STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JEFF OSBORN and SMART PLANNING ) AND GROWTH COALITION, )

)

Appellants, )

)

vs. )

)

MONROE COUNTY PLANNING )

COMMISSION, )

)

Appellee, )

)

and )

) NORTHSTAR RESORT ENTERPRISES ) CORPORATION, )

)

Intervenor. )

Case No. 03-4720

)

FINAL ORDER

Appellants, Smart Planning and Growth Coalition (Smart Planning) and Jeff Osborn (Osborn), seek review of Monroe County Planning Commission (Commission) Resolution No. P47-03, approved by the Commission on June 25, 2003, and signed by the Commission's Chair on September 10, 2003. Appellants' appeals were 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.

Appellants submitted separate Initial Briefs and Reply Briefs. The Commission and Intervenor, Northstar Resort

Enterprises Corporation (Northstar), submitted separate Answer Briefs. Oral argument was presented in Monroe County, Florida, on June 24, 2004. Citations to the record on appeal shall be by the symbol (R) followed by a page reference. (A separate Final Order was entered in Case No. 04-1568, a related case.)

1. Issues

   
   

   Smart Planning contends that the Commission denied Smart Planning procedural due process and departed from the essential requirements of law by denying Smart Planning the right to cross-examine witnesses during the Commission public hearing; that there is no competent substantial evidence to support Northstar's claim for credit for a 12-unit motel allegedly existing on the project site and there is no competent substantial evidence to support the transfer of 126 recreational vehicle spaces. (These two issues are subject of the appeal in Case No. 04-1568.); that the Commission departed from the essential requirements of law by considering the existence of Stan & Mary's Restaurant, which is the subject of litigation, to satisfy part of the hotel density requirements; that the Commission departed from the essential requirements of law because it approved a prohibited use within the Suburban Commercial zoning district because the project will not primarily serve the needs of the immediate planning area in which it is located; and that the Commission departed from the

   essential requirements of law when it approved the project’s angular entranceway at an angle of 50 degrees.

   Osborn contends that the Commission denied him procedural due process by considering undisclosed or secret knowledge, denying Osborn the right to cross-examine witnesses, and by receiving ex-parte communications. Osborn also contends the Commission erred by failing to require the submission and consideration of an Environmental Designation Survey (EDS) and a Community Impact Statement (CIS); by failing to require Northstar to submit a marina application for approval of the docks; by failing to require Northstar to comply with the off- street parking requirements; by failing to require a deed restriction to exclude the public from the project’s hotel and amenities; by approving 8,158 square feet of commercial use even though the Site Plan (A-1) shows more commercial floor area not counted by Northstar; by approving the project by and through the use of an unforceable condition regarding Thurmond Street; and by requiring Northstar to construct affordable housing units off-site.

2. Background

   
   

   1. The Application

      
      

      On or about November 20, 2002, Northstar submitted an Application of Development Approval (Application) for a Major Conditional Use to the Monroe County Planning Department,

      proposing to use the property located at Key Largo, Florida, Mile Marker (MM) 99.5, for 89 hotel rooms and 8,158 square feet of commercial use inclusive of a restaurant and bar. See Endnote 3. The property is located in the Suburban Commercial zoning district. The present use of the property is described as limited commercial, Stan & Mary's Restaurant, a total of 9,250 square feet, 12 motel rooms, and 22 mobile homes. See Endnote 1. Northstar's agent, Donald L. Craig, A.I.C.P., submitted the Application. (R221-222).

      Northstar stated that following approval of the Major Conditional Use by the Commission, Northstar would apply for Minor Conditional Use approval in order to obtain the Transferable Development Rights (TDRs) and Transferable ROGO Exemptions (TREs) required for the density of 89 hotels rooms on the site. (R231). (The Sender and Receiver site applications are the subject of the appeal in Case No. 04-1568.)

      The Application included "Attachment A" which provided that several documents "may be required to be submitted with [the] application," and the applicant was directed to "consult with a Planner." (R223).

      The Application contained a "Project Overview" that stated in part:

      Northstar Resort will be a resort hotel of

      89 rooms and assorted amenities, inclusive of a restaurant and bar for the sole use of

      the patrons of the resort, dock space for the resort’s boats, support storage and administrative areas, as well as parking for these uses.

      
      

      The resort is a redevelopment of existing on site facilities, inclusive of the 47 unit mobile home park, a 12 unit transient motel, and 9,250 square feet of existing commercial use located on the 3 parcels denoted A, B and C on the survey, Appendix A hereto.[1] The project area also includes the existing Stan & Mary's restaurant located to the west of the existing Blue Lagoon property. This property and restaurant were acquired in order to have substantial sufficient commercial floor area, a restaurant and the necessary liquor license to serve the needs of the guests. This property has a long history of being used for both transient and permanent residential uses, together with commercial use. The existing proposal combines all of the parcels, including the Blue Lagoon Motel, to achieve the necessary site area to support 89 rooms and the supporting commercial floor area. The 89 rooms are created by the use of the existing

      12 motel units and the importation [] sufficient transferable development rights (TDRs) and Transferable ROGO Exemptions (TREs) to achieve the desired density.

      
      

      Developments such as this are allowed by County Code, Section 9.5-120.4(b)a.iii) which promotes the transfer and redevelopment of existing transient uses, such as motels, hotels and recreational vehicles parks. This code was specifically enacted in order to deal with the existing and ongoing moratorium on the creation of new transient accommodations within the County.

      
      

      TDRs and ROGO Exemptions have been identified and will be purchased upon completion of the development review process

      
      

      (R231).

      for this project. This transfer will be by means of Minor Conditional Use approval.

      
      

      Northstar stated that it had not applied for County permits prior to this Application. However, Northstar also noted that several pre-application meetings had been held with County staff to identify the requirements for this project. The Director of Planning, Ms. K. Marlene Conaway, wrote several letters (including a letter of understanding) to Mr. Craig regarding this project. (R232-233, 371-380).

      Northstar also noted that the repair and recondition of the existing docks on site would require the approval of the Florida Department of Environmental Protection (DEP) and the U.S. Army Corps of Engineers. (R233). Northstar also stated that the Florida Department of Transportation (DOT) "will require approvals for the change of access to the site. At present, access to all of the parcels making up the site is uncontrolled and is available from any location from U.S. Highway 1. This will change to the locations indicated on the site plan. An additional access point on Thurmond Street for staff and emergency access will require County road access permits." Id.

      The Application included a zoning map, an aerial photograph of the project site, undated photographs of, for example, Blue Lagoon at U.S. 1, and Blue Lagoon (existing residential and

      commercial), as well as photographs of Stan & Mary's Restaurant. (R235-240).

      The Application described the site as 8.17 acres or approximately 355,967 square feet with the entire area being upland and including no wetlands. (R242).

      Northstar described the entire site as disturbed and containing no native vegetation, with the exception of a small mangrove fringe on the northwestern waterfront of Parcel A as shown on the Site Plan (A-1).2 Northstar stated that there are significant sized trees on the site that will be protected to the maximum extent possible and integrated into the Landscaping Plan included with the Application. (R242).

      Northstar described the “Community Character of the Immediate Vicinity:”

      
      

      (R242).

      The community character of the immediate area can best be described as mixed, with low commercial development south of U.S. Highway 1; commercial development consisting of a motorcycle repair shop and meeting hall to the east of the site on parcels fronting

      U.S. Highway 1; and residential single- family homes and institutional (FKAA water storage facility) to the east of the site. To the north of the site are the open waters of Florida Bay.

      
      

      Northstar stated that this project, like all major conditional uses, must be consistent with Article III, Sections 9.5-65 and 9.5-68, M.C.C. (R243).

      Northstar included a density analysis with its Application, which provided an analysis of hotel units, commercial floor area, and residential density. Northstar calculated that the 15 TDRs and 77 TREs would be required. (R244-245).

      Northstar addressed several of the Monroe County Code provisions. (R246-249). Regarding parking and loading standards, Northstar proposed 89 spaces for the hotel rooms; 11 spaces for the boat slips; 1 space for the boat ramp; 123 spaces for the restaurant; 1 space for the retail area; and 12 spaces for employees. (R247).

      Regarding Section 9.5-335 pertaining to Environmental Performance Standards, Northstar stated that "[t]he site has no native vegetation, and requirements for this section do not apply, with exception of an open space ratio of 20%. The proposed development is consistent with Section 9.5-335." (R248). But see Endnote 2. (Section 9.5-335 provides: "It is the purpose of this division to provide for the conservation and protection of the environmental resource of the Florida Keys by ensuring that the functional integrity of natural areas is protected when land is developed.")

      Regarding Section 9.5-421, Access Standards, Northstar stated: "Access to the site will be simplified by the limitation of access to the site to 2 points. One will be the main entrance at the middle of the site, and second for staff

      and emergency vehicles from Thurmond Street. This approach will reduce the number of entrances from at least 6 to 2." (R249).

      Northstar noted that "[c]lear site triangles are shown on the attached site plan, which are consistent with Section 9.5-427." Id.

      Appendix C of the Application contained several letters written to, among others, the Florida Keys Electric Coop, the

      U.S. Fish and Wildlife Service, the DEP, the Florida Department of Health and Rehabilitation Services, the South Florida Water Management District (District), the Florida Keys Aqueduct Authority, the Monroe County Fire Marshall, the Florida Fish Game and Freshwater Fish Commission, and Solid Waste Management for the County of Monroe (as well as a response). (R269-277). Responses appear in the Supplemental Record, July 15, 2004.

      Appendix D of the Application contained numerous plans included a Site Plan shown as drawing number A-1. (R281). This Site Plan is dated May 2, 2002, and showed the proposed project in relation to U.S. Highway 1 and the south-bound lanes to the south of the project, and Thurmond Street, including the ingress and egress to the project as well as Thurmond Street to the west of the project and, in part, the notation of a gate. Id. The Site Plan also provided calculations for portions of the project site, acreage for transient rental use, commercial use, and accessory use. The commercial use is calculated to be 8,185

      square feet, see Endnote 3, which includes a 120 square feet for a gift shop, 1,283 for a Tiki with portable bar, 4,752 square feet denoted "A/C Enclosed Space" and 2,030 square feet denoted covered porch seating. Also noted is the total of 190,425.10 square feet of accessory use. (R281).

      Appendix E of the Application included a Level III Traffic Impact Study. (R312-369). See also (R400-410, supplemental traffic information).

      The record on appeal contains several pre-application letters that pre-date the Northstar project that is the subject of this appeal. It appears that the first pre-application conference and letter memorializing this conference is dated January 25, 2002, and authored by Ms. Conaway. (R375-380).

      On March 18, 2002, Ms. Conaway advised Mr. Craig of corrections to Item 6 of her January 25, 2002, letter pertaining to the number of TDRs needed for the project. (R372-374). On September 20, 2002, Ms. Conaway notified Mr. Craig that the Planning Department would review the Major Conditional Use project with the understanding that the project, if approved, would be contingent upon the acquisition of the TDRs and TREs. (R371). Ms. Conaway further advised: "A thorough review for completeness and compliance with all other aspects, must be signed off on by the Director of Planning prior to scheduling for a Planning Commission meeting date. If found to be

      complete, then a staff report will be prepared pursuant to Monroe County Code Section 9.5-69. If the proposed project is found in compliance and approved by the Planning Commission then prior to a Development Order being issued, complete documentation must be submitted to staff concerning all TDR’s and TRE’s required. It should be known that a minor conditional use is required for both the sender and receiver sites for TRE(s)." (R371).

      After the Application was submitted, Northstar's engineer furnished the Planning Department’s traffic engineer consultant with additional information (R400-410), which resulted in a written opinion issued on January 31, 2003, by traffic consultant Mr. Raj Shanmugam, P.E., concluding that the traffic report submitted by Northstar addressed the traffic issues. (R411-413). Mr. Shanmugam noted that there are some changes that may have to be made to the Site Plan to accommodate the vehicle design and to meet the design standards and that the Site Plan would need to be reviewed and modified as necessary. (R413).

   2. Staff Memoranda

      
      

      On February 12, 2002, Mr. J.G. Buckley, Planner, and Ms. Julie Cheon, Biologist, prepared a Memorandum for the Development Review Committee (DRC). (R441-447). On May 9,

      2003, Mr. Buckley and Ms. Cheon prepared a Memorandum for the

      Commission, which is substantially similar to the Memorandum of February 12, 2002. (R486-492). (It appears that the reference to 2002 should be 2003.)

      On May 1, 2003, the DRC considered the Northstar project and unanimously recommended approval of Northstar's project with conditions. (R448-452, 455-484.)

      The staff Memorandum of May 9, 2003, referred to above, restated the nature of the project to be the redevelopment of the property with a resort hotel of 89 units with 8,158 square feet of commercial use comprising a restaurant and bar facility, lobby, storage, and various accessory structures including outdoor swimming pools, spas, and extensive landscaping.3 Staff noted the need for 77 TREs and 15 TDRs in order to achieve the requested maximum net density. (R486).

      Staff described the project site and stated “[t]he site is disturbed with scattered native growth. All native species four inches diameter at breast height (dbh) and all listed species must be transplanted or replaced at a ratio of two (2) to one (1).” (R487). The community character of the immediate vicinity is described: "The immediate vicinity is characterized by a mix of uses including several non-conforming residential units adjacent to the site, some conforming residential structures across Thurmond Street to the west, several

      commercial retail uses in a Florida Keys Aqueduct Authority water storage facility." (R488).

      Staff reviewed the project for compliance with numerous provisions set forth in Article III, Section 9.5, M.C.C., and found the project to be in compliance and did not find the project “not in compliance” with any section of the Land Development Regulations.4 (R488). However, Staff stated that “compliance has not been determined” for the project in light of several provisions including surface water management, wastewater treatment, transplantation plan, and access standards. These areas were the subjects of draft conditions. (R488-489, 491-492).

      Staff noted that issues related to density and intensity, i.e., the TDR and TRE issues, needed to be discussed during the Commission meeting. (R489).

      Staff further determined that the Major Conditional Use was consistent with the community character of the immediate facility of the parcels proposed for development; that no empirical evidence existed that the proposed redevelopment would adversely affect the value of the surrounding properties; that there was adequate water and electricity for the proposed redevelopment; that there was no empirical evidence that would indicate that Northstar does not have the financial resources or technical capacity to complete the project as proposed; and that

      the proposed redevelopment would not adversely affect a known archaeological, historical, or cultural resource. (R489-490).

      Staff proposed several findings of fact and conclusions of law and recommended approval with several conditions. (R488- 492).

   3. The Public Hearing

   
   

   On June 25, 2003, the Commission held a public hearing on the Application. (R1).

   At the outset of the public hearing, Commission counsel, Mr. John Wolfe, responded to Smart Planning's request of the Commission to permit cross-examination of witnesses. (R3-9). (Mr. Lee Rohe, on behalf of Smart Planning, sent Mr. Wolfe a letter of June 23, 2003, outlining his legal argument in support of allowing cross-examination. (R10-12, 434-435).) Mr. Wolfe, relying in part on a memo of June 24, 2003, prepared by Assistant County Attorney Bob Shillinger (R436-438) and Article III, Section 9.5-46, M.C.C., advised the Commission that there was no right to cross-examine witnesses in this type of proceeding/public hearing. Rather, cross-examination questions could be submitted to the Chair. (R3). Mr. Andrew Tobin, counsel for Osborn, supported Mr. Rohe's argument and further requested to intervene in this proceeding as a party. (R12-18). After argument of counsel, Chair Ritz denied Smart Planning and Osborn the right to cross-examine witnesses; however, both were

   authorized to present evidence and make a presentation and offer closing comments. (R18-19, 30-31). Questions could be submitted through the Chair. (R21). Party status was not recognized. (R21).

   Mr. Buckley, a planner, presented the agenda item and the staff report, including staff's recommendation of approval with conditions. (R22-30).

   Mr. Timothy Nicholas Thomes, counsel for Northstar, and Mr. Craig, Northstar's agent and planner, discussed the merits of the Northstar Application. (R31-39). Mr. Craig advised that the restaurant, hotel, and amenities including the docks would not be open to the general public. (R35-36).

   Mr. Richard P. Eichinger, a senior traffic engineer for Transport Analysis Professionals and an expert in traffic engineering, testified regarding traffic issues related to the project. (R38). Mr. Eichinger previously provided the Planning Department with a Level III Traffic Impact Study and supplemental information in response to comments from

   Mr. Shanmugam. (R39-43, 312-369, 400-410). (Mr. Shanmugam reviewed the traffic report and determined that it adequately addressed the traffic issues. He also noted there are some changes that may have to be made to the Site Plan to accommodate the design vehicle and to meet the design standards. (R412- 413). He also stated during the public hearing that he would

   like the turn-in and out of the project site to be designed so that trucks can enter and leave safely. (R168-169). See also

   (R219, conditions 4 and 5).) Mr. Eichinger believed that the project met all the criteria in the Monroe County Code as to traffic impact and access within the project site, including the Thurmond Street and U.S. Highway 1. (R43-44).

   Mr. Robert Barnes, the architect of record for the project, testified that the design of the project is consistent with all the site planning standards, including but not limited to the set backs, building height, and location of the structure.

   (R45-46).

   
   

   Mr. Tobin and Mr. Rohe provided opening statements opposing the project. (R49-55, 71-73).

   Ms. Sheryl Bower, a land use planner, and Osborn testified in opposition to the project. (R55-71). In part, Ms. Bower stated, “[t]he project has over 17,000 square feet of commercial square footage that was exempt from ROGO. Okay, some of it is accessory to the hotel lobby, that kind of thing. But there is a gatehouse, there’s a covered spa, there is a pool deck that will most likely be serviced by the bar. There is nothing in NROGO that specifically exempts hotel commercial square footage from being subject to it. I asked staff if there is an administrative interpretation available and the staff members I talked to said no there is nothing that says hotel square

   footage is specifically exempted.” (R61). See also (R52 for Mr. Tobin’s comments).

   Mr. Miles Moss, a traffic engineer, testified that the angle of the intersection of the driveway fronting U.S. Highway

   1 at 50 degrees is inconsistent with the Monroe County Code provision, which requires the angle to be not less than 80 degrees. According to Mr. Moss the proposed 50-degree angle of the driveway interferes with the driver’s ability to see and yield the right-of-way to approaching vehicles. Mr. Moss also discussed other issues dealing the line of sight, e.g., visibility problems associated with trucks turning into the property from the right-turn lane and the amount of "safe distance" which is required but not proposed for the project. (R73-80).

   There was testimony from members of the public who supported the project. Some indicated that the project would generate additional tax revenue; would enhance the properties around it; help employees; replace a worn-down hotel; and add value in jobs. (R89-91). Another person who traveled outside Monroe County for work, looked forward to the resort being built so that he could remain in Key Largo for employment. (R99-100). See also (R628-630). Other local residents opposed the project. (R81-87, 95-99). See also (R493-494).

   Mr. Bill Cullen of Key Largo, with degrees in architecture and city planning, and representing his family, described the adjacent properties to include a Kentucky Fried Chicken, a Pizza Hut, Taco Bell, and a 50-unit motel across the street that was built in 1951 and owned by his family. (R100-101). See also (R488, 589). He also indicated that there were no Indian mounds on the project site. Mr. Cullen explained that he has "lived next to that property's previous crack infested incarnation, suffering, thievery and disruptions associated with what can best be described as a ghetto. The conversion of this property was envisioned by the county going back to 1986. It was specifically not designated a URM because the county recognized that it sat in the middle of Key Largo's commercial district where highway to bay distance was limited and is significantly removed from the residential communities adjacent." (R102).

   Ms. Jill Patterson, speaking for Smart Planning, owns property with her husband in Rock Harbor within a mile of the project. (R103-104). Ms. Patterson opposed the project. (R104-107).

   Mr. Bud Cornell, a commercial realtor who had sold the property in the past, owns the Hungary Pelican Motel and the Sunset Cove Beach Resort just north of the project site. (R107). See also (R593-594). He supports the project. (R107- 110). See also (R111-113 for two other residents supporting the

   project with one suggesting that it would bring revenue into the community and the other who wanted the property cleaned up and thought that it should be used for positive and economical growth.)

   After the public hearing session was closed, Mr. Tobin and Mr. Rohe presented closing arguments in opposition to the project. (R113-126). Mr. Thomes, on behalf of Northstar, presented additional comments. (R126-129).

   In rebuttal, Mr. Craig explained that Northstar did not apply for a marina. Rather, Mr. Craig represented that the proposed project would not be open to the public, including the existing docking facility, which currently contains 16 slips.

   Mr. Craig stated that the docks are an accessory use. (R130, 186). Mr. Craig further represented that two slips would be used for the hotel's sunset cruise boat and another for a charter boat owned by the resort. Only patrons will be able to use the 14 existing slips. Mr. Craig further advised that the docking facility would not have any refueling facility, storage tanks, boat lifts, or mechanic shops on site. (R186-188). Mr. Buckley represented that there was no planned expansion of the existing facility and further that staff determined "that additional marina study was not needed because in essence this was an accessory structure that was already existing." (R138).

   There was much discussion regarding affordable housing. See, e.g., (R37, 60, 131, 149, 163-165). Mr. Craig offered between 10 and 20 newly constructed affordable housing to be constructed off-site. Mr. Craig also agreed that his client was willing to build them and have them open as a condition of receiving a Certificate of Occupancy for the resort. (R163- 164). Ultimately, the Commission conditioned its approval of the project on those representations. (R188, 219).

   There was argument from Appellants’ counsel and testimony from Ms. Bower that the project should be denied because Northstar did not submit an EDS and a CIS. (R53-54, 57-61).

   In response, Mr. Craig explained that the information submitted by Northstar in its Application was equivalent to the information required in the EDS and the CIS. (R132). See Art. III, § 9.5-69(a)(2)a.(i)-(x), M.C.C. and Art. III, § 9.5-

   69(a)(2)b.(i)-(viii), M.C.C. Mr. Craig stated that Northstar would be required to meet county, state, and federal criteria regarding the permitting process, for example, for the existing docks.

   Mr. McGarry, the Director of Growth Management for Monroe County, advised that the project site was disturbed with scattered native vegetation and that a transplantation plan was required. This testimony responded to the testimony that there were inconsistencies in the Northstar Application that were

   ultimately resolved by staff in its May 9, 2003, Memorandum. (R138, 487). See Endnote 2.

   Mr. McGarry testified that staff had been under direction to streamline staff reports. Mr. McGarry indicated that the factors required for a CIS are addressed in the Application or with respect to the criteria in Section 9.5, M.C.C. He also indicated that the Monroe County Code requires an EDS, which also contains "duplicate information, such things as the habitat size, size of the lot" but "most importantly it is mainly geared toward habitat that is of a sensitive nature." (R39).

   Mr. McGarry testified that the biologist determined that the project site was disturbed with no hammock and that there was a mangrove fringe, which will remain undisturbed. (R139). Mr.

   McGarry testified that he questioned Monroe County's Director of Marine Resources, George Garrett, considering the County's obligation to assess the impacts of the Northstar project once it is moved off-shore, and that Mr. Garrett advised him that the County had little leverage to control activities further off shore over 300 feet into the water which is regulated by the DEP's Marine Patrol. (R139-140).

   Mr. Buckley also stated that sister agencies will await Monroe County's approval of the project before they will grant approval or issue letters of intent. (R140). Staff included the “letters of coordination” in their report so they were not

   overlooked. Id. See also Supplemental Record, July 15, 2004, responses to letters of coordination.

   There was also testimony and discussion regarding the number of parking spaces that should be made available on the project site. See, e.g.,(R135, 150-151, 158, 184, 191).

   Mr. Craig testified that Northstar provided more parking than needed (237 spaces (R247)) and, as a result, he requested the Commission to approve fewer parking spaces, i.e., 100 to 110 spaces. (R48-49).

   Mr. McGarry indicated that 120 parking places were reasonable. (R184). Ultimately, the Commission determined, and Mr. Craig agreed, that Northstar would be required to have 120 spaces for parking and that the surplus land resulting from the reduction of parking places from 237 to 120 shall remain as open space via a grant of conservation easemant. The reduction of parking places was tied to the resort, including the restaurant, being limited to hotel patrons. (R183-185, 191, 220). See also (R175-176, 182).

   There were concerns raised regarding vehicular traffic associated with the Northstar hotel patrons and others utilizing Thurmond Street. (R36-37, 43, 169-170, 190-192). Mr. Craig testified that Northstar considered using Thurmond Street as an entrance for several purposes. Originally, Northstar considered this entrance to be used as an employee entrance but Northstar

   agreed that it was not a good idea. Second, it was suggested that it be used for additional emergency access to the project site. A third reason was to provide access to the project site using the back gate on Thurmond Street. (R36). See also (R170- 174). Ultimately, the Commission concluded that vehicular traffic associated with the Northstar hotel utilizing Thurmond Street shall be restricted to automobiles and furthermore that there shall be no more commercial deliveries, no tractor-trailer or bus usage of Thurmond Street. (R190-193).

   There was also discussion whether the project, including but not limited to the hotel, would be open to the public.

   Mr. Craig stated that it would not. See, e.g.,(R35, 157). Ultimately, the Commission determined that the Northstar hotel and its amenities shall not be open to the public and any departure from that concept shall require and amendment to a Major Conditional Use. (R219).

   The Commission was provided with a copy of an Amended Complaint and a Notice of Lis Pendens filed on behalf of several plaintiffs, including Edward D. Chzran. Northstar and Constantin Zaharia are defendants. (R527-538). As alleged, Mr. Chzran was the owner and seller of Stan & Mary's Restaurant, which was sold to Northstar. In part, the plaintiffs sought rescission of the sale of Stan & Mary's Restaurant. (R533-534). (It appears that this property was deeded to Northstar. (R256-

   258, 261-263, 528).) Mr. Wolfe advised the Commission that Northstar had demonstrated that they own the property notwithstanding the lawsuit. (R180-181). There is no indication in this record whether the lawsuit has been resolved.

   After hearing all the evidence and argument of counsel, the Commission unanimously approved the Major Conditional Use, adopting findings of fact and conclusions of law as follows:

   1. Based on the materials submitted, to develop an eighty-nine-unit hotel with 8,158 square feet of commercial use the applicant will need to document the existence of the twelve-unit motel formerly on-site via a valid Florida license. If documented, then seventy-seven (77) Transferable ROGO Exemptions (TRE) will be required to achieve the total of eighty-nine units. In lieu of said documentation 89 TRE will be required. Additionally fifteen (15) Transferable Development Rights (TDR) will be required to qualify the proposed development to use the maximum net density for the site per Section 9.5-4(D-4) of the Monroe County Land Development Regulations. Therefore, we conclude the appropriate licensing documentation in combination with 77 TRE and

      15 TDR must be obtained or a total of 89 TRE in combination with 15 TDR must be obtained prior to the issuance of a building permit.

      
      

   2. Based on the materials submitted for review the project will require an Environmental Resources Permit from the South Florida Water Management District (SFWMD). Therefore, we conclude that said permit must be obtained prior to the issuance of a building permit.

      
      

   3. Based on the plans submitted a surface water management/conceptual drainage plan is represented on Sheet C-1. Therefore, we

      conclude that the County Engineer must review and approve the surface water management/conceptual drainage plan prior to the issuance of a building permit.

      
      

   4. Based on the material submitted, Florida Department of Transportation (FDOT) permits will be required for any reconfiguration of existing access ways as well was any other appropriate permits identified through the FDOT pre-application process. Therefore, we conclude that the applicant must receive approval from the FDOT via a letter of intent prior to the issuance of a building permit.

      
      

   5. Based on the plans submitted and the comments of the Monroe County Traffic Consultant, the right turn lane (deceleration lane) does not meet FDOT design standards. Therefore, we conclude that the right turn lane must meet the FDOT design standards and be approved by the County Traffic Consultant.

      
      

   6. Based on the material submitted the proposed development must coordinate with the Florida Department of Health if wastewater flows are less than or equal to 10,000 gallons per day or with the Florida Department of Environmental Protection if wastewater flows exceed 10,000 gallons per day. Therefore, we conclude that a complete plan review to determine compliance the provisions of Chapter 64E-6 of the Florida Administrative Code, and Chapter 381 of the Florida Statutes by the appropriate agency is required prior to the issuance of a building permit.

      
      

   7. Based on the plans submitted a transplantation plan has not yet been submitted for review. Therefore, we conclude that a transplantation plan must be reviewed and approved by the County Biologist prior to the issuance of a building permit.

      
      

   8. Based on the plans submitted the proposed development will include renovation of the existing docking facilities, however no expansion of the docking facility is allowed. Therefore, we conclude that all aspects of the proposed development that are proposed in jurisdictional wetlands or submerged lands will be subject to review and approval by both the U.S. Army Corps of Engineers and the Florida Department of Environmental Protection.

      
      

   9. Based on the material submitted all amenities associated with Northstar hotel are for patron use only including the restaurant, docking facilities, boat ramp, swimming pool, etc. Therefore, we conclude that the Northstar hotel and its amenities will not be open to the public. Furthermore, any departure from this "gated" concept will require an Amendment to a Major Conditional Use.

      
      

   10. Based on the plans submitted and the comments of the Planning Commission the proposed development will utilize the maximum net density for the site. The development will also create a need for affordable employee housing that cannot be met on-site. Therefore, we conclude based on sworn testimony of the applicant's representative that not less than ten (10) and not more than twenty (20) newly constructed affordable employee housing units consistent with Section 9.5-4(A-5) and (E-1) will be constructed off-site.

       
       

   11. Based on the statements of the applicant's agent, the signage for the hotel shall be "limited and appropriate." Therefore, we conclude that one, non- electrified, but lighted, sign may be placed in the property's frontage on U.S.1 to indicate the location of the Northstar hotel.

   12. Based on the agreement of the applicant's agent, no motorized personal water craft, including but not limited to jet skis and wave runners, will be rented or allowed to be used from the Northstar's docking facility or boat ramp.

       
       

   13. Based on the agreement of the applicant's agent, the existing docking facility will remain at sixteen slips. Therefore, we conclude that two slips will appropriated for the hotel's two boats described as a sunset cruise boat and a charter boat respectively while the remaining fourteen (14) slips will be for patron use only.

       
       

   14. Based on the agreement of the applicant's agent, any vehicular traffic utilizing Thurmond Street is restricted to automobiles. Therefore, we conclude that there shall be no commercial deliveries, no tractor-trailer or bus usage of Thurmond Street for the purpose of entering or exiting the Northstar hotel.

       
       

   15. Based on Section 9.5-61 of the Monroe County Land Development Regulations the required parking shall be one hundred-twenty

       (120) spaces. Therefore, we conclude that the surplus land resulting from the reduction of parking spaces from 238 to 120 shall remain as open space via a grant of conservation easement (GOCEA).

       
       

   16. Based on the agreement of the applicant's agent, one of the two existing boat ramps shall be removed. Therefore, we conclude that there shall be only one boat ramp available for patron use.

       
       

   17. Based on the plans submitted, all outdoor lighting for the proposed development must meet the criteria of sections 9.5-391-395 with regard to cut-off

   lights and lighting in close proximity to the waterfront.

   
   

   (R216-218).

   
   

   The approval was based on the following conditions:

   
   

   1. The applicant shall document the existence of the twelve-unit motel formerly on-site via a valid Florida License. If documented, then the applicant shall need 77 Transferable ROGO Exemptions (TRE) to construct eighty-nine (89) hotel units; if not documented then the applicant shall utilize 89 TRE to construct eighty-nine (89) units prior to the issuance of a building permit.

      
      

   2. The applicant shall obtain an Environmental Resources Permit from the South Florida Water Management District prior to the issuance of a building permit.

      
      

   3. The County Engineer shall review and approve the surface water management/ conceptual drainage plan prior to the issuance of a building permit.

      
      

   4. The applicant shall obtain Florida Department of Transportation (FDOT) permits for any reconfiguration of access ways and any other appropriate permits identified through the FDOT pre-application process prior to the issuance of a building permit.

      
      

   5. The proposed right turn, deceleration lane shall meet FDOT design criteria and be approved by the Monroe County Traffic Consultant prior to the issuance of a building permit.

      
      

   6. A complete plan review to determine compliance with the provisions of Chapter 64E-6 of the Florida Administrative Code and Chapter 381 of the Florida Statutes for on- site wastewater treatment by the appropriate agency (Florida Department of Health, if

      flow is less than 10,000 gallons a day or Florida Department of Environmental Protection, if flow is more than 10,000 gallons a day) prior to the issuance of a building permit.

      
      

   7. The transplantation plan must be submitted and approved by the County Biologist prior to the issuance of a building permit.

      
      

   8. All aspects of the proposed development that are in jurisdictional wetlands or submerged lands, including the renovation of the existing sixteen slip docking facility must be reviewed and approved by both the

      U.S. Army Corps of Engineers and the Florida Department of Environmental Protection prior to the issuance of a building permit.

      
      

   9. The Northstar hotel and its amenities shall not be open to "the public" and any departure from this "gated" concept shall require an Amendment to a Major Conditional Use.

      
      

   10. Not less than ten (10) and not more than twenty (20) newly constructed affordable housing employee housing units consistent with Sections 9.5-4(A-5) and 9.5- 4(E-1) shall be constructed off-site. The employee units shall be completed prior to the issuance of a Certificate of Occupancy for the Northstar hotel.

       
       

   11. One non-electrified, but lighted, sign shall be placed in the property's frontage on U.S.1 to indicate the location of the Northstar hotel.

       
       

   12. No motorized personal water craft, including but not limited to, jet skis and wave runners will be rented from or allowed to be used from the Northstar's docking facility.

   13. The existing docking facility will remain at sixteen (16) slips with two slips being appropriated for the hotel's sunset cruise boat and charter boat while the remaining fourteen (14) slips will be for patron use only.

       
       

   14. Vehicular traffic associated with the Northstar hotel utilizing Thurmond Street shall be restricted to automobiles and there shall be no commercial deliveries, no tractor trailers or bus usage of Thurmond Street.

       
       

   15. Pursuant to Section 9.5-61 of the Monroe County Land Development Regulations the required parking shall be one-hundred twenty (120) spaces. The surplus land resulting from the reduction of parking spaces from two-hundred thirty-eight (238) to one-hundred twenty (120) shall remain as open space via a Grant of Conservation Easement (GOCEA).

       
       

   16. One of the two existing boat ramps shall be removed leaving one boat ramp for patron use.

       
       

   17. All outdoor lighting for the proposed development must meet the criteria of Sections 9.5-391-395 with regard to cut-off lights and lighting in close proximity to the waterfront.

   
   

   (R218-220). See also (R188-193).

   
   

3. 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." Art. XIV, § 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 upon competent substantial evidence or that the proceeding before the planning commission on which the findings were based did not comply with the essential requirements of law.

Id. "The hearing officer's final order shall be the final administrative action of Monroe County." Art. XIV, § 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 on appeal is not whether the record contains competent substantial evidence supporting the view of the appellant; rather, the question is whether competent substantial evidence supports the findings made by the Commission. Collier Medical Center, Inc. v. Department of Health and Rehabilitative Services, 462 So. 2d 83, 85 (Fla. 1st DCA 1985). See also

Dusseau v. Metropolitan Dade County, Board of County Commissioners, 794 So. 2d 1270, 1275-1276 (Fla. 2001); Dorian v.

Davis, 874 So, 2d 661, 663 (Fla. 5th DCA 2004). In Dusseau, supra, the court stated:

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 advantage point in such matters. This 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.

Dusseau, 794 So. 2d at 1275-1276.

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.

Appellants contend that they were denied procedural due process of law and that the Commission departed from the essential requirements of law by denying the Appellants party status and the right to cross-examine witnesses during the Commission hearings. See pages 14 and 15, supra. The Commission did not depart from the essential requirements of law in interpreting the Monroe County Code regarding these issues.

Osborn raises other procedural due process issues. See page 3, supra.

Under the Monroe County Code, the review criteria are limited and do not include consideration of whether procedural

due process was afforded by the Commission. Because the decision to grant or deny a permit is a quasi-judicial action, Appellants may, if they wish, seek review of this final order by filing a petition for the writ of certiorari with the appropriate circuit court. See Upper Keys Citizens Association and Florida Keys Chapter Izaak Walton League of America v.

Monroe County and Florida Keys Electric Cooperative Association, Inc., Case No. 01-3914 (DOAH March 5, 2003), and cases sited therein at page 31.

Smart Planning made the Commission aware of the litigation involving Stan & Mary's Restaurant, but the record on appeal does not reveal the outcome of this litigation. The record includes competent substantial evidence that Northstar is the owner of the property where Stan & Mary's Restaurant was located. The Commission did not depart from essential requirements of law in considering the Stan & Mary's Restaurant for the purpose of satisfying part of the density analysis.

Smart Planning argues that the Commission departed from the essential requirements of law in approving the Northstar project in so far as approval is based on the hotel and its amenities being closed to public.

"The purpose of the [Suburban Commercial 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." Art. VII, § 9.5-206, M.C.C. Hotels providing

25 or more rooms are authorized in the suburban commercial district. Art. VII, § 9.5-235(c)(4), M.C.C. Planning staff determined that the project was in compliance with Section 9.5- 206, M.C.C., notwithstanding staff's finding and conclusion that the resort and its amenities will not be open to the public. (R488, 491).

Smart Planning contends that Northstar's project is not intended primarily to serve the needs of the immediate planning area of the project site.

Planning staff described the community character of the immediate vicinity of the project as a mix of commercial and residential uses. Several members of the public who supported the Northstar project indicated that it would generate additional tax revenue, help employees, and add value in jobs. Also, some believed that the project would enhance the area due to the deteriorated condition of the existing project site. (R89-113). There is competent substantial evidence to support the Commission's approval of the project.

Smart Planning contends that the Commission departed from the essential requirements of law when it approved the project's

angular entrance way, which is shown on the Site Plan (A-1) an angle of 50 degrees.

Article VII, Section 9.5-296(m), M.C.C., provides that "[s]treets shall be laid out so as to intersect as nearly as possible at right angles, and no street shall intersect any other street at less than eighty (80) degrees.") (Osborn makes similar issues with respect to traffic and entrance way considerations.

Northstar submitted a detailed traffic study, as supplemented, in support of its Application. Monroe County's traffic consultant, Mr. Shanmugam noted that several changes would have to be made to meet design standards. (R413). See also (R168-169). Planning staff recommended conditions (R491), which were adopted by the Commission. (R216-217). See pages 28-30, supra. In essence, the project was approved with conditions, which must be met prior to the issuance of a building permit. See Art. III, § 9.5-61, M.C.C. ("Conditional uses are those uses which are generally compatible with the other land uses permitted in a land use district, which require individual review of their location, design and configuration and the imposition of conditions in order to ensure the appropriateness of the use at a particular location.") See also

Art. III, §§ 9.5-62 and 9.5-67, M.C.C. The Commission did not

depart from the essential requirements of law in approving the project subject to these conditions.

There is competent substantial evidence to support the Commission’s finding that the project site had an existing docking facility with 16 slips. (R130, 138, 186-188). Planning staff determined that Northstar did not plan for any expansion of the existing facility and further determined "that any additional marina study was not needed because in essence this was an accessory structure that was already existing." (R138). The Commission did not depart from the essential requirements of law in implicitly determining that the 16-slip docking facility, will be use solely by patrons of the resort and hotel, which is the principal use of the property. See generally Art. I, § 9.5-

4 (A-2), M.C.C., for the definition of accessory uses or accessory structures which mean, in part, "a use or structure that is subordinate to and serves a principal use or structure; is subordinate in an area extend and purpose to the principal use or structure served; contributes to the comfort, convenience and necessity of occupants of the principal use or structure served; and is located on the same lot or on contiguous lots under the same ownership and the same land use district as principal use or structure."

Osborn contends that the Commission's decision should be reversed because the Commission did not require a deed

restriction to prohibit the use of the hotel facilities by the public. The Commission expressly conditioned its approval of the project based on its finding and conclusion that the "hotel and its amenities shall not be open 'to the public' and any departure this 'gated' concept shall require an Amendment to a Major Conditional Use." (R217, 219). The Commission did not depart from the essential requirements of law in not requiring a deed restriction to supplement the Commission’s finding and condition.

Osborn further contends that the Commission departed from the essential requirements of law in approving this project based upon its approval of 120 parking spaces. After much discussion during the public hearing, the Commission concluded that 120 parking spaces was adequate given the requirements of the project and further found and concluded "that the surplus land resulting from the reduction of parking spaces from 238 to

120 shall remain as open space via a grant of conservation easement. (R218-222). There is competent substantial evidence to support requiring Northstar to provide 120 parking spaces and conditioning the approval based on the requirement of Northstar providing Monroe County with more open space via a grant of conservation easement.

Osborn also contends that the Commission departed from the essential requirements of law in conditioning approval of the

project based on an unenforceable condition, i.e., that vehicular traffic associated with the hotel utilizing Thurmond Street shall be restricted to automobiles with no commercial deliveries and no tractor trailer or bus usage of Thurmond Street. (R220). There was evidence presented to the Commission regarding the traffic situation on Thurmond Street and, in particular, at the gate entrance to the project site. The evidence supports this condition, which is subject to enforcement, and there is no showing that the Commission did not have the authority to impose this condition.

Osborn argues that the Commission departed from the essential requirements of law by approving the project, in part, by allowing Northstar to provide for the construction of off- site affordable housing. There is competent substantial evidence to support the need for affordable housing in light of the project and that designing and constructing affordable housing off-site is appropriate to satisfy the need. (R217, 219).

Osborn contends that the Commission departed from the essential requirements of law by not requiring Northstar to provide an EDS and a CIS. See pages 20-22, supra. See also Endnote 4

The Monroe County Code provides that "[a]s a part of the application for Major Conditional Use, a applicant shall be

required to submit that following, except for those inappropriate to the proposed development due to the limited size or scale of the development as determined by the planning director: a. an environmental designation survey consisting of" numerous items. See Art. III, § 9.5-69(a)(2)a.(i)-(x), M.C.C. The Monroe County Code also requires a CIS. Art. III, § 9.5- 69(a)(2)b.(i)-(viii), M.C.C.

Attachment A, which accompanied Northstar's Major Conditional Use Application, sets forth numerous documents which may be required to be submitted with the application. The applicant is directed to consult with a planner. Photographs of the site are necessary in all cases. (R223). It appears that the application, with attachments, provided the requested information.

Planning staff described the project and also determined that about one-third of the site is vacant and approximately two-thirds of the site houses a variety of derelict vehicles and other non-functioning equipment and machinery as well as the structures, which are described by staff. (R486, 489).

The site is also disturbed with scattered native growth. The staff recommended that a transplantation/replanting plan must be reviewed and approved "by the Upper Keys Biologist prior to the issuance of a building permit." (R487, 492). Staff also determined that "[t]he proposed redevelopment will not adversely

affect a known archaeological, historical, or cultural resource." (R490).

Several letters of coordination accompanied Northstar's application. (R269-270). The record contains responses. See Supplemental Record, July 15, 2004. In part, the South Florida Water Management District’s staff reviewed the information submitted on November 26, 2002, regarding the Northstar Resort, and based upon submitted information, determined that "it appears that an Environmental Resource Permit will be required." Id. See also December 2, 2002, letter from DEP and December 28, 2000, letter from the Department of Community Affairs.

Northstar submitted numerous plans with its Application including but not limited to a Site Plan (A-1). The Site Plan indicated the location of an "unaltered natural shoreline" and also included a statement that existing scattered red mangroves would remain in the area indicated. (R281). Other shoreline areas are designated. Id. The Application also included a conceptual drainage plan, required landscaping plan, and other drawings. (R307, 308).

With respect to a CIS, Northstar's Application complied with the requirements of the Monroe County Code including but not limited to providing detailed descriptions of the proposed development, assessments of public facilities and water supply,

public facilities-waste water management, traffic studies, and letters of coordination.

Based on all the evidence presented, the Commission concluded that Northstar will be required to obtain necessary permits from, including but not limited to, the South Florida Water Management District, the Florida Department of Health, the

U.S. Army Corps of Engineers, and DEP. (R216-219).

The Commission did not depart from the essential requirements of law in approving the project, notwithstanding the lack of a formalized EDS or CIS.

Finally, Osborn contends that the Commission departed from the essential requirements of law in approving the project without requiring Northstar to comply with NROGO.

Staff determined that the current project site, in part, consisted of 9,250 square feet of existing commercial floor area of which 8,158 square feet of commercial floor area will be utilized for the proposed redevelopment. (R487, 489). See also (R372-380). The Site Plan (A-1) dated May 2, 2002, indicated 86,074.75 square feet of transient residential use, 8,185 square feet of commercial use, and 190,425.10 square feet of accessory use. (R281). (Osborn contends that Northstar’s proposal to use between 12,000 to 37,454.11 square feet of accessory use is improperly exempt from NROGO.)

During the public hearing, Osborn's counsel, relying on Ms. Bower, briefly suggested that every square foot of commercial use and every square foot of hotel room is proposed for the project. (R52). Ms. Bower contended in one recorded paragraph that there was over 17,000 square feet of commercial square footage that would be exempt from NROGO if the project were approved. (R61). See also pages 16-17, supra.

Planning staff had the opportunity to review the details of the project, including the Site Plan (A-1), which included the separate designations/calculations for transient residential use, commercial use, and accessory use. Planning staff determined the number of TREs and TDRs that would be required to place 89 transient residential units and 8,158 square feet of commercial floor area on site. Planning staff also determined the appropriate density/intensity ratios and percentages. (R486, 490). These calculations were the subject of

Ms. Conaway’s January 25 and March 18, 2002, letters, and in particular, her statement on January 25, 2002, that “[u]ses such as restaurants, commercial retail shops, gymnasiums and other similar uses not absolutely necessary to a hotel shall be considered as commercial floor area” and in her statement of March 18, 2002, that "[a]ny commercial floor area in excess of the existing 9,250 s.f. would require competition in the Non- residential Rate of Growth Ordinance (NROGO) for the excess once

the NROGO is affective." (R372, 376)(emphasis in original). See also (R384).

Based upon all the evidence presented during the public hearing, the Commission approved Northstar's request for a Major Conditional Use for the construction of a resort hotel with 89 units, 8,158 square of commercial use and other amenities. (R218).

This point on appeal was presented in a cursory fashion during the public hearing. Nevertheless, the Commission implicitly rejected the assertion that Northstar proposed to construct more than 8,158 square feet of commercial use and thus, rejected the argument that the alleged excess of accesory uses should have been subject to competition pursuant to NROGO. In so doing, the Commission did not depart from the essential

requirements of law.

DECISION

Based on the foregoing, the Commission's decision in Resolution No. P47-03 is AFFIRMED.

DONE AND ORDERED this 1st day of November, 2004, in Tallahassee, Leon County, Florida.

S

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 1st day of November, 2004.

ENDNOTES

1/ Prior to the filing of the Northstar Application, in a letter of understanding of January 25, 2002, as modified on March 18, 2002, Ms. Conaway determined that the project site contained “multiple commercial uses with a combined total of 9,250 square feet.” (R376). See also (R487, 489, Staff Memorandum, May 9, 2003,) and (R245, Northstar’s density analysis).

2/ During the public hearing before the Commission, Mr. Craig acknowledged and Mr. Buckley confirmed that the site is disturbed with scattered vegetation and a transplantation plan is required and must be approved by the County Biologist prior to the issuance of a building permit. (R138-139, 219). The mangrove area is identified on the Site Plan (A-1) and will remain undisturbed. (R139, 281).

3/ The Application stated and Resolution No. P47-03 approved Northstar’s Application to use 8,158 square feet of commercial use. (R215-216, 218, 221-222). The Site Plan (A-1) dated May 5, 2002, refers to 8,185 square feet of commercial use. (R28).

4/ Notwithstanding Staff’s determination of compliance with Section 9.5 (R488), Staff’s Memorandum does not expressly cite to the provisions of Article III, Section 9.5-69, M.C.C.,

dealing with Major Conditional Uses and whether the project is consistent with applicable provisions. For example, Article III, Section 9.5-69(a)(2), M.C.C., provides that " [a]s a part of the application for major conditional use, an applicant shall be required to submit the following, except for those inappropriate to the proposed development due to the limited size or scale of the development as determined by the planning director." These items include, in part, an EIS consisting of several enumerated items and a CIS also consisting of several items. See (R380, Ms. Conaway stating: “The applicant will be required to submit a community impact statement provided the conditional use is sought.”)

COPIES FURNISHED:

Lee Robert Rohe, Esquire Lee Robert Rohe, P.A. Post Office Box 420259

Summerland Key, Florida 33042

Timothy Nicholas Thomes, Esquire Timothy Nicholas Thomes, P.A.

99198 Overseas Highway, Suite 8 Post Office Box 3318

Key Largo, Florida 33037

Derek V. Howard, Esquire Morgan & Hendrick

Post Office Box 1117

Key West, Florida 33041-1117

Andrew M. Tobin, Esquire Post Office Box 620

Tavernier, Florida 33070-0620

Nicole Petrick, Planning Commission Coordinator Monroe County Growth Management Division

2798 Overseas Highway, Suite 400

Marathon, Florida 33050

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.

Docket for Case No: 03-004720

Orders for Case No: 03-004720