STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RUDOLPH KRAUSE & SONS )

OF FLORIDA, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 93-2568F

)

DEPARTMENT OF COMMUNITY )

AFFAIRS, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, a formal hearing was conducted in this case on July 28, 1993, in Miami, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Douglas M. Halsey, Esquire

Southeast Financial Center Suite 4980

200 South Biscayne Boulevard Miami, Florida 33131-5309

For Respondent: Sherry A. Spiers, Esquire

Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100 STATEMENT OF THE ISSUE

Whether Petitioner is entitled to an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes, for fees and costs it incurred as a result of its participation in the administrative proceeding initiated by the Department of Community Affairs' appeal to the Florida Land and Water Adjudicatory Commission of Monroe County Building Permit No. 9110002601, a development order that Petitioner had applied for and obtained from Monroe County?

PRELIMINARY STATEMENT

On May 10, 1993, following the entry of a final order by the Florida Land and Water Adjudicatory Commission (hereinafter also referred to as the "Commission") adopting the Hearing Officer's recommendation in DOAH Case No. 91- 8096DRI that it grant Petitioner permission to engage in the resource extraction activity authorized by Monroe County Building Permit No. 9110002601, Petitioner filed a petition with the Division of Administrative Hearings requesting that it be awarded attorney's fees and costs pursuant to Section 57.111, Florida

Statutes, for fees and costs it had incurred in the case. The Department of Community Affairs (hereinafter referred to as the "Department") filed a response to the petition on June 1, 1993. In its response, the Department contended, among other things, that its appeal of Monroe County Building Permit No.

9110002601 had been "substantially justified" and that Petitioner was not a "prevailing small business party," within the meaning of Section 57.111, Florida Statutes, because the Commission's final order specified, contrary to the position taken by Petitioner, that Petitioner, in engaging in the activity authorized by Monroe County Building Permit No. 9110002601, had to comply with the resource extraction and restoration standards prescribed in Monroe County's land development regulations.

At the outset of the final hearing held in the instant case, the parties agreed that the only issues that needed to be litigated were (1) whether Petitioner had prevailed in the underlying administrative proceeding, and (2) whether Respondent had been substantially justified in initiating that proceeding. They stipulated that if both these issues were resolved against the Department and in favor of Petitioner, the Hearing Officer should award Petitioner the statutory maximum of $15,000.00 inasmuch as it was undisputed that the underlying proceeding had been initiated by the Department, that Petitioner was a small business party, that there were no special circumstances that would make an award to Petitioner unjust, and that Petitioner's reasonable and necessary attorney's fees and costs in the underlying proceeding exceeded

$15,000.00.

One witness, Kenneth Metcalf, the Community Program Administrator for the Department's Florida Keys field office, testified at the final hearing in this case. In addition to Metcalf's testimony, a total of three exhibits (Petitioner's Exhibits 1 and 2 and Respondent's Exhibit 1) were offered and received into evidence. Furthermore, the parties requested that the Hearing Officer take official recognition of, and consider in resolving the issues raised in the instant case, the record developed in the underlying proceeding.

At the close of the evidentiary portion of the final hearing in this case the Hearing Officer advised the parties on the record that post-hearing submittals had to be filed no later than 21 days following the Hearing Officer's receipt of the transcript of the hearing. The Hearing Officer received the hearing transcript on August 16, 1993. On September 7, 1993, Petitioner and the Department filed separate proposed final orders containing, among other things, what are labelled as proposed "findings of fact." These proposed "findings of fact" have been carefully considered and are specifically addressed in the Appendix to this Final Order.

FINDINGS OF FACT

Based upon the evidence adduced at hearing, matters officially recognized, and the record in this case as a whole, the following Findings of Fact are made:

1. The property that was the subject of Monroe County Building Permit No. 9110002601 (hereinafter referred to as the "Property") is an 18.85-acre parcel located on No Name Key in unincorporated Monroe County within the Florida Keys Area of Critical State Concern.

   
   

2. Since 1985, the Property has been owned by Florida Keys Investment Properties, Inc. (hereinafter referred to as "FKIP").

3. The Property is the site of a borrow pit occupying 9.65 acres of the Property's surface area.

   
   

4. Since the early 1970's, Petitioner, Rudolph Krause & Sons of Florida, Inc., (hereinafter also referred to as "Krause & Sons") has been operating the borrow pit and excavating fill from the Property for sale to the public pursuant to permits issued by the County.

   
   

5. Both Krause & Sons and FKIP are owned by Rudolph Krause, his wife, Roseann Krause, and other members of the Krause family.

   
   

6. Since 1975, Roseann Krause has assumed primary responsibility for obtaining from the County the permits necessary to perform the excavation work on the Property (hereinafter referred to as the "excavation permits").

   
   

7. Such excavation permits have been issued by the County each year from 1975 to 1991, with the exception of 1988. 1/

   
   

8. Each of these excavation permits contained language indicating that the permit was a renewal of at least one previously issued permit.

   
   

9. No excavation permit other than the 1991 permit, Monroe County Building Permit No. 9110002601, has been appealed by the Department.

   
   

10. Although the excavation work on the Property has been conducted with the approval, and to the apparent satisfaction, of the County, in 1985 the United States Army Corps of Engineers filed a complaint in federal district court against Mr. and Mrs. Krause, FKIP and Krause & Sons alleging that certain work had been done in the wetlands portion of the Property without the requisite dredge and fill permit and therefore in violation of federal law. Neither the County nor the Department were parties to this federal district court proceeding, although the County, at least, was aware of the proceeding.

    
    

11. In September of 1985, the federal district court entered a final consent judgement, the first eight numbered paragraphs of which provided as follows:

    
    

    1. This Court has jurisdiction of the subject matter of this action and of the parties thereto.

    2. The provisions of this Final Judgment shall be binding upon the Defendants; their successors and assigns; and all persons, firms and corporations in active concert or privity with the Defendants who have actual or constructive notice of this Judgment by personal service or otherwise.

    3. All references to geographical locations with respect to this dredge and fill/ restoration on No Name Key shall be directed to the attached sketch entitled "Florida Keys Investment Properties, Inc. Restoration Plan." (Exhibit A). Exhibit A is merely an enlarged view of a portion of Exhibit B, which is a jurisdictional determination by Curtis Kruer, dated June 3, 1983.

    4. Within 18 months of entry of this Final (Consent) Judgment, the Defendants shall remove all fill material located in the area indicated on Exhibit A (the south side and southern portion of east side of the existing borrow pit) down to the adjacent wetland elevation. All spoil material so removed will be placed on upland areas on site or at the Defendants' option, may be trucked off site. Spoil material may be stockpiled in areas designated as wetlands immediately adjacent to the areas of the borrow pit to be excavated. Defendants shall notify the Big Pine Key regulatory Field Office of the United States Army Corps of Engineers upon commencement and completion of this phase of the earthmoving work.

    5. Within three years of the entry of this Final (Consent) Judgment, the Defendants shall be allowed to enlarge the existing borrow pit as shown on Exhibit A to a maximum depth of -60 feet MSL.

    6. Within 120 days from completion of the excavation work described in paragraph 5 above or within 40 months after entry of this decree, whichever date comes first, the Defendants, shall complete the creation of the wetland shelf area on the eastern and western sides of the borrow pit (excluding that portion of the pit to be excavated in the uplands, i.e. Section "C" on Exhibit B) by grading the area down to the adjacent natural wetland elevations as shown on Exhibit A. All spoil material will be placed on an upland site or, at Defendants' option, may be temporarily stored on site, and then trucked off site within the period set forth in the first sentence of this paragraph.

    7. Defendants agree to conduct the above- described restoration measures in an environmentally-sensitive manner and shall use their best efforts to avoid damage to adjacent wetlands or water areas (other than the borrow pit) during this process. In addition, a low fill berm 6-feet wide and 2- feet high shall be constructed and remain around the immediate edge of the pit as shown in Exhibit A at all times during excavation of the pit. This berm shall be extended around the immediate edge of the pit's final configuration. This allows Defendants to continue excavation of the pit in a northerly direction into the existing uplands shown as "C" on Exhibit B.

    8. Defendants are hereby permanently enjoined from conducting any further dredging, filling or construction activities

       at No Name Key, adjacent to Big Spanish Channel in any wetland or water area, above or below the mean high water line, without the prior issuance of a Department of Army permit. The only exception to this provision is the work described herein. Only that portion of Defendants' property depicted as Section "C" on attached "Sketch of Jurisdictional Determination" (Exhibit "B" hereto) is agreed to be uplands, not subject to Army Corps of Engineers jurisdiction.

       
       

12. Mrs. Krause had submitted an application for a renewal excavation permit in February of 1985, prior to the entry of the federal district court's final consent judgment. The application, as originally submitted, did not specify the total amount of fill Krause & Sons expected to excavate during the year.

    
    

13. In a letter dated March 12, 1985, that she sent to the County's Building Director, Mrs. Krause acknowledged that she did not include this information in the application. The body of the letter read as follows:

    
    

    I applied for renewal of our excavation (borrow pit on No Name) permit in February. I wish to keep current this permit but at the present time I cannot supply you with any additional information since it is in litigation with the Corps of Engineers.

    As soon as this litigation is resolved, I will supply you with the needed information as to width, length and depth to be dug as well as total amount of cubic yards.

    I do not wish this permit to lapse in any way and therefore request that you issue a renewal based upon this information at this time.

    If you have any questions regarding this information, please do not hesitate to call me. Thank you for your attention to this matter. I certainly appreciate your understanding.

    
    

14. The following month, Mrs. Krause supplemented the application she had submitted in February by providing the County with two sketches of the Property which were similar, but not identical, to the one appended to the final consent judgment and identified as Exhibit B. On one of these sketches, she had made the following handwritten notations: "proposed 25,000 yds. 25'x750'x35,'" which notation appeared next to the southwestern edge of the borrow pit; and "uplands to be dug," which notation appeared in the same area on the northerly portion of the Property that is depicted in the final consent judgment's Exhibit B as Section "C" (hereinafter referred to as the "Uplands"). It is apparent from a review of the two sketches that the "proposed 25,000 yds" were to come from an area on the western side of the pit and not from the Uplands.

15. On April 29, 1985, the County issued the excavation permit (Building Permit No. 13289A) for which Mrs. Krause had applied on behalf of Krause & Sons. In issuing this permit, the County used a printed building permit form which contained the following language:

    
    

    THIS PERMIT SHALL ALLOW WORK (AS DEFINED UNDER WORK DESCRIPTION BELOW AND AS SHOWN AND SPECIFIED ON PLANS SUBMITTED AND ON FILE IN THE BUILDING DEPARTMENT OFFICES) TO BE PERFORMED ON THE FOLLOWING PROPERTY BY THE OWNER LISTED:

    
    

    Typed in under "WORK DESCRIPTION" on the form was the following: "Renewal of Excavation Permit, Supplement to 11332A, 10203A, 9543A, 7791A, 6498A, 4884A, 3492A."

    
    

16. Recipients of permits issued on these printed building permit forms are also furnished "permit cards" that they are instructed to post in an appropriate location at the work site. Each "permit card" contains the following advisement:

    
    

    The person accepting this permit shall conform to the terms of the application on file in the office of the Zoning Department of Monroe County and construction shall conform to the requirements of the Monroe County Codes.

    
    

17. In or around early 1986, Krause & Sons hired E.I. DuPont De Nemours (hereinafter referred to as "DuPont") to blast, as a preliminary step in the resource extraction process, portions of the Property that had not yet been excavated (hereinafter referred to as the "Unexcavated Areas"), including the entire uplands area referred to as Section "C" in the federal district court's final consent judgment.

    
    

18. Thereafter, DuPont, on behalf of Krause & Sons, applied to the County for a permit authorizing such blasting.

    
    

19. The requested permit (Building Permit No. 14835A) was issued on February 20, 1986.

    
    

20. In issuing Building Permit No. 14835A, the County used the same printed building permit form that it had used in issuing the 1985 excavation permit referenced in paragraph 15 above. It also provided an appropriate "permit card" for posting.

    
    

21. Typed in under "WORK DESCRIPTION" on Building Permit No. 14835A was simply the following: "Blasters and Users Permit." No further indication was given as to the nature or scope of the work authorized to be performed.

    
    

22. Following the issuance of Building Permit No. 14835A on February 26, 1986, Dupont began its blasting of the Unexcavated Areas.

    
    

23. The work was completed later that year.

    
    

24. Mr. Krause was on site during the blasting and provided assistance to DuPont.

25. In April of 1986, before the completion of the blasting, Mrs. Krause, on behalf of Krause & Sons, sought to renew Building Permit No. 13289A, the excavation permit she had obtained for the Property the previous year. The application she submitted indicated that Krause & Sons proposed to "[e]xcavate approx. 25,000 cu yds." Along with the application, she submitted a copy of the sketch of the Property containing her handwritten notations that she had sent to the County to supplement the previous year's application.

    
    

26. The requested permit (Building Permit No. 15276A) was issued on April 30, 1986.

    
    

27. In issuing Building Permit No. 15276A, the County used the same printed building permit form that it had used in issuing the blasting permit and the previous year's excavation permit. In addition, it provided an appropriate "permit card" for posting.

    
    

28. Typed in under "WORK DESCRIPTION" on Building Permit No. 15276A was the following: "Renewal of Excavation Permit- Approximately 25,000 CY FILL Supplement to 13289A, 11332A, 10203A, 9543A, 7791A, 6498A, 4884A, 3492A."

    
    

29. On September 15, 1986, after DuPont had completed its blasting, the County's current land development regulations (hereinafter referred to as the "Regulations") became effective.

    
    

30. Section 9.5-231(a) of the Regulations provides that "[n]o structure or land in Monroe County shall hereafter be developed, used or occupied unless expressly authorized in a land use district in this division."

    
    

31. Under the Regulations, the Property is in a "Native" or "NA" land use district. 2/

    
    

32. Section 9.5-239 of the Regulations lists the uses that are allowed in "NA" land use districts.

    
    

33. "Resource extraction," which is defined in Section 9.5-4 of the Regulations as "the dredging, digging, extraction, mining and quarrying of limerock, sand, gravel or minerals for commercial purposes," is not among the uses listed.

    
    

34. "Resource extraction" is permitted as a major conditional use in Industrial land use districts under Section 9.5-249(c)(2) of the Regulations, however.

    
    

35. Sections 9.5-431, 9.5-432 and 9.5-433 of the Regulations specifically address the subject of resource extraction. They provide as follows:

    
    

    Section 9.5-431. General.

    
    

    All resource extraction activities in the county shall comply with the provision of this division in order to ensure that such activities do not adversely affect long-term ecological values in the county and that abandoned extraction sites will be restored.

    Section 9.5-432. Resource extraction standards.

    All resource extraction activities shall:

    1. Be designed so that no area of excavation, storage area for equipment or machinery or other structure or facility is closer than:

       1. Two hundred (200) feet to any property line; and

       2. Five hundred (500) feet to any residential nonresource extraction related commercial use in existence on the date the permit is issued;

    2. Be located on a parcel of at least twenty (20) acres;

    3. Be fenced or blocked so as to prevent unauthorized entry into the resource extraction operation through access roads;

    4. Will not involve excavation below sixty feet;

    5. Will not cause the introduction of saline aquifer waters into fresh water aquifers;

    6. Will involve restoration of disturbed areas at the completion of the resource extraction operation in accordance with section 9.5-433, and the implementation of the restoration plan is secured by a surety bond or other guarantee of performance approved by the county; and

    7. Operate solely between the hours of 8:00

    a.m. and 5:00 p.m.

    Section 9.5-433. Restoration standards. All parcels of land which are used for resource extraction operations shall be restored as follows:

    1. Restoration shall be a continuous process, and each portion of the parcel shall be restored within two (2) years after resource extraction is completed for that portion;

    2. Topsoil shall be restored in approximately the same quality and quantity as existed at the time the resource extraction operation was initiated;

    3. Any body of water created by the resource extraction operation shall have a graded shoreline with a slope not to exceed one (1) foot vertical to five feet horizontal;

    4. All equipment, machinery and structures, except for structures that are usable for recreational purposes or any other use authorized in the area, shall be removed within six (6) months after the resource extraction operation is terminated and restoration is completed; and

    5. Reclamation shall to the maximum extent practical result in the reestablishment of the vegetation association which existed prior to the extraction activity.

    
    

36. A "nonconforming use," as that term is used in the Regulations, is defined in Section 9.5-4 thereof as "any use lawfully being made of any land, buildings or structure, other than a sign, on the effective date of this chapter or any amendment thereto, rendering such use nonconforming, which does not comply with all of the regulations of this chapter, or any amendment thereto."

    
    

37. Section 9.5-143(a) of the Regulations provides that "[n]onconforming uses of land or structures may continue in accordance with the provisions of this section."

    
    

38. Among "the provisions of this section" are the following found in subsection (c) thereof:

    
    

    Extensions: Nonconforming uses shall not be extended. This prohibition shall be construed so as to prevent:

    
    

    1. Enlargement of nonconforming uses by additions to the structure in which the nonconforming uses are located; or

    2. Occupancy of additional lands.

    
    

39. According to Section 9.5-141 of the Regulations, the purpose of the provisions relating to "nonconforming uses"

    
    

    is to regulate and limit the continued existence of uses and structures established prior to the enactment of this chapter. Many nonconformities may continue, but the provisions of this article are designed to curtail substantial investment in nonconformities and to bring about their eventual elimination in order to preserve the integrity of this chapter.

    
    

40. Section 9.5-113 of the Regulations prescribes the procedure to be followed in the "[r]eview of building permit applications." Subsection (b) of this section provides as follows:

    
    

    If the application and the construction plans and environmental analysis demonstrates compliance with all environmental standards of this chapter and technical, health and safety requirements of the County Code, a site preparation permit shall be issued within thirty (30) days of receipt of a complete application and upon receipt of an improvement guarantee, if a subdivision is involved, under the provisions of section

    9.5-85 or a performance bond, in an amount

    acceptable to the director of planning to ensure completion of the development, if a subdivision is not involved.

    
    

41. Section 9.5-115 of the Regulations is entitled "Expiration of building permit." Subsections (a) through (d) of this section provide as follows:

    
    

    1. A building permit shall automatically expire and become null and void if work authorized by such permit is not commenced within sixty (60) days from the effective date of the permit, or if such work, when commenced, is suspended or abandoned at any time for a period of one hundred twenty (120) consecutive days. The effective date of a building permit authorizing land clearing or which authorizes development as defined in chapter 380, Florida Statutes, shall be as provided in rule 9J-1.03, Florida Administrative Code, as long as the parcel is located within an area of critical state concern.

    2. If the work covered by the permit has not commenced or has commenced and been suspended or abandoned, the building official may extend such permit for a single period of sixty (60) days from the date of extension is [sic] made prior to the expiration date of the initial permit.

    3. If the work covered by the permit has commenced, is in progress, but has not been completed and in the opinion of the building official and the director of planning, is being carried on progressively in a substantial manner, the permit shall remain in effect until completion of the job.

    4. If work has commenced and the permit becomes null and void or expires because of lack of progress or abandonment, a new permit covering the proposed construction shall be obtained before proceeding with the work under regulations in effect at the time the new permit is issued.

    
    

42. Section 9.5-115 of the Regulations makes no reference to "renewal" permits.

    
    

43. The first excavation permit Krause & Sons received after the effective date of the Regulations (Building Permit No. 17487A) was issued on May 1, 1987.

    
    

44. In issuing Building Permit No. 17487A, the County used the same printed building permit form that it had used in issuing the 1986 blasting permit and the 1985 and 1986 excavation permits. In addition, it provided an appropriate "permit card" for posting.

45. Typed in under "WORK DESCRIPTION" on Building Permit No. 17487A was the following: "Excavation Pit- RENEWAL- Supplement to Permit #13289A, 11332A, 10203A, 9543A, 7791A, 6498A, 4884A, 3492A."

    
    

46. Typed in under "REMARKS" on Building Permit No. 17487A was the following:

    
    

    APPLICANT MUST APPLY FOR A BLASTING PERMIT IF THIS ACTIVITY IS REQUIRED

    Issued under the condition that restoration required from Army Corps be completed.

    Biologist recommends approval as per Monroe County Code.

    
    

47. On April 26, 1988, Mrs. Krause, on behalf of Krause & Sons, filed an application to renew Building Permit No. 17487A. Accompanying the application was a sketch of the Property. On the sketch, Mrs. Krause had drawn an arrow pointing to the southern portion of the Uplands. Above the arrow she had written, "proposed to dig approx 19,444 cu yds," and in the area to which the arrow was pointing, she had written, "Approx. 19444 cu yds to be dug."

    
    

48. There was a delay in the issuance of the requested permit. On April 4, 1989, the permit (Building Permit No. 8910000731) was finally issued.

    
    

49. An application to renew Building Permit No. 8910000731 was filed on April 3, 1990.

    
    

50. The requested permit (Building Permit No. 9010000645) was issued on June 21, 1990. The effective date of the permit was August 28, 1990.

    
    

51. An application to renew Building Permit No. 9010000645 was filed on April 16, 1991.

    
    

52. The requested permit (Building Permit No. 9110002601 and hereinafter also referred to as the "Permit") was issued on July 11, 1991.

53. In the "Remarks" section of the Permit the following was typed: RENEWAL OF PERMIT 90-10000645, 89-10000731

    AND 17487A. PLANNING APPROVAL 6-25-91 AG

    BIOLOGIST RECOMMENDS APPROVAL AS PER MONROE COUNTY CODE. THIS PERMIT DOES NOT AUTHORIZE BLASTING. A SEPARATE PERMIT IS REQUIRED.

    
    

54. Neither the application nor the Permit specified the amount of fill to be excavated or where on the Property the excavation was to occur. There was only one area of the Property however, where there was further excavation to be done. This area was the Uplands. Krause & Sons and FKIP had hoped, pursuant to the authorization provided by the permit, to merely remove the already blasted fill material that remained there. 3/ No further blasting was needed.

    
    

55. A copy of the Permit was hand delivered to the Department's Key West field office (hereinafter referred to as the "field office") on July 12, 1991. In charge of the field office was Kenneth Metcalf, a Community Program Administrator with the Department. Under his supervision were two planners, a biologist and a secretary.

56. The duties of the field office staff included, but was not limited to, reviewing and commenting upon proposed development activity within the office's territorial jurisdiction, which covered not only unincorporated Monroe County, but the municipalities of Key West, Key Colony Beach and Layton as well.

    
    

57. Approximately 25 percent of the staff's time was devoted to the review of building permits issued by Monroe County and the cities of Key West, Key Colony Beach and Layton.

    
    

58. The staff reviewed over 10,000 permits a year, of which about 30 to 40 were ultimately appealed by the Department.

    
    

59. Given the 45-day time limit for filing an appeal, the staff had approximately four weeks from the date of issuance within which to review each permit and submit its written recommendation and report to Department headquarters in Tallahassee.

    
    

60. In conducting its permit review, the staff examined the materials it received from the local government, which typically included the permit itself, the permit application and accompanying site plan, to ascertain if the development authorized by the permit complied with the local government's land development regulations. 4/

    
    

61. Because of time constraints, the staff did not make a practice of contacting applicants and asking them to supply missing information that the staff thought was necessary to demonstrate compliance, although there were occasions that it did request such information from the local government that had issued the permit.

    
    

62. In the staff's opinion, the information that it had been provided in connection with Building Permit No. 9110002601 was insufficient to demonstrate that the Permit complied with Monroe County's land development regulations.

    
    

63. Along with a copy of the Permit, the staff had an aerial photograph of the Property, taken in 1985, upon which to base its opinion regarding the Permit's compliance with the Regulations. That resource extraction activity had taken place on the Property was apparent from an examination of the photograph.

    
    

64. The staff had not been furnished with the permit application, with a site plan of the Property, nor with copies of any other County issued-permits concerning the Property.

    
    

65. It had requested these materials from the County, but the County had not provided them.

    
    

66. Consistent with its standard operating procedure, the staff had made no effort to obtain any additional information from the Krauses or FKIP.

    
    

67. Neither the Krauses nor FKIP provided, or offered to provide, the staff with additional information.

    
    

68. As a result, at the time it completed its review of the Permit and rendered its opinion on the Permit's compliance with the Regulations, the staff was unaware of the existence of Building Permit No. 14835A, the "Blasters and Users Permit" that DuPont, on behalf of Krause & Sons, had obtained in February of 1986, and which authorized the blasting of the entire Uplands.

69. Given the information that the staff had in its possession, which reflected that the Property was located in a land use district in which resource extraction activity was not allowed under the Regulations, the staff's conclusion that the Permit was not in compliance with the Regulations was a reasonable one.

    
    

70. The Permit did not indicate on its face that the resource extraction activity it authorized qualified as a "nonconforming use" under the provisions of Section 9-5.143 of the Regulations, nor was it apparent from a reading of the Permit, in conjunction with an examination of the 1985 aerial photograph that the staff also had in its possession, that the permitted activity so qualified.

    
    

71. Adopting the field staff's recommendation, the Department, on August 26, 1991, filed with the Florida Land and Water Adjudicatory Commission written notice of its appeal of Building Permit No. 9110002601. The Department's notice of appeal was accompanied by a petition in which the Department alleged that the Permit had been issued contrary to the provisions of the County's land development regulations in that it authorized resource extraction activity in a land use district in which such activity, under the Regulations, was not allowed. According to the petition, "[t]here [were] no conditions under which [such activity could] be authorized consistent with the Monroe County land development regulations absent amending the land use district maps [to change the Property's land use designation from NA] to Industrial use and proceeding through the conditional use process," during which the applicability of the resource extraction and restoration standards of Sections 9.5-432 and 9.5-433 of the Regulations would need to be addressed.

    
    

72. On November 27, 1991, approximately three months after the Department filed its appeal, the field office staff, in response to a second, post-appeal request it had made, received from the County's assistant building official six index cards reflecting historical permitting activity relating to the Property. None of these cards made reference to Building Permit No. 14835A, the February, 1986, "Blasters and Users Permit."

    
    

73. The Department first learned about the existence of this "Blasters and Users Permit" during discussions with the Krauses sometime after it had filed its notice of appeal of Building Permit No. 9110002601 and the accompanying petition. 5/

    
    

74. On December 18, 1991, the Department's notice of appeal and petition were referred to the Division of Administrative Hearings for the assignment of a Hearing Officer.

    
    

75. A final evidentiary hearing on the Department's appeal was held on October 13, 1992.

    
    

76. Three witnesses, Mr. Krause, Mrs. Krause, and Metcalf, testified at the hearing.

    
    

77. The Krauses testified regarding the extent of the blasting activity authorized by Building Permit No. 14835A, a copy of which was offered and received into evidence.

    
    

78. A total of 28 other exhibits were admitted into evidence.

    
    

79. Following the conclusion of the hearing, the parties filed post- hearing submittals.

80. In their post-hearing submittal, the Krauses did not dispute that resource extraction, the activity authorized by Building Permit No. 9110002601, is a use that, under the Regulations, that is not expressly allowed in the NA land use district in which the Property is located.

    
    

81. They argued, however, that the resource extraction activity they were seeking to undertake pursuant to Building Permit No. 9110002601, to wit: the completion of the excavation of the Uplands, should be permitted as a "nonconforming use" under the provisions of Section 9-5.143 of the Regulations, regardless of whether such activity would be allowable under the Regulations' other provisions.

    
    

82. The Hearing Officer, in his Recommended Order, agreed with the Krauses, reasoning as follows:

    
    

    1. A "nonconforming use" that may continue in accordance with the provisions of Section 9-5.143 is "any use lawfully being made of any land, buildings or structure, other than a sign, on the effective date of [Chapter 9.5 of the Monroe County Code], rendering such use nonconforming, which does not comply with all of the regulations of [Chapter 9.5]."

    2. September 15, 1986, was the effective date of the Regulations. By that date, the excavation of the Uplands had already begun. The entire area had been blasted as the first step in the excavation process that Respondents now desire to complete.

    3. The Department acknowledges in its proposed recommended order that such blasting occurred, but contends that it was not authorized by the blasting permit (Building Permit No. 14835A) that had been obtained prior to the blasting. According to the Department, the "blasting permit cannot be construed as authorizing that extent of blasting but is most reasonably viewed as authorizing blasting [only] of the wetlands on the eastern and western sides of the

       pit."

    4. Having carefully considered the evidence on the matter, including, most significantly, the copy of Building Permit No. 14835A and the accompanying "permit card" which were offered and received into evidence as Respondents' Exhibit 6, as well as the testimony of Mr. and Mrs. Krause, the Hearing Officer has reached a contrary conclusion. The documents that comprise Respondents' Exhibit 6 do not indicate, on their face, that the blasting authorized by the County was to be restricted to any particular area of the Property, much less "the wetlands on the eastern and western sides of the pit;" however, they each contain language

       suggesting that the extent of the authorization given by the blasting permit may not be determined without reference to the permit application and any plans submitted in connection therewith. No such application materials or copies thereof were in the County's files at the time of hearing, nor were they otherwise readily available to Respondents, who had never been given copies of these application materials to keep for their records. Under such circumstances, it was permissible for Respondents to supplement Respondents' Exhibit 6 with parol evidence to establish the extent of the land area which was subject to the provisions of the blasting permit. See Nahmod v. Nelson, 3 So.2d 162, 164-65 (Fla. 1941)("[u]nquestionably secondary evidence is admissible to prove the contents of a lost writing where proper predicate is laid and where such evidence is otherwise competent and admissible").

    5. The parol evidence offered by Respondents was the testimony of Mr. and Mrs. Krause. The Krauses testified that permission was sought and obtained to blast the entire Uplands. Their testimony on this matter was unrebutted. While neither Mr. or Mrs. Krause actually prepared or submitted the application to gain such permission, given their respective positions with the entity for which the blasting work was done, it appears likely, and therefore the Hearing Officer has found in the absence of any persuasive evidence to the contrary, that their testimony was based upon firsthand knowledge and not speculation or what someone else had told them. In view of the foregoing, the Hearing Officer has credited the Krauses' testimony and taken it into consideration in determining that the blasting of the entire Uplands was authorized by Building Permit No. 14835A.

    6. The resource extraction activity that Building Permit No. 9110002601 authorizes, therefore, will not involve the use of any land that was not lawfully being used for that purpose at the time of the effective date of the Regulations.

    7. Such activity thus qualifies as a "nonconforming use," within the meaning of Section 9.5-143 of the Regulations, which the Commission should allow to continue, notwithstanding that the Property is in a land use district in which such activity, but for its qualification as a "nonconforming use," would be prohibited.

83. The Hearing Officer noted that, "[i]n engaging in such continued activity, Respondents must comply with the applicable provisions of Sections 9.5-432 (resource extraction standards) and 9.5-433 (restoration standards) of the Regulations [both of which were referenced in the Department's appeal petition], but only to the extent that these provisions do not operate to

    effectively prevent them from excavating any land that, on the effective date of the Regulations, was being lawfully used for resource extraction activity."

    
    

84. The Hearing Officer recommended that, "[i]n the interest of clarity and to avoid any uncertainty regarding the matter, the final order issued by the Florida Land and Water Adjudicatory Commission . . . make specific reference to these requirements [the Krauses] must meet, notwithstanding that [they] would still be required to comply with these requirements even if, like Building Permit No. 9110002601, the order did not contain any such specific reference."

    
    

85. On March 11, 1993, the Florida Land and Water Adjudicatory Commission issued a final order adopting the Hearing Officer's Recommended Order.

    
    

86. Petitioner was represented by counsel in the appeal proceeding that culminated in the issuance of this final order and it incurred attorney's fees and costs as a result of such representation that it is obligated to pay.

    
    

    CONCLUSIONS OF LAW

    
    

87. Petitioner is seeking an award of attorney's fees and costs in the instant case pursuant Section 57.111, Florida Statutes, subsection (4)(a) of which provides as follows:

    
    

    Unless otherwise provided by law, an award of attorney's fees and costs shall be made to a prevailing small business party in any adjudicatory proceeding or administrative proceeding pursuant to chapter 120 initiated by a state agency, unless the actions of the agency were substantially justified or special circumstances exist which would make the award unjust.

    
    

88. A party seeking such an award has the initial burden of proving that it is a "small business party," within the meaning of the statute, which had prevailed in an earlier "adjudicatory proceeding or administrative proceeding pursuant to chapter 120 initiated by a state agency." Once such proof has been submitted, the burden shifts to the agency to establish by a preponderance of the evidence that its actions in initiating the proceeding "were substantially justified or special circumstances exist which would make the award unjust." See Department of Professional Regulation, Division of Real Estate v. Toledo Realty, Inc., 549 So.2d 715, 717-18 (Fla. 1st DCA 1989). An agency meets its burden of demonstrating that its actions were "substantially justified" by showing that the proceeding "had a reasonable basis in law and fact at the time it was initiated." Section 57.111(3)(e), Fla. Stat.; Gentele v. Department of Professional Regulation, Board of Optometry, 513 So.2d 672 (Fla. 1st DCA 1987).

    
    

89. In the instant case, it is undisputed that Petitioner is a "small business party" and that the underlying proceeding was an "administrative proceeding pursuant to chapter 120 initiated by a state agency," to wit: the Department, when it filed an appeal of Building Permit No. 9110002601 with the Florida Land and Water Adjudicatory Commission.

90. Furthermore, an examination of the final order issued in that proceeding reveals that Petitioner was the "prevailing party" inasmuch as the Commission, adopting the Hearing Officer's recommendation, found in favor of Petitioner that Building Permit No. 9110002601 complied with Monroe County's land development regulations. While the Commission expressed its agreement with the Department that the provisions of Sections 9.5-432 and 9.5-433 of the Regulations, at least to a certain extent, were applicable to the resource extraction authorized by Building Permit No. 9110002601, it did so simply "in the interest of clarity and to avoid any uncertainty regarding the matter" and rejected any suggestion that the Permit's failure to make specific reference to the applicability of these provisions rendered the Permit inconsistent with the Regulations or otherwise defective.

    
    

91. Although Petitioner ultimately prevailed in the underlying proceeding, the Department, at the time it initiated the proceeding, had a reasonable basis in law and fact upon which to conclude that the Permit did not comply with the Regulations inasmuch as the materials that it had in its possession regarding the matter revealed that the Property was in a land use district in which resource extraction activity was not allowed under the Regulations and there was no indication from a reading of these materials that the resource extraction activity authorized by the Permit qualified as a "nonconforming use," within the meaning of Section 9.5-143 of the Regulations, which should be allowed to continue thereunder. While the Florida Land and Water Adjudicatory Commission found that this activity authorized by the Permit did so qualify, in making this determination it relied upon evidence of which the Department had not, nor should have, been aware at the time it filed its notice of appeal of the Permit, to wit: the February, 1986 "Blasters and Users Permit," supplemented by the testimony given by the Krauses', which the Hearing Officer credited, regarding the extent of the Property's land area that was the subject of this 1986 blasting permit.

    
    

92. Because the preponderance of the evidence establishes that the Department's determination to appeal Building Permit No. 9110002106 had a reasonable basis in fact and law at the time its notice of appeal was filed, Petitioner is not entitled to an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes, for fees and costs it incurred as a result of its participation in the administrative proceeding that the Department initiated by filing this notice of appeal. See Gentele v. Department of Regulation, Board of Optometry, 513 So.2d 672 (Fla. 1st DCA 1987).

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

ORDERED that Petitioner's application for an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes, is DENIED.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 6th day of October, 1993.

STUART M. LERNER

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 6th day of October, 1993.

ENDNOTES

1/ A permit was applied for in April of 1988, but the requested permit was not issued until the following April.

2/ Under the land use regulations that were in effect immediately prior to September 15, 1986, the Property was in a "General Use" or "GU" zoning district, which had no setback requirements. While resource extraction activity was prohibited in "GU" districts, the Property qualified, under a saving or grandfather provision, for an exemption from this prohibition.

3/ They had already satisfactorily completed the restoration work required by the federal district court's final consent judgment.

4/ In conducting its permit review, the Department took the position that the burden was on the applicant to provide documentation sufficient to demonstrate compliance with the local government's land development regulations.

5/ The "Blasters and Users Permit" was not among the previously issued permits referenced in Building Permit No. 9110002601.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 93-2568F

The following are the Hearing Officer's specific rulings on what are labelled as "findings of facts" in the parties' post-hearing submittals:

Petitioner's Proposed Findings

1. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Final Order.

   
   

2. Rejected as a finding of fact because it is more in the nature of a conclusion of law.

   
   

3. First sentence: Accepted and incorporated in substance; Second and third sentences: Rejected as findings of fact because they are more in the nature of statements of the parties' positions in the instant case.

4. First and second sentences: Accepted and incorporated in substance; Third sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

   
   

5. First and third sentences: Rejected as findings of fact because they are more in the nature of statements of the Department's position in the instant case; Second sentence: Rejected as a finding of fact because it is more in the nature of legal argument.

   
   

6. First sentence: Rejected as a finding of fact because it is more in the nature of a statement of the Department's position in the instant case; Second sentence: Rejected as a finding of fact because it is more in the nature of a summary of testimony given in the instant case than a finding of fact based upon such testimony.

   
   

7. Rejected as a finding of fact because it is more in the nature of a summary of testimony given in the instant case than a finding of fact based upon such testimony.

   
   

8. Accepted and incorporated in substance.

   
   

9. First sentence: Rejected as a finding of fact because it is more in the nature of a summary of testimony given in the instant case than a finding of fact based upon such testimony; Second sentence: Accepted and incorporated in substance.

   
   

10. First sentence and second sentence, before last comma: Accepted and incorporated in substance; Second sentence, after last comma: Rejected as a finding of fact because it is more in the nature of legal argument.

The Department's Proposed Findings

1. Rejected as a finding of fact because it is more in nature of a statement of law.

2-3. Accepted and incorporated in substance.

1. First sentence: Rejected as a finding of fact because it is more in the nature of a summary of testimony given in the instant case than a finding of fact based upon such testimony; Second and third sentences: Accepted and incorporated in substance.

   
   

2. First sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Second sentence: Rejected as a finding of fact because it is more in the nature of a statement of law.

   
   

3. Accepted and incorporated in substance.

   
   

4. First sentence: Accepted and incorporated in substance; Second sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

8-16. Accepted and incorporated in substance.

17-18. Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.

1. Accepted and incorporated in substance.

   
   

2. First, second and third sentences: Rejected as findings of fact because they are more in the nature of summaries of testimony given in the instant case than findings of fact based upon such testimony; Fourth sentence: Accepted and incorporated in substance.

21-27. Accepted and incorporated in substance.

28. Rejected as a finding of fact because it is more in the nature of a summary of testimony given in the instant case than a finding of fact based upon such testimony.

29-37. Accepted and incorporated in substance.

COPIES FURNISHED:

Sherry A. Spiers, Esquire Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

Douglas M. Halsey, Esquire Southeast Financial Center Suite 4980

200 South Biscayne Boulevard Miami, Florida 33131-5309

Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this final order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a notice of appeal with the Agency Clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the district court of appeal in the appellate district where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.

Docket for Case No: 93-002568F

Orders for Case No: 93-002568F