STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF COMMUNITY AFFAIRS, )

)

Petitioner, )

)

vs. ) CASE NO. 93-1316DRI

) MONROE COUNTY SCHOOL BOARD, KITTY ) WASSERMAN, BHF CORPORATION, and )

MONROE COUNTY, a political sub- ) division 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 May 13 and 14, 1993, in Key West, Florida.

APPEARANCES

For Petitioner: David L. Jordan, Esquire

Lucky T. Osho, Esquire 2740 Centerview Drive

Tallahassee, Florida 32399-2100

For Respondents: James S. Mattson, Esquire

Mattson and Tobin Post Office Box 586

Key Largo, Florida 33041-1900 Monroe County: No appearance.

STATEMENT OF THE ISSUES

Whether the development order issued by the Monroe County Board of Commissioners for the construction of an elementary school on Big Pine Key, Florida, complies with the Monroe County Land Development Regulations, the Monroe County Comprehensive Plan, and the Florida Keys Area Protection Act.

PRELIMINARY STATEMENT

This is an appeal pursuant to Section 380.07, Florida Statutes, by the Department of Community Affairs (Department) to the Florida Land and Water Adjudicatory Commission of a development order for the construction of an elementary school on Big Pine Key, Florida, which is an Area of Critical State Concern. The Board of Commissioners of Monroe County issued Resolution 482- 1992, the development order, at the request of the Monroe County School Board (School Board). The Department asserts that Monroe County's development order authorizing the construction of the proposed school should be reversed. Count I

of the Department's Petition raised allegations of inconsistency with elements of the County's comprehensive plan and the Principles for Guiding Development contained in the Florida Keys Area Protection Act, Count II alleged violations of certain Land Development Regulations (LDR's), and Count III alleged that the review by the Board of County Commissioners of the application for the development order was improper.

The Department's allegation that the development order was inconsistent with the open space calculations of Monroe County's LDRs contained in Count II was voluntarily dismissed during the second day of the formal hearing. The Department also voluntarily dismissed in the Prehearing Stipulation its allegation in Count II that an access driveway was inconsistent with Monroe County's LDRs. The only remaining issue in Count II of the petition is the allegation that the Resolution allows development in a freshwater wetland, in violation of Monroe County's LDRs.

Monroe County did not actively participate in this proceeding. Monroe County is, however, not dismissed as a party to this proceeding since it is the local government which issued the development order under appeal.

At the final hearing, the Department called as witnesses Kenneth Metcalf, James L. Quinn, Curtis Kruer, John Andrew, and David Ferrell. Mr. Metcalf and Mr. Quinn are employees of the Department and were accepted as experts in land use planning, comprehensive planning, and in the administration of the Florida Keys Area of Critical State Concern program. Mr. Kruer was accepted as an expert in biology, Keys terrestrial biology, wetland biology, and Key Deer habitat. Mr. Andrew was accepted as an expert in land acquisition planning by the U.S. Fish and Wildlife Service. Mr. Ferrell was accepted as an expert in managing endangered species. The Department tendered Exhibits 2-8, 10, 14-17,

1. (1 page), 22, 24-28, and 30, of which all but number 28 were admitted into evidence. Exhibit 28 was not admitted into evidence because it was not properly authenticated and it was not shown to be relevant.

   
   

   Respondents, Monroe County School Board, BHF Corporation, and Kitty Wasserman, called as witnesses: David Ornstein, Margaret Smith, Earl R. Rich, Robert Smith, and Kerry Highsmith. Mr. Ornstein was accepted as an expert in planning. Dr. Margaret Smith was accepted as an expert in education. Dr. Rich was accepted as an expert in ecology. Mr. Robert Smith was accepted as an expert in biology. Mr. Highsmith is an employee of the School Board and had responsibility to searching for an appropriate site for the proposed school.

   Respondents introduced Exhibits 1 through 29, and 33-36, all of which were admitted into evidence. A transcript was filed, and the parties' proposed recommended orders were due to be served July 30, 1993.

   
   

   On September 9, 1993, the Florida Supreme Court decided the case of Young v, Department of Community Affairs, 18 F.L.W. S476 (Fla. September 10, 1993).

   At their request, the parties were given until October 1, 1993, to submit briefs on the import of the Young decision. Those briefs have been considered in reaching the conclusions of law contained herein.

   
   

   There were 35 Petitions to Intervene served only four (4) working days before the hearing was scheduled to commence. Rule 60Q-2.010, Florida Administrative Code, requires intervenors to file petitions at least five (5) days before the hearing, and the 35 Petitions were deemed untimely. The intervenors were allowed to select representatives for their positions, and they were allowed to participate as members of the public. Four members of the public testified.

   A transcript of the proceedings has been filed. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 60Q-2.031, Florida Administrative Code. Rulings on the parties' proposed findings of fact may be found in the Appendix to this Recommended Order.

   
   

   FINDINGS OF FACT

   
   

   THE PARTIES

   
   

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

      
      

   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 rendered Resolution 482-1992 (hereinafter referred to as the "development order") to the Department on November 3, 1992.

      
      

   3. Respondents Kitty Wasserman and BHF Corporation are the owners of approximately 11.41 acres of land on Big Pine Key, in unincorporated Monroe County, Florida, (hereinafter referred to as "the subject property").

      
      

   4. Respondent Monroe County School Board (hereinafter referred to as "the School Board") has an option to purchase the subject property, and proposes to develop an elementary school on the subject property.

      
      

   5. The subject property is within the Florida Keys Area of Critical State Concern, as designated pursuant to Sections 380.05 and 380.0552, Florida Statutes.

      
      

      THE PROCEDURAL HISTORY OF THE DEVELOPMENT ORDER

      
      

   6. On November 27, 1991, the School Board applied to Monroe County for a conditional use permit to develop an elementary school on the subject property. On February 27, 1992, the Development Review Committee of Monroe County adopted a resolution that recommended denial of the application. On March 12, 1992, Lorenzo Aghemo, Director of Planning for Monroe County, entered Development Order 06-92, which denied the application. On July 9, 1992, the Monroe County Planning Commission entered Resolution P22-92, which denied the School Board's appeal of Development Order 06-92. On October 7, 1992, the Board of County Commissioners of Monroe County adopted Resolution 482-1992, which reversed the Planning Commission's Resolution P22-92. In a very brief order that contained no findings of fact or explication of rationale that is helpful to this proceeding, the Board of County Commissioners reversed the denial of the application as follows:

      
      

      Based on the principles of comity, this Board will respect the decision of the District School Board acting within the scope of its authority under Article 9, Section 4, of the Florida Constitution, pursuant to Section

      235.193, Florida Statutes. Accordingly, the appeal of the District School Board of Monroe County is granted and the decision of the Planning Commission is reversed.

      
      

   7. Resolution 482-1992 constitutes the subject development order. This development order allows the development of a 60,028 square foot elementary school to serve a total of 507 students on the subject property pursuant to schematic drawings referred to as School Board Development Scheme 6.

      
      

      THE PROPOSED SCHOOL

      
      

   8. The State Board of Education has approved the proposed school site on Big Pine Key. The proposed school would be constructed pursuant to the State Uniform Building Code for Public Educational Facilities as required by Section 235.26(1), Florida Statutes.

      
      

   9. The Department does not dispute that an additional elementary school is needed to serve the public school students in the Lower Keys. There is only one elementary school, and one middle school, in the 50 miles between Marathon and Key West. Both of those schools are on a single site on Sugarloaf Key. In the absence of any environmental or comprehensive planning factors, Big Pine Key would be a logical place for the construction of a new elementary school since the largest number of students that would be served by such a school live on Big Pine Key.

      
      

   10. The proposed school would serve about 260 kindergarten through 5th grade students who live on Big Pine Key, as well as about 100 students who live on the neighboring Keys, Torch and Ramrod. Recognizing the need for a new elementary school, the Board began looking for sites on Big Pine Key in late 1988. County planning staff and biologists provided technical support to the Board to assist the Board in locating a site that complied with the County's comprehensive plan and LDRs. County personnel identified 18 possible locations on Big Pine Key, including the subject property. At that time, the County was preparing a Big Pine Key Community Plan, and the site that is the subject of this proceeding was in an area identified by that plan as "Range of Location for New Community Center Including School."

       
       

   11. A critical element in siting an elementary school is proximity to the students who will attend the school. It is important that elementary schools be sited so that parents have access to, and have a close relationship with, the school in order to be supportive of their children. Ideally, elementary schools should be neighborhood schools, i.e., in the area where the children live. A rule of thumb for elementary students is for the school to be within one-half mile walking distance. Busing should not involve more than a 15 minute ride. The approximately 260 elementary students that live on Big Pine Key presently attend the overcrowded Sugarloaf Elementary School.

       
       

   12. Because of restrictions on open space, the Board reduced the size of the planned school from 760 students to 507. The Board also clustered all of the buildings on the easternmost part of the property, away from proposed north- south deer corridors. The site plan was redesigned at least six times to provide additional green space, to use pervious concrete to reduce runoff, to provide for a single access road, and to preserve small, fresh water wetlands on the site.

   13. The eastern boundary of the proposed site abuts Key Deer Boulevard. The exhibits admitted into evidence that depict Scheme 6 show an access road to the school from U.S. 1. The U.S. 1 access road has been deleted, and the only access to the proposed property would be from Key Deer Boulevard.

       
       

   14. Construction of the buildings will be concentrated on the eastern side of the parcel. Four buildings are contemplated. The academic building will be in the northeast portion of the tract and will be a two-story building 88' (east to west) x 250' (north to south). The other three buildings will be situated south of the academic building. The art, music, and physical education building will be the westernmost of these three buildings and will be 64' (east to west) x 88' (north to south). The administrative building will be the center of these three buildings and will be 70' (east to west) x 78' (north to south). The kitchen, dining, multipurpose, stage, and custodial building will be the easternmost of these three buildings and will be 112' (east to west) x 88' (north to south). Between the buildings and Key Deer Boulevard will be drive ways and parking areas. Parking and a turn around area is located south of the buildings. The proposed school will include a softball field, which will be available for after-school recreational use.

       
       

   15. The softball field will be located west of the buildings. It is contemplated that the western portion of the property will remain undeveloped. As will be discussed below, the School Board is willing to dedicate an easement across the western portion of the property (including the Wasserman tract) to be used as a north-south corridor for the movement of Key Deer.

       
       

       THE SITE

       
       

   16. The subject parcel is within the range and habitat of the Key Deer. The Key Deer is listed as a federal and state endangered species, and is endemic to the Lower Keys.

       
       

   17. With the exception of an old roadbed that crosses the property, the subject parcel is undisturbed pineland. The subject parcel includes scattered freshwater wetlands, one of which is deep enough to be a permanent source of freshwater. The subject parcel is Key Deer habitat, since it contains food and a permanent source of freshwater, and is freely accessible to the deer. Individual Key Deer have often been observed on the subject parcel. Radio collar tracking and observation of fecal pellets confirm that the Key Deer freely utilize the habitat on the subject parcel.

       
       

   18. A portion of the subject parcel is designated Suburban Residential (SR) by the Monroe County land use map, and the remainder of the proposed site is designated Suburban Commercial (SC). Public buildings can be constructed on lands designated SR only after obtaining a conditional use permit from Monroe County. For that reason, the School Board is required to obtain a conditional use permit from Monroe County for the construction of the school.

       
       

   19. Monroe County's comprehensive plan includes a chart entitled "Impact Matrix of Habitat Structure and Function," developed in the late '70s and early '80s, that was translated into a point system called a Habitat Evaluation Index ("HEI"). For pineland habitat, the primary upland habitat on Big Pine Key, there are "high" and "low" quality areas. Eight habitat parameters are evaluated for each pineland parcel, with a maximum score of 3 points per parameter. An HEI of 18-24 indicates high quality; anything below an HEI of 18 is low quality. The proposed Big Pine Key school site has an HEI of 15, making it low quality pineland.

   20. The subject parcel is located a few hundred feet north of U.S. 1 on Big Pine Key, and immediately west of Key Deer Boulevard. On the opposite side of Key Deer Boulevard from the subject property is a shopping center that includes a Winn Dixie and a bank. On the opposite side of US 1 is an Eckerds Drug Store, Scotty's Hardware, Ace Hardware, Overseas Lumber Company, a garden center, and a commercial complex. To the north, the site is bounded by a church with classroom buildings, and a one-acre, fenced compound with a water tank owned by the Florida Keys Aqueduct Authority. Only the western boundary of the site borders a parcel with vegetation on it.

       
       

   21. The proposed school site consists of two tracts; the 2.5 acre Wasserman tract and the 8.91 acre BHF tract. The Wasserman tract, on the west, is partially fenced. While there was an assertion that the owners of the Wasserman tract had the right to reestablish the integrity of the fence, the evidence established that the fence has gaps in it and that it does not currently impede the movement of Key Deer across the property. The Wasserman tract is high on the US Fish & Wildlife Service's acquisition list as a "Priority 1" parcel for a Key deer movement corridor. The Board has stated its intention, should it acquire the two parcels and build the school, to take down the fences from the Wasserman tract and make the tract perpetually available as a north-south corridor for Key Deer movement. This would make the Wasserman parcel available for Key deer movements. Should the integrity of the fence be reestablished, the removal of that fence and a perpetual easement for use of the tract would be a benefit to the Fish & Wildlife Service's corridor plan for the movement of Key Deer.

       
       

   22. The School Board has attempted to strike a compromise between siting the school on Big Pine Key and off U.S. 1, keeping it out of prime Key Deer habitat and freshwater wetlands, and locating it where the children are. The School Board considers Big Pine Key to be the best area for the school because of the number of students who live on Big Pine Key. The School Board considers the subject location to be the best potential site for the elementary school on Big Pine Key. This determination was made from an educational viewpoint and based on recommendations from biologists and planners on the County staff. If a school is to be constructed on Big Pine Key, this site is the best that the School Board could locate.

       
       

   23. The subject site is considered by the School Board to be affordable, with a purchase price, for over 11 acres, at a little over $36,000 per acre. In comparison, another site on Big Pine Key that is located on the South side of

       U.S. 1 (most of the population of Big Pine Key is North of U.S. 1), would cost

       $250,000 per acre.

       
       

   24. The School Board has invested over $100,000 in the planning process, designing site plans, traffic studies, and the like. It is estimated that the School Board will have to spend an additional $70,000 for the planning for another site. The School Board was aware of the environmental concerns surrounding this project at the subject location. The Department did not mislead the School Board into believing that the subject location was considered by the Department to be an acceptable site.

       
       

   25. There are alternative sites for the elementary school. One of the alternatives for the needed elementary school is to expand the facilities at the existing site on Sugarloaf Key. That site is surrounded by a fresh water wetland. It has both endangered Silver Rice Rats and Key Deer on and near the

       site. There are serious problems with any attempt to permit a school at the Sugarloaf Key site, and it is likely that environmental concerns and other permitting problems will arise at any alternative site in the Florida Keys.

       
       

   26. Fresh water wetlands exist on and near the subject parcel. There are about 3,000 square feet of fresh water wetlands on the entire 11.41 acre site. Site plan #6 depicts a fresh water wetland on the southeast corner of the subject tract. The greater weight of the evidence establishes that this fresh water wetland is not on the subject tract, but that it is south of the school site. This wetland is a permanent source of freshwater for Key Deer. The construction of the proposed school will degrade this wetland. The construction will either divert rainwater away from the wetland or it will drain stormwater runoff over asphalt and roadbed into the wetland.

       
       

   27. The main access road from Key Deer Boulevard shown on development scheme 6 goes through a freshwater wetland on the proposed school site. Construction of the main access road will cause the freshwater wetland to be filled.

       
       

       THE COMPREHENSIVE PLAN AND LDRS

       
       

   28. The school will be a "public building" as defined by the pertinent land development regulations.

       
       

   29. Monroe County's Comprehensive Plan and LDRs were approved by the Department, and the Administration Commission, by Fla. Admin. Rules 9J-14 and 28-29, on July 29, 1986. The Monroe County Comprehensive Plan includes a Future Land Use Element and a Terrestrial Wildlife Management Section.

       
       

   30. Monroe County's Comprehensive Plan contains goals, objectives, and policies. These terms are defined in Rule 9J-5, Florida Administrative Code, as follows.

       
       

       9J-5.003(36) "Goal" means the long-term end toward which programs or activities are ultimately directed.

       9J-5.003(61) "Objective" means a specific, measurable, intermediate end that is achievable and marks progress towards a goal. 9J-5.003(68) "Policy" means the way in

       which programs are conducted to achieve an identified goal.

       
       

   31. Section 2-103 of the Future Land Use Element of the Monroe County Comprehensive Plan provides, in pertinent part, as follows:

       
       

       The Florida Keys constitute a unique and irreplaceable natural resource of local, regional, state, national, and international value.

       * * *

       It is essential, therefore, that the natural environment of Monroe County be conserved, and where appropriate, enhanced and restored. All future actions, both

       public and private, should be carried out in a way so as to ensure that the essential

       ingredients of Monroe County character are preserved and protected for existing and future generations.

       
       

       1. Objectives

          1. To manage and control the use of land so that the natural environment of Monroe County is protected.

          
          

       2. Policies

          1. To protect natural, undisturbed lands from significant disturbance.

          2. To protect threatened and endangered species and their habitats from human activities that would expose such species to displacement or extinction.

          3. To conserve the habitat of endemic species of plants and animals.

          
          

   32. Section 2-106 of the Future Land Use Element of the Monroe County Comprehensive Plan provides, in pertinent part, as follows:

       
       

       The Key's hammocks and other upland habitats also are critical habitats for a number of plants and animals of special significance, including the Key Largo Wood Rat and Cotton Mouse, the Schaus Swallowtail Butterfly and the diminutive Key Deer. Of the 74 species of plants and animals listed as state or federal threatened and endangered species, 61 use uplands as a critical part of their habitat. These species are important because they bring to the Keys an element of speciality [sic]. The uniqueness of an area is a key factor in its attractiveness, and the continued maintenance of unique Key's species serves the intuitive human need to avoid extinction of species.

       
       

       1. Objective

          * * *

          2. To protect the habitats of threatened and endangered species.

       2. Policies

          To protect upland areas that serve as habitat for threatened or endangered species

          
          

   33. Section 2-112 of the Future Land Use Element of the Monroe County Comprehensive Plan provides, in pertinent part, as follows:

       
       

       A principal focus of Monroe County's Comprehensive Plan is the capacity of the natural and built environment of the Florida Keys to accommodate future growth and development. At the core of this focus is an understanding that the geophysical

       characteristics of the Keys limit its future opportunities for economic growth and development.

       * * *

       A. Objectives

       1. To manage growth within the environmental and economic capabilities of the Florida Keys.

       2. To ensure that future development is consistent with the long term functional integrity of the natural resources of the Florida Keys.

          
          

   34. The Terrestrial Wildlife Management Policies section of the Monroe County Comprehensive Plan states that:

       
       

       1. In order to conserve and wisely manage the Keys' wildlife resources, the County will conscientiously direct its efforts toward the protection and improvement of wildlife habitats throughout the Keys.

          1. Development activities which may degrade, destroy, or severely impact productive areas for wildlife will be required to assess possible means and, to the extent practicable, adopt protective measures for abating these impacts on wildlife populations and habitat.

          2. Recognizing that each wildlife group has its own requirements and tolerances, the adequacy of protective measures will be evaluated for each individual species occupying the habitat.

             * * *

             1.4 Planning, design, siting and construction of public capital improvements and facilities such as roads, solid waste disposal sites, and utility lines and structures will be carefully regulated to minimize impact on wildlife habitat and movement patterns.

       2. The County will exert special protective efforts regarding the preservation of rare, endemic, endangered, or threatened species as identified by Federal and State agencies and the habitat required to support these species in the coastal zone.

       1. Intensive development will be directed away from the habitat of rare, endemic, endangered or threatened species.

       * * *

       2.4 Any major development project, public or private, will be reviewed to assess its impact on wildlife species of special concern in regard to the habitat, breeding, and

       feeding characteristics of such species. Adequate protective measures will be required to forestall potentially adverse impacts.

       
       

   35. The Terrestrial Wildlife Management Policies Section of the Monroe County Comprehensive Plan also provides that:

       
       

       4. The County will encourage and support scientific studies related to wildlife management in the Keys and will utilize the recommended management principles in the deliberations concerning the impacts of various land uses upon the wildlife resources of the area.

       
       

   36. The Monroe County Comprehensive Plan designates the following areas as Areas of Particular Concern:

       
       

       1. Existing wildlife refuges, reserves, and sanctuaries.

       2. Known habitats of rare and endangered species as defined by the U.S. Department of the Interior, the Florida Game and Freshwater Commission, or the Florida Department of Natural Resources.

       3. Major wildlife intensive use areas such as well developed hammock communities, highly productive coastal tidelands, and mangroves.

       
       

   37. Big Pine Key, including the proposed school site, Ramrod Key, Big Torch Key, Little Torch Key, Cudjoe Key, and most of Sugarloaf Key, are within the boundaries of the area authorized for acquisition by the U.S. Government for inclusion in the Key Deer National Wildlife Refuge. The proposed school site is entirely within 1,000 feet of US Highway One, and is 1-1/2 miles south of the southernmost boundary of the Key Deer Refuge. The Department contends that because the U.S. Fish and Wildlife service wants to acquire the subject property as part of the Key Deer National Wildlife Refuge, the subject property should be considered to be within the administrative boundaries of the Refuge. This contention is rejected because the greater weight of the evidence established that the subject property is not a part of the Refuge and that the U.S. Fish and Wildlife Service currently exercises no jurisdiction over the subject property. The subject property should be considered an Area of Particular Concern because it is a known habitat of the endangered Key Deer.

       
       

       THE PRINCIPLES FOR GUIDING DEVELOPMENT

       
       

   38. The Florida Keys Area of Critical State Concern was designated in order to control the increased growth expected as a result of the construction of new bridges, the expansion of the Florida Keys aqueduct system, and other public facilities. The Florida Keys Area Protection Act requires that all state, regional, and local agencies and units of government coordinate their plans and conduct their programs consistent with the "Principles for Guiding Development".

   39. Section 380.0552, Florida Statutes, is the Florida Keys Area Protection Act. Section 380.0552(7), Florida Statutes, provide the "Principles for Guiding Development" in the Florida Keys, including the following pertinent to this proceeding:

       
       

       (c) To protect upland resources . . . freshwater wetlands, native tropical vegetation (for example . . . pinelands)

       . . . wildlife, and their habitat.

       * * *

       (i) To limit the adverse impacts of public investment on the environmental resources of the Florida Keys.

       * * *

       (l) To protect the public health, safety, and welfare of the citizens of the Florida Keys and maintain the Florida Keys as a unique Florida resource.

       
       

   40. All state, regional, and local agencies and units of government are directed to conduct their programs consistent with the foregoing Principles for Guiding Development.

       
       

   41. The availability and proximity of public facilities is desirable for development. The proposed school would make Big Pine Key a more attractive location for residential development. Indeed, the greater weight of the evidence established that the construction of the school on Big Pine Key would encourage development on Big Pine Key.

       
       

       THE KEY DEER

       
       

   42. The Key deer is listed as a federal and state endangered species. The Key Deer population is presently estimated to be between 250 and 300 animals, down from a high of 400 animals in the late 1970s. The cause of the decline in population is a combination of habitat loss, road kills, dogs, poaching, and other human-deer interactions. The Key Deer population is presently considered to be stable and the herd is considered to be healthy.

       
       

   43. The U.S. Fish and Wildlife Service has conducted a scientific study related to wildlife management in the Keys entitled the Final Land Protection Plan for the Establishment of Deer Movement Corridors (Feb. 1991). The study provides the following at page 4:

       
       

       Present and future actions to protect the Key Deer must (1) prevent the loss of essential habitat and properly manage all of the remaining protected areas; (2) prevent further fragmentation of the deer population and habitat; and (3) reduce roadkills and other adverse interactions with humans.

       Folk, Klimstra, Kruer, and Folk (1990), in their special report entitled Key Deer Accessibility to All of Big Pine Key, conclude that in order to maintain a viable herd, measures must be taken to ensure that deer have freedom of movement and access to all areas of Big Pine Key. They recommend

       the establishment of greenbelt corridors to allow the deer to safely cross U.S. Highway

       1. They also recommend the protection of lands north and south of the highway to provide for contiguous corridors.

       
       

   44. Big Pine Key, including the subject parcel, is a major wildlife intensive use area. The hub of the Key Deer population is on Big Pine Key, with approximately 60 - 70 percent of the Key Deer population concentrated on that island. Although the deer inhabit several other Keys, Big Pine Key is the most important island for the Key Deer population because it is the only island which has permanent year around sources of freshwater in different parts of the island. The Key Deer use virtually all of Big Pine Key as habitat.

       
       

   45. Development of the proposed school will cause a loss of approximately five acres of Key Deer habitat on the subject parcel, and that loss of habitat will adversely affect the viability of the Key Deer. Location of a school in this area, together with the associated recreation activity, will concentrate daily human activity on Big Pine Key. There will also be a corresponding increase in human-deer interaction and further degradation of the remaining Key Deer habitat near the school. The development of the proposed school will eliminate a portion of the habitat of an endangered species.

       
       

   46. The freshwater wetland adjacent to the southeastern corner of the subject parcel is a permanent source of freshwater for the Key Deer. The construction of the proposed school will either divert rainwater away from the wetland or it will drain stormwater over asphalt and roadbed into the wetlands. The first option will reduce the size of the freshwater wetland. The second option will degrade the water quality of the wetlands.

       
       

   47. The development of the school buildings, the parking lot, and the playing field, between the remaining deer habitat and the wetland, will not prevent the Key Deer from using the wetlands that will remain after the construction is completed. The greater weight of the evidence established that the Key Deer will cross paved areas and could locate these wetlands after constuction is completed. The greater weight of the evidence also established, however, that the construction will discourage the Key Deer from using these wetlands. There are very few naturally occurring permanent freshwater sources in the south portion of Big Pine Key, where the proposed school will be located. Removing wetlands from the system, or minimizing access to the wetlands, will create an additional level of stress by making less water available to the deer.

       
       

   48. Most of the commercial and industrial development on Big Pine Key is concentrated on or immediately adjacent to U.S. 1. This band of commercial and industrial development forms an artificial barrier to deer movement which prevents the deer from gaining access to the diversity of natural foods needed to avoid nutritional deficiencies, and breaks the deer herd into small isolated groups resulting in inbreeding. In order to maintain a viable herd, the U.S. Fish and Wildlife Service has determined that two north-south corridors providing freedom of movement across U.S. 1 are necessary in order to allow the deer freedom of movement to all parts of Big Pine Key and has recommended the establishment of movement corridors as a Key Deer management principle.

       
       

   49. The western portion of the subject parcel is part of one of the two deer movement corridors recommended by the U.S. Fish and Wildlife Service. The construction and use of the proposed school will disrupt the deer movement corridors, and obstruct the free movement of the Key Deer between the north and

       south portions of Big Pine Key. Because the buildings will be clustered on the easternmost portion of the tract, the development will impede the east and west movement of Key Deer across the property. The east-west corridor is not, however, as significant as the north-south corridor because the commercial development on the east side of Key Deer Boulevard presently impedes that corridor.

       
       

   50. There is little more that could be done to improve the site plan, or provide more mitigation to protect the habitat of the Key Deer. The School Board has done everything practicable to adopt protective measures for abating the school's impact on the Key Deer population and habitat.

       
       

       CONCLUSIONS OF LAW

       
       

   51. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.

       
       

   52. Pursuant to Young v. Department of Community Affairs, 18 F.L.W. S476 (Fla. September 10, 1993), Petitioner bears the ultimate burden of persuasion that the project is inconsistent with the Monroe County Comprehensive Plan and the Land Development Regulations as alleged in its pleadings. Issues not raised in the pleadings or in the Prehearing Stipulation filed by the parties have been waived and are not relevant to this proceeding.

       
       

   53. Section 380.031, Florida Statutes, provides the following definitions that are pertinent to this proceeding:

       
       

       1. "Developer" means any person,

          including a governmental agency, undertaking any development as defined in this chapter.

       2. "Development order" means any order granting, denying, or granting with conditions an application for a development permit.

       3. "Development permit" includes any building permit, zoning permit, plat approval, or rezoning, certification, variance, or other action having the effect of permitting development as defined in this chapter.

       * * *

       (6) "Governmental agency" means:

       * * *

       (d) Any school board . . .

       
       

   54. Section 380.04, Florida Statutes, provides the definition of the term development. The construction of the proposed school is a development in an area of critical state concern within the meaning of Chapter 380, Florida Statutes.

       
       

   55. Section 235.26(1), Florida Statutes, provides, in pertinent part, as follows:

       
       

       All public educational and ancillary plants constructed by a board . . . shall conform to the State Uniform Building Code for Public

       Educational Facilities Construction, and such plants are exempt from all other state, county, district, municipal, or local building codes, interpretations, building permits, and assessments of fees . . .

       
       

   56. The School Board argues that the exemption contained in Section 235.26(1), Florida Statutes, makes it unnecessary for the subject development to comply with pertinent Monroe County land development regulations. This contention is rejected because the cited provision pertains only to construction standards. That provision does not exempt school boards from having to comply with a county's land development regulations or with the county's comprehensive plan. The School Board in this case desires to construct a school in an area that is designated an Area of Critical State Concern. Section 235.26(1), Florida Statutes, does not exempt the School Board from complying with the pertinent provisions of Chapter 380, Florida Statutes. See, School Board of Monroe County v. Chiles, 613 So.2d 129 (Fla. 3d DCA 1993).

       
       

   57. Development of the proposed school on Big Pine Key is inconsistent with the objectives and goals contained in Section 2-103 of the Future Land Use Element of the Monroe County Code. Approximately five acres of natural, undisturbed pineland, and several freshwater wetlands, will be destroyed by construction of the school. The remainder of the pinelands and freshwater wetlands will be significantly disturbed by degraded storm water runoff and the type of human activities that can reasonably be expected near a school. The habitat of the endemic and endangered Key Deer, particularly the permanent source of freshwater on the subject parcel, will not be protected or conserved, and the Key Deer will be displaced from the subject parcel and further exposed to extinction. The approval of the proposed school does not manage or control the use of land so that the natural environment of Monroe County is protected.

       
       

   58. Development of the proposed school on Big Pine Key is inconsistent with the objectives and goals contained in Section 2-106 of the Future Land Use Element of the Monroe County Code. Development of the proposed school will not protect the Key Deer habitat, nor the upland areas that serve as habitat for endangered species, on the subject parcel. The proposed school will encourage further development of Big Pine Key, since a neighborhood school encourages residential development. Development of the school would counter Monroe County's duty to manage growth within the environmental capabilities of Big Pine Key, and to ensure that future development is consistent with the long term functional integrity of the natural resources of Big Pine Key.

       
       

   59. Development of the proposed school on Big Pine Key is inconsistent with the Terrestrial Wildlife Management Policies contained in the Monroe County Code. The proposal to site the school on Big Pine Key, particularly near the deer movement corridors proposed by the U.S. Fish and Wildlife Service, is inconsistent with the requirement that public capital improvements and facilities be carefully regulated to minimize impact on wildlife habitat and movement patterns, and is inconsistent with the requirement that major public development projects must utilize adequate protective measures to forestall potentially adverse impacts. The County Commission's development order does not direct intensive development away from the habitat of rare and endangered species.

   60. The U.S. Fish and Wildlife Service's study Final Land Protection Plan for the Establishment of Deer Movement Corridors (Feb. 1991) recommends the acquisition and preservation of certain deer movement corridors, one of which crosses a portion of the school site. The School Board's willingness to establish a permanent easement across the Wasserman tract and the manner in which it intends to cluster the buildings on the eastern portion of the property so as to preserve the north-south corridors are consistent with the recommendations in that study. Section 1.4 of the Terrestrial Wildlife Management Policies requires that "Planning, design, siting, and construction of public capital improvements and facilities . . . be carefully regulated to minimize impact on wildlife habitat and movement patterns." The evidence in this proceeding established that there exists an east-west corridor across this property in addition to the north-south corridor. The development would impede the east-west corridor and would be inconsistent with Section 1.4 of the Terrestrial Wildlife Management Policies.

       
       

   61. The Department established by a preponderance of the evidence that the construction of this school on the subject property is inconsistent with the purposes, goals, objectives and standards of the Monroe County Comprehensive Plan and with the Principles for Guiding Development contained in Section 380.0552(7), Florida Statutes. Those inconsistencies require that the subject development be denied.

       
       

   62. The Department also established that the development is inconsistent with local development regulations contained in Section 9.5-343 and 9.5-262, Monroe County Code, pertaining to development in a freshwater wetland and the open space requirements for a freshwater wetland. It is likely that the inconsistencies with the LDRs could be resolved if there were no other grounds for denial.

       
       

   63. Section 380.08(3), Florida Statutes, provides as follows:

       
       

       (3) If any governmental agency denies a development permit under this chapter, it shall specify its reasons in writing and indicate any changes in the development proposal that would make it eligible to receive the permit.

       
       

   64. The evidence adduced at the formal hearing established that there are no changes in the development proposal that would make the subject project eligible to receive the permit at this site.

   
   

   RECOMMENDATION

   Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Water and Adjudicatory Commission enter a

   final order which rescinds the subject development order and denies the subject

   application.

   DONE AND ORDERED this 25th day of October, 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 this 25th day of October, 1993.

   
   

   APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1316DRI

   
   

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

   
   

   1. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 7, 8, 9, 10, 11, 12, 13, 16, 20, 21, and 23 are adopted in material part by the Recommended Order.

   2. The proposed findings of fact in paragraph 6 are adopted in part by the Recommended Order. The proposed findings of fact in the second sentence are rejected as being unnecessary to the conclusions reached since the open space issue was dismissed.

   3. The proposed findings of fact in paragraph 14 are adopted in part by the Recommended Order. The described wetland was found to be adjacent to the southeastern corner of the subject property.

   4. The proposed findings of fact in paragraph 15 are adopted in material part by the Recommended Order or are subordinate to the findings made.

   5. The proposed findings of fact in paragraphs 17, 18, 22, 24, and 25 are subordinate to the findings made.

   6. The proposed findings of fact in paragraph 19 are rejected as being unnecessary to the conclusions reached.

   
   

   The following rulings are made on the proposed findings of fact submitted by Monroe County School Board, Kitty Wasserman, and BHF Corporation.

   
   

   1. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, 7, 9, 11, 13, 14, 15, 18, 28, and 29 are adopted in material part by the Recommended Order.

   2. The proposed findings of fact in paragraphs 8, 10, 12, and 19 are adopted by the Recommended Order or are subordinate to the findings made.

   3. The proposed findings of fact in paragraphs 16, 17, 31, 32, and 42 are rejected as being unnecessary to the conclusions reached.

   4. The proposed findings of fact in paragraphs 20, 23, 26, 27, 30, 37, 38, 39, 40, 41, and 42 are subordinate to the findings made or to the conclusions reached.

   5. The proposed findings of fact in paragraph 21 are adopted in material part by the Recommended Order with the exception of the proposed findings of fact in the last sentence of the paragraph, which are rejected as being unnecessary to the conclusions reached.

   6. The proposed findings of fact in sentences 1, 2, 3 and 5 of paragraph

2. are subordinate to the findings made. The remainder of paragraph 22 is rejected as being unnecessary to the conclusions reached.

1. The proposed findings of fact in paragraph 24 are rejected as being contrary to the findings made.

2. The proposed findings of fact in the first two sentences of paragraph

   25 are subordinate to the findings made. The remainder of paragraph 25 is rejected as being contrary to the findings made.

3. The proposed findings of fact in paragraphs 33, 34, and 35 are rejected as being unnecessary to the conclusions reached since the Department clearly is not estopped from challenging the subject project.

4. The proposed findings of fact in paragraph 36 are rejected as being unnecessary to the conclusions reached. While there are many other factors that would encourage growth on Big Pine Key, the pertinent issue is whether the construction of this school would encourage growth on Big Pine Key.

5. The proposed findings of fact in paragraph 43 are rejected as being unnecessary to the conclusions reached since the open space issue was dismissed.

COPIES FURNISHED:

David L. Jordan, Esquire Lucky T. Osho, Esquire

Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

James S. Mattson, Esquire Andrew Tobin, Esquire Mattson & Tobin

Post Office Box 586

Key Largo, Florida 33041-1900

John R. Collins, Esquire Attorney for Monroe County

School Board

Post Office Box 1788

Key West, Florida 33041-1788

James T. Hendrick, Esquire Morgan & Hendrick

Attorney for Monroe County

317 Whitehead Street

Key West, Florida 33040

William B. Spottswood, Esquire

500 Fleming Street

Key West, Florida 33040

BHF Corporation Post Office Box 285

Big Pine Key, Florida 33043

Ms. Kitty Wasserman

3740 Inverrary Drive, Apt. #E-2 Lauderhill, Florida 33319

Greg Smith, Esquire Governor's Legal Office The Capitol, Room 209

Tallahassee, Florida 32399

David K. Coburn, Secretary Florida Land & Water Adjudicatory

Commission

311 Carlton Building Tallahassee, Florida 32301

Carolyn Dekle, Director

South Florida Regional Planning Council 3400 Hollywood Boulevard

Hollywood, Florida 33021

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.

Docket for Case No: 93-001316DRI

Orders for Case No: 93-001316DRI