STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

)

RECOMMENDED ORDER

This case was heard by R. L. Caleen, Jr., Hearing Officer with the Division of Administrative Hearings, on September 3, 1985, in Key West, Florida. The parties were represented by counsel.

APPEARANCES

For Petitioner: Sarah Nall, Esquire

2571 Executive Center Circle East Tallahassee, Florida 32301

For Respondent: Susan Vernon, Esquire

310 Fleming Street

Key West, Florida 33040

For Intervenor: Ray Allen, Esquire

618 Whitehead Street Key West, Florida 33040

ISSUE

Whether Sugarloaf Shores Section C Extension is a "major development" as defined by Section 6-222, Monroe County Code, and (in connection with Intervenor's amended plat proposal and dredge and fill application) should undergo major development review pursuant to Chapter 6, Article VII, Monroe County Code.

BACKGROUND

On September 10, 1984, Petitioner, Department of Community Affairs (DCA) appealed to the Florida Land and Water Adjudicatory Commission (FLAWAC) a resolution of Respondent, Monroe County Board of County Commissioners ("County Commission"), approving Intervenor, Lloyd Good, Jr.'s application to dredge and

fill lands within the Sugarloaf Shores Section C Extension subdivision in Sugarloaf Key, part of the designated Florida Keys Area of Critical State Concern. FLAWAC forwarded this case (84-3307) to the Division of Administrative Hearings for assignment of a hearing officer. Intervenor Lloyd Good was permitted to intervene as a party on October 24, 1984.

On October 31, 1984, the DCA appealed to FLAWAC a subsequent resolution of the County Commission approving an amended plat of the Sugarloaf Shores, Section C Extension subdivision. This case (84-3998) was also forwarded to the Division of Administrative Hearings for assignment of a hearing officer. Intervenor Good was permitted to intervene as a party; and on March 22, 1985, the parties' joint motion to consolidate both cases for final hearing was granted.

Lloyd Good filed an Answer to the petition accompanying the DCA's appeals. On November 19, 1984, he filed a Motion to Dismiss, which was denied. Hearing was set for April 16, 1985, then reset (on the parties' joint request) for September 3, 1985.

On June 27, 1985, the DCA moved for a bifurcated hearing, asking that a procedural issue (which could determine the outcome of these cases) be decided prior to a full evidentiary hearing on the merits. The procedural issue is whether Sugarloaf Shores Section C Extension is a "major development" pursuant to Section 6-222, Monroe County Code, which should undergo the "major development" review process of Chapter 6, Article VII, Monroe County Code. DCA asserted that if FLAWAC finds Sugarloaf Shores Section C Extension to be a "major development" it should remand the remand the project to Monroe County for further review. The substantive issues raised by the two appeals would then be considered during that review and could be resolved to the satisfaction of all parties. If, on the other hand, FLAWAC finds that Sugarloaf Shores Section C Extension is not a "major development," then a subsequent hearing on the merits of the two appeals would be required. The unopposed motion to bifurcate was granted on July 10, 1985.

Consequently, the only issue heard on September 3, 1985, was a procedural one: whether Sugarloaf Shores Section C Extension is a "major development" which should undergo "major development" review in accordance with the Monroe County Code. On August 28, 1985, the parties filed a Prehearing Stipulation which identified certain agreed-upon facts. At subsequent hearing, Joint Exhibit Nos. 1 through 34 and Intervenor's Exhibit No. 1, were received in evidence. The DCA presented the testimony of Robert Dennis; Lloyd Good testified on his own behalf.

The transcript of hearing was filed on October 11, 1985. The DCA and Lloyd Good filed proposed findings of fact by November 8, 1985. The County Commission adopted Lloyd Good's proposed findings as its own. Rulings on the parties' proposed findings are contained in the attached Appendix. On December 4, 1985, the DCA moved to strike Section I of Lloyd Good's proposed findings, which motion is denied. A late-filed exhibit, tape recordings of relevant proceedings before the County Commission, was not received until January 10, 1986.

Based on the evidence adduced at hearing, the following facts are determined:

FINDINGS OF FACT

1. Sugarloaf Shores Section C Extension is a subdivision located in Section 2, Township 67 South, Range 27 East, Sugarloaf Key, Monroe County, Florida. (Prehearing Stipulation, Para. (e), No. 1).

   
   

2. The plat of Sugarloaf Shores Section C Extension, shows 76 residential building lots and five deadend canals (connecting to Upper Sugarloaf Sound or Cross Key Channel) and a canal of approximately 900 feet paralleling the mean high water line of Upper Sugarloaf Sound; it was approved by Monroe County on July 5, 1972, and is recorded in Monroe County Plat Book 6, page 93. The subdivision contains 38.9 plus acres. (Prehearing Stipulation, Para. (e), No. 2; Joint Exhibit No. 1).

   
   

3. Lloyd A. Good, Jr., purchased Sugarloaf Shores Section C Extension on October 8, 1973, and is the current owner and developer of the subdivision. (Prehearing Stipulation Para. (e), No. 3).

   
   

4. At the time of his purchase, the land had been cleared. An east-west canal of approximately 600' in length and 50' in width had been excavated but unopened to Upper Sugarloaf Sound. A north-south canal or borrow pit of approximately 200' in length and 50' in width had also been excavated. Fill obtained from these excavations had been placed on the property. He subsequently placed approximately 800 yards of additional fill on the Southeast corner of the property. (Testimony of Good)

   
   

5. The platted subdivision is landward of the mean high water line and contains a mixture of upland and wetland vegetation. A berm rises along the front of the property between Allamanda Drive and the existing (plugged) canal. The northern part of the property contains white, black, and red mangroves, red grape, a hardwood hammock, and a salt water marsh characterized by key grass, salicornia, and white and black mangroves. The western part of the property contains fresh water wetlands characterized by spike rush. The area south of the existing canal contains more mangroves and is permeated by transitional wetland or fresh water wetland plant species, with the higher elevations containing Lower Keys hardwood hammock species such as poison wood, black tooth and Jamaican dogwood. The salt marsh and black mangroves are subject to inundation from tidal exchange; the fresh water wetlands are subject to rain water flooding. (Testimony of Dennis)

   
   

6. In 1973, Lloyd Good was familiar with regulatory restrictions on the use of wetland areas. As a Philadelphia attorney, he had "practiced in wetland areas in New Jersey . . . and . . . knew that the concept of deadend canals at that time was not feasible." (TR.65) He had decided to amend the original plat (and change the development plan) even before he purchased Sugarloaf Shores Section C Extension because he believed that under existing environmental laws the platted deadend canals would not be permitted. (TR.65) So he hired engineers to design a development plan acceptable to the U.S. Army Corps of Engineers and other governmental agencies having regulatory jurisdiction over dredge and fill activities in wetland areas. Because of other business interests, he temporarily halted work on the project between late 1973 and 1975. From 1975 to 1980, he worked with permitting officials from federal, state, and local regulatory agencies in an effort to devise a development plan for Section C Extension which would meet regulatory standards. In 1980, he hired a consultant to obtain the necessary federal, state, and local permits needed to carry out his revised development plan. Monroe County permitting officials told him not to apply for any local dredge and fill, or land clearing permits until he first obtained the required federal and state permits. (Testimony of Good)

7. In 1980, Lloyd Good applied for a joint U.S. Army Corps of Engineers/Florida Department of Environmental Regulation permit to perform the dredging and filling necessary to carry out his revised development plan. In 1983, after extensive negotiation, both agencies issued him the required dredge and fill permits. The Department of Environmental Regulation permit was conditioned on Mr. Good obtaining Monroe County approval of an amended plat of Sugarloaf Shores Section C Extension conforming to the federal and state permits. (Joint Exhibit No. 21, Testimony of Good)

   
   

8. During his initial discussions with Monroe County officials in 1981, Lloyd Good proposed rezoning the property to permit multiple-family residences; if rezoned, he expected that the project would be required to undergo "major development" review as defined by the Monroe County Code. But after meeting with members of the Sugarloaf Property Owners Association and discovering that they were violently opposed to multi-family development," (TR.73) he decided to retain the single-family nature of the original development and not seek a zoning change. Monroe County officials told him that by retaining the original zoning his development activities would not be subject to the "major development" review process. (Testimony of Good)

   
   

9. On May 10, 1983, Lloyd Good submitted an application to Monroe County for authorization to dredge 42,400 plus/minus cubic yards of submerged lands, wetlands and uplands for roads and fill needed to develop residential lots within the Sugarloaf Shores Subdivision in accordance with his newly revised development plan. His application conformed to the federal and state permits already issued. (Prehearing Stipulation Para. (e) No. 4; Joint Exhibits No. 2 and 6)

   
   

10. Mark Robinson, the county biologist assigned to review the dredge and fill application and prepare a biological report, asked Lloyd Good to have the state and federal permits amended to address several of his concerns. Mr. Good obtained the requested permit amendments, then asked that the biological report be completed. (Testimony of Good)

    
    

11. On August 25, 1983, Dr. Jeffrey M. Doyle, Director of the Monroe County Planning and Zoning Department, issued an administrative ruling declaring Sugarloaf Shores Section C Extension to be a "major development" under the Monroe County Code. As grounds, he cited Section 6-222(1), which defines a "major development" project as a subdivision containing five acres or more of land or water, and Section 6-222(7)(b), which grants discretionary authority to zoning officials and the County Commission to designate an activity or use as a "major development" project if it "reflects sufficient scope, scale and size to justify its being designated . . . in order to ensure its reasonable implementation, if approved, and its proper review prior to such approval." Under his administrative ruling, the dredge and fill application would be subject to the comprehensive review procedures which apply to "major developments." (Joint Exhibit Nos. 32, 5)

    
    

12. On September 21, 1983, Lloyd Good appealed Dr. Doyle's administrative ruling to the Monroe County Board of Adjustment. The issue before the Board of Adjustment (and subsequently before the County Commission) was whether Mr. Good's proposed dredge and fill activity (for the purpose of constructing the revised subdivision) was a "major development" as defined by the Monroe County Code, and whether compliance with "major development" review procedures was required before county dredge and fill permits could be issued. (Prehearing Stipulation, Para. (e) No. 6; Joint Exhibit No. 8).

13. On November 2, 1983, the Monroe County Board of Adjustment upheld Dr. Doyle's decision and determined that the Section C Extension subdivision (to be created by the dredging and filling) was a "major development" under Chapter 6- 222(7)(b), Monroe County Code. (Prehearing Stipulation, Para. (e) No. 7; Joint Exhibits No. 11 and 12).

    
    

14. On November 23, 1983, Lloyd Good appealed the Board of Adjustment's decision to the County Commission. (Prehearing Stipulation, Para. (e) No. 8; Joint Exhibit No. 13).

    
    

15. On January 27, 1984, the County Commission, sitting as the Board of Appeals, adopted Resolution No. 042-1984, reversing the Board of Adjustment's decision of November 2, 1983. The resolution (giving no specific reasons for the reversal) remanded the matter to the County Planning and Building Department for normal processing of the related dredge and fill permits. It did not grant or deny any development or dredge and fill permit; it simply ordered that Lloyd Good's dredge and fill application would be reviewed under normal permitting procedures, not the more comprehensive procedures applicable to "major development" projects. (Prehearing Stipulation, Para. (e), No. 9; Joint Exhibit No. 14)

    
    

16. The DCA did not appeal this resolution to a circuit court (within 30 days of its adoption) or to the FLAWAC (within 45 days of its transmission).

    The DCA did not challenge or question the County Commission's decision (that the proposed dredge and fill activities would not undergo "major development review") until it appealed the Commission's subsequent resolution granting the dredge and fill permit. (Testimony of Good, Dennis)

    
    

17. On June 4, 1984, Lloyd Good submitted to the Monroe County Building Department 13 copies of a proposed amended plat for the Sugarloaf Shores Section C Extension. The amended plat incorporated his new development plan and reflected the dredging and filling approved by state and federal permits. (Prehearing Stipulation, Para. (e), No. 10; Joint Exhibit Nos. 18 and 21).

    
    

18. On July 13, 1984, the County Commission adopted Resolution No. 195- 1984 approving Lloyd Good's application to dredge and fill. The resolution was transmitted to the DCA on July 27, 1984, which appealed it to the FLAWAC by notice filed September 10, 1984. 1/ The appealed resolution directs that the applied-for permit be issued subject to Lloyd Good's subsequent filing of an amendment to the Sugarloaf Shores Section C Extension plat. (Prehearing Stipulation, Para. (e), Joint Exhibit No. 19)

    
    

19. Thereafter, on September 7, 1984, the County Commission adopted Resolution No. 224-1984, approving an "Amended Plat for Sugarloaf Shores Section C Extension." The DCA also appealed this resolution to FLAWAC by separate notice filed October 31, 1984. (Prehearing Stipulation, Para. (e), No. 12; Joint Exhibit Nos. 21, 22)

    
    

20. The amended plat approved by Resolution No. 224-1984, replaces the original plat with a fundamentally new and different development plan. It alters the location of roads; eliminates the proposed deadend canals (except for the existing "plugged" canal); provides for wetland preservation areas in Tracts A, B, C, D, and F, and for the construction of a six-acre boat basin fronting the property on Upper Sugarloaf Sound; and reduces the number of single family residential lots from 76 to 55. RU-1 zoning is retained. The new development

    plan is preferable to the original plan in terms of environmental impact. The amended plat was processed in the same manner as all new plats in Monroe County. (Joint Exhibits No. 1, 21; Testimony of Dennis)

    
    

21. The record is devoid of any documented expenditures made by Lloyd Good in reliance on County Commission approval of the original or amended plat.

    
    

    CONCLUSIONS OF LAW

    
    

22. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.57(1), Florida Statutes (1983).

    
    

23. Preliminary Issues of Law. Lloyd Good contends that these administrative appeals of Monroe County Commission Resolution Nos. 195-1984 (approving the dredge and fill permit) and 224-1984 (approving the amended plat) are untimely as to the "major development" issue since the DCA did not appeal the earlier resolution (No. 042-1984) finding that the proposed dredging and filling of Section C Extension was not a "major development" under the Monroe County Code. See, Section 380.07, Fla. Stat. (1983). This contention is rejected since Resolution 042-1984 is not a "development order" which grants, denies, or conditionally grants a "development permit." See, Section 380.031(3), (4), Fla. Stat. (1983). Only development orders may be appealed to the FLAWAC. Section 380.07, Fla. Stat. (1983). Resolution No. 042-1984, reflected the County Commission's preliminary procedural decision that the proposed dredging and filling did not require "major development" review under the Monroe County Code and could be processed under normal procedures. This procedural determination could not be appealed until a substantive decision (encompassing it) was made.

    
    

24. Next, Mr. Good argues that the FLAWAC lacks jurisdiction over the appeal of Resolution No. 224-1984, since that resolution approves an amendment to a plat, not the filing of a new plat. Sections 380.07 and 380.031(2) and (3), allow appeals of "plat approvals," but are silent as to amended plat approvals. The phrase, "plat approvals," however, is broad enough to include approvals of amended plats. The statute does not differentiate between approvals of an original plat or a later amended one. If narrowly construed to apply only to approvals of original plats, Chapter 380 review of development orders in Areas of Critical State Concern could be frustrated. A developer could obtain local approval of an original plat, then amend it to something more objectionable, and insulate the amended plat from administrative appeal. The narrow construction of Section 380.031(3), urged by Mr. Good, must therefore be rejected.

    
    

25. Next, Mr. Good contends that the appeal of Resolution Nos. 195-1984 (approving the dredge and fill permit) and 224-1984 (approving the amended plat) should be prohibited because all property rights were vested for the purposes of Chapter 380, Florida Statutes, on July 5, 1972, when the original plat for Sugarloaf Shores Section C Extension was recorded. Section 380.05(18), Florida Statutes, provides:

    
    

    Neither the designation of an area of criti- cal state concern nor the adoption of any regulations for such an area shall in any way limit or modify the rights of any person to complete any development that has been au- thorized by registration of a subdivision

    pursuant to chapter 498 or former chapter 478, by recordation pursuant to local subdi- vision plat law, or by a building permit or other authorization to commence development on which there has been reliance and a change of position, and which registration or recor- dation was accomplished, or which permit or authorization was issued, prior to the ap- proval under subsection (6), or the adoption under subsection (8), of land development regulations for the area of critical state concern. If a developer has by his actions in reliance on prior regulations obtained vested or other legal rights that in law would have prevented a local government from changing those regulations in a way adverse to his interests, nothing in this chapter authorizes any governmental agency to abridge those rights.

    
    

26. Under both this statute and the common law, a developer may obtain vested rights to complete a particular development if he has 1) substantially changed his position, 2) in good faith reliance, 3) upon some act or omission of the government, so that it would be highly inequitable to destroy the acquired right. Dade County v. United Resources, 374 So.2d 1046, at 1050 (Fla. 3rd DCA 1979). Rights vest only for activity clearly within the scope of a particular governmental authorization. Activities which are not within the scope of the authorization or which are modifications to that authorization are not vested by it. Dade County v. United Resources, 374 So.2d 1046 (Fla. 3rd DCA 1979); Board of County Commissioners of Pasco County v. Hesse, 351 So.2d 1124 (Fla. 2nd DCA 1977); City of Miami Beach v. 8701 Collins Ave., 77 So.2d 428 (Fla. 1955).

    
    

27. The original plat of Sugarloaf Shores Section C Extension was recorded on July 5, 1972, prior to adoption of the land development regulations for the Florida Keys Area of Critical State Concern on July 1, 1979, and could serve as the basis for a claim of vested rights to complete development pursuant to that plat only if the requisite reliance and change of position could be shown. Mr. Good, however, purchased the property without any intention of developing it in accordance with the original plat. He proceeded to substantially revise the development plan, and the instant appeals arise out of his attempts to implement that revised development plan. Consequently, he never changed his position in reliance on the original 1972 plat and he has no vested right to develop in accordance with it. His revised development was subject to the law in effect at the time he applied for necessary governmental authorization. He applied for the local dredge and fill permit and the amended plat approval in 1983 and 1984, respectively, long after the 1979 enactment of development regulations for the Florida Keys Area of Critical State Concern. Consequently, both applications pertaining to the recently revised development are subject to those regulations.

    
    

28. Next, Mr. Good argues that he has a vested right to dredge and fill in accordance with federal and state permits, a right which Chapter 380 review cannot alter. Each agency, however, can function and exercise power only within the confines of its enabling statute. Authorization for an activity granted by one agency cannot be used to deprive another agency of the power to carry out its own statutory duties. See, State, etc. v. Oyster Bay Estates, 384 So.2d 891 (Fla. 1st DCA 1980); Department of Community Affairs v. Barteki and Monroe County, DOAH Case No. 84-1198 (Final Order of FLAWAC filed September 26, 1985).

29. Finally, Mr. Good argues that the scope of review before FLAWAC is narrowed to whether the County Commission considered the "major development" issue, and whether it acted in bad faith. In his view, FLAWAC acts similar to an appellate court, when it reviews a lower court's decision.

    
    

30. Although Section 380.07(3) uses the term "appeal," the administrative review authorized by Section 380.07 is de novo in nature. It allows presentation of evidence and argument, and requires a hearing in accordance with Chapter 120, Florida Statutes. 2/ Section 380.07(3), Fla. Stat. (1983). After the Chapter 120 hearing, FLAWAC issues an order granting or denying permission to develop pursuant to the standards of Chapter 380, Florida Statutes, and may attach conditions and restrictions to its decision. Section 380.07(4), Fla. Stat (1983). Thus, FLAWAC's role under Section 380.07 is not limited to that of an appellate court; its function is not simply to review action taken earlier, but to independently decide whether the appealed local development order meets the standards of Chapter 27F-8-9, Florida Administrative Code, which adopts the Monroe County Code and the Monroe County Comprehensive Plan. 3/ See, General Development Corporation v. Florida Land and Water Adjudicatory Commission, 368 So.2d 1323, (Fla. 1st DCA 1979); Transgulf Pipeline v. Board of County Commissioners, 438 So.2d 876 (Fla. 1st DCA 1983); Cabrera and Board of County Commissioners v. Department of Community Affairs and FLAWAC, 10 FLW 556 (Fla. 1st DCA 1985). No presumption of correctness attaches to a local development order timely appealed to the FLAWAC pursuant to Section 380.07, Florida Statutes (1983).

    
    

31. Whether the Proposed Dredging and Filling, and Amending of the Plat of Sugarloaf Shores Section C Extension Should be Subjected to the "Major Development" Review Procedures of the Monroe County Code. DCA's appeal of Resolution Nos. 195-1984 (approving a local dredge and fill permit) and 224-1984 (approving the amended plat of Sugarloaf Shores Section C Extension) is based on a claim that the two resolutions do not comply with land development regulations for Monroe County adopted by county ordinance and incorporated by Chapter 27F-9, Florida Administrative Code. Section 380.0552(2), Florida Statutes, declares Chapter 27F-9 to be the land development regulation for Monroe County. More specifically, with reference to the procedural issue embedded in the two appealed resolutions, DCA contends that the County Commission erred by permitting the dredging and filling and authorizing the plat amendment without first subjecting these activities to the comprehensive "major development" review required by Monroe County Ordinance No. 21-1975, Section 1, codified in Section 6, Article VII, Monroe County Code, and incorporated by reference in Rules 27F-9.06 and 27F-9.17, Florida Administrative Code.

    
    

32. Section 6-222, Monroe County Code, defines "major developments" which are subject to the comprehensive review process established by the ordinance:

    
    

    Major development project: A major develop- ment project shall be any existing and/or activity or use which reflects one or more of the following identified characteristics.

    1. A subdivision as identified in the county plat filing ordinance and which contains five

       1. acres or more land and/or water area.

       2. Any nonresidential activity or use which contains five (5) acres or more land and/or water area.

       3. Any activity or use which the zoning

       official, zoning board, or board of county commissioners deems necessary and appropriate to designate as a major development project based on one or more of the following consid- erations:

       1. The activity or use being considered as an immediate project is in fact part of a total property for which additional parts of the property are anticipated to be submitted as projects within the foreseeable future.

       2. The activity or use reflects suffi- cient scope, scale and size to justify its being designated as a major development project in order to ensure its reasonable implementation, if approved, and its proper review prior to such approval.

       3. The proposed activity or use cannot be adequately and properly reviewed by the county without the benefit of its being

          designated as a major development project due to the nature, complexity and type of devel- opment scheme proposed.

       4. The activity or use could not be adequately provided with, or served by, the necessary public services and/or facilities within the anticipated time frame that would be required if the project was approved in its entirety based on only the required zoning ordinance compliance and use ordinance procedures.

       
       

33. Goals and objectives of this "major development" ordinance include the following:

    
    

    Section 6-223. Purpose, goals and benefits. (a)-(c)

    1. To establish policies and procedures that will facilitate orderly and coordinated

       review of major development activities in order to attain overall desirable land and water utilization and to achieve the most suitable and best use of the natural ecology and environmental resources of the county.

    2. To attain the maximum coordination and integration of major development activities so that they can be conveniently and effi- ciently serviced by community facilities, public streets, educational facilities, recreational areas, public open spaces and natural ecology of the area.

    3. To ensure safe and convenient traffic circulation, pedestrian movement, common open areas, adequate utilities, recreational facilities, and the development of an econom- ically stable and healthful community.

    4. To discourage haphazard, premature, uneconomical or scattered land use and/or

       major development activities.

    5. To ensure that the citizens and taxpayers of the county will not have to bear the costs resulting from haphazard and uncoordinated

       major development activities, or the lack of adequate and essential physical improvements and public services necessary to support and maintain such development.

       
       

34. The language of this ordinance is plain and unambiguous and does not require resort to the rules of statutory construction. 4/ The dredging and filling activity authorized by Resolution No. 195-1984, entails excavation of over five acres of land/or water area and the deposition of fill over the remainder of the 40-acre development. The boat basin is approximately 6 acres. This earth-moving activity is clearly nonresidential in character. Consequently, the dredging and filling activity authorized by Resolution 195- 1984, is a "major development" as defined by Section 6-222(b) of the Monroe County Code. By not submitting the dredging and filling activity to "major development" review prior to its granting of the permit, the County Commission did not follow the governing land development regulation.

    
    

35. Further, the proposed amendment of the existing plat of Sugarloaf Shores Section C Extension is a "major development" project as defined by Section 6-222(1). The amended plat, as approved by Resolution No. 224-1984, creates a subdivision (as identified in the county plat filing ordinance) 5/ which contains five acres or more of land and/or water area. Thus Resolution No. 224-1984, is inconsistent with the governing land development regulations since it approves the amended plat without first requiring "major development" review.

    
    

36. The DCA's contention that the Sugarloaf Shores Section C Extension project (including the proposed dredging and filling and plat amendment) is a "major development" within the meaning of paragraph (7) a., b., c., and d. of the ordinance, infra., is rejected. Paragraph (7) gives zoning officials, the zoning board, and the County Commission the discretionary power to designate any activity or use a "major development" based on consideration of one or more specified factors. By incorporating this ordinance in Chapter 27F, Florida Administrative Code, the FLAWAC affirms and is bound by this grant of discretionary power to local government officials. In order to reverse or modify the exercise of such discretion, the DCA must show that the County Commission's failure to designate the Section C Extension project a "major development" pursuant to Section 6-222(7), Monroe County Code, is an abuse of discretion or, at the very least, erroneous. The DCA has shown neither. The record lacks evidence sufficient to establish that the dredge and fill activity and plat amendment are parts of a total property for which additional parts are anticipated to be submitted for approval within the foreseeable future, Section 6-222(7)a.; that these two development activities are of sufficient scope, scale, and size to justify designation as "major development" projects in order to ensure reasonable implementation Section 6-222(7)b.; that the two activities cannot be adequately reviewed without "major development" designation due to their nature and complexity, Section 6-222(7)c.; or that these activities cannot be adequately served by necessary public services within the anticipated time frame if the project is approved in its entirety without "major development" review, Section 6-222(7)d., Monroe County Code.

    
    

37. On the contrary, the County Commission's decision not to designate the activities as "major developments" under Section 6-222(7) has a reasonable

basis. No further County Commission approvals of the Section C Extension project--beyond the dredge and fill permit and plat amendment--are anticipated. The granting of the local dredge and fill permit prior to the plat amendment is not "piecemeal" approval, since no dredging and filling can take place without the required plat amendment. (Plat amendment is a condition of the Department of Environmental Regulation dredge and fill permit.) Water and electric service, as well as improved highway access, are available to the project.

Environmental aspects of the project within the jurisdiction of the U.S. Army Corps of Engineers and Department of Environmental Regulation were, presumably, thoroughly considered prior to the granting of federal and state dredge and fill permits. And the revised Section C Extension has fewer lots, and is likely to have less adverse environmental impacts than those which would result if the original plat were implemented.

RECOMMENDATION

Based on the foregoing it is

RECOMMENDED that pursuant to Section 380.07(4), Florida Statutes (1983), the Florida Land and Water Adjudicatory Commission enter an order:

1. Reversing Resolution Nos. 195-1984 and 224-1984, because these resolutions approved development activities prior to their undergoing the "major development" review required by Section 6-222(1) and (6), Monroe County Code, as incorporated by Rules 27F-9.06 and 27F-9.17, Florida Administrative Code;

   
   

2. Declaring the proposed Sugarloaf Shores Section C Extension a "major development" within the meaning of Section 6-222(1) and (6), Monroe County Code, and requiring the two development activities which would create it to undergo "major development" review prior to any approval; and

   
   

3. Declaring that after undergoing the required "major development" review, these development activities would be eligible for approval, but that the disposition of the appeals in the instant cases does not reach the substantive issue of whether the proposed development should ultimately be approved, or disapproved. See, Section 380.08(3), Florida Statutes (1983).

DONE and ORDERED this 21st day of January, 1986, in Tallahassee, Florida.

R. L. CALEEN, JR. Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 21st day of January, 1986.

ENDNOTES

1/ The July 27, 1984 date of transmittal of the resolution was admitted by Lloyd A. Good, Jr., in his Answer dated September 27, 1984.

2/ Chap 120, Florida Statutes, does not provide for "appellate" hearings.

3/ In City of Key West Ordinance Nos. 76-8 and 76-12, No. 76-9 (FLAWAC, Nov. 29, 1977), the first appeal of a local decision in an Area of Critical State Concern, the FLAWAC concluded as a matter of law that the guiding development principles and regulations adopted pursuant thereto are the sole criteria for local development orders. See, State Land-Use Planning and Regulation, Thomas G. Pelham, (1979), p. 131-32.

4/ Rules of construction are used to remove doubt, not create it. State v. Egan, 287 So.2d 1, 4 (Fla. 1973). When the language of a statute is clear, there is no need for construction. See, Biddle v. State Beverage Department, 187 So.2d 65, 67 (Fla. 4th DCA), cert. dism., 194 So.2d 623 (Fla. 1966).

5/ Section 17-6 of the Monroe County Code defines "subdivision" to include:

(1) The division of land into one or more lots, sites, tracts, parcels or however otherwise designated, for the purpose of transfer of ownership, leasing or building development.

(3) The subdivision of land heretofore divided and platted into lots, sites, parcels, or however otherwise designated.

APPENDIX TO RECOMMENDED ORDER, CASE NOS. 84-3307 & 84-3998

1. RULINGS ON THE DCA'S PROPOSED FINDINGS

   
   

   1-18. Approved and incorporated in substance by this Recommended Order.

   
   

2. RULINGS ON LLOYD GOOD'S PROPOSED FINDINGS (Adopted by the Monroe County Board of County Commissioners as its own).

   
   

   1. Approved.

   2. Rejected as legally irrelevant.

   3. Rejected as irrelevant since transmittal date of July 27, 1984 was admitted in Lloyd Good's Answer.

   4. Rejected as irrelevant.

   5. Rejected as irrelevant since date of transmittal admitted Lloyd Good's Answer.

6-10. Rejected as proposed conclusions of law, not proposed findings of fact.

1. Rejected as irrelevant.

2. Approved, except for plat book and page number, which are incorrect. See, Exhibit 1.

3. Approved, except the general directional indicators are rejected as inexact.

4. Approved and incorporated by reference. 15-18. Approved.

1. Rejected as an overstatement not supported by the evidence. It was only established that, in Mr. Good's view, obtaining U.S. Army Corps of Engineers' approval for the deadend canals (as originally platted) was not feasible.

2. Approved, except the reference to the cost of the permit processing is rejected as not supported by the evidence.

3. Approved, except the descriptor of "superior" federal and state jurisdiction is rejected as not supported by the evidence.

4. Approved, but that portion concerning forwarding of the application to the DCA is rejected as irrelevant.

5. Rejected as legally irrelevant.

6. Approved, except for the descriptor "and a great deal of mitigation," which is rejected as vague and not supported by the evidence.

7. Approved, with the insertion of a dash between the words "plans. To" on line three, and the words, "PUD and" on line four, for clarity.

8. Approved, except the descriptor "all appropriate" is rejected as vague and unsupported by the evidence.

27-30. Approved.

31. Approved, except for last sentence which is rejected as irrelevant. 32-34. Approved.

1. Approved, except the descriptor, "fully," on line 2 is rejected as vague. The County Commission did not set forth its reasoning process in the resolution.

2. Approved.

3. Rejected as irrelevant, and the "September 27, 1984" date on line five should be corrected to read September 10, 1984.

4. Approved, except the descriptor, "great deal of" on line four is rejected as vague.

39-40. Approved.

1. Approved, except should be modified to read (line 3): "eliminates all deadend canals but one," since the revised plat continues to show one deadend canal. See, Exhibit 21.

2. Approved.

3. Approved.

4. Rejected, as unsupported by the evidence.

45-54. Rejected as proposed conclusions of law, not proposed findings of fact.

COPIES FURNISHED:

Sarah Nall, Esquire

2571 Executive Center Circle, East Tallahassee, Florida 32301

Ray Allen, Esquire 618 Whitehead Street

Key West, Florida 33040

Susan Vernon, Esquire

310 Fleming Street

Key West, Florida 33040

Docket for Case No: 84-003307

Orders for Case No: 84-003307