STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF COMMUNITY AFFAIRS, )
)
Petitioner, )
)
vs. ) CASE NO. 84-2868VR
) MONROE COUNTY BOARD OF COUNTY ) COMMISSIONERS, HARBOR COURSE ) CLUB, INC., and DRISCOLL )
PROPERTIES, a Florida General ) Partnership, )
)
Respondents. )
)
RECOMMENDED ORDER
At the request of the parties, this case was consolidated for hearing with Case No. 84-3805VR and was heard on November 25, 1985 in Key Largo, Florida before Donald D. Conn, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented by:
Petitioner: Sarah E. Nall, Esquire
C. Laurence Keesey, Esquire Ross Burnaman, Esquire Department of Community Affairs
2571 Executive Center Circle, East Tallahassee, Florida 32301
Respondents: Larry A. Stumpf, Esquire
777 Brickell Avenue, Suite 1000
Miami, Florida 33131
(Harbor Course Club Inc. Driscoll Properties and Walter Driscoll)
Susan Vernon, Esquire Assistant County Attorney
310 Fleming Street
Key West, Florida 33040
(Monroe County Board of County Commissioners)
Separate Recommended Orders are being issued in these related cases since final agency action will be taken by the Land and Water Adjudicatory Commission in this case, and by the Department of Community Affairs in Case No. 84-3805VR. In order to explain the interrelationship of these two cases, a statement of the background and issues involved in each follows.
BACKGROUND INFORMATION
This case (Case No. 84-2868VR) is an appeal to the Florida Land and Water Adjudicatory Commission, initiated by notice of appeal and petition of the
Department of Community Affairs dated August 3, 1984, from a development order issued by the Monroe County Board of County Commissioners on March 23, 1984 and received by the Department on June 21, 1984. The development order appealed is designated as Resolution Number 091-1984 of the Monroe County Board of County Commissioners.
The related case (Case No. 84-3805VR) is an enforcement action initiated by the Department of Community Affairs through a Notice of Violation and Order for Cessation and Corrective Action dated October 1, 1984 in response to which Respondents requested a formal administrative hearing.
The record established at the hearing applies to both cases. The parties introduced forty-one (41) joint exhibits and an additional twenty-four (24) exhibits were received from Petitioner and twenty-five (25) from Respondents. One exhibit offered by Petitioner and numbered P-1O was rejected. Petitioner called four (4) witnesses to testify, and Respondent called three (3). A transcript of the hearing was filed on January 9, 1986, and by agreement of the parties, proposed findings of fact, conclusions of law and memoranda were due thirty (30) days thereafter. A ruling on each timely filed proposed finding of fact is included in the Appendix to this Recommended Order.
ISSUES
Do Driscoll Properties and/or Harbor Course Club, Inc., Respondents, have vested rights to complete the project at issue, a golf driving range? (Case Nos. 84-2868VR and 84-3805VR)
If Respondents do not have vested rights, did the application to clear land for the golf driving range comply with the provisions of Chapter 380, Florida Statutes, and in particular with the comprehensive plan and land development regulations for the Florida Keys Area of Critical State Concern? (Case No. 84-2868VR).
Is the Department of Community Affairs estopped, or otherwise equitably barred, from preventing the completion of this project? (Case Nos. 84-2868VR and 84-3805VR)
Did Driscoll Properties or Harbor Course Club, Inc., violate the provisions of Chapter 380, Florida Statutes? (Case No. 84-3805VR)
Did Monroe County violate Chapter 380, Florida Statutes, by issuing a land clearing permit prior to transmitting the Monroe County Board of County Commissioners Resolution 091-1984 to the Department of Community Affairs, the South Florida Regional Planning Council and the Developer? (Case No. 84-3805VR)
If there is a violation of Chapter 380, Florida Statutes, what is the proper remedy? (Case No. 84-3805VR)
FINDINGS OF FACT
The parties stipulated to the following findings of fact which are incorporated herein:
The owner of record of the subject property is Driscoll Properties, a
Florida general partnership, 522 Gables International Plaza, 2655 LeJeune Road, Coral Gables, Florida 33134, and the property is located in Section 5, Township
59 South, Range 41 East, North Key Largo, Monroe County, Florida, within a subdivision known as Harbor Course South, Section One.
Driscoll Properties, and Harbor Course Club, Inc., submitted to Monroe County an Application for Land Clearing, Permit No. C-14919, for the subject property in order to build a golf driving range. The application was dated March 18, 1983, and received by the County on or about March 24, 1983.
Monroe County Application for Land Clearing, Permit No. C-14919 was denied by William Russell, Assistant Director, Monroe County Planning, Building and Zoning on May 20, 1983.
The denial of Permit Application for Land Clearing No. C-14919 was appealed by Harbor Course Club, Inc., to the Monroe County Board of Adjustment. The Board of Adjustment denied the appeal on December 14, 1983, by Resolution (of) Administrative Appeal 8-83.
The Monroe County Board of Adjustment Resolution No. 8-83, denying the Application for Land Clearing, Permit No. C-14919, was appealed by Harbor Course Club, Inc., to the Monroe County Board of County Commissioners.
The Monroe County Board of County Commissioners reversed the decision of the Monroe County Board of Adjustment by adopting Resolution No. 091-1984 on March 23, 1984.
The Monroe County Zoning Department was responsible for issuing and rendering Monroe County Board of County Commissioners Resolution 091-1984.
On April 25, 1984, Harbor Course Club, Inc., or a person acting on its behalf, applied to and obtained from Monroe County Building and Zoning Department ministerial land clearing permit No. C-14919, which was authorized by Resolution 091-1984.
Harbor Course Club, Inc., or an authorized agent, employee or representative, received a letter dated June 12, 1984, enclosing Resolution No. 091-1984 and the minutes from the hearing described in No. 6 above.
Harbor Course Club, Inc., or an authorized agent, employee or representative arranged for clearing of the subject property.
Land clearing activity on the subject property began on April 30, 1984.
Land clearing activity on the subject property was conducted on May 2, 3, 7, 8 and 10, 1984.
Land clearing on the subject property was continued on July 19, 20 and 24, 1984, and completed August 2, 1984.
At the times in question, the Petitioners maintained an office in Monroe County.
At the times in question, Bob Dennis was an environmental specialist in the Petitioners' Monroe County office.
The Key Largo woodrat is listed as an endangered species by the U.S. Fish and Wildlife Service pursuant to 50 Code of Federal Regulations, Part 17, Section 17.11(h).
The Key Largo woodrat is listed as an endangered species by the Florida Game and Freshwater Fish Commission pursuant to Rule 39-27.03(27).
The following findings of fact are made based on the evidence submitted at the hearing, after considering the demeanor and credibility of the witnesses who testified:
The subject property consists of approximately 3.6 acres. Harbor Course Club, Inc., seeks to have the subject property developed into a golf driving range for the use of its members.
Harbor Course Club, Inc., is a private membership golf club located within the Ocean Reef Development on North Key Largo. Ocean Reef is a residential development with three eighteen hole golf courses consisting of approximately 4000 acres, half of which is developed and half of which has been dedicated to wilderness.
The subject property as well as the entire Ocean Reef Development is part of an Area of Critical State Concern previously designated on July 1, 1979 under Section 380.0552, Florida Statutes, and subject to Chapters 27F-B and 27F- 9, Florida Administrative Code.
Monroe County has developed a comprehensive plan pursuant to Chapter 163, Florida Statutes, which provides for certain standards and criteria for the issuance of development permits, such as the one applied for in this instance. As it relates to this case, the comprehensive plan is known as the Monroe County Coastal Zone Protection and Conservation Element.
Prior to its clearing, the subject property was a high quality, mature tropical hardwood hammock with a closed canopy approximately thirty feet in height, and represented a unique genealogy not found elsewhere in North America outside of the Everglades. There were also several "protected" or "threatened" tree species on the site such as the paradise tree, red berry stopper and thatched palm, and approximately five active Key Largo woodrat nests. The clearing that has taken place has substantially destroyed the tropical hardwood canopy and removed most of the top soil from the area. One strip of hammock remains at the border of the property as well as several tree clumps, but the strip and clumps are too small and narrow to serve as a habitat. Therefore, the area's use as a habitat for woodrats has been destroyed and their nests can no longer be found on site. Trees such as the torchwood which were previously found on the site and which serve as host plants for endangered or threatened species, such as the Schaus swallowtail butterfly, have also been destroyed. This finding is based on the testimony of Mark Robertson, Dr. Art Weiner who was accepted as an expert in biology and Florida Keys ecology, and Numi Goodyear, an expert in zoology and Keys mammalian.
The subject property was not selectively cleared, but rather was indiscriminately cleared. This has had a scouring effect on the soil. The evidence does not establish that fill material has been deposited on site.
A survey of trees and vegetation on the subject property was submitted by the applicants, but this was not a complete or adequate survey of vegetation on the site.
The applicants had no adequate protective plan for the endangered or threatened species, such as the woodrat, and trees on the subject property.
Although it was established through the testimony of Melvin R. "Chick" Harbert, who was recognized as an expert in golf facility components, that a golf practice area is an integral part of Professional Golfer's Association approved courses, and that such areas allow golfers to warm up, practice and receive golfing lessons, it has not been established by competent substantial evidence that driving ranges, such as the one applied for in this case, are customarily associated with golf courses such as the ones in Ocean Reef. There is no evidence that professional golf tournaments have, or will be, held at these courses, or that the owners of the courses intend to seek P.G.A. sanctioning of a tournament at their facility. Additionally, Harbert admitted that not every golf course requires a driving range. Finally, Harbert's involvement with the Ocean Reef Development as a professional golf instructor diminishes his credibility as a witness.
Even if it had been found that driving ranges are customarily associated with golf courses such as the ones in this case, the testimony of Charles C. Gardner, a partner in Driscoll Properties, and Charles Pattison, Director of Planning, Building and Zoning for Monroe County, establishes that a golf driving range was not shown or located on the subject property on the Master Development Plan Map for the Ocean Reef Development filed with the County in June, 1977. Further, other than the permit from which the appeal in this case was taken, there are no records, maps, authorizations or permits on file with the County which allow or indicate a driving range on the subject property. Therefore, the applicants had no interest in the development of a driving range at this location prior to its designation as an Area of Critical State Concern. To the contrary, Gardner specifically testified that the desire to locate a driving range on the subject property did not arise until 1982 or 1983.
Although Permit No. C-14914 was transmitted to Petitioner's Keys Office on May 14, 1984, Monroe County Resolution No. 091-1984 and the development order authorizing issuance of the permit for land clearing were not transmitted to Petitioner until June 21, 1984. On August 3, 1984, Petitioner filed its appeal with the Land and Water Adjudicatory Commission of Resolution No. 091-1984.
Bob Dennis, Petitioner's environmental specialist, attended the March 23, 1984 meeting of the Monroe County Board of County Commissioners when Resolution 091-1984 was adopted. He did not participate in the meeting, but simply observed the meeting as part of his normal job duties.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and parties in this case. Section 120.57(1), Florida Statutes. The Petitioner is the state land planning agency authorized to appeal local government development orders in any area of critical state concern to the Land and Water Adjudicatory Commission. Section 380.07, Florida Statutes. As the state land planning agency, the Petitioner also has jurisdiction to enforce and administer the provisions of Chapter 380, Florida Statutes, and rules adopted thereunder. The Respondents Harbor Course Club, Inc. and Driscoll Properties have the burden of proof in this de novo proceeding since they are seeking a permit to clear land in Monroe County, or in the alternative are seeking an exemption from such permitting requirements. Sections 380.07 and 120.57(1),
Florida Statutes; Transgulf Pipeline v. Board of County Commissioners of Gadsden County, 438 So.2d 876 (Fla. 1st DCA 1983); Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981).
The property involved in this case, which is the subject of the application for a permit to develop a golf driving range, is located in that portion of Monroe County designated as an Area of Critical State Concern. Section 380.0552, Florida Statutes. As such it is subject to Chapters 27F-8 and 27F-9, Florida Administrative Code, as well as the comprehensive plan developed by Monroe County pursuant to Chapter 163, Florida Statutes. Sections 163.3161(5) and 163.3194(1), Florida Statutes, provide that Monroe County may not permit development except in conformity with such plan. The comprehensive plan is also required by Section 380.05(4), Florida Statutes, to be in conformity with Chapter 27F-8, Florida Administrative Code. The applicant must prove that its permit application conforms to the above-cited provisions if it is to be granted, unless the applicant's right to develop this driving range vested prior to the County's designation as an Area of Critical State Concern, and it is therefore exempt from such permitting requirements.
Respondents Harbor Course and Driscoll Properties base their contention that vesting occurred on the following provisions:
380.05 Areas of Critical State Concern.
(18) Neither the designation of an area of critical state concern nor the adoption of any regulations for such an area shall in any way limit or modify the rights of any person to complete any development that has been autho- rized by registration of a subdivision . . ., by recordation pursuant to local subdivision plat law, or by a building permit or other authorization to commence development on which there has been reliance and a change of posi- tion. . . . If a developer has by his actions in reliance on prior regulations obtained vested or other legal rights that in law would have prevented a local government from chang- ing those regulations in a way adverse to his interests, nothing in this chapter authorizes any governmental agency to abridge those rights. (Emphasis supplied)
Section 380.04 Definition of development.
(4) "Development," as designated in an ordinance, rule, or development permit includes all other development customarily associated with it unless otherwise specified. . . . (Emphasis supplied)
The law in Florida is clear that vested rights may be established if a developer has (1) substantially changed his position, (2) in good faith reliance
(3) upon some act or omission of government, which would make it highly inequitable to interfere with the acquired right. Dade County v. United Resources, 374 So.2d 1046 at 1050 (Fla. 3rd DCA 1979). It is also clear that the documentation of vested rights or governmental authorization must be clear,
complete and specific, and that one agency's actions cannot form the basis of a claim of vested rights against another agency. State v. Oyster Bay Estates, Inc., 384 So.2d 891 (Fla. 1st DCA 1980); City of Miami Beach v. 8701 Collins Avenue, 77 So.2d 428 (Fla. 1955).
While the evidence does establish that Respondents filed their Master Development Plan Map for the Ocean Reef Development with Monroe County in June, 1977, the evidence is also clear that the plan did not specifically include the driving range here in issue. In fact, the idea of a driving range on this subject property did not arise until 1982 or 1983. Therefore, Respondents could not, and did not, establish that they in any way relied on the filing of this Master Development Plan Map in 1977 to establish their vested right to develop a driving range on this subject property.
In the alternative, Respondents argue that a driving range is "customarily associated" with the kind of development depicted on its plan, and therefore while not specifically shown, it was nevertheless impliedly included in its plan. This contention, however, has not been supported by competent substantial evidence and has been found to be without merit. In addition, to interpret Section 380.04(4), supra, to include all activities of any kind that are found in similar kinds of projects, whether or not such activities are specifically delineated, reviewed and authorized, would allow activities that had not been specifically planned and reviewed at the time Area of Critical State Concern regulations were enacted, to avoid any review and approval required by Chapter 380. In this case it would allow Respondents to claim that approval of the Ocean Reef Club Master Development Plan Map in 1977 included authorization to develop a variety of activities not included on the plan map, and not even thought of by Respondents until 1982 or 1983. Distinguish Compass Lake Hills Development Corp. v. State, 379 So.2d 376 (Fla. 1st DCA 1980). Therefore, Respondents have not established that they had a vested right to develop a driving range on this subject property which preceded the location's designation as an Area of Critical State Concern.
We now turn to the question of whether Respondents have established that their permit application complied with Chapter 380, Florida Statutes, and with the comprehensive plan and land development regulations for the Florida Keys Area of Critical State Concern. Based upon the evidence presented it is concluded that Respondents have not met their burden of proof on this issue.
The clearing of the subject property for a golf driving range, which has already taken place, has resulted in the total elimination of topsoil and the hardwood hammock. Tree species listed as threatened or endangered have been destroyed, and the former hammock area has ceased to function as a home for woodrats. A plan for relocation of trees and wildlife species has not been followed.
Respondents' actions have failed to comply with Rule 27F-9.08, Florida Administrative Code, which adopts Chapter 18 of the Monroe County Code dealing with tropical hardwood hammock protection, and have also failed to comply with Rule 27F-9.03, Florida Administrative Code, which adopts and incorporates Monroe County's Coastal Zone Conservation and Protection Element of the Monroe County Comprehensive Plan. Their indiscriminate clearing is incompatible with the tropical hardwood hammock and wildlife habitat that were present on the site.
Finally, Respondents' argument that Petitioner is estopped, or otherwise equitably barred from preventing completion of this project, is without merit based upon the facts of this case. Respondents urge that Petitioner be barred or estopped because its employee, Bob Dennis, was present at the Monroe County Board of County Commissioners meeting on March 23, 1984 when Resolution 091-1984 was adopted. However, it has not been established that
Dennis' attendance was for anything other than to observe the meeting, or that he in any way waived, or had the authority to waive official transmittal of this Resolution from the County to Petitioner. Transmittal did not occur until June 21, 1984, and this appeal was timely filed on August 3, 1984. Receipt of a copy of Permit No. C-14914 in Petitioner's Keys Office on May 14, 1984 does not constitute transmittal of the development order authorizing the issuance of this permit, and Section 380.07(2), as construed in Fox v. South Florida Regional Planning Council, 327 So.2d 56 (Fla. 1st DCA 1976), allows forty-five days from transmittal of the development order for appeal to the Land and Water Adjudicatory Commission. Respondents have totally failed to establish any basis upon which Petitioner should be barred or equitably estopped from maintaining this action. State Department of Revenue v. Anderson, 403 So.2d 397 (Fla.
1981).
Based upon the foregoing, it is recommended that a Final Order be issued denying Respondents Harbor Course Club, Inc. and Driscoll Properties' application for a land clearing permit. Since the clearing has already taken place, there are no changes in the development proposal that would make it eligible for a permit, and it is therefore also recommended that further development permits for the site in question comply with final action to be taken in Case No. 84-3805VR.
DONE and ENTERED this 26th day of February, 1986, at Tallahassee Florida.
DONALD D. CONN
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 1986.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 84-2868VR
Rulings on Petitioner's Proposed Findings of Facts:
Adopted in Findings of Fact 1 and 2.
Adopted in Finding of Fact 18.
Adopted in Findings of Fact 2 and 23.
Adopted in part in Finding of Fact 1, but otherwise rejected as irrelevant and unnecessary.
Adopted in part in Finding of Fact 19, but otherwise rejected as irrelevant and unnecessary.
6-12. Adopted in part in Finding of Fact 27, but otherwise rejected as irrelevant and unnecessary.
Rejected as irrelevant and unnecessary.
Adopted in part in Findings of Fact 26 and 27 but otherwise rejected as irrelevant and unnecessary.
Adopted in part in Finding of Fact 22, but otherwise rejected as not based on competent, substantial evidence.
Adopted in Findings of Fact 16, 17 and 22.
Rejected as irrelevant.
Rejected as cumulative and unnecessary.
19-20. Adopted in part in Finding of Fact 22, but otherwise rejected as irrelevant and unnecessary.
Rejected as irrelevant and unnecessary.
Adopted in Finding of Fact 3.
Adopted in Finding of Fact 4.
Adopted in part in Finding of Fact 5, but otherwise rejected as irrelevant.
Adopted in Finding of Fact 6.
Adopted in Finding of Fact 29.
Rejected since this is actually a conclusion of law. 28-30. Rejected as irrelevant and unnecessary.
Adopted in Finding of Fact 28.
Rejected since in part this is a conclusion of lawn and is otherwise irrelevant and unnecessary.
Rejected as irrelevant and unnecessary.
Adopted in Finding of Fact 8.
Adopted in Finding of Fact 9, but otherwise rejected as irrelevant and unnecessary.
Adopted in part in Finding of Fact 28, but otherwise rejected as irrelevant and unnecessary.
Adopted in Finding of Fact 10.
Rejected as irrelevant and unnecessary.
Adopted in Findings of Fact 11-13.
Adopted in Findings of Fact 22, 23.
Adopted in part in Finding of Fact 22, but otherwise rejected as irrelevant and unnecessary.
42-45. Rejected as irrelevant and unnecessary.
Rulings on Respondents Driscoll Properties, Walter Driscoll and Harbor Course Club, Inc., Proposed Findings of Fact which have been adopted by Respondent Monroe County:
1. Adopted in Finding of Fact 1.
2-3. Adopted in part in Finding of Fact 27, but otherwise rejected as not based on competent, substantial evidence.
Rejected as not based on competent, substantial evidence, and otherwise irrelevant and unnecessary.
Rejected in Finding of Fact 27.
Adopted in Finding of Fact 26.
Rejected in Finding of Fact 26.
Adopted in Finding of Fact 20.
Rejected as not based on competent, substantial evidence, and otherwise irrelevant and unnecessary.
Adopted in Finding of Fact 2.
11-13. Adopted in part and rejected in part in Finding of Fact 24.
Rejected in Finding of Fact 25.
Rejected as irrelevant and unnecessary.
Adopted in Finding of Fact 3.
Adopted in Finding of Fact 4.
Adopted in Findings of Fact 5, 6.
Rejected in Findings of Fact 22-25.
Adopted in Findings of Fact 8, 28.
Adopted in Finding of Fact 11.
Adopted in part in Finding of Fact 18 but otherwise rejected in Finding of Fact 23.
23-24. Adopted in Findings of Fact 15, 29.
25. Rejected as irrelevant.
26-27. Adopted in Finding of Fact 28.
28-29. Rejected as not based on competent, substantial evidence and otherwise irrelevant.
30-33. Rejected as not a proper proposed Finding of Fact since this is simply Respondents' summary of rulings and testimony at final hearing. The testimony of Mark Robertson and the deposition of Sandra Hersh has been accepted and considered to the extent they reflect the personal observations, experiences and records of said witnesses.
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 George Firestone Secretary of State
The Capitol
Tallahassee, Florida 32301
Honorable Gerald Lewis Comptroller
The Capitol
Tallahassee, Florida 32301
Honorable Ralph Turlington Commissioner of Education The Capitol
Tallahassee, Florida 32301
Honorable Doyle Conner Commissioner of Agriculture The Capitol
Tallahassee, Florida 32301
Glenn W. Robertson, Secretary
Land and Water Adjudicatory Commission Office of the Governor
Room 415 Carlton Building Tallahassee, Florida 32301
Susan Vernon, Esquire
310 Fleming Street
Key West, Florida 33040
Larry A. Stumpf, Esquire Suite 1000
777 Brickell Avenue
Miami, Florida 33131
Sarah E. Nall, Esquire
C. Laurence Keesey, Esquire Ross Burnaman, Esquire Department of Community Affairs
2571 Executive Center Circle, East Tallahassee, Florida 32301
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF COMMUNITY AFFAIRS, )
)
Petitioners, )
)
vs. ) CASE NO. 84-2868VR
) 84-3805VR
MONROE COUNTY BOARD OF COUNTY )
COMMISSIONERS, HARBOR COURSE ) CLUB, INC., and WALTER DRISCOLL ) and DRISCOLL PROPERTIES, a )
Florida General Partnership, )
)
Respondents. )
)
RECOMMENDED ORDER
At the request of the parties, this case was consolidated for hearing with Case No. 84-2865 and was heard on November 25, 1985 in Key Largo Florida before Donald D. Conn a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented by:
Petitioner: Sarah E. Nall Esquire
C. Laurence Keesey, Esquire Ross Burnaman, Esquire Department of Community Affairs
2571 Executive Center Circle, East Tallahassee, Florida 32301
Respondents: Larry A. Stumpf, Esquire
777 Brickell Avenue, Suite 1000
Miami Florida 33131
(Harbor Course Clubs, Inc., a Driscoll Properties and Walter Driscoll)
Susan Vernon, Esquire Assistant County Attorney
310 Fleming Street
Key West, Florida 33040
(Monroe County Board of County Commissioners)
Separate Recommended Orders are being issued in these related cases since final agency will be taken by the Land and Water Adjudicatory Commission in Case No. 84-2868VR and by the Department of Community Affairs in this case. In order to explain the interrelationship of these two cases, a statement of the background and issues involved in each follows.
BACKGROUND INFORMATION
The case which is related to this one (Case No. 54-2565) is an appeal to the Florida Land and Water Adjudicatory Commission, initiated by notice of appeal and petition of the Department of Community Affairs dated August 3, 1954, from a development order issued by the Monroe County Board of County Commissioners on March 23, 1954 and received by the Department on June 21, 1954. The development order appealed is designated as Resolution Number 091-1964 of the Monroe County Board of County Commissioners.
This case (Case No. 54-3505) is an enforcement action initiated by the Department of Community Affairs through a Notice of Violation and Order for Cessation and Corrective Action dated October 1, 1954 in response to which Respondents requested a formal administrative hearing.
The record established at the hearing applies to both cases. The parties introduced forty-one (41) joint exhibits and an additional twenty-four (24) exhibits were received from Petitioner and twenty-five (25) from Respondents. One exhibit offered by Petitioner and numbered P-1O was rejected. Petitioner called four (4) witnesses to testify, and Respondent called three (3). A transcript of the hearing was filed on January 9, 1956, and by agreement of the parties, proposed findings of facto conclusions of law and memoranda were due thirty (30) days thereafter. A ruling on each timely filed proposed finding of fact is included in the Appendix to this Recommended Order.
ISSUES
Do Driscoll Properties and/or Harbor Course Club, Inc., Respondents, have vested rights to complete the project at issue, a golf driving range? (Case Nos. 54-2565 and 54-3505)
If Respondents do not have vested rights, did the application to clear land for the golf driving range comply with the provisions of Chapter 380, Florida Statutes, and in particular with the comprehensive plan and land development regulations for the Florida Keys Area of Critical State Concern? (Case No. 84-2868VR)
Is the Department of Community Affairs estopped, or otherwise equitably barred- from preventing the completion of this project? (Case Nos. 84-2868VR and 84-3805VR)
Did Driscoll Properties or Harbor Course Club, Inc., violate the provisions of Chapter 380, Florida Statutes? (Case No. 84-3505)
Did Monroe County violate Chapter 380, Florida Statutes, by issuing a land clearing permit prior to transmitting the Monroe County Board of County Commissioners Resolution 091- 1984 to the Department of Community Affairs the South Florida Regional Planning Council and the Developer? (Case No. 84-3805VR)
If there is a violation of Chapter 380, Florida Statutes, what is the proper remedy? (Case No. 84-3805VR)
FINDINGS OF FACT
The parties stipulated to the following findings of fact which are incorporated herein:
The owner of record of the subject property is Driscoll Properties, a Florida general partnership, 522 Gables International Plaza 2655 LeJeune Roads Coral Gables Florida 33134, and the property is located in Section 5, Township
59 South, Range 41 East, North Key Largo Monroe County, Florida within a subdivision known as Harbor Course South Section One.
Driscoll Properties, and Harbor Course Club Inc. submitted to Monroe County an Application for Land Clearing, Permit No. C-14919, for the subject property in order to build a golf driving range. The application was dated March 18, 1983, and received by the County on or about March 24, 1983.
Monroe County Application for Land Clearing, Permit No. C-14919 was denied by William Russell, Assistant Director, Monroe County Planning Building and Zoning on May 20, 1983.
The denial of Permit Application for Land Clearing No. C-14919 was appealed by Harbor Course Club Inc., to the Monroe County Board of Adjustment. The Board of Adjustment denied the appeal on December 14, 1983, by Resolution (of) Administrative Appeal 8-83.
The Monroe County Board of Adjustment Resolution No. 8-83, denying the Application of Land Clearing, Permit No. C- 14919, was appealed by Harbor Course Club Inc., to the Monroe County Board of County Commissioners.
The Monroe County Board of County Commissioners reversed the decision of the Monroe County Board of Adjustment by adopting Resolution No. 091-1984 on March 23, 1984.
The Monroe County Zoning Department was responsible for issuing and rendering Monroe County Board of County Commissioners Resolution 091-1984.
On April 25, 1984, Harbor Course Club Inc., or a person acting on its behalf applied to and obtained from Monroe County Building and Zoning Department ministerial land clearing permit No. C-14919, which was authorized by Resolution 091-1984.
Harbor Course Club, Inc., or an authorized agent, employee or representative, received a letter dated June 12, 1984, enclosing Resolution No. 091-1984 and the minutes from the hearing described in No. 6 above.
Harbor Course Club Inc., or an authorized agent, employee or representative arranged for clearing of the subject property.
Land clearing activity on the subject property began on April 30, 1984.
Land clearing activity on the subject property was conducted on May 2, 3, 7, 8 and 10, 1984.
Land clearing on the subject property was continued on July 19, 20 and 24, 1984, and completed on August 2, 1984.
At the times in question, the Petitioners maintained an office in Monroe County.
At the times in question, Bob Dennis was an environmental specialist in the Petitioners' Monroe County office.
The Key Largo woodrat is listed as an endangered species by the U.S. Fish and Wildlife Service pursuant to 50 Code of Federal Regulations Part 17, Section 17.11(h).
The Key Largo woodrat is listed as an endangered species by the Florida Game and Freshwater Fish Commission pursuant to Rule 39-27.03(27).
The following findings of fact are made based on the evidence submitted at the hearing after considering the demeanor and credibility of the witnesses who testified:
The subject property consists of approximately 3.6 acres. Harbor Course Club Inc., seeks to have the subject property developed into a golf driving range for the use of its members.
Harbor Course Club Inc. is a private membership golf club located within the Ocean Reef Development on North Key Largo. Ocean Reef is a residential development with three eighteen hole golf courses consisting of approximately 4000 acres, half of which is developed and half of which has been dedicated to wilderness.
The subject property as well as the entire Ocean Reef Development is part of an Area of Critical State Concern previously designated on July 1, 1979 under Section 380.0552, Florida Statutes, and subject to Chapters 27F-5 and 27F- 9, Florida Administrative Code.
Monroe County has developed a comprehensive plan pursuant to Chapter 163, Florida Statutes, which provides for certain standards and criteria for the issuance of development permits, such as the one applied for in this instance. As it relates to this case, the comprehensive plan is known as the Monroe County Coastal Zone Protection and Conservation Element.
Prior to its clearing, the subject property was a high quality, mature tropical hardwood hammock with a closed canopy approximately thirty feet in height, and represented a unique genealogy not found elsewhere in North America
outside of the Everglades. There were also several "protected" or "threatened" tree species on the site such as the paradise tree, red berry stopper and thatched palms and approximately five active Key Largo Woodrat nests. The clearing that has taken place has substantially destroyed the tropical hardwood canopy and removed most of the top soil from the area. One strip of hammock remains at the border of the property as well as several tree clumps but the strip and clumps are too small and narrow to serve as a habitat. Therefore, the area's use as a habitat for woodrats has been destroyed and their nests can no longer be found on site. Trees such as the torchwood which were previously found on the site and which serve as host plants for endangered or threatened species, such as the Schaus swallowtail butterfly, have also been destroyed.
This finding is based on the testimony of Mark Robertson, Dr. Art Weiner who was accepted as an expert in biology and Florida Keys ecology, and Numi Goodyear an expert in zoology and Keys mammilian.
The subject property was not selectively cleared, but rather was indiscriminately cleared. This has had a scouring effect on the soil. The evidence does not establish that fill material has been deposited on site.
A survey of trees and vegetation on the subject property was submitted by the applicants, but this was not a complete or adequate survey of vegetation on the site.
The applicants had no adequate protective plan for the endangered or threatened species, such as the woodrat, and trees on the subject property.
Although it was established through the testimony of Melvin R. "Chick" Harbert, who was recognized as an expert in golf facility components, that a golf practice area is an integral part of Professional Golfer's Association approved courses, and that such areas allow golfers to warm up, practice and receive golfing lessons, it has not been established by competent substantial evidence that driving ranges, such as the one applied for in this case, are customarily associated with golf courses such as the ones in Ocean Reef. There is no evidence that professional golf tournaments have or will bed held at these courses, or that the owners of the courses intend to seek P.G.A. sanctioning of a tournament at their facility. Additionally, Harbert admitted that not every golf course requires a driving range. Finally, Harbert's involvement with the Ocean Reef Development as a professional golf instructor diminishes his credibility as a witness.
Even if it had been found that driving ranges are customarily associated with golf courses such as the ones in this case, the testimony of Charles C. Gardner, a partner in Driscoll Properties, and Charles Pattison Director of Planning, Building and Zoning for Monroe County, establishes that a golf driving range was not shown or located on the subject property on the Master Development Plan Map for the Ocean Reef Development filed with the County in June, 1977. Furthers other than the permit from which the appeal in Case Number 84-2868VR was taken, there are no records, maps, authorizations, or permits on file with the County which allow or indicate a driving range on the subject property. Therefore, the applicants had no interest in the development of a driving range at this location prior to its designation as an Area of Critical State Concern. To the contrary, Gardner specifically testified that the desire to locate a driving range on the subject property did not arise until 1982 or 1983.
Although Permit No. C-14914 was transmitted to Petitioner's Keys Office on May 14, 1984, Monroe County Resolution No. 091-1984 and the
development order authorizing issuance of the permit for land clearing were not transmitted to Petitioner until June 21, 1984. On August 3, 1984 Petitioner filed its appeal with the Land and Water Adjudicatory Commission of Resolution No. 091-1984.
Bob Dennis, Petitioner's environmental specialist, attended the March 23, 1984 meeting of the Monroe County Board of County Commissioners when Resolution 091-1984 was adopted. He did not participate in the meeting, but simply observed the meeting as part of his normal job duties.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and parties in this case. Section 120.57(1), Florida Statutes. The Petitioner is the state land planning agency authorized to appeal local government development orders in any area of critical state concern to the Land and Water Adjudicatory Commission. Section 380.07, Florida Statutes. As the state land planning agency, the Petitioner also has jurisdiction to enforce and administer the provisions of Chapter 380, Florida Statutes, and rules adopted thereunder. Petitioner has the burden of proof in this enforcement action. Section 380.11, Florida Statutes.
The property involved in this case, which is the subject of the application for a permit to develop a golf driving range, is located in that portion of Monroe County designated as an Area of Critical State Concern. Section 380.0552, Florida Statutes. As such it is subject to Chapters 27F-8 and 27F-9, Florida Administrative Coded as well as the comprehensive plan developed by Monroe County pursuant to Chapter 163, Florida Statutes. Sections 163.3161(5) and 163.3194(1), Florida Statutes, provide that Monroe County may not permit development except in conformity with such plan. The comprehensive plan is also required by Section 380.05(4), Florida Statutes, to be in conformity with Chapter 27F-8, Florida Administrative Code.
Respondents Harbor Course and Driscoll Properties contend initially that they are not subject to Petitioner's enforcement authority due to vested rights they have to the property in question. They base this contention on the following provisions:
380.05 Areas of Critical State Concern.--
* * *
(18) Neither the designation of an area of critical state concern nor the adoption of any regulations for such an area shall in any way limit or modify the rights of any person to complete any development that has been authorized by registration of a subdivision . . ., by recordation
pursuant to local subdivision plat lawn or by a building permit or other authorization to commence development on which there has been reliance and a change
of position . . . . If a developer has by his actions in reliance on prior
regulations obtained vested or other legal rights that in law would have prevented a local government from changing those regulations in a way adverse to his
interests, nothing in this chapter authorizes any governmental agency to abridge those rights. (Emphasis supplied)
Section 350.04 Definition of development.-
(4) "Development," as designated in an ordinance, rule, or development permit includes all other development customarily associated with it unless otherwise specified. . . . (Emphasis supplied)
The law in Florida is clear that vested rights may be established if a developer has (1) substantially changed his position, (2) in good faith reliance
upon some act or omission of government, which would make it highly inequitable to interfere with the acquired right. Dade County v. United Resources, 374 So.2d 1046 at 1050 (Fla. 3rd DCA 1979). It is also clear that the documentation of vested rights or governmental authorization must be clears complete and specific, and that one agency's actions cannot form the basis of a claim of vested rights against another agency. State v. Oyster Bay Estates, Inc., 384 So.2d 891 (Fla. 1st DCA 1980), City of Miami Beach v. 8701 Collins Avenue, 77 So.2d 428 (Fla. 1955).
While the evidence does establish that Respondents filed their Master Development Plan Map for the Ocean Reef Development with Monroe County in June, 1977, the evidence is also clear that the plan did not specifically include the driving range here in issue. In fact, the idea of a driving range on this subject property did not arise until 1982 or 1983. Therefore, Respondents could not, and did not, establish that they in any way relied on the filing of this Master Development Plan Map in 1977 to establish their vested right to develop a driving range on this subject property.
In the alternative Respondents argue that a driving range is "customarily associated" with the kind of development depicted on its plan, and therefore while not specifically shown, it was nevertheless impliedly included in its plan. This contention, however, has not been supported by competent substantial evidenced and has been found to be without merit. In additions to interpret Section 380.04(4), supra, to include all activities of any kind that are found in similar kinds of projects, whether or not such activities are specifically delineated reviewed and authorized, would allow activities that had not been specifically planned and reviewed at the time Area of Critical State Concern regulations were enacted to avoid any review and approval required by Chapter 380. In this case it would allow Respondents to claim that approval of the Ocean Reef Club Master Development Plan Map in 1977 included authorization to develop a variety of activities not included on the plan map, and not even thought of by Respondents until 1982 or 1983. Distinguish Compass Lake Hills Development Corp. v. State, 379 So.2d 376 (Fla. 1st DCA 1980). Therefore, Respondents have not established that they had a vested right to develop a driving range on this subject property which preceded the location's designation as an Area of Critical State Concern.
Next, Respondents' argument that Petitioner is estopped, or otherwise equitably barred from preventing completion of this project is without merit, based upon the facts of this case. Respondents urge that Petitioner be barred or estopped because its employee, Bob Dennis, was present at the Monroe County Board of County Commissioners meeting on March 23, 1954 when Resolution 091-1984 was adopted. However, it has not been established that Dennis' attendance was for anything other than to observe the meeting, or that he in any way waived, or
had the authority to waive, official transmittal of this Resolution from the County to Petitioner. Transmittal did not occur until June 21, 1984, and this appeal was timely filed on August 3, 1954. Receipt of a copy of Permit No. C- 14914 in Petitioner's Keys Office on May 14, 1984 does not constitute transmittal of the development order authorizing the issuance of this permit, and Section 380.07(2), as construed in Fox v. South Florida Regional Planning Council, 327 So.2d 56 (Fla. 1st DCA 1976), allows forty-five days from transmittal of the development order for appeal to the Land and Water Adjudicatory Commission. Respondents have totally failed to establish any basis upon which Petitioner should be barred or equitably estopped from maintaining this action. State Department of Revenue v. Anderson, 403 So.2d 397 (Fla.
1981); O.P. Corporation v. Lewis, 373 So.2d 929 (Fla. 1979).
Based upon the facts of this case, it is concluded that Monroe County has violated Chapter 380, Florida Statutes, by issuing a land clearing permit prior to transmitting Resolution 091-1984 to Petitioner. Section 350.07(2), Statutes, specifically requires Monroe County to transmit or render a copy of any development order issued in the Florida Keys Area of Critical State Concern to Petitioner, the developer of the affected property and the South Florida Regional Planning Council. These parties then have 45 days which to appeal the development order to the Land and Water Adjudicatory Commission.
Section 380.031(3), Florida Statutes, defines "development order" to mean:
any order granting, denying, or granting with conditions an application for development permit.
The order granting Respondents' application for a land or "development permit" was approved by the Monroe County Board of Commissioners at their meeting on March 23, 1984, identified as Resolution 091-1984. Resolution 091-1984 reduced to writing, transmitted, and thus rendered to the Petitioner until June 21, 1984. Thus, Petitioner's 45-day appeal period did not expire until August 6, 1984.
The issuance of any ministerial development permit the County based on the authorization provided by Resolution 091-1984 prior to expiration of the 45- day appeal period frustrates and clearly violates the remaining provisions of Section 380.07, Florida Statutes. Those provisions authorize Chapter 120, Florida Statutes, hearing to determine whether proposed activity complies with the Area of Critical State Concern regulations, and authorize the Land and Water Adjudicatory Commission to issue the final decision on the application.
Respondent Monroe County Building, Planning and the Department, issued land clearing permit No. C-14919 base on the authorization provided by Resolution 091-1984 on April (date unreadable), 1984, some two months prior to rendition of the Resolution two and one-half months prior to expiration of the 45-day appeal period. This action improperly circumvents and violates the provisions of Section 350.07, Florida Statutes. In addition, Permit No. C-14919 purports to authorize a use which is contrary to the land development regulations for the Florida Keys Area of Critical State Concern set forth in Rule 27F-9, Florida Administrative Code. (See Recommended Order in DOAH Case No. 54-2868VR). Thus, it is illegal ab initio and should be revoked. Abenkay Realty Corp. v. Dade County, 185 So.2d 777, (Fla. 3rd DCA 1966).
Respondents Harbor Course Club Inc., Walter Driscoll and Driscoll Properties have violated the provisions of Chapter 380, Florida Statutes, by applying for a development permit and commencing development activity prior to rendition of Resolution 091-1954 and prior to completion of the hearing process provided for in Section 380.07. Clearing has already taken place and has been indiscriminate, and has further been violative of land development regulations of the Florida Keys Area of Critical State Concern set forth in Rule 27F-9, Florida Administrative Code, and Section 380.0552, Florida Statutes.
Respondents actions were undertaken at their own risk and subject to replacement or restoration under Section 380.11(2)(c)2, Florida Statutes.
RECOMMENDATION
Based upon the foregoing it is recommended that Petitioner issue a Final Order directing Respondent Monroe County to revoke ab initio Permit No. C- 14919, and directing Respondents Harbor Course Club, Inc., Walter Driscoll and Driscoll Properties to restore the subject site as follows, within a reasonable period of time:
Restore elevation and soil conditions to that which existed prior to the indiscriminate clearing using only "clean" soil uncontaminated by seed of exotic plant species,
Revegetate the disturbed site with species that existed prior to the clearing,
Maintain the area to avoid colonization of exotic vegetation, and
Avoid disturbing adjacent areas while undertaking the above restoration activities.
DONE and ENTERED this 26th day of February, 1986, at Tallahassee Florida.
DONALD D. CONN
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 1986.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 84-3805VR
Rulings on Petitioner's Proposed Findings of Facts:
Adopted in Findings of Fact 1 and 2.
Adopted in Finding of Fact 18.
Adopted in Findings of Fact 2 and 23.
Adopted in part in Finding of Fact 1, but otherwise
rejected as irrelevant and unnecessary.
Adopted in part in Finding of Fact 19, but otherwise rejected as irrelevant and unnecessary.
6-12 Adopted in part in Finding of Fact 27, but otherwise rejected as irrelevant and unnecessary.
Rejected as irrelevant and unnecessary.
Adopted in part in Findings of Fact 26 and 27, but otherwise rejected as irrelevant and unnecessary.
Adopted in part in Finding of Fact 22, but otherwise rejected as not based on competent, substantial evidence.
Adopted in Findings of Fact 16, 17 and 22.
Rejected as irrelevant.
Rejected as cumulative and unnecessary.
19-20 Adopted in part in Finding of Fact 22, but otherwise rejected as irrelevant and unnecessary.
Rejected as irrelevant and unnecessary.
Adopted in Finding of Fact 3.
Adopted in Finding of Fact 4.
Adopted in part in Finding of Fact 5, but otherwise rejected as irrelevant.
Adopted in Finding of Fact 6.
Adopted in Finding of Fact 29.
Rejected since this is actually a conclusion of law. 25-30 Rejected as irrelevant and unnecessary.
Adopted in Finding of Fact 28.
Rejected since in part this is a conclusion of law, and is otherwise irrelevant and unnecessary.
Rejected as irrelevant and unnecessary.
Adopted in Finding of Fact 8.
Adopted in Finding of Fact 9, but otherwise rejected as irrelevant and unnecessary.
Adopted in part in Finding of Fact 28, but otherwise rejected as irrelevant and unnecessary.
Adopted in Finding of Fact 10.
Rejected as irrelevant and unnecessary.
Adopted in Findings of Fact 11-13.
Adopted in Findings of Fact 22, 23.
Adopted in part in Finding of Fact 22, but otherwise rejected as irrelevant and unnecessary.
42-45 Rejected as irrelevant and unnecessary.
Rulings on Respondents Driscoll Properties, Walter Driscoll and Harbor Course Club, Inc., Proposed Findings of Fact which have been adopted by Respondent Monroe County:
1 Adopted in Finding of Fact 1.
2-3 Adopted in part in Finding of Fact 27, but otherwise rejected as not based on competent, substantial evidence.
Rejected as not based on competent, substantial evidence, and otherwise irrelevant and unnecessary.
Rejected in Finding of Fact 27.
Adopted in Finding of Fact 26.
Rejected in Finding of Fact 26.
Adopted in Finding of Fact 20.
Rejected as not based on competent, substantial
evidenced and otherwise irrelevant and unnecessary.
Adopted in Finding of Fact 2.
11-13 Adopted in part and rejected in part in Finding of Fact 24.
Rejected in Finding of Fact 25.
Rejected as irrelevant and unnecessary.
Adopted in Finding of Fact 3.
Adopted in Finding of Fact 4.
Adopted in Findings of Fact 5, 6.
Rejected in Findings of Fact 22-25.
Adopted in Findings of Fact 8,28.
Adopted in Finding of Fact 11.
Adopted in part in Finding of Fact 18 but otherwise rejected in Finding of Fact 23.
23-24 Adopted in Findings of Fact 15, 29.
25 Rejected as irrelevant.
26-27 Adopted in Finding of Fact 28.
28-29 Rejected as not based on competent, substantial evidence and otherwise irrelevant.
30-33 Rejected as not a proper proposed Finding of Fact since this is simply Respondents' summary of rulings and testimony at final hearing. The testimony of Mark Robertson and the deposition of Sandra Hersh has been accepted and considered to the extent they reflect the personal observations, experiences and records of said witnesses.
COPIES FURNISHED:
Tom Lewis, Secretary
Department of Community Affairs 2571 Executive Centers East Tallahassee Florida 33802
Sarah E. Nail, Esquire
C. Laurence Keesey Esquire Ross Burnaman, Esquire
Department of Community Affairs 2571 Executive Center Circle, East Tallahassee, Florida 32301
Susan Vernon, Esquire
310 Fleming Street
Key West, Florida 33040
Larry A. Stumpf, Esquire Suite 1000
777 Brickell Avenue
Miami, Florida 33131
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
LAND AND WATER ADJUDICATORY COMMISSION
DEPARTMENT OF COMMUNITY AFFAIRS,
Petitioner,
DOAH No. 84-2868VR
MONROE COUNTY BOARD OF COUNTY COMMISSIONERS, HARBOR COURSE CLUB, INC., AND DRISCOLL
PROPERTIES, a Florida General Partnership,
Respondents.
/
FINAL ORDER
This matter came before the Governor and Cabinet of the State of Florida, sitting as the Florida Land and Water Adjudicatory Commission pursuant to Section 120.57(1) and 380.07(2), Florida Statutes, on July 29, 1986, in Tallahassee, Florida, for consideration of a Recommended Order issued by the Division of Administrative Hearings entered on February 26, 1986, Case No. 84- 2868VR (Attached as Exhibit A), and Exceptions filed by the Respondents, Driscoll Properties and Harbor Course Club, Inc. (Attached as Exhibit B). 1/ Based upon the Commission's review of the case it is hereby ordered that:
The Commission adopts and incorporates in this order the preliminary statements in the Recommended Order dated February 26, 1986, by the Division of Administrative Hearings (Recommended Order).
The Commission adopts and incorporates in this order the Findings of Fact set out in paragraphs 1 through 29 of the Recommended Order.
The Commission adopts and incorporates in this order the Conclusions of Law set out in the Recommended Order.
The Commission adopts and incorporates in this order the recommendations set out in the Recommended Order.
RULING ON EXCEPTIONS TO RECOMMENDED ORDER BY RESPONDENTS
Respondents' Exceptions numbered 1 through 6 to the Hearing Officer's Findings of Fact are denied. The Hearing Officer's Findings of Fact are supported by competent, substantial evidence in the record.
Exceptions to the Hearing Officer's Conclusions of Law:
Respondents' first and second Exceptions to the Conclusions of Law are hereby denied. The Hearing Officer's specifically found that while "Respondents filed their master development plan map for the Ocean Reef Development with Monroe County in June 1977...the plan did not specifically include the driving range here in issue." 2/ The Hearing Officer further noted that Respondents failed to support by competent, substantial evidence that a driving range is "customarily associated" with the kind of development depicted in its master development plan. Moreover, the Hearing Officer reasoned:
"to interpret Section 380.04(4), supra, to include all activities of any kind that are found in similar kinds of projects, whether or not such activities are
specifically delineated, reviewed and authorized, will allow activities that had not been specifically planned and reviewed at the time area of critical state concern regulations were enacted, to avoid any review and approval required by Chapter 380." 3/
Petitioner's Motion to Strike Respondents' Exceptions to the Recommended Order: Petitioner's Motion to Strike Respondents' Exceptions to the Recommended
Order is hereby denied.
This order is entered by the Commission pursuant to its authority under Chapter 380, Florida Statutes (1985). It is not intended nor shall it be construed as affecting or determining any other rights of the parties or the authority of any other State commission, board or government agency to issue permits or approvals under State laws or regulations that may be applicable to the development that was the subject of this appeal or order. Any party to this order has the right to seek judicial review of the order pursuant to Section 120.68, F.S., by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the Clerk of the Commission, Glenn W. Robertson, Jr., Office of Planning and Budgeting, Room 415, Carlton Building,
501 South Gadsden Street, Tallahassee, Florida 32301; and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. Notice of Appeal must be filed within 30 days of the day this order is filed with the Clerk of the Commission.
DONE and ENTERED this 31st day of July, 1986, in Tallahassee, Florida.
Glenn W. Robertson, Jr., Secretary Florida Land and Water Adjudicatory Commission
ENDNOTES
1/ This decision was an appeal to the Florida Land and Water Adjudicatory Commission by the Department of Community Affairs dated August 3, 1984, from a development order issued by the Monroe County Board of County Commissioners on March 23, 1984. A related case is an enforcement action initiated by the Department of Community Affairs through a notice of violation and order for secession and corrective action dated October 1, 1984, which resulted in an essentially identical recommended order, Case No. 84-3805VR.
2/ See page 10 of the Recommended Order.
3/ See pages 10-11 of the Recommended Order.
cc: Counsel of Record
Members of the Commission
| Issue Date | Proceedings |
|---|---|
| Feb. 26, 1986 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jul. 31, 1986 | Agency Final Order | |
| Feb. 26, 1986 | Recommended Order | Land clearing permit in area of state concern denied. No vested right shown. Driving range not included in original filed master plan. |
