STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF COMMUNITY AFFAIRS, )

)

Petitioner, )

)

vs. ) CASE NO. 96-4868DRI

) WILLIAM LLEDO, Owner; KEY MARINE ) EQUIPMENT, INC., GENERAL ) CONTRACTOR; and MONROE COUNTY, a )

political subdivision of the ) State of Florida, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, Susan B. Kirkland, held a formal hearing in this case on June 2, 1997, in Marathon, Florida.

APPEARANCES

For Petitioner: Christine C. Stretesky

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

Marathon, Florida 33050

For Respondent William Lledo: No Appearance For Respondent Key Marine Equipment: No Appearance For Respondent Monroe County: No Appearance

STATEMENT OF THE ISSUES

Whether Building permit no. 93-2-4072 issued to Respondents William Lledo, Owner, and Key Marine Equipment, Inc., General Contractor by Monroe County violated Monroe County Comprehensive Plan provisions and Land Development Regulations.

PRELIMINARY STATEMENT

On April 26, 1993, Monroe County issued Building Permit No. 93-2-4072 to Owner William Lledo and General Contractor Key Marine Equipment, Inc., for development of a seawall with 33 cubic yards of fill along the entire length of shoreline of Lot 37, Sombrero Anglers Club Subdivision, Boot Key, Monroe County, Florida. On June 11, 1993, the Department of Community Affairs filed a Notice of Appeal of the development order to the Florida Land and Water Adjudicatory Commission. On September 27, 1996, the Florida Land and Water Adjudicatory Commission gave notice that it would forward the appeal to the Division of Administrative Hearings for assignment to an Administrative Law Judge. On October 16, 1996, the Division of Administrative Hearings received the appeal.

The final hearing was scheduled for January 29, 1997. On January 22, 1997, Petitioner filed a Joint Motion for Abeyance, representing that Respondent, William Lledo, requested that the case be held in abeyance while he attempted to sell the lot. The

request was granted and the case was held in abeyance until March 31, 1997, when the case was rescheduled for hearing on June 2, 1997.

At the final hearing none of the Respondents appeared. Petitioner entered Petitioner’s Exhibits 1, 2, and 3A-3D in evidence. Petitioner called Kathleen Edgerton as its witness.

The transcript was filed on June 6, 1997. Petitioner filed its proposed recommended order on June 6, 1997.

FINDINGS OF FACTS

1. On April 28, 1996, Petitioner, Department of Community Affairs (Department), received Monroe County Permit 93-2-4072 issued to Respondents, William Lledo (Lledo) and Key Marine Equipment, Inc., to construct a seawall with a five-foot wide cap which would serve as a docking facility.

2. The project is proposed to be constructed on an undeveloped piece of real property owned by Lledo. The property is known as Lot 37, Sombrero Anglers Club South Subdivision, Boot Key, Monroe County, Florida. The property is located within the Keys Area of Critical State Concern.

3. The proposed seawall/dock will not be supported by pilings or other supports and will not act to stabilize a disturbed shoreline. The shoreline at the subject property is not eroding. An eroding shoreline shows signs of the water undercutting the shoreline and contains no vegetation on the

   shoreline and submerged shelf. The subject property’s shoreline and adjacent submerged shelf are vegetated.

4. The project will not be replacing a deteriorating seawall or bulkhead.

5. The project, as proposed, requires the placement of fill in a manmade canal below the mean high water line.

6. No principal use or structure has been established on the property nor is there any plan to construct a principal use on the property.

   CONCLUSIONS OF LAW

   
   

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

8. The Department has the burden to establish that the building permit issued by Respondent Monroe County is not in accordance with Monroe County’s Land Development Regulations and its comprehensive plan as required by Chapter 380, Florida Statutes. Young v. Department of Community Affairs, 625 So.2d 831 (Fla. 1993).

9. The Florida Legislature has designated the Florida Keys as an Area of Critical State Concern. Section 380.0552, Florida Statutes. The legislation has “statutorily determined that development in the Florida Keys will have an adverse impact if not in accordance with Chapter 380, the local development regulations, and the local comprehensive plan.” Young at 834.

10. Monroe County is required by Chapter 163, Part II, Florida Statutes, to permit only those developments which are consistent with its comprehensive plan and land regulations. Sections 163.3161(5), 163.3194(1), and 163.3213(1), Florida Statutes.

11. The proposed project will not meet the criteria of Section 9.5-345(m), Monroe County Code, which provides:

    1. All structures on any submerged lands and mangroves shall be designed, located and constructed such that:

       1. All structures shall be constructed on pilings or other supports;

       2. Bulkheads and seawalls shall be permitted only to stabilize disturbed shorelines or to replace deteriorated existing bulkheads or seawalls;

          * * * *

          (4) No fill shall be permitted in any manmade water body unless the applicant demonstrates that the activity will not have a significant adverse impact on natural marine communities. . . .

          
          

12. The seawall will not be constructed on pilings or other supports. The seawall will not be stabilizing a disturbed shoreline and will not be replacing a deteriorated existing seawall.

13. Section 9.5-4(A-2), Monroe County Code, defines “accessory use or accessory structures” as uses or structures that serve a principal use or structure, and provides that “in no event shall an accessory use be established prior to the principal use to which it is accessory.”

14. There is no principal use or structure on the Lledo property. The proposed seawall is an accessory use or structure serving no principal use or structure; thus, the project is in violation of Section 9.5-4(A-2), Monroe County Code.

15. Section 9.5-288, Monroe County Code, allows the construction of a seawall or similar shoreline stabilization structure as a principal use where it is demonstrated that the purpose is for erosion protection or upland protection. The project would not be for erosion protection because the Lledo property is not eroding.

16. The building permit is not in compliance with Sections 9.5-288 and 9.5345(m)(2) and (4), and 9.5-4(A-2) Monroe County Land Development Regulations. Therefore the permit was not issued consistent with the provisions of Chapter 380, Florida Statutes.

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a Final Order be entered denying Monroe County Permit No. 93-2-4072.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 10th day of June, 1997.

SUSAN B. KIRKLAND

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 10th day of June, 1997.

COPIES FURNISHED:

Christine C. Stretesky Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

Key Marine Equipment, Inc.

c/o L.E. Brown, Registered Agent 2001 Overseas Highway

Marathon, Florida 33050

Mr. William Lledo

8730 Southwest 116th Street Miami, Florida 33176

Robert Herman, Director Monroe County Growth

Management Division

Marathon Regional Service Center 2798 Overseas Highway, Suite 400

Marathon, Florida 33050-2227

James F. Murley, Secretary Department of Community Affairs

2555 Shummard Oak Boulevard, Suite 100

Tallahassee, Florida 32399-2100

Stephanie M. Gehres, General Counsel Department of Community Affairs

2555 Shummard Oak Boulevard, Suite 325-A Tallahassee, Florida 32399-2100

Carolyn Dekle, Director

South Florida Regional Planning Council 3400 Hollywood Boulevard, Suite 140

Hollywood, Florida 33021

Robert B. Bradley, Secretary c/o Barbara Leighty, Clerk

Florida Land and Water Adjudicatory Commission Growth Management and Strategic Planning

2105 Capitol

Tallahassee, Florida 32399

Gregory Smith, Esquire

Florida Land and Water Adjudicatory Commission

209 Capitol

Tallahassee, Florida 32399-0001

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 96-004868DRI

Orders for Case No: 96-004868DRI