STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LELAND D. EGLAND, )

)

Petitioner, )

)

vs. ) CASE NO. 88-3530

)

LARGO BAYSIDE, INC., and ) STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Respondents. )

)

RECOMMENDED ORDER

This matter was held by William R. Dorsey, Jr., the Hearing Officer designated by the Division of Administrative Hearings, on November 3, 1988. Proposed findings of fact and conclusions of law have been submitted the Department of Environmental Regulation, and a general statement of position has been submitted by Mr. Egland. Rulings on proposed findings of fact and conclusions of law are made in the appendix to this recommended order.

APPEARANCES

For Petitioner: Leland D. Egland, pro se

13340 North Calusa Club Road Miami, Florida 33186

For Respondent: Michael Halpern, Esquire Largo Bayside, 209 Duval Street

Inc. Key West, Florida 33040

For Respondent: Richard Grosso, Esquire Department of 2600 Blair Stone Road Environmental Tallahassee, Florida 32399-2400 Regulation

STATEMENT OF THE ISSUES

The issue is whether Largo Bayside, Inc., is entitled to a permit to alter mangroves on property it owns in Key Largo, Florida.

BACKGROUND

At hearing, Largo Bayside, Inc., introduced exhibits 1 and 2 and presented the testimony of Burt Poppeliers and Arthur Wiener. The Department of Environmental Regulation introduced DER exhibits 1 and 2 and offered the testimony of David Bishof. Mr. Egland testified on his own behalf and offered the testimony of David Ettman. Mr. Egland also introduced exhibits 1 through 6 into evidence. No transcript of the proceedings has been filed.

FINDINGS OF FACT

1. Largo Bayside, Inc., owns a condominium development located in Key Largo, Florida. There is a water body immediately outside the condominium units which is bounded by the mangrove berm which is approximately 4 acres in size. Florida Bay is on the other side of the berm. The view of Florida Bay is, to some extent, obstructed by the mangroves. Largo Bayside proposes to trim an area of mangroves in the center of the berm that is approximately two acres wide down to a height of 13 feet above grade, in order to provide its condominium owners with an improved view of Florida Bay.

   
   

2. The berm's forest is 95 percent black mangroves. There are some red mangroves on the edges of the berm. The black mangroves are highest near the shore, and at the north end of the berm where they are approximately 25 feet high. About one half of the mangroves are not above the proposed trimming height of 13 feet.

   
   

3. There is some wildlife at the site, but there is no nesting community of birds. Boat traffic from a nearby marina on Key Largo tends to keep birds from nesting there, although they do roost there. The proposed trimming will change the structural diversity of the mangrove forest which could result in a slight reduction in the diversity of the fauna. There is no reason to believe that there would be fewer birds roosting the mangroves after trimming.

   
   

4. The applicant has agreed to a number of special conditions which the Department proposed on April 22, 1988, which will mitigate any environmental damage resulting from the trimming. These include:

   
   

   1. No alteration shall occur within a

      120 feet of the north property line or within the section of the mangrove forest within 100 feet of the dock along the northeast side of the marina. This

      limits the trimming to the entire mangrove forest, but will permit improved visual access for all of the condominium units.

   2. There shall be no alteration of red mangroves, nor of any mangrove with an unaltered height of 20 feet or greater.

   3. Mangroves will be trimmed to height of 13 feet above grade.

   4. The pruning shall be limited to those branches and mangrove trunks less than 2 inches in diameter.

   5. all large branches, stems and limbs will be removed by hand from the forest after trimming to greatest extent practical. Fallen leaves and small trim debris will remain on the forest floor and all trimming shall be done by hand.

      
      

5. By accepting the buffer zones along the north property line and the dock along the northeast side of the marina, Largo Bayside has given up the ability to exercise an exemption from the mangrove alteration rules, Rule 17- 27.060(2), Florida Administrative Code, which would have allowed it to trim all the mangroves to 75 percent of their original height. The permit that the Department proposes to issue allows some trees to be trimmed to less than 75

   percent of their original height, but prohibits red mangroves from being trimmed. On balance, the extent of the mangrove alteration permitted is much less than what would have been allowed if Largo Bayside had merely exercised the exemption that is available to it.

   
   

6. The mangrove alteration will have no impact on water quality or an adverse impact on fish or other wildlife.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(l), Florida Statutes (1987).

   
   

8. Mangrove alteration requires a permit from the Department of Environmental Regulation issued pursuant to Chapter 17-27, Florida Administrative Code, unless the mangrove trimming meets the exemption requirements set out in Rule 17-27.060, Florida Administrative Code. No permit is required for selective trimming of mangroves by the owner of a parcel of property when not more than 25 percent of the plant material in lower half of the canopy of any red mangrove forest is cut, or no more than 25 percent of the lateral limbs or other lateral branches of black or white mangroves are cut, if no tree under 6 feet in height is cut. Rule 17-27.060(2)(a) and (c), Florida Administrative Code. Rather than exercise the option to cut the mangroves under this exemption, the applicant has submitted a plan to the Department which will allow the mangroves in the center of the forest to be trimmed to a height of 13 feet above grade, with the special conditions set out in the findings of fact.

   
   

9. By accepting these conditions, Largo Bayside, Inc., has provided the Department of Environmental Regulation with reasonable assurance that the project will not result in violation of any water quality standards, Rule 17- 27.050(1)(a), Florida Administrative Code. Moreover, by accepting the special conditions that it would not otherwise be required to accept under the exemption provision of the rule, the project is clearly in the public interest. Rule 17- 27.050(1)(b), Florida Administrative Code. It will not disturb any nesting, resting or breeding area for any community of birds, Rule 17-27.050(6), Florida Administrative Code.

   
   

10. The project site is located within an outstanding Florida water, and the alteration is needed to allow condominium owners reasonable visual access to Florida Bay. Rule 17-27.050(7), Florida Administrative Code.

RECOMMENDATION

It is recommended that the Secretary of the Department of Environmental Regulation enter a final order issuing Permit 441398145 to Largo Bay Side, Inc., to trim mangroves adjacent to its property with the special conditions contained in the Notice of Intent to Issue which had been served on the applicant on April 22, 1988.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 20th day of January, 1989.

WILLIAM R. DORSEY, JR.

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1050

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 20th of January, 1989.

APPENDIX

The following are my rulings on the proposed findings of fact submitted by the petitioners pursuant to Section 120.59(2), Florida Statutes (1987). Rulings on DER's proposed findings of fact.

1. Covered in finding of fact l.

2. Covered in finding of fact 1.

3. Covered in finding of fact 1.

4. Covered in finding of fact 4b.

5. Covered in finding of fact 4a.

6. Covered in finding of fact 5.

7. Covered in finding of fact 6.

8. Covered in finding of fact 3.

COPIES FURNISHED:

Leland D. Egland

13340 North Calusa Club Road Miami, Florida 33186

Michael Halpern, Esquire

209 Duval Street

Key West, Florida 33040

Richard Grosso, Esquire

State of Florida, Department of Environmental Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400

Dale H. Twachtmann, Secretary State of Florida, Department of

Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

Daniel H. Thompson, Esquire General Counsel

State of Florida, Department of Environmental Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400

Docket for Case No: 88-003530

Orders for Case No: 88-003530