STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF COMMUNITY AFFAIRS, )
)
Petitioner, )
)
vs. ) CASE NO. 92-1751DRI
) RONALD and PATRICIA LACROIX, ) Owners, PIERCE CONSTRUCTION )
AND BUILDERS, General Contractor, ) and MONROE COUNTY, )
)
Respondents, )
) DEPARTMENT OF COMMUNITY AFFAIRS, )
)
Petitioner, )
)
vs. ) CASE NO. 92-3949DRI
) DAVID GOODRIDGE, Owner, PIERCE ) CONSTRUCTION AND BUILDERS, General )
Contractor, and MONROE COUNTY, )
)
Respondents, )
) DEPARTMENT OF COMMUNITY AFFAIRS, )
)
Petitioner, )
)
vs. ) CASE NO. 92-5582DRI
) DICK AND JEAN MADSON, Owners, ) MARK W. MILNES CONSTRUCTION, )
General Contractor, and )
MONROE COUNTY, )
)
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 4 and 5, 1992, in Key West, Florida.
APPEARANCES
For Petitioner: Lucky T. Osho, Esquire Department of Community Affairs 2740 Centerview Drive
Tallahassee, Florida 32399-2100
For Respondents, Charles M. Milligan, Esquire Ronald and Patricia Post Office Box 1367 LaCroix, David Goodridge 505 Whitehead Street
Dick and Jean Madson, Key West, Florida 33041 Pierce Construction and
Builders, and Mark W. Milnes Construction:
For Respondent, No Appearance Monroe County:
STATEMENT OF THE ISSUES
As to Case 92-1751DRI whether Building Permit No. 9110002865 issued by Monroe County, Florida, to Ronald and Patricia LaCroix as owners and Pierce Construction and Builders as contractor for the construction of a dock is contrary to the provisions of Chapter 380, Florida Statutes, the Monroe County Comprehensive Plan and the Monroe County Land Development Regulations.
As to Case 92-3949DRI whether Building Permit No. 9110003422 issued by Monroe County, Florida, to David Goodridge as owner and Pierce Construction and Builders as contractor for the construction of a dock is contrary to the provisions of Chapter 380, Florida Statutes, the Monroe County Comprehensive Plan and the Monroe County Land Development Regulations.
As to Case 92-5582DRI whether Building Permit No. 9210004503 issued by Monroe County, Florida, to Dick and Jean Madson as owners and Mark W. Milnes Construction as contractor for the construction of a dock 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 appeals to the Florida Land and Water Adjudicatory Commission challenging Monroe County's issuance of the subject building permits pursuant to Section 380.07, Florida Statutes. Prior to hearing, Case No. 92-1751DRI, Case No. 92-3949DRI, and Case No. 92-5582DRI were consolidated with Case No. 92-2958DRI and Case No. 92-5583DRI. Following the conclusion of the formal hearing that was conducted for these consolidated cases, Case No. 92-2958DRI was severed from the other cases because that case presented different legal issues. A separate Recommended Order was issued in Case No. 92-2958DRI contemporaneously with this Recommended Order. Case No. 92- 5583DRI was severed from the previously consolidated cases on January 21, 1993, because there was no appearance made on behalf of the Respondents in that proceeding and, consequently, no evidence in support of the proposed development. A separate Recommended Order was issued contemporaneously with this Recommended Order in Case No. 92-5583DRI.
The three remaining permits at issue in these cases are for the construction of docks on private residential lots that front on canals that are more than twenty feet wide and, at the terminal point of each structure, four feet deep. The manner in which these structures will be constructed is not at issue. Petitioner's concern is that each structure fails to meet certain standards contained in Monroe County's land development regulations because boats cannot navigate between the proposed locations of these structures and deep water without traversing waters that are less than four feet deep at mean
low water. The parties stipulated that each of these projects lies in an Area of Critical State Concern.
At the formal hearing, Petitioner presented the testimony of Kenneth Metcalf and of Curtis Kruer. At the consolidated hearing of the above- referenced cases, Petitioner introduced a total of eighteen exhibits, four of which pertained to Case No. 92-1751DRI, two of which pertained to Case No. 92- 3949DRI, two of which pertained to Case No. 92-5582DRI, and two pertained to all three cases. (The remaining Petitioner exhibits pertained to Case No. 92- 2958DRI.) Mr. Metcalf was accepted as an expert in land use planning and administration of the Florida Keys Comprehensive Plan and Land Development Regulations. Mr. Kruer was accepted as an expert in marine biology.
Respondents presented the testimony of Robert L. Herman, William Hunt, and Lloyd
A. Good, Jr. Mr. Herman is Director of Growth Management for Monroe County. Mr. Hunt was accepted as an expert in the field of marine biology. Mr. Good is an attorney and developer. Respondents presented four exhibits. 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 transcript is filed. 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
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. Each appeal in this consolidated proceeding was timely and each involved a development within the Florida Keys Area of Critical State Concern as designated under Sections 380.05 and 380.0552, Florida Statutes.
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 orders that are the subject of this appeal.
Respondents, Ronald and Patricia LaCroix, are the owners of real property known as Lot 43 Saddlebunch RV Park on Saddlebunch Key in unincorporated Monroe County. On December 12, 1991, Monroe County issued building permit 9110002865 to Mr. and Mrs. LaCroix as owners and to Pierce Construction and Builders as general contractors, to build a boat dock on the subject property and extending beyond the mean high water mark into a man-made canal. At the point that the boat dock would terminate, the canal is more than twenty feet wide and is more than four feet deep at mean low tide. The canal extends throughout the Saddlebunch RV Park.
Respondent, David Goodridge is the owner of real property known as Lots
38 and 39 Saddlebunch RV Park on Saddlebunch Key in unincorporated Monroe County. On March 20, 1992, Monroe County issued building permit 9110003422 to Mr. Goodridge as owner and to Pierce Construction and Builders as general contractors, to build a seawall and boat dock on the subject property and
extending beyond the mean high water mark into a man-made canal. At the point that the boat dock would terminate, the canal is more than twenty feet wide and is more than four feet deep at mean low tide. The canal extends throughout the Saddlebunch RV Park.
Respondents, Dick and Jean Madson are the owners of real property known as Lot 38, Section D, Sugarloaf Shores subdivision, Sugarloaf Key in unincorporated Monroe County. On May 13, 1992, Monroe County issued building permit 9210004503 to Mr. and Mrs. Madson as owners and to Mark W. Milnes Construction as general contractors, to build a dock and davits on the subject property and extending beyond the mean high water mark into a man-made canal.
At the point that the boat dock would terminate, the canal is more than twenty feet wide and is more than four feet deep at mean low tide. The canal extends throughout Sugarloaf Shores subdivision.
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. 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:
* * *
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;
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;
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.
OBJECTIVES
1. To protect, maintain and, where appropriate, to improve the quality of nearshore waters in Monroe County.
* * *
POLICIES
1. To prohibit land use that directly or indirectly degrade nearshore water quality.
* * *
To prohibit the development of water dependent facilities, including marinas, at locations that would involve significant degradation of the biological character of submerged lands.
To limit the location of water-dependent facilities at locations that will not have a significant adverse impact on 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.
Section 9.5-4(W-1), Monroe County Code, provides as follows: (W-1) "Water at least four (4) feet below
mean sea level at mean low tide" means locations that will not have a significant adverse impact on off- shore resources of particular importance. For the purposes of this definition, "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.
Benthic communities exist in the waters between the two canals and deep water, such as rock-hard bottom, sea grasses, algae, and hard coral. Turtles, manatees, sharks, stingrays, eagle rays, snapper, pink shrimp, mullet, and other marine animals populate the Sound. Sea grass beds play an important role in water quality maintenance in the Keys through filtration, nutrient uptake, stabilization of the bottom, and as a habitat for commercially important species.
Neither the canal system for Saddlebunch RV Park nor the canal system for Sugarloaf Shores subdivision has access to deep water without crossing areas of water in Sugarloaf Sound with depths of less than four feet at mean low water. Many of these shallow areas contain sea grass beds. The operation of motor driven boats may result in damage to sea grass beds and shallow water marine communities through prop dredging if boats were to attempt to cross these shallow areas. Although there is evidence of prop dredging in parts of these shallow waters, it was not shown that the damage was done by boats traveling from these canal systems and deep water. Whether boats that may be docked at these sites if these permits are granted will cause damage at some future time to some portion of the shallow waters of Sugarloaf Sound between the canal systems and deep water is speculation.
Since 1986, Monroe County has adopted an interpretation of Section 9.5-345(m)(2), Monroe County Code, and of Section 2.104, Nearshore Waters,
Monroe County Comprehensive Plan, Volume II, Future Land Use Element, that would permit the construction of each of the subject projects. That interpretation permits the development of marginal seawalls, vertical bulkheads and docks in subdivisions that were under development in 1986 if the proposed structure would terminate in a channel more than 20 feet wide with water more than four feet deep at mean low tide. The structures that are the subject of this proceeding meet that permitting criteria. Monroe County's interpretation of the so-called "four foot rule" is that the rule was intended to restrict the development of boating access facilities in new, undeveloped subdivisions and to regulate proposed expansion of existing marinas and the development of new marinas.
Monroe County's interpretation of its rules is that the type development at issue in this proceeding, constructed on an individual family home-site, would have minimal effect on the nearshore water environment of critical state concern. Monroe County considers the subject applications to meet all of its permitting criteria.
Respondents presented evidence that several similar projects were permitted at approximately the same time as the subject permits were issued without Petitioner filing an appeal. This evidence was insufficient to establish that Petitioner should be estopped to appeal the subject permits, that Petitioner engaged in selective enforcement of its regulatory power, or that Petitioner otherwise brought the subject appeals for an inappropriate purpose.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.
The subject appeal was timely taken by Petitioner pursuant to Section 380.07(2), Florida Statutes, from development orders of Monroe County granting the subject building permits. Pursuant to the provisions of Section 120.57(1), Florida Statutes, the propriety of Monroe County's action was reviewed de novo. Transgulf Pipeline Co. v. Board of County Commissioners of Gadsden County, 438 So.2d 876 (Fla. 1st DCA 1983).
The ultimate burden of persuasion rested on the applicants to establish their entitlement to the permit authorizing their respective, 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).
Petitioner's argument that the subject projects do not meet the permitting requirements of Monroe County's four foot rule is rejected. Respondents established that each of the subject projects meet the criteria for the issuance of a permit pursuant to Monroe County's long-standing interpretation of the four foot rule.
Generally, an administrative construction of a statute 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). The same deference has been accorded to rules which have been in effect over an extended period and to the meaning assigned to them by officials
charged with their administration. Pan American World Airways, Inc. v. Florida Public Service Commission, 427 So.2d 716 (Fla. 1983), and State Department of Commerce, Division of Labor v. Matthews Corp., 358 So.2d 256 (Fla. 1st DCA 1978). Moreover, the agency's interpretation does not have to be the only one or the most desirable one; it is enough if it is permissible. Pan American World Airways, Inc. v. Florida Public Service Commission, supra, and Florida Power Corp. v. Department of Environmental Regulation, 431 So.2d 684 (Fla. 1st DCA 1983). No less deference should be accorded Monroe County's interpretation of its land development regulations where, as here, such interpretation is reasonable, evidences due consideration for private rights of ownership, and is not contrary to its comprehensive plan. See e.g. Thomson v. Village of Tequesta Board of Adjustment, 546 So.2d 457 (Fla. 4th DCA 1989).
It is concluded that all three of the subject developments at issue are consistent with the Monroe County comprehensive plan and land development regulations.
Respondents, Ronald and Patricia LaCroix and Pierce Construction and Builders have established that they are entitled to the issuance of building permit 9110002865 that is at issue in Case 92-1751DRI.
Respondent, David Goodridge and Pierce Construction and Builders have established that they are entitled to the issuance of building permit 9110003422 that is at issue in Case No. 92-3949DRI.
Respondents, Dick and Jean Madson and Mark W. Milnes Construction have established that they are entitled to the issuance of building permit 9210004503 that is at issue in Case 92-5582DRI.
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 which affirms Monroe County's decision to issue building permit number 9110002865, and which dismisses the appeal filed by the Department of Community Affairs that is at issue in Case 92-1751DRI.
It is further recommended that the Florida Land and Water Adjudicatory Commission enter a final order which affirms Monroe County's decision to issue building permit number 9110003422, and which dismisses the appeal filed by the Department of Community Affairs that is at issue in Case No. 92-3949DRI.
It is further recommended that the Florida Land and Water Adjudicatory Commission enter a final order which affirms Monroe County's decision to issue building permit number 9210004503, and which dismisses the appeal filed by the Department of Community Affairs that is at issue in Case No. 92-5582DRI.
DONE AND ORDERED this 26th day of January, 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 26th day of January, 1993.
APPENDIX TO RECOMMENDED ORDER TO CASE NO. 92-1751DRI,
CASE NO. 92-3949DRI, AND CASE NO. 92-5582DRI
The following rulings are made on the proposed findings of fact submitted by Petitioner.
The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, 8, 10, 11, and 14 are adopted in material part by the Recommended Order.
The proposed findings of fact in paragraph 7 are rejected as being unnecessary to the conclusions reached.
The proposed findings of fact in the first two sentences of paragraph 9 are adopted in material part by the Recommended Order. The proposed findings of fact in the last sentence of Paragraph 9 are rejected as being unsupported by the evidence. While the evidence established that damage may result, the evidence did not establish that damage would result.
The proposed findings of fact in the first sentence of paragraph 12 are rejected as being unsubstantiated by the evidence since the water in the canals is deeper than four feet. The proposed findings in the second sentence of paragraph 12 are subordinate to the findings made. The proposed findings of fact in the last sentence of Paragraph 12 are rejected as being unsupported by the evidence. While the evidence established that damage may result, the evidence did not establish that damage would result.
The proposed findings of fact in paragraph 13 are rejected as being subordinate to the findings made.
The proposed findings of fact in the first sentence of paragraph 15 are rejected since the evidence established that Monroe County's interpretation of the four foot rule dates to 1986. The proposed findings of fact in the second sentence of paragraph 15 are rejected as being unnecessary to the conclusions reached. The remaining proposed findings of fact in paragraph 15 are adopted in material part by the Recommended Order.
The proposed findings of fact in the first sentence of paragraph 16 are subordinate to the findings made. The proposed findings of fact in the second sentence of paragraph 16 are rejected as being argument.
The proposed findings of fact in the final sentence of paragraph 17 (there are two paragraphs 16, the second of which is being referred to as paragraph 17) are adopted in material part by the Recommended Order. The remaining proposed findings of fact in paragraph 17 are rejected as being unnecessary to the conclusions reached.
The following rulings are made on the proposed findings of fact submitted by Respondents.
The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 16, and 17 are rejected as being the recitation of testimony that is subordinate to the findings made.
The proposed findings of fact in paragraph 12 are rejected as being contrary to the record of the proceedings.
The proposed findings of fact in paragraph 13 are adopted in material part by the Recommended Order.
The proposed findings of fact in paragraph 14 are adopted in part by the Recommended Order are rejected in part as being subordinate to the findings made.
The proposed findings of fact in paragraph 15 are rejected as being unnecessary to the conclusions reached.
COPIES FURNISHED:
Lucky T. Osho, Esquire Department of Community Affairs 2740 Centerview Drive
Tallahassee, Florida 32399-2100
Randy Ludacer, Esquire Monroe County Attorney
310 Fleming Street
Key West, Florida 33040
James T. Hendrick, Esquire Morgan & Hendrick
317 Whitehead Street
Key West, Florida 33040
William R. Kynoch, Deputy Director Florida Land and Water Adjudicatory
Commission
Executive Office of the Governor
311 Carlton Building Tallahassee, Florida 32301
Carolyn Dekle, Director
South Florida Regional Planning Council Suite 140
3400 Hollywood Boulevard
Hollywood, Florida 33021
Robert Herman
Monroe County Growth Management Division Public Service Building, Wing III
5825 Jr. College Road Stock Island
Key West, Florida 33040
Charles M. Milligan, Esquire Post Office Box 1367
Key West, Florida 33041
David and Florence Clark 4606 Wayne Road
Corona Del Mar, California 92625
Edward Warren Werling Post Office Box 1042
Summerland Key, Florida 33042
Theodore W. Herzog, Esquire
209 Duval Street
Key West, Florida 33040
Pierce Construction & Builders Route 4, Box 319
Summerland Key, Florida 33042
Dick and Jean Madson Post Office Box 276
Summerland Key, Florida 33402
Mark W. Milnes Route 5, Box 775-G
Big Pine Key, Florida 33043
David M. Maloney, Esquire Office of the Governor The Capitol, Room 209
Tallahassee, Florida 32399-0001
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.
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
LAND AND WATER ADJUDICATORY COMMISSION
DEPARTMENT OF COMMUNITY AFFAIRS,
Petitioner,
vs. CASE NO. APP-92-001
DOAH CASE NO. 92-1751DRI
RONALD and PATRICIA LACROIX, Owners, PIERCE CONSTRUCTION AND
BUILDERS, General Contractor, and MONROE COUNTY,
Respondents,
/ DEPARTMENT OF COMMUNITY AFFAIRS,
Petitioner,
vs. CASE NO. APP-92-017
DOAH CASE NO. 92-3949DRI
DAVID GOODRIDGE, Owner, PIERCE CONSTRUCTION AND BUILDERS,
General Contractor, and MONROE COUNTY,
Respondents,
/ DEPARTMENT OF COMMUNITY AFFAIRS,
Petitioner,
vs. CASE NO. APP-92-028
DOAH CASE NO. 92-5582DRI
DICK and JEAN MADSON, Owners, MARK W. MILNES CONSTRUCTION,
General Contractor, and MONROE COUNTY,
Respondents,
/
FINAL ORDER
This cause came before the Governor and Cabinet sitting as the Florida Land and Water Adjudicatory Commission, ("Commission") on April 27, 1993, pursuant to Section 380.07, Florida Statutes, for consideration of a Recommended Order issued by the Division of Administrative Hearings in the above-referenced proceedings. Based on a review of the record in this matter, the Commission
voted four to three in favor of adopting the Findings of Fact, and accepted in part and rejected in part the Conclusions of Law set forth in the Recommended Order dated January 26, 1993, and hereby DENIED with conditions the permits at issue.
BACKGROUND
Respondents, Ronald and Patricia LaCroix, are the owners of real property known as Lot 43 Saddlebunch RV Park on Saddlebunch Key in unincorporated Monroe County. On December 12, 1991, Monroe County issued building permit 9110002865 to Mr. and Mrs. LaCroix as owners and to Pierce Construction and Builders as general contractors, to build a boat dock on the subject property and extending beyond the mean high water mark into a man-made canal. At the point that the boat dock would terminate, the canal is more than twenty feet wide and is more than four feet deep at mean low tide. The canal extends throughout the Saddlebunch RV Park.
Respondent, David Goodridge is the owner of real property known as Lots 38 and 39 Saddlebunch RV Park on Saddlebunch Key in unincorporated Monroe County. On March 20, 1992, Monroe County issued building permit 9110003422 to Mr.
Goodridge as owner and to Pierce Construction and Builders as general contractors, to build a seawall and boat dock on the subject property and extending beyond the mean high water mark into a man-made canal. At the point that the boat dock would terminate, the canal is more than twenty feet wide and is more than four feet deep at mean low tide. The canal extends throughout the Saddlebunch RV Park.
Respondents, Dick and Jean Madson are the owners of real property known as Lot38, Section D, Sugarloaf Shores subdivision, Sugarloaf Key in unincorporated Monroe County. On May 13, 1992, Monroe County issued building permit 9210004503 to Mr. and Mrs. Madson as owners and to Mark W. Milnes Construction as general contractors, to build a dock and davits on the subject property and extending beyond the mean high water mark into a man-made canal. At the point that the boat dock would terminate, the canal is more than twenty feet wide and is more than four feet deep at mean low tide. The canal extends throughout Sugarloaf Shores subdivision.
The Department of Community Affairs (DCA) appealed the grant of the permits to construct the subject docks, a hearing was held and the Hearing Officer found in favor of respondents and recommended to this Commission that we affirm Monroe County's decisions to issue the three permits and dismiss DCA's appeals.
RULING ON PETITIONER'S EXCEPTIONS
DCA argues that the Hearing Officer erred when he construed the County's Land Development Regulations (LDR's) to conclude that the proposed docks comply with the environmental design criteria for mangroves and submerged lands. On the authority of DCA vs. David and Florence Clark, Edward Warren Werling and Monroe County, Case No. LW-93-015, April 7, 1993, this exception is GRANTED in part and DENIED in part. The environmental design criteria do not require that a four foot channel extend to open water, as DCA requests, however, there is required a marked channel to open water which shall be approved by DNR before the permits may issue.
DCA argues that the Hearing Officer erred when he ruled that the County should receive deference in matters concerning interpretation of their LDR's. We agree and GRANT this exception to the extent articulated in Clark,
that is, the DCA shall have deference over the County in such matters, but as we stated in Clark, that "...deference to an agency interpretation cannot justify a construction which is clearly contradictory to the unambiguous language of the land development regulation." Clark, at 6.
WHEREFORE, this Commission hereby amends the Hearing Officer's Recommended Order dated January 26, 1993, as reflected in the granting of Petitioner's exception above. Otherwise, this Commission adopts the Recommended Order as described above. The Commission hereby enters this Final Order DENYING Monroe County's decision to issue permit numbers 9110002865, 9110003422, and 9210004503. However, in compliance with section 380.08(3), Florida Statutes, the Commission specifies that once there are markers to open water which are approved by DNR, the permit may be granted by the County.
Any party to this Order has the right to seek judicial review of the Order pursuant to section 120.68, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the Clerk of the Commission, Office of Planning and Budgeting, Executive Office of the Governor, Room 311 Carlton Building, 501 South Gadsden Street, Tallahassee, Florida 32399-0001; and by filing a copy of the Notice of Appeal, accompanied by the applicable filing fees, with the appropriate District Court of Appeal.
Notice of Appeal must be filed within 30 days of the day this Order is filed with the Clerk of the Commission.
DONE AND ORDERED, this 29th day of April 1993, in Tallahassee, Florida.
Teresa B. Tinker for
David K. Coburn, Secretary, Florida Land and Water Adjudicatory Commission
FILED with the Clerk of the Florida Land and Water Adjudicatory Commission this 29th day of April 1993.
Kelly T. Tucker
Clerks Florida Land and Water Adjudicatory Commission
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by United States Mail to the parties listed below this 29th day of April 1993.
Teresa B. Tinker for
DAVID K. COBURN, Secretary Florida Land and Water Adjudicatory Commission
The Honorable Lawton Chiles David and Florence Clark Governor 4606 Wayne Road
210, The Capitol Corona De Mar, California Tallahassee, Florida 32399-0001 92625
The Honorable Robert Butterworth Carolyn Dekle, Director Attorney General South Florida Regional PL01, The Capitol Planning Council Tallahassee, Florida 32399-0001 3400 Hollywood Boulevard
Suite 140
The Honorable Bob Crawford Hollywood, Florida 33021
Commissioner of Agriculture
LL-29, The Capitol James T. Hendrick, Esquire Tallahassee, Florida 32399-0001 County Attorney
317 Whitehead Street
The Honorable Gerald Lewis Key West, Florida 33040
Comptroller
2001, The Capitol Robert Herman, Lorenzo Aghemo Tallahassee, Florida 32399-0001 Monroe County Growth
Management Division The Honorable Tom Gallagher Public Service Building
Treasurer 5100 College Road, Wing III
LL-27, The Capitol Key West, Florida 33040
Tallahassee, Florida 32399-0001
Theodore W. Herzog, Esquire The Honorable Betty Castor 209 Duval Street Commissioner of Education Key West, Florida 33040
LL-24, The Capitol
Tallahassee, Florida 32399-0001 Randy Ludacer, Esquire
Monroe County Attorney
The Honorable Jim Smith 310 Fleming Street
Secretary of State Key West, Florida 33040 LL-10, The Capitol
Tallahassee, Florida 32399-0001 Dick and Jean Madson
Post Office Box 276
Charles M. Milligan, Esquire Summerland Key, Florida 33402 Post Office Box 1367
Key West, Florida 33041 Mark W. Milnes Route 5, Box 775-G
Pierce Construction & Builders Big Pine Key, Florida 33043 Route 4, Box 319
Summerland Key, Florida 33042 Lucky T. Osho, Esquire
Assistant General Counsel
Edward Warren Werling Department of Community Post Office Box 1042 Affairs
Summerland, Florida 33042 2740 Centerview Drive
Tallahassee, Florida 32399-
2100
================================================================= DISTRICT COURT OPINION
=================================================================
IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA
MONROE COUNTY, a political NOT FINAL UNTIL TIME EXPIRES TO
subdivision of the State of FILE MOTION FOR REHEARING AND Florida; RONALD LACROIX and DISPOSITION THEREOF IF FILED. PATRICIA LACROIX; and DAVID
GOODRIDGE, CASE NO. 93-1427 AND 93-1626 LOWER TRIBUNAL NO. APP 92-007
Appellants, DOAH CASE NOS. 92-1751DRI 92-3949DRI
vs. 92-5582DRI
DEPARTMENT OF COMMUNITY AFFAIRS and FLORIDA LAND AND WATER ADJUDICATORY COMMISSION,
Appellees.
/ Opinion filed December 14, 1994.
An appeal from an Order of the Florida Land and Water Adjudicatory Commission.
James T. Hendrick and Ralf G. Brookes of Morgan and Hendrick, Key West, for Appellant Monroe County; and Lloyd A. Good, Jr., Lower Sugarloaf Key, for Appellants Lacroix and Goodridge.
David L. Jordan, Deputy General Counsel, Lucky T. Osho, Assistant General Counsel, and Sherry A. Spiers, Assistant General Counsel, Tallahassee, for Appellee Department of Community Affairs; and Mark R. Schlakman, Assistant General Counsel, Tallahassee, for Appellee Florida Land and Water Adjudicatory Commission.
PER CURIAM
AFFIRMED
BOOTH, ALLEN, AND BENTON, JJ., CONCUR.
| Issue Date | Proceedings |
|---|---|
| Jun. 06, 1996 | Final Order filed. |
| Dec. 16, 1994 | First DCA Opinion filed. |
| Dec. 16, 1994 | 1st DCA Opinion issued 12-14-94 along w/copy of Agency Final Order filed in DOAH Case No. 92-2957DRI filed. |
| Jun. 01, 1993 | Directions to the clerk filed. |
| May 24, 1993 | AGENCY APPEAL, ONCE THE RETENTION SCHEDULE of -KEEP ONE YEAR AFTER CLOSURE- IS MET, CASE FILE IS RETURNED TO AGENCY GENERAL COUNSEL. -ac |
| Jan. 26, 1993 | Recommended Order sent out. CASE CLOSED. Hearing held 11/4-5/92. |
| Jan. 25, 1993 | Order Denying Motion for Sanctions sent out. (motion to impose sanctions denied) |
| Jan. 21, 1993 | Order of Consolidation sent out. (Consolidated cases are: 92-1751DRI, 92-3949DRI, 92-5582DRI) |
| Jan. 21, 1993 | Order of Severance (Case No/s 92-1751DRI, 92-5582DRI, 92-5583DRI, 92-3949DRI: unconsolidated.) cases no. 92-5583DRI are severed so that a separate recommended order can be entered in case no. 92-5583DRI) |
| Jan. 04, 1993 | Proposed Recommended Order & Cover Letter from C. Milligan filed. |
| Dec. 18, 1992 | (Petitioner) Notice of Filing Proposed Recommended Order; Department of Community Affairs` Proposed Recommended Orders filed. |
| Dec. 17, 1992 | Department of Community Affairs for Judicial Notice filed. |
| Nov. 25, 1992 | Transcript (2 Vols) filed. |
| Nov. 05, 1992 | CASE STATUS: Hearing Held. |
| Nov. 02, 1992 | Motion for Protective Order; Motion for View filed. (From Charles M. Milligan) |
| Oct. 30, 1992 | (DCA) Notice of Hearing (set for 11/2/92) filed. |
| Oct. 30, 1992 | (DCA) Notice of Filing Exhibit D; & Attatched Exhibit D (to go with Motion to Exclude Testimony or Sever and Continue & Motion to Impose Sanctions) filed. |
| Oct. 30, 1992 | (DCA) Motion to Impose Sanctions; Motion to Exclude Testimony or Sever and Continue filed. |
| Oct. 21, 1992 | (Petitioner) Notice of Taking Deposition Duces Tecum filed. |
| Oct. 21, 1992 | (Petitioner) Notice of Taking Deposition Duces Tecum filed. |
| Oct. 12, 1992 | (Petitioner) Notice of Taking Deposition Duces Tecum filed. |
| Oct. 09, 1992 | Order sent out. (at time of hearing counsel for respondents announced that the matters were resolved and motions withdrawn. It is ordered that such motions are moot, and no ruling thereon is necessary) |
| Oct. 02, 1992 | Notice of Service of Department of Community Affairs' First Set of Interrogatories and Request for Admissiosn to Respodnent Shoremont Holiday Homes, Inc.; Notice of Service of Department of Community Affairs' First Set of Interrogatoaries and Request fo |
| Oct. 02, 1992 | Notice of Service of Department of Community Affairs` First Set of Interrogatories and Request for Admissions to Respondent Ken Bockhaut; Notice of Service of Department of Community Affairs` First Set of Interrogatories and Request for Admissions to Re |
| Oct. 02, 1992 | Notice of Service of Department of Community Affairs` First Set of Interrogatories and Request for Admissions to Respondent Monroe County; Notice of Service of Department of Community Affairs` First Set of Interrogatories and Request for Admissions to R |
| Oct. 02, 1992 | Notice of Hearing; Motion for Protective Order; Motion to Compel or for Sanctions; Motion to Compel filed. (From Charles M. Milligan) |
| Oct. 01, 1992 | (Petitioner) Notice of Filing Answers to Interrogatories filed. |
| Sep. 17, 1992 | Order of Consolidation and Notice of Hearing (set for Nov 4-6, 1992; 8:30am; Key West) sent out. (Consolidated cases are: 92-1751DRI, 92-2958DRI, 92-3949DRI, 92-5582DRI & 92-5583DRI). |
| Sep. 17, 1992 | Order sent out. (92-2957DRI is severed from consolidated cases). |
| Sep. 09, 1992 | (Respondents) Notice of Filing Answers to Interrogatories filed. |
| Sep. 08, 1992 | Letter to WJK from D. Clark (re: request to sever consolidated cases for 92-2957DRI) filed. |
| Sep. 03, 1992 | (DCA) Response to Request for Admissions filed. |
| Sep. 03, 1992 | (D. Goodridge) Notice of Filing Answers to Interrogatories; Response to Request for Admissions (for 92-3949DRI) filed. |
| Aug. 21, 1992 | Order sent out. (petitioner's motion is granted with regard to its first interrogatories and request for production) |
| Aug. 18, 1992 | Notice of Service of Deprtment of Community Affairs' First Set of Interrogatories and REquest for Admissions to Respondent Monroe County filed. |
| Aug. 18, 1992 | Notice of Service of Department of Community Affairs' First Set of Interrogatories and Request for Admissions to Respondent David Goodridge; Notice of Service of Department of Community Affaris' First Set of Interrogatories and Request for Admissions to |
| Aug. 18, 1992 | Notice of Service of Department of Community Affairs' First Set of Interrogatories and Request for Admissions Respondent Monroe County; Notice of Service of Department of Community Affairs' First SEt of Interrogatories and Request for Admimssions to Res |
| Aug. 18, 1992 | Notice of Service of Department of Community Affairs' First Set-Interrogatories and Request for Admissions to Respondent Edward Warren Werling filed. |
| Aug. 10, 1992 | Response to Petition for Appeal of Development Order filed. (From Charles M. Milligan) |
| Aug. 07, 1992 | Order of Consolidation and Renotice of Hearing sent out. (Consolidated cases are: 92-1751DRI, 92-2957DRI, 92-2958DRI & 92-3949DRI; Hearingset for 11/4-6/92; 8:30am; Key West) |
| Jul. 29, 1992 | Order Rescheduling Hearing sent out. (hearing rescheduled for September 24 and 25, 1992; 8:30am; Key West) |
| Jul. 29, 1992 | (Respondents) Notice of Filing Answers to Interrogatories; Departmentof Community Affairs First Set of Interrogatories to Respondents Ronald and Patricia Lacroix; Notice of Service of Interrogatories w/Interrogatories; Request for Admissions filed. |
| Jul. 28, 1992 | Department of Community Affairs' Motion to Consolidate and Continuance filed. |
| Jul. 28, 1992 | (Petitioner) Notice of Substitution of Counsel filed. |
| Jul. 06, 1992 | (Respondent) Motion for Continuance filed. |
| Jun. 25, 1992 | Motion of Department of Community Affaris For Continuance of Final Hearing and Expedted Ruling filed. |
| May 21, 1992 | (Petitioner) Notice of Service of Department of Community Affairs' First Set of Interrogatories to Respondent Monroe County filed. |
| May 21, 1992 | (Petitioner) Notice of Service of Department of Community Affairs' First Set of Interrogatories to Respondents Ronald and Patricia Lacroix filed. |
| May 04, 1992 | Notice of Hearing sent out. (hearing set for July 9 and 10, 1992; 8:30am; Key West) |
| May 04, 1992 | Order sent out. (respondents' motion denied) |
| Apr. 09, 1992 | (Respondents) Motion to Stay filed. |
| Mar. 23, 1992 | Notification card sent out. |
| Mar. 23, 1992 | Response to Petition for Appeal of Development Order; Notice of Appearance w/cover ltr filed. |
| Mar. 19, 1992 | Agency Referral letter; Department of Community Affairs' Petition forAppeal of Development Orders; Notice of Commission Meeting filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Dec. 14, 1994 | Opinion | |
| Apr. 29, 1993 | Agency Final Order | |
| Jan. 26, 1993 | Recommended Order | Permits for docks upheld. County's interpretation of its regulation entitled to deference. |
