STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF COMMUNITY AFFAIRS, )

)

Petitioner, )

)

vs. ) CASE NO. 96-1405DRI

) CHARLES RIVER LABORATORIES, INC., )

Owner; MICHAEL C. COPPOLA, General ) Contractor; and MONROE COUNTY, ) FLORIDA, )

)

Respondents, )

)

and )

CURTIS R. KRUER, )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, Claude B. Arrington, held a formal hearing in the above-styled case on August 7 and 8, 1996, in Marathon, Florida.

APPEARANCES

For Petitioner: Karen Brodeen, Esquire

Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100

For Respondent Robert A. Routa, Esquire Charles River Robert A. Routa, P.A. Laboratories, Post Office Box 6506

Inc.: Tallahassee, Florida 32314

For Respondent No Appearance Michael C. Coppola:

For Respondent No Appearance Monroe County:

For Intervenor: Richard Grosso, Esquire

Nova Southeastern Civil Clinic 3305 College Avenue

Fort Lauderdale, Florida 33314

STATEMENT OF THE ISSUES

Whether the subject activities of Charles River Laboratories, Inc. (CRL) constitute development within the meaning of Chapter 380, Florida Statutes.

Whether the challenged after-the-fact building permit is contrary to the provisions of Chapter 380, Florida Statutes, the Monroe County Comprehensive Plan (Comprehensive Plan), and the Monroe County Land Development Regulations (LDRs).

Whether the Department of Community Affairs (DCA) is barred by the Doctrine of Equitable Estoppel from challenging the after-the-fact permit issued by Monroe County.

Whether the DCA and Curtis Kruer are barred by the Doctrine of Collateral Estoppel from challenging the after-the-fact permit.

Whether the action by the DCA is consistent with prior agency practice.

PRELIMINARY STATEMENT

DCA timely filed its appeal to the Florida Land and Water Adjudicatory Commission challenging Monroe County's issuance of Building Permit No. 95-1- 1459. This after-the-fact permit pertained to four structures that have been constructed by CRL in Monroe County in areas of critical state concern. The structures are used in CRL's monkey farming on Key Lois and Raccoon Key. Three structures, referred to as feeding stations, have been constructed on Raccoon Key and the other structure, referred to as Field Cage 7, has been constructed on Key Lois. The appeal was referred to the Division of Administrative Hearings, and this proceeding followed.

At the formal hearing, DCA presented the testimony of Randall Grau and Leonard E. "Ty" Smyroski. Mr. Grau is employed by the Florida Department of Environmental Regulation as its Environmental Manager for its Marathon, Florida, office. Mr. Smyroski is employed by DCA and has responsibility for administering the DCA's program for the Florida Keys Area of Critical State Concern. Mr. Smyroski was accepted as an expert in land use planning and as an expert in the application of the Monroe County code. DCA offered four exhibits, three of which were admitted into evidence. DCA withdrew its exhibit 1.

CRL presented the testimony Antonia Gerli, Paul Wesley Schilling, Martin Roessler, and, by deposition, Charles Pattison. Ms. Gerli, the Development Review Coordinator for Monroe County, was accepted as an expert in the field of land planning. Dr. Schilling, a veterinarian, is the director of CRL's activities in the Florida Keys and was accepted as an expert in primatology.

Dr. Roessler was accepted as an expert in the fields of marine biology, ecology, and water quality. CRL offered its exhibits pre-marked as 1-11, 13-24, and 26- 27, of which its exhibits 20 and 24 and one page of its exhibit 13 were rejected. There was no exhibit 12 and CRL exhibit 25 was withdrawn since it was identical to DCA's exhibit 3. All other CRL exhibits were admitted into evidence.

Intervenor, Curtis Kruer, presented the testimony of Roy Robert "Robin" Lewis, III, Patricia N. McNeese, and Dennis W. Henize. Mr. Lewis and Ms.

McNeese were accepted as experts in biology and ecology of the Florida Keys. Mr. Henize was accepted as an expert regarding hurricanes. In addition, Mr. Kruer testified in support of his standing as an intervenor. Mr. Kruer

presented 13 exhibits. All of Mr. Kruer's exhibits were admitted into evidence, but his exhibit 7 was limited to the drawings contained in the exhibit. Because of an illness in his family, Mr. Grosso was not present at the second day of the hearing. Mr. Kruer elected to proceed in Mr. Grosso's absence and declined the opportunity to continue the proceedings.

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.

FINDINGS OF FACT

THE PARTIES

1. Petitioner is the state land planning agency that administers 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. The appeal in the instant proceeding was timely.

   
   

2. Monroe County is a political subdivision of the State of Florida and is responsible for issuing permits for construction in unincorporated Monroe County. Monroe County issued Permit 95100012145, the permit that is the subject of this appeal, on December 1, 1995. Monroe County did not actively participate at the formal hearing.

   
   

3. Charles River Laboratories (CRL) is the applicant for the permit that is the subject of this appeal. Paul Schilling, D.V.M., has been the director of CRL's monkey breeding activities in the Keys since 1983 and signed the application for the permit on behalf of CRL. CRL applied to Monroe County for an after-the-fact building permit for certain work that had been completed on Raccoon Key and Key Lois. The building permit subsequently issued by Monroe County and challenged in this proceedings authorized certain work done on three feeding stations on Raccoon Key and certain work done on a field cage on Key Lois. The field cage is used as a breeding pen for monkeys.

   
   

4. Michael C. Coppola signed the application as the general contractor of record. Mr. Coppola did not participate in this proceeding.

   
   

5. Intervenor, Curtis Kruer, moved to the Florida Keys in 1977. He resides on Big Pine Key and maintains an office on Summerland Key. Mr. Kruer is a recreational fisherman and a licensed fishing guide and boat captain. He earns a portion of his livelihood as a fishing guide and has, in the past, chartered trips to the shallow waters surrounding Key Lois and Raccoon Key. In recent years, he has stopped fishing these areas because of what he perceives to be diminished fish population caused by degraded water quality and less seagrass extent and quality. Mr. Kruer is also of the opinion that there has been a diminution of the aesthetic character of the islands. Mr. Kruer attributes these negative impacts to CRL's use of the islands.

   
   

6. In addition to commercial fishing activities, Mr. Kruer has fished the waters of both islands for recreation. He has reduced his recreational fishing around Key Lois because of the environmental degradation, but he continues to fish for recreation around Raccoon Key.

7. Mr. Kruer has shown that he has been impacted by the activities of CRL on Key Lois and Raccoon Key and that he will be further impacted if those activities continue. He established that he has the requisite standing to intervene in this proceeding.

   
   

   AREA OF CRITICAL STATE CONCERN

   
   

8. 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. These statutory provisions require that Monroe County adopt and implement a comprehensive plan and land development regulations consistent with the Principles for Guiding Development found at Section 380.0552(7), Florida Statutes.

   
   

   THE MONROE COUNTY COMPREHENSIVE PLAN

   
   

9. The Monroe County Comprehensive Plan was adopted by the Monroe County Commission on February 28, 1986, and became effective on September 15, 1986 (Comprehensive Plan). The Comprehensive Plan complies with the Principles for Guiding Development and has been approved by the Petitioner and by the Administration Commission. The Monroe County Comprehensive Plan is implemented by and through its adopted land development regulations (LDRs), codified primarily in Chapter 9.5, Monroe County Code (M.C.C.). Although there have been subsequent amendments to the Comprehensive Plan, those amendments have not been shown to be relevant to this proceeding. CRL's use of these islands predated the adoption of the Comprehensive Plan.

   
   

10. Prior to the adoption of the Monroe County Comprehensive Plan, all pertinent permitting agencies, including the Department of Community Affairs, were aware of CRL's activities on these two islands. In the 1980s Dr. Schilling met with representatives of the Department of Community Affairs and with Monroe County staff, including the Monroe County biologist. Dr. Schilling was not told during any of these meetings that the Department of Community Affairs objected to its operations on these two islands.

    
    

11. The actual uses CRL was making of these two islands at the time the Comprehensive Plan was adopted was not incorporated into the Comprehensive Plan. In 1984, Jim Murley was employed by the Department of Community Affairs, but not as its director, the position he currently holds. Mr. Murley advised CRL's attorney in 1984 that CRL should insure its continued use of the two islands by writing itself into the comprehensive plan so that there is no conflict with its use of the two islands and the adopted plan. Despite that advice, CRL did not file anything with Monroe County in an effort to write its use of the two islands into the Comprehensive Plan.

    
    

12. CRL's use of these islands has not been registered with Monroe County as nonconforming use. Although the Monroe County Code provides for such registration, the evidence established that Monroe County has never undertaken the task of registering nonconforming uses in the county.

    
    

    THE PROPERTY

    
    

13. CRL owns Key Lois and Raccoon Key, two offshore islands in the general vicinity of Cudjoe Key and Summerland Key that are within the Florida Keys Area of Critical State Concern.

14. Key Lois, formerly known as Loggerhead Key, is located within the Florida Keys Marine Sanctuary approximately two miles south of Cudjoe Key in Hawk's Channel, which is in the Atlantic Ocean. CRL owns approximately 57 acres on Key Lois above the mean high water line.

    
    

15. Raccoon Key is located in the Great White Heron National Wildlife Refuge, which is also within the Florida Keys National Marine Sanctuary and lies approximately three miles north of Cudjoe Key in the Gulf of Mexico. 1/ CRL owns approximately 100 acres on Raccoon Key that is above the mean high water line.

    
    

16. CRL breeds reheus monkeys (Macaca mullata) on these two islands and also utilizes a land base on Summerland Key as part of its monkey farming operation. The monkeys that are bred on these two islands are either kept for future breeding or are sold for medical research related to human health. These monkeys are an important resource for medical research. The islands were selected, in part, because it would enable CRL to keep the monkeys isolated from diseases.

    
    

17. Monkey breeding is properly considered a commercial activity as opposed to an agricultural activity.

    
    

18. CRL began its monkey breeding operations on Key Lois in 1973 and on Raccoon Key in 1976. When they were first introduced to the Keys, the monkeys on both islands were not confined so that each monkey had free-range of its island. As a result of a dispute with the Florida Department of Environmental Regulation (FDER), CRL has agreed to a scheduled reduction of the monkeys' access to both islands. 2/ CRL has agreed to eliminate all free ranging monkeys from Key Lois by the year 2003 and to eliminate all free ranging monkeys from Raccoon Key by the year 2008.

    
    

19. The monkey population reached its zenith in 1983 about the time Dr. Schilling assumed his responsibilities as the director of CRL's monkey breeding activities in the Keys. At that time the monkey population on Key Lois was approximately 2,000 and the monkey population on Key Raccoon was approximately 4,000. Since that time there has been a steady decline in the monkey population on both islands and, at the time of the formal hearing, there were approximately

    200 monkeys on Key Lois and 1,000 monkeys on Raccoon Key.

    
    

20. CRL supplies food and water to the monkeys on a daily basis.

    
    

    THE STRUCTURES

    
    

21. The structure at issue on Key Lois is a field cage which was reconstructed from a former holding pen with solid walls to a structure whose sides and ceiling is chain link fencing. In the permit that is at issue in this proceeding, the structure is referred to as Field Cage 7. The structure was formerly referred to as Compound III. A permit for the former holding pen (then referred to as Compound III) was issued by the Army Corps of Engineers (ACOE) on June 22, 1983. Compound III was described by that ACOE permit as follows: "96' x 48' x 12', galvanized sheet metal and chain link fencing with pipes set in concrete. Used for feeding, watering and trapping monkeys. Construction date 1972."

    
    

22. The former pen was initially used as a temporary holding pen for newly acquired animals. CRL now uses this structure as a breeding pen.

23. Glen Boe and Associates prepared the sketches that were attached to CRL's permit application to Monroe County. The sketch depicted the basic structure 3/ of Field Cage 7 as being 50 feet in width and 100 feet in length, which is slightly larger than the description on the ACOE permit. Despite those differences, the footprint of the basic structure has not been enlarged. The discrepancy between the ACOE permit and the Boe drawing is an error.

    
    

24. In addition to the basic structure, the Boe drawings also depict two small holding pens on either end of the cage. These holding pens are approximately 10' x 15' on one end and 10' x 20' on the other end. These holding pens facilitate the handling of monkeys and were added to the structure, without a permit, in 1988.

    
    

25. The floor of Field Cage 7 is sand. The walls and top are supported by galvanized pipe on ten foot centers. These pipes are sunk in concrete footers. The walls, gates, and top of the structure are constructed of the same materials that are used for a typical chain link fence, with galvanized pipe being used for the framework. The solid walls were removed because they were corroding, they were too hot, and they were not keeping the monkeys confined. The chain link material provides a more suitable cage for the monkeys and is less wind resistant than solid walls. During spring high tides, all of Key Lois is typically inundated with water except for a narrow sand berm. In some years, this sand berm has been partially inundated.

    
    

26. The three feeding stations on Raccoon Key were designed to be a feeding station that could also be used to trap and confine adult monkeys. Each of these structures is an octagon that is 32 feet in length and 32 feet in width with an open top, gates, and chain link fencing at the bottom of the walls. The wall above the chain link portion is constructed of smooth sheet metal, which prevents the monkeys from climbing over the top of the structure when the doors are closed for the purpose of trapping and confining monkeys. The three feeding cages on Raccoon Key are located in areas that flood during spring tides

    
    

27. Both Raccoon Key and Key Lois are vulnerable to hurricanes. These islands would likely be inundated and the structures obliterated if a major hurricane were to strike them.

    
    

    DEVELOPMENT

    
    

28. 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. 4/

    
    

29. CRL argues that these should be construed to be temporary structures and that the building activity associated with those temporary structures does not require a building permit. CRL did not establish that these structures, which are expected to remain in place for over a decade, are exempt from permitting requirements as temporary structures.

    
    

    THE SUBJECT PERMIT

    
    

30. CRL has received permits from different permitting agencies for various structures, a marina, and a dock facility. It has also received letters advising that certain activities did not require a permit. There are structures on both islands that were constructed by CRL without the benefit of a building

    permit. CRL applied for the subject building permit after Curtis Kruer complained to Monroe County staff that there had been building activity on the two islands that had not been permitted. Thereafter, CRL was contacted by Monroe County staff. Dr. Schilling testified that CRL did not believe that a building permit was required since the structures have no roofs and were constructed either in the same footprint as prior structures or were moved at the direction of the FDER. Rather than argue with Monroe County's staff, Dr. Schilling caused an application to be filed that resulted in the challenged building permit.

    
    

31. The application, filed October 11, 1995, was for permits for three feeding cages on Raccoon Key, a field cage (Field Cage 7) on Key Lois, and fencing. The permit application does not refer to any agency agreements, identify any other structures on the islands, indicate whether these structures replace or relocate other structures, or identify any habitat types or areas. The permit application contains drawings that reflect that the structures are more than fifty feet from the waters that surround the two islands.

    
    

32. The permit that was subsequently issued was for the three feeding cages and the field cage only. The fencing was not permitted. This permit constitutes a development order. The Department of Community Affairs routinely reviews development orders issued in the Florida Keys Area of Critical State Concern. The Department timely filed its appeal of this development order. There was insufficient evidence to establish that the Department's appeal of this development order was inconsistent with prior agency practice.

    
    

33. Monroe County typically requires a habitat analysis and a computation reflecting that a project satisfies the open space requirements contained in LDRs. The county biologist usually conducts a site inspection. In this case, Monroe County did not require a habitat analysis, an open space computation, or a site visit by the county biologist because it viewed these structures as reducing a nonconforming use. The staff considered CRL's use of the entire islands to be the nonconforming use that was being reduced.

    
    

34. Monroe County has adopted an official "existing conditions map" that should show the vegetation, natural features, and developed land in the county. 5/

    
    

35. If the existing conditions map does not show a habitat designation, the habitat should be determined by field verification. The existing conditions map reflects the habitat for Raccoon Key, but it does not designate the habitat of Key Lois.

    
    

    THE LAND USE DISTRICT

    
    

36. Section 9.5-202 establishes the different land use districts for Monroe County 6/ , including a land use designated as "Offshore Island District (OS)", the designation in which Raccoon Key and Key Lois fall. Section 9.5-212 pertains to the purpose of the "Offshore Island District (OS)" designation and provides as follows:

    
    

    The purpose of the OS district is to establish areas that are not connected to

    U.S. 1 as protected areas, while permitting low intensity residential uses and campground

    spaces in upland areas that can be served by cisterns, generators and other self-contained facilities.

    
    

37. Section 9.5-231 pertains in general to the permitted uses in the different land use districts and provides, in pertinent part, as follows:

    
    

    1. No structure or land in Monroe County shall hereafter be developed, used or occupied unless expressly authorized in a land use district in this division. . . .

       
       

38. Section 9.5-241 lists the uses that are permitted as of right in the Offshore Island District and the uses that are permitted as major conditional uses. The use CRL makes of the two offshore islands involved in this proceeding is not included as an "of right use" or as a "major conditional use." The use CRL makes of these two islands is inconsistent with the OS designation. That use is of greater impact than those contemplated by the OS designation.

    
    

    NONCONFORMING USES AND NONCONFORMING STRUCTURES

    
    

39. Prior to the building activity at issue in this proceeding, the Field Cage 7 on Key Lois and the three feeding stations on Raccoon Key were nonconforming structures. 7/ CRL's use of both islands are nonconforming uses.

    
    

40. Article V of the LDRs pertains to nonconforming uses. Section 9.5-141 provides, in pertinent part, as follows:

    
    

    The purpose of this article is to regulate and limit the continued existence of uses and structures established prior to the enactment of this chapter that do not conform to the provisions of this chapter. Many nonconformities may continue, but the provisions of this article are designed to curtail substantial investment in noncon- formities and to bring about their eventual

    elimination in order to preserve the integrity of this chapter.

    
    

41. Section 9.5-143 pertains to "nonconforming uses" and provides, in pertinent part, as follows:

    
    

    1. Authority to Continue: Nonconforming uses of land or structures may continue in accordance with the provisions of this section.

    2. Ordinary Repair and Maintenance: Normal maintenance and repair to permit continuation of registered nonconforming uses may be performed.

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

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

    4. Relocation: A structure in which a nonconforming use is located may not be moved unless the new use thereafter shall conform to other limitations of the land use district into which it is moved.

    5. Change in Use: A nonconforming use shall not be changed to any other use unless the new use conforms to the provisions of the land use district in which it is located.

       
       

42. Section 9.5-144 pertains to "nonconforming structures" and provides, in pertinent part, as follows:

    
    

    1. Authority To Continue: A nonconforming structure devoted to a use permitted in the land use district in which it is located may continue in accordance with the provisions

       of this section.

    2. Ordinary Repair and Maintenance: Normal maintenance and repair of registered nonconforming structures may be performed.

    3. Enlargements and Extensions: Noncon- forming structures which are used in a manner conforming to the provisions of this chapter may be enlarged or extended provided that the nonconformity is not further violated.

    4. Relocation: A nonconforming structure

       . . . shall not be moved unless it thereafter shall conform to the regulations of the land use district in which it is located. . . .

       
       

       ACTIVITY WAS NOT REPAIR AND MAINTENANCE

       
       

43. The building activity on Raccoon Key involved new construction as opposed to repair and maintenance of existing nonconforming structures. These structures were abandoned or razed and the three new structures with a different design and constructed of different materials in a different footprint were built.

    
    

44. The building activity on Key Lois was new construction as opposed to repair and maintenance of an existing nonconforming structure. The former structure, with the exception of the two holding pens that were added in 1988 without a permit, should be considered to be a nonconforming structure. The structure was dismantled to its foundation and a completely new structure was erected. With the exception of the holding pens on either end, the new structure was constructed in the footprint of the previous, nonconforming structure.

    
    

45. A building permit from Monroe County was required for the building activity at issue in this proceeding.

    
    

    OPEN SPACE REQUIREMENTS

    
    

46. An open space ratio is defined in Section 9.5-4(0-4) as ". the

    percentage of the total gross area of a parcel that is open space." There are two different open space ratios applicable to the subject permit. One is based on the land use district designation and the other is based on the type habitat

    on the property. In the instance where a land use district open space ratio and a habitat open space ratio are different, the higher open space ratio applies.

    
    

47. The open space ratio requirement for the Offshore Island land use designation is found at Section 9.5-262, M.C.C., and requires that 95 percent of the area be left as open space.

    
    

48. Section 9.5-343, M.C.C., contains the open space ratios designed to protect habitat. These open space ratios vary depending on the land type depicted on the Existing Conditions Map, which has been adopted and shows vegetation, natural features, and developed lands.

    
    

49. On Raccoon Key, these three designations are depicted on the Existing Conditions Map: "fringing mangroves", "saltmarsh and buttonwood associations", and "speciality farms". Much of the island consists of fringing mangroves. A portion along the eastern shoreline is designated saltmarsh and buttonwood. Five areas in which CRL had placed structures are designated as speciality farms.

    
    

50. The southernmost of the feeding stations on Raccoon Key at issue in this proceeding and Field Cage 7 on Key Lois are in fringing mangrove areas, a designation that has an open space requirement of 100 percent. Section 9.5- 345(m), M.C.C., authorizes the construction of piers, docks, utility pilings, and walkways in mangroves. The feeding station and the field cage are not the type structures that can be built in mangroves.

    
    

51. The other two feeding stations on Raccoon Key at issue in this proceeding are in areas with 95 percent open space ratios.

    
    

52. Dr. Schilling performed an open space analysis by which he concluded that all structures on both islands at issue in this proceeding met the applicable open space requirements. The southernmost feeding station on Raccoon Key and Field Cage 7. Key Lois do not comply with the open space ratio requirement. As to the other structures, the Department of Community Affairs established that Dr. Schilling's analysis was flawed. The evidence failed to establish whether the remaining structures meet the open space requirements.

    
    

    SETBACK REQUIREMENTS

    
    

53. Section 9.5-286(b) pertains to shoreline setback requirements and provides as follows:

    
    

    (b) All buildings other than docks, utility pilings, walkways, nonenclosed gazebos and fences and similar structures shall be set back fifty (50) feet from natural water bodies with unaltered shorelines or unlawfully altered shorelines, measured from the landward limit of mangroves, if any, and where mangroves do not exist, from mean high tide line.

    
    

54. The Monroe County staff relied on the drawings attached to the application in concluding that the structures comply with setback requirements. These drawings erroneously reflect that Field Cage 7 is more than 50 feet from the water and they do not reflect the landward extent of mangroves.

55. The shoreline on Key Lois is unaltered. Field Cage 7 is obviously within 50' of the shoreline. Field Cage 7 does not comply with the setback requirement found in Section 9.5-286(b), M.C.C.

    
    

56. The shoreline on Raccoon Key is unaltered. All three of the feed stations at issue in this proceeding are within 50' of the landward extent of mangroves. These three feed stations do not comply with the setback requirement found in Section 9.5-286(b), M.C.C.

    
    

    ADVERSE ENVIRONMENTAL IMPACTS

    
    

57. Despite the food that is provided, the free roaming monkeys have destroyed mangroves on the two islands. In the process of pulling leaves off the mangroves, the monkeys strip bark and break branches from the mangroves. The adverse impact on the mangroves is evident, with dead mangroves being observed in large quantities on both islands. Because Key Lois is a sand key,

    the absence of mangroves to stabilize its shorelines and to break or absorb wave energy has contributed to erosion.

    
    

58. Nutrients from fecal waste and food reach the nearshore waters of both islands. The excessive nutrient loading has contributed to algal blooms and the degradation of those nearshore waters.

    
    

    PRIOR DISPUTES

    
    

59. In the 1980s, a dispute developed between CRL and the FDER regarding CRL's activities on these two islands. As a result of that dispute and after several years of negotiation, CRL and the FDER settled their dispute by the execution of two consent orders, one pertaining to Key Lois and the other pertaining to Raccoon Key. The Department of Community Affairs was not a party to that dispute and did not participate in the negotiations.

    
    

60. In 1986, CRL filed a civil action in the Circuit Court of the Sixteenth Judicial Circuit in and for Monroe County, Florida, against the Governor and Cabinet sitting as the Board of Trustees of the Internal Improvement Trust Fund (Board of Trustees) to determine the mean high water line for the purposes of delineating the boundary between the lands owned by CRL and the sovereign submerged lands held in trust by the State of Florida. The case number assigned to that proceeding was 86-190-CA-13. That civil action was settled, with the consent agreements between CRL and FDER being incorporated by reference. The Department of Community Affairs was not a party to the suit between CRL and the Board of Trustees and did not participate in the negotiations that resulted in the settlement agreement. 8/

    
    

61. The settlement agreement between CRL and the Board of Trustees was approved by the circuit judge presiding over the civil action and was incorporated by reference in the court's "Consent Final Judgment" entered in Case No. 86-190-CA-13. The court's order provided in part, that the ". . .terms and conditions contained in [the Settlement Agreement] shall govern the parties' conduct and define their respective duties and obligations." By its settlement agreement with the Board of Trustees, CRL agreed to cease its operations on Key Lois and convey title to Key Lois to the State of Florida no later than December 31, 2012. It also agreed to cease its operations on Raccoon Key and quitclaim its ownership of Raccoon Key to the United States for inclusion in the National Wildlife Refuge System no later than December 31, 2024.

62. The consent agreements with the FDER requires CRL to obtain all governmental permits that are necessary to effectuate the terms of the agreements. Those provisions require CRL to obtain any necessary building permits.

    
    

63. The settlement agreement between CRL and the Board of Trustees also included the following: ". . . [H]usbandry practices will be changed to reduce the free-ranging population. Nonproductive animals will be intensely culled; selective breeders will be replaced and juveniles will be confined in corral gang-type caging similar to that used by many zoos."

    
    

64. The provisions of the consent order between CRL and FDER for Key Lois included the scheduled reduction of the free-range population of animals, to culminate with the elimination of all free-ranging monkeys during the year 2003, and the restoration of the previously damaged mangrove areas on the island. "Holding Compound III," now referred to as Field Cage 7, was identified on a location map. The following comment reflected the future plans for this structure: "This compound will be renovated and turned into the first breeding corral."

    
    

65. The provisions of the consent order between CRL and FDER for Raccoon Key also provided for the scheduled reduction of the free-range population of animals , to culminate with the elimination of all free-ranging monkeys during the year 2008, and the restoration of the previously damaged mangrove areas on the island. Five feeding stations were identified on the location map. The following comments reflected the future plans for these structures: "Three 48' x 24' wire structures are used to feed and trap the free ranging animals. FS I will be relocated to near (sic) Compound II. FS V will be dismantled and not replaced. FS II, III and IV will remain in use as long as free range animals are on the island."

    
    

66. The structures referred to by the consent order as FS II, FS III, and FS IV are referred to by the development order issued by Monroe County as feeding stations 1, 2, and 3, respectively. These three feeding stations were moved short distances to less environmentally sensitive areas at the direction of FDER, but they remain in the approximate location as they were prior to the adoption of the Comprehensive Plan. The feed stations on Raccoon Key were also redesigned by CRL so that they could be better suited for trapping adult monkeys.

    
    

67. In reliance on the consent orders with the FDER and with the settlement with the Board of Trustees, CRL has expended over $197,000 in lease fees and administrative fees to the FDER, spent some $120,000 on refoliation,

    $90,000 on fencing, $15,000 in feed stations, $125,000 in breeding and holding pens, and $200,000 for water treatment plants, for a total of $747,000.

    
    

68. CRL contributes approximately one million dollars per year to the local economy in salaries and purchases.

    
    

    MODIFICATIONS

    
    

69. There was no evidence of modifications to the structures that would render them consistent with the Comprehensive Plan.

    
    

    VARIANCES

70. The Monroe County Code makes provision for the issuance of variances in appropriate circumstances. Section 9.5-523, M.C.C., pertains to variances and provides, in pertinent part, as follows:

    
    

    1. Variances may be granted to the requirements contained in divisions 10, 9, 4, 11, and 14, article VII, pursuant to the standards and procedures set forth in subparagraph (e) of this section, but only

       if a variance is not otherwise available as part of the conditional use approval process.

    2. Variances may be granted from the open space ratio requirements of section 9.5-182 according to the standards and procedures set forth in subsection (e) of this section. However, no variance shall be granted under this section if such variance would result

       in an open space ratio less than that required by section 9.5-343.

       * * *

       1. An application for a variance shall be submitted to the development review coordinator in a form prescribed by the planning director. The development review coordinator shall schedule a hearing on the variance upon receipt of a completed application. The notice requirements shall be those described in section 9.5-45. All

          applications for variances under this section shall be heard and decided by the planning commission at a regularly scheduled public hearing. Appeals may be filed by an owner, applicant, adjacent property owner, any aggrieved or adversely affected person as defined by section 163.3215(2), Florida Statutes; or any resident or real property owner may request an appeal of the planning commission's variance decision under the hearing officer appellate article of these regulations [Section 9.5-535, et seq.] by filing the notice required by that article within thirty (30) days of the date of the written variance decision of the planning commission.

       2. The planning commission, in granting or denying a variance under this section, shall consider whether the following conditions are met:

       1. A showing of good and sufficient cause;

       2. Failure to grant the variance would result in exceptional hardship to the applicant;

       3. A determination that the granting of the variance will not result in additional threats to public expense which would not otherwise occur; create a nuisance; or cause fraud or victimization of the public;

       4. Unique or peculiar circumstances or conditions which apply to the property but which do not apply to other properties in the same land district;

       5. The granting of the variance would not confer upon the applicant any special privilege denied by these regulations to other properties in the same land district.

       1. The planning commission, in determining whether the foregoing conditions for a variance are met, shall consider the following factors relevant:

          1. Physical characteristics of the proposed construction for which a variance is requested;

          2. Whether it is possible to use the property without the variance;

          3. The increased or decreased danger to life and property if the variance is or is not requested;

          4. The importance to the community of the services to be provided if the proposed variance is granted;

          5. The compatibility of the proposed variance in light of existing and permitted development in the immediate area;

          6. The safety of access to the property for ordinary and emergency vehicles if the variance is or is not granted;

          7. The additional or lessened costs of providing governmental services if the variance is or is not granted.

       
       

71. The issues pertaining to the issuance of variances for these structures are not identical to the issues litigated in this proceeding.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

73. The Petitioner timely appealed, pursuant to Section 380.07, Florida Statutes, the development order that is described in the findings of fact portion of this Recommended Order. Intervenor, Curtis Kruer, timely intervened in that appeal. Mr. Kruer demonstrated that he has sufficient standing to intervene.

    
    

74. Although designated an appeal, this proceeding is properly considered to be a "de novo" proceeding pursuant to the provisions of Section 120.57(l), 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, is on the Petitioner. Young

    v. Department of Community Affairs, 625 So.2d 831 (Fla. 1993); Transgulf Pipe1ine Co. v. Board of County Commissioners, 438 So.2d 876 (Fla. 1st DCA 1983).

75. In Young v. Department of Community Affairs, supra, at 834, the Court observed that the Legislature has:

    
    

    ". . . statutorily determined that develop- ment 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."

    
    

76. In conformity with and in furtherance of the purposes of Chapter 380, Florida Statutes, the Local Government Comprehensive Planning and Land Development Regulation Act requires that Monroe County permit only that development which is consistent with the Monroe County comprehensive plan.

    
    

77. 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 since the Department of Community Affairs did not participate in the prior dispute between CRL and FDER or in the prior dispute between CRL and the Board of Trustees. Respondent argues that Mr. Kruer is collaterally estopped from intervening in this proceeding because the circuit court refused to permit him to intervene in the civil action between CRL and the Board of Trustees.

    This argument is rejected as being without merit.

    
    

78. The Petitioner's burden is to establish by competent, substantial evidence that the permitted development authorized by the subject after-the-fact building permit number does not comply with the Monroe County Comprehensive Plan and LDRs, and that the development is, consequently, not in accordance with the provisions of Chapter 380, Florida Statutes. Based on the findings of fact contained herein, it is concluded that Petitioner has met its burden in this proceeding. The subject permit does not comply with the Monroe County Comprehensive Plan and LDRs.

    
    

79. Section 380.08(3), Florida Statutes, provides as follows:

    
    

    1. If any governmental agency denies a development permit under this chapter, it shall specify its reasons in writing and indicate any changes in the development proposal that would make it eligible to receive the permit.

       
       

80. There are no changes that would make these structures consistent with the Comprehensive Plan and the LDRs.

    
    

81. In light of its agreements with the Trustees of the Internal Improvement Trust Fund and with the FDER, and the sums expended by CRL in reliance on those agreements, it is recommended that FLAWAC consider a remedy

other than the summary denial of the development order. This remedy should require the participation of all interested state and county regulatory agencies in an effort to bring CRL's disputes with these various agencies to a close. At a minimum, the structures should be permitted to remain in place until CRL has had a reasonable opportunity to apply to Monroe County for variances that would permit the structures to remain until CRL abandons the islands pursuant to the Settlement Agreement with the Trustees of the Internal Improvement Trust Fund.

In addition, it is recommended that FLAWAC give CRL the opportunity to apply to Monroe County for an amendment to its Comprehensive Plan.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that FLAWAC enter a final order that adopts the findings of

fact and the conclusions of law contained herein. It is further recommended that the final order find that the subject permit is inconsistent with the Monroe County Comprehensive Plan and Land Development Regulations. It is further recommended that FLAWAC order that the structures can remain in place until CRL has had a reasonable opportunity to apply to Monroe County for variances for the subject structures and for an amendment to the Monroe County Comprehensive Plan. Should CRL not apply for variances or an amendment to the comprehension plan within a reasonable time established by FLAWAC, or should those applications be denied, the subject structures should be ordered removed.

DONE AND ORDERED this 16th day of December, 1996, in Tallahassee, Florida.

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 16th day of December, 1996.

ENDNOTES

1/ The testimony established that some may consider Raccoon Key to be in Florida Bay. Whether the water body is the Gulf of Mexico or Florida Bay has no bearing on the resolution of the issues.

2/ This dispute and the resulting settlement is discussed in more detail under the general heading "Prior Disputes".

3/ Reference to the basic structure is to the footprint of former Compound III before the two holding pens, described in the next paragraph, were added to the structure in 1988.

4/ Section 380.031, Florida Statutes, contains the following definitions pertinent to this proceeding:

1. 'Development order' means any order granting, denying, or granting with conditions an application for a development permit.

2. 'Development permit' includes any building permit . . . variance, or other action having the effect of permitting development as defined in this chapter.

* * *

(19) 'Structure' means anything constructed, installed, or portable, the

use of which requires a location on a parcel of land. It includes a movable structure while it is located on land which can be used for . . . commercial [or] agricultural

. . . purposes either temporarily or permanently. "Structure" also includes fences . . . [and] poles . . . .

Section 380.04, Florida Statutes, defines the term "development" and provides, pertinent to this proceeding, as follows:

1. The term 'development' means the carrying out of any building activity . . .

   the making of an material change in the use or appearance of any structure . . .

2. The following activities or uses shall be taken for the purposes of this chapter to involve 'development' as defined in this section:

   1. A reconstruction, alteration of the size, or material change in the external appearance of a structure . . . .

5 Section 9.5-4(E-5), M.C.C., contains the following definition:

Existing conditions map means the official

map of existing conditions as adopted pursuant to section 9.5-227 of these regulations which is on filed with the department of planning which reflect (sic) vegetation, natural features, and developed lands in the county

as modified by development authorized by section 9.5-2(b).

Section 9.5-227 pertains to the "existing conditions map" and provides, in pertinent part, as follows:

1. Authority: The board of county commissioners, upon recommendation of the planning commission, shall adopt the existing conditions map.

2. Effect: The existing conditions map is hereby designated, established and

   incorporated as a part of this chapter; and the originals thereof, which are on file at the office of the department of planning, shall be as much a part of this chapter as

   if the information contained therein were set out in full in this chapter.

3. Review and Amendment: The existing conditions map may be refined to reflect conditions legally in existence on February 28, 1986. Such refinements shall be made pursuant to the procedures in section 9.5-511

1. of this chapter.

   
   

   6/ Section 9.5-226 pertains to "land use district map" and provides, in pertinent part, as follows:

   
   

   1. Authority: The board of county commissioners, upon recommendation of the planning commission, shall adopt an official land use district map which shall set out and delineate the land use districts established in section 9.5-202 to all land in unincorporated Monroe County.

   2. Effect: The official land use

      district map is hereby designated, established and incorporated as a part of this chapter; and the originals thereof, which are on file at the offices of the department of planning, shall be as much a part of this chapter as if the information contained therein were set

      out in full in this chapter.

   3. Review and Amendment: The official land use district map shall be reviewed and amended to be consistent with the comprehen- sive plan as provided in Volume II, section

S.C. of the plan. The official land use district map may subsequently be amended from time to time as provided in article XI of this chapter.

7/ Section 9.5-4(N-8), M.C.C., defines "nonconforming structure" as ". . . any structure lawfully existing on the effective date of this chapter . . . or any amendment to it rendering such structure nonconforming, which does not comply with all the standards and regulations of this chapter or any amendment thereto."

Section 9.5-4(N-9), M.C.C., defines "nonconforming use" as ". . . any use lawfully being made of any land, buildings or structure . . . on the effective date of this chapter . . . or any amendment thereto, rendering such use nonconforming, which does not comply with all the standards and regulations of this chapter or any amendment thereto."

The Department of Community Affairs agrees in its post-hearing submittal the CRL's use of these islands is properly considered to be a nonconforming use and that the structures, prior to the building activity at issue in this proceeding, were nonconforming structures. Mr. Kruer agrees that the use of the islands are nonconforming uses, but argues that the structures should be considered to be illegal because no permit had been obtained for the structures when they were

initially built. This argument is rejected because it was not established that a permit was required for these structures when they were built.

8/ On April 2, 1985, Eric Linstrom, an employee of the Florida Department of Natural Resources, forwarded a draft of a consent order to John Patterson and Bob Dennis with the Department of Community affairs with a request for comments before April 9, 1985. CRL relies on that communication in support of its argument that the Department of Community Affairs is estopped to challenge the subject permit. That communication has been given no weight by the undersigned because there was no evidence as to the terms and conditions of the draft that was forwarded with the communication. Further, there was no evidence that the Department of Community Affairs approved the consent agreement that was subsequently executed and there was no evidence that it participated in the negotiations that preceded the settlement agreement.

COPIES FURNISHED:

Karen Brodeen, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399

Robert A. Routa, Esquire Post Office Drawer 6506 Tallahassee, Florida 32314

Mr. Michael C. Coppola Post Office Box 437

Big Pine Key, Florida 33043

Robert L. Herman

Growth Management Division Director 2798 Overseas Highway

Marathon, Florida 33050-2227

James Hendricks, Esquire Post Office Box 1117

Key West, Florida 33041-1117

Richard Grosso, Esquire Shepard Broad Law Center

Nova Southeastern University, Room 144 3305 College Avenue

Fort Lauderdale, Florida 33314

Bob Bradley, Secretary

Florida Land and Water Adjudicatory Commission 1601 Capitol

Tallahassee, Florida 32399-0001

Gregory Smith, Esquire Office of the Governor The Capitol, Suite 209

Tallahassee, Florida 32399

Carolyn Dekle, Director

South Florida Regional Planning Council 3400 Hollywood Boulevard, Suite 140

Hollywood, Florida 33021

Stephanie M. Gehres, General Counsel Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 325A Tallahassee, Florida 32399-2100

James F. Murley, Secretary Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 100

Tallahassee, Florida 32399-2100

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 96-001405DRI

Orders for Case No: 96-001405DRI