The Issue The issue for determination is whether Celina Hills Property Owner’s Association (the Association) violated the Fair Housing Act, in its enforcement of the Association’s deed restrictions. The Association refused to allow a homeowner within the Association’s community to put a fence around the front of the homeowner's property to accommodate the disability of the homeowner's son. A secondary issue, if the Association violated the Fair Housing Act, is whether the Association's action is sufficient to permit the award of damages to the Florida Commission on Human Relations (FCHR) for frustration of agency purposes in this matter.
Findings Of Fact Sheila and Fred Swasey purchased a home in the Celina Hills Community in 2001, where they currently reside. When they purchased their home, the Swaseys had full knowledge that the home was part of a homeowner’s association which had certain deed restrictions and covenants. The Swaseys furthermore understood that they were subject to the deed restrictions, and at the time of purchase, had no concerns regarding such restrictions. One such restriction was that they could not have a fence in the front yard of their property. The Swaseys have a 22-year-old, mentally retarded son, named Brad. The Swasey’s son has the mental capacity of a two- year-old, certain gait difficulties, and by stipulation of the parties, qualifies under the applicable Fair Housing Act as a handicapped individual in that he has physical and mental impairments that substantially limit one or more major life activities. The Association is a not-for-profit corporation organized in the mid 70's for the sole purpose of operating and maintaining the Celina Hills Community. Every home owner in Celina Hills is a member of the Association, and is subject to the deed restrictions, and covenants that attach to each of the properties within the Association. The Association is operated by a board of directors, which consists of volunteer homeowners, and is charged with the responsibility of enforcing the covenants, restrictions and other governing documents of the Association. The Association, through its officers, was fully aware of Brad's disability. As established by testimony of two of Brad’s doctors, Brad has the mental capacity of a young child approximately two to three years old. Although in the short term his mental capacity has stabilized and will probably not improve, his long- term capacity will be accelerated in regard to dementia, making him much harder to control or exhibit control. The supervisor of Brad’s sheltered workshop testified that, based on her observations, she believes he has the mental capacity of less than a two or three year old. Brad has recently, within the last 3 years, grown dramatically (from 5’3”/160 pounds to 6’2”/240 pounds) and, although he walks with a wide gait and has trouble walking on uneven surfaces, has become significantly harder to control and catch. His parents are in their fifties, and increasingly, subject to the health deficits imposed by the process of aging. Brad’s doctors have advised the Swaseys to have Brad spend time outside, breathe fresh air and get exercise. Brad’s parents’ testimony and observation of Brad at the final hearing establishes that he has the capacity of a two-year-old, but with no fear and no understanding of dangers that confront him in life. Further, he has only recently exhibited a predilection to run towards the street and trucks and cars that attract his attention. Brad is attracted to trucks and cars, especially yellow school buses and blue mail trucks, and attempts to run towards them when possible. With regard to motorists going up the hill on the street in front of the Swaseys and Brad’s home, visibility from the road to the yard (and yard to the road) is poor and cars on the street drive fast. The Swaseys’ home is located in the middle of the block and not at an intersection. The decision of the Swaseys to fence their front yard results in the provision of the best setting for Brad to fully enjoy the premises and gain needed fresh air and exercise. This choice by the Swaseys also provides better observation for them over Brad and more shade and opportunities for him to observe surrounding life and activities. Such a fence would protect Brad from running into the street and provide his parents an opportunity to allow Brad some “independence” while still being under their direct supervision when they work in the front yard. The fence would also keep him from running away from them into the street before they can catch him. Such a front yard fence requires an accommodation from the Association in order to build higher than the Association's allowable three feet and also along the required county set-back line for fences. The Swaseys' backyard has severe slopes, contains the screened-in pool and is generally unusable as an outside area for Brad because of his walking disability. Nevertheless, his parents also plan to fence the side and back- yards as well, which requires only the standard approval as to style, material and installation and no accommodation. Should they fence just the back and side yard, however, a problem would result in the form of entry problems, since the only direct entry to the backyard is through the pool area. Such an entry would redirect Brad’s attention to areas of the home and yard where the pool is located. Unfortunately, the backyard alone would not allow Brad full enjoyment because of the nature of the property (uneven with major slopes) and his walking disability. Further, direct observation of Brad would be difficult in some areas, if not impossible. On April 8, 2003, Brad's mother submitted a written request to the Association for a fence on the front, side and backyards. She also indicated that they would have the fence removed if they ever sold the house. On May 1, 2003, the Association's Board of Directors had a meeting at which Brad's father presented the request of he and his wife. Simply put, their request was to erect a front fence in a wooden picket style and an electric wood-faced gate for the front of the property (more in keeping with the covenants and restrictions placed on the property). As affirmed by Brad's father at the final hearing, he has no desire to denigrate property values in the community due to his own home investment. This summarizes the request of Brad's parents for need of an accommodation from the Association. The relevant restriction for which an accommodation was requested is found on page 6 of the Celina Hill’s Property Owners Handbook (January 2002 edition) which provides: No fence or wall shall be erected or maintained in the front beyond the front building setback line. No wire, chain link, or cyclone is permitted on any lot. No fence or hedge over three (3) feet in height shall be permitted along the front. No fence or hedge shall be erected or maintained which shall: i) unreasonably restrict or obstruct sight lines at corners and at intersections or driveways with streets; ii) detract from the overall appearance of the property (the use of rough hewn woods or natural plantings as fencing and screening materials is encouraged); or iii) stand greater than four (4) feet in height. The Swaseys met all conditions, except for the deed restriction, in their request for a front yard fence. As established by witnesses for the Swaseys, inclusive of the school bus driver who frequently drives a school bus by the Swaseys' property, there are no safety concerns about the proposed front yard fence obscuring motorists' view since it is not going to be at an intersection. On May 24, 2003, the Association denied the Swaseys' request stating that, “We cannot authorize your request for a fence of any style in your front yard, the Celina Hills Homeowners manual makes clear that no fence can be installed beyond the front setback line and that setback line is the front of your house.” In the same letter, the Association indicated it had no problem with the Swaseys' pursuing fencing the side and backyards since there was no deed restriction and only a style, materials and installation review. On June 18, 2003, FCHR issued a determination that there was reasonable cause to believe that the Association was engaging in a discriminatory housing practice in violation of Section 760.23, Florida Statutes. FCHR’s efforts to conciliate the case failed as stated in its Notice of Failure of Conciliation on July 30, 2003. FCHR also placed into evidence its calculation of damages, in addition to attorney’s fees and costs to be determined upon completion of the case, for “frustration of agency purpose.” These damages were calculated at $1,035.40 consisting of $358.70 for 20.6 investigative hours; $600.00 for legal review and advisor hours; $66.70 in direct travel costs; and $10.00 in photographic development costs.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter an order finding Respondent guilty of a discriminatory housing practice against the Complainant and her son in violation of Section 760.23 (7) and (9), Florida Statutes; prohibiting further unlawful housing practices by Respondent; and allowing the building of an esthetically acceptable fence in the front yard as necessary to provide containment and safety for Brad Swasey to use and enjoy his dwelling, with the proviso that such fence be removed when Brad is no longer a regular resident in the Swasey home. DONE AND ENTERED this 1st day of December, 2003, in Tallahassee, Leon County, Florida. S DON W. DAVIS 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 December, 2003. COPIES FURNISHED: Barry A. Postman, Esquire Cole, Scott & Kissane, P.A. Pacific National Bank Building 1390 Brickell Avenue Miami, Florida 33131 Sheila Swasey 2125 East Celina Street Inverness, Florida 34453 William J. Tait, Jr., Esquire Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301-4830 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Petitioner owns Lot 67 Countryside, Tract 60, which fronts on Atwood Court, with a small side (approximately 45 feet) facing Landmark Drive. Landmark Drive is a main thoroughfare with heavy traffic expected to increase as the area continues to grow. Landmark Drive is a non-addressed street on which a property owner would be permitted to erect a four-foot high fence on the property line. If Petitioner moved the fence 25 feet back from the property line the zoning regulations would permit the erection of a six-foot high fence. Moving the fence this far would place the fence some 50 feet from the right-of-way of Landmark Drive and would take up so much of Petitioner's property that his future plans to install a swimming pool would be thwarted. In the one and one-half mile stretch of Landmark Drive in the vicinity of Petitioner's property only two fences have been erected which required variances and those encroach only one or two feet into the setback line. At the same time Petitioner's request for variance was denied the board granted a variance to another owner in the same subdivision who had put up a fence without getting a variance. There, the board found it would constitute a hardship to require that landowner to remove or relocate his fence since a swimming pool was also involved. Other applications for variances to erect fences on property fronting on Landmark Drive have been denied in the past.
Findings Of Fact On May 20, 1986, Petitioners submitted a request for two variances concerning property located at 761 Bruce Avenue, Mandalay Subdivision, Block 24, Lot 7 in the City of Clearwater. The property is zoned RS-8 (single family residential). The variances requested were for the construction of a garage 4.8 feet from the rear set-back line, rather than the required set-back of ten feet, and 4.2 feet from the side set-back line, rather than the required set-back of five feet. On June 12, 1986, the Development Code Adjustment Board granted the variance of the side set-back requirements, but denied the requested rear set- back line variance. The Petitioners own the property in question and also own the property directly behind the subject property which backs up to the rear property line. There is presently a one story frame house on the property, as well as a small cottage to the rear of the property. The cottage is 12.7 feet wide by 16.5 feet deep. Petitioners want to construct a garage next to the cottage on an existing concrete slab. The dimensions of the garage shown in their application are 12 feet wide by 16.5 feet deep. At one time a garage was attached to the cottage but now only the concrete slab remains. If the rear set-back line variance is granted, the Petitioners will be able to construct the garage with rear and front walls attached to, and flush with, the cottage. If the rear set-back variance is not granted, the garage will have to be moved forward on the property and will only partially connect to the cottage. The Petitioners will not be prevented from building the garage if the variance is denied, but will simply have to move it forward rather than attaching it fully to the cottage. It is the Petitioners' intent to use the garage primarily for storage. Yvonne Ulfers denied any intention of expanding the existing cottage, or using this variance to add another room on the cottage. If the rear set-back line variance is denied, Yvonne Ulfers testified that she would construct the garage anyway, but would move it forward on the property and would also make it deeper than the 16.5 feet proposed in her application. She stated repeatedly that she would deepen the garage by extending it all the way down the side line of her property toward the frame house in the front. The Petitioners offered no evidence concerning conditions unique to this property, or hardship that would result if the variance is not granted. There is also no evidence that this variance is the minimum necessary to construct the garage on the subject property. To the contrary, there is no dispute that the garage can be built without the rear set-back line variance.
The Issue The issues presented by this case concern the entitlement of the Intervenors, Mr. and Mrs. Mayer, to be granted zoning variances, in keeping with the provisions of Section 131.016(e), City of Clearwater Building and Zoning Regulations, to vary from the conditions set forth in Section 131.044, City of Clearwater Building and Zoning Regulations, dealing with the area and dimension regulations for RS-50, Single-Family Residents. In particular, the Intervenors would request that the front setback line be reduced from 25 feet to roughly feet and that a variance concerning the area covered by the dwelling be increased from 25 percent to 33.7 percent. 1/
Findings Of Fact On November 12, 1980, the Intervenors requested that they be granted the variances set out in the Issues Statement of this order. The terms and details of that variance application may be found as part of the City's Composite Exhibit No. 1, admitted into evidence. A public hearing was conducted on this request and that hearing was held on January 15, 1981. The taped transcript of that hearing may be found as the City's Exhibit No. 2, admitted into evidence. Following that hearing, a decision was made by the Board of Adjustment and Appeal for the City of Clearwater, Florida, to grant the variance requests. The Petitioners in this cause were opposed to that grant of variance and requested a hearing. The matter was forwarded from the City of Clearwater to the Division of Administrative Hearings and on March 25, 1981, a hearing de novo was conducted to consider this dispute. At the time of the hearing, the Petitioner, Barbara Beakes, was presented as a witness and identified the claim of the Petitioners as being one of opposition to the project in question which requested variances, for reason that it obscured her view of the water; caused a decrease in the value of her property and in addition to her attorney, expressed opposition to the area of coverage to be involved with the proposed building project of the Intervenors and to the front setback line at issue. The Intervenors, Ray and Christine Mayer, who reside at 940 El Dorado Avenue, Clearwater Beach, Florida, through their project, would desire to construct a garage which would be approximately 15.4 feet from the front property line as opposed to the 25 foot front setback line required of the City of Clearwater. The construction in question would not advance the building line in the direction of the street. Moreover, the distance from the street to the front of the building had originally been 13.1 feet when present front setback lines were not in effect. The Intervenors have also requested what they deemed to be a variance from the requirement of maximum lot coverage by their residence, varying it from 25 percent to the 33.7 percent proposed by their construction. As stated in a preceding footnote, it was determined at the hearing that the new requirement for maximum lot coverage is 42 percent and it having been agreed by the parties that the area coverage in question is only 33.7 percent, the necessity for variance on that issue no longer exists. Intervenors' Exhibits Nos. 1, 2, 3, 5, 6, 7 and 8, are photographs depicting the nature of the structure in question in various stages of construction and modification. Notwithstanding the Petitioner Beakes' complaint that her view was obstructed by the construction, there was no specific proof related to the clear space requirement of Section 131.200, City of Clearwater Building and Zoning Requirements, and in fact her view is already obstructed by a fence which now exists on the Mayers' property and the constriction proposed by the Mayers would not materially change that circumstance. The proof on the issue of decreased property value offered by Petitioner Beakes does not seem to be a specific criterion addressed by the variance ordinance.
The Issue The issues in this case are: Whether Petitioner, Warren M. Briggs ("Briggs"), should be issued a Wetland Resource Permit (WRP) for the construction of a single-family dwelling on a lot with jurisdictional wetlands in Santa Rosa County, Florida, as proposed in his application submission of 1998; and Whether the Department would permit the construction of a single-family dwelling on the subject lot under conditions and circumstances other than those set forth in Briggs' application.
Findings Of Fact Briggs is the owner of Lot 67, Block H, Paradise Bay Subdivision, located in southern Santa Rosa County ("Briggs lot"). Paradise Bay Subdivision was developed in approximately 1980, prior to the passage in 1984 of the Warren Henderson Wetland Protection Act. (Official Recognition of Section 403.918, Florida Statutes). The subdivision consists of modestly priced single- family homes that are attractive to young families because of the quality of nearby schools. The typical non-waterfront home in the subdivision is single story, approximately 2,000 square feet in area, and built on a concrete slab. The typical setback from the road to the front edge of a home is 75 feet. This fairly consistent setback from the road prevents the view from one home into the adjacent property owner’s back yard and, thereby, adversely affecting the neighbor’s property value. The undeveloped Briggs lot was purchased in 1981 for approximately $15,000 and remains undeveloped. Briggs bought the lot, along with three other lots in the subdivision, as investment property. The other three lots have been sold. One of the lots sold earlier by Briggs was a waterfront lot on East Bay located in jurisdictional wetlands. The entire lot was filled pursuant to a permit issued by the Department. The Briggs lot is 90 feet wide by 200 feet deep. It is located on the south side of Paradise Bay Drive. The lots on the north side of Paradise Bay Drive are waterfront lots on East Bay. To the rear (south) of the Briggs lot and other lots on the south side of Paradise Bay Drive, is a large swamp that eventually discharges into East Bay. The major connection between the Briggs lot and East Bay is through a culvert under Paradise Bay Drive. The Briggs’ lot consists of 2,914 square feet of uplands and 15,086 square feet of state jurisdictional wetland, with all of the uplands located in the northern half of the lot. Converted to acres, the Briggs lot consists of 0.067 acres of uplands and 0.347 acres of state jurisdictional wetland. Lot 66, immediately east of the Briggs lot, has been cleared and is about half tietie swamp with the remainder consisting of uplands and disturbed wetlands. Some fill has been placed on the lot. Lot 68, immediately west of the Briggs lot, is undeveloped and consists of all tietie wetlands. Lots 69, 70 and 71 of Block H of the subdivision are undeveloped and consist primarily of wetlands. The Department issued a permit on October 31, 1996, that allowed the owners of Lot 71 to fill 0.22 acres (9,570 square feet) of wetlands. The fill is allowed to a lot depth of 145 feet on the west side, and to a width of 73 feet of the total lot width of 90 feet. The fill area is bordered on the east and west by wetland areas not to be filled. The Department issued a permit on November 13, 1997, that allowed the owner of Lot 61 to fill 0.26 acres (11,310 square feet) of wetlands. Fill is allowed over the entire northern 125 feet of the 185 foot-deep lot. On April 28, 1998, Briggs applied to the Department for a permit to fill Lot 67. The Department, in its letter of August 7, 1998, and its permit denial of September 2, 1998, erroneously described the project as consisting of 0.47 acres of fill. The entire lot consists of only 0.41 acres, of which 0.067 acres is uplands, leaving a maximum area of fill of 0.343 acres. If Briggs’ residential lot is to be used, some impact to the wetlands on the lot is unavoidable. Alternatives discussed by Briggs and the Department, three of which are still available for Briggs to accept, included the following: One hundred feet of fill with a bulkhead separating the fill from the wetland area, with no off-site mitigation; Fill pad could be placed on property with the remainder of the wetlands on the site to remain in their natural state with no backyard, with no off-site mitigation required; One hundred feet of fill with a bulkhead separating the fill material from the wetland, with a small back yard, with no off-site mitigation required. Briggs did not accept any of the foregoing alternatives or proposed acceptable mitigation measures.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying the permit application, provided that the parties may reach subsequent agreement regarding proper mitigation in order to make the construction of a single-family dwelling possible on the Petitioner’s property in this case. DONE AND ENTERED this 19th day of November, 2001, in Tallahassee, Leon County, Florida. _ DON W. DAVIS 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 19th day of November, 2001. COPIES FURNISHED: Charles T. Collette, Esquire Lucinda R. Roberts, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000 Jesse W. Rigby, Esquire Clark, Partington, Hart, Larry Bond and Stackhouse 125 West Romana Street, Suite 800 Post Office Box 13010 Pensacola, Florida 32591-3010 Kathy C. Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000
Findings Of Fact The Intervenors filed an Application for Dredge and Fill Permit with the Department of Environmental Regulation. The Department entered a notice of its intent to issue a permit. Petitioner requested a formal administrative hearing. The Department forwarded the matter to the Division of Administrative Hearings, where it was given Case No. 82-3155. A Recommended Order which includes Findings of Fact and Conclusions of Law has been entered in Case No. 82-3155. The Findings of Fact and Conclusions of Law set out in the Recommended Order are hereby incorporated into this Final Order and constitute a part of this Final Order. The Petitioner is an association of home owners within a residential development known as "Caloosa." Intervenors are seeking to develop an industrial park on land adjacent to the Caloosa development. Surface and ground waters from the proposed industrial park would drain toward Caloosa. Prior to the Department's entry of the notice of intent to issue a permit to Intervenors, the Department's personnel evaluated the application in free-form proceedings. An environmental specialist who works with the Department as a permit processor proposed to deny the application on account of the fact that Intervenors proposed to fill approximately 70 acres of wetlands, 24 of which were within the Department's permitting authority under Rule 17-4.28, Florida Administrative Code. The administrator of the Department's Dredge and Fill Permitting Section came to the conclusion that denial of the application could not be justified. He felt that the wetlands to be filled served only marginally to preserve water quality in the area. The Intervenors had proposed to artificially create wetland areas in order to compensate for the loss of filled wetland areas. The program administrator suggested to the permit processor that they negotiate to get the Intervenors to create additional artificial wetlands in order to mitigate against any possible adverse effect from the loss of natural wetland areas. These negotiations occurred, and the Intervenors agreed to increase artificially created wetland areas. The Department of Environmental Regulation does not have a rule which provides that its personnel can engage in negotiations respecting a permit application. Negotiations are, however, an inherent part of a permitting process. The Department does not have any written or unwritten policy whereby it accepts such mitigating factors as artificially created wetlands as justifying the filling of natural wetlands. It does not appear that the Department has any rule or nonrule policy concerning mitigation or trade-offs, and it does not appear that the Department has ever had such a rule or policy. The Department does not have a policy of accepting concessions, trade-offs, or mitigating factors so as to allow an applicant to violate the Department's water quality standards. Since there has been a permitting process, such factors as artificially created wetlands have been considered by the Department in determining whether an application meets the Department's criteria for issuance of a permit. The Department's policy is to consider whether an applicant has provided reasonable assurance that the short-term and long-term effects of proposed activities will not result in violations of water quality standards, as required under Rule 17- 4.28(3), Florida Administrative Code. If an applicant has proposed to construct artificial wetlands, the Department would logically consider it in making determinations about granting the permit. There is no evidence in the record of this proceeding from which it could be concluded that the Department has any unpromulgated "mitigation" policy which has the effect of a rule.
Findings Of Fact Respondent Pierson is the owner of a parcel of land located at 7 Heilwood Street, Clearwater Beach, Florida. This parcel consists of the North 1/2 of Lot 2 and all of Lot 3 in Block 6, Revised Map of Clearwater Beach, according to the plat thereof as recorded in Plat Book 11, page 5, of the Public Records of Pinellas County, Florida. The westwardly portion of the parcel is beach front property on a coastal barrier island. When the subdivision known as Clearwater Beach Subdivision was platted, fifteen lots were placed in Block 6. The three beachfront lots were smaller in area than the other twelve lots which were uniform in size and shape. However, when Lot 2 was divided and the northern half went to Lot 3 and the southern half to Lot 1, fourteen similar parcels were created in Block 6. Pierson purchased the parcel in question as unimproved property in Clearwater Beach Subdivision in 1962. This was nine years prior to the creation of Coastal Construction Control Lines by the Florida Legislature. The establishment of the Coastal Construction Control Line for Clearwater Beach in 1977, caused building setbacks previously established by the City of Clearwater for this unimproved parcel to become even further restricted. The Coastal Construction Control Line deleted the seaward 5/8ths of the Pierson property on which a building could have been erected previously on Clearwater Beach. Few parcels on this island were impacted as severely as Respondent Pierson's by the creation of the Coastal Construction Control Line because most of these parcels already contained permanent improvements. This parcel remained vacant until Respondent Pierson erected a duplex in 1986. This improvement was constructed according to the Land Development Code in effect at the time with the following exceptions: A variance of zero setback from the Coastal Construction Control Line and a 6 foot height variance to permit construction of a building 31 feet in height were granted by the Board. At the time the variances were granted, Respondent had the option to build either a duplex or a triplex at the site. Respondent seeks to expand this structure and to convert it into a triplex. In order to complete the planned expansion, a variance of 18 feet was requested from the Board to allow construction 7 feet from the Heilwood Street right-of-way. Currently, the Code requires a 25 feet setback from a street right-of-way. In addition, a variance of two feet from the eastward property boundary was requested to allow construction up to 6 feet from this side property line. Code provisions require an 8 feet setback. The existing structure is 6 feet from this side property line. The proposed addition to the current structure would continue with that eastern setback of 6 feet to the north, with an additional 25 feet of structure extending towards Heilwood Street. The expansion of the building to the west would terminate at the Coastal Construction Control Line. The property is zoned RM-20 with a land use plan designation as high density residential developed. The parcel is 95.12 feet in length and 87 feet in width, an area of 8,242.38 square feet. Ordinarily, a parcel with these dimensions is of sufficient size to build the structure proposed by Respondent Pierson without violating the street right-of-way setback and the side property line setback mandated by the Code. In this case, setback variances are required to complete the triplex because of the Coastal Construction Control Line's location on the parcel. In his application for variance, together with evidence presented, Respondent Pierson contends that the variance request arises from a condition unique to the property. The "unique" condition being that he did not build what he now wants to build on the property before the land use restrictions currently in place limited development of the parcel to such an extent. All other lot owners in the locale chose to develop their lots earlier than Respondent did, under less restrictive conditions. As a result, Respondent Pierson's duplex is setback further from Heilwood Street than the other buildings. Deciding when and what to build as a real property improvement is part of real estate ownership. Now that Respondent Pierson wants to change his previous development decision to reflect his current intended property use, he wants the same setback benefits as those acquired by other property owners on Heilwood Street who developed their parcels during past time periods with less restrictive setbacks. The Coastal Construction Control Line and the building setbacks have been placed on the property because of legitimate state and local concerns. A driveway was placed by Respondent Pierson in front of the duplex as it faces the water at the end of a dead-end street. The location of this driveway and the existing setback of the duplex from the road beyond all of the other property setbacks on this street, make this portion of Respondent's property a convenient area for traveling cars to turn around or to park while using the beach. Respondent Pierson contends that the variances he has requested will discourage the use of his land as a turnaround area, because it would be clear to those attempting to use his driveway that they were trespassing. His primary interest is to maintain his private interests in the property which should go beyond those currently enjoyed by the public. It is a desire for these rights that control his request for the variances as opposed to a desire to secure a greater financial return. The variances granted by the Board will not be materially detrimental or injurious to the Vasilaros property. The variances, however, could impair the present value of the Petitioner's property because the expansion of the Pierson duplex into a triplex would block a large amount of the Gulf view the Vasilaros building was designed to acquire. Petitioners' lot is in the same subdivision as the parcel owned by Respondent Pierson. Even before the Vasilaros lot was improved, the landowners knew or should have known that another parcel separated this lot from the beach. Respondent Pierson is under no statutory or contractual obligation to restrict his land use to allow Petitioners a view. The variances granted would result in a nonconforming building. All of the other structures in the immediate vicinity are nonconforming because these structures were built before current zoning regulations were adopted. Respondent Pierson seeks to blend with the neighborhood on the street and to have the same nonconforming advantages. Respondent Pierson could convert the current structure into a triplex. The apartments would be much smaller than the ones contemplated in the proposed plan. He seeks to create the third apartment for his own retirement home. On August 22, 1991, the Board granted a variance of 15 feet to permit construction of a triplex 10 feet from a street right-of-way and a second variance of 2 feet to allow construction up to 6 feet from the side property line to the south because the Board found that the applicant has substantially met all the standards for approval, as listed in Section 137.012(d) of the Land Development Code. More specifically, the Board found: a) The variances arise from a condition which is unique to the property and not caused by the applicant; b) The Coastal Construction Control Line restricts the use of two- thirds of the property, allowing only 19 percent use, c) The particular physical surroundings, shape, or topographical conditions involved and the strict application of the provisions of this Development Code would result in unnecessary hardship upon the applicant; and d) The variances granted are the minimum necessary to overcome the hardship created by the minimal use of the property subject to the requisite building permit being obtained within six months from the date of this public hearing.
Recommendation Accordingly, it is ORDERED that the variances granted by the Board be set aside and the application for the variances submitted be denied. DONE and ENTERED this 11th day of February, 1992, in Tallahassee, Leon County, Florida. COPIES FURNISHED: JOHN T BLAKELY ESQ PO BOX 1368 CLEARWATER FL 34617 GEORGE W GREER ESQ 600 CLEVELAND ST - STE 685 CLEARWATER FL 34616 MILES LANCE ESQ PO BOX 4748 CLEARWATER FL 34618 CINDIE GOUDEAU/CITY CLERK CITY OF CLEARWATER PO BOX 4748 CLEARWATER FL 34618 MICHAEL WRIGHT/CITY MANAGER CITY OF CLEARWATER 112 S OSCEOLA AVE CLEARWATER FL 34618 VERONICA E. DONNELLY 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 11th day of February, 1992.
Findings Of Fact At all times material hereto, Respondent, Dean R. Stewart, held real estate license number 0172552 issued by Petitioner, Department of Professional Regulation, Board of Real Estate. He was employed as a salesman for Don Capin, Inc. a real estate firm located at 3001 Salzedo Street, Coral Gables, Florida. In March, 1977, Respondent and one Raymond W. Romeo purchased a parcel of property located at 1720 Wa-Kee-Na, Coconut Grove, Florida, for approximately $65,000. The parcel consisted of a large two-story house built in 1930 and an adjoining vacant lot. The vacant lot was later sold by Stewart and Romeo to a builder who wished to construct a new home. Respondent began a substantial restoration of the older house shortly after the parcel was purchased and eventually spent approximately $100,000 in modernizing and repairing the house. The entire first floor was torn out and replaced with new walls, windows, bathrooms, kitchen and electrical wiring. The house was repainted inside and out, recarpeted and landscaped. A swimming pool was installed in the back yard. The studs and plates on the second floor were also replaced and the bathrooms and kitchen modernized. An associate of Don Capin, Inc. described the list of things done to the house as incomprehensibly large". In March, 1979, Respondent contracted with Cooper Roofing, Inc. to "reroof" the house. According to the terms of their agreement dated March 12, 1979, Cooper was to perform the following work: Remove roof to sheating and hauling all trash away replacing rotten lumber where needed, using 30 lbs. felt in cap 12 on 12. Gravel stop around edges nail every 8" mopping on 2-15 with hot asphalt strip out with 1, 6" and 1, 9" 15 lbs felt flood coat and gravel, on top part only. On tile remove roof to locations of leaks re- pairing and relaying tiles back. gravel roof carries four (4) year guarantee. This roof is water tight with no evidence of leaks at this time. Price $1,400 /s/ Lonnie Cooper The main portion of the roof consisted of a large flat gravel area with parapets; the remaining area was made up of several smaller roofs, one covered with barrel tile and the other two with gravel. The two small gravel roofs were on the lower deck where the entrance to the house is located. Cooper reroofed the main gravel area and replaced missing tile on the small tile roof. However, notwithstanding the contract, he did not check the three smaller roofs for leaks. After the job was completed, he certified that the roof was in "satisfactory condition with no evidence of leaks at the time of inspection. (Petitioner's Exhibit 14). When the work was performed, Stewart believed that approximately 80 percent of the entire roof was being replaced and that the work was guaranteed. Stewart later repainted the small tile roof to improve its appearance. At the hearing, representatives of Cooper Roofing, Inc. agreed with Stewart that the area replaced represented about 80 percent of the entire roof. In April, 1979, Stewart and Romeo decided to sell their property. They listed the home with Respondents's employer, Don Capin, Inc., with an asking price of $275,000. The realtor accepted the listing knowing that the restoration project on the house was still underway, and was not yet completed. On April 18, 1979, Stewart gave the realtor an information sheet from which the firm prepared a brochure for inclusion in the Coral Gables Multiple Listing Service. The brochure described or stated the property's location, legal description, lot size, year built, improvements, taxes, price, terms, and procedure for inspection. It also included the following information: First Floor consists of 2 Large Apts: 3 Bedrooms 2 Baths, Large Living Room, NEW KITCHEN. 2 Bedroom 1 Bath, Living Room, NEW KITCHEN. Baths on First Floor are NEW, NEW ROOF, NEW CARPETING. NEW BLACK LAGOON POOL with Wood DECKING, Circular Drive, Entire Property is Walled In for Privacy Over 5000 Square Feet. (Petitioner's Exhibit 3) The listing included a proviso that it was made subject to omissions, errors and prior sale without notice. After reviewing the brochure several weeks later, Stewart noted a number of errors. Thereafter, on May 14, 1979, be prepared a corrected listing. In it, he changed the year the house was built from 1928 to 1930, modified the lot size from 90' x 120' to 89' x 122' and advised that the purchaser must qualify for assumption of the mortgage and be subject to escalating interest rates. (Petitioner's Exhibit 5). John F. Phillips, a salesman at Don Capin, Inc., received an inquiry concerning the property in May, 1979, from one Shirley Deitz, who had read an advertisement in the Miami Herald. Prior to this he had shown the house to only one other prospective buyer. Phillips took Dietz and her late husband to the property where they met Stewart. There Phillips accompanied Dietz and Stewart on an inspection of the house while Stewart explained the work done in the restoration project, including those areas that were not finished. During the inspection, Phillips and Dietz noted several items requiring repair. As is pertinent here, they included sagging and water-damaged ceilings in the living room, the upstairs hall, and above the kitchen sliding door. Stewart readily acknowledged that the ceilings had been damaged by a leaking roof, but advised the roof had been recently replaced. He also agreed to repair the sagging ceilings, and other items, prior to closing. Stewart claimed he told Dietz that only the parapet roof had been replaced; Dietz did not recall this, and Phillips was not privy to their conversation. Although the brochure stated that the entire property was "[w]alled in for privacy", there was no fence or wall on its west side. At the time of inspection, the property was enclosed on three sides by a concrete wall in front, and wooden fences in the back and on the east side. The missing wall was obvious to all, and Stewart made no effort to conceal it. In fact he agreed to construct a fence in the missing area prior to closing which was acceptable to Dietz. Stewart told her he intended to construct a wooden fence rather than a wall so that it would be compatible with the fences on the other two sides of the house and decking on the rear. There was no objection by Dietz. When the fence was constructed, it lay slightly over the property line and on the adjoining neighbor's property. This was caused by a water pipe which lay under the property line and required the foundation and fence to be placed beyond Stewart's property. Dietz executed a contract for sale and purchase on May 19, 1979. After an initial offer was rejected, the parties finally agreed upon a sales price of $225,000. The contract provided that: [s]ellers shall give credit at closing (to) repair ceilings in living room and hall upstairs, repair wall above sliding glass in upstairs kitchen, complete fence to west, property line, resurface driveway, and paint steps and porch to upstairs apartment. Prior to closing, Stewart repaired the ceilings, resurfaced the driveway, painted the steps and porch, and completed the fence as required by the contract. On or about Augusta 15, 1979, a closing was held on the property. Both parties were represented by counsel. Just after the closing, Respondent orally advised Dietz that the newly constructed fence on the west side was actually six inches over the property line and lay on Lot 4, her neighbor's property. Earlier that day Stewart had given Dietz a letter that she had signed and which acknowledged this problem. (Petitioner's Exhibit 7). The letter explained that a conveyance of the fence to the neighbor was necessary in order "to avoid any dispute with the owner of lot 4." However, Dietz claims she did not understand what this meant. At the closing Stewart and Romeo also executed a quit-claim deed conveying a strip of land...and fence lying approximately two feet from the east boundary of Lot 4..." to George I. and Rebecca Pope Stoeckert, who owned the adjacent property. (Petitioner's Exhibit 6). The document was prepared upon the advice of both parties' counsel although Dietz claimed it was never shown to her. Approximately one week after the closing a tropical storm swept through the Miami area and caused large amounts of rainfall. As a result, the ceiling in the house began to leak. Dietz complained to John Phillips, who told her that it should not leak because Stewart had recently had a new roof installed. Dietz attempted to contact Stewart but he was out of the State. She then called Cooper Roofing who, after a number of visits, ran a water test on her roof and found the lower deck to be leaking. This was the area that had not been replaced or repaired. Cooper advised her to get a roofing contractor to fix the leak. After finally contacting Stewart, he paid Andrews Roofing $900 to replace and repair a part of the barrel tile roof. The leaks continued and Dietz finally hired Fredrico Jaca, a roofing contractor, to inspect the roof. Jaca found the three smaller roofs needing repair and thereafter replaced "about two or three hundred feet of bad lumber" and about 500 square feet of tile. Dietz incurred the cost for making these repairs. In early November, 1979, George Stoeckert told Dietz that the fence between their property was actually 2.4 feet over his property line. He showed her a copy of a property survey to verify this. Dietz claimed this was the first time she was aware of the problem. Stoeckert then removed the fence in January, 1980, for ten months while he built a swimming pool and landscaped his yard. When it was rebuilt, the new fence was compatible with his own fencing rather than the one torn down. Stewart contended that neither the realtor or Dietz was misled. He stated he always advised that the house was rebuilt and that it had a new parapet roof, which covered approximately 75 percent to 80 percent of the roofing area. He believed the remainder had been patched and made watertight by Cooper Roofing, Inc. After learning of Dietz's dissatisfaction, he offered to re- purchase the house for what she had paid plus any moving expenses she had incurred; however, Dietz refused. Given the amount of money spent in remodeling the housed ($100,000), he considers the brochure representation that the house was "completely" rebuilt to be accurate. He further stated that he signed the quit-claim deed only after being advised to do so by both attorneys at the closing.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that all charges against Respondent be DISMISSED. DONE and ENTERED on this 5th day of March, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER 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 5th day of March, 1982.
The Issue Whether Building Permit No. 9210004557 issued by Monroe County, Florida, to Daniel and Betsy Jones as owners and Russell D. Moore as contractor for the construction of a canal front vertical bulkhead and dock as a structural accessory to a single family dwelling is contrary to the provisions of Chapter 380, Florida Statutes, the Monroe County Comprehensive Plan and the Monroe County Land Development Regulations.
Findings Of Fact Petitioner is the state land planning agency charged with the responsibility to administer the provisions of Chapter 380, Florida Statutes, and the regulations promulgated thereunder. Petitioner has the authority to appeal to the Florida Land and Water Adjudicatory Commission any development order issued in an area of critical state concern. Monroe County is a political subdivision of the State of Florida, and is responsible for issuing development orders for development in unincorporated Monroe County. Monroe County issued the development order that is the subject of this appeal. Respondents, Daniel and Betsy Jones, are the owners of real property known as Lot 27, Section D (ext. to Hibiscus Lane), Sugarloaf Shores, Florida (Lot 27). Sugarloaf Shores is a legally platted subdivision. The Jones were, at the time of the formal hearing, constructing a single family dwelling on that property. The building permit for the construction of the dwelling is not at issue in this proceeding. Most of Monroe County, including the subject property, is within the Florida Keys Area of Critical State Concern as designated under Sections 380.05 and 380.0552, Florida Statutes. There is an extensive man-made canal system throughout Sugarloaf Shores subdivision that is several miles in length, is between six and ten feet in depth, and is approximately sixty feet in width. The subject permit is for construction where Lot 27 fronts this canal system and involves construction beyond the mean high water mark onto submerged lands. On June 26, 1992, Monroe County issued the subject building permit, Permit Number 9210004557, to Daniel Jones and Betsy Jones as owners and Russell D. Moore as contractor. The subject permit authorizes the construction of a vertical bulkhead designed to limit erosion together with a docking facility with davits and access to the canal system. Most of the neighboring lots in the vicinity of the project have vertical bulkheads with docking facilities. The bulkhead is desirable to prevent erosion of the canal bank at Lot 27 and pollution of the canal waters. The requested development would give the Jones safe access to the canal and provide private boating facilities. Pursuant to the provisions of Sections 380.05 and 380.0552, Florida Statutes, Monroe County has adopted a comprehensive plan which complies with the Principles of Guiding Development found at Section 380.0552(7), Florida Statutes. Section 380.0552(7), requires Monroe County's land development regulations to comply with certain Principles For Guiding Development, including the following: (b) To protect shoreline and marine resources, including mangroves, coral reef formations, seagrass beds, wetlands, fish and wildlife and their habitat. * * * (e) To limit the adverse impacts of development on the quality of water throughout the Florida Keys. ... Monroe County's comprehensive plan, which has been approved by the Petitioner and by the Administration Commission, is implemented through its adopted land development regulations, codified in Chapter 9.5, Monroe County Code. Section 9.5-345(m)(2), Monroe County Code, provides as follows: (2) All structures on any submerged lands and mangroves shall be designed, located and constructed such that: * * * No structure shall be located on submerged land which is vegetated with sea grasses except as is necessary to reach waters at least four (4) feet below mean low level for docking facilities; No docking facility shall be developed at any site unless a minimum channel of twenty (20) feet in width where a mean low water depth of at least minus four (4) feet exists; Section 9.5-4(W-1), Monroe County Code, provides as follows: (W-1) "Water at least four (4) feet below mean sea level at mean low tide" means locations that will not have a significant adverse impact on off-shore resources of particular importance. For the purposes of this definition, "off-shore resources of particular importance" shall mean hard coral bottoms, habitat of state or federal threatened and endangered species, shallow water areas with natural marine communities with depths at mean low tide of less than four (4) feet, and all designated aquatic preserves under Florida Statutes section 258.39 et seq. Section 2.104, Nearshore Waters, Monroe County Comprehensive Plan, Volume II, Future Land Use Element, provides, in pertinent part, as follows: The Florida Keys are dependent on nearshore water quality for their environmental and economic integrity. The heart of the Florida Keys economy, the means by which Monroe County exists as a civil and social institution, is based on its unique oceanic character. If nearshore water quality is not maintained, then quality of life and the economy of Monroe County will be directly and immediately impacted. OBJECTIVES 1. To protect, maintain and, where appropriate, to improve the quality of nearshore waters in Monroe County. * * * POLICIES 1. To prohibit land use that directly or indirectly degrade nearshore water quality. * * * To prohibit the development of water dependent facilities, including marinas, at locations that would involve significant degradation of the biological character of submerged lands. To limit the location of water-dependent facilities at locations that will not have a significant adverse impact on off-shore resources of particular importance. For the purposes of this policy, off-shore resources of particular importance shall mean hard coral bottoms, habitat of state or federal threatened and endangered species, shallow water areas with natural marine communities with depths at mean low tide of less than four (4) feet, and all designated aquatic preserves under Florida Statutes section 258.39 et seq. Benthic communities exist in Sugarloaf Sound, such as rock-hard bottom, sea grasses, algae, and hard coral. Turtles, manatees, sharks, stingrays, eagle rays, snapper, pink shrimp, mullet, and other marine animals populate the Sound. Sea grass beds play an important role in water quality maintenance in the Keys through filtration, nutrient uptake, stabilization of the bottom, and as a habitat for commercially important species. The canal system for Sugarloaf Shores subdivision does not have access to deep water without crossing shallow sea grass beds with depths of less than four feet at mean low water. The operation of motor driven boats may result in damage to sea grass beds and shallow water marine communities through prop dredging. Although there is evidence of prop dredging in parts of Sugarloaf Sound in these shallow areas, it was not shown that the damage was done by boats traveling from the Sugarloaf Shores canal system and deep water. Whether a boat that may be docked at some future time if the permit is granted will cause damage to some portion of Sugarloaf Sound is speculation. Since 1986, Monroe County has adopted an interpretation of Section 9.5-345(m)(2), Monroe County Code, and of Section 2.104, Nearshore Waters, Monroe County Comprehensive Plan, Volume II, Future Land Use Element, that would permit the construction of the subject project. That interpretation permits the development of marginal seawalls, vertical bulkheads and docks in subdivisions that were under development in 1986 if there is at least four feet of water at the terminal point of the dock at mean low tide. The dock that is the subject of this proceeding would, if permitted, terminate in water of at least six feet in depth at mean low tide. Monroe County's interpretation of the so-called "four foot rule" is that the rule was intended to restrict the development of boating access facilities in new, undeveloped subdivisions and to regulate proposed expansion of existing marinas and the development of new marinas. Monroe County's interpretation of its rules is that a vertical bulkhead and dock built on an individual family home-site, where a dwelling was already built or under construction, would have minimal effect on the nearshore water environment of critical state concern. Monroe County considers the subject application by the Jones to meet all of its permitting criteria. The subject project has received an exemption from permitting from the Florida Department of Environmental Regulation and from the Florida Department of Natural Resources. The Army Corps of Engineers has agreed to issue a permit for the project with no special conditions. There is no definition of "docking facility" contained within the Monroe County Land Development Regulations or the Monroe County Comprehensive Plan. It was not established that a bulkhead is a docking facility or that the construction of a bulkhead on Lot 27 should be prohibited under any of the theories advanced by Petitioner. Respondents presented evidence that several similar projects were permitted at approximately the same time as the Jones's permit without Petitioner filing an appeal. This evidence was insufficient to establish that Petitioner should be estopped to appeal the subject permit, that Petitioner engaged in selective enforcement of its regulatory power, or that Petitioner otherwise brought the subject appeal for an inappropriate purpose.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a final order which approves the construction of the bulkhead. It is further recommended that the Final Order conditionally deny the permit, but specify that the County may approve the building permit at issue if there are channel markers to open water marked and approved by the Florida Department of Environmental Protection. DONE AND ENTERED this 11th day of June, 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 11th day of June, 1993. COPIES FURNISHED: Lucky T. Osho, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 J. Daniel and Betsy Jones 2515 Nela Avenue Orlando, Florida 32809 Russel D. Moore Route #5, Box 600 Big Pine Key, Florida 33043 Randy Ludacer, Esquire Monroe County Attorney Fleming Street Key West, Florida 33040 David K. Coburn, Secretary Florida Land and Water Adjudicatory Commission Executive Office of the Governor Carlton Building Tallahassee, Florida 32301 Carolyn Dekle, Director South Florida Regional Planning Council Suite 140 3400 Hollywood Boulevard Hollywood, Florida 33021 Robert Herman Monroe County Growth Management Division Public Service Building, Wing III 5825 Jr. College Road Stock Island Key West, Florida 33040 Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 G. Steven Pfeiffer, General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100
The Issue Whether Building Permit No. 9020000827 issued by Monroe County, Florida, to Lawrence J. Bruno is contrary to the provisions of Chapter 380, Florida Statutes, the Monroe County Comprehensive Plan and the Monroe County Land Development Regulations.
Findings Of Fact Petitioner is the state land planning agency charged with the responsibility to administer the provisions of Chapter 380, Florida Statutes, and the regulations promulgated thereunder. Petitioner has the authority to appeal to the Florida Land and Water Adjudicatory Commission any development order issued in an area of critical state concern. The appeal in the instant proceeding was timely. Monroe County is a political subdivision of the State of Florida and is responsible for issuing development orders for development in unincorporated Monroe County. Monroe County issued the development order that is the subject of this appeal. Respondent Lawrence J. Bruno is the owner of real property known as Lot 9, Block 20, Crain's Subdivision, on Grassy Key in unincorporated Monroe County, having purchased the property in 1985. Mr. Bruno has constructed a single family dwelling on that property, but the building permit for the construction of the dwelling is not at issue in this proceeding. Most of Monroe County, including the subject property, is within the Florida Keys Area of Critical State Concern as designated under Sections 380.05 and 380.0552, Florida Statutes. At the time Mr. Bruno purchased the property in 1985, the lot was vacant, but there was a wooden dock in existence that was used by the neighboring lot owners. Monroe County's comprehensive plan, which has been approved by the Petitioner and by the Administration Commission, is implemented through its adopted land development regulations, codified in Chapter 9.5, Monroe County Code. The wooden dock that was on the property at the time Mr. Bruno purchased his property was built before Monroe County adopted the following land development regulations and was a lawful, preexisting structure. Section 9.5, Monroe County Code, pertains to structures that were in existence at the time the subject land development regulations were adopted, but which do not conform to those regulations. Section 9.5-141, Monroe County Code, provides as follows: The purpose of this article is to regulate and limit the continued existence of uses and structures established prior to the enactment of this chapter that do not conform to the provisions of this chapter. Many nonconformities may continue, but the provisions of this article are designed to curtail substantial investment in nonconformities and to bring about their eventual elimination in order to preserve the integrity of this chapter. Section 9.5-144 allows the continued existence and the ordinary repair and maintenance of nonconforming structures which predated the adoption of the subject land development regulations, and provides, in pertinent part, as follows: Authority to Continue: A nonconforming structure devoted to a use permitted in the land use district in which it is located may be continued in accordance with the provisions of this section. Ordinary Repair and Maintenance: Normal maintenance and repair of registered nonconforming structures may be performed. Enlargements and Extensions: Nonconforming structures which are used in a manner conforming to the provisions of this chapter may be enlarged or extended provided that the nonconformity is not further violated. . . . From the time he purchased the property in 1985 until the subject construction in 1991, Mr. Bruno made periodic improvements that constituted ordinary repair and maintenance that did not require a permit from Monroe County. In 1991, Mr. Bruno constructed a concrete pier on top of the existing wooden pier and rotated the terminal platform of the pier so that the terminal platform is now T-shaped. The concrete pier is on its own supports and is independent of the wooden pier, which still exists under the new concrete pier. Mr. Bruno contends that this construction in 1991, which was performed without obtaining a permit from Monroe County, should be construed to be ordinary maintenance and repair of the preexisting wooden pier. This contention is rejected. The greater weight of the evidence establishes that Mr. Bruno went beyond the mere maintenance and repair of the preexisting wooden pier and constructed a new concrete pier on top of the existing pier. After the construction of the concrete pier was completed, Mr. Bruno was cited by Monroe County for non-permitted construction. He thereafter applied to Monroe County for an after the fact permit. Monroe County subsequently issued Permit No. 9020000827, the permit that is the subject of this appeal. That permit authorized the construction that had been completed by Mr. Bruno, but it contained a restriction that no propeller driven boats are to be docked or used in the area of the pier. Prior to the construction that is at issue in these proceedings, Mr. Bruno could moor boats at the wooden pier because it was a preexisting nonconforming structure. The restriction contained in the building permit issued by Monroe County that prohibits the mooring of boats at the concrete pier has not been challenged by Mr. Bruno. Section 9.5-345(m)(2), Monroe County Code, referred to as the four foot rule, provides as follows: (2) All structures on any submerged lands and mangroves shall be designed, located and constructed such that: * * * No structure shall be located on submerged land which is vegetated with sea grasses except as is necessary to reach waters at least four (4) feet below mean low level for docking facilities; No docking facility shall be developed at any site unless a minimum channel of twenty (20) feet in width where a mean low water depth of at least minus four (4) feet exists; Section 2.104, Nearshore Waters, Monroe County Comprehensive Plan, Volume II, Future Land Use Element, provides, in pertinent part, as follows: The Florida Keys are dependent on nearshore water quality for their environmental and economic integrity. The heart of the Florida Keys economy, the means by which Monroe County exists as a civil and social institution, is based on its unique oceanic character. If nearshore water quality is not maintained, then quality of life and the economy of Monroe County will be directly and immediately impacted. OBJECTIVES 1. To protect, maintain and, where appropriate, to improve the quality of nearshore waters in Monroe County. * * * POLICIES 1. To prohibit land use that directly or indirectly degrade nearshore water quality. * * * To prohibit the development of water dependent facilities, including marinas, at locations that would involve significant degradation of the biological character of submerged lands. To limit the location of water-dependent facilities at locations that will not have a significant adverse impact on off-shore resources of particular importance. For the purposes of this policy, off-shore resources of particular importance shall mean hard coral bottoms, habitat of state or federal threatened and endangered species, shallow water areas with natural marine communities with depths at mean low tide of less than four (4) feet, and all designated aquatic preserves under Florida Statutes section 258.39 et seq. By Final Judgment entered June 7, 1991, the Honorable Richard G. Payne, Judge of the Circuit Court of the Sixteenth Judicial Circuit, in and for Monroe County, Florida, ruled in Stanton v. Monroe County, Case No. 91-20-035- CA-18, that Monroe County's four foot rule does not apply to swimming piers, concluding, in pertinent part, as follows at page five of the Final Judgment: 5. To the extent that the County's Comprehensive Plan and Land Development Regulations fail to provide for swimming piers ... the court finds that it is unreasonable to treat such piers as if they were docks at which boats are to be moored. Pursuant to the judicial review authority of Chapter 163, Fla. Stat., the court declares . . . [the four foot rule] inapplicable to piers at which boats are not to be moored. The County has adequate judicial remedies, including injunction, to prevent the use of such piers, including the subject pier, for the mooring of boats. Petitioner's concern is that boats will moor at the structure regardless of the restrictions on the permit and that these boats will cause degradation to the nearshore waters while crossing to deep water. Damage to the benthic communities in the vicinity of the Bruno's property and degradation to the nearshore waters would occur if propeller driven boats were to moor at the subject dock in violation of the restrictions that have been placed on the permit. Petitioner's concern is premised on the unwarranted assumptions that the structure will be illegally used at some point in the future by boats. Petitioner did not establish that damage would be done to the environment by this structure since the mooring of boats is prohibited. The greater weight of the evidence established that there was no risk of damage to sea grass beds or other benthic communities by the structure so long as there is compliance with the restrictions contained in the permit. Respondents presented evidence that several similar projects were permitted at approximately the same time as Mr. Bruno's permit without Petitioner filing an appeal. These shallow water structures are intended to provide personal access to the water, either because of heavy mangrove fringe or difficult access to the water. The Florida Department of Environmental Regulation, the Florida Department of Natural Resources, the U.S. Army Corps of Engineers and Monroe County have, in the past, issued permits for these type structures.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Florida Land and Water Adjudicatory Commission enter a final order affirming Monroe County's issuance of building permit number 9020000827. DONE AND ENTERED this 11th day of June, 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 11th day of June, 1993. APPENDIX TO RECOMMENDED ORDER CASE NO. 91-6328DRI The following rulings are made on the proposed findings of fact submitted by Petitioner. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, 7, 11, and 12 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 8 and 10 are subordinate to the findings made. The proposed findings of fact in the first sentence of paragraph 9 are rejected as being contrary to the greater weight of the evidence. While Mr. Metcalf testified that there was a boat moored at the structure when he inspected the structure in June 1991, there was no evidence as to whose boat he observed or the circumstances that resulted in the boat being moored at the structure. Mr. Bruno's testimony that he sold his boat and that he does not use the structure for the mooring of boats is persuasive. The remaining proposed findings in paragraph 9 are subordinate to the findings made. The following rulings are made on the proposed findings of fact submitted by Respondent Bruno. The proposed findings of fact in paragraphs 1, 2, 4, 5, 7 and 8 are adopted in material part by the Recommended Order. The proposed findings of fact in the first sentence of paragraph 3 are adopted in material part by the Recommended Order. The proposed findings of fact in the second sentence of paragraph 3 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 6 and 9 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 10 are rejected as being unnecessary to the conclusions reached. COPIES FURNISHED: James S. Mattson, Esquire Mattson & Tobin Post Office Box 586 Key Largo, Florida 33037 Lucky T. Osho, Esquire David Jordan, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 G. Steven Pfeiffer, General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 James T. Hendrick, Esquire Attorney for Monroe County Post Office Box 1117 Key West, Florida 33040 Carolyn Dekle, Director South Florida Regional Planning Council 3400 Hollywood Boulevard Suite 140 Hollywood, Florida 33021 Bob Herman, Herb Rabin, Lorenzo Aghemo, Pat McNeese Monroe County Growth Management Division Public Service Building, Wing III 5100 Junior College Road West Stock Island Key West, Florida 33040 David K. Coburn, Secretary Florida Land and Water Adj. Commission Executive Officer of the Governor 311 Carlton Building Tallahassee, Florida 32301
