STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF COMMUNITY AFFAIRS, )

)

Petitioner, )

)

vs. ) CASE NO. 92-7532DRI

)

JIM AND PAULETTE HOLZINGER, ) Owners; PINEWOOD ENTERPRISES, )

INC., as general contractor; ) and MONROE COUNTY, a political ) subdivision of the State of )

Florida, )

)

Respondents. )

)

RECOMMENDED ORDER

This matter was heard in Key West, Florida, on April 30, 1993, by William

R. Dorsey, the Hearing Officer, designated by the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Stephanie M. Callahan, Esquire

Assistant General Counsel Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

For Respondent: Theodore W. Herzog, Esquire

209 Duval Street

Key West, Florida 33040 STATEMENT OF THE ISSUES

The issue is whether the three permits (for land clearing, fill and for the construction of a single-family residence) issued by Monroe County to Jim and Paulette Holzinger comply with a) open space ratios and b) environmental design criteria applicable to the types of habitat, as described in the Monroe County land development regulations, found on the property.

PRELIMINARY STATEMENT

Monroe County issued a composite of three building permits to the Holzingers, one for land clearing, one for fill, and one for construction of a single-family residence on Lot 17, Section B of Long Beach Estates, on Big Pine Key on July 21, 1992. Each permit bears the number 9010001986.

The Department of Community Affairs reviewed the permits, for the lot is in an area of critical state concern, and the permits are "development orders"

under Sections 380.031(3) and 380.07, Florida Statutes. The Department concluded that the permits violate provisions of the land development regulations found in the Monroe County Code and the County's comprehensive development plan, which have mandatory open space ratios for mangroves of 100 percent and for beach berm of 90 percent, and which prohibit the use of fill for driveways in mangrove and beach berm areas.

Stipulations

The parties agreed in the Joint Prehearing Stipulation filed at the opening of the hearing that conditions are attached to the building permits, which are found in the handwritten notes issued by Monroe County biologist Diana Stephenson and in a memorandum dated August 8, 1991. The conditions include that "all Bay Cedar trees in the construction area shall be successfully transplanted on site or relocated by a qualified nursery or person" (from among those named on an attached list), and "any relocation receipts shall be returned to biologist before final C[ertificate of] O[ccupancy]." The Holzingers agree that they will transplant any and all Bay Cedar on site as required by the permit, and the Department agrees that the permit conditions the County imposed constitute an adequate transplantation plan. Monroe County has not actively participated in the litigation and the parties agree that the County relies on the land owner to litigate the validity of the three related permits at issue.

The Department filed a proposed recommended order, the Holzingers did not. Rulings on proposed findings of fact are found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Stipulated Facts

   
   

   1. Jim and Paulette Holzinger own Lot 17, Section B, Long Beach Estates, located on Big Pine Key in unincorporated Monroe County, Florida. The property is south of Long Beach Drive.

      
      

   2. The property is located within the Florida Keys Area of Critical State Concern. See Sections 380.05 and 380.0552, Florida Statutes. Under these statutes, Monroe County adopted a comprehensive plan and implemented it with land development regulations which are consistent with the Principles for Guiding Development found in Section 380.0552(7), Florida Statutes. The Department of Community Affairs approved the County's comprehensive plan in Rule Chapter 9J-14, Florida Administrative Code, and the Administration Commission approved the comprehensive plan in Chapter 28-29, Florida Administrative Code.

      
      

   3. The County's comprehensive plan is implemented through its land development regulations, codified as Chapter 9.5 of the Monroe County Code. Monroe County is responsible for issuing development orders for land development in unincorporated Monroe County, including these development orders (building permits). The Local Government Comprehensive Planning and Land Development Act, Chapter 380, Florida Statutes, restricts the County from permitting development which is inconsistent with the Monroe County Comprehensive Land Use Plan, Sections 163.3161(2) and 163.3194(1), Florida Statutes. No person may undertake any development within an area of Critical State Concern except in conformity with Chapter 380; Section 380.05(16), Florida Statutes. After the County issued the three related permits, the Holzingers engaged Pinewood Enterprises, Inc., as general contractor, for the construction of their single-family residence.

      Those permits were rendered to the Department of Community Affairs on July 21,

      1992, and the Department issued its notice of appeal of those permits on September 4, 1992. No party disputes the timeliness of the appeal.

      
      

   4. The Holzingers' lot is vegetated by mangroves, transitional plant species, and beach berm plant species. The site plan, and which was part of the Holzingers' application for the permits, which Monroe County approved, includes the approval of dredging of a portion of Lot 17 and the placement of fill on site to provide driveway access to the single-family residence. The site plan locates the single-family residence in an area of Bay Cedar thicket. The mangroves are located along the north of the lot along Long Beach Drive.

      
      

2. Facts Found Based on Evidence Adduced at the Final Hearing

   
   

   1. The Holzingers' lot is located at the southernmost area of Big Pine Key, and is separated from the rest of the key by a wetland to the north of the property. To its south is the Atlantic Ocean. The lot is approximately 100' x 230' and contains approximately 22,750 square feet from property line to property line.

      
      

   2. On the lower keys land elevations only extend from sea level to a maximum of approximately five or six feet above sea level. The soil or substrate conditions on the lot are white calcareous deposits which appear to the untrained eye to be sand. It is not quartzite, but deposits from the breakdown of marine grasses or marine algae which have the appearance of sand. There is no caprock on the property.

      
      

      B (1). Habitats Recognized in the Monroe County Plan

      
      

   3. The Monroe County Comprehensive Development Plan is based upon the Data and Analysis found in volume 1 of the Plan. According to that Data and Analysis, there are different types of habitat found in the Keys. These include salt marsh, salt marsh and buttonwood association, mangrove community, tropical hardwood hammock, and beach berm complex. The most significant one here is beach berm complex; it includes:

      
      

      "bare, sandy shoreline with a mound or ridge of unconsolidated sand that is immediately landward of and usually parallel to the shoreline and beach. The sand is calcareous material that is the remains of marine organism such as corals, algae and mollusks. The berm may include forested costal ridges and may be colonized by hammock vegetation." Section 9.5-4(B-3), Monroe County Code [the land development regulations].

      
      

      In the Data and Analysis, the County records that on Long Beach Key the most landward area of the berm is tropical hardwood hammock. The low hammocks are upland hardwood forest communities containing species such as blolly, buttonwoods, darling plums, spanish stopper and wild dilly, all of which are found on the vegitation survey of the lot done by a biologist for Mother Nature's Enterprises, Linda Pierce, as part of the Holzinger building permit application. See Section 9.5-4(L-10), Monroe County Code, which defines low hammocks. Low hammocks include berm hammock, and the beach berm association described in the County comprehensive plan includes berm hammocks (Tr. 184).

      B (2). The Land Use Maps and their Designations

      
      

   4. The existing conditions map which is part of the Monroe County comprehensive plan designates the area of the Holzingers' property as beach berm association. That map is drawn at the sale of one inch equals 2,000 feet.

      
      

   5. Similar aerial maps at a scale an order of magnitude smaller (one inch equals 200 feet) also show the land as beach berm with fringing mangroves. These aerial photographs have been overlaid with the Comprehensive Plan's habitat designations for use in the practical application of the land development regulations by County employees.

      
      

   6. Under the land use regulations found in the Monroe County Code, the County Commission is required to follow the existing conditions map it adopted, Section 9.5-227, Monroe County Code. Under the first paragraph of Section 9.5-

      345 the environmental design criteria applicable to development of a parcel of land depend upon the habitat designated for the parcel on the existing conditions map (the map drawn at the larger scale of one inch equals 2,000 feet). Ground proofing of the habitat on the lot done by the Lower Keys' biologist, Diana Stephenson, and by the Department of Community Affairs planner/biologist, Kathleen Edgerton, show that the land is actually beach berm from the ocean to the mangroves, and there is a small area of disturbed saltmarsh landward from the mangroves to the county road which runs down the center of the key.

      
      

   7. I am not persuaded by the testimony of the biologist for the Holzingers, Mr. Smith, who believes that there is a separate tropical hardwood hammock habitat on the Holzingers' lot. A full habitat analysis would have been required if there were mixed habitats on the lot (Tr. 88, 96) and the Holzingers did not submit one to the County as part of their application. Because the County biologist found no separate low hardwood hammock habitat on the lot, she believed that no habitat evaluation index was required in processing the Holzinger application, and none was done independently by the County.

      
      

   8. Mr. Smith contended at final hearing that there are several distinct habitats on the single lot. Moving south from Long Beach Drive toward the ocean he first finds a disturbed saltmarsh of approximately 4,000 square feet; then a mangrove community of about 2,500 square feet; then a saltmarsh and buttonwood association of about 2,500 square feet; next a tropical hardwood hammock of moderate quality and finally, closest to the ocean, beach berm complex. This analysis, which designates a separate saltmarsh and buttonwood association waterward of the mangrove community, and then a separate tropical hardwood hammock waterward of the saltmarsh and buttonwood association, fails to give significant weight to the fact that low hammocks are typically found within beach berm complex. While Mr. Smith testified to the square footages for each of the five habitats, he only performed rough calculations for their size, he was not working with, nor did he perform an actual survey which would define the boundaries of the various habitats he believes are present. He readily acknowledged his preliminary habitat analysis was incomplete. Moreover, accepting for the sake of argument that there is a mixed habitat on the lot under the evidence adduced by the Holzingers, a complete habitat evaluation index should have been performed by the Holzingers as a necessary part of their application, since the County biologist did not do one in the belief there was no need for one.

   9. The essential problem with the view expressed by Mr. Smith that there are five habitats on this 100-foot lot is his contention that due to the very small changes in elevation through the Keys, one must identify different habitats recognized in the Monroe County comprehensive plan and land development regulations by assessing the predominance of different types of vegitation typical of a habitat. To Mr. Smith, if the vegitation is of a type normally found in a tropical hardwood hammock, and it predominates over the other vegitation, that area must be classified as a tropical hardwood hammock. At that level of generalization, the statement is no doubt true. Neither the land development regulations or the County's Comprehensive Plan require, or even permit, a microanalysis of the vegitation for the purpose of defining multiple habitats on a lot. Taking a broad view, such as that embodied in the existing conditions map, the predominate vegetative and soil conditions on the southern part of the island where Lot 17 is located are consistent with the categorization as beach berm association. The same is true using the aerial maps on which the different habitat designations from the land development regulations have been overlaid. What Mr. Smith has done is to look for small areas within the 100' x 230' parcel to identify areas where tropical hardwood species may be said to "predominate."

      
      

   10. The obvious purpose of Mr. Smith's division of the lot into small areas is to be able to characterize these uplands species as "predominating." This is essential to justify intensive use of the property. The comprehensive plan and the land development regulations do not permit any use of areas colonized by mangroves, which are wholly protected by a 100 percent open space requirement. This means that 100 percent of the area colonized by mangroves must be maintained in its natural condition and free and open to the sky, Section 9.5-343, Monroe County Code. Open space ratio for saltmarsh and buttonwood associations is .85 but for moderate quality low hammocks is only

       .60. Beach berm association is highly protected, with an open space requirement of 90 percent. Only 10 percent of the land area waterward of the mangrove habitat, therefore, can be covered with the footprint of the single-family residence and any associated driveway or other access way because it is beach berm complex. Accepting the mangrove line contained in the vegitation assessment submitted by the Holzingers in their application done by Mother Nature's Enterprises, and then using a "planimeter" to measure the area from the mangrove line to the mean high water line on the lot, there is 16,594 square feet of property. Given the 90 percent open space requirement, a very small area of 1,659 square feet may be covered with the footprint of the single-family home, including its porch, eaves, and driveway. The footprint of the house, its porch, and driveway shown on the site plan approved by the County, with the addition of a five-foot clearing zone around the footprint of the house [because it is essentially impossible to clear land only to the footprint of the completed building] reveals that the County's permits would allow the clearing of 2,880 square feet. Even without the five-foot construction zone around the house, porch and driveway, the County permits allow the clearing of 2,172 square feet.

       
       

   11. It is very difficult to understand how the Monroe County official in charge of the office which issues building permits could have determined that the development proposed by the Holzingers was permittable. That official did not testify. The County biologist for the Lower Keys who did testify, Ms. Stephenson, was adamant that the project was never permittable under the Monroe County land development regulations. The only explanation by which the permit conceivably could have been granted would be to do something the land development regulations do not permit: aggregate the square footage which the code makes available for development on the landward side of the mangroves, in

       the area of disturbed saltmarsh between the road and the mangroves, and add the usable square footage for that habitat area to the usable square footage on the waterward side of the mangroves, in the beach berm association. But the amount of each habitat which must remain as open space is determined for each habitat type. They cannot be aggregated across habitats, to give some total usable number of square feet, to be cleared anywhere on the property. That would ignore the significance of the separate habitat designations. The 1,659 square feet available for development in the beach berm association must be used only within that habitat, and square footage available for development within the disturbed salt marsh cannot be added to it.

       
       

3. Fill Issues

1. The site plan approved by the County permits fill to be used to construct a driveway on the property through the mangrove area and the beach berm area. This is simply an error on the part of the County, for no party disputes that fill is forbidden in these areas. The performance standards in the land development regulations do permit certain piers, docks, utility pilings and walkways over mangrove areas, but no fill is permitted. Section 9.5- 345(m)(1), Monroe County Code (Tr. 139).

   
   

2. The Holzingers could receive a permit to build a raised bridge over the mangroves for access to the beach berm association portion of the lot, as has been done on a nearby lot to the west of the Holzingers' lot. They cannot, however, fill the mangroves to create the driveway shown on the site plan the County approved. The building permit the County granted which purports to allow fill in mangrove areas is inconsistent with the County's own land development regulations and cannot stand.

   
   

3. The next question is whether there is some alternate means of access to the lot which can be used instead of that permitted. At the final hearing Mr. Smith stated that on a recent visit to the Holzingers' property, he found an old road on the east side of the property which is high land which could serve as a location for a driveway or accessway to the interior of the Holzingers' property. There is, however, actually no old road anywhere on Lot 17. There was an old road on Lot 16, and a bit of the spoil from that road may be found on Lot 17, but there simply never has been a road on the Holzingers' lot which they can use for a driveway. Fill will be required to locate any driveway, and that is inconsistent with the County land development regulations. The only thing the Holzingers can do to overcome this problem would be to build a bridge over the mangrove area and completely avoid the use of any fill.

   
   

   Summary of Findings

   
   

4. The scarified or a disturbed saltmarsh area from the county road to the mangrove area is too small to be useful. The Holzingers do not plan to build in that area. Whatever portion of that area which is not required to be open space cannot be "banked" to allow additional clearing in the beach berm association on the waterward side of the mangroves. For all practical purposes, that disturbed saltmarsh area adds nothing to the buildable or clearable area on Lot 17. The mangrove area has a 100 percent open space requirement. Mangroves are a highly protective habitat, which contribute nothing to the buildable area on Lot 17. The remaining portion of the Lot 17 waterward from the mangrove area to the mean high water line is too small to permit the construction and erection of the house and driveway permitted by the development orders (building permits) issued by Monroe County. The buildable area in the beach berm association is no more than a total of 1,660 square feet for the house, its porch, the driveway.

   The County has issued a permit to use 2,880 square feet of that habitat (including an allowance for a construction zone), or at least 2,172 square feet, assuming the location of the house, porch, and an eight-foot wide driveway and no construction clearing around the footprint around the house/porch. This fails to meet the 90 percent open space requirement found in the Monroe County Code. The building permits issued by Monroe County to the Holzingers are therefore invalid. To obtain valid permits, the Holzingers must substantially reduce the footprint of the house, including an allowance for a construction clearing zone. A house that small may be undesirable, but it could be permitted. What the County has attempted to permit, however, is invalid under its own regulations.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction of this proceeding pursuant to Section 120.57(1), Florida Statutes.

   
   

6. No person may undertake any development within an Area of Critical State Concern which fails to conform to Chapter 380, Florida Statutes; Section 380.05(16), Florida Statutes.

   
   

7. The Local Government Comprehensive Planning and Land Development Regulation Act requires that Monore County permit only development which is consistent with the Monore County comprehensive land use plan. Sections 163.3161(2) and 613.3194(1), Florida Statutes.

   
   

8. As the state land planning agency, the Department of Community Affairs must review each development permit issued in the Florida Keys Area of Critical Concern for consistency with the Principles Guiding Development adopted by the Legislature for that area. Sections 380.031(18), 380.032, 380.07(2), and 380.0552(7), Florida Statutes.

   
   

9. The habitat on the Holzinger lot is primarily beach berm complex, with a limited area of disturbed salt marsh along Long Beach Drive and an area of mangrove wetlands. The beach berm complex is shown on the County aerial photographs, the existing conditions maps the County adopted, and confirmed by the site visits of the County biologist. This conclusion is also supported by the site visits and analyses of a private biologist (Linda Pierce, doing business as Mother Nature Enterprises, Inc.), submitted with the Holzinger's application, and the Department's biologist.

   
   

10. The required open space ratio for development in this type of habitat is 90 percent.

    
    

11. Section 9.5-343, Monroe County Code, requires compliance with open space rations. "No land shall be developed" unless it meets the open space requirements. Id. The section also provides that "nor shall open space be cleared or otherwise disturbed . . ." and the areas "shall be maintained in their natural condition." Few exceptions are made to these madates, none of which apply here.

    
    

12. It is reasonable to include a construction clear zone in the calculation of buildable area for purposes of determining the amount of open space maintained by a proposed development, since it is virtually impossible to construct a home on virgin land without disturbing an area outside the footprint of the finished house.

13. Despite the permit conditions pertaining to Bay Cedar transplanting, the permits granted to not comply with the open space ratio that the land development regulations set for the habitat on the Holzinger site.

    
    

14. Section 9.5-343(l)(1), (2), Monroe County Code, states: "no fill . .

    . [is to be] deposited on a beach berm."

    
    

15. Section 9.5-343(m)(1), Monroe County Code, prohibits fill in mangroves, and requires pilings or walkways.

    
    

16. Despite the permit conditions, the permit approved and issued by the County allows fill in both the beach berm complex and the mangroves, in violation of the Coastal Zone and Conservation Element, Volume II of the Monroe County Comprehensive Plan; Volume I, the Data and Analysis, of the comprehensive plan, and the provisions of the Monroe County Code cited above.

RECOMMENDATION

It is RECOMMENDED that development approval for the subject lot be denied, unless the applicant presents, and the County and the Department approve, a revised permit and site plan which demonstrates compliance with the mandatory open space requirements for the beach berm and mangrove habitats, and which eliminates the placement of fill in the beach berm complex and the mangrove wetlands on site.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 9th day of July 1993.

WILLIAM R. DORSEY, JR.

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 9th day of July 1993.

APPENDIX

The Findings of Fact proposed by the Department have been generally adopted, although the long quotation from Volume I and II of the County Comprehensive Plan are not essential or necessary. See proposed finding 10.

The Respondents submitted no proposed Findings of Fact.

COPIES FURNISHED:

Stephanie M. Callahan Assistant General Counsel

Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

Theodore W. Herzog, Esquire

209 Duval Street

Key West, Florida 33040

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

David K. Coburn, Secretary

Florida Land & Water Adjudicatory Commission Executive Office 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 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.

Docket for Case No: 92-007532DRI

Orders for Case No: 92-007532DRI