STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF COMMUNITY AFFAIRS, )
)
Petitioner, )
)
vs. ) CASE NO. 83-3704
)
CHARLES G. McDONALD, )
CHARLES G. ALLEN, and )
MONROE COUNTY BOARD OF )
COUNTY COMMISSIONERS, )
)
Respondents. )
) DEPARTMENT OF COMMUNITY AFFAIRS, )
)
Petitioner, )
)
vs. ) CASE NO. 84-0360
) CATHERINE DONIA and MONROE COUNTY ) BOARD OF COUNTY COMMISSIONERS, )
)
Respondents. )
) DEPARTMENT OF COMMUNITY AFFAIRS, )
Petitioner, )
)
vs. ) CASE NO. 84-0361
) THOMAS BOBOWSKI and MONROE COUNTY ) BOARD OF COUNTY COMMISSIONERS, )
)
Respondents. )
) DEPARTMENT OF COMMUNITY AFFAIRS, )
)
Petitioner, )
)
vs. ) CASE NO. 84-0362
) JOHN STAGE and MONROE COUNTY ) BOARD OF COUNTY COMMISSIONERS, )
)
Respondents. )
)
RECOMMENDED ORDER
Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings on September 27 and
28, 1984, in Key West, Florida. The parties completed their post-hearing submissions on December 26, 1984.
Sarah Nall, Attorney at Law, and C. Laurence Keesey, Esquire, appeared on behalf of Petitioner Department of Community Affairs. Sheri Smallwood, Attorney at Law, appeared on behalf of Respondent Monroe County Board of County Commissioners; and James T. Hendrick, Esquire, appeared on behalf of Respondents Charles G. McDonald, Charles G. Allen, and John Stage. Respondents Catherine Donia and Thomas Bobowski did not appear and were not represented.
Petitioner appealed to the Florida Land and Water Adjudicatory Commission four applications for special use approval granted by the Respondent Monroe County Board of County Commissioners authorizing the other-named Respondents to construct filled access driveways in the shoreline protection zone of Monroe County. The issue for determination in each case is whether that petition for special use approval should be approved, approved with conditions, or denied.
Because the factual and legal issues in each case are similar, a Joint Motion to Consolidate was granted.
During the final hearing Petitioner entered a voluntary dismissal of paragraphs numbered nine and ten, dealing with major development and subdivision regulations, of its Petitions in the cases of Donia, Bobowski and McDonald/Allen.
Joint Exhibits numbered 1-5 were admitted in evidence.
Petitioner presented the testimony of John Meyer, Mark P. McMahon, and Dr.
Arthur H. Weiner. Additionally, Petitioner's Exhibits numbered 1-3 were admitted in evidence.
Respondent Monroe County presented no testimony but requested instead that matters in evidence from the record below be given consideration as if the same were presented during the final hearing herein.
Respondents McDonald/Allen and Stage presented the testimony of Stanley Becker, Sandra K. Barrett, and by way of deposition Lynn H. Kephart. Respondent Charles G. Allen testified on his own behalf. Additionally, Respondent Stage's Exhibits numbered 1-6, 8, and 9 were admitted in evidence; and Respondents McDonald/Allen's Exhibits numbered 1-7, 9 and 10 were admitted in evidence.
Proposed recommended orders containing findings of fact have been submitted only by Petitioner and by Respondents McDonald/Allen and Stage and were considered in the preparation of this Recommended Order. When the proposed findings of fact were consistent with the weight of the credible evidence introduced at final hearing, they were adopted and are reflected in this Recommended Order. To the extent that the findings were not consistent with the weight of the credible evidence, they have been either rejected or, when possible, modified to conform to the evidence. Additionally, proposed findings which were subordinate, cumulative, immaterial or unnecessary have not been adopted.
FINDINGS OF FACT
On January 13, 1983, Respondents Donia and Bobowski filed with Monroe County petitions for special use approval to deposit fill and construct an access driveway within the shoreline protection zone of Monroe County as designated by Chapter 4, Monroe County Code. The property on which the roads
are proposed to be constructed consists of two lots, each 1.09 acres in size. The lots are contiguous to each other and are located on Sugarloaf Key, Monroe County, Florida. Respondents Bobowski and Donia represented in their petitions for special use approval that they owned or were in the process of purchasing the subject property. Respondent Bobowski submitted with his application a contract for sale to him of both 1.09-acre lots which specified the sale was to be closed by March 25, 1982. Ms. Donia included with her petition a letter stating that Mr. Bobowski was in the process of deeding a portion of his land to her.
On January 26, 1983, Respondent Bobowski filed a Complaint for Specific Performance against James Knox Julian, Jr., owner of record of the property for which Bobowski and Donia submitted applications for special use approval. As of September 10, 1984, Julian had filed a motion to dismiss that Complaint on grounds that there had been no pleadings filed or action taken by Bobowski for a period of more than one year.
There is no evidence that James Julian authorized Respondents Donia or Bobowski to submit the applications for special use approval on his behalf.
Respondents Donia and Bobowski have been sent copies of pleadings in this case. The Monroe County records containing Donia's application for special use approval indicate that Catherine Donia is now Catherine Bobowski. Ms. Bobowski participated in a telephonic conference call between the parties and the undersigned in which she was specifically advised of the scheduled final hearing in this case and of the necessity for her and Thomas Bobowski to appear to present their evidence in support of their applications. Neither she nor Mr. Bobowski, nor any representative of theirs, appeared at the final hearing.
On January 20, 1983, Respondents McDonald and Allen filed an application for special use approval to deposit fill and construct an access driveway within the shoreline protection zone of Monroe County as designated by Chapter 4, Monroe County Code. The McDonald/Allen property is a 2.9 acre parcel on Sugarloaf Key in Monroe County Florida. The proposed driveway runs from State Road 939A through a tidally inundated black mangrove community to a dune ridge and tropical hardwood hammock fronting the Atlantic Ocean. The driveway project described in the original application involved the deposit of 433 cubic yards of limerock fill to construct an access driveway 325 feet long, 12 feet wide, and 4 feet deep. Six culverts twelve inches in diameter were to be placed at 50-foot intervals along the access driveway. When the State of Florida Department of Environmental Regulation indicated disapproval of a fill permit as the project was originally proposed, the project was amended to replace the twelve-inch diameter culverts with four box culverts three feet by eight feet. The application for special use approval does not include a request to fill a turnaround area or a pad for a single-family residence, does not include a final set of building plans or a final selection of a house site, and does not seek approval for the placement of a septic tank system. Rather, the application for special use approval seeks permission for the driveway portion of the construction project only.
The McDonald/Allen property is located on the southern shoreline of Sugarloaf Key in an area referred to as Sugarloaf Beach. The foreshore or foredune fronting the Atlantic Ocean consists of a beach and berm rising to a dune crest approximately 30 feet from the ocean. The sandy beach is approximately 6 to 15 feet in width. The dune top extends landward from the dune crest for approximately 100 to 125 feet before descending to the back dune and the wet land and transitional areas. The transitional area continues
landward approximately 60 feet before descending into the wetlands. The wetlands run landward approximately 300 feet to the property boundary on State Road 939A. The foreshore or foredune of the McDonald/Allen property is covered by sea oats, sea purslane and cord grass assemblage. The entire dune top from the dune crest to the back dune is covered by a mature, climax tropical hardwood association. Species present include: torchwood, white stopper, inkwood, blolly, gumbo-limbo, blackbead, Spanish stopper, Jamaican dogwood, seven-year apple, sapodilla, coconut palm, short-leaf fig, gray nicker, wild lantana, buttonwood, snowberry, prickly pear cactus, bay cedar, and spider lily. The vegetation displays a stratified structure with a high canopy composed of very large, tall trees an indication of a very mature system. The transitional wetland community found on the back dune consists of saltwort, sea daisy, railroad vine, and seagrape. The wetlands-are characterized as submergent wetlands containing black mangroves. The black mangrove community is inundated year round with water depths measured between 6 and 12 inches over the majority of the property. The black mangroves reach heights of 15 feet, with large trees located over the southern extent of the wetlands (adjacent to the upland ridge). Attaining heights of 25 to 30 feet, these larger mangroves form a hammock with an open understory in a dense canopy. The mangrove area is a productive, healthy system. The wetlands of the McDonald/Allen property are a part of a larger area of healthy wetlands approximately 10 acres in extent, bounded by State Road 939A on the north, the dune ridge to the south, an unculverted fill road to the west, and a culverted fill road to the east. Wildlife present on the property include marsh rabbits, raccoons, black crown night herons, little blue herons, Louisiana herons, white crown pigeons, blue crabs, fiddler crabs, mosquito fish, killy-fish, sailfin mollies, and sheepshead minnows.
On February 1, 1983, Respondent Stage filed an application for special use approval to deposit fill and construct an access driveway in the shoreline protection zone of Monroe County as designated by Chapter 4, Monroe County Code. The Stage property is a 0.64-acre lot on Big Pine Key in Monroe County, Florida. The proposed driveway runs from Long Beach Boulevard through a wet land area to a dune ridge and hammock fronting the Atlantic Ocean. The driveway project described in the original application called for the deposit of limerock fill to construct an access driveway 100 feet long, 12 feet wide, and 2-3 feet deep along the east side of the lot. Two culverts 12 inches in diameter were to be placed 50 feet apart. When the State of Florida Department of Environmental Regulation indicated disapproval of a fill permit as the project was originally proposed, the project was amended to locate the access driveway through the center of the lot and to replace the 12-inch diameter culverts with two 36-inch diameter culverts to be placed at the base of the access drive. The proposed access road is to lead to a proposed turnaround and a proposed single-family residence on the back dune or dune ridge of the Stage property. The application for special use approval does not include a request to fill a turnaround area or a pad for a single-family residence, does not include a final set of building plans or a final selection of a house site, and does not seek approval for the placement of a septic tank system. Rather, the application for special use approval seeks permission for the driveway portion of the construction project only.
The Stage property is located on the southern shore of Long Beach on Big Pine Key. The natural systems of the Stage property are similar in many respects to those of the McDonald/Allen property. The foreshore or foredune fronting the Atlantic Ocean has a shoreline consisting of a dense mangrove fringe. The foredune rises to a dune crest approximately 28 feet landward from the shoreline. The dune top extends landward from the dune crest approximately
100 feet before descending to the back dune and wetland area. The back dune
runs landward 40 feet before descending into the wetlands. The wetlands run landward approximately 10 feet to a filled area approximately 75 feet deep fronting Long Beach Boulevard. Landward of the mangrove fringe on the foredune is a dense growth of night shade, behind which the hardwood hammock vegetation begins, at approximately 10 feet from the shoreline. The understory of the hammock has a very rich growth of wild bamboo. Trees in the hammock community include blolly, spider lily, Jamaican dogwood, Keys bamboo, gumbo-limbo, darling plum, seven-year apple, wild dilly and coconut palm. The area along the lower back dune displays transitional vegetation consisting of blackbead, limber caper, sea grape, bay cedar, sea daisy, and remnant black and white mangroves.
At lower elevations of the property below the back dune and abutting the roadside fill area are found buttonwood, black mangrove without pneumatophores, saltwort, red mangrove, black mangrove, white mangrove, and sea purslane. The wetland and red mangrove area is about 10 to 15 feet in size, healthy, and of high productivity. The transitional vegetation is productive in that it has a very high value to the organisms that are feeding upon it in that particular area, although its productive value is lower than that of the red mangrove system. Wildlife found on the property include marsh rabbit, raccoon, Key deer, and hermit crabs. Other species expected to be found are the eastern indigo snake the red black snake, and the silver rice rat, all species listed by the federal government as threatened.
Both the McDonald/Allen and Stage properties are located in the Florida Keys in Monroe County, which has been designated an area of critical state concern. The Florida Keys is the only tropical area in the entire continental United States. The uncontroverted testimony of witnesses for the Respondents and Petitioner was that virtually every natural feature found there is unique. The Long Beach and Sugarloaf Beach coastal dune structures are particularly significant natural systems because of the scarcity of these sandy beaches and dune systems in the Florida Keys. Such systems have been estimated to represent only 2 percent of the land mass of the Florida Keys. They are even more scarce when considered in reference to the land mass of the United States because there are no comparable natural systems in North America. The dune systems on Sugarloaf Beach and Long Beach are storm berms or storm beaches, which are created when near source material is driven by storm effect onto the beach and ridge. These beaches are stable when highly vegetated and undisturbed. The plant communities found on the dune system have adapted to resist the impact of storms, both wind and wave. Seagrape trees, for example, diminish the shearing effect of the wind by absorbing wind energy. Many of the plant species are deeply rooted and essentially adapted to the intermittent effects of storms. When the natural systems and vegetative communities are altered, the dune system loses its resistance to storm and is subject to instability and erosion.
Many of the plant and animal species present in the Florida Keys and on the McDonald/Allen and Stage properties are only found in the Keys. They are endemic species which have deviated from the mother populations on the mainland, and they are of particular interest to the scientific community. The McDonald/Allen property, in particular, is unique because it combines a very mature hardwood system with the coastal dune structure. Maturity of the hardwood hammocks is evidenced by the large dimensions of the trees, especially the gumbo-limbos and inkwood, and the height and structure of the tree canopy.
The mangrove wetland areas on the McDonald/Allen and Stage properties could also be called unique by virtue of their location in the Florida Keys, though they are similar to other mangrove wetland areas. They are both productive, healthy systems. Such mangrove systems are considered to be one of the most important natural resources in Southern Florida. They provide
shoreline protection, build up land areas, provide nutrients to the marine environment, and serve as nurseries for marine species and wildlife habitat for reptiles and wading birds such as herons, egrets, white crown pigeons and gray king birds. Transitional areas may have lower productivity than the wetland areas, but they still have a very high value to organisms feeding upon them. A community of animals will still be dependent upon the transitional vegetation, and removal or stress to that vegetation will also stress the dependent animal elements.
On April 22, 1983, the Zoning Board of Monroe County denied the McDonald/Allen application for special use approval to deposit the fill and construct the access road. Reasons for the denial were that the project failed to comply with Sections 19-75(2)a, 19-111, and 19-59(6), Monroe County Code. Section 19-75(2)a requires a determination of the effect of the change under review on that particular property and on surrounding properties. Section 19- 111(a)(4) requires that all applications for a permit in wetland areas consider the natural biological functions, including food chain production, general habitat, nesting, spawning, rearing and resting sites for aquatic or terrestrial species, the physical aspects of natural drainage, salinity and sedimentation patterns, and physical protection provided by wetland vegetation from storm and wave action. Section 19-59(6) requires consideration of the project's compliance with the County's Comprehensive Plan. The Zoning Board was particularly concerned about the fact that the project was contrary to the policy expressed in the County's Comprehensive Plan to prohibit new construction that would threaten the stability of dune ridges, and about the cumulative impact on the wetland areas and on the dune system of several nearby projects for which applications had been submitted.
On August 5, 1983, the Board of County Commissioners reversed the denial of the McDonald/Allen application for special use approval by adopting Resolution No. 233-1983. The Resolution authorizes the deposit of fill and construction of the access driveway as requested by the McDonald/Allen application. The Resolution makes no finding that the project meets the requirements of the Monroe County Code or Monroe County Comprehensive Plan. The Resolution also fails to specify any conditions or protective measures that should be met by the applications in regard to design, construction activities or coordination with adjoining land owners to reduce the impacts of the proposed development. No evidence was introduced at the final hearing in this cause to show that the Board of County Commissioners considered these items or any provision for them.
An employee of Petitioner was present at the Monroe County Board of County Commissioners meeting on August 5, 1983, when a vote was taken on the McDonald/Allen application. However, Petitioner did not receive a written copy of the Resolution reducing that action to writing until October 14, 1983, when Monroe County transmitted the Resolution by hand-delivery.
On August 25, 1983, the State of Florida Department of Environmental Regulation (hereinafter "DER") issued a permit to McDonald/Allen to deposit 433 cubic yards of fill for an access road with four box culverts three feet by eight feet. The permit is based upon Chapter 403, Florida Statutes, and Chapters 17-3 and 17-4, Florida Administrative Code, jurisdiction and therefore only evaluates impacts on water quality. It does not address impacts on storm surge abatement; marine and wildlife resources habitats; suitability of the proposed project in regard to its location, site characteristics and intended purpose; the effect of the proposed project on surrounding properties (including
cumulative impacts of several projects in close proximity of each other); or compliance with the Monroe County Code or Monroe County's Comprehensive Plan.
On July 29, 1983, the Zoning Hoard of Monroe County denied the Stage application for special use approval to deposit fill and construct an access road. One of the items considered by the Zoning Board was the permit issued to Respondent Stage by DER on July 13, 1983, to deposit approximately 62 cubic yards of crushed limerock fill for an access road with two 36-inch diameter culverts. The DER permit addressed only impacts to water quality as specified by Chapter 403, Florida Statutes, and Chapters 17-3 and 17-4, Florida Administrative Code. As was the case with the permit issued to McDonald/Allen, the determination by DER to issue the permit did not include the analysis required by the Monroe County Code and the Monroe County Comprehensive Plan of impacts to natural systems. Reasons cited by the Zoning Board for the application's denial are the project's failure to meet the requirements of the Monroe County Code regarding the Suitability of the use in regard to its location, site characteristics, and intended purpose; and the project's failure to comply with the County's Comprehensive Plan encouraging protection of wetlands to the maximum extent possible and prohibiting new construction that would threaten the stability of dune ridges.
On October 28, 1983, the Monroe County Board of County Commissioners reversed the denial of the Stage application for special use approval by adopting Resolution No. 296-1983. Again, there are no protective or limiting conditions specified in the Resolution in regard to construction of the road or its relationship to the remainder of the project.
The access road proposed by the McDonald/Allen application will eliminate approximately 4,000 square feet of high-quality submerged mangrove wetlands. This, in turn, would eliminate high-quality habitat used by a variety of large birds such as herons, ibises, little blue herons; gastropods; species of small fish such as killifish, sheepshead minnow, sailfin, mosquito fish; blue crabs, fiddler crabs and Saltwater snakes. The proposed fill road would also present a 325-foot long barrier to the existing tidal flow, thereby impeding the natural flow of water, particularly during a storm event when even very large culverts are blocked by vegetation and other debris. A fill road would also provide a substrate for colonization by exotic vegetation, to the detriment and possible exclusion of native vegetation. In addition, the evidence indicates that at least four more fill roads are proposed in immediate proximity to the proposed McDonald/Allen fill road, within the same 10-acre wetland area. If approved, the cumulative impacts of several roads would be significantly greater than the one road. There would be a significant increase in the direct removal of vegetation and wildlife habitat and an even greater impact on tidal flow through the area with each additional road (even ignoring the fact that each road is merely a portion of the real project). This is because each barrier to tidal flow placed downstream from the source water diminishes the ability of the tidal water to reach other areas even further downstream. The essence of Respondents McDonald/Allen's testimony and exhibits in regard to cumulative impacts is that with proper planning only one access road need be built in the 10-acre wetland area in which the McDonald/Allen property lies. No evidence was submitted to show that such planning efforts exist or are likely to be fruitful. There is no reasonable assurance that only one access road will be sought or constructed in that area; rather, the evidence is to the contrary.
Respondent Stage's proposed access road would eliminate a small amount of productive red mangroves and would eliminate transitional wetlands of somewhat lower productivity, thereby exacerbating the existing stresses to the
transitional community on the Stage property. The road would also be subject to blockage during a storm event, which would further diminish the existing tidal flow.
Current intended use of both the McDonald/Allen and Stage properties is for a single-family residence, although neither applicant has finalized any design for that residence. Construction and occupancy of even a single-family residence in the tropical hardwood hammock on the dune back or dune top of either property can be expected to produce a typical range of impacts to the natural systems. The most significant is the removal of hardwood hammock trees and understory vegetation. At a minimum, clearing is required for a house pad, a turnaround (and parking) area, a septic tank and drain field, and a surrounding area sufficient to accommodate construction equipment and workers. Additional clearing can be anticipated by occupants of a single-family residence who seek to take advantage of ocean breezes and view and who create pathways to the beach. Any opening of the hammock's tree canopy or understory would increase exposure of the lower forest to the drying effects of wind and salt and upset the hammock's microclimate, causing progressive destruction of vegetation. Clearing also provides conditions which make the site conducive to colonization by exotic species. Additional impacts customarily associated with single-family residence occupancy are the introduction of pets who are natural predators of endangered species, of noxious chemicals used for spraying insects, and of intrusion into the habitat of wildlife which now utilize the area and are not tolerant of human activity in immediate nesting and feeding areas. Several dwellings constructed on a dune ridge would cumulatively impact and even further threaten destruction of the hardwood hammock and dune system. Once in place and occupied, a single-family home will create impacts that are extremely difficult to prevent or mitigate and which are uncontrolled by any County ordinance or State regulations.
The current and future owners of both the McDonald/Allen and Stage properties have access to that property since either a state-- or county-- maintained road borders one entire side of each of those properties. Accordingly, neither proposed driveway is necessary to provide access to the property.
Since the special use approvals given by Monroe County to McDonald/Allen and Stage are not conditioned upon the obtaining of permits for the construction of the now-intended dwelling structure, the actual use of the driveways remains speculative. Although the Stage property may be zoned exclusively for a single-family residence, the McDonald/Allen parcel appears to be in an area of Monroe County in which single-family residences are only one of the uses allowed. Additionally, several years ago Respondent Stage, without first obtaining a permit, has placed fill on his property which covers the width of his property along Long Beach Boulevard. Although Respondent Stage eliminated a wetlands area 100 feet by 75 feet by placing fill therein, he has not been required to remove that fill, and it is speculative as to whether any agency with the authority to require the removal of that fill would do so since no mitigation has yet been required of him.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1), Florida Statutes (1983).
In its Petitions initiating these cases, Petitioner requested a de novo hearing. At the commencement of the final hearing, the Respondents who appeared agreed to a de novo proceeding. It was, therefore, incumbent upon the Respondents to establish entitlement to the permits (special use approvals) sought by them.
The petitions for special use approval filed by Respondent Donia and by Respondent Bobowski should be denied with prejudice not only because they failed to meet their burden of proof by their non-appearance at the final hearing but also because the uncontroverted evidence is that they are not owners of the property for which special use approval is sought as is required by Section 19-38, Monroe County Code.
Section 380.07, Florida Statutes (1983) grants Petitioner the right to appeal to the Florida Land and Water Adjudicatory Commission any development order issued by any local government in any area of critical state concern within 45 days after the order is rendered. Section 380.04, Florida Statutes (1983) provides as follows:
The term "development" means the carrying out of any building activity or mining operation, the making of any material change
in the use or appearance of any structure or land, or the dividing of land into three or more parcels.
The following activities or uses shall be taken for the purposes of this chapter to involve "development," as defined in this section:
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(c) Alteration of a shore or bank of a sea- coast, river, stream, lake, pond, or canal, including any "coastal construction" as defined in s. 161.021.
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Clearing of land as an adjunct of construction.
Deposit of refuse, solid or liquid waste, or fill on a parcel of land.
The following operations or uses shall not be taken for the purpose of this chapter to involve "development" as defined in this section:
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(d) The use of any structure or land devoted to dwelling uses for any purpose customarily incidental to enjoyment of the dwelling.
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(h) The creation of termination or rights of access, riparian rights, easements, convenient concerning development of land, or other
rights in land.
The "access" roads for which Respondents McDonald/Allen and Stage have applied require the alteration of a tidally influenced wetland, clearing of land, deposit of fill, and use of heavy construction equipment. These roads clearly meet the definition of development under Section 380.04, and the Monroe County
Resolution authorizing their construction meets the definition of a development order and is subject to appeal within 45 days after rendition. Section 380.04(3), Florida Statutes (1983), does not authorize the exclusion of these roads from the jurisdiction of Chapter 380, Florida Statutes (1983). The exception for uses incidental to enjoyment of a dwelling refers to actual use, such as barbecuing, sun bathing, and hanging out laundry, not clearing or construction activity. In addition, the exception is based upon the premise that a dwelling already exists on the particular property. Respondents herein have no dwelling, no approval to construct any dwelling, and no assurance that a dwelling can ever be constructed. The exception for creation of rights of access refers to the creation of legal rights and does not except from the jurisdiction of Chapter 380, Florida Statutes (1983), any clearing of land or construction activity. Respondents McDonald/Allen and Stage already possess legal rights of access to their property; moreover, they have access to their properties since each parcel is contiguous to a state- or county- maintained highway. What Respondents seek is authorization to clear, fill, and construct roads, an activity which meets the definition of development under Section 380.04, Florida Statutes (1983).
Prior to the final hearing, during the final hearing, and at the conclusion of the final hearing, Respondents McDonald and Allen moved to dismiss the petition against them as having been filed untimely because it was not filed within 45 days after Monroe County Resolution No. 233-1983 was adopted nor within 45 days after Petitioner had actual notice of the special use approval given to McDonald and Allen by the Monroe County Board of County Commissioners. In their proposed recommended order, however, Respondents McDonald and Allen agree that the holding in Fox v. South Florida Regional Planning Council, et al., 327 So.2d 56 (Fla. 1st Dist. 1976) is contrary to their position and specifically makes timely the petition filed herein since it was filed less than
45 days after it was first delivered by Monroe County to Petitioner.
Petitioner alleges that the "access" roads for which Respondents McDonald/Allen and Stage have applied additionally do not comply with the standards of Chapter 380, Florida Statutes (1983), in that they do not comply with Chapter 27F-8, Florida Administrative Code, entitled Boundary and Principles for Guiding Development for the Florida Keys Area of Critical State Concern, and Chapter 27F-9, Florida Administrative Code, entitled Land Planning Regulations for the Florida Keys Area of Critical State Concern, Monroe County. Section 27F-8.032(a) requires local government development orders to be issued in conformance with the policies and standards of the land use plan and zoning ordinances and maps. Monroe County has adopted a comprehensive land use plan as required by Chapter 163, Florida Statutes (1983), and Section 380.05, Florida Statutes (1983). Pertinent Monroe County zoning and land use regulations, adopted pursuant to Chapters 27F-8 and 27F-9, Florida Administrative Code, are found in Chapter 4, Monroe County Code, entitled Beaches and Shorelines, and Chapter 19, Monroe County Code, entitled Zoning.
Section 4-18, Monroe County Code, establishes a shoreline protection zone in which the proposed roads on both the McDonald/Allen and Stage properties would be located. No development permit of any kind is to be issued authorizing any development within the shoreline protection zone without first obtaining a zoning clearance from the zoning official. Section 4-21(a), Monroe County Code. In addition, the placement of land fill within the shoreline protection zone is expressly prohibited except as provided in Section 4-20, Monroe County Code. Section 4-21(c), Monroe County Code. Section 4-20, Monroe County Code, permits access driveways and turnarounds for single-family residences upon special approval of the Zoning Board, as long as:
The principal structure shall be located as close as possible to the landward edge of site so as to reduce driveway length.
Additionally, the Zoning Board is required to give due consideration to:
The effect of such use upon Surrounding properties.
The suitability of the use in regard to its location, site characteristics, and intended purpose.
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(6) Compliance with the county's comprehensive plan.
Section 19-59, Monroe County Code. The pertinent portions of the Monroe County Comprehensive Plan are found in the Coastal Zone Conservation and Protection Element, which provides as follows:
3. Regulations controlling development in areas characterized primarily by wetland vegetative species such as mangrove and associated vegetation will emphasize preservation of natural vegetation to the maximum degree possible. Local regulations in this regard will be consistent with the appropriate State and Federal regulations. At page 32.
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Sandy Beaches and Young Dunes: Sandy beach and dune formations are extremely rare feature [sic] in the predominately rocky shoreline areas of the Keys. These areas, in addition to being very important recreational resources, constitute natural shoreline protection features; and their rare occurrence in the Keys gives them additional value as a special resource. The management of these vital areas will be guided by the following special policies:
No new construction will be allowed that would threaten the stability of either the dune (if existing) or the beach itself. All construction will be restricted to areas landward of the primary-dune line whenever applicable. At pages 40-41.
The projects proposed by McDonald/Allen and by Stage fail to comply with these standards.
The evidence presented in regard to the McDonald/Allen property on Sugarloaf Beach shows that the requisite standards for the fill driveway are not met in several respects. Section 4-21(d), Monroe County Code requires a written finding that the proposed development within the shoreline protection zone will not encroach upon, destroy the value of, or otherwise adversely affect conditions and characteristics which promote shoreline stabilization, storm
surge abatement, water quality maintenance, wildlife and marine resource habitats and marine productivity. Construction of the driveway on the McDonald/Allen property will destroy approximately 4,000 square feet of mangrove wetland within the shoreline protection zone. This destruction will adversely affect the wetland's ability to support wildlife and marine resource habitats and marine productivity. Construction of the road will also place a barrier across the 10-acre mangrove wetland system, which will impede tidal flow, particularly during a major storm event, thereby adversely affecting storm surge abatement and water quality. The access driveway as approved by Monroe County also fails to comply with the policy expressed in the Monroe County Comprehensive Plan which requires preservation of the natural wetland mangrove and associated vegetation to the maximum degree possible. The approval fails to require planting of native vegetation to discourage colonization of the area by exotica or to require an access road on pilings, which would permit continued growth of some form of wetland vegetation underneath. An elevated boardwalk would constitute a far less severe intrusion or impact upon the environment.
The mere convenience of access by automobile over a fill driveway is far outweighed by the damage to the environment, including wetland and vegetation, that would result from its construction. The intended purpose of the McDonald/Allen access driveway is to lead presumably to a single-family residence to be built on the dune top or back. Construction and occupancy of a single-family residence on the dune would have a degrading effect on a unique tropical hardwood hammock and dune ridge system caused by clearing mature trees and understory, the introduction of noxious chemicals such as pesticides, and the introduction of domestic animals and human intrusion. The removal of vegetation lessens the stability of the dune structure, causes erosion, and increases Susceptibility to colonization by exotic vegetation. No evidence was introduced to show that any effective or legally binding protective measures exist or will be implemented by Monroe County to insure that this unique site will not be degraded or destroyed by the intended use of the property by the current or subsequent owners.
The evidence presented in regard to the Stage property on Long Beach also shows that the requisite standards for approval for the proposed access driveway are not met in several respects and for the reasons that the McDonald/Allen proposal fails.
Both projects fail to comply with the requirement that the principal structure be located as close as possible to the landward edge of the site so as to reduce driveway length. The filled portion of the Stage lot along Long Beach Boulevard could, with proper planning, be utilized to accommodate a single- family residence and driveway, thereby eliminating any need to construct the proposed driveway and disturb the dune ridge. Although Respondent Stage argues that the previously-filled area is too small under existing zoning setbacks, there is no showing that he has attempted to obtain a waiver of those restrictions. Building on the already-filled area may moot the issues involved in this proceeding and may result in no impacts reviewable under Chapter 380, Florida Statutes (1983). Similarly the argument of Respondents McDonald/Allen that the cost of a 325 foot elevated driveway is prohibitive totally ignores the requirement that the principal structure be located as close as possible to the landward edge of the site so as to reduce driveway length. Accordingly McDonald/Allen's "cost prohibitive" argument is without merit both legally and logically. No evidence was introduced by them as to any zoning setback requirements applicable or as to any reason why their residence, like Stage's, cannot be built at the road fronting their property rather than at the location on their property furthest from the existing road, other than personal preference.
In an attempt to avoid the restrictions against building on dunes in Monroe County, Respondents McDonald/Allen and Stage go to great length to prove that the dunes in question are not dunes. Much smoke was created by Respondents as to the genesis of dunes in the Keys as well as their composition. Respondents' attempts at differentiation fail to recognize that none of the statutes or regulations previously cited herein distinguish between dunes of one origin and composition as opposed to dunes of another. It is assumed that when the word "dune" was used in the Monroe County Code as well as in the Monroe County Comprehensive Plan, the drafters thereof intended to describe the dunes found in Monroe County. Whether the dune ridge on the McDonald/Allen property or the dune ridge on the Stage property is a parabolic one or even a primary one is important only to Respondents McDonald/Allen and Stage in attempting to find a buildable site on property composed of wetlands, mangroves, and a dune when purchased by them.
There is an overriding reason why the special use approvals requested in these cases should be denied--minimally, as premature. The sequence chosen by Respondents for obtaining approvals for their intended construction renders any review of the impacts thereof meaningless. Respondents have stated their current intent to construct a single-family residence on their respective properties. A review of that construction project--to be meaningful--must include the entire project to ascertain the entitlement to all permits and approvals required to build that Single-family residence on that piece of property located in an area of critical state concern. It is obvious that a review of the impacts of a driveway will yield information substantially different than a review of the impacts of the dwelling structure and with the driveway, the septic tank and drain field system, together with any turnaround and parking areas. Where a single construction project is broken into its smallest components, the outcome of the review process can be easily manipulated. For example, in this case approval of the driveways sought by Respondents will not yield a use "customarily incidental to enjoyment of the dwelling," as Respondents argue; rather, such approval can result in the construction of a long road to nowhere. No guarantee is present that a single- family residence will ever be built at the end of that road rather than a multi- family residence or some type of commercial facility. One cannot seriously argue that it is more difficult to obtain a zoning variance than it is to obtain a special use approval. By engaging in the subterfuge of obtaining piece-meal approvals, none of which ever deals with the entire project, Respondents take the position that the driveway must be approved without regard to whether a house can ever be built on the land and without regard to whether a septic tank and drain field would ever be permitted to be installed. Those issues must be resolved first (or simultaneously) in order that a determination can be made as to whether a driveway is needed. Since neither McDonald/Allen nor Stage have submitted final building plans or made a final house site selection, it is difficult to understand how they can know the exact location and length of the driveway needed. It could easily be later determined that the driveway is 100 feet longer than was needed to connect the house site with the state road which runs along that property's landward boundary. If, as Respondents argue, the driveway use is secondary to the primary use of the properties for single-family house construction, then the impacts to the sites and their environmental and natural systems from access road construction cannot be viewed in isolation from the impacts that will result from the remainder of the house construction.
These Respondents, for whatever reason, did not choose to seek building permits for the primary residential use along with the driveway permits now being considered although requesting permits for the primary and secondary uses simultaneously would have allowed a review of the cumulative impacts of the
house and driveway construction. Approval of a driveway on the McDonald/Allen and Stage properties without that approval being contingent upon the obtaining of all building, septic, tree clearing, and other permits required for the construction of a single-family dwelling is contrary to Chapter 360, Florida Statutes, Chapters 27F-8 and 27F-9, Florida Administrative Code, the Monroe County Code, and the Monroe County Comprehensive Plan. There can be no access driveway approval: (1) unless there already exists a single-family residence to which that driveway will attach; or, (2) unless a permit has been issued for the construction of that single-family residence, with the driveway approval being voidable should any change in the permitted building plans occur.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED THAT a final order be entered denying the applications of
Respondents McDonald/Allen, Donia, Bobowski, and Stage for special use approval. Pursuant to the requirements of Section 380.08(3), Florida Statutes (1983):
There are no changes in the proposal by Respondent Donia that would entitle her to receive the special use approval requested herein;
There are no changes in the proposal by Respondent Bobowski that would entitle him to receive the special use approval requested herein;
Respondents McDonald and Allen could make their driveway application eligible for a special use approval by altering the design of the driveway to piling or boardwalk construction rather than fill construction; and,
Respondent Stage can make his driveway application eligible for a special use approval by altering the project design so that the primary structure utilizes the portion of his property which was previously filled. It is further,
RECOMMENDED THAT each application for special use approval submitted herein remain ineligible to receive such approval until such time as it can be demonstrated, such as through the issuance of all necessary permits, that the intended primary use--residential construction--will not degrade or destroy the tropical hardwood hammock, dune ridge, or other natural systems located on or surrounding Respondents' properties.
DONE and RECOMMENDED this 8th day of April, 1985 at Tallahassee, Florida.
LINDA M. RIGOT
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 1985.
COPIES FURNISHED:
Honorable Bob Graham Governor
The Capitol
Tallahassee, Florida 32301
Honorable Bill Gunter Insurance Commissioner The Capitol
Tallahassee, Florida 32301
Honorable Jim Smith Attorney General The Capitol
Tallahassee, Florida 32301
Honorable Doyle Conner Commissioner of Agriculture The Capitol
Tallahassee, Florida 32301
Honorable George Firestone Secretary of State
The Capitol
Tallahassee, Florida 32301
Honorable Gerald Lewis Comptroller
The Capitol
Tallahassee, Florida 32301
John T. Herndon, Secretary
Florida Land and Water Adjudicatory Commission
Office of the Governor The Capitol
Tallahassee, Florida 32301
Sheri Smallwood, Esquire County Attorney, Monroe County
310 Fleming Street
Key West, Florida 33040
James Hendrick, Esquire Albury, Morgan & Hendrick
317 Whitehead Street
Key West, Florida 33040
Catherine Donia Post Office Box 502
Big Pine Key, Florida 33043
Thomas Bobowski Post Office Box 502
Big Pine Key, Florida 33043
Sarah E. Nall, Esquire
C. Laurence Keesey, Esquire Department of Community Affairs 2571 Executive Center Circle, East Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| Apr. 08, 1985 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 08, 1985 | Recommended Order | Denial of applications for special use approval to construct filled access driveways in shoreline protection zone of Monroe County. |
