Findings Of Fact On January 13, 1983, Respondents Donia and Bobowski filed with Monroe County petitions for special use approval to deposit fill and construct an access driveway within the shoreline protection zone of Monroe County as designated by Chapter 4, Monroe County Code. The property on which the roads are proposed to be constructed consists of two lots, each 1.09 acres in size. The lots are contiguous to each other and are located on Sugarloaf Key, Monroe County, Florida. Respondents Bobowski and Donia represented in their petitions for special use approval that they owned or were in the process of purchasing the subject property. Respondent Bobowski submitted with his application a contract for sale to him of both 1.09-acre lots which specified the sale was to be closed by March 25, 1982. Ms. Donia included with her petition a letter stating that Mr. Bobowski was in the process of deeding a portion of his land to her. On January 26, 1983, Respondent Bobowski filed a Complaint for Specific Performance against James Knox Julian, Jr., owner of record of the property for which Bobowski and Donia submitted applications for special use approval. As of September 10, 1984, Julian had filed a motion to dismiss that Complaint on grounds that there had been no pleadings filed or action taken by Bobowski for a period of more than one year. There is no evidence that James Julian authorized Respondents Donia or Bobowski to submit the applications for special use approval on his behalf. Respondents Donia and Bobowski have been sent copies of pleadings in this case. The Monroe County records containing Donia's application for special use approval indicate that Catherine Donia is now Catherine Bobowski. Ms. Bobowski participated in a telephonic conference call between the parties and the undersigned in which she was specifically advised of the scheduled final hearing in this case and of the necessity for her and Thomas Bobowski to appear to present their evidence in support of their applications. Neither she nor Mr. Bobowski, nor any representative of theirs, appeared at the final hearing. On January 20, 1983, Respondents McDonald and Allen filed an application for special use approval to deposit fill and construct an access driveway within the shoreline protection zone of Monroe County as designated by Chapter 4, Monroe County Code. The McDonald/Allen property is a 2.9 acre parcel on Sugarloaf Key in Monroe County Florida. The proposed driveway runs from State Road 939A through a tidally inundated black mangrove community to a dune ridge and tropical hardwood hammock fronting the Atlantic Ocean. The driveway project described in the original application involved the deposit of 433 cubic yards of limerock fill to construct an access driveway 325 feet long, 12 feet wide, and 4 feet deep. Six culverts twelve inches in diameter were to be placed at 50-foot intervals along the access driveway. When the State of Florida Department of Environmental Regulation indicated disapproval of a fill permit as the project was originally proposed, the project was amended to replace the twelve-inch diameter culverts with four box culverts three feet by eight feet. The application for special use approval does not include a request to fill a turnaround area or a pad for a single-family residence, does not include a final set of building plans or a final selection of a house site, and does not seek approval for the placement of a septic tank system. Rather, the application for special use approval seeks permission for the driveway portion of the construction project only. The McDonald/Allen property is located on the southern shoreline of Sugarloaf Key in an area referred to as Sugarloaf Beach. The foreshore or foredune fronting the Atlantic Ocean consists of a beach and berm rising to a dune crest approximately 30 feet from the ocean. The sandy beach is approximately 6 to 15 feet in width. The dune top extends landward from the dune crest for approximately 100 to 125 feet before descending to the back dune and the wet land and transitional areas. The transitional area continues landward approximately 60 feet before descending into the wetlands. The wetlands run landward approximately 300 feet to the property boundary on State Road 939A. The foreshore or foredune of the McDonald/Allen property is covered by sea oats, sea purslane and cord grass assemblage. The entire dune top from the dune crest to the back dune is covered by a mature, climax tropical hardwood association. Species present include: torchwood, white stopper, inkwood, blolly, gumbo-limbo, blackbead, Spanish stopper, Jamaican dogwood, seven-year apple, sapodilla, coconut palm, short-leaf fig, gray nicker, wild lantana, buttonwood, snowberry, prickly pear cactus, bay cedar, and spider lily. The vegetation displays a stratified structure with a high canopy composed of very large, tall trees an indication of a very mature system. The transitional wetland community found on the back dune consists of saltwort, sea daisy, railroad vine, and seagrape. The wetlands-are characterized as submergent wetlands containing black mangroves. The black mangrove community is inundated year round with water depths measured between 6 and 12 inches over the majority of the property. The black mangroves reach heights of 15 feet, with large trees located over the southern extent of the wetlands (adjacent to the upland ridge). Attaining heights of 25 to 30 feet, these larger mangroves form a hammock with an open understory in a dense canopy. The mangrove area is a productive, healthy system. The wetlands of the McDonald/Allen property are a part of a larger area of healthy wetlands approximately 10 acres in extent, bounded by State Road 939A on the north, the dune ridge to the south, an unculverted fill road to the west, and a culverted fill road to the east. Wildlife present on the property include marsh rabbits, raccoons, black crown night herons, little blue herons, Louisiana herons, white crown pigeons, blue crabs, fiddler crabs, mosquito fish, killy-fish, sailfin mollies, and sheepshead minnows. On February 1, 1983, Respondent Stage filed an application for special use approval to deposit fill and construct an access driveway in the shoreline protection zone of Monroe County as designated by Chapter 4, Monroe County Code. The Stage property is a 0.64-acre lot on Big Pine Key in Monroe County, Florida. The proposed driveway runs from Long Beach Boulevard through a wet land area to a dune ridge and hammock fronting the Atlantic Ocean. The driveway project described in the original application called for the deposit of limerock fill to construct an access driveway 100 feet long, 12 feet wide, and 2-3 feet deep along the east side of the lot. Two culverts 12 inches in diameter were to be placed 50 feet apart. When the State of Florida Department of Environmental Regulation indicated disapproval of a fill permit as the project was originally proposed, the project was amended to locate the access driveway through the center of the lot and to replace the 12-inch diameter culverts with two 36-inch diameter culverts to be placed at the base of the access drive. The proposed access road is to lead to a proposed turnaround and a proposed single-family residence on the back dune or dune ridge of the Stage property. The application for special use approval does not include a request to fill a turnaround area or a pad for a single-family residence, does not include a final set of building plans or a final selection of a house site, and does not seek approval for the placement of a septic tank system. Rather, the application for special use approval seeks permission for the driveway portion of the construction project only. The Stage property is located on the southern shore of Long Beach on Big Pine Key. The natural systems of the Stage property are similar in many respects to those of the McDonald/Allen property. The foreshore or foredune fronting the Atlantic Ocean has a shoreline consisting of a dense mangrove fringe. The foredune rises to a dune crest approximately 28 feet landward from the shoreline. The dune top extends landward from the dune crest approximately 100 feet before descending to the back dune and wetland area. The back dune runs landward 40 feet before descending into the wetlands. The wetlands run landward approximately 10 feet to a filled area approximately 75 feet deep fronting Long Beach Boulevard. Landward of the mangrove fringe on the foredune is a dense growth of night shade, behind which the hardwood hammock vegetation begins, at approximately 10 feet from the shoreline. The understory of the hammock has a very rich growth of wild bamboo. Trees in the hammock community include blolly, spider lily, Jamaican dogwood, Keys bamboo, gumbo-limbo, darling plum, seven-year apple, wild dilly and coconut palm. The area along the lower back dune displays transitional vegetation consisting of blackbead, limber caper, sea grape, bay cedar, sea daisy, and remnant black and white mangroves. At lower elevations of the property below the back dune and abutting the roadside fill area are found buttonwood, black mangrove without pneumatophores, saltwort, red mangrove, black mangrove, white mangrove, and sea purslane. The wetland and red mangrove area is about 10 to 15 feet in size, healthy, and of high productivity. The transitional vegetation is productive in that it has a very high value to the organisms that are feeding upon it in that particular area, although its productive value is lower than that of the red mangrove system. Wildlife found on the property include marsh rabbit, raccoon, Key deer, and hermit crabs. Other species expected to be found are the eastern indigo snake the red black snake, and the silver rice rat, all species listed by the federal government as threatened. Both the McDonald/Allen and Stage properties are located in the Florida Keys in Monroe County, which has been designated an area of critical state concern. The Florida Keys is the only tropical area in the entire continental United States. The uncontroverted testimony of witnesses for the Respondents and Petitioner was that virtually every natural feature found there is unique. The Long Beach and Sugarloaf Beach coastal dune structures are particularly significant natural systems because of the scarcity of these sandy beaches and dune systems in the Florida Keys. Such systems have been estimated to represent only 2 percent of the land mass of the Florida Keys. They are even more scarce when considered in reference to the land mass of the United States because there are no comparable natural systems in North America. The dune systems on Sugarloaf Beach and Long Beach are storm berms or storm beaches, which are created when near source material is driven by storm effect onto the beach and ridge. These beaches are stable when highly vegetated and undisturbed. The plant communities found on the dune system have adapted to resist the impact of storms, both wind and wave. Seagrape trees, for example, diminish the shearing effect of the wind by absorbing wind energy. Many of the plant species are deeply rooted and essentially adapted to the intermittent effects of storms. When the natural systems and vegetative communities are altered, the dune system loses its resistance to storm and is subject to instability and erosion. Many of the plant and animal species present in the Florida Keys and on the McDonald/Allen and Stage properties are only found in the Keys. They are endemic species which have deviated from the mother populations on the mainland, and they are of particular interest to the scientific community. The McDonald/Allen property, in particular, is unique because it combines a very mature hardwood system with the coastal dune structure. Maturity of the hardwood hammocks is evidenced by the large dimensions of the trees, especially the gumbo-limbos and inkwood, and the height and structure of the tree canopy. The mangrove wetland areas on the McDonald/Allen and Stage properties could also be called unique by virtue of their location in the Florida Keys, though they are similar to other mangrove wetland areas. They are both productive, healthy systems. Such mangrove systems are considered to be one of the most important natural resources in Southern Florida. They provide shoreline protection, build up land areas, provide nutrients to the marine environment, and serve as nurseries for marine species and wildlife habitat for reptiles and wading birds such as herons, egrets, white crown pigeons and gray king birds. Transitional areas may have lower productivity than the wetland areas, but they still have a very high value to organisms feeding upon them. A community of animals will still be dependent upon the transitional vegetation, and removal or stress to that vegetation will also stress the dependent animal elements. On April 22, 1983, the Zoning Board of Monroe County denied the McDonald/Allen application for special use approval to deposit the fill and construct the access road. Reasons for the denial were that the project failed to comply with Sections 19-75(2)a, 19-111, and 19-59(6), Monroe County Code. Section 19-75(2)a requires a determination of the effect of the change under review on that particular property and on surrounding properties. Section 19- 111(a)(4) requires that all applications for a permit in wetland areas consider the natural biological functions, including food chain production, general habitat, nesting, spawning, rearing and resting sites for aquatic or terrestrial species, the physical aspects of natural drainage, salinity and sedimentation patterns, and physical protection provided by wetland vegetation from storm and wave action. Section 19-59(6) requires consideration of the project's compliance with the County's Comprehensive Plan. The Zoning Board was particularly concerned about the fact that the project was contrary to the policy expressed in the County's Comprehensive Plan to prohibit new construction that would threaten the stability of dune ridges, and about the cumulative impact on the wetland areas and on the dune system of several nearby projects for which applications had been submitted. On August 5, 1983, the Board of County Commissioners reversed the denial of the McDonald/Allen application for special use approval by adopting Resolution No. 233-1983. The Resolution authorizes the deposit of fill and construction of the access driveway as requested by the McDonald/Allen application. The Resolution makes no finding that the project meets the requirements of the Monroe County Code or Monroe County Comprehensive Plan. The Resolution also fails to specify any conditions or protective measures that should be met by the applications in regard to design, construction activities or coordination with adjoining land owners to reduce the impacts of the proposed development. No evidence was introduced at the final hearing in this cause to show that the Board of County Commissioners considered these items or any provision for them. An employee of Petitioner was present at the Monroe County Board of County Commissioners meeting on August 5, 1983, when a vote was taken on the McDonald/Allen application. However, Petitioner did not receive a written copy of the Resolution reducing that action to writing until October 14, 1983, when Monroe County transmitted the Resolution by hand-delivery. On August 25, 1983, the State of Florida Department of Environmental Regulation (hereinafter "DER") issued a permit to McDonald/Allen to deposit 433 cubic yards of fill for an access road with four box culverts three feet by eight feet. The permit is based upon Chapter 403, Florida Statutes, and Chapters 17-3 and 17-4, Florida Administrative Code, jurisdiction and therefore only evaluates impacts on water quality. It does not address impacts on storm surge abatement; marine and wildlife resources habitats; suitability of the proposed project in regard to its location, site characteristics and intended purpose; the effect of the proposed project on surrounding properties (including cumulative impacts of several projects in close proximity of each other); or compliance with the Monroe County Code or Monroe County's Comprehensive Plan. On July 29, 1983, the Zoning Hoard of Monroe County denied the Stage application for special use approval to deposit fill and construct an access road. One of the items considered by the Zoning Board was the permit issued to Respondent Stage by DER on July 13, 1983, to deposit approximately 62 cubic yards of crushed limerock fill for an access road with two 36-inch diameter culverts. The DER permit addressed only impacts to water quality as specified by Chapter 403, Florida Statutes, and Chapters 17-3 and 17-4, Florida Administrative Code. As was the case with the permit issued to McDonald/Allen, the determination by DER to issue the permit did not include the analysis required by the Monroe County Code and the Monroe County Comprehensive Plan of impacts to natural systems. Reasons cited by the Zoning Board for the application's denial are the project's failure to meet the requirements of the Monroe County Code regarding the Suitability of the use in regard to its location, site characteristics, and intended purpose; and the project's failure to comply with the County's Comprehensive Plan encouraging protection of wetlands to the maximum extent possible and prohibiting new construction that would threaten the stability of dune ridges. On October 28, 1983, the Monroe County Board of County Commissioners reversed the denial of the Stage application for special use approval by adopting Resolution No. 296-1983. Again, there are no protective or limiting conditions specified in the Resolution in regard to construction of the road or its relationship to the remainder of the project. The access road proposed by the McDonald/Allen application will eliminate approximately 4,000 square feet of high-quality submerged mangrove wetlands. This, in turn, would eliminate high-quality habitat used by a variety of large birds such as herons, ibises, little blue herons; gastropods; species of small fish such as killifish, sheepshead minnow, sailfin, mosquito fish; blue crabs, fiddler crabs and Saltwater snakes. The proposed fill road would also present a 325-foot long barrier to the existing tidal flow, thereby impeding the natural flow of water, particularly during a storm event when even very large culverts are blocked by vegetation and other debris. A fill road would also provide a substrate for colonization by exotic vegetation, to the detriment and possible exclusion of native vegetation. In addition, the evidence indicates that at least four more fill roads are proposed in immediate proximity to the proposed McDonald/Allen fill road, within the same 10-acre wetland area. If approved, the cumulative impacts of several roads would be significantly greater than the one road. There would be a significant increase in the direct removal of vegetation and wildlife habitat and an even greater impact on tidal flow through the area with each additional road (even ignoring the fact that each road is merely a portion of the real project). This is because each barrier to tidal flow placed downstream from the source water diminishes the ability of the tidal water to reach other areas even further downstream. The essence of Respondents McDonald/Allen's testimony and exhibits in regard to cumulative impacts is that with proper planning only one access road need be built in the 10-acre wetland area in which the McDonald/Allen property lies. No evidence was submitted to show that such planning efforts exist or are likely to be fruitful. There is no reasonable assurance that only one access road will be sought or constructed in that area; rather, the evidence is to the contrary. Respondent Stage's proposed access road would eliminate a small amount of productive red mangroves and would eliminate transitional wetlands of somewhat lower productivity, thereby exacerbating the existing stresses to the transitional community on the Stage property. The road would also be subject to blockage during a storm event, which would further diminish the existing tidal flow. Current intended use of both the McDonald/Allen and Stage properties is for a single-family residence, although neither applicant has finalized any design for that residence. Construction and occupancy of even a single-family residence in the tropical hardwood hammock on the dune back or dune top of either property can be expected to produce a typical range of impacts to the natural systems. The most significant is the removal of hardwood hammock trees and understory vegetation. At a minimum, clearing is required for a house pad, a turnaround (and parking) area, a septic tank and drain field, and a surrounding area sufficient to accommodate construction equipment and workers. Additional clearing can be anticipated by occupants of a single-family residence who seek to take advantage of ocean breezes and view and who create pathways to the beach. Any opening of the hammock's tree canopy or understory would increase exposure of the lower forest to the drying effects of wind and salt and upset the hammock's microclimate, causing progressive destruction of vegetation. Clearing also provides conditions which make the site conducive to colonization by exotic species. Additional impacts customarily associated with single-family residence occupancy are the introduction of pets who are natural predators of endangered species, of noxious chemicals used for spraying insects, and of intrusion into the habitat of wildlife which now utilize the area and are not tolerant of human activity in immediate nesting and feeding areas. Several dwellings constructed on a dune ridge would cumulatively impact and even further threaten destruction of the hardwood hammock and dune system. Once in place and occupied, a single-family home will create impacts that are extremely difficult to prevent or mitigate and which are uncontrolled by any County ordinance or State regulations. The current and future owners of both the McDonald/Allen and Stage properties have access to that property since either a state-- or county-- maintained road borders one entire side of each of those properties. Accordingly, neither proposed driveway is necessary to provide access to the property. Since the special use approvals given by Monroe County to McDonald/Allen and Stage are not conditioned upon the obtaining of permits for the construction of the now-intended dwelling structure, the actual use of the driveways remains speculative. Although the Stage property may be zoned exclusively for a single-family residence, the McDonald/Allen parcel appears to be in an area of Monroe County in which single-family residences are only one of the uses allowed. Additionally, several years ago Respondent Stage, without first obtaining a permit, has placed fill on his property which covers the width of his property along Long Beach Boulevard. Although Respondent Stage eliminated a wetlands area 100 feet by 75 feet by placing fill therein, he has not been required to remove that fill, and it is speculative as to whether any agency with the authority to require the removal of that fill would do so since no mitigation has yet been required of him.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED THAT a final order be entered denying the applications of Respondents McDonald/Allen, Donia, Bobowski, and Stage for special use approval. Pursuant to the requirements of Section 380.08(3), Florida Statutes (1983): There are no changes in the proposal by Respondent Donia that would entitle her to receive the special use approval requested herein; There are no changes in the proposal by Respondent Bobowski that would entitle him to receive the special use approval requested herein; Respondents McDonald and Allen could make their driveway application eligible for a special use approval by altering the design of the driveway to piling or boardwalk construction rather than fill construction; and, Respondent Stage can make his driveway application eligible for a special use approval by altering the project design so that the primary structure utilizes the portion of his property which was previously filled. It is further, RECOMMENDED THAT each application for special use approval submitted herein remain ineligible to receive such approval until such time as it can be demonstrated, such as through the issuance of all necessary permits, that the intended primary use--residential construction--will not degrade or destroy the tropical hardwood hammock, dune ridge, or other natural systems located on or surrounding Respondents' properties. DONE and RECOMMENDED this 8th day of April, 1985 at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 1985. COPIES FURNISHED: Honorable Bob Graham Governor The Capitol Tallahassee, Florida 32301 Honorable Bill Gunter Insurance Commissioner The Capitol Tallahassee, Florida 32301 Honorable Jim Smith Attorney General The Capitol Tallahassee, Florida 32301 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301 Honorable George Firestone Secretary of State The Capitol Tallahassee, Florida 32301 Honorable Gerald Lewis Comptroller The Capitol Tallahassee, Florida 32301 John T. Herndon, Secretary Florida Land and Water Adjudicatory Commission Office of the Governor The Capitol Tallahassee, Florida 32301 Sheri Smallwood, Esquire County Attorney, Monroe County 310 Fleming Street Key West, Florida 33040 James Hendrick, Esquire Albury, Morgan & Hendrick 317 Whitehead Street Key West, Florida 33040 Catherine Donia Post Office Box 502 Big Pine Key, Florida 33043 Thomas Bobowski Post Office Box 502 Big Pine Key, Florida 33043 Sarah E. Nall, Esquire C. Laurence Keesey, Esquire Department of Community Affairs 2571 Executive Center Circle, East Tallahassee, Florida 32301
The Issue At issue in this proceeding is whether a fence constructed by Charles and Kathleen Moorman (Moormans), as owners, and Your Local Fence, Inc. (Your Local Fence), as contractor, in the Big Pine Key Area of Critical County Concern, Big Pine Key, Monroe County, Florida, was contrary to the provisions of Chapter 380, Florida Statutes.
Findings Of Fact Background Petitioner, Department of Community Affairs (Department), is the state land planning agency charged with the responsibility of administering and enforcing the provisions of Chapter 380, Florida Statutes, including Areas of Critical State Concern, and all rules promulgated thereunder. Monroe County is a local government within the Florida Keys Area of Critical State Concern designated by Section 380.0552, Florida Statutes, and is responsible for the implemen-tation of, and the issuance of development orders that are consistent with, the Monroe County comprehensive plan and land development regulations, as approved and adopted in Chapters 9J-14 and 28-20, Florida Administrative Code. Most of Monroe County, including the Big Pine Key Are of Critical County Concern discussed infra, is contained within the Florida Keys Area of Critical State Concern. Respondents, Charles and Kathleen Moorman (Moormans) are the owners of Lots 15, 16, and half of Lot 17, Block D, Pine Heights Subdivision, Big Pine Key, Monroe County, Florida. Such property is located within the Big Pine Key Area of Critical County Concern, as well as the Florida Keys Area of Critical State Concern, and consists of native pine lands, which are natural habitat for the Key Deer. Respondent, Your Local Fence, Inc. (Your Local Fence), is a business engaged in constructing fences in Monroe County, and is owned by Mr. Moorman. On March 20, 1991, Monroe County issued to the Moormans, as owners, and Your Local Fence, as contractor, building permit No. 9110002231 to construct a fence on the foregoing property. As permitted, the fence would be constructed of wood to a height of 6 feet and, except for a setback of 25 feet, would completely enclose the Moormans' property. So constructed, the fence would measure 125 feet along the front and rear of the property and 75 feet along the side property lines for a total of 400 linear feet. Pertinent to this case, the Moormans' permit was not effective until 45 days after it was rendered to the Department (the "appeal period"), which period accords the Department an opportunity to review the permit and decide whether to contest its issuance by filing an appeal with the Florida Land and Water Adjudicatory Commission (FLWAC), and , if appealed, its effectiveness is stayed until after the completion of the appeal process. Section 380.07(2), Florida Statutes, and Section 9.5-115(a), Monroe County Land Development Regulations (MCLDR). Here, the Department, pursuant to the provisions of Section 380.07, Florida Statutes, filed a timely appeal with FLWAC to contest the issuance of such permit. Notwithstanding the Moormans' express knowledge that their permit was not effective until expiration of the Department's appeal period and, if appealed, resolution of the appeal process, the Moormans erected the fence on their property. Such action was contrary to the provisions of the Monroe County land development regulations and Chapter 380, Florida Statutes. Sections 9.5- 111(a) and 9.5-115(a), MCLDR, and Section 380.07(2), Florida Statutes. By separate recommended order to FLWAC, bearing Case No. 91-4110DRI, 91-5966DRI, 91-5968DRI, and 91-6603DRI (the "FLWAC Cases"), it was found, for reasons hereinafter discussed, that building permit No. 9110002231, issued by Monroe County for the construction of the Moormans' fence in the Big Pine Key Area of Critical County Concern was not consistent with the Monroe County comprehensive plan and land development regulations. Accordingly, it was recommended that FLWAC enter a final order reversing Monroe County's decision to issue such permit and to deny the Moormans' application for such permit. Consistency of the Moorman permit with the Monroe County comprehensive plan and land development regulations Big Pine Key is the primary habitat of the Key Deer, an endangered species, and Monroe County has designated most of Big Pine Key, including the properties at issue in these proceedings, as an area of critical county concern. 1/ Pertinent to this case, Section 9.5-479, Monroe County Land Development Regulations (MCLDR), provides: Purpose: The purpose of the Big Pine Key Area of Critical County Concern is to establish a focal point planning effort directed at reconciling the conflict between reasonable investment backed expectations and the habitat needs of the Florida Key Deer which is listed as endangered under the Federal Endangered Species Act. Focal Point Planning Program: Monroe County shall initiate a focal point planning program for the Big Pine Key Area of Critical County Concern that considers the following: The reasonable investment backed expec- tations of the owners of land within the Big Pine Key Area of Critical Concern; The habitat needs of the Florida Key Deer; The conflicts between human habitation and the survival of the Florida Key Deer; The role and importance of freshwater wetlands in the survival of the Florida Key Deer; Management approaches to reconciling the conflict between development and the survival of the Florida Key Deer; and Specific implementation programs for the Big Pine Key Area of Critical County Concern. The focal point planning program shall be carried out by the director of planning, in cooperation with the officer in charge of the National Key Deer Refuge. The planning program shall include a public participation element, and shall provide for notice by publication of all public workshops or hearings to the owners of land within the Big Pine Key Area of Critical County Concern. The focal point planning program for the Big Pine Key Area of Critical County Concern shall be completed within twelve (12) months of the adoption of this chapter, and the director of planning shall submit a report together with recommended amendments to the Monroe County Comprehensive Plan and this chapter within thirty (30) days after the completion of the focal point planning program for the Big Pine Key Area of Critical County Concern. Interim Regulations: Notwithstanding any other provisions of this chapter, no development shall be carried out on the Big Pine Key Area of Critical County Concern prior to the completion of the focal point planning program required by subsection C of this section and the adoption of amendments to the Monroe County Comprehensive Plan and this chapter except in accordance with the following: No development shall be carried out in the Big Pine Key Area of Critical County Concern except for single-family detached dwellings on lots in the Improved Subdivision District or on lots having an area of one (1) acre of more. And, Section 9.5-309, MCLDR, provides: It is the purpose of this section to regulate fences and freestanding walls in order to protect the public health, safety and welfare. * * * Big Pine Key Area of Critical County Concern: No fences shall be erected here until such time as this chapter is created to provide for the regulation of fences within this ACCC. The foregoing land development regulations were adopted by Monroe County to further and implement the standards, objectives and policies of the Monroe County comprehensive plan. Here, such regulations further the plan's "Generic Designations and Management Policies," contained within the plan's "Criteria for Designating Areas of Particular Concern," to maintain the functional integrity of habitat and, more particularly, the requirement that: Development within areas identified as Key Deer habitat shall insure that the continuity of habitat is maintained to allow deer to roam freely without impediment from fences or other development. Rule 28-20.020(8), Generic Designations, subparagraph 4, Florida Administrative Code. Over the course of the past five years, Monroe County has discussed design criteria for fences on Big Pine Key but has not yet adopted a regulation that would provide for fences within the Big Pine Key Area of Critical County Concern, as mandated by Section 9.5-309, MCLDR, nor has Monroe County amended Section 9.5-479, MCLDR, to permit, pertinent to this case, any development except single-family detached dwellings on lots in the Big Pine Key Area of Critical County Concern. Under such circumstances, it was concluded in the FLWAC Cases, and is concluded here, that the permit issued by Monroe County for the construction of the Moorman fence in the Big Pine Key Area of Critical County Concern is not consistent with the Monroe County comprehensive plan and land development regulations. Other considerations At hearing, Mr. Moorman offered proof that the Department had failed to appeal every fence permit issued by Monroe County in the Big Pine Key Area of Critical County Concern, and contended, as a consequence of such failure, that the Department should be precluded from contesting the issuance of his permit, or maintaining this enforcement action. Mr. Moorman's contention was not found persuasive in the FLWAC Cases, and is not found persuasive in this case. Here, the proof demonstrates that the Department's Key West Field Office, to which Monroe County renders its permits, was established in 1983, and that from January 1, 1984 to September 15, 1986, the Monroe County land development regulations did not regulate fences on Big Pine Key and the Big Pine Key Area of Critical County Concern (BPKACCC) did not exist. Effective September 15, 1986, the Monroe County land development regulations were adopted in their current form and, among other things, created the BPKACCC and prohibited fencing within such area. Accordingly, prior to September 15, 1986, there was no prohibition against erecting fences in the BPKACCC, and no reason for the Department to question the propriety of such develop-ments. Since the effective date of the current regulations, the Department has, as contended by Mr. Moorman, failed to appeal some permits for fencing in the BPKACCC. Such failure was, however, persuasively shown to have occurred as a consequence of severe understaffing, which inhibited the Department's ability to review all permits issued by Monroe County in a timely fashion (i.e., before the appeal period expired), and the breach of a memorandum of understanding entered into between the Department and Monroe County, and not as a consequence of any position adopted by the Department that fencing in the BPKACCC was permissible. Accordingly, the Department's appeal of the Moorman permit is not inconsistent with any position it has previously taken with regard to the propriety of fencing in such area. 2/ Moreover, neither the Moormans nor Your Local Fence made any inquiry of the Department as to why some permits were appealed and others were not, or requested that the Department waive its appeal period, prior to erecting their fence. Under such circumstances, it was found in the FLWAC cases, and is so found here, that the proof fails to support the conclusion that the Department misled the Moormans or Your Local Fence so as to bar it from contesting the propriety of their permit or, here, from maintaining this enforcement action. 3/
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Department of Community Affairs enter a final order directing the respondents, Charles Moorman, Kathleen Moorman, and Your Local Fence, Inc., to remove the 400 linear foot fence constructed on the Moorman property, and that the respondents not construct, reconstruct, enlarge or expand a fence on the subject property unless and until such time as the Monroe County Board of County Commissioners adopts, and the Department of Community Affairs approves, a comprehensive plan and land development regulations which specifically authorize such development. Removal of the subject fence shall occur within thirty (30) days after the entry of the final order. RECOMMENDED in Tallahassee, Leon County, Florida, this 30th day of April 1992. WILLIAM J. KENDRICK 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 30th day of April 1992.
The Issue The following issues have been raised by the Department: Did the Respondents carry out any dredge, fill and bulkhead activities on Mr. Romaine's land within the "waters of Florida"; if so, to what extent? If dredge, fill and bulkhead activities took place within the waters of Florida, did they cause any damage to the natural resources the Department is charged with protecting; and, if so, to what extent? If such activities took place within the waters of Florida, what actions would be appropriate to remedy the violations and the damage caused? What is the amount of expense and damage, if any, which the Respondents should be required to pay to the Department?
Findings Of Fact Mr. Romaine and his wife Purchased land along the shore of the St. Johns River on December 10, 1984. The property was purchased from Milton C. and Cheri A. Rosberg and was secured by mortgage from James L. Tison, Jr., and Frances S. Tison. The land purchased by the Romaines (hereinafter referred to as the "Property") is located on the westerly bank of the St. Johns River in Clay County, Florida. The Property is more particularly described in the copy of the Warranty Deed accepted into evidence as the Department's exhibit 1. The property immediately to the north of the Property is owned by Mr. Rosberg. The property immediately to the south of the Property is owned by Mr. and Mrs. Tison. The Tisons have resided on the property to the south of the Property for approximately 27 years. The Tisons formerly owned the Property. Mr. Tison mowed the grass on the Property and otherwise maintained the Property prior to its sale. The Tisons are familiar with the shoreline of the St. Johns River along the Property both before and after December of 1985. During the latter part of 1985, Mr. Romaine contracted with B & W for the construction of a bulkhead along the western border of the Property and the St. Johns River. From approximately December 3, 1985, to December 7, 1985, a bulkhead was built along the portion of the Property fronting on the St. Johns River. No application for dredge and fill or bulkhead activities was filed with the Department with regard to the activity on the Property, and no such permit was issued by the Department. Mr. Romaine relied upon B & W to obtain any permits required for the construction of the bulkhead on the Property. The Department was not asked whether a permit was required for the construction of the bulkhead on the Property. Other State and federal agencies were consulted concerning their jurisdiction over the construction of the bulkhead on the Property. In addition to the portion of the bulkhead constructed on the Property, approximately 31 feet of bulkhead was constructed from the border of the Property with Mr. Rosberg's property north to a dock located on Mr. Rosberg's property. Mr. Rosberg gave Mr. Romaine permission to use the dock in exchange for the construction of this portion of the bulkhead. For purposes of presenting evidence, the Department divided the bulkhead constructed along the Property into two sections: Area "A" and Area "B." Area A consists of a portion of the bulkhead which begins at the border of the Property and Mr. Rosberg's property and runs in a relatively straight line to the south for approximately 48.2 feet. The bulkhead then begins a gradual, then more pronounced, curve to the west. This is the end of Area A. The bulkhead in Area B goes almost perpendicular to the tangent of the curve in a southern to southwesterly direction in a straight line for approximately 23 feet. The bulkhead then makes a sharp turn to the west and proceeds in a straight line for approximately 12.5 feet where it intersects with the Property's southern boundary. Areas A and B are shown on the Department's exhibit 2 and Romaine exhibit 8. The designation of Areas A and B on these exhibits was not prepared by a licensed surveyor; the designation was intended only as an approximate drawing of portions of the Property. A wetland area is an area which experiences flooding or inundation of water often enough for the area to become defined by species of plants and soils characteristic of areas subject to flooding or inundation of water. Wetlands are potentially the most important part of a water body. Wetlands can maintain water quality, acting as the "kidneys" of a water body, provide habitat not found elsewhere, act as a flood storage area, protect against erosion and play an essential role in the life cycle of aquatic plant and animal life. Water quality will deteriorate if wetlands are destroyed. The wetlands that border the St. Johns River act as a flood plain where water is stored during periods when the River is high. The determination of the extent, if any, of the Department's jurisdiction over the bulkhead built on the Property, is more difficult in this case than in a case where a permit is applied for because of the inability of the Department's experts to examine the Property in its natural, undisturbed state. Because of the changes to the natural state of the Property, including filling activities, many of the natural indicators used to determine the Department's jurisdictional line on the Property have been eliminated or altered. If there is insufficient physical or other evidence to the contrary, the landowner should be given the benefit of any doubt the Department has in setting the Department's jurisdictional line and a line of restoration where property is examined after it has been altered. In determining the extent of the Department's jurisdiction in this case, the starting point is the St. Johns River itself. The open water of the St. Johns River is a water body over which the Department has jurisdiction pursuant to the Florida Administrative Code. Area B used to be a wetlands area prior to the placement of the bulkhead on the Property and the placement of fill behind the bulkhead. This finding of fact is supported, in part, by the location of a large cypress tree, which is a wetlands tree. This tree is the first tree encountered behind the bulkhead in Area B and is the dominant upper canopy vegetation. This tree has been marked by a red "X" on the Department's exhibits 2, 3 and 7. Additionally, the area to the east and south of the bulkhead (between the bulkhead and the St. Johns River) still remains as wetlands. Because of the alteration of Area B by the bulkhead and the placement of fill behind the bulkhead, it is not possible to determine exactly how far the Department's jurisdictional line goes landward from the shore of the St. Johns River. At a minimum, the area between the dashed line and the bulkhead on the Department's exhibit 3 constitutes wetlands and lands within the Department's jurisdiction. By filling the area identified in the Department's exhibit 3 as within the Department's jurisdiction, wetlands of the St. Johns River have been destroyed. This has resulted in the elimination of an area which served the functions of wetlands as explained in findings of fact 10-12. To ignore the fact that the construction of the bulkhead was completed without a permit or to now grant a permit could affect other bulkhead and fill projects along the St. Johns River. Even though the effect of the filling of Area B may be small, the cumulative impact of the destruction of multiple small areas of wetland would have an overall negative effect on the quality of the St. Johns River. In order to remedy the damage in Area B the original status quo of the area should be restored. This requires the removal of the bulkhead in Area B and all fill added behind the bulkhead in Area B down to the original contour of the land and revegetating the area with indigenous wetland vegetation. During this process, steps must be taken to control turbidity and to prevent pollution of adjacent waters. Additionally, it would be appropriate to require that numbered paragraphs 5c, 6, 7, 8 and 9, in the Department's exhibit 10, be complied with in restoring Area B. The Department's experts were unable to say where the Department's jurisdictional line was located in Area A of the Property because there was no physical evidence remaining after construction of the bulkhead from which it could be determined where the natural shoreline of the St. Johns River was located at the time of the Department's examinations. Despite the inability of the Department's experts to precisely locate the Department's jurisdictional line based upon the current condition of Area A, other evidence supports a finding of fact that the bulkhead in Area A was built within the jurisdiction of the Department. In particular, the testimony of Mr. and Mrs. Tison and the Department's exhibits 12A-12D, support a finding that the portion of the bulkhead constructed in Area A of the Property extends into the waters of the St. Johns River to the east of the former shoreline of the Property. Fill was then placed into the River between the bulkhead and the former shoreline. Mr. Tison drew a line in red on the Department's exhibit 11. This line represents the approximate former shoreline of the St. Johns River prior to the construction of the bulkhead on the Property. The area between this red line and the bulkhead is within the Department's jurisdiction. B & W used a Case 410 tractor backhoe to construct the bulkhead. This tractor had outside wheels eighty-two inches apart and it weighed approximately 14,000 pounds. A bucket at the end of the tractor was used for digging. The bucket was approximately two feet wide and the arm, when fully extended, could perform work approximately eight feet away from the body of the tractor. After digging a trench where the bulkhead was to be placed in Area A, a water jet was used to sink four-by-six posts five feet apart. Two-by-eight boards were then stacked between the posts six boards high. The backhoe was used to dig a hole approximately twelve feet behind each post where a deadman was sunk or a tieback was attached to each post. The Department's exhibits 12A-12D are Photographs of Area A during the construction of the bulkhead. They all show water of the St. Johns River between the posts to the west where the shoreline of the St. Johns River was located. Based upon the size of the backhoe, Mr. Woodyard's testimony that the backhoe's wheels, while the backhoe straddled the bulkhead area to dig the trench, were on dry land is not credible. The Department's exhibits 12A and 12D show a leaning cypress tree in the waters of the St. Johns River. The bulkhead posts pictured in these exhibits are several feet into the River. In Romaine's exhibits 3 and 4, and the Department's exhibit 4 the same leaning cypress tree is several feet landward of the bulkhead. The Department's exhibit 12C shows the bucket of the backhoe totally submerged in the waters of the St. Johns River. This further supports a finding that dredging and filling occurred in the waters of the St. Johns River. When the Department's exhibits 12A-12D (photographs of the bulkhead construction in Area A) are compared with Romaine exhibits 3 and 4 and other photographs taken after construction of the bulkhead in Area A, it is evident that fill was placed between the bulkhead and the former shoreline of the St. Johns River. The construction of the bulkhead in Area A has caused the same damage that the construction of the bulkhead in Area B caused. The same remedy suggested for Area B would also be appropriate for Area A. The Department incurred $730.17 in its investigation of this matter and the preparation for the formal hearing of this case.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued finding that the Respondents have violated Section 403.161(1)(a) and (b), Florida Statutes (1987). It is further RECOMMENDED that the Final Order provide that the Respondents, jointly and severally, must pay $730.17 to the Department within twenty (20) days from the date of the Final Order in this case in reimbursement of the Department's expenses. Payment shall be made by cashiers check or money order and shall be payable to the Department of Environmental Regulation. Payment shall be sent to the Department of Environmental Regulation, Northeast District, 3426 Bills Road, Jacksonville, Florida 32207. It is further RECOMMENDED that the Final Order Provide that the Respondents are to restore the areas of the Property described in this Recommended Order within Sixty (60) days from the date of the Final Order as follows: All of the vertical bulkhead located on the Property shall be removed; All fill material within the jurisdiction of the Department shall be removed and placed upland of the Department's jurisdiction as described in this Recommended Order (the portion of Area A between the St. Johns River and the line drawn in red on the Department's exhibit 11 and the portion of Area B between the St. Johns River and the dashed line on the Department's exhibits 2, 3 and 7. The area from which the fill material is removed shall be restored to the elevation which existed prior to the violation; and During restoration of the Property, adjacent areas within the jurisdiction of the St. Johns River shall not be disturbed unless otherwise approved by the Department in writing. It is further RECOMMENDED that the Final Order provide that the Respondents shall carry out the activities described in paragraphs 5c, 6, 7, 8 and 9 of the Department's exhibit 10. It is further RECOMMENDED that the Final Order Provide that the Respondents are not to undertake any additional dredge and fill activities within the waters of Florida, other than the restoration measures described in the Final Order, without obtaining a permit or written notice that the work is exempted from permitting from the Department. It is further RECOMMENDED that the Final Order provide that the Respondents are to allow authorized representatives of the Department access to the Property at reasonable times for purposes of determining compliance with the Final Order in this case and with Chapter 403, Florida Statutes, and the Department's rules promulgated thereunder. DONE and ENTERED this 2nd day of March, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 1988. APPENDIX The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Petitioner's Proposed Findings of Fact: Proposed Finding Paragraph Number in Recommended Order of Fact of Acceptance or Reason for Rejection 1 Hereby accepted. 2 1. 3 3 and 9. 4 13. 5 These proposed findings are not necessary. They affect the weight to be given to some of the evidence. 6 10. 7 11. 8 12. 9 14. The portion of this proposed finding after the first sentence constitutes proposed conclusions of law. 10. Hereby accepted. 11 13. 12 20. The portion of this proposed finding after the first two sentences constitutes proposed conclusions of law. 13-15 These paragraphs are not proposed findings of fact. They are summaries of testimony. See 15-17. 16 This paragraph is not a proposed finding of fact. It is a summary of testimony concerning law. 17-19 These paragraphs are not proposed findings of fact. They are summaries of testimony. See 18-19 and 28. These proposed findings are not necessary. They affect the weight to be given to some of the evidence. Summary of testimony. 22 6. 23 29. 24-26 Summary of testimony. See 3 and 21. The weight of the evidence did not support a finding that the fill in Area A extended into the St. Johns River approximately 20 feet at its widest point. 27 5 and 7. 28 8. 29 Hereby accepted. 30 22. 31-32 Summary of testimony. See 23-25. 33 25. Not Supported by the weight of the evidence. 26. The last sentence is not supported by the weight of the evidence. Cumulative and unnecessary. 37 27 38-39 Conclusions of law and argument. 40-41 Hereby accepted. Mr. Romaine's Proposed Findings of Fact: The first paragraph under the Findings of Fact portion of Mr. Romaine's proposed recommended order does not contain any relevant findings of fact. Summary of testimony and irrelevant proposed findings of fact. Summary of evidence. The following numbers correspond to the numbers of the sentences contained in Mr. Romaine's "Procedural Statement." 1 and 3. 4 and 7. Hereby accepted. Irrelevant. 5-6 Not supported by the weight of the evidence. See 5 and 6. 7-17, 19-27 32-39 and 42 Irrelevant or not supported by the weight of the evidence presented at the formal hearing. 18, 28-31 and 40-41 Hereby accepted. COPIES FURNISHED TO: JOHN P. INGLE, ESQUIRE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION TWIN TOWERS OFFICE BUILDING 2600 BLAIR STONE ROAD TALLAHASSEE, FLORIDA 32399-2400 WILLIAM A. ROMAINE 2127 WINTERBOURNE, WEST ORANGE PARK, FLORIDA 32073-5621 ROBERT E. WOODYARD, PRESIDENT B & W MARINE CONSTRUCTION, INC. 4611 LAKESIDE DRIVE JACKSONVILLE, FLORIDA 32210 DALE TWACHTMANN, SECRETARY STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION TWIN TOWERS OFFICE BUILDING 2600 BLAIR STONE ROAD TALLAHASSEE, FLORIDA 32399-2400 DANIEL H. THOMPSON, ESQUIRE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION TWIN TOWERS OFFICE BUILDING 2600 BLAIR STONE ROAD TALLAHASSEE, FLORIDA 32399-2400
The Issue Whether Petitioner's application for an environmental resource permit to remove two canal plugs in the Cahill canal system should be granted or denied.
Findings Of Fact The proposed project On March 19, 1998, Petitioner Cahill submitted a permit application to the Department to remove two canal plugs in the Cahill Pines and Palms subdivision on Big Pine key. A backhoe would be used to dredge and lower the plugs to a depth of minus five feet mean low water (-5 ft. MLW) for the purpose of providing boating access to the properties now isolated from open water. The Cahill canal system is located within class III waters of the state which open into Pine Channel, a natural waterbody designated as Outstanding Florida Waters (OFW). In 1991 and 1995 Petitioner Cahill submitted permit applications to the Department to remove the same two canal plugs. Those applications were initially denied and the denials were litigated in formal administrative hearings. Those hearings resulted in Department final orders denying both applications.3 Background4 In July, 1991, the Department received a permit application requesting the removal of two canal plugs down to a depth of minus five-and-a-half feet NGVD. A formal administrative hearing was conducted on March 3 and 4, 1994, in Key West, Florida, before Stuart M. Lerner, a duly designated Hearing Officer (now Administrative Law Judge) of the Division of Administrative Hearings. That initial permit application denial was based upon water quality considerations and the project's failure to meet the public interest test. On May 17, 1995, Petitioner submitted a permit application to the Department which was denied. The basis for the permit denial was that the project was substantially similar to the previously litigated project. On April 23, 1996, a second formal administrative hearing was held in Key West, Florida, before Administrative Law Judge Susan B. Kirkland. Judge Kirkland found that the 1995 permit application did not address the issues raised by the Department in the first administrative hearing. Judge Kirkland also concluded that the 1995 application should be denied on the basis of res judicata. The Department entered a Final Order on September 12, 1996, concluding that the doctrine of res judicata applied to support the denial of Petitioner's 1995 application. New facts/changed conditions In all material aspects, the proposed dredging activity in the current permit application is identical to the previously proposed dredging activity. Petitioner Cahill seeks to lower the two canal plugs to allow boat access. The documents submitted in support of the current application do not propose any significant changes to what was proposed in the two prior applications. Petitioner Cahill provided copies of provisions of the Monroe County Comprehensive Plan, the Florida Keys National Marine Sanctuary Management Plan and two Monroe County Ordinances, in support of the current permit application. This information does not constitute new facts or changed conditions sufficient to characterize the proposed project as substantially different from the previously denied applications. Petitioner Cahill provided a list of "enhancements" in the current permit application seeking to provide reasonable assurance for issuance of an environmental resource permit. These proposed "enhancements" are not binding on the Petitioner Cahill's members and do not constitute such new facts or changed conditions as to make the project substantially different from the previously denied applications. The differences between the current application and the two previously denied applications are primarily cosmetic differences. The substance of the matter is unchanged in any material detail.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued in this case denying Petitioner's pending application for an environmental resource permit. DONE AND ENTERED this 15th day of March, 1999, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of March, 1998.
Findings Of Fact Petitioner filed Application No. 13-31-0286 on or about December 4, 1972, with the Florida Board of Trustees of the Internal Improvement Trust Fund, for a dredge and fill permit. This application was amended by the Petitioner on August 19, 1975, and again on October 8, 1975. The application as amended was admitted into evidence as Exhibit No. 14. The Mean High Water Line as depicted by the Petitioner on the application, Exhibit No. 14, is acceptable and correct and was stipulated and agreed to by the parties as being a correct depiction of the Mean High Water Line. Petitioner is the owner of approximately 350 acres of land adjacent to and in the Biscayne Bay Aquatic Preserve, located in Sections 21 and 22, Township 52 South, Range 42 East, Dade County, Florida. Approximately 192.8 acres of this land is below the Mean High Water Line and is part of the Biscayne Bay Aquatic Preserve. Petitioner, in the application, seeks to fill approximately 63.2 acres of submerged land below the Mean High Water Line for the purpose of constructing part of a planned 36-hole public golf facility. Less than 18 holes of the proposed golf facility are located on the filled area. The historical background detailing the acquisition by the Petitioner of the above 350 acres is set forth accurately in paragraphs 4, 5, 6; 7, 9, 10, 11, 13, 14 and 15 of Exhibit No. 2, admitted herein, entitled Petitioner's Statement. Therefore, those matters of a factual nature set forth in the aforementioned paragraphs are adopted as though set forth in full herein. Those matters of a conclusive nature, legal or factual, set forth in the aforementioned paragraphs are neither accepted nor rejected except as may be specifically provided herein. The Petitioner is obligated to pay off its General Obligation Bond Issue by which it acquired the 350 acres from Interama. This debt service will cost the Petitioner approximately $950,000 annually through the year 2001, and is paid out of ad valorem tax revenue. This debt constitutes a serious burden upon the taxpayers and citizens of the City of North Miami. There is a need in the North Miami area for the type of recreational facility proposed. At present, the only public golf course in the area is a 9- hole facility which is one of the busiest in the country. The lands owned by Petitioner in the Biscayne Bay Aquatic Preserve and subject of this hearing support a mangrove forest system, composed predominantly of red (Rhizophora mangle) and white (Languncularia racemosa) mangroves, with occasional black mangroves (Avicennia germinans). Prior to mosquito ditch excavation, which occurred approximately 35 years ago, the mangrove forest occupied only the southeastern portion of the acreage, while the remaining area probably supported sawgrass and marshgrass communities. The increase in salinity caused by mosquito ditches promoted the expansion of the mangrove community. Presently, the historical mangrove forest is the best developed portion of the system. The red mangrove trees reach heights in excess of 40 feet and the soil is composed of a deep layer of mangrove mulch. In contrast, the soil beneath the mangroves that invaded the marsh land after mosquito ditching, is primarily marl with a relatively thin organic layer of recent origin. Tidal waters flow onto the site through two 60-inch culverts under NE 135th Street, located on the southeastern perimeter of the property. Water flows north through three mosquito control ditches. The ditch along the eastern boundary terminates a short distance north of the historical forest. The north- south ditches are relatively deep and open, whereas the east-west ditches are filled with silt. Many of the latter are 1 foot to 1.5 feet deep at high tide. While tidal waters flow onto the site, these internal restrictions to flow limit circulation over much of the site. The historical mangrove forest on the subject property is well developed and highly productive. That part of the mangrove forest induced by the mosquito ditches is less well developed and not as productive. However, it is not unproductive. The mangrove forest area proposed for filling by the Petitioner, in terms of forest productivity, produces approximately 2 tons of material per acre annually. This compares to approximately 4 tons per acre annually by the well developed historical forest. The growth and development of both the historical and induced mangrove forests is inhibited somewhat by the restricted flow of tidal water into the forests, which, in turn, is caused by the NE 135th Street Causeway and the silting referred to in paragraph 7. Mangroves thrive on good flow and circulation. Therefore, if the flow and circulation of tidal waters is improved, the mangrove forest will improve. The filling of part of the mangrove forest, together with the dredging of the canals sought to be dug by the Petitioner, and the proposed additional opening in NE 135th Street, would enhance the flow and circulation in the historical forest and probably aid its further development. That same dredging and filling would completely destroy 63.2 acres of the existing, healthy, induced mangrove forest. There is no evidence that the induced mangrove forest proposed for filling is in a fatal state of deterioration. Rather, the question is one of how rapidly or slowly that mangrove forest will develop. Without improved flushing, its development will be slow. Apparently, if the flushing of the induced mangrove forest proposed for filling is improved, its development will be much more rapid. In either case, it apparently will eventually attain, given existing conditions, that stage of development presently enjoyed by the historical forest. The construction of one additional culvert in the NE 135th Street causeway will cost approximately $20,000. The Petitioner does not own the right-of-way to NE 135th Street which would be used in constructing an additional culvert. The owner of that right-of-way appears to be Dade County, which entity is not a party to this proceeding. The Petitioner has an agreement with a private entity known as Munisport, whereby Munisport is to develop and operate the proposed recreational complex, including the golf courses, with the attendant dredging and filling. According to the agreement, at the end of 30 years, the City would own the complex free of any other interest. With regard to the golf courses, the City, throughout their operation, would receive a guaranteed minimum of $86,000 annually, plus a percentage of the fees received by Munisport. As testified to by the City Manager, once the recreational complex is in full operation, the City hopes to receive from it $100,000 to $200,000 annually. The City Manager characterized this as having a small effect upon the financial burden borne by the taxpayers and citizens of the City of North Miami with regard to the bond debt. There was not sufficient evidence presented to establish that, for engineering, environmental, or economic reasons, the golf courses could not be reduced in size or redesigned to eliminate that part to be placed in the Biscayne Bay Aquatic Preserve. Witnesses for the City stated that the City had gone as far as it could in redesigning the project, but no evidence, other than that pertaining to the bond debt, was presented to show why the City took that position. The impact of altering the water storage capacity and volumetric tidal prism within the wetland area, as proposed, can only be adequately assessed by conducting a hydrographic survey. (See Composite Exhibit No. 25.) Such a survey has not been conducted. The Petitioner's application does not involve a public navigation project. The evidence presented does not establish that it is a public necessity that 63.2 acres of mangrove forest in the Biscayne Bay Aquatic Preserve be destroyed by dredging and filling so that part of a public golf course might be constructed. The evidence presented fails to show that the proposed dredging and filling is necessary for the preservation of the Biscayne Bay Aquatic Preserve. The proposed dredging and filling may enhance the quality of approximately 130 acres of mangrove forest in the Preserve, but it will do so by the destruction of 63.2 acres of mangrove forest, also in the Preserve. Viewing the total impact of the proposed dredging and filling on the Preserve, there is no showing that such dredging and filling is necessary to enhance the quality or utility of the Preserve. There was no showing that the 63.2 acres of mangrove forest to be dredged and filled is hazardous to the public health or lacking in aesthetic quality or utility.
Findings Of Fact The Intervenors filed an Application for Dredge and Fill Permit with the Department of Environmental Regulation. The Department entered a notice of its intent to issue a permit. Petitioner requested a formal administrative hearing. The Department forwarded the matter to the Division of Administrative Hearings, where it was given Case No. 82-3155. A Recommended Order which includes Findings of Fact and Conclusions of Law has been entered in Case No. 82-3155. The Findings of Fact and Conclusions of Law set out in the Recommended Order are hereby incorporated into this Final Order and constitute a part of this Final Order. The Petitioner is an association of home owners within a residential development known as "Caloosa." Intervenors are seeking to develop an industrial park on land adjacent to the Caloosa development. Surface and ground waters from the proposed industrial park would drain toward Caloosa. Prior to the Department's entry of the notice of intent to issue a permit to Intervenors, the Department's personnel evaluated the application in free-form proceedings. An environmental specialist who works with the Department as a permit processor proposed to deny the application on account of the fact that Intervenors proposed to fill approximately 70 acres of wetlands, 24 of which were within the Department's permitting authority under Rule 17-4.28, Florida Administrative Code. The administrator of the Department's Dredge and Fill Permitting Section came to the conclusion that denial of the application could not be justified. He felt that the wetlands to be filled served only marginally to preserve water quality in the area. The Intervenors had proposed to artificially create wetland areas in order to compensate for the loss of filled wetland areas. The program administrator suggested to the permit processor that they negotiate to get the Intervenors to create additional artificial wetlands in order to mitigate against any possible adverse effect from the loss of natural wetland areas. These negotiations occurred, and the Intervenors agreed to increase artificially created wetland areas. The Department of Environmental Regulation does not have a rule which provides that its personnel can engage in negotiations respecting a permit application. Negotiations are, however, an inherent part of a permitting process. The Department does not have any written or unwritten policy whereby it accepts such mitigating factors as artificially created wetlands as justifying the filling of natural wetlands. It does not appear that the Department has any rule or nonrule policy concerning mitigation or trade-offs, and it does not appear that the Department has ever had such a rule or policy. The Department does not have a policy of accepting concessions, trade-offs, or mitigating factors so as to allow an applicant to violate the Department's water quality standards. Since there has been a permitting process, such factors as artificially created wetlands have been considered by the Department in determining whether an application meets the Department's criteria for issuance of a permit. The Department's policy is to consider whether an applicant has provided reasonable assurance that the short-term and long-term effects of proposed activities will not result in violations of water quality standards, as required under Rule 17- 4.28(3), Florida Administrative Code. If an applicant has proposed to construct artificial wetlands, the Department would logically consider it in making determinations about granting the permit. There is no evidence in the record of this proceeding from which it could be concluded that the Department has any unpromulgated "mitigation" policy which has the effect of a rule.
The Issue Whether the Respondent should issue a permit for the removal of the one mangrove tree growing on the submerged lands owned by Petitioner.
Findings Of Fact There being no transcript of the proceedings, the Department did not take any exceptions to findings of fact per se. In Exception No. 1, however, the Department takes exception to Finding of Fact No. 16 to the extent that it embodies an implied conclusion of law that Batell had certain riparian or other vested rights which would prevent the Department from requiring a dredge and fill permit for removal of the mangrove tree. 3/ The Department's regulations are based on the police power of the state. Odom v. Deltona Corp., 341 So.2d 977, 987 (Fla. 1977); Neumann v. Davis Water and Waste, Inc., 433 So.2d 559 (Fla. 2d DCA 1983), rev. den.,441 So.2d 632 (Fla. 1983). See also Sunshine Jr. Stores, Inc. v. Department of Environmental Regulation, 556 So.2d 1177 (Fla. 1st DCA 1990); State v. General Development Corp., 448 So.2d 1074 (Fla. 2d DCA 1984), aff'd., 469 So.2d 1381 (Fla. 1985); Town of Indialantic v. NcNulty, 400 So.2d 1227 (Fla. 5th DCA 1981); Department of Environmental Regulation v. Oyster Bay Estates, Inc., 384 So.2d 891, 894 (Fla. 1st DCA 1980). All property rights are subject to the reasonable exercise of the police power. Odom v. Deltona, supra; Brickell v. Trammell, 82 So. 221 (Fla. 1919). The state may reasonably exercise its police power to regulate the use of both private land and waters to protect the environment. Odom v. Deltona Corp.; Oyster Bay; supra. Therefore, Batell's rights in her submerged land are subject to the Department's regulations on dredge and fill and mangrove alterations. Accordingly, I accept the Department's Exception No. 1 and reject any implied conclusion of law that Batell had certain riparian or other vested rights which would prevent the Department from requiring a dredge and fill permit for removal of the mangrove tree. Also, Finding of Fact No. 11 embodies a conclusion of law that the function of mangrove seedling propagation in the area is a "false [i.e., irrelevant] concern because mangroves were purposely removed from the area when the development was created." This conclusion of law is erroneous for the same reason as stated above. The right of Batell in her submerged lands are subject to the reasonable exercise of the police powers of the state. Therefore, I reject the embodied conclusion of law, but otherwise accept Finding of Fact No. 11. Finding of Fact No. 13 states: There was no reliable, empirical evidence provided by the Department at hearing to justify its preliminary finding that the tree removal was contrary to the public interest pursuant to Section 403.918(2), Florida Statutes. note that this statement may construed as containing an implied conclusion of law that the Department has a burden of showing that the proposed dredge and fill activity is contrary to the public interest. In fact, the burden is on the applicant to show that the project is not contrary to the public interest. Section 403.918(2), Florida Statutes; Florida Dept. of Transportation v. J.W.C. Company, 396 So.2d 778 (Fla. 1st DCA 1981); Young v. Dept. of Community Affairs; 567 So.2d 2 (Fla. 3d DCA 1990). I reject any such implied conclusion of law, but otherwise accept Finding of Fact No. 13. 4/ In sum, I accept the findings of fact in the Recommended Order except to the extent they embody or imply conclusions of law as noted above. RULINGS ON EXCEPTIONS TO CONCLUSIONS OF LAW In Exception No. 2, the Department takes exception to the conclusion of law that the Department is estopped from denying the requested permit. The Hearing Officer concludes that under the rule of Odom v. Deltona Corp., 341 So.2d 977 (Fla. 1976), the Department is equitably estopped from denying the permit to remove the mangrove tree because (1) ownership in the submerged land was acquired by the original developer as part of an overall project plan for the community; (2) public officials acquiesced in the development which included the removal of the original mangrove fringe, and (3) private persons such as Batell purchased the land in reliance on the development plan. In Odom the Board of Trustees of the Internal Improvement Trust Fund ("Trustees") sought to require permits for dredging and filling in navigable waters in which the Trustee's and Odom made conflicting claims of ownership. The court found, among other things, that the Trustees had previously purported to have conveyed the submerged lands at issue and were now estopped from attacking the validity of the earlier conveyance in light of the fact that (1) the conveyances were more than 30 years old, (2) the Trustees had made no effort of record to reclaim the lands, (3) the Trustees had acquiesced in the development of the land, and (4) private parties had entered into contracts in reliance on the development. Odom, however, is not applicable to this case. There the Trustees attempted to invalidate their prior conveyance. Here, the Department is not attacking the validity of the prior development; rather, it is merely applying current regulations to the present existing situation. It is established law that, absent a basis for equitable estoppel, the state's acquiescence in the earlier lawful removal of the mangrove fringe does not preclude the Department from apply current regulations to the removal of existing mangrove trees. See Department of Environmental Regulation v. Oyster Bay Estates, 384 So.2d 891 (Fla. 1st DCA 1980) Nor is there any basis to equitably estop the Department from applying current regulations to the removal of existing mangrove trees. Equitable estopped will be found against a state agency only in rare instances and under the most exceptional circumstances. Reedy Creek Improvement District v. Department of Environmental Regulation, 486 So.2d 642 (Fla. 1st DCA 1986); Department of Environmental Regulation v. C.P. Developers, 512 So.2d 258 (Fla. 1st DCA 1987). Thus, a state agency will be equitably estopped only when (1) the state agency has made a representation of a material fact that is contrary to a later asserted position, (2) the party seeking to estop the agency has relied on the representation, and (3) the party has taken a detrimental change in position caused by the representation and reliance. Reedy Creek; C.P. Developers; supra; Dept. of Revenue v. Anderson, 403 So.2d 397, 400 (Fla. 1981). The Hearing Officer has not found such factors. There was no finding of a representation that the mangrove at issue could be removed without a permit, no finding of reliance on any such representation, and no finding of a detrimental change of position caused by such a representation and reliance. Since there was no finding of ultimate facts necessary to establish equitable estoppel, there is no basis for the conclusion of law that the Department is estopped. Therefore, I accept the Department's Exception No. 2 and reject the Hearing Officer's legal conclusion that the Department is equitably estopped from denying the permit. In Exception No. 3, the Department takes exception to the Hearing Officer's conclusion of law that the denial of the permit to remove a single mangrove tree is an unconstitutional taking of property which can only be lawfully achieved through eminent domain proceedings. Such a conclusion of law must be predicated on a finding that the regulation leaves no economically viable use of the land to the owner. "[A] taking will not be established merely because the agency denies a permit for the particular use that a property owner considers to be the most desirable, or because the agency totally denies use of some portion of the property," so long as some economically viable use of the entire property remains. Department of Environmental Regulation v. MacKay, 544 So.2d 1065 (Fla. 3d DCA 1989) (citing Fox v. Treasure Coast Regional Planning Council, 442 So.2d 221, 226 (Fla. 1st DCA 1983) (emphasis added) . See also, Graham v. Estuary Prop. Inc., 399 So.2d 1374 (Fla. 1981), cert. den., 454 U.S. 1083, 102 S.Ct. 640, 70 L.Ed.2d 618 (1981); Bensch v. Metropolitan Dade County, 541 So.2d 1329 (Fla. 3d DCA 1989), rev. den., 549 So.2d 1013 (Fla. 1989); Florida Audubon Society v. Ratner, 497 So.2d 672 (Fla. 3d DCA 1986), rev. den., 508 So.2d 15 (Fla. 1987). The Hearing Officer made no finding of fact that the Department's decision deprived Batell of all beneficial uses of her property such that there was no remaining substantial economically viable use. Therefore, there can be no determination that a taking occurred. MacKay (and cases cited therein); supra. Furthermore, in order to show a taking, the landowner must show that she was not able to obtain a variance from the Department. Absent a showing that a variance cannot be obtained, there can be no finding of a taking. Department of Environmental Regulation v. MacKay (and cases cited therein) supra. The Hearing Officer made no such finding of fact; therefore, there can be no determination that a taking has occurred. Finally, and most importantly, a DOAH hearing officer lacks jurisdiction to determine issues of inverse condemnation. Bowen v. Department of Environmental Regulation, 448 So.2d 566, 568 (Fla. 2d DCA 1984), aff'd., 472 So.2d 460 (Fla. 1985) ("inverse condemnation actions cannot be adjudicated by administrative boards or agencies") For all of the above reasons I accept the Department's Exception No. 3 and reject the conclusion of law that the denial of the permit constitutes an unconstitutional taking of property. PUBLIC INTEREST TEST Section 403.918(2) (a), Florida Statutes, requires the consideration and balancing of seven factors in determining whether the project is not contrary to the public interest. The Hearing Officer did not make express findings of fact on any of the seven factors, and did not expressly find or conclude whether the project is not contrary to the public interest. Absent express findings on each of the seven factors a remand to DOAH would normally be required. However, in this case inferences as to all but two of the seven factors may be gleaned from Findings of Fact Nos. 7, 10, 12, 14 and 15, and from the Hearing Officer's acceptance of Batell's proposed findings of fact. When these findings of fact are taken as a whole, it can be fairly inferred that the Hearing Officer considered and found that the project would have either a beneficial or at least no adverse impact for all of the factors except for the permanence of the project and the impacts on historical or archaeological resources, which were not at issue in this case. I note that I have serious misgivings and doubts about some of the Hearing Officer's findings of fact. I have particular misgivings regarding her findings that the removal of mangroves can actually have a beneficial effect on water quality, marine productivity, fishing or recreation values, conservation of fish or wildlife, or public health, safety and welfare. I believe such findings are contrary to the great weight of scientific knowledge, and contrary to the implicit findings of the Legislature when it enacted the Mangrove Protection Act, Sections 403.93-.938, Florida Statutes, which generally prohibits the cutting, removal, defoliation, or other destruction of mangroves without a permit. Nevertheless, I am bound by the findings of fact unless, after a full inspection of the record, I conclude that the findings of fact are not supported in the record by any competent substantial evidence. 5/ Section 120.68(10), Florida Statutes; Freeze v. Dept. of Business Regulation, 556 So.2d 1204 (Fla. 5th DCA 1990); Berry v. Dept. of Environmental Regulation, 530 So.2d 1019 (Fla. 4th DCA 1988); Heifetz v. Dept. of Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985). In this case there is no transcript of the hearing, and I have no way of determining whether in fact these findings of fact by the Hearing Officer are supported by any competent substantial evidence. Therefore I am reluctantly bound by the findings of fact. Section 403.918(2), Florida Statutes, requires that the seven factors be balanced to determine whether the project is not contrary to the public interest. It might be inferred from Finding of Fact No. 13, and from the Hearing Officer's acceptance of Batell's proposed findings of fact, that the Hearing Officer balanced the factors and concluded that the applicant had met her original burden of showing that the project is not contrary to the public interest. However, the balancing of the various factors to determine whether the project is not contrary to the public interest is a conclusion of law over which I have final authority and responsibility to determine. 1800 Atlantic Development v. Department of Environmental Regulation, 552 So.2d 946 (Fla. 1st DCA 1989), rev. den., 562 So.2d 345 (Fla. 1990); J.T. McCormick v. City of Jacksonville, 12 FALR 960, 978-9 (DER Final Order, Jan. 22, 1990), rev. on other grounds sub nom., Perry, et al. v. City of Jacksonville, (Florida Land and Water Adjudicatory Comm'n Final Order No. 90-001, Feb. 14, 1991) I may reject a hearing officer's conclusion of law so long as my conclusion of law is consistent with the facts found by the hearing officer and accepted by me. Although I am inclined to reject the Hearing Officer's conclusion that the project is not contrary to the public interest, I am not at liberty to do so because my conclusion would be inconsistent with the Hearing Officer's finding of facts. Accordingly, I must reluctantly accept the conclusion that the project is not contrary to the public interest. MITIGATION In Exception No. 4, the Department takes exception to the fact that the recommendation of the Hearing Officer does not include any requirement for mitigation, even though mitigation was proposed by Batell at the hearing. In view of the fact that I have accepted the Hearing Officer's conclusion that the project is not contrary to the public interest, no mitigation is required. Therefore Exception No. 4 is rejected. Accordingly, it is therefore ORDERED that: Except as otherwise stated herein, the Hearing Officer's Recommended Order is adopted and incorporated by reference; and The Department shall forthwith issue a permit to Petitioner Geraldine V. Batell pursuant to Application No. MA521949293.
Recommendation Accordingly, it is RECOMMENDED: That Petitioner be granted the permit to remove the mangrove three which was preliminarily denied in File No. MA 521949293. DONE and ENTERED this 17th day of January, 1992, in Tallahassee, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of January, 1992. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact are addressed as follows: Accepted. Accepted. Accepted. Accepted. See HO #5, #6, #8 and #9. Accepted. See HO #2, #7, #12 and #15. Accepted. See HO #9, #10, #13 and #16. Accepted. Except for Mr. Steinke's affidavit. See Preliminary Statement. Accepted. See HO #17. Respondent's proposed findings of fact are addressed as follows: Rejected. Contrary to fact. There was only one mangrove. See HO #5, #6, #8 and #9. The rest is accepted. See HO #8. Accepted. See HO #1. Accepted, except there is only one mangrove tree. See HO #5, #6, #8 and #9. One mangrove tree. Otherwise accepted. See HO #2. Accepted. See HO #7. Accepted. Rejected. Contrary to fact. See HO #6. Accepted. Accepted. See HO #1. Accepted. See HO #1 and #2. Accepted. See HO #1 and #2. Accepted. See HO #2. Accepted. Rejected. Cumulative. Rejected. Contrary to fact. See HO #9 - #11. Accepted. See HO #4. (Only one mangrove). Rejected. Contrary to fact. Petitioner does not have a stand of mangroves on her privately owned submerged lands. See HO #4. Accepted. Accepted. One mangrove. Otherwise accepted. One mangrove. Otherwise accepted. Rejected. Contrary to fact. See HO #17. Rejected. Irrelevant. See HO #16. Contrary to fact. See HO #10. Rejected. Irrelevant. See HO #16. Contrary to fact. See HO #10. Rejected. Contrary to fact. See HO #10. Rejected. Contrary to fact. See HO #10. Accepted. (One mangrove) Accepted, generally but not on this site. See HO #10. Rejected. Contrary to fact. See HO #10, #13 and #16. COPIES FURNISHED: GERALDINE V BATELL 1184- 79TH STREET S ST PETERSBURG FL 33707 DOUGLAS BEASON ESQ ASST GENERAL COUNSEL DEPT OF ENVIRONMENTAL REGULATION 2600 BLAIRSTONE RD TALLAHASSEE FL 32399 2400 CAROL BROWNER, SECRETARY DEPT OF ENVIRONMENTAL REGULATION TWIN TOWERS OFFICE BLDG 2600 BLAIRSTONE RD TALLAHASSEE FL 32399 2400 DANIEL H THOMPSON ESQ GENERAL COUNSEL DEPT OF ENVIRONMENTAL REGULATION 2600 BLAIRSTONE RD TALLAHASSEE FL 32399 2400
The Issue The issue is whether Respondent, Toulla Xioutas, Inc., owes Petitioner money for the purchase of landscape plants and, if so, how much.
Findings Of Fact As is relevant in this case, Petitioner sold Respondent, Toulla Xioutas, Inc., d/b/a Gulf Breeze Landscaping (Respondent), numerous palm trees on three dates. The first sale took place on February 17, 1997, and consisted of 20 palm trees for a total of $1270. Respondent paid all but $34 of this sum. The second sale took place on March 3, 1997, and consisted of 25 palm trees for a total of $1887.50. The third sale took place on March 24, 1997, and consisted of 15 palm trees for a total of $1721. Respondent never paid anything for these two purchases, which total $3608.50. The palm trees conformed to the items ordered by Respondent in type, quality, and quantity. Petitioner repeatedly tried to obtain payment for these trees, but Respondent would not even respond to his calls.
Recommendation It is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order determining that Respondent owes Petitioner $3642.50. DONE AND ENTERED this 30th day of January, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of January, 1998. COPIES FURNISHED: Mark Dean, President Trademark Palms, Inc. Post Office Box 2198 Pineland, Florida 33945 David Joy Toulla Xioutas, Inc., d/b/a Gulf Breeze Landscaping 901 MacEwen Drive Osprey, Florida 34229 Lisa DeSantis Surety Claims Analyst Frontier Insurance Company of New York 195 Lake Louise Marie Road Rock Hill, New York 12775-8000 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0800 Brenda D. Hyatt, Chief Bureau of License and Bond Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, Florida 32399-0800
Findings Of Fact The Respondents, the Theoharises, own the property in question, which is located on the corner of Northeast 26th Street and Federal Highway in Ft. Lauderdale, which property is contiguous to the North Fork of the Middle River, a navigable waterbody within the State of Florida. The subject property is more particularly described as lying within Section 25, Township 49 South, Range 42 East, Broward County, Florida. The site is connected to and is a part of the North Fork of the Middle River with which it regularly exchanges tidal waters. The dominant plant species was white mangroves, a submerged species for purposes of Section 17- 4.02(17), Florida Administrative Code. The North Fork of the Middle River is part of a marine estuary system and as such is important as a spawning or nursery ground for commercially important fish and other marine life in their early life stages, as well as for bluefish, snook, tarpon, flounder and other commercially or recreationally important species. On August 24, 1979 the Respondent and his agents, at the request of the Theoharises, the owners of the property, brought a backhoe on the site and commenced clearing trees, shrubs, and other vegetation from the subject property, including the scooping out or uprooting of a stand of mature white mangroves growing along the river on the submerged portion of the property. This activity was observed by a landowner directly across the river who contacted the Department, who then sent its representative, Mr. Wittkamp, to inspect the work in progress on the Theoharises' site. Mr. Wittkamp identified himself to Mr. Bruce, the Respondent, as an inspector for the Department and informed him that, inasmuch as he did not have a permit authorizing the removal of the mangrove trees and the associated "dredging and filling" operation, he would have to discontinue the work immediately. The Respondent, however, proceeded to continue the removal of the mangroves and clearing the other vegetation, and the grading of the property, all of which was for the purpose of extending a parking lot for the Owner's restaurant. He ultimately completed the job in spite of the warning by the Department's inspector. No permit authorizing this activity was ever obtained. Upon completion of the job the Respondent and his agents had, without a permit, destroyed and removed 2,000 square feet of submerged lands constituting the total destruction of the stand of mangrove trees, and also pushed a quantity of soil, or fill, as well as trash and debris, into the Middle River below the mean high water line. An inspector for the City of Ft. Lauderdale, Mr. Robert Schimmel, visited the site in question prior to the destruction of the mangrove trees and established at the hearing that the trunk diameters of the mangroves before their removal was an aggregate of 98 caliper inches. Based on those measurements, Mr. Reis, an expert witness for the Department, established that the canopy cover provided by the destroyed mangrove trees was approximately 2,000 square feet, or 0.046 acres. If monetary damages are sought to be based on lost detrital value, as the Department seeks to do here, then that productivity loss represented by the removed mangroves can be more accurately measured by determination of the size of the canopy cover rather than other methods. In order to verify his calculation of the extent of the lost mangrove canopy cover Mr. Reis measured other mangrove canopies with similar trunk dimensions. That witness then took the 2,000 square foot dimension and calculated the value of the destroyed mangroves with reference to a scientific study, "The Tree Nobody Liked" by R. Gore published in the May, 1977 issue of National Geographic which ascribed a value of $4,000 per acre per year for South Florida mangroves. Other methods of economic valuation of mangrove stands were shown by reference to generally accepted authoritative scientific studies, to be as high as $84,000 per acre per year, and indeed, in 1974 Nicholas and Blowers, consultants to Deltona Corporation, published The Socioeconomic Impact of the Marco Island Development and set fourth values for mangrove trees per acre ranging from $34,000 to $100,000 per acre per year. So too, in 1974, Heald, Odum and Tabb published Mangroves in the Estuarine Food Chain, which cited average values for South Florida mangrove productivity equivalent to approximately $25,800 per acre per year. Thus the Petitioner used the lowest generally accepted method and figures for arriving at the value of the mangrove trees and there was no contradiction of the showing by the Department's expert witness that an acre of mangroves is actually worth considerably more than the figures used by the Department in calculating the alleged damages in this case. The unrefuted means of calculating the pertinent environmental loss is a conservative one especially because it only includes loss of the detrital value of the removed mangrove trees. Detrital value is the value of the accumulation of leaves, branches and seeds in the estuary in which the mangroves grow and which serves as an essential element in the estuarine food chain. The vegetable matter dropping in the water from the trees is decomposed by organisms such as algae, fungi and bacteria. The leaf particles dropped by the trees are coated with protein in the form of these microorganisms and then become available as a food source to zooplankton, which are in turn harvested by small fish and intermediate fish, which serve as food for larger species of fish which may be commercially valuable. The reduction in the mangrove population thus weakens the basis of the estuarine food chain and thus reduces the size of the aquatic community or species populations which can be supported by such a food source. Mangroves are additionally valuable because they serve a water cleansing function in that they filter out contaminants in the water in which they grow. They are particularly beneficial in controlling pollution from upland runoff. Nutrient uptake and assimilation is particularly important to the geographical area involved in this case because the North Fork of the Middle River is burdened with nutrient discharge from sewage treatment plants, as well as stormwater drainage. Thus the maintenance of healthy mangrove populations along the waterway is directly related to maintenance and restoration of good water quality and the prevention of eutrophication. In addition to the above benefits, mangroves serve as a shoreline stabilizer in that they prevent the erosion by wave action against the shore by storms or boat wakes, and provide shelter, food and breeding areas for fish and other forms of marine life. Mangrove wetlands aid in flood prevention, conservation of water during drought periods, produce oxygen and sequester heavy metals and other poisonous substances in the anaerobic muds they produce. Additionally, they serve as nesting and roosting habitat for birds and as a place of shelter for many terrestrial animals. Mangrove wetlands also, by serving as nursery areas for the rearing of fish and marine life, constitute an important basis of support for the area's sport fishing and commercial fishing industries. The Petitioner's assessment of the damages involved in this case from the destruction of the trees and shoreline area did not take into account any potential damage to the fishing industry or any damage attributable to the resultant loss of shoreline stabilization, however. Elimination of mangroves thus has an adverse effect on the water quality and interferes with and potentially injures the conservation and propagation of fish and other marine life, as well as terrestrial wildlife and other natural resources. The Petitioner, in establishing damages by the lowest proven method of evaluation, demonstrated a value of an acre of such mangrove trees per year of $4,000. Then, given that a mangrove seedling takes approximately 15 years to reach maturity, this annual loss of productivity should be multiplied by 15 years, times the total of 2,000 square feet of mangrove canopy destroyed or .046 acres. This unrefuted means of quantifying environmental injury caused by the acts of the Respondent establishes damages to be in the amount of $2,760. Various items of costs involved in tracing, investigating and preparing for the prosecution of this case were alleged by the Petitioner, including cost for preparation and attendance of the various expert witnesses. All of the witnesses were paid state employees, however, and although they doubtless spent a great number of hours preparing for this proceeding, the evidence does not establish the specific amount of costs and expenses for investigation, preparation and attendance of witnesses separately attributable to this case, as opposed to those incurred in the course of Petitioner's employees normal duties. Moreover, although the Petitioner entered into a settlement with the Respondents, the Theoharises, for a portion of the damages to the pollution violation here involved, there was no showing whether or not the $1,000 paid by the Theoharises to the Petitioner's warning notices and voluntarily agreed to replant mangrove seedlings in response to the Department's Order for Corrective Action and to pay $1,000 of the Department's estimate of damages. This agreement was signed by the Theoharises and took the form of a consent order (See Exhibit 1). The instant Respondent, Charlie Bruce, neither personally nor on behalf of his corporation, entered into the settlement negotiations involving the Theoharises.
Recommendation Having considered the competent, substantial evidence in the record, as well as the pleadings and arguments of counsel, it is recommended that the Respondent Charlie Bruce d/b/a Charlie Bruce and Sons Backhoe Service, Inc. pay damages for the above violations in the amount of $1,760. Said sum represents the total environmental damages proven to be caused by that Respondent, after deduction of the $1,000 damages already paid by the Respondents, the Theoharises and the alleged figures for costs and expenses which were not proven to be entirely attributable to this Respondent. The sum of $1,760 shall be payable to the State of Florida Pollution Recovery Fund c/o the Department of Environmental Regulation, Office of General Counsel, 2600 Blair Stone Road, Tallahassee, Florida, 32301 within ninety (90) days from the date of entry of a final order herein. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 9th day of December, 1980. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings Room 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of December, 1980.
