STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THOMAS LESICK and DAGMAR LESICK,

Appellants,

vs.

MONROE COUNTY,

Appellee.

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) Case No. 01-3582

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FINAL ORDER

This is an appeal from Monroe County Planning Commission Resolution No. P32-01, which upheld by a 2-2 vote, the decision of K. Marlene Conaway, Director of Planning and Environmental Resources for the County, to deny the request of Appellants, Thomas and Dagmar Lesick, for a determination that they have density build-back rights under Section 9.5-268 of the County's Land Development Regulations (LDRs).

APPEARANCES

For Appellants: Wayne LaRue Smith, Esquire

The Smith Law Firm

330 Whitehead Street Suite 201

Key West, Florida 33050

For Appellee: Karen K. Cabanas, Esquire

Morgan & Hendrick

317 Whitehead Street

Key West, Florida 33040

STATEMENT OF THE ISSUE

Under Section 9.5-540(b) of the LDRs, the issue on this appeal is whether the Planning Commission's decision should be affirmed, reversed, or modified.

PRELIMINARY STATEMENT

Under Section 9.5-536 of the LDRs, jurisdiction was invoked by filing of an Application for an Appeal to the Hearing Officer with the Planning Commission on August 8, 2001. (Under Section 120.65(7), Florida Statutes (2001), Administrative Law Judges (ALJs) of the Division of Administrative Hearings (DOAH) serve as hearing officers for the County by contract.) The appeal was forwarded to DOAH for assignment of an ALJ on September 4, 2001. The indexed record-on-appeal was filed on September 10, 2001.

Appellants' Initial Brief was filed on September 28, 2001. The County's Answer Brief was filed on October 19, 2001. After granting of a motion for extension of time, Appellants' Reply Brief was filed on November 19, 2001. Counsel for the parties appeared in Key West on December 18, 2001, to present oral argument by televideo conference. All written and oral arguments have been considered, along with the entire record-on- appeal.

FINDINGS OF FACT

1. The Planning Commission's Resolution No. P32-01 lists the following findings of fact in support of its decision, while noting that the Lesicks' request was denied by a vote of 2-2:

   1. [T]he Lesicks have a single-family structure, on 5.24 acres on Money Key, in the Offshore Island Land Use District.

      . . . .

      
      

   2. [I]t is the intent of the LDRs and the 2010 Plan that nonconforming uses should not be rebuilt if destroyed.

      
      

   3. Based on the Monroe County Code and the Monroe County 2010 Plan, we find that the "grandfather clauses" in Section 9.5-268 and Policy 101.3.23 are intended to protect existing residents of the County by permitting the replacement of their homes if destroyed and that Money Key currently is not being used as a principal residence.

      
      

   4. [T]he structure on Money Key is currently being used for vacation rentals and therefore does not qualify for the exemption in Section 9.5-268 of the [LDRs], even though the property had both a homestead exemption and a public lodging license in 1996.

      
      

   5. Therefore, we conclude that approval of the applicant's request would violate the intent of the Monroe County 2010 Comprehensive Plan and the [LDRs].

      
      

      Other "findings of fact" listed in Resolution No. P32-01 clearly were conclusions of law.

2. To the extent that they are findings of fact, statements as to the intent of the County's Plan and LDRs are

   not supported by competent substantial evidence. They are contrary to the unambiguous language of the County's Plan and LDRs, as indicated in the Conclusions of Law, infra.

3. Otherwise, the findings of fact are supported by competent substantial evidence. The evidence was that the Lesicks occupied the structure on Money Key from on April 19, 1994, and claimed a homestead exemption beginning in 1995. They applied for a Florida Public Lodging License on May 19, 1995, and the structure was registered with an opening date of May 25, 1995. Until renting the structure in March 1996, they continued to occupy it (including on January 4, 1996, a critical date under the Plan and the LDRs). After renting it in March 1996, they ceased occupying it; however, they continued to claim homestead exemption on the property through 1998.

   CONCLUSIONS OF LAW

   
   

4. Section 9.5-535 of the County's LDRs provides: "Hearing officers shall review by appeal planning commission action when authorized by the Monroe County [LDRs] or chapter 19, Monroe County Code." Section 9.5-521(a) of the LDRs provides for appeals to the planning commission "from any decision, determination or interpretation made by any administrative official with respect to [chapter 9.5 of the LDRs]," except for administrative actions regarding floodplain management; Section 9.5-521(f) provides for Section 9.5-535

   appeals to a hearing officer from decisions of the planning commission. Under those provisions, there is jurisdiction over this appeal.

5. Under Section 9.5-262 of the LDRs, density in the Offshore Island District is restricted to 0.1 units per acre. Since Money Key is only 5.24 acres, the structure on it is nonconforming as to density. This section is found in Article VII, Land Use Districts; Division 3, Land Use Intensities.

6. Section 9.5-268 of the LDRs (also in Article VII, Division 3) provides:

   Notwithstanding the provisions of sections 9.5-262 and 9.5-263 [the latter of which is not applicable here], the owners of land upon which a dwelling unit or a mobile home used as a principal residence prior to the effective date of the plan was lawful on the effective date of this chapter shall be entitled to a density allocation of one (1) dwelling unit for each such unit in existence on the effective date of this chapter.

   
   

7. The terms "effective date of the plan" and "effective date of this chapter" are not clear because both the County's comprehensive plan and its LDRs have been amended several times, but the parties agree that, for purposes of the Lesicks' request, the terms should be considered synonymous, and both refer to January 4, 1996. With this understanding, the rest of the language of Section 9.5-268 is clear and unambiguous. As owners of Money Key, where there was a dwelling unit used as a

   principal residence prior to January 4, 1996, which was lawful on that date, the Lesicks are entitled to a density allocation of one (1) dwelling unit. See Southeastern Utilities Service Co. v. Redding, 131 So. 2d 1,2 (Fla. 1957)(administrative interpretation contrary to the "plain and unequivocal language" of a statute is reversible as being "clearly erroneous"); Eager

   v. Florida Keys Aqueduct Authority, 580 So. 2d 771, 772 (Fla. 3d DCA 1991)(language neither ambiguous nor convoluted should be applied as written, not interpreted to mean something else).

8. The County argues that provisions of its comprehensive plan and other LDRs create ambiguity by revealing an intent to disallow residential density under the Lesicks' facts. See Pinecrest Lakes, Inc. v. Shidel, 795 So. 2d 191 (Fla. 4th DCA 2001)(development order must be consistent with comprehensive plan). But no such ambiguity arises from the provisions cited by the County.

9. Under the County's 2010 Comprehensive Plan, the Offshore Island District is in the Future Land Use category called Residential Conservation. Policy 101.4.1 of the 2010 Plan states:

   The principal purpose of the Residential Conservation land use category is to encourage preservation of open space and natural resources while providing for very low-density residential development in areas characterized by a predominance of undisturbed native vegetation. In

   addition, Monroe County shall adopt [LDRs] which allow any other nonresidential use that was listed as a permitted use in the [LDRs] that were [sic] in effect immediately prior to the institution of the 2010 Comprehensive Plan (pre-2010 LDR's), and that lawfully existed on such lands on January 4, 1996 to develop, redevelop, reestablish and/or substantially improve provided that the use is limited in intensity, floor area, density and to the type of use that existed on January 4, 1996 or limit to what the pre-2010 LDR's allowed, whichever is more restricted. Maximum permitted densities shall be based upon the results of the habitat analysis required by Division 8 of the Monroe County [LDRs], as amended.

   
   

   There is nothing in Policy 101.4.1 that would extinguish the Lesicks' entitlement to rebuild one dwelling unit on Money Key.

10. The County's 2010 Plan also includes an Objective 101.8, which states:

    Monroe County shall eliminate or reduce the frequency of uses which are inconsistent with the applicable provisions of the land development regulations and the Future Land Use Map, and structure which are inconsistent with applicable codes and [LDRs].

    
    

    Conversely, this objective would allow uses which are consistent

    
    

    with the applicable provisions of the land development regulations and the Future Land Use Map. Allowing the Lesicks to rebuild one dwelling unit on Money Key is consistent with Section 9.5-268.

11. Policy 101.8.4 states:

    
    

    With the exception of non-conforming uses located in the Mixed Use/Commercial Fishing Future Land Use category, if a structure in which a non-conforming use is located is damaged or destroyed so as to require substantial improvement, then the structure may be repaired or restored only for uses which conform to the provisions of the Future Land Use category and zoning district in which it is located.

    
    

    Again, allowing the Lesicks to rebuild one dwelling unit on Money Key conforms to the provisions of the Future Land Use category and zoning district, including Section 9.5-268.

12. It also is noted that Pinecrest involved an action brought under Section 163.3215, Florida Statutes, to enjoin a local government from taking action on a development order "that is not consistent with the comprehensive plan . . . ." It was not an action brought under Section 163.3213, Florida Statutes, for administrative review of LDRs to ensure their consistency with the comprehensive plan. Pinecrest does not determine the result in an action under Section 163.3215 where local government action on a development order is consistent with LDRs which arguably are inconsistent with the comprehensive plan.

13. Section 9.5-141 of the LDRs states:

    
    

    The purpose of this article is to regulate and limit the continued existence of uses and structures established prior to the enactment of this chapter that do not conform to the provisions of this chapter. Many nonconformities may continue, but the

    provisions of this article are designed to curtail substantial investment in nonconformities and to bring about their

    
    

    eventual elimination in order to preserve the integrity of this chapter.

    
    

    This is a statement of purpose for Article V, Nonconformities.

    
    

14. Section 9.5-143(f)(2) of the LDRs (also in Article V, Nonconformities) states:

    Damage or Destruction: Except as provided in section 9.5-63 if a structure in which a nonconforming use is located is damaged or destroyed so as to require substantial improvement, then the structure may be repaired or restored only for uses which conform to the provisions of the land use district in which it is located.

    
    

    It is not clear that this provision applies to density, as well as uses. But even if it does apply to density, allowing the Lesicks to rebuild one dwelling unit on Money Key conforms to the provisions of the land use district, including Section 9.5- 268.

15. The County argued in its Answer Brief that the Lesicks have no build-backs rights because, under Section 9.5-241(6), vacation rental use is nonconforming in Offshore Island zoning district unless the use was "established (and held valid state public lodging establishment licenses) prior to January 1, 1996." But in oral argument, the County seemed to concede that the Lesicks' vacation rental use was established on May 25, 1995. Even if the Lesicks' vacation rental use were

nonconforming under Section 9.5-241(6), this would not prohibit build-back of the dwelling unit. It might prohibit use of a rebuilt dwelling unit for vacation rental, but it would not prohibit other permissible uses in Offshore Island District, such as use as a primary residence.

DISPOSITION

Based on the foregoing Findings of Fact and Conclusions of Law, the appeal is granted, and the decision of the County Planning Commission is reversed.

DONE AND ORDERED this 22nd day of January, 2002, in Tallahassee, Leon County, Florida.

J. LAWRENCE JOHNSTON 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 22nd day of January, 2002.

COPIES FURNISHED:

Karen K. Cabanas, Esquire Morgan & Hendrick

317 Whitehead Street

Key West, Florida 33040

Wayne LaRue Smith, Esquire The Smith Law Firm

330 Whitehead Street Suite 201

Key West, Florida 33050

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

2798 Overseas Highway

Suite 410

Marathon, Florida 33050-2227

Docket for Case No: 01-003582

Orders for Case No: 01-003582