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LEE R. ROBE
ATTORNEY AT LAW
P.O. BOX 420259
25000 OVERSEAS HWY
SUMMERLAND KEY, FL 33042
TELEPHONE (305) 745-2254
FAX: (305) 745-4075
E-MAIL Irrlaw@bellsouth.net
SENT VIA FACSIMILE AND U.S. MAIL
November 8, 2004
Jim Roberts, County Administrator
Monroe County
1100 Simonton Street
Key West, Florida 33040
Re: Request on behalf of Ed Handte to be scheduled as an agenda item for the BOCC
Sounding Board
Dear Mr. Roberts:
My Assistant, Susan spoke today with Connie in your office who, at our request,
scheduled Mr. Handte for the Sounding Board for the November 17, 2004 BOCC
meeting in Key Largo. As Susan explained today to Connie, Mr. Handte does not feel
that he can have a presentation packet ready for the BOCC on one weeks notice.
Therefore, we would greatly appreciate if Mr. Handte's agenda item could be placed on
the December 15,2004 BOCC meeting in Marathon, Florida. We have ab.eady advised
Mr. Handte of this date and he is ready to attend and speak at this time.
Thanking you in advance for your assistance.
Sincerely,
k ~~<-
Lee R. Rohe, Esq., P.i\
cc: client
H/
LEE R. ROUE
ATTORNEY AT LAW
P.O. BOX 420259
25000 OVERSEAS HWY
SUMMERLAND KEY, FL 33042
December 8, 2004
TELEPHONE (305) 745-2254
FAX: (305) 745-4075
E-MAIL Irrlaw@bellsouth.net
Dear Commissioners:
I represent Mr. Handte in his efforts to preserve his property value and eliminate a
code enforcement violation recurring on a daily basis next door to his home on Key
Largo at mile marker 103.4. At your December 15th meeting, Mr. Handte intends to make
a presentation concerning a neighboring commercial property. We have already discussed
this matter at length with Code Enforcement and the Planning Department.
We offer the following background information. On November 28, 2001, the
Planning Commission adopted Resolution P81-01 denying an appeal, by Mr. Handte, of a
building permit for interior remodeling and rear double doors issued to Key Largo
Produce. See attached Resolution. At the time, Key Largo Produce was operating a retail
and wholesale produce business out of a building next door to Handte. On page 3 of
Resolution P81-01, within paragraph 4, in pertinent part it states:
". . . thus there is no enlargement to the lawful non-conforming use and
therefore we find that the structure does not have to come into further
compliance in the IS-M land use district." [Emphasis added.]
At the time of Resolution P81-01, the rear of the Key Largo Produce building was
fenced and had two asphah parking spaces. No other activity, except parking, occurred in
the rear of the property. All other activity occurred in the front of the property bordering
on U.S. 1. Mr. Handte's home, adjacent to the Key Largo Produce property, overlooks
the rear of Key Largo Produce.
Resolution No. 81-01 was appealed by Mr. Handte. Administrative Law Judge
Stampelos, on October 8,2002, upheld Resolution P81-01, while ruling that the Key
Largo Produce building continued to be protected by the law as a lawful non-conforming
building and use. See attached Pinal Order.
Either immediately before or after the Pinal Order was issued in favor of Key
Largo Produce, in October 2002, Key Largo Produce ceased operation but not before the
rear fence was removed allowing for greater use of the backyard. Also, the two asphalt
parking spaces were eliminated through excavation (without a permit) and a rear loading
dock installed (without a permit) at the double doors. (The double doors were allegedly
installed to accommodate a large dumpster for the disposal of spoilage.) Permits were not
available for the removal ofthe parking spaces removal and loading dock work because
of the fact that such aheration would amount to an extension of the nonconforming
feature of the structure.
Hi
Letter to BOCC- December 8, 2004
Shortly after Key Largo Produce folded, a new business occupied the building,
CFS Carpeting. The CFS Carpet Company immediately began rear loading and unloading
operations at the above-mentioned loading dock. A huge construction debris dumpster
was also placed in the rear. The dumpster is being used as a commercial dumpsite for
refuse from CFS job sites. Refuse from CFS job sites should be taken to the appropriate
county dumpsite.
Meanwhile, the rear of the property is continuing to be used for large delivery
trucks loading and unloading carpet through the rear of the building on a daily basis. Mr.
Handte's home, adjacent to this continuing delivery activity, is disturbed by the deliveries
on a daily basis.
Section 9.5-143 (c), attached hereto, prohibits "extensions" ofnon-conforming
uses through either enlargement of a use by additions to the structure or occupancy of
additional lands. We maintain that once the parking in rear and fence were removed and
loading operations at the rear loading dock commenced, the non-conforming use of this
property was "extended" via occupancy of additional lands. ~.. .. [1" :..,
. .. _ _ I', H 1 I J J ..
We believe that either the Planning Department or Code Enforcement or both
should revisit this matter and determine whether the non-conforming use has been
unlawfully "extended." In the alternative, we request that the matter be returned to the
Planning Commission for a complete hearing. In sum, the rear activity should cease
immediately. As additional background information, we have also included affidavits
from neighbors and photos of the loading operations.
Thank you for your attention.
Sincerely,
~~YIZ
Lee Robert Rohe, Esquire
cc: client
,.~
AFFIDAVIT OF MICHAEL BOYCE
STATE OF FLORIDA
COUNTY OF MONROE
I, Michael Boyce, of 101660 Overseas Highway, Key Largo, Florida hereby state the
following under oath:
] . I am over the age of 18 years;
2. I am the owner of Boyce Excavating located at 101660 Overseas Highway,
Key Largo, Florida;
3.
In the first part of 2002, I contracted with William Brucato to dig an incline at
the rear of his property located at 103375 Overseas Highway, beginning at a
paved
area to the south end of the property. In addition, I was hired to spread
pearock over the area including the'rear access road.
---
Under penalties of perjury, I declare that I have read the foregoing
Affidavit and the facts stated in it are true to the best of my knowledge.
~- ~
MIC Et BOYCE
BOYC EXCA V A TING
**************************
STATE OF FLORIDA
COUNTY OF MONROE
Sworn to (or affirmed) and subscribed before me this 'J day of
February, 2004 by Michael Boyce.
...'Htt-.. CATHElllNE LUDEKE
~ -'f,;,\ MY COMMISSION' DO 13341!.6
. EXPIRES: November 11, 200R
BcrlIlId 1lW NcllIIy NIIIc UndlllWlOC "",
(1/J-rt;LUi.a at~
Notary Public
Personally Known V OR Produced
Identification
Type of Identification Produced
..
AFFIDAVIT OF ROSS BLOODWORTH
STATE OF FLORIDA
COUNTY OF MONROE
I, Ross Bloodworth, of 3 Snapper Avenue, Key Largo, FL hereby state the following under oath;
1. I am over the age of 18 years;
2. I have lived in Largo Sound Park, at the above address since 1962;
3. I am the President of Largo Sound Park Homeowners Club Inc;
I am referring to the Property known as 103375 Overseas Hwy, Key Largo, FL. Prior to the
ownership of William Brucato, in 2001, there was a fence that surrounded the back end of the
property with a gate that provided parking for 2 cars on pavement. At the opposite end of the
back of the building was the single rear entry door.
After William Brucato purchased the property and planned to open a Produce Market and
Delivery service from there is when action was taken with Mr Brucato, about the concern of his
Garbage, Increased Use of property of a Non-Conforming Structure, and the use of large trucks
that would be using adjacent streets of Largo Sound Park. Mr Brucato Stated in front of the
Planning Commission and also made a statement in the Free Press Newspaper that he would
Keep the Dumpster inside the back of the building until the night before pick-up, no trucks will
use the rear of the property for access, and the Planning Commission at that time found no
increased in Use.
Mr Brucato pulled a permit to add a double door in front of the gate that gave access to the 2
parking spaces in the rear of the property in which he was going to keep the dumpster.
It wasn't long after that, I confronted Mr Brucato, and another man in the alley way about cutting
down the trees that had been there for over 25 years, Gumbo Limbo, Poision Wood. They
walked away, so I reported the action to Code Enforcement, Nothing happened!
Mr Brucato then was issued a permit to take down the fence, this is when the trucks and vans
started to use the back of the property as a loading/unloading area. In the meantime the dumpster
was then left outside to smell and attract rodents and other wild life that are protected. Again
Code Enforcement was called, Nothing Happened!
Mr Brucato at the beginning of 2002, then had Boyce Excavating come in and excavate the rear
of the property, there was No Permit, from the side of the 2 parking spaces that are paved, out
and over the septic tank and drain field. Where there had previously been grass growing there.
Larger trucks started to access the back of the property, and the dumpster remained outside to
smell and attract rodents. Again I and others called Code Enforcement, Nothing Happened!
Mr Brucato business then failed in 2003 and the new use of property continued to use the back of
the property and the alley as a Loading/Unloading Zone, there is. now a 20 yard dumpster there
.' ..
and is used as a dump site, which the smell continues and so do the numerious rodents and other
protected wild life that come to graze. Again Code Enforcement was called, Nothing Happened!
Under penalties of perjury, I declare that I have read the following Affidavit and the facts stated
in it are true to the best of my knowledge.
~"7
/::J
Ross Bloodworth,
--..
, Judi\tI A. Mondaine-Half
t~' M'/ commission 00257280
'~J ex,ires October at. 2007
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Richard Holt.
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f-: ;-; ":'. ::tlMMlSSlON, CC 970531
.. : ,XPIRES: November~, 2004
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AFFIDAVIT OF EDWIN HANDTE
STATE OF FLORIDA
COUNTY OF MONROE
I, Edwin R Handte, of 103365 Overseas Highway, Key Largo, Florida hereby state the
following under oath:
1. I am over the age of 18 years;
2. I have owned the property at 103365 Overseas Highway since 1980;
3. In 1985, William Loyd constructed a metal building at 103375 Overseas
Highway.
4. In 1993, Julio Gonzalez purchased Mr. Loyd's property. He permitted a fence
from the southeast corner of the building east to the property line, north along the
property line to parallel the northeast corner ofthe building, then west to the
corner of the building.
5. In late 2001, or early 2002, William Brucato, the new owner of 103375 Overseas
Highway, permitted the demolition of this fence. Later in 2002, he hired Boyce
Excavating to dig out an incline adjacent to the original two permitted parkirig
spaces required under Code in the rear, thereby turning this area into a loading
ramp.
6. This action contradicts Mr. Brucato's statement to the planning commission
in November of2001 when seeking conditional use approval, that "the double
rear doors were only to be used to house a small dumpster which would only
be placed outside on garbage pickup days."
7. Mr. Brucato presently rents out the property to a carpet and flooring company.
This business also uses the back two parking spaces and "dug out incline" as a
loading dock.
8. The carpet and flooring company placed a twenty yard dumpster in the rear over a
drain field and septic tank, and removed interior walls without a permit.
9. I showed Monroe County Assistant Building Official John Bonniface
the site in July 2003. He observed that the interior walls were removed. He
subsequently informed me that he had relayed this information to Jack Reed,
Monroe County Code Enforcement Officer.
t-.
Under penalties of perjury, I declare that I have read the foregoing
Affidavit and the facts stated in it are true to the best of my knowledge.
~~~~
...***.******************.
STATE OF FLORIDA
COUNTY OF MONROE
Sworn to (or affirmed) and subscribed before me this L day of
February, 2004 by Edwin Handte .
tbPJ,t. 0 ~..,- /
Notary P lic
...",'';U,.", GAYlE A. NYMAN
f.~'f."'~~ MY COMMISSION 1/ CC 970531
= . i;:i EXPIRES: November 2. 2004
1P Bonded Thru Notary Public Underwrite..
Personally Known OR Produced
Identification ~~.
Type ofIdentification Produced
2
-- - ~--..-_.. ---.---..--.----.---.-.---.-.-------. -------- _.
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~RIGINAr
ADMINISTRATIVE APPEAL
APPELLANT: EDWIN HANDTE
Heard on Wednesday, November 28, 2001, at th
Key Largo Library, 101485 Overseas Highway, Key Largo,
Florida, Monroe County, Florida, before the Monroe
County Planning Commission, and Michaela K. Woods,
Court Reporter.
* * * * * *
APPEARANCES:
COMMISION:
David C. Ritz, Chair
Jerry Coleman
P. Morgan Hill
Denise Werling
STAFF:
John Wolfe, Planning Commission Counsel
Marlene Conaway, Planning & Environmental Resources
Maureen Lackey, Planner
Judith Chambers, Planning Commission Coordinator
Florida Keys Reporting
91421 Overseas Highway
Tavernier, Florida
(305) 852-2153
FLORIDA KEYS REPORTING, INC.
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address.
MR. BRUCATO: William Joseph Brucato. 142
North Sunrise, Tavernier.
(Thereupon, WILLIAM BRUCATO, having been
first duly sworn, testified as follows:)
DIRECT EXAMINATION
BY MR. MULICK:
Q. Mr. Brucato, are you the owner of the
premises that is the subject of this appeal today?
A. Yes, I am.
Q. What is the nature of your business?
A. The nature of my business is retail sales of
fruits and vegetables to the public.
Q. Do you engage in any other activities there?
A. We also have a delivery service that we bring
to people.
Q. Off premises?
A. Yes.
Q. People can come on premises and purchase?
A. Yes.
Q. And do they have to buy wholesale or would
you sell to anybody?
A. No. I'll sell to anybody who walks in the
door.
Q. Have you expanded the property in any way?
FLORIDA KEYS REPORTING, INC.
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For example, have you added parking spaces?
A. No.
Q. Have you added to the building itself?
A. No.
Q. Have you occupied any parts of the building
that was not previously occupied?
A. What do you mean by that?
Q. Well, was there part of the building perhaps
that was never used and then you decided for the first
time to open it up?
A. No. Basically it's only about a quarter of
the building right now.
Q. Ultimately what's going to be in there?
Let's talk about the facility itself.
A. Well, I plan on opening retail for fruits and
vegetables. That was a lifelong goal when I was young,
third-generation produce, selling organic fruits and
vegetables on the highway.
Q. Now, let's talk about the activities there
You heard testimony about the garbage
taking place.
dumpster?
A. Yes.
Q. Where is the dumpster kept?
A. We built a special dumpster an
air-conditioned dumpster inside the side building where
FLORIDA KEYS REPORTING, INC.
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it's all enclosed. It's right in there.
Q. Is it in there today?
A. Yes, sir.
Q. Has it been in there for a period of time?
A. Yes. It stays in there until the garbage
guys come and pull it out and dump it and we bring it
back inside.
Q. Do you know whether or not there was a
dumpster before you opened the business?
A. I never did see a dumpster there, but it
looks like a -- the gate opens in the back of the
building, it looks like there would be a dumpster, if
there was one outside, right in that area where the --
right outside the dumpster.
Where mine is inside, it
looks like another one would be on the outside.
Q. Do you intend to engage in an actively
wholesale business at the premises?
A. Yes.
Q. To what extent?
A. What do you mean by that?
Q. Wholesale as opposed to retail.
A. I ~lan on doing a little more retail than
wholesale.
lIve been in business for 12 years.
I've
been driving up and down the road.
Like I said, I
would just like to have a place on the highway where
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people come to me more instead of me traveling all the
time.
Q. And that would be retail?
A. Yes.
Q. Let me ask you, Mr. Brucato, have you been in
touch with Mr. Guzman in connection with the purchase
of this property?
A. Yes.
Q. Did he at some point indicate to you that
after he left the property that some of the goods there
were still being sold?
A. Yes.
Q. Did you inquire of him specifically about
that?
MR. HUTCHISON:
I would object.
Mr. Guzman
would need to testify to that.
This is very
strong hearsay.
MR. MULICK:
Well, 1111 tell you what then, I
move to strike the sales tax documentation. I
move to strike the material from the planning
department.
I move to strike the testimony by the
witnesses as regards to what other pe~ple told
them.
I ask that all of that is stricken from the
record if he's going to object to this being in.
COMMISSIONER COLEMAN:
Mr. Chairman, I ask
FLORIDA KEYS REPORTING, INC.
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that the board to reject the objection here. Let
him testify.
Other people testified.
This is not
a court of law.
CHAIRMAN RITZ:
Counsel?
MR. WOLFE:
I would advise the same thing.
There are liberal standards as to what's
admissable here.
This is a hearing.
It's not
bound by the rules of evidences of the circuit
court.
CHAIRMAN RITZ:
Please proceed.
BY MR. MULICK:
Q. Did Mr. Guzman give you any evidence that he
had been selling beauty supplies out of the premises
for any period of time?
A. Yes.
Q. I'm going to show you what appears to be two
copies of documents.
What are those?
A. Those are receipts from beauty supply sales.
Q. Did he tell you that those were products that
were sold out of the premises?
A. Yes, he told my those were sold out of the
prem.l.ses.
Q. On the dates set forth on them?
A. Yes.
Q. Did you prepare those?
FLORIDA KEYS REPORTING, INC.
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A. No.
Q. Did you receive them directly from
Mr. Guzman?
A. Yes.
CHAIRMAN RITZ:
Do you happen to have the
original documents with you?
MR. MULICK:
I have given that to Mr. Wolfe.
Apparently what was done was the invoice was
copied and given to Mr. Brucato. Those are copies
from that.
Q. Mr. Brucato, is it your intention to
essentially engage in retail sales at the premises?
A. Yes.
Q. Is it your intention to keep the dumpster
inside the building?
A. Yes.
Q. In fact, did you set aside part of the
building specifically for that?
A. Yes, I did.
Q. And it's actually air conditioned?
A. Yes.
Q. Js it enclosed?
A. Yes, it is.
MR. MULICK:
Nothing further.
CROSS-EXAMINATION
FLORIDA KEYS REPORTING, INC.
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1 BY MR. HUTCHISON:
2 Q. Let's talk about the dumpster. When is your
3 trash pick up?
4 A. Monday morning.
S Q. When do you put the dumpster out to have it
6 picked up?
7 A. Sometimes I will either put it out late
8 Sunday. If I can't get there in the morning, it could
9 be Sunday morning I will have it out, because I don't
10 want to miss it. He gets there kind of early, so I
11 want to get it out early.
12 Q. But it's not left out on Sunday nor is it
13 left out on Saturday; is that correct?
14 A. It's not usually left out. It's only left
15 out like within a day. Like I said, I live 12 miles
16 away, so I just can't keep running there to put the
17 dumpster out. They can't come into the building.
1 8 Q . Soy 0 uta k e i t 0 u ton Sat u r day s; i s t II at
19 correct?
20 A. Not usually.
21 Q. But sometimes. "Not usually," does that mean
~2 you don't ever take it out on Saturdays; is that
23 correct?
24 A. I might have brought it out. I mean, my dad
Z5 had a stroke a couple months ago and I know I had to
FLORIDA KEYS REPORTING, INC.
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1 get the dumpster out early to get up to Orlando, so
2 probably I did have it out on a Saturday.
3 Q. Now, let's talk about the type of uses of the
4 building. You're also using both retail and wholesale
5 of produce; is that correct?
6 A. Basically it's retail.
7 Q. But you have trucks coming in to deliver
8 products; is that correct?
9 A. Yes, I have a delivery service.
10 Q. What type of trucks deliver product to this
11 property?
12 A. To me or to people that buy from me?
13 Q . To you.
14 A. I go to Miami and pick it up myself.
15 Q. In other words, you don't have any
16 deliveries?
17 A. No. I do all the --
18 Q. You don't expect to have any deliveries; is
19 that correct?
20 A. I always go pick up stuff, so --
21 Q. What type of traffic do you believe will be
22 generated as a result of ~his?
23 A. There shouldn't be any traffic at all.
24 Whatever the normal use is.
25 Q. We're talking the number of cars coming in
I
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and out.
A. I don't know. I just got in.
Q. In your operations, you have to throwaway a
lot of refuse; is that correct?
A. Not really.
Q. What type stuff is inside the dumpster?
A. Basically it's fruits and vegetables that are
not good enough to sell, so I have to dispose of them.
I only deal with top quality.
Q. Were you warned when you first bought -- when
you first looked at this building, were you warned
about the possibility of the building not being used
for a period of time?
A. I don't know anything about it.
Q. In other words, you were never warned about
the possibility of the building not being used for a
period of time?
A. No. Nobody said anything about abandonment
to me. I donlt know what happened before I got there.
Q. You were also told that the property had a
BU-1 or BU-2 designation; is that correct?
A. 11m not sure exactly that was. I came into
the Realtor and I talked to them and told them what I
was doing and they said it was fine. And I called up
building and planning and they said it was zoned right
FLORIDA KEYS REPORTING, INC.
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1 for what I wanted to do.
2 Q. And who did you have discussions with at
3 building and planning?
4 A. Marty. I forgot his last name.
5 Q. Was that the only person?
6 A. There was another guy, too. I forgot his
7 name.
8 MR. HUTCHISON: No further questions.
9 CHAIRMAN RITZ: Any questions from the
10 board?
11 MR. MULICK: Just two follow-up questions.
12 REDIRECT EXAMINATION
13 BY MR. MULICK:
14 Q. Mr. Brucato, you said you spoke to somebody
15 regarding the purchase of the property at the planning
16 department?
17 A. Yes.
18 Q. Did you receive a letter from them?
19 A. Yes, I did.
20 Q. And what did that letter say?
21 A. It said it was fine to do what I wanted to
22 do.
23 Q. Did you get that letter before or after you
24 purchased the property?
2:5 A. Before.
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MR. MULICK: Thank you very much.
That letter is already in evidence,
introduced by Mr. Hutchison.
I have nothing further. Thank you.
CHAIRMAN RITZ: All right. So now we've
heard from the property owner and the appellant.
Any comments from the general public?
MR. BLOODWORTH: Once again, my name is Ross
Bloodworth, and I'm the president of the
homeowner's association of Largo Sound Park.
CHAIRMAN RITZ: And you've already --
MR. WOLFE: He's already been sworn in.
MR. BLOODWORTH: I have petitions and letters
signed by other instances, because I am with KLFHA
here in Key Largo, as well as a member of that and
other things that's happened down south. We're
just trying to keep overuse of a property that's
happening in other places that has not been looked
at by the county.
I will give you a copy of all the letters and
petitions that I had signed by the homeowners of
the park.
Our general problem is that the generation of
the garbage and the smell, which is going to
really affect, I think, the health of other
FLORIDA KEYS REPORTING, INC.
JI
EDWIN HANDTE,
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
Appellant,
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Case No. 02-0477
VS.
MONROE COUNTY PLANNING
COMMISSION, BILL BROCATO, and
KEY LARGO PRODUCE,
Appellees.
~
On Or about July 27, 2001, the Monroe COunty BUilding
Department (Department) issued Permit No. 01-3-2249, based On an
apPlication filed by William I. Brucato (Brucato), d/b/a Key
LargO Produce (Brucato or Key Largo ProdUce) to construct a
walk-in cooler and interior remOdeling for an eXisting structure
of 2,700 square feet, legally described as BlOCk 11, Lots 13 and
14, located in Largo SOUnd Park, 103375 Overseas Highway, Key
Largo, Monroe COunty, Florida, hereinafter referred to as the
property.
Appellant, EdWin Handte (Handte), perfected his appeal of
the Department.s decision to the Monroe COunty Planning
cOmmisSion (CommisSion).
COmmisSion staff recommended denial of
Handte's appeal.
I
I
.'
The Commission denied Handte's appeal after a hearing on
the merits. The Commission decision is memorialized in
Resolution No. P81-01, adopted by the Commission on November 28,
2001. Handte seeks review of the Commission's decision to deny
his appeal. This appeal was timely filed.
Handte filed a Second Amended Brief and a Reply Brief, and
the Commission filed an Answer Brief. Oral argument was held on
August 19, 2002, and supplemented on August 26, 2002.1
The Division of Administrative Hearings, by contract, and
pursuant to Article XIV, Section 9.5-535, Monroe County Code
(M.C.C. or Code), has jurisdiction to consider this appeal.
1.
Issues on Appeal
Handte raises three basic issues on appeal: (1) whether
there is competent substantial evidence to support the
Commission's Findings of Fact that Brucato's use of the property
and structure, i.e., as a retail/wholesale produce facility, is
not a change of the prior nonconforming use of the property by
Brucato's predecessor, Julio and Donna Guzman (Guzman), d/b/a
All About Beauty and A Touch of Class; (2) whether there is
competent substantial evidence to support the Commission's
Findings of Fact that the Guzmans did not abandon or discontinue
their nonconforming use of the property and structure for six
2
consecutive months; and (3) whether the Commission misapplied
the Code.
II.
Facts
The following facts are gathered from the evidence
presented to the Commission, which are contained in the Record.2
On December 12, 1985, the Building and Zoning Department of
Monroe County, Florida, issued a building permit to Bill Lloyd,
the owner of the subject property at the time, for a sewing
center, land clearing, and fill. On March 7, 1986, the Monroe
County Building Department issued a Certificate of Occupancy for
the building located on the property to be used as a sewing
center.
The building is 2,700 square feet and metal in composition.
The property is located in an Improved Subdivision District (IS-
M) land use district.
The building was originally used as a sewing center, which
began operation on the property from March 1986 until in or
around 1993 when the Guzmans (Julio and Donna) began the
operation of a beauty salon, known as All About Beauty, in or
around 1993.3 The name, "A Touch of Class," also appears in the
Record, and was created in 1993, at or around the same time as
All About Beauty. Retail and wholesale beauty supplies were
sold by All About Beauty.
3
Monroe County issued occupational licenses to Donna Guzman
and All About Beauty, Inc., for the business address of the
property, to expire on September 30, 2001.
Donna and Julio Guzman executed a sworn affidavit4 on
April 20, 2001, stating in part:
1. THAT they are the owners of real
property located at 103375 Overseas Highway,
Key Largo, Florida 33037.
2. THAT until April 13, 2001,
inventory was being stored and goods were
being wholesaled and retailed by Carmen
Martel, agent for All About Beauty.
3. THAT as of this date, All About
Beauty maintains a current business license,
bank account with First State Bank and full-
time yard service and parking agreements.
In or around June of 2000, Mr. Guzman placed the property
and the building on the market for sale or lease. The building
remained on the market and was actively shown by real estate
agent Misty Pace until April 2001, when it was purchased by
Brucato. Mr. Guzman placed hurricane shutters on the property
at or around the time he listed the property for sale. One door
was not boarded up in order to provide access to the building.
Whether the Guzmans abandoned or discontinued the use of
the property from June of 2000 until April of 2001 was the
subject of much debate before the Commission and is an issue
which will be resolved in this appeal.
(The Commission found
4
"
that the Guzmans did not abandon or discontinue their use of the
property during this time.)
As noted, the Guzmans stated that they continued to store
inventory in the building until April 13, 2001. Ms. Pace
confirmed this statement. During cross-examination, Ms. Pace
stated that "[t]he building was never abandoned." She also
stated that she had been in the building during this time and
that
[h]is [Mr. Guzman] daughter continued
to sell beauty supplies. There was also
Mr. Guzman's furniture in there from his
house that he had been selling. There was
also a full canvas operation in there that
included machinery. There was [sic] a lot
of boxes. When we showed the property we
actually had to weed through some of the
stuff. The building was full of his stuff.
His daughter sold the stuff. I actually
opened up the door to let people in to pick
up some supplies that they had paid her for
from her. She called me many times.
Ms. Pace stated that "[t]here was a full canvas shop," with
"rolls and rolls of canvas. There was [sic] beauty supply
stations with the sinks and the shampoo stuff, and all the
equipment to go with beauty supplies." Customers bought beauty
supplies there, but she was unaware whether "the canvas stuff"
,was sold. However, Ms. Pace opened "the door for a couple of
people who called.
[Mr. Guzman's] daughter called and said
would you -- this lady is going to pick up her stuff. It was in
boxes like this. He sold everything in big boxes," i.e., beauty
5
supplies were sold either in boxes or sold individually.
Ms. Pace "bought 15 bottles of shampoo." This was when Mr.
Guzman "was selling everything out."
(Prior to becoming a
realtor, Ms. Pace was a hairdresser and bought supplies from
Mrs. Guzman.)
Ms. Pace also bought a dresser after Mr. Guzman left. (Mr.
Guzman left the furnishings and "all of his stuff," i.e., beds,
mattresses, living room sets, and refrigerators, from his house
in the building, which "were continuously being sold by his
daughter.")
During the time the property was for sale, Ms. Pace recalls
three incidents when she opened the door to let them pick up
beauty supplies.
The electricity to the building was terminated on or around
April or June 2000. But according to Ms. Pace, the sales
continued.
The Record also contains two receipts, July 10, 2000, and
December 4, 2000, for beauty supplies, such as shampoo, curlers,
combs, etc. It appears these products were sold out of the
property. These receipts indicated that sales tax were
calculated for each sale.
These facts are contrasted with other evidence of non-use.
A Department of Revenue facsimile to Handte's counsel dated
November 27, 2001, stated that the sales tax accounts for All
6
About Beauty, Inc., and A Touch of Class were closed on June 30,
2000.
All About Beauty, Inc., with the same principal address as
the property, was a Florida corporation, but voluntarily
dissolved on August 14, 2000. The State of Florida, Department
of Revenue reported that the sales tax accounts for All About
Beauty, Inc., and A Touch of Class were closed on June 30, 2000.
The electricity was terminated on or around April or June 2000.
Handte provided an affidavit and also testified that he has
been a resident of Key Largo, Florida, for 19 years; that his
office is located at 103365 Overseas Highway, Block 11, Lot 15
[the property in question includes Lots 13 and 14]; and further,
that the Guzman building
was boarded up with the exception of the
front door. The power was turned off, the
water was turned off, there was no business
use of this property since the owner left.
On April 27, 2001 power was restored to this
building.
Handte elaborated on his affidavit during the hearing.
Handte is building a house adjacent to the rear of the property.
His office building is zoned IS-M, the same as the property.
Handte confirms that the building (or structure) was not
abandoned, only the use. There was a for sale sign on the
property before Mr. Guzman left, until April 2001. According to
Handte, only the front door was not boarded up to give access to
7
the realtors to show the property. Handte says there was no
business conducted on the property from June 2000 until April
2001.
Several neighbors offered letters and testimony to support
Handte's position that the property was not being used after
June 2000.
Ross Bloodworth, living within 300 feet of the Brucato's
business, was a friend of Mr. Guzman and helped "him pack up all
of the supplies that he had from the beauty salon business so he
could return those. And the only items that were kept in that
business were of his personal property from his house." Mr.
Bloodworth confirmed that the electricity was disconnected in
April 2000. He clarified that he assisted Mr. Guzman in
"packing up some of the beauty supplies that he had in the
building, but he took care of relinquishing the supplies," i.e.,
"[Mr. Guzman] apparently probably sent them back to the people
he had purchased it for credit." But, "pretty much all the
beauty supplies was [sic] gone." Mr. Bloodworth also recalled
Mr. Guzman had "some things in there for a boat canvas top
repair shop that he had in there."
Richard Holt rents an office from Handte next to the
property. He last saw Mr. Guzman at the dumpster around
June 16, 2000. He did not see anyone else occupying the
8
building on the property until the new owner improved the
property.
Also, several neighbors objected to a produce store being
located in the neighborhood and raised concerns regarding, ~,
the rot and stench which will result - a health hazard, and
increases in traffic. Several others signed petitions opposing
the produce store.
Brucato purchased the property from the Guzmans in April
2001. Brucato's business on the property will be the retail
sale of fruits and vegetables to the public. He also offers a
delivery service off premises. He also intends to actively
engage in a wholesale business at the property, but it is his
intention to essentially engage in retail sales on the property.
Brucato has not expanded the property since the purchase.
Brucato built an air-conditioned dumpster inside the
building where it is enclosed. The garbage remains there until
it is emptied (trash picked-up) when it is returned inside.
Brucato expects there will be normal traffic, although he
does not know how many cars will visit the property because he
"just got in." He picks up his produce from Miami.
Prior to purchasing the property, Brucato received a letter
dated April 6, 2001, from Martin Schultz, Senior Planner, for
Monroe County, which states:
9
This letter is in response to your inquiry
about operating a wholesale/retail produce
facility at this site. According to the
official Land Use District Map, this
property is zoned Improved Subdivision (IS).
The commercial building is greater than
2,500 square feet, which makes this building
a non-conforming use. However, after
consultation with the Sixth Edition of Trip
Generation, published by the Institute of
Traffic Engineers, staff had determined that
both the current use and your proposed use
are low-intensity commercial retail uses.
Therefore, this does not constitute a
disallowed change in use.
It is not necessary for you to receive any
approval from the Planning Department.
However, please remember than [sic] anything
you pursue for the site that is considered
"development" (including signage) will
require you to submit a site plan (and
associated building permit applications) and
bring the site into conformity to the
maximum extent possible. In addition, since
the use is non-conforming, only ordinary
repair and maintenance is allowed. No
enlargement of the use as an addition or
occupancy of additional lands is allowed.
Marlene Conaway, planning director, opined that Brucato's
intended use of the property is not a change in use of the
~
property because his use is in the same classification of
intensity (retail/wholesale) of use as his predecessor. Ms.
Conaway also advised that a prior use would continue as long as
4- the property was for sale. According to Ms. Conaway, thi"s issue
"has come up a number of times" and resolved in this manner.
In Resolution No. PS1-Ol, the Commission made the following
Findings of Fact and Conclusions of Law:
10
1. Bill Brucatto [sic], owner of Key Largo
Produce, received permit # 01-3-2249, issued
by the Monroe County Building Department on
July 27, 2001.
2. Based on the application submitted, we
find that Edwin Handte, a nearby neighbor in
Largo Sound Park, appealed the issuance of
the building permit on September 4, 2001.
3. Based on the evidence and testimony
submitted, we find that the IS-M land use
district permits commercial retail of low-
and medium intensity and office uses or any
combination thereof less than 2,500 square
feet of floor area as a major conditional
use and that the IS-M sub-district indicator
refers strictly to detached dwellings of
masonry construction, not commercial
buildings. Therefore we find that the
building, with 2,700 square feet of floor
area, in the IS-M land use district is a
lawful non-conforming structure due to its
size.
4. Based on the evidence and testimony
submitted, we find that the building permit
was issued for an interior remodel and walk-
in cooler. The interior remodel and walk-in
cooler does not constitute a change of
footprint to the structure thus there is no
enlargement to the lawful non-conforming use
and therefore we find that the structure
does not have to come into further
compliance in the IS-M land use district.
5. Based on testimony and evidence
submitted, we find that The Sewing Center,
All About Beauty and now Key Largo Produce,
all retail/wholesale establishments, have
held occupational licenses in this building
since 1986. Section 9.5-144 of the Land
District Regulations states that "a
nonconforming use 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. We find
that an organic produce retail/wholesale
11
establishment is of the same land use
intensity as the Sewing Center and All About
Beauty retail/wholesale establishments.
Therefore we find that Key Largo Produce as
a retail/wholesale establishment can
continue in this building as no change of
use has occurred.
6. Based on evidence and testimony
submitted, we find that the owner was old
and or ill and chose to sell the property
and go out of business and had no intent to
abandon the property or its existing uses.
We conclude that testimony confirmed that
the property had been listed for sale on the
real estate. market at the time the owner had
the power disconnected. Therefore, we
conclude that the non-conforming use was not
abandoned per Section 9.5-144(e) (1) of the
Monroe County Code; and
7. Based on sworn testimony and evidence,
we find that the Growth Management staff
acted reasonably in their interpretation of
the Monroe County Code in accordance with
past practices and previous applicants in
making the determination that the use had
not changed and that the use had not been
abandoned since the use was either in full
operation as a retail/wholesale operation or
on the real estate market for sale
throughout June 2000; and
8. Based on the sworn testimony and
evidence submitted, we find that the
applicant acted in reliance on Growth
Managements staff's understanding that the a
[sic] wholesale/retail low-medium intensity
use would be permitted to continue at the
former location of All About Beauty; NOW
THEREFORE,
BE IT RESOLVED BY THE PLANNING COMMISSION OF
MONROE COUNTY, FLORIDA, that the preceding
Findings of Fact and Conclusions of Law
support it's [sic] decision to DENY the
appeal of Edwin Handte for the Planning
Department approval of building permit
12
# 01-3-2249 for interior remodel and walk-in
cooler.
III.
Leqal Discussion
The Division of Administrative Hearings has jurisdiction
over the subject matter of this proceeding and of the parties
pursuant to Article XIV, Section 9.5-535, M.C.C. The hearing
officer "may affirm, reverse or modify the order of the planning
commission." Article XIV, Section 9.5-540(b), M.C.C. The scope
of the hearing officer's review under Article XIV is:
The hearing officer's order may reject or
modify any conclusion of law or
interpretation of the Monroe County land
development regulations or comprehensive
plan in the planning commission's order,
whether stated in the order or necessarily
implicit in the planning commission's
determination, but he may not reject or
modify any findings of fact unless he first
determines from a review of the complete
record, and states with particularity in his
order, that the findings of fact were not
based upon competent substantial evidence or
that the proceeding before the planning
commission on which the findings were based
did not comply with the essential
requirements of law.
Id. "The hearing officer's final order shall be the final
administrative action of Monroe County." Article XIV, Section
9.5-540(c), M.C.C.
13
In DeGroot v. Sheffield, 95 So. 2d 912 (Fla. 1957), the
Court discussed the meaning of "competent substantial evidence"
and stated:
We have used the term "competent substantial
evidence" advisedly. Substantial evidence
has been described as such evidence as will
establish a substantial basis of fact from
which the fact at issue can be reasonably
inferred. We have stated it to be such
relevant evidence as a reasonable mind would
accept as adequate to support a conclusion.
. . In employing the adjective "competent"
to modify the word "substantial" we are
aware of the familiar rule that in
administrative proceedings the formalities
and the introduction of testimony common to
the courts of justice are not strictly
employed. We are of the view,
however, that the evidence relied upon to
sustain the ultimate findings should be
sufficiently relevant and material that a
reasonable mind would accept it as adequate
to support the conclusion reached. To this
extent, the "substantic3.l" evidence should
also be "competent."
Id. at 916 (citations omitted.)
A hearing officer (Administrative Law Judge) acting in his
or her appellate review capacity is without authority to reweigh
conflicting testimony presented to the Commission or to
substitute his or her judgment for that of the Commission on the
issue of the credibility of witnesses. See Haines City
Community Development v. Hegqs, 658 So. 2d 523, 530 (Fla. 1995).
The question before the undersigned is not whether the
record contains competent substantial evidence supporting the
14
it
view of Handte; rather, the question is whether competent
substantial evidence supports the findings made by the
Commission. See qenerally Collier Medical Center, Inc. v.
State, Department of Health and Rehabilitative Services, 462 So.
2d 83, 85 (Fla. 1st DCA 1985) .
The issue of whether the Commission "complied with the
essential requirements of law" is synonymous with whether the
Commission "applied the correct law." Haines City Community
Development, 658 So. 2d at 530.
All of these concepts are particularly relevant here
because there are conflicts in the evidence and the Commission
resolved these conflicts contrary to Handte's position.
IV.
~
Article V of the Code regulates nonconforming uses.
"The
~
purpose of this article is to regulate and limit the continued
existence of uses and structures established prior to the
enactment of this chapter that do not conform to the provisions
of this chapter. Many nonconformities may continue, but the
provisions of this article are designed to curtail substantial
investment in nonconformities and to bring about their eventual
elimination in order to preserve the integrity of this chapter."
Article V, Section 9.5-141, M.C.C. See also JPM Investment
Group, Inc. v. Brevard County Board of County Commissioners, 818
So. 2d 595, 598 (Fla. 5th DCA 2002) .
15
The Code expressly provides that "[n]onconforming uses of
land or structures may continue in accordance with the
provisions of this section." Article V, Section 9.5-143(a),
M.C.C.
(The Commission mistakenly cites Section 9.5-144, which
pertains to "nonconforming structures" and is not applicable
I
~*
here. Handte does not suggest that the structure on the
property was abandoned. Rather, he claims that the
"nonconforming use" was abandoned. Section 9.5-143, pertaining
to "nonconforming uses," is applicable here.)
"Normal maintenance and repair to permit continuation of
registered nonconforming uses may be performed." Article V,
Section 9.5-143(b), M.C.C.
"Nonconforming uses shall not be
extended" and "[t]his prohibition shall be construed so as to
prevent.
[e]nlargement of nonconforming uses by additions to
the structure in which such nonconforming uses are located" or
"
. [o]ccupancy of additional lands." Article V, Section 9.5-
143 (c) (1) (2), M.C.C.
Further, "[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." Article V, Section
9.5.143(e), M.C.C.
Finally, II [w]here a nonconforming use of land or structure
is discontinued or abandoned for six (6) consecutive
months.
. , then such use may not be reestablished or resumed,
16
and any subsequent use must conform to the provisions of this
=
chapter. . .
II
Article V, Section 9.5-143(f) (1), M.C.C.
It appears that these land use regulations should be
strictly construed. See,~, County Council of Prince
Georqe's County v. E.L. Gardner, Inc., 293 Md. 259, 443 A. 2d
114 (1982). See also Lee v. City of Jacksonville, 793 So. 2d
62, 67 (Fla. 1st DCA 2001) (Browning, J., dissenting) ("An
ordinance is construed according to the enacting body's intent,
and as the ordinance affects real property, strict construction
is required. II (citation omitted.))
Further, it is a fundamental rule of statutory construction
that statutory provisions which are part of the same act, here
the Code, should be read in pari materia. Florida Jai Alai,
Inc. v. Lake Howell Water & Reclamation District, 274 So. 2d 522
(Fla. 1973); Hernandez Investment Group, Inc. v. Monroe County,
?
Florida, Case No. 97-4581 (DOAH Final Order June 5, 1998).
V.
The first issue to resolve is whether there is competent
substantial evidence to support the Commission's findings that
Brucato's intended use of the property is a continuing
nonconforming use of his predecessors use.
What is a change in a nonconforming use has been the
subject of debate. See,~, 7 Fla. Jur. 2d, Buildinq,
17
Zoning, and Land Controls, Section 207, (1997); 83 Am. Jur. 2d
Zoning and Planning, Sections 660-690 (1992).
Article VII of the Code provides for "land use districts."
Section 9.5.231 provides for "permitted uses" and states in
part: "No structure or land in Monroe County shall hereinafter
~
be developed, used or occupied unless expressly authorized in a
land use district in this division." Article VII, Section 9.5-
231(a), M.C.C.
The property is located in the Improved Subdivision (IS-M)
land use district.
(A "land use" includes "[a] use that is
permitted or permissible on the land under the plan, or element
or portion thereof, of land development regulations. Article I,
Section 9.5-4(L-3(c), M.C.C.) This land use district authorizes
commercial retail of low and medium intensity and office uses or
any combination thereof of less than 2,500 square feet of floor
=:==:;;
area as a major conditional use. Article VII, Section 9.5-
242 (d) (1), M.C.C. Subsection 9.5-242 (d) (1) provides for a
general classification of land uses (commercial retail/office
uses or any combination thereof) within the land use district,
~VO~S based on the level of intensity and square footage, not
~~7
\ specifically on type or kind of use. 5
-t A~ . -
The Guzmans' previous use of the property was nonconforming
because the building is 2,700 square feet, or 200 feet in excess
18
of the allowable limit.
(Brucato does not intend to extend or
add to the size of the building.)
While the details of the prior use of the property are
limited, there is evidence that All About Beauty and the Sewing
Center operated in the building (on the property) as retail and
wholesale commercial businesses since 1986, and that these uses
are categorized as low-intensity commercial retail pursuant to
Section 9.5-4(C-14(a)) of the Monroe County Code. There is also
evidence from Brucato that his business will be the retail sale
of fruits and vegetables to the public, with sales also at
wholesale.
Planning staff, including Ms. Conaway, concluded that
Brucato's intended use did not constitute a change in use
because the prior and subsequent uses of the property were sales
at retail and wholesale. Ms. Conaway also explained that there
~ is no chanqe in use because both uses maintained the same level
of intensity.
With respect to traffic, again the evidence is limited and
in dispute, but Brucato did not believe Key Largo Produce would
increase customer traffic beyond the "normal use," although he
was unsure. Brucato also stated that he would not add new
parking spaces nor add to the building. Further, Senior Planner
Schultz advised Brucato that "after consultation with the Sixth
Edition of Trip Generation, published by the Institute of
19
Traffic Engineers, staff has determined that both the current
use and [Brucato's] use are low-intensity commercial retail
uses. Therefore, this does not constitute a disallowed change
in use."
("Commercial retail low-intensity means commercial
retail uses that generate less than fifty (50) average daily
trips per one thousand (1,000) square feet." Article I, Section
9.5-4(C-14(a)), M.C.C. (emphasis added.)) Handte produced
evidence that traffic would increase, especially around the
neighborhood.
It is the intent of the Code to limit the continuation of
nonconforming uses under narrow circumstances. This is
consistent with extant law.
Nevertheless, the Commission had the prerogative to
consider and weigh all of the evidence on this issue and did so.
It appears that the Commission and staff used a class of use
analysis when comparing the prior uses of the property with
Brucato's intended use. It does not appear that the
*
Commission's (and staff) class of use approach is inconsistent
with Subsection 9.5-143(e), where the Code provides for
"permitted uses" by enumerated classifications within specified
land uses districts, and specifically here regarding uses within
Subsection 9.5-242(d) (1). But see Beyer v. Mayor and City
~ Council of Baltimore City, 182 Md. 444, 34 A. 2d 765, 769
(1943) (rejecting class of use analysis where use was abandoned).
20
There is competent substantial evidence to support the
Commission's Findings of Fact that Brucato's proposed use of the
property is not a change in use. The Commission's Conclusion of
Law on this issue is also supported by the record.
The next issue is whether there is competent substantial
evidence to support the Commission's Findings of Fact that the
Guzmans did not discontinue or abandon their use of the property
after June 2000.
There is no definition of abandonment or discontinuance in
the Code. However, whether property or a use of property has
been abandoned or discontinued has also been the subject of
debate. See,~, 7 Fla. Jur. 2d, Buildinq, Zoninq and Land
Controls, Section 206 (1997); 83 Am. Jur. 2d, Zoninq and
Planrrinq, Sections 682-690 (1992).
As a general rule, "[a]bandonment occurs when the landowner
intentionally and voluntarily foregoes further nonconforming use
of the property." Lewis v. City of Atlantic Beach, 467 So. 2d
751, 755 (Fla. 1st DCA 1985) (citations omitted). "Abandonment
is a question of intent and he who asserts it has the burden of
proving it." J.C. Vereen & Sons, Inc. v. City of Miami, 397 So.
2d 979, 981 (Fla. 3d DCA 1981) ('citation omitted). Further, as
noted by one court: "Discontinuance or abandonment involves
more than mere cessation. It results from the concurrence of
two factors:
(1) an intent to abandon and (2) some overt act or
21
failure to act which carries the implication that the owner
neither claims nor retains any interest in the subject matter of
the abandonment." Quinnelly v. City of Prichard, 292 Ala. 178,
291 So. 2d 295, 299 (1974) (citations omitted).
Again, the evidence is in dispute. Ultimately, the
Commission determined that the Guzmans did not abandon their
nonconforming use, based on the Commission's findings that
Mr. Guzman "chose to sell the property and go out of business
and had no intent to abandon the property or its existing uses."
The Commission accepted the evidence which indicated that "the
use was either in full operation as a retail/wholesale operation
or on the real estate market for sale throughout June 2000."
The Commission also accepted the sworn testimony from Growth
Management Staff, namely Ms. Conaway, that past practices had
allowed for the continuation of nonconforming uses during the
sale of a building or structure, where a nonconforming use
transpired.
When the evidence is viewed in the light most favorable to
the Commission's findings, there is competent substantial
evidence to support the Commission's findings that the Guzmans
continued their nonconforming, retail/wholesale operation from
June 2000 through April 2001. As a result, the Commission's
ultimate finding, that the Guzmans did not abandon or
discontinue their nonconforming use, is supported by the record.
22
The Commission's Conclusion of Law regarding this issue is
also supported by the record.
DECISION
Based upon the foregoing, the Commission's decision to deny
Handte's appeal is AFFIRMED.
DONE AND ORDERED this 8th day of October, 2002, in
Tallahassee, Leon County, Florida.
CHARLES A. STAMPELOS
Administrative Law Judge
Division of Administrative Hearings
The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847
www.doah.state.fl.us
Filed with the Clerk of the
Division of Administrative Hearings
this 8th day of October, 2002.
ENDNOTES
1/ During oral argument, the parties were advised that three
documents referred to in the Commission Resolution were missing
from the Record on Appeal (Record), page 90; items 1, 4, and 5,
i.e., the building application permit, a memorandum of the
Monroe County Code Enforcement Inspector Yoli Krauss; and a
memorandum from Raj Shanmugam of URS referencing land intensity
and change of use. The parties coordinated their efforts to
locate these documents. The Commission filed a Motion to
Supplement the record with these documents, which were attached
to the Motion. Handte objects only to the third item, which he
says was not introduced during the hearing. The Commission has
not filed a response. Based on the objection and a review of
the Record, the Record is supplemented only with the first two
documents and not the memorandum from Raj Shanmugam.
23
2/ See Article XIV, Section 9.5-538, M.C.C. for the contents of
the Record, which includes "[a]ll applications, memoranda, or
data submitted to the [C]omission" and "[e]vidence received or
considered by the" Commission.
3/ The Guzmans' use of the building/structure was a
nonconforming use because the floor area was (and continues to
be) 2,700 square feet, which exceeds the 2,500 square foot
maximum floor area for property designated as commercial retail
of low and medium intensity. See Article VII, Section 9.5-
242(d) (1), M.C.C. Handte argues that Brucato has changed the
use of the property and, as a result, such use is a major
conditional use subject to conformity with other, more stringent
criteria in the Monroe County Code.
4/ There was some discussion during the Commission hearing
regarding whether the affidavit was before the Commission.
Handte's counsel had a copy and the staff report of November 2,
2001, reflects consideration of the affidavit. Chair David C.
Ritz announced that the Commission had one copy of the affidavit
and it would appear that the affidavit was considered by the
Commission in reaching its decision. (Record, pages 8 and 119) .
5/ Contrary to Handte's position, the Commission properly
applied the current provisions of the Code in this case. See
qenerally Dowd v. Monroe County, 557 So. 2d 63 (Fla. 3d DCA
1990), cause dismissed, 564 So. 2d 488 (Fla. 1990).
COPIES FURNISHED:
Karen K. Cabanas, Esquire
Morgan & Hendrick
Post Office Box 1117
Key West, Florida 33041
David George Hutchison, Esquire
Post Office Box 1262
Key Largo, Florida 33037-1262
Nicholas W. Mulick, Esquire
Hershoff, Lupino & Mulick
90130 Old Highway
Tavernier, Florida 33070
24
Nicole Petrick, Staff Assistant
Monroe County Planning Department
2798 Overseas Highway, Suite 400
Marathon, Florida 33050
..
.
NOTICE OF RIGHTS
Pursuant to Article XIV, Section 9.5-540(c), M.C.C., this
Final Order is "the final administrative action of Monroe
County." It is subject to judicial review by common law
petition for writ of certiorari to the circuit court in the
appropriate judicial circuit.
25
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RESOLUTION NO. P81-0J
A RESOLUTION BY THE MONROE COUNTY PLANNING
COMMISSION DENYING THE APPEAL BY EDWIN HANDTE OF THE
GROWTH MANAGEMENT STAFF'S ISSUANCE OF BUILDING PERMIT
# 01-3-2249 FOR THE INTERIOR REMODEL AND ADDITION OF A
WALK-IN COOLER OF KEY LARGO PRODUCE LOCATED AT MILE
MARKER 103.3 AND FURTHER DESCRIBED AS BLOCK 11, LOTS 13
AND 14, IN LARGO SOUND P ARK, ISLAND OF KEY LARGO,
MONROE COUNTY, FLORIDA. THE LAND USE DESIGNATION IS
IMPROVED SUBDIVISION-MASONRY (IS-M) AND THE REAL ESTATE
NUMBER IS 00472490.000000.
WHEREAS, during a regular meeting held November 28, 2001, the Monroe County
Planning Commission conducted a public hearing on the request filed by Edwin Handte
appealing the issuance of building permit # 01-3-2249 for interior remodeling; and
WHEREAS, the proposed development is located on property legally described as Block
11, Lots 13 and 14 in Largo Sound Park, Island of Key Largo, as recorded in Plat Book 3, Page
lU;and
WHEREAS, the above-described property is located in the Improved Subdivision (IS-
M) land use district; and
WHEREAS, the structure has 2,700 square feet of floor area and is a lawful non-
conforming use due to the size; and
WHEREAS, the Planning Commission was presented with the following evidence,
which by reference is hereby incorporated as a part of the record of said hearing:
Page 1 of 4
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C:\TEMP\handteresolution.doc
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1.
Building permit application #01-3-2249 for the interior remodel and addition ofa walk-in
cooler of a 2280 square-foot commercial building. approved by the Monroe County
. ..' .
Planning Department on June 26, 2001 and issued on July 27,2001.
2.
Staff report prepared by Maureen Lackey, Planner, dated November 2, 2001; and
3.
Application for Administrative Appeal to the Planning Commission received September
5,2001; and
4.
Memorandum from Monroe County Code Enforcement Inspector Y oli Krauss.
5.
Memorandum from Raj Shanmugam ofURS referencing land use intensity and change of
use; and
6.
Affidavit by Julio and Donna Guzman dated April 20, 2001; and
7.
Occupational Licenses for All About Beauty, The Sewing Center and Key Largo
Produce; and
8. Copies of sales receipts from All About Beauty dated December 4, 2000 and July 10,
2000; and
9. Sales tax account of All About Beauty; and
10. Letter to Key Largo Produce owner, Bill Brucatto from Growth Management staff; and
11. Superb Waste receipt for All About Beauty; and
12. Certificate of Occupancy for The Sewing Center dated March 7, 1986; and
13. Sworn testimony by the Growth Management Staff; and
14. Sworn testimony by the appellant and on behalf of the appellant; and
15. Sworn testimony by the owner and on behalf of the owner; and
16. Petition with signatures; and
17. Comments by John Wolfe, Planning Commission Counsel; and
Page 2 of4
Initial bCf<.
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18. Affidavits and comments from the public and neighbors; and
WHEREAS, the Planning Commission has made the following Findings of Fact and
Conclusion of Law:
1. Bill Brucatto, owner of Key Largo Produce, received permit # 01-3-2249, issued by the
Monroe County Building Department on July 27,2001.
2. Based on the application submitted, we find that Edwin Handte, a nearby neighbor in
Largo Sound Park, appealed the issuance of the building permit on September 4,2001.
3. Based on the evidence and testimony submitted, we find that the IS-M land use district
permits commercial retail of low-and medium intensity and office uses or any
combination thereof less than 2,500 square feet of floor area as a major conditional use
and that the IS-M sub-district indicator refers strictly to detached dwellings of masonry
construction, not commercial buildings. Therefore we find that the building, with 2,700
square feet of floor area, in the IS-M land use district is a lawful non-conforming
structure due to its size.
4. Based on the evidence and testimony submitted, we find that the building permit was
issued for an interior remodel and walk-in cooler. The interior remodel and walk-in
cooler does not constitute a change of footprint to the structure thus there is no
enlargement to the lawful non-conforming use and therefore we find that the structure
does not have to come into further compliance in the IS-M land use district.
5. Based on testimony and evidence submitted, we find that The Sewing Center, All About
Beauty and now Key Largo Produce, all retaiVwholesale establislunents, have held
occupational licenses in this building since 1986. Section 9.5-144 of the Lartd District
Regulations states that "a nonconforming use 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. We find that an organic produce retail/wholesale establislunent is of the same
land use intensity as the Sewing Center and All About Beauty retail/wholesale
establishments. Therefore we find that Key Largo Produce as a retail/wholesale
establishment can continue in this building as no change of use has occurred.
6. Based on evidence and testimony submitted, we find that the owner was old and or ill and
chose to sell the property and go out of business and had no intent to abandon the
property or its existing uses. We conclude that testimony confirmed that the property had
been listed for sale on the real estate market at the time the owner had the power
disconnected. Therefore, we conclude that the non-conforming use was not abandoned
per Section 9.5-144 (e) (1) of the Monroe County Code; and
Page 3 of4
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7. Based on sworn testimony and evidence, we find that the Growth Management staff acted
reasonably in their interpretation of the Monroe County Code in accordance with past
practices and previous applicants in making the determination that the use had not
changed and that the use had not been abandoned since the use was either in full
operation as a retail/wholesale operation or on the real estate market for sale throughout
June 2000; and
8. Based on the sworn testimony and evidence submitted, we find that the applicant acted in
reliance on Growth Management staffs understanding that the a wholesale/retaillow-
medium intensity use would be permitted to continue at the former location of All About
Beauty; NOW THEREFORE,
BE IT RESOLVED BY THE PLANNING COMMISSION OF MONROE COUNTY,
FLORIDA, that the preceding Findings of Fact and Conclusions of Law support it's decision to
DENY the appeal of Edwin Handte for the Planning Department approval of building permit #
01-3-2249 for interior remodel and walk-in cooler.
PASSED AND ADOPTED by the Planning Commission of Monroe County, Florida, at a
regular meeting held on the 28th day of November, 2001.
Chair Ritz
Vice-Chair Werling
Commissioner Coleman
Commissioner Hill
Commissioner Putney
yes
yes
yes
yes
absent
APPROVBDAS TO FORM
AND ~ SUFFICIENCY
. I
..' /1.
BY ,J " . ;(-y'../[
r Alto ey's Office"
1
PLANNING COMMISSION OF
MONROE COUNTY, FLORIDA
BY
David C. . tz, Chair
C (f( L -(;
Signed this
'_1/
2 7 / day of
.Jece/??i:Yer
, 2001.
Page 4 of 4
Initial ptl(.,
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MONROE COUNTY ***LIVE***
PERMIT STATUS REPORT
DATE: 12/07/2001
PAGE :
1
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
BASIC INFORMATION :
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Permit no
Master no
CO issued
Project
RENUMBER
Address
Owner(s)
Owner Addr
Permit Type:
Usage Class:
Input Quan:
General Cont:
J~11126 Status : OPEN
Apply date 08/10/93
Permit issued: 08/10/93
CO number
00472490000000-
LARGO SOUND PARK PB3-111 KEY L
GUZMAN JULIO & DONNA C
182 BAHAMA AVE KEY LARGO FL 33037
12 C404 Type
N/A Appl. Valua:
o Calc Valuat:
00955 RONNIE'S FENCING
800
o
& FENCE REPA.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
SPECIAL CONDITIONS
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Y
126 LIN FT F SIX FT HIGH CHAIN LINK
FENC . LAND CLEAR IS ALLO~Y ~~T~
PERMIT. SECURITY FEN~~()NL'y I NO STORAGE .
~ER~TTE~ NON-DEVELOPMENT.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
PROPERTY INFORMATION :
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Section
Frontage
Township
Range
Zone clss
Fld zone
Units
Front
Left
Bedrms
Rooms
Construe type
Subdivision
Engineer
Architect
14
Lot
Impact area
Block
Lot area
Fire dist
Fld elev
Floors
Back
Right
Sqft roof
Sqft footprnt:
Sqft livable :
50000000
61
39
o
================================================================================
CONTRACTOR INFORMATION :
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
General Cont: 00955
RONNIE'S FENCING & FENCE REPA.
~l. I
\;a/ls/olf
'.
"....
z
MONRO. COUNTY BUILDINGJ'\~PARTMENT
BUILDING PERMIT
Date Applied: 06/17 I 2002Prepared bYaladroi:9ate Issued: 07/09/2002 Permit No.: 02302708
Permit TypeCOMMERCIAL MISCELLANEOUS
. :Propel'ty;Addtess
LARGO SOUND
. SubdlvlsLonNaPl8.' .
KEY LARGO PRODUCE INC
142 N SUNRISE DRIVE
TAVERNIERFL 33037
3054515140
CROSSKEY MARINE CANVAS & UPHOL
PO BOX 1865
KEY LARGO, .FL 33037
(305)4511302 133
COM
90
$dIledulS.of:Fees
FEE DESCRIPTION
APP FEE-SLOG PERMITS
EDUCATION & INSP FEE
INCOME FROM PERMITS
FEE AMT
35.00
1.00
229.00
AMT PAID
35.00
1.00
229.00
BALANCE DUE
0.00
0.00
0.00
------~----~- -------~_._--- -------------
~*w FEE TOTALS ***
265.00
265.00
0.00
103375 OVERSEAS HWY(ORGANIC PRODUCE)
AWNING WI SIGN
NOTICE OF COMMENCEMENT REQUIRED
**************************************************
** MORE INFORMATION TO PRINT ADDITIONAL PAGE REQ'D
~.........;'~~~."~.'>~~~.'-""~
.............. "." . ",,-. ,\
.-'" PLEASE RE~E REVERSE OF THIS DOCUMENT BEFORE YOU SIGN AS OWNER, CONTRACTOR OR AUTHORIZED AGENT.
~...:~~/, .1// /J .~// ..
/;~./ #'U~r BY /{'~~~a:/IL:V~ ,{2~.z6i~;;:t;;::;
SlGNATUR OF OWNER, CONTRACTOR OR BUILDING DEPARTMENT./
AUTHORIZED AGENT 01111 ....,~,'" ...r-..."P
,
..
Permit #: 02302708 06/17/2002
Permit Type: COMMERCIAL MISCELLANEOUS
Address: LARGO SOUND PARK PB3-111 KEY LARGO
Owner: KEY LARGO PRODUCE INC
103375 OVERSEAS HWY(ORGANIC PRODUCE)
AWNING W/ SIGN .
NOTICE OF COMMENCEMENT REQUIRED
**************************************************
1. APPROVED FOR INSTALLATION OF 1087 SQ. FT.
AWNING AS SHOWN ON PLANS.
2. APPROVED FOR 72 SQ. FT. OF SIGNAGE ON AWNING -
COpy - "KEY LARGO PRODUCE" "ORGANICS".
3. PAINT OR AFFIX PERMIT NUMBER TO SIGN STRUCTURE
OR SIGN VISIBLE FROM GRADE.
4. PLANNING INSPECTION REQUIRED.
PERMIT APPROVAL TO INSTALL THREE STEEL FRAME
CANVAS COVERED WINDOW AWNINGS WITH SIGNAGE AS
PER APPROVED PLANS.
NO OTHER WORK THIS PERMIT.
INSPECTIONS REQUIRED AS PER PERMIT CARD.
DEEMED NON-DEVELOPMENT. D.C.A. EXEMPT
ID
SUBCONTRACTORS
BUSINESS NAME
NO SUBCONTRACTORS ASSIGNED
PLAN REVIEWS COMPLETED
STATE/COUNTY CERT #
PLAN
EXAM
ABO
06/21/2002 mallettw P ** NO NOTES FOR THIS REVIEW **
06/21/2002 buzzells P ** NO NOTES FOR THIS REVIEW **
06/24/2002 ravellaj A ** NO NOTES FOR THIS REVIEW **
INSPECTIONS REQUIRED
.BL99 - FINAL BUILDING
PLAN - PLANNER FINAL
MONROE COUNTY ***LIVE***
Item
1 of
1
BUILDING PERMIT RECEIPT
OPERATOR: aladrob
COpy # 2
Sec:14 Twp:61 Rng:39 Sub: Blk: Lot:00472490000000
DATE ISSUED.......: 07/09/2002
RECEIPT #.........: 37127
REFERENCE ID # ...: 02302708
SITE ADDRESS ...... LT13&14 BK11 LARGO SOUND P
SUBDIVISION. .....:
CITy............. :
IMPACT AREA ......:
OWNER.. ..........: KEY LARGO PRODUCE INC
ADDRESS ..........: 142 N SUNRISE DRIVE
CITY/STATE/ZIP .... TAVERNIER, FL 33037
RECEIVED FROM ..... CROSS KEY MARINE
CONTRACTOR. ......: CULLIN,ROBERT A. LIC # 00133
COMPANY ...... ....: CROSSKEY MARINE CANVAS & UPHOL
ADDRESS ..........: PO BOX 1865
CITY/STATE/ZIP ...: KEY LARGO, FL 33037
TELEPHONE ......... (305) 4511302
FEE ID UNIT QUANTITY AMOUNT PD-TO-DT THIS REC NEW BAL
---------- ------------- ---------- ---------- ---------- ---------- ----------
B- 01 APED FLAT RATE 1. 00 1. 00 1. 00 0.00 0.00
B- 0 EDUC FLAT RATE 1. 00 0.00 0.00 0.00 0.00
B- 1B APPL FLAT RATE 1. 00 35.00 35.00 0.00 0.00
B-27A SIGN SQUARE FEET 72.00 9.00 0.00 9.00 0.00
B-23 AWNIN SQUARE FEET 1,087.00 220.00 0.00 220.00 0.00
---------- ---------- ---------- ----------
TOTAL PERMIT : 265.00 36.00 229.00 0.00
*NOTE*: THIS RECEIPT HAS FEE CREDITS TOTALING:
36.00
METHOD OF PAYMENT
AMOUNT
NUMBER
CHECK
229.00
045721 TIB BANK
------------
------------
TOTAL RECEIPT
229.00
t'
APPLICATION FOIt BUILDING PERMIT
MONROE COUNTY GROWI'H MANAGEMENT DIVISION
Note: ALL OWNER BUILDERS MUST APPLY IN PERSON (FS. 489.103(7)) Date 20_
P.rmiU () ~ ~(')~ ?Or: Application Dale: .In.,.. lat Z8 02
Pl'Op'rlyOwner".Name: '~.-Ikr._.Q -4<1::,:) !J:lr~\)('N~t(l(' ~IPhoM: 451.5140
Add,..: 1_75 Ov..l'!U!Jlalhr,y. <
PropmyD'llCdpltolltK.y ~ I..~o Lot 13 &: I~k 11 RB. 00472480-QB008
Subdivl.1on Laqro Sound Patk MM 193 51..- US I
Land u.. DlttrJct See. ~ Twn...IIL Rp. ___ Flood Zone Panel,
Pfop....ConaIIucIlon: Three steel frome,coOyas covered window awnings 'fifth Slgnoge.
, -
-
Roc'd by:
ChICk .pJ!Jclttk bet, . for Roof.... P-ltI I'j!W A 9 AiIlA JUi-ROOF 0
SqUIN F.i:J. -lei R SlIq 1~7 ~ nWs.tt~.e:; Total C_
Conlacton Name: Cross K~y Canvas
AddnlSS: PO Box 1865, Key largo Fl. 33037
Not Aollcable
Ri-COVSR 0
. 90ft0..oo
Phone:
CX>>GVIIlt ,
305.451-1302
CArtificcn "SP 1137
BondlD. Compan)' Name:
Address:
Arehtl.dlEnlln.ltJ". Name Wavne M. Grierson I ~~
Addl'flll: 91971 Overseas Hwv. TavemlerFla. 33070
Phone:
Phone: 305--852-4245
MortPl' UDder'. Name:
Add.,.:
Phone:
SubcontrKton:
'"
Sign:
Eleclrlcal
Mechanical
,-
Computer' License If ~ Job Colt
lDN cc;:mmATI' ~~~
ID. C,s,
lOt _ C,5I
,ID. '. . :f~:!, " ":,":;'~$ti
Septic Tank - Halth DepL Permit' ,
1, .
Ihor, U:daaDJication~me.10betrue.ndC.'Orrect. ~I'OYisIonIOflaw.at orduuancet
IHt wli!lhW jdii r . Tho ant 01. It not reJUD1C 10 ve authority
Po'v .... or allaws Nlulallna col\lt=~rt~o'C.'Onlttuc:tiO .
"Notlce: In addltfon to thelllqWNDUlllflllaitJsJu__ there ;rmbe additional roltrictJo,,",PD~te.thJ..ubperty that II1IY be fol.Uld in
the public roeordl of thil CQantY~.~iaaftJOAaI ill roquiNd fiC>>JjfOthilr'8IJ~~ Iudi.. waterl1llnapment
distticts, state apnein or fedofalaaeadei..
Xf~~l~ . Yp ~~a ~ N~~ OF COMM:NCEMENT MAV m~JN;OU~A lWICE FOR
RECOROINGY UOf :OMMENCE B IllANCING.C~lTWlTHYOU DE OR A ~VeEFORE
3UJU
I.... Cornrnls1lon # CC941016
PERMrr COST RECEIPT' DATE
FIRS MARSHAL
RAD/RIiC
8UILDINC .2lt,~-. 00 ~ (0 -ot4--oc
ROOFING
ELECfRlCAL
Ale, MECHANICAL
PLUMBINC
TOrAL PERMIT FBI!
APP. FEE CREDIT ( -~. J ... .;;#. ~ ~-/;J~C
-
PERMIT FRS DUE J.. 2. '1 // IMPAC'rJU FORDEPAItTMENT USE ONLY
~
.~~ 1>-2f~
BUILDING OFFICIAL. ASS1' BUILDING OFFICIAL
APPROVED FOR lSSUANCE OF PERMIT
1&CIIJlT, ~
DATI
OEVILOPMINT
~No.J.DBVELOPMENT
BPAPP3/97LF
)-,J.\.r.~
MONROE COUNTY ***LIVE***
Item
1 of
1
BUILDING PERMIT RECEIPT
OPERATOR: aladrob
COpy # 2
Sec:14 Twp:61 Rng:39 Sub: Blk: Lot:00472490000000
DATE "ISSUED.......: 06/17/2002
RECEIPT #... ......: 36398
REFERENCE ID # ...: 02302708
SITE ADDRESS ...... LT13&14 BKll LARGO SOUND P
SUBDIVISION ......:
CITy............. :
IMPACT AREA ......:
OWNER ....... .....: KEY LARGO PRODUCE INC
ADDRESS ..........: 142 N SUNRISE DRIVE
CITY/STATE/ZIP .... TAVERNIER, FL 33037
RECEIVED FROM..... CROSS KEY MARINE
CONTRACTOR.... ...: CULLIN,ROBERT A. LIC # 00133
COMPANy..........: CROSSKEY MARINE CANVAS & UPHOL
ADDRESS....... ...: PO BOX 1865
CITY/STATE/ZIP ...: KEY LARGO, FL 33037
TELEPHONE ......... (305) 4511302
FEE ID UNIT QUANTITY
---------- ------------- ----------
B- 0 EDUC FLAT RATE 1. 00
B- 01 APED FLAT RATE 1. 00
B- IB APPL FLAT RATE 1. 00
AMOUNT PD-TO-DT THIS REC NEW BAL
---------- ---------- ---------- ----------
1. 00 0.00 0.00 1. 00
1. 00 0.00 1. 00 0.00
35.00 0.00 35.00 0.00
---------- ---------- ---------- ----------
37.00 0.00 36.00 1. 00
TOTAL PERMIT :
METHOD OF PAYMENT
AMOUNT
NUMBER
CHECK
36.00
045522 TIB BANK
------------
------------
TOTAL RECEIPT
36.00
c-
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