STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
JOHN ARMENIA, )
)
Petitioner, )
)
vs. ) CASE NO. 91-3770
)
BOARD OF TRUSTEES OF THE INTERNAL ) IMPROVEMENT TRUST FUND and DEPARTMENT ) OF NATURAL RESOURCES, )
)
Respondent. )
) CITY OF SANIBEL and RALPH CLARK, ET AL., )
)
Intervenors. )
)
RECOMMENDED ORDER
Pursuant to notice, this cause came on for formal proceeding before P. Michael Ruff, duly-designated Hearing Officer of the Division of Administrative Hearings, in Tallahassee, Florida.
APPEARANCES
For Petitioner: Kenneth G. Oertel, Esquire
OERTEL, HOFFMAN, ET AL.
2700 Blair Stone Road
P.O. Box 6507
Tallahassee, Florida 32314-6507
For Respondents: John Costigan, Esquire
Edwin Steinmeyer, Esquire Department of Natural Resources 3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
For Intervenors: Robert D. Pritt, Esquire (City of Sanibel) City of Sanibel
800 Dunlop Road
Sanibel, Florida 33957
(Ralph Clark, Mark A. Ebelini, Esquire et al.) HUMPHREY & KNOTT, P.A.
1625 Hendry Street
Ft. Myers, Florida 33901 STATEMENT OF THE ISSUES
The issues in this proceeding concern whether a site, which the Petitioner proposes to develop by installing an elevated timber bridge across Clam Bayou on
Sanibel Island, is within the Pine Island Sound Aquatic Preserve ("preserve") established in 1970 by resolution of the Respondent, Board of Trustees of the Internal Improvement Trust Fund ("Board"). The Petitioner also contends, in Case No. 91-3249R, consolidated for hearing with Case No. 91-3770, that a statement contained in a DNR letter of April 2, 1991 and ratified by later action of the Board, constitutes an unpromulgated rule, by virtue of being an amendment to the existing rule describing the limits of the subject preserve, and thus is an invalid exercise of delegated legislative authority.
PRELIMINARY STATEMENT
This cause arose on May 24, 1991 when the Petitioner, John Armenia, filed a petition for formal administrative proceeding and a related petition for determination of invalidity of an unadopted rule. The Petitioner has challenged, by his petition for formal administrative proceeding, the correctness of DNR's determination that the project site where he proposes to construct an elevated timber bridge across Clam Bayou to Silver Key on Sanibel Island, is within the boundaries of the Pine Island Sound Aquatic Preserve, an outstanding Florida water lying near Sanibel Island in Lee County, Florida.
That project is the subject of a separate 120.57(1), Florida Statutes, proceeding involving DER, and now pending before the Division of Administrative Hearings in Case Nos. 91-1320 through 91-1324. If it is determined that the project is within the preserve, the Petitioner will be held to comply with a stricter body of rules in order to prove entitlement to the DER dredge and fill permit at issue in those cases. Hence, the Petitioner seeks, in the instant proceeding, to establish that the project site in question is not within the preserve.
Specifically, the Petitioner is challenging a statement contained in a letter issued by the Respondent, DNR, through its representative, Mr. Mark Miller, which stated that Clam Bayou, the project site, is included within the preserve. The petition for formal proceeding was then filed after the Petitioner became aware of the statement in the subject letter of April 2, 1991. Thereafter, this statement by the agency representative was confirmed and adopted by the Board on June 12, 1991.
The Petitioner also maintains that the letter which contained the opinion that this project site was within the preserve, and the Board's resolution ratifying that opinion, amount to a rule which was not duly promulgated and thus constitutes an invalid exercise of delegated legislative authority on the basis that, by that enunciation, the agency was, in effect, amending the duly- promulgated rule which establishes the boundaries of the preserve.
The 120.57(1), Florida Statutes, petition challenging the correctness of DNR's determination, as well as the challenge, pursuant to Section 120.56, Florida Statutes, of the agency statement as being an allegedly unpromulgated rule, were consolidated for purposes of hearing, although a separate Recommended and Final Order is being entered as to each case. The matters were assigned Case No. 91-3770 and Case No. 91-3249R, respectively.
The cases came on for hearing as noticed. The Petitioner presented five
witnesses and 23 exhibits. All were admitted into evidence, except Exhibit No. 15, which was not moved. The Respondent called one (1) witness and offered nine (9) exhibits, which were admitted into evidence. The Intervenors presented no witnesses or exhibits. The Petitioner moved to dismiss the Intervenors for lack of standing to participate in this proceeding on the basis that, at
hearing, they failed to produce any evidence in support of their standing. That motion is addressed hereinbelow.
Subsequent to the hearing, a transcript of the proceeding was obtained, and the parties availed themselves of the right to file proposed findings of fact and conclusions of law in the form of Proposed Recommended Orders, concomitantly waiving the requirements of Rule 28-5.402, Florida Administrative Code. The proposed findings of fact submitted by the parties are addressed in this Recommended Order and again in the Appendix attached hereto and incorporated by reference herein.
FINDINGS OF FACT
This dispute arose between the Petitioner and the Respondent, DNR, when the Board and DNR took a position that Clam Bayou on Sanibel Island in Lee County, Florida, is a part of the Pine Island Sound Aquatic Preserve. The Petitioner proposes to construct an elevated timber bridge across Clam Bayou on Sanibel Island in order to provide access to Silver Key, a body of land on which he proposes to develop three single-family home sites. Mark Miller, a field manager in the Fort Myers district office of DNR, issued a letter dated April 2, 1991 in which he expressed an opinion, on behalf of DNR, that Clam Bayou was included within the preserve. On June 12, 1991, his position was confirmed and adopted by resolution of the Board.
The Petitioner has applied to DER for a dredge and fill permit seeking authorization to construct the subject bridge, and the permit application before DER is the subject of a notice of intent to grant the permit issued on January 30, 1991. DER reviewed that permit application based upon its class III water quality standards. Should the position of DNR and the Board be sustained to the effect that Clam Bayou is within the aquatic preserve, DER will impose the more strict "Outstanding Florida Waters" water quality and dredge and fill standards on the Petitioner's application. This will be a much stricter test by which he must sustain his burden of proving entitlement to the subject DER permit.
Thus, the outcome of the question in this case will have a significant impact on the Petitioner's legal rights with respect to the application for the DER dredge and fill permit. The DER permit application issue has been set for hearing before a Hearing Officer of the Division of Administrative Hearings. That proceeding is presently postponed pending a decision in this case concerning whether the project site lies within the outstanding Florida waters of the aquatic preserve in question.
The preserve was established by resolution of the Board dated December 11, 1970. The resolution was recorded at Official Record Book 648, pgs. 732- 736, in the Official Records of Lee County, Florida. This resolution describes what the Board declared to be the Pine Island Sound Aquatic Preserve and includes the statement of the Board of the purposes of the preserve, a narrative description of the its boundaries and maps of the preserve. The preserve was then codified in the Florida Statutes as part of the "Aquatic Preserve Act of 1975". The legal definition or description of the preserve is set forth at Section 258.39(22), Florida Statutes, as follows:
Pine Island Sound Aquatic Preserve, as described in the Official Records of Lee County, in Book 648, pages 732-736.
Thus, all five (5) pages of the Board's resolution describing the preserve are, in turn, incorporated in the statutory description.
The precise detailed legal description of the preserve is found at Official Record Book 648, at page 733, of the Official Records of Lee County, Florida. That description states, in pertinent part, as follows:
AQUATIC PRESERVE G-13
The sovereignty lands in Pine Island Sound and San Carlos Bay lying within the following described boundaries:
Begin at the intersection of the north line of Section 6, Township 44 South, Range 21 East, with the westerly mean high water line of Pine Island Sound, thence East to a northerly extension of the East line of Section 25, Township 44 South, Range 21 East to its intersection with the easterly mean high water line of Pine Island Sound, thence southerly along the mean high water line of Pine Island Sound to its intersection with the East line of Section 3, Township 46 South, Range 22 East, thence southeasterly crossing San Carlos Bay to the most northerly point of Section 13, Township 46 South, Range
22 East, thence westerly and northerly along the mean high water line of San Carlos Bay and Pine Island Sound to the point of BEGINNING.
Thus, the above legal description clearly limits itself to the waters of Pine Island Sound and San Carlos Bay, demarcated as pertinent hereto by the westerly and northerly course of the mean high water line of those two-named water bodies. The evidence clearly shows that Clam Bayou is a separate and separately-named water body and is depicted on maps, since at least 1900 as a separate, distinct and separately-named water body known. Petitioner's Exhibit No. 13 is a plat of the original U.S. Government survey of this area. It was prepared in 1900 and clearly shows Clam Bayou as a separate, distinct and separately-named water body. It shows that it was only indirectly connected to Pine Island Sound through the waters of Blind Pass. Blind Pass, in turn, is a separately-named water body separating the waters of Pine Island Sound from those of Clam Bayou and the Gulf of Mexico.
When DER evaluated the Petitioner's permit application, it used its Atlas of Outstanding Florida Waters to determine whether or not the project was within the preserve. All parts of an aquatic preserve are also classified under DER rules as outstanding Florida waters. DER, in making that permit review decision, relied upon maps published by the Board. A copy of the map from the DER Atlas, prepared by the Respondent in this proceeding, was introduced into the record as Petitioner's Exhibit No. 3. That map, prepared by F.J. Hanson of the Division of Land Management of DNR in September of 1970 shortly before the resolution establishing the preserve was passed by the Board, clearly shows that the preserve boundary proceeds southwestward from the junction of Blind Pass with Pine Island Sound no farther than the point where a "bituminous road" (bridge) crosses Blind Pass, a point which is approximately one-half mile from
the point where Clam Bayou then joined Blind Pass. That map is substantially identical to the map recorded in the Lee County Public Records at Book 648, page 736, as being the depiction of the preserve, although it has the stippled or shaded feature added for ease of determination of the location and boundaries of the preserve.
The geologic history of the formation and location of Clam Bayou can be determined by an examination of historic and contemporary maps and photographs of the area in question. The earliest map in evidence, Petitioner's Exhibit No. 12, is a map of the U.S. Coast Survey prepared in 1859. This map shows that in 1859, Clam Bayou did not exist. The waters now located at the place called Clam Bayou were a part of the Gulf of Mexico itself, which abutted and joined the generally/northwesterly portion of Sanibel Island, as it existed in that year. Between 1859 and 1900, a spit of land accreted in a southerly direction from the southern end of Captiva Island, gradually closing off the waters of the Gulf of Mexico from the area now known as Clam Bayou and thereby creating the body of water called Clam Bayou. That spit of land has come to be called Silver Key and is the area upon which the Petitioner seeks to build the bridge in question by which he would span the waters of Clam Bayou in order to access Silver Key. Later, by accretion, an additional spit of land at various times has separated the Gulf of Mexico from the waters abutting the formerly gulfward margin of Silver Key. Thus, a narrow strip of water has existed in more recent times, particularly since the late 1960's, between the gulfward side of Silver Key and the more recently accreted strip of land or beach, thus making up the waters constituting the more southerly or southwestward reach of Blind Pass. Petitioner's Exhibit No. 13 depicts the land and water boundaries of the area in question as of 1900 when the plat was prepared. This map shows Clam Bayou as a distinct, named body of water only indirectly connected by water to Pine Island Sound through the waters of Blind Pass and being located in excess of a mile, by water, from the waters of Pine Island Sound itself, based upon an interpretation of the distances depicted on the various maps in evidence.
The evidence in this proceeding clearly shows that Clam Bayou has never been a part of Pine Island Sound itself. It formed out of the waters of the Gulf of Mexico and has never had a direct connection to Pine Island Sound.
Since at least 1974, Clam Bayou has been only connected to the Gulf of Mexico due to a change in the course of Blind Pass. At various times, it has been totally closed off with no connection to any other water body; however, it has never been directly connected to Pine Island Sound.
Boundary Characteristic of Mean High Water Line
As noted above, the legal description of the preserve uses the mean high water line as the preserve boundary. The mean high water line is an ambulatory boundary because it is not fixed in place or time. When the shoreline of the uplands demarcated by the mean high water line changes by accretion or evulsion, the lands which are thus built up or eroded away by those natural processes change in configuration and size. Their shoreline obviously also changes so that the boundary of such lands, demarcated by the mean high water line as the boundary in a legal description, change with those natural processes. Since the mean high water line is a movable boundary, it is not fixed in time. Thus, to locate an area in dispute which is bounded by a mean high water line as part of its legal description, the current mean high water line must be utilized to determine the present location of that boundary. Presently, Clam Bayou is only connected to the Gulf of Mexico and has been so at least as far back as 1974. Thus, even if the words "Pine Island Sound" in the above legal description, and the surveying principle known as the "Headlands
Rule" were ignored, a tracing along the mean high water line to all bodies of water connected to Pine Island Sound would not presently include Clam Bayou, since it only connects, if at all, to the Gulf of Mexico.
When the Legislature passed the Aquatic Preserve Act of 1975, it adopted the description of the preserve contained in Resolution No. 70-25 (Petitioner's Exhibit No. 6). This description, of course, utilized the mean high water line of Pine Island Sound as the preserve boundary. The use of the mean high water line as the preserve boundary meant that the boundaries of the preserve will change as the shoreline changes. Since 1974, because of changes in the shoreline, Clam Bayou has only had a direct connection to the Gulf of Mexico. It has not been even indirectly connected to Pine Island Sound since at least 1974.
The Headlands Rule, as reported in Shalowitz, "Shore and Sea Boundaries", Volume 2, page 370, is a well-known and accepted principle of surveying, as established by Petitioner's expert witnesses. The Headlands Rule is used to separate water bodies where water bodies adjoining each other have distinct names and identities so that they cannot be considered to be synonymous with each other. In essence, the Headlands Rule involves establishment by survey of a direct line between the closest points of land separating two separately-named, distinct, and non-synonymous water bodies. Clam Bayou is a separately-named water body and has been so since at least 1900. In fact, DNR never previously considered Clam Bayou to be a part of the preserve until the Petitioner applied for his dredge and fill permit from DER; and as a result, the issue of the boundary was raised with DNR.
Whether or not the Headlands Rule should be applied to the entire boundary of the preserve demarcated by the mean high water line of Pine Island Sound and San Carlos Bay, the principle is clearly applicable to the question of whether Clam Bayou, at least, is a separate and distinct water body or whether it is part of Pine Island Sound. The Headlands Rule is frequently applied by surveyors to segregate such water bodies. In this case, there is no question but that a proper application of the rule would exclude Clam Bayou from being considered to be a part of Pine Island Sound, as established by testimony of expert surveyors, Bulson, Dubose and Cole, presented by the Petitioner. Only by ignoring the words "Pine Island Sound" in the legal description of the preserve can an argument be made that Clam Bayou should be included within the description of the preserve. However, no credible reason has been advanced to establish how the Board or DNR could ignore words in the legal description, or in the rule or statute, so as to justify the boundary determination advocated by DNR in this proceeding.
In that connection, Mr. Terry Wilkinson is a surveyor employed by the Division of State Lands of DNR. Mr. Wilkinson expressed an interpretation of the legal description of the preserve in question which ascribes little importance concerning whether a water body is a part of Pine Island Sound Proper, thus, giving little effect to the words "Pine Island Sound" in the "call" in the legal description involving the "mean high water line of Pine Island Sound". In other words, Mr. Wilkinson opined that the extent of the area encompassed by the mean high water line of Pine Island Sound could be located by tracing the mean high water line of the shore of Pine Island Sound into and around the margin of any creeks, bayous, bays or lagoons, or other water bodies which had any connection to Pine Island Sound, direct or indirect. He opined that it would be immaterial as to whether any of the other water bodies he felt were encompassed by that mean high water line were actually a part of Pine
Island Sound, as long as their shorelines were connected and continuous at some point.
Using this approach, however, one could logically conclude that even the Gulf of Mexico was connected by the mean high water line of Pine Island Sound to the preserve. Even Mr. Wilkinson would not venture to say that the Gulf of Mexico was included within the preserve demarcated by the mean high water line of Pine Island Sound. Mr. Wilkinson opined that he would draw a boundary line at the entrance to the passes (the gulfward entrances) which connected Pine Island Sound and intermediate water bodies to the Gulf of Mexico at the mouths of each pass. For instance, where Blind Pass, near the northern tip of Sanibel Island in the specific area in question, connects Pine Island Sound with the Gulf of Mexico, Mr. Wilkinson, in effect, would use a form of the "Headlands Rule" itself and run a boundary line across Blind Pass to separate Pine Island Sound and the preserve from the Gulf. Mr. Wilkinson's interpretation, however, would accord little significance to the words "Pine Island Sound" in the legal description nor to the fact that both Blind Pass and Clam Bayou are separately-named, distinct water bodies from Pine Island Sound itself. Under his interpretation, it would not be very important as to whether a water body is actually a part of Pine Island Sound so long as a continuous mean high water line connection between a certain-named water body and Pine Island Sound itself can be traced. In other words, Mr. Wilkinson's interpretation, by implication, takes the words from the legal description: "...the mean high water line of..Pine Island Sound" and interprets that as meaning the mean high water line of Pine Island Sound and connecting or adjoining waters or water bodies.
Mr. Wilkinson's interpretation of the legal description, and his belief as to how it should be surveyed, is logically inconsistent with that of Mr. Mallison, who is the Director of the Division of State Lands of DNR. In his deposition, in evidence as Petitioner's Exhibit No. 19, Mr. Mallison agreed that if Clam Bayou was determined not to be a part of Pine Island Sound, then Clam Bayou would not be within the aquatic preserve, and that if Clam Bayou was not a part of Pine Island Sound when the Board adopted Resolution No. 70-25, Clam Bayou would not be within the legal description of the preserve, although Mr. Mallison did not actually concede that Clam Bayou was not a part of the preserve. Mr. Mallison also conceded, based upon aerial photographs in evidence, that when the Aquatic Preserve Act of 1975 was adopted by the Legislature, Clam Bayou was not then connected to Pine Island Sound. When the Act was passed, one would have to traverse by water from Clam Bayou, out through the Gulf of Mexico and then through Blind Pass in order to access Pine Island Sound.
In passing the Aquatic Preserve Act of 1975, the Legislature ratified the Board's Resolution No. 70-25 setting aside the preserve. That resolution by the Board, acting for the "owner" of the sovereign lands in question, the State of Florida, may be analogized to a "conveyance" of those lands into a special category of sovereignty lands. Thus, the Board, in enacting that resolution, occupied a position analogous to that of a grantor making a conveyance of real property.
The expert surveying witnesses presented by the Petitioner established, through their testimony, that generally-accepted principles of surveying include the interpretation of legal descriptions and conveyance instruments, such as deeds, and that in interpreting legal descriptions and conveyance instruments, the intent of the conveyor is the controlling factor in interpreting the legal description and determining the extent of property
conveyed by the instrument in question. In determining the intent of a grantor, the instrument must be construed as a whole and the intent gathered from the entire instrument, giving consideration and meaning to all the words in the legal description and to all parts of the instrument and any attendant contemporaneous instruments executed by the conveyor. General principles of surveying dictate that conveyance instruments be construed so as to give meaning to all words and parts because it is considered by expert surveyors that a grantor intends for each word to have some meaning in a legal description or conveying document. (See particularly, the testimony of witness Cole regarding these considerations.) The testimony of Mr. Wilkinson, the Respondent's surveying witness indicates that his opinion, referenced above, is opposed to the testimony concerning generally-accepted surveying standards for construing such legal descriptions and instruments espoused by the Petitioner's surveying witnesses. It would ignore parts of the legal description of the preserve which involve natural boundaries or monuments (mean high water line), which those witnesses opined were the most important or significant calls in any legal description, having priority, for instance, over manmade monuments. Because of these considerations and the thus demonstrated weakness in Mr. Wilkinson's interpretation of the legal description at issue, and because of the demonstrated expertise, general demeanor and knowledge of the Petitioner's surveying witnesses, their testimony is accepted and credited to the exclusion of the testimony of the Respondent's witness.
In determining the intent of the Board as to the extent of the preserve in question, when they adopted Resolution No. 70-25, later ratified by the Legislature, the instruments by which the preserve was established ("conveyed") by the framers of the resolution ("grantors") must be considered. Those instruments are contained in Petitioner's Exhibit No. 10-B, "A Report On The Proposed System Of Aquatic Preserves" by the Florida Inter-Agency Advisory Committee on Submerged Land Management and Resolution No. 70-25 itself, in evidence as Petitioner's Exhibit No. 6-A. The Committee report contains a map of the intended preserve. That map clearly shows that the boundary of the intended preserve, as pertinent hereto, extends across the headlands of the entrance to Blind Pass where Blind Pass exits from Pine Island Sound. That intended boundary of the preserve shows that Clam Bayou is approximately a mile outside the boundary of the proposed preserve. The report of the Committee containing that map was specifically adopted and referenced by the Board in Resolution No. 70-25. A second map was included in Resolution No. 70-25 and recorded in the Official Records of Lee County, Florida, at Book 648, page 736. Petitioner's Exhibit No. 6-B consists of that map, with "stippling" or shading added, which also shows that the boundaries of the preserve were not intended to extend into Blind Pass as far as the entrance to Clam Bayou. The shaded portion of that map shows that the preserve was intended to extend no farther than the bridge across Blind Pass lying north-northeastward of the entrance to Clam Bayou, which, judging from the scale depicted on that map, is approximately one- half mile or more from the entrance to Clam Bayou. This shaded or stippled version of the map contained in the resolution (Petitioner's Exhibit No. 6-B) was prepared by the Respondent and specifically by F.J. Hansen of the Division of Land Management in September 1970, shortly before the resolution was adopted.
While it is true, no doubt, as the Respondent maintains, that these maps are not and were not intended to depict the courses and distances involved with the accuracy of a certified survey, that position misses the point that the maps do clearly show that the intent of the framers of the resolution creating the preserve was that the boundary, in pertinent part, not include even all of Blind Pass, much less Clam Bayou. The map shown as Petitioner's Exhibit No. 6- B, containing the shaded delineation of the preserve, was and has been the
"working map" of DNR, showing its intent and interpretation of the bounds of the preserve during the ensuing years and, indeed, was furnished to DER by DNR for inclusion in DER's atlas of "outstanding Florida waters" reproduced and in evidence as Petitioner's Exhibit No. 3.
The evidence thus reflects that during the entirety of the history of the preserve, DNR acted and conducted its business with regard to the preserve and its boundaries in a manner consistent with these maps. It was only upon DNR personnel learning of the dredge and fill application dispute before DER that DNR sought to espouse, and agency head to adopt, an interpretation of the statute and rule, which incorporate the legal description contained in the resolution, which would attempt to include Clam Bayou within the bounds of the preserve. That recently-formulated interpretation of the statute, rule and resolution at issue is contrary to the preponderant expert surveying opinion evidence in this case, as well as the unrefuted evidence of the intent of the creators of the preserve and its boundaries and legal description, embodied in Petitioner's Exhibit Nos. 3, 6-A, 6-B, 10-B, and 17 in evidence. That change in the agency's interpretation of the statute, rule and resolution at issue is not explained by substantial evidence but rather, inferentially, is related to opinions of agency personnel concerning the collateral DER permit litigation related to the subject matter of this case. The agency's attempted explanation of this interpretation is outweighed by the preponderant evidence adduced by the Petitioner, which is accepted over that adduced by the agency.
Although the Intervenors adduced no direct evidence as to their standing, the stipulated facts, the petition and testimony show that, as parties to the related DER permit proceeding, they have sufficient interest in the outcome of this case so that, like the Petitioner, they have standing.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter and the parties to this proceeding. Section 120.57(1), Florida Statutes.
Section 258.39, Florida Statutes, declares certain submerged lands to be aquatic preserves. Included in that Section, at Subsection (22), is the description of the Pine Island Sound Aquatic Preserve as follows:
Pine Island Sound Aquatic Preserve, as described in the Official Records of Lee County in Book 648, pages 732-736.
Rule 16Q-20.02(19), Florida Administrative Code, renumbered as Chapter 18- 20.002(7)(a)19., Florida Administrative Code, defines the preserve also as described in the Official Records of Lee County, Florida, at Book 648, pages 732-736. The legal description of the preserve uses the term or "call" "mean high water line of...Pine Island Sound". The accepted expert testimony in this
case establishes that such a "call" in a legal description denominates a natural boundary or monument which, in the practice of surveying and attendant interpretation of legal descriptions, is accorded the highest priority in such interpretations and surveying, as opposed to manmade boundaries, monuments or courses and distances.
This testimony also established that the mean high water line as a boundary is not a static boundary. It is not fixed in place or time. Since the mean high water line, in effect, describes or demarcates the shoreline or
dividing point between submerged and upland lands, the location of that mean high water line boundary must perforce move when the shoreline moves or changes. Thus, to locate an area bounded by a mean high water line boundary, in determining whether a given point or location is within the bounds of a legal description or not, one must reference and employ the current mean high water line to determine the present location of a boundary in order to interpret the subject legal description and answer the question of whether a given point or site is within the bounds of that legal description. Presently, Clam Bayou is only connected to the Gulf of Mexico and under none of the theories or arguments advanced in this case, can the mean high water line of Pine Island Sound be construed to include waters only connected to the Gulf of Mexico. Indeed, as far back as 1974, Clam Bayou has only been connected to the Gulf of Mexico and thus can logically only be encompassed by the mean high water line of the Gulf of Mexico or of Clam Bayou itself, or both.
The expert surveying testimony adduced by the Petitioner establishes that the Headlands Rule is a frequently-applied concept by surveyors used to segregate different water bodies. If applied in the instant case, it would clearly establish that Clam Bayou is a separate and distinct water body from Pine Island Sound. The rationale of that rule and the case law cited in the Petitioner's memorandum shows that where water bodies have distinct names and identities, they are not to be considered synonymous with each other but are treated as separate water bodies. The unrefuted evidence of record shows that Clam Bayou has always been a separate, distinct, and separately-named water body since its inception on or before the year 1900 and that DNR has never previously considered Clam Bayou to be a part of Pine Island Sound or the preserve until the dispute arose in the instant case related to the Petitioner's application for the dredge and fill permit with DER. The testimony of witnesses Bulson, Debose and Cole established that a proper application of the Headlands Rule would exclude Clam Bayou from being considered to be a part of Pine Island Sound.
Even if that principle were not employed, however, the other evidence of record clearly establishes Clam Bayou to have never been a part of Pine Island Sound. Since Clam Bayou is a separate and distinct water body from Pine Island Sound, never being directly connected to the Sound, it is only by ignoring the words "Pine Island Sound" in the legal description that any argument can be made that Clam Bayou should be included within the preserve, based merely upon a tracing of the high water line through Blind Pass and around to and through the entrance to Clam Bayou, as Clam Bayou and its connection with Blind Pass existed at the time the resolution was passed and before 1974. The mean high water line being a movable boundary and Clam Bayou no longer having any connection with Blind Pass or the Sound, under no theory could the mean high water line of the Sound now encompass Clam Bayou.
In any event, the above evidence and Findings of Fact concerning the intent of the Board, concerning the intended boundaries of the preserve, show that strict application of the "Headlands Rule" was never intended and should not be applied in this case in construing the entire boundary, else numerous of the coves, inlets, bays and other water bodies opening into Pine Island Sound would be excluded from the preserve. The evidence referenced above concerning the Board's intent establishes that such a result was not intended. Correspondingly, however, that evidence of intent culminating in the above Findings of Fact concerning the intended extent of the preserve, as reflected in the above-referenced conveyance instruments and documents, shows that Clam Bayou was not intended to be included within the preserve, regardless of the applicability of the Headlands Rule.
The setting aside of the preserve by the Legislature, as discussed in the above Findings of Fact, was a ratification, by statute, of Resolution No. 70-25. That resolution itself may be deemed analogous to a conveyance of the submerged lands of the preserve into the special aquatic preserve category of sovereignty lands. An interpretation of the boundary description of the preserve as described in that resolution then should be interpreted much as if that resolution were a deed of real property. A deed should be construed so as to effectuate the manifest intent of the parties and of the grantor. Hardee v.
Horton, 108 So. 189 (Fla. 1925). The intent of the conveyor is the controlling factor in determining the extent of land described in the instrument. Holland v. State, 388 So.2d 1080 (Fla. 1st DCA 1980). In determining the intent of a grantor, the instrument at issue must be construed as a whole and the intent must be arrived at from the entire instrument, considering all parts of it as a whole. See McCormick-Hannah, Inc. v. Magruder, 163 So. 407 (Fla. 1935); Winchester v. Wells, 265 F.2d 405 (5th Cir. 1959); Thompson v. Ruff, 78 So. 489 (Fla. 1918). See also the expert testimony of witness Cole concerning interpretation of legal descriptions and generally-accepted surveying practice in this regard. Additionally, where the maker of an instrument executed separate instruments essentially contemporaneously with the conveying instrument, the intent of that grantor may be construed from a consideration of the other instruments, as well. Kach v. Colley, 201 So.2d 254 (Fla. 1st DCA 1967). Thus, a deed must be construed so as to give meaning to every word and part, as it is considered that the grantor intended for each word to have some meaning. A paramount rule for the construction of a deed is to construe the description so that no part shall be rejected. Ansley v. Graham, 74 So. 505 (Fla. 1924). In construing an instrument, an interpretation that gives meaning to each word is preferred over one that would change the meaning of words or give some words no force or effect in the interpretation. Ansley v. Graham, supra.
Clearly, in interpreting the effect of the legal description at issue, the above rules of construction of legal descriptions have applicability to the facts of this case, as established above. The agency, through the testimony of witness Wilkinson, bases its opinion and position that Clam Bayou is within the preserve on construction of the legal description of the preserve which would accord the words "Pine Island Sound" little or no meaning. Such a construction violates those applicable principles established by preponderant evidence and delineated above.
Witness Wilkinson's opinion would also ignore the question of determining the Board's intent when Resolution No. 70-25 was adopted. As indicated above, the intent of the grantor of an instrument concerning boundaries of real property is an important issue in construing legal descriptions. In this case, as shown by the above Findings of Fact concerning the intent of the Board, the exhibits in evidence referenced in those Findings of Fact, such as the maps and the resolution, clearly show the area contemplated by the Board to be encompassed by the boundaries of the preserve when they adopted it and "conveyed" the subject lands into that special status. Those exhibits clearly show that what was intended by the Board to be included in the preserve never included Clam Bayou. Rather, the boundary of the preserve vis-a- vis the then-existing entrance to Clam Bayou from Blind Pass was no further southwesterly in the direction of Clam Bayou than the bridge over Blind Pass and might even be construed to have been across the "headlands" of the entrance of Blind Pass into Pine Island Sound itself. Thus, the framers of the instruments in question, containing the maps and legal description here interpreted, clearly never intended to include Clam Bayou within the boundaries of the preserve.
The accepted expert surveying testimony in this case, having established that the intent of the maker of an instrument containing a legal description is controlling in the construction or interpretation of that legal description, and the intent of the Board having been shown not to have contemplated including Clam Bayou within the bounds of the preserve; and for the further reasons delineated in the above Findings of Fact and Conclusions of Law concerning the ambulatory nature of the mean high water line boundary, it is concluded that Clam Bayou is not now nor has it ever been included within the aquatic preserve.
It is further concluded, based upon the last above Finding of Fact that the Intervenors have standing to participate in this proceeding. The Motion to Dismiss should be denied.
Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore,
RECOMMENDED that a Final Order be entered by the Respondent agency finding that Clam Bayou and the proposed construction site at issue and referenced in the above Findings of Fact be deemed to be without the boundaries of the Pine Island Sound Aquatic Preserve.
DONE AND ENTERED this 9th day of December, 1991, in Tallahassee, Leon County, Florida.
P. MICHAEL RUFF Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, FL 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 10th day of December, 1991.
APPENDIX TO RECOMMENDED ORDER IN CASE NOS. 91-3249R AND 91-3770
Petitioner's Proposed Findings of Fact 1-7. Accepted.
8. Accepted, except that the maps are not exactly identical since Petitioner's Exhibit No. 3 is a stippled or shaded map and the map recorded in the Lee County Public Records at Book 648, page 736, in evidence, is not actually shaded or stippled.
9-29. Accepted.
Respondent's Proposed Findings of Fact 1-3. Accepted.
Accepted, but not as being materially dispositive of the issues presented.
Accepted.
6-12. Accepted.
Accepted, but not in itself materially dispositive.
Rejected, as not in accordance with the preponderant weight of the evidence.
Accepted.
16-17. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter.
Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and not entirely in accordance with the preponderant weight of the evidence.
Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and not entirely in accordance with the preponderant weight of the evidence.
Accepted.
Accepted, but not materially dispositive of the issues presented.
Accepted, but not materially dispositive of the issues presented and subordinate to the Hearing Officer's findings of fact on this subject matter.
Accepted, but not itself materially dispositive of the issues presented.
Accepted, but not itself materially dispositive of the issues presented.
Accepted.
Accepted, but not materially dispositive of the issues presented standing alone.
Accepted, but not materially dispositive of the issues presented standing alone.
Accepted, but not materially dispositive of the issues presented standing alone.
Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter.
Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter.
Intervenor's Proposed Findings of Fact (City of Sanibel) 1-2. Accepted.
Accepted, but not materially dispositive in this de novo proceeding.
Accepted, but not materially dispositive of the issues presented.
Intervenor's Proposed Findings of Fact (Ralph Clark, et al.)
Accepted, but not materially dispositive, given the de novo nature of this proceeding.
Accepted, but not materially dispositive of the issues presented.
Rejected, as not in accordance with the preponderant weight of the evidence.
COPIES FURNISHED:
Ken Plante, Esq.
General Counsel
Department of Natural Resources 3900 Commonwealth Boulevard
Mail Station #10
Tallahassee, FL 32399-3000
Kenneth G. Oertel, Esq. OERTEL, HOFFMAN, ET AL.
2700 Blair Stone Road
P.O. Box 6507
Tallahassee, FL 32314-6507
John Costigan, Esq. Edwin Steinmeyer, Esq.
Department of Natural Resources 3900 Commonwealth Boulevard
Tallahassee, FL 32399-3000
Robert D. Pritt, Esq. City of Sanibel
800 Dunlop Road
Sanibel, FL 33957
Mark A. Ebelini, Esq. HUMPHREY & KNOTT, P.A.
1625 Hendry Street Ft. Myers, FL 33901
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND DEPARTMENT OF NATURAL RESOURCES
JOHN ARMENIA,
Petitioner,
vs. DOAH Case No: 91-3770
BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND and DEPARTMENT OF NATURAL RESOURCES,
Respondents,
and
CITY OF SANIBEL and RALPH CLARK, ET AL.,
Intervenors.
/
FINAL ORDER
This cause cafe before the Governor and members of the Cabinet of the State of Florida, sitting as the Board of Trustees of the Internal Improvement Trust Fund ("Trustees") and the Department of Natural Resources ("Department"), at the regularly scheduled Cabinet Meeting on March 17, 1992, for consideration and final agency action.
The Hearing Officer assigned by the Division of Administrative Hearings, P. Michael Ruff, served the Recommended Order on the Executive Director of the Department of Natural Resources on December 10, 1991, a copy of which is attached as Exhibit A. Pursuant to Rule 18-7.001, Florida Administrative Code, each party was given twenty-five (25) days from the date of service of the Recommended Order to submit written exceptions thereto, including legal memoranda and proposed substituted orders. Intervenors, City of Sanibel and Ralph Clark, et al., timely filed their exceptions to the Recommended Order on
January 2, 1992. No exceptions were filed by the Petitioner, however, Petitioner filed a response to Intervenors' exceptions on January 23, 1992.
Having considered the complete record in this matter, the parties' proposed recommended orders, the Hearing Officer's Recommended Order, and the parties' exceptions, supporting memoranda of law, and proposed substitute orders and responses thereto, and being otherwise fully advised in the premises, the Governor and members of the Cabinet make the following findings and conclusions:
FINDINGS OF FACT
Finding of Fact 1 is amended to read as follows:
The Petitioner proposes to construct an elevated timber bridge across Clam bayou on Sanibel Island in order to provide access to Silver Key, a body of land on which he proposes to develop three single-family home sites. Mark Miller, a field manager in the Fort Myers district office of DNR, issued a letter dated April 2, 1991, in which he expressed an opinion, on behalf of DNR, that Clam Bayou was included within the preserve. On June 12, 1991, the Governor and Cabinet ratified their intent to include Clam Bayou in the Pine Island Sound Aquatic Preserve when the preserve was created in 1970.
Findings of Fact 2 through 7 are approved, adopted, and incorporated herein by reference in their entirety.
Finding of Fact 8 is rejected to the extent that the Hearing Officer found that Clam Bayou has never had a direct connection to Pine Island Sound. This finding is rejected in that it is not supported by competent substantial evidence. The evidence produced at hearing clearly shows that at the time of the creation of the preserve in 1970, and, in fact, from at least 1968 to 1972, Clam Bayou was directly connected to Pine Island Sound via Blind Pass, and not connected to the Gulf of Mexico. (Respondent's Exhibit Nos. 3, 4, 5 and 6; Bulson, TR 185-189; Dubose, TR 267, 274, 276; Cole, TR 340, 344-345)
Finding of Fact 8 is therefore amended to read as follows:
Clam Bayou has never been a part of Pine Island Sound itself. It formed out of the waters of the Gulf of Mexico and was directly connected to Pine Island Sound via Blind Pass between 1968 and 1972, including 1970, the date which the preserve was created. Since at least 1974, Clam Bayou has been only connected to the Gulf of Mexico due to a change in the course of Blind Pass.
At various times, it has been totally closed off with no connection to any other water body.
Finding of Fact 9 is amended to read as follows:
Presently, Clam Bayou is only connected to the Gulf of Mexico and has been so at least as far back as 1974. A tracing along the mean high water line to all bodies of water connected to Pine Island Sound would not presently include Clam Bayou, since it only connects, if at all, to the Gulf of Mexico. The remainder of Finding of Fact 9 is rejected in that it is a discussion of the legal significance of the mean high water line.
Finding of Fact 10 is approved, adopted, and incorporated herein by reference.
That portion of Finding of Fact 11 which states that "DNR never previously considered Clam Bayou to be a part of the preserve until Petitioner applied for his dredge and fill permit from DER," is rejected because it is not supported by competent substantial evidence. The uncontested evidence shows that, in the past, DNR has been inconsistent in its determinations of the boundaries of the preserve. (Petitioner's Exhibit No. 5) The remainder of Finding of Fact 11 is rejected in that it involves the direct application of a - conclusion of law and is therefore inappropriately characterized as a Finding of Fact.
Finding of Fact 12 is rejected in its entirety for the following reasons:
First, the Hearing Officer's implication that the agency and its experts would ignore the words "Pine Island Sound" in the description is not supported by competent substantial evidence. The agency s expert surveyor repeatedly testified that he would not ignore the words "Pine Island Sound," but would instead treat them as a general geographic reference. (Wilkinson, TR 411-412, 414, 421, 425-427 and 433)
The remainder of Finding of Fact 12 is rejected in that it contains a conclusion of law not appropriately included as a finding of fact, and erroneously applies that conclusion to determine how the legal description of Pine Island Sound Aquatic Preserve should be interpreted.
Finding of Fact 13 is approved, adopted and incorporated herein by reference in its entirety.
Finding of Fact 14 is amended to read as follows:
Mr. Wilkinson opined that he would draw a boundary line at the entrance to the passes (the gulfward entrances) which connected Pine Island Sound and intermediate water bodies to the Gulf of Mexico at the mouths of each pass. For instance, where Blind Pass, near the northern tip of Sanibel Island in the specific area in question, connects Pine Island Sound with the Gulf of
Mexico, Mr. Wilkinson, in effect, would run a boundary line across Blind Pass to separate Pine Island Sound and the preserve from the Gulf. Mr. Wilkinson's interpretation, however, would accord little significance to the words "Pine Island Sound" in the legal description nor to the fact that both Blind Pass and Clam Bayou are separately-named, distinct water bodies from Pine Island Sound itself. Under his interpretation, it would not be very important as to whether a water body is actually a part of Pine Island Sound so long as a continuous mean high water line connection between a certain-named water body and Pine Island Sound itself can be traced. In other words, Mr. Wilkinson's interpretation, by implication, takes the words from the legal description: "...the mean high water line of.. Pine Island Sound" and interprets that as meaning the mean high water line of Pine Island Sound and connecting or adjoining waters or water bodies.
Finding of Fact 15 is rejected to the extent that it concerns the deposition testimony of Mr. Pete Mallison and characterizes his testimony as inconsistent with that of Mr. Wilkinson. Mr. Mallison never conceded that Clam Bayou was not a part of Pine Island Sound, which is consistent with Mr. Wilkinson's opinion that Clam Bayou is part of the Pine Island Sound Aquatic Preserve. In addition, Finding of Fact 15 bears no relevance to the issue of the case. Mr. Mallison is not a surveyor and was not qualified as, nor did he
purport to be, an expert on surveying or boundary law. Finding of Fact 15 is therefore amended to read:
Mr. Mallison conceded, based upon aerial photographs in evidence, that when the Aquatic Preserve Act of 1975 was adopted by the Legislature, Clam Bayou was not then connected to Pine Island Sound. When the Act was passed, one would have to traverse by water from Clam Bayou, out through the Gulf of Mexico and then through Blind Pass in order to access Pine Island Sound.
Finding of Fact 16 is approved, adopted and incorporated herein by reference in its entirety.
Finding of Fact 17 is rejected in its entirety in that it sets forth generally accepted principles of surveying, which are clearly conclusions of law.
Findings of Fact 18 and 19 are approved, adopted and incorporated herein by reference in their entirety.
Finding of Fact 20 is approved, adopted and incorporated herein by reference, except to the extent that it suggests that DNR formulated its interpretation of the preserve boundary specifically as a response to this particular dredge and fill application. As stated in paragraph 5 above, the uncontested evidence shows that DNR staff had been inconsistent in their determinations in the past. (Petitioner's Exhibit No. 5) Therefore, that portion of Finding of Fact 20 is rejected as it is not based on competent substantial evidence.
Finding of Fact 21 is approved, adopted and incorporated herein by reference in its entirety.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter and the parties to this proceeding. Section 120.57(1), Florida Statutes.
The Hearing Officer's Conclusions of Law as to the Headlands Rule, the Separate Name Theory, Ambulatory Boundaries, and Generally Accepted principles of Surveying are rejected in their entirety in that they fail to apply the existing case law to the facts at issue.
The boundary of the Pine Island Sound Aquatic Preserve was designated by the Board of Trustees of the Internal Improvement Trust Fund on December 11, 1970, in Resolution No. 70-25. That Resolution contained a written description of the boundaries of the preserve. Also attached to the resolution was a map depicting the approximate location of the Preserve. (Petitioner's Exhibit 6-A) Resolution No. 70-25, later codified in Section 258.39(22), Florida Statutes, may be deemed analogous to a conveyance of the submerged lands of the preserve into the special aquatic preserve category of sovereignty lands.
An interpretation of the boundary description of the preserve as described in that resolution then should be interpreted much as if that resolution were a deed of real property. A deed should be construed so as to effectuate the manifest intent of the parties and of the grantor. Hardee v. Horton, 108 So.
189 (Fla. 1925). The intent of the conveyor is the controlling factor in determining the extent of land described in the instrument. Holland v. State, 388 So.2d 1080 (Fla. 1st DCA 1980). In determining the intent of a grantor, the instrument at issue must be construed as a whole and the intent
must be arrived at from the entire instrument, considering all parts of it as a whole. See McCormick-Hannah, Inc. v. Magruder, 163 So. 407 (Fla. 1935); Winchester v. Wells, 265 F.2d 405 (5th Cir. 1959); Thompson v. Ruff, 78 So. 489 (Fla. 1918). Additionally, where the maker of an instrument executed separate instruments essentially contemporaneously with the conveying instrument, the intent of that grantor may be construed from a consideration of the other instruments, as well. Kach v. Cooley, 201 So.2d 254 (F1a. 1st DCA 1967). All of the maps admitted into evidence in this case depicting the boundary of the preserve were prepared at or near the time of adoption of the resolution setting forth the boundary of the preserve. All of them exclude Clam Bayou from the preserve. (Petitioner's Exhibits 3, 6-A, 6-B and 10-B).
Since the maps were available to the Board of Trustees, it therefore must be inferred that they were considered by the Trustees when establishing Pine Island Sound Aquatic Preserve. Although it was the intent of the Board of Trustees to include Clam. Bayou in Pine Island Sound Aquatic Preserve, the ambiguity
of the legal description used to demarcate the Preserve and the consistency in the Department's maps which exclude Clam Bayou from the Preserve did not effectuate this position.
ORDER
Based on the foregoing findings of fact and conclusions of law, it is ORDERED AND ADJUDGED as follows:
Clam Bayou and the proposed construction site at issue and referenced in the above Findings of Fact and Conclusions of Law is deemed to be outside the boundaries of the Pine island Sound Aquatic Preserve.
Any party to this Order is hereby advised of the right to seek judicial review of this Final Order pursuant to Section 120.68, Florida Statutes, and Rules 9.030(b)(c) and 9.110, Florida Rules of Appellate Procedure. To initiate an appeal, a Notice of Appeal must be filed with the Department Clerk, Department of Natural Resources, Douglas Building, 3900 Commonwealth Boulevard, MS 35, Tallahassee, Florida 32399-3000, and with the appropriate District Court of Appeal within thirty(30) days of the filing of this Final Order with the Department Clerk. A Notice of Appeal filed with the District Court of Appeal must be accompanied by the filing fee specified in Section35.22(3), Florida Statutes.
DONE AND ORDERED this 23 day of March 1992, in Tallahassee, Florida.
VIRGINIA WETHERELL
Executive Director of the Department of Natural Resources and designated agent for the Board of Trustees of the Internal Improvement Trust Fund
Copies furnished to:
Kenneth J. Plante, Esq. General Counsel
Department of Natural Resources 3900 Commonwealth Boulevard
Mail Station #10
Tallahassee, Florida 32399-3000
Kenneth G. Oerte1, Esq. OERTEL, HOFFMAN, ET AL.
2700 Blair Stone Road Tallahassee, Florida 32314-6507
John Costigan, Esq.
Ed Steinmeyer, Esq.
Department of Natural Resources 3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
Robert D. Pritt, Esq. City of Sanibel
800 Dunlop Road
Sanibel, Florida 33957
Mark A. Ebelini, Esq. HUMPHREY & KNOTT, P.A.
1625 Hendry Street
Ft. Myers, Florida 33901
Appendix to Final Order
Intervenor City of Sanibel's Exceptions to the Hearing Officer's Recommended Order
EXCEPTIONS TO FINDINGS OF FACT
Exception to Finding of Fact Number 1 is accepted, but not materially dispositive of the issues presented. Intervenor suggests that the Hearing Officer erroneously found that the dispute arose "when the Board and DNR took a position that Clam Bayou . . . is a part of the Pine Island Sound Aquatic Preserve." The dispute arose when a DNR planning manager took the position that Clam Bayou was in the preserve. (Petitioner's Exhibit #4) This determination was made before the June 12, 1991 Cabinet Meeting, when the Board of Trustees ratified their intent to include Clam Bayou in the preserve when the preserve was created in 1970. This finding was made independently of the Hearing Officer's legal conclusions and, to the extent the Hearing Officer misstated the facts, the misstatement has no bearing on the ultimate issue of whether Clam Bayou is a part of the preserve.
Exception to Finding of Fact Number 2 is rejected. The Hearing Officer's findings are supported by competent substantial evidence. (TR 96)
Exception to Finding of Fact Number 5 is rejected. The Hearing Officer's findings are supported by competent substantial evidence. (Petitioner's Exhibit #13)
Exception to Finding of Fact Number 6 is rejected. The Hearing Officer's findings are supported by competent substantial evidence.
Exception to Finding of Fact Number 7 is rejected. The Hearing Officer's findings are supported by competent substantial evidence. (Petitioner's Exhibit #`s 12 and 13)
Exception to Finding of Fact Number 8 is accepted to the extent that between 1968 and 1972, Clam Bayou was physically connected to Pine Island Sound via Blind Pass. This exception has been incorporated into revised Finding of Fact 8.
Exception to Finding of Fact Number 9 is accepted and the principles set forth in the exception have been incorporated into the amended Finding of Fact 9.
Exception to Finding of Fact Number 10 is rejected. The Hearing Officer's findings are supported by competent substantial evidence.
9. Exception | to | Finding | of | Fact | Number | 11 | is | accepted. |
10. Exception | to | Finding | of | Fact | Number | 12 | is | accepted. |
11. Exception | to | Finding | of | Fact | Number | 14 | is | accepted. |
12. Exception | to | Finding | of | Fact | Number | 15 | is | accepted. |
13. Exception | to | Finding | of | Fact | Number | 17 | is | accepted. |
Exception to Finding of Fact Number 18 is rejected. The Hearing Officer's findings are supported by competent substantial evidence. (Petitioner's Exhibit #3, 6-A, 6-B and 10-B)
Exception to Finding of Fact Number 19 is rejected. The Hearing Officer's findings are supported by competent substantial evidence. (Petitioner's Exhibit #3, 6-A, 6-B and 10-B)
Exception to Finding of Fact Number 20 is accepted.
EXCEPTIONS TO CONCLUSIONS OF LAW
EXCEPTION TO CONSIDERATION OF THE RECOMMENDED ORDER BY THE GOVERNOR AND CABINET
Intervenor's exception to consideration of the Recommended Order by the Governor and Cabinet is rejected. The transcript of the June 12, 1991 Cabinet meeting clearly shows the Governor and Cabinet's intent to have the issues in this case determined by a hearing officer. Although Petitioners and Intervenors presented brief oral argument to the Cabinet, no evidence was received and the Cabinet did not review the resolution and legal description, or all of the maps, photographs, or various other exhibits presented at hearing. The Cabinet did not make any findings of fact or conclusions of law with regard to this agenda item, and did not reach a conclusion as to the proper interpretation of the legal description or as to a finding of the actual intent of the Board of Trustees at the time the resolution was adopted.
EXCEPTIONS TO OTHER CONCLUSIONS OF LAW
Intervenors have asserted several exceptions to the conclusions of law contained in the Hearing Officer's Recommended Order. This order will address those exceptions in the format as presented in Intervenor s exceptions.
Ambulatory Boundaries.
This exception is rejected without reaching the merits because a conclusion of law as to ambulatory boundaries is not necessary or applicable to the determination of this matter.
Clam Bayou's Presence in the Aquatic Preserve in 1970
The "Headlands Rule".
This exception is rejected without reaching the merits because, as recognized by the Hearing Officer, a conclusion of law as to the Headlands Rule is not necessary or applicable to the determination of this matter. The Hearing Officer recognized that the headlands rule was never intended to be applied to the aquatic preserve:
[S]trict application of the "Headlands Rule" was never intended and should not be applied in this case in construing the entire boundary, else numerous of the coves, inlets, bays, and other water bodies opening into Pine Island Sound would be excluded from the preserve. The evidence ... concerning the Board's intent establishes that such a result was not intended.
(Recommended Order, Conclusions of Law, p. 22)
The "Separate Name" Theory.
This exception is rejected without reaching the merits because a conclusion of law as to a Separate Name Theory is not necessary or applicable to the determination of this matter.
Maps of the Preserve.
This exception is rejected. There is competent substantial evidence in the record to support the Hearing Officers's conclusion that the intent of the drafters of the legal description was to exclude Clam Bayou from the preserve.
| Issue Date | Proceedings |
|---|---|
| Mar. 25, 1992 | Final Order filed. |
| Dec. 10, 1991 | Recommended Order sent out. CASE CLOSED. Hearing held 8/8/91. |
| Dec. 10, 1991 | Case No/s:91-3249 & 91-3770 unconsolidated. |
| Jun. 28, 1991 | Petition of City of Sanibel to Intervene w/Exhibit A&B filed. (From Robert D. Pritt) |
| Jun. 21, 1991 | Order (Motion to Consolidate Case Nos. 91-3249R and 91-3770) sent out. |
| Jun. 20, 1991 | Initial Order issued. |
| Jun. 19, 1991 | Agency referral letter; Petition for Formal Administrative Proceeding and Petition for Determination of Invalidity of Unadopted Rule; Intent to Issue filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 23, 1992 | Agency Final Order | |
| Dec. 10, 1991 | Recommended Order | Law favors interpret of legal description which gives effect to all its words. also look to intent of grantor and survey principles ests by expert |
