STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF COMMUNITY AFFAIRS, )

)

Petitioner, )

)

vs. ) CASE NO. 91-6328DRI

)

LAWRENCE J. BRUNO, Owner, and The ) BOARD OF COUNTY COMMISSIONERS OF ) MONROE COUNTY, FLORIDA, )

)

Respondents, )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on November 6, 1992, in the City of Plantation Key, Florida.

APPEARANCES

For Petitioner: Lucky T. Osho, Esquire

2740 Centerview Drive

Tallahassee, Florida 32399-2100

For Respondents: James S. Mattson, Esquire

Mattson & Tobin, P.A. Post Office Box 586

Key Largo, Florida 33037

For Respondent, No Appearance Monroe County:

STATEMENT OF THE ISSUES

Whether Building Permit No. 9020000827 issued by Monroe County, Florida, to Lawrence J. Bruno is contrary to the provisions of Chapter 380, Florida Statutes, the Monroe County Comprehensive Plan and the Monroe County Land Development Regulations.

PRELIMINARY STATEMENT

Petitioner timely filed its appeal to the Florida Land and Water Adjudicatory Commission challenging Monroe County's issuance of the subject building permit pursuant to Section 380.07, Florida Statutes. Monroe County did not appear. However, Monroe County is not dismissed as a party to this proceeding since it is the local government which issued the development order under appeal.

The subject development order pertained to a structure that, for ease of reference, will be referred to as a dock at a single family dwelling that is

located in an "Area of Critical State Concern". The subject dock was constructed prior to the enactment of the pertinent Monroe County's land development regulations and terminates in water that is less than four feet deep. Mr. Bruno bought the property in 1985 and began making repairs to the dock soon thereafter. In 1991, Mr. Bruno performed certain work on the dock and thereafter applied for and received the subject permit. The permit, which was granted after the construction was completed, contained a condition that boats could not be docked at the structure. Petitioner timely appealed the issuance of the after-the-fact permit by Monroe County.

The parties assert their respective positions in Part II of the Prehearing statement. Petitioner contends that the construction should be considered new construction that should not be granted an after-the-fact permit because the structure ". . . is inconsistent with Section 9.5-345(m)(2)d, Monroe County Code, and Policy (3) of the Marine Resource Management Policies of the Monroe County Comprehensive Plan."

Respondent Bruno asserts his position in the alternative. First, he asserts that ". . . the permit is valid because the structure in question existed prior to the code and plan provisions relied upon by DCA, and was, at most, a lawful, non-conforming, structure that was repaired pursuant to the after-the-fact permit." In the alternative, Respondent Bruno asserted the position that the provisions relied upon by Petitioner ". . . are not applicable to structures where boat mooring is not allowed . . .".

At the formal hearing, Petitioner presented the testimony of Kenneth Metcalf, who was accepted as an expert in land use planning and administration of the Florida Keys Comprehensive Plan and Land Development Regulations.

Petitioner presented nine exhibits, seven of which were accepted into evidence. Respondents presented the testimony of Mr. Bruno, Glenn Boe, and Earl R. Rich. Mr. Boe is a consulting engineer and Dr. Rich was accepted as an expert in the fields of terrestrial biology and marine biology. At the formal hearing, Respondent presented five exhibits and following the hearing submitted a composite exhibit consisting of three photographs as a late-filed exhibit. All exhibits offered by the parties were accepted into evidence.

A transcript of the proceedings has been filed. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the filing of the transcript. Rule 60Q-2.031, Florida Administrative Code.

Rulings on the parties' proposed findings of fact may be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the state land planning agency charged with the responsibility to administer the provisions of Chapter 380, Florida Statutes, and the regulations promulgated thereunder. Petitioner has the authority to appeal to the Florida Land and Water Adjudicatory Commission any development order issued in an area of critical state concern. The appeal in the instant proceeding was timely.

   
   

2. Monroe County is a political subdivision of the State of Florida and is responsible for issuing development orders for development in unincorporated Monroe County. Monroe County issued the development order that is the subject of this appeal.

3. Respondent Lawrence J. Bruno is the owner of real property known as Lot 9, Block 20, Crain's Subdivision, on Grassy Key in unincorporated Monroe County, having purchased the property in 1985. Mr. Bruno has constructed a single family dwelling on that property, but the building permit for the construction of the dwelling is not at issue in this proceeding.

   
   

4. Most of Monroe County, including the subject property, is within the Florida Keys Area of Critical State Concern as designated under Sections 380.05 and 380.0552, Florida Statutes.

   
   

5. At the time Mr. Bruno purchased the property in 1985, the lot was vacant, but there was a wooden dock in existence that was used by the neighboring lot owners.

   
   

6. Monroe County's comprehensive plan, which has been approved by the Petitioner and by the Administration Commission, is implemented through its adopted land development regulations, codified in Chapter 9.5, Monroe County Code. The wooden dock that was on the property at the time Mr. Bruno purchased his property was built before Monroe County adopted the following land development regulations and was a lawful, preexisting structure. Section 9.5, Monroe County Code, pertains to structures that were in existence at the time the subject land development regulations were adopted, but which do not conform to those regulations. Section 9.5-141, Monroe County Code, provides as follows:

   
   

   The purpose of this article is to regulate and limit the continued existence of uses and structures established prior to the enactment of this chapter that do not conform to the provisions of this chapter. Many nonconformities may continue, but the provisions of this article are designed to curtail substantial investment in nonconformities and to bring about their eventual elimination in order to preserve the integrity of this chapter.

   
   

7. Section 9.5-144 allows the continued existence and the ordinary repair and maintenance of nonconforming structures which predated the adoption of the subject land development regulations, and provides, in pertinent part, as follows:

   
   

   1. Authority to Continue: A nonconforming structure devoted to a use permitted in the land use district in which it is located may be continued in accordance with the provisions of this section.

   2. Ordinary Repair and Maintenance: Normal maintenance and repair of registered nonconforming structures may be performed.

   3. Enlargements and Extensions: Nonconforming structures which are used in a manner conforming to the provisions of this chapter may be enlarged or extended provided that the nonconformity is not further violated. . . .

8. From the time he purchased the property in 1985 until the subject construction in 1991, Mr. Bruno made periodic improvements that constituted ordinary repair and maintenance that did not require a permit from Monroe County. In 1991, Mr. Bruno constructed a concrete pier on top of the existing wooden pier and rotated the terminal platform of the pier so that the terminal platform is now T-shaped. The concrete pier is on its own supports and is independent of the wooden pier, which still exists under the new concrete pier. Mr. Bruno contends that this construction in 1991, which was performed without obtaining a permit from Monroe County, should be construed to be ordinary maintenance and repair of the preexisting wooden pier. This contention is rejected. The greater weight of the evidence establishes that Mr. Bruno went beyond the mere maintenance and repair of the preexisting wooden pier and constructed a new concrete pier on top of the existing pier.

   
   

9. After the construction of the concrete pier was completed, Mr. Bruno was cited by Monroe County for non-permitted construction. He thereafter applied to Monroe County for an after the fact permit. Monroe County subsequently issued Permit No. 9020000827, the permit that is the subject of this appeal. That permit authorized the construction that had been completed by Mr. Bruno, but it contained a restriction that no propeller driven boats are to be docked or used in the area of the pier. Prior to the construction that is at issue in these proceedings, Mr. Bruno could moor boats at the wooden pier because it was a preexisting nonconforming structure. The restriction contained in the building permit issued by Monroe County that prohibits the mooring of boats at the concrete pier has not been challenged by Mr. Bruno.

   
   

10. Section 9.5-345(m)(2), Monroe County Code, referred to as the four foot rule, provides as follows:

    
    

    (2) All structures on any submerged lands and mangroves shall be designed, located and constructed such that:

    * * *

    1. No structure shall be located on submerged land which is vegetated with sea grasses except as is necessary to reach waters at least four (4) feet below mean low level for docking facilities;

    2. No docking facility shall be developed at any site unless a minimum channel of twenty

    (20) feet in width where a mean low water depth of at least minus four (4) feet exists;

    
    

11. Section 2.104, Nearshore Waters, Monroe County Comprehensive Plan, Volume II, Future Land Use Element, provides, in pertinent part, as follows:

    
    

    The Florida Keys are dependent on nearshore water quality for their environmental and economic integrity. The heart of the Florida Keys economy, the means by which Monroe County exists as a civil and social institution, is based on its unique oceanic character. If nearshore water quality is not maintained, then quality of life and the economy of Monroe County will be directly and immediately impacted.

    1. OBJECTIVES

       1. To protect, maintain and, where appropriate, to improve the quality of nearshore waters in Monroe County.

       * * *

    2. POLICIES

    1. To prohibit land use that directly or indirectly degrade nearshore water quality.

    * * *

    1. To prohibit the development of water dependent facilities, including marinas, at locations that would involve significant degradation of the biological character of submerged lands.

    2. To limit the location of water-dependent facilities at locations that will not have a significant adverse impact on off-shore resources of particular importance. For the purposes of this policy, off-shore resources of particular importance shall mean hard coral bottoms, habitat of state or federal threatened and endangered species, shallow water areas with natural marine communities with depths at mean low tide of less than four (4) feet, and all designated aquatic preserves under Florida Statutes section

    258.39 et seq.

    
    

12. By Final Judgment entered June 7, 1991, the Honorable Richard G. Payne, Judge of the Circuit Court of the Sixteenth Judicial Circuit, in and for Monroe County, Florida, ruled in Stanton v. Monroe County, Case No. 91-20-035- CA-18, that Monroe County's four foot rule does not apply to swimming piers, concluding, in pertinent part, as follows at page five of the Final Judgment:

    
    

    5. To the extent that the County's Comprehensive Plan and Land Development Regulations fail to provide for swimming piers

    ... the court finds that it is unreasonable to treat such piers as if they were docks at which boats are to be moored. Pursuant to the judicial review authority of Chapter 163, Fla. Stat., the court declares . . . [the four foot rule] inapplicable to piers at which boats are not to be moored. The County has adequate judicial remedies, including injunction, to prevent the use of such piers, including the subject pier, for the mooring of boats.

    
    

13. Petitioner's concern is that boats will moor at the structure regardless of the restrictions on the permit and that these boats will cause degradation to the nearshore waters while crossing to deep water. Damage to the benthic communities in the vicinity of the Bruno's property and degradation to the nearshore waters would occur if propeller driven boats were to moor at the subject dock in violation of the restrictions that have been placed on the permit. Petitioner's concern is premised on the unwarranted assumptions that the structure will be illegally used at some point in the future by boats.

14. Petitioner did not establish that damage would be done to the environment by this structure since the mooring of boats is prohibited. The greater weight of the evidence established that there was no risk of damage to sea grass beds or other benthic communities by the structure so long as there is compliance with the restrictions contained in the permit.

    
    

15. Respondents presented evidence that several similar projects were permitted at approximately the same time as Mr. Bruno's permit without Petitioner filing an appeal. These shallow water structures are intended to provide personal access to the water, either because of heavy mangrove fringe or difficult access to the water. The Florida Department of Environmental Regulation, the Florida Department of Natural Resources, the U.S. Army Corps of Engineers and Monroe County have, in the past, issued permits for these type structures.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.

    
    

17. The subject appeal was timely taken by Petitioner pursuant to Section 380.07(2), Florida Statutes, from a development order of Monroe County granting Mr. Bruno's request for an after the fact building permit for the construction on the dock that was on the premises at the time he purchased the property in 1985. Pursuant to the provisions of Section 120.57(1), Florida Statutes, the propriety of Monroe County's action was reviewed de novo. Transgulf Pipeline Co. v. Board of County Commissioners of Gadsden County, 438 So.2d 876 (Fla. 1st DCA 1983).

    
    

18. The ultimate burden of persuasion rested on Mr. Bruno to establish his entitlement to the permit authorizing their proposed development. Young v. Department of Community Affairs, 567 So.2d 2 (Fla. 1st DCA 1990), and Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981).

    
    

19. Section 9.5, Monroe County Code, pertains to structures that were in existence at the time the subject land development regulations were adopted, but which do not conform to those regulations. The wooden pier was properly considered a preexisting structure that could be repaired and maintained pursuant to Section 9.5, Monroe County Code.

    
    

20. The construction performed by Mr. Bruno should not be considered "normal maintenance or repair" since he built a new concrete dock over the existing wooden dock and rotated the terminal platform of the existing dock. Such construction goes beyond what can reasonably be construed as being "normal maintenance or repair". Compare, White Advertising International v. Florida Department of Transportation, 364 So.2d 104 (Fla., 1st DCA 1978), in which the Court found that alterations to existing outdoor advertising signs were too extensive to be either customary maintenance or repair. Consequently, it is concluded that the project should not be "grandfathered", and that it must be determined whether the permit is consistent with the Monroe County's land development regulations.

    
    

21. Generally, an administrative construction of a statute or rule by an agency responsible for its administration is entitled to great deference and should not be overturned unless clearly erroneous. Department of Environmental

    Regulation v. Goldring, 477 So.2d 532 (Fla. 1985); All Seasons Resorts, Inc. v. Division of Land Sales, Condominiums, and Mobile Homes, 455 So.2d 544 (Fla. 1st DCA 1984); and Sans Souci v. Division of Land Sales and Condominiums, 421 So.2d 623 (Fla. 1st DCA 1982). In this proceeding, deference has been given to Petitioner's interpretation of the subject rules.

    
    

22. The Stanton ruling, supra, while not binding, is persuasive authority and provides rationale for the position that neither Section 9.5-345(m)(2)c, or by Section 9.5-345(m)(2)d, Monroe County Code, apply to structures, such as the one involved in this proceeding, at which boats cannot be moored. The common usage of the term "docking facility" contemplates that boats will be moored at the structure. The condition of the permit prohibiting the mooring of boats at the structure, which is not challenged herein, renders Sections 9.5-345(m)(2)c. and d., Monroe County Code, inapplicable. Further, the provisions of Section 9.5-345(m)(2)c., Monroe County Code is inapplicable because the area of the structure is not vegetated with sea grasses.

    
    

23. The subject structure may be properly considered a "water dependent facility" within the meaning of Section 2.104, Nearshore Waters, Monroe County Comprehensive Plan, Volume II, Future Land Use Element. However, because the subject structure prohibits the mooring of boats, it is concluded that it would have no adverse effect on the nearshore water quality or on any offshore resource of particular importance. The structure would not degrade the biological character of submerged lands. Consequently, it is concluded that Petitioner failed to establish that the subject structure is inconsistent with Section 2.104, Nearshore Waters, Monroe County Comprehensive Plan, Volume II, Future Land Use Element.

    
    

24. Notwithstanding the deference afforded Petitioner's interpretation of the foregoing provisions of the Monroe County Code and Land Development Regulations, it is concluded that Respondent has established that they are inapplicable to the subject project.

    
    

25. Respondent limited his proof to establishing the inapplicability of the provisions of the Monroe County Code and of the policy considerations of the Monroe County Comprehensive Plan cited in opposition to the permit by Petitioner in its appeal. Respondent did not establish that the project, as new construction, met all other permitting criteria contained in the Monroe County Code and the Monroe County Comprehensive Plan, but that question was not at issue on this appeal. Consequently, it is concluded that the issuance of the after-the-fact permit by the Monroe County Building Department should be affirmed.

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 affirming Monroe County's issuance of building permit number 9020000827.

DONE AND ENTERED this 11th day of June, 1993, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 11th day of June, 1993.

APPENDIX TO RECOMMENDED ORDER CASE NO. 91-6328DRI

The following rulings are made on the proposed findings of fact submitted by Petitioner.

1. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, 7, 11, and 12 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraphs 8 and 10 are subordinate to the findings made.

3. The proposed findings of fact in the first sentence of paragraph 9 are rejected as being contrary to the greater weight of the evidence. While Mr. Metcalf testified that there was a boat moored at the structure when he inspected the structure in June 1991, there was no evidence as to whose boat he observed or the circumstances that resulted in the boat being moored at the structure. Mr. Bruno's testimony that he sold his boat and that he does not use the structure for the mooring of boats is persuasive. The remaining proposed findings in paragraph 9 are subordinate to the findings made.

The following rulings are made on the proposed findings of fact submitted by Respondent Bruno.

1. The proposed findings of fact in paragraphs 1, 2, 4, 5, 7 and 8 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in the first sentence of paragraph 3 are adopted in material part by the Recommended Order. The proposed findings of fact in the second sentence of paragraph 3 are rejected as being unnecessary to the conclusions reached.

3. The proposed findings of fact in paragraphs 6 and 9 are rejected as being subordinate to the findings made.

4. The proposed findings of fact in paragraph 10 are rejected as being unnecessary to the conclusions reached.

COPIES FURNISHED:

James S. Mattson, Esquire Mattson & Tobin

Post Office Box 586

Key Largo, Florida 33037

Lucky T. Osho, Esquire David Jordan, Esquire

Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

Linda Loomis Shelley, 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

James T. Hendrick, Esquire Attorney for Monroe County Post Office Box 1117

Key West, Florida 33040

Carolyn Dekle, Director

South Florida Regional Planning Council 3400 Hollywood Boulevard

Suite 140

Hollywood, Florida 33021

Bob Herman, Herb Rabin, Lorenzo Aghemo, Pat McNeese

Monroe County Growth Management Division Public Service Building, Wing III

5100 Junior College Road West Stock Island

Key West, Florida 33040

David K. Coburn, Secretary

Florida Land and Water Adj. Commission Executive Officer of the Governor

311 Carlton Building Tallahassee, Florida 32301

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 ten 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.

Docket for Case No: 91-006328DRI

Orders for Case No: 91-006328DRI