STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF COMMUNITY AFFAIRS, )

)

Petitioner, )

)

vs. ) CASE NO. 88-3451

) JAMES D. YOUNG, SR.; OLEVA A. ) YOUNG; and MONROE COUNTY, FLORIDA, )

)

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 November 30, 1988, in Key West, Florida.

APPEARANCES

Petitioner: John M. Carlson, Esquire Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

Respondents David Paul Horan, Esquire James D. Young, Sr., 608 Whitehead Street

and Oleva A. Young: Key West, Florida 33040

Respondent

Monroe County: Did not appear and was not represented PRELIMINARY STATEMENT

On March 14, 1988, Respondent Monroe County issued to Respondents James D. Young, Sr. and Oleva A. Young Land Clearing Permits Nos. 8810000446, 8810000449, and 8810000450. Petitioner Department of Community Affairs timely filed this appeal to the Florida Land and Water Adjudicatory Commission, contesting the issuance of those permits/development orders, pursuant to Section 380.07, Florida Statutes. Accordingly, the issue for determination herein is whether Respondents James D. Young, Sr., and Oleva A. Young's applications for those land clearing permits should be granted.

At the commencement of the final hearing Petitioner moved to amend its Petition in this cause to (1) correctly spell the first name of Respondent Oleva

1. Young, and (2) correctly reflect that copies of the land clearing permits in question were delivered by Monroe County to Petitioner on March 17, 1988, rather than on March 14, 1988. That motion was granted.

   FINDINGS OF FACT

   
   

   1. On October 18, 1988, a telephonic motion hearing was conducted in this cause. During the course of that motion hearing, the parties requested a ruling as to which party carries the burden of proof in this proceeding. The undersigned ruled at that time that the burden of proof is on Respondents James

      D. Young, Sr., and Oleva A. Young.

      
      

   2. On October 25, 1988, an Order was entered in this cause memorializing the rulings made during the course of that telephonic hearing. Paragraph numbered 7 of that Order provides as follows:

      
      

      7. This being a proceeding pursuant to Chapter 380, Florida Statutes, the burden of proof in this cause is on the applicants for the permit/development order, the entitlement to which is the subject matter of this proceeding.

      
      

   3. There is no evidence in this cause that any party filed an appeal from the October 25, 1988, Order.

      
      

   4. Immediately after the commencement of the final hearing in this cause, Respondents James D. Young, Sr., and Oleva A. Young again raised the issue of which party carries the burden of proof in this proceeding. Upon failing to obtain a ruling that the Petitioner Department of Community Affairs carries the burden of proof, Respondents James D. Young, Sr., and Oleva A. Young announced their refusal to participate further in this proceeding.

      
      

   5. Respondents James D. Young, Sr., and Oleva A. Young failed to present any evidence in this cause.

      
      

      CONCLUSIONS OF LAW

      
      

   6. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1), Florida Statutes.

      
      

   7. Respondents James D. Young, Sr., and Oleva A. Young are applicants for Monroe County land clearing permits/development orders. Although Respondents James D. Young, Sr., and Oleva A. Young received approval of their applications for land clearing permits from Respondent Monroe County, they have not yet received the approval by the State of Florida required under the statutory scheme contained in Chapter 380, Florida Statutes. They, therefore, still carry the burden of proving their entitlement to those permits/development orders in this proceeding. Graham v. Estuary Properties, Inc., 399 So.2d 1374 (Fla. 1981), cert. den'd 454 U.S. 1083; Transgulf Pipeline Co./Department of Community Affairs v. Board of County Com'rs, 438 So.2d 876 (Fla. 1st Dist 1983)) review den'd 449 So.2d 264; Florida Department of Transportation v. J.W.C. Co., Inc.,

      396 So.2d 778 (Fla. 1st Dist. 1981); Department of Community Affairs v. Arthur

      B. Lujan, Board of County Commissioners of Monroe County, Florida, and the Planning, Building, and Zoning Department of Monroe County, Florida, DOAH Case No. 86-1496 (Final Order entered July 6, 1987); Department of Community Affairs, et al. v. Bartecki, Kephart, and Monroe County Zoning Board, DOAH Case No. 84- 1198 (Final Order entered September 24, 1985); Department of Community Affairs

      v. Monroe County, Florida, McDonald/Allen, Donia, Bobowski, and Stage, DOAH Case Nos. 83-3704, 84-0360, 84-0361; and 84-0362 (Final Order entered June 10,

      1985). As the Court stated in Florida Department of Transportation v. J.W.C. Co., Inc., supra:

      
      

      We view it as fundamental that an applicant for a license or permit carries the

      `ultimate burden of persuasion' of entitlement *through all proceedings, of whatever nature, until such time as final action has been taken by the agency.*

      At. 787 [Emphasis supplied between *]

      
      

   8. Respondents James D. Young, Sr., and Oleva A. Young having failed to present any evidence in this cause, they have failed to present a prima facie case and have failed to carry their burden of proof in this proceeding.

      
      

   9. Section 380.08(3), Florida Statutes, requires the consideration of any conditions which can be attached to the permit/development order under consideration which would allow that permit/development order to be granted. Since no evidence was presented regarding the three land clearing permit applications involved herein, there are no conditions pursuant to which Respondents James D. Young, Sr., and Oleva A. Young's applications for land clearing permits can be granted.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered denying Respondents James D.

Young, Sr., and Oleva A. Young's applications for Monroe County Land Clearing

Permits Nos. 8810000446, 8810000449, and 8810000450.

DONE and RECOMMENDED this 21st day of December, 1988, at Tallahassee, Florida.

LINDA M. RIGOT, 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 21st day of December, 1988.

COPIES FURNISHED:

Patty Woodworth, Secretary

Land and Water Adjudicatory Commission Planning and Budgeting

Executive Office of the Governor The Capitol, PL-05

Tallahassee, Florida 32399-0001

Thomas G. Pelham, Secretary Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

John M. Carlson, Esquire Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

David Paul Horan, Esquire 608 Whitehead Street

Key West, Florida 33040

Larry Keesey, Esquire Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA

LAND AND WATER ADJUDICATORY COMMISSION

DEPARTMENT OF )

COMMUNITY AFFAIRS )

)

Petitioner, )

)

vs. ) 88-17

) DOAH CASE NO. 88-3451

JAMES D. YOUNG, SR., )

OLEVA A. YOUNG, and ) MONROE COUNTY, FLORIDA, )

)

Respondents. )

)

FINAL ORDER

This cause came before the Governor and Cabinet of the State of Florida, sitting as the Florida Land and water Adjudicatory Commission ("the Commission"), on February 28, 1989, in Tallahassee, Florida, pursuant to Sections 120.57 and 380.07, Florida Statutes, for consideration of a Recommended Order from the Division of Administrative Hearings entered on December 21, 1988 ("the Recommended Order"), a copy of which is attached as Exhibit A, and exceptions filed subsequent thereto. Based upon the Commission's review of this cause, it is hereby ordered:

1. The Commission adopts and incorporates in this Order the Findings of Fact set out in paragraphs 1 through 5 of the Recommended Order.

   
   

2. The Commission adopts and incorporates in this Order the Conclusions of Law set out on pages 3 through 5 of the Recommended Order.

   
   

3. The Commission takes notes an incorporates in this Order the Recommendation of the Hearing Officer set out on page 5 of the Recommended Order.

RULINGS ON RESPONDENTS' EXCEPTIONS TO THE RECOMMENDED ORDER

As the outset, the Commission takes note of a procedural irregularity which occurred following the issuance of the Recommended Order in this case. Under our rule 42-2.008, Administrative Code, any exceptions must be filed with, not simply serve upon, the Governor's Office of Planning and Budgeting within fifteen days of service of the recommended order. In this case, the Commission did not receive a exceptions of Respondents James D. Young, Sr. and Oleva A.

Young ("Respondents") until January 11, 1989, a date clearly outside the fifteen-day period. Because the certificate of service reflects that the exceptions were served on the parties in a timely manner, we will proceed to

consider the merits of the exception. We do, however, strongly urge all parties who come before this Commission to comply with the time requirements specified in our rules so that all appeals may proceed appropriately toward a timely and efficient resolution.

Respondents' exceptions challenge the entire thrust of the Recommended Order. Specifically, Respondents disagree with the following related statements by or conclusions of the Hearing Officer: 1) "the issue for determination herein is whether Respondents'...applications for...permits should be granted" (page 2); 2) the Respondents are "applicants" which "have not yet received the approval by the State of Florida required under the statutory scheme contained in Chapter 380, Florida Statutes" (page 3); and 3) Respondents have failed to carry their burden of proof (page 4). Respondents urge this Commission to use "its God-given common sense" to hold, contrary to the Recommended Order, that the petitioner--not Respondents--bear the ultimate burden of persuasion in this proceeding. While accepting Respondents' invitation to use common sense (after mixing it `with a large quotient of reliance upon consistently-applied legal principles), we decline to depart from the Recommended Order. Thus, Respondents' exception is denied.

We do not determine the issue of burden of proof on a blank slate. This Commission, through its own language and the adoption of recommenced orders in the past, had consistently held that it is the applicant who bears the ultimate burden of proof in an appeal under Section 380.07 to Demonstrate entitlement to the permit at issue. This is true even where the permit has already been issued by the local government. See, e.c., Department of Community Affairs v. Lujan et al., DOAH Case No. 6-1496 (Final Order entered July 6, 1967), and Department of Community Affairs v. Bartecki, DOAH Case No. 84-1198 (Final Order entered September 24, 1985). We believe this conclusion is not only supported, but indeed is compelled, by the relevant case law which, as the hearing officer correctly points out, provides that:

it is fundamental that an applicant for a license or permit carries the "ultimate burden of persuasion"' of

entitlement through all proceedings, of whatever nature, until such time as final action has been taken by the agency.

Florida Department of Transportation v. J.W.C.Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).

Respondents' exception makes much of the fact that the Department's notice of appeal and petition requests an opportunity "to establish the facts asserted in its Petition." We find Respondents' argument to be unpersuasive. The burden to come forward with evidence may, to be sure, shift between the parties at various points in the proceeding. See, e.g., id. at 788. By refusing to participate at the hearing, however, Respondents unilaterally foreclosed their opportunity both to present a preliminary showing sufficient to make out a prima facie case and to satisfy their ultimate burden of persuasion. Under these circumstances, we agree with the Hearing Officer that the permit applications at issue should be denied.

One final note is in order. The last five pages of Respondents' exceptions set forth in some detail legal and factual argument purportedly supporting issuance of the permit. Having refused to participate in the administrative hearing, Respondents' may not now turn this final phase of the process into an arena for obtaining factual determinations from this Commission.

Any party to this order has the right to seek judicial review of the order pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate procedure, with the Clerk or the Commission, Patricia A. Woodworth, Office of Planning and Budgeting, Executive Office of the Governor, 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 date this order is filed with the Clerk of the Commission.

DONE and ENTERED this 28th day of February, 1989, in Tallahassee, Florida.

Patricia A. Woodworth Secretary to the Florida Land and Water Adjudicatory Commission

cc: Members of the Commission Counsel of Record

COPIES FURNISHED:

Honorable Bob Martinez Governor

The Capitol

Tallahassee, Florida 32399

Honorable Bob Butterworth Attorney General

The Capital

Tallahassee, Florida 32399

Honorable Doyle Conner Commissioner of Agriculture The Capitol

Tallahassee, Florida 32399

Honorable Tom Gallagher Treasurer

The Capitol

Tallahassee, Florida 32399

Honorable Jim Smith Secretary of State The Capitol

Tallahassee, Florida 32399

Honorable Gerald Lewis Comptroller

Tallahassee, Florida 32399

Honorable Betty Castor Commissioner of Education The Capitol

Tallahassee, Florida 32399

Deborah Hardin-Wagner Assistant General Counsel The Capitol, Room 209 Tallahassee, Florida 32399

John M. Carlson, Esquire Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

David P. Horan, Esquire 608 Whitehead Street

Key West, Florida 33040

Linda M. Rigot, Esquire Hearing Officer

Division of Administrative Hearing

The Desoto Building 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Tom Brown

County Administrator Public Service Building 5825 Junior College Road Key West, Florida 33040

James D. Young Oleva A. Young

Post Office Box 631

Big Pine Key, Florida 33040

Michael Puto

Mayo, Monroe County

310 Fleming Street

Key West, Florida 33040

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

RECOMMENDED ORDER

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF COMMUNITY AFFAIRS, )

)

Petitioner, )

)

vs. ) CASE NO. 88-3451

) JAMES D. YOUNG, SR.; OLIVIA A. ) YOUNG; and MONROE COUNTY, FLORIDA, )

)

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 September 28, 1994, in Key West, Florida.

APPEARANCES

For Petitioner: Karen Brodeen, Esquire

Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

For Respondents David Paul Horan, Esquire Young: Horan, Horan & Esquinaldo

608 Whitehead Street

Key West, Florida 33040

For Respondent Did not appear and was Monroe County: not represented

STATEMENT OF THE ISSUE

The issue presented is whether the land clearing permits issued to Respondents Young by Respondent Monroe County comport with the requirements of Chapter 380, Florida Statutes.

PRELIMINARY STATEMENT

Upon issuance by Monroe County of three land clearing permits to Respondents James D. Young, Sr., and Olivia A. Young, the Petitioner Department of Community Affairs filed an appeal with the Florida Land and Water Adjudicatory Commission, alleging that the permits failed to comport with the requirements of Chapter 380, Florida Statutes. This cause was thereafter transferred to the Division of Administrative Hearings to conduct a formal proceeding.

This cause was scheduled for final hearing on November 30, 1988, in Key West, Florida. At that final hearing, Respondents Young refused to present any evidence. A Recommended Order was entered December 21, 1988, recommending denial of the applications for land clearing permits based upon the then-well- settled law that the applicant for a permit had the burden of proof to show entitlement through all proceedings regarding that application. On February 28, 1989, the Florida Land and Water Adjudicatory Commission entered a Final Order adopting that Recommended Order, relying on that same case law. On appeal, the District Court of Appeal of Florida, Third District, affirmed that Final Order by Opinion rendered June 19, 1990, but certified to the Supreme Court of Florida the issue of the burden of proof in an appeal by the Department pursuant to Section 380.07, Florida Statutes, as a question of great public importance.

The Supreme Court of Florida accepted jurisdiction in this cause pursuant to the certified question of great public importance provision of the Florida Constitution and quashed the District Court's decision in an opinion issued September 9, 1993. The Supreme Court extensively analyzed the conflict in the statutory language in Section 380.07, Florida Statutes, authorizing the Department to take an appeal to the Florida Land and Water Adjudicatory Commission from the issuance of a development order by a local government pursuant to Chapter 380, Florida Statutes, with the statutory language requiring the Commission to hold a de novo hearing pursuant to the provisions of Chapter 120, Florida Statutes.

The Supreme Court held that in a case, such as the instant case, involving the issuance of a development order in an Area of Critical State Concern, such as the Florida Keys Area of Critical State Concern, the legislature has made a statutory determination that development will have an adverse impact if the development is not in accordance with Chapter 380, Florida Statutes, the local development regulations, and the local comprehensive plan. The Court further determined that since Monroe County is not an agency for purposes of Chapter 120, Florida Statutes, the development orders (land clearing permits) issued by Monroe County in this cause did not constitute proposed agency action and the effect of the Department's appeal to the Commission was to stay the effectiveness of otherwise valid orders (the Monroe County permits). The Court noted that in the instant case the Department had requested that the Commission reverse the development orders as illegal and violative of the Monroe County Land Development Regulations and Comprehensive Plan and, therefore, illegal and violative of Chapter 380, Florida Statutes. The Court then answered the certified question by concluding that when the Department initiates a proceeding before the Commission pursuant to Section 380.07, Florida Statutes, the Department carries both the ultimate burden of persuasion and the burden of going forward, hence, the burden of proving that the development orders which

are the subject of this proceeding were not issued in accordance with Chapter 380, Florida Statutes.

The Supreme Court remanded this cause for a new hearing. On November 3, 1993, the District Court of Appeal of Florida, Third District, withdrew its mandate, vacated its Opinion, adopted the Opinion of the Supreme Court of Florida, and remanded this cause to the Commission for further proceedings. By Order entered March 24, 1994, the Florida Land and Water Adjudicatory Commission remanded this cause to the Division of Administrative Hearings to conduct a new hearing. That hearing was conducted on September 28, 1994.

The Department presented the testimony of Kenneth Metcalf and of George P. Schmahl. Respondents Young presented the testimony of George P. Schmahl and of Respondent James D. Young, Sr. Additionally, the Department's exhibits numbered 1-5 and Respondents Young's exhibits numbered 1-12 were admitted in evidence.

The Department and Respondents Young submitted post-hearing proposed findings of fact in the form of proposed recommended orders. A specific ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondents James D. Young, Sr., and Olivia A. Young are the owners of Lots 1, 6, 7, 8, 9, 25, and 26, Tropic Island Ranchettes Subdivision, Big Pine Key, Monroe County, Florida. These lots are located within the Florida Keys Area of Critical State Concern. Each lot is approximately one acre in size.

   
   

2. On January 4, 1985, the Youngs applied to Monroe County for three land clearing permits to clear lots 1 (application number 8810000446), 6, 7, 8, and 9 (application number 8810000450), and 25 and 26 (application number 8810000449). The applications stated that the Youngs intended to totally clear all seven lots for the purpose of planting a field grown nursery of ficus benjamina as stock plants. The applications were accompanied by a vegetation survey which revealed that the seven lots contained many species of plants classified as endangered, as threatened, and as protected in Monroe County.

   
   

3. The applications were referred to George P. Schmahl, the County's biologist, for review. After making an on-site inspection, Schmahl issued a detailed report on February 1, 1985. That report noted that the vegetation on all seven of the parcels is generally characterized as a native pineland community with fresh water wetlands areas. The report noted the presence of plant species on the State's endangered and threatened species lists, especially the Silver Palm, Keys Cassia, and Thatch Palm. Schmahl also noted that the parcels in question constituted habitat for the federally-endangered Key Deer, as shown by the presence of deer tracks, deer droppings, and evidence of grazing observed by Schmahl during his on-site visit. The report noted, therefore, that the total clearing of the land would eliminate many protected plant species and the habitat for a protected mammal. It further noted that filling in the wetlands areas would eliminate sources of fresh water for the Key Deer and would alter the natural drainage pattern in that part of Big Pine Key.

   
   

4. As to the intended use reflected in the applications for permits, Schmahl's report stated his concern regarding the utilization of those lots for agricultural purposes. He assumed that the fresh water aquifer located beneath Big Pine Key would be used as a source of irrigation, that the amount of water required for a seven-acre nursery would be considerable and contrary to the

   increased demand for residential consumption, and that the application of pesticides and herbicides required for plant cultivation would be introduced into the ground water by rain and irrigation run-off. Schmahl further noted his concern that the species of plant (ficus benjamina) which the Youngs had chosen to grow on the seven-acre parcel had been specifically designated as an undesirable exotic species by Monroe County and that its planting in the Florida Keys was discouraged due to its destructive root systems and because it constituted a competitive threat to native species.

   
   

5. Schmahl's report concluded with his recommendation to Monroe County's building director and the County's director of planning and zoning that the applications be disapproved as proposed because (1) the Youngs had not provided for the retention of native vegetation, (2) the proposed activity would eliminate a large number of protected plant species, (3) the proposed activity would eliminate habitat for a federally-endangered animal species, (4) natural drainage patterns would be altered, (5) the fresh water aquifer would be impacted by excessive consumption and introduction of agricultural runoff, and

   (6) the species of plant proposed to be propagated has been designated as an undesirable exotic species by the Monroe County Coastal Zone Conservation and Protection Element.

   
   

6. Schmahl's report contained a subsequent section entitled "Other Considerations." That section noted Schmahl's concern that the property might not be properly zoned for the intended use since the property was zoned GU, a category which allowed agricultural activity, but a nursery was required to have a BU-1-0 zoning designation. Schmahl also questioned the reliability of the intended use stated on the Youngs' applications, noting that the Youngs had developed 13 of their other lots in the Tropic Island Ranchettes Subdivision differently than the stated intended use in the applications for land clearing permits and zoning changes for those lots. For example, the land clearing permit application for lots 11-21 stated that the intended use was agricultural, but the lots were actually used for a flea market and parking. Lastly, Schmahl noted his concern that the singular development of the parcels controlled by the Youngs in the Subdivision avoided the Major Development designation and extra regulatory review attendant thereto if developed at the same time.

   
   

7. By letter dated February 25, 1985, the Monroe County Building Director forwarded to the Youngs a copy of Schmahl's report, advised the Youngs that the biologist had recommended that the applications be disapproved as submitted, and requested the Youngs to respond to that report, specifically the section summarizing Schmahl's six concerns and the section entitled Other Considerations before any decision would be made on the three applications for land clearing permits.

   
   

8. That letter requesting that Monroe County's concerns be addressed by the applicant brought two responses. One response was in the form of a letter dated February 26, 1985, from the Youngs' attorney demanding that the County state in writing the changes to the permit applications required by the County or state in writing that the County was prohibiting the Youngs from clearing their property. That letter failed to address any of the concerns which the County had advised the Youngs they must address in order for the County to make any decision.

   
   

9. The other response to the County's correspondence was by Mr. Young himself. After receiving the County's letter, he went to see Schmahl and asked Schmahl what changes the Youngs should make in their applications. Schmahl

   advised Young that if he would amend his applications and apply instead to grow native plants, then Schmahl could review the applications more favorably.

   
   

10. Thereafter, the Youngs did not submit any changes to their applications for permits. Further, no response to the County's letter requesting that its concerns be specifically addressed was made by the Youngs or by their attorney.

    
    

11. On February 28, 1986, Monroe County adopted a comprehensive plan and land development regulations. On July 28, 1986, the Administration Commission approved that comprehensive plan and land development regulations. On October 3, 1986, Monroe County adopted Ordinance No. 033-1986 which established an effective date of September 15, 1986, for the comprehensive plan and land development regulation adopted by Monroe County. That Ordinance also specifically repealed all ordinances or parts of ordinances in conflict therewith.

    
    

12. On March 26, 1987, Mr. Young went to the Monroe County Building Department to amend one of the three applications to reflect that the Youngs' new intended use was a parking lot for the flea market. That was the County's first indication that the files on the three applications for clearing permits were classified as open files. Based on his conversations, Young understood that the County would require any applications for permits to comply with the 1986 comprehensive plan and land development regulations and that he would have to submit a Habitat Evaluation Index study. Although Mr. Young then spoke to the County's biologist regarding his intent to expand his flea market parking, Young did not amend the application.

    
    

13. Mr. Young sent a letter dated April 6, 1987, to the County complaining about how his permit applications, he, and his wife had been treated. That letter was followed by an April 8, 1987, letter from his attorney to the County referencing his clients' applications for "clearing/parking" in the area adjacent to the flea market, advising the County that it was required by law to review the applications pursuant to pre-1986 criteria, and advising the County that the Department's short-lived attempt to change the zoning on his clients' property at that time could not be done. On that same date, Mr. Young received a letter from the County advising him that the County Administrator would investigate his complaint concerning the problems with his land clearing permit applications.

    
    

14. On July 27, 1987, the Youngs' attorney wrote to Monroe County outlining the history of his clients' applications from his perspective, suggesting that his clients were being prevented from using their property in any manner, and discussing the concepts of "due process," "just compensation," and "Monroe County's liability for temporary takings."

    
    

15. On August 14, 1987, the County responded to the Youngs' attorney's correspondence by outlining the chronology of the applications from the County's perspective and expressing surprise that the issue had again been raised. A September 2, 1987, letter to the Youngs' attorney from another County official acknowledged Mr. Young's demand that the permit applications be processed by the County pursuant to the pre-1986 criteria and referenced a meeting which had taken place with the Youngs' attorney in late July. That correspondence noted that all concerned persons had been properly and adequately noticed that all outstanding Monroe County land clearing and building permit applications would be null and void effective September 15, 1986, (although the date was later extended), requiring re-submission. The letter noted that since no one on

    behalf of the Youngs had responded to the County's February 25, 1985, letter requesting a response from the applicants to the biologist's concerns and recommendation of denial of the permit applications, the open files were effectively closed as of October 1, 1986. That letter pointed out that the applicants had never responded to the County's itemization of specific concerns which must be addressed by the applicant before a decision could be reached.

    The letter noted that the writer had advised Mr. Young on that date telephonically that his applications would be processed pursuant to the pre-1986 law due to their submission date, but that statement had been made to Mr. Young before the writer reviewed the file and discovered that the applicant had never responded to the County's request for specific information to alleviate the County's specified concerns. The conclusion of the letter was that the applications were governed by the 1986 comprehensive plan and land development regulations "unless there is new evidence to the contrary and/or the County Attorney deems otherwise." The letter suggested a meeting.

    
    

16. On October 8, 1987, the County Attorney authored a memorandum advising the County Administrator that after hearing the recitation of facts and chronology by the Youngs' attorney and by Robert [sic] Young, and since the file had never been "closed," the applications could be treated under "the new or the old laws." No legal authority is recited for that conclusion; rather, the memorandum specifies that the County Attorney's opinion is based on the facts recited to him by the Youngs and their attorney.

    
    

17. Thereafter, representatives of the Youngs and the County met to negotiate the permit applications. The Youngs submitted a Habitat Evaluation Index study. The Youngs agreed to leave buffer zones on the property and promised not to sue the County.

    
    

18. The County issued the three permits in question on March 14, 1988. The permits reflect that the Youngs paid the permit application fees on that date (although the applications show the fees were paid on January 4, 1985).

    The conditions for the permit were set forth on Permit No. 8810000446 relating to Lot 1. The other two permits only recited that they were subject to the same stipulations as were typed on the permit for Lot 1.

    
    

19. The permit conditions call for maintaining a buffer zone of 25 feet, approval of the location of the buffer zone by the County biologist prior to clearing, and transplanting of protected trees on site, if possible, or to other sites, if not, with the principal concern being for Thatch Palms. The permit also recited that it was a site preparation permit for the purposes of establishing a nursery and that in no event would cars associated with the adjacent flea market be allowed to utilize the site for parking. Lastly, the permit required that either the owner or "associated parties utilizing the property" would submit a site plan for the proposed nursery for review within six months and that the business use of the property was subject to relevant occupational license requirements.

    
    

20. On the following day, the County biologist visited the site and marked the buffer zones. As soon as he finished doing so, the Youngs began clearing the property and continued clearing until they received the Notice of Appeal filed by the Department which initiated this proceeding.

    
    

21. The term "buffer zone" used in the permit conditions is synonymous with the term "open space ratio," which is usually expressed in terms of percentage. The percentage expressed in the open space ratio represents the percentage of land area that must remain in its natural condition. The permit

    for Lot 1 requires an open space ratio of approximately 35 percent. The permit for Lots 25 and 26 requires an open space ratio of approximately 25 percent.

    The permit for Lots 6, 7, 8 and 9 requires an open space ratio of approximately

    22 percent.

    
    

22. When the new Monroe County comprehensive plan and land development regulations went into effect in 1986, they contained specific provisions which recognized pre-existing rights, so that an applicant or a permit holder for a single-family detached dwelling could go forward with such a project under the less restrictive regulations which were in effect prior to the 1986 plan. The Youngs' applications for clearing permits do not include proposed construction of a single-family detached dwelling and do not fall, therefore, within the parameters of the "grandfathering" provisions which apply only to single-family detached dwellings.

    
    

23. When the new Monroe County comprehensive plan and land development regulations went into effect in 1986, they contained specific provisions which recognized "vested rights." Pursuant thereto, a process was established for a property owner to follow if that owner claimed to have a vested right to proceed with a project under the less restrictive regulations which were in effect prior to the new 1986 Plan. Under the vested rights provision, an application for vested rights was required to have been filed within one year of the effective date of the new regulations, or the alleged vested rights were deemed to be abandoned. The Youngs never applied for vested rights. By the time the subject permits were issued on March 14, 1988, the application deadline to file for vested rights already had expired.

    
    

24. The Youngs did not submit a site plan for their nursery when they applied for the three land clearing permits. Monroe County did not require the Youngs to submit a site plan prior to issuing the permits in 1988, and the Youngs have never submitted a site plan to Monroe County.

    
    

25. The subject parcels have a habitat value to the Florida Key Deer, which is an endangered species endemic, i.e., unique, to the Florida Keys. The property is adjacent to and part of a corridor for movement of the Florida Key Deer and is critical to the deer's migration and breeding needs. The deer feed on the berries and new shoots of various plants on the site. They also drink from the fresh water wetlands which are on the property.

    
    

26. The land clearing authorized by the issuance of the permits will have an adverse effect on natural resources, especially the functional integrity of the pinelands and the Florida Key Deer. The extensive clearing and small perimeter buffer areas provided by the permits will destroy important vegetation listed as endangered or threatened and will negatively impact the Florida Key Deer which roam through the property and feed on many plants on site. Although the Youngs suggest that at least some of the property is fenced so it is not used by the Key Deer, the presence of deer tracks and deer droppings, and the evidence of grazing by the deer negate that suggestion. Further, the permit conditions do not protect and maintain the fresh water wetlands areas which serve as a drinking water source for the Key Deer.

    
    

    CONCLUSIONS OF LAW

    
    

27. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57(1), Florida Statutes.

28. In determining whether the land clearing permits issued to Respondents Young by Respondent Monroe County comport with the requirements of Chapter 380, Florida Statutes, the threshold issue to be determined is which law applied to the Youngs' applications for land clearing permits, that is, whether Monroe County should have applied the Comprehensive Plan and Land Development Regulations which became effective September 15, 1986, or whether Monroe County should have applied the pre-1986 criteria to those applications. The Department and the Youngs have stipulated that if Monroe County was required to apply the new Land Development Regulations and Comprehensive Plan which became effective in 1986 (hereinafter "the 1986 Code") to those applications, or the current Code, the requirements of the 1986 Code and the current Code have been violated by the issuance of the permits, and that the permits have, therefore, been illegally issued in violation of Chapter 380, Florida Statutes. Specifically, the parties have stipulated that under the "new" regulations, the permits violate the open space ratio requirements limiting clearing to 40 percent and violate other requirements, including vegetative indexes. Under the 1986 Code and current Code, therefore, the permits are invalid, and the parties have stipulated to certain conditions being imposed.

    
    

29. The Department's position is that the law to be applied is the law in effect when the permits were issued on March 14, 1988. The Youngs argue that the law to be applied is the law that was in effect when the applications were filed on January 4, 1985. The law in Florida is well settled that when a change in the law occurs during the pendency of an application, that change in the law is operative as to the application so that the law as changed, rather than as it existed at the time the application was filed, determines whether the application should be granted. See, for example, Lavernia v. Dept. of Professional Regulation, Bd. of Medicine, 616 So.2d 53 (Fla. 1st Dist. 1993); Bruner v. Bd. of Real Estate, Dept. of Professional Regulation, 399 So.2d 4 (Fla. 5th Dist. 1981); City of Boynton Beach v. Carroll, 272 So.2d 171 (Fla. 4th Dist. 1973). Under the general law, the Department's position is correct, Monroe County should have applied the 1986 Code, and the permits were illegally issued.

    
    

30. One exception has been carved out of the general rule allowing an application to be reviewed under the law in effect at the time it was filed where the permitting authority has unreasonably delayed its decision on an application until after the law has changed. The Youngs argue that Monroe County did so delay its decision on their applications, bringing them under this exception. The facts in this case provide no support for that argument. The delay between the filing of the applications and the issuance of the permits was caused solely and completely by the Youngs, and none of the delay involved can be attributed to Monroe County.

    
    

31. The applications were filed January 4, 1985. Monroe County referred those applications to its biologist for review and recommendation. On February 1, 1985, the County's biologist issued his report containing an in-depth analysis of the project, the site, and the regulations controlling those applications. That report recommended that the applications be denied for six specific reasons and also included three other areas of specific concern. On February 25, 1985, Monroe County forwarded to the Youngs a copy of that report, advising the Youngs that the recommendation of the biologist was that the applications be disproved as submitted. That letter advised the Youngs that they must respond to the report, specifically the nine specified areas of concern, before Monroe County could make a decision regarding those applications. The Youngs never responded to that request.

32. It is true that on February 26, 1985, the Youngs' attorney wrote to the author of the County's February 25 letter, noting that the County would send him a copy of the report so that the Youngs could modify their applications to eliminate the objections and demanding that the County advise the Youngs specifically as to what changes would need to be made in their applications. Since the County did send a copy of the report which outlined with specificity the problems with the applications which needed to be addressed, the County had already complied with that demand, and the letter from the Youngs' attorney the day after that information was provided was superfluous. The County had already told him what changes needed to be made; yet, no changes were ever made. Mr. Young also testified that when he received the biologist's report, he went to see the biologist to ask what he needed to do, and the biologist told him that if he would change the applications so that the application was to grow native plants, the biologist would look more favorably on those applications. Neither the Youngs nor anyone on their behalf ever submitted any changes to those applications.

    
    

33. On February 28, 1986, Monroe County adopted its Comprehensive Plan and Land Development Regulations. Still, the Youngs failed to respond to the County's February 25, 1985, letter. Monroe County's new Land Regulations and Comprehensive Plan went into effect on September 15, 1986. Still the Youngs failed to respond to the February 25, 1985, letter from the County. Likewise, the Youngs failed to take advantage of the provisions in the new law which allowed them to apply for a determination as to whether they had a vested right to have their applications determined under the old law. The window for making such an application closed, and any possible vested right was abandoned by operation of law.

    
    

34. On March 26, 1987, Mr. Young went to the County Building Department to advise the County that he wanted to amend at least one of the applications to develop a parking lot for the flea market rather than a nursery. It was then that Monroe County discovered that the application files were still classified as open files. His visit was followed by a letter from his attorney which referred to the applications as being applications for clearing and for parking.

    
    

35. Thereafter, the Youngs, their attorney, and Monroe County officials attended to the applications, with the County first taking the position that when the new law came into effect all pending applications had become null and void but the County was willing to review the Youngs' applications although the review would be done under the new law. The County attorney then wrote a memorandum containing no analysis of the law but opining that based on the facts told to him by the Youngs, their applications could be determined under either the old law or the new law. Thereafter, it is uncontroverted that the issuance of permits was negotiated between the Youngs and Monroe County, the Youngs were required to provide a Habitat Evaluation Index study which was required only under the new law, and the permits were issued on March 14, 1988.

    
    

36. Since it was the Youngs who caused the delay in the County's processing of their applications by failing to respond to the County's request for information and by failing to address the applications from February, 1985, through March of 1987, the facts do not bring the Youngs within the exception to the general rule of which law applies. Their applications, therefore, should have been reviewed under the 1986 Code, and the parties have stipulated that those applications did not comply with the 1986 Code and, therefore, did not comply with Chapter 380, Florida Statutes, and the permits were, therefore, illegally issued.

37. Even if the pre-1986 Code were applicable, the Youngs' applications for land clearing permits did not comply with that law for several reasons. First, Section 18-19(a)(6) of the pre-1986 Monroe County Code requires an applicant for a land clearing permit to include in the permit application:

    
    

    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 in (3), shall be included.

    
    

    The Youngs did not submit a site plan as part of their permit applications and have never done so. The Youngs argue that a site plan was not needed since they were going to totally clear the parcels in question and, therefore, could have just submitted a blank piece of paper as a site plan. That argument ignores the stated purpose of the site plan which is to include specific information on overall development activity, not just clearing, and demonstrates the steps taken to minimize the effects of clearing on surrounding vegetation and water bodies.

    
    

38. Section 18-18(c) of the pre-1986 Monroe County Code sets forth requirements for land clearing permits and provides as follows:

    
    

    (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.

    
    

    The record in this cause also reveals that Monroe County only issued land clearing permits in conjunction with permitting for the activity for which the land was to be cleared. The evidence further reveals that most nurseries are retail operations requiring some type of infrastructure on-site, such as plant sheds, offices, driveways for vehicles transporting plants and trees off-site, irrigations systems, loading and unloading areas, and parking. As the Youngs failed to submit a site plan showing how they intended to develop the lots, they failed to disclose how the property would be developed and used, and Monroe County did not comply with this section of the Code in issuing land clearing permits which were not in conjunction with other permits required for the intended use. By failing to require the Youngs to submit a site plan which may have revealed the other types of permits which would have been needed, Monroe County issued the land clearing permits in violation of this Section of the pre- 1986 Monroe County Code.

    
    

39. Section 18-21 of the pre-1986 Monroe County Code provides as follows:

    
    

    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. In the event a request is denied, the reasons for denial shall be noted on the application form and the applicant shall be so notified.

    
    

    The record in this cause reveals through uncontroverted testimony that the land clearing authorized by the permits will have an adverse impact on natural resources, especially the functional integrity of the pinelands and the Florida Key Deer, contrary to the requirements of Section 18-21. The evidence is uncontroverted that the buffer zones required by Monroe County when it issued these permits were minimal at best, were insufficient to protect the habitat of the Key Deer, and were only esthetic. There was no report submitted, and no finding was made by the County that the narrow buffer zones would serve to protect the endangered and threatened species of plants and trees, would maintain the fresh water wetlands areas which serve as a source of drinking water for the Key Deer, or would preserve the Key Deer habitat.

    
    

40. Sections 18-18, 18-19, and 18-21 of the pre-1986 Code must be read in conjunction with Section 18-17 which expresses the intent of that portion of the Code relating to land clearing permits and which provides that the intent of that Section of the Code regulating the clearing of land is "[t]o promote and encourage the protection of unique and biologically important natural resources

    . . . ." The permits issued by Monroe County do not fulfill that intent. The Youngs argue that by attaching conditions to the permits that were issued Monroe County minimized the impacts of the clearing of the lots. The Youngs offered no evidence in support of that argument.

    
    

41. The thrust of that argument, and the main argument offered by the Youngs, is that the permits were issued as a result of settlement negotiations and that the Youngs and Monroe County were satisfied with the final product of those negotiations. Indeed, the evidence is uncontroverted that Monroe County and the Youngs believed that they had entered into a good settlement. However, whether the settlement was a good one bears no relationship to the issue of whether the permits that were issued complied with the law. It is clear that they did not.

    
    

42. The Youngs argue that the permits involved herein are exempt from review under Section 380.07, Florida Statutes, because of the exception in Section 380.04(3)(e), Florida Statutes, for the use of land for agricultural purposes. That argument is without merit. The evidence is uncontroverted that the lots in question have a GU zoning designation which allows agricultural use, that a nursery use allows the on-site sale of plants and not just the growing of plants, that the pre-1986 Monroe County Code itself distinguished between agricultural use and nursery uses and treats nursery use as a business type of use, and that a nursery use is not authorized for a GU zoning category. Because Monroe County did not require the submission of a site plan, and because Monroe County did not require that the land clearing permits be issued only in conjunction with other permitting required for the activity for which the land would be used, and because both the applications for permit and the permits themselves indicated that the Youngs would be operating a nursery, the Youngs have shown no entitlement to the exemption offered by a different type of use,

    that is, an agricultural use. Since nursery use is authorized in BU-1-0 districts pursuant to Section 19-216.3 of the pre-1986 Code and are not authorized in GU districts pursuant to Section 19-180 of the pre-1986 Code, the permits authorizing the Youngs to clear the land and operate a nursery in a GU district were illegal. The Youngs have shown no entitlement to the exemption, and the evidence in this cause reveals that they are not so entitled.

    
    

43. The cases relied upon by the Youngs and the arguments made by them regarding changes in zoning laws do not apply to this cause since the land in question lies within an Area of Critical State Concern, which contemplates a different regulatory scheme requiring not only local approval for the permits in question but also State approval. Further, those arguments and cases do not apply in a situation such as this where the 1986 Code specifically provided to the Youngs an opportunity to obtain a determination of their vested rights to have their application reviewed under the pre-1986 regulations. Section 8-301, et seq., of the 1986 Code provided that the Youngs had one year in which to seek a determination that their applications be judged under the prior law or any vested rights would be deemed abandoned. The Youngs did not do so, and they had no vested rights to have the pre-1986 law applied to their applications.

    Lastly, case law relied upon by the Youngs herein involved disputes where the applications for permits complied with the law when they were filed, contrary to the facts in this case.

    
    

44. The parties have stipulated that the permits involved in this cause did not comply with the 1986 Code or the current Code and were therefore illegally issued if that later law applies. It has been concluded in this Recommended Order that the 1986 Code is the law that applies. Even if the pre- 1986 law applied, Monroe County did not follow that law and the permits issued in this cause were issued illegally and do not comport with the requirements of Chapter 380, Florida Statutes. Since the permits are illegal under either the former law or the later law, Section 380.07, Florida Statutes, requires the consideration of conditions and restrictions to be attached to the permits. The Youngs and the Department have stipulated that the following conditions should apply:

    
    

    1. Lots 6 and 7 may be cleared with the exception of the present 30 foot buffer (natural) area which is adjacent to the western lot line of lots 6 and 7. There will be no disturbance, mowing, or clearing of this buffer area. (Lots 6 and 7 are two of the four parcels which are the subject of Permit No. 8810000450.)

       
       

    2. Lots 8 and 9 will remain in their natural state. Exotic vegetation will be kept out and only native vegetation will be allowed to re-vegetate. (Lots 8 and 9 are the other two of the four parcels which are the subject of Permit No. 8810000450.)

       
       

    3. There will be no objection to a nursery use on the cleared (non-buffer) areas of lots 6 and 7. No new development will be allowed without additional permits.

       
       

    4. The permits for lots 1, 25, and 26 are deemed null and void. (Lot 1 is the subject parcel of Permit No. 8810000446. Lots 25 and 26 are the subject parcels of Permit No. 8810000449.)

    
    

45. The foregoing conditions are appropriate and should be approved by the Florida Land and Water Adjudicatory Commission; however, they are not, alone, sufficient since they would still allow the planting of ficus benjamina which

has been designated as an undesirable exotic species pursuant to the Coastal Zone Conservation and Protection Element of the Monroe County Comprehensive Plan and Land Development Regulations. Accordingly, an additional condition should be imposed which prohibits the planting of ficus benjamina and allows the Youngs to plant only species native to the Florida Keys.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered:

1. Declaring Monroe County Land Clearing Permits Nos. 8810000446 and 8810000449, which authorized the clearing of lots 1, 25, and 26 in Tropic Island Ranchettes Subdivision of Big Pine Key, null and void.

   
   

2. Approving Monroe County Land Clearing Permit No. 8810000450 subject to the additional conditions found in paragraphs numbered 44 and 45 of this Recommended Order.

   
   

   DONE and ENTERED this 1st day of February, 1995, at Tallahassee, Florida.

   
   

   LINDA M. RIGOT

   Hearing Officer

   Division of Administrative Hearings The DeSoto Building

   1230 Apalachee Parkway

   Tallahassee, Florida 32399-1550

   (904) 488-9675

   
   

   Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 1995.

   
   

   APPENDIX TO RECOMMENDED ORDER

   
   

   1. Petitioner's proposed findings of fact numbered 2-14, 16, and 20-22 have been adopted either verbatim or in substance in this Recommended Order.

   2. Petitioner's proposed findings of fact numbered 1, 15, and 17-19 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony.

   3. Respondent Youngs' proposed findings of fact numbered 4-8, 12, 20, 22, 25, 29-32, 35, 36, and 40 have been adopted either verbatim or in substance in this Recommended Order.

   4. Respondent Youngs' proposed findings of fact numbered 16, 18, 23, 24, 33, and 38 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony.

   5. Respondent Youngs' proposed findings of fact numbered 1-3, 9, 10, 14, 15, 19, 21, 26, 37, 39, and 41-43 have been rejected as being irrelevant to the issues involved in this proceeding.

   6. Respondent Youngs' proposed findings of fact numbered 11, 13, 17, 27, 28, and 34 have been rejected as not being supported by the weight of the competent, credible evidence in this cause.

COPIES FURNISHED:

David Paul Horan, Esquire Horan, Horan & Esquinaldo 608 Whitehead Street

Key West, Florida 33040

Karen Brodeen, Esquire Department of Community Affairs 2740 Centerview Avenue

Tallahassee, Florida 32399-2100

Gregory C. Smith, Esquire Counsel to FLWAC

The Capitol, Room 209 Tallahassee, Florida 32399-0001

Randy Ludacer, Esquire Monroe County Attorney

500 Whitehead Street

Key West, Florida 33040

Robert B. Bradley, Secretary Florida Land and Water

Adjudicatory Commission Office of the Governor The Capitol

Tallahassee, Florida 32399-0001

Dan Stengle, General Counsel Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 88-003451

Orders for Case No: 88-003451