Resolution 603-1989
9.5-80, M.C.C.), see Sec.
chapter (Sec. 9.5-61
9.5-65(a), M.C.C.;
c) The proposed gas station was not consistent
with purposes, goals, objectives and standards of the
[Monroe County Comprehensive Land Use] plan and this
M.C.C. ;
use district designation) as set forth in Sec. 9.5-206,
Comprehensive Land Use Plan in that the Director failed
to consider the effect of the gas station on near-shore
water quality or endangered species;
b) The proposed gas station, given the nature of
the neighborhood, did not fit within the purpose of the
Suburban Commercial District (the subject sites' land
2 of the Monroe County
inconsistent with Vol.
was
Order
Development
Director's
The
a)
2. Subsequently, a neighboring property owner, a Mr.
Mander, and an organization, Property Owners of Lake Surprise
Estates, hereinafter Appellees, pursuant to Sec. 9.5-68(f),
M.C.C., filed a timely request for a public hearing before the
Planning Commission.
3. The case came to hearing before the Planning Commission
on August 17, 1989. The Planning Commission held:
16, 1989 for a gas station to be located on lots 47-50, Block 14,
Lake Surprise Estates (MM 106).
c~ ("I')
~.' ':'t
t::: ~E IT.RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF
,,,,,..,,
,~.
. I'- ."...... 1
~ONReE COUN~ FLORIDA:
_... ", ,
L.,;::':" .,..'
E S!1.~s case had its genesis in the Planning Director's
~ss~ce2 t~ Mr. Egan Adams, hereinafter Appellant, of a minor
conditional use approval (hereinafter development order) on June
RESOLUTION NO. 603-1989
A RESOLUTION REVERSING PLANNING COMMISSION
RESOLUTION NO. 16-89 AND REINSTATING THE
THE PLANNING DIRECTOR'S DEVELOPMENT ORDER
12-89 WITH MODIFICATIONS.
Board of County Commissioners
.,)
/'
d) The proposed use would be inconsistent with the
community character of the area, see. 9.5-65(b),
M.C.C. ;
e) The proposed gas station did not minimize the
adverse effects on surrounding properties, see Sec.
9.5-65(c), M.C.C.;
f) The proposed use will have an adverse effect on
the value of surrounding properties, see Sec.
9.5-65(d), M.C.C.;
g) The proposed gas station will not be served by
adequate public facilities, see Sec. 9.5-65(e);
h) The curb cut for the proposed gas station is
not in conformity with Sec. 9.5-235(b) (1) (c), M.C.C.,
in that the cut will be within 400 feet of an existing
cut; (this holding impliedly vacates Resolution 45-87
of the Planning Commission);
i) The proposed gas station's ingress and egress
does not comply with the clear sight triangle
requirements of Sec. 9.5-427, M.C.C.;
j) The proposed gas station will be served by
inadequate public facilities in contravention of Sec.
9.5-292, M.C.C.; and
k) The proposed gas station does not fit within
the purposes of the Monroe County land development
regulations, see 9.5-1, M.C.C.
4. Based on our review of the record below, the arguments
of the respective parties, and examination of the applicable law,
we reverse the decision of the Planning Commission and reinstate
the Director's Development Order, with one modification noted
infra, for the reasons stated below:
a) The record reflects an adequate drainage plan
to insure both near-shore water quality and to protect
the only endangered species discussed in the record,
the Manatee. Therefore, the Planning Commission
erroneously concluded that the proposed gas station was
inconsistent with Vol. 2, Monroe County Comprehensive
Land Use Plan.
b) Given nearby commercial uses (a convenience
store and a marine repair shop and marina), the stated
purpose of the Suburban Commercial District and the
commercial uses allowed therein, the Planning
Commission erroneously determined that the proposed gas
station was not within the purposes of the Suburban
Commercial District, that the use would be inconsistent
with community character, that the use would not
minimize its adverse effects on surrounding property,
and that the use would adversely affect the value of
surrounding properties. Sees. 9.5-206, 9.5-65(b)(c)
and (d).
c) The Appellant presented a traffic study and an
ingress and egress design prepared by a P. E., and
presented expert testimony, in the form of a Mr.
Ornstein, planning consultant, concerning the site
plan. Appellees did not present any expert testimony
or studies but only non-expert opinions that the
proposed gas station will constitute a lethal
introduction onto U. S. 1. Therefore, there is
insufficient competent and substantial evidence in the
record to support the holding that the proposed gas
station does not comply with Sec. 9.5-427, M.C.C.
d) The Planning Director originally denied the
Appellant a curb cut on the basis that it would be
within 400 feet of another cut although Appellant had
the FDOT cut permit. That administrative determination
was subsequently reversed by the Planning Commission on
the legal grounds of FDOT pre-emption. See Planning
Commission Resolution No. 45-87. Whatever the legal
merits of such a holding, it is now the rule in this
case and, therefore, the Planning Commission
erroneously determined that the Director's development
order violated Sec. 9.5-235(b)(1)(c), M.C.C.
e) There is no competent or substantial evidence
in the record to support the conclusion that the
proposed gas station will not be served by adequate
8
APPROVED AS TO FORM
AND LEGAL SUfFICIENCY. /,
~ /~~?J~~.~
(SEAL)
Attest: DAmn: ~ ~QLHAGE, .clerk
By:.~~g
Mayor al.rman
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
the 31st day of October, 1989.
Monroe County, Florida, at a regular meeting of the Board held on
PASSED AND ADOPTED by the Board of County Commissioners of
6. The Clerk of the Board is hereby directed to forward a
certified copy of this Resolution to the Department of Community
Affairs.
a southbound turn-off lane of appropriate size and design. In
all other respects, the order of the Planning Commission in this
case (Planning Commission Resolution No. 16-89) is reversed and
the development order of the Planning Director is reinstated.
Director's development order in this case is modified to require
5. However, in view of the traffic concerns expressed by
area residents, if authorization is obtainable from FDOT, the
held that the use would violation Sec. 9.5-1, M.C.C.
f) In view of the foregoing reasons, Appellant's
proposed minor conditional use does fit within the
purposes of the County's land development regulations
and, therefore, the Planning Commission erroneously
public facilities in contravention of Sees. 9.5-65 (e)
and 9.5-292, M.C.C.
--
\
!
--
mannp 1L If{ol~agt
BRANCH OFFICE
3117 OVERSEAS HIGHWAY
MARATHON, FLORIDA 33050
TEL. 13051 743.9036 I
CLERK OF THE CIRCUIT COURT
MONROE COUNTY
500 WHITEHEAD STREET
KEY WEST, FLORIDA 33040
TEL. (305) 294.4641
BRANCH OFFICE
P.O. BOX 379
PLANTATION KEY, FWRIDA 33070
TEL. 13051 852.9253
November 21, 1989
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Department of Community Affairs
Rhyne Building
2740 Centerview Drive
Tallahassee, Florida 32399
P~/7- fo~p/
and
Department of Community Affairs P---6/J _0')0.. . J'I r
Post Office Box 990 av,
Key West, Florida 33041
Gentlemen:
At a Regular Meeting in formal session on
October 31, 1989, the Board of County Commissioners of
Monroe County adopted Resolution No. 603-1989 reversing
Planning Commission Resolution No. 16-89 and reinstating the
'Planning Director's Development Order 12-89 with modifica-
tions regarding Mr. Egan Adams.
Enclosed please find a certified copy of said
Resolution.
Very truly yours,
~
Danny L. Kolhage
Clerk of Circuit Court
and ex officio Clerk
Board 0 co~nty ~ommissioners
by: i't'.
Rosalle L. C nolly
Deputy Clerk
)
)
I
~
cc: Mayor J. Stormont
"'-~.rQr PE'9 Tent l-v. il!!!ll"'u~y
County Attorney R. Ludacer
County Administrator T. Brown
Asst. Co. Admin. D. Craig
File
.
"
1 .
NOV 2719
P8 '- .11, MIr. Il1118
P 017 802 814 ~
RECEIPT FOR CERTIFIED MAIL
NO INSURANCE """rn."r nn"VIDEO
NOT FOR INTERNATIONAL MAil
(See Reverse)
~ 1
...
KllIl he... .. Mlllor,
'"
..
ao
-
Return Receipt showing 10 whom.
Date. and Address of Delivery
. u.a.U.O. ..e .. _
P 017 802 815~
RECEIPT FOR CERTIFIED MAIL
NO INSURANCE COVERAGE PROVIDED
NOT FOR INTERNATIONAL MAil
(See Reverse)
Specla Delivery Fee
Restricted Delivery Fee
'"
..
ao
-
~
~
~
-,
0;
o
..
M
E
6
u.
<Il
0.
~
~
~
..,
TOTAL Postage and Fees
,;;0
g Postmark or Dale
..
M
E
6
u.
'"
0.
+