STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF COMMUNITY AFFAIRS, )

)

Petitioner, )

)

vs. ) CASE NO. 91-7300

) CHARLES MOORMAN AND KATHLEEN ) MOORMAN, and YOUR LOCAL FENCE, )

a Florida Corporation, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on February 6, 1992, in Key West, Florida.

APPEARANCES

For Petitioner, Department of

Community Affairs: Katherine Castor, Esquire

David L. Jordan

Assistant General Counsel Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

For Respondents, Charles Moorman, Kathleen Moorman, and Your Local

Fence, Inc.: Theodore W. Herzog, Esquire

209 Duval Street

Key West, Florida 33040

STATEMENT OF THE ISSUES

At issue in this proceeding is whether a fence constructed by Charles and Kathleen Moorman (Moormans), as owners, and Your Local Fence, Inc. (Your Local Fence), as contractor, in the Big Pine Key Area of Critical County Concern, Big Pine Key, Monroe County, Florida, was contrary to the provisions of Chapter 380, Florida Statutes.

PRELIMINARY STATEMENT

By notice of violation dated September 9, 1991, petitioner, Department of Community Affairs (Department), charged that the Moormans, as owners, and Your

Local Fence, as contractor, had violated the provisions of Chapter 380, Florida Statutes, by constructing a fence within the Big Pine Key Area of Critical County Concern contrary to the provisions of the Monroe County comprehensive plan and land development regulations, and without benefit of an effective permit. As corrective action, the Department sought, among other things, the removal of the subject fence and restoration of the property. In reply, the respondents filed a request for formal hearing to contest the agency's proposed action, and the matter was referred to the Division of Administrative Hearings for the appointment of a Hearing Officer to conduct a formal hearing pursuant to the provisions of Section 120.57(1), Florida Statutes.

Upon filing with the Division of Administrative Hearings, this case was consolidated with Case Nos. 91-4110DRI, 91-5966DRI, 91-5968DRI, and 91-6603DRI, which were referrals from the Florida Land and Water Adjudicatory Commission, but which involved common issues of fact and law. On April 29, 1992, an order severing this case from the other cases was entered.

At the consolidated hearing, the Department called as witnesses: Kenneth Metcalf, accepted as an expert in comprehen-sive planning, and Peter Kalla, accepted as an expert in Biology. Testifying on behalf of the respondents in this case, as well as the individual respondents in the consolidated cases, were: Charles Moorman, James Daniels, Nicholas Hornbacher, Jean Hornbacher, Raymond McRae, and Rosemarie McRae. Department exhibits 1-7, Moorman exhibits 1-5, Hornbacher exhibit 1, and McRae exhibits 1-6 were received into evidence.

At the conclusion of the hearing, the record was held open to allow the Department an opportunity to review its records and to address certain issues raised by the Moormans through the taking and filing of a post-hearing deposition of Kenneth Metcalf. Such deposition was taken on February 6, 1992, filed with the Division of Administrative Hearings on February 24, 1992, marked as Department Exhibit 8, and received into evidence.

The transcript of hearing was filed March 9, 1992, and the parties were granted leave until March 19, 1992, to file proposed findings of fact. The Department elected to file such proposals, and they have been addressed in the appendix to this recommended order.

FINDINGS OF FACT

Background

1. Petitioner, Department of Community Affairs (Department), is the state land planning agency charged with the responsibility of administering and enforcing the provisions of Chapter 380, Florida Statutes, including Areas of Critical State Concern, and all rules promulgated thereunder.

   
   

2. Monroe County is a local government within the Florida Keys Area of Critical State Concern designated by Section 380.0552, Florida Statutes, and is responsible for the implemen-tation of, and the issuance of development orders that are consistent with, the Monroe County comprehensive plan and land development regulations, as approved and adopted in Chapters 9J-14 and 28-20, Florida Administrative Code. Most of Monroe County, including the Big Pine Key Are of Critical County Concern discussed infra, is contained within the Florida Keys Area of Critical State Concern.

   
   

3. Respondents, Charles and Kathleen Moorman (Moormans) are the owners of Lots 15, 16, and half of Lot 17, Block D, Pine Heights Subdivision, Big Pine

   Key, Monroe County, Florida. Such property is located within the Big Pine Key Area of Critical County Concern, as well as the Florida Keys Area of Critical State Concern, and consists of native pine lands, which are natural habitat for the Key Deer.

   
   

4. Respondent, Your Local Fence, Inc. (Your Local Fence), is a business engaged in constructing fences in Monroe County, and is owned by Mr. Moorman.

   
   

5. On March 20, 1991, Monroe County issued to the Moormans, as owners, and Your Local Fence, as contractor, building permit No. 9110002231 to construct a fence on the foregoing property. As permitted, the fence would be constructed of wood to a height of 6 feet and, except for a setback of 25 feet, would completely enclose the Moormans' property. So constructed, the fence would measure 125 feet along the front and rear of the property and 75 feet along the side property lines for a total of 400 linear feet.

   
   

6. Pertinent to this case, the Moormans' permit was not effective until 45 days after it was rendered to the Department (the "appeal period"), which period accords the Department an opportunity to review the permit and decide whether to contest its issuance by filing an appeal with the Florida Land and Water Adjudicatory Commission (FLWAC), and , if appealed, its effectiveness is stayed until after the completion of the appeal process. Section 380.07(2), Florida Statutes, and Section 9.5-115(a), Monroe County Land Development Regulations (MCLDR). Here, the Department, pursuant to the provisions of Section 380.07, Florida Statutes, filed a timely appeal with FLWAC to contest the issuance of such permit.

   
   

7. Notwithstanding the Moormans' express knowledge that their permit was not effective until expiration of the Department's appeal period and, if appealed, resolution of the appeal process, the Moormans erected the fence on their property. Such action was contrary to the provisions of the Monroe County land development regulations and Chapter 380, Florida Statutes. Sections 9.5- 111(a) and 9.5-115(a), MCLDR, and Section 380.07(2), Florida Statutes.

   
   

8. By separate recommended order to FLWAC, bearing Case No. 91-4110DRI, 91-5966DRI, 91-5968DRI, and 91-6603DRI (the "FLWAC Cases"), it was found, for reasons hereinafter discussed, that building permit No. 9110002231, issued by Monroe County for the construction of the Moormans' fence in the Big Pine Key Area of Critical County Concern was not consistent with the Monroe County comprehensive plan and land development regulations. Accordingly, it was

   recommended that FLWAC enter a final order reversing Monroe County's decision to issue such permit and to deny the Moormans' application for such permit.

   
   

   Consistency of the Moorman permit with the Monroe County comprehensive plan and land development regulations

   
   

9. Big Pine Key is the primary habitat of the Key Deer, an endangered species, and Monroe County has designated most of Big Pine Key, including the properties at issue in these proceedings, as an area of critical county concern. 1/ Pertinent to this case, Section 9.5-479, Monroe County Land Development Regulations (MCLDR), provides:

   
   

   1. Purpose: The purpose of the Big Pine Key Area of Critical County Concern is to

      establish a focal point planning effort directed at reconciling the conflict between reasonable investment backed expectations and the habitat needs of the Florida Key Deer which is listed as endangered under the Federal Endangered Species Act.

   2. Focal Point Planning Program:

      1. Monroe County shall initiate a focal point planning program for the Big Pine Key Area of Critical County Concern that considers the following:

         1. The reasonable investment backed expec- tations of the owners of land within the Big Pine Key Area of Critical Concern;

         2. The habitat needs of the Florida Key Deer;

         3. The conflicts between human habitation and the survival of the Florida Key Deer;

         4. The role and importance of freshwater wetlands in the survival of the Florida Key Deer;

         5. Management approaches to reconciling the conflict between development and the survival of the Florida Key Deer; and

         6. Specific implementation programs for the Big Pine Key Area of Critical County Concern.

      2. The focal point planning program shall be carried out by the director of planning, in cooperation with the officer in charge of the National Key Deer Refuge. The planning program shall include a public participation element, and shall provide for notice by publication of all public workshops or hearings to the owners of land within the Big Pine Key Area of Critical County Concern.

      3. The focal point planning program for the Big Pine Key Area of Critical County Concern shall be completed within twelve (12) months of the adoption of this chapter, and the director of planning shall submit a report together with recommended amendments to the Monroe County Comprehensive Plan and this chapter within thirty (30) days after the completion of the focal point planning program for the Big Pine Key Area of Critical County Concern.

   3. Interim Regulations: Notwithstanding any other provisions of this chapter, no development shall be carried out on the Big Pine Key Area

      of Critical County Concern prior to the completion of the focal point planning program required by subsection C of this section and the adoption of amendments to the Monroe County Comprehensive Plan and this chapter except in accordance with the following:

      1. No development shall be carried out in the Big Pine Key Area of Critical County Concern except for single-family detached

         dwellings on lots in the Improved Subdivision District or on lots having an area of one (1) acre of more.

         
         

         And, Section 9.5-309, MCLDR, provides:

         
         

         It is the purpose of this section to regulate fences and freestanding walls in order to protect the public health, safety and welfare.

         * * *

   4. Big Pine Key Area of Critical County Concern: No fences shall be erected here until such time as this chapter is created to provide for the regulation of fences within this ACCC.

      
      

10. The foregoing land development regulations were adopted by Monroe County to further and implement the standards, objectives and policies of the Monroe County comprehensive plan. Here, such regulations further the plan's "Generic Designations and Management Policies," contained within the plan's "Criteria for Designating Areas of Particular Concern," to maintain the functional integrity of habitat and, more particularly, the requirement that:

    
    

    Development within areas identified as Key Deer habitat shall insure that the continuity of habitat is maintained to allow deer to roam freely without impediment from fences or other development.

    
    

    Rule 28-20.020(8), Generic Designations, subparagraph 4, Florida Administrative Code.

    
    

11. Over the course of the past five years, Monroe County has discussed design criteria for fences on Big Pine Key but has not yet adopted a regulation that would provide for fences within the Big Pine Key Area of Critical County Concern, as mandated by Section 9.5-309, MCLDR, nor has Monroe County amended Section 9.5-479, MCLDR, to permit, pertinent to this case, any development except single-family detached dwellings on lots in the Big Pine Key Area of Critical County Concern. Under such circumstances, it was concluded in the FLWAC Cases, and is concluded here, that the permit issued by Monroe County for the construction of the Moorman fence in the Big Pine Key Area of Critical County Concern is not consistent with the Monroe County comprehensive plan and land development regulations.

    
    

    Other considerations

    
    

12. At hearing, Mr. Moorman offered proof that the Department had failed to appeal every fence permit issued by Monroe County in the Big Pine Key Area of Critical County Concern, and contended, as a consequence of such failure, that the Department should be precluded from contesting the issuance of his permit, or maintaining this enforcement action. Mr. Moorman's contention was not found persuasive in the FLWAC Cases, and is not found persuasive in this case.

    
    

13. Here, the proof demonstrates that the Department's Key West Field Office, to which Monroe County renders its permits, was established in 1983, and that from January 1, 1984 to September 15, 1986, the Monroe County land development regulations did not regulate fences on Big Pine Key and the Big Pine Key Area of Critical County Concern (BPKACCC) did not exist. Effective

    September 15, 1986, the Monroe County land development regulations were adopted in their current form and, among other things, created the BPKACCC and prohibited fencing within such area. Accordingly, prior to September 15, 1986, there was no prohibition against erecting fences in the BPKACCC, and no reason for the Department to question the propriety of such develop-ments.

    
    

14. Since the effective date of the current regulations, the Department has, as contended by Mr. Moorman, failed to appeal some permits for fencing in the BPKACCC. Such failure was, however, persuasively shown to have occurred as a consequence of severe understaffing, which inhibited the Department's ability to review all permits issued by Monroe County in a timely fashion (i.e., before the appeal period expired), and the breach of a memorandum of understanding entered into between the Department and Monroe County, and not as a consequence of any position adopted by the Department that fencing in the BPKACCC was permissible. Accordingly, the Department's appeal of the Moorman permit is not inconsistent with any position it has previously taken with regard to the propriety of fencing in such area. 2/ Moreover, neither the Moormans nor Your Local Fence made any inquiry of the Department as to why some permits were appealed and others were not, or requested that the Department waive its appeal period, prior to erecting their fence. Under such circumstances, it was found in the FLWAC cases, and is so found here, that the proof fails to support the conclusion that the Department misled the Moormans or Your Local Fence so as to bar it from contesting the propriety of their permit or, here, from maintaining this enforcement action. 3/

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Sections 120.57(1) and 380.11(2), Florida Statutes.

    
    

16. Pertinent to this case, Section 380.11(2)(a), Florida Statutes, authorizes the Department to institute an administrative proceeding to prevent, abate or control a condition or activity that violates the provisions of Part I, Chapter 380, Florida Statutes, or any rule promulgated thereunder. A development within an area of critical state concern that is undertaken contrary to the provisions of Chapter 380, is such an activity. Section 380.05(16), Florida Statutes.

    
    

17. Here, most of Monroe County, including the lands at issue, are located within the Florida Keys Area of Critical State Concern designated by Section 380.0552, Florida Statutes, and Monroe County has adopted local land development regulations and a local comprehensive plan that have been approved and adopted in Chapters 9J-14 and 28-20, Florida Administrative Code, as required by Section 380.05, Florida Statutes. Accordingly, development in the Florida Keys Area of Critical State Concern that is not consistent with the Monroe County comprehensive plan and development regulations is an activity subject to the remedial provisions of Section 380.11(2)(a), Florida Statutes.

    
    

18. As a prerequisite to construction, the Monroe County land development regulations provide that "No development shall occur except pursuant to a building permit." Section 9.5-111(a), MCLDR. The Monroe County land development regulations, consistent with the provisions of Section 380.07(2), Florida Statutes, further provide that where, as here, the property is located within an area of critical state concern a building permit is not effective until 45 days after rendition to the Department (the "appeal period"), and that the

    effectiveness of the permit is further stayed by the filing of a notice of appeal pursuant to Section 380.07, Florida Statutes. Section 9.5-115(a), MCLDR.

    
    

19. Here, the Department, pursuant to Section 380.07, Florida Statutes, filed a timely appeal with FLWAC to contest the issuance of the Moorman permit. Under such circumstances, the Moorman fence was erected without benefit of an effective permit, contrary to the provisions of the Monroe County land development regulations.

    
    

20. Regarding the propriety of Monroe County having issued the permit in the first instance, it was concluded in the FLWAC Cases that the issuance of such a permit for the construction of a fence in the Big Pine Key Area of Critical County Concern was not consistent with the Monroe County comprehensive plan and land development regulations. The same conclusion prevails in the instant case.

    
    

21. Notwithstanding, it has been urged on behalf of the respondents that the Department should be barred, ostensibly equitable estopped, from contesting the propriety of Monroe County's issuance of the subject permit, or from maintaining this enforcement action, simply because it failed to appeal all such permits in the past. Such circumstances do not, however, support application of the doctrine of equitable estoppel.

    
    

22. The doctrine of equitable estoppel may be applied against the state, although only in exceptional circumstances, upon a showing of the following elements:

    
    

    . . . (1) a representation as to a material fact that is contrary to a later-asserted position; (2) reliance on that representation; and (3) a change in position detrimental to the party claiming estoppel, caused by the representation and reliance thereon.

    
    

    Tri-State Systems, Inc. v. Department of Transportation, 500 So.2d 212, 215 (Fla. 1st DCA 1986). Here, for the reasons set forth in the findings of fact, not one element of the doctrine finds support in the proof adduced at hearing. Moreover, the doctrine of equitable estoppel will not apply to transactions forbidden by statute or that are contrary to public policy. Tri-State Systems, Inc. v. Department of Transportation, supra, and Reedy Creek Improvement District v. Department of Environmental Regulation, 486 So.2d 642 (Fla. 1st DCA 1986). Monroe County's comprehensive plan and land development regulations, having been adopted as rules in Chapters 9J-14 and 28-20, Florida Administrative Code, are accorded such deference. See State v. Jenkins, 469 So.2d 733 (Fla.

    1985), and Florida Livestock Board v. Gladden, 76 So.2d 291 (Fla. 1954). Accordingly, the doctrine of equitable estoppel will not apply, and the regulations must be applied as written. Tri-State Systems, Inc. v. Department of Transportation, supra, Boca Raton Artificial Kidney Center, Inc. v.

    Department of Health and Rehabilitative Services, 493 So.2d 1055 (Fla. 1st DCA 1986), and Reedy Creek Improvement District v. Department of Environmental Regulation, supra.

    
    

23. The circumstances considered, the decision of the Moormans, as owners, to install their fence, as well as the decision of Your Local Fence, as contractor, to install such fence on their behalf, prior to the effective date of their permit, was ill-advised, and their decision to do so was at their peril. See e.g., Boca Raton Artificial Kidney Center, Inc. v. Department of

Health and Rehabilitative Services, 475 So.2d 260 (Fla. 1st DCA 1985), and Sexton Cove Estates, Inc. v. State Pollution Control Board, 325 So.2d 468 (Fla. 1st DCA 1976).

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is recommended that the Department of Community Affairs enter a final order directing the respondents, Charles Moorman, Kathleen Moorman, and Your Local Fence, Inc., to remove the 400 linear foot fence constructed on the Moorman property, and that the respondents not construct, reconstruct, enlarge or expand a fence on the subject property unless and until such time as the Monroe County Board of County Commissioners adopts, and the Department of Community Affairs approves, a comprehensive plan and land development regulations which specifically authorize such development. Removal of the subject fence shall occur within thirty (30) days after the entry of the final order.

RECOMMENDED in Tallahassee, Leon County, Florida, this 30th day of April 1992.

WILLIAM J. KENDRICK

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 30th day of April 1992.

ENDNOTES

1/ The Florida Key Deer is a unique species of deer listed as endangered by both the state and federal government. The official estimate of the total population of these deer is 250-300, most of which live on Big Pine Key.

Currently, the deer are dying at a steady rate of approximately 60 deer per year, while their natality rate is approximately 50 deer per year. At such rate, the deer may soon lose, it they have not already lost, their ability to survive as a species since the best available estimate of the persistence level necessary to maintain their viability as a species is 100 to 300 deer.

The primary causes of Key Deer fatalities are habitat loss and human- induced mortality. Pertinent to this case, fences are harmful to the Key Deer because the deer are extremely mobile and need all of the space afforded by Big Pine Key to survive. Fences prevent access to food supplies, complicate the desired mixing of the gene pool, block exit routes out of canals, and funnel the deer into undesirable locations such as roadways. Here, as previously noted, the Moorman property is located within, and surrounded by, native pine lands, which are natural habitat for the Key Deer. The erection of the Moorman fence restricts the Key Deer's access to native habitat as well as providing a barrier that could funnel the deer toward the road at the front of the Moorman property. Erection of the fence was not, however, shown to have destroyed any native

vegtation such as to require, beyond removal of the fence, restoration of the property.

2/ Moreover, as discussed in the conclusions of law, the subject regulations do not suffer any ambiguity regarding the propriety of fences within the BPKACCC that would render any contrary position taken by the Department, had there been one, of any significance.

3/ This is not the first case in which the Department has appealed one of Mr. Moorman's permits. On April 12, 1990, the Department appealed building permit no. 9010000369 issued to Mr. Moorman and Your Local Fence to erect a fence on his property for the same reasons advanced in this case. On November 14, 1990, Mr. Moorman entered into a consent agreement whereby he represented that he did not dispute the allegations in the petition appealing the issuance of such permits, and consented to the issuance of an order cancelling such permits. Mr. Moorman then went to the county, withdrew such permit and applied for a refund on it. The very next day, Mr. Moorman submitted a permit application, identical to the one that had been appealed, which resulted in the permit at issue in this proceeding. Considering the proof, it is apparent that Mr. Moorman knew some applications were not being caught by the Department, and was hoping that his new application would likewise escape scrutiny. Mr. Moorman was not, however, so fortunate, and his suggestion that he was in any manner misled by the Department is not credible.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-7300

The Department's proposed findings of fact are addressed as follows:

1. Addressed in paragraph 1.

2. Addressed in paragraph 2.

3. Addressed in paragraphs 3 and 4.

4. Addressed in footnote 3.

5. Addressed in paragraph 5.

1. Addressed in paragraphs 12-14.

2. Addressed in paragraph 7.

3. Addressed in paragraphs 2 and 9-11.

12 and 13. Addressed in footnote 1.

14. Addressed in paragraphs 12-14.

COPIES FURNISHED:

Katherine Castor, Esquire Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

David Maloney, Esquire Assistant General Counsel Office of the Governor The Capitol, Room 209

Tallahassee, Florida 32399-0001

James and Kathryn Daniels Route 3, Box 297

Big Pine Key, Florida 33043

Your Local Fence, Inc. Post Office Box 1720

Big Pine Key, Florida 33043

Theodore W. Herzog, Esquire

209 Duval Street

Key West, Florida 33040

Charles and Kathleen Moorman Route 3, Box 439

Big Pine Key, Florida 33043

Randy Ludacer, Esquire Monroe County Attorney

310 Fleming Street

Key West, Florida 33040

Nicholas and Jean Hornbacher Route 3, Box 223E

Big Pine Key, Florida 33043

Raymond and Rosemarie McRae Route 3, Box 283F

Big Pine Key, Florida 33043

Jack Osterholt, Director

South Florida Regional Planning Council Suite 140

3400 Hollywood Boulevard

Hollywood, Florida 33021

Mr. Bob Herman

Monroe County Growth Management Division Public Service Building

Wing III

5100 Junior College Road West Stock Island

Key West, Florida 33040

Linda Shelley, Secretary Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

G. Steven Pfeiffer 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: 91-007300

Orders for Case No: 91-007300