Findings Of Fact On May 20, 1986 the applicant submitted a reguest for four Variances to the City of Clearwater. These variances concern property he owns which is located at 304 and 306 Nimbus, Skycrest Subdivision, Unit 9, Block B, Lot 9 in the City of Clearwater This property is zoned RN-28 (multiple family residential) A duplex apartment is presently located on the subject property, and the applicant is seeking these variances to construct a third apartment on the property, thereby making it a triplex. He intends to live in the new apartment. At the present time he is renting out the two existing units and is renting an apartment elsewhere for himself. Therefore, the purpose of this variance request is not to create a third rental unit on the subject property, but to construct a unit in which the applicant himself will reside. However, there is no restriction on future use of the new unit, which could he used to enhance the overall value of the subject property. The applicant is specifically requesting variances in overall lot size, lot width, driveway width, and of the minimum parking requirements which are applicable to a triplex. The size of the lot is 9,360 square feet, rather than the required 10,000 square feet, and the lot is 75 feet wide, rather than the required 80 feet. The current driveway is 10 feet wide, rather than 20 feet, and there are 4 parking spaces, rather than the required 5 spaces. The construction of the new unit has already begun, and in fact has been substantially completed. Total value of the construction is approximately $8,000. This work was done without a proper building permit and without the variances sought herein. Prior to commencing construction, the applicant made no effort to find out for himself what permits would be required, or if he would have to seek any variances. The applicant contracted with Tom Pettit, a licensed contractor, for the construction of the footer and block walls for the new unit. Total cost to the applicant for this work was $1,634. Pettit applied for a permit for remodeling and repairs on April 8, 1985, and received permit number B-85040243 on April 10, 1985. This was the only permit applied for or obtained in connection with this construction. No general construction permit was ever applied for or obtained. After Pettit completed the footer and block walls, the applicant completed all interior work, with the exception of electrical, and also finished the exterior. A separate permit is required for electrical work, and when the applicant applied for an electrical permit, he was told he did not have a proper building permit for the work already completed, and further would need the variances sought in this case. On June 12, 1986 the Development Code Adjustment Board denied these variances and the applicant has timely sought this review. No evidence was presented by the applicant concerning conditions unique to this property or hardship that would support his request. There is also no evidence that these variances are the minimum necessary to construct a new unit on the subject property. Rather, these variances are sought due to construction which has already taken place without proper authorization.
The Issue Whether or not the Petitioners, Guy T. Selander and Henry W. Harris, should be granted an "after the fact" construction permit in accordance with Section 253.124(7)(a), F.S., for the retaining wall which has been constructed on or near their property located on Beauclerc Point, Duval County, Florida.
Findings Of Fact This cause came on to be heard upon the Petitioners' request for an "after the fact" construction permit for a retaining wall which had been built on or near their property. The specific property spoken of is two lots located on Beauclerc Point, Duval County, Florida. These lots are shown as numbers 21 and 22 found on Petitioners' Exhibit No. 15, admitted into evidence. This is a replat based upon a survey of November 28, 1923. The exhibit shows the retaining wall superimposed on the survey. A more specific showing of the placement of the retaining wall on lots 21 and 22 may be found in Petitioners' Exhibit No. 16, admitted into evidence. Petitioner, Guy T. Selander is the owner of lot number 21, which lot contains his residence. Henry W. Harris is the owner of lot No. 22 and there are no permanent buildings located on that lot. Dr. Selander built a home on lot No. 21 in the years 1974 through 1975. Prior to building the home he was of the opinion that he needed to protect the front of the lot which faces the St. Johns River. Dr. Harris was also interested in protecting his lot. Between them it was determined that they would build a retaining wall to protect their lots. The two lots are located on a bluff which drops approximately 20 to 25 feet down to the level of the river. The St. Johns River is a navigable river. Prior to commencing the construction of the retaining wall, the Petitioners, upon the suggestion of a friend of Dr. Selanders, applied to the City of Jacksonville, Duval County, Florida for a building permit. The application for permit was made on January 19, 1973. The Petitioners were granted a permit on January 19, 1973, entitled "miscellaneous permit", No. 495. A copy of the permit is a part of Petitioners' Exhibit No. 1, admitted into evidence. The Petitioners at that time did not seek further approval of the construction of their retaining wall, by the state authorities or the United States Corp of Engineers. In constructing the retaining wall the Petitioners contemplated the use of fill, some of which was to be placed in the river proper. Some fill was placed in the river at this point in time which constituted an obstruction or alteration of the natural flow of the St. Johns River. The apex of the retaining wall and the southwest section of the retaining wall, was constructed waterward of the existing bulkhead line found on the neighboring property located to the north and south of the subject two lots. The apex of the retaining wall, as can be seen in Petitioners' Exhibit No. 15, lies at the approximate center of the two lots. At the time the permit was requested of the City of Jacksonville and the retaining wall was constructed, which construction was between January, 1973 and September, 1973, Section 253.124(1)(2), F.S., required that the permit application be approved by the Board of Trustees of the Internal Improvement Trust Fund, prior to any construction. As indicated, this approval was not received prior to commencing construction and in September, 1973, officials of the State of Florida and the U.S. Corp of Engineers came to the property and discovered that the wall was being constructed. At this point in the construction, the bottom of the river where the retaining wall was being placed had been smoothed out and sand bags filled and laminated, such that the wall was in place. Then "riprap", broken concrete, was being placed landward of the retaining wall. The officials of the two governmental bodies told the Petitioner Selander that he would need approval of the Board of Trustees of the Internal Improvement Trust Fund and of the U.S. Corp of Engineers to construct that wall. Prior to undertaking the project of constructing the retaining wall, the land along the toe of the bluff had been dry land, but as established before, some fill had been placed in the river, with the majority of that fill being placed at the southern most point of the two lots. This location is further described as being the point where the retaining wall makes an approximate right angle and comes back to the southern boundary line of lot No. 22. The retaining wall and the Selander residence may be seen in Petitioners' Photographic Exhibits No. 9 and 11, admitted into evidence. The condition of the shoreline on lots No. 21 and No. 22 prior to the construction of the retaining wall and placement of the fill may be seen in Petitioners' Photographic Exhibit No. 8, admitted into evidence. This photograph was taken somewhere in the time period of 1970 through 1971, and shows water of the St. Johns River at a place on the lot fronts that was later filled in. The photograph, Petitioners Exhibit No. 8, also shows that the retaining wall had been constructed waterward of the mean high waterline. Subsequent to the conversation with the state and federal officials, the Petitioners filed a request for an "after the fact" permit. This permit request was filed on November 1, 1973 and is found as Petitioners' Exhibit No. 1, admitted into evidence. The Petitioners stopped working on the project and did not recommence until after receiving the recommended approval of the City of Jacksonville, which is found in Petitioners' Exhibit No. 2, admitted into evidence, an August 16, 1974, letter from the Director of Public Works of the City of Jacksonville. This permit letter is conditioned upon the approval of the Trustees of the Internal Improvement Trust Fund and of the U.S. Army Corp of Engineers. From that point there were various requests made by the agencies of the state, which were complied with by the Petitioners. Additional work was done on the retaining wall based on receipt of a copy of a letter from Robert W. Hall, Administrator of the Dredge and Fill section of the State of Florida, Department of Pollution Control. This letter is Petitioners' Exhibit No. 6, admitted into evidence and is dated October 31, 1974. The letter indicates the recommended approval of the Department of Pollution Control of the project conditioned upon the installation of "riprap" material waterward of the retaining wall, and pending the Trustees' approval. The principal questions being addressed by the agencies were: Whether or not it would be more detrimental to the marine biological resources to remove the construction and fill. If the answer to the first question was yes, then what was the nature of the erosion of the bluff line, was it slow and imperceptible or was it avulsion or artificially induced. During the course of the investigation of the application for permit, review of the project was made by the Department of Natural Resources. In addition, a field inspector with the Board of Trustees of the Internal Improvement Trust Fund, Jeremy Tyler, went to the project and examined the retaining wall and surrounding area on November 18, 1974. His inspection revealed that the water on the property located south of the Petitioners' property touched the bluff of the bank at high tide. The water on the property south of the Petitioners' property was lapping against the bulkhead at the base of the bluff. The witness noted that the point of the bluff in that general area was located on the Harris and Selander property. According to this witness's observation, the mean high waterline on November 18, 1974 would have been an approximate diagonal line going from the adjacent north bulkhead line to the adjacent south bulkhead line. On November 3, 1975, Jerome Kelly, a subdistrict biologist for the State of Florida, made an inspection of the property. He felt that the only adverse effect on the biological resources that would occur with the removal of the retaining wall would be removal of a stand of typha, also known as cattails, which was waterward of the north end of the retaining wall. A memorandum of his observations is found as Respondent's Exhibit No. 5, admitted into evidence. The Petitioners employed Dr. Joe A. Edmisten, an ecological consultant. The results of the examination of the property, which was made by Dr. Edmisten may be found as Petitioners' Composite Exhibit No. 17, admitted into evidence. Dr. Edmisten and his assistant took soil samples and cores in the general area and examined various aquatic and wetland plants in the area of the project. It was concluded by Dr. Edmisten that soil had washed from the bluff line before and this erosion was prohibiting the health of certain of these plants. Additionally, Dr. Edmisten felt that the retaining wall was assisting in the development of these plants and the development of periphyton and sessile animals. He felt that the removal of the retaining wall would cause the destruction of the aquatic plants, terrestial plants and animals, and aquatic animals and the substrate. The report does not speak to the issue of the long term effects of removing the retaining wall landward of its present placement and landward of the mean high waterline; however, his testimony at the hearing seemed to suggest that a properly constructed retaining wall in such a location would not be inappropriate. This is in keeping with the testimony of Jerome Kelly who didn't feel that removing the wall and placing it in a location landward of the mean high waterline would damage the ecological system. Additionally, it can be seen that if the wall was moved landward of its present location there would be a greater volume of water for marine life to exist in. The second consideration that was addressed in the discussion of the "after the fact" permit was the question of whether the erosion of the property found in the lots of the Petitioners had transpired through imperceptible erosion or by specific avulsion or artificially induced erosion. Testimony was offered by Petitioner Harris, which appears as a deposition in lieu of in hearing testimony. Affidavits were also submitted to the Respondent by persons living in the vicinity of the Petitioners' property. These affidavits may be found as part of the Edmisten report which is Petitioners' Exhibit No. 17, admitted into evidence. The Petitioners tried to demonstrate that the loss of land was caused by avulsion due to hurricane Dora which occurred in 1964 and through various northeastern storms. It is clear that the property line has receded since the replat of 1923 shown in Petitioner's Exhibit No. 15, admitted into evidence. It is unclear however, whether this erosion was caused by avulsion, imperceptible erosion or artificially induced erosion. Therefore, the Petitioners have failed to demonstrate their entitlement to reclaim land beyond the mean high waterline. Based upon an examination of the facts it has been demonstrated that it would not be more damaging to the environment or the marine resources protected by Chapter 253, F.S., to cause the removal of the fill which has been placed waterward of the mean high waterline, as opposed to granting an "after the fact" permit.
Recommendation It is recommended that the "after the fact" construction permit sought by the Petitioners under authority of Section 253.124(7)(a) F.S., be denied. DONE AND ORDERED this 24th day of June, 1977, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Almer W. Beale, II, Esquire South 1014, Barnett Bank Building Jacksonville, Florida 32202 Vance W. Kidder, Esquire Department of Environmental Regulation 2562 Executive Center Circle, East Tallahassee, Florida 32301
The Issue The issues in this action are promoted through a notice of violation and orders for corrective action filed by the Petitioner against the Respondent in which the Respondent is accused of violating various provisions of Chapter 403, Florida Statutes, and Chapter 17, Florida Administrative Code, related to fill material allegedly found in waters of the state adjacent to property of the Respondent, without the benefit of a permit from the Petitioner which would allow the existence of that fill material in the questioned area. To remedy this condition, Petitioner seeks to have Respondent remove the material and restore the area to its natural condition. Finally, Petitioner requests reimbursement of cost incurred in the investigation of this case.
Findings Of Fact Respondent is the owner of a parcel of property located in Jacksonville, Duval County, Florida, described as Lot 8, Yvonne Park, recorded in Plat Book 21, page 97, of the public records of Duval County. The street address of that property is 6775 Yvonne Lane, Jacksonville, Florida. That property borders on Pottsburg Creek, a body of water over which Petitioner has Chapter 403, Florida Statutes, jurisdiction for regulatory purposes. Pottsburg Creek, in turn, is connected to the St. Johns River, another waterbody over which the Petitioner has similar jurisdiction. Fill material has been placed in the landward extent of Pottsburg Creek at the Respondent's property site at 6775 Yvonne Lane, Lot 8, Yvonne Park. That fill material in the landward extent is approximately 6 feet thick and is constituted of building materials, to include roofing, dirt, household trash and other assorted debris. The fill area is approximately 190 feet wide by 100 feet deep. Dominant plant species in the fill area in question include bald cypress (Taxodium distichum) and water ash (Fraxinus caroliniana). These species are set forth in the species list of Rule 17-4.02, Florida Administrative Code, and generally delineate the landward extent of the Pottsburg Creek. For its claim of jurisdiction, a more exact measurement of the landward extent of Pottsburg Creek has been established by drawing an imaginary line between two bald cypress trees on adjacent property through the filled area on the Burch property. The area waterward of the imaginary line is established as waters of the state and the area landward is outside that jurisdiction. This line is depicted on Petitioner's Exhibit No. 4, a photograph of the area in question. In particular, the imaginary line is shown in blue. This method of establishing jurisdiction was elected because in the placement of fill, the identifying species of bald cypress and water ash were removed. The fill was placed between April 26, 1974 and January 3, 1981 as established by an examination of aerial photographs (Petitioner's Exhibits No. 6 and 7) taken on those respective dates. The clearing that was done to allow the placement of fill increased and continues to increase water pollution and lower the water quality in Pottsburg Creek and the St. Johns river. Before the land was cleared, the natural vegetation absorbed and assimilated pollutants born in the runoff from the upland. Now, not only is that valuable function destroyed, the fill itself becomes a source of pollution through leaching of the materials that constitute the fill pack. Those materials degrade and cause water pollution in Pottsburg Creek. The water quality in that creek is already less than desirable, especially related to dissolved oxygen, and the introduction of organic pollutants from from the fill bank would aggravate that circumstance. In the pursuit of this action, the Petitioner has incurred cost and expenses in the amount of $71.03 related to its investigation.
Recommendation Based upon the facts found and the conclusions of law reached, it is recommended: That a Final Order be entered which finds the Respondent responsible for the pollution caused by the placement of the fill, that awards $71.03 in costs of investigation to the Petitioner, that requires the Respondent to remove all fill materials placed within the landward extent of Pottsburg Creek as determined herein, that requires the restoration of the land elevation and soil condition existing prior to the placement of fill, and that requires, during the restoration activities, that the adjacent area over which the Department of Environmental Regulation has jurisdiction not be adversely impacted. DONE AND ENTERED this 21st day of March, 1984, in Tallahassee, Florida. CHARLES C. ADAMS 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 March, 1984. COPIES FURNISHED: Lacy Mahon, Jr., Esquire 350 South Adams Street Jacksonville, Florida 32202 Victoria Tschinkel Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 22301 David K. Thulman, Esquire 2600 Blair Stone Road Tallahassee, Florida 32201
Findings Of Fact The petition Petitioners, George and Judy Sands (Sands), seek to recover attorney's fees and costs under the provisions of Section 57.111, Florida Statutes, as a "prevailing small business party" in the matter of Department of Community Affairs v. George H. Sands, et al., DOAH Case No. 91-3472DRI, recommended order issued June 12, 1992 (the "underlying action). The underlying action The underlying action arose upon the respondent's, Department of Community Affairs' (Department's), appeal, pursuant to Section 380.07, Florida Statutes, of a building permit issued by Monroe County to the Sands which would have allowed the construction of a single family dwelling unit to replace a preexisting wood-frame structure. The predicate for the Department's appeal was its contention that the permit was inconsistent with the Monroe County comprehensive plan and land development regulations since it would authorize the replacement of a nonconforming structure or use contrary to the maximum net density standards applicable to residential development in a sparsely settled land use district. On appeal, the Sands denied that the structure being replaced was a nonconforming structure or use, and asserted affirmatively that the Department was estopped to contest the propriety of the permit and that they were entitled to an exception afforded by Section 9.5-268, Monroe County Land Development Regulations (MCLDR). Following the referral of the matter by FLWAC to the Division of Administrative Hearings, a formal hearing was held and a recommended order issued in the underlying action. That order concluded, consistent with the position advocated by the Department, that the permit would authorize the replacement of a nonconforming structure or use contrary to the maximum net density standards of the MCLDR applicable to residential development in a sparsely settled land use district, and that the Sands' estoppel defense was without merit. Notwithstanding, it was further found that the Sands were entitled to the exception afforded by Section 9.5-268, MCLDR and, therefore, their development was permissible. With regard to the exception issue, the recommended order found: 14. Notwithstanding the provisions of Section 9.5-262, MCLDR, the Monroe County land development regulations provide an exception to the density limitations other wise imposed by such section for certain dwelling units existent on the effective date of the regulations. Pertinent to this case, Section 9.5-268, MCLDR, provides: "Notwithstanding the provisions of section 9.5-262 . . . the owners of land upon which a dwelling unit . . . used as a principal residence prior to the effective date of the plan was lawful on the effective date of this chapter shall be entitled to a density allocation of one (1) dwelling unit for each such unit in existence on the effective date of this chapter." The parties to the underlying action disagreed, however, as to the proper interpretation or application of such provision to the facts of this case. Significant to an appreciation of the disagreement between the parties is an understanding of the peculiarity of the circumstances existent on the Sands' property. In this regard, the proof in the underlying action demonstrated that the Sands' property, consisting of approximately .45 acres, was purchased in January 1990, for use as rental property. At the time of the purchase, the property supported a concrete block residence, two bedrooms and one bath, of approximately 900 square feet and a wood-frame residence, two bedrooms and one bath, of approximately 625 square feet (the building to be replaced). Both buildings were constructed in 1948 and were each used by the Sands' predecessor in title as a principal residence, although not at the same times, prior to and as of the effective date of the Monroe County land development regulations. Pertinent to this case, the Sands' predecessor in title occupied the concrete block structure when the comprehensive plan became effective, and his adult children the wood-frame structure. The entire parcel was, however, claimed as homestead by the Sands' predecessor in title. At hearing, the Department contended the exception afforded by Section 9.5-268, MCLDR, should be interpreted to apply only to the owner of the residence on the effective date of the plan, and then only to the principal residence. Under such interpretation, the density exception offered by Section 9.5-268, MCLDR, would be lost where, as here, the owner sold the property or was not using the dwelling unit to be replaced as their principal residence when the plan became effective. Such position is consistent with the land planning concept that nonconforming structures or uses should be phased out over time. In contrast to the Department's interpretation, Monroe County interpreted the provision to essentially establish an allowable density on the effective date of the plan, based on prior usage, and to accord subsequent owners the benefit of such increased density allocation. Such position is consistent with the county's view of the exception accorded by Section 9.5-268, MCLDR, which assesses the propriety of the structures existent on the property as of the effective date of its comprehensive plan, and accords such structures "exemption status" if, had they been destroyed then, the existing code would have allowed their replacement. Monroe County's interpretation, while not the only interpretation, or perhaps the most desirable interpretation, was found to be not clearly erroneous and, therefore, permissible. Accordingly, the issue was resolved, as set forth in the recommended order rendered in the underlying action, as follows: 4. Dispositive of whether construction of the Sands' dwelling unit is consistent with the Monroe County land development regulations is the interpretation to be accorded Section 9.5-268, MCLDR. Generally, an administrative construction of a statute by an agency responsible for its administration is entitled to great deference and should not be overturned unless clearly erroneous. Depart ment of Environmental Regulation v. Goldring, 477 So.2d 532 (Fla. 1985); All Seasons Resorts, Inc. v. Division of Land Sales, Condominiums, and Mobile Homes, 455 So.2d 544 (Fla. 1st DCA 1984); and Sans Souci v. Division of Land Sales and Condominiums, 421 So.2d 623 (Fla. 1st DCA 1982). The same deference has been accorded to rules which have been in effect over an extended period and to the meaning assigned to them by officials charged with their administration. Pan American World Airways, Inc. v. Florida Public Service Commission, 427 So.2d 716 (Fla. 1983), and State Department of Commerce, Division of Labor v. Matthews Corp., 358 So.2d 256 (Fla. 1st DCA 1978). Moreover, the agency's interpretation does not have to be the only one or the most desirable one; it is enough if it is permissible. Pan American World Airways, Inc. v. Florida Public Service Commission, supra, and Florida Power Corp. v. Department of Environmental Regulation, 431 So.2d 684 (Fla. 1st DCA 1983). Here, no less deference should be accorded Monroe County's interpretation of its land development regulations where, as here, such interpretation evidences due consideration for private rights of ownership and is not contrary to its comprehensive plan. See e.g., Thomson v. Village of Tequesta Board of Adjustment, 546 So.2d 457 (Fla. 4th DCA 1989). Such being the standard, it is concluded that Monroe County's interpretation of Section 9.5-268, MCLDR, is a permissible interpretation. Accordingly, the subject development is consistent with the Monroe County comprehensive plan and land development regulations, and the Sands have demonstrated their entitlement to their permits. While the dispositive issue in the underlying action was resolved adverse to the Department, such resolution does not compel the conclusion that the Department's decision to contest the propriety of Monroe County's decision to issue the subject permit, by an appeal for de novo review before FLWAC, lacked a reasonable basis in law or fact when initiated. To the contrary, the appropriate interpretation to be accorded Section 9.5-268, MCLDR, was subject to legitimate debate, had never previously been applied in a permitting context, and had never been subject to scrutiny in a court of law or administrative forum. 2/ Under such circumstances, the action initiated by the Department to contest the propriety of Monroe County's decision to issue the permit had a reasonable basis in law and fact. Prevailing small business party Following the rendition of the recommended order in the underlying action, which recommended that FLWAC enter a final order affirming Monroe County's decision to issue the building permit and dismiss the appeal filed by the Department, the Department and the Sands entered into a settlement agreement. Such agreement, dated September 9, 1992, provided in part: On April 12, 1991, the Department timely filed an Appeal of Building Permit No. 9130002861 issued by the County alleging that the permit was inconsistent with the mandates of the Monroe County Land Development Regulations, the Monroe County Comprehensive Plan, and Chapter 380, Florida Statutes. A copy of the Petition is attached to this Agreement as Exhibit B. The Owners deny the allegations in the Appeal Petition. However, the parties have discussed the mutual resolution of the issues raised in this Appeal and desire to resolve these issues and have the Appeal dismissed. The parties acknowledge the terms of this Agreement are reached in mutual resolution of the issues involved. TERMS AND CONDITIONS Based upon the recitations above, and in consideration of the mutual covenants contained herein, the parties to this Agreement agree as follows: The intent of this Agreement is to resolve fully the issues raised in the Department's Appeal of the Monroe County development order, Building Permit No. 9130002861. The Owners agree to use the subject property and structure as affordable housing, as that term is defined in the Monroe County Code. The parties to this Agreement waive any right to appeal under Section 380.07, Florida Statutes, or otherwise challenge in any forum, on any ground, the development order. Within five working days of receipt of the executed settlement agreement, the Department shall submit a Notice to the Florida Land and Water Adjudicatory Commission to dismiss voluntarily, with prejudice, its Appeal of the development order. Consistent with such stipulation, the Department, on September 9, 1992, filed a notice of voluntary dismissal with FLWAC, and by final order of September 16, 1992, FLWAC dismissed the pending appeal. In their motion for attorney's fees and costs pursuant to Section 57.111, the Sands predicated their "small business party status" on the following allegations: George and Judy Sands are a "small business party" in that they are the owners of a small business, Sands of the Keys, whose principal office is in Tavernier, Monroe County, Florida, who have not more than twenty-five (25) full [sic] employees or a net worth of not more than Two Million Dollars ($2,000,000.00) including personal and business investments. . . . The Sands' ownership of Sands of the Keys, a corporation, does not render them "small business parties" for purposes of Section 57.111, Florida Statutes. However, at hearing, without objection, the Sands also offered proof that they were also the owners of commercial and residential properties in the Florida Keys, which they lease to various commercial and residential tenants as part of an ongoing business enterprise. Pertinent to this case, the replacement structure that was to be constructed was intended to be used as rental property in furtherance of such enterprise. Considering the relationship of the property at issue in the underlying action to the Sands' commercial and residential leasing business, as well as the proof that the Sands have not more than 25 full-time employees nor a net worth of more than $2 million dollars, including both personal and business investments, the uncontroverted proof demonstrates that they are a "small business party," as that term is defined by Section 57.111(3)(d), Florida Statutes.
The Issue This matter concerns the request by the Petitioner James A. Connell to be granted variances within the meaning of Section 131.016(b), City of Clearwater Building and Zoning Regulations. In particular the Petitioner has asked that he be given a variance from the side yard setback requirements for narrow parcels established by Section 131.200(b)(3)a.2., City of Clearwater Building and Zoning Regulations, and a variance to the requirements of Section 131.200(b)(3)e., dealing with clear space. The zoning classification in question is RM-8, as set forth in Section 131.048, City of Clearwater Building and Zoning Regulations.
Findings Of Fact On November 17, 1980, the Petitioner, James Connell, filed an application requesting a variance from the side setback requirements of Section 131.200(b)(3)a.2., City of Clearwater Building and Zoning Regulations, asking for a reduction from 30 feet to 10 feet and further requesting that the clear space requirement of having only one side yard setback to be used for parking, with the other side yard setback for clear space from street to water, with the further possibility that that space be used for driveways of parking below street grade, as stated in Section 131.200(h)(3)c., be modified to grant the Petitioner a variance. The extent of this latter variance would be for clear space offered in the center portion of the project which gives 24 feet in width essentially unobstructed clear space, with an additional 20 feet space street to water on each side of the 24 feet unobstructed space, which north/south 20 foot expansions are constituted of driveways for the eight (8) proposed dwelling units to be constructed by the Petitioner. The real property under consideration is owned by the Petitioner and zoned RM-8 within the meaning of Section 131.048, City of Clearwater Building and Zoning Regulations. The address is 1012-1016 North Osceola Avenue, Clearwater, Florida. This case was presented before the State of Florida, Division of Administrative Hearings, on March 25, 1981, following a public hearing of January 15, 1981, in which the Board of Adjustment and Appeal on Zoning, City of Clearwater, Florida, had made an adverse ruling to the position of the Petitioner. The tape of the proceeding on January 15, 1981, may be found as Petitioner's Exhibit No. 3, admitted into evidence. The site plan of the project in question has been reviewed by the Resource Development Committee of the City of Clearwater with a recommendation for approval of the project, conditioned upon the attainment of variance exceptions. A copy of the application for variance may be found in the City of Clearwater's Composite Exhibit No. 4, admitted into evidence. Through that application form, and in the course of the hearing, the Petitioner expressed concern about the survival of two 36 inch in diameter mature oak trees located on the property in question and also mentioned that the drop in elevation of the eastern side of the property front on Osceola Avenue North to the waterward western extreme of the property at Clearwater Harbour becomes dramatic approximately two thirds from the eastern extent of the property line making utilization of the latter third to the west difficult. In combination, this topographical reality and the location of the two oak trees, according to the Petitioner, would make it difficult to construct a project oriented to the center of the property, in an effort to comply with the "clear space" requirements. The Respondent, City's Exhibit No. 1, admitted into evidence, is a site plan which depicts the Petitioner's proposals and it shows that lot to be approximately 160 feet in width and from 355 to 360 feet in length, the width relating to a roughly north/south orientation and the length a roughly east/west orientation. The drawing depicts the proposed ten foot side setback, the 24 foot clear space with additional 20 feet north/south associated with the driveways. The proposal would leave in tact the aforementioned oak tree or trees located in the approximate center of the 24 foot vista space. (In that connection, although the Petitioner has attempted by his plan to save some of the trees, the plan as drawn for unit four of the eight unit townhouse complex depicts the removal of a 40 inch oak tree.) The lot drops from a 26 foot to a 17 foot elevation from the street to Clearwater Harbour. The effect of that drop would be to limit the percentage of an automobile that could be seen if located in a driveway toward the waterward side of the site. The Petitioner's Exhibit No. 1 and the City's Composite Exhibit No. 2 are photographs of the building site. Through the hearing process no one has objected to the grant of the variances in question and one person who resides In the neighborhood spoke in favor of the project.
Findings Of Fact Tri-State Systems owns the sign located on US 41, 3.88 miles south of SR 50, the sign on US 98, 11.56 miles north of US 41 and the sign on 1-75, 10.43 miles north of the 1-4/1-275 junction. All of these signs are without permits. Petitioner's agents have talked to Respondent's agents and advised them of the requirements for permitting the signs. Respondent has filed application for permit for the sign on US 41, 3.88 miles west of SR 50 and Petitioner is awaiting a copy of Respondent's lease agreement to obtain the legal description to ascertain if the location was zoned commercial or industrial. The sign located on US 98, 11.56 miles north of US 41 is in an area zoned agricultural and a zoning of commercial would be inconsistent with the area. All highways here involved are federal-aid primary highways. The sign on 1-75 has not been permitted since 1971 and the zoning of the area in which the sign is located is agricultural.
The Issue Whether Appellant should be granted variances in setback lines to allow construction of a retail store on a lot at the northeast corner of the intersection of Papaya Street and Gulfview Boulevard on Clearwater Beach, Florida.
Findings Of Fact Appellant purchased the property at 24 Papaya Street in Clearwater Beach (lots 29-32, inclusive, Clearwater Beach Park) approximately two years ago. The only inquiry made of zoning officials regarding use of the property, other than zoning, was what part of the lot could be covered with a building. This lot is nearly square but is nonstandard in both width and depth to construct a building without a variance. These variances were granted at the initial variance request heard in December 1992. Appellant proposes to construct a retail store containing some 4700 square feet of floor space. To erect a building of this size on the lot a variance of 3 percent to allow 48 percent coverage of the lot was required. This variance was granted by the Board; however, without the variances in setback on the four sides of the parcel, this 3 percent variance in lot coverage is useless to the Appellant. This lot currently has four old buildings with a combined total of 2723 square feet. The largest is nearly square and contains approximately 1120 square feet. There are rental apartments in some, if not all, of these buildings. It is proposed to remove these buildings, if the permit to construct the proposed store is granted. The existing buildings are nonconforming and three are between 2 to 4 feet of the lot lines on the north, east and south sides of the property. The property is zoned CR-28 (Resort Commercial) and the proposed use is authorized in this zoning classification. The plans are and the applicant proposes to provide the required parking spaces for this establishment under the proposed structure. Appellant presented evidence that adjacent properties were built to the lot line with no setback. Most of these buildings were erected before setbacks were required in this area and are grandfathered in so long as the structures remain. In 1986 the Development Code Adjustment Board granted setback variances on all four sides of the property across Gulfview Boulevard from Appellant's property. That parcel was also nonstandard and even smaller than the parcel of land here involved. Because of the size of the property the Board found a hardship existed and without the requested variances the property had little value. One significant difference in these two parcels is that one had been owned by one family since 1932 while the instant parcel was required circa 1990. Further, evidence was presented that being one block east of Mandalay Avenue, the main traveled beach road, the proposed structure needs to be seen from Mandalay to attract pedestrian traffic. The building just west of Appellant's lot is built to the lot line and partially blocks the view of Appellant's property from Mandalay. The use of the property sought here is consistent with the Comprehensive Land Use Plan and no protest to the granting of the variances requested were received from adjacent property owners. Razing the existing structures and erecting the proposed store in which the applicant intends to sell upscale beach wear would improve the appearance of the neighborhood.
The Issue Whether the Appellant, Terrance H. Fregly, has demonstrated that development rights in certain real property he owns have vested against the provisions of the 2010 Comprehensive Plan?
Findings Of Fact The Property at Issue. In approximately 1977-1980, Mr. Fregly purchased several adjoining parcels of real estate. The parcels were to some extent marginally developable property. The total property acquired by Mr. Fregly was approximately 20 or 25 acres and was named the "Lakewood Industrial Center" by Mr. Fregly. The evidence presented by Mr. Fregly did not clearly establish whether the property consisted of 20 or 25 acres. Whatever the total acreage was, it will be referred to collectively as the "25 Acres". The 25 Acres are located on the east side of Capital Circle, Northwest, Tallahassee, Leon County, Florida. Mr. Fregly intended to develope the property in accordance with the land uses permitted under the M-2 zoning ordinance in effect in 1977-1980. At some time after acquiring the 25 Acres, Mr. Fregly developed part of the 25 Acres, by building approximately 65,000 square feet of warehouses on part of the 25 Acres. The warehouses and the real estate (hereinafter referred to as the "Warehouse Acres") they were built on were subsequently sold by Mr. Fregly. Mr. Fregly also sold another part of the 25 Acres. In total, by 1985 Mr. Fregly had sold approximately 11 acres of the 25 Acres. The remaining 14 acres (hereinafter referred to as the "Subject Property"), of the 25 Acres are the subject of the Application for Vested Rights Determination (hereinafter referred to as the "Application"), filed by Mr. Fregly with Leon County, Application VR0042LC0. The Subject Property is comprised of tax parcel 009, consisting of approximately 4 acres, and tax parcel 210, consisting of approximately 10 acres. Development of the 25 Acres. Mr. Fregly obtained approval to rezone part of the 25 Acres from agricultural to M-2 Industrial. The weight of the evidence failed to prove when this occurred. The 25 Acres were zoned partly M-1 and partly M-2. In April, 1980, Mr. Fregly received from the Leon County Department of Public Works, Leon County Land Clearing and Development Permit No. 1017 (hereinafter referred to as "Permit 1017"). Permit 1017 authorized Mr. Fregly to clear, grade and fill the 25 Acres and to construct a stormwater detention system thereon. Permit 1017 was applied for by Mr. Fregly with an Application for Permit for Clearing and Development dated as received March 17, 1980. It was indicated on the Application for Permit for Clearing and Development that the purpose of the application is as follows: Application is hereby made for a permit to make changes in the contour of land proposed to be subdivided, developed, or changed in use by grading, excavating, removal, alteration, or destruction of the natural topsoil, as hereinafter located and described. . . . The weight of the evidence failed to prove that Leon County made any representation to Mr. Fregly in issuing Permit 1017 concerning the future development of the Subject Property other than authorizing Mr. Fregly to clear and grade the Subject Property for some future unspecified development, subdivision or other change to the use of the Subject Property. The State of Florida Department of Environmental Regulation issued Construction Permit No. 37-36313-1E (hereinafter referred to as the "DER Permit"), on May 17, 1983. The DER Permit has an expiration date of May 30, 1985. The DER Permit authorized Mr. Fregly to fill approximately 3.5 acres of wetlands with approximately 9,500 cubic yards of fill. Not all of the 3.5 acres involved in the DER Permit are located on the Subject Property. Based upon information provided to DER on John W. DuBose, PLS, letterhead attached to the stipulation agreement entered into by Mr. Fregly and the Department of Environmental Regulation agreeing to the issuance of the DER Permit as Attachment A, it appears that the DER Permit authorized fill to be placed on tax parcel 423 which is not a part of the Subject Property. The DER Permit was issued pursuant to a Final Order issued by the Department of Environmental Regulation approving a settlement stipulation. The weight of the evidence failed to prove that Leon County was involved in the granting of the DER Permit or that Leon County made any representation to Mr. Fregly when the DER Permit was issued. Mr. Fregly also received a federal dredge and fill permit in 1980 or 1981. This permit was not offered into evidence. The weight of the evidence failed to prove what portion of the 25 Acres this permit applied to. The weight of the evidence failed to prove that Leon County was involved in the granting of the federal dredge and fill permit or that Leon County made any representation to Mr. Fregly when the permit was issued. Following the issuance of the DER Permit and the federal permit, Mr. Fregly alleged that approximately 109,500 cubic yards of fill material was placed on the Subject Property: 9,500 cubic feet on tax parcel 210 (prior to 1982-1985), and 100,000 cubic feet on tax parcel 009 (from 1982-1985). In light of the fact that the DER Permit also involved property other than the Subject Property, it is not clear whether these figures are correct. The 25 Acres were cleared and graded. A master stormwater system to accommodate stormwater runoff from the 25 Acres was constructed. A paved access road was constructed on the edge of tax parcel 009 and the Warehouse Acres. The road is used for access to the Warehouse Acres and will be used for access to the Subject Property. An easement for use of the road was granted to the purchasers of the Warehouse Acres. Mr. Fregly intends to extend the access road into tax parcel 210. The Warehouse Acres were prepared for construction and the warehouses were constructed prior to 1985 when the Warehouse Acres were sold. The foregoing activities occurred between approximately 1977 and 1985. Much of Mr. Fregly's development activities were associated with the development and sale of the Warehouse Acres and not the Subject Property. Between 1985 and the filing of the Application, the development of the Subject Property has been marginal. On July 31, 1989, the Leon County Department of Public Works, Division of Environmental Management, issued Environmental Management Permit No. 890312 for landscape, trees and "special condition" on tax parcel 009 of the Subject Property. On September 24, 1990, Mr. Fregly applied for Leon County Department of Public Works, Division of Environmental Management, Permit No. 90538 to authorize construction of additional stormwater facilities and landscaping on tax parcel 210 of the Subject Property. The infrastructure for the Subject Property has not been completed. In particular, the access road for tax parcel 210 of the Subject Property has not been completed. There has been no subdivision review or processing by Leon County for the Subject Property, no site plan approval for the Subject Property has been sought or granted and no building permits or planned unit development approvals have been issued for the Subject Property. Despite the representation in the Application to the contrary, not all of the permits to develope the Subject Property have been obtained. Costs Incurred by Mr. Fregly. Mr. Fregly offered a pleading titled "Chronology & Cost Data" (hereinafter referred to as the "Chronology"), as evidence concerning the costs incurred in the development of the 25 Acres, including the Subject Property. Pursuant to the Chronology, Mr. Fregly has suggested that he has incurred $172,846.21 since the 25 Acres were acquired. In Mr. Fregly's proposed final order it has been suggested that approximately $118,000.00 of the amounts listed on the Chronology were incurred for "site work, clearing, grading, filling, construction of the stormwater management system and access roadway". Exactly which of the cost items listed on the Chronology have been included in the $118,000.00 is not clear. In the conclusions of law of Mr. Fregly's proposed final order it has also been suggested that Mr. Fregly incurred in excess of $160,000.00 in expenses. Exactly what expenses make up this amount is also not clear. The weight of the evidence failed to prove the extent to which the following costs listed on the Chronology were incurred only for the Subject Property: $12,300.00 for "A. Dredge & fill permit"; $1,200.00 for "B. Engineering fee - Dredge & Fill DER & Federal"; $4,700.00 for "C. Engineering fee - Stormwater design Leon County"; $3,700.00 for "D. Pipe & Dredge ditch . . ."; $22,535.45 for "E. Road construction"; and $3,900.00 for "F. DOT entrance". The costs listed in paragraphs A-F of the Chronology were attributable in part to the Warehouse Acres. For example, the $22,535.45 was for paving the access road and "parking between warehouses." This amount is primarily attributable to the Warehouse Acres and only partly to the Subject Property. It is also not clear whether the costs allegedly attributable to filling the Subject Property are attributable only to the Subject Property. Based upon information provided to DER on John W. DuBose, PLS, letterhead attached to the stipulation agreement entered into by Mr. Fregly and the Department of Environmental Regulation agreeing to the issuance of the DER Permit as Attachment A, it appears that the DER Permit authorized fill to be placed on tax parcel 423 which is not a part of the Subject Property. The weight of the evidence failed to prove whether tax parcel 423 was filled or whether the costs associated with filling submitted were only incurred for filling the Subject Property. Based upon the foregoing findings of fact, the weight of the evidence failed to prove what part of the costs listed on the Chronology or testified about by Mr. Fregly are attributable to the development of the Subject Property. It cannot, therefore, be determined the extent of any detriment which Mr. Fregly may have suffered as a result of any alleged Leon County representation concerning the development of the Subject Property. All of the costs listed in the Chronology were incurred after Permit 1017 was acquired. The weight of the evidence failed to prove that the costs incurred by Mr. Fregly in reliance on the issuance of Permit 1017 were substantial. All that Permit 1017 authorized Mr. Fregly to do was to clear, grade and fill the 25 Acres and to construct a stormwater detention system. As Mr. Fregly knows, the laws governing the approved uses of land can change. It cannot, therefore, be concluded that Mr. Fregly reasonably believed that the issuance of Permit 1017 would allow him to fully develope the 25 Acres, or more particularly, the Subject Property, more than ten years later without any change in the laws governing how the Subject Property was to be changed. Development of the Property under the 2010 Plan. Mr. Fregly intends to develope the Subject Property by building 57,000 square feet of warehouse and office space. The weight of the evidence failed to prove that Mr. Fregly ever informed Leon County or that Leon County was aware of this intended use of the property until these proceedings commenced. Throughout these proceedings, Mr. Fregly, who was proffered and qualified as an expert in commercial real estate development, testified that there was an executed "lease" on the Subject Property. Representations that there is an executed lease are made several times in the Application filed by Mr. Fregly. The weight of the evidence, however, failed to prove that such a lease exists. At best, Mr. Fregly proved that he has a "gentleman's agreement" concerning a proposed lease of part of the Subject Property. Mr. Fregly's proposed development of the Subject Property would be allowed under the M-1 and M-2 zoning of the Subject Property. For purposes of the 2010 Comprehensive Plan, the Subject Property is currently in a Mixed-Use B, land-use designated area. Under the current zoning of the Subject Property, there are a substantial number of possible uses that are authorized, but the extent of such uses is limited, based upon similar existing uses within the zone the property is located. There are also restrictions involving permeability, transportation, utilities and the effects on adjacent landowners. Leon County has issued a certificate of concurrency for part of tax parcel 210. The certificate indicates concurrency compliance for a bulk storage facility of 6,000 square feet, plus 1,500 square feet of office space. Mr. Fregly has not asked Leon County to perform a formal consistency review of the Subject Property. The weight of the evidence failed to prove that the Subject Property does not meet the concurrency requirements of Chapter 163, Florida Statutes, or the 2010 Comprehensive Plan. In fact, the evidence proved that the Subject Property is in all likelihood consistent with the 2010 Comprehensive Plan. Procedure. Mr. Fregly filed the Application on or about August 20, 1990. On November 26, 1990, a hearing was held to consider the Application before the Staff Committee. At the request of Mr. Fregly the hearing was continued until December 17, 1990, to give Mr. Fregly an opportunity to provide additional information concerning the costs incurred by him in the development of the Subject Property. On December 17, 1990, the Staff Committee was reconvened. Mr. Fregly provided a map of the property and the Chronology. By letter dated December 19, 1990, Mark Gumula, Director of Planning of the Tallahassee-Leon County Planning Department, informed Mr. Fregly that the Application had been denied. By letter dated January 2, 1991, to Mr. Gumula, Mr. Fregly appealed the decision to deny his Application. By letter dated January 11, 1991, the Division of Administrative Hearings was requested to provide a Hearing Officer to review this matter. By agreement of the parties, the undersigned allowed the parties to supplement the record in this matter on April 17, 1991.
Findings Of Fact Petitioner owns the residence located at 19 Heilwood Avenue, Clearwater Beach, Florida. The property is zoned RM-20 (high density residential). Petitioner requests a front and side setback variance, lot density variance, variance to impermeable lot coverage, and a variance to add 275 square feet of living area to a nonconforming structure. The existing property extends into the setback area on both the front and one side and exceeds the impermeable lot coverage and the house coverage currently allowed by the building code. Petitioner proposes to extend the entire front of the house to the line of the screen porch which now intrudes into the front setback 8.5 feet. This would reduce the front setback across the entire front of the house from the code prescribed 25 feet to 16.5 feet. The west side of the house now encroaches two feet into the code prescribed five feet, leaving only three feet setback on this side. To extend this side towards the front by 8.5 feet, a side variance of two feet is required for this extension. By adding 275 square feet to the area of the house, the lot coverage would be increased to 46.2 percent. The maximum coverage allowed by the code is 42 percent. By adding 275 square feet of impermeable area to the lot, the percent of the lot coverage with impermeable surface would increase to 95 percent. The maximum impermeable lot coverage permitted by the code is 65 percent. Petitioner contends he only wants to "square" up his house and to make the entire front of the house intrude into the setback area by 8.5 feet; that this addition will improve the looks and usability of the house; and that there is no objection by the neighbors.
Findings Of Fact In 1987, the Respondent DOT began its review of the public roads within Glades County in order to assign maintenance and jurisdictional responsibility in accordance with the current functional classification of each road. By law, the DOT is required to conduct such a review every five years. Section 05040 of State Road 78 is located within the unincorporated area of Glades County. This paved, two-lane road segment is 14.8 miles in length, and predominantly runs in an east-west direction. Approximately two miles of the eastern portion veers to the north, where the segment then connects with State Road 25 (U.S. Highway 27). The western terminus of this road segment adjoins State Road 29, and the eastern terminus as mentioned previously, adjoins State Road 25 (U.S. Highway 27). There is a radical change in direction at both ends where the segment connects with the two adjacent roads. At the western terminus, State Road 29 runs in a southwesterly to northeasterly direction. The southwesterly portion of State Road 29 runs in a southwesterly to northeasterly direction. The southwesterly portion of State Road 29 enters into Hendry County and extends to LaBelle, the county seat. At the eastern terminus, State Road 25 (U.S. Highway 27) runs for approximately five miles before it reconnects with another portion of State Road 78 which runs in a northeasterly direction around the border of Lake Okeechobee into Okeechobee County, and onto the City of Okeechobee, the county seat. Through the use of approximately four miles of the southwesterly portion of State Road 29 and approximately five miles of the easterly portion of State Road 25 (U.S. Highway 27), State Road 78 becomes a transportation corridor which connects Hendry County, Glades County, and Okeechobee County. This corridor is used by members of the Gulf Citrus Growers Association in Hendry County to transport citrus to market in other parts of the state. State Road 29 and State Road 25 (U.S. Highway 27) are functionally classified as arterial roads on the state highway system. During the functional classification evaluations within Glades County, Section 05040 of State Road 78 was reviewed by DOT. As part of the process, an inventory worksheet was used to determine how the road would be classified under the current scoring system. A Rural Arterial Inventory Worksheet (Respondent's Exhibit 15) was used to determine the roadway's System Attribute Score (SAS). As part of the evaluation process, the system element coefficient must be located within Table Number 4 of Chapter 14-12, Florida Administrative Code. The Administrator of Transportation Data for District 1 correctly determined that the system element coefficient was 5, and the rural element number was 12. The first attribute reviewed on the worksheet in order to obtain the SAS was the Traffic Factor. Under the definitions found in Table 1 of Chapter 14-12, Florida Administrative Code, the Traffic Factor is calculated by multiplying the Average Daily Traffic Count by the county's normalizing coefficient Tpd of 1.73. Again, the administrator correctly assessed the value of 2,782 on the worksheet. Usually, a score below 3,000 under the Traffic Factor results in an evaluation score of "zero" on the Rural Arterial Inventory Worksheet. However, Table Number 1 of Chapter 14-12, Florida Administrative Code, notes that when 50% of traffic volume is non-local traffic, a score of "one" is placed on the worksheet instead of a "zero." Competent and credible testimony presented at hearing from local citizens, who had the opportunity to know the composition of the traffic on the road segment, revealed that a relatively small percentage of Section 05040 of State Road 78 traffic was local. The majority of the traffic was comprised of out-of-county motorists. Based upon this testimony, the Traffic Factor score on the worksheet should be changed from "zero" to "one." The second attribute reviewed on the worksheet was the Access Factor. This score is calculated by dividing the average daily traffic (ADT) by the number of access points per mile. Instead of using available information with the DOT or asking for information from local authorities regarding this attribute, the administrator grossly overestimated that the road segment contained twenty access points per mile. No reasonable basis was presented at hearing by the administrator for his "estimate" of twenty access points per mile on a rural segment in one of the more remote and under populated areas within his district. The videotape presented at hearing clearly demonstrates that there are not twenty access points per mile on this roadway. Unrefuted testimony presented at hearing revealed that approximately twenty-five families reside along this 14.8 mile stretch of road. There is also a large rock mine, a cemetery, and the county landfill. Respondent's Exhibit 5, the General Highway Map of Glades County, shows that a DOT facility is located on this road segment. There are four roads which intersect the road segment and one railroad grade crossing. A locked gate at the Caloosahatchee Rock Mine has a driveway which connects to the road. To deny the road segment the minimum score of "one" on the access factor, the DOT would have to estimate in its calculation that there are more than ten access points per mile on this road. Based upon the evidence presented at hearing, there are far less than ten access points per mile on this road segment. Therefore, the Access Factor score on the worksheet should be changed from "zero" to "one." The Trucks and Network Factor attributes which each received a score of "one" from the administrator. These scores were not challenged by Petitioner. The Extent of Road attribute was not properly tested by the administrator. Under Rule 14-12.015(2), Florida Administrative Code, the entire State Road 78, along with the southwesterly portion of State Road 29, and the eastern portion of State Road 25 (U.S. Highway 27) should be utilized for the Extent of Road (miles) measurement. As the entire length of the extended transportation corridor exceeds twenty miles, the score should be "one" instead of "zero." The Mobility Attribute was not properly assessed. Rule 14-12.015(2), Florida Administrative Code, allows the extended transportation corridor to be used to determine the total number of counties in which the road is located. Testimony presented at hearing regarding the use of the road segment as part of the transport route of citrus from Hendry County through State Road 78 in Glades County to Okeechobee County supports the finding that the road is located in three counties. The score as to the Mobility Attribute should be changed from "zero" to "one." Section 05040 of State Road 78 is in an overall physical condition which is at least commensurate with contemporary roads of like age and existing functional classification (rural major collector) within Glades County.
Recommendation Accordingly, it is RECOMMENDED: That the Department of Transportation enter a Final Order that the Department's functional classification of the road segment was incorrect, that the functional classification of the road as a rural minor arterial be reinstated, and that the jurisdiction over the road remain with the Department. DONE and ENTERED this 2nd day of October 1989, in Tallahassee, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-1227 Petitioner's proposed findings of fact are addressed as follows: Accepted. See Preliminary Statement. Rejected. Not a factual finding. Accepted. Accepted. See Preliminary Statement. Accepted. See Statement of the Issues. Accepted. Accepted. Rejected. See HO #19. Accepted Accept the first sentence. The second sentence is rejected as irrelevant. Accepted. Accepted. Accepted. Accepted. Accept that the Hearing Officer found the road to be improperly classified. The rest is rejected as conclusionary. Accepted. See HO #10. Accepted. See HO #4. Accepted. See HO #10. Accepted. See HO #4. Accepted. Rejected. Irrelevant. Rejected. The financial ability provision within the statute was repealed, and a determination cannot be made on the basis of factors outside rule or statute. Respondent's proposed findings of fact are addressed as follows: Accept the first two sentences. The third sentence is rejected. See HO #2. Fourth sentence is accepted. See HO #5. Fifth sentence is accepted. See HO #7. Sixth sentence is rejected. See HO #7-#18. Seventh sentence is accepted. See HO #8. Eighth sentence is rejected. Improper conclusion. Ninth sentence is accepted. See Conclusions of Law. Tenth sentence is accepted. See Preliminary Statement. Accepted. See HO #19. Rejected. The financial ability provision within the statute was repealed, and a determination cannot be made on the basis of factors outside the rule or statute. COPIES FURNISHED: Michael A. Rider, Esquire Post Office Box 608 Lake Placid, Florida 33852 Vernon L. Whittier, Jr., Esquire Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Ben G. Watts, P.E., Interim Secretary Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Thomas H. Bateman, III, Esquire General Counsel Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0458 =================================================================
