STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF COMMUNITY AFFAIRS, )

)

Petitioner, )

)

vs. ) CASE NO. 93-1317DRI

)

MAX and ANNE MAKOWSKY, Owners and ) Contractor; and MONROE COUNTY, ) a political subdivision of the ) State of Florida, )

)

Respondent. )

)

RECOMMENDED ORDER

On October 26, 1995, a formal administrative hearing was held in this case in Homestead, Florida, before Errol H. Powell, Hearing Officer, of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Karen Brodeen

Assistant General Counsel Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

For Respondents

Max & Anne Makowsky: No Appearance

For Respondent

Monroe County: No Appearance STATEMENT OF THE ISSUE

The issue for determination at hearing is whether a building permit issued by Monroe County, Florida, authorizing Max and Anne Makowsky to construct a boat ramp on their property, is consistent with the Monroe County Land Development Regulations as required by Chapter 380, Florida Statutes.

PRELIMINARY STATEMENT

By petition for appeal of development orders dated January 7, 1993, the Department of Community Affairs (Petitioner) contested the granting of Building Permit No. 9230008125 by Monroe County, Florida (Respondent County) to Max and Anne Makowsky (Respondents Makowsky) for the construction of a boat ramp on Respondents Makowsky's property. Petitioner's challenge is predicated on the Building Permit being inconsistent with the Monroe County Land Development Regulations as required by Chapter 380, Florida Statutes. On March 5, 1993, this matter was referred to the Division of Administrative Hearings (DOAH).

During the pendency of this case before DOAH, Respondent County appealed similar cases involving docket permits to the First District Court of Appeal. This case was held in abeyance pending appellate review of the cases. However, prior to an appellate decision, this case was rescheduled for hearing.

Petitioner filed an amended petition on January 11, 1995.

At hearing, Petitioner presented the testimony of one witness and entered five exhibits into evidence. Respondents Makowsky did not appear, either personally or through counsel. Respondent County did not appear.

A transcript of the hearing was ordered. Petitioner submitted proposed findings of fact which are addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. Max and Anne Makowsky (Respondents Makowsky) are the owners of real property located at Lot 5, Block 35, Venetian Shores Subdivision, Plantation Key, in unincorporated Monroe County, Florida.

   
   

2. Respondents Makowsky's property is located in the Florida Keys Area of Critical State Concern.

   
   

3. On November 20, 1992, Monroe County, Florida (Respondent County) issued a building permit, Building Permit No. 9230008125, to Respondents Makowsky. The permit authorized Respondents Makowsky to construct and place on their property a boat ramp which measures six feet by thirty feet.

   
   

4. Petitioner received a copy of the Building Permit from Respondent County on November 24, 1992.

   
   

5. Submerged lands adjacent to Respondents Makowsky's property are owned by the State of Florida. The boundary between the State's submerged lands and Respondents Makowsky's property is the mean high water line.

   
   

6. Twenty feet of the proposed boat ramp would extend below the mean high water line. The twenty feet would lie over submerged lands.

   
   

7. Chapter 9.5, Monroe County Code, contains Respondent County's Land Development Regulations. Section 9.5-345(m) contains the environmental design criteria applicable to submerged lands in Respondent County. Section 9.5-345(m) provides in pertinent part:

   
   

   1. All structures on any submerged lands and mangroves shall be designed, located and constructed such that:

      * * * *

      1. No structure shall be located on sub- merged 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 z depth of at least minus four (4) feet exists.

8. In the permit application, Respondents Makowsky provide that the intended use for the ramp is to launch a windsurfer and a small inflatable boat or dinghy. Respondents Makowsky's dinghy has a motor with a shaft which extends two and one-half feet below the boat's water line. As the proposed boat ramp would allow access to the water via watercraft, the term "docking" facility," as used in Section 9.5-345(m), is applicable to Respondents Makowsky's proposed ramp.

   
   

9. The submerged land adjacent to Respondents Makowsky's property is very shallow and heavily populated by sea grass, i.e. turtle grass. The turtle grass areas serve as nursery grounds and provide food and shelter for juvenile fish and invertebrates.

   
   

10. These habitat values increase when coupled with the mangrove fringe (the roots of mangroves) located along the area. The mangrove roots also provide food and shelter for the juvenile fish and invertebrates.

    
    

11. The turtle grass would be adversely impacted by the ramp itself if the proposed ramp was approved and constructed. The structure itself would shade out the needed sunlight to the grasses underneath the boat ramp, causing those grasses to die.

    
    

12. Also, the use of the ramp to dock small boats would adversely impact the turtle grass. The bottom of the submerged land is a very loose, calcarious substrate. Launching a boat would cause the sand to "kick up" (lift up). When the sand comes down, it would settle on the turtle grass and smother it because there would be no way for the turtle grass to clean itself. Further, using a motorized boat, as Respondents Makwosky's, would cause "prop dredging" to occur, harming the turtle grass. In "prop dredging," the motor's propeller would destroy the grasses directly by tearing them up or destroy the grasses over a period of time through siltation after churning up the sand from the substrate.

    
    

13. The mean low water depth, i. e., the average mean low tide, at the terminal end of the proposed ramp is less than four feet. In the permit application, the depth at the end of the ramp is indicated to be zero feet mean low water. Petitioner estimates the water depth at low tide as between one foot and two feet.

    
    

14. The proposed ramp site is not located at a channel of twenty (20) feet in width where a mean low water depth of at least minus four (4) feet exists.

    
    

15. Respondents Makowsky have boat access through a boat basin approximately 320 feet to the southwest of their property. The boat basin is located in their Subdivision. A slip in the boat basin is assigned to Respondents Makowsky and they are entitled to use it.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes, and Subsection 380.07(3), Florida Statutes.

    
    

17. The burden of proof is upon Petitioner to demonstrate that the building permit issued by Respondent County is not in accordance with the Respondent County's Land Development Regulations of its Comprehensive Plan as required by Chapter 380, Florida Statutes. Young v. Department of Community Affairs, 625 So.2d 831 (Fla. 1993).

18. The Florida Legislature has designated the Florida Keys Area as an area of critical state concern. Section 380.0552, Florida Statutes. Also, the Legislature has "statutorily determined that development in the Florida Keys area will have an adverse impact if not in accordance with Chapter 380, the local development regulations, and the local comprehensive plan." Young, supra at 834.

    
    

19. Further, Respondent County is required by Chapter 163, Part II, Florida Statutes, to permit only those developments which are consistent with its comprehensive plan and land development regulations. See, Subsections 163.3161(2), 163.3194(1), and 163.3213(1), Florida Statutes.

    
    

20. Petitioner has demonstrated that Building Permit No. 9230008125 issued by Respondent County to Respondents Makowsky is not in compliance with Section 9.5-345(m)(2) c and d, the Respondent County's Land Development Regulations of its Comprehensive Plan. Consequently, the Building Permit is contrary to the provisions of Chapter 380, Florida Statutes.

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 DENYING Monroe County Permit No. 9230008125.

RECOMMENDED this 22nd day of December, 1995, in Tallahassee, Leon County, Florida.

ERROL H. POWELL, 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 2nd day of December, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1317DRI

Petitioner's proposed findings of fact 1 - 13 have been adopted in substance, although not verbatim, in this recommended order.

COPIES FURNISHED:

Bob Bradley, Secretary Florida Land and Water Adjudicatory Commission

Executive Office of The Governor 1601 Capitol

Tallahassee, Florida 32399

Gregory C. Smith, Esquire Governor's Legal Office

209 The Capitol

Tallahassee, Florida 32399-0001

James F. Murley, Secretary Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

Dan Stengle General Counsel

Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

Karen Brodeen

Assistant General Counsel Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

Stephanie Gehres Assistant General Counsel

Department of Community Affairs Marathon Regional Service Center Suite 212

2796 Overseas Highway

Marathon, Florida 33050

Max and Anne Makowsky

1900 Glades Road, Suite 245 Boca Raton, Florida 33431

Carolyn Dekle, Director South Florida Regional Planning Council

3400 Hollywood Boulevard

Suite 140

Hollywood, Florida 33021

James T. Hendrick, Esquire Morgan & Hendrick

317 Whitehead Street

Key West, Florida 33041-1117

Bob Herman, Director of Growth Management Monroe County Regional Service Center 2798 Overseas Highway

Marathon, Florida 33050-2227

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: 93-001317DRI

Orders for Case No: 93-001317DRI