STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF COMMUNITY AFFAIRS, )

)

Petitioner, )

)

vs. ) CASE NO. 89-6852

) MID-KEYS DEVELOPMENT CORPORATION, ) and MONROE COUNTY, )

)

Respondents. )

)

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 May 21, 1990, in Tallahassee, Florida.

APPEARANCES

For Petitioner: David L. Jordan, Esquire

Sherry A. Spears

Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

For Respondent; William L. Hyde, Esquire

Mid-Keys Development Roberts, Baggatte, La Face & Richard Corporation: Post Office Drawer 1838

Tallahassee, Florida 32302 STATEMENT OF THE ISSUES

At issue in this proceeding is whether a development order (building permit) issued by Monroe County to Mid-Keys Development Corporation (Mid-Keys), for the construction of a single-family home on Lot 98 of the Stirrup Key Subdivision is consistent with the Monroe County comprehensive plan and land development regulations.

PRELIMINARY STATEMENT

This is an appeal, pursuant to Section 380.07, Florida Statutes, to the Florida Land and Water Adjudicatory Commission from a development order of Monroe County which granted the application of Mid-Keys for a building permit to construct a single-family home on Lot 98 of the Stirrup Key Subdivision, Monroe County, Florida. As permitted, the home would be located within 50 feet of the landward limit of existing mangroves which the petitioner, Department of Community Affairs (Department) contends violates Monroe County's comprehensive plan and land development regulations. Although duly noticed, Monroe County elected not to participate in these proceedings.

Central to the dispute in this case are the provisions of Section 9.5-286, Monroe County land development regulations, which provide in pertinent part as follows:

1. All buildings and structures . . . shall be set hack twenty (20) feet from the mean high tide line of . . . lawfully altered shorelines of natural waterbodies.

2. All buildings and structures . . . shall be set hack fifty (50) feet from natural waterbodies with unaltered shorelines or unlawfully altered shorelines, measured from the landward limit of mangroves, if any, and where mangroves do not exit from the mean

high tide line.

The Department and Mid-Keys entered into a prehearing stipulation wherein they expressed their respective positions as follows:

Department of Community Affairs: Lot 98

is on Florida Bay, a natural waterbody. The upland area was filled to or landward of mean high water under permits described below.

The DCA contends that the "shoreline" is at and seaward of mean high water, and that it was not "lawfully altered" as those terms are used in the shoreline set back provision.

Therefore, a shoreline set back of fifty (50) feet is required measured from the landward limit of the mangroves.

Mid-Keys Development Corporation: William

T. Mills, Mid-Keys' predecessor-in-interest, pursuant to permits and approvals issued by the United States Army Corps of Engineers, Department of Pollution Control, Monroe County, and Board of Trustees of the Internal Improvement Trust Fund, lawfully filled Stirrup Key approximately to the mean high tide line or, at the very least, to seaward of the higher high tide line. It is the position of Mid-Keys that this activity constituted a "lawful alteration" of the shoreline of Stirrup Key, which borders on a natural waterbody. Therefore, a shoreline set back of only twenty (20) feet is required, measured from the mean high tide line or, in the alternative, from the higher high tide line.

The Department and Mid-Keys further stipulated that there were three issues to be addressed in this proceeding: (1) What is the "shoreline" of Lot 98, (2) whether the shoreline is altered or unaltered, and (3) the point from which the applicable setback is to be measured.

At hearing, Mid-Keys called as witnesses: William T. Mills, accepted as an expert in engineering; and, George S. Garrett, accepted as an expert in biology and Florida Keys biology. Mid-Keys' exhibits 1-12 were received into evidence. The Department called as witnesses: George Schmahl, accepted as an expert in biology and Florida Keys biology; Mark Griesbach, accepted as an expert in architecture; Maria Abadal, accepted as an expert in comprehensive planning, with emphasis on the Monroe County comprehensive plan; and, Larry Olney, accepted as an expert in biology, wetlands ecology and Florida Keys habitat.

The transcript of hearing was filed May 30, 1990, and the parties were granted leave until June 11, 1990, to file proposed findings of fact. The parties' proposed findings have been addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. Respondent, Mid-Keys Development Corporation (Mid-Keys), is the owner of Lot 98, Stirrup Key Subdivision, Monroe County, Florida; a property located on Florida Bay, a natural waterbody, and within that part of Monroe County designated as an area of Critical State Concern.

   
   

2. On September 12, l989, Monroe County issued to Mid-Keys building permit No. 8920001017 to construct a single-family home on Lot 98. As permitted, the home would be constructed 20 feet landward of the top of a dike or berm which runs along the rear of the property, as well as approximately 20 feet landward of a mangrove fringe which parallels the shoreline of the property. 1/

   
   

3. Petitioner, Department of Community Affairs (Department) pursuant to Section 380.07, Florida Statutes, appealed the issuance of the subject permit, and contends that, as permitted, construction of the home would violate Monroe County's comprehensive plan and land development regulations. Succinctly, the Department contends that under existent regulations the proposed home must be set back 50 feet from the landward limit of the mangrove fringe.

   
   

4. Central to the dispute in this case are the provisions of Section 9.5- 286, Monroe County Land Development Regulations (MCLDR) which provide:

   
   

   Sec. 9.5-286. Shoreline setback.

   1. All buildings and structures, other than docks, utility pilings, walkways, non- enclosed gazebos and fences and similar structures shall be set back twenty (20) feet from the mean high tide lines of man-made waterbodies and/or lawfully altered shorelines of natural waterbodies.

   2. All buildings other than docks, utility pilings, walkways, non-enclosed gazebos and fences and similar structures shall be set back fifty (50) feet from natural waterbodies with unaltered shorelines or unlawfully altered shorelines, measured from the landward limit of mangroves, if any, and where mangroves do not exist from the mean high tide line. (Emphasis added)

      The regulations do not, however, expressly define the location of the shoreline for purposes of assessing whether it is altered or unaltered, and thereupon rests the basis for the parties' dispute. In this regard, Mid-Keys contends that the development of Stirrup Key legally altered the shoreline, which it suggests a extends to the higher high tide line, and the Department contends that such development did not alter the shoreline, which it a suggests extends to the mean high tide line.

      
      

      The creation of Stirrup Key Subdivision.

      
      

5. Stirrup Key is an island in Florida Bay, a natural waterbody, comprising approximately 50 acres. Currently the key is platted as Stirrup Key Subdivision; a residential community which is attached to Key Vaca by a short causeway. The character of Stirrup Key as it exists today is, however, decidedly different from what existed less than two decades ago.

   
   

6. In March 1972, when Stirrup Key was purchased by William T. Mills, it was a low-lying island with an average elevation of two feet or less mean high water (MHW) and it was virtually untouched by man. Portions of its shoreline were covered with red mangroves, followed upland by transitional a species such as black mangrove, white mangrove, and buttonwood, and portions of its higher elevations contained some hammock.

   
   

7. Following his acquisition of Stirrup Key in 1972, Mr. Mills, consistent with regulations existent at that time, sought and obtained the approval of all governmental agencies necessary to develop the key as it currently exists. Pertinent to this case, the Florida Department of Pollution Control (currently known as the Department of Environmental Regulation) on June 24, 1974, issued to Mr. Mills a dredge and fill permit and water quality certification to excavate on Stirrup Key an upland lagoon to minus 5.0 feet mean low water, together with an access channel, with the spoil from the excavation to be placed on upland, landward of mean high water. As a condition, the permit provided that "[n]o spoil below MHW but in upland spoil area diked along shoreline" and "[m]angrove fringe along shoreline will be preserved." Notably, the plans which were submitted to the Department of Pollution Control by Mr. Mills, and which were attached to the permit, established the boundary of the island at the mean high water line and designated the mean high water line as the shoreline.

   
   

8. Also pertinent to this case, the State of Florida, Board of Trustees of the Internal Improvement Trust Fund, on July 22, 1974, issued to Mr. Mills a permit to dredge 72,265 cubic yards of material (1,265 cubic yards from sovereignty submerged land) from a proposed upland boat basin, together with an access channel and two circulation channels, with the spoil to be deposited on the uplands, and to construct a dike around the entire perimeter of Stirrup Key above the mean high water line. The Trustee's permit also provided that "[n]o spoil shall be deposited below mean high water but in upland spoil area diked along shoreline" and "[t]he mangrove fringe along shoreline will be preserved."

   
   

9. Consistent with the foregoing permits, Mr. Mills undertook the development of Stirrup Key. In so doing, he constructed a dike around the entire perimeter of the island, with the toe of the dike landward of MHW, removed the transitional vegetation landward of MHW, and filled the area landward of MHW with limestone fill to an elevation of 4 to 9 feet MHW. Also consistent with his permits, Mr. Mills preserved the mangrove fringe along the shoreline. 2/

10. While the wetlands system of Stirrup Key has been altered by the removal of the upland transitional vegetation and the filling of the area lying landward of MHW, the function of the shoreline mangrove fringe has not been altered by the development of the island. That fringe, which extends approximately 3,000 feet along the shoreline and which measures from 60 to 100 feet in width at Lot 98, continues to provide, among other things, wildlife habitat for numerous species of birds; fisheries habitat for food, cover and refuge; shoreline stabilization; and storm surge abatement.

    
    

11. In 1976 the plat of Stirrup Key Subdivision, which encompassed all the lands of Stirrup Key, was approved by Monroe a County and filed of record. That plat, as well as the survey of Lot 98, demonstrate that the boundaries of Stirrup Key follow the mean high water line.

    
    

    The Monroe County comprehensive plan and land development regulations.

    
    

12. The Monroe County comprehensive plan, effective September 15, 1986, provides:

    
    

    11. FUTURE LAND USE ELEMENT

    
    

    Sec. 2-101. Introduction.

    A fundamental component of any comprehensive land management program is a series of discrete policy statements by which individual land use decisions will be judged in the future. Indeed, a basic tenet of contemporary land management theory and the Local Government Comprehensive Planning Act, Sections 163.3161 et seq., Fla. Stat. is that land use decisions shall be consistent with a comprehensive plan.

    After a comprehensive plan or element or portion thereof has been adopted in conformity with this act, all development undertaken by, and all actions taken in regard to development orders by, governmental agencies in regard to land covered by such plan or element shall be consistent with such plan or element as adopted. All land development regulations enacted or amended shall be consistent with the adopted comprehensive plan or element or portion thereof.

    163.3194(1), Fla. Stat.

    The Comprehensive Plan for Monroe County contemplates that the land use policy element and implementing regulations will be closely coordinated and designed to ensure fair and consistent land use decision-making.

    Incorporating the policy statements into the implementing regulations will go a long way toward overcoming many of the due process deficiencies that plague land use decision-

    making. Under this Plan, a request for development approval will be judged, not on the basis of an intuitive perception of the County's needs, the identity of the applicant, or the clamor of opponents, but on the adopted policies set out in the Plan. If the requested approval is inconsistent with these adopted policies, it should be denied, or the policies should be changed through the established procedure for amendments. If the proposed development is consistent with the Plan, it should be approved. Linking individual decisions to adopted policies will help to bring consistency, fairness, and a comprehensiveness to the development review process.

    The purpose of this element of the Monroe County Comprehensive Plan is to establish official land use policies that

    will guide future land use decisions in the County . . . .

    Sec. 2-102. General.

    
    

    A. OBJECTIVES

    1. To establish a land use management system that protects the natural environment of Monroe County.

    
    

    Sec. 2-103. Natural Environment.

    The Florida Keys constitute a unique and irreplaceable natural resource of local, regional, state, national and international value. The Florida Keys are an island archipelago constituting a tropical

    experience accessible by automobile from the a continental United States. As such, the Keys are a vacation and residential resource unmatched in beauty, character and security

    in the continental Untied States. The natural environment of the Florida Keys -- uplands, wetlands, and nearshore waters -- is the central element of this distinctive character. In the Florida Keys, a distinct visual character, native and tropical vegetation, water-dependent recreation, distinct culture and an oceanic experience come together to make a desirable place to live and visit.

    It is essential, therefore, that the natural environment of Monroe County be conserved, and where appropriate, enhanced and restored. All future actions, both public and private, should be carried out in a way so as to ensure that the essential ingredients of Monroe County character are preserved and protected for existing and future generations.

    1. OBJECTIVES

       1. To manage and control the use of land so that the natural

          environment of Monroe County is protected.

          
          

    2. POLICIES

       1. To protect natural, undisturbed lands from significant disturbance.

       2. To protect threatened and endangered species and their habitats from human activities that would expose such species to displacement or extinction.

       3. To conserve the habitat of endemic species of plants and animals.

    
    

    Sec. 2-115. Enforcement

    A major component of any future land use element is the need to strictly enforce implementing regulations. If Monroe County is to achieve the promise of this Plan, it is essential that all persons involved in the land development process adhere to the requirements of this Plan and that the integrity of the development review process be protected.

    
    

    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, seagrass, 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

    
    

    1. Recognizing the crucial role that the marine environment plays in the local economy, the protection, conservation, and management of marine resources will be viewed as an issue requiring the County's utmost attention.

       1. In an effort to protect and conserve marine resources, emphasis will be

          placed on protecting the entire marine ecosystem.

       2. 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.

    
    

    Generic Designations

    
    

    1. All marine grass beds in waters off the Florida Keys.

    2. All patch reef coral and other reef formations found in the surrounding waters off the Keys.

    3. All shore-fringing mangrove and associated vegetation extending up to 50 feet laterally upland from the landward limit of the shoreline mangrove.

       
       

       Management Policies

       
       

       1. These biotic communities will be preserved to the fullest extent possible.

    
    

13. The Monroe County land development regulations, likewise effective September 15, 1986, provide:

    
    

    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 county commissioners as expressed in the Monroe County Comprehensive Plan, or an element or portion thereof, adapted 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, terms, 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 specifically 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.

    
    

    f. Nontechnical and technical words: Words and phrases shall be construed according

    to the common and approved usage of the language, but technical words and phrases and such others as may have acquired a peculiar and appropriate meaning in law shall be constructed and understood according to such meaning.

    
    

    m. Boundaries: Interpretations regarding boundaries of land use districts on the land use district map shall be made in accordance with the following, as partially illustrated in figure 1 [following this section]:

    
    

    1. Boundaries shown as following or approximately following the shorelines of any key or causeway or other island shall be construed as following the mean high water line of such island or key. In many instances, the boundary lines have

       been intentionally drawn seaward of the shoreline so that the shoreline itself will be visible.

       
       

       Sec. 9.5-286. Shoreline setback

       
       

       1. All buildings and structures, other than docks, utility pilings, walkways, non- enclosed gazebos and fences and similar structures shall be set back twenty (20) feet from the mean high tide line of man-made waterbodies and/or lawfully altered shorelines of natural waterbodies.

          
          

       2. All buildings other than docks, utility pilings, walkways, non-enclosed gazebos and fences and similar structures shall be set back fifty (50) feet from natural waterbodies with unaltered shorelines or unlawfully altered shorelines, measured from the landward limit of mangroves, if any, and where mangroves do not exist from the mean high tide line. (Emphasis added)

    
    

    The shoreline, altered or unaltered?

    
    

14. While the Monroe County land development regulations do not expressly define the term "shoreline" with reference to a specific point for purposes of determining whether a shoreline has been lawfully altered or unaltered, a reading in pari materia of the rules of construction and the shoreline setback requirements compels the conclusion that such determination is made by reference to the mean high water line of Stirrup Key when it was developed. This definition of shoreline is consistent with Section 177.28(1), Florida Statutes, which defines the legal significance of the mean high water line as:

    
    

    Mean high-water line along the shores of land immediately bordering on navigable waters is recognized and declared to be the boundary between the foreshore owned by the state in its sovereign capacity and upland subject to private ownership . . . .

    
    

    It is likewise consistent with the peculiar and appropriate meaning in law that has established the shoreline at the mean high water line. See: Shively v.

    Bowlby, 152 U.S. 1, 14 S.Ct. 548 (1894), Borax Consolidated v. City of Los

    Angeles, 296 U.S. 10, 56 S.Ct. 23, reh. denied 296 U.S. 664, 56 S.Ct. 304

    (1935), Axline v. Shaw, 35 Fla. 305, 17 So. 411 (1895), Board of Trustees of the Internal Improvement Trust Fund v. Walker Ranch General Partnership, 496 So.2d

    153 (Fla. 5th DCA 1986), and Helliwell v. State, 183 So.2d 286 (Fla. 3rd DCA 1966). It is also consistent with the expressed intent of the developer of Stirrup Key and the governmental agencies that permitted such development, and it is consistent with Monroe County's land development regulations which define boundaries of islands which are shown as following the shoreline to be at the mean high water line. 3/ Accordingly, the shoreline of Stirrup Key, and more particularly Lot 98, is unaltered and a 50-foot setback from the landward limit of existing mangroves is mandated by the MCLDR.

    CONCLUSIONS OF LAW

    
    

15. 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.

    
    

16. This is an appeal, pursuant to Section 380.07, Florida Statutes, from a development order of Monroe County granting Mid-Keys' application for a building permit to construct a single-family home on Lot 98 of the Stirrup Key Subdivision, 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, 438 So.2d 876 (Fla. 1st DCA 1983).

    
    

17. The ultimate burden of persuasion rested on Mid-Keys to establish its entitlement to the permit authorizing it to construct the subject home with a shoreline setback of 20 feet from the mean high water line. 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). Mid-Keys has failed to demonstrate that its proposal complies with this case.

    
    

18. Pertinent to this case, Section 9.5-286, Monroe County land development regulations, construed in pari materia with Section 9.5-3, Monroe County land development regulations, precludes approval of Mid-Keys' project absent a setback of 50 feet from the landward limit of existing mangroves where, as here, the shoreline is unaltered.

    
    

19. In reaching the conclusion that the shoreline of Stirrup Key, and more particularly Lot 98, is unaltered within the meaning of Section 9.5-286, Monroe County land development regulations, the testimony of George S. Garrett, Director of Environmental Resources for Monroe County, has not been overlooked. In this regard, while Mr. Garrett opined that the shoreline of Stirrup Key was located at the mean high water line, it was his opinion that notwithstanding such fact, the shoreline should be considered altered because the vegetation landward of that line had been removed and replaced by limestone fill.

    According to Mr. Garrett, the rationale for the shoreline setback regulation was not existent in the instant case because of the scarification of the uplands and a 20-foot setback would be more appropriate.

    
    

20. In this case, Mr. Garrett's opinion is rejected as unpersuasive. First, Mr. Garrett is a biologist, not a land planner. Second, the Monroe County land development regulations require a 50-foot setback under the circumstances of this case, and Monroe County is required to apply its regulations as a written, or seek their amendment. See, e.g.: Section 2-101, MCLDR, Decarion v. Martinez, 537 So.2d 1083 (Fla. 1st DCA 1989), and Gadsden State Bank v. Lewis, 348 So.2d 343 (Fla. 1st DCA 1977). While the matters considered by Mr. Garrett as suggestive of the propriety of a 20-foot setback on Lot 98 might be germane to a variance request, they are quite unpersuasive to the resolution of the subject dispute which concerns an application for a building permit under existent regulations, not a variance request.

    
    

21. The suggestion of Mid-Keys that Monroe County has consistently interpreted the shoreline setback regulation so as to conclude that the shoreline of lots similar to Lot 98 are legally altered is likewise rejected as not supported by a competent or persuasive proof. Rather, the proof

    demonstrates no such consistency under the current development regulations, and where a setback of less than 50 feet was permitted under the previous regulations it was more likely obtained through the variance process.

    
    

22. While not entitled to the requested permit, Mid-Keys is entitled to a specification of what changes in its proposal are necessary that would make it eligible to receive a permit. Section 380.08(3), Florida Statutes. Based on the evidence adduced, Mid-Keys' application would conform with existing land development regulations, and would be subject to approval, if the proposed home was set back 50 feet from the a landward limit existing mangroves.

RECOMMENDATION

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 reversing Monroe County's decision to issue permit number 8920001017, and deny Mid-Keys' application for such permit. It is further recommended that such final order specify those items set forth in paragraph 8, Conclusions of Law, as the changes necessary that would make Mid-Keys' proposal eligible to receive the requested permit.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 25th day of June 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 25th day of June 1990.

ENDNOTES

1/ In this case, the proof demonstrated that when the subject permit was applied for the mean high water line (MHWL) was located substantially waterward of the MHWL established in the original survey of 1975. This accretion has been attributed to the deposition of mangrove detritus. Monroe County, although it considered the shoreline as altered, mandated a setback of 20 feet from the top of the dike as opposed to the MHWL. Had Monroe County correctly characterized the shoreline as legally altered, its decision to establish the setback as 20 feet from the top of the dike/landward edge of the mangrove fringe would have been reasonable considering, on balance, the provisions of the comprehensive plan and development regulations relating to mangrove protection since to have measured from the current MHWL would have permitted construction within the mangrove fringe. Notably, the setback restrictions established by Section 9.5- 286, Monroe County Land Development Regulations (MCLDR), are the minimum setbacks established by the MCLDR. Section 9.5-3(a), MCLDR.

2/ Mr. Mills also complied with conditions imposed by Monroe County and the Department of Pollution Control regarding the grading and berming of the island such that stormwater runoff would not discharge to the mangroves but to ponds or lakes constructed on site. To date, there is no evidence of any damage to the marine environment or the fringing mangrove community as a consequence of the development of Stirrup Key, and that fringe still continues to provide the same beneficial functions to the environment as it did before the island was developed.

3/ Notably, Monroe County's former shoreline protection ordinance, which was in effect prior to the adoption of Section 9-5.286 in 1986, defined shoreline as follows: "A line on waterfront property other than a bulkhead line which follows the general configuration of the apparent mean high water line."

APPENDIX

The Department's proposed findings of fact are addressed as follows: 1-4. Addressed in paragraphs 1 and 2.

5-16. Addressed in paragraphs 5-11, except paragraphs 12 and 15 which are not material or necessary to the result reached.

17-23. Addressed in footnote 2 and paragraph 10.

24-34. Addressed in paragraphs 7-11, and 14.

35-40. Addressed in paragraphs 12-14 and Conclusions of Law paragraphs 5- 7, otherwise rejected as argument or comment on the evidence.

41-44. Not relevant per the Department's and Mid-Keys' stipulation. Mid-Keys' proposed findings of fact are addressed as follows:

1. Addressed in paragraphs 1 and 5.

2-10. Addressed in paragraphs 5-11, and footnote 2 to the extent pertinent.

11-18. Addressed in paragraphs 13 and 14, and Conclusions of Law paragraphs 4-7 to the extent pertinent.

19-26. Rejected as recitation of testimony or comment on the testimony and not a finding of fact.

27. Addressed in footnote 1 and Conclusions of Law paragraphs 5-7.

28 & 29. To the extent pertinent, addressed in paragraph 14.

COPIES FURNISHED:

DAVID L. JORDAN, ESQUIRE DEPARTMENT OF COMMUNITY AFFAIRS 2740 CENTERVIEW DRIVE

TALLAHASSEE, FLORIDA 32399-2100

RANDY LUDACER, ESQUIRE MONROE COUNTY ATTORNEY MONROE COUNTY COURTHOUSE

310 FLEMING STREET

KEY WEST, FLORIDA 33040

JACK OSTERHOLT, DIRECTOR

SOUTH FLORIDA REGIONAL PLANNING COUNCIL 3400 HOLLYWOOD BOULEVARD

SUITE 140

HOLLYWOOD, FLORIDA 33021

WILLIAM L. HYDE, ESQUIRE

ROBERTS, BAGGETT, LA FACE & RICHARD POST OFFICE DRAWER 1838 TALLAHASSEE, FLORIDA 32302

PATRICIA A. WOODWORTH, SECRETARY FLORIDA LAND AND WATER

ADJUDICATORY COMMISSION OFFICE OF THE GOVERNOR THE CAPITOL

TALLAHASSEE, FLORIDA 32399-0001

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

Docket for Case No: 89-006852

Orders for Case No: 89-006852