The Issue The issue is whether Respondent should deny Petitioner's application for a sign permit, because the proposed site is not zoned commercial and, therefore, fails the requirement for commercial zoning in Subsection 479.111(2), Florida Statutes (2007),1 and the location does not qualify as an un-zoned commercial/industrial area within the meaning of Subsection 479.01(23).
Findings Of Fact Respondent is the state agency responsible for regulating outdoor signs at the proposed site. The proposed site is located at 2505 West Bella Vista Street, Lakeland, Florida. Petitioner is a Florida corporation engaged in the business of full-service advertising in the state, including road-side signs or billboards. On March 21, 2008, Petitioner submitted an application for an outdoor advertising permit for two structures with four sign faces identified in the record by application numbers 57095, 57096, 57097, and 57098. On March 31, 2008, Respondent issued a Notice of Denied Application (the Notice). The Notice notified Petitioner of proposed agency action to deny the permit application. The Notice states two grounds for the proposed denial. The first ground alleges the “Location is not permittable under land use designations of site [sic]” within the meaning of Subsection 479.111(2). The second ground alleges the “Location does not qualify as unzoned commercial/industrial area” within the meaning of Subsection 479.01(23). Section 479.111 applies to signs located within the interstate highway system and the federal-aid primary highway system (the regulated highway system). The proposed site is located within the regulated highway system adjacent to Interstate 4 in Polk County, Florida. Subsection 479.111(2), in relevant part, authorizes signs within the regulated highway system which satisfy one of two disjunctive requirements. A sign must be located in either a “commercial-zoned” area or must be located in a “commercial- unzoned” area and satisfy a statutorily required use test.2 The term “commercial-unzoned” is defined in Subsection 479.01(23). However, a determination of whether the proposed site satisfies the statutory use test for a “commercial-unzoned” area is not necessary if the proposed site is found to be in a “commercial-zoned” area. The Legislature has not defined the term “commercial-zoned” area, and Respondent has cited no rule that defines the term. The issue of whether the proposed site is in a “commercial-zoned” area is an issue of fact and is not within the substantive expertise of Respondent. Even if the definition were within the substantive expertise of Respondent, Respondent explicated no reasons in the evidentiary record for deference to agency expertise. The evidentiary record explicates reasons for not deferring to purported agency expertise in this case. Respondent previously approved a sign permit from the same applicant on the same property. Petitioner spent $23,000.00 to move the previously approved sign so that both the proposed and existing signs could be permitted on the same property. It is undisputed that the proposed site is located on property zoned as Leisure Recreational in the Polk County Comprehensive Plan. It is also undisputed that Leisure Recreational “allows for multiple uses including commercial.”3 However, Respondent interprets the Leisure Recreational designation to be an “unzoned-commercial” area, because “The subject parcel is not explicitly zoned commercial. ”4 Respondent apparently has adopted a titular test for determining whether the proposed site is “commercial-zoned.” If the zoning designation does not bear the label “commercial,” Respondent asserts it is not “commercial-zoned” within the meaning of Subsection 479.111(2). The fact-finder rejects that assertion and applies a functional test to determine whether the local zoning label permits commercial use. A preponderance of the evidence supports a finding that the local zoning label of Leisure Recreational means the proposed site is “commercial-zoned” within the meaning of Subsection 479.111(2). Credible and persuasive expert testimony shows that the Leisure Recreational zoning designation specifically designates the proposed site for commercial uses, within the meaning of Subsection 479.01(23),5 including retail structures up to 20,000 square feet, bars, taverns, marinas, and fishing camps. The commercial uses allowed under the Leisure Recreational zoning designation are not discretionary with county planning staff but are permitted as a matter of right. Much of the dispute and evidence in this proceeding focused on two use tests that Respondent performed in accordance with Subsections 479.01(23)(a) and (b). However, the statutory use test applies only to site locations that are “commercial- unzoned.” Findings of fact pertaining to the accuracy of the use tests utilized by Respondent are unnecessary because they are inapposite to “commercial-zoned” property such as the proposed site.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order granting the application for a sign permit. DONE AND ENTERED this 8th day of April, 2009, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 8th day of April, 2009.
Findings Of Fact On or about August 5, 1980, the Department issued permits numbered AB991-10, AB992-10 and AB993-10 to the Respondent, Food `N' Fun, Inc., authorizing the erection of a stacked back-to-back sign on the south side of I- 10, .8 mile east of U.S. 231 in Jackson County, Florida. Permit number AE481-10 was issued on or about May 21, 1981, for the fourth face of this sign. Prior to the issuance of these permits the site was field inspected and approved by Department personnel. Subsequently, the site was inspected by the Department's Right-of-Way Administrator who determined that the permits had been issued in error because there was no visible commercial activity within 800 feet of the sign. In October of 1984, the Department issued Notices of Violation advising the Respondent that the subject permits were being revoked because the sign was not erected in a zoned or unzoned commercial area. The Respondent's representative who submitted the permit applications designated on these applications that the sign location was in an unzoned area within 800 feet of a business. This representative also certified on the applications that the sign to be erected would meet all of the requirements of Chapter 479, Florida Statutes. Prior to conducting his field inspection, the Department's inspector had been informed that a commercial activity (Southern Dairy Supply Company) was being conducted in a building within 800 feet of the sign location. When he made his inspection he found that the building where Southern Dairy Supply Company was located was a metal building situated behind a house in an agricultural area. However, there was nothing visible from I-10 to tell him that a business was located there. The inspector's supervisor also visited the site of the proposed sign. He saw a building that was similar to other farm buildings at this location, but there was nothing that could be seen from the interstate to indicate to traffic that there was any commercial activity being conducted in the area. Since 1981, Southern Dairy Supply Company has relocated, and is no longer in business there. The area where the subject sign is located is agricultural and rural in nature. No other commercial activity was located in the area. Although the metal building in which the dairy supply business was being conducted could be seen from the interstate, as viewed from the main-traveled way of I-10, there was nothing to indicate that any commercial activity was being conducted at this location.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that permit numbers AB991-10, AB992-10, AB993- 10, and AE481-10 held by the Respondent, Food `N' Fun, Inc., authorizing a stacked, back-to-back, sign located on the south side of I-10, .8 mile east of U.S. 231 in Jackson County, Florida, be revoked, and the subject sign removed. THIS RECOMMENDED ORDER entered this 9th day of August, 1985, in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of August, 1985.
The Issue Whether the certificate of registration as a salesman of Respondent, Permit 2000S, should be revoked or suspended, or whether Respondent should be fined.
Findings Of Fact The Respondent, Gary Steinman, was a licensed lot salesman, who worked as an employee of Suncoast Highland Corporation for about eight (8) years prior to October, 1978. Respondent had begun to work as a salesman at Shadow Run, a subdivision owned by Suncoast Highland Corporation, in November of 1974. Shadow Run is the subdivision involved in the Administrative Complaint filed herein. Respondent Steinman made application for renewal of his Land Sales Board license in August of 1978, but said license was not renewed for the reason that the broker bad not renewed his license. Respondent Steinman has had a suspended license since October of 1978, and has not been selling since that time. On or about October 18, 1978, a notice to show cause why the Petitioner Division should not suspend or revoke the license of Respondent or impose a fine of not more than $1,000.00 was served on Respondent Steinman. A request for an administrative hearing was entered by Respondent's Counsel. Respondent Steinman, as an employee of Suncoast Highland Corporation, attempted to sell and sold lots in Shadow Run subdivision from November of 1974, to October, 1978. Mr. and Mrs. Fred Reed purchased a lot from Respondent, built a home upon it, and moved into the Shadow Run subdivision in November of 1975. Prior to the purchase of their lot, the Reeds were furnished a colored advertising map of the subdivision by Respondent Steinman indicating that underground utilities would be furnished the subdivision, that tennis courts and a boat ramp would be built in a recreational park, that the Lake Grady Road and Bridge District would be formed, and that assessments would be levied at a future date against each lot. Respondent Steinman and the Reeds examined and viewed the large map together, and Respondent pointed out the placement of the proposed tennis court and boat ramp. Respondent told the Reeds that underground utilities and telephone lines would be provided and later pointed out black conduit pipes in the front of each lot, which he stated were to be used for said underground facilities. Respondent told the Reeds that the assessment cost indicated on the Florida Public Offering Statement dated September 16, 1974, and furnished by Respondent to the Reeds, would be a total of approximately $200.00. Subsequently, the Reeds learned that underground utilities would not be provided. At the time of this hearing, no tennis court has been constructed, and the boat ramp is little more than a marshy opening at the water's edge. The roads are said by the Reeds to be in poor repair and not constructed or maintained properly, and street signs have just recently been placed. Respondent's Exhibit 2 is a letter dated November 30, 1978, from an engineering firm stating that part of the streets of the subdivision were constructed in accordance with 1973 plans and were up for final inspection. At the time of this hearing the roads had not been accepted by the County. The Reeds were told that the building restrictions would be enforced, but said restrictions were violated while Respondent Steinman was a member of the approving board. A house was constructed in the subdivision that violated the restrictions but was approved by Respondent Steinman, who was a member of the Architectural Board of Shadow Run. The Architectural Board at that time consisted of three (3) members: the President of Suncoast Highland Corporation, an engineer employed by the corporation, and Respondent Steinman. Similar representations as to recreational facilities and underground utilities and telephone wires as were made to the Reeds were made to John Castellana, a purchaser and home owner in Shadow Run. Mr. Castellana was told by Respondent Steinman that a dirt dike in the lake would be removed, but at the time of this hearing said dike had not been removed. Mr. Castellana was told that the assessment on his lot by the Lake Grady Road and Bridge District would be much less than his estimated total of $600.00 or $700.00. Similar representations as to recreational facilities, underground utilities and telephone lines, and assessments were made by Respondent Steinman to James Dovin, who purchased two (2) lots in April of 1975, from Respondent upon which to build a house. Mr. Dovin had not built his house at the time of this hearing and has filed a suit to require Suncoast Highland Corporation to buy back from him one lot. Mr. Dovin's other lot was bought back because of a buy-clause and lack of an offering statement. Similar representations were made to Phillip Midulla, who bought two lots in May of 1975, and built a home, and to Mrs. Cherie Pacheco. Mrs. Pacheco was told by Respondent Steinman that there would be nature trails and a concrete boat ramp. She was furnished a receipt for the required HUD report but not the report itself. Mrs. Pacheco had read the public offering statement and was not misled by Respondent Steinman into believing the assessment would be only $100.00 to $200.00. Mr. Chester Fennell, who purchased a lot in February of 1976, and began construction of his home the following May, was told by Respondent Steinman that Lake Grady was completely private and for the use of the subdivision home owners, that the above-ground utilities then in place were temporary in nature, and that the roads would soon be accepted by the County. Mr. Fennell's understanding from Respondent was that the assessment would be at most $200.00 or $300.00, and that he would be assessed only after the development was completed. Mr. Alfred Vetrano purchased a lot from Respondent, and similar representations were made to him as to the recreational facilities, underground utilities, and lot assessment. Mr. Vetrano was also told that the earthen dike across Lake Grady, which was very close to his backyard and blocked his view of the lake, would be removed within a few months. Mr. Vetrano relied upon the representations of Respondent Steinman and purchased the lot, but the dike has not been removed as promised. Respondent Steinman later told Mr. Vetrano that a permit could not be obtained to remove the dike, but Mr. Vetrano was informed by the Southwest Water Management District that a permit could be obtained upon payment of $16.00. Mr. Vetrano had also been told that the subdivision would have a children's playground, but no playground exists at the time of this hearing. Peter Scaglione, employed as Counsel for Suncoast Highland Corporation since August of 1976, was produced as the only witness for Respondent. The representations made by Respondent Steinman, which are the subject matter of this hearing, were made to purchasers between late 1974, and late 1978. Mr. Scaglione testified that Suncoast Highland Corporation will soon be constructing a tennis court and another court when 400 lots are sold, that the corporation will construct a picnic area, and that some reconstruction will be done on the boat ramp, providing a proposed agreement is entered into with the Shadow Run Homeowners Association. Respondent Steinman's employer, Suncoast Highland Corporation, represented by Mr. Scaglione, began receiving complaints about the representations concerning recreational facilities and other misrepresentations involving the Shadow Run subdivision in February of 1977. Mr. Scaglione was familiar with six (6) of the witnesses for the Petitioner Division and served as "middleman" between the corporation and the Shadow Run Homeowners Association, receiving for the corporation the complaints about Shadow Run and Respondent Steinman. Mr. Scaglione testified that the assessment on the lots made by the Road and Bridge District was about $4,500.00 on the platted lots and $1,300 on the unplatted land. Because of the complaints of misrepresentation and fraud on the part of Suncoast Highland Corporation, Shadow Run, and Respondent Steinman, the assessment on each lot was reduced from $4,480.52 to the sum of $975.00, to be paid either in a lump sum or amortized over a period of approximately twenty- eight (28) years. This compromise was worked out some four (4) years after the lots began to be sold in Shadow Run. A plan for correcting deficiencies in the roads of Shadow Run was presented for the fourth or fifth time to the Road and Bridge District by the owner of the subdivision a few days before this hearing, and it was learned that the County had inspected the roads and could not approve them. There were still thirteen (13) deficiencies to be corrected before approval of the roads would be considered. Mr. Scaglione had no personal knowledge of the selling methods of Respondent Steinman and had not worked with Respondent. Respondent Steinman testified in his own behalf, quoting what was told to him by Mr. Peterson, the President of Suncoast Highland Corporation, and a Mr. Estep, an engineer, but no witnesses were called to corroborate Respondent's statements. Respondent denied that he had told purchasers that the total assessment would be approximately $100.00 to $700.00. He stated that after some two (2) years he stopped telling prospective buyers that there would be underground utilities, having learned in January of 1975, that there would be none. Respondent testified that he had furnished the Florida Public Offering Statement to all prospective purchasers, and that he knew of its contents, however said Statement is inconsistent with the representations of Respondent. Respondent Steinman acknowledged that there were two (2) home owners on Lake Grady whose homes were not in Shadow Run. This allowed nonresidents of Shadow Run entrance to the lake, and therefore the lake was not a privately owned lake. Respondent's main answer to the complaints against him was that he believed the representations of the President of Suncoast Highland Corporation and its engineer, and that the things Respondent told prospective buyers were true. The various public offering statements on Shadow Run filed with the Petitioner Division did not provide information as to whether the utilities would be above ground or underground. The public statements indicated that recreational facilities are in Brandon, within eight (8) miles of the subdivision. The promotional brochure, an attractive blue and yellow folder used to promote sales and either given to prospective purchasers or placed in the sales office where it can be easily secured, shows park and recreational areas on a large map of Shadow Run. The first brochure was revised, and the map of the revised brochure shows a portion of the lake as not included in the subdivision but a more extensive park area. The brochure states there will be protective restrictions and all roads will be paved and curbed, but unlike the first brochure the map shows outside access to the lake. Both parties submitted proposed findings of fact, memoranda of law and proposed recommended orders. These instruments were considered in the writing of this Order. To the extent the proposed findings of fact have not been adopted in, or are inconsistent with, factual findings in this Order they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Respondent, Gary Steinman, be reprimanded and his license be suspended for a period of six (6) months from the date hereof. DONE and ORDERED this 12th day of September, 1979, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: William A. Hatch, Esquire John W. McWhirter, Jr., Esquire Department of Business 1776 Exchange National Bank Building Regulation Post Office Box 2150 725 South Bronough Street Tampa, Florida 33601 Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF BUSINESS REGULATION DIVISION OF FLORIDA LAND SALES AND CONDOMINIUMS DIVISION OF FLORIDA LAND SALES AND CONDOMINIUMS, Petitioner, vs. DOCKET NO. 78183RS CASE NO. 78-2210 GARY STEINMAN, (Salesman's Certificate of Registration - Permit No. 2000S issued 10-17-77) Respondent. /
Findings Of Fact On or about December 10, 1987, the Department filed Proposed Rules 9J- 14.006 and 9J-15.006 with the Department of State, and published notice of its intent to adopt these proposed rules in the December 18, 1987 edition of the Florida Administrative Weekly. In pertinent part, these proposals disapprove certain Map Amendments requested by Petitioners, and approved by the Monroe County Board of County Commissioners in October, 1987. Petitioners timely filed petitions for draw-out proceedings pursuant to Section 120.54(17), Florida Statutes, and in March, 1988, the Department transmitted these petitions to the Division of Administrative Hearings for a hearing under the provisions of Section 120.57, Florida Statutes. The Department has determined that normal rule-making proceedings under Section 120.54 are not adequate to protect Petitioners' substantial interests, and has suspended rule-making regarding these Petitioners and the Map Amendments at issue in this case. Petitioners' standing is not at issue in this proceeding. The Florida Keys' Comprehensive Plan was adopted by the Monroe County Board of County Commissioners in February, 1986, and Volume III of the Plan, consisting of land development regulations, was approved by the Department and the Administration Commission in July, 1986. The Department uses, and relies upon, the provisions of this Plan in interpreting and applying the Principles For Guiding Development set forth at Section 380.0552(7), Florida Statutes, and in determining if proposed changes in land development regulations or Plan amendments are in compliance with said Principles. As part of its Comprehensive Plan, Monroe County adopted land use district maps in February, 1986, which depict the approved land use and zoning of individual parcels. Petitioners herein urge that the zoning of their parcels in February, 1986, as portrayed on the district maps, is in error or is not justified due to their particular circumstances. Therefore, they have sought Map Amendments which were approved by the Monroe County Board of County Commissioners in October, 1987, but which the Department proposes to disapprove as not in conformance with the Principles for Guiding Development. All proposed changes to land use district maps must take into account the uses and restrictions applied to the districts by the development regulations, as well as the goals and policies set forth in the Plan. The Keys' Comprehensive Plan states that amendments or changes may be considered by the Board of County Commissioners based on: changed projections, such as public service needs, from those on which the text or boundary was based; changed assumptions, such as regarding demographic trends; data errors, including errors in mapping, vegetative types and natural features; new issues; recognition of a need for additional detail or comprehensiveness; and data updates. However, no change may be approved if it results in an adverse community change. Typographical or drafting errors may be corrected by the Board at any time, without notice or hearing. In pertinent part, the land development regulations set forth in Volume III of the Keys' Comprehensive Plan provide: Existing Uses All uses existing on the effective date of these regulations which would be permitted as a conditional use under the terms of these regulations shall be deemed to have a conditional use permit and shall not be considered nonconforming. * * * Sec. 5-201. Uses permitted as of right are those uses which are compatible with other land uses in a land use district provided they are developed in conformity with these regulations. * * * Sec. 5-301. Conditional uses are those uses which are generally compatible with the other land uses permitted in a land use district, but which require individual review of their location, design and configuration and the imposition of conditions in order to ensure the appropriateness of the use at a particular location. * * * Sec. 7-101. The purpose of this Chapter is to regulate and limit the continued existence of uses and structures established prior to the enactment of these regulations that do not conform to the provisions of these regulations. Many non-conformities may continue, but the provisions of this Chapter are designed to curtail substantial investment in non-conformities and to bring about their eventual elimination in order to preserve the integrity of these regulations. * * * Sec. 7-103. Nonconforming Uses. Authority to continue. Nonconforming uses of land or structures may continue in accordance with the provisions of this Section. Ordinary repair and maintenance. Normal maintenance and repair to permit continuation of registered nonconforming uses may be performed. Extensions. Nonconforming uses shall not be extended. This prohibition shall be construed so as to prevent: Enlargement of nonconforming uses by additions to the structure in which such nonconforming uses are located; or Occupancy of additional lands. Relocation. A structure in which a nonconforming use is located may not be moved unless the use thereafter shall conform to the limitations of the land use district into which it is moved. Change in use. A nonconforming use shall not be changed to any other use unless the new use conforms to the provisions of the land use district in which it is located. Termination. Abandonment or discontinuance. Where a nonconforming use of land or structure is discontinued or abandoned for six (6) consecutive months or one (1) year in the case of stored lobster traps, then such use may not be re-established or resumed, and any subsequent use must conform to the provisions of these regulations. Damage or destruction. ... if a structure in which a nonconforming use is located is damaged or destroyed so as to require substantial improvement, then the structure may be repaired or restored only for uses which conform to the provisions of the land use district in which it is located. Fair market value shall be determined by reference to the official tax assessment rolls for that year or by an appraisal by a qualified independent appraiser. The extent of damage or destruction shall be determined by the Building Official, in consultation with the Director of Planning, by comparing the estimated cost of repairs or restoration with the fair market value. Sec. 7-104. Nonconforming Structures. Authority to continue. A nonconforming structure devoted to a use permitted in the land use district in which it is located may be continued in accordance with the provisions of this Section. Ordinary repair and maintenance. Normal maintenance and repair of registered nonconforming structures may be performed. Relocation. A nonconforming structure, other than an historic structure previously listed on the National Register of Historic Places or the Florida Inventory of Historic Places, or designated as historic by the Board of County Commissioners, shall not be moved unless it thereafter shall conform to the regulations of the land use district in which it is located. Termination. Abandonment. Where a nonconforming structure is abandoned for twelve (12) consecutive months, then such structure shall be removed or converted to a conforming structure. Damage or destruction. Any part of a nonconforming structure which is damaged or destroyed to the extent of less than fifty percent of the fair market value of said structure may be restored as of right if a building permit for reconstruction shall be issued within six (6) months of the date of the damage. ... any nonconforming structure which is damaged or destroyed so as to require substantial improvement may be repaired or restored only if the structure conforms to the provisions of the land use district in which it is located. Fair market value shall be determined by reference to the official tax assessment rolls for that year or by an appraisal by a qualified independent appraiser. The extent of damage or destruction shall be determined by the Building Official, in consultation with the Director of Planning, by comparing the estimated cost of repairs or restoration with the fair market value. THE BROTHERS' PROPERTIES Map Amendment 48 was requested by R. Krajfasz, Bruce Barkley and Betty Brothers Rein (Case No. 88-1071 RP) concerning certain property they own on the west shore of Little Torch Key which is currently zoned NA (native area) , and which they are seeking to have rezoned SC (suburban commercial). This is an undeveloped parcel with 700 feet adjacent to, and to the south of, U.S. 1, which is surrounded by other, larger, undeveloped properties zoned NA and SR (suburban residential). The property is a salt marsh wetland which cannot be developed without substantial filling. Existing conditions include scrub mangroves, buttonwood and mangrove stands. The Keys' Comprehensive Plan recognizes the unique and irreplaceable character of the area's natural environment and seeks to protect the quality of nearshore waters, wetlands, and transitional areas through the designation, NA. It expresses the policy of prohibiting the destruction, disturbance or modification of any wetland, except where it is shown that the functional integrity of such wetland will not be significantly adversely affected by such disturbance. There has been no such showing regarding Map Amendment 48. It is also an expressed policy in the Plan to establish and promote a scenic corridor along U.S. 1, and prohibit development along U.S. 1 that disturbs the natural horizon. (See Sections 2-103, 104, 105 and 109, Vol. II, Keys' Comprehensive Plan.) Approval of this Map Amendment is inconsistent with these policies since SC zoning allows much more intensive use of the property, placing a greater demand on water resources and other infrastructure in the Keys. Bud and Patricia Brothers have requested the rezoning of certain undeveloped properties they own on Big Pine Key, known as Long Beach Estates, consisting of approximately 14 acres planned for a motel site, and 30 lots of greater than one acre each. These requests are for Map Changes 61 and 63 (Case Nos. 88-1074 and 88-1075 RP). These properties are currently zoned NA, and the rezoning sought is SR. Existing conditions consist of red mangrove, hammock species, sea grape, pond apple, bay cedar and similar species. Map Amendments 61 and 63 have not been shown to be consistent with the Future Land Use Element in that they would reasonably result in development which would have significant adverse affects on wetland areas, beaches, berms and the quality of nearshore waters. (See Sections 2-104, 105 and 107.) The requested rezonings of the Brothers' Properties (Map Amendments 48, 61 and 63) would be inconsistent with the Principles for Guiding Development. Specifically, they would adversely affect the shoreline and marine resources, including mangroves and wetlands, native tropical vegetation, dunes, water quality and the natural scenic resources of the Florida Keys. Petitioners failed to present competent substantial evidence in support off these requested Map Amendments. There is no demonstrated need for additional commercial development in the Little Torch Key area. BIG PINE KEY Petitioners Schirico Corporation and BHF Corporation have filed Map Amendments 66 and 67, respectively, (Case Nos. 88-1076 and 88-1077 RP) which seek to rezone their properties on Big Pine Key to SC from NA and SC (Schirico), and from SR (BHF). Although there was conflicting evidence concerning the exact extent of wetlands on the Schirico property, both the Petitioner and the Department presented evidence demonstrating that a significant portion of the property in Map Amendment 66 is wetland with wetland species, including black, white and red mangroves, and buttonwood. The property is in a transition zone between uplands and wetlands, and is crisscrossed with mosquito ditches. The requested Amendment is for the entire undeveloped parcel of almost ten acres, designating it all SC. The BHF parcel is approximately 5 acres in size, undeveloped, and is located off of U.S. 1 with SC property between it and U.S. 1. The property is also adjacent to SR and IS (improved subdivision) properties. The traffic flow along an arterial road from this parcel to U.S. 1 is very heavy due to existing commercial development and the county road prison camp located in close proximity. This parcel acts as a buffer between commercial uses, and would be an ideal site for affordable housing. There is an excess of undeveloped SC property on Big Pine Key, and, therefore, both of these proposals are inconsistent with sound economic development. Map Amendment 66, requested by Schirico, is inconsistent with the Principles of Guiding Development which seek to protect mangroves, wetlands, fish and wildlife, and their habitat, as well as native tropical vegetation, and to limit adverse impacts of development on water quality in the Keys. Map Amendment 67, requested by BHF, is inconsistent with the Principles for Guiding Development which emphasize the need to strengthen local government's land use management capabilities, provide affordable housing, and to protect the public welfare. THE MEDIAN STRIP The following Petitioners own property which comprise the median strip between U.S. 1 and County Road 5 on Plantation Key: Robert Vaughn (Map Amendment 170; Case No. 88- 1094 RP); Diane Droney (Map Amendment 172; Case No. 88-1095 RP); Jean Anderson (Map Amendment 173; Case No. 88-1096 RP); Monte Green (Map Amendment 174; Case No. 88-1097 RP); Harry Palen (Map Amendment 175; Case No. 88-1098 RP); Robert Vaughn (Map Amendment 176; Case No. 88-1099 RP); and Karl Beckmeyer and William Horton (Map Amendment 177; Case No. 88-1100 RP). In addition, Petitioners Outdoor Advertising of the Keys (Case No. 88-1067 RP), Dorothy M. Baer (Case No. 88-1092 RP) and C. W. Hart (Case No. 88-1093 RGA) support Map Amendments 170, 172-177. The median strip between U.S. 1 and County Road 5 is 120 feet deep and individual lots in the median are generally 60 feet wide. Petitioners each own from one to six lots in the median strip which are currently used and developed for substantially commercial purposes, such as cabinet making and sales, greeting card and novelty shop, retail plant nursery and office, a mini-mall with 17 stores, gas station and a professional office building. Current zoning of this property is SR, and Petitioners seek SC zoning with these Map Amendments. Although there is some undeveloped property in the median strip, there is no residential development in this strip. A 120 foot wide strip between highways is not appropriate for residential development. This median strip is primarily a commercial area, and Petitioners in this case have existing commercial uses, or own property adjacent to such commercial uses. Therefore, these applications should be dealt with together, as one package, rather than individually, according to Maria Abadal, the Department's planning manager who directs the critical area program in the Keys. Abadal testified that commercial areas should be zoned for commercial uses, and SC is a commercial zoning classification. Donald Craig also testified that some of these Map Amendments should be approved because SR is intended to encourage residential development, and residential uses are not appropriate in a median strip. He noted that other median strips in the Upper Keys have SC zoning. Finally, Bernard Zyscovich confirmed that the character of this strip is clearly commercial, and it is not appropriate for residential development. Of particular relevance to these Map Amendments are the following provisions of the Keys' land development regulations: Sec. 9-106. Purpose of the Sub Urban Commercial District (SC) The purpose of this district is to establish areas for commercial uses designed and intended primarily to serve the needs of the immediate planning area in which they are located. This district should be established at locations convenient and accessible to residential areas without use of U.S. 1. Sec. 9-107. Purpose of the Sub Urban Residential District (SR) The purpose of this district is to establish areas of low to medium density residential uses characterized principally by single-family detached dwellings. This district is predominated by development; however, natural and developed open space create an environment defined by plants, spaces and over-water views. All of Petitioners' properties allow access from County Road 5, and, therefore, can be used without disrupting the flow of traffic along U.S. 1. Most of Petitioners' existing commercial buildings are less than 2500 square feet. Buildings of this size are allowed as a matter of right in SC zoning, but are a conditional use in SR zoning. Therefore, if destroyed by fire or natural disaster, Petitioners could not replace existing structures as a matter of right under their current SR zoning, but could do so under SC zoning sought by these Map Amendments. Maria Abadal expressed the Department's opposition to these Map Amendments, which she stated ware inconsistent with the policies expressed in the Keys' Comprehensive Plan to restrict upland clearing along U.S. 1, prohibit development that is disruptive of the natural horizon along U.S. 1, and promote a scenic corridor along U.S. 1. However, these parcels are already cleared, and have been used for commercial purposes for many years. There is, therefore, no basis for a finding of inconsistency based upon these policies. She also testified that these Amendments are inconsistent with the Principles for Guiding Development which seek to protect the historical heritage, character, and natural scenic resources of the Keys. There is no basis to find that an existing commercial area will be inconsistent with these Principles since there is no evidence in the record of any unique historical heritage, character or scenic resources associated with these commercial uses. By recognizing the existing character of these parcels, and allowing their continued commercial use as a matter of right in the event of destruction by fire or a natural disaster, approval of these Map Amendments would appear to reduce the need for new commercial uses elsewhere on Plantation Key, while assuring continued citizen access to long-standing commercial activities. THE SEWAGE PLANT NEIGHBOR Robert and Judy Wittey have filed Map Amendment 194 which seeks to rezone their 100 foot by 152.47 foot lot on Plantation Key from IS (Improved Subdivision) to SC (Case No. 88-1113 RP). Petitioners currently use this property to operate a commercial air conditioning business, with fiberglassing, welding and associated storage. There is a 5200 square foot commercial building on the property. Surrounding uses include a condominium, with its sewage treatment plan located immediately adjacent to the Wittey property, a high school athletic field, with a sewage treatment facility within 150 feet of this property, the high school's automotive repair garage and vocational training facilities, and a commercial contracting business. A generator for the condominium is also located next to this property. There are no single-family residential uses on the street where this property is located. The Wittey property is not part of a platted subdivision. Under its current IS zoning, the building located on this property is a nonconforming use, and may not be expanded or reconstructed if destroyed by fire or a natural disaster. SC is the lowest intensity land use designation that could be applied to this property which would result in the current structure being a conforming use. In pertinent part, the Keys' land development regulations provide that the purpose of the IS designation is to accommodate the legally vested residential development rights of the owners of subdivision lots that were lawfully established and improved prior to the adoption of the regulations. There was no showing of inconsistency with the Principles for Guiding Development if Map Amendment 194 were to be approved. Specifically, it was not shown that approval of this Map Amendment would have an adverse impact on public facilities or the natural resources. The Petitioners demonstrated that SC is, in fact, the appropriate zoning for this property, and that IS is totally inappropriate since this property is not part of a platted subdivision. There is no basis to zone this property IS based upon the existing uses surrounding this property. THE PILOT/FISH HOUSES Map Amendments 242, 243 and 245 involve the applications filed by Petitioners Coral Lake Realty, Inc. (Case No. 88-1114 RP), Jack and Dorothy Hill (Case No. 88-1115 RP) and Shirley Gunn (Case No. 88-1117 RP) for the rezoning of properties they own surrounding a basin, known as Lake Largo, on North Key Largo. The Coral Lake Realty property is the site of an existing restaurant, known as The Pilot House, and marina. The Gunn property is the former site of a commercial fish house, which was abandoned in 1985 due to a decline of commercial fish harvests and a loss of wholesalers. Gunn's property is also the location of a burned out building, a dive shop, and a few commercially leased docks. The Hill property is used to operate a commercial fish house, fish processing, and the patching and building of traps. These properties are one- half mile off of U.S. 1. Petitioners' properties are currently zoned CFSD-5 (Commercial Fishing-Key Largo), and they are seeking to have them rezoned MU (mixed use). In pertinent part, the Keys' land use regulations provide: Sec. 9-118. Purpose of the Commercial Fishing Special Districts (CFS). The purpose of these districts is to establish areas where various aspects of commercial fishing have been -traditionally carried out while prohibiting the establishment of additional commercial fishing uses which are inconsistent with the natural environment, immediate vicinity or community character of the area. Sec. 9-119. Purpose of the Mixed Use District (MU) The purpose of this district is to establish or conserve areas of mixed uses including commercial fishing, resorts, residential, institutional and commercial uses and preserve these as areas representative of the character, economy and cultural history of the Florida Keys. The only uses permitted as of right in a CFSD-5 district are commercial-fishing, detached dwellings and accessory uses. The MU designation allows, but does not encourage or promote, commercial fishing. It is designed for intense mixed uses, some of which would be inappropriate for this basin. There are areas in the Keys where fish houses are located in MU zoning. Petitioners have not demonstrated there is any shortage of MU areas in the Keys. According to Lane Kendig, an expert in comprehensive planning, promoting commercial fishing is one of the main aims of the Keys' Comprehensive Plan, and the CFSD zoning category is a primary method of implementing this aim. Because commercial fishing activities can only be located in areas such as this which have deep water access, CFSD zoning of properties with these site specific characteristics should be encouraged, and approval of these Map Amendments would be inconsistent with this objective of the Plan. The community character of the Lake Largo basin is heavily dominated by commercial fishing and associated activities, although some mixed uses are also present. (See Section 2-109.) It is surrounded by SR and IS districts, and existing residential uses. The Pilot House restaurant (Map Amendment 242; Case No. 88-1114 RP) is a nonconforming use in the CFSD-5 zone which could not be expanded, or replaced as of right if destroyed by fire or natural disaster. Bernard J. Costello, principal stockholder in The Pilot House, testified that MU zoning is being sought to allow the placement of more docks in the basin, and to make additional improvements to the restaurant which could not be allowed in CFSD-5. It is his intention to continue to use this property as a restaurant and marina if the Map Amendment is approved. The Hill fish house (Map Amendment 243; Case No. 88-1115 RP) processes, freezes and cooks fish which is primarily shipped in from other countries and states. Only 10 percent of the product handled through this fish house is caught locally in the Keys, while in 1972, all of the product was local. Due to the decline of local commercial fishing, about five years ago imported fish became the majority of product handled in this fish house. Some fishermen now sell directly to trucks, and bypass the fish houses. Recreational users now comprise a significant portion of boat slip renters on the basin. While there has been a decline in local commercial fishing, such uses are still present and the uses permitted as of right in CFSD-5 are more appropriate for this basin than those uses for which the MU designation was developed. These Map Amendments would be inconsistent with the community character of this basin, and would not comply with those Principles for Guiding Development which seek to strengthen the capabilities of local government for managing land use and development, limit adverse impacts of development on water quality, and protect the unique historic character and heritage of the Keys. "NOSEEUMS" Jerome and Mary Behrmann have filed Map Amendment 263 (Case No. 88- 1118 RP) seeking to have their property located on Key Largo rezoned from SR to SC. This property has been operated as a tropical plant nursery for about five years. Donald W. Ross has filed Map Amendment 268 (Case No. 88-1119 RP) seeking to also have property located on Key Largo rezoned from SR to SC. This property is used to operate an aluminum siding business. There is no access to these properties, except from U.S. 1. Petitioners' present uses are nonconforming in a district zoned SR, and, therefore, may not be modified, repaired or replaced if destroyed by fire or natural disaster. Both of these petitions deal with properties located on the same side of U.S. 1 in an area of intense natural vegetation and hardwood hammocks. With the exception of Petitioners' properties, the area immediately adjacent on the same side of U.S. 1 is undeveloped. However, on the opposite side of U.S. 1 is intense commercial development, including strip stores, used car sales, a flea market and convenience store. A power station is located to the north of these properties on the same side of U.S. 1. Due to the heavy infestation of microscopic insects, known locally as "Noseeums," resulting from natural vegetation on these and adjoining properties, residential development would be very difficult. These mosquito-like gnats become active in the early evening and at night, and are so small that they cannot be prevented from entering residences by screening. Local residents will not go outdoors after dark in areas infested with "Noseeums." Petitioners' commercial activities do not require them to be on these properties at night. In the area adjoining Petitioners' properties, U.S. 1 is a four lane divided highway which forms a natural land use, and zoning barrier from the commercial activities on the opposite side of the highway. Petitioners' parcels represent relatively small portions of an area zoned SR which extends approximately one mile along U.S. 1, and is from 650 to 700 feet deep. The only issue in this case is whether Petitioners' properties should be rezoned SC, which would leave the rest of this area zoned SR. Such a rezoning of these parcels to SC would be a classic case of spot zoning since it would confer special benefits to these owners without regard to adjoining owners, and would destroy and disrupt the overall integrity of this SR district. There are sufficient undeveloped SC properties in this immediate area, and there is, therefore, no demonstrated need for additional SC zoning. Petitioners' expert, Bernard Zyscovich, acknowledged that those properties presently zoned SR which adjoin Petitioners' properties could be used for residential development. This is an area in Key Largo where the County is attempting to direct residential development. Although it is not on the water and does not have a water view, there are other residential areas in the Keys which lack these amenities. The rezoning to SC sought by Map Amendments 263 and 268 would be inconsistent with the following objectives and policies of the Keys' Comprehensive Plan (Sections 2-106 and 109): To protect the functional integrity of upland hammocks that contribute to the tropical and native character of the Florida Keys, particularly along U.S. 1 and County Road 905. * * * To restrict the clearing of upland vegetation that contributes to the tropical and native character of the Florida Keys along the U.S. 1 and County Road 905 corridors. * * * To limit the development of new land uses to intensities and characters that are consistent with existing community character where a community character change would have undesirable social, cultural, economic or environmental impacts. * * * To establish and promote a scenic corridor along U.S. 1 and County Road 905. These Map Amendments would also be inconsistent with those Principles for Guiding Development that mandate protection of upland resources and native tropical vegetation such as hardwood hammocks, limiting adverse impacts of development on water quality, and enhancement of natural scenic resources. CAPTION'S COVE Robert Maksymec is the principal stockholder of development partnerships known as Tormac and Planmac which are Petitioners in Cases 88-1121 and 88-1122 RP, respectively, and which are seeking Map Amendments 135 and 136 for certain undeveloped, scarified properties owned by Petitioners surrounding a basin known as Captain's Cove on Lower Matecumbe Key. These properties are zoned CFA (commercial fishing area) and Map Amendments 135 and 136 seek SC zoning. Although this property is located between Captain's Cove and U.S. 1, it is accessible by arterial roads without using U.S. 1. Petitioners propose to develop these properties into a hotel with 52 boat slips, and marine shops. Deed restrictions on the property bar commercial fishing. The Department of Environmental Regulation has issued Permit Number 441008425 to construct a 52 boat slip and docking facility conditioned on non- commercial uses, and prohibiting fuel or storage facilities, as well as boat cleaning, hull maintenance and fish cleaning at the permitted facility. Under CFA zoning, Petitioners' proposed use is nonconforming. CFA allows more commercial and intense uses than CFSD-5. In pertinent part, the Keys' land use regulations provide: Sec. 9-106. Purpose of the Sub Urban Commercial District (SC) The purpose of this district is to establish areas for commercial uses designed and intended primarily to serve the needs of the immediate planning area in which they are located. This district should be established at locations convenient and accessible to residential areas without use of U.S. 1. * * * Sec. 9-116. Purpose of the Commercial Fishing Area District (CFA) The purpose of this district is to establish areas suitable for uses which are essential to the commercial fishing industry including sales and service of fishing equipment and supplies, seafood processing, fishing equipment manufacture and treatment, boat storage and residential uses. These properties are surrounded by commercial and marine commercial uses, and across the basin is a residential area. There is no demonstrated need for undeveloped SC properties in this area. Since these properties are located on a water basin with residential areas in close proximity, SC zoning is inappropriate and inconsistent with the Principles For Guiding Development, which seek to limit the adverse impacts of development on water quality, and ensure sound economic development. It also appears, however, that the current CFA zoning may also be inappropriate for this property due to existing deed restrictions, DER permit conditions, and the decline in commercial fishing activities in the Keys in recent years. Nevertheless, the only issue in dispute in this case is whether the SC designation sought in Map Amendments 135 and 136 is consistent with the Principles For Guiding Development, and it is not. THE OLD POST OFFICE Petitioner Catherine Nash has filed Map Amendment 215 (Case No. 88- 1128 RP) by which she seeks to have property she owns in Tavernier, known as The Old Post Office, rezoned from its current SR to SC. The subject property is currently used to operate an art gallery and related business, but was formerly used from 1926 to about 1960 as a grocery store and post office. The only access to this property is from U.S. 1. The property is surrounded by SR zoning. Across U.S. 1 there are SC zoned properties. There was conflicting testimony whether Petitioner's existing building could be rebuilt in SR zoning if destroyed by fire or natural disaster. It has, therefore, not been established that SC zoning is necessary to protect the present existing use of this property. Due to the lack of access to the property other than from U.S. 1, it fails to meet an essential requirement for SC zoning. Approval of Map Amendment 215 would also represent a clear case of spot zoning since this would be an isolated SC parcel amid an SR district. Petitioner's Map Amendment has not been shown to be consistent with the Principles For Guiding Development, and in particular those which seek to strengthen local government's capabilities for managing land use and development, and which seek to ensure sound economic development which is compatible with the unique historic character of the Keys. TROPIC SOUTH Petitioner Tropic South was represented at hearing, but no evidence in support of Map Amendment 91 (Case No. 88-1083 RP) was offered. ECONOMIC IMPACT STATEMENT There is no evidence that the Department has developed an economic impact statement (EIS) for those portions of the proposed rules disapproving the above referenced Map Amendments previously approved by Monroe County. The Department did prepare an EIS for those Map Amendments transmitted by Monroe County which the Department approved, but those Amendments, and that EIS, are not the subject of this proceeding.
Recommendation Based upon the foregoing, it is RECOMMENDED that the Department approve Map Amendments 170 and 172 through 177 (The Median Strip), as well as 194 (Sewage Plant Neighbor), and otherwise disapprove all other Map Amendments which are the subject of this proceeding, as proposed in Rules 9J-14.006 and 9J-15.006, Florida Administrative Code. Further, it is RECOMMENDED that the Department prepare an Economic Impact Statement which addresses the impact of its proposed action on Petitioners. DONE and ENTERED this 28th day of March, 1989, in Tallahassee, Leon County, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of March, 1989.
Findings Of Fact The Respondent, T & L Management, Inc., was issued permits numbered AG800-10 and AG798-10 on or about April 9, 1982. These permits were for the erection of signs on the south side of I-10, approximately one mile east of SR 291 (Davis Highway), in Escambia County, Florida. They were issued because of the existence of a business known as Gail's Beauty Shop within 660 feet of the interstate and within 800 feet of tide proposed sign location. The Respondent submitted the applications for these permits, and designated on the applications that the sign location would be in a commercial or industrial unzoned area within 800 feet of a business. On each of these applications the Respondent certified that the signs to be erected would meet all requirements of Chapter 479 of the Florida Statutes. Prior to the issuance of these permits, the subject site was inspected by the Department's outdoor advertising inspector and by her supervisor, who approved the applications because of the existence of a beauty shop nearby the proposed sign location. The Department's inspector had visited this site previously when the Respondent had applied for a permit at this location, and had disapproved the application because no commercial activity could be seen from the interstate. Subsequently, foliage was cut, and the site was reinspected pursuant to the Respondent's subject applications. With the shrubbery trimmed and the vegetation cleared out, the rear side of the building housing Gail's Beauty Shop was visible from I- The inspector and her supervisor concurred in the approval of the permits. Gail Wilcox and her family have lived on the property nearby the site of the Respondent's signs for 19 years. This property is within 660 feet of I-10, facing away from the interstate. It is within 800 feet of the Respondent's signs. In April of 1982 when the subject applications were submitted, Gail Wilcox operated a beauty shop in the building where she and her husband and daughter made their residence. This house had been constructed with an attached double garage on one side of it. It had been remodeled so that the side with this double garage was converted to a one-car garage with the remainder of the garage made into a business area. This business area on the far end of the house is where Gail's Beauty Shop was located. It had its own separate entrance in the front, with no entrance into the remaining garage or into the house itself. The entire building was under one roof, as it had been before the double garage was converted. This building is otherwise used as the Wilcox residence. There is no question that Gail Wilcox operated a beauty shop at this location. She had an occupational license, a business telephone, and there was a sign on the window in front "Gail's Beauty Shop." Nevertheless the photographs in evidence show this area to be residential in nature. It was visible to traffic on the interstate when the applications were submitted and when they were approved. Sometime prior to February of 1985, the site was inspected by the Department's Right-of-Way Administrator who determined that the permits had been issued in error because the business activity used to qualify the site as unzoned commercial was being conducted in a building used principally as a residence. As a result, the Department issued its notice of violation advising the Respondent that the subject sign permits were being revoked.
The Issue The issue at the hearing was whether proposed sign locations located in Holmes County 5,000 feet West of State Road 79 on the South side of Interstate 10 and 7500 feet East of State Road 79 on the North side of Iterstate 10 should be permitted. 1/
Findings Of Fact Petitioner applied to Respondent for permits on two proposed sign locations in Holmes County, Florida. The locations were 5,000 feet West of State Road 79 on the South side of Interstate 10 and 7500 feet East of State Road 79 on the North side of Interstate 10. Both locations are in areas which are zoned commercial and otherwise meet the Department's requirements for spacing, etc. The area in question was zoned commercial in 1988 when the County adopted Ordinance Number 88-02 as a comprehensive zoning plan. The relevant commercial area parallels Interstate 10, Highway 90 and State Road 79 in which many commercial activities are presently located. The portions paralleling Interstate 10 West of State Road 79 are located on the North side of I-10 and run west, terminating at County Road 173. The portions paralleling I-10 East of State Road 79 are located on the North and South sides of I-10 and run east for over two miles. While some may disagree that the areas designated for commercial or industrial use will develop those uses in the future, it is clear that commercial or industrial development is a reasonable use of this land for comprehensive zoning purposes and neither the physical dimensions nor configurations of the area prevent or prohibit such use. Prior to the enactment of Ordinance 88-02, Holmes County held several public hearings and worked with a company which is an expert in land use planning in developing this ordinance. The ordinance considers all reasonable land uses and encompasses all unincorporated areas of the County. The ordinance is consistent with the County's comprehensive plan and with the purposes of the ordinance stated therein. The Ordinance does not permit lesser uses of the commercial or industrial areas. Commercial or industrial use is the only use allowed in the commercial and industrial areas. Neither variance or special exceptions are required for a commercial or industrial use of those areas. The ordinance is clearly comprehensive zoning and was not adopted by the County for the primary purpose to permit signs. Numerous other signs within this same area have been permitted by DOT since the adoption of Ordinance 88-02.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a Final Order permitting signs located in Holmes County 5,000 feet West of State Road 79 on the South side of Interstate 10 and 7500 feet East of State Road 79 on the North side of Interstate 10. DONE and ENTERED this 18th day of July, 1989, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 18th day of July, 1989.
The Issue The issue is whether Village Ordinance No. 01-08, which regulates sexually oriented businesses, is inconsistent with the Principles for Guiding Development in the Florida Keys Area of Critical State Concern, pursuant to Section 380.0552, Florida Statutes.
Findings Of Fact On June 14, 2001, Respondent Islamorada, Village of Islands (Village), adopted Ordinance No. 01-08 (Ordinance). The Ordinance generally regulates the "location and separation" of "sexually oriented businesses." On June 19, 2001, Respondent Department of Community Affairs (DCA) entered a final order determining that the Ordinance is consistent with Section 380.0552, Florida Statutes (Principles for Guiding Development). In particular, the Ordinance applies to "regulated business[es]." These are defined as "[s]exually oriented bookstore[s]," "[s]exually oriented domination/submission parlor[s]," "[s]exually oriented mini motion picture theater[s]," "[s]exually oriented motel[s]," "[s]exually oriented motion picture theater[s,]" [e]ncounter studio/modeling studio[s]," and "[n]ude entertainment establishment[s]." The Ordinance defines a "[n]ude entertainment establishment" as: any establishment which does or does not offer alcoholic beverages for sale or consumption but does feature male or female entertainers, performing partially clothed, or completely nude, displayed in a setting, stage, or cubicle within a business, which has as its principal and incidental purpose the offering for viewing to adults of performances which have as their dominant or primary theme matters depicting, describing or relating to "specified sexual activities" or "specified anatomical areas," as defined below. The Ordinance defines "specified sexual activities" as: Human genitals in a state of sexual stimulation, arousal, or tumescence; or Acts of human anilingus, bestiality, buggery, cunnilingus, coprophagy, coprophilia, fellatio, flagellation, masochism, masturbation, recrophilia, pederasty, pedophilia, sadism, sadomasochism, sexual intercourse or sodomy; or Fondling or other erotic touching of human genitals, pubic region, buttock, anus, or female breast; or Excretory functions as part of or in connection with the activities set forth in subsections (1) through (3). The Ordinance defines "specified anatomical areas" as: Less than complete and opaquely covered: Human genitals and pubic region; or Cleavage of the human buttocks; or That portion of the human female breast encompassed within an area falling below the horizontal line one would have to draw to intersect a point immediately above the top of the areola, including the areola; this definition shall include the entire lower portion of the human female breast, but shall not include a portion of the cleavage of the human female breast exhibited by a dress, blouse, shirt, leotard, bathing suit or other wearing apparel, provided the areola is not so exposed; and Human male genitals in a discernible turgid state, even if completely and opaquely covered. The Ordinance provides that "regulated businesses" are permitted within the Industrial "I" Future Land Use category, subject to several restrictions. These restrictions include a 400-foot setback from the property line of any property designated on the future land use map, zoned, or used for residential purposes; or a 100-foot setback from the property line of any property used for a place of worship, park, or school. The Ordinance requires that, within 90 days of the effective date, all legal nonconforming "regulated businesses" shall conform to the provisions of the Ordinance, or the use shall be terminated. The Ordinance explains the legislative intent underlying its passage as follows: It is the intent and purpose of this [Ordinance] to regulate the location and separation of sexually oriented businesses, referred to herein as "regulated businesses," which, because of their very nature, are recognized as having serious objectionable operational characteristics, particularly when they are located near properties designated, zoned or used for residential purposes or used for places of worship, parks or schools, thereby having a deleterious effect upon the adjacent areas. Further, it is recognized that the location of even one regulated business near such an area causes such deleterious effects on that area. Special regulation of these businesses is necessary to ensure that these adverse effects will not contribute to the blighting or downgrading of the surrounding neighborhood, as provided herein. . . . Petitioner operates a restaurant and nightclub known as Woody's in Islamorada. Originally a roadhouse, Woody's has been in business since 1987. During the time that it has been in business, Woody's has offered adult entertainment featuring the band known as "Big Dick and the Extenders." Jack Snipes, the large man who is the "Big Dick" of "Big Dick and the Extenders," is a part owner of Woody's. The double entendre implicit in the name of the band exemplifies the sexual content that laces the band's show, which relies heavily on sexually explicit language, sexual props, and occasional baring of female breasts and male and possibly female buttocks. Historically, most of the nudity was occasional, largely spontaneous, and displayed by the crowd, rather than the band or employees of Woody's (Mardi Gras-Style Nudity). In May 2001, Woody's abandoned Mardi Gras-Style Nudity in favor of live nude dancing performed by dancers hired by Woody's. The dancers performed for the entire crowd or, for a tip, performed for a specific customer. However, Woody's allowed only dancing on the stage or table and prohibited physical contact between any dancer and any customer. Woody's is unobtrusive, although it abuts U.S. Route A1A. Surrounding Woody's are restaurants, boat yards, marinas, and stores. Woody's is not a notorious focal point of drug activity or prostitution. To the contrary, Mr. Snipes and his band have given freely of their time for charitable fundraising, according to the pastor of a local Methodist church. Some island residents view Woody's as an essential ingredient of their community and would not require Woody's to relocate. Other residents, such as those serving on the Village Council, probably do not view Woody's as an essential ingredient of their community and certainly would require Woody's to relocate. Woody's is not presently in an Industrial future land use category. The two areas designated Industrial on Islamorada's future land use map are on Plantation Key and comprise 24 acres, of which ten acres would be unavailable to a regulated business such as Woody's due to buffering requirements. DCA overcame all of Petitioner's objections to the Ordinance. Petitioner claimed that the Ordinance lacked specificity, such as floor-area ratios. However, the Ordinance applies an overlay of a new permitted use--regulated businesses--in areas designated Industrial. Other provisions of the comprehensive plan and land development regulations governing land uses in Islamorada will provide more specific guidelines concerning permitted land uses, including regulated businesses. Petitioner claimed that Woody's would be forced by economic necessity to relocate, if it had to revert to Mardi Gras-Style Nudity and that Woody's could not find an economically viable site within the Industrial areas in Islamorada. DCA proved that these claims were ungrounded. Petitioner claimed that the relocation of Woody's to an Industrial area would take it out of the commercial area in which it is presently located and place it in closer proximity to a church, park, and school. However, DCA proved that this relocation represented no more than a potential for incompatibility of land uses. More importantly, DCA proved that this relocation produced no meaningful inconsistency between the Ordinance and the comprehensive plan and land development regulations governing land uses in Islamorada such that would jeopardize Islamorada's planning capabilities. The Ordinance is not inconsistent with the principle of strengthening Islamorada's capabilities for managing land use and development, so that the local government may achieve these objectives without the ongoing designation of a critical area of state concern. An inconsistency with this criterion of the Principles for Guiding Development must be sufficiently significant to jeopardize the ability of the local government to engage in effective land use planning so as to protect the natural environment of the Florida Keys. DCA has proved that possible inconsistencies, if any, between the Ordinance and any provision of the comprehensive plan or land development regulations governing land uses in Islamorada would be insubstantial. The Ordinance is not inconsistent with the principle of ensuring the maximum well-being of the Florida Keys and its citizens through sound economic development. Neither the Ordinance nor the disappearance or relocation of Woody's and "Big Dick and the Extenders" will have any measurable impact on the economy of the Florida Keys. The Ordinance is not inconsistent with the principle of protecting the public health, safety, and welfare of the citizens of the Florida Keys and maintain the Florida Keys as a unique Florida resource. Neither the Ordinance nor the disappearance or relocation of Woody's and "Big Dick and the Extenders" will have any measurable impact on the public health, safety, and welfare of the citizens of the Florida Keys or the maintenance of the Florida Keys as a unique Florida resource. The Ordinance and the disappearance or relocation of Woody's and "Big Dick and the Extenders" will have no impact whatsoever on the natural resources and public facilities typically within the scope of the Principles for Guiding Development.
Recommendation It is RECOMMENDED that the Department of Community Affairs enter a final order determining that Islamorada Ordinance No. 01-08 is consistent with the Principles for Guiding Development, as set forth in Section 380.0552(7), Florida Statutes. DONE AND ENTERED this 15th day of February, 2002, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 15th day of February, 2002. COPIES FURNISHED: Steven M. Seibert, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100 Cari L. Roth, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325 Tallahassee, Florida 32399-2100 Steven G. Mason Steven G. Mason, P.A. 1643 Hillcrest Street Orlando, Florida 32803 Karen A. Brodeen, Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 315 Tallahassee, Florida 32399-2100 Daniel A. Weiss Weiss Serota 2665 South Bayshore Drive, Suite 420 Miami, Florida 33133
The Issue The issue in this case is whether Monroe County Ordinance 035-2007, which amends the County's Beneficial Use Determination (BUD) procedures, is consistent with the Principles for Guiding Development in the Florida Keys Area of Critical State Concern (ACSC), which are in Section 380.0552(7), Florida Statutes (the Principles for Guiding Development).
Findings Of Fact Monroe County Ordinance 035-2007 was adopted on July 18, 2007. The Ordinance makes changes in the County's BUD procedures, non-judicial procedures by which a property owner may seek relief from the literal application of County Comprehensive Plan provisions and land development regulations (LDRs). It repeals Article VI, Division II, Sections 9.5-171 through 9.5-174 of the Monroe County Code and replaces them with Sections 9.5-171 through 9.5-179. The Petition alleges that Ordinance 035-2007 is inconsistent with the Principles for Guiding Development because it increases the time and expense of obtaining a BUD. The Petition also alleges that Ordinance 035-2007 exacerbates "condemnation blight" in the Florida Keys and will hold down the apparent market value of undeveloped land in the Florida Keys so that the State and County can acquire undeveloped lands at less than fair market value. Petitioners There was no evidence to prove the standing of several of the Petitioners. The evidence presented on Petitioners' standing is reflected in the following findings of fact. Salvador Guttierrez filed for a BUD determination on a lot he owns in Rock Harbor in the Florida Keys and that the application was denied under the BUD procedures in effect at this time (i.e., before the challenged amendments.) The following Petitioners "own land, vacant land, in Monroe County": Roger Akers and Sandra Henning, as tenants in common; Ida Mae Cornblum and Marilyn Schwack, as tenants in common, and Bella Schwartz; E&O Land Development Corp. and Enos Mitchell; Richard Melahn; Stephen Rohaty; Herbert Shaw, Jr.; David T. Voit; and Kenneth R. Wilson and Christine E. Wilson, as tenants by the entirety. It was alleged that those Petitioners intend to file BUD applications, but there was no evidence to that effect. Ed Lewis, LLC, and C.O. Jones, Jr., LLC, own undeveloped platted lots with platted access roads in the Florida Keys that have been acquired beginning in 2003. Mr. Gutierrez testified without contradiction that eighty-five percent of those lots cannot be developed as currently zoned, are unlikely to be rezoned, and cannot obtain building authorization under the County's Rate-of-Growth Ordinance (ROGO) because they are in Tier 1 of the County's new Tier System. He also testified without contradiction that the LLCs have decided to file BUD applications on those lots. Effect of Amendments The Petition alleges that Ordinance 035-2007 will increase the time and expense of obtaining a BUD. Without Ordinance 035-2007, applicants in the BUD process learn the requirements of obtaining a BUD during the processing of an application. As a result, the process can take more time and cost more. Ordinance 035-2007 essentially details the requirements of obtaining a BUD and places time limits on BUD procedures. This makes the process more predictable and coherent. Ordinance 035-2007 does not make substantive changes or other significant procedural changes. By better detailing the BUD process, Ordinance 035-2007 improves the BUD process and makes it more efficient, making it more consistent with Comprehensive Plan Future Land Use Element Policy 101.18.5, which requires the adoption of the BUD procedure. In so doing, Ordinance 035-2007 will strengthen the County's capabilities for managing land use and development so that it is able to achieve these objectives without the continuation of the Florida Keys ACSC designation. It also will help to ensure the maximum well-being of the Florida Keys and its citizens through sound economic development and help protect the public health, safety, and welfare of the citizens of the Florida Keys and maintain the Florida Keys as a unique Florida resource. It was not proven that Ordinance 035-2007 will increase the time or expense of obtaining a BUD. There was evidence that the State and County have purchased undeveloped lands in the Florida Keys at lower prices than some other properties in the Florida Keys. It was not proven that there is "condemnation blight" in the Florida Keys (or that Ordinance 035-2007 will exacerbate "condemnation blight" in the Florida Keys ). It also was not proven that Ordinance 035-2007 will hold down the apparent market value of undeveloped land in the Florida Keys so that the State and County can acquire undeveloped lands at less than fair market value.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that that the Department of Community Affairs enter a Final Order that Monroe County Ordinance 035-2007 is consistent with the Principles For Guiding Development for the Florida Keys Area of Critical State Concern. DONE AND ENTERED this 14th day of October, 2008, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 2008. COPIES FURNISHED: Thomas Pelham, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard Suite 100 Tallahassee, Florida 32399-2100 Shaw Stiller, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Suite 325 Tallahassee, Florida 32399-2160 James S. Mattson, Esquire Post Office Box 586 Key Largo, Florida 33037-0586 Derek V. Howard, Esquire Monroe County Attorney's Office 1111 12th Street, Suite 408 Key West, Florida 33040-3005 Andrew M. Tobin, Esquire Post Office Box 620 Tavernier, Florida 33070-0620 Richard E. Shine, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100
The Issue Whether the Petitioner's applications for two outdoor advertising permits, dated June 1, 1999, and received by the Respondent on June 10, 1999, should be granted or denied.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency responsible for, among other things, issuing permits and regulating outdoor advertising structures and signs along the state highway system, the interstate system, and the federal-aid primary system. Section 479.02, Florida Statutes (1999). In the applications received by the Department on June 10, 1999, AK Media sought permits for two signs to be attached to one monopole, one sign to be facing north and one sign to be facing south. The applications stated that the proposed location of the monopole is the west side of State Road 7/U.S. 441, 2.4 miles north of Atlantic Avenue in Palm Beach County, Florida, and approximately 57 feet from the State Road 7 right-of-way. AK Media has leased the proposed site from its owner. As a required part of the applications, AK Media submitted two Florida Department of Transportation forms executed on April 12, 1999, by Jon Mac Gillis, Principal Site Planner for Palm Beach County. The current zoning of the proposed site was identified on the form as "CG Commercial General," and the designation of the proposed site on the future land use map was identified as "SA", that is, "Special Agriculture." It was further indicated on the form executed by Mr. Gillis that, within the "SA" designation, commercial and industrial uses were the "predominate uses allowed within 660' of the highway adjacent to the proposed site." On May 26, 1999, Palm Beach County issued a Special Permit allowing AK Media to register the proposed billboard. In its Notice of Denial of Application, the Department identified one basis for denying AK Media's applications as follows: Site is in un-permittable land use designation. Pursuant to Section 479.111, Florida Statutes, outdoor advertising signs must be located in commercial or industrial zoned or unzoned areas. Section 479.01(3) defines "commercial or industrial zone" as an area "designated predominately for commercial or industrial use under the future land use map of the comprehensive plan adopted pursuant to Chapter 163." The land use designation for the subject site is SA. The Palm Beach County, Florida, Official Zoning District Map in effect at the time of the hearing identified the zoning of the proposed site of the outdoor advertising signs as "CG" (Commercial General). The Future Land Use Atlas of Palm Beach County in effect at the time of hearing designated the proposed site of the outdoor advertising signs as "SA" (Special Agriculture). Palm Beach County's 1989 Comprehensive Plan, as revised December 13, 1999, was in effect at the time of the hearing. "Special Agriculture Uses" are defined therein in pertinent part: The following land uses and intensities are allowed in areas designated Special Agriculture where permitted by the terms of the Unified Land Development Code: Fruit and vegetable markets and terminals for farm products; Agricultural production uses including, but not limited to, produce packing plants, poultry and egg production, nurseries, growing, livestock, kennels, training centers and potting soil manufacturing; Agriculturally related services such as feed and grain stores and farm implement sales and service and fueling areas restricted solely to agricultural activities; Mining, subject to the limitations; Uses and structures accessory to a permitted use; and Limited residential uses as described below, farm labor quarters and camps; caretaker's quarters, such as for pump houses; dwelling quarters and farm residences for bona fide farm operations; or dwelling units allowed as alternative use. The Palm Beach County Comprehensive Plan defines "Commercial Agricultural Development" as follows: "Agriculture conducted for commercial purposes within the Agricultural Production Plan Category North of L-8 Canal and East of the North Tieback Canal, the AG Reserve Plan Category, and those activities classified as special agriculture." In concluding that AK Media's applications should be denied, the Department's field inspector confirmed the "SA" designation on the Palm Beach County future land use map but disregarded the certification of the Principal Site Planner for Palm Beach County that the proposed site was zoned "GC" and that predominately commercial uses were allowed within areas designated "SA" in the future land use map. The proposed site of the outdoor advertising signs is designated for commercial use in Palm Beach County's future land use map, albeit commercial use related to agriculture, and the site is zoned General Commercial, as shown on Palm Beach County's current zoning map. The proposed site is, therefore, located within a commercial zone.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order granting the applications of AK Media, Inc., for permits to erect outdoor advertising signs on the site identified in the applications. DONE AND ENTERED this 8th day of June, 2000, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 June, 2000.
