STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF COMMUNITY AFFAIRS, )

)

Petitioner, )

)

vs. ) CASE NO. 86-0609

) BOARD OF COUNTY COMMISSIONERS ) OF MONROE COUNTY and FREDERICK ) GERRETSON, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a public hearing in the above-styled case on June 23, 1986, in Key West, Florida.

APPEARANCES

For Petitioner, Ross S. Burnaman, Esquire Department of Department of Community Affairs Community 2571 Executive Center Circle East Affairs: Tallahassee, Florida 32301

For Respondent, Frederick Gerretson, pro se Frederick Post Office Box 282 Gerretson: Big Pine Key, Florida 33043

For Respondent, Susan Vernon, Esquire Board of County Assistant County Attorney Commissioners of 310 Fleming Street

Monroe County: Key West, Florida 33040

PRELIMINARY STATEMENT

This is an appeal, pursuant to Section 380.07, Florida Statutes, to the Florida Land and Water Adjudicatory Commission (Adjudicatory Commission) from a resolution of the Monroe County Board of County Commissioners (Monroe County) granting Frederick Gerretson's (Gerretson's) application for a land clearing permit for Lot 2, Block 2, Sea View Subdivision, Big Pine Key, Florida. The Adjudicatory Commission forwarded the Department of Community Affairs' (Department's) appeal to the Division of Administrative Hearings, and requested the assignment of a Hearing Officer to conduct a hearing pursuant to Section 120.57(1), Florida Statutes.

At final hearing, Gerretson testified on his own behalf, and his exhibits 1-9, were received into evidence. Monroe County called Ann Williams, Robert A.

Smith, and George Schmahl as witnesses, but offered no exhibits. The Department called Debora Holle, accepted as an expert in wildlife ecology and Key Deer ecology, as a witness. Department exhibits 1-8 were received into evidence.

The transcript of hearing was filed July 7, 1986. Monroe County and the Department have submitted proposed findings of fact and conclusions of law, and they have been reviewed and considered. A ruling has been made on each proposed finding of fact in the appendix to this Recommended Order.

FINDINGS OF FACT

1. Gerretson is the owner of Lot 2, Block 2, Sea View Subdivision, Big Pine Key, Monroe County, Florida. 1/ On January 11, 1984, Gerretson applied to Monroe County for a land clearing permit. The permit, as requested, would have permitted him to clear his lot of vegetation in the area proposed for his house, driveway and septic tank. 2/

   
   

2. Gerretson's application was denied, as was his appeal to the Monroe County Board of Adjustment; however, on October 16, 1985, the Board of County Commissioners of Monroe County (Monroe County), by resolution, reversed the decision of the Board of Adjustment. The Department, pursuant to Section 380.07, Florida Statutes, filed a timely appeal with the Adjudicatory Commission.

   
   

   The subject property

   
   

3. The Sea View Subdivision is sparsely developed, and its lands are in a natural state except for the existence of two roads. The subdivision is bounded on the north by Port Pine Heights, an established subdivision; on the east and south by lands belonging to the U.S. Fish and Wildlife Service, as part of the National Key Deer Refuge; and on the west by Pine Channel. The Sea View Subdivision is itself within the boundaries of the Key Deer Refuge.

   
   

4. Gerretson's lot is located at the southern extreme of the subdivision; abutting the lands belonging to the U.S. Fish and Wildlife Service (the Government) and the northern limit of Watson Hammock, a unique natural area containing endemic, rare and endangered plant and animal species. Separating the Government's property from Gerretson's, is an unnamed 25' wide platted, but non-existent road. 3/

   
   

5. Currently, the closest vehicular access to Gerretson's property is by a fire break on the Government's land. This fire break is separated from Gerretson's lot by an area of natural vegetation approximately 70' in width. To access Gerretson's property from the subdivision would require that the lands dedicated for "no name road" be cleared of native vegetation a distance of 100'- 200' to the closest existing road. There are no plans, however, to construct "no name road." 4/

   
   

6. Gerretson's property is typical of the surrounding area, and characteristic of an old and well established pineland community. Vegetation includes endangered, threatened, and protected species such as South Florida Slash Pine, Key Cassia, Ladder Brake Fern, Thatch Palm, Cabbage Palm, and Silver Palm.

   
   

   Applicable development regulations

7. Gerretsons' property is located in that portion of Monroe County designated as an area of critical state concern. Section 380.0552, Florida Statutes. As such, development must be consistent with Chapters 27F-8 and 27F- 9, Florida Administrative Code, as well as Monroe County's comprehensive plan. Pertinent to these proceedings are Rule 27F-8.03(5), Florida Administrative Code, the coastal zone protection and conservation element of Monroe County's comprehensive plan, and Sections 18-16 through 18-25 of the Monroe County Code. 5/

   
   

8. Rule 27F-8.03(5), Florida Administrative Code provides:

   
   

   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.

   1. Guidelines:

      * * *

      5. Prohibit any significant disturbance, including but not limited to land clearing and excavation, of established habitats for documented resident populations of endangered species . . .

      
      

9. Monroe County's comprehensive plan, the coastal zone protection and conservation element, dealing with natural vegetative resources and terrestrial wildlife resources provides:

NATURAL VEGETATION MANAGEMENT POLICIES

1. In recognizing the need to preserve as much natural vegetation as possible, the County will direct its land use and development regulations to minimize destruction of natural vegetation and modification of landscape.

   1. Guidelines and performance standards designed to protect natural vegetation from development will be developed

      and enforced.

   2. Clearing of native vegetation for development will be controlled.

   3. Land clearing will be restricted to site area being prepared for

      immediate construction. If the construction cannot begin within reasonable time, the cleared area will be replanted with ground cover.

   4. In areas where temporary removal of vegetation is necessary during construction, replanting of ground

      cover will be carried out as soon as possible.

2. 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 add given due consideration in developing future land use regulations.

   1. 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.

   2. Outstanding, rare, and unique communities of hardwood hammock and pineland will be preserved to the greatest extent possible.

* * *

1. The existing county ordinances designed to protect and conserve natural vegetation will be strictly interpreted, rigidly enforced, and/or amended when necessary.

2. The County will seek assistance from and cooperate with the appropriate State and Federal agencies in developing and

   enforcing regulations designed to protect rare, threatened and/or endangered plant species from development, vandalism, tree poaching, and plant thefts.

   
   

   TERRESTRIAL WILDLIFE MANAGEMENT POLICIES

   
   

   1. In order to conserve and wisely manage the Keys' wildlife resources, the County will conscientiously direct its efforts toward the protection and improvement of wildlife habitats throughout the Keys.

      1. Development activities which may degrade, destroy, or severely impact productive areas for wildlife will

         be required to assess possible means and, to the extent practicable, adopt protective measures for abating these impacts on wildlife populations and habitat.

      2. Recognizing that each wildlife group has its own requirements and

         tolerances, the adequacy of protective measures will be evaluated for each individual species occupying the habitat.

      3. Improvement of habitat through encouragement of native vegetation which would give desirable species the best chance to flourish will be supported and encouraged.

      4. Planning, design, siting, and construction of public capital improvements and facilities such as roads, solid waste disposal sites,

         and utility lines and structures will be carefully regulated to minimize impact on wildlife habitat and movement patterns.

   2. The County will exert special protective efforts regarding the preservation of

      rare, endemic, endangered, or threatened species as identified by Federal and State agencies and the habitat required to support these species in the coastal zone.

      1. Intensive development will be directed away from the habitat of rare, endemic, endangered, or threatened species.

   * * *

   7. Introduction as pets of those exotic animal species which may represent a potential danger to the native wildlife will be discouraged.

3. Pertinent to this proceeding, the Monroe County Code (Code) provides: Section 18-18 Land clearing permit . . .

   1. It shall be unlawful and an offense

      against the county for any person . . . to clear . . . any land located within the unincorporated areas of the county without having first applied for and obtained a land clearing permit from the building department

      . . .

      * * *

      (c) Review and approval of development

      site plans which results in the issuance of a development order shall constitute compliance with the requirements of this section. In such cases the land clearing permit will be issued in conjunction with the building permit.

      * * * Section 18-19 Same-Application . . .

      1. Any person requesting a land clearing permit shall file an application with the county building department on a form provided by such department. Such application shall contain the following information:

         * * *

         1. A map of the natural vegetative communities found on and adjacent to the site, prepared by a qualified biologist, naturalist, landscape architect or other professional with a working knowledge of the native vegetation of the Florida Keys . . . With projects that are five (5) acres or more in size, the vegetation map does not have to identify the location of individual trees

         2. An overall site plan of the land for

         which the permit is requested, indicating the shape and dimensions of said land, the purposes for which clearing is requested, and the steps taken to minimize effects of clearing on surrounding vegetation and water bodies. A site plan analysis prepared by a qualified individual, as described above

         . . . shall be included.

      2. Prior to the issuance of a land clearing permit, the building department shall field check the proposed clearing site and shall verify on the application that the facts contained therein, relative to the location and description of vegetation, are factually correct.

      * * * Section 18-21. Same - Approval.

      After an application for a land clearing permit has been filed and verified, the building department and the planning and zoning department shall review and consider what effects such removal of vegetation will have upon the natural resources, scenic amenities and water quality on and adjacent to the proposed site. Upon finding that such removal of natural vegetation will not adversely affect the natural resources, scenic amenities and water quality adjacent to the proposed site, the permit shall be approved, approved subject to modification or specified conditions, or denied . . .

      
      

      Areas of concern

      
      

4. Gerretson's property and the surrounding refuge area are prime habitat for the Key Deer. 6/ The Key Deer is listed as a threatened species by the State of Florida and endangered by the Federal Government. 7/ Currently, the Key Deer population is on the decline from a once stable population of about 400 to a current population of about 250. 8/ This decline is directly attributable to loss of habitat and the consequent adverse impacts of human presence, such as increased automobile traffic, large domesticated dogs, and loss of wildness in the deer.

   
   

5. While the proposed clearing of Gerretson's lot would, in and of itself, probably not significantly impact the Key Deer or its habitat, the fact that he has no road access to his property will require the continuous crossing of adjacent natural habitat and significantly expand the sphere of human impact on the deer. Additionally, the purpose of Gerretson's lot clearing cannot be ignored in analyzing the ultimate impacts of his proposal.

   
   

6. The purpose of Gerretson's permit is to allow the construction of a single family residence on his lot. Gerretson's lot is located at the southern extreme of Sea View Subdivision, and his home would be the first built in the area. The construction of this house alone, with its consequent human presence, would adversely impact the Key Deer and its habitat. Considering the precedential nature of Gerretsons' construction, the cumulative impact from the project on the deer would be significantly greater. 9/ Notwithstanding the

   evident adverse impacts, Gerretson failed to offer any plan to mitigate the impacts of the proposed land clearing and construction on the Key Deer population.

   
   

7. Gerretsons' proposal would also displace endemic, protected, threatened and endangered plant species in the area of the proposed house, driveway and septic tank. To support his application, Gerretson submitted a vegetation survey by a "qualified person." The survey does not, however, "map" the natural vegetation by locating individual species but, rather, divides Gerretson's lot into four quadrants and lists the vegetation found in each quadrant. While there is no dispute that the survey accurately lists the vegetation to be found in each quadrant, the survey is of little or no value in identifying the significant vegetation that will be displaced by construction, analyzing the site to determine the least disruptive site layout, or developing an adequate transplanting or revegetation scheme. In sum, Gerretson's vegetation survey fails to comply with the letter or spirit of the Monroe County Code. 10/

   
   

8. At hearing, Gerretson averred that he would transplant any endangered or threatened species, and would limit his fill activity to that required for the septic tank system. 11/ He failed, however, to identify the species that would be impacted or offer any plan for transplantation or revegetation that could be evaluated for its likelihood of success. In sum, Gerretson failed to offer any viable plan to mitigate the impacts of his proposal on endemic, protected, threatened and endangered plant species.

   
   

9. The Department also asserts that the subject permit should not issue because Gerretson's property does not abut an existing road. Section 19-135, Monroe County Code, provides:

   
   

   No building or structure shall be erected on a parcel of land which does not abut a

   public or private road having a minimum width of fifteen (15) feet.

   
   

   The fact that "no name road" does not exist would preclude Gerretson, absent variance from the Monroe County Code, from securing a building permit to construct his residence.

   
   

10. While the subject permit is a land clearing permit and not a building permit, there is no rational basis to grant a clearing permit to construct a house if the house cannot be built. Accordingly, it would be appropriate to condition the issuance of a land clearing permit on the issuance of a building permit.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Headings has jurisdiction over the parties to, and the subject matter of, these proceeding.

    
    

12. This is an appeal, pursuant to Section 380.07, Florida Statutes, from a resolution of Monroe County granting Gerretson's application for a land clearing permit in an area of critical state concern. Pursuant to the provisions of Section 120.57(1), Florida Statutes, a de novo hearing was held. Transgulf Pipeline Co. v. Board of County Commissioners, 438 So.2d 876 (Fla. 1st DCA 1983).

13. Pertinent to this appeal, Section 380.06(13), Florida Statutes, provides that if, as here, the proposed development is located in an area of critical state concern,

    
    

    . . . the local government shall approve it only if it complies with the land development regulations therefore under Section 380.05 and the provisions of this section.

    
    

    Chapter 27F-8, Florida Administrative Code, the Boundary and Principles for Guiding Development for the Florida Keys Area of Critical State Concern; Chapter 27F-9, Florida Administrative Code, the Land Planning Regulations for the Florida Keys Area of Critical State Concern Monroe County; and, Monroe County's comprehensive plan are the land development regulations pertinent to Section 380.05, Florida Statutes, and the proposed development.

    
    

14. The ultimate burden of persuasion rested on Gerretson to establish his entitlement to a permit authorizing him to clear his property of natural vegetation. Graham v. Estuary Properties, Inc., 399 So.2d 1374 (Fla. 1981), Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981). Gerretson has failed to demonstrate that his proposal complies with the land development regulations applicable to this case. His proposal will significantly impact the Key Deer and its habitat, and will adversely impact endemic, protected, threatened, and endangered plant species. Gerretson has advanced no plan that would mitigate the adverse impacts of his proposal.

    
    

15. While not entitled to the requested permit, Gerretson is entitled to a specification of what changes in his proposal are necessary that would make it eligible to receive a permit. Section 380.08(3), Florida Statutes. Based on the evidence adduced at hearing, such changes are as follows:

1. Provide reasonable assurances that his proposal will not significantly impact the Key Deer or its habitat, or adequately mitigate any such impact.

   
   

2. Provide reasonable assurances that his proposal will not significantly impact endemic, protected, threatened, and endangered plant species or adequately mitigate any such impact. Such assurances would include a vegetation survey identifying the location of significant species and the establishment of a viable transplantation or revegetation plan.

   
   

3. That Gerretson apply for and receive a permit from Monroe County to construct a house on the subject property before a land clearing permit will issue.

   
   

4. That no fill be placed on the subject land except that required for the septic tank system.

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a

Final Order reversing Monroe County Resolution No. 288-1985, and deny

Gerretson's request for a land clearing permit. That such Final Order specify those items set forth in paragraph 5, Conclusions of law, as the changes necessary that would make Gerretson's proposal eligible to receive a permit.

DONE and ENTERED this 11th day of August, 1986, in Tallahassee, Florida.

WILLIAM J. KENDRICK

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 day of August, 1986.

ENDNOTES

1/ Gerretson's lot measures 100' x 100' square.

2/ A building permit for construction of the house has not yet been issued. 3/ While non-existent, "no name road" is a platted and dedicated road of Sea

View Subdivision. Monroe County has not, however, accepted the roads dedicated

in such plat.

4/ To clear "no name road" would likewise require a land clearing permit from Monroe County.

5/ The only part of Monroe County's comprehensive plan offered in evidence was that portion of its coastal zone protection and conservation element dealing with natural vegetation resources and terrestrial wildlife resources. These were the only provisions of Monroe County's comprehensive plan placed in issue, since they were the only part of the comprehensive plan the Department's appeal specified as in conflict with Gerretson's proposal. See: Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981).

Sections 18-16 through 18-25, Monroe County Code, are pertinent to this proceeding because adopted by Chapter 27F-9, Florida Administrative Code, or by the coastal zone protection and conservation element of Monroe County's comprehensive plan, "Natural Vegetation Management Policies," paragraph 8.

6/ Approximately two-thirds of the Key Deer population inhabit No Name Key and Big Pine Key.

7/ Rule 39-25.05(33), F.A.C.; 50 C.F.R. 17.11-12.

8/ The Key Deer population was brought up from approximately 25-50 to 400-600 through establishment of the National Key Deer Refuge and strict law enforcement. Today, its population is on the decline again because of human encroachment.

9/ There is currently pending one other application for a lot clearing permit in the southern portion of Sea View Subdivision.

10/ Contrary to Monroe County's assertion, the code does not authorize a quadrant survey of parcels under five acres. Section 15-19(5), Monroe County

Code, requires for projects of less than five acres, a vegetation map that identifies the location of individual trees. Section 18-23, Monroe County Code, requires that "individual" trees of certain species, such as Cabbage Palm and Key Cassia, be protected to the maximum extent possible. To protect those species mandates a precise survey.

11/ Gerretson holds a septic tank permit issued by the Department of Health and Rehabilitative Services, and a building permit from Monroe County to set a well to test for potable water. No other permits have been issued. Monroe County's assertion that the Department is estopped from contesting this land clearing permit because it did not contest the septic or well permits is unpersuasive.

Neither of those permits authorized land clearing or construction. As importantly, there was no showing that the Department had notice of, or an opportunity to be heard on, those permits.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-0609

The Department's proposed findings of fact are addressed as follows: 1-3. Addressed in paragraphs 1-2.

4-6. Addressed in paragraphs 6, 14-15.

7-9. Addressed in paragraphs 3-4, 11-13.

1. Addressed in paragraphs 16-17.

2. Addressed in paragraph 14.

Monroe County's proposed findings of fact are addressed as follows:

1. Addressed in paragraphs 1 and 4.

1. & 5. Addressed in paragraph 15.

2. & 7-10. Addressed in paragraphs 1-2.

3. & 6. Addressed in paragraphs 6 and 14-15.

COPIES FURNISHED:

Ross S. Burnaman, Esquire Department of Community

Affairs

2571 Executive Center Circle, E. Tallahassee, Florida 32301

Frederick Gerretson Post Office Box 282

Big Pine Key, Florida 33043

Susan Vernon, Esquire Assistant County Attorney

310 Fleming Street

Key West, Florida 33040

Glen W. Robertson, Secretary Director, Planning & Budgeting Florida Land and Water Adjudicatory

Commission

415 Carlton Building Tallahassee, Florida 32301

Tom Lewis, Jr., Secretary Department of Community

Affairs

2571 Executive Center Circle, E. Tallahassee, Florida 32301

Margaret Ray Kemper, General Counsel Department of Community

Affairs

2571 Executive Center Circle, E. Tallahassee, Florida 32301

Docket for Case No: 86-000609

Orders for Case No: 86-000609