Findings Of Fact Urbanek owns land in and adjacent to Town Lots 93 and 94, Highland Beach, in Section 28, Township 46 South, Range 43 East, Palm Beach County, Florida. The real estate in question is located on the eastern shore of the Intra-Coastal Waterway approximately 2,000 feet south of the mouth of the C-15 Canal. Urbanek seeks a permit under Chapters 403 and 253, Florida Statutes, and water quality certification under Public Law 92-500, to dredge approximately 24,500 square feet of shoreline and shallow nearshore area, while installing approximately 240 linear feet of bulkhead and ten mooring piles, and constructing a marginal dock and piers for the use of future residents. The application also includes filling approximately 60,000 square feet of tidally connected ditches and wetlands to allow the construction of a high density residential development. On January 19, 1976, DER received a short form application for a permit from Urbanek pursuant to Subsection 17-4.28 (4)(a), Florida Administrative Code. On March 10, 1976, Urbanek received from DER a request for additional information. This occurred 51 days after Urbanek's original application for permit. Urbanek forwarded the requested additional information to DER on April 22, 1976, and April 30, 1976. On May 12, 1976, DER notified Urbanek that the project must be submitted using standard permitting procedures along with the incorporation of certain recommendations made by DER's field inspector. On June 9, 1976, Urbanek was notified by DER that his application had been forwarded to Tallahassee with a recommendation for denial on two grounds. First, that the application did not meet the criteria for short form applications and second, that the proposed project would eliminate valuable submerged and wetland habitats. On July 27, 1976, Urbanek was notified by DER's Tallahassee office that his application was received on January 1976, and that the application was incomplete. The notification requested additional information. On September 22, 1976, DER notified Urbanek that processing of his application was discontinued because required data was not sent by Urbanek to DER. Urbanek was further advised that processing of the application," would be continued upon receipt of the necessary information. On January 20, 1977, Urbanek submitted another modified permit application to DER. On February 28, 1977, DER sent Urbanek notice of receipt of the application once again requesting additional information be submitted. On March 4, 1977, Urbanek forwarded the requested information to DER. On April 1, -1977, DER forwarded to Urbanek its notice of intent to deny and the proposed order of denial of the permit application. On April 15, 1977, Urbanek petitioned DER for a hearing pursuant to the provisions of Section 120.57, Florida Statutes. The area of the project, prior to the turn of the century, was a fresh water wetland. However, salt water intrusion from the permanent opening of the Boca Inlet in south Palm Beach County in the early 1900's paved the way for colonization of mangroves in the Spanish River Basin, now the Intra-Coastal Waterway. As the human population increased in Palm Beach County, the mangroves were destroyed in order to afford living spaces. As a result, approximately 77 percent of the mangroves in Palm Beach County have been removed. One of the last remaining mangrove areas in southern Palm Beach County is located on a strip of land which borders the eastern side of the Intra-Coastal Waterway. The applicant's project site represents a portion of that strip. The project site fronts 230 feet-of the Intra-Coastal Waterway and extends approximately 670 feet eastward to State Road A1A. The property is intersected by three mosquito control ditches which run perpendicular to the Intra-Coastal Waterway but do not connect with it, and by six lateral ditches which extend from north to south and adjoin the property to the south. The project site is thus divided into eighteen parcels of land or "islands" and a fringing shoreline area. A survey conducted on October 13, 1977, and October 18, 1977, revealed the emergent areas between the ditches to be vegetated by mostly white mangroves, with canopies ranging from fifteen to forty-five feet in height. Numerous white and red mangrove seedlings plus a few scattered black mangrove seedlings indicate that the area may be changing from a predominantly white mangrove to a mixed mangrove community throughout the project site. Batis and Sesuvium were found and Australian Pines and Brazilian Pepper were observed only in areas where spoil from dredging activities was placed on the emergent area. There are approximately seven to eight thousand trees, including seedlings, in the project area. The mangrove system at the project site was characterized as a very productive system by Dr. G. Alex Marsh, an expert in Estuarine Ecology, who testified for DER. Dr. Arnold Banner of the United States Fish and Wildlife Service concurred with Dr. Marsh that the eradication of the productive system would result in the removal of a significant source of food and habitat. The evidence shows that a wetland habitat such as the project site affords approximately 535 pounds of fishing products per year with a dollar value of $8,000 per acre to the public. Petitioner argues that it would be in the public interest to bulkhead and fill the subject property because rodents would be eliminated, trash and debris would no longer collect on the property and that further erosion of the property would be prevented. However, Urbanek has failed to establish with substantial competent evidence that there actually exists a rodent problem on the subject property. The evidence does establish that trash and debris collect among the root system of the vegetation and that severe erosion has occurred on the property from wave action created by vessels moving through the Intra- Coastal Waterway. Urbanek has failed to establish with substantial competent evidence that the proposed project will not degrade water quality, cause violation of water quality standards or criteria or cause pollution. In fact, no evidence was submitted whatsoever by Urbanek which would tend to prove any of these three preconditions to the granting of the requested permit. Nonetheless, DER's failure to act on the permit application within the time limits prescribed by Subsection 120.60 (2), Florida Statutes, as amended in 1976, mandates the issuance of the requested permit.
The Issue The issues presented for determination are whether Florida Housing Finance Corporation’s determination that the three applicant-parties were eligible for the allocation of low-income housing tax credits; and its intended decision to award such tax credits to Ocean Breeze East Apartments, LLC, are contrary to governing statutes, rules, or the solicitation specifications.1/
Findings Of Fact Parties and Process Florida Housing is a public corporation and, for the purposes of these proceedings, is an agency of the State of Florida. Pursuant to section 420.5099, Florida Statutes, Florida Housing is designated as the housing credit agency for Florida within the meaning of section 42(h)(7)(A) of the Internal Revenue Code and has the responsibility and authority to establish procedures for allocating and distributing low-income housing tax credits.3/ Florida Housing is authorized by law to allocate tax credits (and other funding) by means of requests for proposal or other forms of competitive solicitation. On October 6, 2017, Florida Housing published the RFA, starting the competitive application process being challenged in this proceeding. Completed applications were due December 28, 2017.4/ As explained below, all of the non-agency parties (HTG Heron, Channel Side, and Ocean Breeze) in this case applied for funding for a proposed development in Palm Beach County. According to the terms of the RFA, only one application for each county was to be funded. Moreover, the RFA’s stated goal was to fund one application wherein the applicant applied and qualified as a non-profit applicant. This non-profit goal did not apply within each of the six counties included in this RFA; one non-profit applicant in any of the six counties could satisfy the non-profit applicant goal for the entire RFA. No challenges were made to the terms or requirements of the RFA. HTG Heron is an applicant to the RFA, requesting an allocation of $1,541,751.00 in competitive tax credits. Its application, assigned number 2018-289C, was deemed eligible for consideration but was not selected for funding under the RFA. Channel Side is also an applicant to the RFA. It is requesting an allocation of $2,100,000.00 in competitive tax credits. Its application, assigned number 2018-278C, was deemed eligible for consideration but was not selected for funding under the RFA. Ocean Breeze is an applicant requesting an allocation of $2,070,000.00 in competitive tax credits. Its application, assigned number 2018-286C, was deemed eligible for consideration and was selected for funding under the RFA, subject to a credit underwriting review process. Florida Housing has adopted Florida Administrative Code Chapter 67-60 to govern the competitive solicitation process for several different programs, including the tax credit program. See § 420.507(48), Fla. Stat. The bid protest provisions of section 120.57(3) are adopted as part of the process for allocating tax credits, except that no bond is required. See Fla. Admin Code R. 67-60.009. A review committee was appointed to evaluate the applications and make recommendations to Florida Housing’s Board of Directors (the Board). Thirty-three applications for the RFA were received, processed, deemed eligible or ineligible, scored, and ranked, pursuant to the terms of the RFA; Florida Administrative Code Chapters 67-48 and 67-60; and applicable federal regulations. The review committee found 25 applications eligible and eight applications ineligible. Through the ranking and selection process outlined in the RFA, seven applications were recommended for funding, including Ocean Breeze. The review committee developed charts listing its eligibility and funding recommendations to be presented to the Board. On March 16, 2018, the Board met and considered the recommendations of the review committee for the RFA. The same day, the applicants to the RFA received notice of the Board’s determinations as to whether the applications were eligible or ineligible for consideration for funding, and which of the eligible applicants were selected for award of tax credits, subject to satisfactory completion of a credit underwriting process. Such notice was provided by the posting of two spreadsheets, one listing the “eligible” applications to the RFA and one identifying the applications which Florida Housing proposed to fund.5/ Relevant to this proceeding, Florida Housing announced its intention to award funding for Palm Beach County to Ocean Breeze, which received the maximum points available. Channel Side and HTG Heron were deemed eligible and scored the maximum number of points, but were not recommended for funding. Each applicant-party timely filed a Notice of Protest and Petition for Formal Administrative Proceedings. RFA The RFA contemplated a structure in which each applicant is scored on eligibility items and obtains points for other items. To determine if an application is eligible for funding, it must meet all of the requirements listed in section 5.A.1, of the RFA. The following eligibility terms and requirements are challenged in this proceeding: The evidence of control of the development site (site control) by Ocean Breeze and Channel Side; and The address of the development site provided by HTG Heron. For scoring the applications, the RFA allows up to a total of 20 points with the following point allocations: Submission of Principal Disclosure form stamped by Corporation as “Pre-Approved” (5 points); Development Experience Withdrawal Disincentive (5 points); and Local Government Contribution Points (5 points) or Local Government Area of Opportunity Points (10 points). As explained in pages 66-67 of the RFA, the first step in evaluating the applications is the sorting order. All eligible applications are ranked by first sorting all eligible applications from the highest score to the lowest score, with any scores that are tied separated in the following order: First, by the Application’s eligibility for the Proximity Funding Preference (which is outlined in Section Four A.5.e. of the RFA) with Applications that qualify for the preference listed above Applications that do not qualify for the preference; Next, by the Application’s eligibility for the Per Unit Construction Funding Preference which is outlined in Section Four A.11.e. of the RFA (with Applications that qualify for the preference listed above Applications that do not qualify for the preference); [sic] Next, by the Application’s eligibility for the Development Category Funding Preference which is outlined in Section Four A.4.b.(4) of the RFA (with Applications that qualify for the preference listed above Applications that do not qualify for the preference); [sic] Next, by the Application’s Leveraging Classification, applying the multipliers outlined in Item 3 of Exhibit C of the RFA (with Applications having the Classification of A listed above Applications having the Classification of B); [sic] Next, by the Application’s eligibility for the Florida Job Creation Funding Preference which is outlined in Item 4 of Exhibit C of the RFA (with Applications that qualify for the preference listed above Applications that do not qualify for the preference); and [sic] And finally, by lottery number, resulting in the lowest lottery number receiving preference. In other words, those competing for the RFA must first submit an application that meets all the eligibility criteria and does not have any significant omissions or errors before it is scored. After scoring, any tiebreakers are determined strictly by the luck of the draw. After applications are filed, but before they are scored, Florida Housing randomly assigned each a lottery number, and the highest scoring applicant with the lower number wins any ties, thus becoming the intended funding recipient. The notice of the intended award does not end the process, and the selection of an applicant for funding does not guarantee distribution of tax credits to that applicant. Florida Housing’s representative, Ms. Button, explained at the hearing: Q Okay. What happens once a preliminary agency action from Florida Housing becomes final agency action? A The awardees who are recommended or preliminarily approved for funding, once that becomes final, those applicants are then invited to credit underwriting by Florida Housing. * * * Q Can you provide some general information about credit underwriting? A Credit underwriting is essentially a de novo review of all the information that the applicant has provided in their application to proceed forward with the proposed development. Florida Housing retains their party underwriters who review that information and provide recommendations to Florida Housing. Similarly, the RFA provides that each selected awardee must complete a credit underwriting process before receiving funding or credits. The RFA states on page 68: Notwithstanding an award by the Board pursuant to his RFA, funding will be subject to a positive recommendation from the Credit Underwriter based on criteria outlined in the credit underwriting provisions in Rule Chapter 67-48, F.A.C. Rule 67-48.0072, in turn, provides in part: Credit underwriting is a de novo review of all information supplied, received or discovered during or after any competitive solicitation scoring and funding preference process, prior to the closing on funding, including the issuance of IRS Forms 8609 for Housing credits. The success of an Applicant in being selected for funding is not an indication that the Applicant will receive a positive recommendation from the Credit Underwriter or that the Development team’s experience, past performance or financial capacity is satisfactory. Thus, an application might fail in this de novo credit underwriting phase and never receive funding, even though it was “awarded” tax-credit funding as a result of a proceeding such as this one. In that event, page 67 of the RFA provides: 4. Returned Allocation Funding that becomes available after the Board takes action on the [Review] Committee’s recommendation(s), due to an Applicant withdrawing its Application, an Applicant declining its invitation to enter credit underwriting, or an Applicant’s inability to satisfy a requirement outlined in this RFA and/or Rule Chapter 67-48, F.A.C., will be distributed as approved by the Board. Therefore, if an intended applicant (such as Ocean Breeze), was nominally selected for funding at the end of the eligibility and scoring phase, but failed to garner a positive recommendation from the credit underwriting process, the next eligible applicants in the queue (such as HTG Heron and Channel Side) would be awarded the tax credits. As a result, in this consolidated proceeding, the objective of Petitioners is to displace any and all applicants in more favorable positions. Here, Petitioner Channel Side challenges the eligibility of both the Ocean Breeze and HTG Heron applications; and Petitioner HTG Heron challenges the eligibility of Ocean Breeze. Ocean Breeze, in turn, challenges both HTG Heron’s and Channel Side’s eligibility. The specific issues raised as to the three challenged applications will be discussed below. OCEAN BREEZE APPLICATION HTG Heron and Channel Side challenge Ocean Breeze’s eligibility based on the RFA requirements relating to site control. The parties have stipulated, and the undersigned finds, that site control must have been demonstrated as of the application deadline of December 28, 2017. The RFA provides three ways an applicant can demonstrate site control: (1) eligible contract, (2) deed or certificate of title, or (3) lease. Ocean Breeze utilized the first method to satisfy the site control requirement by submitting a document titled “Purchase and Development Agreement” (PDA) as Exhibit 8 to its Application. The PDA included two attachments: the “Legal Description” and a “Reverter Agreement.” Petitioners challenge the enforceability of the PDA on two apparent grounds: (1) it was not executed by the applicant6/; and (2) it was executed before the applicant was properly incorporated to do business within the State of Florida. The RFA, however, does not mention “enforceability” of a contract in its definition for “Eligible Contract.” The requirements for establishing site control though an eligible contract are found on page 30 through 31 of the RFA. Eligible Contract - For purposes of this RFA, an eligible contract is one that has a term that does not expire before June 30, 2018 or that contains extension options exercisable by the purchaser and conditioned solely upon payment of additional monies which, if exercised, would extend the term to a date that is not earlier than June 30, 2018; specifically states that the buyer’s remedy for default on the part of the seller includes or is specific performance; and the buyer MUST be the Applicant unless an assignment of the eligible contract which assigns all of the buyer’s rights, title and interests in the eligible contract to the Applicant, is provided. Any assignment must be signed by the assignor and the assignee. If the owner of the subject property is not a party to the eligible contract, all documents evidencing intermediate contracts, agreements, assignments, options, or conveyances of any kind between or among the owner, the Applicant, or other parties, must be provided, and, if a contract, must contain the following elements of an eligible contract: (a) have a term that does not expire before June 30, 2018 or contain extension options exercisable by the purchaser and conditioned solely upon payment of additional monies which, if exercised, would extend the term to a date that is not earlier than June 30, 2018, and (b) specifically state that the buyer’s remedy for default on the part of the seller includes or is specific performance. The initial paragraph of the PDA identifies the parties to the PDA as “Boyton Beach Community Redevelopment Agency,” as the “Seller,” and “Ocean Breeze East Apartments, LLC” as the “Purchaser.” Paragraph 14 of the PDA designates the following for purposes of notices: If to Purchaser: Ocean Breeze East Apartments, LLC Attn: Lewis Swezy 7735 NW 146 Street, Suite 306 Miami Lakes, FL 33016 Under the signature block, however, the PDA states it was executed on behalf of the “Purchaser” by “OCEAN BREEZE APARTMENTS LLC By Ocean Breeze East GP LLC” and signed by Lewis Swezy, “Title: Authorized Member” on December 8, 2017. “Ocean Breeze East, GP, LLC” does not exist and never has in Florida. The parties admit that this entity was not in existence on December 8, 2017, and was never subsequently formed. Ocean Breeze admits the identification of “Ocean Breeze East, GP, LLC” was in error. The PDA was executed on behalf of the “Seller” by BBCRA and signed by Steven B. Grant, “Title: Chair” on December 15, 2017. Paragraph 4 of the PDA indicates that its effective date is the date when the last party signed the PDA; in this case being the date the BBCRA executed the document--December 15, 2017. The Reverter Agreement is executed by the “Purchaser” “Ocean Breeze East Apartments, LLC” and signed by Lewis Swezy, “Title: Manager of Manager,” on December 12, 2017. The Reverter Agreement is executed by the “Seller,” BBCRA, and signed by Steven B. Grant, “Title: Chairman” on December 15, 2017. Mr. Swezy testified Ocean Breeze complied with all the terms of the PDA, including submitting an initial $25,000 deposit within two days of full execution of the PDA and a second deposit within 30 days. The Articles of Organization for Ocean Breeze East Apartments, LLC were filed on December 19, 2017, and effective December 14, 2017. Rachael Grice, Florida Housing Multifamily Programs Manager, scored the site control portion for this RFA based on the information in the application. Mrs. Grice found that Ocean Breeze met the RFA requirements for site control. It is unnecessary, and beyond the scope of the undersigned’s jurisdiction, to make a factual or legal determination as to the enforceability of the PDA. The RFA does not mention enforceability or validity as requirements for an “Eligible Contract” for site control purposes. There is no dispute that on its face, the PDA with the Reverter Agreement satisfied the RFA’s requirements for an “Eligible Contract” listed on page 30 and 31. In fact, as of the date of the application deadline the following was true: Ocean Breeze East Apartments, LLC, was listed as the applicant for the RFA. Ocean Breeze East Apartments, LLC, was listed as the “Purchaser” on the PDA. Mr. Swezy had signature authority to bind Ocean Breeze and was listed on the Ocean Breeze application as the “Authorized Representative.” Ocean Breeze East Apartments, LLC, and Mr. Swezy were identified in the notice provision in the PDA. The Reverter Agreement, which was signed after the PDA, correctly identified the applicant entity as Ocean Breeze East Apartments, LLC. Effective December 14, 2017, Ocean Breeze was incorporated. The PDA was fully executed on December 15, 2017. HTG Heron and Channel Side have not established that the PDA was fatally flawed or that Florida Housing erred in accepting the PDA as an “eligible contract” satisfying the RFA’s site control requirement. Even if the PDA contained errors by listing “Ocean Breeze East GP, LLC” in the signature block or was prematurely signed before Ocean Breeze was effectively incorporated, the evidence at the hearing established that it was a minor irregularity waivable by Florida Housing, and that Florida Housing would have waived any such errors. If the PDA is ultimately determined to be unenforceable and site control is not established at the credit underwriting stage, Petitioners would be next in line to be selected to receive the tax credits under the terms of the RFA. The preponderance of the evidence established that Ocean Breeze’s application is eligible for funding, it received the proper scoring, and should be the intended award for Palm Beach County. HTG HERON APPLICATION Channel Side and Ocean Breeze challenge the eligibility of the HTG Heron application because they claim it fails to satisfy the RFA eligibility requirement to provide a correct address of the proposed development site. Page 18 of the RFA requires in relevant part: Indicate (1) the address number, street name, and name of city, and/or (2) the street name, closest designated intersection, and either name of city or unincorporated area of county. Ms. Button testified the purpose of the address requirement in the RFA is to allow parties, including Florida Housing, to know where the proposed development will be built and to ensure the property has access to utility and other services. In that vein, the RFA does not require the street identified in an application to be a publicly maintained street. In its application, HTG Heron provided the address of the proposed development as “W 17th Ct., W 17th Ct. and North Congress Ave., Riviera Beach,” along with latitudinal and longitudinal coordinates of the development location. Ryan McKinless, Multifamily Programs Senior Analyst for Florida Housing, scored the development address section for this RFA. Mr. McKinless found that HTG Heron met the requirements in the RFA for providing an address of the proposed development. Here, Channel Side and Ocean Breeze argue Florida Housing erred in accepting the “W. 17th Ct.” address provided by HTG Heron because the address does not exist. They point to the site sketch submitted by HTG Heron in support of its application which references a “W. 17th Street” (not “W. 17th Ct.”) and has “W. 17th Street” intersecting with “Congress Avenue Extension,” (not “N. Congress Ave.”). In support of this position that “W. 17th Ct.” does not exist, Ocean Breeze and Channel Side also rely on a 1975 plat and a 1999 City of Rivera Beach Ordinance. The sketches attached to HTG Heron’s application each contain the disclaimer “NOT A SURVEY.” Although the sketches contain a reference to an abandonment relating to “W. 17th Ct.,” the 1999 Ordinance describing the abandonment relied on by Channel Side and Ocean Breeze was not submitted to Florida Housing. Regardless, this plat and ordinance information was not required by the RFA nor was it considered by Florida Housing in determining whether to accept the address submitted by HTG Heron for eligibility determination purposes. There was no evidence at the hearing that the “W. 17th Court” address misled Florida Housing (or anyone else) or caused confusion as to the location of HTG Heron’s proposed development. To the contrary, other information in the application supports accepting the provided address. The “Local Government Verification of Status of Site Plan Approval for Multifamily Developments” form executed by the City Manager of Riviera Beach affirms the “W. 17th Ct.” address. The “Local Government Verification that Development is Consistent with Zoning and Land Use Regulations” form executed by the City Manager of Riviera Beach affirms the “W. 17th Ct.” address. The “Verification of Availability of Infrastructure- Electricity” form executed by an Associate Engineer from Florida Power and Light affirms the “W. 17th Ct.” address. The “Verification of Availability of Infrastructure” form for water and sewer services executed by a Utilities Engineer from City of Riviera Beach affirms the “W. 17th Ct.” address. The “Verification of Availability of Infrastructure- Roads” form executed by a City Engineer from the City of Riviera Beach affirms the “W. 17th Ct.” address. The “Local Government Verification of Contribution- Grant” form executed by the Interim City Manager of Riviera Beach affirms the “W. 17th Ct.” address. The acting director of the City of Riviera Beach, Department of Community Development confirms by letter that the property at the “2003 W. 17th Court (adjacent to North Congress Avenue)” address is located with a “Qualified Census Tract for 2017 and 2018” and attaches a diagram of that tract. Documentation from the Palm Beach County Property Appraiser’s website lists the address location as “2003 W. 17th Ct.” Given that the purpose of providing an address was fulfilled and there was no ambiguity as to the actual location of the HTG Heron’s development site, Channel Side and Ocean Breeze failed to prove that Florida Housing erred in accepting HTG Heron’s address for the purposes of eligibility. At the hearing, HTG Heron also submitted a certified copy of a 2017 map from the Palm Beach County Property Appraiser’s Office for range 43, township 42, which includes the area of the proposed development in HTG Heron’s application, and indicates there is a “W. 17th Ct.” that intersects with “N. Congress Avenue.” There was a preponderance of evidence establishing HTG Heron’s designation in its application of “W 17th Ct., W 17th Ct. and North Congress Ave., Riviera Beach” was not an error, and that HTG Heron’s application is eligible for funding. CHANNEL SIDE APPLICATION7/ To satisfy the Site Control requirements Channel Side submitted a Purchase and Sale Agreement that lists among the sellers an entity named “MWCP, Inc., f/k/a Blueprint Properties, Inc., a Delaware corporation whose post office address is 248 Columbia Turnpike Florham Park, NJ (‘Blueprint’)” in the initial paragraph. MWCP, Inc. (MWCP) did not exist in Florida when the Purchase and Sale Agreement was executed. The parties stipulated that the reference in the Channel Side site control documents to MWCP was erroneous and that the owner of the property for the Channel Side’s proposed development as of the application deadline was a Delaware corporation known as Blueprint Properties, Inc., which has never operated as, or been corporately related to, MWCP. Rachel Grice, Florida Housing Multifamily Programs Manager, scored the Site control portion of this RFA based on the information in the Application. Mrs. Grice found that Channel Side met the RFA requirements for Site control. The RFA does not require the listing of related names of any corporations other than the applicant or developer. Thus, the error in the Purchase and Sale Agreement does not seem to affect Channel Side’s satisfaction of any requirement of the RFA. The error is insignificant and immaterial. There was no evidence presented at the hearing that Channel Side received a competitive advantage by identifying “MWCP, Inc. f/k/a Blueprint Properties, Inc.” instead of simply “Blueprint Properties” as the seller. The slight error conferred no competitive advantage on Channel Side; its application received no more points than it was entitled to by reason of the mistake. Ms. Button reasonably testified that had Florida Housing known about the mistaken listing of MWCP as the seller, it would have waived the error as a minor irregularity. The applicant-parties failed to prove that Channel Side’s application reflecting the “wrong corporate entity” as the seller was an error affecting eligibility of Channel Side’s application, or that Florida Housing erred in accepting the Purchase and Sale Agreement as proof of site control. The mistake was, at worst, a minor, inconsequential error that was waivable. Based on the preponderance of the evidence, Channel Side’s application is eligible for funding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Florida Housing Finance Corporation, enter a final order consistent with its initial decisions: (1) finding the applications of Ocean Breeze, HTG Heron, and Channel Side eligible for funding; (2) awarding the RFA Palm Beach County funding for the Ocean Breeze proposed development; and (3) dismissing the formal written protests of HTG Heron and Channel Side. DONE AND ENTERED this 29th day of June, 2018, in Tallahassee, Leon County, Florida. S HETAL DESAI Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 2018.
The Issue At issue was whether Petitioner should be granted a permit from the Respondent, Department of Environmental Regulation, to excavate material in front of the Petitioner's seawall in Naples Bay, Collier County, Florida. The Petitioner owns a residential homesite lot in the Royal Harbor Subdivision in Naples, Florida. Royal Harbor is a waterfront oriented residential community devoted to single family residences; each residence either has waterfront' on Naples Bay or through a network of interior canals which provide navigational access to Naples Bay. All lots are bordered by concrete seawalls. The Concrete seawall bordering the Petitioner's property does not Immediately abut the water, but has an amounts of earth between the seawall and the water's edge, somewhat resembling a beach. It is this earth the Petitioner wishes to remove so that he may have his seawall abut the water which would facilitate the launching of a vessel from his property. Presently, it does not appear that the Petitioner could keep a boat at his property without building a lengthy dock from his seawall into Naples Bay. The Department of Environmental Regulation opposes the application in that it claims the excavation of this material would destroy an oyster bar which exists in front of the Petitioner's property and would eliminate an ecologically significant area. From the exhibits presented at the hearing and after consideration of the testimony, it appears that in the entire Royal Harbor development only the Petitioner's property lacks having the bay waters abut the seawall. The Petitioner's property is approximately one quarter mile from the channel in Naples Bay which is a low energy water body. That is to say, wave action does not become extremely forceful in this area because of the protected nature of the waterway. The Department of Environmental Regulation in part opposes the permit because they state to remove the berm from in front of the seawall would expose the seawall to direct wave energy which would cause turbidity within the waters. No direct evidence was presented that wee the seawalls in Naples Bay are in direct contact with the water that this ill fact does cause increased turbidity and therefore this testimony is rejected by this Hearing Officer as being merely speculative. On the other hand, the Petitioner made no showing that the project would actually be in the public interest except to show that the area in question was a relatively small area. Witnesses for the Department of Environmental Regulation stated that were this berm removed and the area converted to a shallow submerged bay bottom, oysters and marine vegetation would eventually propagate here, particularly if the bottom was excavated with a smooth contour. It is difficult to imagine after listening to all the testimony in this case how the granting of this permit would have a measurable environmental Impact. It would appear to this Hearing Officer that there could be some benefit to water quality from the granting of this permit by somewhat restoring Naples Bay to its original condition. Testimony was received that the entire Royal Harbor development was man-made and the removal of this fill would, in some slight degree, remove fill material that had been previously placed within the waters of Naples Bay. Testimony was also received from Mr. Thomas Provenzano, District Supervisor of the Department of Environmental Regulation, that in his opinion it would be environmentally acceptable for the Petitioner to excavate this berm from within five (5) feet of the concrete seawall. This appears to be a reasonable disposition of this dispute. Whatever destructive force the waves of Naples Bay might have on an exposed vertical seawall would be minimized by leaving a five (5) foot berm seaward of that wall and would in no way interfere with the Petitioner's intended use of his land; reasonable navigational access to Naples Bay. It is, therefore, RECOMMENDED: The application be granted with the proviso that the Petitioner leave a five (5) foot berm between Naples Bay and his vertical seawall. DONE and ENTERED this 3rd day of November, 1976, in Tallahassee, Florida. KENNETH G. OERTEL, Director Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Carole Haughey, Esquire Department of Environmental Regulation 2552 Executive Center Circle, E. Montgomery Building Tallahassee, Florida 32301 Donald T. Frank, Esquire Suite A, U.S. Home Building 3174 E. Tamiami Trail Naples, Florida 33940 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION LYNN A. LUNDSTROM, Petitioner, vs. DOAH CASE NO. 76-1555 STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION, Respondent. /
The Issue The issues to be determined in this case are whether Petitioner is entitled to an environmental resource permit and modified sovereignty submerged land lease for the construction of commercial marinas and related structures at Petitioners property in Lee County, Florida. PRELIMARY STATEMENT On October 23, 2006, Petitioner applied to the South Florida Water Management District (“District”) for an environmental resource permit (“ERP”). Petitioner also sought modification of its sovereignty submerged land lease ("Lease") from the Board of Trustees of the Internal Improvement Trust Fund (Board of Trustees). On September 28, 2007, the District issued a Staff Report recommending that the ERP and Lease be denied. The Governing Board of the District adopted the staff’s recommendation on October 11, 2007. On October 12, 2007, the Petitioner filed a Petition for Administrative Hearing challenging the agency action. The District referred the petition to DOAH to conduct an evidentiary hearing. The case was abated for an extended period of time during which the parties attempted to settle their disputes. In October 2009, Intervenors' petition to intervene was granted. Intervenors were subsequently granted leave to amend their petition. Following notice from the parties that they were unable to settle their disputes, a final hearing was scheduled. At the final hearing, Petitioner presented the testimony of: Michael Morris, Jr.; David Depew; and Hans Wilson, accepted as an expert in ocean engineering, environmental sciences and navigation. Petitioner presented the testimony of Anita Bain through the introduction of her deposition. Petitioner's Exhibits 5, 8, 9, 14 through 16, 19, 20, 24, 26, 30, 34, 35, 40 through 43, 46 through 50, 52, and 56 through 58, were admitted into evidence. Petitioner's Exhibit 35 was accepted as a proffer. The District presented the testimony of: Holly Bauer- Windhorst, accepted as an expert in environmental biology; Melinda Parrott, accepted as an expert in marine biology and environmental impact analysis; Anita Bain, accepted as an expert in biology and environmental impact assessments; Robert Brantly, a professional engineer and Director of the Department's Bureau of Coastal Engineering; and Mary Duncan, accepted as an expert in biology and manatee impact assessment. The testimony of Peter Eckenrode was presented through his deposition. The District's Exhibits 5, 10, 12, and 14 through 18 were admitted into evidence. Intervenors presented the testimony of: Leonardo Nero, accepted as an expert in marine biology, seagrass conservation, oceanography, navigation, and vessel operation and maintenance; Gary Shelton; Sally Eastman; and Christine Desjarlais-Leuth. Intervenors' Exhibits 1, 5, 7, 8, 9, and 14 were admitted into evidence. The two-volume Transcript of the hearing was filed with DOAH. The parties filed proposed recommended orders. Petitioner filed revised pages to its proposed recommended order to correct scrivener's errors. Petitioner moved to strike an issue that was raised for the first time in the District and Intervenors' Joint Proposed Recommended Order. The motion to strike is granted as discussed in the Conclusions of Law.
Findings Of Fact The Parties Petitioner, Highpoint Tower Technology, Inc., is a Florida corporation with its mailing address at 800 South Osprey Avenue, Building B, Sarasota, Florida 34246. Petitioner is the owner of property located in Section 25, Township 45 South, Range 22 East, in Lee County, Florida, consisting of approximately eight acres. The property is on Bokeelia Island, on the northern tip of Pine Island. Petitioner is the applicant for the ERP and Lease which is the subject of this proceeding. The District is a regional water management agency with powers and duties established in Chapter 373, Florida Statutes. Its principal office is located at 3301 Gun Club Road in West Palm Beach. The District regulates certain construction activities in waters of the state pursuant to Chapter 373, Part IV, Florida Statutes, and Florida Administrative Code Chapter 40E. The District has also been delegated authority from the Board of Trustees to process applications for submerged land leases for structures and activities on or over sovereignty submerged lands. See Fla. Admin. Code R. 18-21.0051. Intervenor Sally Eastman resides on property adjacent to the proposed project. Intervenors, Christine Desjarlias-Leuth and Ron Leuth, own and reside on riparian property approximately 400 feet from the proposed project. Intervenor Gary Shelton owns and resides on riparian property near the proposed project. All Intervenors use the waters of Charlotte Harbor for water-based recreational activities, including fishing, swimming, boating, wading, and nature observation. The Affected Waterbodies The north side of Petitioner's property is adjacent to Charlotte Harbor. The south side of the property is adjacent to Back Bay. Both waterbodies are within the Pine Island Sound Aquatic Preserve. The aquatic preserve is an Outstanding Florida Water. Aquatic preserves are so designated because they have exceptional biological, aesthetic, and scientific value. It is the intent of the Legislature that aquatic preserves be set aside forever as sanctuaries for the benefit of the public. See § 258.36, Fla. Stat. Aquatic preserves were established for the purpose of being preserved in an essentially natural or existing condition so that their aesthetic, biological and scientific values may endure for the enjoyment of future generations. See Fla. Admin. Code R. 18-20.001(1). Charlotte Harbor in this location is a large expanse of open water with 10 to 12 miles of fetch to the north, making it subject to high winds and waves during storms. The water bottom of Charlotte Harbor is sandy. There are many areas of Charlotte Harbor with "prop scars," which are caused when boats travel in shallow waters and impact the bottom with boat motor propellers. There are seagrasses growing in the vicinity of Petitioner's Charlotte Harbor shoreline, mostly Thallasia testudinum (turtle grass) and Syringodium filiforme (manatee grass). Healthy turtle grass beds are growing near the proposed marina structures in Charlotte Harbor. There was some dispute about whether the turtle grass is 12 inches or 18 inches in length. The more persuasive evidence is that mature turtle grass is 18 inches in length. If there is turtle grass of shorter length in the area of the proposed project, it will eventually mature to a length of 18 inches. These seagrass communities qualify as a Resource Protection Area ("RPA") 1, which is defined in Florida Administrative Code Rule 18-20.003(54) as "[a]reas in aquatic preserves which have resources of the highest quality and condition for that area." There is also small patch of soft whip coral offshore, as well as some sea lettuce and interstitial algae on the sandy bottom. No water quality data for this area of Charlotte Harbor was presented by Petitioner. West Indian manatees are known to forage and move in the area near Petitioner's Charlotte Harbor shoreline, as well as in Back Bay. The manatee is a "listed" species. Back Bay is a small, semi-enclosed bay. It is shallow, averaging around four feet in depth at mean low water. A narrow passage known as Jug Creek leads out of Back Bay to Pine Island Sound. There are no seagrasses along Petitioner's shoreline on Back Bay, but there are seagrasses elsewhere in Back Bay. There are many prop scars in the shallower areas of Back Bay. The water bottom in Back Bay is silty and organic. It can be easily stirred up by boats and propeller action. No water quality data for Back was presented by Petitioner. Existing Structures A public access fishing pier extends about 400 feet from Petitioner's property into Charlotte Harbor, generally forming a "T." The pier has existed for decades and was one of the first landing and offloading piers in the region for commercial fishing activities, with fish houses on the adjacent uplands. The riparian owner obtained title to the submerged lands beneath the fishing pier by operation of the Butler Act, which vests title in the riparian upland owner to submerged lands if structures were erected over or upon the submerged lands before 1951. Therefore, a submerged land lease from the Board of Trustees is not required for the fishing pier. However, Petitioner obtained a submerged lands lease in 2000 for two recreational boat slips along the east side of the pier. There is a seawall along Petitioner's Charlotte Harbor shoreline. Petitioner's upland was formerly occupied by approximately 120 mobile homes, which were served by septic tanks. The mobile homes were removed two or three years ago and Petitioner obtained a separate environmental resource permit from the District in May 2006 for a proposed new residential and commercial development on the uplands called Bokeelia Harbor Resort. Construction of the new development, which would include single-family homes, multi-family buildings, a swimming facility, and a restaurant, has not yet begun. In Back Bay, Petitioner's shoreline has a seawall and a number of finger piers extending off the seawall. Petitioner has two submerged land leases in Back Bay, one that authorizes 50 boat slips and another that authorizes 10 slips. Only about a dozen boats have been using these slips in recent years. There are two boat ramps on Petitioner's property for access to Back Bay. The record evidence leaves unclear whether the ramps were for the exclusive use of the former mobile home residents or were used by the general public. The historical and current use of the boat ramps, in terms of the average number of launches per month or year, was not established in the record. There is a man-made, seawalled canal or basin on Petitioner's property that connects to Back Bay. There are piers and slips in the canal, which Petitioner claims could accommodate about 30 boats. Aerial photographs of the canal indicate that 20 to 25 boats is a more reasonable estimate. The water bottom of the canal is privately owned and, therefore, does not require a submerged lands lease. Petitioner presented inconsistent information about the number of existing boat slips in Back Bay. Petitioner claimed that there are as many as 108 slips in Back Bay. That number seems impossible, given that only 60 slips are authorized by the two submerged land leases. There was no exhibit presented to show where the 108 slips are located. The Department of Community Affairs determined that 85 slips in Back Bay were "vested" for purposes of the development of regional impact review program in Chapter 380, Florida Statutes, which means the slips were constructed before July 1, 1973. The Florida Fish and Wildlife Conservation Commission thinks there are now 82 boat slips in Back Bay. The Department of Environmental Protection thinks there are 80. Petitioner had a motive to exaggerate the number of existing slips. The unsupported testimony of Petitioner's witness that there are 108 slips in Back Bay was not substantial evidence.1/ It is found that Petitioner currently has approximately 82 boat slips in Back Bay. Petitioner is not currently controlling the use of the slips in Charlotte Harbor and Back Bay, such as by limiting the size or draft of vessels. There are no signs that inform boaters about seagrasses or manatees. There are currently no sewage pump-out facilities. Petitioner is not currently controlling boaters' uses of fuel or other chemicals. However, no evidence was presented to show the extent of any past or current polluting activities. Petitioner sought to show that the septic tanks that had been removed from the upland property were a source of nutrients and other pollutants to Charlotte Harbor. The District and Intervenors objected to this evidence as irrelevant because the ERP and Lease applications do not involve the removal of the septic tanks and their replacement with a central sewage collection system, and because Petitioner removed the septic tanks some years ago as part of its re-development of the uplands. The objection was sustained, but Petitioner was allowed to make a proffer that the removal of the septic tanks improved the water quality of the adjacent waterbodies. The issue was one of relevancy alone, because it was apparently undisputed that the removal of the septic tanks resulted in some unquantified improvement in the water quality of adjacent waterbodies.2/ The Proposed Project Petitioner proposes to construct new commercial docks and related structures (marinas) in both Charlotte Harbor and Back Bay. The Charlotte Harbor marina would have 24 boat slips, which is 22 more slips than currently exist. The Back Bay marina would have 43 slips, which is 39 fewer slips than currently exist. Overall, the proposed project would result in a reduction of about 17 slips. Petitioner would make all boat slips in the marinas available to the public on a “first come - first served” basis. Some slips would be leased on an annual basis. An unspecified number of slips would be for day rental, primarily to accommodate patrons of the restaurant on the uplands. In Charlotte Harbor, a long pier would extend to a dock configuration that forms a marina basin, with concrete panels on three sides extending from above the water line to below the sandy bottom to act as a breakwater. The opening into the marina basin for ingress and egress by boaters would be to the southeast. On the west side of the marina basin would be a 1500 square foot fishing platform. Slips 1 through 5 would be along the east side of the pier and would have boat hoists to raise the boats out of the water. Because seagrasses are growing near slips 1 through 5, Petitioner agreed to limit the draft of boats using these slips to 30 inches. Slips 6 through 24 would be within the protected marina basin. These slips are intended to accommodate larger boats than the kinds of boats that can safely navigate in the shallow waters of Back Bay. However, boats using slips 6 through 24 would not be allowed to have drafts greater than five feet. These slips would not have hoists. All the new slips in Back Bay are designed for a maximum boat length of 30 feet, but the slips vary with regard to maximum allowed draft, from 16 inches to three feet, depending on the depth of the adjacent waters. The Charlotte Harbor marina would extend about 100 feet more waterward so that it would be 500 feet from the shoreline, which is the maximum extension allowed under Florida Administrative Code Rule 18-20.004(5)(a)1. No boats slips or mooring would be allowed beyond the 500-foot limit. The canal connected to Back Bay would be filled in, and three additional residential units would be placed on the uplands created by the filling. Petitioner suggested that the canal has poor water quality, such as low dissolved oxygen, and that elimination of the canal would be a benefit for the water quality of Back Bay. Petitioner presented no water quality data to support this allegation, but the elimination of the canal would more likely than not have some small water quality benefit for Back Bay. The boat ramps on the upland would be removed. A new seawall would be installed along Petitioner's Back Bay shoreline and approximately 400 reef balls would be placed in the water along the face of the seawall. The reef balls are three feet tall and four feet wide, made of cement, and have openings. It is expected that oysters and barnacles would colonize the reef balls. Because there are oysters, barnacles, and other filter feeders in Back Bay, that expectation is a reasonable one. Fish are likely to be attracted to the reef balls. Petitioner contends that the reef balls, after they are colonized by oysters, will provide water quality benefits, because oysters filter the water when feeding. Although there was some support in the record for this general proposition, there was no evidence presented about the types of pollutants that can be removed from the water by oysters, or the level of water quality improvement that reasonably could be expected. Reef balls have been used at another marina in the region and were determined by the regulatory agencies to provide some public benefit, but Intervenors' expert, Leonard Nero, believes that the value of reef balls is exaggerated. It is his opinion that reef balls do not function like a natural habitat because there is no primary food production or sustainable biological interrelationships. It is found that the proposed reef balls would provide some small environmental benefits to the Back Bay ecosystem. In Back Bay, there are currently no channel markers except in Jug Creek. Petitioner proposes to provide channel markers so that boats entering and leaving the marina would be guided away from shallower waters and away from seagrasses. Petitioner prepared a Marina Management Plan to govern the operation of the marinas, including the use of the slips. The management plan requires waste receptacles and restricts the use and storage of fuel and other chemicals. The plan also includes an education program to inform marina users about water quality and habitat protection. A harbor master would be employed to oversee the operation of the marinas. The harbor master would be responsible for assuring compliance with the requirements in the Marina Management Plan, including maximum boat drafts, fuel spill prevention and clean-up, proper use of sewage pump-out facilities, prevention of hull cleaning and use of deleterious boat cleaning products, and proper disposal of fish cleaning wastes. The harbor master's office would be located on the docks over Charlotte Harbor. The District and Intervenors are not impressed with Petitioner's proposal to employ a harbor master to control marina activities because the harbor master would not be at the marinas 24 hours a day and could not be present at both marinas at the same time. However, the employment of a harbor master would strengthen the use and enforcement of the Marina Management Plan. There would be educational signs for boaters with information about manatees and seagrasses. Petitioner proposes to install sewage pump-out facilities at both marinas that would be connected to the sewage collection system that will serve the upland development. The proposed project includes modifying the proposed upland residential development to add three residential units and a cul de sac, and enlarging a stormwater retention area to accommodate the associated stormwater impacts. Project Impacts Seagrasses It is usually difficult and sometimes impossible for seagrasses to re-colonize an area that has been prop-scarred. Seagrasses are the primary food of manatees, so an adverse impact to seagrasses is an adverse impact to manatees. The seagrasses to the east of the entrance of the proposed Charlotte Harbor marina are subject to disturbance from boats entering and leaving the marina. Boats approaching or departing from slips 1 through 5 are likely to cross these seagrasses from time to time. The water depth in the area of slips 1 and 2 is about minus five feet (mean low water) at the shallowest. For any seagrasses growing at minus five feet, and assuming the seagrasses are 18 inches in length, the clearance between the bottom of a boat with a 30-inch draft and the top of seagrasses would be 12 inches at mean low water. District and Intervenors are also concerned about the potential impacts to the seagrasses near the proposed Charlotte Harbor marina from large boats using slips 6 through 24, which could have a draft of five feet. About 260 feet to the east of Petitioner's pier is another pier, known as Captain Mac's Pier. There are seagrasses between the two piers. Boaters wanting to reach slips 6 through 24 would have to navigate past Petitioner's marina basin, into the area between Petitioner's pier and Cap'n Mac's pier, and then make nearly a 180 degree turn to enter the marina basin. The more persuasive record evidence indicates that this maneuver would sometimes be difficult for inexperienced or inattentive boaters even in relatively calm conditions. In windy and storm conditions, the maneuver would be difficult even for experienced boaters. If there are tethered buoys marking the limits of the seagrasses, as proposed by Petitioner, the buoys would add to the navigational challenge. The preponderance of the credible evidence shows that it is likely that boaters in vessels with drafts greater than 30 inches, when entering or leaving the marina basin, would sometimes cross the seagrasses and do damage to the seagrasses and other submerged resources. Another potential adverse impact to seagrasses is shading caused by structures. Shading caused by the existing fishing pier in Charlotte Harbor appears to have impeded the growth of seagrasses in some areas near the pier. The proposed breakwater for the Charlotte Harbor marina presents a relatively unique shading issue. Petitioner did not adequately demonstrate that shading from the proposed structures in Charlotte Harbor would not adversely affect seagrasses. The District and Intervenors contend that the proposed project would also cause adverse impacts to seagrasses in Back Bay. However, because Petitioner has reduced the numbers of slips in Back Bay and eliminated the boat ramps, the boat traffic in Back Bay should be reduced. Furthermore, Petitioner would restrict boat drafts and mark a channel to guide boaters to deeper waters and away from seagrasses. Therefore, the proposed project would likely reduce the risk of damage to seagrasses and other submerged resources in Back Bay. The District and Intervenors describe Petitioner's proposal to install channel markers in Back Bay as too "tentative" because there is another developer that has proposed to install channel markers and Petitioner's proposal is to install the markers if the other developer does not. However, the details of the channel marking are in evidence. If the channel marking is made a condition for construction of the proposed project, it can be considered a part of the reasonable assurance of compliance with relevant permitting criteria. No specific evidence regarding the general health and value of the seagrasses in Back Bay was presented. The seagrasses in Back Bay are not designated as an RPA. There was no evidence presented that there is soft coral or other submerged resources in Back Bay. Therefore, the reduced risk of harm to the seagrasses in Back Bay does not offset the potential harm that the proposed project would cause to the seagrasses and other submerged resources in Charlotte Harbor. Manatees Petitioner agreed to comply with all of the conditions recommended by the Florida Fish and Wildlife Conservation Commission related to the protection of manatees: In order [to] ensure a minimum clearance of 12 inches above the top of seagrass so as to avoid damage located in the project ingress/egress route, the maximum draft, including propeller(s), for vessels associated with slips 1-5 in Charlotte Harbor shall be 30 inches. The Standard Manatee Conditions for In- Water Work (revision 2009) shall be followed for all in-water activity. Handrails shall be constructed and maintained along the access pier and the landward side of the terminal platform to prevent mooring outside of the designated slip areas. The Permittee shall develop and implement a Florida Fish and Wildlife Conservation Commission (FWC)-approved marina educational program prior to slip occupancy. The Permittee shall develop this educational program with the assistance of FWC, and FWC shall approve this education plan prior to its implementation. The program may include (at a minimum) the posting of permanent manatee educational signs and the display of brochures in a prominent location. The educational program must be maintained for the life of the facility. The [Permittee] shall install and maintain seagrass marker buoys as depicted in the site plan for the docks in Charlotte Harbor. The buoys must be permitted by the U.S. Coast Guard and the Florida Fish and Wildlife Conservation Commission's Boating and Waterways Section, and maintained for the life of the project. The [P]ermittee shall provide bins for the disposal of or recycling of monofilament line or other used fishing gear. The [P]ermittee shall also provide educational signs encouraging the use of these bins. Larger boats are generally more lethal in collisions with manatees because there is usually more momentum involved. Greater momentum generally causes deeper propeller cuts and other serious physical injury. Slips 6 through 24 in the Charlotte Harbor marina would accommodate boats of greater size (up to five-foot draft) than would have used the slips that would be eliminated in Back Bay, creating some small, unquantified additional risk of increased injury or death to manatees in Charlotte Harbor and other area waters. Lee County reviewed the proposed project against the Lee County Manatee Protection Plan and scored the project as "Preferred." The factors that the County considered in scoring the project were not explained. The reduction of boat traffic in Back Bay that would result from the eliminating boat slips and removing the boat ramps, and the marking of a channel away from seagrasses in Back Bay, would reduce the current risk to manatees using Back Bay. However, that reduction of risk is offset by the increased risk of injury to manatees associated with the addition of 17 larger slips in the Charlotte Harbor marina, the potential for collisions with any manatees foraging in the seagrass near the Charlotte Harbor marina, and the potential loss of seagrasses from boat impacts and shading. The overall effect of the proposed project on manatees would probably be negative. Water Quality The District and Intervenors contend that the proposed project would cause additional pollution associated with boating activity and, therefore, would violate the water quality standard applicable in Outstanding Florida Waters that ambient water quality cannot be degraded. However, Petitioner would reduce the total number of boats that could operate out of the marinas and would implement a number of prohibitions and other management practices that would reduce the potential for pollution when compared to the current situation. There was no evidence presented to quantify the pollution that might now be occurring as a result of the absence of pump-out facilities at the marinas, or the presence of related pollution in Charlotte Harbor or Back Bay. However, it was undisputed that the availability of pump-out facilities is generally a benefit for water quality. Petitioner has not indicated where the sewage pump-out facilities would be located. Although this is a relatively minor issue, the location of these facilities can affect the potential for pollution and, therefore, it is reasonable for the District to require this information before the ERP can be approved. Although the District and Intervenors contend that insufficient information was presented regarding flushing characteristics in Charlotte Harbor, that contention is inconsistent with their claim that strong winds, waves, and tidal forces that occur in this area of Charlotte Harbor would cause shoaling and scour at the breakwater. There is sufficient evidence that the Charlotte Harbor marina would be well flushed. An issue was also raised about the potential for turbidity problems in Back Bay caused by disturbance of the silty bottom by boats using the Back Bay slips. However, the reduction of the number of boats that would operate out of the Back Bay marina, the marina management proposals, and the channel marking would likely reduce such incidents in Back Bay. As discussed above, some small water quality benefits to Back Bay would be realized by the reef balls and the elimination of the canal. The overall effect of the proposed project would be to reduce the potential water quality impacts associated with the marinas, resulting in some small net improvement to the ambient water quality of the Pine Island Aquatic Preserve. Shoaling and Scour Shoaling is generally the accumulation of unconsolidated sediments that occur because of their movement by hydrodynamic forces of water flow, waves and currents. Scour is a type of erosion that occurs when current forces, when moving around a structure, push sediments away. Petitioner's expert, Hans Wilson, testified that it would take a relatively extreme amount of wave energy to create scour at the bottom of the breakwater. He said that the proposed breakwater was similar to one used at Royal Palm Yacht Club in Charlotte Harbor, which has not caused shoaling or scour. Robert Brantly, of the Department of Environmental Protection, believes that the proposed breakwater could cause shoaling and scour. While not agreeing with Mr. Brantly's concern, Petitioner offered to place reef balls at the base of the breakwater to further dissipate wave energy. Petitioner's evidence on this issue lacked much detail, but the evidence offered by the District was speculation -- Mr. Brantly thought there might be a problem and wanted to see more information. The District failed to rebut Petitioner's prima facie case that the breakwater would not cause shoaling or scour. Public Uses The District and Intervenors contend that the proposed project would reduce access by the general public to the aquatic preserve because the boat ramps would be eliminated and the fishing platform would be smaller than the area now available to the public on the fishing pier. The evidence shows some small reduction in public access to the aquatic preserve would likely result from the proposed project. Fill The District and Intervenors claimed for the first time in their Joint Proposed Recommended Order that the proposed breakwater for the Charlotte Harbor marina is prohibited fill. Florida Administrative Code Rule 18-20.004(1)(c) prohibits "filling waterward of the mean or ordinary high water line." "Fill" is defined in Rule 18-20.003(27): "Fill" means materials from any source, deposited by any means onto sovereignty lands, either for the purpose of creating new uplands or for any other purpose, including the spoiling of dredged materials. For the purpose of this rule, the placement of pilings or riprap shall not be considered to be filling. The District claims that the breakwater is "clearly prohibited" and that no additional factual evidence needs to be presented to determine the issue. However, although it is clear that the rule prohibits the deposition of fill materials such as dirt or sand into the water, it is not clear what other activities are prohibited by the rule.3/ Docks and marinas are clearly allowed by the aquatic preserve rules. Whether the breakwater is a piling structure is not answered by the record evidence. Evidence regarding the practices of the Board of Trustees, the Department of Environmental Protection, and the District in the interpretation and application of the rule is also absent from the record. Therefore, even if the issue had been timely raised by the District and Intervenors, the record evidence is insufficient to prove their claim.
Recommendation Based on the foregoing Proposed Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District deny the ERP and Lease requested by Petitioner. DONE AND ENTERED this 9th day of November, 2010, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 2010.
Findings Of Fact Harbor Course South is a one hundred and seventy two lot real estate development which is a portion of the Ocean Reef Club located at the extreme northern end of Key Largo, Monroe County, Florida. The Harbor Course South property was acquired in approximately 1964 along with over 1200 acres of adjoining property for approximately 1.5 million dollars. Driscoll Properties, Inc. ("Driscoll"), a Florida Corporation, is the developer of Harbor Course South. Driscoll Foundation, Inc., (the "Foundation") is a non-profit Florida corporation which owns a portion of the Harbor Course South property. (Driscoll and the Foundation are collectively referred to as the "Intervenors" or the "Permittees.") The Ocean Reef Club is a one thousand two hundred unit development encompassing approximately eight hundred acres including at least two eighteen hole golf courses, a marina and an air strip. Nine holes of golf are located in Harbor Course South. These nine holes were leased to the Ocean Reef Club in 1974-1975 pursuant to an agreement providing for creation of golf course lots and lake-front lots in Harbor Course South. The nine holes of the golf course located in Harbor Course South were in place by at least 1978 and have been in use since that time. In order to install those nine holes, some roads were cut through the property and the lakes were dredged. Thirty-eight of the one hundred and seventy-two lots in Harbor Course South were originally platted in 1978 or 1979. These thirty eight lots are referred to as Section 1 of Harbor Course South. All of lots in Section 1 have been sold to individual purchasers for an average price of $34,210.00 per lot. The thirty-eight lots in Section 1 were all sold prior to 1988. In approximately 1979, some roads were cleared and paved on the Harbor Course South property in order to provide access to the thirty-eight originally platted lots in Section 1. A number of the lots in Section 1 have been permitted for construction by Monroe County and houses have been constructed on several of them. No individual lot owner in Section 1 has been denied a permit for clearing at least some of his land for a homesite. Both the United States Fish and Wildlife Services ("U.S.F.W.S.") and the Florida Game and Fresh Water Fish Commission (the "Commission") have determined that the clearing and/or development of the lots in Section 1 will not require permits for the taking of endangered or threatened species or their nests. In 1985, the Intervenors, in conjunction with the Ocean Reef Club, sought a determination as to the extent of their vested development rights with respect to the Harbor Course South property by initiating a vested rights hearing before Monroe County. These proceedings were initiated under Chapters 380 and 120, Florida Statutes and resulted in a Joint Stipulation on February 23, 1988 recognizing that the Intervenors have vested rights to develop the Harbor Course South plats. (The Joint Stipulation is referred to as the "Vested Rights Determination.") The Vested Rights Determination recognized that the Intervenors and the Ocean Reef Club had incurred obligations and expenditures based upon the approval of the master plan for development of Ocean Reef in 1977 in accordance with the then-existing regulations of Monroe County. The expenses and improvements upon the property included the construction of roadways, water main extensions, medical facilities, and golf courses. As a result of these expenditures, the Vested Rights Determination established that the Intervenors were authorized to continue development under the master development plan for the Ocean Reef Club, notwithstanding the enactment of a comprehensive land use plan and development regulations by Monroe County on September 15, 1986. No appeal of the Vested Rights Determination was filed by the Florida Department of Community Affairs or any other party. The remaining one hundred thirty-four lots in Harbor Course South were subdivided into three plats in 1986. These plats have been designated Ocean Reef Plat Numbers 17, 18 and 19 (also referred to as Sections 2, 3 and 4 respectively of Harbor Course South.) The Intervenors were not required to obtain a permit from the U.S.F.W.S. or the Commission prior to subdividing and/or selling lots of the Harbor Course South property. Most of the infrastructure for development of Plats 17, 18 and 19 is in place. Paved roads were completed in 1987-1988. The electrical lines and sewer lines are in place and operational in all three plats. The water lines are in place and connected in Plat 17. The waterlines are also in place, but not connected, in Plats 18 and 19. The total area of Sections 2, 3 and 4 of Harbor Course South is 134.09 acres. The remaining one hundred thirty-four lots occupy approximately 53.66 acres of this total. The lots in the area are priced at an average of $127,000 each. The Intervenors have begun selling the lots in Plat 17 (Section 2 of Harbor Course South). This plat consists of twenty-five lots. No competent substantial evidence was offered to establish the exact number of lots sold or houses constructed in this area, but it appears that ten to twelve lots were sold between July 1, 1989 and December 13, 1989. At least one house has been constructed on this plat and three building permits are pending before Monroe County. Prior to selling the lots in Plat 17, the Intervenors reached an informal agreement with the U.S.F.W.S. and the Commission as discussed in more detail in Findings of Fact 33 below. In accordance with that agreement and because there was no indication of the presence of endangered or threatened species on these lots, it was determined that none of the lots sold in Plat 17 would require the issuance of a permit from the Commission before land clearing could take place. The sales of the lots in Plat 17 were not completed until after the issuance of a Proposed Permit by the Commission for the "incidental taking" of endangered and threatened species with respect to the entire Harbor Course Property. (This Proposed Permit is discussed in more detail in Findings of Fact 44.) After the Proposed Permit was issued and this challenge was filed, the titles to the lots sold in Plat 17 were transferred to the purchasers. As indicated above, some of these lot owners have proceeded with the development of their property without the need of a permit from the U.S.F.W.S. or the Commission. None of the lots in Plats 18 and 19 (Sections 3 and 4) have yet been offered for sale. The natural vegetation of North Key Largo, including the Harbor Course South property, consists largely of tropical hardwood hammock. The quality of the vegetation varies widely throughout the area. Development of the Ocean Reef Club has largely supplanted the hardwood hammock in that area. The golf course which is located on the Harbor Course South property was placed in the midst of the hammock. The golf course and the infrastructure for development of Harbor Course South have fragmented the hammock in Plats 17, 18 and 19. The hardwood hammock of North Key Largo is a unigue flora to North America, being extremely tropical in character. It is characterized by vegetation more commonly found on the tropical islands of the Carribean and is different from the tropical hammocks of mainland South Florida because of a difference in hydrology, i.e., the Florida Keys are substantially drier and have a lower water table. The hammock of North Key Largo has a very high species diversity with one hundred and five species of trees and shrubs and fifteen species of woody vines in the hammock vegetation. The ecology of a hardwood hammock is cyclical. Over the years, the hammock has demonstrated its ability to regenerate naturally. Thus, while much of North Key Largo was used as agriculture land in the late nineteenth and early part of the twentieth century, the hammock has recovered in those areas where it has been allowed to naturally regenerate. The species of plants in the hardwood hammock are well-adopted for colonizing. The trees are "good at getting their seeds into places where they will grow." Many of the species of hammock trees and shrubs have fruits that are attractive to birds and some animals such as raccoons. These animals, birds, and raccoons eat the fruit, do not digest the seeds, but pass them in their fecal material which helps spread the vegetation. Tree growth in a young hammock is initially rapidly vertical before spreading out to provide larger coverage. A mature hammock provides a "closed canopy" of branches which affords protection and transportation for many animals including woodrats and cotton mice. As the hammock matures, there is an accumulation of humis and leaf litter on the ground beneath the trees. This humis layer serves as a seed bed for new growth and accumulates over the years. The humis layer is an important factor in assessing the quality of a hammock as habitat for endangered species. It takes decades for a hammock to fully mature to the point that it provides habitat and food sources for woodrats and similar creatures. Because of the biological richness of the hardwood hammock, as well as to protect the off-shore coral reefs from the detrimental effects of run-off from development, the State of Florida, through the Conservation and Recreational Land Acquisition program, ("CARL") has designated much of area of North Key Largo at the top of the acquisition priority list. The area slated for acquisition under the CARL program extends approximately twelve miles from the point where U.S. Highway 1 enters Key Largo northeastward to the southern boundary of Harbor Course South. The State of Florida has already acquired large tracks of North Key Largo under the CARL program. These tracks include a large portion of the land on the east side of State Road 905 from Port Bougainville to the southern border of the Ocean Reef Club (Harbor Course South.) Moreover, the Foundation is currently negotiating with the State regarding the acquisition of approxiately twelve hundred acres immediately adjacent to Harbor Course South. The federal government has established the Crocodile Lake National Wildlife Refuge which embraces most of the land lying west of State Road 905 from Card Sound Road (near and west of the Ocean Reef Club) south to Lake Surprise, a distance of approximately twelve miles. In sum, a large portion of the property in North Key Largo outside the Ocean Reef Club and Harbor Course South does not have vested development rights. A vast majority of this property is, or will likely become in the near future, publicly owned for conservation purposes. Thus, large quantities of high quality tropical hardwood hammock habitat have been, or are in the process of being, acquired in the immediate vicinity of the Harbor Course South property. The hardwood hammocks of North Key Largo are inhabited by certain endangered and threatened species. The Commission has the authority to determine endangered species within the area of its jurisdiction under the Endangered Species Act of 1973, 35 U.S.C.A. 1531, et seq. The Key Largo woodrat (neotoma floridana smalli) and the Key Largo cotton mouse (peromystus gossypinus allapaticola) are animals which can be found in the secondary growth and mature tropical hardwood forests of North Key Largo. Both the woodrat and cotton mouse as well as the Schaus' swallowtail butterfly (heraclides aristodemus ponceana,) have been listed as endangered species in Rule 39-27.003, Florida Administrative Code. The hardwood hammock of North Key Largo also serves as a habitat for the Eastern Indigo snake (drymarchon corais couperi), which has been listed as a threatened species by the Commission pursuant to Rule 39-27.004, Florida Administrative Code. Rock piles, tree roots, mounds, piles of sticks, holes in the rock substrate, holes in the humis layer beneath the trees and similar hiding areas all serve as nests or "refugia" for the woodrat. A mature hammock provides an ideal habitat for the woodrat. Destruction of the habitat of the woodrat has been a key factor in the woodrat becoming an endangered species. The Key Largo cotton mouse occupies much of the same habitat as the woodrat. Although the density of the population has not been established, there is no dispute that some portions of the Harbor Course South property are populated with woodrats and cotton mice. The quality of the habitat varies significantly throughout the property. There is only limited evidence of the presence of the Schaus' swallowtail butterfly on the Harbor Course South property. There have been a few citings of the species in the vicinity of Harbor Course South, but it does not appear that this property is an important habitat for the Schaus' swallowtail butterfly. There is no specific evidence of the presence of the Eastern Indigo snake on the subject property. Before a lot owner in Harbor Course South can clear his homesite, the Monroe County Code requires the owner to secure a habitat analysis which must be prepared by an accredited biologist approved by the County. That analysis determines the quality of the hammock on the lot, which in turn determines the amount of vegetation which the County will allow the lot owner to clear. This requirement was in place for the first thirty eight lots that were originally platted in Section 1. Under the existing Monroe County Land Clearing Regulations, only twenty percent of a lot with high quality tropical hardwood hammock can be cleared; forty percent of a lot with medium quality hammock can be cleared and forty to eighty percent of a lot with low quality hammock can be cleared. As of the date of the hearing in this case, all lot owners in Harbor Course South who have applied for a building permit were allowed to clear at least a portion of the lot for construction of a homesite. It does not appear that any lot owner was permitted to clear more than forty percent of his lot. As indicated above, no permits from the Commission or the U.S.F.W.S. were necessary in order to clear the lots and commence building on the thirty- eight lots in Section 1. Likewise, the Commission determined that the habitat quality in the area of Plat 17 was sufficiently low that a permit would not be required for development on that Plat. However, the Intervenors were aware of the presence of endangered and threatened species in this area. Around the time that the Vested Rights Determination was obtained, the Intervenors entered into discussions with the U.S.F.W.S. and the Commission in an attempt to obtain an overall permit for Plat 17, 18 and 19 with respect to endangered and threatened species. During these negotiations, the Intervenors received permission from the U.S.F.W.S. and the Commission to proceed with development in Plat 17 even before a permit was issued. The Commission determined that the Intervenors could proceed with the development of Plat 17 without obtaining a permit because of the relatively low habitat value of most of the parcel and the apparent absence of any endangered species in this area. As part of the negotiations regarding this authorization, the Intervenors agreed to seek a permit with respect to the remaining one hundred and nine lots in the subdivision. The negotiations were prompted, at least in part, by an agreement between the U.S.F.W.S. and the Florida Keys Aqueduct Authority (which provides water to the area) that established certain requirements before water connections could be made to new residential property in North Key Largo. This agreement requires that, before water connections can be made to an area inhabited by endangered or threatened species of wildlife, a permit must be obtained by the U.S.F.W.S. During the negotiations, the U.S.F.W.S. indicated to the Intervenors its desire to address the conflict between the endangered species on North Key Largo and development interests in "one big conflict rather than having to handle it land owner by land owner." The Commission agreed with this approach feeling it could better protect the subject species through required mitigation by the developer which would probably not be possible or practical when dealing with individual lot owners. Although the Intervenors questioned the legality of the requirements imposed as a result of the agreement between the U.S.F.W.S. and the Florida Keys Aqueduct Authority, the Intervenors decided to try and work with both the federal and state agencies and attempt to meet their concerns rather than engage them in a legal battle over their authority to impose mitigation requirements on new developments. A permit from the U.S.F.W.S. or the Commission is not necessary for the Intervenors to sell the lots in Plats 17, 18 and 19. The Intervenors sought permits from the Commission and the U.S.F.W.S. in a good faith attempt to cooperate with the agencies responsible for enforcing the Endangered Species Act and to eliminate obstacles to the clearing and development of the lots by individual lot purchasers. The U.S.F.W.S. has developed specific rules and procedures for protecting the habitat of endangered species and issuing "incidental take" permits for activities that may impact on the species or their habitat. The Commission has not adopted any rules that specifically protect the habitat of endangered species other than a prohibition against molesting or harming their nests. Similarly, the Commission has no specific rules regarding "incidental take" permits. The Intervenors filed an application with the U.S.F.W.S. on March 13, 1989 seeking a permit for covering all of Plats 17, 18 and 19. Attached as exhibits to the application were copies of the pleadings from the proceedings whereby Intervenors received their Vested Rights Determination, a summary of a proposed revegetation project to be undertaken in connection with the permit; the Harbor Course Subdivision construction plans together with construction details; a report prepared by Dr. Earl Rich regarding North Key Largo endangered rodent preservation measures; a report by Dr. Jack Stout setting forth the results of woodrat and cotton mice trapping in the subject area; and an aerial photograph of the subject area. The application sought a "permit for the incidental taking of endangered species in connection with completion of development of a residential subdivision and related site improvements surrounding an existing golf course. The area to be cleared may include habitat for the Key Largo woodrat, cotton mice, or Schaus' swallowtail butterfly." A permit has not been issued by the U.S.F.W.S. with respect to Plat 17, 18 and 19. The Intervenors' application for a permit has been transmitted to the Commission. It is not clear how the application filed with U.S.F.W.S. came before the Commission for consideration. The Commission has no direct agreement with the Florida Keys Aqueduct Authority regarding water connections. The Commission's authority for asserting jurisdiction over the development is not based on any existing rules or statutes regarding "incidental take" permits. The U.S.F.W.S. has apparently agreed to defer to the Commission with respect to the issuance of a permit for the Harbor Course South development. The U.S.F.W.S. has been kept abreast of the negotiations and terms of the Proposed Permit and has suggested various changes during the negotiation process in an effort to coordinate the conditions of the two permits. By letter dated July 24, 1989, the Commission set forth conditions for the issuance of a permit to the Intervenors which would authorize them to take the nests and habitat of woodrats and cotton mice, to harm or molest Schaus' swallowtail butterflies, and to take Eastern Indigo snakes, "incidental to land clearing operations and building construction of single family and cluster homes" on Plat 17, 18 and 19. The permit does not authorize the killing of woodrats, cotton mice or Schaus' swallowtail butterflies. The Commission stated that the permit was being issued pursuant to Rules 39-27.002(1) and 39- 27.002(2), Florida Administrative Code. (The July 24, 1989 letter setting forth the conditions for the permit will be referred to as the "Proposed Permit.") The Proposed Permit states that the permit will inure to the benefit of the Intervenors and their "successors in title or their agents." In other words, purchasers of lots from the Intervenors would be covered by the Permit and no additional permit would be necessary to take the nests and habitat of woodrats and cotton mice, to harm or molest Schaus' swallowtail butterflies, or to take the Eastern Indigo snakes incidental to the development of their lots. The terms and conditions of the Proposed Permit were prepared after several meetings and discussions between Commission personnel, the Intervenors' expert biologist Dr. Stout and the developers themselves. The Proposed Permit requires both on-site mitigation and off-site mitigation. The on-site mitigation requires the permanent dedication in the form of a conservation eastment of 5.94 acres in Tract E of Harbor Course South, Section 3 ( Ocean Reef Plat 18) to provide perpetual protection for the habitat for the species listed in the Proposed Permit. The exact provisions of this conservation easement are not speficified in the Proposed Permit and were not established in this proceeding. The Permit also requires specific habitat enhancement of Tract E by planting torchwood seedlings as a means to attract Schaus' swallowtail butterflies in the area of an old service road on Tract E, revegetation in accordance with specific planting instructions of another road that bisects Tract E and the placement of ten piles of rocks and logs of at least four cubic yards each in the old roadway. A ten thousand dollar surety bond or letter of credit is required to ensure compliance with the planting and debris placement provisions within three years of the date of the issuance of the permit. The Intervenors had intended to subdivide Tract E into ten additional lots to be sold as homesites. While Petitioner contends that the development of lots in Tract E may have been prohibited because of the high quality hammock on some of these lots, the evidence established that most, if not all, of the lots in Tract E will be sold and developed as individual homesites if the area is not set aside as a conservation area pursuant to the terms of the Proposed Permit. The establishment of a conservation area in Tract E will help preserve a continuous habitat area for the endangered species. Tract E is adjacent to a large track of property that has been or is in the process of being acquired by the state for conservation purposes. By requiring the Intervenors to provide rubble and debris piles and revegetation on Tract E, the Proposed Permit will further enhance the quality of the habitat in this area. The Proposed Permit requires the existing dirt road which currently cuts through Tract E to be closed and revegetated. There is no requirement that the fill installed for the road bed be removed. While Petitioners contend that such a condition is necessary for the development of this tract into high quality habitat for the endangered species, the natural regeneration of the hammock will be enhanced by the revegetation plan and this area will ultimately develop into high quality habitat. Planting torchwood in the area of Tract E, which is close to the golf course and areas that will be developed, may actually harm the survival potential of the Schaus' swallowtail butterfly. The butterflies are extremely susceptible to chemical insecticides. Planting torchwood in areas where insecticides will be used may create an attractive nuisance to the butterflies. Therefore, the requirement for planting should be moved to an off-site area that is remote from the development to guard against this problem. The area of the old service road should be revegetated pursuant to a schedule similar to the one used for the other revegetation area. Off-site mitigation is to be provided through the enhancement of hammock succession on five, one acre segments of the right-of-way of Old State Road 905 or an alternative similar site approved by the Commission with an area of enhancement to equal five acres. The amount of off-site mitigation was baseed upon a calculation of the amount of road surface in Harbor Course South. The Proposed Permit requires the old road bed and asphalt to be removed and the road restored to original grade. The enhancement of the site is to be accomplished by planting tropical hardwood vegetation from a specified vegetation list, adherence to specific planting instructions governing phase of planting, survival rate and watering conditions, placement of twenty rock and debris piles, (each four cubic yards in volume), removal of exotic plant species semi-annually for a five year period and removal of weedy species of trees and shrubs in an area within a radius of three feet around each planted tree over a similar time period. Four lots in Plat 18 are to be set aside as an assurance against failure to complete the planting or failure to provide an alternative site. A surety bond or letter of credit in the amount of $50,000.00 is also required to ensure compliance with the planting requirements. Old State Road 905 is currently owned by the Florida Department of Transportation. There are plans to convey this right-of-way to Monroe County which in turn plans to abandon the road, remove the road bed and asphalt, and cooperate with the restoration. Thus, it appears that Monroe County may assume responsibility for removing the asphalt road along Old State Road 905. The Proposed Permit requires the Intervenor to ensure that this removal is accomplished. Old State Road 905 is utilized by some utility companies to service their utility lines. At this point, it is not clear whether the utility easements will preclude the revegetation required by the Proposed Permit from becoming effective. The Proposed Permit provides adequate procedures for selecting alternative sites in the event that Old State Road 905 can not be effectively used for a mitigation area. With respect to both the on-site and off-site mitigation, the revegatation requirements in the Proposed Permit are reasonably related to the Commission's goal of enhancing the long term survival of woodrats and cotton mice on North Key Largo. While the diversity of the flora in a natural hammock is greater than that called for in the proposed mitigation, the revegetation will accelerate the development of the mitigation areas into high quality habitat for the endangered species. While a hardwood hammock has a natural capability to regenerate on its own, the regeneration can be enhanced by planting trees in a scarified area. The revegetation required pursuant to the Proposed Permit will be placed mainly in corridors replacing old road ways. This placement will hasten the redevelopment of these areas into high quality habitat. The Intervenors are required to ensure a two year, seventy five percent survival rate for trees planted. Any trees that die are to be replaced by the species with the highest survival rate. The evidence established that the most effective way to enhance the revegetation process is to plant those species of trees that are slow to seed or that are relatively rare. It is not clear whether the planting schedule and sucession procedures attached to the Proposed Permit have taken this fact into consideration. While the diversity of species detailed in the attachments to the Proposed Permit could be reallocated between species to further enhance the revegetation process, the proposed schedules are adequate except for the requirement of planting torchwood on Tract E. Torchwood is an important habitat and food source for Schaus' swallowtail butterflies and should not be placed in an area where chemical insect control efforts are likely. As indicated above, the Proposed Permit requires a survival rate of 75% for the planted trees within two years of the initial planting. The Intervenors are also required to inspect the revegetation sites semi-annually for five years and to remove invasive exotic plants. In addition, Intervenors are required to remove weeding trees, shrubs and vines within a radius of 3 feet around each planted tree for a period of five years. Semiannual reports must be filed with the Commission for the first five years after planting to advise as to the presence of such species. There are no enforcement mechanisms in the Proposed Permit to ensure that the monotoring and removal of exotic species requirements will be completed. The bond requirements of the Proposed Permit only apply to the plantings and installation of debris piles. The requirement for removal of exotic species will help ensure that those exotic species cannot invade the mitigation sites and prevent or retard the natural hammock regeneration process. This requirement will enhance the development of a high quality hammock which will hopefully provide habitat for the endangered species. It is important that an enforcement mechanism be provided in the permit with respect to this requirement. The State Department of Natural Resources has a program for the removal of exotic plants from state lands. DNR is currently preparing a major management plan for North Key Largo and DNR employees are currently involved in removing exotic species from the right-of-way of Old State Road 905. The requirements of the Proposed Permit will augment the on-going efforts of DNR and free-up resources to focus on the removal of exotic species in neighboring areas. The Proposed Permit does not impose qualifications on the individuals who will be responsible for removing the exotic species. The permit should require the Intervenors to retain qualified people to identify the exotic species. The spacing, watering and survival rate aspects of the revegetation plan were based, in part, upon the experiences with revegetation at a previous mitigation site (the Budd Post site discussed below) and represent a reasonable effort for enhancing the revegetation of the hammock. While there is no requirement that the planted trees survive longer than two years after the initial planting, the 75% survival requirement during the first two years provides reasonable assurance that the revegetation will be done properly and with a high probability of success. General Condition 1 of the Proposed Permit indicates that the Commission will review the Permit periodically and "may initiate enforcement or revocation action for any violation of the Permit Conditions by the Permittee, its agents, its employees, or representatives." There is no provision for enforcement or revocation of the permit for violations of the permit conditions by purchasers of lots or other third parties who obtain title to the property from the Intervenors. This enforcement mechanism will become essentially obsolete if and when the Intervenors transfer their interests in the property. General Condition 2 of the Proposed Permit indicates that the Permit is valid "only for the specific processes and operations applied for and indicated in the approved drawings or exhibits." This provision is meaningless since there are no "specific processing operations applied for" and there have been no approved drawings or exhibits other than the planting schedules which are part of the revegetation aspect of the mitigation requirements. There are certain provisions of the Proposed Permit which are vague and/or ambiguous. Special Conditions 4(b) indicates that the requirements of Specific Condition 3(j) are applicable to the restoration of Tract E. Special Condition 3(j) requires the placement of twenty debris piles. However, Specific Condition 4(c) only requires a placement of ten such piles in Tract E. This ambiguity should be clarified. Special Condition 4(d) indicates that there are utility lines in the revegetation area which will have to be maintained. Under this provision, the applicant is allowed to maintain, using hand tools only, a clear path of up to eight feet wide over each utility line. It is not clear from the evidence presented how many utility lines are involved and whether a separate eight foot area can be cleared for each utility line. If several separate utility lines are involved, this provision could effectively prevent the regeneration of the area into high quality hammock habitat. Free ranging domestic pets, especially cats, are a significant threat to the endangered species. One of the conditions imposed by the Proposed Permit would prohibit free ranging pets within the subdivision pursuant to a subdivision covenant to run with the land. The specific wording of such a covenant has not been provided. The Proposed Permit does not provide for any enforcement mechanism with respect to this covenant. Some enforcement mechanism must be provided in order for this condition to provide any effective protection for the endangered species. The Proposed Permit requires the Intervenors to hold four lots from sale until the off-site mitigation requirements have been met. If the planting is not accomplished within a five year period, the Intervenors are required to include these four lots as part of the conservation easement in Tract E. The lots being withheld for sale have an average market value in excess of $120,000 per lot. Thus, this requirement places a major incentive on the Intervenors to comply with the terms of the Proposed Permit. However, it is not clear whether this enforcement mechanism can be applied to the provisions of the Proposed Permit regarding the removal of exotic species. The Proposed Permit does not allow the Intervenors to kill any member of the endangered species. The Proposed Permit does allow the "incidental taking" of the threatened species (Eastern Indigo snake). The term "incidental taking" is interpreted by the Comimssion to include the killing of a member of the threatened species which is incidental to the conduct of otherwise lawful activities. The Commission contends that it has the jurisdiction to issue such an "incidental take" permit for an endangered species under appropriate conditions and mitigation requirements. The Commission did not believe an incidental take permit was necessary with respect to the endangered species on this site because the Commission felt that the habitat quality was relatively low and the likelihood of encountering a member of the species at the site was also low. The evidence established that there is a possibility that some members of the endangered species, i.e., woodrats and cotton mice, will be killed during the development and building of the subdivision. While this possibility is speculative, the chances of such a killing can be minimized by incorporating further protections in the permit. The evidence did not indicate any likelihood that East Indigo snakes or Schaus' swallowtail butterflies will be killed incidental to land clearing and/or development of Harbor Course South. The U.S.F.W.S. requires a habitat conservation plan ("H.C.P.") before it will issue an incidental take permit. A habitat conservation plan committee was established by the Governor in 1985 to prepare an H.C.P. for the North Key Largo area. The goal of the Committee is to designate areas which would be suitable for development and areas which may be necessary for conservation. A Draft Habitat Conservation Plan has been prepared, but it has not yet been officially approved. Harbor Course South is outside the study area of the Draft Habitat Conservation Plan and therefore is not proposed as a conservation area. The framework and structure of the Proposed Permit reflects the Commission's desire to apply a comprehensive permitting approach to the Harbor Course South development rather than rely upon a lot-by-lot determination of jurisdiction with each individual lot purchaser at the time clearing or development activities are sought. The evidence established that there is insufficient indicia of woodrat or cotton mouse presence on a number of the lots in Harbor Course South. Thus, if a lot-by-lot approach was used, the Commission would not have the authority under its current rules to require a number of the individual lot owners to obtain a permit before land clearing. Without question, further fragmentation of the hammock will reduce the quality of the habitat for the endangered species. If a lot-by-lot permitting process is utilized, the owners of the lots that do not show any signs of the presence of woodrats or cotton mice would be able to clear to the maximum extent allowable under the Monroe County development ordinances. Such an approach would not halt the further fragmentation of hammock. By utilizing a comprehensive permit, the Commission can establish uniform standards for development and require stronger mitigative measures to offset the impact of development in the area on the endangered and threatened species. The approach is further justified in view of the Commission's determination that the Harbor Course South property is of only minimal importance as a habitat for the endangered and threatened species. See, Findings of Fact 80-81 below. In sum, land development and land clearing activities are likely to take place on the Harbor Course South property regardless of whether the Proposed Permit is issued. If the Commission utilizes a lot-by-lot determination of jurisdiction, a large portion of the lots on Harbor Course South would not be required to obtain a permit from the Commission because many of those lots do not have nests or any indication of the presence of the endangered species. Under these circumstances, the Commission would probably not be able to obtain comprehensive mitigation conditions and the habitat for the endangered species would be further fragmented with little or no mitigation. As noted above, the Commission has not adopted any rules setting forth its policies and procedures for issuing an overall blanket permit for the "incidental taking" of endangered species. Similarly, there are no formal guidelines adopted to establish when the Commission has jurisdiction over land- clearing activities. In determining whether to assert jurisdiction over a particular piece of property, the Commission looks for evidence of existing nests or habitat of an endangered species or the probability that a taking, killing or some other molestation will occur to a particular member of the species. In connection with the Proposed Permit, the Commission determined that it had the authority under Rule 39-27.002, Florida Administrative Code, to issue permits for clearing and development activities that molest the nests of endangered species. As discussed below, the Commission has issued only one prior permit for land clearing and development activities. That prior permit is was not timely challenged. No rules or standards have been promulgated by the Commission to set forth the mitigative requirements that can be imposed, if any, upon individual lot purchasers. An important factor in the Commission's decision to issue the Proposed Permit in this case was the Commission's determination that the overall quality of the Harbor Course South property as habitat for the endangered species was minimal. In determining that the Harbor Course South property was of minimal importance to the survival of the endangered species, the Commission took into consideration various reports on the sparse density of the population of the endangered species on the subject property. The Commission also took into account what it deemed to be inevitable future development as reflected in the Vested Rights Determination, the fact that the site was not designated for preservation in the Draft Habitat Conservation Plan, and the fact that the site was not part of the North Key Largo CARL acquisition project. Finally, the Commission considered that the site was already a highly fragmented tropical hardwood hammock as demonstrated by Landsat Thematic Mapper Classfied Satellite Imagery. The only previous instance in which the Commission has issued a permit to molest or harm the nests or habitat of endangered species pursuant to land clearing or development activities involved another residential sub-division in North Key Largo. In June of 1986, separate permits were issued by the U.S.F.W.S. and the Commission to the Nichols/Post Hendrix Corporation to destroy nests and habitat of the Key Largo woodrat and Key Largo cotton mouse. (The permit issued by the Commission in connection with this prior project will be referred to as the "Budd Post Permit.") The property covered by the Budd Post Permit is south of Harbor Course South. It lies approximately six miles south of the intersection of Old State Road 905 and Card Sound Road. That property consists of approximately ten acres of high quality hardwood hammock located within the project area of the North Key Largo Hammocks, CARL land acquisition program. Thus, the property was essentially surrounded by high quality tropical hardwood hammock. The Budd Post property is similar to the Harbor Course South property in that both areas run from County Road 905 east to the ocean and both tracts contain habitat suitable for use by endangered species. However, Harbor Course South is a lesser quality habitat than the Budd Post property because it is more highly fragmented and is bordered on the north by the highly developed Ocean Reef property. Overall, there was a significantly greater indication of the presence of the subject endangered species on the Budd Post Property than there is at Harbor Course South. The Budd Post Permit was the first of its kind issued by the Commission and was processed simultaneously and concurrently with the comparable federal permit from the U.S.F.W.S. As a condition to issuance of the Budd Post Permit, the Commission required the permittee to set aside a preservation area, build debris piles to encourage nesting of woodrats and cotton mice and plant vegetation off-site to mitigate the loss of hammock habitat. A condition of the Budd Post Permit required the permittee to trap and remove the endangered species during land clearing activities. A similar condition in the Proposed Permit would help reduce the likelihood of any killing of the endangered species. The results of the mitigation plan for the Budd Post Permit indicate that such a plan can serve to enhance the survivability of the endangered species by providing high quality habitat and accelerating the revegetation of scarified areas. A little more than two years after the mitigation plan for the Budd Post Permit was implemented, it appears that the efforts are achieving their intended results. Specifically, the plants that were planted as a result of the revegetation plan are flourishing and at least some of the debris piles have been colonized by woodrats. Thus, it appears a viable habitat has been created. There is no definitive method for determining the density of population of woodrats or cotton mice at a given site. In making its jurisdictional determination with respect to the Budd Post property, the Commission looked for the presence of stick nests, (which are widely presumed to be constructed by woodrats) as the primary jurisdictional indicator. Subsequent to the issuance of the Budd Post Permit, the Commission has recognized that stick nests are not the sole indicators of the presence of wood rats and the Commission now considers other factors as well. The U.S.F.W.S. requires a trapping study of woodrats and cotton mice as part of its permit application. The permittee for the Budd Post Permit provided the U.S.F.W.S. and the Commission with a "trapping report" prepared by Dr. Stout. The Intervenors also hired Dr. Jack Stout, who is a biologist and professor at the University of Central Florida, and a similar report was prepared for Harbor Course South. The same methodology was used to trap woodrats and cotton mice on both sites. Dr. Stout concluded that the Harbor Course South property had a low density population of woodrats and cotton mice. Dr. Earl Rich, a biologist and ecologist and a former professor at the University of Miami with extensive experience researching woodrat habitat on North Key Largo, also inspected the Harbor Course South property on behalf of the Intervenors. His inspection took place after the date of the Proposed Permit. He determined that the overall quality of the subject property as habitat for the endangered species was low because of the fragmented and uneven quality of the hammock. These qualities are largely attributed to the existing intrastructure and the golf course which winds throughout the subject property. Julie Hovis, a wild life biologist employed by the Commission, performed a site inspection report in connection with the application for the Proposed Permit. While not an expert on the endangered species, she was qualified to identify certain signs of the presence of the species. She found that there was some evidence that woodrats and cotton mice were present on the Harbor Course South property. She noted that the quality of the habitat varies greatly. Her inspection and conclusions were the basis for the Commission's assertion of jurisdiction over the subject site. Dr. Steven Humphrey and Dr. Numi Goodyear inspected the area on behalf of the Petitioners to determine the presence and/or density of the endangered species populations. While their studies find more evidence of the presence of wood rats and cotton mice on the subject property than the prior studies had indicated, they also conclude that the property is a mixed quality habitat for the endangered species. While there are some areas that appear to be high quality habitat, these experts recognize the fragmented character of the habitat and the effect of the golf course in disrupting the habitat and producing "islands of vegetation." The Goodyear and Humphrey studies confirm that the densities of the endangered species are lowest in areas where the hammock is highly fragmented. The Goodyear and Humphrey studies do not refute the Commission's conclusion that a significant number of the lots of Harbor Course South do not reflect sufficient indicia of the presence of the endangered species to allow the Commission to assert jurisdiction on all the property if a lot-by-lot permitting process was utilized. The Commission has concluded that the continuing development of Harbor Course South is inevitable. The Commission has also concluded that its authority over clearing of individual homesites is limited. In view of these conclusions, the Commission has attempted to enhance the survivability of the endangered species by imposing certain mitigation requirements on the Intervenors. The evidence has established that, assuming the development of Harbor Course South is inevitable, and the Commission lacks the authority to halt the development of Harbor Course South, the Commission's comprehensive approach to permitting will be more favorable to the survival potential of the endangered species than a lot-by-lot jurisdictional determination would be.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Game and Fresh Water Fish Commission enter a Final Order setting forth the terms and conditions for an Agreement with the Intervenors for a specific period of time as set forth in Paragraph 30 of Conclusions of Law, whereby permits will be issued for the incidental destruction and/or molestation of the nests and habitat of the subject endangered species in accordance with the terms and conditions of the Proposed Permit as modified in accordance with the provisions of Paragraph 32 of the Conclusions of Law above. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 17th day of October, 1990. J. STEPHEN MENTON 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 18th day of October, 1990.
The Issue The basic issue in Case No. 90-2403 is whether the application of the Petitioner, Ian G. Koblick, for a lease of sovereign submerged lands and an easement for an appurtenant previously filled area should be granted or denied. The Board of Trustees of the Internal Improvement Trust Fund propose to deny the application. The Intervenor, Izaak Walton League, opposes the application and supports the proposed denial. The basic issue in Case No. 91-0258 is whether certain action proposed by the Board of Trustees of the Internal Improvement Trust Fund regarding filled areas in John Pennekamp Coral Reef State Park affects the substantial interests of the Petitioner, Marine Resources Development Foundation.
Findings Of Fact Petitioner Ian G. Koblick is the record title holder of certain real property in Key Largo, Monroe County, Florida, located at 51 Shoreland Drive, where he owns and operates a for profit corporation known as "Koblick Marine Center" and a nonprofit corporation known as "Marine Resources Development Foundation." (MRDF) Petitioner purchased the property in the spring of 1985. Petitioner Koblick's attorney contacted the Division of State Lands on behalf of Petitioner for a sovereignty submerged land lease for two docks and an easement for an appurtenant filled area, the subject of DNR lease file #44001275, in the fall of 1984. As part of the application process, Petitioner's attorney submitted to Respondent's staff a survey of the proposed submerged lands lease area, which contained water depth information. The fill parcels known as "F-7" and "F-8," which are the subjects of the second petition, are not owned by either of the Petitioners. Petitioner has no deeds or conveyances to the lands in the proposed lease and easement area. Petitioner has been using the lands in the proposed lease and easement area continuously since 1985, without consent from the Respondents. At no time has there been any written assurance made by Respondent or its staff that a lease would be issued to Petitioner. The lands within the proposed lease and easement area lie within the boundaries of John Pennekamp Coral Reef State Park. On September 21, 1967, the Respondent Board of Trustees dedicated certain sovereignty submerged lands to the Florida Board of Parks and Historical Memorials. The effect of this dedication was to extend the boundaries of John Pennekamp Coral Reef State Park to the shoreline. The Florida Park Service, part of the Division of Recreation and Parks in the Department of Natural Resources, has continuously managed the Park since then. The Respondent Board of Trustees has not conveyed, alienated, or modified its interest in the lands within the proposed lease and easement area, except for one submerged land lease, #44-39-0784-5E, to Tahiti Village (a predecessor in interest to Petitioner) for a period of five years from August 1, 1978, through July 31, 1983. That lease was for a much smaller parcel of land than Petitioner's proposed lease area and was never renewed. When Petitioner Koblick purchased his property, the two docks and the filled parcel, "F-9", in the proposed lease easement area were already in place. The then existing docks were not those previously consented to by Respondent. After he purchased the property, Petitioner constructed catwalks on the docks and upgraded the electrical system on the fill area without permission from either the Board of Trustees or the Division of Recreation and Parks. Petitioner Koblick is not in possession of any permits giving consent to fill the filled area "F-9" in the proposed lease and easement area. The fill material at filled area "F-9" was placed there between 1964 and 1969, without the consent of the Respondents. Filled area "F-9" has riprap all along its outer edge and tip. This riprap area is currently habitat for a variety of marine plants and animals. Removal of all of the fill material at "F-9" would, of course, destroy that habitat and leave a barren area that might take many years to revegetate. A benthic community eventually would be created in the area from which the fill was removed. Filled area "F-9" also provides protection to the existing shoreline, which includes a seawall, and to a basin that is landward of "F-9." Removal of all of the fill material at "F-9" would reduce the protection to the shoreline and expose the seawall and other shore structures to erosion. Removal of the fill material at "F-9" down to the mean high waterline would not have any demonstrated environmental benefits, but would be a hazard to navigation because at high tide the remaining fill would be difficult to see. The majority of boats docked in the 18 slips in the proposed lease area pay slip rent to Koblick Marine Center. Only three MRDF boats are docked at the docks. A charter boat business, which leases out boats to the public, is also operated at the docks on the proposed lease area. The Intervenor, Izaak Walton League, Mangrove Chapter, is a not for profit Florida corporation which has as its purpose the protection of the state's soil, water, woods, and wildlife. A substantial number of Intervenor's members live near Pennekamp Park and use the park for recreational and educational purposes. Any activity which detracts from, or has a potential for detracting from, the purposes to which the Pennekamp Park is dedicated also detracts from or has a potential for detracting from the recreational and educational interests of the Intervenor's members who live near and use the park. Largo Sound is a manatee habitat. Manatees have been sighted in or near the proposed lease area. Activities in the proposed lease area, which include the discharge of pollutants and boat traffic to and from the docks, have a potential adverse impact on manatees, which are an endangered species. There are benthic communities in the proposed lease area under the mooring areas and where pilings are located. There is no way Petitioner can relocate the docks out of the benthic communities in the proposed lease area. The docks in the proposed lease area shade the benthic communities beneath them. Shading from boats at the docks in the proposed lease area, especially from boats used as residences that rarely leave the docks and from large vessels, damages the benthic communities. Boats docking in the slips in the proposed lease area have caused bare, scoured, concave spots beneath their bottoms. This is due to shading, propeller activity, and grounding of the vessels. Sea grasses and corals have been killed as a result. Boats docking in the proposed lease area have caused prop dredging or grounding damage to benthic communities and corals in Largo Sound, in the slips, just outside the slips, and in the canal adjacent to the proposed lease area. Petitioner Koblick has taken various steps to prevent or minimize the possibility of water pollution from the activities at the proposed lease area. These steps include discontinuing the sale of fuel at the subject docks and adopting strict rules prohibiting the discharge of any pollutants from boats docked at his facility, and prohibiting various activities that might be a source of pollution. These efforts notwithstanding, boats docking in the proposed lease area have discharged oil, pollutants, and bilge water overboard. Further, while water quality samples taken from the proposed lease area show good levels of dissolved oxygen and good levels of nitrates, water quality samples taken from the proposed lease area also reveal the presence of ammonia and pesticides, including endrinosulfan, endrin, and lindane, together with its isomers, at levels which exceed state water quality standards. 3/ Pollutants pose a threat of harm to benthic communities, corals, manatees, and other wildlife. Water depths in the slips and turning basin of the docks in the proposed lease area are shallower than minus four feet in some areas, ranging from minus 1.5 feet to minus 5.3 feet. Boats in those slips for the past five years have had drafts of more than 1.5 feet, some of them having drafts of 3 feet to 3 feet 8 inches. Boating related activities in the proposed lease area contribute to cumulative adverse impacts on Pennekamp Park. If boats were eliminated from the docks in the proposed lease area, the benthic communities would be likely to recolonize in approximately two years.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Board of Trustees of the Internal Improvement Trust Fund enter a final order to the following effect: Dismissing the petition in Case No. 91-0258 as moot; Denying Petitioner Koblick's application for a lease and easement; Ordering Petitioner Koblick to remove all docking structures located on the Respondent's lands; Ordering Petitioner Koblick to pay lease fees in arrears in the amount of $10,202.24; and Ordering that the fill material at filled area "F-9" not be removed. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 17th day of April 1992. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SC 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of April 1992.
