STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF COMMUNITY AFFAIRS, )

)

Petitioner, )

)

vs. ) CASE NO. 93-7165DRI

) FRED SNOWMAN and MONROE COUNTY, ) FLORIDA, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on June 30, 1994, in Key West, Florida.

APPEARANCES

For Petitioner: Sherry A. Spiers, Esquire

Assistant General Counsel Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

For Respondent, Nicholas W. Mulick, Esquire Fred Snowman: 88539 Overseas Highway

Tavernier, Florida 33070

For Respondent,

Monroe County: No Appearance

STATEMENT OF THE ISSUES

Whether Permit Number 9330008850 (a building permit for the construction of a single-family residence and swimming pool) issued by Monroe County, Florida, to Fred Snowman is inconsistent with Monroe County's setback requirement pertaining to beach berms that are known turtle nesting areas.

PRELIMINARY STATEMENT

This is an appeal pursuant to Section 380.07, Florida Statutes, to the Florida Land and Water Adjudicatory Commission from a building permit issued by Monroe County which granted the application of Fred Snowman for development of a single-family residence and swimming pool on Lot 75, Matecumbe Ocean Beach subdivision, Lower Matecumbe Key, in unincorporated Monroe County, Florida. The Department of Community Affairs' Petition for Appeal alleges various inconsistencies with the Monroe County land development regulations relating to development on lands characterized as beach berm.

During the hearing, the Department withdrew certain allegations in its Petition, thereby limiting the scope of this proceeding to the Department's assertion that the subject permit is inconsistent with the setback requirement in Section 9.5-345(o)(3)f., Monroe County Code, which prohibits the construction of structures within fifty (50) feet of any portion of any beach-berm complex which is known to serve as an active nesting area of marine turtles.

Although duly noticed, Monroe County did not appear or participate in these proceedings.

At the formal hearing, the Department presented the testimony of Kenneth Brian Metcalf, Kathleen Paxton Edgerton, and Pat Wells. Mr. Metcalf is the Director of the Department's Florida Keys Area of Critical State Concern Program and was accepted as an expert in land use planning and application of the area of critical state concern program. Ms. Edgerton is a biologist employed by the Department and was accepted as an expert in Florida Keys ecology and marine biology. Mr. Wells was accepted as an expert in identification of turtle nesting habitats and nesting behavior of marine turtles. The Department's Exhibits 1 through 11 were accepted in evidence.

Respondent Fred Snowman testified on his own behalf and also presented the testimony of Robert Smith and Pat McNeese. Mr. Smith was accepted as an expert as to turtle nesting behavior, as to the interpretation and application of the environmental design criteria in the Monroe County land development regulations, as to Florida Keys ecology, and as to terrestrial biology. Ms. McNeese is Monroe County's Director of Environmental Resources. Respondent's Exhibits 1 through 9 were received in evidence.

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

FINDINGS OF FACT

1. Petitioner is the state land planning agency charged with the responsibility to administer the provisions of Chapter 380, Florida Statutes, and the regulations promulgated thereunder. Petitioner has the authority to appeal to the Florida Land and Water Adjudicatory Commission any development order issued in an area of critical state concern. Sections 380.031(18), 380.032, and 380.07, Florida Statutes.

   
   

2. Monroe County is a political subdivision of the State of Florida, and is responsible for issuing development orders for development in unincorporated Monroe County, Florida. Monroe County issued the development order that is the subject of this appeal.

   
   

3. Respondent Fred Snowman is a general contractor and is the owner of real property known as Lot 75, Matecumbe Ocean Beach subdivision, Lower Matecumbe Key, in Monroe County, Florida. The subject property is a residential lot that measures 100 feet by approximately 225 feet and was acquired by Mr. Snowman in September 1992. The subject property is bounded on the landward side by U.S. 1 and fronts the Atlantic Ocean.

4. Respondent's lot is within the Florida Keys Area of Critical State Concern.

   
   

5. On September 30, 1993, Monroe County issued building permit, Permit Number 9330008850, to Fred Snowman as Owner and General Contractor. This building permit is a development order in an area of critical state concern and is the subject of this proceeding. As reflected by the approved site plans, the permit authorizes the construction of a 2,472 square foot single-family residence with 1,568 square feet of porches, a 1,435 square foot storage enclosure below base flood elevation, and a swimming pool on the property. As permitted, all construction will be setback at least 75 feet from the mean high water line. There is no dispute between the parties as to where the mean high water line is located.

   
   

6. Sections 9.5-335 through 9.5-345, Monroe County Code, are land development regulations that contain certain environmental performance standards relating to development. The purpose of these standards is "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." See, Section 9.5-335, Monroe County Code.

   
   

7. Included in the environmental standards of the land development regulations is Section 9.5-345, Monroe County Code, entitled "Environmental design criteria," which provides, in relevant part:

   
   

   Disturbed Lands: All structures developed, used or occupied on land which are [sic] classified as disturbed on the existing conditions map shall be designated, located and constructed such that:

   * * *

   (3) On lands classified as disturbed with beach berm:

   * * *

   f. No structure shall be located within fifty

   (50) feet of any portion of any beach-berm complex which is known to serve as an active nesting or resting area of marine turtles, terns, gulls or other birds;

   
   

8. There is little dispute that Lower Matecumbe beach is an active nesting area for marine turtles. Loggerhead turtles, the primary marine turtles which nest on Atlantic beaches in the Keys, are a threatened species under the federal Endangered Species Act.

   
   

9. There are thirty beaches in the Florida Keys which consist of loggerhead nesting habitat. The beach that fronts Mr. Snowman's property on Lower Matecumbe Key is a known turtle nesting beach that is ranked as the second most heavily nested beach in the Keys.

   
   

10. The Monroe County comprehensive plan recognizes the beaches on Lower Matecumbe Key as known loggerhead turtle nesting beaches. Pursuant to the comprehensive plan, the County has prepared endangered species maps as a tool to be utilized in identifying known turtle nesting areas. At the time Mr. Snowman obtained approval of his permit application from Monroe County, the County's endangered species maps omitted an approximately 1.5 mile stretch of Lower Matecumbe Beach, including Mr. Snowman's property, from its map designation of a

    known nesting habitat. However, since that approval, the map, which is subject to periodic updates, has been updated by the County to reflect that all of Lower Matecumbe Key, including Mr. Snowman's property, is considered by the County to be known turtle nesting habitat. Mr. Snowman did not rely on the designation on the endangered species map in making his decision to purchase the subject property or in designing the improvements he seeks to construct on the property.

    
    

11. Surveys of turtle nesting behavior in the Florida Keys are accomplished through a network of volunteers. The nesting survey information obtained from this volunteer network provides very general locations with varying degrees of accuracy depending on the number and ability of the volunteers and the extent to which they can obtain access to privately owned beach front property. Because of the limitations in the survey data, is it generally not possible to determine whether turtles have nested on a particular lot. There was no evidence that turtles actually nest on Mr. Snowman's property. Marine turtles most commonly nest within the first 50 feet landward of the mean high tide line, although they have been known to go farther upland. Because of the compressed beach and berm habitat in the Keys, loggerhead turtles have been known to nest in grassy vegetation and woody vegetation more than 50 feet landward of the mean high water line.

    
    

12. Mr. Snowman's property is properly designated as "Disturbed Lands" and there exists on this property a "beach-berm complex" which is known to serve as an active nesting area of marine turtles within the meaning of Section 9.5- 345, Monroe County Code. The setback requirement found in Section 9.5-345, Monroe County Code, applies to this development. Consequently, no construction of any structure may be located within fifty (50) feet of any portion the beach- berm complex which is known to serve as an active nesting area of marine turtles.

    
    

13. There was a conflict in the evidence as to how much of Mr. Snowman's property should be considered to be a beach-berm habitat. The County has identified the landward extent of the beach-berm to be twenty-five feet from the mean high water line, so that the setback would be to a point at least 75 feet from the mean high water line. The Department has identified the landward extent of the beach berm to be 80 feet from the mean high water line so that the setback would be to a point at least 130 feet from the mean high water line.

    
    

14. Section 9.5-4(B-3) contains the following definition that is pertinent to this proceeding:

    
    

    (B-3) "Beach berm" means a bare, sandy shoreline with a mound or ridge of unconsolidated sand that is immediately landward of, and usually parallel to, the shoreline and beach. The sand is calcareous material that is the remains of marine organisms such as corals, algae and molluscs. The berm may include forested, coastal ridges and may be colonized by hammock vegetation.

    
    

15. There are two distinct ridges located on the Snowman property. Beginning at the mean high water line, there is an area of sandy beach followed by a ridge (the first ridge) that levels off approximately 25 feet from the mean high water line. Behind this first ridge is another ridge that levels off approximately 80 feet landward of the mean high water line. This second ridge contains the highest elevation point on Mr. Snowman's property, with the crest of the second ridge corresponding with the 5.9 foot elevation reflected on Respondent's site plan.

16. There is no vegetation on the beach, which is an area of sandy substrate, until the landward downslope of the first ridge, where vegetation in the form of grasses and sea oats appear. Grasses and sea oats extend approximately 30-40 feet landward into the beginning of the second ridge.

    Behind the grasses and sea oats is woody vegetation, Bay Cedar, and shrubbery typical of beach front property. Also found on the property and landward of the first ridge are sea grape, wild sage, gray nicker pod, and prickly pear cactus.

    
    

17. Monroe County considers this first ridge to be the extent of the beach berm complex on the Snowman property. The County identifies the back of the berm on the subject property as measuring 25 feet landward of mean high water and applied the 50 foot setback requirement from that point. The determination of the extent of the beach berm by the County is consistent with the definition of the term "beach berm" contained in Section 9.5-345(3)f, Monroe County Code, and is supported by the greater weight of the evidence presented at the formal hearing. Consequently, it is found that the beach berm complex on the Snowman property extends 25 feet landward of the mean high water mark so that the setback requirement was properly applied when the development order was issued.

    
    

18. The Department asserts that the second ridge should be considered to be part of the beach berm. The Department's determination of the extent of the beach berm is bottomed on a more expansive definition of the term "beach berm" derived from its interpretation of various portions of the Monroe County Comprehensive Code. Inexplicably, the Department's interpretation of what should be considered to be included as part of the "beach berm" ignores the definition contained in Section 9.5-345(3)f, Monroe County Code.

    
    

19. The Department interprets the term "beach berm" to include not only the initial increase and decrease in elevation near the shoreline, but also those areas of calcareous substrate that form the second ridge and include the highest elevation on the subject property. The Department considers the beach berm to terminate 80 feet from the mean high water line where the elevation of the second ridge decreases and levels off to a more consistent grade. The Department characterizes the first ridge as a primary dune the second ridge as a secondary dune.

    
    

20. In support of its position, the Department cites the discussion of beach berms in the Florida Keys contained in Volume I of the Monroe County Comprehensive Plan. That discussion describes a berm in the Keys as the "higher, mostly vegetated dense-like sand ridges."

    
    

21. According to the Comprehensive Plan, the biota characteristics of beach systems in the Keys occur in up to four distinct generalized zones or associations, assemblages of plants and animals that have adapted to the environmental conditions of that zone. The zones on Keys beaches are described by Volume I of the Comprehensive Plan as follows:

    
    

    The strand-beach association is dominated by plants that are salt tolerant, root quickly, germinate from seed rapidly, and can withstand wave wash and shifting sand. Commonly found species include Sea Purslane, . . . Beach Grass,

    . . . Sea Oats, . . . [and] Bay Cedar. On most Keys beaches this association occurs only atthe base of the berm since the beach zone is very

    narrow. These plants also occupy themost seaward portion of the berm and continuesome distance landward.

    * * *

    The next zone, "strand-dune" association,begins with a steep and distinct increase inslope upward from the beach. . . . The bermmay be elevated only several inches or as much as several feet above the level of the beach and may extend landward hundreds of feet as a flat-topped plateau or beach ridge.

    The foreslope of the berm, or beach ridge, is vegetated primarily by the above-listed species of the beach association. Grasses and herbaceous plants, which serve to stabilize this area, are most common. Proceeding landward, these pioneer species are joined by other species.

    * * *

    The strand-scrub association is generallyconsidered a transition zone between strand-dune and hammock forest. Shrubs and occasional trees occur more frequently here and become more abundant as one proceeds landward. Species often found include Seagrape, . . . Wild Sage (Lantana involucrata), [and] Gray Nicker. . . . The most landward zone

    on the berm is occupied by tropical hardwood hammocks.

    
    

22. The term "berm" is identified in the Monroe County comprehensive plan

    as

    
    

    . . . a mound or ridge of unconsolidated sand that is immediately landward of, and usually parallel to, the shoreline and beach. A berm is higher in elevation than both the beach and the area landward of the berm.

    * * *

    The height and width of berms in the Keys is highly variable. They may range in height from slightly above mean high water to more than seven (7) feet above mean sea level. The width of berms in the Keys varies from tens of feet to more than 200 feet.

    
    

23. Despite the support the Department found in the Comprehensive Plan for a more stringent setback requirement, the Department is not at liberty to ignore the definition of the term beach berm contained in the land development regulations. While both ridges that exist on the Snowman property may be considered berms or dunes, only the first should be considered a beach berm.

    The first ridge is ". . . a bare, sandy shoreline with a mound or ridge of unconsolidated sand" within the meaning of Section 9.5-4(B-3), Monroe County Code. The second ridge is above the vegetation line and is not ". . . a bare, sandy shoreline" within the meaning of the definition of beach berm contained in the Monroe County land development regulations.

    CONCLUSIONS OF LAW

    
    

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

    
    

25. This is a timely appeal, pursuant to Section 380.07, Florida Statutes, from a development order of Monroe County granting Mr. Snowman's application for a building permit to develop a single-family residence and swimming pool on Lot 75, Matecumbe Ocean Beach subdivision, Lower Matecumbe Key, Monroe County, Florida. The activity authorized by the building permit is "development" as defined in the Monroe County land development regulations and Chapter 380, Florida Statutes. The building permit is a "development order" within the meaning of Chapter 380, Florida Statutes. See Section 9.5-4(D-8), Monroe County Code, and Section 380.04, Florida Statutes.

    
    

26. Although designated an appeal, this proceeding is properly considered to be a "de novo" proceeding pursuant to the provisions of Section 120.57(1), Florida Statutes. The initial burden of going forward with the 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 and the ultimate burden of persuasion was on the Department. 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).

    
    

27. 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." Young, supra, at 834.

    
    

28. The Department has the burden to establish by competent, substantial evidence that the permitted development authorized by building permit number 9330008850, does not comply with the Monroe County comprehensive plan and land development regulations, and that the development is, consequently, not in accordance with the provisions of Chapter 380, Florida Statutes. The Department's argument that the County's determination of the setback line is inconsistent with the Comprehensive Plan is rejected. The greater weight of the evidence established that marine turtles usually nest within 50 feet of the mean high water line and that the setback line as determined by the County protects that area.

    
    

29. The Department correctly argues that an agency's interpretation of its rules and governing statutes generally should be accorded deference and should not be overturned unless the interpretation is clearly erroneous. Health Quest Corporation, et al. v. Department of Health and Rehabilitative Services and Arbor Health Care Co., et al., 11 FALR 5427 (1989), ABC Liquors, Inc. v. Department of Business Regulation, 397 So.2d 696 (Fla. 1st DCA 1981); Department of Insurance v. Southeast Volusia Hospital District, 438 So.2d 815 (Fla. 1983). In this proceeding, however, the definition of the term "beach berm" contained in Section 9.5-4(B-3), Monroe County Code, is not ambiguous. The definition contained in the land development regulations should be followed in applying the setback since there is no clear contrary intent in the code to the contrary. See, Nicholson v. State, 600 So.2d 1101, 1103 (Fla. 1992) and Vocelle v. Knight

    Brothers Paper Company, 118 So.2d 664, 667, (Fla. 1st DCA 1960). Compare, 49 Fla. Jur. 2d, Statutes, Section 132. In Vocelle, supra, at 668, the First District Court of Appeal observed that the rule is

    
    

    . . . well settled that neither the court nor the administrative agencies have power to modify the plain purpose and intent of the Legislature as expressed by the language employed in the statute and thus to (sic) bring about what may be conceived in the minds of the judges or the administrators to be a more practical or proper result.

    
    

30. It is concluded that no deference should be afforded the Department's construction of the term "beach berm" because there is a plain and unambiguous definition of the term that is a part of the Monroe County Code. While a greater setback may better serves the goals of the comprehensive plan, as argued by the Department, the imposition of a greater setback requirement should come from a change in the Monroe County Code.

    
    

31. In his responsive pleadings, Respondent asserted as an affirmative defense that the Department was estopped to appeal this development order based on alleged action it had taken as to similar applications. The elements of estoppel are (1) a representation as to some material fact by the party estopped to the party claiming estoppel; (2) reliance upon the representation by the party claiming the estoppel; and (3) a change in such party's position caused by his reliance on the representation to his detriment. The act on which the aggrieved party relied must be one on which he had a right to rely. Monroe County v. Hemisphere Equity Realty, Inc., and Texas Largo, Inc., 634 So.2d 745 (Fla. 3rd DCA 1994). Respondent failed to establish any of the elements of estoppel.

    
    

32. In his responsive pleadings, Respondent requests an award of attorney's fees and costs pursuant to Section 57.105, Florida Statutes. The consideration of that request is premature unless and until Respondent becomes a "prevailing party" pursuant to a final order. See, Section 57.105(1), Florida Statutes.

RECOMMENDATION

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

final order that adopts the findings of fact and the conclusions of law

contained herein and denies the appeal filed by the Department of Community Affairs as to building permit number 9330008850 issued by Monroe County, Florida.

DONE AND ENTERED this 25th day of October, 1994, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-7165DRI

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

1. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 13, 14, 15, 16, 17, 18, 21, 25, 26, 27, 29, 32, and 33 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraphs 9 and 23 are rejected as being unnecessary to the conclusions reached.

3. The proposed findings of fact in paragraphs 10, 11, 12, 24, 28, and 31 are rejected as being subordinate to the findings made.

4. The proposed findings of fact in paragraph 19 are rejected as being unsubstantiated by the evidence and as a misconstruction of the cited testimony.

5. The proposed findings of fact in paragraphs 20, 22, and 34 are rejected as being unsubstantiated by the evidence.

6. The proposed findings of fact in paragraph 30 are rejected as being unnecessary to the conclusions reached since the setback is from any portion of the "beach berm complex" and not from any area that may be considered to be turtle nesting habitat.

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

1. The proposed findings of fact in paragraphs 1, 2, 3, 4, and 5 are summaries of testimony that are subordinate to the findings made.

2. The proposed findings of fact in paragraph 6 are rejected as being unsubstantiated by the evidence and contrary to the findings made.

3. The proposed findings of fact in paragraph 7 and 8 are adopted in material part by the Recommended Order.

COPIES FURNISHED:

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

Tallahassee, Florida 32399-2100

Nicholas W. Mulick, Esquire 88539 Overseas Highway

Tavernier, Florida 33070

Randy Ludacer, Esquire Monroe County Attorney

1. Fleming Street

   Key West, Florida 33040

   
   

   Mr. Fred Snowman Post Office Box 771

   Islamorada, Florida 33035

   
   

   Carolyn Dekle, Director

   South Florida Regional Planning Council Suite 140

   3400 Hollywood Boulevard

   Hollywood, Florida 33021

   
   

   David K. Coburn, Secretary Florida Land & Water

   Adjudicatory Commission

2. 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.

Docket for Case No: 93-007165DRI

Orders for Case No: 93-007165DRI