STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF COMMUNITY AFFAIRS, )

)

Petitioner, )

)

vs. ) CASE NO. 94-0868DRI

)

BRUCE A. SCHMITT, Owner; )

MARATHON WOODWORKING, )

General Contractor; and MONROE ) COUNTY, a political subdivision ) of the State of Florida, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on June 29, 1994, in Key West, Florida.

APPEARANCES

For Petitioner: Brigette A. Ffolkes, Esquire

Assistant General Counsel Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

For Respondent, Bruce A. Schmitt, pro se Bruce A. Schmitt: Post Office Box 510021

Key Colony Beach, Florida 33051-0021

For Respondent,

Marathon Woodworking: No Appearance

For Respondent,

Monroe County: No Appearance STATEMENT OF THE ISSUES

Whether Building Permit Number 9320003962 (for the construction of a dock) issued by Monroe County, Florida, to Bruce A. Schmitt, as Owner, and Marathon Woodworking, as General Contractor, is inconsistent with the provisions of Chapter 380, Florida Statutes, the Monroe County Comprehensive Plan, and the Monroe County Land Development Regulations.

PRELIMINARY STATEMENT

Monroe County issued to the Respondents a building permit to construct a dock at Mr. Schmitt's single family residence. Petitioner timely filed its

appeal to the Florida Land and Water Adjudicatory Commission challenging Monroe County's issuance of the subject building permit pursuant to Section 380.07, Florida Statutes, and this proceeding before the Division of Administrative Hearings followed. The Department's timely motion for leave to amend its notice of appeal was granted, and the matter proceeded to hearing on the amended notice of appeal.

At the formal hearing, Petitioner presented the testimony of Kenneth Metcalf and Kathleen Paxton Edgerton, and it introduced one exhibit which was admitted into evidence. Mr. Metcalf was accepted as an expert in land use planning and in the application of Chapters 380 and 163, Florida Statutes, the Monroe County Comprehensive Plan and the Monroe County Land Development Regulations. Mrs. Edgerton was accepted as an expert in marine biology.

Respondent presented the testimony of Patricia McNeese and introduced six exhibits which were admitted into evidence. Mrs. McNeese was accepted as an expert in marine biology.

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.

   
   

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

   
   

3. Respondent, Bruce Schmitt, is the owner of real property known as Section 15, Township 66, Range 32, Sombrero Beach Road and Tingler Lane - 88 Tingler Lane, Vaca Key Bright, Florida.

   
   

4. Most of Monroe County, including the subject property, is within the Florida Keys Area of Critical State Concern, as designated under Sections 380.05 and 380.0552, Florida Statutes.

   
   

5. On May 25, 1993, Monroe County issued building permit number 9320003962 to Bruce A. Schmitt, Owner, and Marathon Woodworking, General Contractor, authorizing the construction of a 4 feet X 140 feet wooden dock with a 4 feet x

   40 feet terminus.

   
   

6. The site of the permitted dock is on an open water shoreline. Running parallel to this shoreline is a channel that is greater than four feet in depth at mean low tide and is greater than twenty feet in width. The permitted dock will terminate at the edge of that channel in an area that is at least four feet deep at mean low tide and more than 20 feet in width. There are no hard coral bottoms found in the area where the dock will terminate.

7. In the vicinity where Mr. Schmitt proposes to construct his dock, there is a channel that is perpendicular to the shoreline that intersects with the channel that is parallel to the shoreline. This perpendicular channel leads out to deep water. The channel providing access to deep water crosses an area of shallow water, which is an area of flats that is referred to by the Department as a shoal. The water depth of this area at mean low tide ranges between 3.0 and 3.5 feet.

   
   

8. The channel running parallel to the shoreline and the channel leading out to deep water are not marked. Boats that use this area traditionally have used the channel that is parallel to the shoreline to access the channel in front of Mr. Schmitt's property that leads to deep water. These boats thereafter access deep water by crossing the area of flats that is referred to by the Department as a shoal. While it was established that boats cannot navigate around the shoal, the dimensions of the shoal were not established.

   
   

9. Natural shallow water marine communities, such as seagrasses, exist in the waters in the navigation route for boats that will use the permitted dock. Sea grass beds play an important role in water quality maintenance in the Keys through filtration and nutrient uptake and serve as nursery habitats for fisheries.

   
   

10. The cumulative impact of the operation of propeller- driven boats in the Keys results in damage and destruction to shallow water marine communities, such as sea grass beds, through prop dredging.

    
    

11. There is evidence of considerable prop dredging of the sea grass beds in the shallow waters offshore of the subject property. Boats have been known to run aground in the flats off Mr. Schmitt's property.

    
    

12. Any boat using the permitted dock will have to cross shallow waters with seagrass with water depths of less than four feet at mean low tide.

    
    

13. Pursuant to the provisions of Sections 380.05 and 380.0552, Florida Statutes, Monroe County has adopted a comprehensive plan which complies with the Principles for Guiding Development found at Section 380.0552(7), Florida Statutes. Section 380.0552(7), Florida Statutes, requires Monroe County land development regulations to comply with certain principles for guiding development, including the following:

    
    

    (b) to protect shoreline and marine resources, including mangroves, coral reef formations, wetlands, fish and wildlife and their habitat.

    * * *

    (e) to limit the adverse impacts of development on the quality of water throughout the Florida Keys . . .

    
    

14. Monroe County's Comprehensive Plan, which has been approved by the Department and by the Administration Commission, is implemented, in part, through its adopted land development regulations, codified in Chapters 6 and 9.5, Monroe County Code. Section 9.5-345(m) (2), Monroe County Code, provides as follows:

    
    

    (2) All structures on any submerged lands and mangroves shall be designed, located, and con- structed such that:

    * * *

    1. No structure shall be located on submerged land which is vegetated with seagrasses except as is necessary to reach waters at least four

       (4) feet below mean low levels for docking facilities;

    2. No docking facilities 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.

15. Section 9.5-4(W-1), Monroe County Code, provides as follows: (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 purposes 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.

    
    

16. Section 2.104, Nearshore Waters, Monroe County Comprehensive Plan, Volume II, Future Land Use Element, provides as follows:

    
    

    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, to improve the quality of nearshore waters in Monroe County.

    2. POLICIES

       1. To prohibit land use that directly or indirectly degrades 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 locations 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, habitat of state or federal threatened or 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.

       
       

17. There are no channel markers to deep water in the area of the permitted dock that have been approved by the Department of Environmental Protection.

    
    

18. There was a dispute in the evidence as to whether marking the channel that has served this area as the access route to deep waters would be appropriate and whether such marking would create a navigational hazard. The conflict in the evidence presented is resolved by concluding that the marking of the channel that serves as the navigation access route for boats that will use the permitted dock is appropriate, will aid navigation, and will not create a navigation hazard. This conclusion is reached, in part, because the channel is well defined by its long-term use and connects with the channel that is parallel to the shoreline at a known point.

    
    

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.

    
    

20. The subject appeal was timely taken by Petitioner pursuant to Section 380.07(2), Florida Statutes, from a development order of Monroe County granting Mr. Schmitt's request for a building permit to construct a dock on his residential lot in the Vaca Key Bright area. While referred to as an "appeal", the propriety of Monroe County's action was reviewed de novo. The ultimate burden of persuasion rested on the Department of Community Affairs. See, Section 120.57(1), Florida Statutes, and Young v. Department of Community Affairs, 525 So.2d 831 (Fla. 1993).

    
    

21. The subject building permit, which is a development order in the Florida Keys Area of Critical State Concern, must be consistent with the provisions of Chapter 380, Florida Statutes, the local development regulations, and the local comprehensive plan. See, Section 380.05, Florida Statutes, which provides that "[n]o person shall undertake any development in any area of critical state concern except in accordance with this chapter." Section 163.3194(3), Florida Statutes, explains consistency to mean, in part, that a development order must be "compatible with and further the objectives, policies, land uses . . . in the comprehensive plan." This consistency requirement has been interpreted to require "strict compliance" with the local comprehensive plan. Board of County Commissioners of Brevard County v. Snyder, 627 So.2d 469, 475 (Fla. 1993).

    
    

22. By its Final Order entered April 7, 1993, in Department of Community Affairs v. Clark, DOAH Case No. 92-2957DRI, the Florida Land and Water Adjudicatory Commission considered a permit to construct a dock on a canal that was dredged for a subdivision. While the dock in Clark, supra, terminated in the canal that had adequate water depth, boats using the canal could not access deep water without crossing areas that were less than four feet at mean low tide. In Clark, supra, the Commission declined to accept the Department's position that Section 9.5-345(m) (2), Monroe County Code, and Section 2.104, Nearshore Waters, Monroe County Comprehensive Plan, Vol. II, Future Land Use Element, require continuous navigation access with mean low water depths of at least four (4) feet at mean low tide to deep waters. Instead, the Commission

    determined that the permit should be conditionally denied until such time as the appropriate agency (at that time the Department of Natural Resources) could mark an appropriate access channel. 1/

    
    

23. Boats that will use the permitted dock will not have continuous navigation access with water depths of at least four (4) feet depth at mean low tide to deep waters because of the shallow area of the flats. Consequently, it is concluded that it would be appropriate to conditionally deny the subject building permit until the channel by which boats using the dock to access deep water can be properly marked. That result would be consistent with the result reached in Clark, supra.

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 which conditionally denies Building Permit Number 9320003962, but which authorizes Monroe County to issue that permit once the access channel to deep water has been properly marked and approved by the Department of Environmental Protection.

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.

ENDNOTE

1/ The Clark case is on appeal, but no decision of the appellate court has been entered as of the entry of this Recommended Order.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-0868DRI

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, 11, 12, 13, 14, 15, 16, 17, 19, 20, 21, 22, and 24 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraphs 7, 9, and 18 are rejected as being contrary to the findings made.

3. The proposed findings of fact in paragraph 10 are adopted in part by the Recommended Order. The proposed findings of fact pertaining to the terminus of the dock are rejected to the extent they are contrary to the findings made.

4. The proposed findings of fact in paragraph 23 are rejected as being unnecessary as findings of fact. The Department's position is discussed in the conclusions of law portion of the Recommended Order.

The proposed findings of fact submitted by the Respondent are adopted in material part by the Recommended Order with the exception of the proposed findings in paragraph 12, which are subordinate to the findings made.

COPIES FURNISHED:

Brigette A. Ffolkes, Esquire Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

Bruce A. Schmitt, pro se Post Office Box 510021

Key Colony Beach, Florida 33051-0021

Marathon Woodworking

203 107th Street Gulf Marathon, Florida 33050

James T. Hendrick, Esquire Morgan & Hendrick

317 Whitehead Street Key West, Florida 33040

Carolyn Dekle, Director

South Florida Regional Planning Council 3400 Hollywood Boulevard, Suite 140

Hollywood, Florida 33021

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.

Docket for Case No: 94-000868DRI

Orders for Case No: 94-000868DRI