The Issue The issues are (1) whether Respondents, Frank H. and Linda M. Molica, dredged and filled wetlands on their property in Merritt Island, Brevard County (County), Florida, without a permit and should take certain corrective actions, and (2) whether Respondents' activities are exempt from permitting under Section 373.406(2), Florida Statutes.1
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In 1990, Respondents purchased a 3.47-acre, rectangular- shaped parcel at 2050 North Tropical Trail, Merritt Island, Florida, which is located within the regulatory jurisdiction of the District. See § 373.069, Fla. Stat. The parcel identification number is 24-36-15-00-00764-00000.00. The property is less than a mile south of State Road 528 (A1A), approximately one-half mile west of State Road 3 (North Courtney Parkway), and around one-half mile east of the Indian River. The property is bounded on its western side by a roadway known as North Tropical Trail, on the south side by a drainage ditch, and on the east side by another drainage ditch. Further to the east of the drainage ditch on the eastern side of the property are a holding pond and a subdivision known as Copperfield Subdivision developed in 1993, while a nursery is located just south of the drainage ditch on the southern side. The northern boundary of the parcel is five hundred twenty feet long and is adjoined by a vacant parcel of land similar in size to the Molica parcel and which is owned by the Lacanos. The Lacano property is largely a wetland. To the north of the Lacano property is a parcel owned by the Stricklands. Historically, the natural flow of water in the area was north to south, that is, from the Stricklands to the Lacanos to the Molica's property, and then to the drainage ditch on the south side of the Molica's property. When Respondents purchased the property in 1990, citrus trees were located "mostly in the front half," or western side of the property, "but they were also located in the rear scattered throughout." There was also "weed grass" or "mini grass" throughout the entire parcel. In 2002 or 2003, the citrus industry was economically hurt by a drop in prices due to various problems, and it became difficult to find fruit pickers or purchasers for the fruit. Because of these conditions, and pursuant to a recommendation by another citrus grower, Respondents state that they began to "transform their property to palm tree production." In late 2003, Respondents began removing orange trees and clearing the land; this continued throughout 2004. At the same time, they began to remove vegetation from the eastern half of the property, which included the excavation of the vegetation, soil, and roots. This was accomplished by the use of heavy equipment, including a tracked cab with hoe, a bobcat with front end loader bucket and root rake, and a wheeled tractor with front end root rake. This is confirmed by photographs taken of the property in April and December 2004. See District Exhibits 8 through 10. Also, a few cabbage palms were removed that were damaged during the clearing process, as well as trees damaged by hurricanes that struck the east coast of Florida in 2004. The vegetation and soil were trucked off-site for disposal, and new soil or fill was placed throughout the eastern half of the property in which vegetation and soil had been excavated. In some cases, the fill measured as high as thirty-three inches but averaged around one foot in height. There is no dispute that dredging (or excavation) and filling on the property occurred. Respondents did not obtain an Environmental Resource Permit (ERP) before performing this work. On December 13, 2004, the County received a complaint (generated by Mrs. Strickland, the neighbor to the north) about "heavy machinery operating in a wetland" on the Molica property. Mr. Pinnick, who was charged with enforcement of County environmental ordinances, visited the subject property to determine whether a violation of an ordinance had occurred. He observed heavy machinery operating on the central and eastern sides of the property and took several photographs of the site. See District Exhibit 12. He also observed vegetation and muck soil in the disturbed area and standing water in the ditch to the south and concluded that wetlands were being impacted. It is fair to infer that he then notified the DEP about the incident. On December 15, 2004, Mr. Pinnick, accompanied by two DEP employees, Mr. West and his supervisor, Ms. Booker, visited the site and met Mr. Molica and his consultant. At that time, "clearing and [dredging and filling] of wetland at rear [or east end] of Molica's property [was observed]." See District Exhibit 49. The DEP requested that Respondents' consultant "flag a [wetland] line and then Molica have all fill within wetland area removed." The DEP also advised Mr. Molica that "[a]rea then needs to be restored to natural grade." Id. Notes taken by Mr. Pinnick confirm that Mr. Molica agreed to remove the fill "to restore the natural grade and the wetland boundary would be delineated [by Mr. Molica's consultant.]" See District Exhibit The conclusion of both the County and DEP was that wetlands were present in the central part of the property. No formal delineation of wetlands was performed by them since the parties reached an understanding that Mr. Molica's consultant would perform this task. Because Mr. Molica thereafter denied access to the property, this would be the last time regulatory personnel were able to make an on-site inspection of the property until October 2008, when the District obtained an Order authorizing them to inspect the property. The County later charged Respondents with violating the County Code ("prohibitions in functional wetlands"), and the matter was considered by a Special Magistrate. An Order of Dismissal was entered by the Special Magistrate on February 1, 2006, on the grounds the property was zoned agriculture and enjoyed an agricultural exemption, and Respondents agreed to use Best Management Practices, as prescribed by the Department of Agriculture and Consumer Affairs. See Respondents' Exhibit 4. However, neither the DEP nor the District was involved in that action, and the matter concerned an alleged violation of a local ordinance, and not a provision in Chapters 373 or 403, Florida Statutes. At some point in time, but presumably after the site visit in December 2004, Mr. Molica asserted to the DEP that he was conducting an agricultural operation. In early 2005, the DEP referred the matter to the District since the two agencies have an operating agreement concerning which agency will handle certain types of permitting and enforcement matters. By letter dated August 15, 2005, Mr. Molica advised the local District office in Palm Bay, Florida, that the owners of the property were engaging in agricultural activities and denied that any unauthorized fill and excavation activities had occurred. He also requested copies of any statutes, rules, or case law that supported the District's position. See Respondents' Exhibit 2A. On August 3, 2007, the District advised Mr. Molica by letter that it had received a complaint from DEP, that the matter had not yet been resolved, and that it wished to inspect his property to determine if unauthorized fill and excavation activities had occurred. See Respondents' Exhibit 2B. According to a District witness, the delay in responding to Mr. Molica's letter was caused by the building boom occurring in 2005 and 2006, which required action on numerous pending permits, and in-house confusion over whether the DEP or District had jurisdiction to handle the complaint. There is no evidence to suggest that at any time the District agreed that the activities were lawful, or that the delay in responding to Mr. Molica's letter prejudiced Respondents in any manner. After conducting a preliminary investigation, which included a review of aerial photographs of the area, wetland maps, and soil maps, a visual inspection taken from the Copperfield Subdivision to the east and North Tropical Trail from the west, and a flyover of the property, the District issued its Complaint on August 8, 2008. Are there wetlands on the property? To determine whether wetlands were present on the Molica property, the District made a site inspection on October 22, 28, 29, and 30, 2008. Besides making a visual inspection of the property, the staff took photographs, performed twenty-nine soil borings on both the Molica and Lacano properties, reviewed soil surveys for the area, completed one west-to-east transect and five north-to-south transects to determine locations of hydric soils and any fill materials, and observed lichen and water stain lines on trees. The locations of the various soil borings are depicted on District Exhibit 22. Finally, the staff examined a series of aerial photographs of the property. Under the wetland delineation rule, three different indicators are used to make that determination: vegetation; soils; and signs of hydrology. See Fla. Admin. Code R. 62- 340.300(2)(a)-(d). In addition, where the vegetation and soil have been altered by man-induced factors so that the boundary between the uplands and wetlands cannot be delineated by use of Rule 62-340.300(2), such a determination shall be made by using the most reliable information and "reasonable scientific judgment." See Fla. Admin. Code R. 62-340.300(3)(a). The parties presented conflicting evidence on the wetland issue; the District's evidence has been accepted as being the more persuasive and credible and supports a finding that the areas where dredging and filling occurred in the eastern and central parts of the property meet the test for a wetland. Wetland Soils Muck presence is a hydric soil indicator and also a wetland indicator. The District's expert, Mr. Richardson, established that the soil on the property where the dredging and filling occurred was hydric in nature, and therefore indicative of a wetland. Although Respondent's soil expert disagreed with this conclusion, he generally agreed with Mr. Richardson's methodology, and he agreed that muck was present below the fill material. Wetland Vegetation The presence or absence of wetland vegetation is another factor to consider in deciding whether an area is or was a wetland. Wetland hardwood trees, and not grass planted on top of the fill, are more appropriate for evaluating whether the area in which the trees are located was a wetland. Large trees, estimated to be fifty to sixty years old, remain on the property in the vicinity of certain District soil borings. They include boring 20 (swamp tupelo); borings 3, 4, and 5 (red maple, American elm, and holly); and borings 9 and 10 (maple and American elm). These are all wetland canopy species and provide further support for the District's position. Hydrologic Indicators Algal matting is found on the surface of the property in the vicinity of borings 3, 4, 5, 8, and 9. Algal matting occurs because water has inundated the surface of the ground sufficiently long for algae to grow in the water and then remains on the ground surface after the water no longer covers the ground. Rainfall alone does not produce algal mats. Trees on the property provided evidence of being in saturated or inundated soil conditions through the morphological adaptation of buttressing and adventitious roots, particularly in the vicinity of District borings 20, 8, 9, and 10. Also, the trees had lichen lines on them, which are indicators of seasonal high water inundation elevations in wetlands. The presence of muck soils is a hydrologic indicator. As noted above, the District determined through soil borings that muck was under the fill that had been placed on the property. Reasonable Scientific Judgment The evidence established that there was significant alteration to the soils and vegetation across the central and eastern parts of the subject property due to man-induced factors of vegetation removal, dredging, and filling. Through consideration of the most reliable information available, including aerial photographs, the remaining trees on the site, hydrologic indicators, the presence of hydric soils, coupled with reasonable scientific judgment, the evidence established that the areas where the recent dredging and filling occurred met the wetland delineation test in Florida Administrative Code Rule 62- 340.300(3). Agricultural Exemption Mr. Molica is a full-time practicing attorney. His wife is his legal secretary. Respondents contend that since they purchased the property in 1990, they have been continuously engaged first in the occupation of citrus farming, and then beginning sometime in 2004 in the production of palm trees. Therefore, they assert they are entitled to the exemption provided under Section 373.406(2), Florida Statutes. That provision states in relevant part that "[n]othing herein . . . shall be construed to affect the right of any person engaged in the occupation of . . . horticulture . . . to alter the topography of any tract of land consistent with the practice of such occupation. However, such alteration may not be for the sole or predominant purpose of impounding or obstructing surface waters." The parties agree that the burden of proving entitlement to this exemption rests on Respondents. When the property was purchased in 1990, there were citrus trees on the land, mainly in the western half. A few navel oranges were later added, and some citrus trees were removed at that time. Beginning at the end of 2003, and continuing in 2004, the citrus trees were removed. At the time of the DEP inspection in December 2004, no potted palm trees were observed on the property. The precise date when they were first placed on the property is not clear. Photographs taken in January 2006, more than a year after the dredging and filling and just before the County code violation charge was resolved, reflect around fifty or so small trees in pots located in a small, cleared section of the property. See Respondents' Exhibit Photographs taken three years later (January 2009), long after the dredging and filling occurred, show a comparable number of small palm trees in pots placed on what appears to be the same part of the property. See Respondents' Exhibit 21. Mr. Molica also submitted numerous documents (dated 2005 and later) downloaded from the internet by his wife which pertain to palm trees, see Respondents' Exhibit 20; and he stated that a marketing plan for the sale of palm trees has been developed, which was simply a goal of selling the trees after they were ten years old. He further stated that he intends to work the "farm" as a business full-time after retiring from his law practice. Finally, he presented the testimony of an agronomist who stated that clearing property, filling holes, smoothing land, and building an access road are normal agriculture activities. It is fair to infer from the record that Respondents' activities can be characterized as an avocation, not an occupation. Notably, there is no evidence that since they purchased the property in 1990, Respondents have sold any citrus fruit or a single palm tree. There is no evidence that dredging and filling in wetlands is a normal agriculture practice, or that it is consistent with the practice of horticulture, including the growing of exotic palm trees. Mr. Molica's agronomist acknowledged that he has never been associated with an application to conduct agricultural or horticultural activities that involve the filling of wetlands. Moreover, extensive dredging, filling, and removal of vegetation were not necessary to accommodate the small area on which the potted plants sit. The more persuasive evidence supports a finding that the topographic alterations on the property are not consistent with the practice of agriculture. The evidence shows that the filling on the property has obstructed the natural flow of surface water. More than likely, the filling of the wetlands was for the predominant purpose of obstructing and diverting surface water that flowed south from the Lacano property, and not for the purpose of enhancing horticultural productivity. Corrective Actions At hearing, the District submitted certain revisions to the proposed corrective action, which are described in District Exhibit 73. The revisions provide greater specificity regarding the formulation of a restoration plan and who must be involved in formulating that plan. In general terms, the corrective action offers Respondents the option of seeking an after-the-fact permit or restoring the wetlands. Respondents offered no proof at hearing that the original or revised corrective action is unreasonable. The revised corrective action is found to be reasonable and designed to address the restoration needs of the property and is hereby approved.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered sustaining the charges in the Complaint, requiring Respondents to take the corrective actions described in District Exhibit 73, and determining that Respondents are not entitled to an agricultural exemption under Section 373.406(2), Florida Statutes. DONE AND RECOMMENDED this 12th day of June, 2009, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER 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 12th day of June, 2009.
Findings Of Fact Petitioner, Robert Brown, is the co-owner of Lot 13 and the northern half of Lot 14, Block 7, Lake Addition to Boynton in Boynton Beach, Palm Beach County, Florida. The property consists of a parcel approximately 150 by 150 feet and is located along the western edge of the Intra-coastal Waterway at N.E. 8th Ave. and N.E. 7th Street in Boynton Beach. At all times pertinent to the issues herein, Petitioner was the owner of this property which is vegetated along the Eastern half with mature mangrove trees which extend back from the water's edge approximately one half the depth of the lot. These mangroves include red, black, and white species and the larger are approximately between 18 and 22 years old. The majority of the trees, however, are younger than that. The Western half of the property is sparsely vegetated and in the heavily vegetated half, there is an open area approximately 30 by 30 feet which appears to have been cleared and on which there are no mature mangrove trees. On July 19, 1984, Petitioner filed an application for a permit to construct a 1625 square foot house on pilings together with a 164 by 4 foot boardwalk extending in a west to east direction from the westernmost edge of the mangrove community to the waterside of the proposed dwelling giving access thereto. The eastern half of the property in question appears to be lower in elevation than the western half and experiences some tidal inundation during periods of high tide. Though there is a riprap deposit along the eastern edge of the property and two berms extending along the landward side of the riprap, water from the Intra-coastal Waterway periodically flows through the riprap, over the berms, and onto Petitioner's property. This water is afforded access onto the property also, by a northwest running ditch located south of the southern boundary of the property which ditch is connected to the waterway. It intersects with another ditch which runs due north to an intersection with an east-west depression, also connected to the Waterway, running along the northern boundary of the property. Mangroves of some size are found in and on the edges of this ditch. Petitioner's construction proposal, involving the driving of supporting pilings for the dwelling, is a dredge and fill activity as defined by the Department of Environmental Regulation's (DER), experts and requires the issue of a dredge and fill permit. There is a conflict between the Petitioner's evidence regarding the physical location of his proposed dwelling and boardwalk and that of the agency personnel who, with benefit of a survey, determined that the larger clearing referenced by the Petitioner does not lie on his property and that the indicated cleared cut through the mangrove community to the waterway on Petitioner's property for the walkway does not lie on Petitioner's property but instead is approximately 30 feet south of the southern boundary. Having reviewed the application submitted by Petitioner, DER requested additional information regarding construction techniques and plans. These have not, to this date submitted in a tangible form the information requested. Petitioner's attorney provided some of the information requested orally to DER at some time in the past, giving some assurances that the disruption of water quality during construction would be kept at a minimum and would be only temporary. However, since DER did not have available to it the additional information it requested so as to appropriately evaluate the true proposal by Petitioner and the effect of any modifications, based on the failure of Petitioner to provide adequate assurances that water quality standards would not be violated and that the project was not contrary to public interest as is required of him by Section 403.918, Florida Statutes, on January 23, 1985, the Department issued an intent to deny the permit. As a part of this intent to deny, the agency suggested that the project be relocated to the upland one-half of the Petitioner's property. Construction there would not have involved any mangrove disturbance and would have been consistent with the agency's standards and policies. Historically the property owned by Mr. Brown did not border the open body of water which now constitutes Lake Worth or the Intra-coastal Waterway. As far back as 1872, the property was dry and supported no mangrove growth. Mangroves existing currently on the property have developed there since the construction of the Intra-coastal Waterway and its joinder with Lake Worth and the installation of the inlets which connect this water body with the Atlantic Ocean. On the property directly north of Petitioner's boundary sits a house built on fill approximately one and a half feet above the gradient of Mr. Brown's lot. Immediately south of his property is a condominium building also located on fill bordering the Intra-coastal Waterway. Evaluation of photographs of the area reveals that both pieces appear to have been identical in make-up to that owned by Petitioner in both topography and vegetation prior to being filled for construction. In fact, this parcel lies in a rapidly developing commercial and residential area. Petitioner also presented the testimony of two long time residents of the area who indicate that prior to the widening of the Intra-coastal Waterway, Petitioner's property did not border the open water of Lake Worth or the waterway. Back in the 1940's and before, the property was not covered with mangrove trees and was, in fact, used as farmland by Mr. Pinder, one of these two witnesses, who grew bell peppers and squash there. Mr. Pinder was hired by Palm Beach County during the 1940's and 1950's to dig mosquito control ditches on the property and Petitioner contends that it was these ditches which developed the connection with the Intra-coastal Waterway and thereby created a jurisdictional wetland. The weight of the evidence, however, indicates that though ditches were dug for mosquito control as described by Mr. Pinder and even before, it was not these ditches which changed the character of the property to jurisdictional wetland. Review of the maps submitted by Mr. Brown shows to a very limited degree some reference to ditches on or near the property in question but neither this evidence nor the testimony of both long-time residents is sufficiently clear and convincing to establish to the satisfaction of the Hearing Officer that the character of Mr. Brown's property was so radically changed by the digging of these ditches as to become jurisdictional because of them. Turning to the question of the impact of the proposed construction on the mangrove system, the evidence presented by the agency and to a lesser degree by Petitioner himself shows that there would be some adverse impact on the mangrove system through the direct destruction of some existing trees and saplings, the trimming of some of the overhanging mangrove canopy, and the subsequent shading of immature mangroves by the construction of the dwelling and the boardwalk. The evidence available indicates that the construction of the dwelling itself cannot be contained within the existing clearing and for the construction of the boardwalk, an additional cut and shading will be required. Mangroves play an important part in the water quality and biological considerations of Section 403.918 Florida Statutes. The deterioration of fallen mangrove vegetation constitutes an important part in the food chain of fish and small invertebrates. Existing trees and roots provide habitat for various birds, invertebrates, mammals, and reptiles and the water quality considerations relating to the filtering of run-off water from uplands and the assimilation of pollutants in the passing water is significant. DER was and is concerned that the proposed project does not provide reasonable or adequate assurances that water quality standards will not be violated. Turbidity, transparency, and dissolved oxygen standards may well be violated during the construction phase and the agency's concerns have not been addressed or lessened by Petitioner's unformed proposals for modification. The fourth standard, that involving biological integrity, will be a continuing and ongoing consideration due to the fact that the shading created by the house and boardwalk will be constant. After full consideration of the application and those limited matters submitted in response to the agency's expression of concern, the agency has concluded that the project will adversely impact the conservation of fish and wildlife and their habitats in the area; will adversely affect fishing and recreational values and marine productivity; will adversely effect current and relative values of functions performed in the area; and will be of a permanent nature. The agency has not, however, quantified these negative effects or demonstrated that they will be of any significant magnitude. It is difficult to conceive that in an area already violated by the encroachment of civilization as demonstrated by the unrestrained fill both to the north and to the south of Petitioner's property, that the preservation of a relatively miniscule enclave, on highly valuable waterfront property, will have any substantial beneficial effect on the overall biological, ecological, or water quality considerations of the Intra-coastal Waterway, Lake Worth, or the Atlantic Ocean. The construction disruption will be minimal and for a limited period of time. The effects of shading will be of a longer duration but would appear to be miniscule in comparison to the surrounding area. DER and its subordinate associate, the Palm Beach County Health Department, both recommend that the application be denied because of Petitioner's failure to provide reasonable assurances that the project will not violate water quality standards and will not be contrary to the public interest. The cumulative impact concerns of both DER and the Health Department are valid in theory but inappropriate here. Evidence that the recent mangrove destruction in this area has been been extensive cannot be debated. No doubt it has been. The fact remains, however, that this property is in a highly desirable location. The area has not been preserved by the State in its program for the accumulation and preservation of wetlands under a state umbrella and is of such a small size that the cumulative impact to be felt from the limited destruction of mangroves here would be minimal. There is some evidence to indicate that a permit was issued to a previous owner of this property allowing the destruction of mangrove seedlings in the western section of the community and this action has not been undertaken. This permit has not expired and is transferable to Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Department of Environmental Regulation issue permit number 5008992206 to the Petitioner, Robert 8rown for the construction of the house and walkway as proposed, under the provision of adequate and firm reasonable safeguards to minimize water quality disruption during construction by Petitioner. RECOMMENDED this 11th day of February, 1987, at Tallahassee, Florida. ARNOLD H. POLLOCK, 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 llth day of February, 1987. COPIES FURNISHED: Dale Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32301 Terrell K. Arline, Esquire 325-C Clematis Street West Palm Beach, FL 33401 Karen A. Brodeen, Esquire Douglas MacLaughlin, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32301 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. By the Petitioner 1 Incorporated in Finding of Fact 1. 2. Incorporated in Findings of Fact 2 & 3. 3 & 4. Incorporated in Finding of Fact 4. Incorporated in Finding of Fact 4. Incorporated in Finding of Fact 10. 7 & 8. Incorporated in Findings of Fact 9 & 11 Incorporated in Finding of Fact 11. Incorporated in Findings of Fact 3 6 13. Accepted and incorporated in Findings of Fact 7 & 8. Accepted and incorporated in Findings of Fact 7 & 8. Not a Finding of Fact but a comment on the evidence. By the Respondent Incorporated in Finding of Fact 1. Incorporated in Finding of Fact 3. 3 & 4. Incorporated in Findings of Fact 2 & 4. 5. Incorporated in Finding of Fact 5. 6. Incorporated in Findings of Fact 3 & 6. 7. Incorporated in Finding of Fact 6. 8. Incorporated in Finding of Fact 7. 9 & 10. Incorporated in Finding of Fact 8. 11 Incorporated in Finding of Fact 13. 12. Incorporated in Finding of Fact 14. 13. Incorporated in Finding of Fact 15. 14-16. Incorporated in Finding of Fact 16. 17. Incorporated in Finding of Fact 15. 18. Incorporated in Finding of Fact 17. 19 & 20. Incorporated in Finding of Fact 11. 21-24 Incorporated in Findings of Fact 11 & 12. 25. Incorporated in Findings of Fact 17 & 18. ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION ROBERT BROWN, Petitioner, DOAH CASE NO. 85-0517 OGC FILE NO. 85-0122 vs. STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION Respondent. /
Findings Of Fact Procedural History This matter has a long history. The full itinerary of this matter's arduous journey through the Administrative Procedure Act and the appellate courts may be glimpsed from the opinions of the District Court of Appeal in Grove Isle, Ltd. v. Bayshore Homeowners Association, Inc., 418 So.2d 1046 (Fla. 1st DCA 1982), Doheny v. Grove Isle, Ltd., 442 So.2d 966, reh. granted, 442 So.2d 977 (Fla. 1st DCA 1983), and Grove Isle, Ltd. v. State, Department of Environmental Regulation, 454 So.2d 571 (Fla. 1st DCA 1984). These cases may be referred to as Grove Isle I, Grove Isle II, and Grove Isle III, respectively. In 1978 Grove Isle submitted its initial application to DER for construction of the marina which is now the subject matter of this proceeding. Grove Isle's initial application was challenged by the same Petitioners who now challenge Grove Isle's "reapplication." In the first case the hearing officer, applying Class III standards for water quality, entered an order on February 22, 1980, recommending that the permit be issued. DER remanded the case to the hearing officer to determine whether the standards of the Outstanding Florida Waters (OFW) rule, Rule 17- 4.242(1)(a), F.A.C., should apply, and if so, whether Grove Isle had satisfied those requirements. On remand, the hearing officer entered a recommended order finding that the OFW rule did apply, that Grove Isle had provided reasonable assurances that the proposed marina would not lower existing ambient water quality, and that the proposed marina was not clearly in the public interest. Accordingly, the hearing officer recommended that the permit be denied. On December 29, 1980, DER entered a final order denying the permit because the project was not "clearly in the public interest" and it was uncertain whether ambient water quality would be lowered. DER found that, unless a "restricted mixing zone" was applied for, ambient water quality was to be measured within the project site, not in the small cove in which the marina was to be located as found by the hearing officer. On appeal, the court affirmed DER's denial of the permit. While DER's denial was affirmed because Grove Isle had failed to establish that the project was "clearly in the public interest," the court found that DER had failed to establish a record foundation which would permit it to substitute its conclusion that ambient water quality should be measured within the project site, as opposed to the small cove as found by the hearing officer. Grove Isle, Ltd. v. Bayshore Homeowners Association, Inc., supra. On May 18, 1981, while Grove Isle I was pending in the appellate court, Grove Isle filed the "reapplication" which is the subject matter of this case. The design and location of the marina were identical to Grove Isle's initial application. However, in an effort to satisfy the OFW rule Grove Isle proposed to add riprap and plant mangrove seedlings in an effort to satisfy the public interest criteria, and requested a mixing zone in conformity with DER's final order in Grove Isle I. DER initially entered a final order denying the application because: This project was reviewed previously... and was determined not to be clearly in the public interest pursuant to Section 17-4.242, F.A.C. No further evidence, upon resubmittal, has been provided to clearly demonstrate that this project is in the public interest. Furthermore, the requested mixing zone exceeds that allowable pursuant to Section 17-4.244,F.A.C., and can be applied only during the con- struction period, pursuant to Section 17.4.242, F.A.C. During the operation of this facility ambient water quality is expected to be degraded in violation of Section 17-4.242, F.A.C. Thereupon, Grove Isle filed a petition for a hearing pursuant to Section 120.57(1), Fla.Stat., and sought a default permit. The hearing officer entered a recommended order that the default permit issue, and DER entered a final order granting the default permit. On appeal the court reversed and remanded the case to DER for further proceedings. The predicate for its remand was: Even though Grove Isle was not entitled to a default permit, it does not follow that DER was justified in entering its earlier ... (order denying the applica- tion) ... without first informing Grove Isle that it had found its application to be deficient, specifying such deficiencies and allowing time for corrections.... Doheny v. Grove Isle, Ltd., supra, at 975. Appellant Doheny had asserted that Grove Isle's reapplication could not be further considered by reason of the doctrine of res judicata or estoppel by judgment. This was, essentially, DER's position in its denial of the "reapplication." The court held, however: Inasmuch as this Court affirmed the denial of Grove Isle's first application on the grounds of the applicant's failure to show that the proposal was clearly in the public interest and since it was determined that the first application was properly denied even though the applicant satisfied the other criterion regarding ambient water quality, it would appear that the reapplication should be denied unless the applicant could demonstrate some change or modification which would show that the project was clearly in the public interest. However ... I am of the view that it would be premature for us to hold that Grove Isle's second application is barred by either doctrine. Whether Grove Isle, after a Rule 17-4.07(2) notification by DER as contemplated above, would be able to remedy the existing deficiency in its present application remains to be seen. New facts, changed conditions or additional submissions by the applicant may materially affect the ultimate applicability of res judicata or estoppel by judgment. Doheny v. Grove Isle, Ltd., supra, at 975. While Grove Isle's "reapplication was pending on remand before DER, Grove Isle filed a rule challenge contesting the validity of Rule 17-4.242, F.A.C. The hearing officer upheld the validity of the rule, but the appellate court held that the "public interest" requirement was an invalid exercise of delegated legislative authority. Grove Isle, Ltd. v. State, Department of Environmental Regulation, supra. Following the decision of Grove Isle III, Grove Isle's attorney, by letter dated March 21, 1984, responded anew to DER's June 18, 1981, completeness summary. That letter provided, in pertinent part: With regard to water quality, that issue has been determined in a prior proceeding and is res judicata on the parties. In response to your request for additional information the enclosed information is submitted. Permit application DOAH Hearing Officer's Recommended Order of February 22, 1980 DOAH Hearing Officer's Recommended Order on Remand of November 20, 1980 DER's Final Order of December 29, 1980 Decision in Grove Isle v. Bayshore Homeowners Associ- ation, 418 So.2d 1046 (Fla. 1st DCA 1982) The decision in David A. Doheny v. Grove Isle, Ltd., and the State of Fla., DER, Case NO. AM476 This submittal contains the necessary information on which to determine com- pliance with the applicable water quality standards and criteria. On June 25, 1984, DER issued its Notice of Intent to Issue the permit. The notice provided, in pertinent part: The Department intends to issue the permit for the following reasons: No significant immediate or long term negative biological impact is anticipated and State water quality standards should not be violated as a result of the pro- posed construction. This intent is based on information supplied by the applicant that the proposed project will not violate existing ambient water quality standards and on the cases of Grove Isle, Ltd. v. Bayshore Homeowners Association, 418 So.2d 1046(Fla. 1st DCA 1982) and Doheny v. Grove Isle, Ltd., 442 So.2d 996 (Fla. 1st DCA 1983)(sic). Petitioners timely filed their Petition for Administrative Hearing pursuant to Sections 120.57(1), Fla.Stat. The petition was referred to the Division of Administrative Hearings and assigned Case No. 84-2639. The Marina The permit sought by Grove Isle would allow it to construct six concrete fixed piers, five "T" shaped, one "L" shaped, with a boat docking capacity of 90 pleasure boats. The piers will extend a maximum of 165 feet offshore from an existing concrete bulkhead on the west side of Grove Isle. The width of the piers will be eight feet from the bulkhead to a point 41 feet offshore, and then increase to a width of 10 feet. A sewage pumpout facility is also proposed. DER's June 25, 1984, Letter of Intent proposed to issue the permit subject to the following conditions: Adequate control shall be taken during construction so that turbidity levels beyond a 50 foot radius of the work area do not exceed 50 J.C.U.'s as per Sec- tion 24-11 of the Metropolitan Dade County Code. During construction, tur- bidity samples shall be collected at mid-depth twice daily 50 feet upstream and 50 feet downstream of the work area. The contractor shall arrange to have turbidity sample results reported to him within one hour of collection. Turbidity monitoring reports shall be sub- mitted weekly to the Department of Environmental Regulation (DER) and the Metropolitan Dade County Environmental Resources Management (MDCERM). If turbidity exceeds 50 J.C.U.'s beyond a 50 foot radius of the work area, turbidity curtains shall be placed around the work area and MDCERM notified immediately. Tur- bidity samples shall be collected as per specific Conditions No. 2 no later than one hour after the installation of the turbidity cur- tains. If turbidity levels do not drop below 50 J.C.U.'s within one hour after installation of the curtain, all construction shall be halted. Construction shall not be resumed until the contractor has received authorization from MDCERM. No liveaboard vessels (per- manent or transient) shall be docked at this facility unless direct sewage pumpout connections are pro- vided at each liveaboard slip. A permanent pumpout station shall be installed and maintained for the removal of sewage and wastes from the vessels using this facility. Compliance with this requirement will entail the applicant contacting the Plan Review Section of MDCERM for details con- cerning connection to an approved sewage disposal system. Boat traffic to the shallow 30 foot wide dense seagrass area which parallels the shoreline shall be restricted by the placement of wooden piles on six foot centers along the entire shoreline facing the marina. The channel from this marina to deeper water in Biscayne Bay shall be marked to prevent boats from straying into adjacent shallow areas. This will prevent habitat destruction. A chemical monitoring program shall be established to determine the affect of this marina on the water quality of this section of Biscayne Bay. Surface and mid-depth samples shall be collected at three points in the project area and at one back- ground station. Parameters shall include, but not be limited to, dissolved oxygen, pH, salinity, tempera- ture, total coliform and fecal coliform, and fecal streptococci bacteria, oil and grease, biochemical oxygen demand and turbidity. Background samples shall be collected prior to construction and quarterly for a minimum of one year after 90 percent occupancy of the marina. In addition to the chemical monitoring program, a bethnic community monitoring program is to be established. Samples of the bethnic seagrass community within and adjacent to the project area are to be collected prior to construction and quarterly for a minimum of one year after 90 percent occupancy of the marina. Should either monitoring program detect dissimilar changes at its monitoring and control stations, DER and MDCERM shall be notified and the results of the programs(s) evaluated. The monitoring program shall be reviewed and approved by the DER and the MDCERM prior to implementation. Monitoring reports shall be submitted to the DER and the MDCERM and the U.S. Army Corps of Engineers on a regular basis. Warning signs shall be posted in the marina area advising marina users that manatees frequent the area and caution should be taken to avoid collisions with them. Issuance of this permit does not relieve the applicant from securing all applicable construction permits including, but not limited to, general construction, electrical, plumbing, etc. The planting of mangroves and the placement of boulder riprap shall be generally constructed as outlined in report number THI-004-005/84 by Melvin S. Brown for Grove Isle, Inc. The mangrove/ riprap site shall be staked by the appli- cant and approved by the Department or MDCERM. Such construction shall not take place in areas vegetated by sea- grasses. Mangrove seedlings (four leaf stage or older) shall be planted with a density of approximately one plant per-square meter. Seedlings shall be replaced in order to maintain 80 percent survival until such time as the Department determines that establishment of the mangroves is reasonably assured (approximately two years). At that time the Department shall notify the permittee of the termination of the revegetation respon- sibilities. Grove Isle has agreed to comply with all the conditions established by the DER Letter of Intent and, additionally, agreed at final hearing to employ a full-time dock master, prohibit the pumping of bilges and sewage from boats docked at the marina, make the sewage pumpout facility available to the public, limit the ownership and use of the boat slips to condominium owners at Grove Isle, and provide additional channel markings from the Grove Isle marina to the Deering Channel. The location and design of the proposed marina has not changed since Grove Isle's initial application. The conditions attached to DER's Letter of Intent, with the exception of Conditions 11 and 12, are the same as previously applied to Grove Isle. The Marina Site Grove Isle is a spoil bank in Biscayne Bay located approximately 700 feet east of the Florida mainland. It is linked to the mainland by a two-lane concrete bridge. The island is currently under development for a 510-unit condominium community with associated facilities such as a restaurant, hotel, and the proposed marina. The island is surrounded by a concrete bulkhead constructed many years ago. No changes in the bulkhead line are proposed. Grove Isle proposes constructing the marina on concrete piles driven in the bay bottom from a shallow draft barge. During construction there would be some turbidity caused from the disruption of the Bay sediment. This can, however, be adequately controlled by the use of turbidity curtains during construction. The construction will not require any filling. In the immediate marina site the most significant biota are a 20-30 foot wide bed of seagrasses running parallel to the seawall. There are no other important biota because at one time the area was extensively dredged to create the island. There are no oyster or clam beds nearby. The water depth in the area ranges from one foot near the island bulkhead to 12 feet offshore to the west of the island. This particular seagrass bed consists primarily of turtle grass (thalassia testudinum) with some Cuban Shoal Weed (Halodule Wrightii). Protection for these grasses will be provided by a buffer zone between the island and the boat slips. The grassy zone will be bordered by a row of dolphin piles to exclude boat traffic. Because the grass requires sunlight for photosynthesis and therefore life, the six piers will have grated walkways where they pass over the grass. This will allow sunlight to reach below. In addition to the small grass bed on the west of the island, there are extensive beds to the northeast, east and south of the island that extend several hundred yards from the island in water depths of three to ten feet. If boat traffic in the vicinity is markedly increased due to the existence of the marina, it is conceivable that the number of propeller scars in these shallow beds could increase. At the present time the beds are already traversed by boats, some of which are owned by Petitioners' members. There are already, for example, approximately 50 craft which operate from the nearby mainland or from Pelican Canal directly across from the island. Grove Isle's assurance that ownership and use of the boat slips at the marina will be limited to those persons who own condominium units at Grove Isle will assure that boat traffic generated by the marina will be no different in kind nor more frequent than that generated by existing craft in the area. Potential damage, from existing craft and those which will occupy the marina, to the seagrasses on the north, east, and south of the island will be eliminated or minimized by the planned installation of navigation markers by Grove Isle. These markers will channel boats into water of a navigable depth and lessen the number of groundings and near groundings which cause the scarring. There is evidence that boats by their very existence and operation are potential pollution sources. Anti-fouling bottom paints by their very nature leach minute amounts of metals such as copper or tin into the waters. These deposits, however, would not be measurable. Further, the marina site has adequate flushing to disperse any pollutants which may be generated by the marina operation. Petitioners also suggest that turbidity, caused by the operation of the marina, could cause a degradation of water quality and affect the biota in the area. Petitioners' assertion must be rejected for two reasons. First, this question was raised and rejected in Grove Isle I. No changed conditions or new facts which were not available at the time of final hearing in Grove Isle I were presented. Second, in the four years that have intervened since the first hearing, these waters have been extensively used by the public, including Petitioners, for such activities as waterskiing and fishing. In that time period there has been no degradation of water quality, or harm to the biota. In fact, the biota have expanded. The fueling of boats and sewage discharge are additional pollution sources generally associated with marinas. However, the proposed marina will have no fueling or maintenance facilities, and all craft docked at the marina will be prohibited from pumping bilges and sewage into the waters. The foregoing findings of fact are, without significant exception, identical to those in Grove Isle I. Grove Isle IV Only three areas of inquiry were present in this case which may not have existed in Grove Isle I. First, Petitioner asserted that Grove Isle's application was incomplete because of its failure to secure the approval of the Department of Natural Resources (DNR) for use of the bay bottom, and that, therefore, Part VIII, Chapter 403, Florida Statutes, the "Warren S. Henderson Wetlands Protection Act of 1984" (Wetlands Act) was applicable to these proceedings. Contrary to Petitioner's assertion, Grove Isle secured and exhibited its consent to use the submerged lands in question. Grove Isle received the requisite consent from DNR in connection with its first application. Pursuant to Rule 16Q-18.03(2), F.A.C., that consent to use remains binding. Further, DNR was noticed of Grove Isle's "reapplication" and evidenced no intention to withdraw its previous consent to use. Grove Isle complied with Section 253.77, Fla.Stat. Consequently, Grove Isle's application was complete prior to October 1, 1984, and the Wetlands Act is not applicable to this case. The second issue presented in this case which Petitioners assert was not present in Grove Isle I, is Grove Isle's request for a mixing zone. Although its "reapplication" did request a mixing zone in accordance with DER's Final Order of December 29, 1980, Grove Isle objected to its necessity since the proper geographic area within which to measure ambient water quality, according to it, was a subject matter of the pending appeal in Grove Isle I. The mixing zone applied for in its "reapplication" was somewhat smaller, but did not significantly differ from the area adopted by the hearing officer in Grove Isle I. In Grove Isle I the parties had differed with regard to the proper geographic area within which to measure ambient water quality. The hearing officer adopted as the appropriate geographic area that part of Biscayne Bay to the west of Grove Isle, to the north of the Grove Isle bridge, to the east of the Miami mainland, and to the immediate south of the Mercy Hospital landing facing Grove Isle. DER's Final Order of December 29, 1980, rejected the hearing officer's conclusion because Determination of compliance with water quality standards is made within the project area itself unless a mixing zone is applied for and granted by the Department. Section 17-4.242(1) (a)2b, Florida Administrative Code, specifically states that ambient water quality standards may not be lowered unless such a lowering is temporary in nature (i.e., not more than 30 days) or unless the "lowered water quality would occur only within a restricted mixing zone approved by the Department..." (EmphasisSupplied.) The record does not show that a "restricted mixing zone" was applied for by the applicant or granted by the Department. Therefore, the hearing officer was not at liberty to apply a mixing zone in this case. In Grove Isle I DER's witness, Larry O'Donnell-- Supervisor of the Dredge and Fill Section of DER's West Palm Beach office--testified that ambient water quality was to be measured within the project site--the specific area occupied by the marina circumscribed by the bulkhead line and out the length of the piers (165 feet). On appeal, the court held that DER erred in rejecting the hearing officer's conclusion, and stated DER offered no expert testimony or evidence, other than conclusory allegations, that ambient water quality must be measured within the project site rather than within the reasonably contiguous area used by the hearing officer. Absent such record foundation, DER is not free to substitute its conclusions for those of the hearing officer. Grove Isle, Ltd. v. Bayshore Homeowners' Assoc., Inc., supra, at 1049. In the instant case the testimony of Mr. O'Donnell was clear that DER accepted the opinion of Grove Isle I as demonstrating satisfaction of ambient water quality under the OFW rule. Consequently, DER has acceded that ambient water quality is to be measured not only within the project site but also within a reasonably contiguous area of the project site, as found by the hearing officer in Grove Isle I. Petitioners took exception to DER's decision. To support their position, Petitioners offered the testimony of Suzanne Walker, DER's Chief of Permitting. Ms. Walker's opinion was that ambient water quality had to be satisfied everywhere, including the marina site proper, and that a mixing zone, except on a temporary basis during construction, was not permitted under Rule 17-4.242, F.A.C. Accordingly, the question of where ambient water quality is to be measured is presented anew. Ambient water quality is to be measured within the area established by the hearing officer in Grove Isle I for three reasons. First, the issue was presented in Grove Isle I and the doctrine of res judicata or estoppel by judgment bars relitigation of this same issue. Second, the testimony of Ms. Walker was of no greater substance than that rejected by the court in Grove Isle I. Finally, Ms. Walker's opinion is questionable since she also testified that a mixing zone, except on a temporary basis during construction, was not permissible in Outstanding Florida Waters. The OFW rule, Rule 17- 4.242(1)(a)2.b, F.A.C., clearly contemplates and authorizes a mixing zone for purposes other than construction. The record is silent as to whether DER granted Grove Isle's request for a mixing zone. It is clear, however, that DER accepted the geographic area established in Grove Isle I as the proper area within which to measure ambient water quality. Accordingly, it is not necessary to pass on Grove Isle's request for a mixing zone. The final matters not litigated in Grove Isle I concern Grove Isle's agreement to (1) add riprap and plant mangrove seedlings, (2) employ a full-time dock master to provide additional assurance that operation of the marina will be ecologically sound, (3) prohibit the pumping of bilges and sewage from boats moored at the marina, (4) make the pumpout facility available to the public, (5) limit the ownership and use of the boat slips to the owners of the condominium units at Grove Isle, and (6) mark a channel from Grove Isle to the Deering Channel so that a deep water channel to open waters will be available. While these additional assurances were not presented in Grove Isle I, and consequently did not affect the hearing officer's recommendation that the permit be granted, each of these matters are of positive benefit to the ecology, and demonstrate Grove Isle's commitment to sound marina design and operation.
The Issue At issue in these consolidated proceedings is whether certain development orders (permits) issued by Monroe County to the respondents, as owners and Your Local Fence, Inc., as contractor, for the construction of fences in the Big Pine Key Area of Critical County Concern are consistent with the Monroe County comprehensive plan and land development regulations.
Findings Of Fact The parties Respondents, Charles and Kathleen Moorman (Moorman), Nicholas and Jean Hornbacher (Hornbacher), James and Kathryn Daniels (Daniels), and Raymond and Rosemarie McRae (McRae), are the owners of certain real property, described more full infra, that is located within the Big Pine Key Area of Critical County Concern and the Florida Keys Area of Critical State Concern, and upon which they have received development orders (permits) from Monroe County to erect fences. Respondent, Your Local Fence, Inc. (Your Local Fence), is a business owned by Mr. Moorman and is the contractor that applied for the permits on behalf of the Moormans, Hornbachers and Daniels. The McRaes applied for their own permit, and proposed to install the fence themselves. Respondent, 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 implementation 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. 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, and all rules promulgated thereunder. Section 380.031(18) and 380.032(1), Florida Statutes. Here, the Department has filed a timely appeal to the issuance of the subject permits, and contends that construction of the fences authorized by such permits is inconsistent with the Monroe County comprehensive plan and land development regulations. The Moorman permit The 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, and surrounded by, native pine lands; natural habitat for the Key Deer. 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 front 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. The Hornbacher permit The Hornbachers are the owners of Lot 23, Block 3, Eden Pine Colony Subdivision, Big Pine Key, Monroe County, Florida. Such property is located on a cul-de-sac, at the terminus of a dead end street, and is bordered on the north and west by a canal and on the east by a neighbor's fence. On May 20, 1991, Monroe County issued to the Hornbachers, as owners, and your Local Fence, as contractor, building permit No. 9110002807 to construct a fence along the south side of their property. As permitted, the fence would be chainlink construction, 4 feet high, and would extend from their neighbor's fence on the east, around that portion of their property that abuts the cul-de- sac, and then along their southern boundary to the canal. So constructed, the fence would run a total of 90 linear feet. The Daniels permit The Daniels are the owners of Lots 1 and 2, Block 72, Port Pine Heights Subdivision, Big Pine Key, Monroe County, Florida. Such property, when acquired by the Daniels, was bounded on three sides by a 4-foot high chainlink fence and along the rear by a canal. On July 17, 1991, Monroe County issued to the Daniels, as owners, and Your Local Fence, as contractor, building permit No. 9110003165 to construct a fence along the rear portion of their property that abuts the canal. As permitted, the fence would be of chainlink construction, 4 feet high, and run a total of 158 linear feet. The McRae permit The McRaes are the owners of Lot 6, Block 17, Port Pine Heights Subdivision, Big Pine Key, Monroe County, Florida. Such property is bordered on the north and south by vacant lots, and on the west by a canal. On June 12, 1991, Monroe County issued to the McRaes, as owners and contractors, building permit No. 9110002853 to construct a fence along the front, as well as the north and south sides of their property. As permitted, the fence would be of chainlink construction, 4 feet high, and, except for a set back of 29.5 feet, would enclose the front and side property lines of the property. So constructed, the fence would run a total of 157 linear feet. Consistency of the permits 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. Pertinent to this case, Section 9.5-479, Monroe County Land Development Regulations (MCLDR), provides: Purpose: he 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 expectations 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 habita-tion and the survival of the Florida Key Deer; The role and importance of fresh-water 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 plan-ning, 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 publi-cation 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 with-in 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 must be concluded that the subject permits issued by Monroe County for the construction of fences in the Big Pine Key Area of Critical County Concern are not consistent with the Monroe County comprehensive plan and land development regulations. Extra legal action and the applicants voiced rationale for fencing their properties Notwithstanding express knowledge by the Moormans, Hornbachers, Daniels and Your Local Fence, that the subject permits were not effective until expiration of the time within the Department was authorized to appeal their issuance, the Moorman, Hornbacher and Daniels fences were erected by Your Local Fence. However, the McRaes, likewise knowledgeable about the time delay in the effectiveness of their permits, abided by existent law, and deferred erecting their fence pending resolution of this dispute. At hearing, proof was offered by the applicants to explain why they desired to fence their property. Proof was also offered to explain why the Hornbachers and Daniels felt a sense of exigency to erect their fences, and why they prevailed on Your Local Fence to erect such fences in the face of express notice from Mr. Moorman (the principal of Your Local Fence) that the permits were not effective and subject to appeal by the Department. According to the Hornbachers, the purpose for their fence was to keep stray dogs and their "leavings" from the yard, to keep the Key Deer that populate the area from eating their vegetation, and to keep uninvited persons and vehicles from entering their property. The later reason was of particular import to the Hornbachers since they were about to leave for their annual vacation in Michigan, and strangers had entered onto their property during their prior absences. Therefore, to provide their residence with a degree of security, they insisted the fence be installed before they left, and before their permit was effective. According to the Daniels, the purpose for their fence was primarily to provide a secure environment for their children.2 In this regard, the proof demonstrates that the Daniels are both police officers with the City of Key West and work the same shift; that they have three children, ages, 7, 4, and 2, that reside at the home and are cared for by an elderly woman in their absence; and that the canal that abuts their backyard, as well as an existent boatramp, represents a potential hazard to the children's safety. Cognizant of such hazard, which was magnified by one child having already slipped down the boat ramp, the Daniels insisted that the fence be installed, and Your Local Fence acquiesced, before their permit was effective. The Moormans offered no compelling reason for having erected their fence prior to the effective date of their permit, but did espouse its purpose. According to Mr. Moorman, the purpose for their fence was to keep the neighbors' two children from playing under his house where he had installed a hot tub, and to keep the Key Deer that populate the area from entering his property and eating any vegetation he might choose to cultivate. According to the McRaes, who have not yet erected their fence, they desire a fence to prevent neighbors' dogs from leaving "droppings" in their yard, and to keep the Key Deer from eating their plants. While each of the applicants have articulated logical reasons to fence their yards, such reasons are not relevant where, as here, the permits were issued as of right. Rather, with regard to the Big Pine Key Area of Critical County Concern, the erection of fences is strictly prohibited until such time as the plan and regulations are amended to allow such use.3 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 the subject permits. Mr. Moorman's contention is not, however, persuasive. 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.4 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 subject permits is not inconsistent with any position it has previously taken with regard to the propriety of fencing in such area.5 Moreover, neither the applicants 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 fences. Under such circumstances, it cannot be reasonably concluded that the Department misled any applicant so as to bar it from contesting the propriety of the subject permits, and those who chose to erect their fences knowing their permits were not yet effective acted at their peril.6
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a final order reversing Monroe County's decision to issue building permit Nos. 9110002231, 9110002807, 9110002853, and 9110003165, and deny the applications of the Moormans, Hornbachers, McRaes, and Daniels, as owners, as well as your Local Fence, as contractor, where pertinent, for such permits. It is further recommended that such final order specify that there are no changes in the subject proposals that would make them eligible to receive the permits as requested. DONE AND ENTERED 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 Division of Administrative Hearings this 30 day of April 1992.
Findings Of Fact Based upon the evidence and testimony adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Proposed District will be located in an unincorporated area of central Palm Beach County within the boundaries set forth in the Amended Petition. It will encompass approximately 9,450 acres of land, including the 2,300 acre impoundment area that the State of Florida has an option to purchase. Irving Cowan, individually and as Trustee, Adrian R. Chapman, as Trustee of the A.R. Chapman Palm Beach Groves Trust, Marvin S. Savin and Elaine S. Savin, as general partners of Savin Groves, a Florida general partnership, and Petitioner, a Florida limited partnership, presently own 100 percent of the land to be included within the Proposed District. The property within the District is designated in the Palm Beach County Comprehensive Plan Land Use Element as either Agricultural Production or Rural Residential The land within the Proposed District is located entirely within the boundaries of an inactive unit of development of the ITWCD. Consequently, the owners of the land neither pay taxes to, nor receive benefits from, the ITWCD. Most of the land is currently used for growing citrus fruit. Those areas which do not have citrus groves are used to support grove operations. It is the present intent of the landowners to continue to use the land for such agricultural purposes. The purposes and functions of the ITWCD and the Proposed District will be significantly different. The ITWCD is primarily concerned with providing drainage to an urbanizing, residential area with a "one By contrast, the Proposed District will operate a "two-way" drainage and irrigation system designed for the benefit of active agricultural production. The ITWCD and the Proposed District will be able to operate independently within their respective areas of responsibility. The creation of the Proposed District will have no adverse impact upon the ITWCD. On July 27, 1992, the Board of Supervisors of the ITWCD unanimously adopted a Resolution in support of the establishment of the Proposed District. The existing infrastructure within the Proposed District consists of roadways, drainage and irrigation facilities, pumping stations, and culverts connecting with the L District. There are no existing water mains or existing sewer facilities. Among the potential improvements to the existing infrastructure which could be undertaken by the Proposed District are the construction of central pumping stations to replace the many individual pumps operated by the several property owners within the Proposed District, and the replacement of the outfall structures into the L-8 canal. In addition, the Proposed District could engage in roadway construction and surfacing of the main fruit hauling routes within the District. 4/ The Proposed District provides the best possible mechanism for financing and implementing these improvements. Of the various alternatives in providing infrastructure services for the community, a community development district is superior to any other alternative, including a municipal service taxing unit, the County or a homeowners' association. This is because neither the County nor a municipal service taxing unit would be as responsive to the Proposed District's landowners as would be the Proposed District and because a homeowners' association would be hindered by reason of its inability to issue bonds or effectively collect property assessments. Centralized ownership, management and control of the Proposed District's infrastructure is more efficient and less costly than the current arrangement. Consequently, the establishment of the Proposed District will increase the likelihood that the land within its boundaries will continue to be used for agricultural purposes. The District will be empowered to issue bonds, levy ad valorem taxes and special assessments, and impose user fees and charges. To defray the costs of operation and maintenance of the infrastructure, the District will utilize a variety of taxes, assessments and user charges tailored to the service involved so as to minimize costs while insuring that only those who receive the benefits from a facility pay the costs involved. Ultimate Findings All statements contained in the Amended Petition, including those contained in the economic impact statement, are true and correct. The creation of the District is not inconsistent with any applicable element or portion of the State Comprehensive Plan or of the Palm Beach County Comprehensive Plan. The land within the Proposed District is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developable as a functional interrelated community. The Proposed District is the best alternative for delivering community development services and facilities to the area that will be served by the District. The community development services and facilities of the Proposed District will not be incompatible with the capacity and uses of existing local and regional community development services and facilities. The area that will be served by the Proposed District is amenable to separate special-district government.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that FLWAC enter a final order granting Petitioner's Amended Petition to establish the Cypress Grove Community Development District by rulemaking pursuant to Chapter 190, Florida Statutes. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 16th day of June, 1993. STUART M. LERNER 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 16th day of June, 1993.
Findings Of Fact Exception to Finding of Fact Number 1 is accepted, but not materially dispositive of the issues presented. Intervenor suggests that the Hearing Officer erroneously found that the dispute arose "when the Board and DNR took a position that Clam Bayou . . . is a part of the Pine Island Sound Aquatic Preserve." The dispute arose when a DNR planning manager took the position that Clam Bayou was in the preserve. (Petitioner's Exhibit #4) This determination was made before the June 12, 1991 Cabinet Meeting, when the Board of Trustees ratified their intent to include Clam Bayou in the preserve when the preserve was created in 1970. This finding was made independently of the Hearing Officer's legal conclusions and, to the extent the Hearing Officer misstated the facts, the misstatement has no bearing on the ultimate issue of whether Clam Bayou is a part of the preserve. Exception to Finding of Fact Number 2 is rejected. The Hearing Officer's findings are supported by competent substantial evidence. (TR 96) Exception to Finding of Fact Number 5 is rejected. The Hearing Officer's findings are supported by competent substantial evidence. (Petitioner's Exhibit #13) Exception to Finding of Fact Number 6 is rejected. The Hearing Officer's findings are supported by competent substantial evidence. Exception to Finding of Fact Number 7 is rejected. The Hearing Officer's findings are supported by competent substantial evidence. (Petitioner's Exhibit #`s 12 and 13) Exception to Finding of Fact Number 8 is accepted to the extent that between 1968 and 1972, Clam Bayou was physically connected to Pine Island Sound via Blind Pass. This exception has been incorporated into revised Finding of Fact 8. Exception to Finding of Fact Number 9 is accepted and the principles set forth in the exception have been incorporated into the amended Finding of Fact 9. Exception to Finding of Fact Number 10 is rejected. The Hearing Officer's findings are supported by competent substantial evidence. 9. Exception to Finding of Fact Number 11 is accepted. 10. Exception to Finding of Fact Number 12 is accepted. 11. Exception to Finding of Fact Number 14 is accepted. 12. Exception to Finding of Fact Number 15 is accepted. 13. Exception to Finding of Fact Number 17 is accepted. Exception to Finding of Fact Number 18 is rejected. The Hearing Officer's findings are supported by competent substantial evidence. (Petitioner's Exhibit #3, 6-A, 6-B and 10-B) Exception to Finding of Fact Number 19 is rejected. The Hearing Officer's findings are supported by competent substantial evidence. (Petitioner's Exhibit #3, 6-A, 6-B and 10-B) Exception to Finding of Fact Number 20 is accepted. EXCEPTIONS TO CONCLUSIONS OF LAW EXCEPTION TO CONSIDERATION OF THE RECOMMENDED ORDER BY THE GOVERNOR AND CABINET Intervenor's exception to consideration of the Recommended Order by the Governor and Cabinet is rejected. The transcript of the June 12, 1991 Cabinet meeting clearly shows the Governor and Cabinet's intent to have the issues in this case determined by a hearing officer. Although Petitioners and Intervenors presented brief oral argument to the Cabinet, no evidence was received and the Cabinet did not review the resolution and legal description, or all of the maps, photographs, or various other exhibits presented at hearing. The Cabinet did not make any findings of fact or conclusions of law with regard to this agenda item, and did not reach a conclusion as to the proper interpretation of the legal description or as to a finding of the actual intent of the Board of Trustees at the time the resolution was adopted. EXCEPTIONS TO OTHER CONCLUSIONS OF LAW Intervenors have asserted several exceptions to the conclusions of law contained in the Hearing Officer's Recommended Order. This order will address those exceptions in the format as presented in Intervenor s exceptions. Ambulatory Boundaries. This exception is rejected without reaching the merits because a conclusion of law as to ambulatory boundaries is not necessary or applicable to the determination of this matter. Clam Bayou's Presence in the Aquatic Preserve in 1970 The "Headlands Rule". This exception is rejected without reaching the merits because, as recognized by the Hearing Officer, a conclusion of law as to the Headlands Rule is not necessary or applicable to the determination of this matter. The Hearing Officer recognized that the headlands rule was never intended to be applied to the aquatic preserve: [S]trict application of the "Headlands Rule" was never intended and should not be applied in this case in construing the entire boundary, else numerous of the coves, inlets, bays, and other water bodies opening into Pine Island Sound would be excluded from the preserve. The evidence ... concerning the Board's intent establishes that such a result was not intended. (Recommended Order, Conclusions of Law, p. 22) The "Separate Name" Theory. This exception is rejected without reaching the merits because a conclusion of law as to a Separate Name Theory is not necessary or applicable to the determination of this matter. Maps of the Preserve. This exception is rejected. There is competent substantial evidence in the record to support the Hearing Officers's conclusion that the intent of the drafters of the legal description was to exclude Clam Bayou from the preserve.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that a Final Order be entered by the Respondent agency finding that Clam Bayou and the proposed construction site at issue and referenced in the above Findings of Fact be deemed to be without the boundaries of the Pine Island Sound Aquatic Preserve. DONE AND ENTERED this 9th day of December, 1991, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 10th day of December, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NOS. 91-3249R AND 91-3770 Petitioner's Proposed Findings of Fact 1-7. Accepted. 8. Accepted, except that the maps are not exactly identical since Petitioner's Exhibit No. 3 is a stippled or shaded map and the map recorded in the Lee County Public Records at Book 648, page 736, in evidence, is not actually shaded or stippled. 9-29. Accepted. Respondent's Proposed Findings of Fact 1-3. Accepted. Accepted, but not as being materially dispositive of the issues presented. Accepted. 6-12. Accepted. Accepted, but not in itself materially dispositive. Rejected, as not in accordance with the preponderant weight of the evidence. Accepted. 16-17. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and not entirely in accordance with the preponderant weight of the evidence. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and not entirely in accordance with the preponderant weight of the evidence. Accepted. Accepted, but not materially dispositive of the issues presented. Accepted, but not materially dispositive of the issues presented and subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted, but not itself materially dispositive of the issues presented. Accepted, but not itself materially dispositive of the issues presented. Accepted. Accepted, but not materially dispositive of the issues presented standing alone. Accepted, but not materially dispositive of the issues presented standing alone. Accepted, but not materially dispositive of the issues presented standing alone. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Intervenor's Proposed Findings of Fact (City of Sanibel) 1-2. Accepted. Accepted, but not materially dispositive in this de novo proceeding. Accepted, but not materially dispositive of the issues presented. Intervenor's Proposed Findings of Fact (Ralph Clark, et al.) Accepted, but not materially dispositive, given the de novo nature of this proceeding. Accepted, but not materially dispositive of the issues presented. Rejected, as not in accordance with the preponderant weight of the evidence. COPIES FURNISHED: Ken Plante, Esq. General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Mail Station #10 Tallahassee, FL 32399-3000 Kenneth G. Oertel, Esq. OERTEL, HOFFMAN, ET AL. 2700 Blair Stone Road P.O. Box 6507 Tallahassee, FL 32314-6507 John Costigan, Esq. Edwin Steinmeyer, Esq. Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, FL 32399-3000 Robert D. Pritt, Esq. City of Sanibel 800 Dunlop Road Sanibel, FL 33957 Mark A. Ebelini, Esq. HUMPHREY & KNOTT, P.A. 1625 Hendry Street Ft. Myers, FL 33901
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.
