Findings Of Fact Ocean Reef Club, Inc., is the developer of certain lands located on the northern end of Key Largo, Monroe County, Florida. The development began as a fishing village in the 1940's and now includes private residences, a marina, and residential docking facilities. Ocean Reef applied in 1982 to DER for a permit to construct a residential docking facility known as Fisherman's Wharf. The facility was to provide a number of parallel docking spaces with an access channel following an existing tidal creek to the northeast connecting to a waterway known as the Harbor House Basin. The permit was issued on October 5, 1984, authorizing construction of a 4-foot wide parallel dock approximately 600-feet long, the dredging of a turning basin through the excavation of approximately 1800 cubic yards of material and the dredging of some 200 cubic yards from an existing tidal creek along a 480 lineal foot length of the creek to a width of 5-feet; all located in No Name Creek, a tidal creek connecting Harbor House Marina to Pumpkin Creek, in Card Sound, Key Largo, Monroe County, Section 11, Township 59 South, Range 41 East. That permit was extended by a letter dated June 10, 1987, and now carries an expiration date of October 5, 1989. The existing permit held by Ocean Reef Club, valid until 1989, would allow the direct dredging of a tidal creek vegetated by seagrasses over a 400- foot length yielding a direct dredging of seagrasses of some 3000 square feet. During the two-year processing time leading to issuance of the permit, Ocean Reef sold a portion of the property comprising the access channel to third parties who now will not grant their permission authorizing channel construction across their property. As a result, in 1987, Petitioner requested a major modification to permit no. 440601649. Although Petitioner attempted to show that its change of plans had been inconsistently processed by DER as a new permit application when DER was obligated to treat it as a modification of a prior permit which would require no new application, processing, or permit, Petitioner was unable to do so. Petitioner's expert professional land surveyor, Joseph Steinocher,, concurred with DER witnesses Kelly Jo Custer and David Bishof that the Ocean Reef plan changes were so significantly altered as to constitute a wholly new project. Steinocher specifically indicated it was a "significant change in that there is no relationship between the two," and Custer, DER's marina permitting specialist, testified that DER's consistently applied policy is to require all such significant permit modifications to be processed de novo as wholly new permit applications because to do otherwise would not be in the public interest. Custer was also qualified as an expert in marine biology and water quality, and from Custer's viewpoint, the changed plans constitute a new and different project for many reasons but primarily because the project impacts on water which have been designated Outstanding Florida Waters (OFW) during the intervening years. The project revision/new permit application plans changed the configuration of the turning basin, providing for a kidney-shaped upland basin with the utilization of an additional portion of No Name Creek, extending Southeasterly toward the entrance of a water body known as Fisherman's Cove. Because the project initially proposed disturbance of wetlands and dredging of mangroves, a mitigation area of some 10,300 square feet was included in the plan. The original proposal called for the straightening of an oxbow in the existing tidal creek and the placement of fill through approximately one-half the reach of the tidal creek to gain access to the dredge area with the fill to be removed after construction. During the processing of the latest permit application, adverse comments were received from DER staff members, and the Petitioner modified the application to eliminate the straightening of the oxbow. The pending proposal involves the construction of 24 boat slips along a floating dock, the installation of boulder rip-rap, and the placement of culverts to allow access to a central island to remain after construction of the docking facility. As a result of prior permit agreements between the parties, Ocean Reef Club had conveyed approximately 730 acres to the State of Florida Board of Trustees of the Internal Improvement Fund by special warranty deed dated March 17, 1982. Petitioner asserted but failed to prove up that all construction involved in the pending proposal is landward of those lands either conveyed by that special warranty deed or otherwise in the control of the State of Florida and in fact would be wholly upon its own property. Even had the private property encapsulation of the construction been established, Petitioner's registered land surveyor admitted that the tidal creek entrance is within the limits of the deed to the State of Florida. Access for the proposed 24-slip facility will be through the existing tidal creek that has water depths ranging from minus 2.2 feet to in excess of minus 8 feet at low tide. The earlier proposal would have required only a small portion of the natural creek to be used by motor boats. The project contemplated in 1984 and the one which is the subject of the present litigation are not comparable either biologically nor legally. It is noted that one condition of the 1984 permit even required navigational barriers to be placed at the mouth of No Name Creek. Accordingly, it is specifically found that the significant plan changes render the pending Ocean Reef permit application truly a new project rather than a minor modification as contemplated by Chapter 17-12 F.A.C. Petitioner also attempted to demonstrate that DER's denial of the new permit application was inconsistent with its issuance of permits for similar marina projects in other locations. Neither these allegedly similar applications, supporting plans therefor, nor permits were offered in evidence for comparison. Moreover, for one reason or another, some of the named projects differed so much from the subject application that one witness, Kenneth L. Eckternacht, expert in hydrographic engineering, physical oceanography, and navigation, characterized the comparison as "apples to monkies." Some projects could only be compared to the applicant's proposal by one similar component, i.e. elimination of, and mitigation with regard to, mangroves. For this reason, Dr. Snedeker's limited testimony in this regard is discounted. Some projects could not be conclusively identified as within OFW. None involved the use of the type of creek system involved in the instant project. Ocean Reef Club also could not show that the current permit denial is inconsistent with the granting of the permit for the project as previously conceived in 1984, and which project cannot now be constructed due to Ocean Reef's sale of certain land to uncooperative third parties. As set forth in the foregoing findings of fact, the two projects are neither biologically nor legally identical or even clearly comparable. Petitioner's assertion that it has proposed special or enhanced mitigation because the existing permit, still valid until 1989 but now impossible to comply with, allows direct dredging of approximately 3,000 square feet while the present permit application, as modified, would not require dredging this 3,000 feet, is rejected. Under the new project plans, the proposed basin will be located immediately adjacent to the existing tidal creek which would provide the navigational access to and from the basin. The connection will be created between the basin and the creek by excavating only 100-150 square feet of mangroves which lie between the creek and the area of the proposed basin. In making the immediately foregoing finding of fact, the testimony of witnesses has been reconciled without imputing any lack of credibility to any of them. Respondent's expert, Kelly Jo Custer, expert in marine biology and water quality and also their agency marina specialist, testified that the cross-hatching on the project plans, if read to scale, confirms the testimony of Petitioner's witnesses that the square footage of mangroves to be removed is 100-150 square feet and that the cross-hatching must take precedence over the raw number copied onto the plans. The wetlands in and around the project site, including No Name Creek, are within an OFW, specifically the Florida Keys Special Waters. The project site is located in North Key Largo, approximately one-half mile north of John Pennekamp State Park within the Atlantic Ocean and adjacent to the Biscayne Bay/Card Sound Aquatic Preserve. All of these waters are Class III surface waters. The marina basin itself will be excavated to a depth of minus four feet mean low water. The 24 proposed boatslips will accommodate moorage of boats as large as 25 feet with a draft of two feet. The marina basin will enhance recreational values and channel, despite its greater depth, and at the inner portions of its several bends. It is also implausible that Petitioner's plans to limit boat size through condominium documents to be enforced through a homeowners association, to install mirrors, signalling devices, and latches at certain points along the creek, and to install tide staffs at creek entrances will prevent potential head-on boat collisions or bottlenecks in No Name Creek. It is equally implausible that these procedures can provide reasonable assurances that there will not be a chronic increase in water turbidity from increased use or damage to biota from propellers and boat impact. The witnesses generally concurred as to the present ecological status of No Name Creek. It contains Cuban shoalweed and turtlegrass scattered with varied density throughout, and especially found in two patches between the proposed basin and the point at which there is a drastic bend or oxbow in the creek. The seagrasses in the creek serve many valuable functions including providing a substrate upon which epiphytes may attach, and providing a source of food and refuge for fish and small invertebrates. Seagrasses also fix carbon which they absorb from the sediments and water column through photosynthesis. Green and red algae found throughout the creek provide habitat and carbon fixing functions similar to that provided by the seagrasses. Corals and sponges are present. Three species of sponge located in the creek are found only in the Florida Keys and nowhere else in the United States. Other creek biota include barnacles and oysters attached to mangrove roots, lobsters, anchovies, needlefish, grunts, mojarres, electric rays, various small fish, and invertebrates. Biological and botanical diversity is an important measure of the creek's rich ecological quality and value. The increased boat use of No Name Creek inherent in this dredging project will adversely affect the quality and diversity of the biota. In a creek of this configuration with mean low tide occurring roughly every 12 hours and NEAP tides approximately every two weeks, direct impact of boat propellers is a certainty. The shallowest parts of the creek tend to be limerock shelves which provide a hospitable substrate for the corals, and which are most susceptible to propeller damage, as are the seagrasses and sponges. Petitioner's assertion through Mr. Castellanos and Dr. Roessler that all boaters can be relied upon to employ tilt motors to best advantage in shallow water so as to avoid overhanging mangrove branches at the creek's edges (shores) and so as to keep their boats within the portion of the channel away from submerged mangrove roots and further can be trusted to proceed slowly enough to allow slow-moving water creatures to escape their propellers is speculative and unrealistically optimistic. Despite all good intentions, the strong currents of this creek and its meandering nature work against the average pleasure boater keeping to the narrow center channel. An even more compelling problem with this project is that increased sustained turbidity from propellers and boat movement within close range of the creek bottom will scour the creek bottom and/or stir up the bottom sediment on a regular basis. Once suspended, bottom particles will be redeposited on the seagrasses, impeding photosynthesis and smothering the sponges and corals. Upon the testimony of Custer, Echternacht, and Skinner, and despite contrary testimony of Roessler and Larsen, it is found that the admittedly strong currents in the creek will not flush the particles sufficiently to alleviate the loose sediment problem, and may actually exacerbate the chronic turbidity problem. Strong currents can create a cyclical situation in which, as the seagrasses die or are uprooted, even more particulate matter is loosened and churned up. Chronic turbidity of No Name Creek has the potential of violating the applicable water quality standards for biological integrity, for turbidity, and for ambient water quality. These impacts will not be offset by Petitioner's creation of 38,100 square feet of new underwater bottom because, although this new area will become vegetated, it will never be as rich or as diverse as the existing bottom. This is also true of the pilings and rip rap in regard to sessile animals/barnacles. Petitioner's plan to replant red mangroves over 10,300 square feet may be sufficient in mitigation of the loss of 100-150 square feet of mangroves by itself (see Finding of Fact 16) but for the foregoing reasons, it does not constitute full mitigation for the new permit application. The project will be of a permanent nature. The project will not adversely affect significant historical and archeological resources.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that a final order be entered denying the requested permit. DONE and RECOMMENDED this 20th day of September, 1988, at Tallahassee, Florida. ELLA JANE DAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of September, 1988. APPENDIX TO RECOMMENDED ORDER DOAH Case No. 87-4660 The following constitute specific rulings upon the parties' respective proposed findings of fact (PFOF). Petitioner's PFOF: 1, 2, 3, 4, 5, 7, 10, 11, 20, and 25 are accepted. Accepted except for the last sentence which is rejected upon the greater weight of the credible evidence as a whole. Accepted but specifically not adopted as stated because the plan calls for destruction of certain mangroves (100- 150 ft.) and the planting of others as opposed to mere "addition." 6, 9, 12, and 27 are accepted in part and rejected in part. There was a failure of proof by both parties as to whether the Petitioner would or would not be conducting all activities landward of those lands conveyed. Although there is testimony to this effect, none of the surveys introduced nor other competent evidence allow the undersigned to definitely plot the description contained in Exhibit P-9 with respect to the current permit application plans. In any case, the proposals are not dispositive of the material issues in this case. The reservation, if it does apply, supports denial of the permit. See FOF 9. 8, 26, 28, 29, and 32 are rejected as subordinate and unnecessary, and in some cases as mere recitation of testimony or unproved. See next ruling. 13, 14, 15, 16, 17, 18, 19, 21, 22, 30, 31 and 33. Portions of these proposals are accepted in substance as reflected in the FOF. In part, they are rejected as mere recitation of testimony or as subordinate and unnecessary. The remainder is not accepted due to the relative weight of the credible testimony which is reflected in the facts as found. 34-36. Rejected for the reasons set out in FOF 13. Respondent's PFOF 1, 2, 4-6, 9, 11, 14-22, 24-34, 38-43, 48-52, 54, sentence 2 of 57, all except sentence 1 of 59, and 60 are accepted but not necessarily adopted in the interest of space and clarity or because they are cumulative or mere recitations of testimony. 3. Rejected for the reasons set out in FOF 16. Rejected. There was a failure of proof by both parties as to whether the Petitioner would or would not be conducting all activities landward of those lands conveyed. In any case, the proposal is immaterial to the environmental issues dispositive in this case. See FOF 9 and ruling on Petitioner's 6, 9, 12 and 27. Rejected as this was the unproven opinion of Mr. Poppel. No consent judgment is in evidence. 10, 12, and 13. Portions of these proposals are accepted in substance as reflected in the FOF. In part, they are rejected as mere recitation of testimony or as subordinate and unnecessary. The remainder is not accepted due to the relative weight of the credible testimony as reflected as the facts as found. 23, 53, sentence one of 57, and sentence one of 59, are rejected as argument of counsel or statement of position. 35-37, 44-47, 55, 56, 58, and 61-64 are rejected as subordinate, unnecessary or cumulative to the facts as found. COPIES FURNISHED: Dale Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Robert A. Routa, Esquire Post Office Drawer 6506 Tallahassee, Florida 32314-6506 Richard Grosso, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Closing File in this proceeding. A copy of the Order is attached hereto as Exhibit A.
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b)(1)(C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT'S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. Jul 28 2009 10:37 a7/2e/28e89 18:28 B589222679 DCA LEGAL PAGE @4/ae FINAL ORDER NO. DGA09-GM-266 CERTIFICATE OF FILING AND SERVICE LHEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct Waite have been furnished to the persons listed below in the manner described, on this ay of July, 2009. a Zp 2 Paula Ford fency Clerk Florida Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 U. §. Mail: Jerry Coleman, Esq- Jerry Coleman, PI. 201 Front Street, Suite 203 Key West, Florida 33041 Derek V. Howard, Esq. Monroe County Attorney's Office 1111 12" Street, Suite 408 Key West, Florida 33040 Barton W. Smith, Esq. Barton Smith, P.L. 309 Whitehcad Street Key West, Florida 33040 Richard E. Grosso, Esq. Everglades Law Center, Inc. 3305 College Avenue Fort Lauderdale, Florida 33314 Robert N. Hartsell, Esq. Everglades Law Center, Inc. 818 U.S. Highway 1, Ste. 8 North Palm Beach, Florida 33408-3857 Sherry A. Spiers, Esq. Robert C. Apgar, Esq. Greenberg Traurig, P.A. 101 East College Avenue Tallahassee, Florida 32301 Jul 28 2009 10:37 a7/2e/28e89 18:28 B589222679 DCA LEGAL PAGE @5/@8 FINAL ORDER NO. DCA09-GM-266 Richard Barfield, Esq. Navy Office of the General Counsel Naval Facilities Engineering Command Southeast United States Navy Box 30, Building 903 Jacksonville, Florida 32212-0102 Hand Delivery: Richard E. Shine, Esquire L. Mary Thomas, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Jul 28 2009 10:37 a7/2e/28e89 18:28 B589222679 DCA LEGAL PAGE 86/88 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS DEPARTMENT OF COMMUNITY AFFAIRS, Petitioner, and PROTECT KEY WEST AND THE FLORIDA KEYS, INC., d/b/a LAST STAND AND THE DEPARTMENT OF THE NAVY, Intervenor, vs. Case No. 08-2035GM MONROE COUNTY, Respondent , and ROBBIE”"S SAFE HARBOR MARINE ENTERPRISES, INC.; SAFE HARBOUR PROPERTIES, LLC; AND KW RESORT UTILITIES CORP., Intervenor.
Findings Of Fact Petitioner, Frenchy's Rockaway Grill, Inc., is the owner and operator of a restaurant and alcoholic beverage establishment located at 7 Rockaway Street, Clearwater, Florida. Petitioner purchased the property in 1991. Michael Preston is president of Petitioner. Petitioner's establishment is immediately adjacent to the Gulf of Mexico and Clearwater beach on the west, to the north is a public parking lot, to the east is a motel, and to the south is the Clearwater Beach Hotel, which is owned and operated by Hunter Hotel Co., as indicated above. On the beach side of Petitioner's establishment there is an existing 972 sq. ft. wooden deck. The existing deck was initially constructed on or about 1987 by prior owners without receiving appropriate variance approvals. Subsequent alterations to the deck occurred between 1987 and 1991, also without appropriate variance approvals. In 1991 Charles and Ypapanti Alexiou/Anthony Alexiou, former owners of the subject property, filed an application for variance approval with the Board seeking three variances relating to the construction of the deck at the 7 Rockaway establishment. Specifically, the variances sought were: "1) 55.5 ft. to permit deck seaward of the coastal construction control line; 2) 15 ft. to permit a deck zero feet from a street right-of-way; and, 3) seven parking spaces to permit a 1,338 sq. ft. deck at 7 Rockaway Street, Miller's Replat, Lot 2 & vacated beach Drive on W and Lot 3, zoned CR 28 (resort commercial) & OS/R (open space recreation)." At public meeting on August 8, 1991, the application was considered by the Board. At that time Mr. Cline, as counsel for Hunter appeared in opposition to the application stating that approval of the variance requests would adversely impact the Clearwater Beach Hotel, that the request was for economic gain, that any hardship was self-imposed, and that development and traffic in the area was already heavy. The Board, however, granted the variance requests as to variances number 1 and number 2., and as to the third request, the Board denied the proposed 1,338 sq. ft. deck, but approved a variance of five parking spaces to permit the existing deck of 972 sq. ft. On or about July 13, 1993, a variance application was filed with the Board by Howard G. and Jean B. Hamilton and Palm Pavilion of Clearwater, Inc., seeking approval of four variances required for an 800 sq. ft. expansion of an existing deck at a restaurant at 10 Bay Esplanade, Clearwater Beach, Florida. The Palm Pavilion applicants were also represented by Mr. Cline. Like Petitioner's establishment, Palm Pavilion is a beachfront restaurant, which is located directly across the public parking lot to the north of Petitioner's establishment. Unlike Petitioner's establishment, Palm Pavilion is bordered by parking to the south and the east, and is not immediately adjacent to other buildings. On August 26, 1993, the Board granted the Palm Pavilion variance application for expansion of an existing beachfront deck with certain conditions. On October 6, 1994, Petitioner submitted its application to the Board requesting five variances required for a 650 sq. ft. expansion of the existing wooden deck at 7 Rockaway Street. Specifically, the variances sought were: 1) 13.22 ft. to permit a lot depth of 86.78 ft. where 100 ft. is required; 2) 8.2 ft. to permit it a rear setback of 6.8 ft. where 15 ft. is required; 3) 14 percent to permit 11 percent of open space where 25 percent is required; 4) three parking spaces to permit zero parking spaces where three additional are required; and, 5) 52.14 ft. to permit a structure seaward of the coastal construction control line. The subject property at 7 Rockaway Street is properly zoned CR-28 (resort commercial). Any scrivener's error indicating that the property is zoned OSC (open space recreation) has been corrected. Petitioner's restaurant, Frenchy's Rockaway Grill, is a popular beachside establishment. It is one of very few freestanding restaurants fronting the Gulf of Mexico on Clearwater Beach. Some patrons particularly enjoy dining on the open air deck adjacent to the beach. During peak hours, there is often over an hour's waiting time for tables on the deck. Petitioner is currently unable to accommodate the demand for seating on the beachside deck. Petitioner would sustain an economic benefit if more patrons could be accommodated on an expanded deck. Because of the size constraints of the lot and the establishment's location directly on the beach, development and improvement of the facility is highly restricted. The back of some residential rooms of the Clearwater Beach Hotel are immediately adjacent to the south of Petitioner's establishment. There are small bathroom windows from these residential rooms that face Petitioner's establishment. Petitioner's proposed expansion of the open air deck would place the proposed deck in very close proximity to the back of these residential hotel rooms. The City's staff reviewed the Petitioner's application and recommended approval with the following conditions: 1) the applicant shall obtain the requisite occupational license within 12 months; 2) the applicant shall obtain the necessary building permit within 6 months; 3) there shall be no outdoor entertainment and no outdoor speakers; 4) the applicant shall obtain the requisite alcoholic beverage separation distance variance from the City Commission. Petitioner agreed to the conditions recommended by staff. The recommendations of staff are not binding on the Board. In addition to the application for the five variances filed with the Board, Petitioner also filed a conditional use request with the Planning and Zoning Board. The conditional use request was approved on September 13, 1994, and imposed certain other conditions including the construction of a six foot wall on the south side of the proposed deck to buffer the adjoining hotel. Petitioner agreed to the conditions imposed by the Planning and Zoning Board.
Findings Of Fact The Respondent, Darell L. Treadway currently holds contractor's license number RP 0027269 and serves as qualifying agent for Treadway Pools and Concrete, 415 South Palmetto Avenue, Daytona Beach, Florida. (Petitioner's Exhibit II) On June 6, 1979, Chester Webb, 1548 Culverhouse Drive, Holly Hill, Florida, entered into a contract with Almo Pools of Florida, Inc., 609 Turnbull Bay Road, New Smyrna Beach, Florida, for Almo to construct a 13' x 27' kidney shaped fiberglass pool for $4,840.00. (Petitioner's Exhibit I) A $484.00 deposit was paid to Respondent Treadway on June 21, 1979, and on June 26, 1979, a building permit for the pool was obtained by Treadway Pools. (Petitioner's Exhibits I and II) Mr. Webb paid Respondent Treadway $4,684.00 toward completion of the pool. He refused to pay the $242.00 due on completion under the terms of the contract because of numerous problems with the pool including a broken drain, malfunctioning switch box timer, leaking pipes, defective filter and debris left at the site by workmen. (Testimony of Webb; Petitioner's Exhibit III) On August 23, 1979, Clyde Pirtle, Investigator, Department of Professional Regulation discussed the Webb pool with the Respondent who was informed by Pirtle that Almo Pools of Florida, Inc. was not licensed with the Board. (Petitioner's Exhibit III) Investigator Pirtle mailed change of status forms to the Respondent to qualify Almo Pool's but the forms were never completed and returned. (Petitioner's Exhibit III) At Investigator Pirtle's request, the Respondent agreed on August 23, 1979, to correct the problems with Mr. Webb's pool but thus far has failed to do so. In addition to repairing minor problems, Mr. Webb found it necessary to replace the pool filter. (Testimony of Webb) On August 29, 1979, the Respondent Treadway acting as agent for Almo Pools of Florida, Inc. entered into a contract with Donald Bird, 227 East Burn Drive, Orange City, Florida, to construct a 14' x 36' fiberglass pool with a 47' x 32' screen enclosure for $9,425.00. (Petitioner's Exhibit IV) The Respondent was paid $5,642.00 and on September 10, 1979, began installation of a fiberglass shell. (Testimony of Bird) While installing the pool, workmen who were attempting to level its bottom and sides cracked one side of the pool. (Testimony of Bird) The Respondent agreed to repair the crack and in October, 1979, returned to the site, repaired the crack and back-filled around the pool. (Id) No other work was done on the filter system or screen enclosure. Mr. Bird spent approximately $12,500.00 to finish the construction of his pool and patio. (Id) Mr. Bird's pool still has problems including discoloring, cracking and leaking. (Id) The Respondent Treadway failed to obtain a permit for the construction of the Bird's pool from the Volusia County Building Department and, accordingly, no permit for this project was ever obtained. (Testimony of Barrett) The Respondent failed to place his state registration number on the face of his contracts with Webb and Bird. (Petitioner's Exhibits I and IV)
Recommendation Upon consideration of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Construction Industry Licensing Board enter a final order revoking the registration of Darell L. Treadway as a state registered contractor. DONE and ORDERED this 21st day of July, 1981, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of July, 1981. COPIES FURNISHED: Drucilla Bell, Esquire Assistant General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Nancy Kelley Wittenberg, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Darell L. Treadway 415 South Palmetto Avenue Apartment Number 5 Daytona Beach, Florida 32015
Findings Of Fact Harbor Course South is a one hundred and seventy two lot real estate development which is a portion of the Ocean Reef Club located at the extreme northern end of Key Largo, Monroe County, Florida. The Harbor Course South property was acquired in approximately 1964 along with over 1200 acres of adjoining property for approximately 1.5 million dollars. Driscoll Properties, Inc. ("Driscoll"), a Florida Corporation, is the developer of Harbor Course South. Driscoll Foundation, Inc., (the "Foundation") is a non-profit Florida corporation which owns a portion of the Harbor Course South property. (Driscoll and the Foundation are collectively referred to as the "Intervenors" or the "Permittees.") The Ocean Reef Club is a one thousand two hundred unit development encompassing approximately eight hundred acres including at least two eighteen hole golf courses, a marina and an air strip. Nine holes of golf are located in Harbor Course South. These nine holes were leased to the Ocean Reef Club in 1974-1975 pursuant to an agreement providing for creation of golf course lots and lake-front lots in Harbor Course South. The nine holes of the golf course located in Harbor Course South were in place by at least 1978 and have been in use since that time. In order to install those nine holes, some roads were cut through the property and the lakes were dredged. Thirty-eight of the one hundred and seventy-two lots in Harbor Course South were originally platted in 1978 or 1979. These thirty eight lots are referred to as Section 1 of Harbor Course South. All of lots in Section 1 have been sold to individual purchasers for an average price of $34,210.00 per lot. The thirty-eight lots in Section 1 were all sold prior to 1988. In approximately 1979, some roads were cleared and paved on the Harbor Course South property in order to provide access to the thirty-eight originally platted lots in Section 1. A number of the lots in Section 1 have been permitted for construction by Monroe County and houses have been constructed on several of them. No individual lot owner in Section 1 has been denied a permit for clearing at least some of his land for a homesite. Both the United States Fish and Wildlife Services ("U.S.F.W.S.") and the Florida Game and Fresh Water Fish Commission (the "Commission") have determined that the clearing and/or development of the lots in Section 1 will not require permits for the taking of endangered or threatened species or their nests. In 1985, the Intervenors, in conjunction with the Ocean Reef Club, sought a determination as to the extent of their vested development rights with respect to the Harbor Course South property by initiating a vested rights hearing before Monroe County. These proceedings were initiated under Chapters 380 and 120, Florida Statutes and resulted in a Joint Stipulation on February 23, 1988 recognizing that the Intervenors have vested rights to develop the Harbor Course South plats. (The Joint Stipulation is referred to as the "Vested Rights Determination.") The Vested Rights Determination recognized that the Intervenors and the Ocean Reef Club had incurred obligations and expenditures based upon the approval of the master plan for development of Ocean Reef in 1977 in accordance with the then-existing regulations of Monroe County. The expenses and improvements upon the property included the construction of roadways, water main extensions, medical facilities, and golf courses. As a result of these expenditures, the Vested Rights Determination established that the Intervenors were authorized to continue development under the master development plan for the Ocean Reef Club, notwithstanding the enactment of a comprehensive land use plan and development regulations by Monroe County on September 15, 1986. No appeal of the Vested Rights Determination was filed by the Florida Department of Community Affairs or any other party. The remaining one hundred thirty-four lots in Harbor Course South were subdivided into three plats in 1986. These plats have been designated Ocean Reef Plat Numbers 17, 18 and 19 (also referred to as Sections 2, 3 and 4 respectively of Harbor Course South.) The Intervenors were not required to obtain a permit from the U.S.F.W.S. or the Commission prior to subdividing and/or selling lots of the Harbor Course South property. Most of the infrastructure for development of Plats 17, 18 and 19 is in place. Paved roads were completed in 1987-1988. The electrical lines and sewer lines are in place and operational in all three plats. The water lines are in place and connected in Plat 17. The waterlines are also in place, but not connected, in Plats 18 and 19. The total area of Sections 2, 3 and 4 of Harbor Course South is 134.09 acres. The remaining one hundred thirty-four lots occupy approximately 53.66 acres of this total. The lots in the area are priced at an average of $127,000 each. The Intervenors have begun selling the lots in Plat 17 (Section 2 of Harbor Course South). This plat consists of twenty-five lots. No competent substantial evidence was offered to establish the exact number of lots sold or houses constructed in this area, but it appears that ten to twelve lots were sold between July 1, 1989 and December 13, 1989. At least one house has been constructed on this plat and three building permits are pending before Monroe County. Prior to selling the lots in Plat 17, the Intervenors reached an informal agreement with the U.S.F.W.S. and the Commission as discussed in more detail in Findings of Fact 33 below. In accordance with that agreement and because there was no indication of the presence of endangered or threatened species on these lots, it was determined that none of the lots sold in Plat 17 would require the issuance of a permit from the Commission before land clearing could take place. The sales of the lots in Plat 17 were not completed until after the issuance of a Proposed Permit by the Commission for the "incidental taking" of endangered and threatened species with respect to the entire Harbor Course Property. (This Proposed Permit is discussed in more detail in Findings of Fact 44.) After the Proposed Permit was issued and this challenge was filed, the titles to the lots sold in Plat 17 were transferred to the purchasers. As indicated above, some of these lot owners have proceeded with the development of their property without the need of a permit from the U.S.F.W.S. or the Commission. None of the lots in Plats 18 and 19 (Sections 3 and 4) have yet been offered for sale. The natural vegetation of North Key Largo, including the Harbor Course South property, consists largely of tropical hardwood hammock. The quality of the vegetation varies widely throughout the area. Development of the Ocean Reef Club has largely supplanted the hardwood hammock in that area. The golf course which is located on the Harbor Course South property was placed in the midst of the hammock. The golf course and the infrastructure for development of Harbor Course South have fragmented the hammock in Plats 17, 18 and 19. The hardwood hammock of North Key Largo is a unigue flora to North America, being extremely tropical in character. It is characterized by vegetation more commonly found on the tropical islands of the Carribean and is different from the tropical hammocks of mainland South Florida because of a difference in hydrology, i.e., the Florida Keys are substantially drier and have a lower water table. The hammock of North Key Largo has a very high species diversity with one hundred and five species of trees and shrubs and fifteen species of woody vines in the hammock vegetation. The ecology of a hardwood hammock is cyclical. Over the years, the hammock has demonstrated its ability to regenerate naturally. Thus, while much of North Key Largo was used as agriculture land in the late nineteenth and early part of the twentieth century, the hammock has recovered in those areas where it has been allowed to naturally regenerate. The species of plants in the hardwood hammock are well-adopted for colonizing. The trees are "good at getting their seeds into places where they will grow." Many of the species of hammock trees and shrubs have fruits that are attractive to birds and some animals such as raccoons. These animals, birds, and raccoons eat the fruit, do not digest the seeds, but pass them in their fecal material which helps spread the vegetation. Tree growth in a young hammock is initially rapidly vertical before spreading out to provide larger coverage. A mature hammock provides a "closed canopy" of branches which affords protection and transportation for many animals including woodrats and cotton mice. As the hammock matures, there is an accumulation of humis and leaf litter on the ground beneath the trees. This humis layer serves as a seed bed for new growth and accumulates over the years. The humis layer is an important factor in assessing the quality of a hammock as habitat for endangered species. It takes decades for a hammock to fully mature to the point that it provides habitat and food sources for woodrats and similar creatures. Because of the biological richness of the hardwood hammock, as well as to protect the off-shore coral reefs from the detrimental effects of run-off from development, the State of Florida, through the Conservation and Recreational Land Acquisition program, ("CARL") has designated much of area of North Key Largo at the top of the acquisition priority list. The area slated for acquisition under the CARL program extends approximately twelve miles from the point where U.S. Highway 1 enters Key Largo northeastward to the southern boundary of Harbor Course South. The State of Florida has already acquired large tracks of North Key Largo under the CARL program. These tracks include a large portion of the land on the east side of State Road 905 from Port Bougainville to the southern border of the Ocean Reef Club (Harbor Course South.) Moreover, the Foundation is currently negotiating with the State regarding the acquisition of approxiately twelve hundred acres immediately adjacent to Harbor Course South. The federal government has established the Crocodile Lake National Wildlife Refuge which embraces most of the land lying west of State Road 905 from Card Sound Road (near and west of the Ocean Reef Club) south to Lake Surprise, a distance of approximately twelve miles. In sum, a large portion of the property in North Key Largo outside the Ocean Reef Club and Harbor Course South does not have vested development rights. A vast majority of this property is, or will likely become in the near future, publicly owned for conservation purposes. Thus, large quantities of high quality tropical hardwood hammock habitat have been, or are in the process of being, acquired in the immediate vicinity of the Harbor Course South property. The hardwood hammocks of North Key Largo are inhabited by certain endangered and threatened species. The Commission has the authority to determine endangered species within the area of its jurisdiction under the Endangered Species Act of 1973, 35 U.S.C.A. 1531, et seq. The Key Largo woodrat (neotoma floridana smalli) and the Key Largo cotton mouse (peromystus gossypinus allapaticola) are animals which can be found in the secondary growth and mature tropical hardwood forests of North Key Largo. Both the woodrat and cotton mouse as well as the Schaus' swallowtail butterfly (heraclides aristodemus ponceana,) have been listed as endangered species in Rule 39-27.003, Florida Administrative Code. The hardwood hammock of North Key Largo also serves as a habitat for the Eastern Indigo snake (drymarchon corais couperi), which has been listed as a threatened species by the Commission pursuant to Rule 39-27.004, Florida Administrative Code. Rock piles, tree roots, mounds, piles of sticks, holes in the rock substrate, holes in the humis layer beneath the trees and similar hiding areas all serve as nests or "refugia" for the woodrat. A mature hammock provides an ideal habitat for the woodrat. Destruction of the habitat of the woodrat has been a key factor in the woodrat becoming an endangered species. The Key Largo cotton mouse occupies much of the same habitat as the woodrat. Although the density of the population has not been established, there is no dispute that some portions of the Harbor Course South property are populated with woodrats and cotton mice. The quality of the habitat varies significantly throughout the property. There is only limited evidence of the presence of the Schaus' swallowtail butterfly on the Harbor Course South property. There have been a few citings of the species in the vicinity of Harbor Course South, but it does not appear that this property is an important habitat for the Schaus' swallowtail butterfly. There is no specific evidence of the presence of the Eastern Indigo snake on the subject property. Before a lot owner in Harbor Course South can clear his homesite, the Monroe County Code requires the owner to secure a habitat analysis which must be prepared by an accredited biologist approved by the County. That analysis determines the quality of the hammock on the lot, which in turn determines the amount of vegetation which the County will allow the lot owner to clear. This requirement was in place for the first thirty eight lots that were originally platted in Section 1. Under the existing Monroe County Land Clearing Regulations, only twenty percent of a lot with high quality tropical hardwood hammock can be cleared; forty percent of a lot with medium quality hammock can be cleared and forty to eighty percent of a lot with low quality hammock can be cleared. As of the date of the hearing in this case, all lot owners in Harbor Course South who have applied for a building permit were allowed to clear at least a portion of the lot for construction of a homesite. It does not appear that any lot owner was permitted to clear more than forty percent of his lot. As indicated above, no permits from the Commission or the U.S.F.W.S. were necessary in order to clear the lots and commence building on the thirty- eight lots in Section 1. Likewise, the Commission determined that the habitat quality in the area of Plat 17 was sufficiently low that a permit would not be required for development on that Plat. However, the Intervenors were aware of the presence of endangered and threatened species in this area. Around the time that the Vested Rights Determination was obtained, the Intervenors entered into discussions with the U.S.F.W.S. and the Commission in an attempt to obtain an overall permit for Plat 17, 18 and 19 with respect to endangered and threatened species. During these negotiations, the Intervenors received permission from the U.S.F.W.S. and the Commission to proceed with development in Plat 17 even before a permit was issued. The Commission determined that the Intervenors could proceed with the development of Plat 17 without obtaining a permit because of the relatively low habitat value of most of the parcel and the apparent absence of any endangered species in this area. As part of the negotiations regarding this authorization, the Intervenors agreed to seek a permit with respect to the remaining one hundred and nine lots in the subdivision. The negotiations were prompted, at least in part, by an agreement between the U.S.F.W.S. and the Florida Keys Aqueduct Authority (which provides water to the area) that established certain requirements before water connections could be made to new residential property in North Key Largo. This agreement requires that, before water connections can be made to an area inhabited by endangered or threatened species of wildlife, a permit must be obtained by the U.S.F.W.S. During the negotiations, the U.S.F.W.S. indicated to the Intervenors its desire to address the conflict between the endangered species on North Key Largo and development interests in "one big conflict rather than having to handle it land owner by land owner." The Commission agreed with this approach feeling it could better protect the subject species through required mitigation by the developer which would probably not be possible or practical when dealing with individual lot owners. Although the Intervenors questioned the legality of the requirements imposed as a result of the agreement between the U.S.F.W.S. and the Florida Keys Aqueduct Authority, the Intervenors decided to try and work with both the federal and state agencies and attempt to meet their concerns rather than engage them in a legal battle over their authority to impose mitigation requirements on new developments. A permit from the U.S.F.W.S. or the Commission is not necessary for the Intervenors to sell the lots in Plats 17, 18 and 19. The Intervenors sought permits from the Commission and the U.S.F.W.S. in a good faith attempt to cooperate with the agencies responsible for enforcing the Endangered Species Act and to eliminate obstacles to the clearing and development of the lots by individual lot purchasers. The U.S.F.W.S. has developed specific rules and procedures for protecting the habitat of endangered species and issuing "incidental take" permits for activities that may impact on the species or their habitat. The Commission has not adopted any rules that specifically protect the habitat of endangered species other than a prohibition against molesting or harming their nests. Similarly, the Commission has no specific rules regarding "incidental take" permits. The Intervenors filed an application with the U.S.F.W.S. on March 13, 1989 seeking a permit for covering all of Plats 17, 18 and 19. Attached as exhibits to the application were copies of the pleadings from the proceedings whereby Intervenors received their Vested Rights Determination, a summary of a proposed revegetation project to be undertaken in connection with the permit; the Harbor Course Subdivision construction plans together with construction details; a report prepared by Dr. Earl Rich regarding North Key Largo endangered rodent preservation measures; a report by Dr. Jack Stout setting forth the results of woodrat and cotton mice trapping in the subject area; and an aerial photograph of the subject area. The application sought a "permit for the incidental taking of endangered species in connection with completion of development of a residential subdivision and related site improvements surrounding an existing golf course. The area to be cleared may include habitat for the Key Largo woodrat, cotton mice, or Schaus' swallowtail butterfly." A permit has not been issued by the U.S.F.W.S. with respect to Plat 17, 18 and 19. The Intervenors' application for a permit has been transmitted to the Commission. It is not clear how the application filed with U.S.F.W.S. came before the Commission for consideration. The Commission has no direct agreement with the Florida Keys Aqueduct Authority regarding water connections. The Commission's authority for asserting jurisdiction over the development is not based on any existing rules or statutes regarding "incidental take" permits. The U.S.F.W.S. has apparently agreed to defer to the Commission with respect to the issuance of a permit for the Harbor Course South development. The U.S.F.W.S. has been kept abreast of the negotiations and terms of the Proposed Permit and has suggested various changes during the negotiation process in an effort to coordinate the conditions of the two permits. By letter dated July 24, 1989, the Commission set forth conditions for the issuance of a permit to the Intervenors which would authorize them to take the nests and habitat of woodrats and cotton mice, to harm or molest Schaus' swallowtail butterflies, and to take Eastern Indigo snakes, "incidental to land clearing operations and building construction of single family and cluster homes" on Plat 17, 18 and 19. The permit does not authorize the killing of woodrats, cotton mice or Schaus' swallowtail butterflies. The Commission stated that the permit was being issued pursuant to Rules 39-27.002(1) and 39- 27.002(2), Florida Administrative Code. (The July 24, 1989 letter setting forth the conditions for the permit will be referred to as the "Proposed Permit.") The Proposed Permit states that the permit will inure to the benefit of the Intervenors and their "successors in title or their agents." In other words, purchasers of lots from the Intervenors would be covered by the Permit and no additional permit would be necessary to take the nests and habitat of woodrats and cotton mice, to harm or molest Schaus' swallowtail butterflies, or to take the Eastern Indigo snakes incidental to the development of their lots. The terms and conditions of the Proposed Permit were prepared after several meetings and discussions between Commission personnel, the Intervenors' expert biologist Dr. Stout and the developers themselves. The Proposed Permit requires both on-site mitigation and off-site mitigation. The on-site mitigation requires the permanent dedication in the form of a conservation eastment of 5.94 acres in Tract E of Harbor Course South, Section 3 ( Ocean Reef Plat 18) to provide perpetual protection for the habitat for the species listed in the Proposed Permit. The exact provisions of this conservation easement are not speficified in the Proposed Permit and were not established in this proceeding. The Permit also requires specific habitat enhancement of Tract E by planting torchwood seedlings as a means to attract Schaus' swallowtail butterflies in the area of an old service road on Tract E, revegetation in accordance with specific planting instructions of another road that bisects Tract E and the placement of ten piles of rocks and logs of at least four cubic yards each in the old roadway. A ten thousand dollar surety bond or letter of credit is required to ensure compliance with the planting and debris placement provisions within three years of the date of the issuance of the permit. The Intervenors had intended to subdivide Tract E into ten additional lots to be sold as homesites. While Petitioner contends that the development of lots in Tract E may have been prohibited because of the high quality hammock on some of these lots, the evidence established that most, if not all, of the lots in Tract E will be sold and developed as individual homesites if the area is not set aside as a conservation area pursuant to the terms of the Proposed Permit. The establishment of a conservation area in Tract E will help preserve a continuous habitat area for the endangered species. Tract E is adjacent to a large track of property that has been or is in the process of being acquired by the state for conservation purposes. By requiring the Intervenors to provide rubble and debris piles and revegetation on Tract E, the Proposed Permit will further enhance the quality of the habitat in this area. The Proposed Permit requires the existing dirt road which currently cuts through Tract E to be closed and revegetated. There is no requirement that the fill installed for the road bed be removed. While Petitioners contend that such a condition is necessary for the development of this tract into high quality habitat for the endangered species, the natural regeneration of the hammock will be enhanced by the revegetation plan and this area will ultimately develop into high quality habitat. Planting torchwood in the area of Tract E, which is close to the golf course and areas that will be developed, may actually harm the survival potential of the Schaus' swallowtail butterfly. The butterflies are extremely susceptible to chemical insecticides. Planting torchwood in areas where insecticides will be used may create an attractive nuisance to the butterflies. Therefore, the requirement for planting should be moved to an off-site area that is remote from the development to guard against this problem. The area of the old service road should be revegetated pursuant to a schedule similar to the one used for the other revegetation area. Off-site mitigation is to be provided through the enhancement of hammock succession on five, one acre segments of the right-of-way of Old State Road 905 or an alternative similar site approved by the Commission with an area of enhancement to equal five acres. The amount of off-site mitigation was baseed upon a calculation of the amount of road surface in Harbor Course South. The Proposed Permit requires the old road bed and asphalt to be removed and the road restored to original grade. The enhancement of the site is to be accomplished by planting tropical hardwood vegetation from a specified vegetation list, adherence to specific planting instructions governing phase of planting, survival rate and watering conditions, placement of twenty rock and debris piles, (each four cubic yards in volume), removal of exotic plant species semi-annually for a five year period and removal of weedy species of trees and shrubs in an area within a radius of three feet around each planted tree over a similar time period. Four lots in Plat 18 are to be set aside as an assurance against failure to complete the planting or failure to provide an alternative site. A surety bond or letter of credit in the amount of $50,000.00 is also required to ensure compliance with the planting requirements. Old State Road 905 is currently owned by the Florida Department of Transportation. There are plans to convey this right-of-way to Monroe County which in turn plans to abandon the road, remove the road bed and asphalt, and cooperate with the restoration. Thus, it appears that Monroe County may assume responsibility for removing the asphalt road along Old State Road 905. The Proposed Permit requires the Intervenor to ensure that this removal is accomplished. Old State Road 905 is utilized by some utility companies to service their utility lines. At this point, it is not clear whether the utility easements will preclude the revegetation required by the Proposed Permit from becoming effective. The Proposed Permit provides adequate procedures for selecting alternative sites in the event that Old State Road 905 can not be effectively used for a mitigation area. With respect to both the on-site and off-site mitigation, the revegatation requirements in the Proposed Permit are reasonably related to the Commission's goal of enhancing the long term survival of woodrats and cotton mice on North Key Largo. While the diversity of the flora in a natural hammock is greater than that called for in the proposed mitigation, the revegetation will accelerate the development of the mitigation areas into high quality habitat for the endangered species. While a hardwood hammock has a natural capability to regenerate on its own, the regeneration can be enhanced by planting trees in a scarified area. The revegetation required pursuant to the Proposed Permit will be placed mainly in corridors replacing old road ways. This placement will hasten the redevelopment of these areas into high quality habitat. The Intervenors are required to ensure a two year, seventy five percent survival rate for trees planted. Any trees that die are to be replaced by the species with the highest survival rate. The evidence established that the most effective way to enhance the revegetation process is to plant those species of trees that are slow to seed or that are relatively rare. It is not clear whether the planting schedule and sucession procedures attached to the Proposed Permit have taken this fact into consideration. While the diversity of species detailed in the attachments to the Proposed Permit could be reallocated between species to further enhance the revegetation process, the proposed schedules are adequate except for the requirement of planting torchwood on Tract E. Torchwood is an important habitat and food source for Schaus' swallowtail butterflies and should not be placed in an area where chemical insect control efforts are likely. As indicated above, the Proposed Permit requires a survival rate of 75% for the planted trees within two years of the initial planting. The Intervenors are also required to inspect the revegetation sites semi-annually for five years and to remove invasive exotic plants. In addition, Intervenors are required to remove weeding trees, shrubs and vines within a radius of 3 feet around each planted tree for a period of five years. Semiannual reports must be filed with the Commission for the first five years after planting to advise as to the presence of such species. There are no enforcement mechanisms in the Proposed Permit to ensure that the monotoring and removal of exotic species requirements will be completed. The bond requirements of the Proposed Permit only apply to the plantings and installation of debris piles. The requirement for removal of exotic species will help ensure that those exotic species cannot invade the mitigation sites and prevent or retard the natural hammock regeneration process. This requirement will enhance the development of a high quality hammock which will hopefully provide habitat for the endangered species. It is important that an enforcement mechanism be provided in the permit with respect to this requirement. The State Department of Natural Resources has a program for the removal of exotic plants from state lands. DNR is currently preparing a major management plan for North Key Largo and DNR employees are currently involved in removing exotic species from the right-of-way of Old State Road 905. The requirements of the Proposed Permit will augment the on-going efforts of DNR and free-up resources to focus on the removal of exotic species in neighboring areas. The Proposed Permit does not impose qualifications on the individuals who will be responsible for removing the exotic species. The permit should require the Intervenors to retain qualified people to identify the exotic species. The spacing, watering and survival rate aspects of the revegetation plan were based, in part, upon the experiences with revegetation at a previous mitigation site (the Budd Post site discussed below) and represent a reasonable effort for enhancing the revegetation of the hammock. While there is no requirement that the planted trees survive longer than two years after the initial planting, the 75% survival requirement during the first two years provides reasonable assurance that the revegetation will be done properly and with a high probability of success. General Condition 1 of the Proposed Permit indicates that the Commission will review the Permit periodically and "may initiate enforcement or revocation action for any violation of the Permit Conditions by the Permittee, its agents, its employees, or representatives." There is no provision for enforcement or revocation of the permit for violations of the permit conditions by purchasers of lots or other third parties who obtain title to the property from the Intervenors. This enforcement mechanism will become essentially obsolete if and when the Intervenors transfer their interests in the property. General Condition 2 of the Proposed Permit indicates that the Permit is valid "only for the specific processes and operations applied for and indicated in the approved drawings or exhibits." This provision is meaningless since there are no "specific processing operations applied for" and there have been no approved drawings or exhibits other than the planting schedules which are part of the revegetation aspect of the mitigation requirements. There are certain provisions of the Proposed Permit which are vague and/or ambiguous. Special Conditions 4(b) indicates that the requirements of Specific Condition 3(j) are applicable to the restoration of Tract E. Special Condition 3(j) requires the placement of twenty debris piles. However, Specific Condition 4(c) only requires a placement of ten such piles in Tract E. This ambiguity should be clarified. Special Condition 4(d) indicates that there are utility lines in the revegetation area which will have to be maintained. Under this provision, the applicant is allowed to maintain, using hand tools only, a clear path of up to eight feet wide over each utility line. It is not clear from the evidence presented how many utility lines are involved and whether a separate eight foot area can be cleared for each utility line. If several separate utility lines are involved, this provision could effectively prevent the regeneration of the area into high quality hammock habitat. Free ranging domestic pets, especially cats, are a significant threat to the endangered species. One of the conditions imposed by the Proposed Permit would prohibit free ranging pets within the subdivision pursuant to a subdivision covenant to run with the land. The specific wording of such a covenant has not been provided. The Proposed Permit does not provide for any enforcement mechanism with respect to this covenant. Some enforcement mechanism must be provided in order for this condition to provide any effective protection for the endangered species. The Proposed Permit requires the Intervenors to hold four lots from sale until the off-site mitigation requirements have been met. If the planting is not accomplished within a five year period, the Intervenors are required to include these four lots as part of the conservation easement in Tract E. The lots being withheld for sale have an average market value in excess of $120,000 per lot. Thus, this requirement places a major incentive on the Intervenors to comply with the terms of the Proposed Permit. However, it is not clear whether this enforcement mechanism can be applied to the provisions of the Proposed Permit regarding the removal of exotic species. The Proposed Permit does not allow the Intervenors to kill any member of the endangered species. The Proposed Permit does allow the "incidental taking" of the threatened species (Eastern Indigo snake). The term "incidental taking" is interpreted by the Comimssion to include the killing of a member of the threatened species which is incidental to the conduct of otherwise lawful activities. The Commission contends that it has the jurisdiction to issue such an "incidental take" permit for an endangered species under appropriate conditions and mitigation requirements. The Commission did not believe an incidental take permit was necessary with respect to the endangered species on this site because the Commission felt that the habitat quality was relatively low and the likelihood of encountering a member of the species at the site was also low. The evidence established that there is a possibility that some members of the endangered species, i.e., woodrats and cotton mice, will be killed during the development and building of the subdivision. While this possibility is speculative, the chances of such a killing can be minimized by incorporating further protections in the permit. The evidence did not indicate any likelihood that East Indigo snakes or Schaus' swallowtail butterflies will be killed incidental to land clearing and/or development of Harbor Course South. The U.S.F.W.S. requires a habitat conservation plan ("H.C.P.") before it will issue an incidental take permit. A habitat conservation plan committee was established by the Governor in 1985 to prepare an H.C.P. for the North Key Largo area. The goal of the Committee is to designate areas which would be suitable for development and areas which may be necessary for conservation. A Draft Habitat Conservation Plan has been prepared, but it has not yet been officially approved. Harbor Course South is outside the study area of the Draft Habitat Conservation Plan and therefore is not proposed as a conservation area. The framework and structure of the Proposed Permit reflects the Commission's desire to apply a comprehensive permitting approach to the Harbor Course South development rather than rely upon a lot-by-lot determination of jurisdiction with each individual lot purchaser at the time clearing or development activities are sought. The evidence established that there is insufficient indicia of woodrat or cotton mouse presence on a number of the lots in Harbor Course South. Thus, if a lot-by-lot approach was used, the Commission would not have the authority under its current rules to require a number of the individual lot owners to obtain a permit before land clearing. Without question, further fragmentation of the hammock will reduce the quality of the habitat for the endangered species. If a lot-by-lot permitting process is utilized, the owners of the lots that do not show any signs of the presence of woodrats or cotton mice would be able to clear to the maximum extent allowable under the Monroe County development ordinances. Such an approach would not halt the further fragmentation of hammock. By utilizing a comprehensive permit, the Commission can establish uniform standards for development and require stronger mitigative measures to offset the impact of development in the area on the endangered and threatened species. The approach is further justified in view of the Commission's determination that the Harbor Course South property is of only minimal importance as a habitat for the endangered and threatened species. See, Findings of Fact 80-81 below. In sum, land development and land clearing activities are likely to take place on the Harbor Course South property regardless of whether the Proposed Permit is issued. If the Commission utilizes a lot-by-lot determination of jurisdiction, a large portion of the lots on Harbor Course South would not be required to obtain a permit from the Commission because many of those lots do not have nests or any indication of the presence of the endangered species. Under these circumstances, the Commission would probably not be able to obtain comprehensive mitigation conditions and the habitat for the endangered species would be further fragmented with little or no mitigation. As noted above, the Commission has not adopted any rules setting forth its policies and procedures for issuing an overall blanket permit for the "incidental taking" of endangered species. Similarly, there are no formal guidelines adopted to establish when the Commission has jurisdiction over land- clearing activities. In determining whether to assert jurisdiction over a particular piece of property, the Commission looks for evidence of existing nests or habitat of an endangered species or the probability that a taking, killing or some other molestation will occur to a particular member of the species. In connection with the Proposed Permit, the Commission determined that it had the authority under Rule 39-27.002, Florida Administrative Code, to issue permits for clearing and development activities that molest the nests of endangered species. As discussed below, the Commission has issued only one prior permit for land clearing and development activities. That prior permit is was not timely challenged. No rules or standards have been promulgated by the Commission to set forth the mitigative requirements that can be imposed, if any, upon individual lot purchasers. An important factor in the Commission's decision to issue the Proposed Permit in this case was the Commission's determination that the overall quality of the Harbor Course South property as habitat for the endangered species was minimal. In determining that the Harbor Course South property was of minimal importance to the survival of the endangered species, the Commission took into consideration various reports on the sparse density of the population of the endangered species on the subject property. The Commission also took into account what it deemed to be inevitable future development as reflected in the Vested Rights Determination, the fact that the site was not designated for preservation in the Draft Habitat Conservation Plan, and the fact that the site was not part of the North Key Largo CARL acquisition project. Finally, the Commission considered that the site was already a highly fragmented tropical hardwood hammock as demonstrated by Landsat Thematic Mapper Classfied Satellite Imagery. The only previous instance in which the Commission has issued a permit to molest or harm the nests or habitat of endangered species pursuant to land clearing or development activities involved another residential sub-division in North Key Largo. In June of 1986, separate permits were issued by the U.S.F.W.S. and the Commission to the Nichols/Post Hendrix Corporation to destroy nests and habitat of the Key Largo woodrat and Key Largo cotton mouse. (The permit issued by the Commission in connection with this prior project will be referred to as the "Budd Post Permit.") The property covered by the Budd Post Permit is south of Harbor Course South. It lies approximately six miles south of the intersection of Old State Road 905 and Card Sound Road. That property consists of approximately ten acres of high quality hardwood hammock located within the project area of the North Key Largo Hammocks, CARL land acquisition program. Thus, the property was essentially surrounded by high quality tropical hardwood hammock. The Budd Post property is similar to the Harbor Course South property in that both areas run from County Road 905 east to the ocean and both tracts contain habitat suitable for use by endangered species. However, Harbor Course South is a lesser quality habitat than the Budd Post property because it is more highly fragmented and is bordered on the north by the highly developed Ocean Reef property. Overall, there was a significantly greater indication of the presence of the subject endangered species on the Budd Post Property than there is at Harbor Course South. The Budd Post Permit was the first of its kind issued by the Commission and was processed simultaneously and concurrently with the comparable federal permit from the U.S.F.W.S. As a condition to issuance of the Budd Post Permit, the Commission required the permittee to set aside a preservation area, build debris piles to encourage nesting of woodrats and cotton mice and plant vegetation off-site to mitigate the loss of hammock habitat. A condition of the Budd Post Permit required the permittee to trap and remove the endangered species during land clearing activities. A similar condition in the Proposed Permit would help reduce the likelihood of any killing of the endangered species. The results of the mitigation plan for the Budd Post Permit indicate that such a plan can serve to enhance the survivability of the endangered species by providing high quality habitat and accelerating the revegetation of scarified areas. A little more than two years after the mitigation plan for the Budd Post Permit was implemented, it appears that the efforts are achieving their intended results. Specifically, the plants that were planted as a result of the revegetation plan are flourishing and at least some of the debris piles have been colonized by woodrats. Thus, it appears a viable habitat has been created. There is no definitive method for determining the density of population of woodrats or cotton mice at a given site. In making its jurisdictional determination with respect to the Budd Post property, the Commission looked for the presence of stick nests, (which are widely presumed to be constructed by woodrats) as the primary jurisdictional indicator. Subsequent to the issuance of the Budd Post Permit, the Commission has recognized that stick nests are not the sole indicators of the presence of wood rats and the Commission now considers other factors as well. The U.S.F.W.S. requires a trapping study of woodrats and cotton mice as part of its permit application. The permittee for the Budd Post Permit provided the U.S.F.W.S. and the Commission with a "trapping report" prepared by Dr. Stout. The Intervenors also hired Dr. Jack Stout, who is a biologist and professor at the University of Central Florida, and a similar report was prepared for Harbor Course South. The same methodology was used to trap woodrats and cotton mice on both sites. Dr. Stout concluded that the Harbor Course South property had a low density population of woodrats and cotton mice. Dr. Earl Rich, a biologist and ecologist and a former professor at the University of Miami with extensive experience researching woodrat habitat on North Key Largo, also inspected the Harbor Course South property on behalf of the Intervenors. His inspection took place after the date of the Proposed Permit. He determined that the overall quality of the subject property as habitat for the endangered species was low because of the fragmented and uneven quality of the hammock. These qualities are largely attributed to the existing intrastructure and the golf course which winds throughout the subject property. Julie Hovis, a wild life biologist employed by the Commission, performed a site inspection report in connection with the application for the Proposed Permit. While not an expert on the endangered species, she was qualified to identify certain signs of the presence of the species. She found that there was some evidence that woodrats and cotton mice were present on the Harbor Course South property. She noted that the quality of the habitat varies greatly. Her inspection and conclusions were the basis for the Commission's assertion of jurisdiction over the subject site. Dr. Steven Humphrey and Dr. Numi Goodyear inspected the area on behalf of the Petitioners to determine the presence and/or density of the endangered species populations. While their studies find more evidence of the presence of wood rats and cotton mice on the subject property than the prior studies had indicated, they also conclude that the property is a mixed quality habitat for the endangered species. While there are some areas that appear to be high quality habitat, these experts recognize the fragmented character of the habitat and the effect of the golf course in disrupting the habitat and producing "islands of vegetation." The Goodyear and Humphrey studies confirm that the densities of the endangered species are lowest in areas where the hammock is highly fragmented. The Goodyear and Humphrey studies do not refute the Commission's conclusion that a significant number of the lots of Harbor Course South do not reflect sufficient indicia of the presence of the endangered species to allow the Commission to assert jurisdiction on all the property if a lot-by-lot permitting process was utilized. The Commission has concluded that the continuing development of Harbor Course South is inevitable. The Commission has also concluded that its authority over clearing of individual homesites is limited. In view of these conclusions, the Commission has attempted to enhance the survivability of the endangered species by imposing certain mitigation requirements on the Intervenors. The evidence has established that, assuming the development of Harbor Course South is inevitable, and the Commission lacks the authority to halt the development of Harbor Course South, the Commission's comprehensive approach to permitting will be more favorable to the survival potential of the endangered species than a lot-by-lot jurisdictional determination would be.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Game and Fresh Water Fish Commission enter a Final Order setting forth the terms and conditions for an Agreement with the Intervenors for a specific period of time as set forth in Paragraph 30 of Conclusions of Law, whereby permits will be issued for the incidental destruction and/or molestation of the nests and habitat of the subject endangered species in accordance with the terms and conditions of the Proposed Permit as modified in accordance with the provisions of Paragraph 32 of the Conclusions of Law above. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 17th day of October, 1990. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 1990.
