfare of the residents of the Village.

   NOW THEREFORE, BE IT ORDAINED BY THE VILLAGE COUNCIL OF ISLAMORADA, VILLAGE OF ISLANDS, FLORIDA, AS FOLLOWS:

   Section 1. Moratorium Imposed. During the time that this Ordinance is in effect as specified in Section (9) below, there shall be a moratorium upon issuance of Development Orders and Development Permits, as those terms are defined in Chapters 163 and 380, Fla. Stat. (collectively "Development Orders") within the Village, concerning the matter of the initiation, construction, or modification of new non-residential development, including, but not limited to new or existing hotel rooms. . . .

   Section 2. Waivers. The Village Council, after a public hearing, may grant a waiver to the moratorium provided above and authorize (subject to approval by the State Department of Community Affairs) the issuance of Development Orders for non- residential development, where the specific activity will not detrimentally affect the outcome and implementation of the comprehensive study process being undertaken by the Village for the development of appropriate and effective non-residential development regulations.

   Section 3. Vested Rights. 2/ . . .

   Section 4. Appeals. Appeals from final decisions by the Village Council under Sections (2) or (3) of this Ordinance shall be by the filing of a notice of appeal with the Florida Land and Water Adjudicatory Commission pursuant to Section 380.07, Florida Statutes.

   * * *

   
   

   Section 11. Effective Date. This Ordinance shall be effective immediately upon approval by the State Department of Community Affairs pursuant to Chapter 380, Florida Statutes.

   
   

7. The Conclusions of Law portion of the Immediate Final Order issued by the Florida Department of Community Affairs determines that Ordinance 98-04 is a development order and thereafter observes the following:

1. The Department is required to approve or reject land development regulations adopted in Areas of Critical State Concern based upon whether the regulations are consistent with the principles for guiding development for that area. Section 380.05(6), F.S.; Section 380.0552(9), F.S. The Department has reviewed the provisions of Ordinance No. 98- 04 for consistency with the Principles for Guiding Development set forth in Section 380.0552(7), F.S.

   1. Ordinance 98-04 is consistent with Principle (a), "To strengthen local government capabilities for managing land use and development so that local government is able to achieve these objectives without the continuation of the area of critical state concern designation." Temporary building moratoria are commonly used by local governments to allow effective implementation of a new comprehensive plan or new land development regulations.

   2. Ordinance 98-04 is consistent with Principle (f), "To enhance natural scenic resources, promote the aesthetic benefits of the natural environment, and ensure the development is compatible with the unique historic character of the Florida Keys." As the Village stated in the Ordinance, the Village intends to amend its comprehensive

      plan and land development regulations during the pendency of the temporary moratorium to protect the aesthetic and visual qualities of the Village.

   3. Ordinance 98-04 is consistent with Principle (k), "To provide adequate alternatives for the protection of public safety and welfare in the event of a natural or manmade disaster and for a postdisaster [sic] reconstruction plan," and with Principle (l), "To protect the public health, safety, and welfare of the citizens of the Florida Keys and maintain the Florida Keys as a unique Florida resource." As the Village stated in the Ordinance, the Village intends to amend its comprehensive plan and land development regulations during the pendency of the temporary moratorium to avoid further deterioration of the current hurricane evacuation clearance time for the Village. The Village also anticipates that if a temporary moratorium is not enacted, the Village's anticipated comprehensive plan and land development regulation revision will stimulate an accelerated rate of development, causing a further deterioration of the level of service on existing roadways.

   4. Ordinance 98-04 is not inconsistent with the remaining Principles. . . .

      
      

2. On or about July 16, 1998, Petitioner, through its attorney, applied to Respondent for a waiver from the non- residential building moratorium and paid the requisite application fee of $1,500. This application was submitted pursuant to Section 2 of Ordinance 98-04.

3. The property on which Petitioner wants to construct the project consists of 4.4 acres and is located between U.S. Highway One and what is referred to as the Old Road (former U.S.

   Highway One). The property is part of incorporated Islamorada, Village of Islands. The attachment to the application described the project as follows:

   The proposed development consists of demolition or abandonment of existing commercial square footage to be utilized for an athletic clubhouse which will contain restrooms, locker rooms, workout area and a food and beverage service. Additionally, there will be constructed outdoor racquetball

   courts, a small pool, competition pool and slide area.

   The development is more specifically described in the site plan and other documents submitted to the Monroe County Growth Management Department in connection with on [sic] application for building permits, which was pending final review for issuance of building permits when the Village of Islamorada was incorporated. The entire file on that matter is now in the possession of the Village of Islamorada and should be deemed a part of this application.

   
   

4. Prior to the incorporation of Respondent, Petitioner applied to Monroe County for permits to construct the project that is the subject of this proceeding. 3/ Because those permits had not been issued on the date of Respondent's incorporation, Monroe County advised Petitioner that the permitting decision would be deferred to the Respondent. 4/

5. By a document styled "Staff Report" dated October 19, 1998, Sheryl L. Bower, the Respondent's Planning and Zoning Director, advised the Village Council of her analysis of the Petitioner's waiver request.

6. The Staff Report described the proposed development as

   
   

   follows:

   
   

   The applicant has demolished 1620 SF (square feet) of nonresidential floor area and plans on converting 900 SF of existing commercial space to residential space, creating a surplus or 2520 SF of nonresidential floor area. The applicant requests to be permitted to utilize the removed 2520 SF for approval to build an athletic clubhouse which will contain restrooms, locker rooms, workout area and a snack bar and in a separate building with restrooms and changing locker area not to exceed a total of 2517 SF. The applicant also seeks approval to construct four swimming pools, a water slide, a playground, two racquet ball courts and a sewage treatment facility.

   
   

7. The Staff Report correctly noted that the subject property was zoned Suburban Commercial (SC), and that pursuant to Section 9.5-235, Monroe County Code, the type of development proposed by Petitioner is allowed as-of-right in areas zoned SC.

   5/

   
   

8. The Staff Report described the existing conditions of

   
   

   the subject property as follows:

   
   

   Based on the application, the development did consist of a single-family residence, a tennis club consisting of 5 courts, and miscellaneous structures. The applicant received demolition permits from Monroe County and has since demolished 1620 SF of nonresidential floor area. The applicant proposes to remove an additional 900 SF of nonresidential square footage by converting the area under the single family house from commercial square footage to

   residential, for a total of 2520 SF of nonresidential square footage removed.

   
   

9. The Staff Report described the applicant's justification for the waiver as follows:

   According to the applicant's attorney, the request is to exchange existing (since demolished) commercial square footage for new square footage. The proposal will only add a few more trips to US #1. 6/

   In addition, the proposed development is for a use, which is sorely lacking in the community. Even if Key Largo is successful in getting their [sic] pool, no where [sic] in the Keys is there a facility that qualifies under the United States Swimming Rules and Regulations to hold Class A meets.

   
   

10. The Staff Report contained the following analysis of the waiver request:

    A review of the application confirms that the applicant has indeed demolished or is removing adequate nonresidential square footage to accommodate the proposed 2517 SF clubhouse and accessory restrooms.

    While there will be no net increase in the amount of nonresidential square footage located on site; the number and variety of uses on site will result in an increase in intensity. The last use of the site consisted of five tennis courts and a small building of 1200 SF. The proposed development includes four swimming pools, a water slide, a playground, two racquet ball courts and a health club and separate restroom and changing locker area not to exceed 2517 SF. Based on the existing and proposed site plans provided by the applicant the area of land utilized by the proposed development appears to have almost tripled.

    According to the Annual Assessment of Public Facilities Capacity for 1998 prepared

    by Monroe County, Upper Matecumbe Key (the location of Islamorada) is designated an "area of marginally adequate facility capacity (AMAFC). An AMAFC is defined as those areas at the adopted level of service or which are projected to reach inadequate capacity within the next twelve months.

    There are 42 trips available on the Upper Matecumbe segment of US #1 before that facility is designated as inadequate.

    Development may be approved for inadequate facilities provided that the development in combination with all other permitted development will not decrease travel speed by more than five (5) percent below level of service C.

    A review of traffic study and continued correspondence between Paul E. Hager, PE (Professional Engineer) for the applicant and Raj Shanmugam, PE, traffic consultant for Monroe County, indicates that the proposed development will generate an average net increase of 414 daily trips.

    Because this facility has not been open since at least February 1997 (prior to the 1997 traffic count) it can not claim any existing trips.

    The 42 trips available on this segment are inadequate to serve the needs of the proposed development, if a waiver to the moratorium is granted the applicant will be required to provide, prior to the issuance of a building permit, an updated traffic study indicating if adequate reserve capacity is available. If adequate capacity does not exist a permit cannot be issued.

    
    

11. The Staff Report provided the following conclusions and recommendations:

    As a part of the Comprehensive Planning process the Village will be determining the most suitable way to equitably maintain a balance of land uses to serve the needs of current and future residents of the Village of Islamorada. The Village of Islamorada

    has a finite capacity to support nonresidential development, [sic] any development that is approved prior to the preparation of the Village's Comprehensive Plan that increases commercial square footage, intensifies development on site or adds new trips to the roadway system will impact the outcome and implementation of this plan.

    Based on the information provided by the applicant and staff analysis the proposed development will not increase the square footage of existing structures, it will increase the intensity of the use of the site and will add additional trips to an already severely constrained segment of US #1.

    However, because the moratorium is also in place to allow the Village the opportunity to create a balance of land uses to serve the residents. [sic] The Council can consider this proposal based on its ability to provide the residents of the Village with commercial facilities that do not exist at this time. If the Council agrees that the proposed development will further the Village's ability to provide its citizenry with more balanced land use, staff recommends that the following conditions be placed on the approval of the Moratorium Waiver Request, by Tropic Leisure Development, Inc.

    
    

    * * *

    
    

    4. Prior to the issuance of a building permit, the applicant provides the Village with an updated traffic study, based on the proposed uses, indicating if adequate reserve capacity is available. If adequate capacity is not available, a permit will not be issued until that time that [sic] adequate capacity is available or the project is modified to the extent that capacity is available. 7/

12. Pursuant to Section 2 of Ordinance 98-04, the Village Council considered Petitioner's waiver application at a duly- noticed meeting conducted on October 29, 1998. The Village Council had the application file and the Staff Report before it. Petitioner's attorney and Mr. Roberts made presentations to the Council and answered all questions about the project. Ms. Bower presented her Staff Report and answered any questions about the project. Members of the public in favor of the project were permitted to address the Council as were members opposed to the project. Photographs depicting the property and clearing that had occurred thereon were presented. Petitioner's attorney was given the opportunity to respond to any negative comments about the proposed development. No other evidence was presented.

13. On October 29, 1998, the Village Council consisted of the following five persons: Mayor Ron Levy, Vice Mayor Frank R. Kulisky, Councilwoman Kym M. Collins, Councilman George Geisler, and Councilman James V. Mooney. The Village Council was represented by Richard Weiss, Esquire.

14. Immediately before the Village Council's decision about the application, Mr. Weiss advised the Council, in pertinent part, as follows (at page 132 of the record):

    . . . the issue here is whether you believe that this development will be a detriment to developing your comprehensive plan. That's the standard. So that's the

    standard that you should be guided by in your deliberations and your discussions.

    
    

15. The motion to deny the waiver application was made by Vice Mayor Kulisky. 8/ The motion was seconded by Mayor Levy, who gave a lengthy explanation of his position. 9/

16. Councilman Mooney thereafter spoke in favor of the waiver and the proposed development. He expressed that the project was consistent with his view of what should be in any comprehensive plan if the project deleted the water slide and had more landscaping.

17. Councilman Geisler spoke in favor of the waiver, noting that the proposed development is consistent with what he would want in the comprehensive plan.

18. Councilwoman Collins agreed with Mayor Levy's position that the reason for the commercial moratorium was to give the Council time to define how the community would develop.

19. The motion to deny the waiver application was thereafter passed with Mayor Levy, Vice Mayor Kulisky, and Councilwoman Collins voting in favor of the motion to deny and Councilmen Mooney and Geisler voting against the denial.

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction of the parties to and the subject of this proceeding. Section 120.57(1), Florida Statutes.

21. The vote to deny the application for a waiver from the non-residential building moratorium resulted in the denial of Petitioner's application for permits to construct its proposed project. Because of the bote, the denial is properly construed as being a development order within the meaning of Section 380.07, Florida Statutes. As reflected by Ordinance 98-04, Petitioner's recourse is an appeal to FLWAC, which has jurisdiction of this matter.

22. The ultimate burden of persuasion and the burden of going forward with the evidence are on the Petitioner. Young v. Department of Community Affairs, 625 So. 2d 831, 834-35 (Fla. 1993). To prevail, Petitioner would have to establish that it was denied procedural due process, that the correct law was not applied, or that there was no competent, substantial evidence to support the Village Council's decision to deny the waiver application. See Manatee County v. Estech Gen. Chem Corp.,

    402 So. 2d 1251, 1255 (Fla. 2d DCA), review denied, 412 So. 2d

    
    

    468 (Fla. 1982); Haines City Community Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995); and Board of County Commissioners of

    Brevard County v. Snyder, 627 So. 2d 469, 476 (Fla. 1993).

    
    

23. The Petitioner failed to establish that the Village Council denied it procedural due process. Petitioner was accorded a public hearing, as contemplated by Ordinance 98-04, at which Mr. Roberts and his attorney made presentations and the

    Village Council duly considered the permit application file and the Staff Report. Petitioner's argument that permitting unsworn statements from members of the public violated its due process rights is not persuasive. It was within the discretion of the Village Council to permit members of the public to make unsworn statements, both for and against granting the waiver. After the public input, Petitioner's attorney was provided the opportunity to make a final presentation. Thus, it cannot be concluded that the public hearing was a sham.

24. As set forth in the Department of Community Affairs Immediate Final Order approving Ordinance 98-04, the Ordinance serves a valid public purpose and is consistent with the Principles for Guiding Development in Section 380.0552(7), Florida Statutes. The Village Council was justified in relying on its duly-adopted Ordinance 98-04, and it may continue to rely on it until it has been repealed or ruled invalid by a court of competent jurisdiction. 10/

25. Petitioner failed to establish that the Village Council did not base its vote on competent, substantial evidence. From the discussions that followed the motion to deny the waiver, it is clear that the members of the Village Council weighed the merits of the project, as reflected by the application file, the Staff Report, and the presentations made by Mr. Roberts and his attorney, against the reasons the Village

Council adopted Ordinance 98-04. The three members of the Village Council who voted to deny the waiver application did so because they wanted to adopt a comprehensive plan before permitting additional commercial development. Petitioner did not establish that the Village Council had inadequate information before it or that it failed or refused to consider any relevant information.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that FLWAC enter a final order upholding the denial of the application for a waiver from the building moratorium.

DONE AND ENTERED this 13th day of December, 1999, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 13th day of December, 1999.

ENDNOTES

1/ This issue was raised by Respondent. The Intervenor disagrees with Respondent's position on this issue, but adopts all of Respondent's remaining arguments. Respondent asserts that the Florida Land and Water Adjudicatory Commission does not have jurisdiction in this matter because the denial of the application for a waiver of the building moratorium is not a development order. That issue will be dealt with in the Conclusions of Law portion of this Recommended Order.

2/ Petitioner has not asserted that it is entitled to the requested development order pursuant to the Vested Rights provisions of the Ordinance.

3/ During the course of the review process, William Roberts, the owner of the corporate Petitioner, agreed to modifications to the project. Those changes are not dispositive of this matter and will not be discussed in detail.

4/ Carolyn LiCausi, Monroe County Building Coordinator, wrote the following letter to Petitioner on November 4, 1998:

Dear Applicant:

On January 13, 1997, we notified your contractor that the above-referenced application was ready to be permitted. The application included a swimming pool, fence, decking and racquetball courts. To date, we have not heard from you or your contractor.

Since this permit was not issued prior to the Village incorporation effective date of October 1, 1998, please be advised that we have closed this file. Should you wish to pursue this project, it will be necessary for you to submit a new application to the Village of Islamorada. If you have any questions, you may contact the Village offices at 664-22345.

5/ The as-of-right designation does not mean that the proposed development is exempt from the permitting process. The designation does establish that the type development is an authorized use that, absent the moratorium, would ordinarily be permitted if all other criteria were met.

6/ There was a dispute as to the number of new trips that this project would generate on U.S. 1. Whether the project would generate 414 trips, as asserted by the Village Council staff, or

215 trips, as asserted by Petitioner, is not dispositive. There is no dispute that additional trips would be generated in an area that the Staff Report referred to as a "severely constrained segment of U.S. 1."

7/ Mr. Roberts stated at the public hearing that his company would accept the conditions contained in the Staff Report.

8/ See page 133 of the record. From his comments, it is clear that Vice Mayor Kulisky was not in favor of permitting this project before the Village adopted a new comprehensive plan.

9/ This explanation begins at page 133 of the record. The following are excerpts from Mayor Levy's comments at the hearing:

. . . I feel very strongly that the commercial moratorium was put in place to give us the chance to develop our own comprehensive plan. . . .

Not that I am against this project. I feel for all the reasons in [the] commercial moratorium were about giving us a breath to define what we want, not piecemeal by piecemeal and to have the job [sic] to do it. We need data (from engineers regarding traffic capacity).

10/ Petitioner has argued that the Ordinance is vague and, consequently, unconstitutional. The Division of Administrative Hearings does not have the jurisdiction to determine constitutional questions. Only a court of competent jurisdiction may determine whether the Ordinance is unconstitutional.

COPIES FURNISHED:

Nicholas W. Mulick, Esquire Nicholas W. Mulick, P.A. Islamorada Professional Center 81990 Overseas Highway, Suite 201

Islamorada, Florida 33036

Daniel A. Weiss, Esquire Weiss, Serota, Helfman,

Pastoriza & Guedes, P.A.

2665 South Bayshore Drive, Suite 420

Miami, Florida 33133

David L. Jordan, Esquire Department of Community Affairs 2555 Shummard Oak Boulevard Tallahassee, Florida 32399-2100

Lee R. Rohe, Esquire

Department of Community Affairs Marathon Regional Service Center 2796 Overseas Highway, Suite 212

Marathon, Florida 33050

Steven M. Seibert, Secretary Department of Community Affairs

2555 Shummard Oak Boulevard, Suite 100

Tallahassee, Florida 32399-2100

Cari L. Roth, General Counsel Department of Community Affairs

2555 Shummard Oak Boulevard, Suite 315

Tallahassee, Florida 32399-2100

Carol Licko, General Counsel

Florida Land and Water Adjudicatory Commission Office of the Governor

209 The Capitol Tallahassee, Florida 32399

Donna Arduin, Secretary

Florida Land and Water Adjudicatory Commission c/o Barbara Leighty, Clerk

Growth Management and Strategic Planning 2105 The Capitol

Tallahassee, Florida 32399-0001

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 99-001224DRI

Orders for Case No: 99-001224DRI