STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF COMMUNITY AFFAIRS, )

)

Petitioner, )

)

vs. ) CASE NO. 94-2560DRI

) ALDO R. FAGA and JEANNE FAGA, ) Owners; GRILL CONSTRUCTION, INC., )

General Contractor; and 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 June 7-9, 1995, in Key West, Florida.

APPEARANCES

For Petitioner: Stephanie M. Gehres, Esquire

Assistant General Counsel Department of Community Affairs 2796 Overseas Highway, Suite 212

Marathon, Florida 33050

For the Fagas: Michael L. Gore, Esquire

Michael J. Grindstaff, Esquire Shutts & Bowen

20 North Orange Avenue, Suite l000 Orlando, Florida 32801

For Grill

Construction, Inc.: No appearance.

For Monroe

County: No appearance.

STATEMENT OF THE ISSUES

Whether Permit Number 9220003617 issued by Monroe County, Florida, to Jeanne and Aldo Faga is inconsistent with the Monroe County Comprehensive Plan and Monroe County Land Development Regulations. Three areas of dispute were involved in this proceeding:

Whether the permitted development (as modified by stipulation) is inconsistent with provisions requiring development to

be clustered on the least environmentally sensitive portion of the site;

Whether the permitted development (as modified by stipulation) is inconsistent with provisions pertaining to construction in mangroves and submerged lands; and

Whether the permitted development (as modified by stipulation) is inconsistent with provisions establishing setback requirements from beach berms that are known turtle nesting areas.

PRELIMINARY STATEMENT

Petitioner timely appealed a development order issued by Monroe County, Florida, to Aldo R. Faga and Jeanne Faga, as owners, and to Grill Construction, Inc., as general contractor. Mr. Faga died after the issuance of the permit, and the Estate of Aldo R. Faga, deceased, was substituted as the party in interest. The dispute was referred to the Division of Administrative Hearings, and this proceeding followed.

The Fagas own ten (10) contiguous acres of property, originally platted as

10 separate lots. The property was reconfigured, and the lots combined to form four (4) lots, referred to as Parcels A through D. The development order appealed here is a building permit issued by Monroe County for construction on Parcel A only.

To resolve the clustering issue, it is necessary to determine the habitat types that exist on Parcel A. That determination will resolve whether the permitted development is "clustered" on the property such that the development impacts the least sensitive portion of the parcel. The determination of the habitat seaward of the slough and the landward extent of the beach berm is necessary to resolve whether the development as permitted by Monroe County complies with mandated setbacks from known or potential turtle nesting areas. Finally, it will be necessary to resolve whether the bridge/access structure as permitted by the Department of Environmental Protection and approved by Monroe County is allowable under the pertinent land development regulations.

Prior to the formal hearing, the parties entered into certain stipulations that form the basis of findings of fact in this Recommended Order.

At the formal hearing Petitioner presented the testimony of four (4) witnesses: Kenneth Metcalf, Community Program Administrator for the Florida Keys Area of Critical State Concern; Kathleen Edgerton, a Planner IV, Biologist employed by the Department; Patricia McNeese, an ecologist with Lewis Environmental Services and Director of Monroe County's Environmental Resources Department; and Pat Wells, a manager with the Florida Park Service. Mr. Metcalf was tendered and accepted as an expert in the fields of urban regional planning and in the implementation of the Critical Area Plan in the Florida Keys. Ms.

Edgerton was tendered and accepted as an expert in the fields of biology, marine biology and Florida Keys ecology. Ms. McNeese was tendered and accepted as an expert in the fields of biology, marine biology and Florida Keys ecology. Mr.

Wells was tendered and accepted as an expert in the field of marine turtle nesting in the Florida Keys.

The Respondents presented the testimony of four (4) witnesses: Brian Winchester, President of Winchester Environmental Associates, Inc.; Lorenzo Aghemo, Planning Director for Monroe County; Jennifer Faga, the daughter and representative of Respondent Jeanne Faga; and Kenneth Metcalf. Mr. Winchester was tendered and accepted as an expert in biology and Florida Keys biological ecosystems, including plant identification and habitat analysis. Respondents also called as a witness Faye Buchanan, a licensed real estate broker specializing in property sales in the Middle Keys area of Florida. Her proffered testimony was found to be irrelevant and was, consequently, excluded. The Petitioner 1/ offered the following exhibits that were admitted into evidence: 1, 2, 3, 3(a), 4, 7(a), 7(b), 7(c), 7(d), 7(e), 7(f), 7(g), 8(a),

8(b), 8(c), 8(d), 8(e), 9(a), 9(b), 10, 11, 14(a), and 14(b). There were no Petitioner exhibits marked 5, 6, 12 or 13. Petitioner's Exhibit 15 was marked for identification purposes only. Petitioner's exhibits 16 (5 bags of soil) and

17 (a bag of seagrass) were accepted for demonstrative purposes only. The Fagas offered 37 exhibits, identified as Fagas' Exhibits 1 - 37, all of which were admitted into evidence except Exhibit number 30.

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

THE PARTIES

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.

   
   

2. Jeanne Faga and the Estate of Aldo Faga, deceased, hereafter referred to collectively as the "Fagas," are the owners of approximately ten acres of real property known as Lots 23 through 32, Block 21, Coco Plum Beach subdivision, Fat Deer Key, in unincorporated Monroe County, Florida. This property, acquired by the Fagas in 1971, has been subdivided by the Fagas into four parcels. Lots 23-24 have been consolidated and will be referred to as Parcel A. The remaining lots have been divided into Parcels B, C, and D.

   
   

3. Grill Construction, Inc., is a Florida corporation and is the general contractor for Respondent for the building permit at issue.

   
   

4. Monroe County, Florida, is a political subdivision of the State of Florida. Monroe County did not actively participate in this proceeding.

   
   

   THE DEVELOPMENT ORDER AND ITS HISTORY

   
   

5. 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. These statutory provisions require that Monroe

   County adopt and implement a comprehensive plan and land development regulations consistent with the Principles for Guiding Development found at Section 380.0552(7), Florida Statutes.

   
   

6. Monroe County has adopted a comprehensive plan, effective September 15, 1986, which complies with the Principles for Guiding Development and which has been approved by the Petitioner and by the Administration Commission. The Monroe County comprehensive plan is implemented by and through its adopted land development regulations, codified primarily in Chapter 9.5, Monroe County Code (M.C.C.).

   
   

7. While Respondent originally applied for a development permit for one residence on each of the four parcels and for an access bridge on Parcel A, the subject of this permit appeal proceeding is the development order for Parcel A only. If the project is permitted, it is contemplated that the access bridge at issue in this proceeding will provide access to the residences the Fagas hope to build on Parcels B, C, and D.

   
   

8. The initial permit application for a residence on each of the four (4) parcels and an access bridge on Parcel A capable of use by motor vehicles was denied by Monroe County staff. The Fagas thereafter appealed the staff denial to the Planning Commission. The Planning Commission reviewed the project and affirmed the denial by staff. The Fagas thereafter appealed the denial by the Planning Commission to the Monroe County Commission.

   
   

9. On July 28, 1993, the Monroe County Board of County Commissioners adopted Resolution No. 299-1993, which reversed the denial of the appeal by the Planning Commission, and authorized the Fagas to go forward with the building permit applications. On September 23, 1993, Monroe County issued to the Fagas and Grill Construction Co. building permit number 9220003617, the development order that is the subject of this proceeding. This development order includes public works permit number 0764 and building permit number 9220003615, which address the proposed access bridge on the subject site. The development order approves the permit for the access bridge that was issued by the Department of Environmental Protection. This development order authorizes the construction of a 4,501 square foot single family home with 2,426 square feet of porches, a 813 square foot enclosure for parking and storage, fill for a driveway, a separate guest house and an elevated bridge approximately 12 feet wide and 160 feet long. The building permit issued by Monroe County at issue in this proceeding did not include construction on Parcels B, C and D.

   
   

10. The Department timely filed its challenge to the subject development order pursuant to Section 380.07, Florida Statutes.

    
    

    STIPULATED PERMIT CONDITIONS

    
    

11. The parties stipulated that the following modifications to the development order would be made if the project is permitted: 2/

    
    

    1. The subject development permit conditions shall be amended to state that the subject site plan shall include no drainage swales and no concrete slabs.

    2. The subject development permit conditions shall be amended such that the site plan shall include no fill or excavation between the proposed structures and the salt water slough, for a

       driveway or for any other purpose, except for minimal fill necessary for the ramp at each end of the proposed bridge. No fill or excavation shall occur within the existing mangrove habitat as depicted on the site plan and as verified in the field prior to construction.

    3. The subject development permit conditions shall be amended to reflect that the access bridge reflected on the site plan rendered with the building permit application shall be of a length so as to clear the mangroves and salt water slough on site such that either end of the access bridge

       will terminate beyond the end of the mangrove lines and the boundaries of the slough.

    4. The subject development permit conditions shall be amended to reflect the guest suite be connected to the main structure (single family residence, or "SFR") by an enclosed interior hallway, atrium or the like, so as to form a single habitable unit. In addition, the Fagas will execute a restrictive covenant to run with the land which prohibits rental, sale or lease of the guest suite, or anything less than the entire single family residence. Each stairwell to the SFR will access a deck which provides uniform access to each room in the SFR, and the site plan shall include no additional independent access to the guest suite.

    5. Only minimal excavation will be allowed for transplantation on the beach berm, i.e.,

       the absolute minimum amount necessary to transplant the native species identified in the County-approved transplantation plan. The transplantation shall occur in a manner which preserves the contour of

       the beach berm and ground cover resources on site and restores the area cleared for development to natural conditions which include native plant species transplanted on site.

       
       

       GENERAL DESCRIPTION OF PARCEL A

       
       

12. Most of the land constituting the four Faga parcels was "created" in the late 1950s, by depositing seaward (south) of the then existing shoreline spoil material from offshore dredging. The original "beach" in this area of Fat Deer Key (prior to the dredge and fill activities) existed just south of Coco Plum Drive, which now serves as the northern border of the Faga parcel. As a result of this dredge and fill activity, most of the dry land that presently exists on Parcels A-D was created from lands that were submerged. Additionally, the saltwater slough that exists on Parcels A-D was created as a result of this dredge and fill activity.

    
    

13. The subject site, Parcel A, is bordered on the north by Coco Plum Drive, on the West by a multistory condominium development, on the South by the Atlantic Ocean, and on the East by Parcel B. Parcel A is rectangular, with the East - West measurement being approximately 215 feet and the North - South measurement being approximately 375 feet. The Eastern third of the central

    portion of the Faga parcel contains a shallow, manmade water body (the "saltwater slough"), which is fringed with mangroves.

    
    

14. Because the saltwater slough was created by the dredge and fill activity, it is appropriate to classify the saltwater slough as a manmade water body pursuant to Section 9.5-4 9(M-4), M.C.C., which defines the term "manmade water body" as follows:

    
    

    (M-4) Manmade water body means a water body that was created by excavation by mechanical means under human control and shall include a canal, cut basin or channel where its edges or margins have subsequently been modified by natural forces.

    
    

15. All of Parcel A, meets the following definition of "disturbed land" found at Section 9.5-4(D-14), M.C.C.:

    
    

    (D-14) "Disturbed Land": Disturbed land means land that manifested signs of environmental disturbance which has had an observable effect on the structure and function of the natural community which existed on the site prior to the disturbance.

    
    

16. The remainder of the property, including the sandy beach area and beach berm, will be discussed in detail below.

    
    

    CLUSTERING REGULATIONS

    
    

17. Section 9.5-345(a), M.C.C., requires clustering of development as follows:

    
    

    "Clustering": When a parcel proposed for develop- ment contains more than one (1) habitat type, all development shall be clustered on the least sensitive portions of the parcel subject to the maximum net densities of Section 9.5-262, the open space requirements of Sections 9.5-262 and 9.5-269 and

    the performance standards of this section. For the purposes of this subsection, the sensitivity of habitat types shall be as listed with subsection

    1. being the most sensitive and subsection (18) being the least sensitive. The least sensitive part of the parcel shall be fully utilized prior to the distribution of density to the next least sensitive habitat type.

       1. High hammock (high-quality);

       2. Palm hammock;

       3. Cactus hammock;

       4. Beach/berm;

       5. Pinelands (high-quality);

       6. Salt marsh and buttonwood associations;

       7. High hammock (moderate-quality);

       8. Low hammock (low-quality);

       9. Low hammock (moderate-quality);

       10. Pinelands (low-quality);

       11. High hammock (low-quality);

       12. Low hammock (low-quality);

       13. Disturbed with hammock;

       14. Disturbed with salt marsh and buttonwood;

       15. Disturbed beach/berm;

       16. Disturbed with exotics;

       17. Disturbed with slash pines;

       18. Disturbed.

    
    

18. Landowners are required to cluster development on the least sensitive portions of their property, subject to open space requirements for the respective classifications and subject to the maximum density for a parcel. An area classified as "disturbed" has a twenty percent open space requirement. Parcel A has a maximum density limit of 2.5 units per acre.

    
    

    HABITAT DETERMINATION -- GENERALLY

    
    

19. To determine whether it is necessary to cluster this development, it is necessary to determine the habitat classification for Parcel A. Monroe County has adopted an existing conditions map that purports to show the existing habitat classifications on Parcel A. The existing conditions map reflects two habitat classifications for Parcel A: open water (the area of the saltwater slough) and disturbed with buttonwood and salt marsh.

    
    

20. The area designated on the Aslan survey 3/ as the saltwater slough is properly designated as open water.

    
    

21. The parties agree that the classification on the existing conditions map for the remainder of Parcel A as "disturbed with buttonwood and salt marsh" is incorrect. The parties disagree as to the appropriate habitat classification for the portions of Parcel A landward and seaward of the saltwater slough.

    
    

22. Brian Winchester, on behalf of the Fagas, spent in excess of 80 hours on the four Faga parcels, conducting visual observations and taking core samples. He conducted field surveys of the four parcels during July 9-11, September 23- 24, October 20-22, and November 11-12, 1992. Staff of the Monroe County Environmental Resources Department conducted a joint site visit to the parcels with Mr. Winchester on September 23 and October 21, 1992.

    
    

23. Mr. Winchester identified each small area of the parcel that he believed justified a distinct habitat classification and, based on a qualitative and quantitative analysis (which included counting individual stems in some areas), determined whether there was a dominate species for each area.

    
    

24. In October and November, 1992, Mr. Winchester staked the edges of each portion of Parcel A that he believed constituted a distinct habitat. Those staked areas reflecting a plant community were then measured by Aslan, Inc. and depicted on the Aslan survey. The Aslan survey also marks the mean high water line on the property and measures the topography of all four parcels.

    
    

25. Kathleen Edgerton and Patricia McNeese, the biologists who testified for the Petitioner, disagreed with Mr. Winchester's habitat evaluation. They conducted separate on-site inspections of the property, each with the benefit of the Aslan survey, and each determined what she considered to be the appropriate habitat classifications on Parcel A. Ms. Edgerton and Ms. McNeese were in agreement as to how the habitats of Parcel A should be classified.

26. Petitioner's experts determined the extent of the saltwater slough and the mangrove fringe surrounding it. They determined the extent of the beach berm (which they consider to extend to the mangrove fringe on the seaward side of the slough) and determined the habitat of Parcel A seaward of the mangrove fringe. They then determined the habitat classification for the portion of Parcel A lying landward of the mangrove fringe. Based on their on-site evaluations of the property, Petitioner's experts did not believe that the portion of Parcel A lying landward or seaward of the mangrove fringe justified more than one habitat classification.

    
    

27. In resolving the conflicting testimony between Respondents' expert and Petitioner's experts, more weight is given to the opinions expressed by Ms. Edgerton and Ms. McNeese because they have had extensive experience in conducting habitat classifications for lands in the Florida Keys as a part of their official responsibilities. While Mr. Winchester is an accomplished biologist, his experience in making habitat determinations in the Florida Keys is limited. The undersigned is persuaded by the testimony from Petitioner's experts that observations of species on site for making habitat determinations involve the subject parcel in larger perspective than that used by Mr. Winchester.

    
    

    HABITAT DETERMINATION -- LANDWARD OF THE SLOUGH

    
    

28. Mr. Winchester expressed the opinion that the following habitat classifications exist on the portion of Parcel A lying landward of the mangrove fringe: a small strip of land adjacent to the road that should be classified as "disturbed"; a larger strip of land that should be classified as "disturbed with exotics"; and a third strip of land that should be classified as "disturbed with salt marsh and buttonwood". Petitioner's experts testified that the entire portion of Parcel A landward of the mangrove fringe should be classified as "disturbed". This dispute is resolved by finding that the greater weight of the evidence establishes that the portion of Parcel A landward of the mangrove fringe should be classified as "disturbed". While exotics, including Australian Pines and Brazilian peppers, exist in different areas of this part of the property, Petitioner's experts established that other vegetation exists and that exotics do not dominate the portions of the property classified by Mr. Winchester as "disturbed with exotics". Likewise, it is concluded that the portion of the property classified by Mr. Winchester as "disturbed with salt marsh and buttonwood" should be classified as "disturbed" since there is little salt marsh and buttonwood does not dominate. Further, there exists in this area trees and vegetation that are not typically found in an area designated as "salt marsh and buttonwood".

    
    

    THE MANGROVE FRINGE AND THE SALTWATER SLOUGH

    
    

29. The Department of Environmental Protection (DEP) has claimed jurisdiction of the saltwater slough, an assertion that is not challenged in this proceeding.

    
    

30. The parties disagree as to whether the saltwater slough is tidally influenced and whether the mangrove fringe around the saltwater slough meets the definition of a "mangrove community".

    
    

31. The salt water slough consists of shallow, landlocked water over mud, sand and marl bottoms. The water level increases with heavy rains and infrequent storm tides, and decreases during periods of drought. The slough has been observed to be dry during time of drought, negating any inference of

    regular tidal influence. Based primarily on Mr. Winchester's observations and quantitative measurements, it is concluded that there is no regular tidal influence on the slough.

    
    

32. That the saltwater slough is ecologically significant and provides a valuable resource for birds, especially during storms, was not seriously disputed at the formal hearing. The birds that normally use the beach will come into the slough, where they can stay within the protection of the mangroves. They feed there, and are not subjected to wave force and wind that they would receive if they were on the outside.

    
    

33. The salt water slough is encircled by a fringe of mangroves. Mr. Winchester classified the mangrove fringe as "disturbed with mangroves". This classification is consistent with similar classifications on Monroe County's existing conditions maps, but the classification is not separately listed in the County's land development regulations pertaining to clustering because specific regulations limit development in mangroves. 4/ Whether the areas delineated by the Aslan survey as being the mangrove fringe is classified as "mangroves" or as "disturbed with mangroves" is irrelevant for determining the issues presented by this proceeding.

    
    

    HABITAT DETERMINATION - WATERWARD OF THE SLOUGH

    
    

34. Section 9.5-4(B-3), defines the term "beach berm" as follows:

    
    

    Beach berm means a 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 organisms such as corals, algae and molluscs. The berm may include forested, coastal ridges and may be colonized by hammock vegetation.

    
    

35. Parcel A contains a sandy beach, including a seaweed wrack and some low vegetation which is typical of beach berm vegetation as defined in the Monroe County Code. Behind the low vegetation, lies an area of Australian Pine trees that extends to the seaward extent of the mangrove fringe. Petitioner asserts that the beach berm on Parcel A extends to the mangrove fringe and that the proper classification for all of Parcel A seaward from the mangrove fringe is "disturbed beach berm". Respondents assert that seaward from the mangrove fringe on the east side of the parcel there is a small section that should be classified as disturbed with salt marsh and buttonwood, that the area with the Australian Pines should be classified as disturbed with exotics, and that the remaining portion should be classified as disturbed beach berm.

    
    

36. The accepted characteristics of beach berm soil, as defined in the LDRs and Comprehensive plan, are "calcareous" and "unconsolidated". Reference to the soil as calcareous refers to its origin, while the consolidation of the soil refers to its compression and its cohesiveness.

    
    

37. The soil from the mean high water line to the mangrove fringe seaward of the slough is unconsolidated, calcareous sand. The only area that appears to exhibit consolidated soils is that which has been compacted by vehicular use in the property. Vegetation typical of beach berms is scattered throughout the parcel between the mean high water mark and the mangrove fringe.

38. The area of Parcel A that lies between the mean high water mark and the mangrove fringe seaward of the saltwater slough, is beach berm. This portion of Parcel A is properly classified as "disturbed beach berm" as opposed to "beach berm" because the entire parcel is disturbed lands and because Australian Pines have encroached on a portion of the beach berm.

    
    

    CLUSTERING ANALYSIS

    
    

39. Petitioner established that development on Parcel A (with the exception of the access structure to be discussed below) should be limited to the area landward of the slough that should be classified as "disturbed". The Petitioner established that this area of Parcel A is large enough to accommodate a reconfigured version of the development.

    
    

    TURTLE NESTING SETBACK

    
    

40. Section 9.5-345(3)(f), M.C.C., provides for a setback of construction from turtle nesting areas in areas designated as disturbed beach berm as follows:

    
    

    f. No structure shall be located within fifty

    (50) feet of any portion of any beach-berm complex which is known to serve as an active nesting or resting area of marine turtles, terns, gulls or other birds . . .

    
    

41. While no specific sites on Parcel A were identified as active nesting sites, the beach on which Parcel A is located is a known turtle nesting area. The expert testimony from Patrick Wells established that marine turtles most frequently nest within 50 feet of the mean high water line. The expert testimony of Mr. Metcalf established that the setback of fifty feet required in Section 9.5-345(o)(3)f, M.C.C., should be typically measured from the backslope of any beach berm crest. If there is no beach berm crest on a parcel or if the beach berm crest is more than fifty feet from the mean high water line, the setback should be measured from a line that is parallel to and fifty feet landward of the mean high water line. 5/

    
    

42. Mr. Winchester identified the existence of a beach berm "crest" within the area of Parcel A that is designated on the Aslan survey as disturbed beach berm. Mr. Winchester testified that he observed a three or four inch drop behind the crest and was of the opinion that the beach berm crest was formed by wind and wave action. The crest, as identified by Mr. Winchester, is marked on the Aslan survey and is just a few feet from the mean high water line.

    
    

43. Petitioner's experts testified that there was no crest and that there was a gradual rise in the beach berm elevation from the mean high water mark to the beginning of the mangrove fringe.

    
    

44. This conflict in the evidence is resolved by finding that there is no discernible beach berm crest until it reaches the mangrove fringe. This finding is consistent with the expert testimony presented by the Petitioner, the photographic evidence, and the topographical markings on the Aslan survey. Further, this finding is consistent with the manner in which this property was created by the depositing of fill.

45. Based on the foregoing findings, it determined that the beginning of the setback line should be from a line parallel to and fifty feet landward of the mean high water line. The distance of the setback itself should be fifty feet as required by Section 9.5-345(o)(3)f, M.C.C. The development order at issue in this proceeding does not comply with the turtle nesting setback requirement.

    
    

    THE ACCESS STRUCTURE

    
    

46. Section 9.5-345(m), M.C.C., authorizes construction of piers, docks, utility pilings and walkways on areas with mangroves and submerged lands. All structures on any submerged lands and mangroves are required to be designed, located, and constructed on pilings or other supports.

    
    

47. DEP has issued a permit for the access structure that, if constructed, will be on pilings that are set in areas of the mangrove fringe and in areas of the slough. As permitted by DEP, the access structure would be 12 feet wide and

    160 feet long. As noted above, the parties have stipulated that the subject development permit conditions shall be amended to reflect that the access bridge reflected on the site plan rendered with the building permit application shall be of a length so as to clear the mangroves and salt water slough on site such that either end of the access bridge will terminate beyond the end of the mangrove lines and the boundaries of the slough. The DEP permit contains appropriate special and general conditions to assure that the access structure will be constructed consistent with pertinent permitting criteria.

    
    

48. The primary objection to the access structure raised by the Petitioner is to the width of the structure. Mr. Metcalf testified, without contradiction, that the acceptable standard in the planning profession for the maximum width for a walkway is six feet. Based on that testimony, it is found that the access structure should be authorized with the conditions imposed by DEP and as modified by the parties's stipulation, but with the additional condition that the width of the structure be changed from twelve feet to six feet.

    
    

    CONCLUSIONS OF LAW

    
    

49. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding. Sections 120.57(1) and 380.07(3), Florida Statutes.

    
    

50. The Petitioner timely appealed, pursuant to Section 380.07, Florida Statutes, the development order that is described in the findings of fact portion of this Recommended Order. The activity authorized by the building permit is "development" as defined in the Monroe County land development regulations and Chapter 380, Florida Statutes. The building permit is a "development order" within the meaning of Chapter 380, Florida Statutes. See Section 9.5-4(D-8), Monroe County Code, and Section 380.04, Florida Statutes.

    
    

51. Although designated an appeal, this proceeding is properly considered to be a "de novo" proceeding pursuant to the provisions of Section 120.57(l), Florida Statutes. The initial burden of going forward with the evidence that the development order is not in accordance with Chapter 380, Florida Statutes, the Monroe County Comprehensive Plan, and the Monroe County land development regulations, and the ultimate burden of persuasion, is on the Petitioner. Young

    v. Department of Community Affairs, 625 So.2d 831 (Fla. 1993); Transgulf Pipe1ine Co. v. Board of County Commissioners, 438 So.2d 876 (Fla. 1st DCA 1983).

52. In Young v. Department of Community Affairs, supra, at 834, the Court observed that the Legislature has

    
    

    "... statutorily determined that development in the Florida Keys Area of Critical State Concern will have an adverse impact if not in accordance with chapter 380, the local

    development regulations and the local compre- hensive plan."

    
    

53. In conformity with and in furtherance of the purposes of Chapter 380, Florida Statutes, the Local Government Comprehensive Planning and Land Development Regulation Act requires that Monroe County permit only that development which is consistent with the Monroe County comprehensive plan. See, Sections 163.3161(2) and 163.3194(l), Florida Statutes. See also, Sections 163.3201, 163.3215(l), and 163.3213(l), Florida Statutes.

    
    

54. The Petitioner's burden is to establish by competent, substantial evidence that the permitted development authorized by building permit number 9220003617 does not comply with the Monroe County comprehensive plan and land development regulations, and that the development is, consequently, not in accordance with the provisions of Chapter 380, Florida Statutes. Petitioner has met its burden in this proceeding.

    
    

55. Deference has been given to the Petitioner's interpretation of the land development regulations pertaining to classification of habitat. An agency's interpretation of its own rules and regulations will not be overturned even if such interpretation is not the sole possible interpretation, the most logical interpretation, or the most desirable interpretation. An agency's interpretation of its rules and governing statutes will not be overturned unless the interpretation is clearly erroneous. Health Quest Corporation, et al. v. Department of Health and Rehabilitative Services and Arbor Health Care Co., et al., 11 FALR 5427 (1989), ABC Liquors, Inc. v. Department of Business Regulation, 397 So.2d 696 (Fla. 1st DCA 1981); Department of Insurance v. Southeast Volusia Hospital District, 438 So.2d 815 (Fla. 1983).

    
    

56. As reflected by the Findings of Fact, the Petitioner has established by competent, substantial evidence that the development of a single-family residence, guest suite and access bridge, as authorized by Monroe County under building permit number 9220003617, does not comply with the Monroe County comprehensive plan and land development regulations, and consequently is not in accordance with the provisions of Chapter 380, Florida Statutes. The stipulation as to modifications that would be made by the Fagas if the development is permitted does not bring the development into compliance.

    
    

57. The development would meet all permitting criteria, including the 50 foot turtle nesting setback, if the development is clustered on the least sensitive portion of the parcel (the area landward of the saltwater slough classified as disturbed), if the stipulated modifications are incorporated, and if the access bridge is reduced in width from twelve feet to six feet.

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 that adopts the findings of fact and conclusions of law contained herein and denies the subject development order number 9220003617. The permit can be approved if the Fagas choose to modify its application to conform to the findings and conclusions contained herein.

DONE AND ENTERED this 1st day of November, 1995, 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 1st day of November 1995.

ENDNOTES

1/ These exhibits were pre-marked by the Petitioner using its own marking system.

2/ The site plan referred to in the stipulation is dated July 9, 1993, and was submitted to the Petitioner by the County as part of the permitting file.

3/ The Aslan survey was prepared on behalf of the Fagas by Aslan, Inc., a professional land surveying corporation.

4/ See, Section 9.5-345(m), M.C.C., discussed above. Respondents established that the mangrove fringe is not subject to tidal influence and that, consequently, the mangrove fringe does not meet the following definition of "mangrove community" found at Section 9.5-4 (m-3), M.C.C.:

Mangrove community means a wetland plant association subject to tidal influence where the vegetation is dominated by one (1) or more of the following three (3) species of mangroves . . .

5/ The provisions of Section 9.5-286, M.C.C., do not apply to this proceeding because Petitioner did not introduce a nesting inventory approved by the Monroe County planning director or by the Florida Freshwater Fish and Game Division.

Section 9.5-286, M.C.C. provides, in pertinent part, as follows:

(c) No structure other than docks shall be located within fifty (50) feet of any shoreline area which is known to serve as an active turtle nesting or resting area for marine turtles. "Active nesting area" is defined as one that has appeared on (a competently prepared) nesting inventory (approved by the planning director and Florida Freshwater Fish and Game Division) at least once within the previous three (3) years prior to the development application.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-2560DRI

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

1. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 17, 20, 22, 23, 30, 33, 43, 46, 47, 48, 55, 56, 57, 65, 66, 67, 69, 77, 81, 84, 86, and 88 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraph 13 are adopted in part by the Recommended Order, but are rejected to the extent they are unnecessary to the conclusions reached.

3. The proposed findings of fact in paragraphs 14, 16, 21, 25, 26, 27, 28, 29, 31, 32, 34, 35, 36, 37,38, 39, 41, 42, 44, 45, 49, 50, 51, 52, 53, 54, 58, 59, 60, 61, 62, 63, 64, 68, 70, 71, 72, 75, 76, 78, 79, 80, 82, 85, 87, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 101, and 102 are subordinate to the findings made.

4. The proposed findings of fact in paragraphs 15 and 18 are rejected as being contrary to the findings made.

5. The proposed findings of fact in paragraph 19 are adopted in part by the Recommended Order, but are rejected to the extent they are contrary to the findings made.

6. The proposed findings of fact in paragraphs 24, 40, 73, 74, 83, 103, and 104 are rejected as being unnecessary to the conclusions reached.

7. The proposed findings of fact in paragraph 100 are rejected as being unsubstantiated by the evidence.

The following rulings are made as to the proposed findings of fact submitted by the Fagas.

1. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 32, 39, 40, 42, 60, and

   62 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraph 12 are adopted in part by the Recommended Order and rejected in part as being unnecessary to the conclusions reached.

3. The proposed findings of fact in paragraphs 13, 14, 15, and 16 are rejected as being unnecessary to the conclusions reached. These proposed findings attempt to establish a bias on the part of the Petitioner in an attempt to impugn its motive and impeach its main witnesses. This argument pertaining to bias lacks credibility and is, consequently, rejected.

4. The proposed findings of fact in paragraphs 29, 30, 33, 34, 35, 36, 37, 38, 46, 47, 48, 54, 57, 59, and 64 are rejected as being contrary to the findings made.

5. The proposed findings of fact in paragraphs 31, 41, 49, 50, 51, 52, 56, and 63 are subordinate to the findings made.

6. The proposed findings of fact in paragraph 43 are adopted in material part by the Recommended Order or are subordinate to the findings made.

7. The proposed findings of fact in paragraphs 44, 45, 55, and 58 are rejected as being unnecessary to the conclusions reached.

8. The proposed findings of fact in paragraph 53 are rejected as being unnecessary to the conclusions reached or as being contrary to the greater weight of the evidence.

9. The proposed findings of fact in paragraph 61 are adopted in part by the Recommended Order. The proposed findings pertaining to the pilings ignores the differences in width and load capacity between the access bridge and a walkway and are, consequently, rejected as being unsubstantiated by the evidence.

COPIES FURNISHED:

Stephanie M. Gehres, Esquire Department of Community Affairs 2796 Overseas Highway, Suite 212

Marathon, Florida 33050

Terrell Arline, Esquire Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

J.A. Jurgens, Esquire Post Office Box 1178

Winter Park, Florida 32790

Michael L. Gore, Esquire Michael J. Grindstaff, Esquire Shutts & Bowen

20 North Orange Avenue, Suite 1000 Orlando, Florida 32801

James T. Hendrick, Esquire

317 Whitehead Street Key West, Florida 33040

Grill Construction, Inc. 784 Duck Key Drive

Duck Key, Florida 33050

Carolyn Dekle Director

South Florida Regional Planning Council 3400 Hollywood Boulevard, Suite 140

Hollywood, Florida 33021

Bob Bradley, Secretary

Florida Land & Water Adjudicatory Commission 2105 The Capitol

Tallahassee, Florida 32399-0001

Gregory C. Smith, Esquire Governor's Legal Office

209 The Capitol

Tallahassee, Florida 32399-0001

James F. Murley, Secretary Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

Dan Stengle, General Counsel Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

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: 94-002560DRI

Orders for Case No: 94-002560DRI