STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF COMMUNITY AFFAIRS, )

)

Petitioner, )

)

vs. ) CASE NO. 92-2957DRI

) DAVID AND FLORENCE CLARK, Owners, ) EDWARD WARREN WERLING, Contractor,)

and MONROE COUNTY, a political ) subdivision of the State of ) Florida, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on October 15, 1992, in Key West, Florida.

APPEARANCES

For Petitioner: Lucky T. Osho, Esquire

David Jordan, Esquire 2740 Centerview Drive

Tallahassee, Florida 32399-2100

For Respondents, David and Florence

Clark: David and Florence Clark, pro se 4606 Wayne Road

Corona Del Mar, California 92625

For Respondent,

Edward Warren Werling: No Appearance

For Respondent,

Monroe County: Robert L. Herman

Director of Growth Management Monroe County, Florida

5100 College Road

Key West, Florida 33040 STATEMENT OF THE ISSUE

Whether Building Permit No. 9210003952 issued by Monroe County, Florida, to David and Florence Clark as owners and Edward Warren Werling as contractor for the construction of a canal front vertical bulkhead and dock as a structural accessory to a single family dwelling is contrary to the provisions of Chapter

380, Florida Statutes, the Monroe County Comprehensive Plan and the Monroe County Land Development Regulations.

PRELIMINARY STATEMENT

Petitioner timely filed its appeal to the Florida Land and Water Adjudicatory Commission challenging Monroe County's issuance of the subject building permit pursuant to Section 380.07, Florida Statutes. The parties stipulated that the project lies in an Area of Critical State Concern.

At the formal hearing, Petitioner presented the testimony of Kenneth Metcalf and of Curtis Kruer, and it introduced two exhibits. Mr. Metcalf was accepted as an expert in land use planning and administration of the Florida Keys Comprehensive Plan and Land Development Regulations. Mr. Kruer was accepted as an expert in aerial photographic interpretation, marine biology, and prop dredging in the Florida Keys. Respondents presented the testimony of Robert L. Herman and David Clark. Respondents presented three exhibits. All exhibits offered by the parties were accepted into evidence.

Following the time for the filing of post-hearing submittals, Respondents, through Robert L. Herman, filed a letter addressed to the undersigned with certain attachments. The undersigned thereafter filed a "Notice of Ex Parte Communication." Petitioner filed its written "Objection to Request for Judicial Notice" which objected to the attachments being considered by the undersigned in the preparation of the Recommended Order in this proceeding. While Mr. Herman was not the attorney of record for Monroe County, he attended the hearing as Monroe County's representative, and the undersigned construes the letter from Mr. Herman to be a request to supplement the record on behalf of the Respondents. Therefore, the attachments to Mr. Herman's letter are considered to be supplemental authority in support of Respondents's arguments, but not as exhibits in this proceeding. Likewise, the supplemental authority attached to Petitioner's "Objection to Request for Judicial Notice" will be considered as supplemental authority in support of Petitioner's arguments.

A transcript of the proceedings has not been filed. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the hearing. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the hearing. Rule 60Q-6.031, Florida Administrative Code. Rulings on the parties' proposed findings of fact may be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the state land planning agency charged with the responsibility to administer the provisions of Chapter 380, Florida Statutes, and the regulations promulgated thereunder. Petitioner has the authority to appeal to the Florida Land and Water Adjudicatory Commission any development order issued in an area of critical state concern.

   
   

2. Monroe County is a political subdivision of the State of Florida, and is responsible for issuing development orders for development in unincorporated Monroe County. Monroe County issued the development order that is the subject of this appeal.

   
   

3. Respondents, David and Florence Clark, are the owners of real property known as Lot 90, Holly Lane, Section F, Sugarloaf Shores, Florida (Lot 90). Sugarloaf Shores is a legally platted subdivision. The Clarks were, at the time

   of the formal hearing, constructing a single family dwelling on that property. The building permit for the construction of the dwelling is not at issue in this proceeding.

   
   

4. Most of Monroe County, including the subject property, is within the Florida Keys Area of Critical State Concern as designated under Sections 380.05 and 380.0552, Florida Statutes.

   
   

5. There is an extensive man-made canal system throughout Sugarloaf Shores subdivision that is several miles in length, is between six and ten feet in depth, and is approximately sixty feet in width. The subject permit is for construction where Lot 90 fronts this canal system and involves construction beyond the mean high water mark onto submerged lands.

   
   

6. On January 17, 1992, Monroe County issued the subject building permit, Permit Number 9210003952, to David and Florence Clark as owners and Edward Warren Werling as contractor. The subject permit authorizes the construction of a vertical bulkhead designed to limit erosion together with a docking facility with davits and access to the canal system. Most of the neighboring lots in the vicinity of the project have vertical bulkheads with docking facilities. The bulkhead is desirable to prevent erosion of the canal bank at Lot 90 and pollution of the canal waters. The requested development would give the Clarks safe access to the canal and provide private boating facilities.

   
   

7. Pursuant to the provisions of Sections 380.05 and 380.0552, Florida Statutes, Monroe County has adopted a comprehensive plan which complies with the Principles of Guiding Development found at Section 380.0552(7), Florida Statutes. Section 380.0552(7), requires Monroe County's land development regulations to comply with certain Principles For Guiding Development, including the following:

   
   

   (b) To protect shoreline and marine resources, including mangroves, coral reef formations, seagrass beds, wetlands, fish and wildlife and their habitat.

   * * *

   (e) To limit the adverse impacts of development on the quality of water throughout the Florida Keys. ...

   
   

8. Monroe County's comprehensive plan, which has been approved by the Petitioner and by the Administration Commission, is implemented through its adopted land development regulations, codified in Chapter 9.5, Monroe County Code. Section 9.5-345(m)(2), Monroe County Code, provides as follows:

   
   

   (2) All structures on any submerged lands and mangroves shall be designed, located and constructed such that:

   * * *

   1. No structure shall be located on submerged land which is vegetated with sea grasses except as is necessary to reach waters at least four

      (4) feet below mean low level for docking facilities;

   2. No docking facility shall be developed at any site unless a minimum channel of twenty (20) feet in width where a mean low water depth of at least minus four (4) feet exists;

9. Section 9.5-4(W-1), Monroe County Code, provides as follows: (W-1) "Water at least four (4) feet below mean

   sea level at mean low tide" means locations that

   will not have a significant adverse impact on off- shore resources of particular importance. For

   the purposes of this definition, "off-shore resources of particular importance" shall mean hard coral bottoms, habitat of state or federal threatened and endangered species, shallow water areas with natural marine communities with depths at mean low tide of less than four (4) feet, and all designated aquatic preserves under Florida Statutes section 258.39 et seq.

   
   

10. Section 2.104, Nearshore Waters, Monroe County Comprehensive Plan, Volume II, Future Land Use Element, provides, in pertinent part, as follows:

    
    

    The Florida Keys are dependent on nearshore water quality for their environmental and economic integrity. The heart of the Florida Keys economy, the means by which Monroe County

    exists as a civil and social institution, is based on its unique oceanic character. If nearshore water quality is not maintained, then quality of life and the economy of Monroe County will be directly and immediately impacted.

    1. OBJECTIVES

       1. To protect, maintain and, where appropriate, to improve the quality of nearshore waters in Monroe County.

       * * *

    2. POLICIES

       1. To prohibit land use that directly or indirectly degrade nearshore water quality.

       * * *

       1. To prohibit the development of water dependent facilities, including marinas, at locations that would involve significant degradation of the biological character of submerged lands.

       2. To limit the location of water-dependent facilities at locations that will not have a significant adverse impact on off-shore resources of particular importance. For the purposes of this policy, off-shore resources of particular importance shall mean hard coral bottoms, habitat of state or federal threatened and endangered species, shallow water areas with natural marine communities with depths at mean low tide of less

       than four (4) feet, and all designated aquatic preserves under Florida Statutes section 258.39 et seq.

       
       

11. Benthic communities exist in Sugarloaf Sound, such as rock-hard bottom, sea grasses, algae, and hard coral. Turtles, manatees, sharks, stingrays, eagle rays, snapper, pink shrimp, mullet, and other marine animals populate the Sound. Sea grass beds play an important role in water quality maintenance in the Keys through filtration, nutrient uptake, stabilization of the bottom, and as a habitat for commercially important species.

    
    

12. The canal system for Sugarloaf Shores subdivision does not have access to deep water without crossing shallow sea grass beds with depths of less than four feet at mean low water. The operation of motor driven boats may result in damage to sea grass beds and shallow water marine communities through prop dredging. Although there is evidence of prop dredging in parts of Sugarloaf Sound in these shallow areas, it was not shown that the damage was done by boats traveling from the Sugarloaf Shores canal system and deep water. Whether a boat that may be docked at some future time if the permit is granted will cause damage to some portion of Sugarloaf Sound is speculation.

    
    

13. Since 1986, Monroe County has adopted an interpretation of Section 9.5-345(m)(2), Monroe County Code, and of Section 2.104, Nearshore Waters,

    Monroe County Comprehensive Plan, Volume II, Future Land Use Element, that would permit the construction of the subject project. That interpretation permits the development of marginal seawalls, vertical bulkheads and docks in subdivisions that were under development in 1986 if there is at least four feet of water at the terminal point of the dock at mean low tide. The dock that is the subject of this proceeding would, if permitted, terminate in water of at least six feet in depth at mean low tide. Monroe County's interpretation of the so-called "four foot rule" is that the rule was intended to restrict the development of boating access facilities in new, undeveloped subdivisions and to regulate proposed expansion of existing marinas and the development of new marinas.

    Monroe County's interpretation of its rules is that a vertical bulkhead and dock built on an individual family home-site, where a dwelling was already built or under construction, would have minimal effect on the nearshore water environment of critical state concern. Monroe County considers the subject application by the Clarks to meet all of its permitting criteria.

    
    

14. The subject project has received an exemption from permitting from the Florida Department of Environmental Regulation and from the Florida Department of Natural Resources. The Army Corps of Engineers has agreed to issue a permit for the project with no special conditions.

    
    

15. There is no definition of "docking facility" contained within the Monroe County Land Development Regulations or the Monroe County Comprehensive Plan. It was not established that a bulkhead is a docking facility or that the construction of a bulkhead on Lot 90 should be prohibited under any of the theories advanced by Petitioner.

    
    

16. Respondents presented evidence that several similar projects were permitted at approximately the same time as the Clarks's permit without Petitioner filing an appeal. This evidence was insufficient to establish that Petitioner should be estopped to appeal the subject permit, that Petitioner engaged in selective enforcement of its regulatory power, or that Petitioner otherwise brought the subject appeal for an inappropriate purpose.

    CONCLUSIONS OF LAW1

    
    

17. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.

    
    

18. The subject appeal was timely taken by Petitioner pursuant to Section 380.07(2), Florida Statutes, from a development order of Monroe County granting the Clark's request for a building permit to construct a vertical bulkhead and dock on their residential lot on Sugarloaf Shores subdivision. Pursuant to the provisions of Section 120.57(1), Florida Statutes, the propriety of Monroe County's action was reviewed de novo. Transgulf Pipeline Co. v. Board of County Commissioners of Gadsden County, 438 So.2d 876 (Fla. 1st DCA 1983).

    
    

19. The ultimate burden of persuasion rested on the Clarks to establish their entitlement to the permit authorizing their proposed development. Young

    v. Department of Community Affairs, 567 So.2d 2 (Fla. 1st DCA 1990), and Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981).

    
    

20. Dispositive of whether the subject construction is consistent with the Monroe County land development regulations is the interpretation to be accorded Section 9.5-345(m)(2), Monroe County Code. Generally, an administrative construction of a statute by an agency responsible for its administration is entitled to great deference and should not be overturned unless clearly erroneous. Department of Environmental Regulation v. Goldring, 477 So.2d 532 (Fla. 1985); All Seasons Resorts, Inc. v. Division of Land Sales, Condominiums, and Mobile Homes, 455 So.2d 544 (Fla. 1st DCA 1984); and Sans Souci v. Division of Land Sales and Condominiums, 421 So.2d 623 (Fla. 1st DCA 1982). The same deference has been accorded to rules which have been in effect over an extended period and to the meaning assigned to them by officials charged with their administration. Pan American World Airways, Inc. v. Florida Public Service Commission, 427 So.2d 716 (Fla. 1983), and State Department of Commerce, Division of Labor v. Matthews Corp., 358 So.2d 256 (Fla. 1st DCA 1978). Moreover, the agency's interpretation does not have to be the only one or the most desirable one; it is enough if it is permissible. Pan American World Airways, Inc. v. Florida Public Service Commission, supra, and Florida Power Corp. v. Department of Environmental Regulation, 431 So.2d 684 (Fla. 1st DCA 1983). Here, no less deference should be accorded Monroe County's interpretation of its land development regulations where, as here, such interpretation is reasonable, evidences due consideration for private rights of ownership, and is not contrary to its comprehensive plan. See e.g. Thomson v. Village of Tequesta Board of Adjustment, 546 So.2d 457 (Fla. 4th DCA 1989).

    
    

21. It is concluded that Monroe County's interpretation of Section 9.5- 345(m)(2), Monroe County Code, is a permissible interpretation and that the subject development is consistent with the Monroe County comprehensive plan and land development regulations.

    
    

22. The Clarks have satisfied their burden of proof by demonstrating that the proposed construction is consistent with the Monroe County comprehensive plan and land development regulations and that they are entitled to the subject permit.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is recommended that the Florida Land and Water Adjudicatory Commission enter a

final order affirming Monroe County's decision to issue building permit number 9210003952, and dismissing the appeal filed by the Department of Community Affairs.

DONE AND ORDERED this 30th day of December, 1992, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 December, 1992.

ENDNOTE

1/ The undersigned has adopted, in large part, the conclusions of law reached by Hearing Officer William J. Kendrick in the Recommended Order filed in Department of Community Affairs v. George H. Sands, et al., DOAH Case No. 91- 3472DRI (June 12, 1992).

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-2957DRI

The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner.

1. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, 7, 9, and 10 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraph 8 are rejected as being unsubstantiated by the evidence. The record established that the mean low water depths were between 1 and 3 feet, which is consistent with the findings that the mean low water depths were less than four feet. The proposed findings in the last sentence of paragraph 8 are rejected to the extent they are contrary to the findings made.

3. The proposed findings of fact in the first and second sentences of paragraph

   11 are either adopted by the Recommended Order or they are subordinate to the findings made. The proposed findings of fact are rejected to the extent they are contrary to the findings made.

4. The proposed findings of fact in paragraph 12 are either adopted by the Recommended Order or they are subordinate to the findings made.

5. The proposed findings of fact in paragraph 13 are subordinate to the findings made.

The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent.

1. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, and 8 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraphs 6, 7, 9, 10, 11, 12, and 13 are subordinate to the findings made.

COPIES FURNISHED:

Lucky T. Osho, Esquire Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

David & Florence Clark 4606 Wayne Road

Corona Del Mar CA 92625

Edward Warren Werling Post Office Box 1042

Summerland Key, Florida 33042

Randy Ludacer, Esquire Monroe County Attorney

1. Fleming Street

   Key West, Florida 33040

   
   

   William R. Kynoch, Deputy Director Florida Land and Water Adjudicatory

   Commission

   Executive Office of the Governor

2. Carlton Building Tallahassee, Florida 32301

Carolyn Dekle, Director

South Florida Regional Planning Council Suite 140

3400 Hollywood Boulevard

Hollywood, Florida 33021

Robert Herman

Monroe County Growth Management Division Public Service Building, Wing III

5825 Jr. College Road Stock Island

Key West, Florida 33040

Linda Loomis 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.

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA

LAND AND WATER ADJUDICATORY COMMISSION

DEPARTMENT OF COMMUNITY AFFAIRS, )

)

Petitioner, )

) FINAL ORDER NO. LW-93-015

vs. ) CASE NO. APP-92-007

) DOAH CASE NO. 92-2957DRI DAVID and FLORENCE CLARK Owners, )

EDWARD WARREN WERLING, Contractor, )

and MONROE COUNTY, a political ) subdivision of the State of Florida, )

)

Respondents. )

)

FINAL ORDER

This cause came before the Governor and Cabinet sitting as the Florida Land and Water Adjudicatory Commission, ("Commission") on March 23, 1993, pursuant to Chapter 380.07, Florida Statutes, for consideration of a Recommended Order issued by the Division of Administrative Hearings in the above-ref erenced proceedings. Based on a review of the record in this matter, the Commission voted unanimously to adopt the Findings of Fact, and accept in part and reject in part the Conclusions of Law set forth in the Recommended Order dated December 30, 1992.

In this case, the Clarks applied to Monroe County for a permit to construct a vertical bulkhead and a docking facility with davits and access to the canal system off of their property in a Sugar loaf Key Subdivision. The area is within the Florida Keys Area of Critical State Concern. The Department of Community Affairs ("DCA" or "Petitioner") appealed Monroe County's grant of the permit to construct the dock to this Commission.

It is hereby ordered that the application for a building permit is conditionally DENIED, however once there are channel markers to open water which

are approved by the Department of Natural Resources ("DNR"), the permit may be granted by the County.

RULING ON PETITIONER'S EXCEPTIONS

The Petitioner argues that the Hearing Officer wrongly interpreted S. 9.5- 345(m), Monroe County Code ("M.C.C." or "Code") which states:

(m) Mangroves and Submerged Lands:

(2) All structures on any submerged lands and mangroves shall be designed, located and constructed such that:

1. No structure shall be located on submerged land which is vegetated with sea

   grasses except as is necessary to reach waters at least four (4) feet below mean low level for docking facilities;

   
   

2. No docking facility shall be developed at any site unless a minimum channel of twenty

(20) feet in width where a mean low water depth of at least minus four (4) feet exists;

The Petitioner states it was wrong to conclude that the proposed dock complies with the Code and the Hearing Officer was wrong to defer to Monroe County's interpretation of their Code. Specifically, it alleges that Conclusions 20 and

21 are in error.

Under s.380.97(4), Florida Statutes, the Commission can specify conditions under which a permit can be granted, specifically:

(4) The Florida Land and Water Adjudicatory Commission shall issue a decision granting or denying permission to develop pursuant to the standards of this chapter and may attach conditions and restrictions to its decisions.

Here, the permission to develop is conditioned on channels to open water being marked and DNR's approval of those channel markers.

In Petitioner's exceptions filed with the Commission, it stated:

The Department respectfully requests FLWAC to reject the Hearing Officer's construction of s.9.5-345(m), M.C.C. and to conclude that the channel required by s.9.5-345(m), M.C.C., must extend to open water. (Pet. Ex. p.8)

The DCA further asked that the Commission enter an order which "states that there are no changes to the development proposal which would make it eligible to receive approval." (Pet. Exc. p.12)

Secretary Linda Shelley, in her presentation before the Commission, asked for the permit conditionally to be denied as follows:

[W]e are asking you to deny the permit, but when you do that under Chapter 380, Florida Statutes, you must specify the conditions which would warrant an approval in the future, so we're asking you to deny this permit with the condition being that once there are channel markers to open water this and other similar permits may be granted. (See Transcript)

After discussion pertaining to DNR's involvement, Secretary Shelley's request was later amended to include DNR approval of markers. This was moved by Commissioner Castor, seconded by Treasurer, and passed unanimously.

We find that the Secretary's request, insofar as it differs from that which was filed earlier by the DCA, supersedes it. Specifically, while we reject the Hearing Officer's construction of the Code, 1/ we do not "conclude that the channel required by s.9.5-345(m), M.C.C., must extend to open water" as DCA originally requested, but rather that "there are channel markers to open water" as the Secretary had requested, before the permit can be granted. To grant the exception as originally phrased would require that in order for the Clarks to receive their permit there would need to be a twenty foot wide, four foot deep channel to open water and the Commission does not-find that is necessary.

Therefore, the Petitioner's exception, as it was modified by the Secretary at the Commission hearing, is partially GRANTED, as follows: 1) Conclusions of Law 20, 21 and 22 are rejected; 2) Conclusions of Law 17, 18 and 19 are accepted; and 3) the permit is conditionally DENIED, but the Commission specifies that the County may approve the building permit at issue if there are channel markers to open water, and provided that those channel markers are approved by DNR.

We also note that Section 9.5-345(m)(2) of the Code should be written to protect the resources that the Florida Keys Area of Critical State Concern was designated to protect. The Principles for Guiding Development require that land development regulations "...protect shoreline and marina resources, including... seagrass beds, wetlands, fish and wildlife and their habitat" Section 380.0552(7)(b), Florida Statutes (1991); and "...limit the adverse impacts of development on the quality of water throughout the Florida Keys." Section 380.0552(7)(e), Florida Statutes (1991). The Commission urges Monroe County and the Department to amend s.9.5-345(m)(2) of the Code in a manner that will clearly protect the marine resources of the Florida Keys.

This brings us to the second exception, that the Hearing Officer erred in giving deference to Monroe County's interpretation of the land development regulations over DCA's interpretation of those same regulations.

The statutes provide that the County must have the approval of the DCA before land development regulations are effective. Section 380.0552(9), Florida Statutes, provides that:

(9) Any land development regulation or element of a local comprehensive plan in the Florida Keys Area may be enacted, amended, or rescinded by a local government, but the

enactment, amendment, or rescission shall become effective only upon the approval thereof by the state land planning agency.

While the regulation at issue has been approved by DCA, the interpretation urged by the County and accepted by the Hearing Officer has not been approved.

The key question here is not that an agency responsible for administering the regulations should be given great deference, unless clearly erroneous: that maxim of law is well-established. See Department of Environmental Regulation, et al. v. Goldring, 477 So. 2d 532 (Fla. 1985). The question here is, should that agency be Monroe County?

We find that, in this case, the interpretation urged by the County and accepted by the Hearing Officer should not have received deference. It is contrary to the plain meaning of the regulations. Therefore, it was error to defer to that "agency's" interpretation.

We also note that DCA is charged with reviewing and approving the regulations in question, and with administering the state's program in areas of critical state concern. DCA has the duty to approve rules, as here, and its approval under Chapter 9J-14, F.A.C. "breathes life" into the comprehensive plan and land development regulations. DCA is the agency which should receive deference when weighing various interpretations of the Florida Keys Area of Critical State Concern rules and regulations.

However, deference to an agency interpretation cannot justify a construction which is clearly contradictory to the unambiguous language of the land development regulation. Kearse v. HRS, 474 So. 2d 819 (Fla. 1st DCA 1985). DCA should have required that the County clearly provide that docking facilities which extend to shallow areas and which may endanger resources such as sea beds, shall not be allowed even if the dock "reaches" to areas of four feet or more in depth unless there are marked channels to open waters. DCA should use its authority as the state land planning agency to assure that the land development regulation is amended in order to properly protect the marine resources of the Florida Keys Area of Critical State Concern. Section 380.0552(9), Florida Statutes (1991).

The Commission also finds error in the Hearing Officer's reliance on the Recommended Order in Department of Community Affairs v. George H. Sands, et al. The Sands case is of no precedential authority in this case, or in any other case, as it was voluntarily dismissed by the DCA on September 8, 1992. The Commission specifically took no action on the Sands Recommended Order. It is not applicable here nor of any precedential value.

Therefore, we reject the Hearing Officer's conclusions that the County's interpretation should be given deference. However, since we also find that DCA's interpretation is contrary to the plain meaning of the regulations we cannot say that its interpretation should always receive deference.

Accordingly, this Commission GRANTS Petitioner's exception on the limited issue of whether the County's interpretation should be given deference.

WHEREFORE, this Commission hereby amends the Hearing Officer's Recommended Order dated December 30, 1992, as reflected in the granting of Petitioner's exception above. Otherwise, this Commission adopts the Recommended Order including the Findings of Fact and both adopts and rejects the Conclusions of Law set forth in the Recommended Order as described above. The Commission

hereby enters this Final Order DENYING Monroe County's decision to issue building permit number 9210003952. However, in compliance with section 380.08(3), F.S., the Commission specifies that once there are markers to open water which are approved by DNR, the permit may be granted by the County.

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 of the Commission, Office of Planning and Budgeting, Executive Office of the Governor, Room 311 Carlton Building, 501 South Gadsden Street, Tallahassee, Florida 32399-0001; and by filing a copy of the Notice of Appeal, accompanied by the applicable filing fees, with the appropriate District Court of Appeal.

Notice of Appeal must be filed within 30 days of the day this Order is filed with the Clerk of the Commission.

DONE AND ORDERED, 7th day of April 1993, in Tallahassee, Florida.

David K. Coburn, Secretary Florida Land and Water Adjudicatory Commission

FILED with the Clerk of the Florida Land and Water Adjudicatory Commission this 7th day of April 1993.

Clerk, Florida Land and Adjudicatory Commission

ENDNOTE

1/ We reject the Hearing Officer's interpretation of the Code for the reason that he did not specifically find that how it applied in this case, rather, he improperly gave deference to the County's interpretation that the Code provisions at issue, were "not contrary to its comprehensive plan" and that "the subject development is consistent with the Monroe County comprehensive plan and land development regulations." (Conclusions of Law 20 and 21)

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by United States Mail to the parties listed below this 7th day of April 1993.

DAVID K. COBURN, Secretary Florida Land and Water Adjudicatory Commission

The Honorable Lawton Chiles Governor

210, The Capitol

Tallahassee, Florida 32399-0001

David and Florence Clark 4606 Wayne Road

Corona De Mar, California 92625

Carolyn Dekle, Director

South Florida Regional Planning Council 3400 Hollywood Boulevard, Suite 140

Hollywood, Florida 33021

The Honorable Robert Butterworth Attorney General

PLO1, The Capitol

Tallahassee, Florida 32399-0001

James T. Hendrick, Esquire County Attorney

317 Whitehead Street Key West, Florida 33040

The Honorable Bob Crawford Commissioner of Agriculture LL-29, The Capitol

Tallahassee, Florida 32399-0001

Robert Herman, Lorenzo Aghemo Monroe County Growth Management Division

Public Service Building, Wing III 5100 College Road

Key West, Florida 33040

The Honorable Gerald Lewis Comptroller

2001, The Capitol

Tallahassee, Florida 32399-0001

Lucky T. Osho, Esquire Assistant General Counsel Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

The Honorable Tom Gallagher Treasurer

LL-27, The Capitol

Tallahassee, Florida 32399-0001

The Honorable Betty Castor Commissioner of Education LL-24, The Capitol

Tallahassee, Florida 32399-0001

Edward Warren Werling Post Office Box 1042 Summerland, Florida 33042

The Honorable Jim Smith Secretary of State

LL-10, The Capitol

Tallahassee, Florida 32399-0001

Claude Arrington, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Florida Administrative Law Report Post Office Box 385

Gainesville, Florida 32602

================================================================= DISTRICT COURT OPINION

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

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

MONROE COUNTY, a political NOT FINAL UNTIL TIME EXPIRES TO

subdivision of the State of FILE MOTION FOR REHEARING AND Florida; RONALD LACROIX and DISPOSITION THEREOF IF FILED. PATRICIA LACROIX; and DAVID

GOODRIDGE, CASE NO. 93-1427 AND 93-1626 LOWER TRIBUNAL NO. APP 92-007

Appellants,

vs.

DEPARTMENT OF COMMUNITY AFFAIRS and FLORIDA LAND AND WATER ADJUDICATORY COMMISSION,

Appellees.

/ Opinion filed December 14, 1994.

An appeal from an Order of the Florida Land and Water Adjudicatory Commission.

James T. Hendrick and Ralf G. Brookes of Morgan and Hendrick, Key West, for Appellant Monroe County; and Lloyd A. Good, Jr., Lower Sugarloaf Key, for Appellants Lacroix and Goodridge.

David L. Jordan, Deputy General Counsel, Lucky T. Osho, Assistant General Counsel, and Sherry A. Spiers, Assistant General Counsel, Tallahassee, for Appellee Department of Community Affairs; and Mark R. Schlakman, Assistant General Counsel, Tallahassee, for Appellee Florida Land and Water Adjudicatory Commission.

PER CURIAM

AFFIRMED

BOOTH, ALLEN, AND BENTON, JJ., CONCUR.

Docket for Case No: 92-002957DRI

Orders for Case No: 92-002957DRI