STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF COMMUNITY AFFAIRS, )

)

Petitioner, )

)

vs. ) CASE NO. 92-6166DRI

) DANIEL and BETSY JONES, Owners, )

and RUSSEL D. MOORE, General ) Contractor; and MONROE COUNTY, ) a political subdivision of the ) State of Florida, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came to be considered on the "Stipulation and Waiver of Administrative Hearing" filed by the parties on February 12, 1993, and on the Order Vacating Order Closing File entered May 3, 1993. This Recommended Order is being entered pursuant to said stipulated facts and without benefit of a formal hearing. The following appearances were made on behalf of the parties:

APPEARANCES

For Petitioner: Lucky T. Osho, Esquire

David Jordan, Esquire 2740 Centerview Drive

Tallahassee, Florida 32399-2100

For Respondents, J. Daniel Jones and Betsy C. Jones

J. Daniel Jones 2515 Nela Avenue

Betsy C. Jones: Orlando, Florida 32809

For Respondent,

Russell D. Moore: No Appearance

For Respondent,

Monroe County: No Appearance

STATEMENT OF THE ISSUES

Whether Building Permit No. 9210004557 issued by Monroe County, Florida, to Daniel and Betsy Jones as owners and Russell D. Moore 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. Thereafter, the parties waived the right to a formal administrative hearing, stipulated to the facts that are found herein, and agreed that the dispositive issues are identical to those contained in the case of Department of Community Affairs v. David Clark, et al., DOAH Case No. 92-2957DRI. Following the filing of that stipulation, FLWAC rejected certain conclusions of law that were reached in Clark, supra. Consequently, the conclusions of law reached herein and the recommended disposition of this matter differ from the Conclusions of Law and Recommendation contained in the Recommended Order filed by the undersigned in Clark, supra. Neither party submitted a proposed recommended order in this matter.

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, Daniel and Betsy Jones, are the owners of real property known as Lot 27, Section D (ext. to Hibiscus Lane), Sugarloaf Shores, Florida (Lot 27). Sugarloaf Shores is a legally platted subdivision. The Jones 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 27 fronts this canal system and involves construction beyond the mean high water mark onto submerged lands.

   
   

6. On June 26, 1992, Monroe County issued the subject building permit, Permit Number 9210004557, to Daniel Jones and Betsy Jones as owners and Russell

   D. Moore 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 27 and pollution of the canal waters. The requested development would give the Jones 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 Jones 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 27 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 Jones'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 LAW

    
    

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 Jones'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. In Department of Community Affairs v. David Clark, et al., DOAH Case No. 92-2957DRI, the Florida Land and Water Adjudicatory Commission resolved the legal issues presented in this proceeding based on facts that cannot be distinguished from the facts of this proceeding.

    
    

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)d., Monroe County Code, which provides as follows:

    
    

    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;

21. In Clark, supra, the general rule of construction was recognized that 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. The undersigned concluded in Clark, supra, that deference should be given to Monroe County's long-standing interpretation of its Code and Land Development Regulations. FLWAC rejected that conclusion and concluded that deference should be given to Petitioner's interpretation of Monroe County's Code and Land Development Regulations because of Petitioner's responsibilities under Chapter 380, Florida Statutes. FLWAC also concluded in Clark that deference should not be given to Monroe County's interpretation of the regulation that the Clark project could be permitted since the dock would terminate in the canal that runs throughout the subdivision. In reaching that conclusion, FLWAC found that Monroe County's interpretation was contrary to the plain meaning of the regulations.

    
    

22. The Petitioner initially urged an interpretation that the project could not be permitted unless the channel upon which the dock was situated terminated in a channel that led to deep water. FLWAC also found that interpretation to be "contrary to the plain meaning of the regulations . . .".

    
    

23. Thereafter, FLWAC accepted an interpretation urged by DCA Secretary Shelley during oral argument that the permit be conditionally denied with the condition that the permit be granted once there are channel markers to open water. Secretary Shelley's request was later amended to include the requirement that the channel be approved and marked by the Department of Natural Resources.

    
    

24. The Commission's Final Order in Clark, supra, did not address whether the bulkhead, absent the dock, could be constructed. It is concluded, in the absence of any argument or evidence to the contrary, that the construction of the bulkhead meets all permitting criteria.

    
    

25. To be consistent with the Final Order entered in the Clark appeal, supra, FLWAC should enter a Final Order which conditionally denies the permit and which specifies that once there are marked channels to open water approved by the Department of Environmental Protection (the successor agency to the Department of Natural Resources) the permit should be granted.

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 which approves the construction of the bulkhead. It is further recommended that the Final Order conditionally deny the permit, but specify that the County may approve the building permit at issue if there are channel markers to open water marked and approved by the Florida Department of Environmental Protection.

DONE AND ENTERED this 11th day of June, 1993, 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 11th day of June, 1993.

COPIES FURNISHED:

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

Tallahassee, Florida 32399-2100

J. Daniel and Betsy Jones 2515 Nela Avenue

Orlando, Florida 32809

Russel D. Moore Route #5, Box 600

Big Pine Key, Florida 33043

Randy Ludacer, Esquire Monroe County Attorney

1. Fleming Street

   Key West, Florida 33040

   
   

   David K. Coburn, Secretary

   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 ten 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,

vs. CASE NO. APP-92-040

DOAH CASE-NO. 92-6166DRI

DANIEL and BETSY JONES, Owners,

and RUSSEL D. MOORE, General 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 (the "Commission"), on August 24, 1993, pursuant to Chapter 380 Florida Statutes, and pursuant to a Recommended Order dated June 11, 1993 issued by the Division of Administrative Hearings. Based on a review of the record in this matter, the Commission voted 1/ to adopt the Findings of Fact and reject and accept the Conclusions of Law in the Recommended Order as described below.

Petitioner, the Department of Community Affairs (the "Department" or "DCA") timely appealed Monroe County's (the "County") grant of a permit to construct a vertical bulkhead and a dock at a single family dwelling owned by Respondents, Daniel and Betsy Jones ("Jones"). The parties waived the right to a formal administrative hearing and stipulated that their case would be disposed of according to the conclusions of law entered by the Hearing Officer in Department of Community Affairs v. Clark, FLWAC Case NO. APP-92-007. However, in that case, we accepted in part and rejected in part those conclusions, and so the Hearing Officer entered a Recommended Order according to this Commission's Final Order in Clark. No exceptions to the Recommended Order have been filed.

The Hearing Officer found:

1. 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.

2. 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 approxi- mately sixty feet in width. The subject per- mit is for construction where Lot 27 fronts this canal system and involves construction beyond the mean high water mark onto submerged lands.

3. On June 26, 1992, Monroe County issued the subject building permit, Permit Number 9210004557, to Daniel Jones and Betsy Jones as owners and Russell D. Moore 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 Respondent, of the neighboring lots in the vicinity of the project have vertical bulk- heads with docking facilities. The bulkhead is desirable to prevent erosion of the canal bank at Lot 27 and pollution of the canal waters. The requested development would give the Jones safe access to the canal and provide private boating facilities.

Relevant here are also the Principles for Guiding Development, section 380.0552(7), Florida Statutes, and sections of the Monroe County Code ("M.C.C.") which regulate the construction of docking facilities, and protect nearshore

waters and offshore resources. See sections 9.5-345(m)(2); 9.5-4(W-1), M.C.C., and section 2.104, Nearshore Waters, Monroe County Comprehensive Plan, Vol. 11, Future Land Use Element.

The Hearing Officer made a recommendation in this case on the basis of Clark. However, unlike Clark, the Hearing Officer concluded that the bulkhead met all permitting criteria. We agree with this finding and likewise note the absence of any argument or evidence to the contrary. There is also benefit to the vertical bulkhead as it will limit erosion and pollution.

Further, based on Clark, the Hearing Officer found that the dock permit should be denied pending the existence of marked channels to open water which would have to be approved by the Department of Natural Resources. 2/

During argument before the Commission, the Secretary of the Department of Environmental Protection ("DEP"), Virginia Wetherell, gave a status report on the channel marking program. She stated that the DEP and other local, state and federal agencies had made progress, particularly in the area of Sugarloaf Shores where the Jones' house is located. Petitioner Daniel Jones also presented photographs and argument that an adjacent property owner had applied for and had received a permit to build the same kind of bulkhead and dock that Jones wants to build.

Limited to the facts of this case and based on the presentations of the DEP, the argument of the parties and considering the equities, we conclude that the permit granted by the County to construct a vertical bulkhead and dock should be affirmed. 3/

WHEREFORE, the Commission hereby adopts the Findings of Fact in the Hearing Officer's Recommended Order dated June 11, 1993, and Conclusions of Law 17, 18,

20, 21, 22, 23 and 24. Conclusions of Law 19 and 25 are rejected. The Commission hereby enters this order AFFIRMING Monroe County's decision to issue building permit number 9210004557 as to dock construction and construction of a vertical bulkhead.

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, this 22nd day of September 1993, in Tallahassee, Florida.

Teresa B. Tinker for

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

FILED with the Clerk of the Florida Land and Water Adjudicatory Commission this 22nd day of September 1993.

Patricia P. McCray

Clerk, Florida Land and Water Adjudicatory Commission

ENDNOTES

1/ The vote was 4-2.

2/ Since the adoption of Clark, the Department of Natural Resources has merged with the Department of Environmental Regulation and is now known as the Department of Environmental Protection.

3/ The channel marking program is critically important to preserving the natural resources of the Keys. Presentations to this Commission have uniformly supported channel markings and we encourage local, state and federal agencies to continue cooperation and to complete this program as soon as possible.

4/ The acceptance of conclusion of law 24 is limited to the facts of this case regarding construction of bulkheads to limit or prevent erosion.

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 22nd day of September 1993.

Teresa B. Tinker for

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

The Honorable Lawton Chiles Claude B. Arrington, Governor Hearing Officer

210, The Capitol Division of Administrative Tallahassee, Florida 32399-0001 Hearings, The DeSoto Building

1230 Apalachee Parkway

The Honorable Robert Butterworth Tallahassee, Florida 32399- Attorney General 1550

PL01, The Capitol

Tallahassee, Florida 32399-0001 Administrative Law Report

Post Office Box 385

The Honorable Bob Crawford Gainesville, Florida 32602

Commissioner of Agriculture

LL-29, The Capitol Robin S. Hassler, Esquire Tallahassee, Florida 32399-0001 Counsel, FLWAC

Room 210, Capitol

The Honorable Gerald Lewis Tallahassee, Florida 32399-

Comptroller 0001

2001, The Capitol

Tallahassee, Florida 32399-2100 Lucky T. Osho, Esquire

Department of Community

The Honorable Tom Gallagher Affairs

Treasurer 2740 Centerview Drive

LL-27, The Capitol Tallahassee, Florida 32399-

Tallahassee, Florida 32399-0001 2100

The Honorable Betty Castor J. Daniel and Betsy Jones Commissioner of Education 2515 Nela Avenue

LL-24, The Capitol Orlando, Florida 32809

Tallahassee, Florida 32399-0001

Russel D. Moore

The Honorable Jim Smith Route 5, Box 600

Secretary of State Big Pine Key, Florida 33043 LL-10, The Capitol

Tallahassee, Florida 32399-0001 Randy Ludacer, Esquire

Monroe County Attorney

Carolyn Dekle, Director 310 Fleming Street

S. Florida Regional Key West, Florida 33040 Planning Council

Suite 140

3400 Hollywood Boulevard

Hollywood, Florida 33021

Robert Herman

Monroe Co. Growth Mang. Division Public Service Building, Wing III 5825 Jr. College Road

Stock Island

Key West, Florida 33040

Docket for Case No: 92-006166DRI

Orders for Case No: 92-006166DRI