The Issue The issue in this proceeding is whether Respondent, Department of Military Affairs acted arbitrarily or capriciously when it awarded RFP-DMA-39 to Intervenor, Southeastern Archeological Research, Inc.
Findings Of Fact DMA is a state agency. However, it is required to comply with Army regulations pertaining to cultural resource management because of its federal alignment with the United States Army. Army Regulation 200-4 (AR 200-4) specifies Army policy for cultural resources management. DMA is required by AR-200-4 to develop and implement an Integrated Cultural Resource Management Plan (ICRMP). An ICRMP is an internal compliance and management tool that attempts to integrate the entirety of the cultural resources program with DMA’s ongoing mission activities. Prior to 2002, DMA had developed an ICRMP. The ICRMP developed by DMA was an extensive multi-part document outlining a five-year plan for DMA’s cultural resource preservation activities. The ICRMP set forth standard operating procedures for all the DMA’s cultural resource surveys. The ICRMP also identified past work completed on behalf of DMA which had been performed by SEARCH or work that was in progress that was being performed by SEARCH. The statements referencing SEARCH in the ICRMP do not indicate that SEARCH would be promised future work and do not demonstrate any bias by DMA in favor of SEARCH. Cultural resource surveys are required by the National Historic Preservation Act when federal funds are spent on any construction project. Such surveys are reviewed by each state’s historic preservation officer for use in that state's compliance with the various historic preservation acts, including the National Historic Preservation Act and the Interior Secretary's rules promulgated thereunder. A cultural resource survey is an examination of a particular area of land or a particular structure for evidence of significant prehistoric or historic activities or items, potential archaeological sites, the location of such activities or sites and an inventory of any such prehistoric or historic areas or items which are found. A cultural resource survey generally includes a review of archeological or historic documentation and information, preparation of archeological, environmental and historical overviews of a given project area, completion of a field study both above and below ground of the project area, mapping of the project area and a final report detailing the results of the survey. In part, the field study involves people walking over an area looking for signs of prehistoric or historic activity, digging multiple holes in an area looking for signs of pre- historic or historic activity, sifting the soil to discover evidence of any prehistoric or historic activity and documenting any information relevant to an area. The intensity of the search, such as the spacing of the holes, initially depends on the information gained through the review of archeological or historic documentation and information regarding the area being surveyed and later on any prehistoric or historic evidence found in a given area. Areas where prehistoric or historic evidence is found or thought likely to be found are more intensely examined. The decision to intensify the examination of an area is made by the person who supervises the study or supervises the field workers. That supervisor, depending on the circumstances and distances involved, may or may not be present at the actual survey site. There is no statute or rule which requires such a decision-maker to be present at the survey site. In late, 2002, DMA began to develop and draft the criteria for a request for proposal for cultural resource surveys of DMA's property made necessary by the ICRMP. The RFP was prepared by DMA’s Construction and Facility Management Office’s (CFMO) Environmental and Cultural Resource Management staff. Developing a request for proposal involving cultural resource surveys was new to CFMO staff. Therefore, at the suggestion of SEARCH who was then conducting a cultural resource survey for DMA, CFMO staff obtained a RFP for cultural resource surveys used by the Florida Department of Transportation. The Department of Transportation's RFP was used as a template for the DMA RFP. The RFP developed by DMA, stated, in relevant part: General The Department will determine whether the Contractor is qualified to perform the services being contracted based upon their proposal demonstrating satisfactory experience and capability in the work area. The Contractor shall identify necessary experienced personnel and facilities to support the activities associated with this proposal. Qualifications of Key Personnel Those individuals who will be directly involved in the project should have demonstrated experience in the areas delineated in the scope of work. Individuals whose qualifications are presented will be committed to the project for its duration unless otherwise excepted by the Department's Cultural Resource Manager. . . . * * * * 8.2 Responsiveness of Proposals . . . . A responsive proposal is an offer to perform the scope of services called for in the Request for Proposal in accordance with all requirements of this Request for Proposal and receiving seventy (70) points or more on the Technical Proposal. . . . * * * * 8.5 Waivers The Department may waive minor informalities or irregularities in proposals where such is merely a matter of form and not substance, and the correction or waiver of which is not prejudicial to other Contractors. Minor irregularities are defined as those that will not have an adverse effect on the Department's interest and will not affect the price of the Proposal by giving a Contractor an advantage or benefit not enjoyed by other Contractors. * * * * 9.5 Method of Payment . . . Payment shall be made at the contract hourly billing rates . . .. The contract hourly billing rates shall include the costs of salaries, overhead, fringe benefits, travel and operating margin. Payment for expenses shall be made on the basis of actual allowable cost incurred as authorized and approved by the Department. * * * * General Information This section contains instructions on the required format for the proposal. All proposals submitted shall contain two parts and are to be marked as follows: PART I TECHNICAL PROPOSAL NUMBER RFP-DMA-39 . . . PART II PRICE PROPOSAL NUMBER RFP_DMA-39 . . . Technical Proposal (part I) The Contractor must submit . . . copies of the technical proposal which will be divided into the sections described below. . . . Executive Summary The Contractor shall provide an Executive Summary to be written in non-technical language to summarize the Contractor's overall capabilities and approaches for accomplishing the services herein. . . . Contractor's Management Plan The Contractor shall provide a management plan, which describes administration, management and key personnel. Administration and Management The Contractor should include a description of the organizational structure and management style established and the methodology to be used to control costs, services reliability . . . Identification of Key Personnel The contractor should provide the names of key personnel . . ., as well as a resume for each individual proposed and a description of the functions and responsibilities of each key person relative to the task to be performed. . . . Contractor's Technical Plan The Contractor shall provide a technical plan, which explains technical approach and facility capabilities. * * * * 18.1 Evaluation Process A Selection Committee, . . ., will be established to review and evaluate each proposal. The Committee will be comprised of at least three persons with background, experience, and/or professional credentials in relative service areas. . . . . . . The Committee will assign points, utilizing the technical evaluation criteria identified herein and complete a technical summary. . . . The Procurement Office will open Price Proposals . . . The Procurement Office . . . will review and evaluate the price proposals and prepare a summary of its price evaluation. . . . During the process of evaluation, the Procurement Office will conduct examinations of proposals for responsiveness to requirements of the RFP. Those determined to be non-responsive will be automatically rejected. * * * * 18.3 Criteria for Evaluation Proposals will be evaluated in accordance with the criteria detailed below. A. Technical Proposal (100 Points) Technical evaluation is the process of reviewing the Contractor's Executive Summary, Management Plan, Technical Plan, example of work and Work Plan for understanding of the project, qualifications, approach and capabilities, to assure a quality product. . . . Price evaluation is the process of examining a prospective price without evaluation of the separate cost elements and proposed profit of the potential provider. . . . Award will be based on the total price for the five-year period. . . . EXHIBIT "A"CULTURAL RESOURCES ASSESSMENT SERVICES * * * * 4. PERSONNEL STANDARDS Personnel will be considered qualified when they meet the minimum criteria for archeologists, historians, architectural historians and other professionals as set forth in the Secretary of the Interior's Standards and Guidelines for Archeology and Historic Preservation and 36 CFR Part 61. Resumes of the Principal of the Firm, Principal Investigator, other supervisory personnel, and consultants documenting their qualifications to conduct work in their stated area of expertise must accompany the contract proposal. . . . The proposed participation of the above individuals in the Department projects is subject to approval by the Cultural Resource Project Manager . . . based on their meeting the minimum qualifications for such work as stated in the above mentioned guidelines and based on a review of their work history. . . . The firm(s) personnel performing the services must be a member of the Register of Professional Archeologists and meets the Secretary of Interiors' "Standards and Guidelines for Archeology and Historic Preservation" (36 CFR Part 800 Appendix C). . . . * * * * 8. METHOD OF COMPENSATION . . . The Lump Sum payment shall be made at the contract hourly billing rates . . . The contract hourly billing rates shall include the costs of salaries, overhead, fringe benefits, travel and operating margin. Payment for expenses shall be made on the basis of actual allowable cost incurred as authorized and approved by the Department. These expenses shall be approved in advance as part of the project. Out-of pocket expenses include incidental costs for printing, materials. Expendable equipment, equipment rental, long distance telephone calls, tolls, etc. A detailed list must be prior approved in order to receive reimbursement. All other costs shall be included in the Contractor's hourly rate. . . . The hourly billing rate or unit rate described in the RFP was based on the hourly rate proposed by the contractor in its response to the RFP. Rates were given for specified categories of personnel over a five-year period beginning in 2003 and ending in 2008. The categories of personnel listed in the RFP were for Principal of the Firm, Principal Investigator, Project Archeologist, Archeological Technician, Senior Historian, Historical Technician, Laboratory Supervisor, Laboratory Technician, Graphics, Clerical, Geographical Information Systems Technician (GIS) and Others. Other than the titles given the various categories of personnel, each of the categories for which prices were sought was undefined in the RFP. As indicated earlier, the rates proposed by the contractors were to include various areas of costs such as salaries, overhead, fringe benefits, etc. However, the language of the RFP referencing the various items of costs to be included in these rates did not mean that the firms actual costs, such as the actual salary for the principal of the firm, be included in the billing rate, but only that the amount proposed would represent all such costs so that the contractor could not later claim such costs as reimbursable expenses. In short, the rate proposed for the hourly billing rate was the amount the contractor would charge DMA for the performance of the work or service generally associated with a particular category of personnel. It was within the contractor's discretion whether one of its employees would fulfill more than one of the above- listed categories or otherwise divide the work required under the contract within its organization. It was also within the contractor's discretion to pay its personnel amounts different from the amounts listed for the various categories of personnel. Therefore, SEARCH’s ability to pay the minimum wage to a particular employee or comply with the federal fair labor law is not related to the amount a contractor proposes to charge DMA for a given service. In relation to the employees of a contractor, the RFP required that the resumes of key personnel showing that personnel's qualifications to participate in a cultural resource survey be included in the contractor's response. The RFP did not require that resumes be provided in a certain form or as a separate document. Therefore, a contractor's response to the RFP could comply with the resume requirement by supplying its key personnel's qualifications or experience to perform that personnel's contribution to creating a cultural resource survey in the text of its response to the RFP. Additionally, the RFP stated that unspecified personnel would be considered qualified when they meet the Secretary of Interiors Standards and Guidelines. The Secretary of Interiors Standards and Guidelines, state in relevant part, as follows: Professional Qualification Standards . . . The qualifications define minimum education and experience required to perform identification, evaluation, registration and treatment activities. . . . History The minimum professional qualifications in history are a graduate degree in history or closely related field; or a bachelor's degree in history or closely related field plus one of the following: At least two years of full-time experience in research, writing, teaching, interpretation or other demonstrable professional activity with an academic institution, historic organization or agency, museum, or other professional institution; or Substantial contribution through research and publication to the body of scholarly knowledge in the field of history. Archeology The minimum professional qualifications in archeology are a graduate degree in archeology, anthropology or closely related field plus: At least one year of full-time professional experience or equivalent specialized training in archeological research, administration or management; At least four months of supervised field and analytic experience in general North American archeology; and Demonstrated ability to carry research to completion. In addition to these minimum qualifications, a professional in prehistoric archeology shall have at least one year of full-time professional experience at a supervisory level in the study of archeological resources of the prehistoric period. A professional in historic archeology shall have at least one year of full-time professional experience at a supervisory level in the study of archeological resources of the historic period. * * * * As written, these guidelines are not mandatory and do not apply to contractors. They are relevant to various federal agencies, the State Historic Preservation Officer and other governmental historic preservation officers. The RFP did require these guidelines to be met. However, no official Department of Interior interpretation of the Guidelines was offered into evidence. No other agency's interpretation of the guidelines was offered into evidence. The guidelines only apply to people who identify or evaluate historic or prehistoric properties and people who actually, preserve, protect, restore, reconstruct or rehabilitate historic or prehistoric property. They do not have any qualifications for laboratory work or personnel. None of the guidelines address or define the level of supervision or the category of personnel to which the guidelines apply. The particular title of the person employed by a contractor ultimately responsible for the identification, evaluation or treatment of historic or prehistoric property is not addressed in these regulations. A particular method of performing a field study is not addressed in these regulations. Therefore, depending on the contractor, the person required to comply with these regulations may be either in the field, in the office, or on-call. The evidence showed that the location of such an employee is more a matter of a firm’s philosophical approach to cultural surveys and potential travel times to a survey site. In this case, SEARCH and Goodwin personnel meet these guidelines since both have had cultural resource survey work and reports accepted by the various agencies responsible for the implementation of the various federal and state laws on historic and cultural preservation, including the Florida's State Historic Preservation Officer. The RFP also contained the criteria and method by which bids would be scored. The technical proposal could receive up to 100 points divided into 45 points for the management plan, 45 points for the technical plan and 10 points for the executive summary. Part of the review of the technical proposal concerned the potential contractor's ability to quickly respond to discoveries made at the survey site, changing survey site conditions and requests or inquiries from DMA. Discoveries at a site can require quick response from a contractor. For example, the unearthing of human remains requires the immediate cessation of work and requires an emergency response plan to go into effect. Price was scored separate from the technical proposal with the lowest priced proposal receiving 25 points. Importantly, price and costs were not the same in the RFP. Price is the total amount that the contractor proposed to charge DMA for its services, irrespective of the actual costs incurred by the contractor for provision of those services. On the other hand, the contractor's efficiency in providing the contract services, profit potential and ability to control its costs were to be considered during the review of the technical proposal. Therefore, in addition to response time, the location of the contractor relative to any potential project site and the potential contractor's location relative to its ability to control potential costs for travel and ability to respond quickly to conditions at the survey site were appropriate factors to be considered during review of the technical proposals. Such a review was appropriate especially since travel costs were not separately reimbursable expenses under the contract. Ms. Maitland was the employee in CFMO primarily responsible for drafting the RFP; her office is directly in front of Mr. Adams’ office. Mr. Adams is the director of CFMO. At times prior to the issuance of the RFP, Ms. Maitland overheard Mr. Adams discuss the RFP with Mr. Pochurek, an employee of SEARCH, on several occasions. No detail about these discussions was offered into evidence. However, simply discussing a developing RFP with a potential contractor is not illegal and does not, by itself, demonstrate bias by DMA towards SEARCH. Nor did any other evidence demonstrate such a bias. On November 19, 2002, three days before the RFP was issued, Mr. Adams requested Ms. Maitland to participate in a speaker phone conversation to explain recent internal changes in the RFP. The evidence did not demonstrate that any competitive advantage resulted from three days of advanced knowledge about the RFP especially since responses to the RFP were not due until February 20, 2003. Additionally, any potential contractor had the right and ability to ask questions regarding the RFP until January 30, 2003. On November 22, 2002, DMA published RFP DMA-39, asking contractors to submit proposals for multi-project cultural resource surveys on DMA property. Goodwin, SEARCH and a third firm not involved here, submitted responses to the RFP. After the issuance of the RFP, Mr. Adams had a conversation with SEARCH about how they could improve their work and reports in the future. Such a critique is a legitimate role for the director of CFMO to perform with any contractor who had performed or was performing work for DMA. Neither the meeting nor the critique demonstrated bias on the part of DMA. In December, 2002, a meeting was arranged at Camp Blanding in order for Marcus Craig, the newly hired person at DMA responsible for GIS data, to discuss with SEARCH what type of GIS information was available or could be developed from the data SEARCH had obtained on a cultural resource survey it had performed under the "Metroplex contract." GIS information is a computational representation and database of a survey site, showing the location of any cultural resources found on a site, as well as any other information relevant to the site. The Metroplex contract did not require GIS data. However, part of Mr. Craig’s job was to gather as much information about the Department’s armories and property as possible. He participated in the meeting at Camp Blanding in order to ask about information on regions that SEARCH had already surveyed in the past. Mr. Craig sought to gather the most basic data that they had collected. He needed to ascertain the availability or existence of the GIS information to fulfill the duties of his job with DMA. The meeting at Camp Blanding was not related to the pending, un-issued RFP. The RFP was not discussed. Moreover, the information sought or discussed during the meeting relating to GIS data did not relate to the GIS data that was eventually required under the RFP. The evidence did not demonstrate any bias on the part of DMA. Moreover, there was nothing said at that meeting which would give SEARCH personnel an advantage in submitting a response to the RFP. On January 23, 2003, DMA conducted a pre-proposal conference. Anybody who was interested in the project could ask questions about the RFP and its terms. All relevant staff from the DMA, including a GIS specialist, were present and available to answer questions about the RFP. All prospective contractors were afforded sufficient time to ask questions and receive responses. No one challenged the specifications contained in the RFP. No one asked for clarification about the definition of the categories of personnel contained in the RFP. No one challenged the scoring criteria in the RFP. After the pre-bid meeting, Mr. Pochurek, an employee of SEARCH, faxed Mr. Adams printed copies of two web pages for Goodwin and Pan American, another company that had attended the pre-proposal conference. The web pages were readily available to the public. Provision of such information by one of the potential contractors under an RFP does not show bias on the part of DMA or that SEARCH was treated more favorably than any other contractor who had yet to respond to the RFP. On February 7, 2003, DMA issued Addendum 1 to the RFP. Addendum 1, in relevant part: 1) deleted the requirement to include information on the contractor's ability to conduct underwater archeology, 2) clarified that all travel costs, including costs for motels, meals, vehicle rentals, airline tickets, etc. were to be included in the hourly rates proposed by the contractor in its proposal, 3) added reimbursement of a 50.00 dollar a day allotment for costs not covered under the RFP, and 4) added more specific requirements for Geographical Information Systems (GIS) data in the reports submitted by the contractor. The addendum to the RFP was received in enough time to allow all bidders to adequately respond. Goodwin is one of the premier cultural research management firms in the country. The company engages in all phases of terrestrial and underwater archaeology. Its main office is in New Orleans, Louisiana. However, as projects require, it will maintain a satellite office closer to a given project site. In this case, Goodwin's satellite office would be located in Tallahassee, Florida, approximately 3 to 4 hours away from any site which may be covered by the RFP. Goodwin has worked for both private and public entities; over 150 military installations and 50 national guard installations. Goodwin has done work at Fort Polk, Fort Benning, and Fort Stewart, and several districts of the Army Corps of Engineers. In addition, Goodwin has conducted a survey for Southern Natural Gas across North Florida and Florida Gas Transmission Co. All of Goodwin's cultural resource survey reports submitted to the Florida Historic Preservation Officer have been approved by that office. SEARCH specializes in performing cultural and historic resource surveys. SEARCH is located in Gainesville, Florida. Its office is located approximately an hour away from any potential sites covered by the RFP. SEARCH performs between 100 and 160 cultural resource projects per year. SEARCH has performed Phase I, II and III surveys throughout Florida, the southeastern United States and the West Indies. SEARCH has completed cultural resource surveys for the Florida National Guard and currently has a contract with the Florida Department of Transportation (DOT), District III for a cultural resource survey on a DOT highway project. During SEARCH’s previous work for the DMA, DMA never experienced delay based on a failure of SEARCH to comply with state or federal law, or Army regulations. All of SEARCH’s cultural resource survey reports submitted to the Florida State Historic Preservation Officer have been accepted by that office. SEARCH is not a large company. It maintains a staff of only a few professionals. SEARCH has ranged between 4 and 18 employees depending on how much field work it was conducting. SEARCH’s archeologists are organized into the following positions: Principal of the Firm, Principal Investigators, Project Archaeologists, and Field Technicians. In addition, SEARCH operates a laboratory where artifacts are indexed, employs a specialist in GIS, and employs various administrative staff. The cultural resource surveys prepared by SEARCH are primarily authored by the Principal Investigator assigned to a project. Others may contribute to the report but, ultimately, the Principal Investigator is responsible for that survey, with the principal of the firm performing a quality assurance role. SEARCH was founded by Dr. Anne V. Stokes in 1993; and she is the Principal of the Firm. Dr. Stokes holds a Ph.D. in anthropology with a specialty in archaeology and is a member of the Register of Professional Archaeologists (RPA). She is the person responsible for the quality of the cultural resource survey, and she meets the Interior Secretary's professional standards. SEARCH’s other two archaeologists are Drs. Carlson and Austin. They hold Ph.D.s in archaeology and are members of the RPA. They are the Principal Investigators for SEARCH in a cultural resource survey performed by it. Both meet the Secretary of the Interior’s Guidelines for archaeologists. Geoffrey Mohlman, holds a master's degree in an appropriate field for his specialty and role in a cultural resource survey, history and architectural history, and has years of experience in research and writing. Mr. Mohlman is responsible for all historical and architectural historical work performed at SEARCH and he meets the Interior Secretary’s Guidelines. SEARCH does not currently employ a “historical technician” or a “junior historian.” SEARCH’s proposal included the resumes of the Principal of its Firm, each of its Principal investigators and other supervisory personnel it concluded were responsible for and supervised the validity of the information that would be contained in the cultural resource survey. The RFP did not require additional resumes to be submitted and was open to interpretation as to what resumes should be included as part of a contractor's response to the RFP. SEARCH also hires personnel in a position it titles “project archaeologists.” Currently, SEARCH’s project archaeologists are Mr. William Morgan and Mr. James Pochurek. In SEARCH’s organization, a project archaeologist makes certain that field crews arrive where they are assigned, makes hotel arrangements, supplies per diem payments, and may participate in some digging. While described as supervisor's in SEARCH's response to the RFP, both employees function more as co- ordinators for logistical matters, such as communication to the archaeologists responsible for the archeological decisions of the project. Both Mr. Morgan and Mr. Pochurek have backgrounds in archaeology, but they do not possess a master’s degree in either archaeology or anthropology. Both are qualified to perform the functions of their positions and have successfully performed such functions in the past. They are both supervised by the Principal Investigator of the project. They are not required to comply with the Interior Secretary's Guidelines. SEARCH did not include a formal resume for Mr. Morgan or Mr. Pochurek; however, both employee's qualifications were sufficiently outlined in SEARCH's response to the RFP to enable a person reviewing the RFP to determine the employee's qualifications and work experience. SEARCH also employs field technicians, otherwise referred to as field archaeologists. SEARCH is not large enough to divide its field archaeologists into various levels of pay grades. Though not a job requirement and though not all do, many of SEARCH’s field technicians hold master's degrees in areas relevant to their work, possess years of experience and meet the Secretary of the Interior’s Guidelines. SEARCH also utilizes a lab which contains a supervisor and two lab technicians. Lab technicians and field technicians are approximately the same, and neither are required to have a master’s level of training in order to get hired at SEARCH. Nevertheless, John Endonino, SEARCH’s laboratory supervisor, has recently received his master's degree in anthropology and already possesses years of experience. Additionally, Asa Randall, a SEARCH laboratory technician, holds a master's degree and possesses years of experience. Both meet the Secretary’s Guidelines to the extent they may apply to laboratory work. Finally, SEARCH employs a specific GIS professional. Recently, that professional, Lori Collins, announced her resignation. However, SEARCH has every confidence that it will locate her replacement without difficulty. SEARCH has no dedicated graphics personnel; that job is performed by other personnel employed by SEARCH or by personnel performing duties associated with one of the other categories of personnel listed in the RFP. In contrast to SEARCH’s size, Goodwin has approximately 100 employees. Goodwin’s organizational structure is more complex than SEARCH’s. Goodwin’s Principal of the Firm is Dr. R. Christopher Goodwin. However, Dr. Goodwin is not a member of the Register of Professional Archaeologists (RPA). Goodwin also has Principal Investigators. However, some of the Principal Investigators identified as available for this project in Goodwin’s response to the RFP were not members of RPA. Although Goodwin's proposal indicates that only personnel meeting the Interior Secretary's Guidelines would supervise the project, the Interior Secretary's Guidelines do not require RPA affiliation. It remains unclear, whether non- RPA investigators would supervise the project since the RFP required personnel listed in a contractor's response to be dedicated for the area for which the employee was listed. Because of its size and structure, Goodwin also employs “project managers.” SEARCH does not have “project managers.” In SEARCH’s hierarchy, a Principal Investigator performs the duties assigned to a “project manager” as that term is used by Goodwin. Both firms require this position to be filled by someone with Master’s level training who meets the Secretary of Interior’s Guidelines. Additionally, Goodwin employs “assistant project managers.” An “assistant project manager” is tantamount to a project archeologist at SEARCH. Neither firm requires that this position be filled with employees possessing a master’s degree, though some of each firms employees at this level have received that level of training. Both firms’ employees possess some “supervisory” and oversight capacity over lower level employees. However, the Secretary’s guidelines do not apply to this level of employee since such personnel are supervised by someone who meets the Secretary of the Interior’s Guidelines. The language of the RFP does not require that the Interior Secretary’s Guidelines apply to this level of personnel. Goodwin segregates its field archeologists into three grades. None of these positions requires a master’s degree in Goodwin’s hierarchy. However, like SEARCH, Goodwin’s field archaeologists, and indeed their assistant project archaeologists, participate in excavating and identifying artifacts. All are supervised by a person who does meet the Interior Secretary's professional standards. In short, not every employee in an archaeology firm must meet the Secretary of the Interior’s Guidelines in order to satisfy the requirement of the RFP. All the parties agree that only certain “supervisory” personnel must meet the Guidelines. The Guidelines do not address this issue and therefore; the personnel which must comply with the Guidelines are left up to the individual contractor. At both Goodwin and at SEARCH, the Principal Investigator ultimately signs and takes responsibility for the work reported in any cultural resource survey. As noted above, both companies employ professional archeologists who are not required to meet the Guidelines, but who possess limited supervisory roles. Goodwin defines this position as “assistant project manager.” SEARCH defines the position as “project archeologist.” SEARCH and Goodwin may call their positions by different names, but the qualifications are similar. Employees in these positions are involved in identifying and excavating artifacts. For both companies, so long as the employees in these positions are themselves supervised by an individual who meets the Guidelines, work may be performed satisfactorily. Clearly both firms have the requisite personnel to perform cultural resource surveys under the RFP and operate in a manner that meets the Interior Secretary's guidelines. The Department’s review of the responses to the RFP was segregated into three stages. First, the State’s Quartermasters’ Office reviewed all submissions in order to determine whether certain mandatory items were included. Second, if a bid contained all the mandatory items, then its narrative sections were forwarded to an evaluation committee where the proposal’s executive summary, management plan and technical plan could be scored. Finally, the State Quartermaster’s Office opened and scored each price proposal. Ms. Peggy Evans was the State Quartermaster’s Office Purchasing Director. In that position, she was responsible for state purchasing and contracting. Ms Evans was involved in the preparation of the RFP and helped to assure that mandatory items required in state contracts were required in the RFP. Ms. Evans included the mandatory requirements made necessary by state law. The mandatory requirements within the RFP included registration by a certain deadline, attendance at the mandatory pre-bid meeting, and the submission of technical and price proposals on time. Additionally, each bid must have included certain mandatory forms and signatures, such as the Drug Free Workplace Certification or a signed acknowledgement of the RFP’s Addendum. Goodwin and SEARCH, were both responsive to the mandatory requirements of the RFP. The evaluation committee was responsible for review of the narrative portions of the responses to the RFP. The narrative portions included the management and technical plans submitted by the respondents. The persons originally chosen to sit on the evaluation committee were Mike Adams, Elizabeth Maitland, Major Dwayne Jarriel, and Major Mark Widener. Because of other duties, Major Widener did not participate in the evaluation committee review. Marcus Craig was then appointed to the evaluation committee because of his expertise in GIS. All of the committee members met the qualification for experience in fields related to contracting and the RFP. All were qualified to sit on the review committee. Mike Adams, Elizabeth Maitland, Marcus Craig, and Dwayne Jarriel met at approximately 9:00 a.m. in a conference room at DMA. They each had a copy of the three responses to the RFP and the evaluation sheets. Most of the evaluators were sufficiently familiar with the RFP before arriving at the evaluation. Mr. Craig reviewed the RFP before attending the evaluation. Ms. Maitland assisted in writing most of the technical and management plan, and Mr. Adams oversaw her work. Major Jarriel was the least prepared regarding the specifics of the RFP, but such unpreparedness did not interfere with his ability to review the proposals from a contracting point of view. In addition, on the day of the evaluation, each evaluator had two pages of the RFP related to scoring, pages 18 and 19. A copy of the RFP was also in the room. In this case, it was immaterial that the members of the evaluation committee did not review the proposals for specific compliance with the RFP's specifications regarding the Interior Secretary's Guidelines or inclusion of resumes since both parties met those specifications. In general, all evaluators collectively agreed that each of the contractors who submitted a response to the RFP was qualified to do the work. The evaluators read each of the proposals quietly, for approximately four hours. Occasionally, one evaluator or another would ask a question. However, for the most part, this review of the bids was conducted in silence and without an opportunity for one evaluator to influence another. At the conclusion of this review, the evaluators convened for a brief, approximately five-minute discussion of the advantages and disadvantages of each of the responses to the RFP. However, before that discussion took place, all of the evaluators had already ranked the proposals in their own mind. All of the evaluators listened to the questions and opinions voiced by their peers. Nothing said during that discussion influenced any evaluator to change his or her decision. Moreover, no evaluator divulged the point score he or she had assigned to any bid; thus, there was no opportunity for collusion among the evaluators. Three of the four evaluators selected SEARCH’s proposal as the superior submission. Elizabeth Maitland did not select SEARCH’s proposal as superior. Instead, she selected Goodwin’s as the best proposal. Ms. Maitland gave Goodwin a score of 100. Not because they were perfect, but because she thought they were the best. She gave SEARCH an 80. Ms. Maitland favored Goodwin for its experience with the Department of Defense. Major Jarriel recognized that the RFP was a road map which outlines what the agency was looking for. He admits that he never looked at the RFP until after he had completed his evaluation and quite candidly conceded that when he evaluated the three proposals, he didn’t exactly know what the Agency was looking for. However, his knowledge about the qualities a contractor must demonstrate in order to successfully work with DMA was sufficient to allow him to honestly evaluate the responses to the RFP. Major Jarriel felt SEARCH's management and technical plans were superior in both presentation and clarity. He also scored SEARCH higher because it was located in Gainesville, Florida, and in his experience that would make them more responsive, more efficient at controlling costs and therefore better able to perform the contract. Such factors were within the review criteria contained in the RFP. He particularly focused on the fact that SEARCH’s proposal emphasized designing systems to meet DMA’s desires and the level of explanation of various survey concepts in its proposal. Major Jarriel reviewed the executive summary and management plan and glanced through the technical plan. He looked at the proposal from an overall standpoint, not from any specific individual criterion. Major Jarriel, in part based on the opinion of Mr. Craig, gave SEARCH a higher score because he thought that its GIS format and capabilities would better meet DMA needs. However, reliance on a GIS expert’s opinion is neither arbitrary nor capricious and is reasonable for the committee members to do. Mr. Adams felt a firm's experience working and consulting with Native Americans and the National Guard were important factors. He also felt a firm’s presentation on its GIS capabilities was an important factor. He felt Goodwin’s response was weak in the area of Native American consultations. Mr. Adams scored SEARCH higher because they had experience working with the Florida National Guard and Native Americans. Review and knowledge about the ICRMP was also required in the RFP. Mr. Adams felt SEARCH was better in demonstrating that knowledge. There was no evidence to demonstrate that Mr. Adams' scores did not reflect his true assessment of the parties’ responses to the RFP. Mr. Craig was mainly, but not completely, concerned with a response's "GIS section." SEARCH’s response devoted almost 5 pages explaining the importance of GIS and its willingness to help design a GIS system that would best meet the goals of the Department. In Mr. Craig’s mind, SEARCH’s technical proposal was far superior to Goodwin’s. They provided more than the minimum amount of information regarding GIS and demonstrated that they would make efforts to ensure that the Department’s needs were satisfied. He also scored SEARCH’s proposal higher because they were going to use the same software that he used at DMA. Preference for the utilization of the same software is a legitimate consideration since it eliminates any potential compatibility issues with DMA software which sometimes arise between newer and older versions of software which have had add-ons to upgrade the older version. Mr. Craig also thought SEARCH would be more cost effective and responsive because it was a Florida-based firm. In scoring Goodwin lower than SEARCH on the technical proposal, Mr. Craig took into consideration his opinion that Goodwin’s ownership of the underwater sensing equipment would increase its overhead so that it would not be as cost effective as SEARCH and had provided unnecessary information on such underwater capabilities in their response. Mr. Craig also examined the overall way that responses were written and any indications of each bidder’s willingness to satisfy the needs of the Department. After his evaluation, Mr. Craig concluded that the Goodwin proposal was not as responsive to the Department’s needs as was the proposal submitted by SEARCH. Mr. Craig, Mr. Adams, and Major Jarriel, noted the Gainesville offices of SEARCH are significantly closer than the functional Tallahassee office of Goodwin. Camp Blanding is less than an hour away from Gainesville and, at over 73,000 acres, constitutes the vast majority of land holdings by DMA. Additionally, few of the Department’s armories are located in the Panhandle. Most are located south of Camp Blanding, closer to Gainesville than Tallahassee or elsewhere. Moreover, it was not certain that Goodwin would utilize employees from its Tallahassee office. Upon reviewing resumes during his evaluation, Mr. Adams noted that Goodwin had no employees, other than a receptionist, working in its Tallahassee office. They all worked in New Orleans or in Washington, D.C. Indeed, the telephones in the Tallahassee office forwarded to Goodwin’s New Orleans office. Conversely, the SEARCH proposal clearly indicated that all personnel would be located in Gainesville, Florida. The evidence did not demonstrate that any of the evaluators acted arbitrarily, capriciously or failed to utilize the specifications of the RFP. Once the executive summaries, management plans and technical plans of all responsive contractors were scored by the Evaluation Committee, Peggy Evans and her assistant opened the price proposals of the parties. None of the evaluators saw any of the price proposals prior to their scoring. This procedure assured that none of the technical scores would be influenced by the pricing of the bidders. Ms. Evans, upon calculating the total price proposed by each bidder, determined that SEARCH had submitted the lowest bid, by a large margin. Pursuant to the RFP, a total of 25 points was available for the price component of scoring. Because SEARCH submitted the lowest bid, it was awarded the 25 points for pricing. Other bidders received a portion of the 25 points based on the relationship of that contractor's price to SEARCH’s low bid. SEARCH scored the highest for both portions of the RFP and was awarded the RFP contract. There was no convincing evidence that SEARCH’s bid was unbalanced or that the prices it quoted were not intended to reflect what it would charge for the services related to that price. Moreover, DMA has no regulation requiring a bid to be balanced. Federal acquisition regulations or standards do not apply. Without such a regulation and since “balance” is not required in the RFP, DMA has no authority to reject the apparent low bid as not responsive to the RFP. Moreover, the evidence did not demonstrate that DMA's decision was arbitrary, capricious, or in violation of its statutes, rules or RFP specifications. Therefore, DMA’s decision to award the RFP to SEARCH should be upheld.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, It is RECOMMENDED that the Department enter a final order awarding the contract to SEARCH. DONE AND ENTERED this 3rd day of October, 2003, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of October, 2003. COPIES FURNISHED: John E. Daniel, Esquire Morgan, Lewis & Bockius, LLP 1111 Pennsylvania Avenue, Northwest Washington, DC 20004 Seann M. Frazier, Esquire Greenberg Traurig, P.A. 101 East College Avenue Post Office Box 1838 Tallahassee, Florida 32302 Elizabeth C. Masters, Lt. Colonel Florida Army National Guard 82 Marine Street St. Augustine, Florida 32084 Cynthia S. Tunnicliff, Esquire Pennington, Moore, Wilkinson, Bell & Dunbar, P.A. 215 South Monroe Street, Second Floor Post Office Box 10095 Tallahassee, Florida 32302-2095
Findings Of Fact The Resource Recovery Facility The purpose of the proposed resource recovery facility (RRF), a solid waste-fired electrical power plant, is to dispose of solid waste and recover energy. This "waste to energy" facility will initially dispose of up to 2,352 tons of refuse each day, and generate up to 62.5 megawatts of electrical power. The ultimate capacity of the facility is 3,300 tons of refuse each day, and a generating capacity of 96.1 megawatts. The proposed RRF complex will include a gatehouse and weigh station, refuse receiving and handling building, turbine generator building, administrative building and two landfills for the disposal of ash residue and non- processable solid waste. The site development plans for the project contemplate that solid waste will be delivered by truck to the enclosed refuse and receiving building. All waste will be stored and processed inside the main facility. The Site The site for the proposed RRF is a predominantly undeveloped 248-acre parcel of land situated at the southeast intersection of US 441 (State Road 7) and State Road (SR) 84, an unincorporated area of Broward County. The site is bounded on the north by the right-of- way for I-595, the northerly part of its east boundary by the proposed Ann Kolb Park, the southerly part of its east boundary and the south by the South Fork of the New River Canal (New River Canal), and the west by US 441. The uses surrounding the site are mixed. Located east of the site, and south of the proposed Ann Kolb Park, is a large fossil fuel electric generation facility owned by Florida Power & Light Company (FP&L). To the south, across the New River Canal, is a mixed residential- commercial area of single family residences, duplex residences, and marine-oriented businesses (marinas and fish wholesalers). To the west of US 441 is a mixture of light, medium, and heavy industry, including industrial office space, auto salvage facilities and prestressed concrete pouring yards. North of the right-of-way for I- 595, and SR 84, is a mixture of strip commercial and residential usage. Although the site itself is predominantly unoccupied pasture land, some of its lands have been developed. The southern portion of the site, abutting the New River Canal, is occupied by a marine engineering firm which operates dry dockage and related facilities (heavy industrial use). The other uses currently existing on the site are for a nursery and the sale of prefabricated sheds. Bisecting the site is a parcel of land presently being developed by the City of Fort Lauderdale (City) for a sludge composting facility. Broward County proposes to locate the RRF south of the City's facility, and the landfills north of the City's facility. Consistency of the site with local land use plans and zoning ordinances Broward County has adopted a Comprehensive Plan, pursuant to Chapter 163, Florida Statutes, which establishes guidelines and policies to promote orderly and balanced economic, social, physical, environmental and fiscal development of the area. Pertinent to this proceeding are the Broward County Land Use Plan-map and the Unincorporated Area Land Use Plan (the land use plan element of the comprehensive plan) and Broward County's zoning ordinances. The proposed site is designated industrial under the Broward County Land Use Plan-map and the Unincorporated Area Land Use Plan. The proposed RRF, with attendant land fill, is a utility for solid waste disposal and, as such, an allowable use under the industrial designation of both plans. Prior to rezoning, various portions of the site were zoned A-I Limited Agricultural, B-3 General Business, M-3 General Industrial, and M-4 Limited Heavy Industrial. Permitted uses ranged from cattle and stock grazing (A-1) to asphalt paving plants, junk yards and the storage of poisonous gas (M-4). On March 16, 1984, the Board of County Commissioners of Broward County approved the rezoning of the site to a Special Use Planned Unit Development District (PUD), and approved the RRF conceptual site plan. The proposed RRF, and attendant landfill, constitute a Planned Special Complex under Broward County's PUD zoning ordinances and, as such, are permitted nonresidential uses. The Department of Community Affairs, the Department of Environmental Regulation, and the South Florida Water Management District concur that the proposed RRF appears to be consistent and in compliance with existing land use plans and zoning ordinances. The Public Service Commission did not participate in this land use portion of the power plant siting process. South Broward Citizens for a Better Environment, Inc. (SBC) was the only party to contest the consistency of the proposed RRF with existing land use plans and zoning ordinances. SBC asserted that the proposed RRF violates: (1) the coastal zone protection element of the Broward County Comprehensive Plan, because the environmental impact assessment required by that element of the plan was inadequate or not done, (2) the urban wilderness inventory guidelines of the Broward County Comprehensive Plan, because the environmental effects of the proposed RRF on the area proposed to be designated as an urban wilderness area (proposed Ann Kolb Park) would outweigh the benefits of the project, and (3) Section 13 of Ordinance numbers 84- 6(2) and 84-7(2), which approved the rezoning for the site, because the impact assessment required by the Ordinances had not been prepared. While the coastal zone protection element and urban wilderness inventory guidelines of the Broward County comprehensive plan were germane to Broward County's decision to rezone the site and approve the development, they are not pertinent to this land use hearing. Broward County's decision is final, and these proceedings do not provide a forum to collaterally attack it. The relevance of SBC's assertions aside, the evidence presented established that the proposed RRF did not violate the coastal zone protection element, the urban wilderness inventory guidelines, or any other element of the Broward County Comprehensive Plan. SBC's assertion that the proposed RRF will violate Section 13 of the rezoning ordinances is ill- founded. Section 13 provides: PRIOR TO LANDFILL DEVELOPMENT, AN IMPACT ASSESSMENT SHALL BE PREPARED BY THE RESOURCE RECOVERY OFFICE OF BROWARD COUNTY TO ADDRESS THE POTENTIAL HYDROLOGICAL IMPACTS OF THE DEVELOPMENT OF THE LANDFILL ON ANN KOLB PARK. DATA AND INFORMATION UTILIZED TO OBTAIN FDER PERMITS WILL BE USED TO CONDUCT THIS ASSESSMENT. IN THE EVENT POTENTIALLY SIGNIFICANT IMPACTS ARE IDENTIFIED, A MANAGEMENT PLAN SHALL BE DEVELOPED TO OFFER RECOMMENDATIONS AND MITIGATIVE ACTIONS TO INSURE THE INTEGRITY OF ANN KOLB PARK. (Emphasis supplied) The evidence is clear that an impact assessment is only required before development commences. Consequently, the proposed RRF does not violate the rezoning ordinances. Notice of the land use hearing was published in the Fort Lauderdale News/Sun-Sentinel, a daily newspaper, on July 4, 1985, and also in the Florida Administrative Weekly on June 28, 1985.
The Issue All Three Cases Whether the Petitioners have standing to bring their respective challenges pursuant to Section 120.56(4), Florida Statutes? Case No. 10-5348RU Whether either or both Original Specific Condition 1 and the Department ECL Position constitute a rule? Case Nos. 10-6205 and 10-8197 Whether Specific Condition 5 constitutes a rule? Attorney's Fees Whether an order should be entered against the Department for costs and attorney's fees under Section 120.595(4), Florida Statutes?
Findings Of Fact The Draft Permit The Draft Permit (and its revisions) authorizes the County "to construct the work outlined in the activity description and activity location of this permit and shown on the approved permit drawings, plans and other documents attached hereto." Joint Exhibit, Vol. III, Tab 9, page 3 of 26. The "activity description" and the "activity location" are detailed on the first page of the Draft Permit. See Joint Exhibit, Vol. III, Tab 9 (first page of 26). The drawings, plans and other documents attached to the Draft Permit are contained under Tab 10 of Volume III of the Joint Exhibit. The Parties Petitioner Guidry is co-trustee of the Guidry Living Trust (the "Guidry Living Trust"). He has independent authority to protect, conserve, sell, lease, encumber or otherwise dispose of trust assets. Those assets include a condominium unit in the Oceania Condominium. The condominium unit owned by the Guidry Living Trust includes an undivided interest held with all other unit owners in the common property at the Oceania Condominium. The common property includes real property that fronts the Gulf of Mexico located at 720 Gulf Shore Drive in the City of Destin, Florida. The real property has the MHWL of the Gulf of Mexico as its southern boundary. Petitioner Oceania is a condominium association established pursuant to Florida's Condominium Act, Chapter 718, Florida Statutes. It does not own any real property. Mr. Guidry testified that he is authorized in his capacity as president of the Association to initiate and pursue this administrative proceeding on its behalf. No documents were entered in evidence reflecting that Oceania's Board of Directors approved the filing of the petition. The owners of condominium units at the Oceania Condominium, including the Guidry Trust, comprise the membership of Oceania. The unit owners all own undivided shares in the Oceania Condominium common property including the real estate that extends at its southern boundary to the MHWL of the Gulf of Mexico. The owners did not vote on whether to file the petition in Case No. 10-05348RU. Petitioners David and Rebecca Sherry are leaseholders of real property where they reside. Located at 554 Coral Court, Number 511, Fort Walton Beach, Florida 32548, the property is in an area in Okaloosa County on Santa Rosa Island that is known as Okaloosa Island. The property leased by the Sherrys is not within the Western Destin Project. Petitioner John Donovan is a leaseholder of real property located at 909 Santa Rosa Boulevard, Numbers 131-132, El Matador Condominium, Fort Walton Beach, Florida 32548, in the same area as the Sherry's residence. Petitioner MACLA II, Ltd., is a Texas Limited Partnership. Louise Brooker is its president. It owns real property which fronts the Gulf of Mexico located at 620 Gulf Shore Drive, Destin, Florida. The southern boundary of the property is the MHWL of the Gulf of Mexico. The MACLA property is located adjacent to the shoreline that is the subject of the Western Destin Project. The Betty Price Hughes Qualified Vacation Residence Trust (the "Hughes Trust") owns real property at 612 Gulf Shore Drive. Its southern boundary is deeded the MHWL of the Gulf of Mexico. The property is located adjacent to the shoreline subject to the Western Destin Project. Petitioner H. Joseph Hughes is a trustee of the Hughes Trust. Petitioner Kershaw Manufacturing Company, Inc., an Alabama corporation, is the owner of real property located at 634 Gulf Shore Drive, Destin, Florida. Its southern boundary the property is the MHWL of the Gulf of Mexico. The property is located adjacent to the shoreline subject to the Western Destin Project. Royce Kershaw is the president of the Kershaw Manufacturing Company. He testified that as president of the company, he has the authority to act on behalf of the company and has the power to bind the corporate entity. The Department of Environmental Protection is responsible for the administration of Chapter 161, Florida Statutes, Parts I and II, the "Beach and Shore Preservation Act." § 161.011, Fla. Stat. The Board of Trustees of the Internal Improvement Fund is responsible for stewardship of its public trust properties under Chapter 253, Florida Statutes. Included among those properties is the sovereignty submerged lands along the coast of the Gulf of Mexico. The ECL and the MHWL In the context of the Beach and Shore Preservation Act, the MHWL and the ECL were discussed by the Florida Supreme Court in Walton County v. Stop the Beach Renourishment, Inc., 998 So. 2d 1102 (Fla. 2008) (the "Walton County Supreme Court Case"): Pursuant to section 161.141, when a local government applies for funding for beach restoration, a survey of the shoreline is conducted to determine the MHWL for the area. Once established, any additions to the upland property landward of the MHWL that result from the restoration project remain the property of the upland owner subject to all governmental regulations, including a public easement for traditional uses of the beach. § 161.141. After the MHWL is established, section 161.161(3) provides that the Board must determine the area to be protected by the project and locate an ECL. In locating the ECL, the Board "is guided by the existing line of mean high water, bearing in mind the requirements of proper engineering in the beach restoration project, the extent to which erosion or avulsion has occurred, and the need to protect existing ownership of as much upland as is reasonably possible." § 161.161(5). Pursuant to section 161.191(1), this ECL becomes the new fixed property boundary between public lands and upland property after the ECL is recorded. And, under section 161.191(2), once the ECL has been established, the common law no longer operates "to increase or decrease the proportions of any upland property lying landward of such line, either by accretion or erosion or by any other natural or artificial process." Walton County, at 1108. The Pre-project MHWL in This Case and the ECL The Pre-project MHWL called for by Original Specific Condition 1 was never established. No evidence was introduced as to where the Pre-project MHWL would have been located had it been set and in particular, where it would have been located in relation to an ECL. Rod Maddox is a long-time surveyor with the Department's Division of State Land in the Bureau of Survey & Mapping. See P-244. Mr. Maddox testified about his experience with pre-project MHWLs and where they are located in relation to ECLs. Familiar with the term "pre-project mean high water line," Mr. Maddox defined it as the mean high water line prior to the placement of fill used in a beach restoration project. See id. at 29. He testified that pre-project MHWLs have been required in the many beach restoration cases with which he is familiar. He testified further that when it comes to location, there is no difference between a pre-project MHWL and an ECL. The denominations may be different but Mr. Maddox testified "as to how . . . established, I see them as one and the same." Id. at 30. Original Special Condition 1: the Pre-project MHWL On December 31, 2009, the Department issued the NOI. Attached to it was the Draft Permit. The Draft Permit contained the following paragraph as Special Condition 1: Prior to construction of the beach restoration project, the Permittee must record in the official records of Okaloosa County a Certificate, approved by the Department, which describes all upland properties (including their owners of record) along the entire shoreline of the permitted project, with an attached completed survey of the pre-project Mean High Water Line ("Mean High Water Line Survey") conducted along the entire permitted project shoreline length. The Mean High Water Line Survey must have been completed in a manner complying with Chapter 177, Florida Statutes, as determined by the Department. No construction work pursuant to this joint coastal permit shall commence until the Certificate and attached Mean High Water Line Survey have been approved and archived by the Department's Bureau of Survey and Mapping, and the Department has received proof of recording of such documents (see Specific Condition No. 4.c.). The approved Certificate and attached Mean High Water Line survey shall be attached to, and kept as part of this joint coastal permit and authorization to use sovereign submerged lands. If in the future the Permittee seeks reimbursement from the State for costs expended to undertake (construct) the permitted project, then, prior to, and as a condition of receipt of any authorized and approved reimbursement, the Board of Trustees will establish an ECL consistent with the provisions of Chapter 161, Florida Statutes. The Permittee shall be required to record such a line in the Okaloosa County official records. Joint Exhibit, Vol. III, No. 9. The Oceania Petitioners, as landowners within the Project area, challenged the issuance of the Draft Permit on January 14, 2010. See Case No. 10-0516. Among the bases for the challenge was that the Department lacked authority to implement Original Special Condition 1 and, in particular, its requirement that the County record a completed survey of the pre-project MHWL in lieu of the establishment of an ECL. On July 26, 2010, the Department revised the Draft Permit to eliminate from the Project the common property owned by the unit owners of the Oceania Condominium. The change was supported by a letter from Michael Trudnak, P.E., of Taylor Engineering, Inc., on behalf of the County which stated: "On behalf of Okaloosa County, Taylor Engineering submits this request to modify the project area and Draft Joint Coastal Permit for the Western Destin Beach Restoration Project [file nos. excluded]. The applicant has decided to remove the Oceania Condominium property from the beach fill placement area." Joint Exhibit, Vol. III, Tab 15, Exhibit A. The revised project, as described in permit drawings enclosed with Mr. Trudnak's letter includes two reaches: Reach 1 extends from the east jetty of East Pass to approximately 600 ft east of FDEP reference monument R-22 (R22.6) and Reach 2 extends from approximately 200 ft east of R-23 (R-23.2) to R-25.5. The Oceania Condominium property is in the gap between the two beaches. Additionally, the letter requested that the Department modify Specific Condition 1 of the Draft Permit to reflect the modified project area so that the MHWL Survey requirement of Specific Condition 1 would exclude the Oceania Condominium property. In accord with the request, Special Condition 1 was amended to add the following language: "With respect to the shoreline seaward of the Oceania Owner's [sic] Association, Inc., members' common elements property, neither a pre-project Mean High Water Line survey, nor a Certificate with a description of the pre-project Mean High Water Line shall be recorded in conjunction with this coastal permit." Joint Exhibit, Vol. III, Tab 15, the First Revised Draft Permit, Page 5 of 26. On August 4, 2010, as the Department neared the end of its case in the third day of the hearing, it announced that the Revised Draft Permit would "be revised [again, this time] to require the establishment of an ECL under the applicable statute." Tr. 621. The draft permit, accordingly, was revised for a second time (the "Second Revised Draft Permit"). The Department carried out the second revision in a notice filed at the Division of Administrative Hearings on August 18, 2010 (the August 18, 2010, Notice). The August 18, 2010, Notice contains two changes to the First Revised Draft Joint Permit. The first change deletes the existing language in Original Specific Condition 1 (the language challenged in Case No. 10-5348RU) in its entirety. It substitutes the following language: Prior to construction of the beach restoration project, the Board of Trustees will establish an Erosion Control Line along the shoreline of the beach restoration project. The Erosion Control Line shall be established consistent with the provisions of ss. 161.141-161.211, Florida Statutes. An Erosion Control Line shall not be established in conjunction with this joint coastal permit with respect to the shoreline seaward of the Oceania Owner's [sic] Association, Inc. members' common elements property. In lieu of conducting a survey, the Board of Trustees may accept and approve a survey as initiated, conducted, and submitted by Okaloosa County if said survey is made in conformity with the appropriate principles set forth in ss. 161.141-161.211. Department of Environmental Protection's and Board of Trustees of the Internal Improvement Fund's Notice of Revisions to the Proposed Joint Coastal Construction Permit, page 3 of 4. The second change is made with respect to Specific Condition No. 4(c) of the First Revised Draft Permit, one of a list of items to be submitted to the Department for approval prior to the commencement of construction and the issuance of a Notice to Proceed by the Department. The existing language is deleted in its entirety and the following language is substituted: Written documentation that the Erosion Control Line required by Special Condition Number 1 has been filed in the public records of Okaloosa County. Id. The Department ECL Position Chapter 161: Beach and Shore Preservation Chapter 161, Florida Statutes, governs "Beach and Shore Preservation." "Parts I and II of this chapter may be known and cited as the 'Beach and Shore Preservation Act.'" § 161.011, Fla. Stat. Part I governs "Regulation of Construction, Reconstruction, and Other Physical Activity." Sections 161.011 through 161.241 comprise Part I. The Department developed its position on ECLs claimed by Petitioners to be an Unadopted Rule by considering Part I, in particular Sections 161.088 (which declares the public policy to properly manage and protect Florida's beaches) through 161.211. At some point in 2009, the Department saw a distinction related to ECLs in Sections 161.088-161.211 between beach restoration projects where state funding was used for construction and projects where no state funds were used. The former seemed to require ECLs, the latter not. Several statutory provisions were viewed as particularly relevant. For example, Section 161.141, Florida Statutes, declares that it is the public policy of the state "to cause to be fixed and determined, pursuant to beach restoration . . . projects, the boundary line between sovereignty lands . . . and the upland properties adjacent thereto " The section that mainly governs ECLs is Section 161.161. It provides the procedure for approval of projects for the restoration and maintenance of critically eroded beaches, subject to a beach management plan which is funded, in part, by the state. With regard to ECLs, the statute provides: Once a project [for the restoration and maintenance of a critically eroded beach] is determined to be undertaken, a survey of all or part of the shoreline within the jurisdiction of the local government in which the beach is located shall be conducted in order to establish the area of beach to be protected by the project and locate an erosion control line. * * * Upon completion of the survey depicting the area of the beach erosion control project and the proposed location of the erosion control line, the board of trustees shall give notice of the survey and the date on which the board of trustees will hold a public hearing for purpose of receiving evidence on the merits of the proposed erosion control line and, if approval is granted, of locating and establishing such requested erosion control line in order that any persons who have an interest in the location of such requested erosion control line can be present at such hearing to submit their views concerning the precise location of the proposed erosion control line. * * * The board of trustees shall approve or disapprove the erosion control line for a beach restoration project. In locating said line, the board of trustees shall be guided by the existing line of mean high water, bearing in mind the requirements of proper engineering in the beach restoration project, the extent to which the erosion or avulsion has occurred, and the need to protect existing ownership of as much upland as is reasonably possible. § 161.161, Fla. Stat. Development of the Department's Position on ECLs Prior to 2009, the Department's established ECLs for beach restoration projects whether the project's construction was supported by state funding or not. There was an exception: when the property landward of the MHWL was owned by the state. In such a case, the Department saw no need to set an ECL since both the sovereignty lands and the adjacent uplands property are owned by the state. This position held at least through January 15, 2009, when the Department held a workshop and hearing pursuant to Section 161.161, Florida Statutes, in Okaloosa County to establish an ECL for the Western Destin Project. The hearing officer who conducted the ECL hearing was West Gregory, Department Assistant General Counsel. While consideration of where the ECL should be established for the Western Destin Project was underway, there were ongoing discussions by e-mail and in briefings of whether the statute required an ECL. The discussion was prompted when Mr. Gregory, as Department Assistant General Counsel, drafted a memorandum (the "Draft Memorandum") to Michael Barnett, Chief of the Bureau of Beaches and Coastal Systems (the Bureau) to be sent through Paden Woodruff, an Environmental Administrator. The memorandum related to another beach restoration project in Okaloosa County: a project involving Eglin Air Force Base. The Draft Memorandum shows a date of January "XX", 2009, and is stamped "DRAFT." P-119. It presents the question "Should . . . [the Department] require the United States Air Force (USAF) to establish an erosion control line (ECL) for the beach restoration project located on Eglin AFB?" Id. The Draft Memorandum provides a brief answer: "No, . . . because the beach . . . is not critically eroded." Id. The memorandum recognizes the public policy of the state to fix the boundary between public and private lands for beach restoration projects in Section 161.141, Florida Statutes, and a requirement that the Board of Trustees "must establish the line of mean high water prior to the commencement of a beach restoration project," id., leading to the suggestion that each and every beach restoration project must establish an ECL. The Draft Memorandum, however, construes Section 161.141, Florida Statutes, with Section 161.161, Florida Statutes, and draws support from an Attorney General Opinion and the Walton County Florida Supreme Court case to conclude that it is only when a project is undertaken with state funding that an ECL must be established. In the case of the Eglin AFB beach restoration projects, the Draft Memorandum concludes: Id. This determination not to establish an ECL on the Eglin AFB beach restoration project would not preclude the USAF from obtaining a JCP permit. Rather, it precludes the USAF from receiving state funding assistance. The Draft Memorandum was not sent to the intended recipients. It was submitted to two other lawyers in the Department. Mr. Gregory did not receive comments from them. Although no comments were made to Mr. Gregory after the draft of the memorandum was sent to other members of the legal staff, the subject remained under discussion in the Department in early 2009. Sometime in early 2009, based on a legal analysis of Department attorneys, the Department took the position that an ECL is required to be set when state funds are used for the construction of a project. The converse of this position, that an ECL is not required to be set when no state funds are involved, is the statement alleged to be an unadopted rule. Two permits were issued that did not require an ECL: one for the Eglin AFB beach restoration project in March of 2009, and another that was an emergency permit for Holiday Isle. As with Specific Condition 1 in the Western Destin Project, the determination to not require an ECL was because of the lack of state funding. As Mr. Barnett testified about the two permits, there "is no State cost share for construction . . . [and] that's the reason [the Department] didn't require establishment of an ECL." Tr. 1279. Mr. Gregory's Draft Memorandum was never finalized. The Department issued three permits or draft permits (including for the Western Destin Project) with specific conditions that required pre-project MHWLs and that did not require ECLs. Otherwise, the Department has not committed the Department ECL Position to writing. Nonetheless, the Department ECL Position was stated in a deposition taken in this case on July 26, 2010. On July 26, 2010, the deposition of Janet Llewellyn, the Director of Water Resources Management was taken by Petitioners. Director Llewellyn is "responsible ultimately for all the projects that are processed and actions taken out of [the] division." P-223 at 10. These include permits issued by the Bureau and in particular, the Draft Permit, First Revised Draft Permit and the Second Draft Permit for the Project. When asked about the Department's statement that an ECL is not required when there is not state funding, Ms. Llewellyn preferred to rephrase the Department position as to when an ECL is required rather than when it is not required. She then testified that an ECL is required when there is "state funding involved through [the Department's] funding program." Id. at 13. Ms. Llewellyn was unable to pinpoint the moment the Department reached such a position other than: [t]he question came up sometime in the last year or two -- I couldn't tell you when -- about what the statute actually required in terms of when it was proper to set an erosion control line or required. And our attorneys did a legal analysis, again, of the statute, and that was their legal opinion of what the statute required. Tr. 14. Whatever the date that such a position was precisely firmed up, Ms. Llewellyn was able to testify on July 26, 2010, "that if state funding is going to a project, than an ECL needs to be set. That's what the statute requires." Id. This statement was based on the opinions of Department attorneys prior to their use in connection with the issuance of beach restoration permits in Okaloosa County. The Department has not initiated rule-making with respect to its ECL Position. Whether rule-making would be initiated was not known by the Bureau Chief on August 24, 2010, during his testimony in the final hearing. Change of Position The Department modified its position on ECLs that it appeared to have at the time of Ms. Llewellyn's deposition on August 4, 2010. As detailed above, it announced that an ECL would be required for the Western Destin Project, after all. The modification was formalized with the filing of the Second Revised Draft Permit on August 18, 2010. Specific Condition 5 Before the challenged language in Specific Condition 5 was added by the First Revised Draft Permit, the Department had relied on General Condition 6 to give notice to permittees that the permit did not allow trespass: This permit does not convey to the Permittee or create in the Permittee any property right, or any interest in real property, nor does it authorize any entrance upon or activities on property which is not owned or controlled by the Permittee. The issuance of the permit does not convey any vested rights or any exclusive privileges. Joint Ex. 9. Based on the petitions in the Permit Challenge Cases, the Department proposed in the First Revised Draft Permit to add to Specific Condition 5 the language that is underscored in the following: The Permittee is advised that no work shall be performed on private upland property until and unless the required authorizations are obtained. Sufficient authorizations shall included: (1) written evidence of ownership of any property which will be used in carrying out the project; (2) authorization for such use from the property owner which upland of mean high-water; (3) construction and management easements from upland property owners; or (4) a judgment from a court of competent jurisdiction which reflects that such authorization, in whole or in part, is not required. The Permittee is also advised to schedule the pre-construction conference at least a week prior to the intended commencement date. At least seven (7) days in advance of a pre-construction conference, the Permittee shall provide the written authorizations for the portion of the project for which construction is about to commence, as required above, written notification, advising the participants (listed above) of the agreed-upon date, time and location of the meeting, and also provide a meeting agenda and a teleconference number. Joint Exhibit, Volume III, Tab 15, the First Revised Draft Permit, Page 7 of 26. There was no evidence that the language added to Specific Condition 5 by the First Revised Draft Permit had been in any other permits or that the Department intended to use the language in any other beach restoration permits. Other than whatever might be gleaned from the Draft Permit, itself (and its revisions), there was no evidence offered that the property of any of the petitioners, in fact, would be used in the Western Destin Beach Project.
The Issue The issue in this case is whether a proposed activity by Cayo Costa Island Partnership is exempt from permitting.
Findings Of Fact Cayo Costa Island is a bridgeless barrier island situated between Gasparilla Island to the north and Captiva Island to the south. East of Cayo Costa Island is Pine Island, and east of Pine Island is Cape Coral. In the 1960s, Travis Gresham subdivided and commenced development of a portion of Cayo Costa Island. Development included the dredging of canals. Eventually, one or more plat maps were recorded in the public records of Lee County, so that warranty deeds for residential lots referred to such recorded plat maps. There is also a subdivision sales plat map, which may not have been recorded. Not all of the land was subdivided into lots. The sales plat map reserves a considerable amount of land and canals for future development. One of the reserved areas is to the east of the subdivided lots. The location of the proposed dock is in the extreme southwest corner of this unplatted area. The dock would be located at the western end of a relatively wide manmade canal, which measures 2000 feet long and 105 feet wide. The east end of the canal terminates in Pine Island Sound. Petitioner and her late husband purchased from Mr. Gresham lot 16 in block 1 over 30 years ago, and they moved onto the island almost 20 years ago. The lot does not abut the canal, nor the upland adjacent to the subject dock. She has permanently resided on the island continuously since 1976. In 1984, she and her husband conveyed their property by warranty deed to the State of Florida, reserving a life estate. Petitioner's husband and some friends constructed the subject dock at the end of the canal in September 1978. A couple of years later, another nearby resident named Carl Noah substantially enlarged the dock. On March 16, 1993, Mr. Noah conveyed by warranty deed his real property to Paul Faust. At the same time, Mr. Noah gave Mr. Faust a quitclaim deed for "boat docks constructed by [Mr. Noah] to be used with the [residential] structure." After purchasing the property from Mr. Noah, Mr. Faust was contacted by Petitioner, who told him that she had previously owned the dock and that Mr. Noah had shared it with her. Mr. Faust agreed to share the dock with her, for as long as he owned it. There are no recorded easements concerning the use of the dock. On the sales plat map, the west end of the canal is clearly separated from the subdivided area by a road, which is named Harbor Drive. However, Harbor Drive was never constructed and there is no physical evidence of the proposed road. Petitioner's late husband and his friends who helped build the dock mistakenly believed that the west end of the canal terminated at Harbor Drive. Undoubtedly, other persons were similarly confused, including the property assessor, who had never assessed the property that separates the west end of the canal from Harbor Drive. However, in May 1993, Noel Andress, one of the partners of Cayo Costa Island Partnership, obtained a warranty deed from Mr. Gresham for a triangular- shaped piece of land running north just to the existing dock from the intersection of Harbor Drive and an actual road known as La Costa Drive. Mr. Andress quitclaimed the triangular-shaped parcel, which is described by metes and bounds, to Cayo Costa Island Partnership on January 13, 1994. After Mr. Andress acquired the triangular-shaped parcel, he directed his attorney to write Petitioner and Mr. Faust and inform them to remove their personal property from the real property that Mr. Andress had recently acquired. Mr. Faust is contesting this matter in court. Unfortunately, the record does not include the application or applications submitted by Cayo Costa Island Partnership. Mr. Andress testified that he submitted an application in February or March of 1993. The proposed dock, which would replace the dock built by Mr. Sellars and Mr. Noah, would serve a single family. The proposed dock would consist of two sections: a 5' by 92' main section and a 6' by 10' walkway to the upland area. Thus, the total area of the dock would be 520 square feet. The application reportedly provides that Cayo Costa Island Partnership would use turbidity barriers during construction. The location of a 92-foot dock running parallel to the end of a 2000- foot long undeveloped canal presents no impediment to navigation. There is no reason to infer an adverse impact to flood control or, as long as turbidity barriers are used, a violation of water quality standards. By letter dated June 15, 1994, the Department of Environmental Protection acknowledged receipt of the application, as well as additional drawings and documents submitted on April 8, 1994. Based on these materials, the letter states that the proposed project "appears to qualify as an activity which is exempt from the need for a Department wetland resource permit under Florida Administrative Code Rule 17-312.050(1)(h)."
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Environmental Protection enter a final order dismissing the petition of Petitioner. ENTERED on November 22, 1994, in Tallahassee, Florida. ROBERT E. MEALE 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 on November 22, 1994. APPENDIX Rulings on Petitioner's Proposed Findings A-C: rejected as not findings of fact. A1: rejected as not finding of fact and irrelevant, except for last sentence, which is adopted or adopted in substance. A2-end: rejected as irrelevant, recitation of evidence, subordinate, and unsupported by the appropriate weight of the evidence. Rulings on Cayo Costa's Proposed Findings 1-10: adopted or adopted in substance. 11-12: rejected as subordinate. 13-15: adopted or adopted in substance. 16-23: rejected as subordinate, recitation of testimony, and unnecessary. 24-31: adopted or adopted in substance. 32-33: rejected as irrelevant. COPIES FURNISHED: Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Kenneth Plante, General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Barbara Mathews Trescott Pepper Law Firm 1505 S.E. 40th St. Cape Coral, FL 33904 Mary F. Smallwood Ruden, Barnett P.O. Box 10888 Tallahassee, FL 32302 John Chaves Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue The issue is whether to approve the City of Gulf Breeze's (City's) application for a Consolidated Wetland Resource Permit and Sovereign Submerged Lands Authorization to conduct a restoration project in Pensacola Bay.
Findings Of Fact Background This dispute involves a challenge by Petitioners to the third phase of a restoration project by the City designed to preserve the Island and protect its historical resources. The project site is located in sovereign submerged lands adjacent to the Island on the southwest side of the Highway 98 Bay Bridge which traverses Pensacola Bay connecting the Cities of Gulf Breeze and Pensacola. The Island is not a true island, but has always been connected to the mainland by a strip of land referred to as an isthmus, which meets the shoreline at Lot 36 of an older subdivision known as the First Addition to Casablanca Parcel No. 1 and platted almost sixty years ago. The isthmus juts out from Lot 36 into Pensacola Bay in a northwesterly direction for several hundred feet before making a 90-degree turn to the southwest where the Island then runs roughly parallel to the shoreline for around a half mile. See Joint Ex. 5-7, 14, and The Island, isthmus, and shoreline form the boundary around a small body of water known as Gilmore Bayou, an ecologically important and pristine salt marsh area. According to aerial photographs, at its widest point, the Island appears to be no more than a few hundred feet wide. Petitioners reside at Lot 37, which is just northeast of the isthmus on the shoreline. The rear part of Lot 37 faces Pensacola Bay and the City of Pensacola to the northwest. Lots 36, 35, and 34 (running to the southwest along the shoreline and facing Gilmore Bayou), are owned by Patricia Moreland, Robert Ozburn, and Intervenor Paul Tamburro, respectively, all of whom testified at the final hearing. Except for Petitioners, the project is supported by virtually all of the residents of the area as well as numerous civic organizations. See Joint Ex. 33. On July 14, 2008, the City filed with the Department its Joint Application for Works in the Waters of Florida, which would allow the City to complete the third phase of the project by (a) planting native submerged vegetation over approximately three acres of sovereign submerged lands, and (b) placing approximately 16,000 cubic yards of fill material and planting native emergent vegetation to stabilize the fill material on sovereign submerged lands at the north end of the Island. See Joint Ex. 3. The Department has authority under chapter 373, Florida Statutes, and Florida Administrative Code chapter 18-21 to approve the application. After an extensive review of the application, on August 9, 2010, the Department issued a Consolidated Notice of Intent to Issue Wetland Resource Permit and Consent to Use Sovereign Submerged Lands, which authorized the proposed project. See Joint Ex. 4. The proprietary authorization (letter of consent) was issued under the authority of rule 18- 21.005(1)(c), which identifies a number of activities that qualify for a letter of consent. In this case, because of the range of proposed activities, the project could qualify for a letter of consent under subparagraphs 8., 15., and 16. of the rule. On September 1, 2010, Petitioners filed their petition challenging the proposed agency action. While their initial pleading raised a number of issues, and cited two rules as a basis for reversing the agency action, these allegations have been substantially narrowed over the course of the proceeding and are now limited to the following: whether the project constitutes management activities associated with the protection of a historic site, thus qualifying for a letter of consent under rule 18-21.005(1)(c)16.; and whether the project unreasonably restricts or infringes upon their riparian rights of navigation, boating, swimming, and view, as proscribed by rule 18-21.004(3)(c). They also question whether Intervenor has standing to participate, but that issue is not dispositive of the primary issues in this case. Petitioners do not contest the issuance of a Wetland Resource Permit. Finally, Respondents and Intervenor question whether Petitioners have standing to initiate this action. The Project Site The project is located on sovereign submerged lands adjacent to the Island, a "naturally occurring sandy beach," as that term is contemplated in rule 18-21.005(1)(c)8. This is true even though portions of the "sandy beach" have eroded over time. The City owns the entirety of the Island. See Joint Ex. 14 and 15. This was not disputed by Petitioners. The Island is a public park, natural preserve, and historic site that is owned and maintained by the City exclusively for public use. Deeds by which the property was conveyed to the City require that it be forever used as a natural preserve and maintained in its natural state. See Joint Ex. 14 and 15. The Island and the area immediately adjacent thereto have a long and significant history dating back to the 1700's. Throughout the 1700's and 1800's, various portions of the Island were used as a careening facility for the repair and maintenance of large vessels. A marine railway was also built. In the late 1800's, a quarantine station was constructed on the Island where people who had contracted yellow fever were isolated. A cemetery exists upon the Island containing the remains of many who perished from the yellow fever epidemic. Also, there were many shipwrecks at the Island, of which some of the remains still exist. Accordingly, there are historic resources and artifacts such as shipwrecks and human remains on and around the Island. The Island has sustained significant erosion over the past 70 years. The northeast shoreline has eroded some 450 to 500 feet during that period of time. There has been a significant loss of vegetation and land mass. Without protection, the Island is in a perilous condition and subject to a permanent breach. The peat bog underlying the Island is vital to the stability of the Island and has been greatly damaged. It requires protective measures, such as those contemplated by the proposed project in order to assure its preservation. Due to the effects of hurricanes and storms, the erosion has substantially increased during the past decade. The erosion has caused the unearthing of and damage to historic artifacts and the salt marsh in Gilmore Bayou. There are clearly visible remnants of the former marine railway on the Island, which are being weakened by current weather events and require protection in order to preserve them. Caskets from the cemetery as well as human bone remains have been unearthed and additional damage will occur without protective restoration efforts. If the erosion continues, there will be more damage to the historic artifacts and the salt marsh will be destroyed. The Project To prevent further erosion and to protect the Island and Gilmore Bayou, the City has applied to the Department for three separate phases of a project to stabilize the shoreline. The first two phases of the project involved the construction of an artificial reef breakwater and the planting of shoreline vegetation. See Joint Exhibit 7a. They have already been approved by the Department and are no longer in issue. The first and second phases were challenged by Petitioners but the cases were eventually settled. See Case No. 09-4870, which involved the second phase. The third phase of the project is being conducted primarily for the maintenance of essentially natural conditions and for the propagation of fish and wildlife. This phase can be described as follows: restoration or nourishment of a naturally occurring sandy beach as contemplated by rule 18-21.005(1)(c)8.; habitat restoration or enhancement as contemplated by rule 18-21.005(1)(c)15.; management activity associated with protection of a park as contemplated by rule 18-21.005(1)(c)16.; management activity associated with protection of a preserve as contemplated by rule 18-21.005(1)(c)16.; management activity associated with protection of a historic site as contemplated by rule 18-21.005(1)(c)16.; and management activity associated with protection of habitat restoration or enhancement as contemplated by rule 18- 21.005(1)(c)16. While the project implicates each of the above provisions, the application and proposed agency action indicate that the letter of consent is granted on the theory that the project is associated with protection of historic sites. See Joint Ex. 4. The third phase is also designed to minimize or eliminate adverse impacts on fish and wildlife habitats and other naturally occurring resources. The project consists of the placement of 16,000 cubic yards of fill material in the area between the existing artificial oyster reef and the shoreline to restore and replace conditions that previously existed. The fill will consist of beach compatible sand that will be approximately six inches to a foot above mean high water. This phase also involves the planting of appropriate native wetland vegetation in the fill area, which will help stabilize the fill. The planting of vegetation in the third phase is separate and distinct from the plantings authorized in the second phase of the project. The project is needed in order to prevent further damage to a public park; public preserve; threatened, endangered, or special concern species of vegetation/habitat; and historic artifacts. These protection efforts were requested and recommended by the Florida Department of State. Petitioners contest only the propriety of the fill materials and the planting of the emergent stabilizing grasses on the fill. The fill portion of the project is located a significant distance from Petitioners' property. The closest portion of the project is estimated to be at least 550 feet from Petitioners' property, while the bulk of the project will take place between some 750 to 1,200 feet from their property. The Proposed Vegetation Planting In the third phase of the project, the City proposes to plant and establish emergent grasses (those that grow in water but partially pierce the surface) and sea grasses, all of which are appropriate native wetland vegetation on the Island. The proposed emergent grasses are Spartina alterniflora (also known as smooth cordgrass) and Juncus roemerianus (also known as black needle rush), which will be used for stabilization of wetlands. The proposed submerged seagrasses are Halodule wrightii (a type of shoal grass) and Ruppia maritime (a type of widgeon grass), which will help stabilize the fill. The smooth cordgrass is native to the Island. It will be planted in the fill area to prevent the fill from eroding. It is expected that once they mature, the height of the plants will not exceed two and one-half feet. Due to the water depth in the area, the shoreline slope, the sediment supply, and the wave action, the smooth cordgrass will not spread outside the proposed project area. Also, it will not interfere with navigation, boating, swimming, fishing, or view. The vegetation will, however, help fishing in the area. The black needle rush is also native to the Island. It will only grow to approximately two and one-half feet in height due to stressful conditions caused by the salt content in the water and wave action. It will not spread beyond the proposed project area and will not interfere with navigation, boating, swimming, fishing, or view. Like the smooth cordgrass, it will enhance fishing in the area. Both Halodule wrightii and Ruppia maritime are native to the Island. Both have slow growth rates, which when coupled with the "high energetics of the system," will hinder their ability to spread outside the project area. Neither seagrass will hinder navigation, boating, swimming, fishing, or view. They will afford a greater opportunity for snorkeling, recreation, and fishing; they will serve as a nursery habitat for finfish and shellfish; they will increase the habitat value of the area; and they will improve water quality. Petitioners submitted no evidence to contradict these findings. They also failed to submit any evidence that the fill material or grasses would spread into any riparian area that might be appurtenant to their Lot 37. The above findings are reinforced by the results of a separate project known as Project Greenshores located across Pensacola Bay from the Island. Project Greenshores involved the restoration of wetlands using dredge material to restore islands that are then protected by the construction of a breakwater and are stabilized by the planting of the same grasses that are proposed for the Island project. The two projects are in relatively close proximity to each other and have essentially the same environment. One difference, however, is that Project Greenshores receives a small source of sediment from stormwater outfalls, which means that it has a higher chance of grasses growing than does the Island. Even with the increased sediment, the grasses at that project have not spread beyond the project area, they have not interfered with navigation, boating, swimming, view, or fishing, and they have enhanced fishing in the area. Historical Artifacts Petitioners contend that the project does not qualify for a letter of consent under rule 18-21.005(1)(c)16. That provision authorizes the Department, acting on behalf of the Board of Trustees of the Internal Improvement Trust Fund, to issue a letter of consent for "management activities associated with . . . historical sites . . . provided there is no permanent preemption by structures or exclusion of the general public." As noted above, the Island has a long and significant history dating back to the early 1700's and there are historic resources and artifacts on the Island. See Finding of Fact 10, supra. When there is an archeological site issue in a permit, the Department typically relies on information from the Division of Historical Resources of the Department of State. See Fla. Admin. Code R. 18-21.004(2)(c)("reports by other agencies with related statutory, management, or regulatory authority may be considered in evaluating specific requests to use sovereignty lands"). Here, the Department relied on information from that agency, which indicates that there are archeological resources at the project site. The Department of State also recommended placing fill over the artifacts to protect them, which will be accomplished by the proposed fill. In addition, the Department relied upon information contained in a survey conducted by Mr. Empie, a registered professional surveyor, to generally show where those artifacts are located. See Joint Exhibit 5, also referred to as the Empie survey. The evidence supports a finding that the project is for management activities associated with historical sites. The record shows that there is strong public support for the project. See Joint Ex. 33. Although many of the artifacts will be covered by the fill, the fill will actually protect them from damage, destruction, theft, and removal. By protecting them, future generations will be able to enjoy the artifacts. No "structures," as that term is defined in rule 18- 21.005(1)(c)16., are part of the project. Therefore, the project will not cause permanent preemption by structures. Contrary to Petitioners' assertion, the project will not exclude the general public from the fill area. The City contemplates that other activities, such as underwater snorkeling, will encourage the public to utilize the project site. The evidence supports a finding that the project qualifies for a letter of consent under this rule. Riparian Lines The Empie survey provides a reasonable depiction of the various riparian lines in the areas adjacent to the proposed project. See Joint Ex. 5. A professional surveyor with the Division of State Lands, Mr. Maddox, agreed that it was a reasonable depiction of the angle of the riparian lines and a "fair distribution of riparian areas," including that of Lot 37. The only property owner adjacent to the Island is Patricia Moreland, who owns Lot 36 and has resided on that parcel since 1956. As noted above, the isthmus meets the northwest boundary line of Lot 36. By executing a Letter of Concurrence, Ms. Moreland conferred upon the City all rights, both proprietary and riparian, that she has with respect to Lot See Joint Ex. 16. Petitioners contend that they own riparian rights appurtenant to their Lot 37, which is to the east of Lot 36. The City and Intervenor dispute this claim and contend that Lot 37 does not adjoin any navigable water and thus there are no riparian rights appurtenant to Lot 37. Assuming arguendo that Lot 37 adjoins Pensacola Bay, it is still separated from the project site by riparian areas appurtenant to the Moreland property (Lot 36) as well as the riparian areas appurtenant to the City property, i.e., the Island and isthmus. The Empie survey, which reasonably depicts the riparian lines in the project area, shows the project site as being approximately 300 feet inside the existing breakwater, which is shown as being no closer than 48.9 feet away from the westernmost riparian line appurtenant to Lot 37. See Joint Ex. The primary portion of the fill site is located around 370 feet from the closest point of the western riparian line appurtenant to Lot 37. Id. No portion of the project is located within 25 feet of the Lot 37 riparian line. Id. Petitioners presented no evidence disputing the riparian areas identified on the Empie survey or otherwise identifying the areas of riparian rights appurtenant to their property. While they engaged the services of Mr. Barrett, a professional land surveyor to prepare a boundary survey, the purpose of the survey was to show that Lot 37 adjoins Pensacola Bay, rather than depicting the riparian areas appurtenant to that lot. See Petitioners' Ex. 1. Infringement on Riparian Rights Rule 18-21.004(3)(c) requires that "activities [in submerged lands] must be designed and conducted in a manner that will not unreasonably restrict or infringe upon the riparian rights of adjacent upland property owners." (emphasis added) Petitioners contend that, even though they do not routinely use their riparian rights, the project will restrict or infringe upon their riparian rights of boating, swimming, navigation, and view. To make this determination, they assert that the appropriate test under the rule is mere infringement, and not "unreasonable" infringement; however, this interpretation is contrary to the plain wording in the rule. The main living floor of Petitioners' residence is approximately 50 feet above sea level. The emergent grasses will be located no closer than 500 feet from the edge of Lot 37 and 600 feet from their residence and are expected to grow only to a height of no more than two and one-half feet. The concern that the grasses will impair Petitioners' view is without merit. Although Dr. Cope initially believed that fill or grass would be placed or planted "all the way up to and abutting our lot 37," this interpretation of the City's plans was incorrect. A photograph taken from his back yard indicated that he could view the northeastern corner of the Island where new vegetation or fill might be placed, but the photograph depicted an area outside of the Lot 37 riparian area. See Petitioners' Ex. 18. While Dr. Cope initially stated that the new emergent grass would "clearly degrade the view from both the house and the shoreline," he later acknowledged that the project would not have any effect upon his view of Lot 37's riparian areas. There are a boathouse and dock in the waters behind Petitioners' house. However, Petitioners submitted no evidence to support their suggestion that the project might cause the water behind Lot 37 to become more shallow and adversely affect boating and navigation. Contrary evidence by the Department and City was unrefuted. Finally, Dr. Cope stated at hearing that he has never been swimming in Gilmore Bayou or Pensacola Bay and has no intention of doing so. His wife offered no evidence that she ever intends to swim in those waters. In summary, the activities undertaken in the project area will not unreasonably restrict or infringe upon Petitioners' riparian rights of swimming, boating, navigation, or view within the meaning of rule 18-21.004(3)(c). Petitioners' Standing Respondents and Intervenor contend that Petitioners lack standing to bring this action for two reasons: that they do not own Lot 37 individually but rather as trustees, and the petition was not filed in that capacity; and that Lot 37 does not adjoin navigable waters. See § 253.141(1), Fla. Stat. ("[r]iparian rights are those incident to land bordering upon navigable waters"). As described by the City's real estate expert, in June 2010, or before the instant petition in this case was filed, the Copes executed two deeds for estate planning purposes, which resulted in "legal title [being] owned part by Dr. and Ms. Cope as to one-half life estate and for Ms. Cope as to one-half for her life estate [and] then the remainder interest is vested in the trustees [of the D. Nathan Cope or Cynthia Russell Cope revocable trust agreements] for the remainder interests." Put in plainer language, this meant that the ownership of Lot 37 is now divided as follows: an undivided 50 percent is owned by the wife as to a life estate and by the wife's revocable trust as to the remainder interest, and the other undivided 50 percent is owned by the wife and husband as to a life estate for the husband's lifetime and by the husband's revocable trust as to the remainder interest. Therefore, there are four entities or persons with an ownership interest in the property: Dr. Cope, Mrs. Cope, Dr. Cope's trust, and Mrs. Cope's trust. The City presented expert testimony regarding the chain of title of Lot 37, beginning in June 1952 when the subdivision was first platted, and running through June 2010, when Petitioners conveyed the property to themselves as trustees of two revocable trusts. According to the expert, the subdivision plat in 1952 reflects a narrow strip of property (described as a hiatus strip) separating the entire subdivision, including Lot 37, from the waters of Gilmore Bayou, Pensacola Bay, and Woodland Lake, a nearby body of water. The strip was a park that was dedicated to the public. See Joint Ex. 1. In 1962, the developer conveyed by quit claim deed the entire strip to the record title holder of each lot in the subdivision. At that time, Lot 37 was owned by the Blaylocks. The expert found that each conveyance of Lot 37 that occurred after 1962, up to and including the Copes' purchase of the property in February 2008, did not include the hiatus parcel. Therefore, he opined that title in the strip property continues to remain with the Blaylocks. Besides his title search, the expert further corroborated this opinion by referring to a topographic survey of Lot 37 prepared in June 2005, see Joint Ex. 2a; a title insurance policy on Lot 37 issued in 2008 when the Copes purchased the property that specifically excludes title insurance for the hiatus parcel; and a recent Santa Rosa County tax bill describing the property without the hiatus parcel. In response, Petitioners contend that the hiatus strip never existed or the 1952 plat is invalid because it failed to comply with section 177.08, Florida Statutes (1951), which required that "all land within the boundaries of the plat must be accounted for either by blocks, out lots, parks, streets, alleys or excepted parcels." Because a dispute over the exact boundary lines of Lot 37 exists, this issue must be resolved in the appropriate circuit court. See § 26.012(2)(g). For purposes of deciding the merits of this case, however, it is unnecessary that this determination be made. Intervenor's Standing Dr. Tamburro currently resides on Lot 34, which faces Gilmore Bayou, and jointly owns the property with his wife. He uses the Bayou to boat and for other recreational purposes. He also uses the Island to swim, walk, and boat. The preservation of the Island is important to him since it serves as a barrier island in protecting his home during storm events. Although Dr. Tamburro's wife did not join in his petition to intervene (but appeared as his counsel), he still has a recognized ownership interest in the property.1
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order approving the City's application for a Wetland Resource Permit and Letter of Consent to Use Sovereign Submerged Lands. DONE AND ENTERED this 20th day of April, 2011, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 20th day of April, 2011.
The Issue Introduction. 21 The Parties. 21 General Description of Monroe County 22 The Monroe County Year 2010 Comprehensive Plan 24 The Original Comprehensive Plan. 24 The Remedial Comprehensive Plan. 25 Area of Critical State Concern Review 27 The Florida Keys Area of Critical State Concern. 27 Area of Critical State Concern Review of the Remedial Plan. 28 The DCA Proposed Rules 31 Challenges to the DCA Proposed Rules 33 The Administration Commission Proposed Rules . 34 Challenges to the Administration Commission Proposed Rules 36 The Final Order in the DCA and Administration Commission Proposed Rules Challenge Cases. 36 The Department's Review Pursuant to the Act. 38 Section 163.3184, Florida Statutes 38 The Department's Review. 39 Impact of the Area of Critical State Concern Review on the Department's Review Under the Act. 40 Challenge to the Remedial Plan Pursuant to the Act by the Intervenors 41 Carrying Capacity: The Cornerstone of Monroe County Remedial Plan. 42 Carrying Capacity as a Planning Tool 42 Monroe County's Carrying Capacity Analysis 44 The Settlement Agreement's Reference to a Carrying Capacity Analysis 45 Monroe County's Application of the Carrying Capacity Analysis. 46 Hurricane Evacuation Carrying Capacity 47 Environmental Carrying Capacity. 48 The Department's Review of Monroe County's General Acceptance of a Carrying Capacity Approach 49 Monroe County's Environment. 49 The Unique Environmental Character of the Florida Keys 49 General Habitat Types in the Florida Keys. 51 Upland Habitat Types 53 Wetland and Transitional Wetland Habitat Types. 55 Marine Habitat Types 59 The National Marine Sanctuary. 63 The Upper, Middle and Lower Keys 64 Areas of Critical County Concern 66 Ohio Key 67 Coupon Bight 67 Species of Special Concern 68 The Florida Key Deer 68 Marine Turtles 72 The Impacts of Development on the Environment of the Florida Keys. 72 A Brief History of Development in the Florida Keys 72 The Impact of Development on Water Quality and Marine Resources 73 The Impact of Development on Coral Reefs 79 The Impact of Development on Seagrasses. 80 The Impacts of Boating 80 The Impacts of Docks and Marinas 82 The Impacts of Development on Wetlands and Transitional Wetlands. 83 The Impact of Development on Mangroves 85 The Impact of Development on Beach Berm. 85 The Impact of Development on Hammocks. 86 The Impact of Development on Offshore Islands. 87 The Impact of Development on North Key Largo . 88 The Impact of Development on Ohio Key. 88 The Impact of Development on Key Deer and Big Pine Key 89 The Impact of Development on Coupon Bight. 92 The Impact of Development on Marine Turtles. 92 The Florida Keys' Environmental Carrying Capacity 92 Monroe County's Conclusion 92 The Carrying Capacity of the Nearshore Waters and Seagrasses. 94 The Carrying Capacity of the Coral Reefs of the Florida Keys. 98 The Carrying Capacity of Offshore Islands. 98 The Carrying Capacity of North Key Largo, Ohio Key and Coupon Bight. 99 The Carrying Capacity of the Key Deer and Big Pine Key 101 The Need to Maximize Measures to Protect Other Environmental Features of the Florida Keys Environment 103 Sewage Treatment Systems 104 Provisions of the Remedial Plan. 104 The Department's Review Under the Act. 107 Intervenor Challenges. 108 Maintenance vs. Improvement. 109 Delay of the Adoption of the Master Plan 110 The Interim Levels of Service. 112 Cesspool Inspection Program. 117 Disturbed and Undisturbed Wetlands 117 Stormwater Treatment. 118 Provisions of the Remedial Plan. 118 The Department's Review Under the Act. 119 Intervenor Challenges. 119 Delay of the Adoption of the Master Plan 120 Impact on Water Quality. 121 The Interim Levels of Service. 121 Marine Resources 121 Provisions of the Remedial Plan. 121 The Department's Review Under the Plan 124 Intervenor Challenges. 125 Adequacy of Living Marine Resource Protections. 127 Moored/Anchored Vessels, Marinas and Docks. 128 Provisions of the Remedial Plan Impacting Moored/Anchored Vessels. 128 Provisions of the Remedial Plan Impacting Marines. 128 Provisions of the Remedial Plan Impacting Docks. 129 The Department's Review Under the Act. 131 Intervenor Challenges. 133 F Residential Docks. 135 G. Perpendicular Docks. 136 Canals 137 Provisions of the Remedial Plan. 137 The Department's Review Under the Act. 138 Intervenor Challenges. 138 Wetlands. 139 Provisions of the Remedial Plan. 139 The Department's Review Under the Act. 140 Intervenor Challenges. 140 Disturbed Wetlands 141 Setbacks 141 Provisions in the Remedial Plan. 141 The Department's Review Under the Plan 142 Intervenor Challenges. 143 The Justification for Setbacks 143 "No Net Loss" of Wetlands 145 Provisions of the Remedial Plan. 145 The Department's Review Under the Act. 145 Intervenor Challenges. 146 On-Site Mitigation vs. Off-Site Mitigation 147 ACCC: Big Pine Key, North Key Largo and Ohio Key. 148 Provisions of the Remedial Plan. 148 The Department's Review Under the Act. 151 Intervenor Challenges. 152 Big Pine Key; Protection of the Key Deer 154 North Key Largo. 155 Miscellaneous Environmental Provisions. 156 Freshwater Lenses. 156 Open Space Requirements for Hammocks 157 Public Access to Beaches 158 Public Expenditures in the Coastal Zone. 159 Natural Heritage and Park Program. 160 Protection of Upland Vegetation. 161 Clustering 161 Hurricane Evacuation Carrying Capacity. 162 Hurricanes 162 Preparation for Hurricanes 165 The Potential Impacts of Hurricanes on the Florida Keys 167 Evacuation and Refuges of Last Resort 169 Monroe County's Hurricane Evacuation Provisions 172 The Department's Review of Monroe County's Hurricane Evacuation Response in Objective 101.2. . . . . . . . . . . . . . . . . . . . .175 Intervenor Challenges. 177 Alleged Worthlessness of Undeveloped Property and Impact on Taxes. 179 Hurricane Evacuation Clearance Time Calculations 180 The Reasonableness of the Estimated Clearance Time Calculations. 187 Sham Device and Reasonableness of Monroe County's Hurricane Evacuation Goals. 189 Hurricane Shelters 191 The Board of County Commissioner's Meeting of May 4, 1991 198 The Administration Commission's Policy 216.1.19 . . . . . . . . . . . . . . . . . . .198 The Permit Allocation System 200 Monroe County's Decision to Employ a Permit Allocation System. 200 Provisions of the Remedial Plan Adopting the Permit Allocation System 203 Monroe County's Method of Allocating Allowable Growth Under the Permit Allocation System. 205 The Department's Review of the Permit Allocation System Under the Act. 210 The Department's Review of the Point System Under the Act. 210 Intervenor Challenges to the Permit Allocation System. 216 General Challenges to the Point System 216 Intervenor Challenges to Policies 101.5.4 and 101.5.5. 217 The Number of Permits and Subareas 218 The General Challenges to the Permit Allocation System 219 General Challenges to Policies 101.5.4 and 101.5.4. 222 Negative Points for Habitat, Habitat of Critical Concern and Species 222 Protected Species Habitat Map. 228 Coastal High Hazard Areas. 228 Platted Subdivisions 229 Affordable Housing 229 Transportation Levels of Service 229 Commercial Infill, and the Existence of Infrastructure 230 Points for TDRs. 230 Offshore Islands, Conservation Lands and Historic/Archaelogical Resources 232 Transferable Development Rights Program 233 The Current Transferable Development Rights Program. 233 Provisions of the Remedial Plan. 233 The Department's Review Under the Act. 236 D Intervenor Challenges. 238 E. Sender vs. Receiver Sites. 239 Land Use Categories. 242 Provisions of the Remedial Plan. 242 The Department's Review Under the Act. 243 Intervenor Challenges. 247 D. Policies 101.4.1 and 101.4.2 248 Maintenance of Community Character and Protection of Environmental Resources. 248 Residential Medium Land Use Category 249 Mixed Use/Commercial and Mixed Use/Commercial Fishing. 249 Disturbed Wetlands 251 Height Limitation. 251 The Future Land Use Map Series. 252 The Future Land Use Map Series Adopted by Monroe County 252 The Department's Review Under the Act. 252 Intervenor Challenges. 253 Are the Future Land Use Maps in Compliance With the Act 254 Vested Rights. 255 Provisions of the Remedial Plan. 255 The Department's Review Under the Act. 256 Intervenor Challenges. 258 Definition of Vested Rights. 258 Limited Application of Land Development Regulations to Property with Vested Rights 259 Miscellaneous Provisions of the Remedial Plan 260 Non-Residential Development. 260 The Monroe County Land Authority 263 Transient Residential Unit Moratorium. 264 Nonconforming Uses 266 The Coastal High Hazard Area 268 The Post-Disaster Redevelopment Plan 269 Siting Public Facilities 270 Intergovernmental Coordination 272 The County Geographic Information System 275 Public Expenditures for Services and Infrastructure 275 Affordable Housing 276 L. Goal 101 276 Roadway Improvements 277 Solid Waste Level of Service 278 Proposed Widening of U.S. Highway 1 on Big Pine Key 279 Public Participation 280 Capital Improvements 280 Monroe County's Commitment to Funding the Remedial Plan. 282 Monroe County's Determination of the Economic Impact Consequences of the Remedial Plan and Its Response Thereto 282 The Department's Review of Monroe County's Commitment to Funding the Remedial Plan. 284 Intervenor Challenges. 286 Monroe County's Lack of Commitment to Funding the Remedial Plan. 286 The Justification for Funding Assistance 287 Policy 1, as Modified by the Department and Policy 4 as Adopted by the Administration Commission are in Compliance with the Act. 288 Compliance with the State and Regional Plans. 291 The State Comprehensive Plan 291 The South Florida Regional Planning Council Policy Plan. 292 Constitutional Taking. 293
Conclusions For Petitioner, the Department of Community Affairs: Stephanie M. Gehres Assistant General Counsel David J. Russ Assistant General Counsel Department of Community Affairs 2796 Overseas Highway, Suite 212 Marathon, Florida 33050 For Respondent, Monroe County: Robert C. Apgar, Esquire David A. Theriaque, Esquire Apgar, Pelham, Pfeiffer & Theriaque 909 East Park Avenue Tallahassee, Florida 32301 For Intervenor, 1000 Friends of Florida, Inc.: Richard Grosso, Legal Director 1000 Friends of Florida Civil Law Clinic Shepard Broad Law Center NOVA Southeastern University 3305 College Aveneue Ft. Lauderdale, Florida 33314 For Intervenors, Henry Lee Morgenstern and Florida Wildlife Federation: David J. White, Esquire National Wildlife Federation 1401 Peachtree Street, Northeast Suite 240 Atlanta, Georgia 30309 For Intervenor, Friends of the Everglades, Inc.: Nancy Carroll Brown, President Friends of the Everglades, Inc. 9220 Southwest 166th Street Miami, Florida 33157 For Intervenor, Upper Keys Citizens Association: Dagny Johnson, President Upper Keys Citizens Association, Inc. 95,600 Overseas Highway Key Largo, Florida 33037 For Intervenors, George N. Kundtz and Florida Keys Citizens Coalition: Gregg Goldfarb, Esquire 19 West Flagler Street, Suite 707 Miami, Florida 33130 For Intervenor, The Wilderness Society: Debra S. Harrison Florida Keys Coordinator The Wilderness Society 8065 Overseas Highway Marathon, Florida 33050 For Intervenors, George DeCarion, et al.: James S. Mattson, Esquire Andrew M. Tobin, Esquire MATTSON & TOBIN Post Office Box 586 Key Largo, Florida 33037 STATEMENT OF THE ISSUES The issue in these cases is whether the remedial Monroe County Year 2010 Comprehensive Plan is "in compliance", as defined in Section 163.3184(1)(b), Florida Statutes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a Final Order finding that the Monroe County Year 2010 Comprehensive Plan is not in compliance within the meaning of Section 163.3184(1)(b), Florida Statutes, consistent with this Recommended Order. DONE and ORDERED this 17th day of July, 1995, in Tallahassee, Florida. LARRY J. SARTIN 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 19th day of July, 1995. APPENDIX A Case Numbers 91-1932GM and 93-3371GM The parties have submitted proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order, or the proposed findings of fact of the parties, except 1000 Friends of Florida, George N. Kundtz and the Florida Keys Citizens' Coalition and the Upper Keys' Citizens' Association, have been accepted or rejected in this Appendix A. The Department's Proposed Findings of Fact Proposed findings of fact which are hereby accepted in whole or in part: 1, 9-10, 24, 26, 31-34, 43, 60, 67, 73, 75, 78, 87-88, 91, 97-100, 102-103, 107, 160, 192, 224, 231, 237, 248, 256, 282, 288, 294, 300-303, 313, 316, 331, 338, 340, 355, 376 Proposed findings of fact which are rejected in whole or in part: 2 Not a finding of fact. 108 The last sentence is not supported by the weight of the evidence. Monroe County's Proposed Findings of Fact Proposed findings of fact which are hereby accepted in whole or in part: 3, Footnote 4, 42, 55, 93-94, 115, 125-127, 130, 173, 178, and 181. Proposed findings of fact which are rejected in whole or in part: 10 The third sentence is not supported by the weight of the evidence. 13 The second sentence to the next to last sentence is not supported by the weight of the evidence. The first sentence is not supported by the weight of the evidence and the rest of the proposed finding is not relevant. Not supported by the weight of the evidence. 40 The first sentence is not supported by the weight of the evidence. The first and last sentences are not supported by the weight of the evidence. "DCA" did not amend Policy 1. Not supported by the weight of the evidence and there has been no challenge to the rules that address Policy 1. 48 Not supported by the weight of the evidence and there has been no challenge to the rules that address Policy 1. 58 The last three sentences are not supported by the weight of the evidence. 133 The last sentence is not supported by the weight of the evidence. 138 The first two sentences are not supported by the weight of the evidence. 146 The last three sentences are not relevant. Not supported by the weight of the evidence. Not supported by the weight of the evidence. Although generally true, the proposed finding ignores the fact that the evidence failed to prove that the lack of action by the Service is because the key deer have not reached their carrying capacity, which is the issue in these proceedings. The first two sentences are not supported by the weight of the evidence. The last sentence is not relevant. 157-159 Although generally correct summaries of some testimony, these proposed findings are not relevant. 160-163 These proposed findings are generally accepted. They do not, however, justify failing to recognize that the carrying capacity of the key deer has been exceeded. Not relevant. Not supported by the weight of the evidence. 170 The last sentence is not supported by the weight of the evidence. Not supported by the weight of the evidence. The last two sentences are not supported by the weight of the evidence. The first sentence is not supported by the weight of the evidence. Not supported by the weight of the evidence. The first and last sentences are not supported by the weight of the evidence. The last sentence is not supported by the weight of the evidence. Not supported by the weight of the evidence. The last sentence is not supported by the weight of the evidence. The last sentence is not supported by the weight of the evidence. 189 The last sentence is not supported by the weight of the evidence. 191 The last sentence is not supported by the weight of the evidence. 193 The last sentence is not supported by the weight of the evidence. 195 The first sentence is not supported by the weight of the evidence. The last two sentences are not supported by the weight of the evidence. The first sentence is not supported by the weight of the evidence. Not supported by the weight of the evidence. 202 The first and last sentences are not supported by the weight of the evidence. 203 Not supported by the weight of the evidence. 204 Not supported by the weight of the evidence. 205 Not relevant. 205 Not relevant. DeCarion's Proposed Findings of Fact Findings of fact after number 53 have not been numbered in DeCarion's proposed order. They are referred to in this Appendix by the titles of the portion of the proposed order under which they appear. Proposed findings of fact which are hereby accepted in whole or in part: 1, 25-29, 32, 35-38 Proposed findings of fact which are rejected in whole or in part: 1 No evidence to support this proposed finding was presented. Standing was, however, stipulated to. 7-16 Although generally correct, the conclusions reached in these proposed findings are not supported by the weight of the evidence. 19 Not supported by the weight of the evidence. 24 The first sentence is not relevant. 43-44 While these proposed findings are an accurate reflection of some of the testimony in these proceedings, the conclusions suggested by DeCarion are not supported by the weight of the evidence. 46-48 Not supported by the weight of the evidence. 49-50 Not relevant. Not supported by the weight of the evidence. The first three sentences are not supported by the weight of the evidence. The third sentence is not supported by the weight of the evidence. "Five-Year Moratorium on Hotel-Motel Construction": The second paragraph is not supported by the weight of the evidence. "Marina Expansion Restrictions": The second paragraph is not supported by the weight of the evidence. Wilderness Society's Proposed Findings of Fact Proposed findings of fact which are hereby accepted in whole or in part: 1, 7, 10, 12, 29, 34, 71-72, 81, 87, 138, 141 Proposed findings of fact which are rejected in whole or in part: 3-6 Not relevant. 73-75 Not relevant. 88-89 Not supported by the weight of the evidence. 102-103 Not relevant. Not relevant. The first paragraph is not supported by the weight of the evidence. 117-130 Not relevant. 147-248 Not relevant. 154 Not supported by the weight of the evidence. 159-161 Not relevant. APPENDIX B ORIGINAL AND REMEDIAL PLAN CHALLENGE CASES: CASE NUMBERS 91-1932GM AND 93-3371GM TABLE OF CONTENTS APPEARANCES. 3
The Issue The issue in this case is whether Comprehensive Plan Amendment 2002-02, adopted by the Town of Jupiter (Town) as Ordinance 62-02, is "in compliance" as defined in Section 163.3184(1)(b), Florida Statutes.1
Findings Of Fact The Parties Petitioner, Anna Current, resides at property on the Jupiter River in the Town of Jupiter at 711 Ryan Road, Jupiter, Florida 33477. The Town of Jupiter (Town) is a municipality of the State of Florida whose address is 210 Military Trail, Jupiter, Florida. The Department of Community Affairs (DCA) is the state land planning agency with the duty to review comprehensive plan amendments pursuant to Sections 163.3164(20) and 163.3184. The Amendment Amendment 2002-02 (Amendment), which was adopted by the Town's Ordinance 62-02, consists of four text amendments, one amendment to the Transportation Map Series, and one amendment to the future land use map (FLUM) element. The first text amendment amends the Transportation Element by adding Policy 2.2.6. Policy 2.2.6 requires updates to the Town's Bicycle Transportation Master Plan. The second text amendment amends the text of the Conservation Element. Specifically, it amends Policy 1.2.5 to reference the June 2000 as opposed to the December 1985 version of the "Loxahatchee River National Wild and Scenic River Management Plan." The third text amendment adds two new policies to the Intergovernmental Coordination Element of the Town’s Comprehensive Plan. These policies reference and adopt certain parameters for the Western Corridor Interlocal Agreement, an interlocal agreement between the Town, Palm Beach County and Martin County. The fourth text amendment amends certain tables related to Level of Service and Capacity Standards in the Public School Facilities Element. The fifth change adds Figures 10 and 10a and amends Figures 5, 6 and 7 of the Transportation Map Series. The sixth and final section of the Amendment changes the Future Land Use Map for the Town of Jupiter. Specifically, it redesignates 12.3 acres in Jupiter Community Park from the recreation land use category to the conservation land use category. The Adoption Process On August 13, 2002, the Town's Planning and Zoning Commission, acting as the local planning agency (LPA), held a public hearing and recommended that the Jupiter Town Council approve seven separate comprehensive plan amendments. These amendments consisted of five text amendments, an amendment to the Transportation Map Series (with modifications), and a Future Land Use Map (FLUM) amendment. Petitioner testified that this LPA public hearing was not advertised in advance. The Town's witness, David Kemp, who is the Town's Principal Long Range Planner, did not dispute Petitioner's testimony; instead, he testified that he did not recall whether this LPA public hearing was advertised. There was documentary evidence that, on July 7, 2003, the Town Planner sent an e-mail message to the Town's Clerk informing her that, with regard to Petitioner's request for "proof of publication" of the advertisement for the LPA meeting on August 13, 2002, the Town Planner's staff had reviewed all relevant files and was unable to locate the requested public records. There also was documentary evidence that the Town's Records and Archives Manager notified the Town's Clerk by e- mail on April 29, 2003, that Petitioner had requested a copy of the "proof of publication" of the advertisement for the LPA public hearing on August 13, 2002, and had been informed that no advertisement was necessary since it was a regular meeting of the LPA. The minutes of the LPA's meeting on August 13, 2002, show that the six component parts being considered as part of the proposed Amendment 2002-02 were on the LPA's regular meeting consent agenda. The minutes indicate that two of the components were "pulled" from the consent agenda. The minutes also indicate that no one in attendance at the meeting spoke on the proposed amendments. The minutes do not reflect that the LPA or any of its members invited public participation before a vote was taken on the six components of the proposed amendments. Neither the Town nor DCA introduced evidence of an advertisement for the LPA's meeting on August 13, 2002, notwithstanding their listing of proof of publication of the advertisement as a joint exhibit of the DCA and the Town in their Joint Prehearing Statement, and Petitioner's stipulation to its admissibility. The minutes of the LPA meeting on August 13, 2002, reflect that Petitioner was not present during the consent agenda portion of the meeting. They indicate that she appeared later for the regular agenda portion of the meeting and spoke in favor of a site plan/special exception/PUD application being considered during that portion of the meeting. On Tuesday, September 3, and Tuesday, September 17, 2002, the Jupiter Town Council held public hearings and approved the transmittal of Ordinance 62-02, consisting of all seven of the proposed plan amendments recommended by the LPA, to DCA. The transmittal public hearing was held on a weekday at least seven days after the advertisement for the public hearing, which appeared in the Palm Beach Post, a newspaper of general circulation in the Town, on August 25, 2002. The advertisement included the title of the proposed Ordinance 62- 02, in bold: AN ORDINANCE OF THE TOWN . . . AMENDING ORDINANCE NO. 57-89, THE COMPREHENSIVE PLAN OF THE TOWN . . . ; AMENDING THE TEXT OF THE CONSERVATION, FUTURE LAND USE, INTERGOVERNMENTAL COORDINATION, AND PUBLIC SCHOOL FACILITIES ELEMENTS; AMENDING THE TEXT AND MAP SERIES OF THE TRANSPORTATION ELEMENT; PROVIDING FOR AN AMENDMENT TO THE FUTURE LAND USE ELEMENT TO CHANGE THE LAND USE DESIGNATION OF A 12.3 ACRE PROPERTY LOCATED IN THE NORTHERN PART OF THE TOWN'S COMMUNITY PARK AT 3377 CHURCH STREET FROM A RECREATION DESIGNATION TO A CONSERVATION DESIGNATION; . . . . The advertisement also included a map showing the location of the 12.3-acre property. At the transmittal hearing, the public was invited to comment, and three individuals offered public comments. On September 26, 2002, DCA received the proposed amendments. Although the Town requested that DCA not review the Amendment or issue an Objections, Recommendations, and Comments Report (ORC report), Petitioner requested a review and ORC report, and DCA determined that a review and ORC report were necessary, even if not requested by Petitioner. DCA conducted a review of the proposed amendments for consistency with the requirements of Chapter 163, Part II, Florida Statutes, Florida Administrative Code Rule 9J-5, the Treasure Coast Regional Planning Council Strategic Policy Plan, and Chapter 187, Florida Statutes (the State Comprehensive Plan), and issued an ORC report to the Town of Jupiter on November 27, 2002. The ORC report raised only one objection, specifically to a text amendment that would allow for increased densities in the Coastal High Hazard Area. The Town Council held a public hearing on December 17, 2002, at which six of the seven proposed changes contemplated by the transmitted proposed amendments were adopted. (The Town did not adopt the amendment to which DCA has objected in the ORC report.) This adoption hearing was held on a weekday at least five days after the advertisement for the public hearing appeared in the Palm Beach Post, a newspaper of general circulation in the Town. The advertising appeared on December 10, 2002. The advertisement included, in bold, the same title of the proposed Ordinance 62-02 as the transmittal hearing advertisement, except that reference to the text change to the Future Land Use Element was omitted. The advertisement also included a map showing the location of the 12.3-acre property (as well as other properties affected by other ordinances being advertised at the same time). At the adoption hearing, Petitioner offered written comments. There were no other comments or objections. Petitioner attempted to prove that the Town failed to meet a statutory requirement to provide sign-forms for comprehensive plan amendment hearings. She proved that no sign-in forms were provided for the LPA hearing on August 13, 2002. She did not prove that no sign-in forms were provided for the transmittal hearings in September 2002 or for the adoption hearing in December 2002. On December 23, 2002, DCA received the Town’s adopted Amendment 2002-02 for review. DCA conducted a review of adopted Amendment 2002-02 for consistency with the requirements of Chapter 163, Part II, Florida Statutes, Rule 9J-5, the Treasure Coast Regional Planning Council Strategic Policy Plan, and Chapter 187, Florida Statutes (the State Comprehensive Plan). Amendment 2002-02 was found to be "in compliance." DCA's witness, Senior Planner, Dr. Joseph Addae- Mensa, testified that DCA's review of an adopted plan amendment includes verification that the local government held the required advertised transmittal and adoption hearings. According to his testimony, this ordinarily is accomplished by a simple review to ascertain that the local government included the usual statement in its submission to DCA to the effect that the required advertised public hearings had been held. In this case, the Town's submission included such a statement, and DCA's review went no further. Town's Public Participation and Advertising Requirements Petitioner asserts that the Town's adoption of Resolution No. 58-87 on December 1, 1987, specified additional or more stringent public participation and notice procedures for the consideration and recommendation of comprehensive plans and amendments by the Town's LPA and for the adoption of such plans by the Town's governing body. However, Section 1 of the Resolution stated: The Town of Jupiter hereby adopts the following procedures [for the LPA and Town Council] to implement . . . [minimum] criteria as established by [DCA] . . . pending the enactment of permanent provisions by Ordinance, provided, however, that any failure by the Town to fully comply with the technical requirements hereof shall not be cause to invalidate the adoption of any Amendments to the Jupiter Comprehensive Plan which otherwise meet the requirements of law . . . . In addition, on March 3, 1998, the Town's new home-rule charter became effective. It provided in Article VI that "procedures for the adoption of ordinances and resolutions for the Town of Jupiter shall be as made and provided by the Florida Statutes, as may be hereafter amended and revised" and that the Town Council "may provide, by appropriate action, requirements for the adoption of ordinances and resolutions which are more stringent than those set forth in the Florida Statutes." There was no evidence of any subsequent "appropriate action" to establish procedures that are "more stringent . . . than those set forth in the Florida Statutes." Resolution 58-87 was neither repealed nor re-enacted after the effective date of the home-rule charter. However, it appears that the home-rule charter should be viewed as repealing or superseding Resolution 58-87. In any event, for purposes of this proceeding, as indicated, Resolution 58-87 did not add any compliance review criteria to the "requirements of law." Data and Analysis for the Conservation Element Petitioner attempted to challenge the text amendment to the Conservation Element of the Town’s Comprehensive Plan. The Amended Petition states: "The restrictions placed on the Loxahatchee River Buffer were hastily prepared, flawed, and dubious in value. It was submitted without valid data and analysis." It was determined at the hearing that Petitioner actually mistakenly was seeking to challenge either a subsequent FLUM amendment considered by the Town Council in July, 2003, or land development regulations that were considered by the Town Council in February, 2003. These are not the changes to the Conservation Element of the Town’s Comprehensive Plan adopted in Amendment 2002-02. The amendment at issue here merely changed a reference from the December 1985 version of the "Loxahatchee River National Wild and Scenic River Management Plan" to the June 2000 plan. Submitted with the Amendment was data and analysis in the form of a staff report describing the procedural process used to adopt the amendment to the Conservation Element, staff analysis, and a narrative explanation of why this essentially housekeeping item was needed. Petitioner presented no evidence at hearing that this minor change to the Conservation Element was submitted without adequate valid data and analysis. Data and Analysis for the Transportation Element Petitioner challenged the modification of Transportation Map Series figures 5, 6 and 7, and on the basis that they were supported by old data from 1999. DCA did not raise this as an objection in their ORC report. The Florida Department of Transportation ("FDOT") did raise the issue of old data as an objection in its comment letter to DCA dated October 21, 2002. After receipt of the comment letter, however, Town Staff contacted FDOT regarding the objection. Town Staff explained that the Town was completing a transportation study related to the Indiantown Road Corridor and indicated the Town's commitment to incorporating the data and analysis contained in the final transportation study into the Transportation Element in a subsequent round of comprehensive plan amendments. At the final hearing, David Kemp, Principle Long Range Planner for the Town, testified that the Transportation Map Series amendments were to reflect only the possible alignment of a future roadway, that the Town had utilized the most current data based on the interlocal agreement and the alignments shown in the interlocal agreement, and that the Town had resolved the FDOT's concerns regarding the data. Submitted with the Amendment was data and analysis in the form of a staff report describing the procedural process used to adopt the amendment to the Transportation Element and Map Series, staff analysis which responded to FDOT's objections, and a narrative explanation describing the changes and why they were needed. Petitioner did not prove beyond fair debate that the Transportation Map Series amendment was not supported by data and analysis. Other Substantive Issues Other issues Petitioner may have raised in her challenge to the compliance determination in this case either were dropped or were unfounded, some having been mistakenly directed to Town action other than the Amendment at issue in this case.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DCA enter a final order finding the Town's Amendment 2002-02 to be "in compliance." DONE AND ENTERED this 24th day of October, 2003, in Tallahassee, Leon County, Florida. S __________________________________ J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 2002.
The Issue DOAH Case No. 04-0262: Whether Respondent, West Florida Landscaping & Landscaping, Inc. ("West Florida Landscaping"), owes Petitioner, South Florida Sod, Inc. ("South Florida Sod"), $29,360.80 for the sale of sod during the months of July and August 2003. DOAH Case No. 04-0306: Whether Respondent, West Florida Landscaping, owes Petitioner, Bayside Sod, Inc. ("Bayside Sod"), $18,750.68 for the sale of sod during the month of October 2003.
Findings Of Fact Petitioners, South Florida Sod and Bayside Sod, are producers of agricultural products as defined by Subsection 604.15(5), Florida Statutes (2003). Both Petitioners grow and sell sod. South Florida Sod is located in Arcadia, Florida. Bayside Sod is located in Sarasota, Florida. Respondent, West Florida Landscaping, located in Plant City, Florida, is a dealer in agricultural products as defined by Subsection 604.15(1), Florida Statutes (2003). At the time of the transactions in question, West Florida Landscaping was licensed as a dealer in agricultural products supported by a surety bond provided by Old Republic Surety Company. West Florida Landscaping began purchasing sod from South Florida Sod in early 2003. The sod was purchased by a man named Dallas Justice. Bryant McCall, vice president of South Florida Sod, testified that Robert Owens, the owner of West Florida Landscaping, told him that Mr. Justice worked for him and would do the ordering for West Florida Landscaping. The initial purchases were cash transactions. At some point during the course of dealings, Mr. Owens contacted South Florida Sod to request a line of credit. Mr. Owens completed a credit application, and thereafter West Florida Landscaping purchased sod on credit. Mr. McCall testified that West Florida Landscaping was never a model credit customer. He had to "hound" West Florida Landscaping to pay its bill. However, up until July and August 2003, West Florida Landscaping always paid the bill, though often well after payment was due. From July 11 through August 27, 2003, Mr. Justice placed 43 orders for sod with South Florida Sod in the name of West Florida Landscaping. The sod was picked up at South Florida Sod's place of business by truckers sent by Mr. Justice. The total price for all these orders was $29,360.80. Invoices for each of these orders were sent to West Florida Landscaping, which neither paid them nor disputed their validity. Mr. McCall contacted Mr. Owens about payment of the invoices. Mr. McCall testified that Mr. Owens stated that he had been out of town during the period of the unpaid invoices. Mr. Owens told Mr. McCall that upon returning, he discovered that Mr. Justice was defrauding him. Mr. Justice was ordering the sod and completing the work for West Florida Landscaping projects, but was also collecting the customers' payments and keeping the money for himself. Mr. Owens did not fire Mr. Justice or turn him over to law enforcement authorities because he wanted Mr. Justice to work off the debt. Mr. Owens promised Mr. McCall that he would make good on the debts incurred by Mr. Justice with South Florida Sod. Mr. McCall testified that a payment schedule was established, but that Mr. Owens did not observe it, forcing South Florida Sod to file a Producer Complaint. As of December 5, 2003, the balance owed South Florida Sod by West Florida Landscaping was $29,360.80. West Florida Landscaping began purchasing sod from Bayside Sod on a cash basis sometime in the middle of 2003. A man named "Gene," later identified as Dallas Justice, ordered the sod on behalf of West Florida Landscaping. Bayside Sod sold 11 truckloads of sod to Mr. Justice and was paid cash. On October 1, 2003, Bayside Sod first extended credit to Mr. Justice at his request. Between October 2 and October 22, 2003, Mr. Justice took delivery of 23 orders for various amounts of sod worth $18,750, with Florida sales tax. None of these deliveries was paid for by Mr. Justice or West Florida Landscaping. Paul Bispham, owner and president of Bayside Sod, testified that he spoke with Mr. Owens on December 13, 2003. Mr. Owens assured Mr. Bispham that he and Mr. Justice would pay the debt. Benjamin Strong is a field superintendent for Trent Colony Landscaping. He gave West Florida Landscaping's name to Mr. Bispham as a reference when the latter contacted him to solicit new business. Mr. Strong had done business with Mr. Justice and West Florida Landscaping. His practice was to make out checks to West Florida Landscaping and give the checks to Mr. Justice. Mr. Strong testified that Mr. Owens later told him emphatically not to give any West Florida Landscaping checks to Mr. Justice. At the hearing, Mr. Owens denied that Mr. Justice was ever an employee of West Florida Landscaping. Rather, Mr. Justice was an independent contractor whom Mr. Owens would hire on a per-job basis to lay sod. However, Mr. Owens admitted that he gave Mr. Justice authority to order sod for West Florida Landscaping, thus mooting the significance of Mr. Justice's status as an employee or independent contractor. Mr. Owens further admitted that he signed the letter seeking a line of credit from South Florida Sod. Mr. Owens testified that he was in New Orleans for an extended period. While Mr. Owens was gone, Mr. Justice began ordering sod for jobs of his own, but had the purchases billed to West Florida Landscaping. Mr. Owens testified that he has paid for any sod that Mr. Justice ordered for West Florida Landscaping projects, but that he believed himself under no obligation to pay for sod that Mr. Justice ordered for his own jobs. He discovered, belatedly, that Mr. Justice was "a liar and a cheat." Mr. McCall credibly testified that Mr. Owens said nothing to him about Mr. Justice having used West Florida Landscaping's name to fraudulently obtain sod. Rather, Mr. Owens told him that Mr. Justice was, in Mr. Owens' absence, completing West Florida Landscaping jobs, but then cashing the checks made out to West Florida Landscaping and pocketing the money. This testimony is consistent with that of Mr. Strong and is credited. Mr. Owens admitted to making some efforts to deduct money from Mr. Justice's pay in order to settle the debts with South Florida Sod, but stated that he did not feel a legal obligation to do so. Mr. Justice was subpoenaed to appear and testify at the hearing in this matter, but he did not appear. By the weight of the evidence and by his own admission, Mr. Owens authorized Mr. Justice to order sod on behalf of West Florida Landscaping. The evidence established that a course of dealing was established between Mr. Justice, on behalf of West Florida Landscaping, and the Petitioners in these cases, whereby Mr. Justice would order and take delivery of the sod from the Petitioners, and West Florida Landscaping would pay the invoices for the sod. The greater weight of the evidence is that Mr. Justice was acting on behalf of West Florida Landscaping in all his dealings with South Florida Sod and Bayside Sod. In light of the established course of dealing, West Florida Landscaping failed to establish any reasonable basis for its contention that South Florida Sod and Bayside Sod should have inquired as to Mr. Justice's continuing authority on each occasion that he ordered their sod. Mr. Owens' testimony that the sod ordered by Mr. Justice from South Florida Sod and Bayside Sod was not for West Florida Landscaping jobs cannot be credited based on the testimony of other witnesses and Mr. Owens' own actions subsequent to learning these suppliers had not been paid. While there is no question that Mr. Justice was the actual wrongdoer in these cases, there is also no question that it was West Florida Landscaping that lent the name of its legitimate business to Mr. Justice and, thus, enabled him to defraud South Florida Sod and Bayside Sod.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order ordering Respondent, West Florida Irrigation & Landscaping, Inc., to pay $29,360.80 to South Florida Sod, Inc., and $18,750.68 to Bayside Sod, Inc., together with pre-judgment interest calculated at the rate specified in Section 55.03, Florida Statutes (2003); and further requiring Old Republic Surety Company to make payment, up to the amount of its bond, in the event that West Florida Irrigation & Landscaping, Inc., fails to make payment in a timely manner. DONE AND ENTERED this 1st day of March, 2005, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of March, 2005.
Findings Of Fact 1. In formulating Paragraph 8 of the Findings of Fact set out in the June 24 Recommended Order, the undersigned Hearing Officer considered all uses permissible under the City of Key West "M-1" zoning classification to the extent that the evidence would permit such consideration. Uses permitted under the "M- 1" zoning classification are set out at Page 15E of Hearing Officer's Exhibit It is clear from the evidence that introduction of industrial uses into the historic preservation districts in areas where industrial uses are incompatible with the surroundings would have a deleterious effect upon the district. Intrusion of industrial uses into a non-industrial portion of the district could have a "domino effect" eventually resulting in a loss of the characteristics of the district which its designation as an historic preservation district was designed to preserve. The crucial question is whether the industrial use is incompatible with that part of the historic preservation district in which it is being introduced. In the instant case the block of Ann Street between Front Street and Green Street is dominated by commercial and light industrial uses. A patio restaurant, a hardware store, several small residential structures with no historic significance, the headquarters of a newspaper, and a paint and body shop are located on the block. One vacant lot is used for open storage of hardware supplies. Use of the subject property for the open storage of lumber does no more to offend the historic preservation district than do uses which already dominate the block. If the property owners seek to place any new structures on the property, or to remove any existing structures from the property, they will need to obtain approval from the Old Island Restoration Commission. There is a possibility that the property owners could utilize the property for any of the uses permitted under the "M-1" zoning classification without obtaining approval from the Old Island Restoration Commission if they did so without constructing new buildings or removing old buildings. There was no evidence presented at the hearing from which any conclusion can be made respecting what, if any, such uses could be undertaken. None of the permissive uses are, in and of themselves, less compatible with the historic preservation district than uses which already appear on the street. No evidence was presented from which it could be concluded that any uses permissible under the "M-1" classification would, without further construction, be more injurious to historic preservation than the open storage of lumber. SUPPLEMENTAL CONCLUSIONS OF LAW The burden of establishing the invalidity of the local development orders rests with the Appellant, Division of State Planning. Absent proof to the contrary it must be assumed that the local development orders are valid. No evidence was offered at the hearing that would support a conclusion that the property owners could put the subject property to a use permissible under the "M-1" zoning classification, which use would be incompatible with that portion of the historic preservation district where the property lies, without the need for additional construction and thus approval from the Old Island Restoration Commission. No evidence was offered at the hearing that would support a conclusion that any of the uses permissible under the "M-1" classification would, by their mere presence, be incompatible with that portion of the district where the property lies.
