Resolution 297-1991
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Monroe County Commission
RESOLUTION NO. LY7 -1991
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A RESOLUTION OF THE BOARD OF COUNTY COMMIS-
SIONERS OF MONROE COUNTY, FLORIDA, APPROVING
THE APPLICATION OF SEANIC CORPORATION FOR
MODIFICATIONS TO THE MAJOR DEVELOPMENT
APPROVAL OF CAPTAIN'S COVE LOCATED IN LOWER
MATECUMBE KEY, MONROE COUNTY, FLOR IDA, AND
QUASHING A STOP-WORK ORDER ON SAID
DEVELOPMENT.
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WHEREAS, the Honorable M. Ignatius Lester, Circuit Judge, by
Order dated March 1, 1991, directed the Board of County Commis-
sioners to approve Seanic Corporation's application for modifica-
tions to the major development approval for Captain's Cove
located on Lower Matecumbe Key, and
WHEREAS, said Order of Court quashed the Stop-Work Order of
the Monroe County Building Department Official dated January 29,
1990, relating to said development; and
WHEREAS, said Court Order quashed Monroe County Planning
Commission Resolution No. 65-1990, and Board of County Commis-
sioners Resolution No. 626-1990; and
WHEREAS, such Order has now been affirmed on appeal; and
WHEREAS, the Board of County Commissioners is opposed to
approval of this project and disagrees with the Court's decision;
however, the Board is taking this action on the recommendation of
their attorney; now, therefore,
BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF
MONROE COUNTY, FLORIDA, as follows:
~2C!!Pll-1. As ordered by the Court, the Stop-Work Order
dated January 29, 1990, is quashed, thereby reinstating Monroe
County Building Permits 89-3-834 and C21269 as of the date of
this Resolution.
Section 2.
As ordered by the Court, Monroe County hereby
approves Seanic Corporation's application for modifications to
the Captain's Cove maj or development approval.
In accordance
with said Court Order, a copy of which is attached hereto, the
Final Development Plans prepared by Christ A. Fergis, Comm.
89-143,
dated December
18,
1989,
as modified by
the
recommendations of Ty Symroski in the memoranda dated December
20 and 28, 1989, copies of which are also attached to this
Resolution and made a part hereof, shall be deemed the current
approved building plans for the proj ect. The records of the
County Planning and Building Departments shall be amended and
supplemented to reflect the provisions of this resolution. Any
resulting decrease in building permit application fees shall,
upon completed review by the Building Department, be credited to
future impact fee assessments.
Section 3. The Clerk of the Board is hereby directed to
forward a certified copy of this Resolution to the Department of
Community Affairs.
PASSED AND ADOPTED by the Board of County Commissioners of
Monroe County, Florida, at a regular meeting of the Board held on
the 29th day of August, 1991.
Mayor Harvey
Mayor Pro Tem London
Commissioner Cheal
Commissioner Jones
Commissioner Stormont
Yes
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Not oresent
Yes--4~
Yes
No
(SEAL)
ATTEST: DANNY L. KOLHAGE, CLERK
By '7~~~llL. )).e
. e ty Clerk -
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
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y- 'Mayor/Chairman ~
By
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IN THE CIRCUIT COURT OF THE
16TH JUDICIAL CIRCUIT IN AND
FOR MONROE COUNTY, FLORIDA
CIVIL DIVISION
.CASE NO.: 90-l226-CA-18
Lester
SEANIC CORPORATION, a )
Florida corporation, )
)
Petitioner, )
)
vs. )
)
MONROE COUNTY, a political )
subdivision of the State of )
Florida, and HERB RABIN, as )
Building Official for Monroe )
County, Florida, )
)
Respondents. )
FINAL ORDER GRANTING PETITION
FOR WRIT OF CERTIORARI
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THIS CAUSE came before the Court on the Amende;d Petiti~n ,of
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Seanic Corporation ("Seanic") for Writ of Mandamus and Writ of
Certiorari (the "Amended Petition").
,
A final hearing on the
Amended Petition was held on February 19, 1991, in Key West,
Florida.
The parties filed an Amended Stipulation of facts to
.
which they attached the administrative record which is the subject
of review.
The parties also filed at the final hearing a
"Stipulation Regarding Final Major Developments."
Having heard argument of counsel, having reviewed the
pleadings, and having considered the parties' stipulations and the
numerous transcripts and exhibits attached thereto, the Court
hereby grants Seanic's Amended Petition for the reasons set forth
below:
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Factual Background
On May 28, 1982, the Monroe County Zoning Board granted
final "Major Development" approval to a development in Lower
Matecumbe Key known as "Captain's Cove."
The County's "Major
Development Ordinance," ~ 6-221 et ~ of the former Monroe County
Code, was repealed when new land development regulations became
effective on September 15, 1986. See generally, ~ 9.5-2 et ~ of
the Monroe County Code. As originally approved, the deveJopment
called for 46 townhouses and 23 finger piers.
Thereafter, the
original developer of the project, Port Antigua, Inc., requested
Zoning Board approvpl of a modi f ied phas ing plan and a time
extension. On July 30, 1986, the Monroe County Zoning Board issued
Resolution No. MD 33-86 approving the requested changes to the
Captain's Cove development: "Amendment to the phasing and time
extension as follows: Approval of a one-phase, three-year
completion time for the project, to begin forty-five (45) days
after Zoning Board approval."
On September 26, 1986, the State of Florida Department of
Community Affairs ("DCA") appealed Resolution No. MD 33-86 to the
Florida Land and Water Adjudicatory Commission ("FLAWAC"). On
February 23, 1987, Port Antigua, Inc. and the Monroe County
Planning Director signed a letter which provided, in part, that if
the developer did not apply "and/or receive the necessary building
permits to complete the project within twelve months of the final
extension authorization granted by the Zoning Board," all
subsequent building permit applications would be governed by
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Section 1-102(b)(4)(a) of the County land development regulations
which became effective on September 15, 1986. This letter, which
purports to be binding on all subsequent owners of Captain's Cove,
was not recorded in the public records of Monroe County.
On February 25, 1987, FLAWAC dismissed DCA's appeal based
on a settlement agreement under which Port Antigua agreed to pay
certain impact fees to Monroe County.
On the same day, Monroe
County issued Building Permit C21269 "to construct four uI)its of a
46 unit condominium" and Building Permit C21273 to construct 70
mooring piles
and four finger piers at Captain's Cove.
Construction activ~ties at Captain's Cove proceeded under these
permits.
On April 14, 1989, Monroe County issued Building Permit
89-3-680 for 42 additional condominium units and a sewage treatment
plant at Captain's Cove.
On May 8, 1989, Monroe County issued
Building Permit 89-3-834 for the remaining finger piers.
On October 18, 1989, Steven Mirmelli, President of
Seanic, met with Herb Rabin, Monroe County's Building Official, and
Bob Herman, Monroe County's Deputy Director of Growth Management,
to discpss Captain's Cove.
At that time, Mirmelli was contem-
plating the purchase of the partially constructed development
provided that County officials confirmed the building permits were
valid and that construction could proceed. Mirmelli informed Rabin
and Herman that Seanic had made a depos it under a contract to
purchase Captain's Cove.
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At the October 18, 1989 meeting, Rabin and Herman stated
that Monroe County had issued building permits for Captain's Cove
and that Building Permit 89-3-680 was current and valid.
Rabin
further stated that under the Monroe County Building Code the next
inspection would be no later than 120 days from October 5, 1989
(the date of the las~ inspection) for Permit 89-3-680. Rabin also
stated that the status of Permit C-21269 was unknown but that, if
it had expired, it could be reinstated merely by payment 9f a fee
since the development "as a whole" had an "active and valid
permit."
On Octobe~ 19, 1989, Mirmelli sent Herman a letter via
telecopier restating the matters discussed at the meeting the day
before.
The letter confirmed the County's representations
regarding Permit Nos. 89-3-680 and C-21269, set forth above, and
provided, in pertinent part, as follows:
As I stated to you, I have delivered to the
seller's attorney a check to be held as a
deposit for the purchase of the land, ,permits,
approvals and all things of value, once the
seller has signed the purchase and sales
contract, a second draft of which was faxed to
the seller yesterday afternoon.
t My meeting with you and staff was for me to
understand the factual position of the
development with regard to permits and other
matters, which as a buyer I must know and
understand, and rely upon what I was told by
you to determine if I might be able to
consummate the purchase with full knowledge of
your departments position.
* * *
I hope this letter accurately reflects our
collective understanding of the substance of
our meeting. Please acknowledge this in
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writing on your letterhead, so that I might
completely rely on what I have been told,
however if any part is inaccurate according to
your recollection, please notify me in writing
immediately.
* * *
I can live with reality, but illusion is very
painful.
By letter dated October 20, 1989, Bob Herman sent Mirmelli a letter
confirming that the contents of Mirmelli's letter were correct:
I am in receipt of your fax dated October 19,
1989 regarding our October 18, 1989 meeting
with you, myself and Herb Rabin. By way of
this letter this is confirmation that Herb and
I both have read and agree that the facts as
you have ~tated them in the above referenced
fax transmission are correct.
On October 25, 1989, Seanic purchased Captain's Cove for
$1,000,000.
Seanic's reliance on the representations made by
Monroe County officials is not disputed by the County. There is no
question that such reliance was to Seanic's detriment.
In November, 1989, Seanic applied to the County for
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approval of modifications to the Captain's Cove development. The
modifications would reduce by one the number of units, reduce the
total square footage of construction, and increase open space and
t
recreation areas.
The County's Planning Department reviewed the
proposed changes, and in memoranda dated December 20 and 28, 1989,
recommended approval of the request for modifications with
conditions.
A hearing on Seanic's application for modifications
was held by the County Planning Commission on January 4, 1990, at
which time a question arose regarding the status of the project's
final
major
development
approval.
The
application
for
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modifications was then tabled until February 1, 1990, pending
further review of the project's development status by the County.
On January 12, 1990, Donald Craig, Assistant County
Administrator for Growth Management, sent a letter to Mirmelli
stating there "were complex questions which must be resolved"
regarding the project's development approval.
Craig also stated
that "the most permissive termination [date for completion of this
development] would be in April 1990."
On January 29, 1990, Craig directed the County's Building
Official to issue a stop-work order for the Captain's Cove.
Although the projeqt had just passed a construction inspection by
the Building Official that same morning, Craig directed the
issuance of a stop-work order solely on the basis of S 9.5-2 of the
Monroe County Code which provides, in pertinent part:
Notwithstanding the provisions of the Monroe
County Comprehensive Plan and this chapter,
the holder of a final major development
approval under the provisions of section 6-221
et ~ of the Monroe County Code nqw repealed
and an applicant for major development
approval, that was pending as of December 12,
1985, shall be entitled to the following
rights:
(a) The holder of a final major
development approval granted prior
to the effective date of the Monroe
County Comprehensive Plan and this
chapter shall be entitled to develop
pursuant to the approved final.major
development approval, provided that
construction is commenced within
twelve (12) months of the date the
final major development was granted
S 9.S-2(b)(4)(a), Monroe County Code.
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No portion of S 9.5-2, Monroe County Code, authorizes the
issuance of "stop-work" orders.
Section 102.1 et ~ of the
Standard Building Code, as adopted by the Southern Building Code
Congress International, Inc. and incorporated into the Monroe
County Code at S 6-16, authorizes the issuance of stop-work orders
under specified circumstances. The County concedes that none of
those circumstances applied to Captain's Cove.
On January 31, 1990, Craig sent a letter to Mirmelli
stating that the same building permits which Herman and Rabin had
confirmed to be "alive and well" were, according to Craig,
"incorrectly issued, and are void."
On February 1, 1990, the Planning Commission reconvened
the hearing on Seanic's request to modify the development plan for
the project which had been deferred on January 4, 1990. The
Commission considered the Craig letter of January 31, 1990, and a
memorandum of the same date from Assistant County Attorney Rob
Wol fe to Craig.
The Wolfe memorandum provi~ed that the major
development approval for Captain's Cove would expire on February
24, 1990 (not February 25, 1988 as stated in Craig's letter of
January f 31, 1990).
Based on the Craig letter and the Wolfe
memorandum, the Planning Commission decided it did not have
jurisdiction to consider Seanic's request for modifications and,
accordingly, refused to consider it.
Pursuant to S 9.5-521, Monroe County Code, Seanic
appealed the jurisdictional decision of the Planning Commission to
the Monroe County Board of County Commissioners ("BOCC"), which, at
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a hearing on May 8, 1990, reversed, with instructions to the
Planning Commission to hear all matters pertaining to Captain's
Cove.
While Seanic's appeal of the jurisdictional issue was
pending before the BOCC, Seanic commenced an administrative appeal
of the January 31, 1990 Craig letter and Wolfe memorandum. The
administrative appeal of the Craig letter and Wolfe memorandum and
the application for modifications were ul timately conso,lidated
before the Planning Commission. On June 7 and July 19, 1990, the
Planning Commission conducted an evidentiary hearing on Seanic's
request for modifica~ions, and heard Seanic's appeal of Craig's and
Wolfe's determinations regarding the building permits and the major
development approval. By votes of 5 to 0, the Planning Commission
upheld Craig's decision to declare the building permits void and
denied Seanic's request for modifications to the Captain's Cove
development plan. These votes are embodied in Resolution No. 65-
1990.
Seanic appealed these decisions to the BOCC, which
affirmed them at a hearing on OctobBr 29, 1990.
The BOCC
affirmance is reflected in Resolution No. 626-1990.
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Procedural History
On December 20, 1990, Seanic filed a Verified Petition
for Writ of Mandamus alleging that the County acted without
authority when it issued the stop-work order and declared Captain's
Cove's building permits void. An Alternative Writ of Mandamus was
issued, and a show cause hearing was scheduled for January 18,
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1991.
On January 11, 1990, Seanic served a motion to amend its
petition to include an alternative claim for writ of certiorari
addressing BOCC Resolution No. 626-1990.
At the hearing on the
show cause order, the Court granted Seanic's motion to amend, and
the hearing was continued until after Seanic filed an amended
petition. On January 21, 1991 Seanic filed an Amended Petition for
Writ of Mandamus and for Writ of Certiorari. By stipulation of the
parties a final hearing on the Amended Petition was. held on
February 19, 1991.
In its Amended Petition, Seanic contests:
1. The BuilQing Official's issuance of a stop-work order to
Captain's Cove on January 29, 1990;
2. The decisions of the Planning Commission and BOCC
affirming Don Craig's letters dated January 12 and 31, 1990 and
Robert Wolfe's memorandum of January 31, 1990; and
3. The decisions of the Planning Commission and BOCC denying
Seanic's request to modify the development ,plans for Captain's
Cove. ..
lSeanic claimed that because the County acted without
author~ty when it issued the stop-work order and when it determined
that Captain's Cove's building permits were void, relief may be had
by way of mandamus. There is substantial support for Seanic I s
position. See, City of Naples v. Crans, 292 So.2d 58 (Fla 2d DCA
1974); City of Jacksonville v. State ex reI. Mann, 27 So.2d 727
(Fla. 1946); State ex reI. Volusia Jai-Alai, Inc. v. Board of
Business Requlation, 304 So.2d 473, 476 (Fla. 1st DCA 1974);
accord, Metropolitan Dade County v. Alford, 456 So.2d 1317 (Fla. 3d
DCA 1984). The County, on the other hand, argued that the
administrative proceedings before the Planning Commission and BOCC
rendered these decisions regarding Captain's Cove ~eviewable only
by way of certiorari. (Both parties acknowledge, however, that the
decision denying Seanic's request for modification is subject to
review only by certiorari). This dispute over the approp~iate writ
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The Legality of the County's Actions
Regarding the Stop-Work Order and the Building Permits
Under S 9.5-113, of the Monroe County Code, the Building
Official and Planning Department were required to determine
Captain's Cove's compliance with the Code prior to issuing Building
Permit 89-3-680. Bob Herman and Herb Rabin were acting within the
scope of their authority when they confirmed to Mirmelli that
Building Permit 89-3-680 was "alive and well" and that Building
may be of no practical import. In certiorari, the Court's review
is limited to the record from the administrative proceedings below.
In mandamus, other materials may be considered by the Court. If
the County acted beyond its legal authority when declaring the
permits void or when issuing the stop-work order, however, such
action would not withstand judicial scrutiny in either mandamus or
certiorari proceedings. Accordingly, this Court concludes that
mandamus and certiorari are appropriate alternative remedies to
seek restoration of the building permits and lift a stop-work
order.
In this case the only materials brought to the Court's
attention outside the administrative record are attached to the
"Stipulation Regarding Final Major Developments." At the final
hearing the County argued that those materials should not be
considered by the Court because they are "in;elevant" and beyond
the scope of a certiorari review. The Court rejects the County's
argument that these materials are not relevant. Although the Court
would reach the same results and findings if it had not considered
this material, the Court finds that the County's handling of other
major development projects is relevant to the County's
interpretation of the applicable sections of the old major
development ordinance and the current land development regulations
regarding approved major development projects. Furthermore, this
case went to final hearing on an amended petition for writ of
certiorari and writ of mandamus. The stipulation regarding major
developments is directly relevant to the issue of the legality of
the County's action and therefore may properly be considered by
this Court. The decision of this Court ultimately to issue a writ
of certiorari does not preclude the Court from considering the
stipulation regarding major developments because, as noted above,
either a writ of mandamus or certiorari would have been appropriate
to review the stop-work order and this matter went to final hearing
on an amended petition for both writ of mandamus and writ of
certiorari.
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Permit C-21269 could be reinstated upon payment of a fee. In the
hearing before the BOCC on October 29, 1990, Bob Herman confirmed
that the Monroe County Building Official was authorized to "make a
determination of the validity of any building permits in Monroe
County." Yet, wi thin two months of receiving these assurances from
Monroe County's Building Official and Deputy Director of Growth
Management, Donald Craig advised Mirmelli on January 12, 1990, that
the building permits would expire no later than April, 19~0. Then,
on January 31, 1990, he advised Mirmelli that the building permits
were "illegal" and were void ab initio.
The Cou.nty has
advanced numerous
confusing and
conflicting interpretations of the former major development
ordinance and the new land development regulations, all of which
would preclude construction of the Captain's Cove development as
originally approved.
All these interpretations are inconsistent
wi th the representations Herman and Rabin made to Mirmelli in
October, 1989.
The Court finds the County',s post hoc reinter-
pretation of the Code and ever-changing position on the validity of
the building permits and the expiration date of the major
development approval to be totally unpersuasive.
.
Having once
determined that Building Permits 89-3-680 and C-21269 should be
issued in accordance with the applicable provisions of the Monroe
County Code, the County lacked both the discretion and the
authority to "reconsider its prior lawful conduct" and to issue a
stop-work order negating such permits.
Board of Trustees v.
Barnett, 533 So,2d 1202, 1207 (Fla. 3d DCA 1988); Metropolitan Dade
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County v. Alford, 456 So.2d 1317, 1318 (Fla. 3d DCA 1984); City of
Jacksonville v. State ex reI. Mann, 27 So.2d 727 (Fla. 1946).
In Board of Trustees of the Internal Improvement Trust Fund v.
Barnett, No. 87-843-CA-18 (Fla. 16th Cir. Ct. 1988) (Lester, J.),
aff'd., 533 So.2d 1202, 1207 (Fla. 3d DCA 1988), this Court held
that under principles of finality, the State did not have the
discretion to reconsider a prior, discretionary decision to grant
a consent of use.
Although Plaintiff has very broad discretion.
, such discretion does not include the
right to make a post hoc reversal (or claim of
illegality) regarding a prior lawful exercise
of discretion. Even if the Department
had made an "error" in reviewing the
application for the consent of use, it was
"under a statutory duty to investigate and
make that determination when an application is
ini tially granted." It cannot thereafter
revoke its approval on the basis of its own
mistake, "otherwise, there would be no
finality to the agency's action. .
533 So.2d at 1207 (emphasis added), quoting in part,
Tri-State
Systems, Inc. v. Dept. of Transportation, 500 ~0.2d 182, 183 (Fla.
1st DCA 1986) ("Although DOT may revoke a permit for the reasons
specified in the statute, it may not do so because DOT's
interprej:ation of that statute has subsequently changed"); see
also, Lamar Advertising Co. v. Dept. of Transportation, 559 So.2d
240, 243 (Fla. 1st DCA 1990).
At the final hearing, the County abandoned the legal
position upon which Don Craig relied in directing issuance of a
stop-work order, i. e., that no building permit could be issued
after February 24, 1988, because of the letter agreement between
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the former Director of the County Planning Department and the
former developer of Captain's Cove.
Instead, the County adopted
the position advanced by Assistant County Attorney Rob Wolfe, that
the major development approval expired February 25, 1990. The
County thus acknowledged at final hearing that the stop-work order
was issued, at best, prematurely and, therefore, unlawfully.
Monroe County officials who were authorized to confirm
the validity of building permits clearly and unequ~vocally
represented to Mirmelli that Building Permit 89-3-680 was "alive
and well" and that Building Permit C-21269 could be easily
reinstated.
As a ~esult of these representations, Seanic spent
$1,000,000 to acquire the Captain's Cove development.
After
Captain's Cove changed its position in reliance on these statements
made by County officials with authority to make such statements,
other County officials offered a new interpretation of the
applicable provisions of the County Code and, as the County now
concedes, improperly issued a cease and desi~t order preventing
Seanic from completing construction under the permits the County
had previously affirmed were valid. The foregoing facts cry out
for the ppplication of the doctrine of equitable estoppel.
"Equi table estoppel may be invoked against a municipali ty
where a property owner in good faith upon some act or omission of
the government has made a substantial change in position or has
incurred expenses such that it would be highly inequitable and
unjust to destroy the right that he has acquired."
Mt. Sinai
Medical Center of Greater Miami, Inc. v. City of Miami Beach, 706
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F.Supp. 1525, 1532 (S.D.Fla. 1989), citinq, Sakolosky v. City of
Coral Gables, 151 So.2d 433 (Fla. 1963), and City of Jacksonville
v. State, 27 So.2d 727 (Fla. 1946).
In City of Naples v. Crans, 292 So.2d 58 (Fla. 2d DCA 1974),
equitable estoppel was relied upon by the Court in issuing a writ
of mandamus directing the City of Naples to issue a building permit
for a restaurant. In so ruling, the Court explained:
The action of the City here, indicating that
the moratorium would have no effect upon the
issuance of a permit, caused [Plaintiff] to
materially change his position. He incurred
extensive financial obligations and expenses.
Accordingly, the trial judge was justified in
finding that the city was equitably estopped
from denying a building permit to [Plaintiff].
292 So.2d at 59.
See also, Alderman v. Stevens, 189 So.2d 168
(Fla. 2d DCA 1966) (equitable estoppel applied in certiorari
proceeding) .
As the Third District observed in City of Key West v.
R.L.J.S., 537 So.2d 641 (Fla. 3d DCA 1989):
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In a sense, the building permit assures the
builder that he may go forward and build in
accordance with the approved plans. When a
new building requirement is thereafter
imposed, it can be readily said that the City
has changed its mind and that the rights
vested in the builder by virtue of the permit
have been unfairly disturbed.
537 So.2d at 646. The affirmative representations and assurances
County officials made to Seanic justify invocation of the doctrine
of equitable estoppel. To allow Monroe County to change its mind
and now attempt to halt Seanic's construction of Captain's Cove
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would be unconscionable.2 At the final hearing the County argued
that the doctrine of estoppel should not apply here because there
was no expenditure of funds on construction activities in reliance
on the representations made by County officials regarding the
validity of the building permits. This position is both factually
and legally incorrect.
First, Seanic did commence construction
activities.
Second, in Sakolosky v. City of Coral Gables, 151
So.2d 433 (Fla. 1963), the Court applied the doctrine of ~quitable
estoppel when an individual had purchased property in reliance upon
representations made by local governmental officials.
This is
precisely what happened here.
Finally, the County argues that even if Trustees v.
Barnett or the doctrine of estoppel would negate the stop-work
order, this Court should not reinstate the building permits for
this project because the original major development approval lapsed
in February, 1990. The Court concludes that the County's analysis
of the expiration of the major development ,order is wrong as a
matter of fact and of law.
Even assuming, arguendo, the County
were correct in its analysis of the expiration date of the major
development order, the County's conduct in this case is
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sufficiently egregious to estop the County from prohibiting Seanic
from completing the development of Captain's Cove.
2Because both the approval of the building permit in April
1989 and the subsequent representations as to its validity were
made by individuals authorized to do so under the Monroe County
Code, the present case is clearly distinguishable from Corona
Properties of Florida v. Monroe County, 485 So.2d 1314 (Fla. 3d DCA
1986).
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As a matter of practice if not of explicit policy, the
County has allowed construction at major development projects to
proceed pursuant to building permits notwithstanding the technical
expiration of an underlying major development order.
This is
evident from a review of the exhibits attached to the "Stipulation
Regarding Final Major Developments."
The County Code does not
provide that a building permit upon which construction is
proceeding may be nullified simply because the major dev~lopment
approval has lapsed. In fact, ~ 9.5-ll3(c) of the Code is contrary
to the County's position. Section 9-5-ll3(c) provides that:
If the work covered by the permit has
commenced,' is in progress, but has not been
completed and in the opinion of the building
official and the director of planning, is
being carried on progressively ., the
permit shall remain in effect until completion
of the job.
See also, ~ 9.5-2(b)(l).
Moreover, the County's position that a major development
approval
for a site may be forfeited
if development
,
is
not
completed within a time certain is dubious, at best. It is clear
from ~ 6-238(c) of the old major development ordinance that a final
major development approval operated as a rezoning of the property.
.
Section 6-238(6) provided in part: "A properly approved and filed
final major development plan shall limit and control the issuance
of all zoning and use clearances .
"
The law in Florida is
such that a rezoning of property may not be subject to a condition
subsequent which would cause reversion to the prior zoning unless
acted upon within a defined time period.
See Attorney General
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.5764\ 0
~i ~ I I 6 I it~ I j ! 2
Opinion 074-142, (May 10, 1974), ("An ordinance which conditions
rezoning of property upon issuance of building permits or the
completion of construction is an invalid form of conditional
zoning.")
Wholly apart from the validity vel non of the County's
at tempt to impose conditions subsequent on what were in effect
rezoning decisions, the Court finds that, on the facts of this
case, the County is estopped from raising the alleged expiration of
the development order to bar Seanic from completing the Captain's
Cove development project. At no time prior to Seanic's purchase of
Captain's Cove did Cpunty officials notify Mirmelli that there was
a deadline within which construction must be completed or that the
building permits, which they affirmed were "alive and well," would
expire only a few months later. For the County Building officials,
who are charged with knowledge of the regulations they administer,
to fail to provide this critical information was, if not an
affirmative misrepresentation, sufficiently egregious under the
circumstances to warrant the application of equitable estoppel.
The County is therefore estopped from preventing Seanic's
completi9n of the Captain's Cove development on the basis of the
alleged expiration of the final major development order. Sakolosky
v. City of Coral Gables, suprai Corona Properties of Florida, Inc.
v. Monroe County, 485 So.2d 1314, 1317 n.2 (Fla. 3d DCA 1986).
The Request for Modifications
After purchasing the Captain's Cove development Seanic
sought County approval for certain modifications to the development
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676l}/O
;~I I G,
: .~,:~ I 5 ) 3
which would reduce the number of units, reduce the total square
footage of the buildings, decrease total ground coverage, increase
open space, decrease building height, change several units from two
bedrooms to three bedrooms, and otherwise enhance the quality of
the development. The County's own Planning Department staff, in
two separate memoranda, found the proposed changes to be beneficial
and recommended Planning Commission approval. Notwithstanding the
County
Planning
Department's
recommendation,
the ,Planning
Commission summarily denied the proposed modifications and this
denial was affirmed by the County Commission.
There was no
evidence to support the rejection of the recommendations of the
Planning Department.
The only competent evidence before the
Planning Commission and before this Court supported Seanic's
proposed modifications.
In this regard, the Planning Commission
and the County Commission departed from the essential requirements
of law.
Moreover, the law is clear that" having received a
recommendation from the Planning Department staff to approve the
proposed modifications, the burden was upon the Planning Commission
to
demonstrate,
t
by competent
substantial
evidence,
that
the
modifications request was not in accordance with the Code. Key
Larqo Associates v. Board of County Commissioners of Monroe County,
Case No. 89-893-CA-l8 (Fla. 16th Cir. Ct. 1990), aff'd., 569 So.2d
517 (Fla. 3d DCA 1990); Irvine v. Duval County Planninq Commission,
495 So.2d 167 (Fla. 1986). The County Attorney was aware of this
- 18 -
676410
, 161
'''' I 5 I i.
I t
."
--
principle of law and so advised the Planning Commission at the
meeting on July 19, 1990:
Mr. Coller: Also, just keep in mind that the
staff report said in their opinion it was a
minor deviation so, therefore, you have to
sustain your burden of basically overturning
the staff report and saying they were wrong.
Notwithstanding this advice from the County Attorney, the Planning
Commission rejected the recommendations of staff without any
evidence to support such rejection.
Nei ther the complqints of
neighbors nor the conclusory and groundless observations by members
of the Planning Commission constitute substantial evidence. Key
Larqo Associates, s~pra.; Flower Bakinq Co. v. City of Melbourne,
537 So.2d 1040 (Fla. 5th DCA 1989). Additionally, as is readily
apparent from a review of the hearing transcript, the "findings" in
Resolution No. 65-1990 were simply conjured up in a transparent
attempt to lend verisimilitude to the Commission's blatant
disregard of the facts.
A petition for writ of certiorari rev~ewing a final order
of the Monroe County Planning Commission and Board of County
Commissioners was granted in similar circumstances in Key Largo
Associat~s v. Board of County Commissioners of Monroe County,
supra. Relying on Irvine v. Duval County Planning Commission, 495
So.2d 167 (Fla. 1986), Judge Paine stated:
If the staff of the zoning authority has
studied the proposed conditional use and
issues a report that recommends approval of
the application, the applicant has established
a prima facie case for granting the
condi tional use. The personal opinions of
members of the zoning authority do not
constitute competent substantial evidence.
- 19 -
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576410
I.H I I I (' Ii.'. t \ 5 1 5
1\:.1 0
In that case the Planning Commission and County Commission had
denied an application for a major conditional use. On certiorari
review, Judge Paine ordered the Monroe County Commission to approve
the application for a major conditional use.
Judge Paine's
decision was affirmed by the Third District Court of Appeal. See,
Key Largo Associates, aff'd. sub nom., 569 So.2d 517. The County's
denial of Seanic's request for modifications of the Captain's Cove
development departed from the essential requirements of law for the
same reasons set forth in the Irvine and Key Largo Associates
decisions.
For the foregQing reasons, this Court grants Seanic's Amended
Petition for Writ of Mandamus and Certiorari and issues this Writ
of Certiorari:
1. Quashing the Stop-Work Order dated January 29, 1990;
2. Quashing Resolution 65-1990 of the Monroe County Planning
Commission and Resolution 626-1990 of BOCC affirming the decision
of the Planning Commission.
3. Directing the Monroe County Board of County Commissioners
to approve Seanic's application for modifications to the Captain's
Cove ma~or development approval. The Monroe County Board of County
Commissioners is directed to approve the applications subject to
the conditions set forth in the Planning Department's recommenda-
tions within thirty days from the date of this Order.
4. This Court retains jurisdiction of this proceeding to
enforce the provisions of this Final Order and to issue any writs
- 20 -
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5754\0
l't ',' \ \ 5
i<[ '~
....,1 ,',,,,
51r
. .
that may be necessary to compel compliance and/or to effectuate the
provisions of this Order.
DONE AND ORDERED in Chambers in Key West,
Florida, this M day of ~g~, 1991.
Monroe County,
Copies furnished to:.
Douglas M. Halsey
Fred Tittle
Suzanne Hutton
, .J
'. ClIo
, ...
~ . ,.::~-t~.
. .~~,: ~'. ....." ~.;: C. :'~:ft
7430C.012
- 21 -
I ~
MIMQ~l~DUK
h. ~ ..-...-..... ~
TO. 'tl/~, Ptannlnq Comrd,..lon
'-' FROM. Ty symro.>C!, f)evelopmtnt ~.vl." COOrdintltor-r7
SU~ECTJ Capt~ln'~ Cov. Ch.nge. to A Ma,or Dev.lop~.~t
D~Tl. D~eember 20, li89
--..
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. '.
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W"1}.!!LPAT! .
!-l,~~f;tt~
tl0t.OQISf,
II .. ..... ........
l~~OVS ~LEVANT-'O^RO
l1anua ry C, 1990
LORENZi) ~GtitKO
~O~~k'r SMITH
"~'L.:tON lYe' X
...... ~ .......... ~
, 1Q~ .
-...
"-'
~~~O~~I ___Or41n&n~e ~Re.olut1Qn
CI!}ZENS ~MM1T~!! S~A~EMt~T~ !---No ___~.~(&ttaeh)
C>
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,1. BAC~~OtJli~J.NrORMATI-AOl!
1) Land U~. Ciltr1ee:,
- . roiL
RU-~ (SR under th. ~~~rent Co~.)
2)
li2~ 01 Sit.ol
.. .. -. .....
5.76 aerts
3) ~wUn~Y...e~~t~~.?Tl-!-
Se~rlf!od I D1.t~rbe~
4) ~9~]unltX.Ch~~~~t~r ~f ~~dlat8 V~~~nl~~
"-'"
,
"-"
'rh8 8\.n.t~)\'ln~in9 6:-*a it <1evtloped mostly with. r.sidential char-
octer oompol$4 o! low 4$n,1ty 11n91e t~11y hou... 'nd m~er.te
. 4on.1 t)' tcwnhou..e. Aero.. th. ba,1n there are .ome commercial
\lIe..
'1'h~ r~vlew performed by .ta!f r4' 'eta to plan. eub)t\1tte4 by tht
app1LcAnt on Nove~er l1f 1989, whloh lubatitute4 original plan.
6\1~m1t.te~ en NQvt~er 7, 1 PQ9. ttowever, on Peopber It, the ap.
p'i~ant 8ubm1tte~ a rev1s.d .et of plan..
!J) iR~~CT;PESCRI~~I~(per8uant NcVtrr~cr 17, 199' ,1an)
~h(:l present a.t'~~ ~ catton Qon.i stl of modi fieAt.lon' to . Majo:-
oev61oplunt.the ~.vt\lo.~rfI.)'1t:. waf appro....e4 tor eonet~ct.1on of.
~ultitamily townhouse conuletin; of to.ty-alx (46) d~.111n9
un~ t., of which fOTt1 U 0) ~'etc to: two';be~rooI1i, three-.tory
sinile tarn11y, and, , unite were fOJ: three""be~room, fo~Z' .torJ
lingle tam!ly. The tOW'nh()~.'eil t:ere to ~e built 1n two .9paratl
bl~~,14inqs. Apptove4 plans iflelu~e~ aeot&&ol:)' .tructutes ,uoh '1
C' recreational .paoe cond..tin9 of & picrate ar.a, club hou.e,
t~o barbecuo caban~B, a .wtmm~ni ~ool, two tennil court81 A .ew4
_ge tteatmtnt plAnt, ~n4 a m~rlna with 42 ellp..
On tho oX'l~ll'lal plana, the tot81 butl~S.nq ar'A w~.
"t- ft.., tot~l bu114ing coveraqe wa. 4~,300 .q. ft., the
t .~r.dl/~s~n spaee Vb' 20~,605 .~.ft., 'n~ th. nu~er of
.pa~~r. pr~vid6d wtre 83.
\
The p"opo,,'~ modif1cation. eona1.t.a Qf the (o11ow1n~ iteSQ..
1) P.'~I,lct ion in th. n\l~&r of "Wt 111n9: unt t. tr{)m fQtty...1x (46)
to fort~.!iv. (.S) an~, plae~~.nt in four (4) ,eparate bui1din9A
r.tner th~n two (2) buildings.
128,000
reere4.
parking'
~~ ~,...
, ,
".'.,..........;. . : . ,
~
, . 2) . R.d\fcti"oii-'o-t i"titJ" I\~ct of two~beaiOom;-thre.-.t<>'ty \\n1 t.8:;'
from fort~ (401 to tw$ttY-Qne (21) un~t..
)) !n,=rease of th. n'l>>t'lbtX' of thtt...bedrooJl, tour ,tory unIte
f~orn 81x (6) to twenty-four (24) unit,.
4) Vecreaa. of t.hA t<->t.t' build~.ng area froJU 128,080 aq.tt. to
100,467 .q.lt..
5) tectea.e of the total 9);'('lJ."~ O()vera~e of: th~ ~\111~tn9$ from
4~,300 eq.!t. to 36,756 Iq.ft.
') !ncrea.e of the tola 1. recteat l~n/open &plce ar~a from
20(,605,6 Ii, ft. to 21.,149 .~.tt.
-"
2
7) Xncrea8e of the total ~umb.r of par~ini apac.. ftom 83 to 8~
8 PO<:6&.
8) Increo&t\ of th~ tf\a.x1t'.um bU11~!ng hft19ht. fro~ thitty..e1CJht
'- teet ~nd two ineh.J ( 38'2-) to thi:ty-nln6 feet .n~ two inoh..
()9'21t) .
III) ~~CO~~NnA!~
Al t}l,~u~h the appl i eant lubm1 tt~O revise! p1an. to late for: the
plan,dng 't.~ff to review, the Itaff r.oommendl the public he.r-
Song b~ l1e14 An4 the p@lio ~e 9s,vtn .n opportunity to s~o.k.
Howevtr, the sta!( f~rther r.eo~onds tht =eetlng '0 be ,contin-
ued ut~tl1 t.he next:. meeting 11\ J<e)' Colon~ Be'-ch.
1.i.sted ~elow 1. the etaft '. ;-eview of the plan, .u.bm1tt.t4 on
November '7, 198~. At the meettnq c~ J~nu,~y 4, 1'90, the .tatt
~hall 8~~~it a .taft r~pert on t~. ~.t tteent plana r'dl1vt4 on
Oecetfl"':ll: 19" 19S~. ·
.
The enVlrOl\1M,r-t.a.l r.vl~'lJ pertQrme4 ~y .taft in4S,cate. that the
p~vpoeed o'hAn~~~ to the major 4,v.l~~ment .holJ14 b. con.i~'fe4
a. ~eln~ a p~olt1ve change ~eeause of In lnc~e~'. tn oP6n ,>>aee
to be .chi.ve~ by the mo6ificat16nG, However I 'he ap-plleat1on
d6es not CQn~.~1n an aro.nde4 l'n~leape plan which wou14 be r...
quiredun~.t' the old Code. 1he lAndscape ~l.n .hou14 Lftc1u~. a
1U1n1mwu of '0' of tht x-Iq\Jlrtt! l\\U:lbeZ' of flante to be native
pl~nt.. In ad~ltion, all .~e1f1eat1on. of the l&nd.o.~e plan in
e:feet th~n, .~ould be ~~h.re4 to. Sinee an en4an98re4 spec1t,
wil~ cotton tr.., W~. re~ove~ at the t1~. ot ~.nd cltar1n;, an4
not trt.nsplcmted aa per p~l'~it cQn~ltion, A' suitable nwnbet of
listed $peoi~~ ahoul~ bt inelu~.4 In th6 lan~.clpe plan,
\......-
<Q
~he ptoP090~ mo41f1e~t1ons to the oriiinal plan ahoul~ aoh1ev. a
botter tpro1$ct in tt~ms of u~e oE ,paee, t.~uelft9 a eignlflclnt
amount of building A-r~a Ind qround eovetl<j..-.... 'lb. ~rl.r.t'tion ot
the propo'e~ buildln~' an4 th~lr ~ge1~n .hould al.o enhanea 'he
view ftom the ~.)at'tJr..nt8, and the:. fore make th~ mort 1fI,,:ket..
ob\e.
^1 tho~9h, rTlost of the propoae~ c:har\~t' Dhoul~ not have an .4-
vert. 1~rh~t. in t~e ovt:all ~.n81ty, tr.!f1o c1roulttlon or the
natural ~lw1tonrn6nt, th~ !ner~aa. of the total nU1Q1)er of thrtl4-
bedroom apArtment' from .1x (6) to twonty..tour (2~) could ~e
consiOer.~ to be a ~ajor ehan~t. ~hi. changel besi~ee the pos'~.
ble gr.at~r mar9in of prof1tl it ceuld allo 1~ply a h19he~ den.1-
t.y l.n terrr.<:; of nu~et of oeCl~pantt by Ul'\! t, and, con&oq\)ently
more toli~ WAstt an~ .ew~se ~16pO,al,
3
'-'"
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\.....
I
\.....
4~~' ,
,
,,-
Ov.roll, th. Qh.n~~1 beIng propO.t4 by the applicant vil1 reaul'
in a bettE:r de'lelnpment.. Stafl I'oc:otIWendat!on 1. tor ,l\JPROVJ.L
~lth tho tol1ow1n9 con4itlon..
1) The applicant Iha 11 lubnd.t a lan4.c:ape plan prior to lfUJUlu')e.
of a b~11dlni permit. ~he land,cape pllrt shall in~lu4. a l1ttin9
of requ1re4 ~u~er ~f plants of whtcb a mlnlm~ of '0' ehall be
nat~v. to ~h. rlorlda K~~$.
2) The app11<:4nt Iha" c~tcH.n.t. with the County ~iolo919t .
Z'4t~laeern~llt E>lafl for the Z't\lI\oVtd w114 cotton if...
3) 'rhe ar"pllca"t Ihatt e~Ot~1nAte a on-sit. r.cfcl!ng plan wit.h
t'lr.a Count)' Recyc1in9 coordinAtor. ;
I Dect:lllber 2', 1~e9 I 02.10:57 PM
-
,
. . a.;....M ,........,. .... ....
...... ,.~.~. ....., ...~~. .,....'.~' ",...t...~~...,..'Iu
.
, TO:
.
~~"'OR~Nn"M
Tho plAnning commission
raOMl TY symrosk\, Development Review Coordinator
SUBJECT 1 staff review of captain's cove revised plans
submitted on December 19, 1989.
O~TE: Oecem~er 28, 1989
~
MEETING O~TE: January 4, 1990
PLANNER!
!IOLOGIST:
LORL~ ZO AGHEMO
ROBE.R'I' SMITH
PRSVIOUS RELEV~ ~o~ ~CTI0N! Yes X
------Ll --'" -
J No
-
Date & ~ct1on:
On May 28, 1982 ~ final M~jor Development order (HO 82-1)
for construction of forty-six (46) townhouses was issued ~y
Monroe county;
on July 30, 1986, the Monroe County Zoning aoard Approved
Resolution No. MO 33-86 extending tho ori91nal development
order approved an amendment for a one-phase, three-yeat com.
pletion time for the project, to begin forty.five days after
Zoning Soard appro~al.
~CTION BY: ordinance X Resolu~1on
----...- - -------
~ITIZENS~OMMITTEE ST^~~~~ ~No ___Yes(attAch)
-~
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~
. ...."Jo;o,..____
.~...,.....-. .....:.. .'- ...
. .... ..' \'. : " ~ ,.,.
1) B~CKGROUND INFOR~~TION
This report refers to the set of rey1sed plans submitted by the
applicant on c~cember 19, 1989. Staff report dat~d Cec~mber 20,
1989, referred to the original &Pplication to be heard and deter-
mine~ ~y the Planning Commission actin9 as the previous Zoning
50ard on January 4, 1989. Since the rev15ed plans receive4 on
Occember 19, did not meet the establishe6 date line for submit-
tals to the Pl~nnln9 Cvmmi5~ion, .taff her~by recommen~ the
fo~rd to review the r€visod plans, hear the public, And to con-
tinue the determination until the next meeting-
-'
'11) ~T)'Fr REVI EW
The revised plans submitte~ on December 19, 1989 contains somO
modifica.tions in comparison to the plans submitted on November
11, 1989 which review was included in the staff report dated
December 20, 1989. The propo~o~ changes Are tho following:
1) Incr~ase of building area from 100,467 Eq.ft. to 102,111
6Q . ft.
2) Increase of the total ground coverage arQ& from 36,'56 .q.ft.
to 38,200 &q.ft. .
3) New lay-out of the recreational/open space area. The new lay-
out includes the following changes:
3.1) Reduction of the ~otal recreational/open spac~ area ftom
214,149 sq.ft. to 212,785.6 sq.ft.
3.2) Relocation of tonnis courts to be ~et-back from property
line a1009 Gulf view Orive at 181 fee~ ( originally at 4S
feet ).
3.3) Relocation of clubhouse to be setb&ck from property line
,/ alonq Gulf view Drive at 175 feet ( originally at 110
feet ).
3.4) Redesign of swimming pool and re~uct1on of size.
3.5) Addition of a spa pool.
3.6) Elrmination of one barbecue cabana.
,\
4) Slight modif ic:ation in the orientation of 1>ui141n9s 111." And
1l~1' to max1mir.e, vi~)ol to. the ~a$1n.
.. .... I
~} Decrease of buildin~s height from t~irtYMnine feet ~nd two
inches (3912") to thirty-seven and six incheS (37'611).
III) gCOMMEND>.TION
The mo~ifications listed in this report are oons16ered to
be mInor and will achieve 4 better development in terms of
orientation of buildlnqs, reduction of the builQings
hei9ht, configuration of recrQatlonal area, and, the des1gn
of the Quildin9s. staff r~commendAtion is for ~PPROV~L of
the changes proposed in the plans s~ltt~d in December 19,
1989 with the following cond~t1ons attacocd:
'"-0/
2
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'1) The applicant .hall submit a landscape plan prlor to the
issuance of a b~11ding permit. The landscape plan shall
include a list1nq cf required number of plants of which a
minimum of 70\ shall be native to the Florida Keys.
2) The applicant shall coordinate with the County Bioloqist
a replacement plan for the removed wild cotton tree.
3) The applicant shall coordinate an on-site rec~clin9 plan
with the County Recyclinq Coordinator.
I January J, 1990 / 09:19:09 AM
"
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)