Resolution 233-1991
~ "
Growth Management
RESOLUTION NO. 233 -1991
..
A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA, GRANTING KEY LARGO
ASSOCIATES, LTD., A MAJOR CONDITIONAL USE FOR THE
ISLAND PLAZA SHOPPING CENTER LOCATED IN KEY
LARGO. MONROE COUNTY~ FLORIDA.
WHEREAS, the Honorable Richard Payne, Circuit Judge, in an
order dated February 13, 1990, ordered the Monroe County
Commission to grant a major conditional use permit to Key Largo
Associates, Ltd., for a proj ect called Island Plaza Shopping
Center located on Key Largo; and
WHEREAS, such order has now been affirmed on appeal; now,
therefore,
BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF
MONROE COUNTY, FLORIDA,
Section 1.
As ordered by the Court, Monroe County hereby
approves the application by Key Largo Associates, Ltd., for a
major conditional use for the Island Plaza Shopping center filed
on October 6, 1988, a copy of which is attached hereto and made a
part of this Resolution, as modified by the recommendations of Ty
Symroski in a memo dated April 25, 1989, a copy of which is also
attached to this Resolution and made a part hereof.
Section 2.
_..I:>-
We disagree with the Court's decision;
however, the Board is taking this action on the recommendation of
their attorney.
PASSED AND ADOPTED by the Board of County Commissioners of
Monroe County, Florida, at a regular meeting of said Board held
on the
26th
day of
June
1991.
Mayor Harvey
Mayor Pro Tem London
Commissioner Cheal
Commissioner Jones
Commissioner Stormont
Yes
Yes
"...11 'iI& 1
Yes
11 1
Yes
No
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
~ . ~ ~-
BY:~ ~1b~J <0"'" ~",-.. - -', \
Mayor'1thairman
(SEAL)
ATTEST: DANNY L. KOLHAGE, CLERK
BY:~~~~ j).~'
ty er
~A TOFOFlM
, .,.....~ I (" _~: .-....-'~-.!-
AN, ' , '" " .. -,_.. ,-,.l'..
By , " ,.'-
Dele .4-11' ,t~~ J 'tAJ~ I
IN THE CIRCUIT COURT FOR MONROE COUNTY, FLORIDA
Plaintiff,
)
)
)
)
)
) CASE NO. 89-893-CA-l8
)
)
)
)
KEY LARGO ASSOCIATES, LTD.,
a Florida limited partnership,
vs.
~HE BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY,
FLORIDA, a political
subdivision of the State of
Florlda,
Defendant.
FINAL ORDER
This matter comes before the Court upon a petition for writ
of certiorari to review a final order of the Monroe County
Planning Commission and a decision of the Monroe County Board of
County Commissioners regarding the petitioner's application for a
major conditional use ~egarding the Island ?laza Shopping
Cente!;.,.
The order of the Monroe County Planning Commission and the
decision by the Monroe County Board of County Corr~issioners xust
be measured against the standards descr ibed by Judge Zehmer of
the First District Court of Appeal in his opinion in :~vine v.
Ouval County ?lannina Commission, 466 So.2d 357 (Fla. lst DCA
1985), ",.;hich -,.;as adopted and approved by the ?lor ida Supreme
Court :..n Irvine '1. Juval County Planning Commission, 495 50.2d
:67 (Fla. :986.) These standards include the fcllowing:
(a) if an applicant for a major conditional use makes a
prima facie case for granting the conditional use, the burden
then shifts to the zoning authority to demonstrate by
competent substantial evidence that the proposed conditional
use is adverse to the public interest.
(b) If the staff of the zoning authority has studied the
proposed conditional use and issues a report that reco~~ends
approval of the application, the applicant has established a
prima facie case for granting the conditional use.
(c) The personal opinions of the members of :he zoning
authority do not cons:it~te competent substantial evidence.
(d) If the burden shifts :0 the zoning authority and it
fails to demonstrate by competent substantial evidence in the
record that the proposed condi tional use is adverse to the
public interest, the reviewing court must reverse the order
of the zoning authority.
(e) If the zoning authority demonstrates by competent
substantial
evidence
in
:he
record
that
the proposed
..,
conditional use is adverse to the public interest, the order
.
denying the application must refer to the facts in the record
:hat support its conclusion, and may not simply state
conclusions
:hat
':he
applicant
:ailed
':0 satisfy
:he
requirements of the applicable ordinance.
-2-
"
In the proceeding now under review by this Court, the staff
of the Monroe County Planning Commission recommended approval of
the application for the condi tional use, thereby shifting the
burden to the Monroe County Planning Commission to demonstrate by
competent substantial evidence in the record that the proposed
conditional use is adverse to the public interest. The record in
this case does not contain competent substantial evidence that
the petitioner's proposed conditional use 1S adverse to the
public interest.
Furthermore, the order of the Monroe County
Planning Commission improperly states conclusions about the
application when ~easured against the subparagraphs of ~he
applicable ordinance, without reference to any facts in, the
record, all in violation of the principles of law set forth in
Irvine, suora.
THEREFORE, based on ~he petition for writ of certiorari, the
record of the applicable proceedings before the Monroe County
Planning Commission and the Monroe County Board of County
Commission,
...
the documents in the Appendix attached to the
petition for writ of certiorari, the County's answer to the
.
petition, the Petitioner's reply, and oral argument of counsel,
IT IS ADJUDGED that:
1. 7he resolution of the Monroe County Planning Commission
dated May 11, :989, and the development order of Monroe County
Planning Commission dated May 25, 1989, and the decision of the
Monroe County Board of County Commissioners on August 29, :989,
all of which denied the application by Key I..argo Associates,
Ltd., for a major conditional use regarding the Island Plaza
-3-
Shopping Center, are hereby quashed.
2. The Monroe County Board of County Commission is hereby
ordered to approve the application by Key Largo Associates, Ltd.,
for a major conditional use regarding the Island Plaza Shopping
Center, which was filed on or about October 6, 1988, with the
modifications recomme~ded in the memorandum dated April 25, 1989,
from Ty Smyroski, development review coordinator, to the Planning
Commission (a copy of this memorandum is a part or Exhibit A-2 in
the appendix to the petition ror writ of certiorari.) The Monroe
County Board of County Commission is directed to approve the
application with these modifications within twenty (20) days from
the date of this order.
3. The Court retains :ur isdiction of this proceeding to
enforce the provisions of this fi~al order and to issue any writs
that ~ay be necessary to compel compliance and/or to effectuate
the provisions of this order.
:)ONE AND ORDERED in' Chambers in Key West, Monroe County,
Plor ida this /3;Q. day of
~~~
/:/ RICHARD G PAYtU
RICHARD G. PAYNE
CIRCUIT COURT JUDGE
, 1990.
Copies furnished to:
John T. Blakely, Esq.
Mark Graham Hanson, Esq.
\915\JTB\12179MSP03
82023
M EMU RAN DUM
'1'0:" The Planning Commission
THROUGH: Howard Tupper, Planning official,
FROH! Ty Symroski, Development Review coordinator1"~/
,.
. . I
SUBJECT: Major Conditional Use - Island Plaza ProJect
DATE: April ~5,1989
MEETING DATE: April 27,1989
PLANNER:
Lrrenzo AghemO'
PREVIOUS RELEVANT BOARD ACTION: Yes X No
January 5, 1989:
Postponed due to improper no~ic~.
March 2, 1989: Public
March 30, 1989,
Planning Staff to
ences apparent at
hearing held but continued to
to allow the applicant, neighbors and
meet to attempt to resolve the differ-
the hearing.
March 30, 1989: Public hearing held but continued until
April 27, 1989, .to allow the applicant to revise the
plan and for the Planning Staff to prepare a comprehen-
sive list of conditions.
1.
SUMMARY OF REQUEST
r~itial Request: I ! Major. conditional use approval of commer-
cial retail and two fast ~ood restaurants in addition
to an existing Winn-Dixie Food Store and as shown spe-
cifically' below (from dimensions and tabulations on tne
si te plan).
. .
PROPOSED TOTAL RETAIL 85,025 sq. ft.
Existing Retail (Winn Dixie) 36,200 "
Proposed Additional Retail 48,825 "
PROPOSED TOTAL RESTAURANT 7,050 "
Fast Food Restaurant 7,050 "
--------
TO~AL AREA OF EXISTING & PHOPOSED 92,075 "
Rev jsc:9 R(~quest: As a result of meetings held hy the ctc-
vl~lop~r anu lllo neighborhood association with the media-
~}
tiOll of the Planning Department, the developer has re-
duced the proposal to what is shown below (from dimen-
sions and tabulations on the site plan).
Legal Description: Section
39 East, Key Largo
1; Township 61 Sou~h'; Range'
Commissioners District: 5
0pplicant: Gonzalez & Taylor Architects on behalf of
Key Largo Associates Limited.
Land Use District: Urban .Commercial
Size of Site: 8.53 acres
,
.1. . .
~xlstlng Vegetatlon:
Date of Application:
I
, .
Disturbed with hammock
October 7, 1988
iT. BACKGROUND INFORMATION
. .
The proposed shopping center was first presented to the Coun-
, for dpproval as a Major Development under the regulations of
tho previous Monroe County Code, however based on existing files
;!t the Planning Department, a determination as such was never
q';anted by the County. A regular building permit under # 16161
\':<i:; issued on Decembdr 17, 1984 for construction of a Winn-Dixie
:;lore on the r;i tc of the current application. The permit indi-
c~ted conditions regarding the land clearing, specifically stat-
ed: ..." '(3) Paradise tree hammock to remain intact (may be used
for' 1 andscaping) . . . " .
~>lb:;cquen'll y, 1)'::"'\ appealed the permit on the basis that the
I'J'ojcct needed [lIrther review regarding traffic and landscapiT10
i)lljl~',:t;, on t he ~omm1jni.ty.' '1'110 appeal was dismissed on April 7,
q
1985, upon a joint stipulation of settlement agreed by DCA,
~'onroe County, and I.D. Properties Incorporated. Part of the
ngrecment consisted in changes to the original landscape plan,
specifically some 'of those changes included the preservation of
hammock areas indefinitely, which were later amended to the
~uilding permit #16161.
J
'III. RECOMMENDED ACTION
APPROVAL SUBJECT TO CONDITIONS
. In order to reduce the impact that a project of this scale
and'type has on the natural and built environment, as well as on
the 'surrounding community, the proposed development shall comply
with the followiag conditions:
]) PROJECT SIZE
A) The proposed shopping units shall be limited ,to medium
intensity use, except for Pad #2, which will be destincd for
afast food restaurant'or 1cssintensive use~ This and oth-
er reductions shall remove the requirement that the sewage
treatmcnt plant be located as far as possible from the wet-
lands.
B) The Developer shall reduce Retail 'A' building by 1400
sq. ft. on the south end- so as to allow installation of
Class "E" buffer along Blackwater Lane ('30 feet wide).
I,
.'
c.)
sq.
. end
il19'
the Developer shall. reduce Retail 'c' building by 1200
ft. of commercial retail floor area on the north-east
in order to preserve a substantial portion of the exist-
hammock.
,
I .
D) The proposal shall be limite~ to the following areas of
uses. The areas conform with th dimensions on the site
plan received April 12, 1989:
, -
to
PROPOSED TOTAL RETAIL 84,665 sq. ft.
{ Existing Retail (Winn Dixie) 36,QOO "
PH)posed Additional, Retail 48,465 "
PROPOSED TOTAL RESTAURANT 4,550 "
Fast Food Restaurant 3,550 "
<J Sit Down Restaurant 1,000 "
--------
TOTAL ARE~ OF EXISTING & PROPOSED 8'9,215 "
E) . The Devoloper shall not provid~ more parking other than
necessary to meet the minimum requirements of the Develop-
ment Regulations. Based on the size of the project proposed
by the Planning staff, only 331 parking spaces will be need-
,cd. Therefore 59 parkirrg spaces should be eliminated from
the 390 snaces shown on the site plan. The priority for
selecting the spaces to be eliminated shall be:
1) preservation of hammock;
'2) preservation of trees;
3) improvement of safe traffic flow;
4) shading of parking spaces;
5) creation of attractive landscape features such as a
small playground or' seating area near the center of the
project.
The imp~ementation of this criteria shall be coordinat-
ed by the developer with the Planning Department.
, '
2) HAMMOCK PRESERVATION
t
.
A) The applicant shall submit to the County a mitigation
plan for the use of hammock a~eas which were to be preserved
i~definitely, as ~ result of the joint stipulation agreement
/ between the Count~; DCA, and the previous property owner.
This plan shall consist of the-donation to the County of a
tract of high quality hammock (with development 'potential)
of at least twice the 'extent of stipulated preserve araa
that is removed by this development. The app+icant has the
alternative of preserving the hammock areas agreed to be
left intact by reducing the size of the proposed shopping
center. ,-
B) Tree removJl shall be performed according to the follow-
ing mitigation plan:
j i)
,The buffer on the north and east sides of the property
Shl1U be increased to as shown on the staff recommended
'1/
ii)
iii)
,
iv)
site plan and left in its natural state (with the excep-
tion of Brazilian removal),
All native trees on the site with a diameter breast
height (DBll) of greater than four inches shall be inven-
toried. These trees shall be transplanted on site in
accordance with standards set forth by, the County Biolo-
gi~t. Where trapsplanting is not feasible, trees re-
moved will be replaced on a two by one basis by ap-
proved native landscape trees of at least two inches
DBH'and at least ten foot in height,
All threatened, endangered and rare species shall be
transplanted on site in accordance with standards set
forth by the County Biologist. These shall include
West ,Indian mahogany, satinleaf, cinnamonbark, and para-
dise tree, as identified in the original vegetation
survey [or this property,
Every effort shall be made wherever possible to retain
native trees' in their natural condition on site. Ef-
forts shall include rearrangement of parking islands,
where feasible. 'These trees shall be protected during
constr\lction according to standards set forth by the
County Biologist.
The above mitigation conditions are in addition to the
landscape already required for this site (buffers and park-
ing landscaping). These conditions shall have -been met for
the Biologist's final inspection for the Ce~tificate of Occu-
pancy, with thc exception of the protection statement in
condition. If existing trees are not being adequately pro-
tected, the contractor shall stop work until adequate protec-
tion measures are taken.
C) A fence shall be cprlstructed around the areas to be
served in order to prevent the construction activity
accidentally destroying the preserved areas. This
,must be installed and approved by the county biologist
to the building permit for the buildings.
D) The Developer shall coordinate with Florida Department
of Transportation!to relocate plants from the site and used
as landscape material in the U.S, 1 right of way
pre-
from
fence
prior
. .
3) BUFFER ALONG BLACKWATER LANE
A) The applicant shall install a 30 foot wide Class E buff-
er along the entire length of Blackwater Lane. In addition,
there shall be a 3 foot high berm and, a 3 foot high opaque
wall internal to 'this buffer. Within this buffer, over 70
percent of the! shrubs and bushes shall be installed along
thc outsidc of the wall and over 70 percent of the installed
trecs fihall be inside the wall.
'/~
~
0, j
B) The Applicant shall install the buffer along Blackwater
Drive before is~uance of the building permit for the build-
ings.
4 )
OUTDOOR LIGHTING
~
All new outdoor lighting on site shall be cut-off lights
and the; maximum height shall not exceed 18 feet.
5) DRAINAGE AND WETLAND PROTECTION
A) A permit from the South Florida Water Managcment Dis-
~rict will be required for the site grading and drainage. A
full copy of this permit including the approved drawings and
calculations must be submitted with the final development
plan.
.
B) A DER permit will be requircd!for expansion of the sew-
age treatment systcm and must be submitted with the final
development plan.
C) The Deyeloper shall install and Jnaintain an alarm in the
sewage treatment plant to detect a failure.
6) TRAFFIC ALONG BLACKWATER LANE
~. A) The applicant shall construct a bicycle/pedestria~s
path access to the site from Blackwater Lane in the vicinity
of retail A.
D) There shall be no automobile or truck connection to
Blackwater Lane. However, in order to meet a potential de-
mand for access from the residences in Stillwright Point
and ,Paradise Point Subdivisions, the applicant shall provide
an casement tp the County to install an access to the shop-
ping center if more than 50 percent of the residents of Para-
dise noint and Stillright Point Subdivisions agree Ito or re-
quest such access. This potential access shall be behind
the front of retail A and shall be angled in a north-
0~st/southwest manner to prevent it from becoming an access
fbr U.S. 1 traff1c~
. .
C) Subject to approval from the Florida Department of
Transportation; the developer shall use the transportation
impact fees from this project to improve the Blackwater
Drive/USl intersection. In'order of priority, this shall
include:
"
i)
north. bound, left hand turninq lane from U.S. 1 onto
n, ",..."'''' t. Hf ' t.,ottH. I
I~
. ii) south bound, right hand turning lane from u.s. 1 onto
Blackwater Lane,
iii) left hand turning lane from Blackwater Lane onto u.s. 1.
71 ADDITIONAL TRAFFIC CONSIDERATIONS
A) The Applicant shall agree to allow a drive to
adjacent "UC" parcels. Monroe County will have the
to determine the exact location of this access and
adjacent developer to build it. I
B) The Applicant shall increase the turning radius
isting access to the same turning radius as shown
North East side and extend the length of the existing
way so as to allow greater stacking space ,for cars
left onto u.s. 1 (north bound).
and from
apility
requir.e
of ex-
for the
drive-
turning
B) SOLID WASTE,
The Deveropcr shall coordinate ~ith Municipal Service ~
District to present a management plan for the disposal of
construction debris and solid waste generated by the devel-
'opment. such a ,plan wil} be submitted with the final devel-
opment plan
9) TRASH
The Developer shall install a 4 ft. high fence~ behind
the buildings within 5 feet of the edge of pavement and the
sewage treatm~nt plant to contain any litter on the site.
10) SETBACKS
,,'
All'setbacks shall be measured to the pavement and no
parking shall be located in the setbacks.
11) LEAST TERN HABITAT
A) The habitat for least tern nesting shall be ptotected
and potehtially increased by taking the following measures:
. i )
ii)
All rooftops of new building shall be gravel finish
identical to t~at of the existing Winn Dixie store,
A visual screen shall be erected on both ends of the
existing Winn Dixie roof in order to completely block
the new construction area, inclUding moving equipment
and people until all construction activities have
ceased or until the County Biologist certifies that
there arc no nesting terns on the roof, and,
The contractor shall assure that no structures such as
lad~crs, boards,' and catwalks by' which any non-flying
. ,
, .
iii)
-)~
animal could gain access to the Winn Dixie roof, are
left unattended at any time during construction.
,~2) HANDICAPPED PARKING,
Of the total required 331 parking spaces, 9 will be des-
ignated for the nandicapped.
13) FINAL DEVELOPMENT PLAN
The Applicant will submit a final, development plan to
the Planning Commission pursuant to Section 9.5-70 of' Monroe
County Code. This plan shall show: .
i) ,
. .
ii)
J
all conditions including necessary le-
iii)
Compliance with
gal 'documents
The required number of
these, the required
(9 spaces)
the location and number of dumpsters on site in a man-
ner 'so as not to be a nuisance to' the adj acent proper-
ties.
The bicycle rack moved from b~hind the building (ret'ail
A) to a place in front of the building near retail 'A'
and Eckerd's.
parking, spaces (331) and of
allocation to ~andicapped parking
iv)
IV. RECOMMENDED FINDINGS
1) Summary of Information:
A)
B)
C)
D)
E)
F)
A complete staff report,
Extensive input'from residents from neighborhoods near
. the parcel proposed for development,
A report from the Development Review Coordinator as to
the recommendations of the Development Review ~ommittee,
An aerial photograph of the site taken within one year
of the application
photographs of the site taken by the staff during the
review of the application,
The complete file on the proposal maintained by the
l)lanning staff I
;~) . summary of Documentary Evidencc:
'!
A)
B)
.
A complete'application by the applicant;
A letter of reference by Arthur Bigelow, Senior Vice
President Commercial Lending, Barnett Bank of South
Florida, attesting' to the capability of the applisant
to develop such a shopping center;
f'5"
3) Findings of Fact:
A)
. The proposed development as approved is consistent with
the purposes, goals, objectives, and standards of the
plan and the development regulations and .pecifica~ly
the purpose of the Urban Commercial District and the
intent. to protect and conserve hammock species and bird
nesting sites;
The community character of the immediate vicinity of
the parcel proposed for development is predominantly
rural and residential with a church adjacent to the
parcel, vacant land to the west and nor~hwest, the John
'Pennecamp Park across U.s. 1 and U.s. 1 in the front.
Therefore the proposed development as approved with the
protection of the existing vegetation, increased buff-
ers, reduced size, and additional landscaping will be
consistent with the community character.of the immedi-
ate vicinity;
,
i ..
r
. .
B)
C) The proposed development as approved minimizes adverse
effects, including visual impact of the proposed usc on
adjacent · properties by the use of additional buffers,
additional landscaping, installation of a trash fencc,
restricted access on Blackwater Lane, and limited out-
door lighting;
D) The proposed use as approved will not have ~n adverse
affect upon the va1uc of surrounding properties by im-
proving the access to Blackwater Lane and reducing the
travel time for shopping;
E)
There are adequate public facilities to serve the pro-
posed use as approved. However, due to the current
limits to the county"conqerning solid waste and traffic
on U.S. I within 3 miles, it is necessary for the appli-
cant to coordinate with the Municipal Servi~e District,
not develop the parcel to the maximum that may possibly
be permitted and limit the type of retail and restau-
rant activity as approved;
In addition because the sewage plant is not lo~atcd as
far' as possible from wetlands, it is necessary to limit
the size of the proposed development;
F) .. The applicant! has the financial and technical capacity
to complete thc developmcnt as proposed and will have
made adequate legal provision to guarantee the provi-
sion and development of any open space and other im-
provements associated with the proposed development; I
. .
1b
i ,
G) The development will not adversely affect a known ar-
cha~ological, historical or cultural resource;
H) Public access to public beaches and other waterfront
areas is unaffected by the proposed development; and
I) The proposed us~ complies with all additional standards
imposed on it by the particular provision of the devel-
opment regulations authorizing such use and by all oth-
er applicabl~ requirements of the Monroe County Code.
ACTION BY: Ordinance ~Resolution
CITIZENS COMMITTEE STATEMENT: X No ___Yes (attach)
. .
I~