STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF COMMUNITY AFFAIRS, ) REGULATION, DIVISION OF )
)
Petitioner, )
)
vs. ) CASE NO. 89-5853GM
) HOMEOWNERS, OCEAN REEF CLUB ) KEY LARGO FOUNDATION, AND )
MONROE COUNTY, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on April 16-18, 1990, in Homestead, Florida.
APPEARANCES
For Petitioner: A. Kathryn Funchess Department of Karen A. Brodeen
Community Affairs: Department of Community Affairs
2740 Centerview Drive
Tallahassee, Florida 32399-2100
For Respondent: William J. Roberts, Esquire Homeowners, Ocean Tom R. Moore, Esquire
Reef Club, and Key Roberts & Egan, P.A. Largo Foundation: 217 South Adams Street
Tallahassee, Florida 32301
For Respondent
Monroe County: No appearance
STATEMENT OF THE ISSUES
At issue in this proceeding is whether certain development orders issued by Monroe County to Homeowners, Ocean Reef Club and Key Largo Foundation (Applicants) for a project that would ultimately result in the construction of a flushing canal in the Ocean Reef Club development on north Key Largo are consistent with the Monroe County comprehensive plan and land development regulations.
PRELIMINARY STATEMENT
This is an appeal, pursuant to S ection 380.07, Florida Statutes, to the Florida Land and Water Adjudicatory Commission from development orders (permits) of Monroe County which granted the Applicants' request for a building permit,
excavation permit, and land clearing permit to construct a flushing canal within a platted subdivision of the Ocean Reef Club development on Key Largo, Monroe County, Florida. As permitted, the project is designed to improve the water quality in an area known as Dispatch Creek, and consists of two phases. Phase I contemplates the installation and operation of an aeration system in a portion of Dispatch Creek, as well as a water quality monitoring program, until such time as the water quality of Dispatch Creek comports with that of adjacent Class III waters. Should the Applicants be successful in Phase I, they would then be authorized to proceed with Phase II, which would allow the construction of a flushing canal from the landward terminus of Dispatch Creek to the Atlantic Ocean. If constructed, the canal would measure 6 feet deep at mean low water,
20 feet wide and approximately 3,000 feet long, and would terminate within the boundaries of John Pennekamp Coral Reef State Park. At the point where the canal would join with Dispatch Creek, one-way tidal actuated flap gates would be installed, which would permit waters from the Atlantic to enter Dispatch Creek on a rising tide, but would preclude an exchange of waters from Dispatch Creek on a falling tide. Through such design, the Applicants contend that sufficient mix and force will be exerted within the waters of Dispatch Creek to maintain Class III water standards by natural circulation.
On appeal, petitioner, Department of Community Affairs (Department), contended that the subject project was inconsistent with the Monroe County comprehensive plan and land development regulations. In its petition, the Department also contended that statewide or regional interests within the permitting scope of Chapters 373 and 403, Florida Statutes, may be adversely affected by the subject project; however, apart from such conclusionary statement, the Department did not specifically identify any such issues in its notice of appeal or petition, in its presentation at the formal hearing, or in its post hearing submittal. Rather, the Department limited its challenge to the project based on its contention that the project was inconsistent with the Monroe County comprehensive plan and land development regulations.
At hearing, Applicants called as witnesses: Robert Schwing; Malcolm Seligman; Charles Broeman; Beverly Birkitt, accepted as an expert on water quality and aquatic ecology as applied to Florida in Florida's DER permitting process; Donald Craig, accepted as an expert in land planning with special emphasis on the Monroe County comprehensive plan and land development regulations; Jack A. Bateman, accepted as an expert on water quality and water quality monitoring; Robert Pope, accepted as expert in plant identification; Kenneth Echternacht, accepted as an expert in hydrographics; George Beragona, accepted as an expert in the DER permitting process as it relates to hydraulics, hydrology and hydrographics; Earl R. Rich, accepted as an expert on ecology, with special emphasis on the ecology of north Key Largo; Alina Szmant, accepted as an expert in coral reef ecology; and Samuel Snedaker, accepted as an expert on mangroves and the water quality relationship to the mangrove community.
Applicants's exhibits 1-25 were received into evidence.
The Department called as witnesses: Maria Abadal, accepted as an expert in land use planning and administration of the Florida Keys comprehensive plan and land development regulations; Lawrence v. Olmney, accepted as an expert in wetlands biology and Florida Keys habitat; Rod Maddox, accepted as an expert in land surveying; Peter Kalla, accepted as an expert in the ecology of the Key Largo woodrat and other endangered species of the Florida Keys; Jeanne Parks, accepted as an expert in the ecology of the Key Largo woodrat and identification of endangered and threatened plant species of the upper Florida Keys; Carl Nielsen; George Jones; Rinata Skinner, accepted as an expert in biological oceanography and water quality monitoring; Robert Smith, accepted as an expert
in Florida Keys biology and habitat identification and evaluation; Walter Jaap, accepted as an expert in Florida coral reef ecology; Brian LaPointe, accepted as an expert on water quality, marine plant physiology and ecology of the! Florida Keys, and couplings between ground waters and surface waters; and, John Wang, accepted as an expert in hydrodynamics and coastal engineering. The Department's exhibits 1-13 were received into evidence. Testifying on behalf of the public, during the public testimony phase of the proceedings, were Lloyd Miller, Mike Chenoweth, and Pamela Pierce. Public comment exhibits 1 and 2 were marked for identification, but not received into evidence.
The transcript of hearing was filed May 7, 1990, and the parties were granted leave at their request until June 13, 1990, to file proposed findings of fact. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the date the transcript was filed. Rule 221-6.031, Florida Administrative Code. The parties proposed findings have been addressed in the appendix to this recommended order.
By order of September 19, 1990, the parties' stipulation to supplement the record, dated July 30, 1990, was approved, and marked as Hearing Officer exhibit 1.
FINDINGS OF FACT
The parties
Petitioner, Department of Community Affairs (Department), is the state land planning agency charged with the responsibility of administering and enforcing the provisions of Chapter 380, Florida Statutes, and all rules promulgated thereunder. Section 380.031(18) and 380.032(1), Florida Statues.
Respondent, Monroe County, is a local government within the Florida Keys area of Critical State Concern designated by Section 380.0552, Florida Statutes, and is responsible for the implementation of, and the issuance of development orders that are consistent with, the Monroe County comprehensive plan and land development regulations, as approved and adopted in Chapters 9J-14 and 28-20, Florida Administrative Code.
Respondents, Homeowners, Ocean Reef Club and Key Largo Foundation (Applicants), are the owners of real property in the Ocean Reef and Harbour Course subdivisions, Key Largo, Monroe County, Florida; properties that are located within that part of Monroe County designated as an area of Critical State Concern. The Applicants have sought the development orders (permits) at issue in this proceeding incident to their 8-year quest to achieve regulatory approval to initiate a project that would restore the water quality of Dispatch Creek to Class III water standards.
Background
The site of the proposed project, the present terminus of Dispatch Creek, is located within the Ocean Reef Club development on north Key Largo. That development is bordered on the east by the Atlantic Ocean and John Pennekamp Coral Reef State Park, on the north by Biscayne National Park, and on the west by the Biscayne Bay/Card Sound Aquatic Preserve. Currently, the development at the Ocean Reef Club includes a number of canals and boat basins, an airstrip; three 18-hole golf courses, a 174-slip marina capable of docking vessels in excess of 100 feet, and extensive residential and-commercial uses.
In the mid-1970's, Dispatch Creek was a natural, albeit shallow, waterbody that was able to maintain, through natural tidal actions, water quality standards. However, in 1977 Ocean Reef Club, under permits issued by the Department of Environmental Regulation (DER) in the mid-1970's excavated the creek to new depths to create a navigable channel and extended its length beyond its natural contours. When completed, the creek was converted from a natural waterbody, that could maintain water quality standards through natural tidal action, into a dead-end system, that could not maintain such standards through natural processes along the course of its extended terminus. 1/
Over time, the water quality of Dispatch Creek from its approximate midpoint to its dead-end terminus has steadily declined. The cause of this decline is reasonably attributable to the biochemical oxygen demand placed on the creek by the continuous input of detritus from mangroves, which boarder the creek on the east and to a lesser extent on the west, and the length of the channel, coupled with the dead-end basin surrounding an island, which has assured the continued decline of water quality due to poor water circulation. As a consequence, the creek, as a habitat, has been altered from an oxygen rich system supportive of aerobic life to an oxygen poor system supportive of anaerobic life. This has evidenced itself through algae blooms, the intermittent emission of hydrogen sulfide gas, and a change in water clarity to that of a "coffee au lait" color. Currently, a significant portion of Dispatch Creek is devoid of aerobic life, and unless its condition is reversed it could not support aerobic marine organisms in the future. /2
Today, conditions in portions of Dispatch Creek fail to meet DER standards. DER regulations establish the dissolved oxygen (DO) standard to be not less than five milligrams per liter in a 24-hour period, and never less that four milligrams per liter. The DO Standard is currently violated in Dispatch Creek beginning at the mid point of the creek to its terminus. At its terminus, DO levels are chronically below one milligram per liter. Additionally, DER nutrient standards prohibit the alteration of nutrient concentrations of a body of water so as to cause an imbalance in natural populations of aquatic flora or fauna. Here, the high nutrient levels of Dispatch Creek resulting from the mangrove detritus and lack of circulation has, as heretofore noted, caused the natural aquatic flora and fauna to be replaced by anaerobic life.
As a consequence of the changes in water quality that had occurred in Dispatch Creeks the Applicants have, over the course of the past eight years, sought approval from various regulatory authorities, including DER and Monroe County, of a plan to improve the water quality in Dispatch Creek. Such approval has been garnered from DER, and Monroe County's approval is at issue in this proceeding. The DER permit
On February 7, 1986, the Applicants received approval from DER for a permit to construct a flushing canal from the terminus of Dispatch Creek to the Atlantic Ocean. That permit authorized the Applicants:
To construct a "flushing canal" between the dead end of Dispatch Creek Waterway and the Atlantic Ocean by: excavating approximately 13,000 cubic yards to create a canal approximately 3000 ft. long by 20 ft. wide with a bottom elevation of 6 ft. Mean Low Water; placing three 6 ft. by 6 ft. by 380 ft. box culverts in the canal alignment at the basin end; placing tidal actuated flap
gates on the basin end of the culverts in a manner which will allow the basin to intake water from the flushing canal on incoming tides while preventing discharge into the flushing canal on outgoing tides; placing 5 pilings across the canal at it's juncture with the Atlantic Ocean to prevent navigation in the canal; and creating a 12,900 sq. ft. mangrove mitigation area by excavating approximately 1,450 cu. yds. from a spoil area to create an area with an elevation of
+1.4 Ft. NGVD which will be planted with red mangroves.
DER was, in evaluating the application pending before it, charged with the duty to apply, enter alia, the criteria of the 1984 Warren Henderson Wetlands Act, Section 403.918(2), Florida Statutes, as well as Chapters 17-3 and 17-4, Florida Administrative Code. Based on DER's decision to issue its permit, it is reasonable to conclude that DER, within its permitting jurisdiction, concluded that construction of the proposed circulation channel would not lower ambient water quality, and would not significantly degrade Outstanding Florida Waters (OFW), including those of John Pennekamp Coral Reef State Park. As heretofore noted, the Department does not contend that the subject project will violate any specific criteria within DER's Chapter 403, Florida Statutes, permitting jurisdiction.
The Monroe County permits
On July 19, 1989, Monroe County issued to the Applicants the building permit, excavation permit, and land clearing permit (development orders), each numbered 8930001680, at issue in these proceedings. As permitted, the project proposed by the Applicants is designed to improve the water quality of Dispatch Creek, particularly in the vicinity of its dead-end terminus, and consists of two phases. Phase I contemplates the installation and operation of an aeration system for at least one year, which will extend from the dead-end terminus of Dispatch Creek toward its midpoint, as well as a water quality monitoring program, until such time as the water quality of the entire creek comports with that of adjacent Class III waters. Should the Applicants be successful in Phase I, they would then be authorized to proceed with Phase II, which would allow the construction of the flushing canal contemplated by the DER permit.
As approved by Monroe County, Phase I would consist of the installation of an aeration system around the island, located at the terminus of Dispatch Creek, and in the canal, as well as the suction dredging of loose sediments in the upper reaches of Dispatch Creek. The system would consist of fifteen microporus diffuser/aerators producing approximately 5 CFM per unit, and would be anchored near the bottom to maximize the introduction of dissolved oxygen into the anaerobic water and to optimize water movement. Operation of such system, coupled with the introduction of aerobic bacteria, will shortly reduce the concentration of hydrogen sulfide dissolved in the water, reduce the concentration of ionized sulfides in solution, retard the growth and propagation of anaerobics in the benthic layer, and activate the growth and propagation of aerobics in all strata. As a consequence, over time, water clarity will improve, which will allow the penetration of sunlight into the benthos. This illumination will spawn the growth of photosynthetic bacteria, as well as phytoplankton, which will aid in the continued aerobic cleansing of the water and bottom sediments. In all, installation and operation of the aeration
system, which has proven successful at other locations, should, over time, restore the waters of Dispatch Creek to Class III standards, without any adverse impacts to adjacent waters or the park.
While operation of the aeration system will, over time, restore the waters of Dispatch Creek to Class III standards, the perpetual maintenance of such system would be energy intensive and expensive. for this reason, the Applicants have proposed the Phase II canal, which would maintain, through natural tidal processes, water quality standards within the creek.
The canal permitted by Monroe County under Phase II is consistent in all respects with the DER permit except the Monroe County permits require that the canal be sited 20 feet landward of the alignment permitted-by DER into previously scarified uplands. So aligned, the canal would begin at the landward terminus of Dispatch Creeks run easterly within the rear lot lines of at least
15 lots within Harbour Course South subdivision, a platted subdivision, pass through a fringe of red and black mangroves fronting the ocean, and terminate approximately 100 feet seaward of the mean high water line (MHWL) within the boundaries of John Pennekamp State Park. At the point where the canal would join with Dispatch Creek, three 6 foot by 6 foot by 380 foot box culverts would!! be installed with one-way tidal activated flap gates, which would permit waters from the Atlantic to enter Dispatch Creek on a rising tide, but would preclude an exchange of waters from Dispatch Creek on a falling tide. Through such design, sufficient mix and force will be exerted within the waters of Dispatch Creek to maintain Class III water quality standards by natural circulation, and to return the habitat offered by the creek to an oxygen rich system capable of supporting aerobic life.
While construction of the canal would be beneficial, by restoring the waters: of Dispatch Creek to Class III standards, it is not without cost to the environment. As aligned, the canal, although predominately within previously cleared or scarified uplands, will require excavation through several types of habitat that are either undisturbed or reestablished, including undisturbed buttonwood association, salt marsh, hardwood hammock, transitional habitat, mangroves and submerged lands, and will require the removal of approximately
one-tenth of an acre of red and black mangroves, a species of special concern, as well as a number of mahogany trees, twisted air plants, prickly pear cactus and barpar cactus, which are threatened species. Its construction would likewise sever the uplands from the adjacent transitional and wetland areas that traditionally buffer, insulate and protect nearshore waters from runoff from upland areas. Construction of the canal should not, however, adversely impact any threatened or endangered animal species since the proposed alignment is currently a poor habitat for threatened or endangered species, such as the Key Largo woodrat, that may reside in the area, and there is currently no threatened or endangered animal species inhabiting the site. This is not, however, to suggest that the site would not support such species in the future, provided that existing habitat is permitted to continue its progress towards reestablishment.
To mitigate the loss of habitat types, the Monroe County permit provides:
The agreed mitigation for the loss of all rare and/or endangered habitat types located within the area impacted by the dredging shall be carried out prior to initiation of the dredge project. This shall be based on
existing vegetation surveys and an assessment of species currently located within the confines of the project area. Prior to initiation of any dredge activity, a formal inventory of the project site shall be made and a one-to-one replacement program (baked on species rarity or level of endangerment) shall be established and agreed upon. Such an agreement will include defining an appropriate site and the number and type of trees, as well as a maintenance plan for the agreed upon area.
Additionally, the DER permit addresses the loss of mangroves, by requiring the establishment of a 12,900 square foot mangrove mitigation area. Under the facts of this case, the mitigation proposed would, assuming the propriety of such development under the Monroe County comprehensive plan and land development regulations, address the loss of habitat types occasioned by development of the proposed canal.
To assure that water quality within Dispatch Creek comports with Class III standards before the canal is dug, and that the creek maintains such standards following construction, the Monroe County permits establish a water quality monitoring program. During the first year, samples will be taken and tests performed on a weekly basis for pH, DO, turbidity, Secchi Disc, temperature, and sulfite; on a biweekly basis for total bacterial count and composition; on a monthly basis for total nitrogen and phosphate; on a quarterly basis for: macro-invertebrates and macrophytes; and on a semiannual basis for heavy metals and pesticides. During the second yearn biweekly testing will be done for DO, temperature, hydrogen sulfide, turbidity and Secchi Disc; quarterly testing for total nitrogen and phosphate, macro- invertebrates, and macrophytes; and, annual testing for heavy metals and pesticides. After the second year, monthly tests will be done for DO, temperature, hydrogen sulfide, turbidity, and Secci Disc; quarterly tests for total nitrogen and phosphate, as well as macro- invertebrates; and annual tests for heavy metals and pesticides. Should the water quality of the creek fail to maintain Class III standards following construction of the canal, the Monroe County permit contains the following special condition:
The water quality monitoring program shall be maintained to assess the quality of water in Dispatch Creek subsequent to the dredge project completion. If at any time the water quality fails to meet the standards established by this permit, the one way flushing valve shall be closed by the applicant, and in applicant's failure to do so, by the County. The applicant assumes all costs of closing said valve, whether closed by applicant or the County. Aeration, aid/or other means at the discretion of the applicant, shall be utilized to reestablish quality. The valve shall not be reopened until the water quality standard is met.
The purpose of the foregoing condition, as well as the requirement that the waters of Dispatch Creek meet Class III standards before the canal can
be dug, is to assure that operation of the canal will not lower ambient water quality within the Outstanding Florida Waters of John Pennekamp Coral Reef State Park, and thereby protect the park from any adverse impacts associated with the improved circulation of the creek.
John Pennekamp Coral Reef State Park is a unique and world-renowned resource, attracting millions of visitors each year. At least fifty percent of the activities engaged in by visitors to the park are water-related, including fishing, observational diving and boating. Any degradation of the ambient quality of those waters would be contrary to DER's rules promulgated under Chapter 403, Florida Statutes, and could adversely impact the natural biota of the park, with a corresponding reduction in the number of visitors to the park and revenues contributed by those visitors to the local economy.
Here, the proof demonstrates, consistent with DER's prior permitting, that the subject project, built as proposed, would not lower the ambient water quality of adjacent waters through the discharge of pollutants, and therefore would not adversely affect the park. If anything, the Monroe County permits, with one exception to be discussed infra, offer stronger assurances than the DER permit that adverse impacts will not occur. Notably, under such permits the Applicants must first bring the water quality of the Creek up to Class III standards before the canal can be dug. If the Applicants are ssuccessful at that phase of the project, there will not be excessive nutrient loading within the creek, and the detritus that may thereafter be removed from the creek by improved circulation would not adversely affect water quality or the park. Currently, there are no heavy metals in the sediments or water column of the creek which are at levels above those found naturally, and no pesticides or toxic organics. In sum, there is no basis to conclude, based on the record, that-there is any substance within the waters or sediments of Dispatch Creek that would, upon the waters achieving Class III standards, lower the amient quality of adjacent waters or adversely impact the park. /4
Ostensibly, as an added measure of protection to adjacent waters, the Monroe County permits contain a condition, with which the Applicants concur, that should the waters of Dispatch Creek fail to maintain Class III standards following construction of the canal, the one-way tidal actuated flap gates will be closed. That condition, a noted supra, provides:
If at any time the water quality [of the creek] fails to meet the standards established by this permit, the one way flushing valve shall be closed by the
applicant, and in the applicant's failure to do so, by the County. The applicant assumes all costs of closing by applicant or the County. Aeration, and/or other means at the discretion of the applicant, shall be utilized to reestablish quality. The valve shall not be reopened until the water quality standards is met.
The foregoing condition presumes to address the possibility that should the proposed project fail to function as expected by the experts, as did the current Dispatch Creek fail to function as expected, that such failure will no result in an adverse impact to adjacent waters or the park. In this regard, it is worthy of note that DER's approval of the extension of Dispatch Creek to create a 7,200 foot dead-end canal in the mid-flush the pollutants from the
canal into the park. The Applicants presented persuasive testimony, however, through their 1970's was, based on current knowledge, an error, and that today no dead-end system would be approved in excess of soon feet. Monroe County's condition, while preventing the discharge of degraded waters from Dispatch Creek to the park upon closure of the one way flushing valves, fails to address, however, the adverse impacts that could result from its closure. By closure of the valves, the flushing canal would be instantly converted into a 3,000-foot dead-end canal, and would suffer the same water quality problems as similar systems, with probable adverse effects to adjacent waters and the park.
Accordingly, so as not to compound the existing error occasion by the extension of Dispatch Creek in the mid-1970's, prudence would dictate a proviso that, if the valves are shut, appropriate monitoring will occur within the waters of the flushing canal to detect any significant degradation of water quality, and that should such degradation pose a threat to adjacent waters or the park, that the Applicants be required, at their expense, to restore promptly the water quality within the flushing canal to Class III standards or restore the area to its present condition. Consistency of the proposed project with the Monroe County comprehensive plan and land development regulations
Lack of plat approval
As heretofore noted, the proposed canal would begin at the landward terminus of Dispatch Creek and run easterly within the rear lot lines of at least 15 lots in Harbour Course South subdivision, a platted subdivision, before it passed through fringing mangroves and terminated in the Atlantic Ocean. Currently, the final recorded plats of Harbour Course South subdivision do not reflect the proposed canal, as mandated by Section 177.091(15), Florida Statutes, and the Applicants have not sought to amend the plat to include the proposed canal.
Pertinent to this case, the Monroe County Code (MCC), the land development regulations, /5 provides:
Sec. 9.5-1. Purpose.
It is the purpose of this chapter, the Land Development Regulations, to establish the standards, regulations, and procedures for review and approval of all proposed development of property in unincorporated
Monroe County, and to provide a development review process what will be comprehensive, consistent and efficient in the implementation of the goals, policies and standards of the comprehensive plan . . .
Sec. 9.5-2. Applicability.
General Applicability: The provisions of this chapter shall apply to all land in unincorporated Monroe County. All development of whatever type and character, whether permitted as of right or as a conditional use, shall comply with the development standards and the environmental design criteria set forth in article VII hereof. No development shall be undertaken without prior approval and issuance of a
development permit under the provisions of this chapter and other applicable laws and regulations.
Sec. 9.5-81. Plat approval and recording required.
* * *
No building permit, 6/ except for single family detached dwellings and accessory uses thereto, shall be issued for the construction of any building, structure or improvement unless a final plat has been approved in accordance with the provisions of this division and recorded for the lot on which
the construction is proposed.
* * *
(e) If a plat has been previously approved and recorded, technical or minor changes to the plat may be approved by the director of planning. All other changes shall be considered in accordance with the provisions of this Division.
Sec. 9.5-94. Amendment of a recorded final plat.
An amendment of a recorded final plat or portion thereof shall be accomplished in the same manner as for approval of the plat.
Here, the subject permits were issued contrary to the foregoing provisions of the MCC because there was no final plat of record approving the canal as to each affected lot. While the Applicants offered proof, if credited, that the existing plat could be amended to include the canal as a "minor change" upon approval of the Director of Planning, it is noteworthy that no such approval has been obtained. More importantly, it is found that a change in the existing plat to include the canal would not constitute a "technical or minor change," and that formal amendment of the plat would be required. 7/
The provision of the MCC dealing with plat approval, provide a comprehensive scheme to assure, among other things, than the proposed plat is consistent with the purposes, goals and objectives of the comprehensive plan, the development regulations, and state laws, as well as affording an opportunity for public input. Of import here, the MCCs provide:
Sec. 9.5-82. General Standards for Plat Approval.
No preliminary or final plat shall be approved unless the plat is consistant with the purposes, goals and objectives of this plan, this chapter, applicable provisions of state law, the provisions governing the development of land set forth in article VII, and the procedures set forth in this article. Sec. 9.5-83. Preliminary Plat Approval.
Generally. All applicants for approval of a plat involving five (5) or more lots shall submit a preliminary plat for approval in accordance with the provisions of this section.
Application. An application for preliminary approval shall be submitted to the development review coordinator in accordance with the provisions of this section, accompanied by a nonrefundable fee as established from time to time by the board of county commissioners. The application shall contain the information required on a form provided by the director of planning.
Staff Review. After a determination that the application for preliminary plat approval is complete under the provisions of section 9.5-44, the development review coordinator shall submit the application to
the development review committee, which shall prepare a recommendation and report for the commission.
Public Hearing and Action by the
Planning Commission. The planning commission shall conduct a public hearing on an application for preliminary plat approval of a subdivision involving five (5) or more lots, in accordance with the requirements of sections 9.5-46 and 9.5-47. The commission shall review such applications, the recommendation of the development review committee, and the testimony at the public hearing, and shall recommend granting preliminary plat approval, granting approval subject to specified conditions, or denying the application at its next meeting following submittal of the report and recommendation of the development review committee.
Effect of Approval of Preliminary
Plat. Approval of a preliminary plat shall not constitute approval of a final plat or permission to proceed with development. Such approval shall constitute only authorization to proceed with the preparation of such documents as are required by the director of planning for a final plat.
Sec. 9.5-84. Final Plat Approval.
Generally. All applicants for approval of a plat shall submit a final plat for approval in accordance With the provisions of this section.
Application. It shall be the responsibility of the developer to complete, have in final form, and submit to the development review coordinator for final processing the final plat, along with all final construction plans, required documents, exhibits, legal instruments to guarantee performance, certificates properly executed by all required agencies and parties as required in this article, and the recording fee, and any other documents or information
as are required by the director of planning. After receipt of a complete application for final plat approval, as determined in accordance with section 9.5-44,
development review coordinator shall submit the application and accompanying documents to the development review committee.
Review and action by Development Review Committee.
The development review committee shall review all applications for final plat approval.
b. For a final plat for subdivision involving five (5) or more lots, if the plat conforms to the approved preliminary plate and the substantive and procedural requirements of this chapter, at its next regular meeting or as soon as practical after receipt of a complete application, the development reviews committee shall recommend to the planning commission approval of the final plat or approval with conditions. If the committee finds that the plant does not substantially conform to the approved preliminary plat or the substantive and procedural requirements of these regulations, the committee shall recommend denial, specifying the area(s) of nonconformity.
Review and Action by the Planning Commission. The planning commission shall review all applications far final plat approval involving five (5) or more lots and the recommendation of the development review committee. If the commission finds that the final plat conforms to the approved preliminary plat and the substantive and procedural requirements of this chapter, the commission shall recommend to the board of county commissioners approval of the final plat, or approval with specified conditions, and shall submit a report and written findings in accordance with section 9.5-47.
Public Hearing by the Board of Country Commissioners. The board off county commissioners shall conduct a public hearing on all applications for final plat approval involving five (5) or more lots in accordance with the procedures of section 9.5-46C.
Action by the Board of County Commissioners. For proposed subdivisions involving five (5) or more lots the board of county commissioners shall review the application, the recommendations of the development review committee and the planning
commission, and the testimony at the public hearing, and shall grant final plat approval, grant approval subject to specified conditions, or deny the application, in accordance with the provisions of section
9.5-47.
Sec. 9.5-90.Maintenance of Private Improvements.
If any plat of subdivision contains
streets, easements, or other improvements to be retained for private use, the final plat for recordation shall indicate to the satisfaction of the director of planning and the county attorney the method or entity by which maintenance of the private improvements shall be performed.
As a consequence of Monroe County's failure to comply with the provisions of its regulations which require final plat approval before a building permit may be issued, there has been no review by the Development Review Committee, no public hearing conducted by the Planning Commission, no recommendation of the Planning Commission, and no public hearing before the County Commissioners on the propriety of amending the subject plat to permit the proposed construction, or a resolution, through the plat approval process, as to whether the proposed canal is consistent with, inter alia, the purposes, goals, and objectives of the Monroe County comprehensive plan, as mandated by section 9.5-82(a), MCC. As importantly, where, as here, the proposed canal is to be retained for private use, there is no indication on the recorded plat, 4s required by MCC 9.5-90, of the method or entity by which maintenance of the canal shall be performed. Notably, the property through which the canal will be constructed is not owned by any of the Applicants but, rather, by Driscoll Properties , with whom the Applicants state they have an agreement to permit construction. 8/
Open space requirements and environmental design criteria
Pertinent to this case, the MCC further provides: Sec. 9.5-3. Rules of construction.
In the construction of the language of this chapter, the rules set out in this section shall be observed unless such
construction would be inconsistent with the manifest intent of the board of commissioners as expressed in the Monroe County Comprehensive Plan or an element or
portion thereof, adopted pursuant to chapters
163 and 380, Florida Statutes (1985). The rules of construction and definitions set out herein shall not be applied to any section of these regulations which shall contain any express provisions excluding such construction, or where the subject matter or context of such section is repugnant thereto.
(a) Generally: All provisions, term , phrases and expressions contained in this chapter shall be liberally construed in order
that the true intent and meaning of the
board of county commissioners may be fully carried out. Terms used in this chapter, unless otherwise specially provided, shall have the meanings prescribed by the statutes of this state for the same terms.
In the interpretation and application of any provision of this chapter, it shall be held to be the minimum requirement adopted for the promotion of the public health, safety, comfort, convenience and general welfare. Where any provision of this chapter imposes greater restrictions upon the subject matter than a general provision imposed by the Monroe County Code or another provision of this chapter, the provision imposing the greater restriction or regulation shall be deemed to be controlling . . (Emphasis added)
Sec. 9-804 (MCLDR) Open space requirements.
No land shall be developed, used or occupied such that the amount of open space on the parcel proposed for development is less than the following ratios, nor shall open space be cleared or otherwise disturbed including ground cover, understory, mid-story, and canopy vegetation. All such required areas shall be maintained in their natural condition. The amount of open space required on any parcel for development shall be determined according to each land type and no development activity within any individual land type shall exceed the open space ratio for that land type.
Land Type on Existing Open Space Conditions Map Ratio
Open Waters | 1.00 |
Mangrove and Freshwater | 1.00 |
Wetlands | |
Salt Marsh and Buttonwood | .80 |
Associations | .85 |
High Hammock (High Quality) | .80 |
High Hammock (Moderate Quality) | .60 |
High Hammock (Low Quality) | . 4 |
Low Hammock (High Quality) | .80 |
Low Hammock (Moderate Quality) | .60 |
Low Hammock (Low Quality) | . 4 |
Palm Hammock | .90 |
Cactus Hammock | .90 |
Pinelands (High Quality) | .80 |
Pinelands (Low Quality) | .60 |
Beach Berm | .90 |
Disturbed . 2
Disturbed with Hammock . 2 Disturbed with Salt Marsh
and Buttonwood . 2
Disturbed Beach/Berm . 2
Disturbed with Exotics . 2 Disturbed with Slash Pines . 2 Offshore Islands . 9 (Emphasis added)
Sec. 9.5-345. Environmental design criteria.
No land, as designated on the
existing conditions map and analyzed in accordance with the standards in sections 9.5-339 and 9.5-340, shall be developed, used ~re occupied except in accordance with the following criteria unless the county biologist recommends an authorized deviation from the following criteria in order to better serve the purpose and objectives of the plan and the director of planning or planning commission approves the recommendation as a minor or major conditional use. No recommendation for an authorized deviation from these environmental design criteria shall be made unless the county biologist makes written findings of fact and conclusions of biological opinion which substantiate the need and/or benefits to be derived from the authorized deviation.
(m) Mangroves and Submerged Lands:
Except as provided in subsection (3), only piers, docks, utility pilings and walkways shall be permitted on submerged lands and mangroves;
All structures on any submerged lands and mangroves shall be designed, located and constructed such that:
All structures shall be constructed on pilings or other supports;
Bulkheads and seawall shall be permitted only to stabilize disturbed shorelines or to replace deteriorated existing
bulkheads and seawalls;
No structure shall be located on submerged land which is vegetated with sea grasses except as is necessary to reach waters at least four (4) feet below mean low level for docking facilities. (Emphasis added)
From the foregoing regulations it is apparent that Monroe County has accorded mangroves the highest of protections. The regulations mandate a 100 percent open space ratio in such areas, and preclude any clearing or other
disturbance of such areas. The only exception provided by the regulators, absent approval of an application for a minor or major conditional use, is for the construction of piers, docks, utility pilings and walkways, and then only when such structures are constructed on pilings or other supports to minimize their impact. Here, the proposed development, "permitted as of right" and not as a minor or major conditional use, fails to comply with the Monroe County land development regulations because it will result in the elimination of an existing mangrove community.
In addition to the environmental design criteria established for mangroves by section 9.5-345, discussed supra, that section likewise establishes-specific performance standards for the development of any parcel (lot) depending on the habitat type, and where mixed habitat is encountered, requires that development occur on the least sensitive portions of the parcel. Here, while the Applicants did address the habitat types encountered along the canal alignment, the record fails to address the habitat types encountered on each of the platted lots through which the canal will run. Consequently, the
Applicants failed to demonstrate that development of those lots, by construction of a canal within their rear boundary, would be consistent with the open space ratios mandated by section 9-804, MCLDR, or the environmental design criteria mandated by section 9.5-345, MCC. C. The Monroe County land development regulations further and implement the Monroe County comprehensive plan.
The foregoing land development regulations were adopted by Monroe County, as well as approved by the Department and adopted by the Administrations Commission, to further and implement the standards, objectives and policies of the Monroe County comprehensive plan. That plan evidences a strong commitment to the protection, maintenance, and improvement of the Florida Keys environment. In this regard, the comprehensive plan provides:
Sec. 2-104. Nearshore Waters The Florida Keys are dependent
nearshore water quality for their environmental and economic integrity. The heart of the Florida Keys economy, the means by which Monroe County exists as a civil and social institution, is based on its unique, oceanic character. If nearshore water quality is not maintained, then the quality of life and the economy of Monroe County will be directly and immediately impacted.
OBJECTIVES
1. To protect, maintain and, where appropriate, improve the quality of nearshore waters in Monroe County.
POLICIES
1. To prohibit land uses that directly or indirectly degrade nearshore water quality.
To prohibit the development of water dependent facilities, including
marinas, at locations that would involve significant of the biological character of submerged lands.
To limit the location of water- dependent facilities at locations that
will not have a significant adverse impact on offshore resources of particular importance. For the purposes of this policy, offshore resources of particular importance shall mean hard coral bottoms, habitats of state or federal threatened and endangered species, shallow water areas with natural marine communities with depths at mean low tide of legs than four (4) feet, and all designated Aquatic Preserves under Ch. 258.39 et seq. the Florida Statutes.
To limit the location of docking facilities to areas which have adequate circulation and tidal flushing.
To protect wetland and transitional areas that serve to buffer, insulate and protect nearshore waters from run- off from upland areas.
To prohibit the discharge of any pollutant directly or indirectly into nearshore waters. For the purposes of this policy, indirect discharge into nearshore waters shall include surface runoff, surface spreading or well injection of any effluent that does not meet state or federal standards for point and non-point discharges.
To monitor nearshore water quality to ensure that growth and envelopment is
not degrading nearshore water quality.
To encourage the rehabilitation of canals and other water bodies where water quality has deteriorated.
Sec. 2-105. Wetlands and Associated Systems
Wetlands are an essential element of the Florida Keys and they play several vital roles. Wetlands serve as principal habitats for a wide variety of plants and animals, including juvenile forms of several commercially-exploited species of seafood.
In addition, wetland plants play an important role in pollution control through nutrient uptake, and in primary production control through nutrient uptake, and in primary production for food webs. Wetland plants also serve as important natural buffers to
the onslaught of storm-driven winds and water.
OBJECTIVE
To protect and maintain the functional integrity of wetlands and associated transitional areas within the Florida Keys.
POLICIES
To prohibit the destruction, disturbance or modification of any wetland or associated transition area, except where it can be demonstrated that the functional integrity of a wetland or associated transitional area will not be significantly adversely affected by such disturbance or modification.
Marine Resources
The great value attributed to Monroe County's marine resources is due to their crucial role in the local economy, and in providing a wide range of natural amenities and services. Health and integrity of the marine system is a fundamental prerequisite
if these resources are to continue to provide social, economic, and environmental benefits that we have at times taken for granted.
Mangroves, seagrasses, and coral reefs, all of which are susceptible to pollution and dredging, are extremely important in providing food and shelter for myriad forms of marine life, providing storm protection, and maintaining water quality. If uses and activities such as dredge and fill, destruction of natural vegetation, use of pesticides and fertilizers, improper sewage and solid waste disposal continue indiscriminately and uncontrolled; the ability of the marine system to function effectively will deteriorate, thereby resulting in the loss of many natural services and socioeconomic benefits to society. Therefore, it is imperative that such uses and activities be carefully regulated so as to insure conservation and protection of resources and long-term maintenance of their productivity.
Marine Resources Management Policies
Recognizing the crucial role that the marine environment plays in the economy, the protection, conservation, and
management of marine resources will be viewed as an issue requiring the County's utmost attention.
In an effort to protect and conserve marine resources, emphasis will be
placed on protecting the entire marine ecosystem.
To this end, maintenance of water quality; protection of marine flora
and fauna, including shoreline vegetation; and preservation of coral
reefs will be regarded as being absolutely essential to maintaining the integrity of the marine system.
* * *
Land and water activities which are incompatible with the preservation of marine resources because of their potential adverse effects will be prohibited, restricted, or carefully regulated depending upon the nature of activity and the extent of potential impact.
* * *
3.2. Dredging and/or filling associated with maintenance or necessary water- dependent public projects shall be minimized and carefully managed to prevent unnecessary adverse environmental impact.
The County will develop and enforce stringent development regulations to minimize water pollution from point and non-point sources in an effort to: improve and maintain quality of coastal waters. .
Marine grass beds, mangrove communities, and associated shoreline vegetation will be preserved to the fullest extent possible. Removal of vegetation or modification of natural patters of tidal flow and nutrient input, cycling and export should be considered only in the case of overriding public interest.
The County will encourage creation and restoration of marine grass beds, and mangrove communities in areas
which could support such
growth and could potentially enhance the environmental quality.
As far as possible, natural patterns of gradual and dispersed runoff will
be maintained.
Land and water activity in the vicinity of stress areas (coral, grass bed, and inshore water quality) as identified and illustrated in the Florida Keys Coastal Zone Management Study and as may be discovered during any future study will be carefully controlled and regulated in an effort to arrest further deterioration. Research and study directed toward alleviating the stresses and restoring their condition to natural healthy state will be encouraged arid supported.
Marine Resources Areas of Particular Concern Site-specific Designations
Lignumvitae Key Aquatic Preserve.
* * *
Management Policies:
B. Development activity on Upper and Lower Matecumbe Keys, including dredging and filling will be prohibited so as not to degrade the waters of the Preserve.
* * *
3. John Pennekamp Coral Reef State Park and Key Largo Coral Reef Marine Sanctuary.
Management Policies:
* * *
B. Development activity on Key Largo, including dredging and filling,
urban runoff water, and the use of septic tanks will be controlled and regulated in order to minimize stresses which result in cater quality deterioration.
Generic Designations
All marine grass beds in waters off the Florida Keys.
All patch reef coral and other reef formations found in the surrounding waters off the Keys.
All shore-fringing mangrove and associated vegetation extending up to 50 feet laterally upland from the landward limit of the shoreline mangrove.
Management Policies
A. These biotic communities will be preserved to the fullest extent possible.
Natural Vegetative Resources
The diverse and often unique plant associations of the Florida Keys are a vital element of Monroe County's natural system and economic structure. The natural functions performed by these plant communities with1 regard to marine resources, unique and endangered wildlife, shoreline stabilization, filtering of urban runoff and scenic value make them vital elements in maintainance of the urban structure and attractions for the tourist base of Monroe County's economy.
Natural Vegetation Management Policies
In recognizing the need to preserve as much natural vegetation as possible, the County will direct its land use and development regulations; to minimize destruction of natural vegetation and modification of landscape.
Guidelines and performance standards designed to protect natural
vegetation from development will be developed and enforced.
Clearing of native vegetation for development will be controlled.
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.
8. The existing County ordinances designed to protect and conserve natural vegetation will be strictly interpreted, rigidly enforced, and/or amended when necessary.
Consistent with the Monroe County comprehensive plan, the Monroe County land development regulations further the standards, policies and objectives of the plan to protect, maintain and improve the Florida Keys environment. In this regard, the provisions of the regulations requiring final plat approval before a development order may issued provide assurance that the proposed activity will be -consistent with the comprehensive plan, the land development regulations, and applicable provisions of state law. Likewise, pertinent to this case, the provisions of section 9-864, MCLDR, regarding open space requirements, and section 9.5-345, regarding environmental design criteria, further the plan's policy to minimize the destruction of natural vegetation and modification of landscape, and to preserve to the maximum degree possible areas characterized primarily by wetland vegetation, such as mangroves and associated vegetation, and to permit such removal only in cases of overriding public interest.
Here, while it cannot be concluded, as advocated by the Department, that the Monroe County comprehensive plan and land development regulations prohibit, under any circumstances, construction of the subject canal, it must be concluded, at this stage, that construction of the canal has not been demonstrated to be consistent with the plan and regulations. To be consistent, the Applicants would have to secure final plat approval for the canal, through the plat amendment process; a minor or major conditional use approval, as appropriate, as mandated by, inter alia, section 9 .5-345, MCC, for destruction of the mangrove community; and demonstrate that excavation of the canal on each of the platted lots would be consistent with the open space ratios of section 9- 804, MCLDR, and the environmental design criteria of section 9.5-34, MCC, or secure a conditional use as required by section 9.5-34-5, MCC. Amendment to the application post hearing
In their proposed recommended order, submitted post hearing, the Applicants propose that the hearing officer recommend that, as a condition, the proposed canal terminate at the line of mean high water instead of extending approximately 100 feet into the boundaries of John Pennekamp State Park. The ostensible reason for the Applicants' request is their desire to eliminate the need for seeking approval from the Department of Natural Resources for intrusion into the boundaries of the park, and thereby shorten the time needed to secure all governmental approvals.
While the Applicants did elicit testimony at hearing, albeit on rebuttal, that termination of the canal at the mean high water line would not significantly affect its performance as a flushing canal due to the extreme porosity of the caprock, the proof is not persuasive that the subject permits should be so limited or conditioned. Notably, the opinion that was offered in this regard was that of an expert hydrographic engineer who directed his remarks solely from a hydrographic viewpoint. The Applicants offered no testimony or other proof that would address the potential impacts, in any, that might occur
to, inter alia, water quality or the biota, should the canal be terminated or closed in such a fashion. Under the circumstances, the Applicants failed to persuasively demonstrate that such amendment or condition is appropriate. This finding is not, however, preclusive of their applying for such modification to Monroe County.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Sections 120.57(1) and 380.07(3), Florida Statutes.
This is an appeal, pursuant to Section 380.07, Florida Statutes, from a development order of Monroe County granting the Applicants' request four building permits to install and operate an aeration system in Dispatch Creek and to construct a flushing canal from the landward terminus of Dispatch Creek into the Atlantic Ocean on north Key Largo, Monroe County, Florida; an area of critical state concern. Pursuant to the provisions of Section 120.57(1), Florida Statutes, the propriety of Monroe County's action was reviewed de novo. Transgulf Pipeline Co. v. Board of County Commissioners of Gadsden County, 438 So.2d 876 (Fla. 1st DCA 1983).
The ultimate burden of persuasion rested on the Applicants to establish their entitlement to the permits authorizing their proposed development. Graham v. Estuary Properties, Inc., 399 So.2d 1374 (Fla. 1981), and Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981). Here, for the reasons set forth in the findings of fact, the Applicants have demonstrated their entitlement to Phase I of the subject permits, which would authorize them to install and operate an aeration system in portions of Dispatch Creek, as well as suction dredge portions of Dispatch Creek to remove accumulated debris. The Applicants have failed, however, to demonstrate their entitlement to Phase II of the subject permits.
While not entitled to Phase II of the requested permits, the Applicants are entitled to a specification of what changes in their proposal are necessary that would make it eligible to receive those permits. Section 380.08(3), Florida Statutes. Based on the evidence adduced, the Applicants' proposal to construct the flushing canal would conform with existing land development regulations when the Applicants secure final plat approval of an amended plat of Harbour Course subdivision, depicting the proposed canal, in accordance with the procedures prescribed by Article III, Division 4, MCC; when the Applicants secure approval of a minor or major conditional use, as appropriate, that would allow destruction of the mangrove community along the proposed alignment, as required by section 9.5-345, MCC; and, when the Applicants can demonstrate that construction of the canal within the rear boundaries of the platted lots would be consistent with the provisions of section 9-804, MCLDR, and section 9.5-345, MCC, or secure a conditional use as required by section 9.5-345; MCC. Should the Applicants be successful in securing such approvals from Monroe County, any permits that issued should carry, in addition to the conditions they currently carry, a proviso that should the tidal gates be closed as a consequence of any failure of Dispatch Creek to maintain Class III water quality standards, the undertake, at their expense, appropriate monitoring within the flushing canal to detect any significant degradation of water quality. Should degradation occur that poses a threat to adjacent waters or the park, the Applicants should be required, at their expense, to promptly restore the water quality of the flushing canal to Class III standards or restore the area to its present condition.
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a
final order sustaining Monroe County's issuance of the subject permits in so far as they relate to Phase I of the proposed project, and reversing Monroe County's decision to issue the subject permits in so far as they relate to Phase II of the proposed project. It is further recommended that such final order specify those items set forth in paragraph 4, Conclusions of Law, as the changes necessary that would make the Applicants' proposal eligible to receive the requested permits for Phase II of their proposal.
DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of October 1990.
WILLIAM J. KENDRICK
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 19th day of October 1990.
ENDNOTES
1/ Currently, the channel extends a distance of approximately 7,200 feet, and has an "average" depth of 5 feet MLW. Initially, however, Ocean Reef Club over dredged the channel to a depth of 11 feet MLW. Action by DER resulted in a consent order whereby the developer agreed to backfill the channel to its permitted depth. The developer did backfill the channel to an "average" depth of 5 feet MLW, and such corrective action was accepted by DER as compliance with the consent order. Although 5 feet deep on "average," the channel depth varies from 3 to 4 feet to 6 or 7 feet, with holes or pockets ranging from 9 to 18 feet. This irregular contour does contribute to the poor flushing capacity of the channel, and ultimately to its poor water quality; however, the predominate cause of such poor flushing is the extensive length of the channel and its dead- end design.
2/ While the intermittent emission of hydrogen sulfide results in an unpleasant odor of rotten eggs, there is no evidence that it or any of the other problems that currently plague Dispatch Creek present any health or safety problems to the residents of the area.
3/ The Department questioned the Applicant's ability to limit its construction activity to the 20 foot width of the canal, and offered proof, if credited, that such activity could impact an area of up to 40 feet in width. The more persuasive proof demonstrates, however, that the construction techniques the
Applicants will employ will successfully limi any impact to the 20 foot width of the canal.
4/ The Department's recurrent protest to the project from an environmental perspective was that the increased flushing of Dispatch Creek occasioned by construction of the canal would flush the pollutants from the canal into the park. The Applicants presented persuasive testimony, however, through their experts and testing, that there are no pollutants within the creek that will adversely affect the park. The department's observation in its proposed recommended order that "of particular concern are those pollutants originating from the marina, as marinas are known to be sources of water poLlution," is likewise unpersuasive. The marina of concern is located at the mouth of Dispatch Creek and currently its waters are regularly exchanged with those of adjacent waters with no adverse affect. The proposed canal, which is designed to improve the flushing of the terminus of the canal is unlikely to significantly increase the flushing that already occurs within the marina.
5/ At hearing, the Applicants introduced as exhibit 12 portions of the Monroe County comprehensive plan and land development regulations. The regulation provisions comport with the numeric system of the land development regulations filed with the Department. As their exhibit 13, the Applicants portions of Monroe County's land development introduced regulations that had been codified in the Monroe County Code.
6/ Section 9.5-111(a), MCC, provides that "no development shall occur except pursuant to a building permit." Section 9.5-4, MCC, defines development to mean:
the carrying out of any building
activity, the making of any material change in the use or appearances of any structure on land or water, or the subdividing of land into two (2) or more parcels.
. . . for purposes of this chapter, the following activities or uses shall be taken to involve "development":
* * *
Alteration of a: shore or bank of a seacoast . . . including any work
or activity which is likely to have a material physical effect on existing coastal conditions or natural shore and inlet processes.
Commencement of . . . excavation of a parcel of land.
(6) Clearing of land, including clearing or removal of vegetation and including any significant disturbance of vegetation or substrate (soil) manipulation.
7/ Applicants also argue that amending the plat at this time would be premature since construction of the canal is only authorized if the Phase I cleanup is successful. The Applicants' argument is unpersuasive. Succinctly, whether, contingent upon success at Phase I or not, Monroe County had issued permits for the construction of the canal without benefit of an approved plat, and without having accorded itself the benefits and input incident to plat approval, discussed infra.
8/ Notably the Development Review Committee and the Planning Commission had recommended denial of two prior applications for the proposed canal. This application was not submitted to either authority for review.
APPENDIX TO RECOMMENDED ORDER CASE NO. 89-5853
The Applicants' proposed findings of fact are addressed as follows:
1-12. Addressed in paragraphs 3-6; otherwise rejected as recitation of testimony or subordinate.
13-17. Addressed in paragraph 9; otherwise not necessary to the result reached. 18-24. Addressed in paragraphs 11, 14, and 20.
25-29. Addressed in paragraphs 34 and 35; otherwise subordinate or not necessary to the result reached.
30-35. Addressed in paragraphs 5-7, and footnote 1.
36-43. Addressed in paragraphs 9 and 10; otherwise subordinate or not a finding of fact.
44-46. Addressed in paragraphs 11-22.
47-61. Addressed in paragraphs 23-33.
62-67. Addressed in paragraphs 11-22.
68-70. Addressed in paragraphs 23-33; otherwise subordinate or not necessary to the result reached.
Rejected as not a finding of fact.
Addressed in paragraphs 34 and 35.
73-97. Addressed in paragraphs 11-22; otherwise subordinate.
The Department's proposed findings of fact are addressed as follows: 1-4. Addressed in paragraphs 1-3.
5-9. Addressed in paragraphs 4-6.
10-22. Addressed in paragraphs 11--22.
23-28. Addressed in parAgraphs 23--27.
29-32. Addressed in paragraph 15.
33-50. Addressed in paragraphs 11-22.
51-62. Addressed in paragraphs 23--33.
Monroe County submitted what it termed a proposed recommended order, but did not propose any findings of fact. Its submittal has, however, been considered.
COPIES FURNISHED:
A. Kathryn Funchess Karen A. Brodeen
Department of Community Affairs 2740 Centerview Drive
Tallahassee, Florida 32399-2100
William J. Roberts, Esquire Tom R. Moore, Esquire Roberts & Egan, P.A.
217 South Adams Street Tallahassee, Florida 32301
Thomas G. Pelham, Secretary Department of Community Affairs 2740 Centerview Drive
Tallahassee, Florida 32399-2100
G. Steven Pfeiffer General Counsel
Department of Community Affairs 2740 Centerview Drive
Tallahassee, Florida 32399-2100
Patty Woodworth, Secretary
Florida Land and Water Adjudicatory Commission Executive Office of the Governor
The Capitol, PL-05 Tallahassee, Florida
Randy Ludacer
Monroe County Attorney
310 Fleming Street
Key West, Florida 33040
| Issue Date | Proceedings |
|---|---|
| Oct. 19, 1990 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jan. 14, 1991 | Agency Final Order | |
| Oct. 19, 1990 | Recommended Order | Applicant failed to demonstrate in part that development was consistent with land development regulations-changes necessary to conform were detailed |
