STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN T. SLATTERY AND SUSAN SLATTERY,

Appellants,

vs.

MONROE COUNTY PLANNING COMMISSION,

Appellee.

/

Case No. 17-6521

FINAL ORDER

In this administrative appeal to the Division of Administrative Hearings (DOAH), the Appellants, John T. Slattery and Susan M. Slattery (the Appellants), seek review of Resolution No. P18-16 (Resolution) rendered by the Appellee, Monroe County Planning Commission (Planning Commission) on September 7, 2016. The Resolution upheld the denial of the Appellants’ building permit application for a single-family detached dwelling unit on Parcel 18, a portion of Tract A, Twin Lakes First Addition, according to the Plat thereof, recorded in Plat Book 5, Page 68, of the Public Records of Monroe County (County).

A two-volume Record of the underlying proceeding before the Planning Commission was filed with DOAH by its Clerk on December 7, 2017. Briefs were filed by the parties and oral

argument was held by video teleconference at sites in Marathon and Tallahassee on January 22, 2018.

BACKGROUND

On December 2, 2015, the Appellants applied for a building permit to construct a single-family detached residential dwelling unit (Application No. 15306367). The subject property is legally described as Parcel 18, a portion of Tract A, Twin Lakes First Addition, according to the Plat thereof, recorded in Plat Book 5, Page 68, of the Public Records of Monroe County, Florida, having real estate number 00551000-001800. The Twin Lakes First Addition plat was duly recorded and approved by the Board of County Commissioners on March 13, 1962. There are no fixed boundaries, numbered, or lettered lots or blocks (or parcels) identified on the recorded plat for Tract A. Tract A was subsequently divided into 41 parcels in the early 1970s that were never shown as lots or parcels on a plat, re-plat, or amended plat approved by the County and recorded by the Clerk of Court. Thus, the parcels were created without County plat approval. Plat approval has been required by the County’s Land Development Regulations since 1963. See also § 177.071, Fla.

Stat.

The County’s Department of Planning Department determined that the subject property did not meet the definition of “lot” and therefore did not meet the residential density requirements

of the Improved Subdivision (IS) Land Use District in order to allow the proposed development of a dwelling unit. In the Staff Report to the Planning Commission, the Department noted the definitions of “lot” in section 101-1, Monroe County Code. “Buildable lot” is defined in section 101-1 as “a duly recorded lot that complies with each and every requirement of the county's zoning and subdivision codes immediately prior to the effective date of the ordinance from which this chapter is derived.” As amended by Ordinance 003-2015, adopted January 21, 2015, and effective April 2015, “lot” is defined in

section 101-1 as “a duly recorded lot as shown on a plat approved by the county.”

With the adoption of Monroe County’s 1986 Land Development Regulations and zoning maps, the Appellants’ property was designated as IS zoning. The IS Land Use District requirements were that a lot owner was entitled to develop a single-family detached dwelling on the lot, provided that the “lot was a lawful buildable lot eligible for a building permit on the effective date of these regulations.” A buildable lot was defined as “a duly recorded lot that complies with each and every requirement of the County’s zoning and subdivision codes immediately prior to the effective date of this Plan.”

See § 9-303, Monroe Cnty. Code (1986). The stated purpose of

the IS Land Use District was “to accommodate the legally vested

residential development rights of the owners of lots in subdivisions that were lawfully established and improved prior to the adoption of this chapter.” This purpose statement has not changed since 1986. See § 130-36, Monroe Cnty. Code. Under section 130-157, Monroe County Code, the IS Land Use District has a maximum residential allocated density of one (1) dwelling unit per lot.

On December 4, 2015, the Department sent the Appellants notice that the Department failed the planning review of their building permit application. On December 30, 2015, the Department received Appellants’ application for appeal to the Planning Commission, requesting that the denial be overturned.

The appeal hearing was held before the Planning Commission on July 26, 2016. At the hearing, the County’s Planning Director stated that since 1986, the County has issued permits that were inconsistent with the IS zoning density standards.

However, the subdivision of Tract A into parcels was never shown on a plat, re-plat, or amended plat approved by the County and recorded by the Clerk of Court. The Planning Director’s position was that Ordinance 003-2015 clarified the definition of “lot,” but did not change it. Therefore, the Appellants’ property did not meet the definition of “lot” and did not meet the residential density requirements of the IS Land Use District in order to allow the proposed development of a dwelling unit.

By motion that passed, the Planning Commission voted to uphold the Planning Director’s decision.

On September 7, 2016, the Planning Commission adopted Resolution No. P18-16, denying the Appellants’ appeal request in accordance with the July 26, 2016, vote. The Resolution set forth findings of fact and conclusions of law based on the record evidence and testimony at the hearing. This appeal ensued.

ISSUES

The Appellants raise several issues on appeal, including:

1. whether Ordinance 003-2015 did not comply with the constitutional single subject rule and did the County’s application of the Ordinance violate the Florida Constitution;

2. whether the County exceeded its police power in enacting Ordinance 003-2015 and failed to follow the essential requirements of the law when it applied the ordinance to the Appellants’ property; (3) whether the Planning Commission’s decision violated its obligations to support, protect, and defend the Unites States and Florida Constitutions; and (4) whether the Appellants were deprived of their fundamental due process rights during the Commission hearing.

   
   

   LEGAL DISCUSSION

   
   

   Standard of Review

   
   

   Pursuant to a contract, DOAH has jurisdiction to consider this appeal under section 102-213, Monroe County Code. The hearing officer “may affirm, reverse or modify the order of the planning commission.” § 102-218(b), Monroe Cnty. Code. The hearing officer’s order is subject to the following limitations:

   The hearing officer’s order may reject or modify any conclusion of law or interpretation of the 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 the law.

   
   

   Id. Thus, the undersigned must determine whether the

   
   

   findings in the Resolution are based on competent substantial evidence, and whether the proceeding on which the findings were based complied with the essential requirements of the law.

   The issue of whether the Commission complied with the essential requirements of the law is synonymous with whether the Commission “applied the correct law.” Haines City Cmty. Dev. v.

   Heggs, 658 So. 2d 523, 530 (Fla. 1995). When used as an

   
   

   appellate standard of review, competent evidence has been construed to be “legally sufficient evidence” or evidence that is “sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached.” DeGroot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957).

   Substantial evidence is evidence that provides a factual basis from which a fact at issue may reasonably be inferred. Id.

   Procedural or Due Process Violations

   
   

   Unlike the three-tier judicial review of final administrative action by a circuit court, procedural or due process violations may not be considered. See, e.g., Osborn v. Monroe Cnty. Planning Comm'n, Case No. 03-4720 (Fla. DOAH

   Nov. 1, 2004)(“the review criteria are limited and do not include consideration of whether procedural due process was afforded by the Commission”). Therefore, the Appellants argument that procedural due process violations occurred during the appeal hearing in front of the Planning Commission, is not within the scope of this appeal.

   Constitutional Issues

   
   

   Judicial review of final administrative action by a circuit court is the proper forum to address constitutional claims.

   See Wilson v. Cnty. of Orange, 881 So. 2d 625, 631-632 (Fla. 5th DCA 2004); see also Holiday Isle Resort & Marina Assoc. v.

   Monroe Cnty., 582 So. 2d 721, 722 (Fla. 3d DCA 1991).

   
   

   Therefore, the Appellants arguments that the County’s and Planning Commission’s actions violated various provisions of the United States and Florida Constitutions are not within the scope of this appeal.

   Correct Application of the Law

   
   

   The issue of whether the Planning Commission complied with the essential requirements of the law is synonymous with whether the Planning Commission “applied the correct law.” Haines City

   Cmty. Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995). One of the first rules of statutory construction is that the plain meaning of the statute (ordinance) is controlling. See, e.g., Beshore v. Dep't of Fin. Servs., 928 So. 2d 411, 412 (Fla. 1st

   DCA 2006). If the language is clear and unambiguous, as it is here, there is no need to engage in statutory construction. Id.

   at 412.

   
   

   Section 101-1, Monroe County Code, defines “[b]uildable lot” as “a duly recorded lot that complies with each and every requirement of the county's zoning and subdivision codes immediately prior to the effective date of the ordinance from which this chapter is derived.” “Lot” is defined in section 101-1 as “a duly recorded lot as shown on a plat approved by the county.” Under section 130-157, Monroe County Code, the IS Land Use District has a maximum residential allocated density of

   one (1) dwelling unit per “lot.”

   
   

   It is undisputed that the subject property is not recorded on a plat, re-plat or amended plat. Therefore, the Appellants’ property does not meet the definition of “lot” and does not meet the residential density requirements of the IS Land Use District in order to allow the proposed development of a dwelling unit.

   Vested Rights

   
   

   The Appellants argue that their property is legally vested because it satisfies each of the criteria and the purpose of the IS Land Use District, and the County has approved building permits for other parcel owners in the subdivision. The County’s Planning Director acknowledged the County has issued permits that were inconsistent with the IS Land Use District requirements. The subdivision of Tract A into parcels was never approved and recorded on a plat, re-plat, or amended plat. The IS Land Use District entitled a lot owner to develop a single family detached dwelling on a “buildable lot,” which was defined as “a duly recorded lot that complies with each and every requirement of the County’s zoning and subdivision codes immediately prior to the effective date of this Plan.”

   See § 9-303, Monroe Cnty. Code (1986). The record reflects that no prior owner of the property applied for a vested rights determination or challenged adoption of the 1986 Land Development Regulations.

   
   

   “Florida common law provides that vested rights may be established if a property owner or developer has (1) in good faith reliance, (2) upon some act or omission of government,

3. made such a substantial change in position or has incurred such extensive obligations and expenses (4) that it would make it highly inequitable to interfere with the acquired right.” Monroe Cnty. v. Ambrose, 866 So. 2d 707, 710 (Fla. 3d DCA 2003).

Mere purchase of land does not create a right to rely on existing zoning. Id. at 711. The Appellants did not rely on any direct representations from the County. Instead, the Appellants formulated a subjective expectation based on their own observations and research. “A subjective expectation that land can be developed is no more than an expectancy and does not translate into a vested right to develop the property.” Id. at

711 (citing Namon v. Dep’t of Envtl. Reg., 558 So. 2d 504 (Fla. 3d DCA 1990).

The County’s Planning Director acknowledged the County has issued permits that were inconsistent with the IS Land Use District requirements. Even if those permits were mistakenly issued in violation of the law, the Appellants do not have the right to obtain a building permit by making an equitable estoppel argument against the County. See, e.g., Corona Props. of Fla., Inc. v. Monroe Cnty., 485 So. 2d 1314 (Fla. 3d DCA

1986)(reflecting that estoppel may not be asserted against a

county for a permit issued in error); Citrus Cnty. v. Halls

River Dev., Inc., 8 So. 3d 413, 423 (Fla. 5th DCA 2009)(“[E]quitable estoppel will not lie for a permit issued contrary to law as result of mutual mistake of fact.”).

The Appellants’ property did not satisfy the criteria and the purpose of the IS Land Use District, and the County is not estopped from denying the Appellants’ building permit application.

DECISION

Based on the foregoing, the Planning Commission’s denial of the Appellants’ building permit is affirmed.

DONE AND ORDERED this 23rd day of March, 2018, in Tallahassee, Leon County, Florida.

S

FRANCINE M. FFOLKES

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of March, 2018.

COPIES FURNISHED:

Ilze Aguila, Senior Coordinator County of Monroe

Board of County Commissioners Suite 410

2798 Overseas Highway

Marathon, Florida 33050 (eServed)

Van D. Fischer, Esquire VDF Law, PLLC

Post Office Box 420526 Summerland Key, Florida 33042 (eServed)

Derek V. Howard, Esquire

Monroe County Attorney's Office 1111 12th Street, Suite 408 Post Office Box 1026

Key West, Florida 33041-1026 (eServed)

NOTICE OF RIGHT TO JUDICIAL REVIEW

Pursuant to article VI, section 102-218(c), Monroe County Code, this Final Order is the final administrative action of the county. It is subject to judicial review by common law petition for writ of certiorari to the circuit court in and for Monroe County, Florida.

Docket for Case No: 17-006521

Orders for Case No: 17-006521