STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF COMMUNITY AFFAIRS, )
)
Petitioner, )
and )
) JERRY PARRISH, JOEL L. BEARDSLEY, ) AND ED DAVIDSON, )
)
Intervenors, )
)
vs. ) CASE NO. 84-1198DRI
) MARK BARTECKI, LYNN KEPHART, AND ) MONROE COUNTY ZONING BOARD, )
)
Respondents. )
)
RECOMMENDED ORDER
Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on October 1, 1984, in Key West, Florida.
Petitioner Department of Community Affairs was represented by E. Lee Worsham, Esquire, Tallahassee, Florida; Intervenors Jerry Parrish, Joel L. Beardsley, and Ed Davidson were represented by Charles Lee, Maitland, Florida; Respondents Mark Bartecki and Lynn Kephart (hereinafter "Respondents") were represented by James T. Hendrick, Esquire, Key West, Florida; and Respondent Monroe County Zoning Board (hereinafter "Respondent County") was represented by Sheri Smallwood, Attorney at Law, Key West, Florida.
Pursuant to Section 380.07, Florida Statutes, Petitioner appealed to the Florida Land and Water Adjudicatory Commission a development order in the Florida Keys Area of Critical State Concern. That development order is Resolution MD 1-84 issued by Respondent County rezoning a parcel of land owned by Respondents and located on Cudjoe Key from GU (general use) to RU-2 (duplex residential use), and granting Final Major Development approval to a twenty-six lot subdivision to be known as Spoonbill Sound. The Florida Land and Water Adjudicatory Commission referred Petitioner's appeal to the Division of Administrative Hearings for the conduct of a formal hearing pursuant to Section 120.57(1), Florida Statutes. In their prehearing statements the parties agreed that the proceeding before the Division of Administrative Hearings would be de novo.
The parties presented the following issues for resolution:
Whether the Spoonbill Sound Major Development will result in the loss of up to 50 percent of the tropical hardwood hammock on the site, with accompanying loss of habitat, contrary to Monroe County's ordinances, its Comprehensive Plan and Chapters 27F-8 or 27F-9, Florida Administrative Code?
Whether the dock approved as part of the Spoonbill Sound Major Development violates:
Section 19-101(b), Monroe County Code, due to its size; or
The Monroe County Code, Monroe County Comprehensive Plan, and Chapters 27FG-8 or 27F-9, Florida Administrative Code, by significantly degrading water quality and destroying marine flora and fauna (including marine grass beds) through the operation of boats in the shallow waters at the end of the dock?
Whether Monroe County failed to consider, in approving the Spoonbill Sound Major Development, the following issues, in violation of its Code, Comprehensive Plan, or Chapters 27F-8 or 27F-9, Florida Administrative Code:
impacts by the development on natural resources, quality of life, safety of citizens in the event of a hurricane, and upon the publicly financed facilities in the Florida Keys;
impacts by the development upon public services and facilities;
contribution by the Spoonbill Sound developers of their fair share of the cost of providing or expanding public facilities; and
implementation of an evacuation plan by the Spoonbill developers?
Whether use of septic tanks in the interim period prior to 50 percent buildout may lead to water pollution in violation of the Monroe County Code, Monroe County Comprehensive Plan, and Chapters 27F-8 or 27F-9, Florida Administrative Code?
At the commencement of the final hearing, Charles Lee, who is not an attorney, filed a Petition to Intervene on behalf of the Florida Audubon Society, the Florida Keys Audubon Society, and the Sacarma Bay & Cudjoe Ocean Shores Property Owners Association, three Florida non-profit corporations. That Petition was denied since Lee was unable to present any evidence that those corporations wished to intervene in this formal proceeding or that Lee was authorized to represent them in the proceeding in compliance with Section 28- 5.1055, Florida Administrative Code. Likewise, the Petition of Joel L. Beardsley to appear on behalf of the Cudjoe Bay Property Owners Association was denied. When their petitions were denied, Lee, Beardsley, and several other persons left the hearing room for an extended period, during which time the parties made their opening statements framing the issues involved in the proceeding and commenced the presentation of evidence. When they returned, Lee presented a new Petition to Intervene on behalf of Beardsley, Ed Davidson, and Jerry Parrish and requested that he be permitted to represent those individuals pursuant to Section 28-5.1055, the other qualified representative rule.
Although Lee admitted that he had read none of the pleadings in this cause and had not participated in any of the discovery or in the pretrial stipulation in order to know what was at issue in this proceeding, and although he had absented himself during the beginning portion of the final hearing, limited participation in the remainder of the proceeding was permitted by agreement of the parties.
Accordingly, the Petition to Intervene of Beardsley, Davidson, and Parrish on behalf of the Petitioner's position was granted.
Petitioner presented the testimony of Mark Peter McMahon and Renate Skinner. Additionally, Petitioner's Exhibits numbered 1-8 were admitted in evidence.
Mark Barnett f/k/a Mark Bartecki testified on behalf of the Respondents and presented the testimony of Lynn H. Kephart by way of deposition. Additionally, Respondents' Exhibits numbered 1-9 were admitted in evidence.
Respondent County presented no witnesses and no exhibits.
Intervenors Parrish, Beardsley and Davidson testified on their own behalf. Additionally, Intervenors Exhibits numbered 1 and 3 were admitted in evidence.
At the conclusion of the final hearing, the parties elected to file proposed findings of fact and conclusions of law. Pursuant to extensions granted by agreement of the parties, proposed findings of fact and conclusions of law were timely submitted by Petitioner and by Respondents. Since the Proposed Recommended Order of Intervenors was not filed until two weeks after the extended deadline, it will not be considered herein.
All proposed findings of fact, conclusions of law and supporting arguments of the Petitioner and of the Respondents have been considered. To the extent that the proposed findings and conclusions submitted by those parties, and the arguments made by them, are in accordance with the findings and conclusions expressed herein, they have been accepted. To the extent that such proposed findings, conclusions, and arguments are inconsistent herewith, they have been rejected. Certain proposed findings and conclusions have been omitted as not relevant or as not necessary to the determination of the material issues presented. To the extent that the testimony of various witnesses does not accord with the findings herein, it is not credited.
FINDINGS OF FACT
On or about October 25, 1982, Respondents filed with Respondent County an Application for Preliminary Development Plan Review including Zoning, an Application for Final Development Plan Review including Zoning, and a General Application for a Major Development Project known as Spoonbill Sound on Cudjoe Key, Monroe County, Florida.
On or about January 28, 1983, Respondents submitted an Environmental Designation Survey, Community Impact Statement and Preliminary Development Plan for Spoonbill Sound pursuant to the requirements of Sections 6-221 through 6- 245, Monroe County Code, the Major Development Project Ordinance.
The Spoonbill Sound property consists of approximately 55.38 acres.
U.S. Highway No. 1 approximately bisects the property. The 26.29-acres half of the property lying north of U.S. Highway No. 1 consists of a vegetated preserve and an unnamed water area. As such, the northern half of the Spoonbill Sound property is unlikely to be buildable. The 28.94 acres half of the property located south of U.S. Highway No. 1 has a 16.01 acres strip of upland which extends the length of the property contiguous to Cudjoe Bay. The entire area between U.S. Highway No. 1 and the upland area contiguous to Cudjoe Bay consists of a land-locked lake and a red mangrove preserve. Stated differently, approximately 40 acres of the site is wetlands, and only that portion adjoining the Bay holds the possibility of being developed.
That upland area of 16.01 acres is comprised of a late-successional tropical hardwood hammock dominated by tropical low-hammock trees including significant numbers of buckthorn, gumbo limbo seagrape, pigeon plum, Jamaica dogwood, and Spanish stopper. Virtually the entire site is vegetated, and the canopy is closed. Respondents propose to subdivide the 16.01-acres upland portion of the site into 26 lots of approximately one-quarter to one-half acre each, with each lot being approximately 100 feet wide. Respondents have already cleared an east-west oriented road the length of and in the middle of the upland area pursuant to a permit issued by Respondent County. The lots are spaced on either side of that cleared roadway, with 13 lots running along the north edge of the roadway, and 13 lots running along the south edge of the roadway. Respondents proposed to sell 25 of those lots for duplex development. The 26th lot, which covers the southwest corner of the property, will be developed as a common area with parking lot in conjunction with a proposed dock extending into Cudjoe Bay and in conjunction with a nature walk and bird observation platform proposed for the land-locked lake. Other than the "amenities" and private road, Respondents do not propose to develop the residential improvements.
On or about January 25, 1984, Respondent County adopted Resolution MD 1-84 approving Respondents' Major Development, Final Development Plan, Final
Community Impact Study, and Final Change of Zoning from GU to RU-2 for Spoonbill Sound. The only condition contained in that Resolution is that Respondents obtain all required certifications prior to construction of the proposed dock.
The dock proposed at the southwestern tip of the development will extend into Cudjoe Bay 155 feet waterward of the mean high water line and will be a total of 190 feet in length and 8 feet wide. The dock will have an 8 by 80 foot L-shaped extension on the seaward end and will incorporate 9 mooring pilings and 8 boat slips for a total 2,160 square feet of dock area. The depth at the seaward end of the proposed dock site, in the area of the boat slips, at mean low water is 2 1/2 to 3'.
On or about May 4, 1983, the Board of Adjustment of Respondent County denied the request of Respondents for a dimensional variance for the dock. At that hearing, prior to denial of the variance, Respondents sought to withdraw their variance application on the ground that no variance was required by Monroe County ordinance. That request was denied by the Board of Adjustment. On or about November 7, 1983, the County Attorney for Respondent County rendered an opinion that the 100-foot length limitation set forth in Section 19-101(b) of the Monroe County Code did not apply to a dock to be built in an RU-2 subdivision.
At the time of the final hearing in this cause, Respondents' application for a permit to construct the dock had been denied by the Florida Department of Environmental Regulation. Additionally, the Florida Department of Natural Resources had withdrawn its earlier authorization for Respondents to construct the dock over the Bay bottom.
Cudjoe Bay is extremely shallow and does not presently have significant boat traffic. The depth of the bottom is generally -1 to -2' mean low water (MLW) to a distance of approximately 1500' from shore. Moving further southward, -3' MLW depth is reached some 1500 to 2000' from shore. The 4' depth, MLW, is approximately 2500' or nearly a half-mile from shore.
The Cudjoe Bay bottom in the vicinity of the proposed dock consists of varying thicknesses of marine grasses, marine algae, many sponges and hard corals. Marine grasses are not quite as thick at the end of the proposed dock,
as compared with areas closer to the shore and to the east of the dock, but in these areas of fewer grasses there is an abundance of sponges. The Bay bottom in the vicinity of the dock is very much a "live bottom," with a large number of marine organisms present, as contrasted to, for example, a sand bottom. Marine animals observed in the vicinity of the end of the proposed dock are sponges, hard shallow water corals, lobsters, extensive schools of bait fish, juvenile fish, jellyfish, starfish, sea anemones, sea urchins, and various algae.
Corresponding to the Respondents' estimate of boat ownership by the future Spoonbill Sound owners (that one-half of the 50 future families will own boats), Respondents originally sought dock mooring facilities for 25 boats. In order to obtain approval, Respondents later amended their proposal to the current proposal of 8 slips only. As currently proposed, Respondents intend that the dock will be utilized as a transitory platform for residents only and that boats would either be stored at the dwellings or in the several nearby marina facilities and would not be permanently moored at the dock. They speculate that the dock would thus be used as a convenience only, so the residents can make short trips back to their dwelling units to drop off fish or to pick up and drop off supplies or fishing tackle. In additional recognition of the concerns of agencies regarding protection of the marine plants and animals, Respondents propose restrictions on the use of boats in the vicinity of the dock. Respondents propose to limit the number of boats using the dock at any one time to 8 boats by installing only 8 slips and by placing a rail on the inside portion of the dock to prevent people from tying boats along the length of the dock other than where the 8 slips are located. Respondents further propose some system of marking the most favorable ingress and egress channel to the dock so as to limit the damage to marine plants and animals and further propose attempting to limit speeds of boats approaching or leaving the dock.
None of Respondents' proposals of restricting permanent mooring at the dock, limiting the number of boats using the dock at any one time to 8, restricting the mooring of boats along the dock to the location of the 8 slips only, locating and marking a channel, or of restricting damage by imposing speed limits exists as conditions to any permit or approval from any regulatory agency. Respondents propose instead to place authority for the creation and enforcement of those proposed restrictions in the hands of a homeowners association composed of the future residents of Spoonbill Sound. There are presently no written regulations encompassing any of Respondents' proposals.
The evidence is clear that Cudjoe Hay is an inappropriate place for a dock such as that proposed at Spoonbill Sound due to the shallow water depth and that the location of the proposed dock is a difficult and hazardous place to operate a motor boat. The expert witnesses agree that there would be some damage to and removal to marine plants and animals by the operation of boats in the vicinity of the dock even if the proposed safeguards came into existence in an enforceable and written form. While there was testimony that damage to the marine plants and animals on the Bay bottom would be minimized by strict adherence to the proposed safeguards, there is little likelihood of success for the following reasons. First, the potential violators of the safeguards are the proposed enforcers. Second, Respondents themselves expect a 50 per cent boat ownership by Spoonbill Sound dwellers. Even if no resident chose to tie a boat at any point along the dock other than in one of the eight slips, if those eight slips are full at any given time, it is reasonable to assume that additional boats will be driving around the shallow area waiting for their turn to use one of the slips. Third, there is no evidence regarding enforceability of the proposed restrictions on boat usage, and all of the proposed safeguards must be enforced at all times in order to prevent more than minimal removal and injury
to the marine plants and animals in the vicinity of the proposed dock. As a practical matter, notwithstanding any rules and regulations which may or may not be adopted by the homeowners association, there would most likely be little enforcement of the proposed safeguards relating to use of the dock other than an economic incentive, for instance, to avoid propeller damage. Therefore, usage of the dock would most probably result in more than minimal damage to and removal of marine grassbeds and marine animals in Cudjoe Bay. Further, the evidence suggesting minimal impact to the marine plants and animals by strict adherence to the proposed safeguards is based upon the erroneous premise that eight boats will use the dock. Rather, there will be an unknown number of boats making an unknown number of trips to and from the eight slips located at the dock or driving around waiting their turn. There is no evidence of any assessment of impact due to the actual anticipated usage of the dock by the expected regular movement of boats to and from the dock area.
Although proposed deed restrictions suggest that no other applications shall be made and no additional docks shall be constructed at Spoonbill Sound, those deed restrictions, if they ever become effective, are enforceable only by the proposed homeowners' association, which is also given authority in that same document to modify or repeal any deed restrictions. Further, the proposed restrictions carry no penalty for violation.
A thickly vegetated West Indian tropical low hardwood hammock covers
12.50 acres of the Spoonbill Sound 16.01 upland area. The hammock contains a large number of rare and endangered plant species scattered throughout with very dense distribution of individual trees. The site also contains a number of solution holes in the limestone rock substrata inundated with brackish water which provide wetland habitat on the hammock site. These sinks contain a threatened species of leather fern. The only man-made alterations to the hammock are the road cut through the middle by the Respondents, some trails, and some trash deposited in some areas.
Lower Keys tropical hardwood hammocks do not attain the canopy height of those hammocks in the Upper Keys. This is due to lower elevations in the Lower Keys precluding larger plant litter build-up with its accompanying greater moisture retention for utilization by the plants, and there is less rainfall in the Lower Keys. Although this particular tropical hardwood hammock consists of second growth following a fire or some other past disturbance, vegetation in this hammock has stabilized, and the only change which will take place over time is that the trees will get thicker. Over time, however, species composition will not change much nor will the canopy increase in height. The hammock is thus at climax or at least late-successional.
Lower Keys tropical hammocks are nonetheless extremely valuable habitat for such endangered or threatened animals as white crown pigeons, 12 of which were observed feeding on site, great white heron, brown pelican, osprey, and Keys raccoon. Numerous other birds have been observed on site or are expected to utilize the site. The Spoonbill Sound hammock with its unique combination of fresh water areas, semi-fresh water areas, and salt water areas provides a great deal of potential habitat for a large number of rare and endangered animal species. The semi-fresh water wetlands in the hammock alone provide for the Lower Keys a very diverse animal habitat.
As set forth above, Respondents will not be responsible for the construction or placement of the 25 duplexes in their proposed subdivision. Rather, what is built and where is left to the proposed homeowners' association under the proposed deed restrictions which can also be modified or repealed by
that same homeowners' association. The proposed deed restrictions do not provide for their enforceability by anyone other than the potential violators. Each lot carries one vote except for those lots still owned by the Respondents who have retained three votes for each lot owned by them. Therefore, a review of the impact of the entire project on the natural resources systems of the Spoonbill Sound site is impossible since the actual development of each lot is speculative at this time.
Similarly, the amount of hammock to be cleared in the Spoonbill Sound subdivision is unknown. While the proposed deed restrictions limit the amount of clearing to be done on each lot to no more than 30 per cent, Respondent Kephart testified as to his interpretation of the term "clearing" which will take place in the Spoonbill Sound hammock. Under his definition, only total eradication constitutes clearing; removal of all underbrush and the cutting back of branches only constitutes pruning and is therefore not prohibited. Accordingly, Spoonbill Sound, as proposed, fails to provide for the preservation of the hardwood hammock.
While the Spoonbill Sound upland area to be developed consists of
16.01 acres, the upland hammock zone was surveyed at 12.50 acres. Subtracting the recreational, parking, and the road areas, the net hammock area available for development is 8.95 acres. If 30 per cent of the lots can be cleared using the normal definition of that word, the remaining hammock area following development will be 6.265 acres plus a 1.38 acre median strip in the road leaving 7.645 acres out of the original 12.50 acre hammock or approximately 60 per cent of the original hammock following development. If Respondent Kephart' definition of the word "cleared" is utilized, it is unknown how much of the hammock area will remain following development, but substantially less than 60 per cent is probable.
Developments such as is proposed for the Spoonbill Sound will allow easy intrusion by exotic plant species such as Australian pine and Florida holly. The wildlife habitat value of this site after development will be severely degraded not only due to direct human activities in the area but also because the development proposal does not call for preservation of large blocks of contiguous hammock. The result will be that potential for nesting, rooting, and foraging in the area following this development will be severely curtailed and most of the species--including the rare and endangered ones--will migrate away from the site. This will occur despite the fact that tree species preserved following construction may do quite well. Placement of residential improvements clustered in a manner that would increase the amount of contiguous, undisturbed hammock on the property above what Respondents propose would maximize the potential that indigenous wildlife would utilize the hammock.
There is nothing in Respondents' proposal for the development of Spoonbill Sound, with the extra regulation imposed by its location within an Area of Critical State Concern, that makes it any different from the traditional development of utilizing maximally a piece of property by slicing it into 100' wide lots located up and down the side of a roadway constructed through the middle of the development although the Area of Critical State Concern designation had been in place in the Florida Keys for many years before Respondents purchased the property in late 1981 or early 1982.
The Spoonbill Sound property is located within a 100-year flood prone area, and the 25 duplexes expected to be erected on that site will, accordingly, need to be elevated eight feet. Respondents propose that' septic tanks will be utilized for the duplexes until the project reaches 50 per cent buildout. At that time, a sewage treatment plant will somehow become erected on the 26th lot,
the same lot which houses the landward end of the dock, the 12-car parking lot, and the beginning of the nature walkway which continues in a northerly direction past the last duplex lot and into the land-locked lake where it terminates in a 15' by 15' observation platform. Since Respondents are not required to seek septic tank permits at this time, no evidence was presented regarding the impact of the 12 or 13 septic tank systems to be located on the duplex lots contiguous to the Bay or on those lot contiguous to the red mangrove preserve or land- locked lake. Likewise, no evidence was presented as to the impact of any proposed sewage treatment plant located on the Bay-front lot which also serves as the community recreation area. Lastly, no evidence was introduced as to the impact of the nature walkway, elevated boardwalk, or observation platform to be located inside the land-locked lake on the wildlife currently abundant there.
The actual development of Spoonbill Sound is speculative, and its impact on the land-locked lake, the red mangrove preserve, the tropical hardwood hammock, and Cudjoe Bay when it is built is unknown.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57(1), Florida Statutes.
The proposed Spoonbill Sound subdivision is located within the Florida Keys Area of Critical State Concern, designated pursuant to Sections 380.05 and 380.0552, Florida Statutes. Accordingly, Petitioner is authorized to appeal to the Land and Water Adjudicatory Commission the subject development order, Resolution -MD 1-84, approving Respondents' Major Development, Final Development Plan Final Community Impact Study, and Final Change of Zoning from GU to RU-2 for Spoonbill Sound. Sections 380.031(3) and (4), and 380.07(2), Florida Statutes; Cabrera, et al. v. Dept. of Community Affairs, et al., 465 So.2d 547 (Fla. 1st DCA 1985). Since it is located within the Florida Keys Area of Critical State Concern, Spoonbill Sound is also subject to the substantive and procedural rules contained Chapters 27F-8 and 27F-9, Florida Administrative Code, which chapters contain the Boundary and Principles for Guiding Development for the Florida Keys Area of Critical State Concern and the Land Planning Regulations for that area of Monroe County and which are specifically incorporated by reference into Section 380.0552, Florida Statutes.
Chapter 27F-8 provides in pertinent part: 27F-8.01 Purpose. . . . [i]t is the purpose
of these rules to . . . provide principles for guiding development within the critical area in order to conserve and protect the natural, environmental, historical and economic resources, the scenic beauty and the public facilities within the Area of Critical State Concern. It is the further purpose of these rules to provide a comprehensive plan and development regulations that will preserve water quality, provided [sic] for the optimum utilization of the limited water resources of the area, facilitate orderly and well-planned development, and protect the health, welfare, safety and quality of life of the residents
of the state. To effectively and equitably
accomplish such purposes these rules should be implemented by local governments through administrative processes consistent with the comprehensive plan. These processes shall be strengthened to the end that local government is able to achieve the purposes herein stated without the continuation of the designation of area of critical state concern. . . .
* * *
27F-8.03 Principles for Guiding Development.
Definitions. Terms contained within this rule are defined as follows:
* * *
"Objective" means general statement of purpose toward which efforts are to be directed.
"Guideline" means specific policy to be embodied in the comprehensive plan.
"Implementation" means specific regulatory requirement which elaborates upon the course of action identified in the guidelines.
Objectives to be Achieved:
* * *
Protect shoreline and marine resources including mangroves, coral reef formations, seagrass beds, wetlands, fish and wildlife and their habitat.
Protect upland resources, tropical biological communities, freshwater wetlands, native tropical vegetation (for example, hardwood hammocks and pinelands), dune ridges and beaches, wildlife and their habitat.
* * *
Limit the adverse impacts of development on the quality of water throughout the Florida Keys.
Enhance natural scenic resources, promote the aesthetic benefits of the natural environment and ensure that development is compatible with the unique historic character
of the Florida Keys.
* * *
Protect the value, efficiency, cost- effectiveness and amortized life of existing and proposed major public investments. . . .
* * *
Protect the public health, safety, and welfare of the citizens of the Florida Keys, and the maintenance of the Florida Keys as
a unique Florida resource.
* * *
Second Objective: Protect shoreline and marine resources including mangroves, coral reef formations, seagrass beds, wetlands, fish and wildlife and their habitat.
Guidelines:
1. Prohibit shoreline development which would have a substantial adverse impact upon shoreline, wetland, or marine resources.
* * *
Protect the natural functions of shoreline, wetland and marine resources to ensure the maintenance and enhancement of water quality, shoreline stabilization, storm surge protection, and fish and wildlife habitat.
Protect fish and wildlife habitats from adverse impacts such as boat or vehicle traffic.
* * *
Implementation:
Local government shall appropriately revise its development regulations, including site alteration, subdivision and zoning ordinances, to increase protection of shoreline, wetland and marine resources. These ordinances shall include standards which will protect mangroves, coral reef formations, seagrass beds, wetlands, and fish and wildlife and their habitat from adverse impacts from land development. Applicants for development orders or rezonings shall be required to identify potentially affected shoreline, wetland and marine resources. Local governments shall evaluate potential impacts, including cumulative and indirect impacts, and demonstrate in the record that such impacts were considered and mitigated in rendering a decision.
Local government shall appropriately lower overall density to maximize protection of shoreline, wetland and marine resources.
* * *
4. Local government, in cooperation with the appropriate state and federal agencies, shall develop-mooring and marina siting regulations for docking facilities of three or more slips which give special attention and consideration to impacts to the Florida Reef Tract and other corals, eliminate impacts to wetlands, shoreline and submerged vegetation, and maintain or enhance water quality. The following specific criteria shall apply:
b. Docking facilities shall only be approved in locations having adequate circulation and/ or tidal flushing, and which have water depths to accommodate boat moorings, turning basins, access channels and other such areas. A minimum water depth of -4 (minus four) feet mean low water shall be required. Greater depths shall be required for those facilities designed for or capable of accommodating boats
having greater than a 3 (three) foot draft so that a minimum of one foot clearance is provided between the deepest draft of a vessel and the bottom. These depth requirements shall also apply to the area between the proposed facility and any natural or other navigation channel, inlet or deep water.
Where necessary, marking of navigational channels shall be required;
* * *
f. No new or expanded marina or docking facility shall be located directly over any grass bed, reef, or patch reef.
* * *
Third Objective: Protect upland resources, tropical biological communities, freshwater wetlands, native tropical vegetation (for example, hardwood hammocks and pinelands), dune ridges and beaches, wildlife and their habitat.
Guidelines:
Conserve the environmental values and functions of upland resources, including habitat for native tropical species of wildlife and vegetation.
Protect in their natural state representative units of each type of ecological system in sufficient amount and locations so as to be self-sustaining.
Preserve undisturbed or high quality restored tracts of native tropical vegetation.
* * *
Prohibit any significant disturbance, including but not limited to land clearing and excavation, of established habitats for documented resident populations of endangered species, as identified by rule of the Florida Game and Fresh Water Fish Commission, except as may be approved by the Florida Game and Fresh Water Fish Commission.
Discourage any new land clearing, excavation or other significant disturbance of habitats for threatened species identified by the Florida Game and Fresh Water Fish Commission or the U.S. Fish and Wildlife Service.
Implementation:
Local government shall implement regulations to protect and preserve representative units of tropical biological communities including, but not limited to, cactus hammocks, tropical hardwood hammocks, pinelands, freshwater wetlands, and beach and dune systems. In the formulation of these regulations the following mechanisms shall be considered: tax incentives, transfer of development rights, purchase of development
rights, fee simple acquisition, and other on- site and off-site mitigation techniques.
Local government shall preserve intact high quality tracts of native tropical vegetation and allow alteration only if it is demonstrated that the proposed development or site alteration will not involve the removal of native vegetation to the extent that the habitat and its wildlife cease to function as a self-sustaining, viable ecosystem.
Site alteration, subdivision and other development regulations shall prohibit disturbance of areas of high quality native areas biological communities. The extent to which an area of any parcel proposed for development may be disturbed shall depend upon the quality of the native tropical vegetation and the extent to which the area is covered with exotic species such as Casuarina, Schinus terebinthefolius or Malaleuca quinquenervia. The developer shall be required to prepare plans which identify on-site vegetation, provide for protection of native tropical vegetation and provide for the elimination of exotic vegetation. The local government shall consult this plan in determining the extent to which proposed alteration will be permitted and shall reflect that determination in its response to the developer's application.
In the event of any significant disturbance to native tropical vegetation, mitigation shall be required as a condition of development approval. Such mitigation may take the form of replanting disturbed areas with native species, or in the form of the acquisition and donation of lands covered by native tropical vegetation of a high quality in an amount greater than that disturbed.
* * *
(14) Twelfth Objective: Protect the public health, safety, and welfare of the citizens
of the Florida Keys, and the maintenance of the Florida Keys as a unique Florida resource.
(a) Guidelines:
* * *
2. Local government shall guide patterns of land use development to preserve the unique features of the Florida Keys.
The dock proposed for Spoonbill Sound fails to meet the implementation criteria imposed by 27F-8.03(4)(b)4.b. and f. and is inconsistent with the objectives and guidelines imposed by 27F-8.03(4), (4)(a)1., 3., and 4., Florida Administrative Code.
Chapter 27F-9, Florida Administrative Code, establishes land development regulations for Monroe County implementing the principles for guiding development set forth in Chapter 27F-8. Section 27F-9.02, Florida Administrative Code. Section 27F-9.03, Florida Administrative Code, adopts the Monroe County Comprehensive Plan and provides that Respondent County issue development orders only after determining that the proposed development is consistent with and does not violate the goals objectives and policies of the local Comprehensive Plan. Further, Article VII. Major Development Projects, Chapter 18 Trees and Vegetation and Chapter 19 Zoning, as well as other portions of the Monroe County Code relating to land development, are incorporated into the Monroe County Critical Area Regulations. Chapter 27F-9, Florida Administrative Code.
The proposed dock violates Section 27F-9.03, Florida Administrative Code, since its impact is inconsistent with Paragraph 4.1 of the Marine Resources Management Policies contained in the Monroe County Coastal Zone Protection Conservation Element of the Comprehensive Plan, which provides as follows:
4.1 Marine grass beds, mangrove communities, and associated shoreline vegetation will be preserved to the fullest extent possible. Removal of vegetation or modification of natural patterns of tidal flow and nutrient input, cycling and export should be considered only in the case of overriding public interest.
Use of the dock will result in the removal of at least some, if not many, marine grass beds and is not consistent with preservation of the grass beds "to the fullest extent possible." This is particularly so due to the proposed use of the dock for transitory mooring only and not for permanent boat mooring, which is contemplated for nearby marinas or under Spoonbill's duplexes. There is no evidence of any "overriding public interest" which would be justification for removal of the vegetation.
On May 4, 1983, the Monroe County Board of Adjustment denied Respondents' petition for a dimensional variance for the proposed dock. Respondents contend that the hearing before the Board of Adjustment was unnecessary and that the dock was not subject to the 100' length limitation contained in Section 19-101, Monroe County Code. Petitioner, however, contends that not only do Respondents need to obtain a dimensional variance from the Board of Adjustment for the dock but also that the Board of Adjustment cannot give such a variance because no common dock for use of occupants or owners of units within an RU-2 district can be authorized. In support of its argument, Petitioner construes numerous Monroe County zoning ordinances in pari materia while ignoring the plain meaning of those ordinances. According to the Monroe County Code, boat docks are allowed in RU-1 single family residential districts (Section 19-194), in RU-2 districts (Section 19-196), in RU-3 districts (Section 19-197), in RU-4 districts (Section 19-198) and in RU-5 districts (Section 19- 199). In order to determine what size and type of dock can be permitted in any of those diverse districts, Article VI. General Provisions, Section 19-101 of the Monroe County Code controls and provides as follows:
Sec. 19-101. Boat docks. [sic] boathouses, boat lifts and seawalls.
No covered or uncovered boat docks, boathouses or boat lifts or seawalls shall be
constructed within Monroe County, Florida, without a permit. All applications for a permit to construct a dock over any body of water or stream shall be submitted to the zoning department for approval. Conditional issuance of a permit by the county shall not be construed as relieving the applicant from obtaining all applicable state and federal agency approvals and permits nor shall said county approval be construed as removing or countermanding any deed restrictions or covenants.
The zoning department may regulate the length construction, and such other features of boat docks, and shall not approve structures which would create a hazardous condition to the navigation of waterways and to the pursuit of watersports. Approved structures shall comply with specifications and requirements adopted by the board of county commissioners as available in the zoning director's office. In single family residential areas, non-commercial, permeable or floating uncovered structures such as piers, docks, wharfs, ramps, mooring devices, lifting and launching devices, accessory to a single family dwelling and serving only the residents of that dwelling shall be permitted. Such structures shall not extend offshore from the apparent mean high water line more than one hundred (100) feet or ten (10) per cent of the open water span at the point of installation, whichever is less. Unwalled roofed areas or boat shelters are permitted on conforming piers, docks or wharfs, provided that no part of such superstructure extends further offshore from the apparent mean high water line than the permitted structure.
Thus, all boat docks within Monroe County must be permitted prior to construction, and the zoning department may regulate the length and the construction and other features of any proposed dock. However, in the case of, a dock in a single family residential area which is accessory to a single family dwelling and serving only the residents of that dwelling the zoning department has no discretion; so long as that dock does not extend offshore from the apparent mean high water line more than 100 feet or 10 per cent of the open water span at the point of installation (whichever is less), that dock "shall be permitted." Accordingly, Respondents are correct in their contention that they did not require a dimensional variance from the Board of Adjustment for the proposed dock at Spoonbill Sound; however, they do require approval of the zoning department which" . . . may regulate the length, construction, and such other features and shall not approve structures which would create a hazardous condition to the navigation of waterways and to the pursuit of watersports."
Respondents argue strenuously that because environmental agencies may have approved the dock, Petitioner is estopped from urging the impropriety of the dock on the basis of impacts to the marine biology of Cudjoe Bay. This,
however, shows a misunderstanding of the area of critical state concern process which provides for imposition of state principles for guiding development in an area when, because of unique characteristics such as environmental or natural resources of regional or statewide importance, inadequate or uncontrolled development in the area would result in harm to these protected resources.
Section 380.05, Florida Statutes. Environmental agencies enforcing different laws for different purposes thus have no bearing on the critical state concern process.
Likewise, Respondents' argument that the Land and Water Adjudicatory Commission has no jurisdiction over the proposed dock misunderstands the area of critical state concern designation and process. Respondents argue that the Commission lacks jurisdiction over the dock because the boundary of the Florida Keys Area of Critical State Concern excludes from the area "all lands seaward of mean high water that are owned by local, state, or federal governments."
Section 27F-8.02(2), Florida Administrative Code. Respondents argue that jurisdiction over the dock is lacking since the dock is proposed to be constructed on state-owned sovereign bottom lands, seaward of mean high water. Even if the landward end of the dock did not abut upland landward of the mean high water, the Land and Water Adjudicatory Commission would still have jurisdiction to review a development order permitting the dock since it is the entire project which is being reviewed and not simply one small component thereof. Florida Dept. of Community Affairs v. McDonald, et al., DOAH Case Nos. 83-3704, et al., (Final Order June 10, 1985).
Tropical hardwood hammock is given particular attention by Chapters 27F-8 and 27F-9, Florida Administrative Code, by the Monroe County Code, and by the Monroe County Comprehensive Plan. One of the objectives of the principles for guiding development is protection of tropical biological communities and native tropical vegetation, wildlife, and habitats specifically hardwood hammocks. Sections 27F-8.03(2)(c); 27F-8.03(5)(a) 1-3, 5, and 6; and 27F- 8.03(5)(b) 1-4, Florida Administrative Code. The manner of proposed development in the Spoonbill Sound tropical hardwood hammock is inconsistent with protection of the hardwood hammock inasmuch as it does not conserve the habitat of the native tropical species of wildlife and vegetation, does not prohibit significant disturbance of established habitats for endangered species, and does not discourage any land clearing or other significant disturbance of habitats for threatened species. It has clearly not been demonstrated that development in Spoonbill Sound will not involve the removal of native vegetation to the extent that the habitat and its wildlife cease to function as a self-sustaining, viable ecosystem. The Spoonbill Sound hammock its a high quality native biological community, and its proposed site alteration and disturbance should therefore be prohibited by the local government since no mitigation of the impacts on the hammock has been proposed by Respondents.
Chapter 18, Monroe County Code, is entitled "Trees and Vegetation" and provides, in Section 18-23(a), as follows:
To the maximum extent possible, tropical hardwood hammock communities, as defined in section 18-16, shall be protected. Protection of such tropical hardwood hammock communities as intact areas or `clumps' shall be encouraged in all proposed development over the selective removal of individual trees.
The spatial arrangement of proposed structures and other impervious surfaces shall reflect
design considerations which provide maximum protection of these tropical hardwood hammock communities.
The Spoonbill development, as proposed, does not protect the tropical hardwood hammock on site to the maximum extent possible. The arrangement of and amount of proposed improvements on site does not accomplish the maximum possible protection of the hammock community. Animal habitat will be severely diminished and this reduction could be lessened by different placement of the residential improvements on site, as compared with the layout proposed by Respondents. As set forth earlier in this Recommended Order, Respondents have made no attempt to "cluster" the proposed buildings in order to preserve contiguous portions of the hammock or "clumps"; rather, the proposed Spoonbill Sound development is simply traditional dividing of land into 100' wide strips. Contiguous areas of the hammock must be left in order to make it possible for some of the vegetation and attendant wildlife to survive. Since the placement of the proposed duplexes in Spoonbill Sound fails to address preservation of the hardwood hammock to she maximum extent possible, the development as proposed violates Section 18-23, Monroe County Code.
Similarly, the Monroe County Coastal Zone Conservation Element of the Monroe County Comprehensive Plan provides in its Natural Vegetation Management Policies at page 32, as follows:
The unique and endangered status of the hardwood hammock community; and the critical role of the pineland in providing the only living habitat for the Key Deer will be recognized and given due consideration in developing future land use regulations.
Development in and adjacent to hardwood hammock and pineland areas will be carefully regulated so as to maintain normal drainage patterns and the ecological balance of the entire area.
Outstanding, rare, and unique communities of hardwood hammock and pineland will be preserved to the greatest extent possible.
The proposed development is therefore also not consistent with the Monroe County policy, as expressed in the Comprehensive Plan, which calls for preservation of such outstanding, rare and unique communities of hammock to the greatest extent possible. Accordingly, under Section 27F-9.03, Florida Administrative Code, the Respondent County should have disapproved the development proposed as violative of the Comprehensive Plan.
The parties hereto agreed that this proceeding would be heard de novo. As such, Respondents bear the burden of proving entitlement to the approval sought from Respondent County. Respondents must affirmatively carry this burden of showing that all requirements for the proposed major development have been met, and it is not necessary that Petitioner prove the negative, as is argued by the Respondents herein. Respondents have, as a result, failed to prove that Respondent County considered the development's impact on public facilities and the fiscal structure of Monroe County or even required a detailed analysis of the facility utilization required by Sections 6-228 and 6-229 of the Monroe
County Code; failed to prove that Respondent County considered whether to impose upon Respondents "fair share" contributions to the cost of providing or expanding public facilities; failed to prove whether Respondent County considered impacts to the natural resources likely to result from this major development; failed to prove that the Respondent County considered the impacts of septic tanks in the interim period prior to 50 per cent buildout before the sewage treatment plant is installed; and failed to prove that septic tanks or a sewage treatment plant could ever be permitted in the flood prone area known as Spoonbill Sound.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered reversing the Monroe County
Zoning Board's Development Order Resolution No. MD 1-84 and denying development approval for the Spoonbill Sound Major Development. Pursuant to the requirements of Section 380.08(3), Florida Statutes (1983), it is further recommended that the Final Order require the following changes in any development proposal for Spoonbill Sound:
No docking facility be approved;
All units and associated facilities be clustered in such a way as to absolutely maximize the amount of contiguous, undisturbed hammock on the Spoonbill Sound site;
All units and associated facilities be located as close as possible to existing access roads, and the remainder of the hammock be left as undisturbed as possible;
Any future review by Monroe County of any revised development plan be made in accordance and full compliance with Chapters 27F-8 and 27F-9, Florida Administrative Code, with the Monroe County Code, and with the Monroe County Comprehensive Plan; and
Any future review of any revised development plan consider the cumulative impact of the entire project, including the impact of septic tanks and the sewage treatment plant on the hardwood hammock, the adjoining red mangrove preserve, the land-locked lake, and on Cudjoe Bay itself.
DONE and RECOMMENDED this 28th day of June, 1985, at Tallahassee Florida.
LINDA M. RIGOT
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 1985.
COPIES FURNISHED:
Honorable Bob Graham Governor
The Capitol
Tallahassee, Florida 32301
Honorable Bill Gunter Insurance Commissioner The Capitol
Tallahassee, Florida 32301
Honorable Jim Smith Attorney General The Capitol
Tallahassee, Florida 32301
Honorable Doyle Conner Commissioner of Agriculture The Capitol
Tallahassee, Florida 32301
Honorable George Firestone Secretary of State
The Capitol
Tallahassee, Florida 32301
Honorable Gerald Lewis Comptroller
The Capitol
Tallahassee, Florida 32301
John T. Herndon, Secretary Florida Land and Water
Adjudicatory Commission Office of the Governor The Capitol
Tallahassee, Florida 32301
Sheri Smallwood Attorney at Law
County Attorney's Office
310 Fleming Street
Key West, Florida 33040
James Hendrick, Esquire
317 Whitehead Street Key West, Florida 33040
E. Lee Worsham, Esquire Department of Community Affairs
2571 Executive Center Circle, East Tallahssee, Florida 32301
Charles Lee
Florida Audubon Society 1101 Audubon Way
Maitland, Florida 32751
| Issue Date | Proceedings |
|---|---|
| Jun. 28, 1985 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 28, 1985 | Recommended Order | Monroe County development order reversed for Spoonbill Sound for failure to comply with guidelines for Florida Keys area of critical state concern. |
