IN THE SUPREME COURT OF FLORIDA
The City of Key West, Florida,
Petitioner,
v.
Kathy Rollison,
Respondent.
Supreme Court
Case No. SC04-1506
PETITIONER'S JURISDICTIONAL BRIEF (Amended)
On Review from the District Court of Appeal,
Third District, State of Florida.
Case No. 3D02-2644
THE CITY OF KEY WEST
Robert Tischenkel
City Attorney
Florida Bar No. 0291668
605B Simonton Street
Key West, FL 33040
Phone: (305) 292-8110
Fax: (305) 292-8227
Attorney for Petitioner
TABLE OF CONTENTS
Table of Contents ......................................................................................i
Table of Authorities ...................................................................................ii
Jurisdictional Statement............................................................................. 1
Statement of the Case and Facts................................................................ 1
Summary of the Argument......................................................................... 4
Argument.................................................................................................. 5
I. The decision below conflicts with Supreme Court and district court of
appeal case law holding that a use of property must strictly conform to a
local government=s Comprehensive Plan ........................................... 5
II. The decision below conflicts with an axiomatic rule of land use law that a
use must be legal before a change of zoning law occurs in order to
become a legal non-conforming use.................................................. 7
Conclusion .............................................................................................. 8
Certificate of Service................................................................................. 9
Certificate of Compliance.......................................................................... 9
Appendix
-i-
TABLE OF AUTHORITIES
CASES PAGE
Cotney v. Board of County Commissioners of Brevard County,
140 So.2d 877 (Fla. 2
nd
DCA 1962).............................................................7
Florida Wildlife Federation v. Collier County,
819 So.2d 200 (Fla. 1
st
DCA 2002) ............................................................6
Shidel v. Pinecrest Lakes, Inc.,
795 So.2d 191 (Fla 4
th
DCA 2001) ............................................................5
Board of County Commissioners of Brevard County v. Snyder,
627 So.2d 469 (Fla. 1993)..........................................................................5
STATUTES PAGE
Florida Statutes ch. 163, Part II (2003).................................................................6
Florida Statutes '380.05 (2003) ..........................................................................2
Florida Statutes '380.0552 (2003) .......................................................................2
MISCELLANEOUS
Abbe v. Department of Community Affairs,
Final Order No. DCA00-GM297 (March 13, 2001) ..................................3,6
Fla. Const. Art. V, sec. 3(b)(3)............................................................................1
Fla. R.App. P. 9.030(a)(2)(A)(iv).........................................................................1
-ii-
JURISDICTIONAL STATEMENT
The Florida Supreme Court has discretionary jurisdiction to review a
decision of a district court of appeal that expressly and directly conflicts with a
decision of the Supreme Court or another district court of appeal on the same point
of law. Art. V, sec. 3(b)(3), Fla. Const.; Fla. R. App. P. 9.030(a)(2)(A)(iv).
STATEMENT OF THE CASE AND FACTS
In 1997, Kathy Rollison (ARollison@) purchased a unit in the Shipyards
Condominium within the Truman Annex Development of Key West. Rollison
intended to use the unit as a vacation home and rent it on a short-term basis during
her absences from Key West.
The Truman Annex Development opened in 1991. Between then and the end
of 1997, a controversy arose in Key West whether its residential units could be
rented on a short-term or Atransient@ basis (fewer than 30 days). The City of Key
West (the ACity@) issued no residential transient rental licenses to Truman Annex
-1-
property owners during this time period, although under the City=s Rate of Growth
Ordinance formula more than 500 such licenses were issued to residential property
owners in other areas of the city.
The local real estate industry developed and promoted an interpretation of the
City=s zoning code at the time to allow short-term rentals of residential properties in
the Truman Annex. So long as the unit was used for this purpose for less than half
the year -- the so-called A50% Rule@ -- the rentals would not be subject to City
zoning, licensing or Comprehensive Plan limits. To some extent the City acceded
to this interpretation by failing to enforce against it.
1
The change of land use
brought about by the A50% Rule@ was not rendered to the Florida Department of
Community Affairs (the ADepartment@) for review under Area of Critical State
Concern procedures as required by law.
2
In late 1997, the Key West City Commission embarked on a series of
workshops, in response to complaints by residents throughout the City, to develop
-2-
1
The Third District=s decision ascribes the genesis of the A50% Rule@ interpretation
to City officials, contrary to the evidence at trial.
2
Key West is located in an Area of Critical State Concern and therefore must
render its land development regulations to the Department for approval. Fla. Stat.
secs. 380.05, 380.0552 (2003).
a comprehensive transient rental ordinance. The complaints were twofold: that the
use of residences in a residential zoning district as quasi-hotel rooms caused
neighborhood disturbances; and that the removal of residential units from a long-
term housing stock delimited by a Rate of Growth Ordinance had a detrimental
effect on affordable housing prices.
The City Commission enacted Ordinance No. 98-16 which declared a ban on
unlicensed transient rental use and the end of the A50% Rule,@ except in certain
areas of the City, including the Truman Annex. The Department rejected this
ordinance as contrary to the City=s Comprehensive Plan because it allowed transient
rental use in excess of Comprehensive Plan limits and in residential zones where
transient rental use was not permitted.
As a result, the City enacted Ordinance No. 98-31 which banned unlicensed
transient rental units in all areas of the City. This ordinance became the subject of
an administrative trial in 2000. In upholding the ordinance, the Administrative Law
Judge examined the A50% Rule@ and found that it had been unlawful from its
inception.
3
,
4
-3-
3
Abbe v. Department of Community Affairs, Final Order No. DCA00-GM297
(March 13, 2001).
4
Ordinance No. 98-31 was replaced verbatim by Ordinance No. 02-06 after the
former was found to be enacted with a notice defect.
In the midst of this controversy Rollison purchased her unit from a seller
(and broker) who represented to her that she could rent on a transient basis with a
Anon-transient@ occupational license. After the City enacted its new ordinance, the
City advised Rollison and all others in the Truman Annex that it could not rely on
the A50% Rule.@ Rollison filed a declaratory judgment action in circuit court
seeking a declaration that her unit was a lawful non-conforming use. The circuit
court ruled in favor of the City and enjoined Rollison from further engaging in
short-term rentals.
The Third District Court of Appeal reversed, holding that the Rollison unit
was grandfathered. The City petitioned for rehearing and the Department joined the
City at this stage by filing an amicus brief. The petition for rehearing was denied on
June 30, 2004.
SUMMARY OF THE ARGUMENT
The decision of the Third District Court of Appeal conflicts with Supreme
Court and district court case law that requires a local government to authorize the
use of land in strict conformance with that local government=s Comprehensive Plan.
The decision also conflicts with a fundamental and well-established rule of the law
of land use non-conformities: an illegal use of land cannot evolve into a legal non-
conforming use.
-4-
ARGUMENT
I. The decision below conflicts with Supreme Court and district
court of appeal case law holding that a use of property must strictly conform
to a local government=s Comprehensive Plan.
The Third District decision below is in direct conflict with Shidel v. Pinecrest
Lakes, Inc., 795 So.2d 191 (Fla 4
th
DCA 2001) which holds that: (1) all
development (or use of land) must be consistent with a local government=s
Comprehensive Plan; (2) the development is subject to strict scrutiny under the
Comprehensive Plan; and (3) a local government has no discretion in its
interpretation of its Comprehensive Plan.
5
The Fourth District in Shidel in part relied upon this Court=s observations in
the Snyder case, the leading land use case of recent vintage. Shidel v. Pinecrest
Lakes, Inc., 795 So.2d at 200-02 (citing Board of County Commissioners of
Brevard County v. Snyder, 627 So.2d 469 (Fla. 1993)). Because Snyder
determined the need for strict compliance with a Comprehensive Plan, the decision
below also conflicts with Snyder. Id. at 475.
-5-
5
The Fourth District in adamant support of these holdings agreed with the trial
court that the proper remedy was demolition of multi-million dollar apartment
buildings that were erected in violation of the Comprehensive Plan.
From another angle, the decision below directly conflicts with Florida
Wildlife Federation v. Collier County, 819 So.2d 200 (Fla. 1
st
DCA 2002) in which
the First District held that the courts must be highly deferential to the Department=s
interpretation of its operating statutes.
Florida Statutes chapter 163, Part II governs the Comprehensive Plan
process. The Department rejected Key West Ordinance No. 98-16 as violative of
the City=s Comprehensive Plan because it authorized certain unlicensed transient
rentals in the Truman Annex. According to Wildlife Federation, the Department=s
construction of the City=s Comprehensive Plan was entitled to deference by the
Third District. Subsequently, two triers of fact B an administrative law judge
assigned by the Division of Administrative Hearings in Abbe and the trial judge in
the instant case B found the A50% Rule@ to be illegal. The Third District=s decision
misplaced its deference: rather than deferring to the Department and two triers of
fact who each examined the issue in the context of the Comprehensive Plan, the
Third District instead deferred to a repudiated administrative interpretation by City
officials that was random, unsystematic and unauthorized.
The Third District circumvented the Comprehensive Plan issue. This
establishes an apparent conflict for jurisdictional purposes. Even more express a
conflict is examined below in the City=s second argument.
-6-
II. The decision below conflicts with an axiomatic rule of land use law that
a use must be legal before a change of zoning law occurs in order to
become a legal non-conforming use.
The decision below turns the law of non-conforming use upside down by
allowing a grandfathering of an unlawful use. Between the initial development of the
Truman Annex and the enactment of the City=s transient rental law, the zoning and
occupational laws did not support the short-term rental of the Rollison unit. Nor
did the City=s Comprehensive Plan policies. Nor did the Development Agreement
that underlay the development of the Truman Annex, which identified the Shipyards
Condominiums as an affordable residential complex with no transient rental use.
Thus the Third District opinion is in direct conflict with Cotney v. Board of
County Commissioners of Brevard County, 140 So.2d 877(2
nd
DCA 1962) in
which the Second District held that where a building was erected without permits, in
violation of zoning requirements, the property owner did not accrue a Avested@ (or
legally non-conforming) right after a change in zoning regulations.
-7-
CONCLUSION
The Third District=s decision has placed the City in an absurd position. The
City must respond to the decision by enacting new legislation to implement the
A50% Rule@ for Rollison and similarly situated property owners. The City then
would have to render this legislation to the Department for approval. Assuming the
Department is true to itself and its precedents, it would reject the legislation. This
untenable situation results from an appellate decision that conflicts with a statewide
Comprehensive Plan process set forth in statute and accepted by this Court.
Therefore, in this matter, a grant of discretionary jurisdiction is warranted and
necessary.
Respectfully submitted,
_________________________
THE CITY OF KEY WEST
Robert Tischenkel
City Attorney
Florida Bar No. 0291668
-8-
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the above
PETITIONER=S JURISDICTIONAL BRIEF (Amended) has been furnished via U.
S. Mail to Joseph P. Thacker, Cooper & Walinski, 900 Adams Street, Toledo, OH
43624, Jerry Coleman, P.L. 201 Front Street, Suite 203, Key West, FL 33040 and
Timothy Dennis, Florida Department of Community Affairs, 2555 Shumard Oak
Blvd., Tallahassee FL 32399 on this _____ day of August, 2004.
THE CITY OF KEY WEST
_____________________
Robert Tischenkel
CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that this brief complies with Rule 9.210(a)(2). It is
typed in Times New Roman 14-point type and is double-spaced.
_______________________
__
Robert Tischenkel
-9-
