STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
GREG STERYOU and ALICE STERYOU, )
)
Appellants, )
)
vs. )
)
MONROE COUNTY PLANNING )
COMMISSION, )
)
Appellee. )
Case No. 02-1578
)
FINAL ORDER
Appellants, Greg and Alice Steryou (Appellants or Steryous), seek review of Monroe County Planning Commission (Commission) Resolution No. P 04-02, denying their application for an amendment to a minor conditional use to construct a 3,658 square foot restaurant to replace a restaurant (Knuckleheads) destroyed in 1998 by Hurricane Georges. Resolution No. P 04-02 is dated March 13, 2002, and this appeal was timely filed. The Division of Administrative Hearings, by contract, and pursuant to
Article XIV, Section 9.5-535, Monroe County Code (M.C.C.), has jurisdiction to consider this appeal.
I.
The Steryous raise several issues on appeal: (1) whether there is competent substantial evidence to support the Commission's Findings of Fact related to the Commission's denial
of the requested amendment to a minor conditional use;
(2) whether the Commission violated the Steryous' due process rights when the Commission considered and decided the Steryous' two applications (parking variance and amendment to a minor conditional use) on different dates; (3) whether the Commission is equitably estopped from denying the amendment to a minor conditional use, after granting the parking variance; and,
(4) whether the Commission has departed from the essential requirements of law by causing a de facto revocation of the parking variance when it denied the amendment to a minor conditional use.
The Steryous filed an Initial Brief and a Reply Brief and the Commission filed an Answer Brief. Oral argument was held on August 19, 2002, and supplemented on August 26, 2002.
II.
The Steryous own Lots 1 and 2 located on 3100 Overseas Highway, in Saddlebunch Keys, Monroe County, Florida. The total area of the two lots is 18,259 square feet, or approximately 0.42 acres. The Steryous purchased these lots in 1996. The lots are vacant because the original restaurant built in 1956, was destroyed by Hurricane Georges in 1998, and demolished and removed in 2000, after Monroe County determined that the restaurant could be rebuilt.
It is not disputed that the Steryous may build a restaurant on the lots as a minor conditional use. However, the size and nature of the proposed restaurant are at issue in this proceeding.
The former restaurant offered indoor seating (3,063 square feet, see Planning Commission Resolution No. P 04-02, paragraph 6), and outdoor seating. The proposed restaurant is considered to be a "quality restaurant," different from, and, as found by the Commission, "not consistent with the [former] neighborhood restaurant . . . and the community character of the immediate vicinity." Id.
The Steryous propose to construct a 3,658 square foot, enclosed seating area restaurant on the two lots. They wish to serve liquor, in addition to beer and wine, formerly served. In order to satisfy state liquor law, the new restaurant must have
150 seats under roof.
In order to accommodate the planned design of the restaurant on the two lots, the Steryous need a variance from the required number of off-street parking spaces (reduced from 55 to 34) and approval of an amendment to a minor conditional use, which includes a request for a waiver of the yard setback requirements. The Steryous filed two separate, but related, applications with the Monroe County Planning Department.
The Commission approved the application for a parking variance during the January 2002 meeting. However, the Commission denied the application for an amendment to a minor conditional use during the February 2002 meeting, which is the subject of this appeal.
III.
The Steryous' lots are located in the Sub Urban Commercial (SC) land use district and the Future Land Use Map (FLUM) designation is Mixed Use/Commercial (MC).1
The Steryous' lots are bordered to the south by an unnamed right-of-way that terminates on a body of water, i.e., Sugarloaf Bay, which is adjacent to and west of these lots. Two vacant lots are located directly south of the right-of-way and share the same land use designation and are located in the same land use district.
There are 12 lots directly east of the Steryous' lots, and adjacent to West Circle Drive, and another eights lots to the south of these lots which also have the same land use designation and are located in the same land use district. (Two vacant commercial parcels are located directly east of the Steryous' lots, and beyond that is Bay Point Pizza and Baby's Coffee.) Bay Point Public Park is located directly south of these 20 lots.
The entrance to a trailer park and single family homes is a block south of the Steryous' lots.
U.S. Highway 1 is to the north of the Steryous' lots. There is undeveloped land (Saddlebunch Keys) to the north and northeast of U.S. Highway 1.
Article VII, Section 9.5-269, M.C.C., provides that the maximum square footage for a medium-intensity commercial retail use is 4,565 square feet (18,259 x 0.25). The maximum floor area ratio for a medium-intensity commercial retail proposed use in a Sub Urban Commercial District is 0.25. Id. (Low intensity is
0.35 and high intensity is 0.15. Id.) The floor area ratio in this case is 0.20 (3,658 / 18,259), below the maximum floor area ratio.2
IV.
While not the subject of this appeal, although interrelated, on October 25, 2001, the Steryous filed an application with the Monroe County Planning Department, requesting a variance from the "off-street parking" requirements of Article VII, Section 9.5- 351(c), M.C.C., which requires that a sit-down restaurant maintain 15.0 off-street parking places per 1,000 gfa. (A 3,658 square foot sit-down restaurant requires approximately 55 off- street parking spaces.) In this application, the Steryous requested a variance for 21 spaces from the 55 spaces required by Section 9.5-351(c). (A drive-in/fast food restaurant requires
17.5 parking spaces per 1,000 gfa. Id.)
The Commission has the authority to grant or deny a variance pursuant to Article XII, Section 9.5-523, M.C.C., which requires consideration of whether five specific conditions are met by the applicant, including whether there is a showing of good and sufficient cause; whether the failure to grant the variance would result in exceptional hardship to the applicant; whether the granting of the variance will result in additional threats to public expense which would not otherwise occur, create a nuisance, or cause fraud or victimization of the public; whether unique or peculiar circumstances or conditions apply to the property, but which do not apply to other properties in the same land use district; and whether the granting of the variance would confer upon the applicant any special privilege denied by these regulations to other properties in the same land use district.
In their application, the Steryous provided information regarding each of these conditions.
Additionally, the Commission, in determining whether these conditions for a variance are met, is required to consider several other factors including, but not limited to, the physical characteristics of the proposed construction for which a variance is requested; whether it is possible to use the property without the variance; and the compatibility of the proposed variance in light of existing and permanent development in the immediate area. Id.
Among other things, this application includes an aerial photograph of the area, a copy of the relevant portions of Monroe County's land use map, an amended plat of the area, photographs, a survey, a proposed site plan, and a response to each criteria.
As will be discussed in more detail below, during a regular meeting held on January 9, 2002, the Commission conducted a public hearing to consider the application for a parking variance and the application for an amendment to a minor conditional use. After hearing evidence, including a staff Memorandum (Memorandum
of December 21, 2001, which analyzes the parking variance request and the application for an amendment to a minor conditional use, the Commission approved the parking variance request by a vote of three to two, with Commissioners P. Morgan Hill, Jerry Coleman, and Alicia Putney voting in the affirmative, and Chair David C. Ritz and Vice-Chair Denise Werling voting in the negative. The Commission's decision was reduced to writing and issued as Planning Commission Resolution No. P 03-02, and signed by the Commission Chair on March 13, 2002. The Commission continued consideration of the application for an amendment to a minor conditional use until the February 2002 meeting. (The parties agreed to supplement the Record on Appeal with a copy of the parking variance application and Resolution No. P 03-02.)
In support of its decision to approve the parking variance, the Commission made the following Findings of Fact and Conclusions of Law:
Based on the Site Plan submitted by the applicant, we find that Hurricane Georges destroyed the restaurant that previously existed and the applicant's proposed development is to be brought into compliance with Monroe County Code to the greatest extent practicable. Therefore, we conclude that the applicant has shown good and sufficient cause.
Based on the application submitted, we find that granting this variance would cause no fraud, victimization of the public, threats to the public expense, or public nuisance.
Based on the application submitted, the site in question is unique in orientation with one side fronting the water. Therefore, we find that there are particular conditions which apply to the property and not to others in the district.
Based on the application submitted, we find the granting of this variance would bring the proposed restaurant into compliance with the code, and to approve this variance would not grant a special privilege to this development. . . .
V.
In November of 2001, the Steryous filed an application for an amendment to a minor conditional use. As in the case of the first application, the Steryous requested permission to construct a 3,658 square foot restaurant on the two lots and noted that site improvements included construction of 34 parking spaces,
landscaping, including buffer, planting and parking lot landscaping, stormwater management provisions, and a sewage treatment facility.
The Steryous also requested waivers to the minimum yard setback requirements. The front yard setback in the Sub Urban Commercial District shall not be less than 25 feet. Combined side yard setbacks must be a total of 15 feet, with one side yard of ten feet where there are two side yards. The rear yard setback shall be a minimum of ten feet. See Article VII, Section 9.5-281, M.C.C. See also Article III, Section 9.5-66, M.C.C. for the authority to waive minimum yard setback requirements.
The first requested waiver was to permit a front yard setback (off U.S. Highway 1) of ten feet to accommodate eight parking spaces (including two handicapped spaces), and another waiver to permit a rear yard setback of five feet from the required ten feet to accommodate an additional 11 parking spaces. The rear yard setback waiver is also necessary to allow a 10' by 23' loading area. (For the size of the proposed restaurant, Section 9.5-352 requires one 10' by 25' loading and unloading space.)
Without approval of the requested setback waivers, the Steryous would only be able to provide 15 parking spaces. See
Resolution No. P 04-02, paragraph 5.
The Commission has the authority to approve applications for conditional use permits. Article III, Section 9.5-62, M.C.C. In part, "the planning commission is empowered, within its review of conditional use applications, to modify or to deny any application which may not be appropriate within any particular planning area in the context of surrounding properties and neighborhoods as well as on grounds of insufficient submittals for adequate review or contrary to objectives and goals of the comprehensive plan." Article III, Section 9.5-63(c), M.C.C. In particular,
When considering applications for a conditional use permit, the director of planning and the planning commission shall consider the extent to which":
The conditional use is consistent with the purposes, goals, objectives and standards of the plan and this chapter;
The conditional use is consistent with the community character of the immediate vicinity of the parcel proposed for development;[3]
The design of the proposed development minimizes adverse effects, including visual impacts, or [sic] the proposed use on adjacent properties;
The proposed use will have an adverse effect on the value of surrounding properties. . . .
Article III, Section 9.5-65(a)-(d), M.C.C. (emphasis in original). An annotation appears in the Monroe County Code to
Section 9.5-65, which indicates that subsection (d) was changed from "adjacent property" to "surrounding properties."
Further,
[t]he director of planning or the planning commission may approve a conditional use permit that modifies or waives the minimum yard requirements set out in section 9.5-281 of this chapter provided that the director or commission expressly finds that the modification or waiver will enhance the ability of the proposed conditional use to meet the general standards set out in section 9.5-65 for all conditional uses.
Article III, Section 9.5-66, M.C.C. (emphasis added.) Additionally,
[t]he director of planning or the planning commission may attach such conditions to a conditional use permit as are necessary to carry out the purposes of the plan and to prevent or minimize adverse effects upon other property in the neighborhood, including but not limited to, limitations on size, bulk and location; requirements for landscaping, lighting and provision of adequate ingress and egress and off-site but project-related improvements; duration of the permit; hours of operation; and mitigation of environmental
impacts. . . .
Article III, Section 9.5-67, M.C.C.
Subject to satisfying applicable Monroe County Code Standards, the Monroe County Code permits commercial retail medium-intensity uses or minor conditional uses in the Sub Urban Commercial District (SC). See, e.g., Article VII, Sections 9.5- 4(C-14) and 9.5-235(b)(1)a., M.C.C.
The purpose of the Sub Urban Commercial land use district is "to establish areas for commercial uses designed and intended primarily to serve the needs of the immediate planning area in which they are located. This district should be established at locations convenient and accessible to residential areas without use of U.S. 1." Article VII, Section 9.5-206, M.C.C.
As noted above, the total area of the Steryous' lots is 18,259 square feet. Article VII, Section 9.5-269, M.C.C., provides that the maximum square footage for a medium-intensity commercial retail use is 4,565 square feet. (Here, the Steryous propose a 3,658 square foot sit-down restaurant.) The maximum floor area ratio for a medium-intensity commercial retail proposed use in a Sub Urban Commercial District is 0.25. Id.
The proposed floor area ratio in this case is 0.20, below the maximum floor area ratio. See page 5, and footnote 2, supra.
It is undisputed that the front yard for the lots borders on
U.S. Highway 1 and includes a setback of 25 feet. The Steryous are requesting a variance of 15 feet in part to accommodate eight parking spaces. This leaves a ten-foot front yard setback. The west side setback, which faces the Bay, is 20 feet and no setback waiver is requested. The rear yard setback is ten feet and the Steryous are requesting a waiver of five feet, which would leave a rear yard setback of five feet. The combined side yard
setbacks must be a total of 15 feet. The proposed setback for the side yard, which borders West Circle Drive, is planned to be three feet (accommodating 11 parking spaces), with a combined side yard setback of 23 feet, when combined with the 20 feet which abuts the Bay. See Resolution No. P 04-02, paragraphs 2 and 5 (yard setback waivers needed to develop 19 of the 34 parking spaces required by the parking variance).
On December 21, 2001, Robert Will, Planner, and Dianna Stevenson, Biologist, prepared Memorandum I to the Commission which analyzes the merits of the two applications, i.e., parking variance and amendment to a minor conditional use. The authors will be referred to collectively as staff.
Staff noted that "[t]he community character of the immediate vicinity is low density commercial to the northeast along U.S. 1 and a trailer park and single family residential to the southeast. Also located in the southeast is Bay Point Public Park. Directly behind the site are two vacant lots, and directly to the west of the site is Sugarloaf Bay." Staff indicated that "[t]he proposed Knuckleheads is to replace the 3,063 square foot structure [enclosed seating area] and 1,860 square feet of outdoor seating which previously existed on the site." Memorandum I at page 3 of 11. Compare with Resolution No. P 04- 02, paragraph 6, finding that the prior restaurant had 3,063 square feet of enclosed seating area.
Staff recommended that the applications were in compliance with several provisions of the Monroe County Code and not in compliance with others. In particular, staff determined that the applications were not in compliance without the setback waivers for the minimum yard requirements pursuant to Section 9.5-281.
In support, staff stated:
The front yard setback in the SC district shall be not less than 25 feet, combined side yard setbacks must be a total of 15 feet, and the rear yard setback shall be 10 feet. The proposed development provides a front yard set back of 10 feet, combined side yard setbacks of 23 feet, and a rear yard setback of 5 feet. The applicant wishes to request a setback waiver from the Planning Director pursuant to Section 9.5-66. The requested waiver would allow the applicant to provide an additional 8 parking spaces in the front yard (including two handicapped spaces) and an additional 11 parking spaces in the rear. The rear yard setback waiver is also necessary to allow the 10' by 23' foot loading area required by Section 9.5-352.
The Director of Planning and Environmental Resources will approve the setback waiver with an increase of landscaping to mitigate any impacts on the community character.
Without the setback waiver the applicant will only be able to provide 15 parking spaces.
Memorandum I, page 4 of 11. Staff also found that the applications were not in compliance with the off-street parking requirements of Section 9.5-351, and stated:
The size of the required parking spaces must be a minimum of 8 feet, 6 inches in width and a minimum of 18 feet in length. The required number of off-street parking spaces must be
15.0 per 1,000 gross floor area of the
structure. The sit down, quality restaurant that the applicant proposes to build will be 3,658 square feet in size, requiring by code to have 55 parking spaces. The proposed site plan indicates 34 parking spaces, including the required two handicapped accessible spaces. All of the proposed spaces are of the correct size, but 8 spaces are located partially within the front yard setback and
11 are within the rear yard setback. A setback waiver has been requested and is addressed in the analysis of Section 9.5-281. Without the setback waiver from the Director of Planning, only 15 spaces will be provided. A variance for the remaining 21 parking spaces has been requested and will be heard by the Planning Commission on their January 9, 2002 regular meeting. The Overseas Heritage Bike Trail runs in front of the site and the restaurant will provide a bike rack as illustrated on the site plan.
Memorandum I, page 6 of 11.
Staff also stated that the applications are not in compliance with the number and size of loading spaces, parking lot landscaping, street trees, scenic corridor and buffer yards.
Id.
Staff stated that the applications are in compliance with
the traffic study required by Section 9.5-426, pending submission of additional materials requested by the traffic consultant and staff noted:
If a project is expected to generate between
250 and 500 trips per day, a traffic report is to be submitted for approval. A Level III traffic report prepared by T.A.P., Inc. was submitted in October 2000 and a revised traffic report was submitted in August 2001. Both reports were sent to the Monroe County traffic consultant for analysis and approval.
In the initial review of the traffic report there was a discrepancy in the floor area of the proposed restaurant. The traffic consultant also requested further information for his analysis including a site plan showing vehicle maneuverability and site triangles, an illustration of adjacent driveways within 700 feet of the project, extension of trip length to include Big Pine Key, and the reserve capacities of all affected segments of the road. T.A.P. Inc. has responded to these issues in a letter dated November 2, 2001. In a response letter to T.A.P. Inc. dated November 14, 2001 the traffic consultant recommended approval of the traffic report on the condition that a site plan indicating delivery vehicle and garbage truck maneuverability be provided and the trip distribution table be updated with the revised trip generation and trip lengths.
Memorandum I, page 7 of 11.
Furthermore, staff determined that the applications were consistent with the requirements of Section 9.5-65(b), in that the minimum conditional use is consistent with the character of the immediate vicinity of the parcel proposed for the development in accordance with the following analysis: "The site of the proposed development fronts on U.S. 1 and is bounded by Sugarloaf Bay on the southwestern side. A block behind the site is the entrance to two large residential neighborhoods and Bay Point Park. The proposed medium-intensity commercial use is consistent with the community character of the area." Id. at page 8 of 11.
However, staff determined that the applications were not consistent with Section 9.5-65(c), in that the design would not
minimize adverse effects, including visual impacts, of the proposed use on adjacent properties and staff noted as follows:
The site is too small to accommodate the size of the proposed restaurant given the parking requirement. While the size of the restaurant is within the required FAR of 0.25, the site will not support the corresponding parking requirement for the size and intensity of the structure. The applicant provides 34 of the 55 required parking spaces and requests a variance for the remaining 21 spaces. Of the 34 parking spaces provided, 19 of them are partially within the rear and front yard setbacks and require a waiver from the Planning Director to be permitted. If the waiver is not granted, only 15 parking spaces will be available on site. The restaurant is proposed to have 150 seats in order to receive a license to sell liquor on the premises. Assuming that ninety percent of the patrons arrive by car, 4.1 persons must ride in each vehicle to fill 150 seats. If the required 55 spaces were provided only 2.5 persons would need to arrive per vehicle. It is assumed that the remaining ten-percent of patrons would either ride a bicycle or walk to the establishment. The above calculations do not factor in the parking that is required for the staffing of a restaurant seating 150. Additional materials have been requested by the traffic consultant including a diagram of how delivery and trash vehicles could maneuver on the site, creating an additional site design concern. Based on the lack of available parking and the concern of larger vehicle maneuverability, the design of the site will result in adverse effects on the adjacent properties due to patrons parking on the street, bike path, or in adjoining neighborhoods.
Id. at page 8 of 11. Staff also stated that "[t]he proposed project may have an adverse effect on adjoining property values
because of the parking overflow that may occur if the restaurant is full. However, the site [the former restaurant] has previously had a more intense commercial use with significantly less landscaping." Id. at page 8 of 11. See Article III, Section 9.5-65(d), M.C.C.
The staff recommended denial for the following reasons:
The project is not in compliance with the off-street parking requirements of section 9.5-351. The 34 provided spaces are not adequate to accommodate the proposed use of a sit-down restaurant, which requires 55 parking spaces.
The design of the project places an unnecessary burden on the surrounding properties because of the lack of parking available on-site and the maneuverability of delivery and trash vehicles.
VI.
Commission Meetings
January 9, 2002, Meeting
On January 9, 2002, the Commission met. See pages 5-8, supra. According to the transcript of the meeting, it appears that the applications were referenced as agenda items 6 (parking variance) and 7 (amendment to a minor conditional use).
Ms. Marlene Conaway, the Planning Director, in response to a question from Chair Ritz, indicated that it was fine with her for the Commission to consider both items together "because there is one staff report that needs to talk about the whole thing and--."
Mr. Will discussed the staff Memorandum I with the Commission. Mr. Will initially discussed the parking variance application and among other things, advised that "to approve this variance would be to grant a special privilege not shared by other properties."
Mr. Will also discussed the merits of the second application for the minor conditional use and reiterated the position taken by staff in the December 21, 2001, Memorandum. In particular, Mr. Will noted:
* * *
Staff is concerned that with only 34 parking spaces, 19 of which are partially within the rear and front-yard setbacks which require a waiver from the planning director, with a restaurant proposed to have 150 seats in order to receive the appropriate alcohol license, then with the 34 spaces that are there, and assuming that 94, 90 percent of the patrons arrive by car, about four people per car could be accommodated and they wouldn't have adequate parking. And that doesn't include staff for the restaurant.
So based on lack of available parking, and also concern of larger vehicle maneuverability, the design of the site would result in adverse effects on adjacent properties due to patrons parking on the street, on the bike path, or in the adjoining neighborhood.
* * *
The Steryous were represented by Mr. Donald L. Craig, A.I.C.P.
Mr. Craig advised, in part, that the proposed restaurant would be approximately 3,650 square feet "the absolute minimum that [their] architect could come up with to meet the requirements of obtaining a liquor license. It requires 150 seats under roof, according to state law."
Mr. Craig indicated that the Steryous had prepared and obtained responses (637 signatures) to petitions (prepared by the Steryous) from neighbors and others requesting their input as to whether they would support a restaurant in its new location with a variance of 21 parking spaces and approval of a minor conditional use. The record contains these petitions and letters of support.
According to Mr. Craig, 59 percent of those who were polled on Bay Point (south of the Steryous' lots) said that they would continue to, in the future, come to the restaurant by either foot or bicycle, or by car pool. The record also contains letters of support for the applications from residents of the area. There is no opposition from any person who submitted a letter, or signed a petition, or who testified during the January 9, 2002, Commission meeting. Several local residents testified in favor of the applications. No one from the public testified in opposition to the applications.
Ms. Conaway reiterated staff's position that "[t]he site is too small for the proposed use." She recommended that the
applicants look at adjacent lots in order to obtain more room for parking. She "was certainly willing to recommend setback waivers so we could get as many cars as possible on that site, because without those waivers, the size of the restaurant would become a very small drop-through restaurant instead of a place where people could come." But, she believed that "this large of a waiver is just too much."
In response to several questions posed by Commissioner Putney, Mr. Will and Ms. Conaway indicated that while the actual building for the restaurant would be larger than its predecessor, the outdoor seating was eliminated.
Mr. Craig also noted that the Steryous wanted to make the restaurant a quality restaurant and to upgrade it from selling beer and wine to having a liquor license. The problem is that in order to obtain a liquor license, the restaurant must have a minimum of 150 seats. Mr. Craig also indicated that unlike its predecessor, the proposed restaurant would be open only for lunch and dinner, thus reducing the breakfast trade traffic that had occurred previously.
After more discussion, Commissioner Putney was still concerned with the number of parking spaces being given away if the parking variance was approved. The other commissioners were equally divided with Commissioners Hill and Coleman favoring the applications and Chair Ritz and Vice-Chair Werling being opposed.
After hearing further argument, Commissioner Coleman made a "[m]otion to grant" and seconded by Commissioner Hill. Chair Ritz announced that there was "a motion and a second to grant the variance." After a roll call vote, Commissioners Hill, Coleman, and Putney voted in favor of the motion to grant the parking variance and Chair Ritz and Vice-Chair Werling voted against the motion. The motion passed. See page 8, supra, for the Commission's written Findings of Fact and Conclusions of Law-- Resolution No. P 03-02.
After the vote, Mr. Wolf (Commission counsel) indicated on the record that there had been no vote on the minor conditional use. Further discussion ensued.
There was an initial motion and a second to approve item 7, relating to the conditional use and the setback waivers.
Ms. Conaway reminded the Commission that "staff had recommended denial because of the parking." She further stated "[s]o what you're doing is approving it with conditions and we don't have conditions here. We need to -- we need to state the conditions that are necessary. That would be part of the approval. And I imagine they're the normal ones; the storm water management, the permit from the Aqueduct Authority. You don't need a permit from the-- [fire marshal]." Landscaping would also have to be approved by Ms. Conaway.
Commissioner Coleman noted that if the parties could not agree on the conditions, that the matter would return to the Commission and that that was part of Commissioner Coleman's motion. Ms. Conaway also indicated that they needed more traffic information. Ms. Conaway also noted that there was an issue relating to the reduction of the loading platform.
Commissioner Coleman then withdrew his prior motion to approve the minor conditional use and moved to continue the matter pending the Steryous working with Ms. Conaway and returning to the Commission on February 6, 2002. The motion was seconded by Commissioner Hill and the motion was approved unanimously.
VII.
February 6, 2002, Meeting
On January 18, 2002, Planner Will and Biologist Stevenson submitted a second and revised Memorandum (Memorandum II) to the Commission in light of the anticipated meeting date of
February 6, 2002.
Staff found the application in compliance with respect to the purpose of the Sub Urban Commercial District. Memorandum II, page 3 of 10. Staff stated:
The purpose of the SC district is to establish areas for commercial uses designed and intended primarily to serve the needs of the immediate planning [sic] area in which they are located. This district should be
Id.
established at locations convenient and accessible to residential areas without the use of U.S. 1. The parcel of the proposed restaurant is close to two large residential areas, Bay point Trailer Park and Bay Point Subdivision who would not have to use U.S. 1 to travel to the site. Knuckleheads would be the only sit-down restaurant in the area, providing a service for which residents currently have to travel out of the neighborhood. Additionally, the site fronts the Overseas Heritage Bike Trail.
Staff found the application in compliance for minor
conditional uses, Section 9.5-235(b)(1), stating, in part, that "[t]he proposed restaurant is expected to generate 322 average daily trips, or 88 per 1,000 square feet of development, classifying it as medium intensity. The proposed development is 3,658 square feet, between the threshold of 2,500 and 10,000 square feet permitted as a minor conditional use. Access to the restaurant will not be via U.S. 1 but rather an existing curb cut on West Circle Drive." Id. See also footnote 2.
Staff determined that the project was in compliance with the non-residential intensity of use and open space requirements set forth in Section 9.5-269.
Staff noted that the application for conditional use was not in compliance without a setback waiver from the minimum yard setback requirements of Section 9.5-281, and stated:
The front yard setback in the SC district shall be not less than 25 feet, combined side yard setbacks must be a total of 15 feet, and
the rear yard setback shall be 10 feet. The proposed development provides a front yard set back of 10 feet, combined side yard setbacks of 23 feet, and a rear yard setback of 5 feet. The applicant wishes to request a setback waiver from the Planning Commission pursuant to Section 9.5-66. The requested waiver would allow the applicant to provide an additional 8 parking spaces in the front yard (including two handicapped spaces) and an additional 11 parking spaces in the rear. The Director of Planning and Environmental Resources requested an increase of landscaping to mitigate any impacts on the community character. Without the setback waiver the applicant will only be able to provide 15 parking spaces.
Memorandum II, pages 4 of 10. Staff also stated that the application was now in compliance with the off-street parking requirements of Section 9.5-351 because the parking variance had been granted by the Commission on January 9, 2002.
Further, staff concluded that the application was now in compliance with the number and size of loading spaces as provided in Section 9.5-352 and stated:
The proposed development is required to have one 10' by 25' loading zone on the site. In the south-east corner of the parking lot, a 10' by 23' zone was provided within the setback area. The applicant agreed to limit delivery times to before 11:00 AM, before the restaurant is open to the public. This would be a condition on the building permit.
Memorandum II, pages 6 of 10. Staff also stated that the application was in compliance with the parking lot landscaping requirements, street trees, scenic corridor, and bufferyards.
(The applicant also added another parking space (increased from
34 to 35 parking spaces) to accommodate the need for loading zone space.) Id. ("No structure or land which abuts U.S. 1, SR 905 or SR 940, a boundary between two (2) different land use districts, or fronts on a major street shall hereafter be developed, used or occupied unless a scenic corridor or bufferyard is provided in accordance with the requirements of this division." Article VII, Section 9.5-375, M.C.C. Bufferyard standards are set forth in Section 9.5-379.)
Staff also noted that the traffic report, as amended and updated, was in compliance with the requirements of Section 9.5-
426. Staff stated:
If a project is expected to generate between
250 and 500 trips per day, a traffic report is to be submitted for approval. A Level III traffic report prepared by T.A.P., Inc. was submitted in October 2000 and a revised traffic report was submitted in August 2001. Both reports were sent to the Monroe County traffic consultant for analysis and approval. In a response letter to T.A.P. Inc. dated November 14, 2001 the traffic consultant recommended approval of the traffic report on the condition that a site plan indicating delivery vehicle and garbage truck maneuverability be provided and the trip distribution table be updated with the revised trip generation and trip lengths.
The requested information was received by the Planning Department on January 18, 2002 and was also sent to the traffic consultant.
Memorandum II, page 8 of 10 (emphasis added.)
Staff maintained its earlier position that the "proposed medium-intensity commercial use is consistent with the community character of area" and continued to suggest that "[t]he proposed project may have an adverse effect on adjoining property values because of the parking overflow that may occur if the restaurant is full. However, the site [the former restaurant] has previously had a more intense commercial use with significantly less landscaping." Memorandum II, page 8 of 10. See Article III, Section 9.5-65(b)-(d), M.C.C. However, staff revised its recommendation regarding compliance with Section 9.5-65(c) and
stated:
The Planning Commission has granted a variance for 21 parking spaces, therefore the provided 34 parking spaces are adequate. The building is designed to have all of the seating indoors which will reduce the amount of noise affecting the surrounding neighborhood. The buffer and parking lot landscaping will greatly enhance the site to minimize adverse effects on adjacent properties.
Memorandum II, page 8 of 10.
With respect to the requirements of Section 9.5-65(e), staff
stated:
The traffic study submitted by the applicant states that the proposed restaurant will generate 256 less trips than the previous establishment. In a letter dated
November 14th, 2001 Raj Shanmugam P.E. traffic consultant for Monroe County, concurs with this statement. According to the 2001 Monroe County Public Facilities Report, the
level of service (LOS) for segment four of
U.S. 1 (in which the site is located) has sufficient capacity to maintain the proposed development.
Id.
In the February 6, 2002, Memorandum II, staff recommended
approval of the amendment to a minor conditional use (with conditions) and in support made the following Findings of Fact
and Conclusions of Law:
* * *
Based on Section 9.5-66 of the Monroe County Code, the Planning Commission can approve a waiver to the minimum yard requirements (Section 9.5-281) if the waiver will enhance the ability of the project to meet the general standards for all conditional uses. Given the physical constraints of the site and the required amount of parking to be provided, the requested setback waivers (15 feet in the font, and 5 feet in rear) would enhance the ability of the applicant to provide as much parking as possible with minimal impact on the buffer zones. Therefore, Staff concludes that the yard setback waiver is warranted.
Based on the revised landscaping plan submitted January 18, 2002, additional landscaping has been provided. Because a setback wavier has been requested (see item 2, above) to increase the amount of parking available on the site, the Director of Planning and Environmental Resources has requested additional landscaping to be added to protect community character and prevent adverse effects on the surrounding properties. Each setback that is reduced shall provide additional landscaping equal to the percentage the setback is reduced. For example, if a setback is reduced by 50%, the
landscaping standard for that area shall be increased by 50%. The additional landscaping required shall be as follows: two (2) street trees, four (4) canopy trees, one (1) understory tree, and fifteen (15) shrubs.
* * *
Based on Section 9.5-351 Off-street parking standards, Staff finds that the applicant is required to provide 55 parking spaces and based on the submitted site plan
35 parking spaces are provided. At the regular meeting on January 9, 2002 the Planning Commission granted a variance for 21 parking spaces. Therefore, Staff finds that the project is in compliance with Section
9.5-351.
Based on the submitted site plan, the designated loading area has the dimensions 10' by 23' and encroaches onto the rear yard setback by 5 feet. Section 9.5-352 requires the loading area to be 10' by 25'. However, if the rear yard setback waiver is granted the 5 foot encroachment is acceptable. Because the loading area is only designated as 23 feet long but is required to be 25 feet, loading vehicles may extend the additional two feet into the ingress and egress to the site. Therefore, Staff finds that the hours of deliveries shall be limited to before 11 AM, and a sign shall be erected indicating that deliveries must be made before this time.
Based on the revised traffic report submitted by T.A.P., Inc. and correspondence between the Monroe County traffic consultant Raj Shanmugam, P.E. of U.R.S. and T.A.P. regarding additional traffic issues not raised in the submitted report, additional materials have been submitted addressing these issues. Therefore, Staff concludes
that the project is in compliance with Section 9.5-426.
* * *
Id. at pages 9 and 10 of 10.
On February 6, 2002, the Commission met to consider the Steryous' application for amendment to a minor conditional use, which included the setback waivers.
Mr. Will discussed the items which changed the staff's recommendation, and stated in part:
* * *
Because the variance was granted the parking spaces of, the 34 parking spaces are now in compliance with code because of the variance granted.
In addition to those 34, there has been one extra parking space added, for a total of 35, the reason for that being is as per Mr.
Craig's suggestion at last month's meeting.
The staff has recommended that the loading zone be transformed into a parking space on the condition that loading, deliveries, loading and unloading and such, is done before 11:00 a.m. on weekdays, and the condition, this condition is because the restaurant will not be open for breakfast and therefore there will be no problem, there won't be patrons crowding in and around while loading and unloading is to be done. Staff felt comfortable with this condition.
Because of the parking situation, adding one more space seemed a reasonable concession.
Also, increased landscaping that has been requested by the Planning Director has been provided. The increased landscaping was due to a setback waiver that the Commission
will be asked to consider granting as part of the minor conditional use.
Also, revised information regarding the traffic study has been submitted to the Monroe County Planning Traffic Consultant.
He has notified me through a letter that I received yesterday that everything is fine in terms of traffic and maneuverability. He approves of the project from that perspective
* * *
Mr. Craig, on behalf of the Steryous, agreed with the staff report and confirmed, in part, that the restaurant will not be open for business in the morning (not until 11:00 a.m.) to allow for delivery of goods.
Commissioner Putney, who raised concerns during the initial meeting, clarified her concerns. (No Commissioner requested reconsideration of the previous vote to approve the parking variance.) She was concerned with the potential impact of traffic on the level of service; the increase in intensity, in relation to the effect of the increase and intensity on the level of service, i.e., changing the restaurant from a "Key-zee 2,614 square foot restaurant with a couple of outbuildings and picnic tables being turned into a 3,658 square foot enclosed restaurant. "
Commissioner Putney was also concerned with the applicant's traffic engineer's prediction that there would be 256 less trips if the proposed restaurant is built.
Chairman Ritz agreed with Commissioner Putney and believed that "the project is too large for the site."
Commissioner Coleman moved to approve the amendment to a minor conditional use, i.e., to permit the construction of the restaurant as proposed, which received a second from Commissioner Hill. The motion was defeated by a vote of three to two, with Commissioners Werling, Putney, and Ritz voting in the negative.
Commissioner Putney stated that she had not received the traffic report that said that the proposal would not have an effect on the level of service, and Ms. Conaway indicated that it was incorporated into the staff report. See Memorandum II, page 7 of 10.
Ms. Conaway explained that the traffic engineers who performed the traffic study, as amended, which was submitted to staff, examined the square footage of the property and applied various formulas.
Mr. Craig stated that there were 150 seats available on site with respect to the prior restaurant, i.e., indoors and outdoors, and that the proposed restaurant would accommodate 150 seats only indoors.
Commissioner Werling suggested that the proposed restaurant would not go with the community character of this specific neighborhood.
After some discussion among the commissioners, Commissioner Putney moved to deny on the grounds of her concern with the traffic study, the intensity of use, adverse impacts on the community character, and that the design did not minimize adverse effects in light of Section 9.5-65(c). (Record on Appeal, pages 81-82.)
Commissioner Putney formally moved and voted to deny the application for a minor conditional use, with Chair Ritz and Vice-Chair Werling voting in the same manner. Commissioners Hill and Coleman voted against the motion (and to approve the conditional use and setback waivers).
The Commission's voice vote and the reasons given in support of the vote, were memorialized in the Commission's Resolution No. P 04-02, which is the subject of this appeal. The Commission made Findings of Fact and Conclusions of Law in this Resolution and in part stated:
Based on the application and materials presented at the pre-application meeting, Greg and Alice Steryou are applying to rebuild Knuckleheads restaurant which was destroyed in Hurricane Georges in 1998. Therefore, we conclude that the restaurant is redevelopment of existing floor area and not subject to Monroe County Code Section 9.5- 124, Non-Residential Permit Allocation System.
Based on the approval of a variance for
21 spaces from the 55 required by Monroe County Code Section 9.5-351 granted by the Planning Commission on January 9, 2002, the
open space ratio and the parking lot landscaping required for the provided 34 parking spaces and requested setback waivers are in compliance with Monroe County Code.
Based on the application, a minimum yard setback waiver from the Planning Commission has been requested to increase the amount of parking available on the site. The Director of Planning and Environmental Resources has suggested additional landscaping to be added to protect community character and prevent adverse effects on the surrounding properties. Each setback that is reduced shall provide additional landscaping equal to the percentage the setback is reduced. Therefore, based on the revised site plan submitted January 18, 2002, we conclude that the following additional landscaping has been provided as per the Director's suggestion: two (2) street trees, four(4) canopy trees, one (1) understory tree, and fifteen (15) shrubs.
Based on Section 9.5-66, we find that the requested reduction in the minimum yard requirements will not enhance the ability of the proposed project to meet the general standards set forth in Section 9.5-65 including but not limited to: the project is not consistent with the surrounding community character, and the project does not minimize adverse effects on the surrounding properties, even with increased landscaping standards provided above in Finding 3. Therefore, we conclude that there is not sufficient merit to grant the requested setback waiver.
Based on the submitted site plan, we find that without the requested setback waiver the applicant may not develop 19 of the 34 parking spaces provided. Only 15 parking spaces would be provided. Therefore, even with the approved parking variance, we conclude that the project is not in compliance with Section 9.5-351.
Based on the increase in size of the enclosed seating area of the restaurant (from 3,063 to 3,658 square feet) and the change in use to a sit-down, quality restaurant, we find that the project is not consistent with the neighborhood restaurant that previously existed on the site and the community character of the immediate vicinity. Therefore, we conclude that the project is not in compliance with Section 9.5-65(b).
Based on the small size of the lot, the design of the project does not minimize adverse impacts on the surrounding properties. The site is not large enough to accommodate the associated parking requirement of a 3,658 square foot quality sit-down restaurant. Therefore, we conclude that the project is not in compliance with Section 9.5-65(c).
Based on the application, we find that a Stormwater Management Plan has been submitted. A letter of coordination with the South Florida Water Management District (SFWMD) is needed. Therefore, we conclude that compliance with Section 9.5-293 cannot be determined until a letter of coordination has been submitted.
Based on the submitted site plan, the designated loading area has the dimensions 10' by 23' and encroaches onto the rear yard setback by 5 feet. Section 9.5-352 requires the loading area to be 10' by 25'. Therefore, we conclude that the loading zone is not in compliance with Section 9.5-352 of Monroe County Code.
Based on the revised traffic report submitted by T.A.P. Inc. and correspondence between the Monroe County traffic consultant Raj Shanmugam, P.E. of U.R.S. and T.A.P. regarding additional traffic issues not raised in the submitted report, additional materials have been submitted in order for report approval. Therefore, we conclude that
the traffic report is complete and in compliance with Section 9.5-426.
VIII.
LEGAL DISCUSSION
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties pursuant to Article XIV, Section 9.5-535, M.C.C. The hearing officer "may affirm, reverse or modify the order of the planning commission." Article XIV, Section 9.5-540(b), M.C.C. The scope of the hearing officer's review under Article XIV is:
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 on 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.
Id. "The hearing officer's final order shall be the final administrative action of Monroe County." Article XIV, Section 9.5-540(c), M.C.C.
In DeGroot v. Sheffield, 95 So. 2d 912 (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. . . . In employing the adjective "competent" to modify the word "substantial" we are aware of the familiar rule that in administrative proceedings the formalities and the introduction of testimony common to the courts of justice are not strictly employed. . . . 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."
Id. at 916 (citations omitted.)
A hearing officer (Administrative Law Judge)acting in his or her appellate review capacity is without authority to reweigh conflicting testimony presented to the Commission or to substitute his or her judgment for that of the Commission on the issue of the credibility of witnesses. See Haines City Community Development v. Heggs, 658 So. 2d 523, 530 (Fla. 1995).
The question before the undersigned is not whether the record contains competent substantial evidence supporting the view of the Steryous; rather, the question is whether competent substantial evidence supports the findings made by the
Commission. See generally Collier Medical Center, Inc. v. State, Department of Health and Rehabilitative Services, 462 So. 2d 83, 85 (Fla. 1st DCA 1985).
In Dusseau v. Metropolitan Dade County, Board of County Commissioners, 794 So. 2d 1270, 1275-1276 (Fla. 2001), the Court reiterated:
that the "competent substantial evidence" standard cannot be used by a reviewing court as a mechanism for exerting covert control over the policy determinations and factual findings of the local agency. Rather, this standard requires a reviewing court to defer to the agency's superior technical expertise and special vantage point in such matters.
The issue before the court is not whether the agency's decision is the "best" decision or the "right" decision or even a "wise" decision, for these are technical and policy- based determinations properly within the purview of the agency. The circuit court has no training or experience -- and is inherently unsuited -- to sit as a roving "super agency" with plenary oversight in such matters.
The issue of whether the Commission "complied with the essential requirements of law" is synonymous with whether the Commission "applied the correct law." Haines City Community
Development, 658 So. 2d at 530.
Based upon a review of the entire record in this case, Resolution No. P 04-02 is reversed.
The Commission, by separate action in Resolution No. P 03-02, authorized an off-street parking variance for 21 parking spaces,
finding in part that approval of "this variance would not grant a special privilege to this development" and that "the site in question is unique in orientation with one side fronting the water." Stated otherwise, the Commission authorized the Steryous to provide 34 parking places for the 150 potential (seated) patrons of the restaurant, who may travel to the restaurant by a motor vehicle. In taking this action, the Commission implicitly, if not expressly, acknowledged that the size of the proposed restaurant and expected number of patrons in light of the reduced parking spaces, was not an impediment to the project.
In Resolution No. P 04-02, the Commission found that the project is not consistent with the surrounding properties (and immediate vicinity) community character4 and does not minimize adverse effects on the surrounding properties because, in effect, "[t]he site is not large enough to accommodate the associated parking requirement of a 3,658 square foot quality sit-down restaurant."
The "adjacent properties" to the south and east are within the Sub Urban Commercial land use district and have a FLUM designation of Mixed Use/Commercial. Under the Monroe County Code, these lots can have commercial retail use and accommodate a potential intensity of use equal to or greater than the proposed restaurant. It is uncontroverted that the floor area ratio, the open space ratio, intensity, and the density of the proposed
project are consistent with the applicable provisions of the Monroe County Code.
However, the fact that the proposed restaurant is different than the former restaurant in size and quality is not controlling here. These factors may become relevant in light of a defined "community character" which, on this record, is missing. This is especially problematic when, as here, there are no written standards or guidelines establishing the criteria for determining what is the "community character."
It is uncontroverted that Bay Point Trailer Park, Bay Point Subdivision, and a public park, are south and close to the proposed site and that Bay Point Pizza and Baby's Coffee are east of the two vacant commercial lots, which are directly east of the proposed site.
But, there is no competent substantial evidence to support the Commission's findings,5 implicit or otherwise, that the proposed restaurant "will have an adverse effect on the value of" these "surrounding properties," which are also within the "immediate vicinity" of the proposed site, or that the proposed restaurant will adversely affect adjacent properties, such that the adverse effects need to be minimized, or that the proposed restaurant is inconsistent with the "community character of the immediate vicinity of the parcel." See Article III, Section 9.5- 65(b)-(d), M.C.C.
Also, it is uncontroverted that the proposed restaurant will not impact or adversely affect the Level of Service (LOS)6 of the roads in the vicinity of the project in light of the proposed intensity of use of the restaurant. Importantly, the Commission accepted the traffic report, as amended and supplemented, which was the only competent substantial evidence to determine whether the roads have sufficient capacity to maintain their LOS after the proposed restaurant is built, given its medium intensity. Any finding to the contrary is not supported by competent substantial evidence. See generally Debes v. City of Key West, 690 So. 2d 700 (Fla. 3d DCA 1997).7
The only plausible rationale for denying the amendment to a minor conditional use and the setback waivers is because there are not enough parking places to accommodate the expected number of potential patrons (150) and, as a result, the patrons arriving by motor vehicle might be expected to park on the right-of-way and other off-site areas, thus creating "adverse effects" on adjacent and surrounding properties. This was the initial reason given by Mr. Will for recommending denial of the parking variance. See, e.g., (Record on Appeal, page 8). But Mr. Will changed his overall recommendation after the Commission approved the parking variance and the Steryous submitted additional information and agreed to conditions, although in Memorandum II he indicated "[t]he proposed project may [not will] have an adverse effect on
adjoining property values. . . ." Memorandum II, page 8 of 10 (emphasis added.)
As noted herein, the Commission already determined that the size of the restaurant was not an impediment to granting the Steryous a parking variance for 21 parking spaces, leaving the restaurant with 34 parking spaces for its patrons. This determination, based on the same record as this appeal, is inconsistent and irreconcilable with the Commission's finding that "[t]he site is not large enough to accommodate the associated parking requirement of a 3,658 square foot quality sit-down restaurant," which is the reason why the Commission denied the setback waivers and the amendment to a minor conditional use.
Further, the Commission determined that the proposed loading area was not in compliance with Section 9.5.352. The Commission correctly finds that the proposed loading area dimensions are two feet short, i.e., 10' by 23' rather than 10' by 25', and are to be placed within the existing rear year setback, requiring a waiver for this additional space. However, as noted by staff, the Steryous have agreed to provide an additional parking space (35 total) to afford additional space for loading and have also agreed to limit weekday deliveries before 11:00 a.m. While these facts were presented to the Commission, given the ultimate disposition of this case, it is uncertain whether the Commission would disapprove the minor conditional use based on this issue alone or
that a rear yard setback waiver for the loading area would be inconsistent with the criteria for approval as a minor conditional use. Thus, it would appear appropriate for the Commission to consider this issue anew.
IX. DECISION
Based upon the foregoing, Monroe County Planning Commission Resolution No. P 04-02 is REVERSED.8
Pursuant to Article XIV, Section 9.5-540(c), M.C.C., 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 3rd day of September, 2002, in Tallahassee, Leon County, Florida.
CHARLES A. STAMPELOS
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 3rd day of September, 2002.
ENDNOTES
1/ The Monroe County Year 2010 Comprehensive Plan (Plan), Future Land Use Policy 101.4.5, provides in part: "The principal purpose of the Mixed Use/Commercial land use category is to provide for the establishment of commercial zoning districts where various types of commercial retail and office may be permitted at intensities which are consistent with the community character and the natural environment. Employee housing and commercial apartments are also permitted. This land use category is also intended to allow for the establishment of mixed use development patterns, where appropriate. Various types of residential and non-residential uses may be permitted; however, heavy industrial uses and similarly incompatible uses shall be prohibited. "
2/ The traffic report, as amended, presented by the Steryous, indicates that the proposed use is a medium-intensity commercial retail use, based on the proposed restaurant generating 322 average daily trips, or 88 per 1,000 square feet of development. In Resolution No. P 04-02, the Commission found the traffic report, as amended, submitted by the Steryous was complete and in compliance with Section 9.5-426.
3/ "Community character means those indices of the composite nature of an area which are described in chapter II, volume 1 of the comprehensive plan." Article I, Section 9.5-4(C-17), M.C.C. (emphasis in original.) During oral argument, as supplemented by a second conference call on August 26, 2002, the parties agreed that Exhibit B (Future Land Use Element) attached to the Steryous' Initial Brief, is the technical portion of the Monroe County Comprehensive Plan referred to in this definition, and does not provide standards or criteria for determining what is "community character." (The Record on Appeal is supplemented with this document.)
4/ There are no standards, guidelines, or criteria in the Monroe County Code which define, with any degree of precision, the term "community character." But see footnote 3, supra.
5/ There is no competent substantial evidence in this record regarding how the "values," dollar or otherwise, of surrounding properties would be reduced or adversely affected if the proposed minor conditional use is approved.
6/ "Level of service means a quantitative measure describing operational conditions within a traffic stream." Article I, Section 9.5-4(L-4), M.C.C.
7/ Statements made by the Commissioners during the meetings are helpful regarding their intent, but are not evidence.
8/ The Steryous' estoppel and due process arguments are rejected. The Commission approved the parking variance during the first meeting, but did not approve the minor conditional use and setback waivers. The Steryous, while admittedly receiving some encouragement from staff and some of the Commission members, could not have reasonably believed that the Commission had approved the setback waivers during the first meeting. The Steryous were afforded due process of law during the Commission's consideration of both applications. Also, the Commission did not de facto revoke the approved parking variance, although the approval of the parking variance had a significant impact on the outcome of this appeal for the reasons stated herein.
COPIES FURNISHED:
Karen K. Cabanas, Esquire Morgan & Hendrick
317 Whitehead Street
Key West, Florida 33040
Lee R. Rohe, Esquire Post Office Box 420259
Summerland Key, Florida 33042
Judith Chambers
Planning Commission Coordinator Monroe County Planning Department 2798 Overseas Highway, Suite 410
Marathon, Florida 33050-2227
NOTICE OF RIGHTS
Pursuant to Article XIV, Section 9.5-540(c), M.C.C., 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.
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 03, 2002 | DOAH Final Order | Monroe County Planning Commission decision to deny amendment to minor conditional use for proposed 3,658 square foot indoor restaurant was not supported by competent substantial evidence. |
