STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF COMMUNITY AFFAIRS, )

)

Petitioner, )

)

vs. ) CASE NO. 93-4565DRI

) JOHN E. SCOTT and ALICE J. SCOTT, )

Owners; HUGH E. RHODUS, General ) Contractor; and MONROE COUNTY, a ) political subdivision of the )

State of Florida, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on April 14, 1994, at Homestead, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. Appearances for the parties at the hearing were as follows:

APPEARANCES

For Petitioner: Sherry A. Spiers

Assistant General Counsel Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

For Respondents, Carol A. Scott, Esquire

John and Alice KUBICKI, DRAPER, GALLAGHER & MCGRANE, P.A.

Scott and Hugh 1200 City National Bank Building

E. Rhodus: 25 West Flagler Street Miami, Florida 33130

For Respondent,

Monroe County: No appearance

STATEMENT OF THE ISSUES

At issue in this proceeding is whether a development order (building permit) issued by Monroe County to John and Alice Scott, Owners, and Hugh E. Rhodus, General Contractor, for the construction of a vertical seawall/dock on Lots 31 and 32, White Marlin Beach subdivision, Matecumbe Key, Monroe County, Florida, is consistent with the Monroe County Comprehensive Plan and land development regulations.

PRELIMINARY STATEMENT

This is an appeal, pursuant to Section 380.07, Florida Statutes, to the Florida Land and Water Adjudicatory Commission from a development order of Monroe County which granted the application of John and Alice Scott for a building permit to construct a vertical seawall/dock on Lots 31 and 32 of the White Marlin Beach subdivision, Matecumbe Key, Monroe County, Florida. As permitted, the seawall would be developed along the combined 117-foot shoreline of the two lots, would necessitate the removal of a mangrove fringe on the shoreline of each lot, and would include the placement of fill behind the seawall, all of which the Petitioner Department of Community Affairs ("Department") contends is in violation of Monroe County's comprehensive plan and land development regulations. Although duly noticed, Monroe County did not appear or participate in these proceedings.

At hearing, the Department called as witnesses: Kenneth B. Metcalf, accepted as an expert in land use planning and development review, including assessments of impacts; Kathleen Paxton Edgerton, accepted as an expert in Florida Keys ecology and marine biology; and Renate Skinner, accepted as an expert in marine biology. The Department's Exhibits, numbered 1-3 and 5-17, were received in evidence.

The Respondents, John and Alice Scott and Hugh Rhodus, called as witnesses: Hugh Rhodus, Gerald Manzo, and Dennis Landmeier, the latter being accepted as an expert in oceanographic biology and ichthyology. Respondent's Exhibits numbers 1-10 were received in evidence. Exhibits number 7 and 8 were subsequently withdrawn.

At the conclusion of the hearing the parties were allowed ten days from the close of the hearing or ten days from the filing of the transcript within which to file their proposed recommended orders. The parties elected to order a transcript of the hearing and the transcript was filed on May 26, 1994. On June 6, 1994, all of the parties who participated in the hearing filed timely proposed recommended orders containing proposed findings of fact and conclusions of law. On June 6, 1994, the Petitioner also filed a motion to supplement the record. There has been no objection to the motion and the motion is hereby granted. Therafter, counsel for the Scotts requested, without objection by the Petitioner, that the Recommended Order in this case not be issued prior to October 12, 1994. The parties' proposals have been carefully considered during the preparation of this Recommended Order and specific rulings on all proposed findings submitted by the parties are contained in the Appendix hereto.

FINDINGS OF FACT

The Property

1. Respondents John and Alice Scott are the owners of two canal front lots known as Lots 31 and 32, White Marlin Beach subdivision, Matecumbe Key, Monroe County, Florida. Lots 31 and 32 were acquired in 1968 and 1970 and are undeveloped. The subject lots are in incorporated Monroe County, Florida, and are zoned Improved Subdivision (IS). The Scotts reside on a third lot facing the bay that is across the street from the subject lots.

   
   

2. Respondents' lots are within the Florida Keys Area of Critical State Concern.

3. The land where the White Marlin Beach subdivision is located was at one time all mangroves and other trees. The subdivision was created in 1955-56 by means of dredge and fill activities.

   
   

4. During the late 1960s and early 1970s, the shorelines of Lots 31 and 32 were even with an existing bulkhead on an adjacent lot. Very small mangroves were beginning to revegetate the shorelines.

   
   

5. By 1979-1980, some shoreline erosion had occurred on the lots, estimated at 5-6 feet. At some unknown time thereafter, additional shoreline erosion occurred, estimated at its greatest point to be approximately 10 feet from the original platted fill line.

   
   

6. At the time the permit application was considered and at the time of the hearing, the revegetated mangroves had grown into a substantial fringe of high complexity, running the entire 117-foot length of the two lots and varying from 5 to 15 feet in width. Some of the trees are as tall as 12 feet.

   
   

7. The area in which the mangroves have revegetated slopes gently toward the canal. It constitutes a shallow water habitat which, in addition to the mangrove vegetation, supports crabs, juvenile fish, algae, and seagrasses. The expert witnesses of both Petitioner and Respondent testified that the mature mangrove fringe on the two lots has stabilized the land area adjacent to the canal.

   
   

8. Landward of the mangrove fringe, the lots are comprised of unconsolidated sand used to create the lots. The edges of the fill material form a gentle slope from as low as six inches up to 24 inches at one extreme.

   
   

9. Upland erosion is occurring along the edge of the unconsolidated fill, washing down the slope of the fill into the mangroves. Erosion of the edges of upland fill is a common occurrence in the Florida Keys.

10 The unconsolidated fill material where the erosion is occurring constitutes the uplands portion of the lots and is caused by weather events (wind and rain), rather than by tidal or wave action.

1. There is active boating traffic on the subject canal; many large commercial and pleasure boats use the canal. Marine fuel and supplies are sold at Angelo's. There is a commercial fishing "village" located at and around Angelo's. To reach open water, i.e., the Gulf bay, boats must pass lots 31 and

   32 after leaving Angelo's.

   
   

2. Most of the other lots on the same canal as lots 31 and 32 are primarily protected by seawalls. The Scotts, under the subject seawall permit, are seeking to tie in to the adjoining seawall for consistency in community character and appearance. The adjoining property owners and many of the neighboring property owners want the mangroves removed and a seawall built to protect lots 31 and 32.

   
   

   Permit Application and Issuance

   
   

3. On March 11, 1992, the Scotts applied to Monroe County for a permit to construct a seawall on Lots 31 and 32, White Marlin Beach subdivision.

4. The Scotts' seawall permit application was denied by Pat McNeese, the Monroe County Environmental Resources Director, based upon her conclusion that erosion was not occurring on the lots and thus a seawall was not allowed under the Monroe County land development regulations.

   
   

5. The Scotts appealed Ms. McNeese's decision to the Monroe County Planning Commission. As part of their evidence, Respondents offered a certified land survey conducted on November 1, 1992, which shows that the approximate shoreline of the property is at its greatest point roughly 10 feet landward of the platted shoreline. After hearing, the Planning Commission upheld Ms. McNeese's decision to deny the permit.

   
   

6. The Scotts then appealed the Planning Commission's decision to the Monroe County Board of County Commissioners. The Board overturned the Planning Commission. The Board found that the Scotts are entitled to a permit to develop a seawall for erosion control under the provisions of Section 9.5-345(m)(2)(b), Monroe County Code.

   
   

7. On April 19, 1993, Monroe County issued building permit number 9230005939 which is the subject of this proceeding. The permit was rendered to the Department on April 21, 1994, and was appealed by the Department 45 days thereafter.

   
   

   Monroe County Comprehensive Plan and Land Development Regulations

   
   

8. The Monroe County Comprehensive Plan contains various policies directed toward preservation or conservation of the Keys environment and maintenance of water quality. Section 2.104, Nearshore Waters, Monroe County Comprehensive Plan, Volume II, Future Land Use Element, states, in part, that:

   
   

   The Florida Keys are dependent on nearshore water quality for their environmental and economic integrity. The heart of the Florida Keys economy, the means by which Monroe County exists as a civil and social institution, is based on its unique, oceanic character. If nearshore water quality is not maintained, then quality of life and the economy of Monroe County will be directly and immediately impacted.

   1. OBJECTIVES

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

      * * *

   2. POLICIES

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

      * * *

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

      2. To limit the location of water-dependent facilities at locations that will not have a significant adverse impact on off-shore resources of particular importance. For the purposes of

      this policy, off-shore resources of particular importance shall mean hard coral bottoms, habitats of state or federal threatened and endangered species, shallow water areas with natural marine communities with depths at mean low tide of less than four (4) feet, and all designated Aquatic Preserves under Ch. 253.39 et seq. the [sic] Florida Statutes.

      
      

9. The Monroe County Comprehensive Plan, Volume II, Sec. 2-115 entitled "Enforcement" provides:

   
   

   A major component of any future land use element is the need to strictly enforce implementing regulations. If Monroe County is to achieve

   the promise of this Plan, it is essential that all persons involved in the land development process adhere to the requirement of this Plan and that the integrity of the development review process be protected.

   
   

10. The Monroe County Comprehensive Plan, Future Land Use Element, Volume II, Natural Vegetation Management Policies provides:

    
    

    1. In recognizing the need to preserve as much natural vegetation as possible, the County

       will direct its land use and development regulations to minimize destruction of natural vegetation and modification of landscape.

       1. Guidelines and performance standards designed to protect natural vegetation from development will be developed and enforced.

       2. Clearing of native vegetation for development will be controlled.

    * * *

    3. Regulations controlling development in areas characterized primarily by wetland vegetative species such as mangrove and associated vegetation will emphasize preservation of natural vegetation to the maximum degree possible.

    * * *

    8. The existing County ordinances designed to protect and conserve natural vegetation will be strictly interpreted, rigidly enforced, and/or amended when necessary.

    * * *

    Of all the natural landforms and features which must be given due consideration in their protection,

    protection of the shoreline is of prime concern. . . .

    
    

11. Chapter VII, Coastal Zone Protection Element, Marine Resources Management Policies section, Future Land Use Element, Monroe County Comprehensive Plan, Volume II, states that:

    
    

    1. Recognizing the crucial role that the marine environment plays in the local economy, the protection, conservation, and management of

       marine resources will be viewed as an issue requiring the County's utmost attention.

       1. In an effort to protect and conserve marine resources, emphasis will be placed on protecting the entire marine eco-system.

          1.2. To this end, maintenance of water quality; protection of marine flora and fauna, including shoreline vegetation; and preservation of coral reefs will be regarded as being absolutely essential to maintaining the integrity of the marine system.

    2. Utilization of marine resources will be judged sound or unsound from the standpoint of whether or not a permitted use insures conservation and long-term maintenance of the resource.

       * * *

    3. Land and water activities which are incompa- tible with the preservation of marine resources because of their potential adverse effects will

    be prohibited, restricted, or carefully regulated depending upon the nature of the activity and the extent of potential impact.

    
    

12. Development of bulkheads (the vertical component of a seawall) is characterized in the Monroe County Comprehensive Plan as "shoreline modification" and is addressed in Volume II as follows:

    
    

    Shoreline Modification

    Shoreline generally requires some degree of modification before it can be utilized for development of any sort. But such modification, unless carefully planned, can have adverse effects far beyond the area directly altered for development. For this reason, all shoreline modifications are subject to close scrutiny and regulation by local,

    State and Federal agencies. The following guidelines should be used at the local level to minimize the impact of shoreline modifications of different types.

    Bulkheads and Bulkhead Lines

    1. Bulkhead lines should be set at, or landward of, the mean high water line or the landward boundary of the shoreline protection zone, which- ever is applicable.

    2. Where possible, sloping rip-rap structures and coastal vegetation should be used rather than vertical seawalls.

    
    

13. The Monroe County land development regulations provide in pertinent part:

    
    

    Sec. 9.5-288. Bulkheads, seawalls, riprap and fences.

    1. Bulkheads, seawalls, riprap and fences may be allowed as principal uses where it is demonstrated that their purpose is for erosion

       protection or upland protection (except for the Big Pine Area of Critical County Concern).

    2. Seawalls, in any configuration to include integral steps, ladders, platforms, quays, wharfs, and integral docks landward of seawalls, are permitted, with or without a principal building, in all land use districts for the purpose of erosion control. . . .

    Riprap placement is permitted without a principal structure for erosion control.

    * * *

    Sec. 9.5-335. Purpose of environmental perform- ance standards.

    It is the purpose of this division to provide for the conservation and protection of the environmental resources of the Florida Keys by ensuring that the functional integrity of natural areas is protected when land is developed.

    * * *

    Sec. 9.5-345. Environmental design criteria.

    (m) Mangroves and Submerged Lands:

    1. Except as provided in paragraph (3), only piers, docks, utility pilings and walkways shall be permitted on mangroves and submerged lands;

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

       1. All structures shall be constructed on pilings or other supports;

       2. Bulkheads and seawalls shall be permitted only to stabilize disturbed shorelines or to

          replace deteriorated existing bulkheads and seawalls;

          * * *

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

    3. No fill shall be permitted in any natural water body;

    4. No fill shall be permitted in any manmade water body unless the applicant demonstrates that the activity will not have a significant adverse impact on natural marine communities.

    * * * Sec. 9.5-4. Definitions.

    (W-1) Water at least four (4) feet below mean sea level at mean low tide means locations that will not have a significant adverse impact on off- shore resources of particular importance. For the purpose of this definition, "off-shore resources of particular importance" shall mean hard coral bottoms, habitat of state or federal threatened and endangered species, shallow water areas with natural marine communities with depths at mean low tide of less than four (4) feet and all designated aquatic preserves under Florida Statutes section

    258.39 et seq.

14. The land development regulations must be implemented in a manner consistent with the Monroe County Comprehensive Plan.

    
    

    Seawall

    
    

15. The shoreline is generally the area between mean high water and mean low water. For regulatory purposes, the "shoreline" is considered to be mean high water.

    
    

16. While a seawall will protect shoreline property, there are negative impacts associated with development of seawalls which merit consideration. In this case, development of the permitted seawall would involve elimination of the existing mature mangrove fringe, which filters upland runoff, and filling in the shelf, including submerged lands, which provides habitat for juvenile fish, crabs and algae.

    
    

17. Water quality in the White Marlin Beach canals will deteriorate as additional seawalls are constructed. Wave force is increased as waves bounce off one seawall and then another, which in turn brings up sediments which may contain pollutants. Increased wave force also draws sediments out from under existing bulkheads, causing or contributing to their deterioration and adding to the suspended sediments in the canal.

    
    

18. Riprap and coastal vegetation absorb rather than intensify wave energy.

    
    

19. While some amount of shoreline erosion occurred on Lots 31 and 32 during the 1970s and at some time thereafter, the shorelines on Lots 31 and 32 are now stabilized by the existing mangrove fringe. Since the shorelines of Lots 31 and 32 are not presently eroding, that portion of the permit which authorizes the removal of the shoreline vegetation and development of a vertical seawall is not consistent with the Monroe County land development regulations.

    
    

    Rip-Rap

    
    

20. Even if shoreline erosion were occurring, a seawall or bulkhead to stabilize the shoreline would still not be authorized under the Monroe County Comprehensive Plan and land development regulations. The shoreline on Lots 31 and 32 is gently sloping, with only about 1-1/2 feet of silt over the bedrock within the mangrove fringe. Rip-rap would be feasible on Lots 31 and 32 if shoreline erosion were to be currently taking place.

    
    

    Upland Erosion

    
    

21. The Scotts are experiencing some erosion on the edges of the upland fill on Lots 31 and 32, caused by wind, rain, digging crabs, and the spreading roots of mangrove trees. Such erosion on the edges of upland fill is common in the Florida Keys.

    
    

22. Construction of a vertical seawall, which is a shoreline stabilization technique, is not appropriate to address an upland erosion problem. Erosion of upland fill material is commonly addressed by use of a retaining wall landward of the shoreline. Development of a retaining wall on Lots 31 and 32 would not necessitate removal of the existing shoreline vegetation and placement of fill on submerged lands as authorized under the subject permit.

    Fill Behind Seawall

    
    

23. The plans approved with the subject permit authorize the placement of fill behind the seawall. A portion of the proposed fill would be placed below mean high water on submerged lands.

    
    

24. Section 9.5-345(m)(2)(4), Monroe County Code, prohibits the placement of fill in a manmade water body unless the applicant demonstrates that the activity will not have a significant adverse impact on natural marine communities. The mangrove community and submerged shelf that exist on lots 31 and 32 are natural marine communities. The permanent obliteration of the shoreline vegetation and elimination of the submerged lands that presently exist on Lots 31 and 32 would be a significant adverse impact on natural marine communities. Accordingly, the placement of fill on the submerged lands on Lots

    31 and 32 is not authorized under the Monroe County land development regulations.

    
    

    Docks

    
    

25. Section 9.5-345(m)(2)(d), Monroe County Code, requires that docking facilities be developed only where a water depth of at least minus four feet mean low water (-4 MLW) exists.

    
    

26. The plans approved under the subject permit show a water depth of zero

    (0) feet MLW at the waterward extent of the proposed seawall/dock.

    
    

27. The Scotts' intention is to align the seawall spanning Lots 31 and 32 with a seawall on an adjacent lot. Water depth in that approximate location, which differs from the approved site plan and is therefore not authorized by the permit, is 1.6 feet at low tide. There is not adequate water depth at the waterward side of the proposed seawall/dock, as shown either on the approved plan or as described in testimony, to accommodate a docking facility on Lots 31 and 32. Further, because the dock has a vertical seawall component, it is not designed to be constructed on pilings or other supports, as required by Section 9.5-345(m)(2)(a), Monroe County Code.

    
    

    Accessory Use

    
    

28. The Monroe County land development regulations define an accessory use or structure as a use or structure that serves a principal use and is located on the same lot or lots under the same ownership and in the same land use district as the principal use or structure. The regulation specifically prohibits the establishment of an accessory use prior to the principal use to which it is accessory. Accessory uses are generally regulated based upon whether the accessory use is located on the same property as the principal use.

    
    

29. Under the County definition of accessory use, when dealing with a single lot, the principal use must be established first. The reference to the plural "lots" accommodates larger projects which typically encompass more than one lot, such as hotels and multifamily projects. It would also encompass an individual's residence where the lots were aggregated for development. The intent of the regulation is not to restrict the accessory uses to any one of those individual lots, but to recognize that the accessory use can also extend and cover all of the lots where the principal use is located. The regulation was adopted to cure an ongoing problem in the Keys of speculative development where shoreline improvements were developed without the establishment of principal uses to increase the value of saleable lots.

30. In this case, the principal use (the Scotts' residence) is not located on either of the two lots for which the permit was issued. To allow development of those properties prior to the establishment of principal uses on them would be inconsistent with the Monroe County land development regulation and the purpose for which it was adopted.

    
    

    CONCLUSIONS OF LAW

    
    

31. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Sections 120.57(1) and 380.07(3), Florida Statutes.

    
    

32. This is a timely appeal, pursuant to Section 380.07, Florida Statutes, from a development order of Monroe County granting the Scotts' application for a building permit to construct a vertical seawall/dock along the shorelines of Lots 31 and 32, White Marlin Beach subdivision, Matecumbe Key, Monroe County, Florida. Pursuant to the provisions of Section 120.57(1), Florida Statutes, the propriety of Monroe County's action was reviewed de novo. Young v. Department of Community Affairs, 625 So.2d 831 (Fla. 1993); Transgulf Pipeline Co. v. Board of County Commissioners, 438 So.2d 876 (Fla. 1st DCA 1983).

    
    

33. In Young, supra, the Court found that the Legislature has "statutorily determined that development in the Florida Keys Area [of Critical State Concern] will have an adverse impact if not in accordance with chapter 380, the local development regulations, and the local comprehensive plan." Id., at 834.

    
    

34. The Department bears the ultimate burden of persuasion in this case. Young, supra. The Department also bears the initial burden of going forward with evidence that the development order is not in accordance with Chapter 380, Florida Statutes, the Monroe County Comprehensive Plan, and the Monroe County land development regulations. Id. The Department has demonstrated by competent, substantial evidence that development of a vertical seawall/dock on each of the subject lots does not comply with the Monroe County comprehensive plan and land development regulations, and consequently is not in accordance with the provisions of Chapter 380, Florida Statutes.

    
    

35. While not entitled to the requested permit, the Scotts are entitled to a specification of what changes in their proposal are necessary so that they would be entitled to receive a permit. Section 380.08(3), Florida Statutes. Based on the evidence adduced, the Scotts are not entitled to a vertical seawall for shoreline erosion, since no shoreline erosion is occurring. Consequently there are no changes to their proposal that would entitle them to a permit for a vertical seawall with backfill extending onto submerged lands. However, the Scotts are entitled to a permit for a retaining wall landward of mean high water to stabilize the upland fill on Lots 31 and 32, which would address the upland erosion occurring on the lots.

    
    

36. Based on the evidence adduced, the Scotts are not entitled to develop a dock or docks on Lots 31 and 32. They would be entitled to develop a dock on Lot 31 if a principal use or structure is established, and if the dock is elevated and is otherwise designed to meet the criteria of Section 9.5-345(m), Monroe County Code. Similarly, the Scotts would be entitled to develop a dock on Lot 32 if a principal use or structure is established on that lot, and if the dock is designed to meet the criteria of Section 9.5-345(m), Monroe County Code.

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 permission to develop the vertical seawall/dock authorized under Monroe County building permit number 9230005939 and denying all other relief requested by the Respondents. It is further recommended that such final order specify those items set forth in paragraphs 45 and 46, Conclusions of Law, as changes in design and circumstances necessary to enable the Scotts to obtain a permit to stabilize the upland fill on the lots and entitle them to a permit or permits for docking facilities.

DONE AND ENTERED this 14th day of October 1994 in Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH

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 14th day of October 1994.

APPENDIX

The following are the specific rulings on all proposed findings of fact submitted by all parties.

Findings proposed by the Petitioner:

With the one exception mentioned immediately below, all proposed findings of fact submitted by the Petitioner have been accepted, with occasional editorial modifications in the interest of clarity and accuracy.

The one exception is paragraph 25, which was rejected as unnecessary repetition or summary of findings already made.

Findings proposed by the Respondents: Paragraph 1: Accepted in substance.

Paragraph 2: Rejected as subordinate and unnecessary details in view of the de novo nature of this proceeding.

Paragraphs 3, 4, 5, 6, 7, 8, 9, and 10: Accepted in substance.

Paragraph 11: Rejected as contrary to the greater weight of the evidence. (There is conflicting evidence on this subject. The testimony of the Petitioner's witnesses is found to be more persuasive than the version put forth by the Respondents' witnesses.)

Paragraph 12: Accepted in substance.

Paragraphs 13 and 14: Rejected as subordinate and unnecessary details.

Paragraphs 15 and 16: Both of these paragraphs are rejected as too overly broad and imprecise to be meaningful in the context of the issues in this proceeding. More precise and detailed findings have been made regarding the nature of past and current erosion on the subject property.

Paragraph 17: Rejected as too narrow a statement to be accurate. As noted in the findings of fact, other factors are contributing to the upland erosion.

Paragraph 18: Rejected as not supported by persuasive competent substantial evidence. Although there is some testimony along the general lines of what is proposed in this paragraph, that testimony appears to be more nearly hyperbole than hard science.

Paragraph 19: Rejected as consisting primarily of argument, rather than proposed findings of fact. Further, the last sentence of this paragraph is a conclusion that is contrary to the greater weight of the evidence.

Paragraph 20: Rejected as consisting primarily of argument and proposed conclusions of law, rather than proposed findings of fact.

Paragraph 21: First two sentences rejected as subordinate and unnecessary details in view of the requirements of the Monroe County Comprehensive Plan and land development regulations. Last sentence rejected as constituting a conclusion that is contrary to the greater weight of the evidence.

Paragraph 22: Rejected in part as not fully supported by persuasive competent substantial evidence and in part as irrelevant. (The water being too shallow, it does not particularly matter why it is too shallow.)

Paragraph 23: Rejected as subordinate and unnecessary details in view of the requirements of the Monroe County Comprehensive Plan and land development regulations.

Paragraph 24: Accepted in substance with some editorial language omitted.

Paragraphs 25 and 26: Rejected as constituting conclusions that are contrary to the greater weight of the evidence.

COPIES FURNISHED:

Sherry A. Spiers Assistant General Counsel

Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

Carol A. Scott, Esquire KUBICKI, DRAPER, GALLAGHER

& MCGRANE, P.A.

1200 City National Bank Building

25 West Flagler Street Miami, Florida 33130

James T. Hendrick, Esquire 617 Whitehead Street

Key West, Florida 33040

David K. Coburn, Secretary Florida Land & Water

Adjudicatory Commission

311 Carlton Building Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA

LAND AND WATER ADJUDICATORY COMMISSION

DEPARTMENT OF COMMUNITY AFFAIRS,

Petitioner,

vs. CASE NO. 93-4565DRI

APP-93-047

JOHN E. SCOTT and ALICE J. SCOTT,

Owners; HUGH E. RHODUS, General Contractor; and MONROE COUNTY, a political subdivision of the State of Florida,

Respondents.

/

FINAL ORDER

This cause came before the Governor and Cabinet, sitting as the Florida Land and Water Adjudicatory Commission (the "Commission"), on December 13, 1994, on the appeal filed by the Department of Community Affairs ("Department"), pursuant to Section 380.07, Florida Statutes, from a development order of Monroe County, Florida, which granted the application of John E. and Alice J. Scott for a building permit to construct a vertical seawall and dock on their property located on Matecumbe Key, Florida. The appeal was transmitted to the Division of Administrative Hearings; a Hearing Officer was assigned and a formal hearing was conducted on April 14, 1994, at Homestead, Florida. The Hearing Officer issued his Recommended Order which denied the petition to build the seawall/dock. Subsequently, the Department, the Owners and the General Contractor entered into a Stipulated Settlement Agreement stipulating to entry of a final order adopting the recommendations of the Hearing Officer on all but one issue, development of an accessory use, and agreeing that the Owners are entitled to develop a dock on one of their two lots which were the subjects of this appeal.

The Commission hereby accepts that recommended order of the yHearing Officer, except that the Commission rejects his conclusion of law regarding accessory uses as described below and, consistent with the recommended order and the parties' stipulated settlement agreement, and issues this final order.

In March, 1992, the Scotts applied to Monroe County for the permit necessary to build the proposed seawall. That permit application was denied by the Monroe County Environmental Resources Director. That decision was appealed to the Monroe County Planning Commission, which after hearing, upheld the decision of the Environmental Resources Director to deny the permit. The Scotts then appealed to the Monroe County Commission which reversed the decision of the Planning Commission on the grounds that the Scotts are entitled to build a seawall under the Monroe County Code for purposes of erosion control. In accordance with the decision of the Monroe County Commission, the County issued a permit to the Owners and Contractor for development of a seawall/dock. The Department's appeal followed rendition of that permit.

The property in question was at one time covered in mangroves. In the mid- fifties, the subdivision was created by dredge and fill activity. On a lot adjacent to the Scott's property, a seawall was erected, and at that time, the shoreline on the Scott's property was even with that bulkhead. Over a period of years, the property was eroded about ten feet from the original platted fill line. Revegetated mangroves had grown on the property by the time of the permit application from a depth of five to fifteen feet in width and to a height of twelve feet. The shoreline now slopes gently toward the canal, and the mangrove fringe has stabilized the land area adjacent to the canal. The property is undeveloped. The Scotts reside on a lot across the street from the subject property. Most of the lots on the canal are protected by seawall, but the Scott's property has a neighboring seawall on one side only.

There are three separate provisions of the Monroe County Code and Comprehensive Plan which prohibit the construction proposed by the Scotts. First, the Natural Vegetation Management Policies of the Monroe County Comprehensive Plan provide for the protection of the mangrove habitat which would be destroyed if the seawall were erected. In pertinent part those regulations provide:

1. In recognizing the need to preserve as much natural vegetation as possible, the County will direct its land use and development regulations to minimize destruction of natural vegetation and modification of landscape.

1.2. Clearing of native vegetation for development will be controlled.

* * *

3. Regulations controlling development in areas characterized primarily by wet land vegetative species such as mangrove and associated vegetation will emphasize preservation of natural vegetation to the maximum degree possible.

* * *

1. The existing County ordinances designed to protect and conserve natural vegetation will be strictly interpreted, rigidly enforced, and/or amended when necessary.

   * * *

   Of all the natural landforms and features which must be given due consideration in their protection, protection of the shoreline is of primary concern. . . .

   
   

   The Monroe County land development regulations provide the second and third grounds for denial of the permit as follows:

   
   

   Sec. 9.5-288. Bulkheads, Seawalls, riprap and fences.

   1. Bulkheads, seawalls, riprap and fences may be allowed as principal uses where it

is demonstrated that their purpose is for erosion protection or upland protection (except for the Big Pine Area of Critical County Concern).

* * *

Sec. 9.5-345, Environmental design criteria.

(m) Mangroves and Submerged Lands:

1. Except as provided in paragraph (3), only piers, docks, utility pilings and walkways shall be permitted on mangroves and submerged lands;

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

   1. All structures shall be constructed on pilings or other supports;

   2. Bulkheads and seawalls shall be permitted only to stabilize disturbed shorelines or to replace deteriorated existing bulkheads and seawalls;

The stated regulation provides that where, as here, the property is not subject to shoreline erosion, the placement of a seawall is inappropriate.

Further, this property is not developed in any way, and therefore this construction does not support a principal use. Since it does not qualify as a principal use, the construction of the seawall would be an accessory use not permitted by Monroe County land development regulations.

Respondent's Exceptions

In exception I filed by the Scotts, they allege that the Monroe County Code provisions allow the construction of a seawall as a principal use when it is demonstrated that the structure is necessary to prevent upland erosion. While the regulation allows the construction of "Bulkheads, seawalls, riprap and fences" as principal uses when shoreline or upland erosion is demonstrated, the Respondent's exception must be denied. The regulation states that in the presence of erosion, the principal use is allowed. Erosion of the shoreline can only be stopped by armoring the shoreline. Upland erosion caused by stormwater runoff can be corrected by a bulkhead or retaining wall set back from the shoreline. It is clear in the Monroe County Code that seawalls are permitted

only in the case of demonstrated need. There is no dispute that the shoreline is not eroding, and therefore, the placement of a seawall as a principal use is not demonstrated.

Exception II alleges that the refusal to grant the requested permit amounts to a "taking" of the respondent's property. We find that the refusal to grant the request to construct a seawall/dock is not a "taking." See: Graham v.

Estuary Properties, Inc., 399 So.2d 1374, (Fla. 1981).

Respondent's exception III is hereby denied. That exception alleges that the hearing officer drew incorrect findings of fact from the evidence produced at the public hearing. Section 120.57(1)(b)10., Florida Statutes, states:

The agency in its final order. . .may not reject or modify the findings of fact unless the agency first determines from a review of the complete record, and states with particularity in the order, that the

findings of fact were not based upon competent substantial evidence. . . .

We hereby find that the challenged Findings of Fact are supported by competent substantial evidence within the record.

ACTION ON THE RECOMMENDED ORDER AND THE PARTIES' STIPULATION

The Commission hereby accepts and adopts the Recommended Order except for the conclusion of law related to establishment of accessory uses, denies the exceptions filed by the respondents, and denies permission to develop the vertical seawall/dock authorized under Monroe County building permit number 9230005939. The Commission rejects the Hearing Officer's conclusion of law related to accessory uses, and concludes that Section 9.5-4(A-2), Monroe County Code, does not prohibit development of an accessory dock on an undeveloped lot across the street from the owners' residence which serves as the principal use.

The Commission hereby finds that the Scotts are entitled to a permit for a retaining wall landward of mean, high water to stabilize upland fill on the subject property to address upland erosion occurring on the lots. The Scotts are also entitled to a permit to develop a dock on one of their two lots across the street from their residence, so long as the dock design does not include a vertical bulkhead or seawall with backfill and is otherwise consistent with the Monroe County land development regulations. In that regard, the Scotts are entitled to a permit for the dock design described in the parties' Stipulated Settlement Agreement and depicted on the site plan attached thereto, which said Agreement and site plan are attached hereto and incorporated herein.

Any party to this Order has the right to seek judicial review of the Order pursuant to section 120.66, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the Clerk of the Commission, Office of Planning and Budgeting, Executive Office of the Governor, The Capitol, Room 2105, Tallahassee, Florida 32399-0001; and by filing a copy of the Notice of Appeal, accompanied by the applicable filing fees, with the appropriate District Court of Appeal. Notice of Appeal must be filed within 30 days of the day this Order is filed with the Clerk of the Commission.

DONE and ordered this 13th day of December, 1994, in Tallahassee, Florida.

DAVID COBURN, Secretary Florida Land and Water

Adjudicatory Commission

Filed with the Clerk of the Florida Land and Water Adjudicatory Commission this 14th day of December, 1994.

Patricia A. Parkers

CLERK, Florida Land and Water Adjudicatory Commission

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing delivered the following parties by Hand Delivery or by U.S. Mail this 14th day of December, 1994.

David K. Coburn, Secretary Florida Land and Water

Adjudicatory Commission

COPIES FURNISHED:

Honorable Lawton Chiles Honorable Bob Butterworth Governor Attorney General

The Capitol The Capitol

Tallahassee, Florida 32399 Tallahassee, Florida 32399

Honorable Bob Crawford Honorable Tom Gallagher Commissioner of Agriculture Treasurer

The Capitol The Capitol

Tallahassee, Florida 32399 Tallahassee, Florida 32399

Honorable Jim Smith Honorable Gerald Lewis

Secretary of State Comptroller

The Capitol The Capitol

Tallahassee, Florida 32399 Tallahassee, Florida 32399

Honorable Douglas Jamerson Greg Smith, Esquire Commissioner of Education Counsel to Governor & Cabinet The Capitol The Capitol, Room 210 Tallahassee, Florida 32399 Tallahassee, Florida 32399

Sherry A. Spiers, Esquire James T. Hendrick, Esquire Assistant General Counsel Attorney for Monroe County Dept. of Community Affairs Morgan & Hendrick

2740 Centerview Drive Post Office Box 1117 Tallahassee, Florida 32399 Key West, Florida 33040

Michael Parrish Carol A. Scott, Esquire

Hearing Officer Kubicki Draper

Division of Administrative Penthouse, City National Bank Hearings Building

The DeSoto Building 25 West Flagler Street 1230 Apalachee Parkway Miami, Florida 33130

Tallahassee, Florida 32399

Hugh E. Rhodus John E. and Alice J. Scott

Box 256 Route 1, Box 79

Islamorada, Florida 33036 Islamorada, Florida 33036

Commissioner Shirley Freeman Honorable Jack London Monroe County Mayor, Monroe County

310 Fleming Street Monroe County Courthouse Key West, Florida 33040 500 Whitehead Street

Key West, Florida 33040

Carolyn Dekle, Director Commissioner Mary Kay Reich South Fla. Regional Planning Plantation Key Govt. Center

Council 88820 Overseas Highway 3400 Hollywood Boulevard Tavernier, Florida 33070

Suite 140

Hollywood, Florida 33021

Commissioner Earl Cheal Commissioner Wilhelmina Harvey

490 63rd Street, Ocean 310 Fleming Street

Suite 110 Key West, Florida 33040

Marathon, Florida 33050-2751

Bob Herman, Herb Rabin Florida Administrative Law Lorenzo Aghemo, George Garrett Reports

Monroe County Growth Post Office Box 385 Management Division Gainesville, Florida 32602

Marathon Regional Service Cntr. 2796 Overseas Highway

Suite 400

Marathon, Florida 33050

Attachment

STATE OF FLORIDA

LAND AND WATER ADJUDICATORY COMMlSSION

DEPARTMENT OF COMMUNITY AFFAIRS,

Petitioner,

1. CASE NO. APP-93-047

   
   

   JOHN E. SCOTT and ALICE J. SCOTT,

   Owner; HUGH E. RHODUS, General Contractor; and MONROE COUNTY, FLORIDA,

   
   

   Respondents.

   /

   
   

   STIPULATED SETTLEMEMT AGREEMENT

   
   

   This Agreement is entered into between Petitioner, the FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS (herein "the Department" or "DCA"), and Respondents JOHN E. SCOTT, ALICE J. SCOTT, and HUGH E. RHODUS.

   
   

   WITNESSETH:

   
   

   WHEREAS, John E. Scott and Alice J. Scott are the owners of real property known aS Lots 31 and 32, white Marlin Beach subdivision, Matecumbe Key, in unincorporated Monroe County, Florida; and

   
   

   WHEREAS, most of Monroe County, including the subject property, is located within the Florida Keys Area of Critical State Concern, as designated under Sections 380.05 and 380.0552, Florida Statutes; and

   
   

   WHEREAS, the Department is the state land planning agency with the duty and responsibility of administering and enforcing the provisions of Chapter 380, Florida Statutes, the Florida Environmental Land and Water Management Act of 1972 ("The Act") and the rules and regulations promulgated thereunder, which include the Monroe County land development regulations; and

   
   

   WHEREAS, on April 19, 1992 Monroe County issued building permit no.

   9230005939 to the Owners and Hugh E. Rhodus, General Contractor, authorizing development of a seawall/dock and backfill along the combined shorelines of the above two lots; and

   
   

   WHEREAS, pursuant to Section 380.07, Florida Statutes, the Department timely appealed building permit no. 9230005939 to the Florida Land and Water Adjudicatory Commission, alleging that the seawall/dock, backfill, and removal of mangroves necessitated thereby are inconsistent with the Monroe County comprehensive plan and land development regulations, and that no development can occur on either lot until principal uses are established thereon; and

   WHEREAS, following an administrative hearing, on October 14, 1994 the Hearing Officer assigned to the case issued his recommended order, agreeing with the Department on all issues and recommending to the Florida Land and Water Adjudicatory Commission that permission to develop a seawall under Monroe County building permit no. 9230005939 be denied; and

   
   

   WHEREAS, the parties wish to resolve the pending proceeding under the terms and conditions set forth herein, and it is in their best interests to do so; and

   
   

   WHEREAS, pursuant to Section 380.032(3), Florida Statutes, the Department is authorized to enter into agreements with any landowner, developer, or governmental agency as may be necessary to effectuate the provisions and purposes of The Act or any rules promulgated thereunder; and

   
   

   WHEREAS, the Department finds that this agreement is necessary to effectuate the intent and provisions of Chapter 380, Florida Statutes, and the Monroe county comprehensive plan and land development regulations adopted pursuant thereto.

   
   

   NOW, THEREFORE, in consideration of the mutual covenants and undertakings set forth herein and the benefits to accrue to the parties to this agreement, the receipt and sufficiency of which are hereby acknowledged the parties agree as follows:

   
   

   1. Recitals. All recitals contained above are incorporated herein and are essential elements hereof.

      
      

   2. Consent to Entry of Final Order by Florida Land and Water Adjudicatory Commission.

      
      

      1. Bulkhead Backfill Clearing of Mangroves Retaining Wall. Except for the accessory use issue specifically addressed in subparagraph b. below, the parties hereby stipulate and agree to entry of a final order by the Florida Land and Water Adjudicatory Commission which adopts the Hearing officer's conclusions of law and denies permission to remove the mangrove fringe and develop a seawall with backfill on the combined shorelines of the subject property under Monroe County building permit no. 9230005939. The parties further stipulate and agree that the final order authorize development of a retaining wall landward of the mangrove fringe, as recommended by the Hearing Officer, and contain the Commission's approval of this agreement and the dock and retaining wall development plans contained herein. By their signatures hereon, the parties request such a final order from the Commission.

         
         

      2. Accessory Use. The property owners' residence is located on a lot across the street from the subject property in the same land use district. The parties stipulate and agree that the final order of the Florida Land and Water Adjudicatory Commission reject the Hearing Officer's conclusion of law that an accessory dock cannot be developed on a lot across the street from the owners' residence until a principal use is established on said lot. The parties stipulate that the final order contain a conclusion of law that section 9.5-4(A- 2), Monroe County Code, does authorize development of a dock as an accessory use to the owners' principal use on a lot across the street from the principal use in the same land use district.

         
         

   3. Docking Facility and Retaining Wall. The parties agree that a T-dock may be developed on Lot 31 as an accessory use to the owners' residence across the street, and that the Owners are entitled to develop a detaining wall across

      both Lots 31 and 32 landward of the mangrove fringe to stabilize eroding upland fill material, in accordance with the site plan attached hereto as Exhibit A. The docking facility on lot 31 shall be located such that there is a minimum of four (4) feet of water depth at mean low water at the terminal end of the dock, and shall include a walkway through the mangroves that is a maximum of five (5) feet in width. The clearing of mangroves on Lot 31 shall be limited to the clearing necessary for the 5-foot wide walkway.

      
      

   4. Future Dock Development on Lots 31 and 32. The parties acknowledge that Lots 31 and 32, White Marlin beach subdivision, are undeveloped as of the date of this agreement. If a principal use is established on Lot 32, owners at that time would be entitled to apply to Monroe a T-dock on Lot 32 with limited mangrove clearing for access to the as agreed herein for Lot 31. Similarly, if a principal use is established on the combined lots, the owner at that time would be entitled to apply to Monroe County for an extension of the dock to be developed on Lot 31 under this agreement, or for an additional dock. Any permit which may hereafter be issued for a new or expanded docking facility on either lot shall comply with the Monroe County land development regulations in effect at the time of permitting.

1. Access to Property by Monroe County and the Department. The Owners hereby authorize any Monroe County Growth Management Division employee and any Department of Community Affairs employee to enter onto the subject property at reasonable times and under reasonable conditions during the regular work week, Monday through Friday, between the hours of 8:30 a.m. and 5:00 p.m., for the purpose of inspecting same for compliance with the terms of this agreement and the Commission's final order entered herein.

   
   

2. Duplicate Originals. This agreement may be executed in any number of originals, all of which evidence one agreement, and only one of which need be produced for any purpose.

   
   

3. Binding Effect. This agreement is intended to and shall create a covenant running with the land, and shal1 be binding on the parties, their heirs, successors and assigns.

   
   

4. Recordation of Agreement. Within ten (10) calendar days after entry of a final order by the Florida Land and Water Adjudicatory Commission, the Owner shall record this agreement in the Public Records of Monroe County, Florida, and shall promptly provide proof of recordation to Monroe County and the Department, including the official records book and page where this agreement is recorded. Proof of recordation shall be furnished by hand deliver or U.S. Mail, postage prepaid, to Monroe county by directing same to Lorenzo Aghemo, Planning Director, Monroe County Growth Management Division, Marathon Regional Service Center, 2798 Overseas Highway, Suite 400, Marathon, Florida 33050, and to the Department by directing same to Sherry A. Spiers, Assistant General Counsel, Department of Community Affairs, 2740 Centerview Drive, Tallahassee, Florida 32399-2100.

   
   

5. Release; Costs and Attorney's Fees. The parties hereto release each other party from any and all claims of whatever nature which arise or may arise out of the issuance and appeal of Monroe County Building Permit No. 9230005939 Each party shall bear its own costs and attorney's fees incurred in this proceeding.

6. Enforcement. This agreement may be enforced by any party and by Monroe County as provided in chapter 380, Florida Statutes, or as otherwise allowed by law.

   
   

7. Date of Agreement. The date of this agreement is the date the last party signs and acknowledges this agreement.

IN WITNESS WHEREOF, the parties have executed this Agreement by their duly authorized undersigned representatives on the dates and year below written.

JOHN E. SCOTT and ALICE J. SCOTT

By

December 9, 1994 CAROL A. SCOTT, a/k/a CAROL KUBICKI, As Attorney for

John E. Scott, Alice J. Scott, and Hugh E. Rhodus, and Acting Under Durable Power of Attorney for John E. Scott

and Alice J. Scott

STATE OF FLORIDA COUNTY OF DADE

This instrument was acknowledged before me this 9th day of December, 1994, as by Carol A. Scott, a/k/a Carol Kubicki, who is personally known to me or who produced a Florida Driver's License as identification, and who did (did not) take and oath.

Notary Public

Name (typed printed or stamped)

Commission Number

My commission expires: 2-19-98 DEPARTMENT OF COMMUNITY AFFAIRS,

An Agency of the State of Florida

By

December 12, 1994 CHARLES PATTISON

Director, Division of Resource Planning and Management

STATE OF FLORIDA COUNTY OF LEON

This instrument was acknowledged before me this twelfth day of December, 1994, by Charles Pattison, as Director, Division of Resource Planning and Management, Department of Community Affairs, who is personally known to me and who did not take and oath.

Notary Public

Name (typed, printed or stamped)

Commission Number

My commission expires: 6/24/96

Exhibit A*

*NOTE: Exhibits A to this Settlement Agreement is a map of the PROPOSED FINGER PIERS BEYOND MANGROVES and is not

available in this ACCESS document. If you wish to view Exhibit A, please contact the DOAH Clerk's Office.

Docket for Case No: 93-004565DRI

Orders for Case No: 93-004565DRI