Findings Of Fact Respondent was registered with Petitioner as a pool contractor, Registration No. RP0017996, from January to June 30, 1974 (Petitioner's Composite Exhibit 2.) On February 22, 1974, Respondent entered into a contract with John G. Hartong, 813 Kings Bay Drive Southwest, Crystal River, Florida, to construct a screened swimming pool for the total price of $7,331.25. Construction of the pool began in July of 1974. Prior to that time, Respondent sent his foreman to the building department of Citrus County to obtain a building permit for the job because the county had issued such permits for work in Crystal River in the past. In actuality, the City of Crystal River began issuing such permits for construction work in that community commencing June 15, 1974. Neither Citrus County nor the City of Crystal River issued a permit for the work at the Hartong residence. Respondent assumed that his foreman had obtained the necessary permit and did not inquire into the matter further. City officials of Crystal River discovered the job in progress in late July. At that time, the gunite for the pool was about two-thirds completed and it would have been impossible to inspect unless everything was "pulled out". Respondent had been ill during this period and receiving daily medical checkups. As a result, he had entrusted his foreman with a great deal more responsibility than usual. Respondent normally had five to ten pool jobs in progress at the same time. In August, 1974, Respondent suffered a heart attack and was hospitalized. Work apparently ceased on the Hartong pool at this point or somewhat earlier and, after numerous attempts to contact Respondent as to completion of the work, Mr. Hartong secured another contractor to do so. However, this firm required that Hartong obtain a release from Respondent prior to taking over the work. Hartong therefore visited Respondent in the hospital and the parties settled the matter by executing a release. Prior to entering the hospital, Respondent had been on the Hartong job on only two different occasions and his first contact from city officials came just before he was hospitalized. After the parties had entered into their settlement, Respondent did no further work on the pool. In October, 1974, the building official of Crystal River advised Respondent by correspondence that he should obtain a permit for the work and furnished him an application for a local Certificate of Competency as a contractor. Although Respondent submitted an application for such a certificate, the city tabled the application pending his compliance with city ordinances concerning permit requirements for the Hartong pool. In view of his release from Hartong, Respondent did not pursue the matter any further. Hartong had been particularly disturbed by the fact that electrical wires from a switch on the wall of his house ran to the pool deck and when the switch was on, the wires were live. He was fearful that his children might put them in the water and create a shock hazard (Testimony of Pulver, Hartong, duPlanti, Respondent; Petitioner's Composite Exhibit 3, Petitioner's Exhibits 4 & 6.) About the middle of 1974, Respondent entered into a contract with Craig Marlett to build a pool. It was not established at the hearing as to whether this work was to be performed in Citrus County or within the city limits of Crystal River. Respondent testified that there was no building permit obtained for this work, but that he had subcontracted the job to his foreman and provided him with funds to obtain a proper permit. However, he did not check to see if one had been obtained (Testimony of Respondent, Pulver, Petitioner's Exhibit 7.) Approximately February 28, 1975, pursuant to a pool contract with Jack Freeman, Ocala, Florida, Respondent commenced work by excavating the hole on the site. He testified that he was not aware that he did not have a building permit when he began this work, but obtained it the following Monday. In fact, the application for a building permit to Alachua County was submitted on March 4, 1975, a Tuesday, and the permit was issued on March 10, 1975. Article XIV, Section V, Zoning Regulations for Alachua County, Florida requires that no building shall be constructed, reconstructed, altered or extended unless a building permit has been issued, indicating that such use complies with county requirements (Testimony of Respondent, Petitioner's Exhibits 5 & 8.) Respondent has been building swimming pools for approximately 10 years. His experience includes construction of approximately 700 pools (Testimony of Respondent.)
Recommendation That the allegations against Respondent be dismissed. DONE and ENTERED this 7th day of April, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: David Linn, Esquire 217 South Adams Street Tallahassee, Florida James A. Shook, Esquire 415 North West First Avenue Post Office Box 924 Ocala, Florida 32670
Findings Of Fact Petitioner River Trails is the developer of a condominium community in Palm Beach County known as River Walk. River Walk is contiguous to and immediately adjacent to 2600 feet of South Florida Water Management District (hereinafter "SFWMD") property bordering Canal C-18 in Palm Beach County. The right- of-way adjacent to C-18 as well as the bottom of C-18 is owned by SFWMD. C-18 is not in an area designated as Outstanding Florida Waters. As required by Section 403.813(2), Florida Statutes, River Trails sought and obtained on January 12, 1984, a permit from the SFWMD to construct a dock and boat ramp in Canal C-18. The permit conveyed no property rights to River Trails. On October 12, 1984, River Trails asked DER to confirm that River Trails' proposed boat ramp qualified for an exemption pursuant to Section 403.813(2)(c), Florida Statutes. By letter dated December 20, 1984, DER informed River Trails that the proposed boat ramp did qualify for the exemption and, therefore did not require any permit from DER. On October 18, 1984, River Trails asked DER to confirm that River Trails' proposed dock of 1,000 square feet or less qualified for an exemption from DER's permitting authority pursuant to Section 403.813(2)(b), Florida Statutes. However, on November 30, 1984, DER informed River Trails that its proposed dock did not qualify for the exemption because there was already an existing dock on SFWMD property on Canal C-18. As authority for its position, DER cited the following sentence in DER Rule 17-4.04(9)(c), Florida Administrative Code: "A private dock is a single pier at a parcel of property." On the 2600 feet of SFWMD-owned right-of-way contiguous to River Trails, there are presently no docks. On SFWMD-owned right-of-way east of River Trails, between River Trails and the southwest fork of the Loxahatchee River, there are two docks approximately 300 feet apart located in front of single-family residences. DER contends all contiguous property owned by an individual, group or entity, including a water management district, constitutes a "parcel of property" and accordingly does not recognize River Trails' claim to an exemption because of the existence of these docks. Prior to River Trails' request that DER confirm River Trails' right to an exemption, DER had not interpreted water management district-owned right-of-ways to be a "parcel of property" within the meaning of Rule 17- 4.04(9)(c). In the past, the SFWMD has permitted numerous docks of less than 1,000 square feet on SFWMD-owned right- of-ways. Copies of these permits were routinely forwarded to DER. While these docks were and are on right-of-ways which DER now defines as a "parcel" within the meaning of Rule 17-4.04(9)(c), DER has not required permits for these docks. The DER employees who interpret the rule in question as part of their duties and whose depositions were introduced at hearing do not agree on the configuration which constitutes a single pier, on the degree of ownership or control required over a parcel of property by an applicant for an exemption, or on the definition of a parcel of property. DER has failed to adequately explain its deviation from past agency practice in interpreting SFWMD right-of- way as a parcel of property. But for DER's new interpretation of the term "parcel of property" found in Rule 17-4.04(9)(c), Florida Administrative Code, River Trails' proposed dock meets the statutory and rule requirements for an exemption from obtaining a permit from DER.
Findings Of Fact Petitioner owns property located at 1315 N. Betty Lanes Lots 8 and 9, Block E, Pine Ridge Subdivision in Clearwater, Florida. This property is zoned "CO" (general commercial) The consumption of alcoholic beverages on, premises is not permitted on premises zoned "CO," and therefore requires conditional use approval. Petitioner applied for conditional use approval on or about February 20, 1986 and on March 18, 1986 the Planning and Zoning Board disapproved Petitioner's application for conditional use. Paula Harvey, Planning Directors recommended approval because her review of the application indicated the location was suitable for a restaurant and lounges and the police department indicated no reason for disapproval. She did condition her recommendation on Petitioner demonstrating that all parking requirements of the Land Development Code would be met. A 6,000 square foot; two-story building is located on the subject property, but Petitioner only intends to use 2500 square feet for a restaurant and lounge. Petitioner currently operates a bar serving beer and wine directly across Overlea Lane on Beverly Lanes about forty feet away from the subject property. He testified he intends to close his present bar if he obtains this conditional use approval and opens his restaurant and lounge on the subject property. At his present locations Petitioner serves beer and wine; but not food. On the subject property, he would not sell alcoholic beverages without food, except to 7 persons waiting to be seated in the restaurant. Other than Paula Harvey's testimony that the subject property does not have sufficient parking spaces for the utilization of the entire 6,000 square foot building as a restaurant and lounges there is no competent, substantial evidence in the record as to the number of parking spaces on the property. It cannot be determined if there would be sufficient parking if Petitioner used only 2,500 square feet for the restaurant and lounges and the remainder of the building for some other commercial purpose. The neighborhood surrounding the subject property includes a church, residential, shopping and commercial areas. In addition to Petitioner's present barb there is also one other bar in the neighborhood. Public testimony evidences neighborhood concern about noise, litter, traffic and fighting associated with Petitioner's present bar and Petitioner offered no testimony as to how he intended to control noise, litters traffic and fighting which can reasonably be expected to occur if he opens a 2500 square foot restaurant and lounge with seating for more than 150 people compared to his current 1,600 square foot beer and wine bar.
The Issue The ultimate issue in this appeal is whether to approve, approve with conditions, or deny the Development Order issued to Appellee Pinellas Education Organization, Inc., d/b/a Enterprise High School (Applicant or School), by the Board on December 3, 2019. Specifically, the following issues must be resolved: Whether Appellants have standing to appeal the Development Order. Whether the issues raised by Appellants at the Oral Argument were properly preserved for appeal. Whether there is substantial competent evidence in the record to support approval of the Development Order.3 Whether the Board's decision departs from the essential requirements of the law. If the Development Order is affirmed, whether any additional conditions are appropriate. PROCEDURAL HISTORY Appellee School filed an application to renovate an existing building to operate a high school at 2495 Enterprise Road, in Clearwater, Florida.4 The Board held a quasi-judicial public hearing on the application on November 19, 2019 (Board Hearing). The Board approved the School's application with conditions and the City issued the Development Order on December 3, 2019. On December 4, 2019, two separate Appeal Applications were filed regarding the Development Order: (1) by 2521 Countryside Blvd., LLP, Countryside Property Principals, LLC, Bruce Levine, and Joan Levine; and by 2505 Enterprise, LLC, and Greg Willsey, and Sandra Willsey. The Appeal Applications were fairly similar and raised a number of issues: four issues pertaining to traffic and parking requirements; and one issue as to whether a high school is a compatible use with the surrounding area. The City referred the matter to DOAH on December 4, 2019, and it was 3 Section 4-505C states, "The burden shall be upon the appellant to show that the decision of the community development board cannot be sustained by substantial competent evidence before the board, or that the decision of the board departs from the essential requirements of law." 4 The School's application went through a Level Two approval process which requires a quasi-judicial public Board hearing to approve flexibility (i.e. deviation) from the minimum development standards set forth in the Code. See Code at §4-401. Level Two approvals must meet both the general applicability criteria and the flexibility criteria outlined by the Code. See Code at Art. 4, Divisions 1, 3, 4 and 6. assigned to an administrative law judge. On December 13, 2019, a telephonic scheduling conference was held to determine the record on appeal and set the oral argument hearing. During that conference the parties agreed not to submit pre-argument briefs, but rather, chose to file post-hearing proposed final orders. The Oral Argument was held at the Clearwater Library and was open to the general public. Applicant, the City, the Board, and all persons who were granted party status at the Board Hearing were allowed to present arguments at the Oral Argument. See Code at 4-505B. At the Board Hearing the following people were granted party status: Dr. Richard Gottlieb, who was represented by Todd Pressman; Sandra Willsey; Greg Willsey; and Todd Burch. The transcript of the Oral Argument was filed with DOAH on February 19, 2020. Pursuant to section 4-505D, the proposed final orders were due within 20 days after the filing of the transcript, or no later than March 11, 2020. Per the City's request, the parties were granted an extension to submit proposed final orders. The additional time was to allow the parties to collaborate on a master index to the record on appeal (Index), which they intended to cite to in their proposed orders. The Index and the proposed final orders were timely submitted on March 23, 2020.5 5 At the Oral Argument, the parties stipulated that the undersigned could take official recognition of the Code provisions and City of Clearwater Comprehensive Plan (Comprehensive Plan) found online. As such, the undersigned takes official recognition of the Code found at https://library.municode.com/fl/clearwater/codes/ community_development_code?nodeId=CODECO (last visited April 14, 2020); and of the Comprehensive Plan found at https://www.myclearwater.com/government/city- departments/planning-development/divisions-/development-review-zoning/comprehensive- plan (last visited April 14, 2020). FACTS IN THE RECORD Pursuant to section 4-505A, the record includes the application file of the Clearwater Planning and Development Department (Planning Department); the agenda packet of the Board Hearing; all exhibits accepted into evidence at the Board Hearing; and the streaming video of the Board Hearing.6 The following findings of fact are supported by substantial competent evidence found in the record. Parties and Property The School filed an application with the Planning Department to renovate a 16,696 square foot building located on a 1.730 acre site at 2495 Enterprise Road in Clearwater, Florida (proposed development). The proposed development is in a retail/office plaza known as Village at Countryside (Plaza), located on the east side of Enterprise Road, just south of Countryside Boulevard in Clearwater, Florida. The Plaza consists of 11 parcels, including a large vacant building that formerly housed a Toys-R-Us store. The Plaza is located within the US 19 Corridor Redevelopment Plan, and has a designation of "US 19 District, Regional Center sub-district" (US 19-RC). Property within US 19-RC is subject to the special zoning district and development standards found at Appendix B of the Code.7 The School seeks to operate Enterprise High School, a charter high school, at the proposed development site.8 As explained below, relevant to this appeal is the number of students at the School and whether there will be adequate parking for the proposed development as required by the Code. 6 See Video of Board Hearing held November 19, 2019, on Agenda FLD2019-8026 at time marker 9:25 at http://clearwater.granicus.com/MediaPlayer.php?view_id=50&clip_id=3782 (last visited April 1, 2020). 7 See Code at Appendix B – US 19 Zoning District and Development Standards, found at https://library.municode.com/fl/clearwater/codes/community_development_code?nodeId=APX BUS19ZODIDEST (last visited April 14, 2020). 8 Enterprise High School is an existing charter school which intends to move from its current location to the proposed development site. The School is subject to section 1013.33, Florida Statutes. Appellants own and operate property within the Plaza and adjacent to the proposed development site. Specifically, Bruce and Joan Levine own Appellants 2521 Countryside Blvd., LLP,9 and Countryside Property Principals, LLC. The LLP and/or LLC operate the Countryside Foot and Ankle Center.10 The Countryside Foot and Ankle Center's administrator, Todd Burch, was granted party status at the Board Hearing. Greg and Sandra Willsey own Appellant 2505 Enterprise, LLC, which is a property in the Plaza. The Willseys were also granted party status at the Board Hearing. At the conclusion of the Board Hearing, the Board voted to approve the School's application. On December 3, 2019, a Development Order was issued to memorialize the Board's action. Thereafter, Appellants filed the Appeal Applications with a document titled "Notice and Statement" which stated the following grounds for the appeals: The Neighbors assert that the decision of the Community Development Board ("the Board") was not supported by substantial competent evidence and was a departure from essential requirements of law. Specifically: The Board's decision was based upon a high school with two, 200-student shifts. However, the record below established that these student shifts would substantially overlap during the noon hour. In other words, the evaluation of the proposed change of use was based on impacts and site requirements that were substantially less than what would actually occur on the site. 9 The Appeal Application lists this entity as 2521 Countryside Boulevard Land Trust. 10 Although Appellants state that Bruce Levine was granted party status at the Board Hearing, there is no substantial competent evidence in the record supporting this statement. See Appellees' Proposed Final Order at p. 3; compare Tab 30 of the Index, Board Meeting Minutes for November 19, 2019, at p. 3 and 5. The Board's decision was based on a traffic analysis provided by the applicant that used a wrong ITE trip generation code - an elementary school instead of a high school - so it cannot be relied upon as a basis for the underlying decision. The change of use to a high school required that the applicant establish that it had one parking space per three students. There is no substantial competent evidence to establish that this parking requirement was satisfied. To the contrary, the substantial competent evidence establishes that the parking on the property failed to meet this requirement. In fact, granting this change of use would result in a substantial oversubscription of the available parking at the site. The proposed use would create tortured on-site parking and traffic circulation patterns that would substantially impact the existing medical office uses on the property, including a kidney dialysis office that serves a substantial elderly population. There is no substantial competent evidence to support the finding that the change of use would "have no impacts on the adjacent retail plaza." To the contrary, the change of use would have substantial impacts on the current retail and office plaza. The proposed change of use would have substantial negative impacts on the surrounding community and is incompatible with the existing surrounding retail, office and residential uses. At the Oral Argument, Appellants raised for the first time whether the operation of a school is an inconsistent use with: (1) an Amended and Restated Declaration of Establishment of Restrictive Covenants, Conditions, and Restrictions, and Grants of Easements dated December 7, 1983 (the "Parking Easement"); and (2) the Comprehensive Plan. The Studies The first four issues raised in the Appeal Applications are related to the Parking Study and Traffic Study (collectively referred to as the Studies) which were submitted by the School as part of its application. The Parking Study, dated September 2, 2019, consists of overall parking calculations; aerial photographs of the development site and surrounding areas; and the Parking Easement. The purpose of the Traffic Study was to analyze the impact of the development on the traffic intersection at Countryside Boulevard and Enterprise Road, as well as the full access drive at the site. The 50-page Traffic Study, dated October 18, 2019, included numerous charts, maps, and tables with underlying information and data relating to the traffic counts for the proposed development. Jerry Dabkowski, a local traffic engineer who prepared the Studies for the School, testified at the Board Hearing about the traffic and parking calculations. To rebut the Studies, at the Board Hearing Mr. Pressman presented a two-page letter from a professional engineer dated November 15, 2019, titled "Traffic Study Review." Relevant to the appeal, the letter finds fault in the number of students and the "ITE Code" used in the Traffic Study and in the Planning Department's Staff Report and Recommendation (Staff Report), dated November 19, 2019, which was also presented to the Board. These factors would affect the calculations for the number of parking spaces required for and the trip distribution caused by the proposed development. Number of Students Appellants argue the parking calculations should be based on the total number of students enrolled at the School, or 400 students. The Studies and the Staff Report calculated the traffic and number of parking spaces necessary based on two shifts with 200 students per shift. At the Board Hearing, Donna Hulbert, the School's Director, testified that unlike a traditional high school, the School operated in two shifts to allow the students to hold employment while completing their high school education. Although the School intends to enroll a total of 400 students, she explained, each of the two shifts would have a maximum of 200 students. Additionally, the students are eligible for a public transportation bus pass, which some students utilize instead of driving their personal vehicles. The Study establishes that "[t]o reduce the impacts during the AM and PM peak hours, the school intends to split the day into two shifts, each with 200 students attending." Although there was conflicting information between the School's application and Ms. Hulbert's testimony at the Board Hearing about whether the shifts would overlap, the Staff Report recommends approval of the application because, "[t]he applicant has provided the school will operate in two shifts . . . with no more than 200 students present per shift." There is substantial competent evidence that there will be only 200 students at the School at a time, and that this number was correctly used in calculating the required parking spaces and the trip generation for the proposed development. ITE Trip Calculation Appellants argue the Traffic Study utilized the wrong Institute of Transportation Engineers' (ITE) Trip Generation Code, 520, which is the code applicable to an elementary school. The Study, however, states it utilized ITE Code 530 from the Institute of Transportation Engineers' Trip Generation, 10th Edition for Office, to calculate the change in trips attributed to the proposed development. A copy of the ITE Code 530 was attached to the Traffic Study. Additionally, Mr. Dabkowski testified that ITE Code 530 was the correct code for high schools. There is substantial competent evidence that ITE Code 530 was used in calculating the change in trips for the Traffic Study which was relied upon in the Staff Report, and which was accepted by the Board. Parking Requirements Table 2 in section B-303, Permitted uses and parking, provides the following parking requirements relevant to this appeal. Use Regional Use Specific Standards Minimum Off-Street Parking Spaces Retail Plaza BCP[Level 1 Minimum Standard(Building Construction permit)] [Not included] 4/1,000 SF GFA Schools FLD [Level 2 Flexible Development (Board approval required)] 1. All off-street parking is located at least 200 feet from any property designated as residential in the Zoning Atlas 1 per 3 students Based on this criterion, the School would require 67 parking spaces (200 students/3 = 66.6667). The Staff Report and Studies establish the proposed site has 55 parking spaces, but five of these spaces cannot be used because they are within 200 feet from a parcel designated as Residential. Thus, there are 49 available parking spaces "on site," leaving 18 spaces to be designated. As stated earlier, the proposed site is one of 11 parcels in the Plaza. The Parking Study contains a copy of a Parking Easement that allows cross- parking among the parcels. Based on the square footage of the buildings on the parcels (including the proposed development site), the entire Plaza is required to have 975 parking spaces. The Plaza actually has 1,137 parking spaces, an excess of 162 parking spaces. The Code also requires off-street parking spaces be located within 600 feet of the principal and accessory uses they serve. See Code at § 3-1404A. Next to and within 600 feet of the proposed development site is currently a vacant building that formerly housed a Toys-R-Us store. That parcel has 228 parking spaces, but only 177 spaces are required for that building, leaving an extra 51 parking spaces. Based on the excess spaces available through the Parking Easement, there is substantial competent evidence supporting the City's staff finding of adequate parking spaces to satisfy the additional 18 spaces necessary for the proposed development, and the Board's approval of the same. Compatible Use The fifth issue raised in the Appeal Applications is regarding the use of the proposed development site as a charter high school. Whether this site is appropriate for the type of school operated by the Applicant was a topic of discussion among the Board members at the Board Hearing. At the Board Hearing, Planning Department Manager Mark Parry testified as an expert witness. Mr. Parry explained the nature of the US 19- RC standards and gave his opinion that the proposed development complies with all applicable provisions of the Code, including the use requirements. In contrast, Appellants expressed anecdotal fears that the types of students attending the School would disrupt Appellants' medical businesses. For example, at the Board Hearing, Mrs. Willsey expressed concern that the students at the School were known to have "behavioral problems." Mr. Burch spoke about the increased number of pedestrians in the Plaza and cited to a letter in the record from Dr. Levine: "For us to have to monitor and police our properties for trespassing students would be untenable." There was no actual evidence in the record that the School's operations would cause any problems such as increased crime or trespassing in the area. At the Oral Argument and in their proposed final order, however, Appellants' argument shifted away from the potential effects of the students in the area and instead offered the new arguments that the School was inconsistent with the Parking Easement which states the Plaza shall be used "for commercial purposes only, including without limitation the operation of merchandising establishments, restaurants, and professional offices."11 Regardless, as explained below, this argument is not appropriate on appeal because it was not raised at the Board Hearing or in the Appeal Applications. At the Oral Argument, Appellants also argued that the School is an inconsistent use with the Comprehensive Plan. Appellants cited a paragraph from the Staff Report: The proposal includes a new charter school with grades nine through 12 and constitutes a public educational facility as defined by Policy J.2.1.2. The school will be located within the US 19–RC future land use designation. The prior designation was Commercial General (CG). The intent is that all uses permitted in the CG are also permitted in the US 19–RC classification. The City is planning to update the Comprehensive Plan to reflect this. Schools are a listed permitted use in the CG classification. As explained below, this argument is also inappropriate because it was not raised at the Board Hearing or in the Appeal Applications. Appellants also argue the proposed development is an inconsistent use with the existing businesses because the adjacent properties are commercial in nature and the School is not commercial. The Code, however, clearly allows Schools as an allowable use in the US 19-RC zoning district, and in the 11 The Complete section of the Parking Easement titled "Uses" states: 2.1 Uses in General The Property, consisting of both the Building Area and the Common Areas, shall be used for commercial purposes only, including without limitation the operation of merchandising establishments, restaurants, and professional offices. No portion of the Property shall be used or operated as a discotheque, bar or cocktail lounge (except in connection with a restaurant) ... theatre, bowling alley, skating rink, roller disco or catering hall, funeral parlor, or for the sale of pornographic literature or material, or an adult book store or so called "head shop" or for a video or other game arcade, flea market, or for a use which would be noxious or immoral or otherwise constitute moral turpitude or constitute an undignified, disreputable use. previous zoning designation of CG. See Code at § B-303. Moreover, unlike the Parking Easement, the Code does not divide use categories into "Commercial" and "Non-Commercial." Rather, the uses are categorized as "Residential" and "Non-Residential." Id. Based on the Code and the review of the application submissions, the Staff Report concluded the School will be an appropriate use in the area. Based on Staff visits, aerial photographs and material submitted by the applicant it is evident that the proposal will be in harmony and consistent with the scale, bulk, coverage and character of adjacent properties and, generally, with properties in the greater neighborhood. The reuse of the 16,700 square foot building with a school will not result in any adverse visual impacts on adjacent properties. Since the character of the site will not change with the proposal, and it is currently similar in nature vis-a-vis placement of other uses in the area it is not expected to impair the value of those properties. The proposal will likely have no effect, negative or otherwise, on the health or safety of persons residing or working in the neighborhood. The testimony of Mr. Parry, coupled with the Staff Report, constitute substantial competent evidence supporting the Board's finding that the School is a compatible use with the area.
The Issue The issues to be determined in this appeal are whether the decision of the Community Development Board (“CDB”) to approve Flexible Development Application FLD2015-10040 filed by Appellee Clearwater Marine Aquarium, Inc. (“the Aquarium”), cannot be sustained by substantial competent evidence before the Board, or that the decision of the Board departed from the essential requirements of law.
Findings Of Fact The Aquarium is the owner of a 4.53-acre site, consisting of three parcels, located at 249 Windward Passage in Clearwater, Florida (“the property”). The site is on a small island near Clearwater Beach, known as Island Estates. A single roadway, called Island Way, provides ingress and egress to Island Estates. The Aquarium property is zoned Commercial. The property is designated Commercial General in the Future Land Use Element of the City of Clearwater Comprehensive Plan. The area around the Aquarium property is developed with attached dwellings, offices, a marina, an automobile service station, a restaurant, and a retail plaza with building heights ranging from one to six stories. On September 30, 2015, the Aquarium filed a Flexible Development Application for a Comprehensive Infill Redevelopment Project to develop two buildings, a dolphin pool, and a parking garage. To be approved, the proposed development must meet “flexibility standards” set forth in the City’s Community Development Code. The application required a Level Two approval. Under Section 4-206 of the Community Development Code, a Level Two approval requires that notice of the application be mailed to owners of properties “within a 200-foot radius of the perimeter boundaries of the subject property.” The notice mailed by the City identifies (by parcel number) only one of the three parcels which comprise the Aquarium site. The City Clerk mailed notice of the Aquarium’s application to owners of parcels located within 200 feet of the single parcel identified in the notice. The calculation of 200 feet was not made from the boundaries of the Aquarium’s combined three-parcel property. Whether the mailed notice conformed with Section 4-206 was not an issue raised before the CDB. The record does not show the reason the calculation was made in the manner it was made, whether it was consistent with the City’s interpretation of the applicable code requirement, or whether it was based on the location of the proposed structures. There is no evidence in the record about what additional property owners, if any, would have received notice if the boundaries of the entire site had been used. Section 4-206 of the Community Development Code also requires that a sign be posted on the “parcel proposed for development.” The record does not show whether the sign was posted. Appellant Kohut Family Trust received mailed notice of the Aquarium’s application by and through Peter Kohut at his residential address. On January 12, 2106, Mr. Kohut attended a town hall meeting about the Aquarium’s application, held at St. Brendan’s Church on Island Estates. Mr. Kohut stated that he sent e-mails and through word-of-mouth was able to get about 55 people to attend the town hall meeting. At the town hall meeting, an Aquarium representative presented information about the proposed project and answered questions. On January 19, 2016, the CDB conducted a public hearing on the Aquarium’s application. Mr. Kohut appeared at the public hearing, requested and was granted party status by the CDB, and made a presentation to the CDB. Mr. Kohut did not mention the Kohut Family Trust in his presentation to the CDB and did not request party status for the Kohut Family Trust. Mr. Kohut told the CDB that “the only notification that was given was given by the civic organization to its members.” Because Mr. Kohut knew he had received mailed notice, Mr. Kohut likely meant that the only detailed information about the Aquarium’s proposed project was provided at the town hall meeting. Mr. Kohut was provided an opportunity to present witnesses, introduce evidence, and to cross-examine witnesses at the public hearing. He did not introduce any exhibits or present any witnesses. Mr. Kohut objected, generally, about increased traffic and lowered property values and, specifically, about his desire for curbs and gutters. Mr. Kohut did not identify any specific criterion for approval of the Aquarium’s application that he believed would not be met. The City Planner, Matt Jackson, was accepted by the CDB as an expert witness in the areas of zoning, site plan analysis, planning in general, and the City’s landscape ordinance. Mr. Jackson discussed the Aquarium’s application and stated his opinion that it complied with all applicable Community Development Code and Comprehensive Plan requirements. Mr. Jackson was cross-examined by Mr. Kohut. The Aquarium’s attorney made a presentation to the CDB in support of the application and introduced the testimony of engineers Al Carrier and Robert Pergolizzi. The CDB accepted Mr. Carrier as an expert witness in the areas of civil engineering, land use planning, and planning in general. The CDB accepted Mr. Pergolizzi as an expert witness in the areas of planning, land use, and traffic impact studies. Mr. Pergolizzi was cross-examined by Mr. Kohut. The attorney for Island Way Grill, Inc., obtained party status for his client and made a presentation in support of the Aquarium’s application. Steven Traum obtained party status and made a presentation to the CDB. Mr. Traum did not appear for oral argument on April 8, 2016, and did not file a proposed order. On January 22, 2016, the City entered a Development Order memorializing the CDB’s approval of the Aquarium’s application.
The Issue Whether the permit Harbor Woods seeks should be denied lest effluent from a sewage treatment plant enter the proposed basin? Whether the proposed project will cause odors and degradation of water quality in contravention of DER standards and rules, as a result of stormwater runoff?
Findings Of Fact On Merritt Island in Brevard County, Harbor Woods owns an 80-acre parcel on the western shore of Newfound Harbor. From the north, Sykes Creek flows into Newfound Harbor, which opens into the Banana River to the south. The parties stipulated that Newfound Harbor, which is navigable, contains Class III waters. Paralleling the northern boundary of the Harbor Woods property is a ditch through which 800,000 gallons or more of effluent from a sewage treatment plant operated by Brevard County pours into Newfound Harbor daily, at a point about 400 feet north of the proposed flushing channel. A mile or so south of the proposed flushing channel is the nearest boundary of the Banana River Aquatic Preserve. PETITIONER'S INTEREST Robert B. Sampson, Carl Seidel and Betty Holcombe have all been boating in Newfound Harbor and expect to use the waters of Newfound Harbor in the future. Ms. Holcombe is an avid angler and has fished those waters often. MAN vs. MOSQUITO At one time an arm of Newfound Harbor extended onto the property Harbor Woods now proposes to develop. As a means of mosquito control, the authorities caused a dike to be built along the eastern edge of the property, wailing off the shallows and interdicting the tidal flow. The impoundment was then filled with fresh water in an effort to keep the bottom covered. The idea was to deprive mosquitoes of mud they need for depositing eggs. The effort was not completely successful, and the area continues to be sprayed with insecticides. The mosquitoes that now breed in the vicinity of the impounded fresh water are capable of transmitting encephalitis and other diseases and constitute a more serious problem than the mosquitoes whose larvae formerly hatched on the salt mud flats. The area of the original impoundment was reduced some time after 1967 by filling in conjunction with development to the north of the Harbor Woods property. PARTIAL RESTORATION PROPOSED Barber Woods, which owns the bottom landward of the dike, proposes to drain the fresh water to an unspecified upland site, uproot some seven and a half acres of cattails, remove the muck, and fill with clean sand so as to reshape the perimeter of the impoundment and its bottom contours; and consolidate four small islands into a single "recreational" island within the newly formed basin, which would only then be connected to Newfound Barber by dredging a flushing channel through the dike. Unplugging the dike would entail removal of about a quarter acre of productive wetlands, mainly mangroves, which would be transplanted inside the basin. The project would improve the property aesthetically and result in more land area for the "mid-rise" condominium buildings Barber Woods intends to erect. Although the project would not restore the site to its precise pro-impoundment state, the proposed basin is designed, in part, to fill the ecological role the pristine embayment once played. The level bottom of the new basin would lie at 1.5 feet NGVD; once the dike was breached, saltwater would fill the basin to a uniform depth of one and one half feet, and spill over to submerge five acres of cordgrass (Spartina alterniflora) which would be planted along the northern and southern shores of the basin. The unplanted bottom of the basin would comprise another five acres. After removing 330 feet of the dike, and in order to insure the movement of water in and out of the basin, a channel 150 feet wide would be dug out into Newfound Harbor 92 feet waterward of the mean high water line. Turbidity curtains would be used during dredging. If the cordgrass and the mangroves, which are to be planted in the same area, take hold and flourish, white mangroves would dominate in five years' time, and the quarter acre strip along the dike which would be lost would then have been replaced by an area twenty times as large. Eventually red mangroves should become dominant. The uncontroverted evidence was that, because of all the new vegetation proposed, the project would ameliorate water quality in Newfound Harbor and provide a new food source, habitat and nursery area for various organisms, including mosquitophagous fish. AMBIENT POLLUTION The objectors raised the question whether any plantings in the new basin could be expected to survive in light of the poor water quality in Newfound Harbor. The waters of Newfound Barber do not meet minimum standards for Class III waters now, and would not be brought up to those standards by any project like the one proposed. Brevard County's Fortenberry Sewage Treatment Facility, the source of the effluent pouring into Newfound Harbor, has been the object of administrative proceedings in which DER has alleged that the facility is discharging excessive amounts not only of nutrients like phosphorous but also of copper, mercury, lindane, and malathion. Petitioners Exhibit No. 4. Excess nutrients in the water would foster, not retard, the growth of submerged plants, but some of the substances DER itself claims are being introduced into Newfound Harbor could be lethal to plants. DER has alleged in a notice of violation that effluent from the Fortenberry Sewage Treatment Facility "is acutely toxic." Petitioners' Exhibit No. 4. Reese Kessler, a DER employee, noted "a six inch layer of black ooze" along the Newfound Barber side of the dike in September of 1981, which, he reported, "Presumably resulted from a recent heavy discharge of sewage effluent." DER's Exhibit No. 2. If constructed as proposed, the basin would exchange waters with Newfound Barber, primarily under the influence of the wind. Southeast winds predominate at the site. When the wind blows from the southeast, a clockwise gyre in Newfound Barber takes the effluent due east from the mouth of the ditch and away from the proposed flushing channel, but a northeast wind would result in sewage effluent entering the basin, if it blew hard enough. Runoff entering the basin from upland would also be a motive force, as would the ebb and flow of the tide, to a lesser extent; the tidal range in the area is on the order of one-tenth of a foot. Ninety percent of the water in the basin would leave it and enter Newfound Barber in 30 days' time, even without any wind. The flushing channel is fairly wide and not much deeper than the surrounding bottom; natural circulation should be enough to keep it clear of siltation. Because water quality in Newfound Harbor is so bad, the water in the proposed basin would also fall below minimum standards for Class III waters. According to uncontroverted testimony, however, the new basin would not cause or aggravate water quality standard violations. The new vegetation would be protected from most boat traffic by being planted in shallow beds. The experts unanimously predicted it would thrive and ameliorate a bad situation. STORMWATER RUNOFF The dike not only keeps the waters of Newfound Harbor out; it also prevents any additional pollution of Newfound Harbor from upland source. Harbor Woods intends to construct parking lots, in conjunction with the multi-story condominium buildings it plans to build around the proposed basin. The precise location and dimensions of the buildings and parking lots have not been decided upon but it is clear that rainwater draining over the parking lots would make its way to the proposed basin and, eventually, to Newfound Harbor. Harbor Woods has proposed to encircle the new basin with grassy swales large enough to hold the first half inch of rain that would otherwise drain directly into the basin. Water overflowing the swales could reach the basin only by passing through a sand filter, which would remove all oil. Gasoline is not ordinarily split in most parking lots and quickly evaporates, in any case. But rain washing over parking lots picks up oils, greases and heavy metals. Bow badly water traversing a parking lot Is polluted depends principally on what the parking lot surface is. The optimal parking surface is concrete block, which allows for some percolation. The first inch of rainfall washes off 90 percent of the substances that pollute runoff The evidence was uncontroverted that the runoff would meet Class III standards before it entered the proposed basin. PROPOSED FINDINGS CONSIDERED Respondent DER filed proposed findings of fact, conclusions of law and recommended order. DER's proposed findings of fact have been considered and in large measure adopted, in substance. To the extent they have been rejected, they have been deemed unsupported by the weight of the evidence, irrelevant, immaterial, cumulative or subordinate.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That DER grant petitioner's application on the conditions proposed and on the additional condition that any parking lots over which draining water would eventually reach Newfound Harbor be paved with concrete block. DONE and ENTERED this 10th day of November, 1983, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 1983. COPIES FURNISHED: Joe Teague Caruso, Esquire Post Office Box 757 Cocoa Beach, Florida 32931 Dennis R. Erdley, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Robert B. Sampson Post Office Box 431 Merritt Island, Florida 32952 Carl Seidel c/o Robert B. Sampson Post Office Box 431 Merritt Island, Florida 32952 Betty Holcombe c/o Robert B. Sampson Post Office Box 431 Merritt Island, Florida 32952 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue The issues are: (1) what are the correct procedures and substantive criteria to be applied in reviewing Petitioners' proposed "local" changes to the Hammock Dunes Development of Regional Impact (DRI) Development Order (DO); (2) does Petitioners' application satisfy the applicable criteria for approval; and (3) do Petitioners or Respondent, Flagler County (County), have the legal ability or obligation through the Notice of Proposed Change (NOPC) to the DO to change certain obligations of Intervenor, Admiral Corporation (Admiral), contained in the DO and in separate agreements related to the performance of certain DO obligations.
Findings Of Fact The Parties Petitioners are the current owners and developers of certain real property within the Hammock Dunes DRI in the County. They are some of many developers of real property within that DRI. The County is a political subdivision of the State and the unit of local government responsible for issuing DOs for projects that are required to undergo DRI review within its geographic limits, including amendments to DOs of previously approved DRIs. Such reviews must be in conformity with the requirements of section 380.06. Admiral is the original developer of the DRI but no longer owns any property or entitlements in the DRI. Its interest in the proceeding is based on long-standing obligations to provide certain infrastructure, described below, that run with the land until the expiration of the DRI, and whether the County can extend those obligations without its consent by extending the expiration date of the DRI. Ocean Hammock is an incorporated property owners association comprised of approximately 1,500 unit owners within the DRI. Hammock Beach is an incorporated condominium association composed of approximately 184 condominium unit owners within the DRI. Hewson is an individual and an owner and resident of property within the DRI. History Preceding the Application On March 30, 1984, the County approved the original Hammock Dunes DRI by County Resolution 84-7. The resolution showed Admiral as the developer. Admiral is a wholly-owned subsidiary of ITT Community Development Corporation (ITTCDC). The DO covered 2,258 acres and entitled Admiral to construct a maximum of 6,670 dwelling units and related commercial, institutional, recreational, and other uses in 42 separate geographical areas known as "Clusters" covering 893 acres. The property is adjacent to the Atlantic Ocean, with approximately five miles of pristine beach bordering the DRI. Beginning in 1985 or 1986, development of the DRI began and now includes three subdivisions or phases: Hammock Dunes; Ocean Hammock; and Hammock Beach. Currently, 33 percent of all single-family homes authorized for construction in the DRI have actually been constructed; all platted and permitted condominiums have been constructed; and all Clusters have been platted. Due to financial considerations of their owners, one or two Clusters in the DRI have no vertical development. The general and special conditions of development are contained in a 54-page document identified as Attachment A to the DO. See Joint Ex. 1, Attachment A, pp. A-1 through A-54. The original DO included a DRI Master Development Plan, identified as Exhibits 17.5.1 and 17.5.2 in Attachment A. The Master Development Plan is basically a sketch plan that geographically depicts the uses authorized by the DO. The first exhibit depicts generally where the 42 residential Clusters and other uses were to be located. See Attachment A, p. A-45. The second exhibit is a Residential Cluster Data Table, which describes the type of development for each Cluster and designated the maximum number of dwelling units that may be built within each Cluster. See Attachment A, p. A-46. The DO rezoned all of the property within the DRI as Planned Unit Development (PUD), which is a zoning district in the County zoning code. Also, section 17.5 of the DO described the substantive conditions for development relating to density, residential clusters, allowable building height, building spacing, and flexibility considerations. Subsection 17.5.g. provides in part that "any changes [to the project] must first be approved through the site development plan review procedures of Section 17.6." Section 17.6 prescribes the PUD review procedures that apply to submitted development proposals. See Joint Ex. 1, pp. 63-68. The introductory language in section 17.6 states that "[t]his project shall be subject only to the following [PUD] review provisions which are an elaboration of the review provisions of Article X." Joint Ex. 1, Attachment A, p. A-47. During the PUD review process, section 17.6 generally requires a pre-application conference by the applicant and County staff, the submission of a detailed site development plan which addresses specific issues set out in subsection 17.6(c), and approval (platting) of the site development plan leading to permitting. Id. Section 17.6 has not been changed or modified since the original DO was approved. The DO also required Admiral to construct certain specific items of infrastructure associated with the DRI. Among the requirements were that Admiral construct two additional lanes on the Intracoastal Waterway bridge, to occur when the Florida Department of Transportation and County determined that a Level of Service C was met on the existing two lanes; and that Admiral four-lane the roads and bridges located on Palm Harbor Parkway between Clubhouse Drive and Florida Park Drive, to occur when traffic counts on these road segments exceeded 10,000 average daily trips. See Attachment A, §§ 4.1.b and 4.7. Neither of these prerequisites to construction of these infrastructure items has yet occurred. Because DRIs generally take a substantial period of time to complete, the development plans are subject to periodic amendment in order to adjust to changing market conditions, financial conditions, and other variables. Since its approval in 1984, the DO has been amended five times. The first amendment to the original DO, completed in July 1995, revised the Master Development Plan in the following respects: (a) residential acreage was reduced from 893 acres to 888 acres; (b) the maximum number of dwelling units was reduced from 6,670 to 4,400; (c) Cluster 1 was split into Clusters 1 and 1(a), resulting in an increase in the number of Clusters from 42 to 43; and (d) the maximum allowable building height in the Medium High density category was reduced from 20 stories to 12 stories. See Joint Ex. 2. Also, it realigned the spine road, clarified infrastructure construction obligations, and changed the geographic location, configuration, and area of Residential Clusters and other uses, including the golf course, within the boundaries of the DRI. Finally, Exhibits 17.5.1 and 17.5.2 were replaced by Exhibits 3A and 3B to the DO, and the amendment required the County to approve any successor developer to Admiral unless ITTCDC guaranteed all applicable DRI requirements, obligations, and conditions. The second amendment to the original DO was completed in March 1998 and generally revised the Master Development Plan as follows: (a) the number of residential Clusters was reduced from 43 to 35 (numbered as 1, 1(a), and 2 through 34) together with changes to location, configuration, and other uses of the residential Clusters; and (b) total authorized residential acreage was increased from 888 acres to 916 acres. See Joint Ex. 3. Unless or until the pending NOPC is approved, the 1998 Master Development Plan still applies to the DRI. In addition, the 1998 amendment provided for the conveyance of 33 acres of beachfront land at the intersection of 16th Road and the beach, previously intended to be a County park, from the County to the developer to enable the developer to construct part of a Jack Nicklaus signature golf course. The golf course was intended to be a buffer between development in the DRI and the beach. The developer was still required to construct a smaller public park on land retained by the County at the 16th Road access to the beach. Finally, although no revisions to section 17.6 were made, the amendment added a new section 17.10, which provided some specific PUD development criteria for Cluster 34. On November 24, 1999, ITT Corporation (then known as ITT Industries, Inc.), the parent corporation of ITTCDC, entered into a Guaranty Agreement (Agreement) with the County regarding Admiral's obligations to provide additional infrastructure if certain transportation thresholds were exceeded. See Admiral Ex. 1. The Agreement provided in part: The obligations of the Guarantor under this Guarantee Agreement shall be independent, absolute and unconditional and shall remain in full force and effect until the earlier of (i) such time as the Major Obligations have been performed and discharged . . ., or (ii) such time as the Development Order, including all past and/or future amendments and extensions thereof, shall no longer be in effect. The County did not execute the Agreement. However, ITT and ITTCDC unilaterally agreed to increase the existing bond guaranteeing Admiral's DO obligations from $3 million to $10 million in exchange for the County releasing its right to review and approve any successor developer as provided in the 1995 DO amendment. This Agreement further provided that the obligations of the guarantor would remain in effect until the obligations described therein were performed in compliance with the DO, or until the DO and/or any amendments or extensions thereof were no longer in effect. Id. On December 17, 2001, the DO was again amended. See Joint Ex. 4. However, that amendment was repealed by the County on October 7, 2002. See Joint Ex. 5. Besides repealing the 2001 amendment, the 2002 ordinance modified certain requirements relating to public safety and park construction. Neither the 2001 nor 2002 amendments changed the proposed number or location of dwelling units within the DRI. In 2003, the DO was amended a fifth time to extend the build-out date by five years and eleven months, or from March 28, 2003, to February 28, 2009. See Joint Ex. 6. This amendment did not affect the permitted number of dwelling units, residential acreage, or residential Clusters, nor were any revisions made to section 17.5 or 17.6 of the DO regarding the PUD designation and review procedures. Accordingly, sections 17.5 and 17.6, and Revised Exhibits 3A and 3B, as adopted by the 1998 amendments, remained in effect when Petitioners filed the NOPC that is the subject of this proceeding. Petitioners' predecessor developer was Lowe Ocean Hammock, Ltd. (Lowe). On December 20, 1996, Lowe executed a Development Order Allocation Agreement with ITTCDC, wherein those parties agreed that no applications would be filed to amend the DO without the written consent of the other party. See Admiral Ex. 5, p. 9. As one of Lowe's successor developers in the DRI, Petitioners became subject to this consent requirement through its inclusion in the deed by which Petitioners obtained ownership of their interest in the DRI. See Admiral Ex. 6A. Admiral contends that the responsibility for constructing the two additional lanes on Palm Harbor Parkway still remains with ITTCDC, but that the responsibility for constructing the two additional lanes on the Intracoastal Waterway Bridge was assumed by the Dunes Community Development District (DCDD), a community development district created in 1985 in the DRI. Neither Petitioners nor the County is a party to the agreements by which ITTCDC or DCDD assumed responsibility for construction of these two infrastructure projects. Petitioners did not obtain Admiral or ITTCDC's written consent before filing the instant NOPC application. Admiral, ITTCDC, and ITT wrote two letters in 2009 and one in 2010 stating their objections to the NOPC and maintaining that such objections would only be withdrawn if their obligations under the Agreement and the associated bond were either terminated by the County or assumed by a successor developer. The letters indicated that their obligations expired on February 28, 2009, or the then-current DRI expiration date. The County considered the letters of objection but determined that the extension of the build-out date of the DRI was the result of an act of the Florida Legislature and therefore out of the County's legal control. Thus, the County determined that it would not consider those issues in connection with the NOPC application. Sometime after it adopted the original DO, the County amended Article III of its LDC by adding and/or amending sections 3.04.00 through 3.04.04, which set forth the processes and substantive criteria for the creation of new PUDs. However, the 1984 DO was never amended to incorporate the new sections of the LDC by reference or to change the DO's PUD provisions to mirror those of the current LDC. Petitioners' NOPC Application Pursuant to section 380.06(19), on February 27, 2009, Petitioners filed a sixth amendment to the DRI DO. The first iteration of the current NOPC requested: (a) recognition of the three-year build-out date extension authorized by the Legislature in section 380.06(19)(c); (b) creation of a new residential Cluster 35 consisting of 34 acres and assigned a Medium-High density and designated "Ocean Recreation Hotel"; and (c) reallocation of 1,147 approved but un-built dwelling units from Clusters 21-34 into the new Cluster. Cluster 35 would be located on land designated by the DO as the beach club, portions of Cluster 33, and a part of the Ocean Hammock Golf Course. Of the 34 acres, eight would be located north of 16th Road on land currently occupied by a 77-foot high building, commonly known as the "Lodge," which contains a restaurant, 20 hotel rooms, offices, a golf pro shop, locker facilities, a swimming pool, spa facility, parking lot, and landscaping. The remaining 26 acres, south of 16th Road, currently feature a golf driving range, landscaped areas, buffer, and open space. Sixteenth Road is a public road that provides access to the beach, public beach parking, and public restroom facilities. Petitioners initiated the NOPC because they had dwelling unit entitlements that could not be used in the Clusters from which the units would be transferred because the land in the donor Clusters had been fully platted, developed, and/or sold. As a consequence, no more dwelling units could be constructed in the donor Clusters. On June 19, 2009, Petitioners submitted the second iteration of the current NOPC application. In that iteration, the size of the proposed new Cluster 35 was reduced from 34 to 24 acres; the number of units to be reallocated to Cluster 35 was reduced from 1,147 to 561 units (including 20 from the hotel); and the total number of dwelling units in the entire DRI was proposed to be reduced by 600, from 4,400 to 3,800. After reviewing the amended NOPC, the County staff recommended approval, with conditions to assure consistency with the Plan and compatibility with existing development. However, after Admiral submitted letters of objection, and considerable public opposition to the proposal surfaced, on February 11, 2010, a third iteration of the NOPC was submitted to the County. This iteration proposed the following amendments to the DO: (a) recognizing the automatic extension of the build-out date for the DRI authorized by the Legislature in section 380.06(19)(c); (b) amending section 17.5.a. by reducing the total number of authorized dwelling units within the DRI from 4,400 units to 3,800 units; (c) modifying Exhibits 3A and 3B to create a new Cluster 35 encompassing only 12 acres (rather than 24 acres), and designating the new Cluster as Ocean Recreation Hotel with a maximum building height of 77 feet, and a reallocation of 541 un-built dwelling units from Clusters 21-24, 26, 27, and 29-34; (d) modifying condition 4.4 to allow the relocation, if necessary, of 16th Road farther south to enlarge the construction area for the new units, with the realignment occurring only after Petitioners applied for building permits for construction within Cluster 35; and (e) agreeing to a public hearing during the site development stage of the process. The final version of the NOPC was reviewed by the Northeast Florida Regional Planning Council and Department of Community Affairs. Both agencies agreed that the proposal did not constitute a substantial deviation. The County staff agreed with this determination and recommended that the NOPC be approved subject to certain conditions, including one that before a development permit be issued for Cluster 35, the applicants submit maps, exhibits, and other supporting materials to show compliance with the LDC. Finally, the staff recommended that the designated residential acreage in the DRI be increased from 916 acres to 960 acres to accommodate the new Cluster and to reflect the actual residential acreage (948 acres) that had previously been approved and developed. On April 5, 2010, the Board of County Commissioners (Board) held a public hearing to consider the NOPC. The Board found the requested changes did not constitute a substantial deviation and approved that part of the NOPC. It also approved the reduction in the number of approved dwelling units from 4,400 to 3,800. The Board further found the revisions to be consistent with the County Plan. However, it denied the application to the extent that it would have created a new Cluster 35 and reallocated 541 residential units to that Cluster. Finally, the Board acknowledged that the Florida Legislature had extended the DRI expiration date and concluded that no formal action was necessary in that regard. The Board's decision was memorialized in Resolution No. 2010-22, which states in pertinent part that the request to create a new Cluster 35 and transfer 541 units from other Clusters was being denied for two reasons: that it would adversely affect the orderly development of the County in contravention of LDC section 3.04.02.F.1.; and that it would adversely affect the health and safety of residents and workers in the area and would be detrimental to the use of adjacent properties and the general neighborhood in contravention of LDC section 3.04.02.F.2. See Joint Ex. 10. No specific findings of fact were made as to how Cluster 35 was inconsistent with these provisions. This appeal followed. Because this proceeding is de novo in nature, the County and Intervenors have raised additional grounds for denying the application. These grounds were also raised at the local hearing but were not addressed in Resolution 2010-22. The Procedures for Reviewing the NOPC Petitioners contend that the Board's review of a NOPC involves only two steps: (a) a determination as to whether the revisions constitute a substantial deviation requiring further review and analysis; and (b) a determination as to whether the revisions are consistent with the local comprehensive plan. If the revisions do not require a substantial deviation analysis, and they are consistent and compatible with the local plan, the NOPC would be approved, and any future development would then be controlled by the PUD review process contained in the DO. They also assert that it is inappropriate to have a PUD review concurrent with the NOPC review, as the Board did here; instead, they argue that the PUD review process should occur at the site development plan stage. The process described by Petitioners would normally apply were this not a unique NOPC requesting substantial revisions to the DO (but not regional impact implications) in the sense that it requests creation of a new Cluster where no residential development had been previously permitted, and the proposed residential development will occur in an area specifically prohibited for development by the DO. Requests to redistribute uses on property subject to PUD zoning, or to amend the sketch plan for an approved PUD zoning, are normally treated by the County as a rezoning of the PUD, even if, as here, the property has previously been assigned PUD zoning. The LDC labels this process as a "reclassification" of the property, which triggers the consideration of other LDC criteria. See § 3.04.02, LDC. When this occurs, a change to the PUD must go through the same type of process that the original adoption of the PUD went through, which is a rezoning process. This procedure contemplates that a simultaneous NOPC/PUD review takes place, and the County is authorized to take into account the general issues of public health, safety, and welfare described in sections 3.04.02.F.1. and 2., as well as any other sections in the article that may apply. The evidence shows that this procedure is used by many local governments throughout the State, including the County, and was specifically used by the County in 1998 when the last substantial changes to the Master Development Plan were requested by predecessor developers. While conflicting testimony was submitted on this issue, the more persuasive evidence supports a finding that these procedures and substantive criteria are the most logical and reasonable interpretation of the County's LDC and the DO, and they should be used in reviewing the NOPC. Does the NOPC Satisfy Applicable Criteria? Consistent with above-described procedure, in determining whether the NOPC may be approved, the following process should be followed. First, it is necessary to determine whether the revisions are a substantial deviation, as defined by section 380.06(19), creating further regional impacts that require additional review and analysis. Second, it is necessary to determine whether the proposed revisions are consistent with the County's Plan, as required by section 163.3194(1)(a). The record below does not disclose the specific Plan provisions reviewed by the County for consistency or compatibility. However, County Planner Mengel indicated that prior to the Board's decision, he made "a very cursory review" that relied largely upon representations by the applicants and concluded, as did the Board in its Resolution, that the revisions are consistent with the Plan. In addition, four policies in the Future Land Use Element (FLUE) of the Plan relating to compatibility were addressed by Petitioners during the DOAH evidentiary hearing: policies 13.1, 13.2, 13.3, and 13.5. Also, objective 3 and policies 3-3 and 3-6 of the Recreation and Open Space Element of the Plan were addressed by the County. The next consideration is whether the NOPC revisions comply with applicable LDC criteria since a simultaneous DRI/PUD review is being made. Finally, Petitioners are vested only as to what was approved in the 1984 DO, as later amended. Therefore, it is necessary to determine whether the revisions being sought are vested development rights. Substantial Deviation The parties have stipulated, and Resolution 2010-22 acknowledges, that the NOPC does not constitute a substantial deviation from the DO requiring further review and analysis. Consistency with the Comprehensive Plan Section 163.3194(1)(a) requires that all development orders be consistent with the local government's adopted comprehensive plan. Resolution 2010-22 states that the NOPC is consistent with the County Plan. See Joint Ex. 10. At hearing, evidence regarding FLUE Policies 13.1, 13.2, 13.3, and 13.5 was offered by Petitioners' expert, Kenneth B. Metcalf. Although compatibility is not defined in the Plan, he opined that the FLUE, and especially the foregoing policies, are the Plan provisions that focus on compatibility, and that to the extent these provisions are applicable to the proposed changes, the NOPC revisions are not inconsistent with these provisions or the FLUE. This testimony was undisputed. Highway A1A is a north-south route that runs along the western boundary of the DRI. It has received a scenic highway designation by both the State and federal governments and is more commonly known as the A1A Scenic Highway (Scenic Highway). It includes not only A1A, but also the public roads that run from A1A through the DRI to the beach, including 16th Road and the park at its terminus at the beach next to proposed Cluster The 16th Road park is superior to the other beachfront parks in the County. Also, 16th Road serves as the entryway to the beach from A1A and is the beach access road most heavily used by residents of the communities surrounding the DRI. The County has expended more planning attention and funding to the 16th Road entryway to the beach than any other beach access road in the County. To obtain state and federal designation of the roadway as a scenic highway, the County was required to complete a scenic highway corridor management plan to ensure its protection. Also, the County has adopted protective measures regarding the Scenic Highway as part of the Recreation and Open Space Element of the Plan. The County and Intervenors contend that the NOPC is inconsistent with objective 3 and policies 3-3 and 3-6 of the Recreation and Open Space Element of the Plan. Objective 3 requires the County to preserve and enhance "[t]he natural, recreational, archeological, scenic, historical and cultural resources of the A1A Scenic Highway." Policy 3-3 requires the County to "support the River and Sea Scenic Highway Corridor Management Plan," while policy 3-6 requires the County to "improve recreational facilities without adversely impacting natural resources along the Scenic Corridor." The management plan for the Scenic Highway emphasizes "context sensitive design" for development occurring within the corridor. This means that whatever is built around the corridor should fit in or blend with the location where it is proposed. The mass and scale of development that is authorized under the NOPC will dwarf the 16th Road park and marginalize the public beach access. Also, those persons occupying the new dwelling units in Cluster 35 (up to 561 units) will be concentrated directly at the intersection of the beach and the park. These impacts, whether collectively or singularly, would change the pristine, rural character of the beachfront and park at 16th Road, which continues to exist despite the development in the DRI to date. Therefore, the revisions conflict with the corridor management plan and are inconsistent with the requirement in policy 3-3 that the County support that plan. Policy 3-6 requires that the County "improve recreational facilities without adversely impacting natural resources along the Scenic Corridor." When the DRI was originally approved in 1984, there were 20 dune cuts distributed across the five miles of beach bordering the DRI, which provided direct access to the beach. The DO required all but four to be restored, i.e., filled and stabilized, with each remaining dune cut providing access to one of the four public parks on the beach. One of the remaining dune cuts is at the 16th Road park, which is adjacent to proposed Cluster 35. Besides the adverse impacts caused by the mass and scale of development adjacent to that public park, the NOPC allows Petitioners to relocate 16th Road and the 16th Road park facilities further south. The dune cut at 16th Road would have to be abandoned as an access point to the beach. This would require the construction of a dune walkover, relocation of restroom facilities, and relocating public parking further from the beach. Collectively, the impacts to natural resources and recreational facilities conflict with objective 3, which requires the County to preserve the natural and recreational resources of the Scenic Highway. The revisions also contravene policy 3-6, which requires the County to improve recreational facilities without adversely affecting natural resources along the Scenic Corridor. For the reasons stated above, the NOPC is inconsistent with objective 3 and policies 3-3 and 3-6 of the Recreation and Open Space Element of the Plan and in these respects is inconsistent with the County Plan. Land Development Regulations Sections 3.04.02.F.1. and 2. require that in order to approve a PUD reclassification application such as the one submitted by Petitioners the following criteria must be met: The proposed PUD does not affect adversely the orderly development of Flagler County and complies with the comprehensive plan adopted by the Flagler County Board of County Commissioners. The proposed PUD will not affect adversely the health and safety of residents or workers in the area and will not be detrimental to the use of adjacent properties or the general neighborhood. In making the following findings regarding the impact of the NOPC on residents, adjacent properties, and the general neighborhood, the undersigned has relied upon the testimony presented to the Board and evidence submitted at the DOAH hearing. See Joint Ex. 9. The proposed new development is immediately adjacent to the beach and a public park, and it will eliminate the intended buffer between other DRI development and the ocean for which the golf course now serves. While the DRI is not fully built out, it is 26 years old and is substantially developed and platted. At this stage of development in the DRI, the residents of the area and the County have the right to rely on the stability of the Master Development Plan. Substantial changes to the Master Development Plan such as those proposed here will likely cause adverse impacts to residents owning property in the DRI and to the community as a whole. The present Lodge building, while 77 feet high, is configured with its narrowest end facing the beach, minimizing any visual impact to the public using the beach and unit owners looking out to the ocean. This building orientation also minimizes shadowing of the beach adjacent to the site. The Lodge building blends into the area where it is located and by appearance is no more intensive than a single-family beachfront home found in other parts of the County. By contrast, the scale and intensity of development permitted by the NOPC will obstruct or eliminate ocean views of property owners, principally in Cluster 33 behind the golf course where several condominium buildings are now located. The evidence shows that these unit owners with an obstructed view can also expect a substantial loss (around 45 percent) in value of their properties. Likewise, the relocation of the existing access to the public beach and relocation of the public park will adversely impact the public since they will no longer have the ease of access to the beach and use of facilities the current park and beach access provide. Finally, the rural character of the beach area would be lost, and the new development would not be compatible with the adjacent residential areas. While Petitioners suggest that Cluster 35 will be compatible with adjacent areas because the land uses (residential) are the same, compatibility is better defined as whether two land uses can co-exist over time without one having an adverse effect on the other. Given the mass and scale of development that can occur in the buffer area (golf course) between the ocean and the other DRI development, the new Cluster will have an adverse effect on adjacent Clusters. As such, the NOPC will not be compatible with adjacent land uses. Collectively, these considerations support a finding that the proposed development will adversely affect the orderly development of the County, and it will be detrimental to the use of adjacent properties and the general neighborhood. Compliance with Section 14.5 and the Golf Course Plat The County and Intervenors contend that the reallocation of 561 residential dwelling units to the new Cluster 35 with an assignment of the "Ocean Recreation Hotel" community type is not a land use permitted by section 14.5 of the DO, this conflicts with the plat and deed restrictions recorded to enforce its terms, and section 14.5 must be amended before the NOPC can be approved. The essence of the argument is that Petitioners have no vested right to develop that portion of the DRI in this manner. Section 14.5 provides that: Land identified for golf course usage on the Master Development Plan map . . . shall be deed and plat restricted to ensure that the usage of this land is limited to golf courses (including associated or appropriate golf club facilities), open space, parks or, if approved by the County Commission, other appropriate recreational usages. . . . Joint Ex. 1, Attachment A, p. A-36. This provision in the DO has never been amended. Because the final configuration of the two proposed golf courses (Hammock Dunes Course and Ocean Hammock Course) was not known at the time, section 14.5 further provided that: Applicant at the time of platting shall identify the specific acreage for golf course use. The plat shall show the boundaries and configurations for golf course use. The plat shall show the boundaries and configuration of the golf courses. The plat and all deeds of land within the area so identified as golf course usage on the plat shall contain restrictions limiting the usage of the property platted to golf courses (including appropriate associated golf club facilities), open space, parks or, if approved by the County Commission, other appropriate recreational or governmental usages. As noted earlier, the 1998 NOPC amendment granted the developer's request for the County to convey back to the developer 33 acres of property originally designated for the 16th Road public park. In exchange, the developer conveyed two parcels within the DRI to the County, one of which expanded the size of an oceanfront park on Malacompra Road, while maintaining a smaller oceanfront park, with improvements, at 16th Road. The exchange was made so that the developer could increase the amount of oceanfront acreage available to the developer for the design and construction of the Ocean Hammock Golf Course and golf clubhouse. As noted above, one of the primary purposes of the exchange was that the golf course would serve as a buffer between the other development and the ocean. Consistent with the intent of section 14.5, Lowe, one of the successor developers to Admiral, submitted the Plat for the Ocean Hammock Golf Course, which was approved by the County on November 1, 2001. On December 10, 2001, the County and Lowe executed a Plat Addendum covering the land described in the golf course plat. See Respondent Exhibit 10. Section 6 of the Addendum states that: The parcels shown hereon will be perpetually used as golf course land, lake, clubhouse, appropriate associated golf course facilities, open space, parks, dune preservation or such other appropriate recreational or governmental usages approved by the Board of County Commissioners. (Emphasis added) When read in conjunction with the recorded Plat, Plat Addendum, and deed restrictions running with the golf course assumed by Petitioners when they obtained ownership of the golf course in 2006, section 14.5 strictly limits the uses allowable on the lands within the Ocean Hammock Golf Course Plat to a golf course, associated golf course facilities, open space, or upon approval by the Board, other appropriate recreational uses. The most reasonable interpretation of those documents, as further explained by testimony at hearing, is that Petitioners' proposal to reallocate up to 561 dwelling units to the proposed Cluster 35 within the golf course land and assign the "Ocean Recreation Hotel" community type to that Cluster, is not a use permitted by section 14.5. Petitioners contend, however, that despite their inclusion in the golf course plat, the various uses occurring on the Lodge property (e.g., a 20-unit lodge, swimming pool, parking lot, and landscaping) were never intended to be limited to use by golfers, and that other development can be approved by the County on land not devoted exclusively to the golf course. However, the County has always interpreted section 14.5, the Plat, and the Plat Addendum to mean that the golf course land will remain a golf course in perpetuity and cannot be developed for residential purposes. Notwithstanding contrary evidence presented by Petitioners, the County's interpretation of those documents has been credited as being the most persuasive. Given these considerations, Petitioners have no vested right under the current DO to develop the 12 acres for residential purposes and must request an amendment to section 14.5 in order to authorize another form of development. For this reason, the NOPC should be denied. The Legislature Extension of the DRI Expiration Date Section 380.06(19)(c), adopted in 2007, provides that the expiration dates for DRIs under active development on July 1, 2007, were extended for three years, regardless of any prior extension. Based on this provision, by operation of law, the expiration date for the instant DRI, February 28, 2009, was extended by three years to February 28, 2012. Section 14 of chapter 2009-96, Laws of Florida, extended the expiration date of DRIs then having an expiration date of September 1, 2008, through January 1, 2012, by two additional years. Similarly, section 46 of chapter 2010-147, Laws of Florida, also extended the expiration date for DRIs then having an expiration date of September 1, 2008, through January 1, 2012, again by two additional years. The extensions for DRIs provided in those provisions do not apply to the instant DRI, because the expiration date for the instant DRI does not fall within the September 1, 2008, through January 1, 2012, time period. Thus, the expiration date for the instant DRI is February 28, 2012. Although Admiral did not consent to Petitioners filing the NOPC request, the mutual obligations of Petitioners and Admiral created under the various contracts associated with Admiral's guaranty, and their impact on Petitioners' ability to file the application, are matters to be resolved in the appropriate circuit court. Equitable Estoppel Intervenors claim their members relied on a marketing video that asserted, among other things, that no more oceanfront condominiums would be built within Hammock Beach, and that Petitioners are equitably estopped from developing any buildings on proposed Cluster 35. A review of the standard condominium purchase contracts used in the DRI shows, however, that the purchasers clearly acknowledged that they could not, and did not, rely on oral representations or representations contained in marketing materials. Other Issues All other issues raised by the parties have been considered and are either rejected or found to be matters that need not be addressed in order to resolve this dispute.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a final order determining that the NOPC is not a substantial deviation; extending the expiration of the DO to February 28, 2012, by virtue of legislative action in 2007; approving the reduction in residential units from 4,400 to 3,800; determining that the proposed revisions in the NOPC to create a new Cluster 35 and transfer 561 dwelling units to that Cluster are inconsistent with one objective and two policies of the County Comprehensive Plan; determining that the new Master Development Plan (which creates a new Cluster 35 and transfers 541 units) is inconsistent with criteria in LDC sections 03.02.04.F.1. and 2.; and determining that Petitioners have no vested right to construct up to 561 dwelling units on 12 acres of land located in the Ocean Hammock Golf Course that is now platted and restricted in perpetuity for golf course purposes only. DONE AND ENTERED this 6th day of April, 2011, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 6th day of April, 2011.
The Issue The issue is whether Respondents committed an act of discrimination based upon familial status against Petitioners in violation of the Florida Fair Housing Act.
Findings Of Fact Petitioners own Unit L-105 at The Collins, located at 6917 Collins Avenue, Miami Beach, Florida 33141. Petitioners have a three-year-old daughter who resides with them and claim membership, for purposes of alleging discrimination under the Florida Fair Housing Act, in the class of familial status. Petitioners have exclusive use of their private patio, a limited common element, adjacent to their ground floor unit, subject to the terms and conditions, as well as the rules of the Association. This patio is in close proximity to the Association’s ungated common swimming pool. Unlike most of the condominiums on floors above the pool area, Petitioners’ unit does not have a glass protective barrier on their patio, or any barrier whatsoever installed outside their unit by the Association. All of the units located above Petitioners’ unit that have balconies that are raised from the pool’s surface in heights varying between the second floor and many floors above, without a glass barrier at the end of the balconies, would have a significant and dangerous drop to the pool level for anyone stepping over the edge. Petitioners owned Unit L-105 for 13 years before having a daughter, now three years old, which changed their status to familial for the past three years. Petitioners sought to have the Association allow them to install a glass barrier between their patio and the ungated pool in order to end their claim of discrimination based upon familial status and protect their daughter from accidentally falling into the pool if left unattended on the patio. Respondents refused to install or allow the installation of a glass barrier on Petitioners’ patio, citing that it would not conform with the rules and regulations of the condominium association concerning the common elements of the condominium. Petitioners installed what they called a “temporary” fence around their patio. The fence involved the drilling of holes into the concrete surface of the pool deck and installing posts and netting into the holes to create a fencelike barrier. Claiming this was not approved and not in conformance with the rules and regulations for the common elements of the condominium, the Association brought in workers who removed the fence, the posts, and filled in the holes that had been drilled into the concrete. The Association billed Petitioners $1,200 for having the removal and repair work done for the unapproved installation of the fence. At some point, after the fencing had been removed, Petitioners moved out of their condominium unit, but remain the owners of it. At the time of the hearing, Petitioners had pending in circuit court an action regarding the pool fence. No further details were given regarding the nature of the action and relief sought. Mr. Riveiro testified that he and his wife are willing to bear the cost, including any needed permits, parts, labor, and inspections for installing a temporary fence that will protect their daughter from accidentally falling into the pool. Mr. Blanco, the Association’s board president, who has served on the board of the Association for 15 or more years, testified that, during his tenure, the board has never discriminated against persons for any reason, including based upon their familial status. Respondents offered several solutions to Petitioners, including allowing a temporary fence that could be easily removed, but did not involve drilling holes in the common area of the pool deck. According to the local code enforcement officials, all that is required for garden or pool level doors that open to an “ungated pool” are door alarms to alert the occupants when the door is opened from inside or out. Mr. Riveiro testified that he could not use door alarms and keep his doors open to enjoy the breeze and fresh air because, after a time, the alarms sounded to remind the occupants the door has been left open. Because of this, Petitioners were not satisfied with setting up an internal fence that would keep their daughter from running out the door. An internal fence was superfluous since always keeping the doors closed avoids the need for a fence, but restricts Petitioners full use and enjoyment of their unit. If the residents wanted fences to be installed on the pool level, they would have to be uniform in design and function. Because this would be considered a material alteration to the common elements, 75 percent of the unit owners would have to vote in favor of such a change. A material alteration to the common elements was neither requested by Petitioners nor voted upon by the Association’s unit owners upon request from any individual, family, or the Association board itself.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding Respondents not liable for housing discrimination and dismissing Petitioners’ Petition for Relief. DONE AND ENTERED this 22nd day of April, 2021, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 2021. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Darrin Gursky, Esquire Gursky Ragan, P.A. 141 Northeast 3rd Avenue Miami, Florida 33132 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Fernando Riveiro 14838 Southwest 35th Street Davie, Florida 33331 Mayelin Perez 4495 Southwest 67th Terrace, No. 207 Davie, Florida 33314
The Issue Whether Petitioners have been subjected to an unlawful housing practice by Respondents, as alleged in the Housing Discrimination Complaint filed by Petitioners on March 13, 2004.
Findings Of Fact Petitioners, Ingrid Gomez and Luis Moran, are married. They and their son moved into Coral Gardens Apartments in early 2000. Petitioners entered into a one-year lease on January 13, 2000. The lease was not renewed at the end of one year, and Petitioners, thereafter, lived in their apartment as month-to- month tenants. Coral Gardens Apartments is a 36-unit apartment complex located in Naples, Florida. Many of the residents are minorities. Respondent DeMarco Investments is the absentee owner of the complex, which is managed through a Fort Myers company called Services-Taylor Made, Inc. Respondents Jim and Judy Hill were hired to manage the complex in March 2003. At some point in June 2003, Ms. Hill sent a notice to all tenants that stated as follows, set forth verbatim:1/ Now we have [sic] ask you to please make sure that when you give your children snacks, drinks, or what ever [sic] to eat that you the parent would make sure your children discard the trash inside the unit or in the dumpster. Apparently this went in one ear and out the other. Now all unit [sic] has to suffer this price because no one wants to help keep the trash up by disposing of it yourself [sic]. The adults are getting just as bad. So every unit is going to pay an additional $35.00 a month trash clean up fee. You want to live trashy MOVE across the street. So when you pay your July Rent pay an extra $35.00 to pay for the person that has to clean up YOUR trash. I sent out letters to everyone that it was $25.00 and if it didn't improve I would raise it. Well I didn't inforced [sic] the $25.00 and it hasn't changed at all. So it [sic] in effect for sure now [sic]. YOU WILL PAY $35.00 WITH JULY'S RENT. Now you don't want to pay it next month then start picking up the TRASH! Also from now on you put furniture out at the dumpster it will cost you $50.00 first piece and $15.00 per piece after that. They charge me to come and get the stuff then I charge you. The camera's [sic] will be watching and don't get caught. I hate to inform all of you we are not the old managers, the old owners, the old maintenance personal [sic]. We are new and we are the LAW here. We are working to improve this place and if you can't help with keeping this place clean then I DON"T [sic] want to here [sic]. I AM NOT GOING TO LIVE IN A TRASHY PLACE! After receiving this notice, Mr. Moran and Mr. Novarro went to the manager's office to discuss the propriety of the proposed $35.00 trash pick-up fee. Mr. Moran stated to Ms. Hill that he believed an imposition of such a fee on tenants was against the law. Mr. Moran testified that Ms. Hill stated, "I am the law." Mr. Moran demanded that Ms. Hill give him the phone number of Mr. DeMarco. He told her, "I want to talk to the owner of the circus, not the clowns." Mr. Moran testified that at this point, Ms. Hill became apoplectic. She called Mr. Moran "a fucking nigger Latino." Mr. Novarro, whose English was very sketchy, confirmed that Ms. Hill used those words. Ms. Gomez, who speaks relatively fluent English, testified that on another occasion Ms. Hill stated that she was "tired of the fucking negros Latinos." This raised a question whether Ms. Hill also used the term "negros" in her confrontation with Mr. Moran and whether it became "nigger" only in the imperfect translation. In any event, Ms. Hill's use of the word "fucking" was unambiguous and certainly indicated a racial animus against Mr. Moran, who is indeed a black Latino. In a second notice to all tenants dated June 22, 2003, Ms. Hill acknowledged tenant complaints about the $35.00 fee. She had "consulted the Florida Landlord/Tenant Act and state officials in Tallahassee," and concluded that she was required to rescind the $35.00 trash fee. Thus, the controversial fee was never collected. Dennis Gomez, Petitioners' middle-school-aged son, testified that Ms. Hill told him she would pay him $5.00 per week to pick up trash on the property. Mr. Moran told Dennis not to accept, because tenants paid Ms. Hill $10.00 per month to clean up the property. Dennis testified that after he refused the offer, Ms. Hill told him that he had to pick up the trash anyway because he "was a slave." When Dennis asked why he was a slave, Ms. Hill stated that Dennis' father was a "nigger and a slave," and that made Dennis a "slave, too." Dennis Gomez' testimony is not credible. There is undoubtedly a kernel of truth in his story, but Dennis' obvious embellishments of his conversations with Ms. Hill render his testimony of doubtful probative value. At some point in June 2003, Ms. Hill served Petitioners with a seven-day notice to vacate the premises, because of her confrontation with Mr. Moran. However, the notice was never enforced and the Petitioners stayed on until August 1, 2003, when they voluntarily terminated their tenancy. There was a problem with the return of Petitioners' deposit. Ms. Gomez contacted Mr. DeMarco, who returned the deposit to Petitioners after a two-month delay caused by cash flow problems with his businesses. Mr. DeMarco credibly testified that he knew nothing of the controversy between Petitioners and Ms. Hill until he received the Housing Discrimination Complaint. His only contact with Petitioners was the telephone conversation with Ms. Gomez in August 2003 concerning the Petitioners' deposit. From the weight of the testimony, it is apparent that there was a great deal of animosity between Petitioners and the Hills. The notices authored by Ms. Hill were crude and insulting, but were not directed toward Petitioners in particular. There is credible evidence that on at least one occasion Ms. Hill uttered a derogatory and insulting racial comment to Mr. Moran. However, the record evidence does not demonstrate that Ms. Hill took any action against Petitioners on the basis of their race or familial status. The $35.00 trash fee notice was provided to all tenants. The fee itself was never collected. Petitioners were given a seven-day notice, but it was never enforced. Petitioners chose to vacate their tenancy. No adverse action whatever was taken against Petitioners. DeMarco Investments was unaware of the hostile situation between Petitioners and the Hills. Mr. DeMarco's delay in returning Petitioners' deposit was due to legitimate business reasons.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 8th day of September, 2004, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 8th day of September, 2004.
