STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KEY HAVEN ASSOCIATED )

ENTERPRISES, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 76-946

) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, G. Steven Pfeiffer, held a public hearing in this case on April 14 and 15, 1977, in Key West, Florida.

The following appearances were entered: David Horan, Key West, Florida, Riley Davis, Tallahassee, Florida, and Robert Paterno, Miami, Florida, for the Petitioner, Key Haven Associated Enterprises, Inc.; and Terry Cole, Tallahassee, Florida, for the Respondent, Department of Environmental Regulation.

On or about October 19, 1972, Key Haven Associated Enterprises, Inc. ("Petitioner" hereafter) filed an application for dredge and fill permit with the predecessor of the Florida Department of Environmental Regulation ("Respondent" hereafter). A copy of the application was received in evidence at the final hearing as a part of Respondent's Exhibit 1. Petitioner was seeking a permit to dredge canals and fill adjoining lots on submerged land which the Petitioner had previously purchased from the Trustees of the Internal Improvement Trust Fund. By letter dated April 29, 1976, the Respondent gave notice of its intention to deny the permit application. A copy of this notice was received in evidence as a part of Hearing Officer's Exhibit 1. The Respondent thereafter filed a "Request for Formal Proceeding on a Decision Determining Substantial Interest of the Petitioner Pursuant to Florida Statutes Chapter 120.57(1)." In accordance with Section 120.57(1)(b)(3) Florida Statutes, (1975) the Respondent forwarded the petition to the office of the Division of Administrative Hearings for the assignment of a hearing officer and the scheduling of a hearing. A copy of the Request for Formal Proceeding was received in evidence as Hearing Officer's Exhibit 1. The final hearing was originally scheduled to be conducted on October 14 and 15, 1976, by notice dated July 23, 1976 (Hearing Officer's Exhibit 2). On Motion of the Respondent (Hearing Officer's Exhibit 4), the hearing was continued (Hearing Officer's Exhibit 5), and was rescheduled to be conducted on January 13 and 14, 1977 (Hearing Officer's Exhibit 6). On Motion of the Petitioner (Hearing Officer's Exhibit 7), the hearing was again continued (Hearing Officer's Exhibit 9), and was rescheduled to be conducted on April 14 and 15, 1977 (Hearing Officer's Exhibit 10).

The Petitioner called the following witnesses at the hearing: Arthur Lujan, the President of the Petitioner; and Doctor Earl Rich, a Professor of Biology at the University of Miami, and an environmental consultant. Doctor Rich was qualified as an expert witness in the field of Biology. The Respondent called the following witnesses: R. S. Murali, a hydrographic engineer employed by the Respondent; Doctor Paul Parks, the Respondent's chief chemist; Walter C. Jaap, a marine biologist employed by the Florida Department of Natural Resources; Richard James Helbling, an employee of the Respondent; Mickey E. Bryant, an employee of the Respondent's Enforcement Division, Hugh Haines Johnson, an employee of the Respondent; Bryan Barnett, the South Florida Section Leader of the Florida Game and Fresh Water Fish Commission Bureau of Environmental Protection; and Doctor Landon Ross, the Respondent's chief biologist. Mr. Murali was accepted as an expert witness in the field of hydrographic engineering. Doctor Parks was accepted as an expert witness in the field of Chemistry. Mr. Jaap was accepted as an expert witness in the fields of identification of stoney corals and aquatic invertebrates and vegetation. Mr.

Helbling was accepted as an expert witness in the field of water quality measurement and identification of macro-invertebrates. Mr. Bryant, Mr. Johnson, Mr. Barnett, and Doctor Ross were accepted as expert witnesses in the field of Biology.

Hearing Officer's Exhibits 1 through 11, Petitioners Exhibits 1 through 10, Petitioner's Late Filed Exhibit A, and Respondent's Exhibits 1 through 25 were received into evidence at the final hearing. Respondent's Exhibit 26 was offered into evidence but was rejected. The parties have submitted Proposed Findings of Fact, Conclusions of Law, and Recommended Orders, and Post-Hearing Memoranda of Law.

Respondent contends that the Petitioner has failed to provide the reasonable assurances required by the Florida Statutes, and the Respondent's rules so as to justify issuance of a dredge and fill permit. Petitioner contends that whether or not it has provided the reasonable assurances, it is entitled to issuance of the permit because the subject lands were sold to the Petitioner by the Trustees of the Internal Improvement Trust Fund, an agency of the State of Florida, with the understanding that the entire land area would be dredged and filled. Petitioner contends that in making the land sale the Trustees implicitly concluded that the dredge and fill project would be in the public interest, and that the Respondent should not now be heard to contend that the proposed dredge and fill project would not be in the public interest.

In support of its contention the Petitioner has offered the deposition testimony of several former employees of the Internal Improvement Trust Fund who related procedures followed by the Trustees at the time the sale was made. The Respondent has contended that the sole issue to be determined in this proceeding is whether the Petitioner has provided the reasonable assurances required by the statutes and the rules. Respondent has argued that evidence respecting action taken by the Trustees of the Internal Improvement Trust Fund is irrelevant and should be excluded from the record. The undersigned has concluded that the Petitioner's estoppel argument, if adequately established, would constitute grounds for granting the relief Petitioner has requested. The undersigned has also concluded that the position has not been legally established; however, evidence offered in support of the contention would nonetheless be relevant, and will not be stricken from the record herein.

Respondent offered the testimony of a hydrographic engineer. The Petitioner sought to strike the testimony on the ground that representatives of the Respondent told Petitioner that no hydrographic study of the proposed

project would be required. This Motion to Strike has been carried forward with the case, and is now, hereby, DENIED.

In addition to other evidence offered in this case, the undersigned accompanied counsel for the parties on an inspection of the proposed project site. The project site was viewed from two landside points, and was crossed by boat. During the view counsel pointed out the approximate land area that would be encompassed by the proposed project, and the environment of the area was generally observed. The Findings of Fact which follow are based in part upon this view. In several respects there were conflicts in the testimony offered by the parties. In resolving these conflicts, and in making the Findings of Fact which follow, due regard has been given to the credibility and demeanor of the witnesses, to their professional qualifications, and to the extent of the witnesses' knowledge of the facts.

FINDINGS OF FACT

1. The Petitioner is a family owned corporation. Arthur B. Lujan is the Petitioner's President and Chief Executive Officer. The Key Haven Development is a residential development presently composed of ten additions. The eleventh addition is proposed for construction on the submerged land which is the subject matter of this proceeding. The Key Haven Development is located on Raccoon Key adjacent to Stock Island in the Florida Keys. Nine of the Key Haven additions were developed by a former owner who, sometime prior to 1964, transferred title to Arthur B. Lujan.

   
   

2. In 1964, 1965, and 1966, Mr. Lujan, as the Petitioner's President, made application with the Trustees of the Internal Improvement Trust Fund to purchase three tracts of submerged land which together form the area which is the subject of this proceeding. The Trustees sold the land to the Petitioner in three separate deeds for $300 per acre. The land area is located just offshore from the first ten additions of the Key Haven Development. Before the sale was approved, representatives of the Trustees viewed the subject property, and received information from representatives of the predecessor to the Florida Department of Natural Resources. Representatives of the Trustees were aware that the Petitioner proposed to dredge and fill the land area, and to develop it. It was the Trustees' assumption that the entire land area would be filled. The $300 price was set by the Trustees' appraiser. The appraisal was based upon sales of other submerged land in the Florida Keys by the Trustees. The appraisal was not based upon whether the land area would be filled, or what use it would ultimately be put to, but rather upon similar sales. This was contrary to the general policy exercised by the Trustees in making assessments, but was necessary because establishing a developed valuation, and establishing the cost of filling an area was extremely difficult with respect to submerged land in the Florida Keys.

   
   

3. The deeds executed by the Trustees of the Internal Improvement Trust Fund do not contain any permit for dredge and fill projects. There is no promise contained in the deeds or elsewhere that dredging or filling would be allowed. Other deeds executed by the Trustees have contained such assurance.

   
   

4. Petitioner made no effort to develop the subject property, and made no applications either to the Respondent or its predecessors, or to the United States Army Corps of Engineers until 1972. Petitioner obtained a building permit from Monroe County prior to filing the instant application. Whether the building permit would constitute approval of the project by local government cannot be gleaned from the evidence because the building permit was not offered

   into evidence. There is no evidence from which it can be determined what matters were considered by the County in issuing the building permit. No significant action was taken by the Respondent on the application until sometime during 1975 due to a statewide moratorium that had been imposed on all dredge and fill projects. During the course of informal proceedings before he Respondent, it became evident to the Petitioner that representatives of the Respondent intended to deny the application. The Petitioner, through his attorney, thus requested whether it would be necessary to submit a hydrographic survey which would have cost the Petitioner from $10,000 to $15,000. A representative of the Respondent advised the Petitioner that other effects of the project were so negative, that even if a hydrographic survey were very positive, the staff would recommend denial of the permit. Thus in order to save a considerable amount of money which would not have led to a favorable decision, the Petitioner elected not to have a hydrographic survey performed. By letter dated April 29, 1976, the Respondent issued its Notice of Intent to Deny the Permit, and advised the Petitioner that it could petition for a hearing pursuant to the provisions of Section 120.57, Florida Statutes.

   
   

5. Petitioner proposes to fill approximately 150 acres of submerged land in Class III waters of the State of Florida. The location of the proposed project is depicted on maps which were submitted with Petitioner's dredge and fill application, and on an aerial photograph that was received in evidence as Respondent's Exhibit 3. Petitioner proposes to fill the area to four feet above sea level. Fill would be obtained through the dredging of eight canals and a boat basin or lagoon. Such additional fill as might be required would be trucked in from other areas. Waterfront residences would be constructed on the fill area. The canals would be connected to surrounding waters by a feeder canal, and by three foot culverts located at each end of each canal.

   
   

6. The area which the Petitioner proposes to dredge and fill is submerged land which varies in depth from one to four feet. There are several hundred square miles of similar shallow flatlands in the area of the Florida Keys. Some dredging and filling has occurred in areas surrounding the proposed land, and the proposed landfill site has been damaged somewhat by these projects. The area is generally, however, in its natural condition. A large number and a good variety of corals are found in the area. The area provides a nursery and feeding ground for spiney lobster and stone crabs. There is also a large number and variety of aquatic plants in the area. The site is a habitat for shore and wading birds, and mangroves growing in the area provide a habitat for many species of birds. Larger diving birds utilize offshore portions of the site for feeding.

   
   

7. The immediate effect of the proposed project would be to obliterate all marine plant and animal life in the area and to eliminate the bird habitat. After dredging and filling the area would recover somewhat, and some marine organisms would find an accommodating habitat in the proposed canals. The area would not, however, continue to support the same variety and number of plant and animal species as presently utilize the area.

   
   

8. Canals were dredged in several of the earlier additions of the Key Haven subdivision. These canals are not precisely the same as those proposed by the Petitioner in the eleventh addition, but they do provide some insight into what will likely occur if this project is completed. The "standing crop" of vegetation in the existing canals is greater than the "standing crop" in the area which the Petitioner proposes to dredge and fill. "Standing crop" is a term used to identify the amount of vegetation that is present at a given moment. "Standing crop" considered alone is neither a positive nor a negative

   factor ecologically speaking. Depending upon what vegetation is present, and the diversity of vegetation, a high standing crop can in fact be a negative factor. "Productivity" is a term used to indicate the amount of plant or animal life that will be produced over a period of time. Productivity is a biologically more important term than is standing crop. The evidence was not clear as to whether the present canals or the proposed fill area is the more productive in terms of aquatic vegetation. It is apparent that the proposed fill area has a much greater diversity of plant life. The canals are dominated by a few species of aquatic vegetation. It is clear that the proposed fill area is much more productive in terms of animal life. The canals do not provide suitable nursery grounds for spiney lobster or stone crabs, and no corals have been found in the canals.

   
   

9. Water quality at the proposed landfill site is presently very good.

   The proposed landfill and canals would have an adverse impact upon water quality in the area. The project will obstruct prevailing currents in the area, and erosion and shoaling are likely to occur on surrounding submerged lands on the northwest and northeast sides of the project. The canals are considerably deeper than the adjoining waters. There will not be an adequate flushing of water from the canals into the surrounding waters. The three foot culverts at the ends of the canals will serve to assist the transfer of waters from the canal to the surrounding waters; however, vertical mixing of waters within the proposed canals is not likely to occur, and water on the bottom of the proposed canals will tend not to flush. Waters in the area of the proposed landfill are constantly mixed presently due to the action of wind and tides. The canals will not be so subject to the action of the winds and the tides due to their depth, and also due to their orientation in relation to prevailing currents. The reduced exchange of water between the canals and surrounding waters will cause a trapping of nutrients from organic waste in the canals. An increase in nutrients causes an increase in plant growth. The plants produce oxygen but the decay of the plants consumes an equivalent amount of oxygen. During the afternoon oxygen will likely bubble up from the bottom of the proposed canals into the air, causing a depletion of oxygen in the canals, and most especially in the bottom levels of the proposed canals. A transfer of waters, or an infusion of oxygen from the air could compensate for such an oxygen deficiency, but these factors are greatly restricted in canals. This is especially true in deep canals, such as those proposed by the Petitioner. It is likely that dissolved oxygen levels in the proposed canals will be below state standards at various places and at various times. While dissolved oxygen deficiencies occasionally occur in natural conditions, it is not likely that such deficiencies would be found in open areas such as the proposed development site. Reduced oxygen levels in the proposed canals would have a negative effect upon the water quality of the area.

   
   

10. Evidence was offered at the hearing which tends to show that several employees of the Respondent actively opposed the Petitioner's proposed project on the grounds that the project would have an adverse effect upon water quality in the area and upon natural resources in the area. Although there was a considerable delay in the processing of the Petitioner's application, no evidence was offered to establish that the delay was caused by any improper action or motivation on the part of the Respondent or any of its employees.

    
    

11. The Petitioner has failed to provide reasonable assurance that the proposed dredge and fill project would not have an adverse effect upon water quality and natural resources in the area. The proposed project would serve the private interests of the Petitioner, who seeks to develop a residential community for profit, and the private interests of persons who might wish to

    have waterfront residences in the Florida Keys. The public interest would not be served by the proposed project. The public interest would be adversely effected by the project in that water quality in the area, and the natural resources of the area are likely to be adversely effected by the proposed project.

    
    

12. Proposed Findings of Fact submitted by the Petitioner and the Respondent have been considered.

    
    

13. Respecting Petitioner's Proposed Findings, Paragraphs 1 2, and 3 have been substantially adopted. Paragraph 4 has been substantially adopted, with the exception of the last sentence. It is true that Mr. Lujan testified as set out in the sentence; however, Mr. Weigel, who actually made the appraisal of the land that was sold by the Trustees to the Petitioner testified that the appraisal was not based upon the intended use of the land, but rather upon the going rate for submerged lands in the Florida Keys at the time. Paragraph 5 has been substantially adopted except that any inference in the paragraph that the Petitioner was not required to obtain a dredge and fill permit has been rejected. As to the last sentence of the paragraph, the word "inordinate" has been rejected, as not being supported by the evidence. Paragraph 6 has been adopted to some extent; however, any inference contained in the paragraph that the Respondent's employees acted improperly in opposing the Petitioner's application is not supported by the evidence. Any inference contained in the paragraph that representative of the Respondent wrongfully induced the Petitioner to avoid the expense of a hydrographic survey is also rejected as not being supported by the evidence. That portion of Paragraph 7 to the effect that the Trustees of the Internal Improvement Trust Fund apparently considered the "public interest" in making the determination to sell the submerged land to the Petitioner is adopted. The paragraph is in all other respects rejected as not being supported by the evidence, or as being legally irrelevant to the issues in this matter. Paragraph 8 contains a substantially accurate summary of several depositions which were offered into evidence in this case. To the extent that the paragraph contains a legal conclusion that the public interest would be benefited by the proposed project, the paragraph is rejected. The paragraph is further rejected insofar as it relates the conclusions of the persons deposed as to probable effects of the proposed project upon water quality in the area and natural resources of the area. This testimony is too remote in terms of time to have any probative value in this matter. Paragraph 9 contains an accurate summary of the deposition of William R. Weigel; however, insofar as the paragraph contains an inference that Mr. Weigel's appraisal of the subject land was based upon anything except sales of comparable submerged lands in the Florida Keys, the paragraph is rejected. Paragraph 10 contains an accurate summary of the deposition of Jack Buford. Paragraph 11 contains an accurate summary of the deposition of John Dubose. Paragraph 12 contains an accurate summary of the deposition of William Kidd. To the extent that Paragraphs 10 through 12 contain any conclusion that the Petitioner was not required to seek a permit with respect to his proposed project, the paragraphs are rejected. Paragraphs 13 and 14 are similarly rejected insofar as they contain any such conclusion. Paragraph 14 contains a very brief summary of the testimony of Doctor Rich. Insofar as Doctor Rich concluded that there would be no substantial adverse biological effects from the proposed projects, or no detriment to water quality, his testimony has been rejected due to the testimony of other witnesses. Paragraphs 15 and 16 have been substantially adopted. Paragraph 17 Is adopted in part but is rejected insofar as it contains any inference that no dredging and filling could ever occur in the subject area.

    The only project considered in this matter is the precise project proposed by the petitioner Whether a different sort of project without canals, or with

    shallower canals, or less filled area might be approved has not been considered. Paragraph 18 is rejected insofar as it contains a conclusion that the Petitioner is not required to obtain a permit for his proposed dredging and filling activities.

    
    

14. Each paragraph of the Respondent's Proposed Findings has been substantially adopted herein. Summaries of witnesses' testimony contained in the Respondent's Proposed Findings are accurate.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties to this action, and over the subject matter. Sections 120.57(1), 120.60, Florida Statutes (1976 Supp.) The Respondent has contended in Post- Hearing Memoranda that this proceeding is governed by the Administrative Procedure Act in effect prior to the adoption of the 1974 Administrative Procedure Act. Section 120.72(2) of the 1974 Act provides:

    
    

    "All administrative adjudicative proceedings begun prior to January 1, 1975, shall be continued to a conclusion under the provisions of the Florida Statutes, 1973, except that administrative adjudicatory proceedings which have not progressed to the stage of hearing may, with the consent of all parties and

    the agency conducting the proceeding, be conducted in accordance with the provisions of this Act as nearly as is feasible."

    
    

    The instant matter is an administrative adjudicative proceeding which commenced prior to January 1, 1975. The case had not progressed to the stage of a hearing prior to that date. In its Notice of Intent to Deny the Petitioner's application, the Respondent invited the Petitioner to ". . . petition for a hearing pursuant to the provisions of Section 120.57, Florida Statutes . . ." The Petitioner requested the convening of a formal proceeding . . . "pursuant to Florida Statutes Chapter 120.57(1)". These statutory references relate to the 1974 Administrative Procedure Act. By indicating that a hearing could be sought in accordance with the provisions of the 1974 Act, the Respondent gave its consent to having the hearing conducted in accordance with the provisions of the 1974 Act. By seeking a hearing in accordance with the 1974 Act the Petitioner gave its consent to be governed by the 1974 Act. Respondent's contention that this proceeding should now be governed by statutes in effect prior to the 1974 Act is rejected.

    
    

16. The Petitioner has contended that the Respondent is estopped from denying the dredge and fill application in this case. The basis of the motion is that the Trustees of the Internal Improvement Trust Fund, when they approved the sale of the subject submerged property to the Petitioner, made an implicit determination that the project would be in the public interest, and would not adversely effect the water quality or natural resources of the area. Petitioner argues that since the Trustees made these findings, and sold the property with the belief and understanding that it would be filled, a contrary determination at a later date cannot be sustained. This contention is without merit. In the first place, it is only in very rare instances that the doctrine of equitable estoppel is applied against the State. Dominion Land and Title Corporation v. Department of Revenue, 320 So.2d 815 (Fla. 1975); North American Company v. Green, 120 So.2d 603 (Fla. 1959). Even if the principles of estoppel were not

    so rarely applied against the State, the instant matter would not be an appropriate one for application of the doctrine. In order for the doctrine to be applied the party against whom it is being invoked must have engaged in conduct which amounts to a false representation or concealment of material facts. Aetna Casualty and Surety Company v. Simpson, 128 So.2d 420 (1 DCA Fla. 1961). In the instant case no facts were concealed from the Petitioner, and the Petitioner was not induced to take action which has injured the Petitioner.

    When the Petitioner purchased the subject property from the Trustees of the Internal Improvement Trust Fund, the Petitioner was not required to seek further dredge and fill permits from the State. When the Petitioner undertook to commence dredge and fill activities, there was, however, such a requirement.

    The Petitioner is not in a different position than any other landowner who has been affected by the statutory permitting requirements. To the extent that the Petitioner has been deprived of use of its land, it may have a right to just compensation through an eminent domain proceeding. If the Petitioner were so entitled, and the State of Florida refused to initiate eminent domain proceedings, the Petitioner may be entitled to a mandatory injunction requiring institution of the proceedings. Askew v. Gables-by-the-Sea, Inc. 333 So.2d 56 (1 DCA Fla. 1976). It should be noted that whether Petitioner is entitled to such a mandatory injunction is not an issue that has been litigated in this case. No evidence was presented at the hearing respecting uses to which the subject land could be put other than that proposed in the instant application.

    
    

17. An applicant for a dredge and fill permit has the burden of affirmatively providing reasonable assurance that the short term and long term effects of the project will not cause pollution, and will not result in violations of the water quality criteria, standards, requirements and provisions of the Florida Statutes and the Rules and Regulations of the Respondent. Rule 17-4.07(1), 17-4.28 (3), Florida Administrative Code. The applicant has the further burden of affirmatively establishing that the proposed project will be in the public interest. Yonge v. Askew, 293 So.2d 395 (1 DCA Fla. 1974).

    
    

18. The Petitioner has failed to provide reasonable assurance that the proposed dredge and fill project will not result in violations of the water quality standards set out in the Florida Statutes and in the Respondent's Rules and Regulations. It affirmatively appears from the evidence that the Petitioner's proposed canals will have dissolved oxygen levels which are below the standards.

    
    

19. The Petitioner has failed to establish that the proposed dredge and fill project will not adversely effect the natural resources of the area. It does affirmatively appear that the initial impact of the Petitioner's project will be to obliterate all aquatic life in the area. The filled land and canals will not provide an environment where marine life of the sort presently in the area could reestablish itself. What is presently a healthy environment for many aquatic life forms would be replaced by an environment where none of these life forms could survive. Among the life forms that would be obliterated, and not able to reestablish themselves, are species of hard or stoney corals protected under the provisions of Section 370.114, Florida Statutes (1976) Supp.). Spiney lobsters and stone crabs would also lose a part of their habitat.

    
    

20. Petitioner has failed to establish that the proposed dredge and fill project would be in the public interest. There is a substantial public interest in preserving a biologically productive submerged land such as is involved in this case. Any public interest that there may be in permitting the development of canal front residences is clearly overcome by the overriding public interest in preserving water quality and natural resources. To the extent that there is

    a public interest in preserving the Petitioner's private property rights in utilizing its land without interference from the government, the Legislature has made the determination through the passage of Chapters 253 and 403, Florida Statutes (1975) that this interest is overcome by the overriding need to preserve water quality and natural resources.

    
    

21. The Petitioner's contention that the Respondent should not have been permitted to present testimony respecting any hydrographic survey of the area is without merit. When Mr. Farley advised the Petitioner's counsel that he believed the permit would be denied whatever the results of a hydrographic survey, he did not thereby waive consideration of any hydrographic consequences of the project by the agency. If he had attempted to do so he would have been acting beyond the scope of either his actual or apparent authority.

    
    

22. The Petitioner's application for dredge and fill permit should be denied.

RECOMMENDED ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED:

That a final order be entered denying the Petitioner's application for dredge and fill permit.

RECOMMENDED this 16th day of May, 1977, in Tallahassee, Florida.

G. STEVEN PFEIFFER Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

COPIES FURNISHED:

David Horan, Esquire 617 Whitehead Drive

Key West, Florida 33040

Terry Cole, Esquire

Department of Environmental Regulation 2562 Executive Center Circle, East Montgomery Building

Tallahassee, Florida 32301

Mr. Jay Landers Secretary

Department of Environmental Regulation

2562 Executive Center Circle, East Montgomery Building

Tallahassee, Florida 32301

1. Riley Davis, Esquire Taylor, Brion, Buker & Greene P. 0. Box 1796

   Tallahassee, Florida 32302

   
   

   ================================================================= AGENCY FINAL ORDER

   =================================================================

   
   

   STATE OF FLORIDA

   DEPARTMENT OF ENVIRONMENTAL REGULATION

   
   

   KEY HAVEN ASSOCIATED ENTERPRISES, INC.,

   
   

   Petitioner,

   
   

   vs. CASE NO. 76-946

   
   

   DEPARTMENT OF ENVIRONMENTAL REGULATION,

   
   

   Respondent.

   /

   
   

   FINAL ORDER

   
   

   After considering the Recommended Order of the Hearing Officer, the Exceptions filed by both parties, Respondent's Reply to Exceptions of Petitioner, and Memorandum of Law filed by Respondent in support of Exceptions, the Recommended Order is adopted en toto except for the following changes:

   
   

   1. The requests of Respondent in Exceptions to Recommended Order of the Hearing Officer are granted and Recommended Order will be modified as follows:

The next to last sentence on page three which reads, The undersigned has concluded that the Petitioner's estoppel argument, if adequately established, would constitute grounds for granting the relief Petitioner has requested," is struck. The last sentence on page three is modified to read: "It is concluded that the estoppel argument has not been legally established; however evidence offered will be allowed as an historical background of the project and will not be stricken from the record herein."

The final sentence of the first paragraph on page three is altered to read: "The parties have submitted Proposed Findings of Fact, Conclusions of Law, and Recommended Orders, and Respondent submitted a Post Hearing Memorandum of Law."

ENTERED this 21 day of June, 1977, in Tallahassee, Florida.

JOSEPH W. LANDERS, JR.

Secretary

Department of Environmental Regulation 2562 Executive Center Circle, East Montgomery Building

Tallahassee, Florida 32301

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing Final Order has been furnished by United States Mail to DAVID P. HORAN, ESQUIRE, 517 Whitehead Street, Key West, Florida, 33040, J. RILEY DAVIS, ESQUIRE, Post Office Box 1796, Tallahassee, Florida, 32302, and G. STEVEN PFEIFFER, Hearing Officer, Division of Administrative Hearings, Department of Administration, Room 530, Carlton Building, Tallahassee, Florida, 32304, this 22nd day of June, 1977.

TERRY COLE

Deputy General Counsel

Department of Environmental Regulation 2562 Executive Center Circle, E. Montgomery Building

Tallahassee, Florida 32301

Telephone: (904) 488-9730

COPIES FURNISHED:

Banks Vest Glen Boe Phil Edwards

All Witnesses (Including Walter Jaap and Bryan Barnett)

John Adams, Corp of Engineers Florida Marine Patrol

Florida Game & Fresh Water Fish Commission

Docket for Case No: 76-000946

Orders for Case No: 76-000946