Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Respondent owns real property located in Township 2 North, Range 7 East, Section 32, in Madison County, Florida, that has surface water flowing through it and is encompassed within what is defined as "wetlands." Respondent is in control and possession of the property in question and all work on the property that is material to this proceeding is under the control or direction of the Respondent. There were access roads on the property as early as 1973 as reflected by Respondent's exhibit 2, a 1973 aerial photograph, but the width of the roads or the existence of ditches or culverts cannot be determined from the photograph. Petitioner's exhibit 2, a 1981 aerial photograph, shows the roads still in existence in 1981 but the width of the roads or existence of ditches or culverts cannot be determined from the photograph. Sometime before the Respondent purchased the property and began construction to expand the roads, ditches and culverts were in place; however, there was no evidence as to when the ditches and culverts came to be in place. A 1976 survey of the property reflects 60 foot roads which were to provide access to platted but unrecorded lots. These roads had not been constructed when Respondent purchased the property or began construction to expand the roads. The newly constructed portions of the road indicates an attempt to build the roads in accordance with the 1976 survey. The previously existing roads attempted to follow the natural contour of the land and as a result were not always straight, and only had a negligible effect on the flow or storage of surface water in regard to the property. Sometime around October 1987, Respondent began to rebuild and construct roads on the property by straightening existing curves, removing fill material from adjacent wetlands to widen and heighten the existing roadbed or construct a new roadbed, and to increase the depth and width of existing ditches or dig new ditches. The initial portion of the existing road providing access to the property from the county graded road has been substantially rebuilt with portion of the roadbed being 40 to 43 feet wide. Ditches along this portion of the roadbed have had their width increased up to 14 feet and their depth increased up to 6 and 8 feet. Other portions of the road has been expanded beyond the previously existing roadbed by increasing the width and height of the roadbed. The increased size of the ditches and the expanded roadbed has increased the interception of surface water above that already being intercepted by the previous roadbed and ditches and, as a result, there is an increased amount of surface water impounded or obstructed. The effect is that surface water is removed from Respondent's property at a faster rate than before road construction began and, as a result, sheet flow of surface water is decreased which diminishes the storage of surface water on the property. Although new culverts were installed during road construction, there was insufficient evidence to show that these new culverts were in addition to the culverts already in place or if they replaced old culverts. There was insufficient evidence to show that the new culverts allowed water to flow in a different direction or be removed from the property at a faster rate than before or if they impounded or obstructed surface water more so than before. The previously existing roads had sufficiently served an earlier timber harvest on the property and, by Respondent's own testimony, were sufficient for his ongoing hog and goat operation. The extensive rebuilding and constructing of roads in this case was neither necessary nor a customary practice for construction of farm access roads in this area. Respondent is engaged in the occupation of agriculture in that he has a bona fide hog and goat operation. However, Respondent's silviculture occupation is somewhat limited in that he is presently harvesting the timber but shows no indication of replanting or continuing the forestry operation upon completing the present harvesting operation. The extensive rebuilding and constructing of roads in this case goes beyond what is necessary or is the customary practice in the area for a hog or goat operation or forestry operation such as Respondent's and is inconsistent with this type of agriculture or silviculture occupation. Respondent has never applied for nor received a surface water management permit from the Petitioner even though the Petitioner has informed Respondent that a permit was required for the work being done on his property. The present alteration of the topography of the land by Respondent has obstructed and impounded surface water in such a fashion that the interruption of the sheet flow of surface water has been increased, causing the storage of surface water on the property to be diminished. At the present time, Respondent has been enjoined by the Circuit Court of Madison County, Florida, from any further activity on this project. However, should Respondent be allowed to complete this project, it is evident that the sole and predominant purpose would be to impound and obstruct the sheet flow of surface water and diminish the storage of surface water on the property in question.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that the Petitioner, Suwannee River Management District, enter a Final Order requiring Respondent, Norman Leonard, to: (a) remove all unauthorized fill material placed within jurisdictional wetlands and return those areas to predevelopment grades and revegetate with naturally occurring local wetlands species to prevent erosion; (b) back fill excavated swale ditches, return road beds and excavated ditches to predevelopment condition and grades and seed disturbed non-wetland areas with a 50:50 mix of bahia and rye grass and; (c) refrain from any other development until and unless a required permit is obtained for such development. Respectfully submitted and entered this 13th day of February, 1989, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 13th day of February, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-1445 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner 1. Adopted in Finding of Fact 1. 2.-3. Adopted in Finding of Fact 2. 4.-7. Are unnecessary findings for this Recommended Order. Adopted in Finding of Fact 18. Adopted in Finding of Fact 19. Adopted in Finding of Fact 10. Adopted in Finding of Fact 11. Subordinate to the facts actually found in this Recommended Order. Adopted in Finding of Fact 11. Adopted in Finding of Fact 12. Rejected as conclusions of law. Adopted in Findings of Fact 3 and 4. Adopted in Finding of Fact 8. Adopted in Finding of Fact 9. Adopted in Finding of Fact 9. Adopted in Finding of Fact 8. Adopted in Finding of Fact 6. Adopted in Finding of Fact 7. Adopted in Finding of Fact 6. Adopted in Finding of Fact 10. Adopted in Findings of Fact 15 and 17. 26.-29. Adopted in Finding of Fact 12. 30. Adopted in Finding of Fact 13. 31.-32. Subordinate to facts actually found in this Recommended Order. Adopted in Finding of Fact 12. Adopted in Finding of Fact 16. 35.-38. Subordinate to facts actually found in this Recommended Order. 39.-42. Rejected as not being relevant or material. Specific Rulings on Proposed Findings of Fact Submitted by Respondent 1. The first paragraph adopted in Finding of Fact 16. The balance is rejected as a conclusion of law. 2.-3. Rejected as not being relevant or material. Not a finding of fact but a statement of testimony. However, it is subordinate to facts actually found in this Recommended Order. Rejected as not supported by substantial competent evidence in the record. The more credible evidence is contrary to this finding. COPIES FURNISHED: Janice F. Baker, Esquire Post Office Box 1029 Lake City, Florida 32056-1029 Norman Leonard, Pro Se Route 2, Box 172-D Live Oak, Florida 32060 Donald O. Morgan Executive Director Suwannee River Water Management District Route 3, Box 64 Live Oak, Florida Dale H. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue The issues are whether the Department of Environmental Protection's (Department's) proposed agency action to issue a coastal construction control line (CCCL) permit to Respondents, Daniel G. and Doris L. Wentz (Wentzes or applicants), affects the substantial interests of Petitioner, James Hasselback, and if so, whether he timely filed his request for a hearing.
Findings Of Fact Based on the evidence presented by the parties, the following findings of fact are made: Background This case is the latest chapter in a long-running dispute between adjacent property owners in Gulf County. In 1984, the Cape Haven Townhomes (Cape Haven), consisting of five two-story units on pilings, were constructed at 263 Haven Road on Cape San Blas just west of County Road 30E. Petitioner purchased his unit in 1985 and has owned it continuously since that time. The remaining units were purchased by several other individuals, including Barnett, Hosford, Steve Brady (Brady), and Alison Dohrman, the daughter of Thomas Dohrman (Dohrman). Ownership in the Barnett unit is shared with two other persons, John Beranek (Beranek) and Stephen Hanlon (Hanlon). There are, then, seven individuals having an ownership interest in the five units. Although the complex faced the Gulf of Mexico to the west, another lot, which at one time was approximately 350 feet deep and 65 feet wide, lay between Cape Haven and the Gulf of Mexico. Between 1985 and 1999, the lot lying between the Gulf of Mexico and Cape Haven remained vacant. In December 1999, the Wentzes purchased the lot, which is located at 193 Haven Lane. The lot is divided into Parcels A and B, which appear to be of equal size with both facing the Gulf of Mexico. See Wentz Exhibit 1. It can be inferred that they purchased the lot with the intention of constructing a single-family dwelling on the property. In February 2000, the Wentzes filed an application with the Department for a CCCL permit authorizing the construction of a home on Parcel B. On July 9, 2002, the Department issued proposed agency action approving the application and issuing Permit No. GU-305. A petition was filed by Barnett and Hanlon challenging this action, the matter was referred to DOAH and assigned Case No. 02-3252, an evidentiary hearing was conducted, and a Final Order was entered denying the application. Barnett, et al. v. Wentz, et al., DOAH Case No. 02-3252, 2003 Fla. ENV LEXIS 232 (DOAH June 5, 2003), adopted, 2003 Fla. ENV LEXIS 231 (DEP Aug. 4, 2003). In that proceeding, Barnett and Hanlon were represented by the law firm then known as Oertel, Hoffman, Fernandez & Cole, P.A., now known as Oertel, Fernandez, Cole & Bryant, P.A. (the law firm). In September 2000, the Wentzes also filed an application for a field permit to enhance the dune system on their property. After the Department proposed to grant Field Permit 014292 authorizing the dune enhancement project, a petition challenging that action was filed by the law firm on behalf of Barnett, Dohrman, Hosford, Brady, Hanlon, Beranek, and Hasselback. The matter was referred to DOAH and was assigned Case No. 00-4460. Before a final hearing was conducted, however, Petitioners filed a notice of voluntary dismissal. In 2004, the Wentzes filed another application with the Department for a CCCL permit, this time on Parcel A. On September 8, 2004, the Department issued its notice of intent to issue Permit GU-409. Notice of this action was not published. Therefore, actual or constructive notice was required in order to afford third parties, including Mr. Hasselback, a point of entry. See Fla. Admin. Code R. 62-110.106(2)(receipt of notice means "either receipt of written notice or publication of the notice in a newspaper of general circulation in the county . . . in which the activity is to take place"). Besides the law firm, Barnett, Dohrman, and several others not relevant here received personal written notice of the Department's action. Thereafter, acting pro se Barnett timely requested at least six extensions of time to file a petition challenging the proposed agency action. The last extension lapsed on February 14, 2006, and neither Barnett nor any other Cape Haven owner requested a hearing by that date. In August 2005, the Wentzes filed an inverse condemnation suit against the Department. See Wentz v. State, Department of Environmental Protection, Case No. 05-270CA (14th Cir., Gulf Co. Fla.). On April 10, 2006, the Department issued a Final Order stating that it intended to revoke Permit GU-409 on the grounds the property was not platted prior to October 1, 1985, and shoreline changes had occurred after the proposed agency action had been issued. See DOAH Case No. 06-2381. Presumably, the latter reason was based on severe erosion of the shoreline due to several storms or hurricanes that struck the Florida Panhandle. According to testimony at hearing, due to erosion caused by storm events, the lot has receded from its original 350 feet in depth to around 175 feet at the present time. (In Case No. 02-2352, the administrative law judge noted that between 1993 and October 2002, around 47 percent of the property's total depth, or 170 feet, had eroded. Barnett at *11.) This in turn requires that any structure built on the Wentzes' lot be much closer to Petitioner's unit. One witness estimated that the Wentzes' septic tank, drain fields, and driveway would be no more than 30 feet from the front of the complex, while the pilings supporting the structure would be no more than 40 feet from the complex. The Wentzes challenged the proposed revocation of Permit GU-409 and simultaneously filed a rule challenge. See DOAH Case No. 06-2309RX. In August 2007, the Wentzes and Department reached a global settlement on all pending matters, and in return for the Wentzes' dismissing all pending court and administrative actions and executing a conservation easement in favor of the State as to one of the two parcels, the Department agreed to issue a Notice to Proceed (NTP) with the construction on Parcel A and to extend the expiration date on Permit GU-409 from September 8, 2007, to May 8, 2010. Except for the extension of the expiration date, no other changes to Permit GU- 409 were made. An extension was necessary because the permit would otherwise expire within a month, and no activity on the property had occurred due to Barnett's six requests for extension of time to file a petition and the passage of time required to resolve the revocation case and reach a global settlement. After the NTP was issued, concrete pilings were placed on the site and still remain as of this date. According to recent photographs, no other construction has occurred pending the outcome of this case. See Petitioner's Exhibit 4. In response to the Department's action, on October 10, 2007, the law firm filed a Petition on behalf of Barnett and Hosford in which they claimed that they first learned of the Department's latest action by reading a real estate listing in early October 2007, which advertised the Wentzes' property for sale, including a three-bedroom, three-bath home then under construction. On October 19, 2007, the Wentzes filed with the Department a Motion to Dismiss the request for a hearing as being untimely. Barnett and Hosford were later dismissed from the case on the grounds a new point of entry was not required by the latest Department action, and they had waived their right to contest the issuance of Permit GU-409 by (a) Hosford's failing to timely file a petition after notice of the agency action was issued on September 8, 2004, and (b) Barnett's failing to file a petition after the last extension of time to do so expired in February 2006. See Order Granting Motion to Dismiss, Jan. 25, 2008. On or about October 23, 2007, or just after the Motion to Dismiss had been filed by the Wentzes, Petitioner was contacted first by Hosford and then Barnett, who asked that he participate in the case to challenge Permit GU-409 since they believed that "apparently . . . [he was] not noticed by DEP on GU-409", and Petitioner was "the key for all of us maintaining our rights." See Wentz Exhibit 23. Petitioner agreed to file a petition since he thought it was in the best interests of all of the unit owners and did so within a matter of "two or three days." The Petition was prepared by the law firm and was filed with the Department on October 26, 2007. Substantial Interests At hearing, and in pre-hearing discovery, Petitioner testified that his substantial interests would be affected by the proposed agency action in three ways: (a) it would adversely affect his view of the Gulf of Mexico; (b) it would negatively impact the value of his townhome; and (c) he feared that wind or waterborne missiles from the structure during a storm event would cause damage to his townhome, which lies directly behind and to the east of the proposed construction site. See Fla. Admin. Code R. 62B-33.005(4)(f)(an applicant must show that "[t]he construction will minimize the potential for wind and waterborne missiles during a storm").1 The latter concern is the subject of the Wentzes' Motion in Limine briefly discussed in the Background portion of this Recommended Order. In addition to his testimony, on page 2 of the parties' Stipulation, Petitioner identifies the following concerns with the proposed agency action: The project does not satisfy the requirements or purpose of the statutes and rules limiting coastal construction; will diminish his observation and enjoyment of flora and fauna including sea turtles; will damage his property[;] and will have a significant adverse impact to marine turtles and the coastal system. Finally, in paragraph 21 of the Petition, the following allegation is made regarding the substantial interests of Petitioner: Should the permit be permitted, the Petitioner will no longer be able to enjoy the flora and fauna of Cape San Blas, the proposed project will jeopardize the Petitioner's continued enjoyment of his property at this location as described above, and the Petitioner's rights will be swept aside. The Wentzes argue that in demonstrating how his substantial interests are affected, Petitioner is limited to the reasons he gave during his testimony, both before and during the final hearing, irrespective of any other issues identified in his Petition or the parties' Stipulation. On the other hand, through counsel, Petitioner argues that he is a lay person, he cannot be expected to give opinion testimony in support of technical allegations in the pleadings and Stipulation, and that expert testimony may be used to establish how his substantial interests may be affected. A common thread in the testimony of Mr. Hasselback and the Stipulation is a concern that the proposed activity "will damage his property." See Stip., p. 2. Therefore, assuming arguendo that the Wentzes' argument regarding the standing issues that may be raised is correct, Petitioner is still entitled to offer proof that his property may be damaged by the proposed activity. As to the other two concerns stated in Petitioner's testimony, neither loss of view nor loss of economic value is a relevant consideration. See, e.g., Schoonover Children's Trust v. Village at Blue Mountain Beach, LLC, et al., Case No. 01- 0765, Recommended Order of Dismissal, April 20, 2001 (dismissing challenge to CCCL permit based upon allegations of loss of view and economic injury because "neither . . . is a protected interest in a proceeding under Section 161.053, Florida Statutes"). See also Young, et al. v. Department of Environmental Protection, et al., Case No. 04-3426, 2005 Fla. ENV LEXIS 155 at *30 (DOAH Aug. 15, 2005), adopted, 2005 Fla. ENV LEXIS 154 (DEP Sept. 26, 2005). Therefore, only the contention that the issuance of a permit may cause wind or waterborne missiles to strike or cause damage to his property need be decided to resolve the standing issue. Rule 62B-33.005(4)(f) requires that an applicant for a CCCL permit demonstrate that "[t]he construction will minimize the potential for wind and waterborne missiles during a storm." Mr. Hasselback is concerned that if a dwelling is constructed in front of his unit as proposed and no more than 40 feet away, during a severe storm event parts of that structure may be carried by wind or water into his unit. Although any dwelling constructed on the coastline must be designed to withstand the impact of a 100-year storm, a coastal engineer established that even if the home is built to those standards, "substantial structural elements" (such as sections of roofing material, siding, stairways, and the like) may still be carried by water, or blown by the wind, into Cape Haven, which lies directly behind, and less than 40 feet from, the proposed structure. The expert also pointed out that both the Department and Federal Emergency Management Agency require that all frangible structural components (those that tend to break up into fragments) below the first living floor remain unattached to the home. In this respect, the evidence supports a finding that Mr. Hasselback could reasonably expect to be adversely impacted in this manner should a permit be approved.2 Petitioner's expert also established that the existence of the pilings on the Wentz structure could accelerate beach erosion and cause damage to the beach dune system on Petitioner's property. Because of the extremely high rate of erosion on Cape San Blas, he opined that such impact could occur soon after the Wentz structure was completed. In this additional respect, Petitioner's substantial interests could reasonably be expected to be affected by the issuance of a permit. Was the Petition Timely Filed? Mr. Hasselback is the Mary Ball Washington Eminent Scholar in the College of Business, University of West Florida, in Pensacola, but maintains a residence in Tallahassee. As such, he must commute between the two cities each week during the academic year. He also travels much of the other time. Because of his schedule, he stated that he visits his unit only "an average of once a year." The record shows that he occasionally communicates by email or telephone with other unit owners, particularly Barnett, who is considered the "leader" of the unit owners in opposing any development on the Wentz property. It is fair to infer that since the property was purchased by the Wentzes in late 1999, most, if not all, of the information derived by Petitioner (and other unit owners) about the Wentz property, including any proposed activities they have undertaken, has come from Barnett, rather than other sources. Throughout this case, Mr. Hasselback has consistently maintained that he was unaware that the Department proposed to issue Permit GU-409 until he spoke by telephone with Barnett and Hosford in late October 2007 after the Wentzes had filed a Motion to Dismiss the Barnett/Hosford Petition. After the Department denied the application for Permit GU-305 in August 2003, he says he assumed that the issue was closed and that no further development would occur on the Wentzes' property. There is no direct evidence to dispute these assertions. Notwithstanding Mr. Hasselback's testimony, the Wentzes and Department contend that the law firm has represented the unit owners as a group since 2000, when the first two applications were filed, and that this relationship was still in effect in September 2004 when the law firm received notice of the Department's proposed agency action regarding Permit GU-409. They go on to contend that an agency relationship between the unit owners and the law firm existed, that it is presumed to continue in the absence of anything to show its revocation or termination, that the law firm's receipt of separate written notice concerning Permit GU-409 constituted constructive notice on Petitioner, and a petition should have been filed within 21 days after receipt of notice. Conversely, Petitioner contends that the attorney-client relationship between him and the law firm ended when the litigation in Case No. 02-2352 was concluded in August 2003, that the law firm did not represent him in September 2004, and that any notice to the law firm regarding the issuance of Permit GU-409 cannot be imputed to him. For the following reasons, on two different bases, including one not addressed by the parties, it is found that Petitioner received constructive notice of the proposed issuance of Permit GU-409 on or about September 15, 2004. To resolve the contentions of the parties, a factual review of the relationship between the law firm and Cape Haven owners is necessary. As discussed in greater detail below, this task is a difficult one because of the large number of unit owners (seven), some of whom participated as parties in one case, but not the others, and who are referred to by the law firm in correspondence or other papers generically as "a group of property owners, "adjacent property owners," or "other Cape Haven Townhome owners," and in other papers by their specific names. Although the law firm normally required that its clients execute a letter of engagement before agreeing to represent them, this policy was not strictly followed, and some unit owners who had not signed a letter of engagement were named as parties in a Wentz proceeding, while others who had signed a letter were not. Finally, the record supports a finding that throughout the nine-year controversy between the parties, Barnett has been the individual who acted as liason between the other unit owners and the law firm. After the Wentzes filed their application for a CCCL permit in February 2000, on August 4, 2000, Mr. Hasselback and three other unit owners, Dohrman, Barnett, and Hosford, each signed a letter of engagement with the law firm, also known as a New Matter Report (Report), authorizing the firm to represent them in the Wentz matter. See Wentz Exhibit 13. Petitioner says he "most likely" learned about the proposed issuance of Permit GU-305 through Barnett, who urged all of the unit owners "to come together" in opposing the permit. Petitioner agrees that all of the unit owners acted as a group "to fight the field permit and the GU-305." Even though Hasselback, Dohrman, and Hosford each signed a Report, the Reports identified only Barnett, Hanlon, and Beranek, who share ownership in unit 5, as the clients in the matter; Barnett was listed as the contact person. However, there is no evidence that Hanlon and Beranek ever signed a Report. Presumably, as co-owners with Barnett of unit 5, they had informally agreed with Barnett to be named as clients and to reimburse him for their pro rata share of the costs. The subject of the Reports was the "potential challenge of coastal control permit" and contained no information as to when the firm's services would cease. On September 25, 2000, the Department proposed to issue a field permit to the Wentzes for dune enhancement. See Case No. 00-4460. On October 11, 2000, the law firm filed a petition challenging the issuance of that permit. The petition was filed on behalf of all seven unit owners, even though three had never signed a Report. Although he probably discussed the substance of the petition before it was filed, Mr. Hasselback admits that he did not know the difference between a field permit and a CCCL permit and said he signed his Report so that the law firm could take "action against [the Wentzes] being able to build on [their] property." On October 20, 2000, the law firm also sent a letter to Department counsel requesting Department counsel to remind the Wentzes that a petition had been filed on behalf of its clients, that Permit 014292 was only proposed action, and that the Wentzes should not proceed with any work on the site. See Wentz Exhibit 3. The letter reflects that all of the Cape Haven owners, including Petitioner, were copied with that correspondence. The law firm's representation of the unit owners as a group at that time was confirmed by a letter sent to the Department on October 1, 2001, stating that the firm represented all of the Cape Haven owners, including Barnett, Dohrman, both Hosford and his wife, Brady, Hanlon, Beranek, and Petitioner, in their challenge to the Permit GU-305 application. It also requested notice of any decisions regarding the permit and a point of entry. See Wentz Exhibit 17. A copy of the letter was sent to all unit owners, including Petitioner. When the Department issued its formal proposed agency action regarding Permit GU-305 on July 9, 2002, it sent separate written notice to a member of the law firm on the same date. See Wentz Composite Exhibit 8. A petition was then timely filed by the law firm challenging that action. Notwithstanding the firm's letter of October 1, 2001, which indicated that all of the unit owners were opposing the issuance of a CCCL permit, only Barnett and Hanlon (who had not signed a Report) were identified as petitioners in the GU-305 case. Petitioner acknowledged, however, that he and the owners of three other units, but not Brady, agreed to share in the expenses of that case even though they were not named as parties. In all, he paid more than $35,000.00 in legal fees.3 (Brady, who owns unit 3, did not sign a Report, and according to Petitioner, he would not agree to share legal expenses in opposing the Wentzes' applications; even so, his name was on the petition filed in Case No. 00-4460.) Before Case No. 02-3252 was concluded, by letter dated January 15, 2003, the law firm, through a former member, Patricia A. Renovitch, Esquire, made the following request to Michael W. Sole, then Bureau Chief of the Department's Bureau of Beaches and Wetland Resources: Please consider this a request on behalf of adjacent property owners for notices about points of entry prior to the issuance of any permits to, and notices of any applications filed by, Doris and/or Daniel Wentz regarding the coastal lots they own on Cape San Blas that are described in File Numbers GU-375 and GU-305 (DOAH Case No. 02-3252 and OGC Case No. 02-1127). This would include notices of any applications for coastal construction control line permits or "dune enhancement" permits for these lots. (Emphasis added) In this instance, the law firm identified the unit owners as "adjacent property owners" without any further specificity. It can be inferred, however, that the law firm was still representing the entire group. At hearing, Petitioner acknowledged that because Case No. 02-3252 was not yet concluded, the law firm was still representing him when the letter was sent. He also agreed that the letter authorized the law firm to receive notices of "any applications" on behalf of him and the other unit owners the Wentzes might file in the future. Petitioner says his relationship with the law firm ended on August 4, 2003, when the Department issued a Final Order denying the application for Permit GU-305. He acknowledges that he never notified the Department or the law firm that the relationship ended on that day, and he did not instruct the law firm to revoke his prior authorization to receive notices of "any applications" that might be filed by the Wentzes in the future. Lacking any contrary information, the law firm did not advise the Department that it no longer was his agent for purposes of receiving notices. In response to Ms. Renovitch's letter sent to the Department in January 2003, on June 4, 2004, the Department sent a letter to the law firm (and Barnett individually) advising that the Wentzes had just filed another application for a CCCL permit, that it was being assigned File Number GU-409, and that any comments should be filed within ten days. See Department Exhibit 4o. In response to the Department's letter, on June 15, 2004, Ms. Renovitch filed a letter with the Department indicating in part as follows: Please consider the following comments made in behalf of our clients, Richard Barnett and other Cape Haven townhome owners of adjacent and/or upland property to the property described in the above styled application. (Emphasis added) The letter went on to state that "Mr. Barnett and other similarly-situated upland/adjacent property owners of Cape Haven townhomes submit their carefully considered objections to the issuance . . . of GU-409." See Department Exhibit 4o. Based on this correspondence, it can be inferred that in June 2004, at least for purposes of receiving "notices of any applications" filed by the Wentzes and submitting comments on behalf of the unit owners, an apparent principal-agent relationship still existed between the "other Cape Haven townhome owners" and the law firm, and that Petitioner was one of the unit owners being represented for those purposes. A copy of the letter was provided to Barnett, who presumably approved its content. On September 13, 2004, or five days after the Department issued its proposed agency action to issue Permit GU- 409, the Department sent separate written notice of this action to the law firm, Dohrman, Barnett, Erik J. Olsen (Olsen), a coastal engineer in Jacksonville, Florida, who testified as a consultant for Petitioner in this case, and several other individuals not relevant here. See Wentz Composite Exhibit 8. The notice was received by Barnett on September 15, 2004, and presumably by the law firm on or about the same date. See Department Exhibit 4n. (Besides the law firm, Barnett, Dohrman, and Olsen were also given separate written notice since they had each filed additional written objections in response to the Department's letter of June 4, 2004.) Although Barnett promptly contacted the law firm after receiving the notice to discuss the case, there is no evidence that the law firm contacted or spoke with any of the other unit owners regarding the proposed agency action. More likely than not, this was because it assumed that, based on the prior conduct of the parties, Barnett was the leader or "contact" person for the group and would convey any pertinent information to the other unit owners. While the law firm had not yet agreed to represent any of the unit owners on the merits of the GU-409 case since new Reports had not yet been sent out, see Finding 32, infra, the law firm was still Petitioner's agent for purposes of receiving notice of "any applications," and its receipt of the Department's notice on or about September 15, 2004, constituted constructive notice on Petitioner. On September 27, 2004, Ms. Renovitch emailed Kenneth Oertel, Esquire, the senior partner in the law firm, regarding the proposed agency action to issue Permit GU-409 and advised him as follows: Rick [Barnett] called a couple of times last week about the GU-409 case. He and John Beranek are in charge of overseeing the case (assuming we take it). They have approved the content of the Petition (per the memo I sent early last week.) I spoke to Rick Barnett several times about the balance (approx. $10K) on the bill in GU-305 (first Wentz CCCL permit). He said it's owed by Tom Dohrman and he will try to get a letter confirming when and how Tom will pay the balance. In the new case, the clients would be Rick, John Beranek, Jim Hasselback, Laurie Hosford, and Tom Dohrman. They will be paying equal shares. We have the NMRs [New Matter Reports] ready to send out, but have not sent them due to the unpaid balance in the first case. Rick wants to meet with DEP counsel Mark Miller and Tony McNeal about the GU-409 case this week . . . . Tony is very busy with hurricane impact emergencies . . . [and] Mark suggested Rick file a request for an extension to file the Petition. (Emphasis added) See Wentz Exhibit 9. Mr. Hasselback is not listed as a recipient of the email and he never spoke with Barnett or Ms. Renovitch about the case. He attributes the mentioning of his name in the email and being named as a party in the proposed petition to an assumption on the part of Barnett that "we may still have a group." However, given the prior conduct of the parties, it is reasonable to infer at a minimum that Barnett had Petitioner's implied authority to instruct the law firm to include his name on the proposed petition and to represent that Petitioner would share in the costs of the action. In response to that email, Mr. Oertel replied by email the same date that "we can't take a case where the client already owes us a substantial sum and has a hard time paying it. It will mean at best we will get paid only 80% of our bill." Id. At the suggestion of Mark Miller (Department counsel), Barnett requested that the Department grant him an extension of time to file a petition in order not to waive the 21-day filing requirement, which expired on October 6, 2004. The first request for an extension of time was filed on September 27, 2004, and stated in part that "I request a two week extension to October 20, 2004, for the homeowners of Cape Haven to consider all issues that could be raised in filing a potential challenge to this permit." (Emphasis added) See Department Exhibit 4n. The "homeowners" are not otherwise identified, although it is fair to infer that they were the five unit owners identified in the proposed petition whose content was approved by Barnett and Beranek. According to Ms. Renovitch's email of September 27, 2004, by requesting an extension of time, this would also "give [Barnett] more time to try to get Tom Dohrman to set up a payment plan." The last request for an extension of time was filed on November 14, 2005, and expired on February 14, 2006. Barnett says that he "lost track of the time and didn't submit [a seventh request] in time, but [he] clearly intended to submit [one]". The end result was that the law firm did not accept the case in September 2004, no petition was filed, and a new Report was not executed by any unit owner. After reading an advertisement regarding the potential sale of the Wentz property in October 2007, Barnett and Hosford engaged the services of the law firm to file a petition challenging the action taken by the Department in August 2007. There is no evidence that they signed a new Report authorizing the law firm to represent them. As noted above, their petition was later dismissed as being untimely. The law firm then filed a petition on behalf of Petitioner, who agrees that it was filed "to maintain the rights" of the group. However, he has not signed a new Report for this case, he has not been billed for any legal fees, he believes that Barnett is paying "some of the cost," but he expects he will probably end up paying a part of the legal fees incurred in this action. Based upon the facts of this case, and the conduct of the parties, the record also supports a finding that a principal-agent relationship existed between Petitioner and Barnett. As noted above, Barnett has always been the leader of the group of unit owners in opposing any development on the Wentz property. He communicated in writing and by telephone with Department personnel on numerous occasions over the years regarding the status of the activities on the property and periodically relayed this information to other unit owners by telephone or emails. Even though the law firm was given notice on behalf of the unit owners, Barnett also requested separate written notice from the Department for any applications filed after the GU-305 case, including the GU-409 permit. Barnett was initially identified by the law firm as the contact person for the group and has regularly met or communicated with the law firm regarding the various permits being challenged. It is fair to infer that the law firm assumed that Barnett had the authority to act on behalf of the other unit owners in coordinating their opposition to any permit challenges. This is evidenced by one of its emails indicating that Barnett was "in charge of overseeing the [GU-409] case" and that he approved the content of the proposed petition in which Mr. Hasselback was named as one of the parties. Although no longer a party in this case, he continues to discuss strategy of the case with counsel and other unit owners, including Petitioner. Finally, since the inception of these disputes, the record supports a finding that the law firm has invoiced Barnett for its legal fees, and Barnett then seeks reimbursement from the other owners, including Petitioner. Therefore, it is reasonable to infer from the evidence that because of his work schedule and travel, and infrequent visits to his townhome, since 2000 Petitioner has, at a minimum, impliedly authorized Barnett to serve as his agent to advise him about any activities by the Wentzes that might potentially impact the value of his townhome. The fact that Barnett did not always timely convey the information, as was the case here, does not negate this relationship. Because notice was received by Petitioner's agent on September 15, 2004, the time for filing a challenge to the issuance of Permit GU-409 expired 21 days after receipt of that written notice, or on October 6, 2004. Assuming that Mr. Hasselback was one of the "homeowners of Cape Haven" referred to in Barnett's first request for an extension of time to file a petition on September 27, 2004, and the subsequent five requests, the time for filing a petition expired no later than February 14, 2006.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order dismissing, with prejudice, the Petition of James Hasselback as being untimely. DONE AND ENTERED this 28th day of January, 2010, in Tallahassee, Leon County, Florida. S R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 2010.
The Issue Whether the subject activities of Charles River Laboratories, Inc. (CRL) constitute development within the meaning of Chapter 380, Florida Statutes. Whether the challenged after-the-fact building permit is contrary to the provisions of Chapter 380, Florida Statutes, the Monroe County Comprehensive Plan (Comprehensive Plan), and the Monroe County Land Development Regulations (LDRs). Whether the Department of Community Affairs (DCA) is barred by the Doctrine of Equitable Estoppel from challenging the after-the-fact permit issued by Monroe County. Whether the DCA and Curtis Kruer are barred by the Doctrine of Collateral Estoppel from challenging the after-the-fact permit. Whether the action by the DCA is consistent with prior agency practice.
Findings Of Fact THE PARTIES Petitioner is the state land planning agency that administers 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 permits for construction in unincorporated Monroe County. Monroe County issued Permit 95100012145, the permit that is the subject of this appeal, on December 1, 1995. Monroe County did not actively participate at the formal hearing. Charles River Laboratories (CRL) is the applicant for the permit that is the subject of this appeal. Paul Schilling, D.V.M., has been the director of CRL's monkey breeding activities in the Keys since 1983 and signed the application for the permit on behalf of CRL. CRL applied to Monroe County for an after-the-fact building permit for certain work that had been completed on Raccoon Key and Key Lois. The building permit subsequently issued by Monroe County and challenged in this proceedings authorized certain work done on three feeding stations on Raccoon Key and certain work done on a field cage on Key Lois. The field cage is used as a breeding pen for monkeys. Michael C. Coppola signed the application as the general contractor of record. Mr. Coppola did not participate in this proceeding. Intervenor, Curtis Kruer, moved to the Florida Keys in 1977. He resides on Big Pine Key and maintains an office on Summerland Key. Mr. Kruer is a recreational fisherman and a licensed fishing guide and boat captain. He earns a portion of his livelihood as a fishing guide and has, in the past, chartered trips to the shallow waters surrounding Key Lois and Raccoon Key. In recent years, he has stopped fishing these areas because of what he perceives to be diminished fish population caused by degraded water quality and less seagrass extent and quality. Mr. Kruer is also of the opinion that there has been a diminution of the aesthetic character of the islands. Mr. Kruer attributes these negative impacts to CRL's use of the islands. In addition to commercial fishing activities, Mr. Kruer has fished the waters of both islands for recreation. He has reduced his recreational fishing around Key Lois because of the environmental degradation, but he continues to fish for recreation around Raccoon Key. Mr. Kruer has shown that he has been impacted by the activities of CRL on Key Lois and Raccoon Key and that he will be further impacted if those activities continue. He established that he has the requisite standing to intervene in this proceeding. AREA OF CRITICAL STATE CONCERN 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. These statutory provisions require that Monroe County adopt and implement a comprehensive plan and land development regulations consistent with the Principles for Guiding Development found at Section 380.0552(7), Florida Statutes. THE MONROE COUNTY COMPREHENSIVE PLAN The Monroe County Comprehensive Plan was adopted by the Monroe County Commission on February 28, 1986, and became effective on September 15, 1986 (Comprehensive Plan). The Comprehensive Plan complies with the Principles for Guiding Development and has been approved by the Petitioner and by the Administration Commission. The Monroe County Comprehensive Plan is implemented by and through its adopted land development regulations (LDRs), codified primarily in Chapter 9.5, Monroe County Code (M.C.C.). Although there have been subsequent amendments to the Comprehensive Plan, those amendments have not been shown to be relevant to this proceeding. CRL's use of these islands predated the adoption of the Comprehensive Plan. Prior to the adoption of the Monroe County Comprehensive Plan, all pertinent permitting agencies, including the Department of Community Affairs, were aware of CRL's activities on these two islands. In the 1980s Dr. Schilling met with representatives of the Department of Community Affairs and with Monroe County staff, including the Monroe County biologist. Dr. Schilling was not told during any of these meetings that the Department of Community Affairs objected to its operations on these two islands. The actual uses CRL was making of these two islands at the time the Comprehensive Plan was adopted was not incorporated into the Comprehensive Plan. In 1984, Jim Murley was employed by the Department of Community Affairs, but not as its director, the position he currently holds. Mr. Murley advised CRL's attorney in 1984 that CRL should insure its continued use of the two islands by writing itself into the comprehensive plan so that there is no conflict with its use of the two islands and the adopted plan. Despite that advice, CRL did not file anything with Monroe County in an effort to write its use of the two islands into the Comprehensive Plan. CRL's use of these islands has not been registered with Monroe County as nonconforming use. Although the Monroe County Code provides for such registration, the evidence established that Monroe County has never undertaken the task of registering nonconforming uses in the county. THE PROPERTY CRL owns Key Lois and Raccoon Key, two offshore islands in the general vicinity of Cudjoe Key and Summerland Key that are within the Florida Keys Area of Critical State Concern. Key Lois, formerly known as Loggerhead Key, is located within the Florida Keys Marine Sanctuary approximately two miles south of Cudjoe Key in Hawk's Channel, which is in the Atlantic Ocean. CRL owns approximately 57 acres on Key Lois above the mean high water line. Raccoon Key is located in the Great White Heron National Wildlife Refuge, which is also within the Florida Keys National Marine Sanctuary and lies approximately three miles north of Cudjoe Key in the Gulf of Mexico. 1/ CRL owns approximately 100 acres on Raccoon Key that is above the mean high water line. CRL breeds reheus monkeys (Macaca mullata) on these two islands and also utilizes a land base on Summerland Key as part of its monkey farming operation. The monkeys that are bred on these two islands are either kept for future breeding or are sold for medical research related to human health. These monkeys are an important resource for medical research. The islands were selected, in part, because it would enable CRL to keep the monkeys isolated from diseases. Monkey breeding is properly considered a commercial activity as opposed to an agricultural activity. CRL began its monkey breeding operations on Key Lois in 1973 and on Raccoon Key in 1976. When they were first introduced to the Keys, the monkeys on both islands were not confined so that each monkey had free-range of its island. As a result of a dispute with the Florida Department of Environmental Regulation (FDER), CRL has agreed to a scheduled reduction of the monkeys' access to both islands. 2/ CRL has agreed to eliminate all free ranging monkeys from Key Lois by the year 2003 and to eliminate all free ranging monkeys from Raccoon Key by the year 2008. The monkey population reached its zenith in 1983 about the time Dr. Schilling assumed his responsibilities as the director of CRL's monkey breeding activities in the Keys. At that time the monkey population on Key Lois was approximately 2,000 and the monkey population on Key Raccoon was approximately 4,000. Since that time there has been a steady decline in the monkey population on both islands and, at the time of the formal hearing, there were approximately 200 monkeys on Key Lois and 1,000 monkeys on Raccoon Key. CRL supplies food and water to the monkeys on a daily basis. THE STRUCTURES The structure at issue on Key Lois is a field cage which was reconstructed from a former holding pen with solid walls to a structure whose sides and ceiling is chain link fencing. In the permit that is at issue in this proceeding, the structure is referred to as Field Cage 7. The structure was formerly referred to as Compound III. A permit for the former holding pen (then referred to as Compound III) was issued by the Army Corps of Engineers (ACOE) on June 22, 1983. Compound III was described by that ACOE permit as follows: "96' x 48' x 12', galvanized sheet metal and chain link fencing with pipes set in concrete. Used for feeding, watering and trapping monkeys. Construction date 1972." The former pen was initially used as a temporary holding pen for newly acquired animals. CRL now uses this structure as a breeding pen. Glen Boe and Associates prepared the sketches that were attached to CRL's permit application to Monroe County. The sketch depicted the basic structure 3/ of Field Cage 7 as being 50 feet in width and 100 feet in length, which is slightly larger than the description on the ACOE permit. Despite those differences, the footprint of the basic structure has not been enlarged. The discrepancy between the ACOE permit and the Boe drawing is an error. In addition to the basic structure, the Boe drawings also depict two small holding pens on either end of the cage. These holding pens are approximately 10' x 15' on one end and 10' x 20' on the other end. These holding pens facilitate the handling of monkeys and were added to the structure, without a permit, in 1988. The floor of Field Cage 7 is sand. The walls and top are supported by galvanized pipe on ten foot centers. These pipes are sunk in concrete footers. The walls, gates, and top of the structure are constructed of the same materials that are used for a typical chain link fence, with galvanized pipe being used for the framework. The solid walls were removed because they were corroding, they were too hot, and they were not keeping the monkeys confined. The chain link material provides a more suitable cage for the monkeys and is less wind resistant than solid walls. During spring high tides, all of Key Lois is typically inundated with water except for a narrow sand berm. In some years, this sand berm has been partially inundated. The three feeding stations on Raccoon Key were designed to be a feeding station that could also be used to trap and confine adult monkeys. Each of these structures is an octagon that is 32 feet in length and 32 feet in width with an open top, gates, and chain link fencing at the bottom of the walls. The wall above the chain link portion is constructed of smooth sheet metal, which prevents the monkeys from climbing over the top of the structure when the doors are closed for the purpose of trapping and confining monkeys. The three feeding cages on Raccoon Key are located in areas that flood during spring tides Both Raccoon Key and Key Lois are vulnerable to hurricanes. These islands would likely be inundated and the structures obliterated if a major hurricane were to strike them. DEVELOPMENT The activity authorized by the building permit is "development" as defined in the Monroe County land development regulations and Chapter 380, Florida Statutes. The building permit is a "development order" within the meaning of Chapter 380, Florida Statutes. See Section 9.5-4(D-8), Monroe County Code, and Section 380.04, Florida Statutes. 4/ CRL argues that these should be construed to be temporary structures and that the building activity associated with those temporary structures does not require a building permit. CRL did not establish that these structures, which are expected to remain in place for over a decade, are exempt from permitting requirements as temporary structures. THE SUBJECT PERMIT CRL has received permits from different permitting agencies for various structures, a marina, and a dock facility. It has also received letters advising that certain activities did not require a permit. There are structures on both islands that were constructed by CRL without the benefit of a building permit. CRL applied for the subject building permit after Curtis Kruer complained to Monroe County staff that there had been building activity on the two islands that had not been permitted. Thereafter, CRL was contacted by Monroe County staff. Dr. Schilling testified that CRL did not believe that a building permit was required since the structures have no roofs and were constructed either in the same footprint as prior structures or were moved at the direction of the FDER. Rather than argue with Monroe County's staff, Dr. Schilling caused an application to be filed that resulted in the challenged building permit. The application, filed October 11, 1995, was for permits for three feeding cages on Raccoon Key, a field cage (Field Cage 7) on Key Lois, and fencing. The permit application does not refer to any agency agreements, identify any other structures on the islands, indicate whether these structures replace or relocate other structures, or identify any habitat types or areas. The permit application contains drawings that reflect that the structures are more than fifty feet from the waters that surround the two islands. The permit that was subsequently issued was for the three feeding cages and the field cage only. The fencing was not permitted. This permit constitutes a development order. The Department of Community Affairs routinely reviews development orders issued in the Florida Keys Area of Critical State Concern. The Department timely filed its appeal of this development order. There was insufficient evidence to establish that the Department's appeal of this development order was inconsistent with prior agency practice. Monroe County typically requires a habitat analysis and a computation reflecting that a project satisfies the open space requirements contained in LDRs. The county biologist usually conducts a site inspection. In this case, Monroe County did not require a habitat analysis, an open space computation, or a site visit by the county biologist because it viewed these structures as reducing a nonconforming use. The staff considered CRL's use of the entire islands to be the nonconforming use that was being reduced. Monroe County has adopted an official "existing conditions map" that should show the vegetation, natural features, and developed land in the county. 5/ If the existing conditions map does not show a habitat designation, the habitat should be determined by field verification. The existing conditions map reflects the habitat for Raccoon Key, but it does not designate the habitat of Key Lois. THE LAND USE DISTRICT Section 9.5-202 establishes the different land use districts for Monroe County 6/ , including a land use designated as "Offshore Island District (OS)", the designation in which Raccoon Key and Key Lois fall. Section 9.5-212 pertains to the purpose of the "Offshore Island District (OS)" designation and provides as follows: The purpose of the OS district is to establish areas that are not connected to U.S. 1 as protected areas, while permitting low intensity residential uses and campground spaces in upland areas that can be served by cisterns, generators and other self-contained facilities. Section 9.5-231 pertains in general to the permitted uses in the different land use districts and provides, in pertinent part, as follows: No structure or land in Monroe County shall hereafter be developed, used or occupied unless expressly authorized in a land use district in this division. . . . Section 9.5-241 lists the uses that are permitted as of right in the Offshore Island District and the uses that are permitted as major conditional uses. The use CRL makes of the two offshore islands involved in this proceeding is not included as an "of right use" or as a "major conditional use." The use CRL makes of these two islands is inconsistent with the OS designation. That use is of greater impact than those contemplated by the OS designation. NONCONFORMING USES AND NONCONFORMING STRUCTURES Prior to the building activity at issue in this proceeding, the Field Cage 7 on Key Lois and the three feeding stations on Raccoon Key were nonconforming structures. 7/ CRL's use of both islands are nonconforming uses. Article V of the LDRs pertains to nonconforming uses. Section 9.5-141 provides, in pertinent part, 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 noncon- formities and to bring about their eventual elimination in order to preserve the integrity of this chapter. Section 9.5-143 pertains to "nonconforming uses" and provides, in pertinent part, as follows: Authority to Continue: Nonconforming uses of land or structures may continue in accordance with the provisions of this section. Ordinary Repair and Maintenance: Normal maintenance and repair to permit continuation of registered nonconforming uses may be performed. Extensions: Nonconforming uses shall not be extended. This prohibition shall be construed so as to prevent: Enlargement of nonconforming uses by additions to the structure in which such nonconforming uses are located . . . Relocation: A structure in which a nonconforming use is located may not be moved unless the new use thereafter shall conform to other limitations of the land use district into which it is moved. Change in Use: A nonconforming use shall not be changed to any other use unless the new use conforms to the provisions of the land use district in which it is located. Section 9.5-144 pertains to "nonconforming structures" 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 continue 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: Noncon- forming 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. Relocation: A nonconforming structure . . . shall not be moved unless it thereafter shall conform to the regulations of the land use district in which it is located. . . . ACTIVITY WAS NOT REPAIR AND MAINTENANCE The building activity on Raccoon Key involved new construction as opposed to repair and maintenance of existing nonconforming structures. These structures were abandoned or razed and the three new structures with a different design and constructed of different materials in a different footprint were built. The building activity on Key Lois was new construction as opposed to repair and maintenance of an existing nonconforming structure. The former structure, with the exception of the two holding pens that were added in 1988 without a permit, should be considered to be a nonconforming structure. The structure was dismantled to its foundation and a completely new structure was erected. With the exception of the holding pens on either end, the new structure was constructed in the footprint of the previous, nonconforming structure. A building permit from Monroe County was required for the building activity at issue in this proceeding. OPEN SPACE REQUIREMENTS An open space ratio is defined in Section 9.5-4(0-4) as ". the percentage of the total gross area of a parcel that is open space." There are two different open space ratios applicable to the subject permit. One is based on the land use district designation and the other is based on the type habitat on the property. In the instance where a land use district open space ratio and a habitat open space ratio are different, the higher open space ratio applies. The open space ratio requirement for the Offshore Island land use designation is found at Section 9.5-262, M.C.C., and requires that 95 percent of the area be left as open space. Section 9.5-343, M.C.C., contains the open space ratios designed to protect habitat. These open space ratios vary depending on the land type depicted on the Existing Conditions Map, which has been adopted and shows vegetation, natural features, and developed lands. On Raccoon Key, these three designations are depicted on the Existing Conditions Map: "fringing mangroves", "saltmarsh and buttonwood associations", and "speciality farms". Much of the island consists of fringing mangroves. A portion along the eastern shoreline is designated saltmarsh and buttonwood. Five areas in which CRL had placed structures are designated as speciality farms. The southernmost of the feeding stations on Raccoon Key at issue in this proceeding and Field Cage 7 on Key Lois are in fringing mangrove areas, a designation that has an open space requirement of 100 percent. Section 9.5- 345(m), M.C.C., authorizes the construction of piers, docks, utility pilings, and walkways in mangroves. The feeding station and the field cage are not the type structures that can be built in mangroves. The other two feeding stations on Raccoon Key at issue in this proceeding are in areas with 95 percent open space ratios. Dr. Schilling performed an open space analysis by which he concluded that all structures on both islands at issue in this proceeding met the applicable open space requirements. The southernmost feeding station on Raccoon Key and Field Cage 7. Key Lois do not comply with the open space ratio requirement. As to the other structures, the Department of Community Affairs established that Dr. Schilling's analysis was flawed. The evidence failed to establish whether the remaining structures meet the open space requirements. SETBACK REQUIREMENTS Section 9.5-286(b) pertains to shoreline setback requirements and provides as follows: (b) All buildings other than docks, utility pilings, walkways, nonenclosed gazebos and fences and similar structures shall be set back fifty (50) feet from natural water bodies with unaltered shorelines or unlawfully altered shorelines, measured from the landward limit of mangroves, if any, and where mangroves do not exist, from mean high tide line. The Monroe County staff relied on the drawings attached to the application in concluding that the structures comply with setback requirements. These drawings erroneously reflect that Field Cage 7 is more than 50 feet from the water and they do not reflect the landward extent of mangroves. The shoreline on Key Lois is unaltered. Field Cage 7 is obviously within 50' of the shoreline. Field Cage 7 does not comply with the setback requirement found in Section 9.5-286(b), M.C.C. The shoreline on Raccoon Key is unaltered. All three of the feed stations at issue in this proceeding are within 50' of the landward extent of mangroves. These three feed stations do not comply with the setback requirement found in Section 9.5-286(b), M.C.C. ADVERSE ENVIRONMENTAL IMPACTS Despite the food that is provided, the free roaming monkeys have destroyed mangroves on the two islands. In the process of pulling leaves off the mangroves, the monkeys strip bark and break branches from the mangroves. The adverse impact on the mangroves is evident, with dead mangroves being observed in large quantities on both islands. Because Key Lois is a sand key, the absence of mangroves to stabilize its shorelines and to break or absorb wave energy has contributed to erosion. Nutrients from fecal waste and food reach the nearshore waters of both islands. The excessive nutrient loading has contributed to algal blooms and the degradation of those nearshore waters. PRIOR DISPUTES In the 1980s, a dispute developed between CRL and the FDER regarding CRL's activities on these two islands. As a result of that dispute and after several years of negotiation, CRL and the FDER settled their dispute by the execution of two consent orders, one pertaining to Key Lois and the other pertaining to Raccoon Key. The Department of Community Affairs was not a party to that dispute and did not participate in the negotiations. In 1986, CRL filed a civil action in the Circuit Court of the Sixteenth Judicial Circuit in and for Monroe County, Florida, against the Governor and Cabinet sitting as the Board of Trustees of the Internal Improvement Trust Fund (Board of Trustees) to determine the mean high water line for the purposes of delineating the boundary between the lands owned by CRL and the sovereign submerged lands held in trust by the State of Florida. The case number assigned to that proceeding was 86-190-CA-13. That civil action was settled, with the consent agreements between CRL and FDER being incorporated by reference. The Department of Community Affairs was not a party to the suit between CRL and the Board of Trustees and did not participate in the negotiations that resulted in the settlement agreement. 8/ The settlement agreement between CRL and the Board of Trustees was approved by the circuit judge presiding over the civil action and was incorporated by reference in the court's "Consent Final Judgment" entered in Case No. 86-190-CA-13. The court's order provided in part, that the ". . .terms and conditions contained in [the Settlement Agreement] shall govern the parties' conduct and define their respective duties and obligations." By its settlement agreement with the Board of Trustees, CRL agreed to cease its operations on Key Lois and convey title to Key Lois to the State of Florida no later than December 31, 2012. It also agreed to cease its operations on Raccoon Key and quitclaim its ownership of Raccoon Key to the United States for inclusion in the National Wildlife Refuge System no later than December 31, 2024. The consent agreements with the FDER requires CRL to obtain all governmental permits that are necessary to effectuate the terms of the agreements. Those provisions require CRL to obtain any necessary building permits. The settlement agreement between CRL and the Board of Trustees also included the following: ". . . [H]usbandry practices will be changed to reduce the free-ranging population. Nonproductive animals will be intensely culled; selective breeders will be replaced and juveniles will be confined in corral gang-type caging similar to that used by many zoos." The provisions of the consent order between CRL and FDER for Key Lois included the scheduled reduction of the free-range population of animals, to culminate with the elimination of all free-ranging monkeys during the year 2003, and the restoration of the previously damaged mangrove areas on the island. "Holding Compound III," now referred to as Field Cage 7, was identified on a location map. The following comment reflected the future plans for this structure: "This compound will be renovated and turned into the first breeding corral." The provisions of the consent order between CRL and FDER for Raccoon Key also provided for the scheduled reduction of the free-range population of animals , to culminate with the elimination of all free-ranging monkeys during the year 2008, and the restoration of the previously damaged mangrove areas on the island. Five feeding stations were identified on the location map. The following comments reflected the future plans for these structures: "Three 48' x 24' wire structures are used to feed and trap the free ranging animals. FS I will be relocated to near (sic) Compound II. FS V will be dismantled and not replaced. FS II, III and IV will remain in use as long as free range animals are on the island." The structures referred to by the consent order as FS II, FS III, and FS IV are referred to by the development order issued by Monroe County as feeding stations 1, 2, and 3, respectively. These three feeding stations were moved short distances to less environmentally sensitive areas at the direction of FDER, but they remain in the approximate location as they were prior to the adoption of the Comprehensive Plan. The feed stations on Raccoon Key were also redesigned by CRL so that they could be better suited for trapping adult monkeys. In reliance on the consent orders with the FDER and with the settlement with the Board of Trustees, CRL has expended over $197,000 in lease fees and administrative fees to the FDER, spent some $120,000 on refoliation, $90,000 on fencing, $15,000 in feed stations, $125,000 in breeding and holding pens, and $200,000 for water treatment plants, for a total of $747,000. CRL contributes approximately one million dollars per year to the local economy in salaries and purchases. MODIFICATIONS There was no evidence of modifications to the structures that would render them consistent with the Comprehensive Plan. VARIANCES The Monroe County Code makes provision for the issuance of variances in appropriate circumstances. Section 9.5-523, M.C.C., pertains to variances and provides, in pertinent part, as follows: Variances may be granted to the requirements contained in divisions 10, 9, 4, 11, and 14, article VII, pursuant to the standards and procedures set forth in subparagraph (e) of this section, but only if a variance is not otherwise available as part of the conditional use approval process. Variances may be granted from the open space ratio requirements of section 9.5-182 according to the standards and procedures set forth in subsection (e) of this section. However, no variance shall be granted under this section if such variance would result in an open space ratio less than that required by section 9.5-343. * * * An application for a variance shall be submitted to the development review coordinator in a form prescribed by the planning director. The development review coordinator shall schedule a hearing on the variance upon receipt of a completed application. The notice requirements shall be those described in section 9.5-45. All applications for variances under this section shall be heard and decided by the planning commission at a regularly scheduled public hearing. Appeals may be filed by an owner, applicant, adjacent property owner, any aggrieved or adversely affected person as defined by section 163.3215(2), Florida Statutes; or any resident or real property owner may request an appeal of the planning commission's variance decision under the hearing officer appellate article of these regulations [Section 9.5-535, et seq.] by filing the notice required by that article within thirty (30) days of the date of the written variance decision of the planning commission. The planning commission, in granting or denying a variance under this section, shall consider whether the following conditions are met: A showing of good and sufficient cause; Failure to grant the variance would result in exceptional hardship to the applicant; A determination that the granting of the variance will not result in additional threats to public expense which would not otherwise occur; create a nuisance; or cause fraud or victimization of the public; Unique or peculiar circumstances or conditions which apply to the property but which do not apply to other properties in the same land district; The granting of the variance would not confer upon the applicant any special privilege denied by these regulations to other properties in the same land district. The planning commission, in determining whether the foregoing conditions for a variance are met, shall consider the following factors relevant: Physical characteristics of the proposed construction for which a variance is requested; Whether it is possible to use the property without the variance; The increased or decreased danger to life and property if the variance is or is not requested; The importance to the community of the services to be provided if the proposed variance is granted; The compatibility of the proposed variance in light of existing and permitted development in the immediate area; The safety of access to the property for ordinary and emergency vehicles if the variance is or is not granted; The additional or lessened costs of providing governmental services if the variance is or is not granted. The issues pertaining to the issuance of variances for these structures are not identical to the issues litigated in this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that FLAWAC enter a final order that adopts the findings of fact and the conclusions of law contained herein. It is further recommended that the final order find that the subject permit is inconsistent with the Monroe County Comprehensive Plan and Land Development Regulations. It is further recommended that FLAWAC order that the structures can remain in place until CRL has had a reasonable opportunity to apply to Monroe County for variances for the subject structures and for an amendment to the Monroe County Comprehensive Plan. Should CRL not apply for variances or an amendment to the comprehension plan within a reasonable time established by FLAWAC, or should those applications be denied, the subject structures should be ordered removed. DONE AND ORDERED this 16th day of December, 1996, in Tallahassee, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 16th day of December, 1996.
The Issue The issue for consideration in this case is whether the Respondent's license as a certified general contractor in Florida should be disciplined because of the alleged misconduct outlined in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the allegations contained herein, the Petitioner, Construction Industry Licensing Board was the state agency responsible for the licensing and regulation of construction contractors in this state. Respondent, Frank W. Miller, was licensed as a certified general contractor in Florida under License No. CG C036176. On June 2, 1988, Lots of Casey Key, Inc., a group of investors and contractors, including the Respondent, purchased the land in question located in Sarasota County, Florida. On June 26, 1988, the group hired an environmentalist from a list provided by the county, who evaluated the property with a view toward development. The developers also hired a surveyor and an engineer to get the proper permits for the development. They also published all required notices and acquired at least some of the required permits for the initial stage of the development. This consisted of the construction of a fishing pier extending from the property into Sarasota Bay. This permit was taken out by the Respondent. The Respondent and his associates also contacted Robert B. Patten, an environmental consultant, with a view toward having the eight acres in question rezoned so that houses could be built on it. After examining the property, however, Mr. Patten advised Respondent there were so many protected mangroves on the property, both state and local permits would be required and he, Patten, was not interested in the job. He suggested that Respondent hire an attorney to insure the proper permits were obtained. Respondent claims that in January of 1989, he took his site drawing for the proposed development to the county natural resources office headed by Mr. McCarthy, told him what was planned at the property, and secured his approval. Mr. McCarthy was not called as a witness, and all the appropriate permits were not offered, so at most it can be found that McCarthy approved the concept of the activity in principle. At approximately this same time, the environmentalist the group hired to insure compliance with the environmental requirements purportedly also assured them that the proposal was environmentally sound and properly permitted. It is accepted that he did. As a result, the group acquired the state and county permit for the pier and, in addition, a permit to clear the uplands. They also procured a permit from the Southwest Florida Water Management District and the appropriate agency governing the construction and installation of utilities. In addition, the Respondent procured a permit allowing construction of a boardwalk and a seawall. He did not, however, procure the appropriate permit to allow him to cut, trim, or top mangroves in the numbers shown here. The group hired Southern Landscaping to do all the land work under a contract which called for all mangrove trimming to be done in accordance with the Division of Natural Resources rules This company, which was the low bidder in the procurement process, was relied on to trim the mangroves in accordance with the law and before beginning work, showed how the trees would be trimmed. It appeared to Respondent at this time that the work was being and would be done properly. On March 10, 1989, Belinda S. Perry, an employee of the county's Natural Resources Department, was out on Casey Key and observed that at the Respondent's work site clearing work was being done. She questioned the permitability of this work. She also observed that the mangroves on the north side of the property had been improperly cut, and she asked her associate, Mr. McCarthy, to check it out. He did and thereafter, on March 14, 1989, Respondent came to the office with a copy of his state-issued permit. After analyzing the permit and comparing the work done with the terms thereof, Ms. Perry and Mr. McCarthy advised Respondent it appeared his work was in excess of the limits imposed by his permit and that they would have to notify state authorities and get back to him. At that time, Respondent was cooperative and indicated he wanted to get the proper authorization. As a result, Ms. Perry contacted Ms. Toledo, of the Department of Environmental Regulation, discussed the possible violation with her, and arranged to visit the site with her on March 20, 1989. When they did, Ms. Perry again observed the cutting on the North side of the property in addition to which there was a corridor which had been cut to the east (water) side of the property heading toward the bay. At that point, they contacted Mr. McClintock, the forester, who examined the Respondent's permit. When he saw it permitted only the relocation of 20 palm trees and made no mention of or gave no approval of cutting or trimming of mangroves, he authorized the issuance of a stop work order on March 20, 1989. Ms. Perry and Ms. Toledo, pursuant to the terms of that order, served a copy on Mr. Miller and advised him he was in violation of both state and county regulations and should discontinue the work at the site. Ms. Toledo recalls that when she visited the site on March 20, 1989, she observed much the same situation as described by Ms. Perry. She also recognizes that one of Respondent's permits allowed the moving of palms, and he also had one for the construction of a fishing pier. As a part of this second permit, Respondent was allowed to cut mangroves. Nonetheless, she noted on her visit that in the area to the left of the pathway, many more mangroves had been cut than were allowed by the permit. This cutting was in the form of trimming in excess of any exemption criteria outlined in Rule 17-27.060, F.A.C., (17- 321.060), which allows trimming by a property owner without a permit, but of no more than 25 % of the lateral branches. The red mangroves on the property had been topped which is totally prohibited, and the trimming of the remaining white and black mangroves was to an extent in excess of the permitted 25%. At that time, Mr. Miller indicated to Ms. Toledo that he was the general contractor in charge of the site, and the workers doing the actual trimming were operating under his direction. This is corroborated by the testimony of Mr. Boatright, one of the trimmers, who indicates much the same. At that time, in Ms. Toledo's opinion, Mr. Miller was uncooperative and aggressive and as a result, on March 31, 1989, she drafted a warning notice which was issued on April 3, 1989. On that latter date, Ms. Toledo again went to the site and saw that additional and different mangroves had been trimmed in excess of the exemption criteria mentioned above. Thereafter, on April 7, 1989, she had a telephone conversation with the Respondent during which she advised him that the Department of Environmental Regulation intended to file criminal and civil charges against Lots of Casey Key, Inc. because of the violations described. At that time, Respondent expressed his regret that the situation had happened. As a result of the visits by Ms. Toledo and Ms. Perry, in late March or early April, 1989, Steven T. Cooley, environmental prosecutor for the 15th Judicial Circuit of Florida, was notified through the Sarasota County Sheriff's Department and Division of Natural Resources that there was significant damage to a mangrove forest at Lots of Casey Key. Mr. Cooley conducted an extensive investigation into the matter and caused a collateral criminal investigation to be conducted as well, and as a result of these inquiries, decided to file criminal charges against Mr. Miller and a co-defendant, Mr. Burke. This decision was based on the investigation which revealed that the county's tree protection ordinance, Ordinance 83-44, which included mangroves among the protected species, had been violated. It appeared that Respondent and Mr. Burke had hired subcontractors who committed a significant cutting, (trimming, topping and stumping) of more than 2000 mature trees. The Respondent and Burke were contacted by code enforcement people, (Perry and Toledo), and advised to stop. Nonetheless, additional damage was done after the notice to stop and a Stop Order was thereafter issued. Respondent had a permit to cut mangroves in a corridor area out to the fishing pier, but the actual cutting far exceeded the terms of the permit. The first cutting was a thinning out of mangroves around Casey Key, which, in itself, was a violation, and even after the Respondent was informed he was in violation, he improperly cut more trees. Not all trees were cut down to the ground, but many of those which were illegally trimmed were trimmed to a point where the tree would ultimately die. This was verified by county tree experts. Mr. Cooley filed criminal charges against the Respondent rather than the actual workers who did the cutting because, in his opinion and as a result of his investigation, the workers were merely agents working under the direction of the Respondent. Mr. Miller originally pleaded Not Guilty to the charges against him but subsequently, on June 25, 1990, changed his plea to Guilty. At a sentencing hearing held in December, 1990, adjudication of guilt was withheld, and Mr. Miller was fined a total of $15,000.00; ordered to perform 500 hours of public service, and ordered to spend 10 weekends on the road gang. In addition to the criminal charges, a civil suit was filed by the county against Lots of Casey Key, Inc., to prevent additional cutting of mangroves. By stipulation, a temporary injunction was entered. Trial on the permanent injunction had not been held at time of hearing. According to Mr. McClintock, a sampling taken on March 22, 1989, after the stop work order was approved, showed approximately 2175 mangrove trees had been severely cut on the northern side of the property and between 75 and 100 cut down to the ground in the corridor on which the pathway to the fishing pier was to be constructed. This accounted for a total of 2275 trees. When he went back to the property on March 30, 1989, after the stop work order had been issued, McClintock observed that while cutting was no longer in progress, an additional cutting had taken place, and he counted approximately 78 additional trees which had been destroyed. He later verified that additional trees were cut in the corridor area as well. Taken together, a total of approximately 2350 trees were improperly cut in violation of the state and county codes protecting mangroves. This destruction is the largest in the recollection of Norman C. Easey, the Director of the county's forestry division, and it constituted a serious impact on what was then the largest single mangrove stand in the southern part of Sarasota County. Respondent does not deny that the trees were cut. He notes, however, that after Ms. Perry first came out and advised him of the possibility he was in violation, he agreed not to cut further and in fact, tried to cooperate. He met with his associates who encouraged him to nonetheless continue the cutting even though he advised against it. Ultimately he was able to convince them. An associate, Norman Sharrit, the architect for the project, recalls that Respondent spontaneously exclaimed to him that Burke and Jaffe, the other partners, directed the additional cutting after the stop work order was issued. Nonetheless, after securing his associates' agreement to suspend any cutting, Respondent attempted to contact the trimmers, Southern Landscaping, to advise them to stop work but claims he could never find anyone on site. In this claim, he is supported by Davis Baker, an adjacent retired homeowner, who, in observing the clearing process on a daily basis, noticed that the cutters kept very irregular hours and were gone as often as not. Respondent also claims he left word for the cutters to stop on the company's answering machine but the work continued. It is this additional work, after Respondent's efforts to get the work stopped, that constituted the additional cutting charged. Respondent also claims that the additional trees near the walkway were cut as activity beyond the scope of the contract which he had entered into with the landscape company. Mr. Miller also contends that the work was not done under his license because he was not an owner of Casey Key Estates. The owners of that company, the parent company for development, were Mr. Burke and Mr. Jaffe. He was, however, the Secretary of the corporation, but claims he did not have complete control as to who did what and where. He claims he was not a stockholder in the company and had no ownership in the operation. Under the terms of his agreement with the owners, he was to get a percentage of the profits when the development was completed. As of the date of the hearing, he has received nothing in the way of remuneration. Except for the claim that the work was not done under his license, it is so found. He also claims that in the instant case he was not acting as a contractor for the project. His reasoning here is not supported by the facts. His relationship with the other developers was based on the fact that he obtained the option to purchase the land; he was to put in the utilities; and he was to build the homes and construct the walk over to the beach and the seawall. He also was the one who obtained all permits and who entered into the contract for trimming with Southern Landscaping. It is found, therefore, that he was, in fact, the general contractor for this project and ultimately responsible for all actions taken under his certificate. Mr. Miller cites in his defense that as he understands the law, mangroves can be trimmed without a permit between October and March, up to 25% of the lateral growth, and in his opinion, the trimming did not constitute more than that allowable 25%. This is clearly not so, as evaluation of the Petitioner's photographs, taken near the time in question, which Respondent agrees fairly represents the site at the time, clearly indicates that more than 25% of the lateral growth of the trees' foliage was taken off. It should be noted, however, that a photograph taken some substantial time after the cutting shows that the trimmed area is filling in again and the trees are not dead. This does not mean there was no damage, however. Mr. Easely, the Director of Forestry, whose expertise indicates a reliable opinion, opined that the mangroves are not as healthy as they should be. Once cut, they are going through a period of shock and are branching out from reserve buds developed by the tree for emergency situations such as fire and damage. The tree, once in this condition, has a much shorter life span. Though new trees may, and probably will come in, there is a loss of habitat in the a rea as a result of the trimming, of some 30 to 40 years. In any case, minimization of damage does not excuse or justify prohibited trimming.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Frank W. Miller's certification as a General contractor be suspended for three years, with the execution of the last two years of the suspension stayed under such terms and conditions as prescribed by the Construction Industry Licensing Board, and that he pay an administrative fine of $5,000.00. RECOMMENDED this 8th day of April, 1991, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 8th day of April, 1991. COPIES FURNISHED: Robert B. Jurand, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Frank W. Miller 20 Dover Drive Englewood, Florida 34223 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Daniel O'Brien Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
Findings Of Fact Respondent, Arthur B. Lujan (Lujan) and his wife, Betty L. Lujan, are the owners of a 34.09-acre parcel of land which includes Enchanted Island and its surrounding submerged lands. 1/ Enchanted Island is a 3 1/2-acre island located in Florida Bay to the east of Key Haven and north of U.S. Highway 1, Monroe County, Florida. On January 15, 1986, Lujan applied to Monroe County for a land clearing permit and fill permit. The permits, as requested, would have permitted him to clear, after-the-fact, the island of vegetation, fill the island to +4' MHW (mean high water), and restore an access road to the island. Lujan's applications were approved, and the permits issued on February 4, 1986. The Department of Community Affairs (Department), pursuant to Section 380.07, Florida Statutes, filed a timely appeal with the Florida Land and Water Adjudicatory Commission (Adjudicatory Commission). Background In 1970, Lujan and his wife purchased the subject property, which included Enchanted Island and its surrounding submerged lands. At that time, an access road connected the western tip of the island to U.S. Highway 1. 2/ In or about April 1972, Lujan constructed, by the deposit of fill over bay bottom, an access road from U.S. Highway 1 to the eastern tip of Enchanted Island. Since this work was being performed without a federal permit, the Department of the Army, Corps of Engineers (Corps) on April 26, 1972, advised Lujan to cease and desist all unauthorized work in navigable waters of the United States. Lujan complied with the Corps' request, but did not remove the road. In late December 1972, Lujan began fill work on the western access road and on Enchanted Island itself. According to Lujan, his intention was to clearly define the boundary of Enchanted Island, raise its elevation from approximately +3' MSL (mean sea level) to +4' MSL, and restore the western access road, which had been subjected to erosion. Lujan was performing the work on the access road without a federal permit, and on January 4, 1973, the Corps advised Lujan to cease and desist all unauthorized work in navigable waters. 3/ In response to the cease and desist order, Lujan ceased activity on both the access road and Enchanted Island itself. 4/ At that time, the boundary of Enchanted Island had been defined by a perimeter road above MHW and the access road restored, but the elevation of the island had not been raised or its interior altered. Lujan further responded to the Corps' cease and desist order by filing suit in the United States District Court, Southern District of Florida (District Court) to enjoin the Corps from any further interference with the use and enjoyment of Enchanted Island. That suit was dismissed without prejudice when Lujan agreed to submit an after-the-fact permit application to the Corps. That application, filed May 30, 1973, sought leave to restore the western access road, place three culverts through the road, and to remove the unauthorized eastern access road and place its material on the island to bring the final elevation of the island to +4' MLW (mean low water). Subsequently, on June 17, 1974, the Corps denied Lujan's permit. In February, 1975, Lujan again filed suit against the Corps in District Court seeking injunctive and declaratory relief and de novo review of the Corps' permit denial. The United States responded by instituting suit against Lujan for violation of the permit requirements of Section 10 of the Rivers and Harbor Act of 1899, and the Federal Water Pollution Control Act of 1972. In their action, the government sought civil penalties, and an order that the unauthorized work be removed and the area restored to its pre-existing condition. These two actions (Case Nos. 75-150-CIV-EBD and 75-635-CIV-EBD) were ultimately consolidated. On December 5, 1975, the District Court ruled that the Corps' permit denial was neither arbitrary nor capricious. The court further ordered Lujan to remove the western access road and restore the area to the natural depth of the adjacent bottom, and to pay a civil penalty. 5/ Lujan appealed. On appeal, the United States Court of Appeals, Fifth Circuit (Appellate Court) agreed with Lujan's assertion that, inter alia, the Corps had breached an agreement to only consider in their determination substantive objections from the state agencies who had to be notified. The Appellate Court found the state agencies' objections to lack substance, and reversed the decision of the District Court. On remand, the Corps was instructed not to consider any previously filed objections from the state agencies since they were not specific in nature. 6/ Following remand, the Corps notified Lujan that viewed from the context of its 1975 regulations, the interior of Enchanted Island was deemed a wetlands area which could not be filled absent a Corps permit. The District court found, however, that since the Corps acted improvidently in stopping Lujan's activities in January 1973, it would be inequitable for the Corps to retroactively apply its wetlands policy to Lujan's property. Succinctly, the court found in its order of April 26, 1985, that: In 1972, when Lujan initially was ordered to cease work on the road, Corps jurisdiction was not exercised above MHTL. Its 1975 regulations created a "wetlands policy" which asserted jurisdiction over activities above MHTL. Had the Corps not interfered capriciously with Lujan's activities, he would have completed his fill project prior to the change in regulations and the project would have been "grand fathered in" ... Retroactive application of the permitting requirement is not appropriate. Consequently, the court held: The Corps is directed to reopen the permit application only with respect to the western access strip and only so that the administrative process may effec- tuate a reasonable restoration plan. No permitting is required as to Enchanted Island above MHTL, and the Corps is enjoined from exercis- ing jurisdiction over the area (to the extent that Lujan's activities do not affect navigable waters, which would confer jurisdiction upon the Corps). The parties shall meet, formulate an agreed restoration order, and submit it to the court for evaluation within sixty (60) days of this order. (Emphasis added). Lujan and the Corps experienced no difficulty in formulating an agreed restoration plan for the western access road; however, they reached an impass when Lujan insisted that the plan include approval of his desire to fill the interior of Enchanted Island to +4' MHW. While it took no exception to the court's order that it not exercise jurisdiction over the interior of Enchanted Island, the Corps refused to agree that a provision directing the filling of the interior of the island was appropriate. According to the Corps, such matters were not a subject matter of the current litigation and could be an infringement upon county and state permitting requirements. At a hearing held November 15, 1985, at which Mr. Lujan was present, the court concurred with the Corps and directed that any language which referred to raising the existing uplands of Enchanted Island to +4' MHW be deleted. Notwithstanding the court's instruction that the restoration plan contain no reference to filling the uplands of the island, the plans attached to the consent agreement still contained such language, in brackets, when submitted to the court. By order of December 20, 1985, the court ratified the restoration plan, as submitted; however, by order of February 14, 1986, the court corrected its oversight by deleting the bracketed language which dealt with filling the uplands of the island. Current Development Activities On January 6, 1986, Lujan applied with the Florida Department of Transportation (DOT) for a driveway permit which would allow him to connect the western access road through DOT right-of-way to U.S. Highway 1. Receipt of this permit was crucial to Lujan's plans, since at sometime subsequent to January 4, 1973, the portion of the western access road which occupied DOT right-of-way had been removed, creating a water gap in the road. On January 8, 1986, the requested permit was granted, with the following legend stamped conspicuously thereon: VALIDITY OF THIS PERMIT IS CONTINGENT UPON PERMITTEE OBTAINING NECESSARY PERMITS FROM ALL OTHER AGENCIES INVOLVED. On January 14, 1986, Lujan began to prepare the island to receive fill. On that day Lujan filled the "water gap" in the access road and began the process of leveling the high and low portions of the island by bulldozing on the southerly end of the island. It was Lujan's intention to level to the north end of the island and along the access road, and then fill and grade the island. At approximately 5:30 p.m., January 14, 1986, George Garrett, a Monroe County biologist, arrived on the job site with the announced intention of red tagging it since no county permits had been obtained. In response, Lujan exhibited a copy of the District Court's order. Mr. Garrett, at that point, elected not to red tag the job site and requested that Lujan with his supervisor the next day. 7/ Mr. Garrett's request that Lujan meet with his supervisor the next day regarding the project did nothing to deter Lujan's clearing efforts. The proof establishes that when Mr. Garrett left the island on January 14, 1986, there had been some scarification at the southerly end of the island, but the mangrove community which dominated the central portion of the island, discussed infra, had not been disturbed. At 8:30 a.m., January 16, 1986, when the island was again inspected, the island had been cleared of most vegetation and leveled, and the mangroves which had occupied the interior of the island were now resting in several large piles of debris. On January 15, 1986, Lujan met with Bob Herman, Mr. Garrett's supervisor, to discuss the activities which were occurring on the island. As a consequence of that meeting, the job site was red tagged pending Lujan's application for and receipt of Monroe County permits. On January 15, 1986, Lujan filed an application with Monroe County for a fill permit which would permit him to fill the island to +4' MHW and restore the western access road, as well as a land clearing permit which would permit him, after the fact, to clear the island of vegetation. Attached to the applications were copies of the District Court's order of December 20, 1985, and the consent agreement of December 16, 1985. On each application Lujan affixed the following legend: This application is without waiver of applicant's rights in Case Nos. 75-150-CIV-EBD and 75-635-CIV-EBD and position that no permits may be required and that such permits (if any) should be processed using 1972 county laws then in effect. Lujan's applications were not accompanied by a vegetation survey and plot plan as required by Chapters 4 and 18, Monroe County Code, infra. The applications were, however, accompanied by a copy of the December 16, 1985, consent agreement, which contained plans for the restoration of the westerly access road. These plans delineated the areas to be filled, the location of culverts, and the location and elevations of the proposed paved access road. On February 4, 1986, upon instructions from its County Attorney, Monroe County issued a fill permit and land clearing permit to Lujan despite his failure to provide a vegetation survey or disclose his development plans for the island. Each permit contained the following remarks: Said permit issued in accord with the Federal Court Orders entered by Judge Ned Davis on the 26th day of April, 1985, and on the 20th day of December, 1985. Immediately upon receipt of the county permits, Lujan began to fill the interior of the island and restore the westerly access road as rapidly as possible. According to Lujan, he had a contract to obtain fill on advantageous terms if he could promptly remove it from the Key West naval station. By February 14, 1986, auspiciously, Enchanted Island had been cleared of vegetation and its elevation raised to +4' MHW, and the access road restored. On February 20, 1986, the Department of Community affairs (Department) noticed its appeal of the Monroe County permits to the Adjudicatory Commissions. 8/ Enchanted Island At the time Lujan was stopped by the Corps on January 4, 1973, the topography of Enchanted Island had been altered by the establishment of a perimeter road around its boundaries above the MHW mark, and its westerly access road restored. Mangroves fringed the island waterward of the perimeter road, but none existed along the newly restored access road. The interior of the island, located upland of the perimeter road, was not shown to have been significantly altered at that time. On January 14, 1986, when Lujan began to clear and grade the island, its topography had not changed significantly from January 1973; the perimeter of the island was still defined by a roadway above MW and the fringing mangroves waterward of the road still stood. At the center of the island, upland from the perimeter road, a depression existed which covered approximately 15-25 percent of the island's lands and which was characterized by red, black and white mangroves, as well as some buttonwood. This depression was saturated by water at a frequency and duration adequate to support its wetlands species; however, since it was located upland of the MHW mark the Source of its waters was most probably from percolation and rainfall. Located elsewhere on the interior of the island were buttonwood, Bay Cedar and sea oxeye daisy. By January 16, 1986, Lujan had cleared the interior of the island of any significant vegetation, and leveled it. The mangroves, which now fringed portions of the access road, as well as those which fringed the island, were not, however, disturbed. Monroe County Regulations Chapter 4, Article II, of the Monroe County Code (MCC) establishes and regulates development within a shoreline protection zone. Pursuant to Section 4-18, MCC, the zone is established as follows: There is hereby established a shoreline protection zone in all that portion of the county defined in Section 22F-8.02, Florida Administrative Code, and generally known as the Florida Keys. The shoreline protection zone includes submerged lands covered by the waters of the Atlantic Ocean and the Gulf of Mexico (Florida Bay) out to the seaward limit of the State's territorial boundaries, whether in sovereign or private ownership, including those lands contiguous to such waters where fringing mangrove communities occur. In order to maintain the functional integrity of these mangrove communities, the interior boundary of the shoreline protec- tion zone is hereby established at a line extending fifty (50) feet laterally upland from the landward limit of the shoreline mangroves. The shoreline mangroves shall include mangrove communities which contain red (Rhizophora mangle), black (Avicennia nitida) or white (Laguncularia racemosa) mangroves but excluding those mangrove communities which are isolated inland and separated from open water areas by nonmangrove natural vegetative communities. Consequently, all of the western access road and the portion of Enchanted Island lying within 50' upland from the landward limit of the shoreline mangroves are within the shoreline protection zone. The mangroves which occupied the depressed area in the central portion of the island were not, however, within the zone. Pemittable uses within the shoreline protection zone are delineated by sections 4-19 and 4-20, MCC, as follows: Sec. 4-19. Permitted uses in zone. Only the following uses are permitted within the shoreline protection zone established by this article: Access canals or channels; Docks; Elevated boardwalks; Other structures elevated on pilings; Utility lines, crossing or rights-of-way. Sec. 4-20. Uses permitted upon special approval; special exception uses. The following uses are permitted by special approval of the zoning board as provided by the provisions of chapter 19, article IV of this Code of Ordinances. Access driveways and turnarounds for single-family residences. [Additionally] ... the follow- ing standards shall also be met before the zoning board may grant approval for a special exceptions use within the shoreline protection zone: The principal structure shall be located as close as possible to the landward edge of site so as to reduce driveway length. All access driveways and turnarounds shall provide for piped culverts under the access driveway and/or turnaround at appropriate intervals so as to maintain tidal regime. To secure a permit for development within the shoreline protection zone, whether for a permitted use or special exception use, it is incumbent upon the applicant to comply with the provisions of section 4-21, MCC. That section provides: No development permit of any kind shall be issued to any person to undertake any development within the shoreline protection zone without first obtaining a zoning clearance from the zoning official. An application for any development permit within the shoreline protection zone shall be referred to the zoning official. The materials to be referred to the zoning official shall include the following, in duplicate: Proposed site plan A natural vegetation map Other information as may be appropriate to determine the impact of the development on the natural functions of the shoreline protection zone. The placement of landfill within the shoreline protection zone is hereby prohibited and no permit shall be issued authorizing the same, except as provided in section 4-20 of this article. No application for a zoning clearance shall be approved and no permit shall be issued except upon a written finding by the zoning board 9/ that the proposed development will not encroach upon or destroy the value of areas within the shoreline protection zone or otherwise adversely affect those conditions and characteristics which promote shoreline stabilization, storm surge abatement, water quality maintenance, wildlife and marine resource habitats, and marine productivity. Lujan's proof in support of his request for a fill permit within the shoreline protection zone was deficient. He offered no natural vegetation map or proposed site plan, and offered no proof that his proposed activity would not encroach upon or destroy the value of the shoreline protection zone or otherwise adversely affect shoreline stabilization, storm surge abatement, water quality maintenance, wildlife and marine habitats, and marine productivity. Significantly, Lujan also failed to disclose his plans for the development or use of the island. Absent proof that the fill activity is designed to create an access driveway or turnaround for single-family residences, the deposit of fill within the shoreline protection zone is prohibited. 10/ Section 4-21(c), MCC. Under the circumstances, it is concluded that Lujan has failed to demonstrate that he is entitled to a special exception use which would permit the deposit of fill on the westerly access road or upon those lands lying within 50' upland from the landward limit of the shoreline mangroves (the shoreline protection zone). Lujan's failure to disclose the nature of his plans to develop the island also rendered it impossible to evaluate the criteria established by section 4-20(b)(1), MCC. The deposit of fill within those areas of Enchanted Island lying upland of the shoreline protection zone is governed by chapter 19, MCC. Pertinent to this proceeding, section 9-111, MCC, provides: (a) Deposit of Fill. No person shall engage in the deposit of fill within the unincorporated areas of Monroe County, without first having obtained a county permit for such activity. (1) Definitions. Deposit: The act of placing, discharging or spreading any fill material. Fill: Any material used or deposited to change elevation or contour in upland areas, create dry land from wetlands or marsh in an aquatic area, or material discharged into a body of water to change depth or benthic contour. * * * Uplands: Land areas upon which the dominant vegetative communities are other than species which require saturated soil for growth and propagation. Wetlands: Aarshes and shallow areas which may periodically be inundated by tidal waters and which are normally characterized by the prevalence of salt and brackish water vegetation capable of growth and reproduction in saturated soil, including but not limited to the following species: * * * Black mangrove Buttonwood Red mangrove White mangrove * * * * * * * * * * * * Upland permit application. In reviewing all applications for a permit in upland areas, consideration will be given to the nature of indigenous vegetation, and protection of same as defined in chapter 18 of the Monroe County Code, which set standards for the removal of endangered and protected vegetative species, and to drainage patterns and the possible effects the deposit of fill would have upon water and storm runoff. * * * Wetland permit application. In reviewing all applications for a permit in wetland areas, consideration will be given to the natural biological functions, including food chain production, general habitat, nesting, spawning, rearing and resting sites for aquatic or terrestrial species; the physical aspects of natural drainage, salinity and sedimenta- tion patterns, physical protection provided by wetland vegetation from storm and wave action. The proposal will also be reviewed in conjunction with chapter 4 of the Monroe County Code, which provides for the protection of wetland vegetative communities within Monroe County. When reviewing applications for fill permits, whether within or without the shoreline protection zone, the provisions of Chapter 18, MCC, and the Monroe County Comprehensive plan, which deal with land clearing, must also be evaluated. Pertinent to this case, chapter 18 provides: Sec. 18-18. Land clearing permit -- Required ... It shall be unlawful and an offense against the county for any person, either individually or through agents, employees or independent contractors, to clear, by mechanical or any other means, any land located within the unincorporated areas of the county without having first applied for and obtained a land clearing permit from the building department of the county. A land clearing permit shall be required for the removal of all or parts of naturally occurring vegetation in the county. * * * Sec. 18-19. Same -- Application (a) Any person requesting a land clearing permit shall file an application with the county building department on a form provided by such department. Such application shall contain the following information: * * * A map of the natural vegeta- tive communities found on and adjacent to the site, prepared by a qualified biologist, naturalist, landscape archi- tect or other professional with a working knowledge of the native vegetation of the Florida Keys ... With projects that are five (5) acres or more in size, the vegetation map does not have to identify the location of individual trees. For projects of this size, the vegetation map should identify the different vegetative communities, such as tropical hammock, mangrove and buttonwood transitional, and be accompanied by a descriptive narrative that identifies any significant trees or natural features of the side (sic). An overall site plan of the land for which the permit is requested, indicating - the shape and dimensions of said land, the purposes for which clearing is requested, and the steps taken to minimize effects of clearing on surrounding vegetation and water bodies. A site plan analysis prepared by a qualified individual, as described above in (3), shall be included. * * * Sec. 18-21. Same -- Approval. After an application for a land clearing permit has been filed and verified, the building department and the planning and zoning department shall review and consider what effects such removal of vegetation will have upon the natural resources, scenic amenities and water quality on and adjacent to the proposed site. Upon finding that such removal of natural vegetation will not adversely affect the natural resources, scenic amenities and water quality adjacent to the proposed site, the permit shall be approved, approved subject to modification or specified conditions, or denied. In the event a request is denied, the reasons for denial shall be noted on the application form and the applicant shall be so notified. Pertinent to this case, the Monroe County Comprehensive Plan, Coastal Zone Protection and Conservation Element, provides: NATURAL VEGETATION MANAGEMENT POLICIES In recognizing the need to preserve as much natural vegetation as possible, the County will direct its land use and development regulations to minimize destruction of natural vegetation and modification of landscape. Guidelines and performance stan- dards designed to protect natural vegetation from development will be developed and enforced. Clearing of native vegetation for development will be controlled. Land clearing will be restricted to site area being prepared for immediate construction. If the construction cannot begin within reasonable time, the cleared area will be replanted with ground cover. * * * 3. Regulations controlling development in areas characterized primarily by wetland vegetative species such as mangrove and associated vegetation will emphasize preservation of natural vegetation to the maximum degree possible. Local regulations in this regard will be consistent with the appropriate State and Federal regulations. 8. The existing County ordinances designed to protect and conserve natural vegetation will be strictly interpreted, rigidly enforced, and/or amended when necessary. Lujan violated the provisions of sections 9-111 and 18-18, MCC, when he, without benefit of a permit, leveled and cleared Enchanted Island of vegetation. Now, after the fact, he requests the appropriate fill and land clearing permits; however, he offers no vegetation map, no plan to mitigate the removal of endangered and protected species, and no proof as to the drainage patterns on the island and the probable effect the deposit of fill or the removal of vegetation would have upon storm runoff or water quality. While no vegetation map was submitted, the proof at hearing did establish the general nature of the vegetation existent on the island prior to clearing. That proof established that the mangrove community previously located at the center of the island reposed in relative isolation, and that its natural biological functions were nominal. Consequently, the removal of that vegetation was not counterindicated from the biological function perspective; however, the impact of such removal and the filling of that area on storm runoff and water quality was not addressed by Lujan. Further, Lujan offered no plan to mitigate the impact caused by his removal of Bay Cedart, and endangered species. With respect to the access road, Lujan offered no vegetation survey, and the proof was insufficient to assure that only minimal clearing would occur. Additionally, Lujan offered no proof concerning the impact that such removal, if any, and the deposit of fill would have on drainage patterns, storm runoff, or water quality. The premises considered, it is concluded that Lujan has failed to demonstrate his entitlement to a fill permit or land clearing permit for Enchanted Island and the access road. In addition to the reasons set forth in paragraphs 27-28, supra, Lujan has also failed to address the issues of storm runoff and water quality.
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 reversing Monroe County's decision to issue the subject permits No. 14723A and 14724A, and deny Lujan's request for a land clearing and fill permit for Enchanted Island and the westerly access road. That such Final Order specify those items set forth in paragraph 10, Conclusions of Law, as the changes necessary that would make Lujan's proposal eligible to receive the requested permits. DONE AND ORDERED this 9th day of April, 1987, in Tallahassee, Florida. WILLIAM J. KENDRICK 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 9th day of April, 1987.
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Closing File in this proceeding. A copy of the Order is attached to this Final Order as Exhibit A.
Other Judicial Opinions THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b)(1)(C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399 2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. Final Order No. DCA10-GM-110 MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies en furnished in the manner shown below to each of the persons listed below on this day of fii “4 , 2010. aula Ford, Agency Clerk Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 By U.S. Mail and electronic mail: Jerri A. Blair, Esq. City Attorney City of Wildwood Post Office Box 130 Tavares, FL 32778-3809 jblair710@aol.com Cecelia Bonifay, Esq. Akerman Senterfitt 420 S. Orange Avenue, Suite 1200 Orlando, FL 32801 cecelia.bonifay@akerman.com By Hand Delivery and electronic mail: David L. Jordan, Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399 david.jordan@dca.state.fl.us Linda Loomis Shelley, Esq. Fowler White Boggs Banker Post Office Box 11240 Tallahassee, FL 32302-3240 Ishelley@fowlerwhite.com By Filing with DOAH: The Honorable J. Lawrence Johnston Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-3060
The Issue The issue is whether a development order adopted by Respondent City of Marathon by Resolution PC00-09-04 is consistent with the comprehensive plan, land development regulations, and statutes.
Findings Of Fact Respondent City of Marathon (Marathon) was incorporated on November 30, 1999. It adopted as its land development regulations (LDR) the LDRs of Monroe County in effect at the time of Marathon's incorporation. Marathon is within The Florida Keys Area of Critical State Concern. This case involves a development order that Marathon issued to Respondent Banana Bay of Marathon, Inc. (BB). As Planning Commission Resolution 00-09-04, the development order authorizes BB to add 12 motel rooms to an existing motel in return for imposing certain restrictions on the use of wet slips at its adjacent marina that is part of the same motel/marina development. The restrictions require the removal of cable television connections from 12 slips and limitation upon vessels using these 12 slips to those without plumbing facilities. For the remaining wet slips at the marina, the development order requires BB to limit their use to no more than 18 vessels at one time and to provide mandatory sewage pumpout for these vessels. At various points in the record and this recommended order, references to a "transfer" of 12 marina slips for 12 motel rooms refer to the conditions set forth in this paragraph. BB owns 7.39 acres of upland and 2.67 acres of adjacent bay bottom in Marathon at mile marker 49.5 (Subject Property or, as developed, Banana Bay). The Subject Property runs from U.S. Route 1 to the water. The Subject Property contains 60 motel rooms in two buildings, a conference room, a motel office, support buildings, three apartments suitable for employee use, and a marina. The marina includes 40-50 slips, depending upon the size of the moored vessels. The Subject Property is zoned Suburban Commercial (SC) and Mixed Use (MU). About 2.4 acres (104,544 square feet) running about 350 feet from U.S. Route 1 is SC. About 4.99 acres (217,364 square feet) is zoned MU. The additional 2.67 acres of adjacent bay bottom are also zoned MU, although the submerged acreage is unimportant for reasons discussed below. Twenty-five of the motel rooms are in SC, and 35 of the motel rooms are in MU, although the distinction between zoning districts is also unimportant for reasons discussed below. LDR Code Section 9.5-267 authorizes ten "rooms" per ”acre" as "allocated density" for motel uses in SC and MU and 15 "rooms" per "buildable acre" as "maximum net density" for motel uses in SC and MU. (There is no difference between "hotels" and "motels" in this case; all references to "motels" include "hotels.") Three fundamental questions emerge concerning the application of these two density limitations to this case. The first is whether BB must satisfy both the "allocated density" and "maximum net density" limitation. This is not a difficult issue; BB's proposal must satisfy each of these density limitations. The second question is what is included in the areas under each of these density limitations. Notwithstanding the use of "gross acres" in the "allocated density" formula, it is necessary to net out certain areas--just less than is netted out in the "maximum net density" formula. The third question is what constitutes a "room." When applied to marine-based units, the definition of a "room" presents a difficult and important issue. As a whole, the LDRs imply that no marine-based dwelling units should count as "rooms," but one provision specifically requires the inclusion of "live-aboard" units in density calculations. The first question requires little analysis. As noted below in the discussion of the two types of areas, "allocated density" and "maximum net density" provide two separate measures of the intensity of use of land. The allowable density for "maximum net density" is never less than the allowable density for "allocated density" because "maximum net density" is a safeguard to ensure that, after netting out from the parcel those areas reserved for open space, setbacks, and buffers, the intensity of use will not be excessive. Nothing whatsoever in the LDRs suggests that Marathon may issue a development order for a proposal that satisfies the "maximum net density," but not the "allocated density." These two densities limitations operate in tandem, not in the alternative. The calculation of the "allocated density" requires consideration of the second and third questions identified above. The issue of area seems straightforward. LDR Code Section 9.5-4(D-3) defines "density or allocated density" as "the number of dwelling units or rooms allocated per gross acre of land by the plan." LDR Code Section 9.5-4(D-4) defines "maximum net density" as "the maximum density permitted to be developed per unit of land on the net buildable area of a site, as measured in dwelling units or rooms per acre." LDR Code Section 9.5-4(G-4) defines "gross area" as "the total acreage of a site less submerged lands and any dedicated public rights-of-way." LDR Code Section 9.5-4(N-4) defines "net buildable area" as "that portion of a parcel of land which is developable and is not open space required by section 9.5-262 or 9.5-343 or required minimum bufferyard under article VII division 11 or required setbacks under section 9.5-281." The area of land involved in determining "allocated density" is greater than the area of land involved in determining "maximum net density." But the area of land involved in determining "allocated density" is itself a net amount. The LDRs expressly require reducing the gross areas by any submerged land and dedicated public rights-of-way. However, any reasonable application of the LDRs also requires reducing the gross areas used for the motel "allocated density" calculation by the minimum areas required to support other uses on the Subject Property. If the only use of the Subject Property were motel rooms, the "allocated density" limit of ten units per acre (10:1) would allow 73.9 rooms. But the Marathon Planning Commission Staff Report dated September 18, 2000, correctly netted from the Subject Property the land areas required to support the commercial aspects of the hotel and the commercial apartments. These reductions leave a total of 5.86 acres available to support the motel rooms. At a density of 10:1, the Subject Property could therefore support a total of 58 motel rooms. The Planning Commission incorrectly used the 15:1 ratio for "maximum net density" in concluding that the Subject Property could support a total of 67.65 motel rooms. Evidently, the Planning Commission used the "maximum net density" because it was not using "gross area" or "gross acres" (the terms are synonymous under the Code) in calculating the area. The netting reduction necessary to calculate whether BB's proposal satisfies the "maximum net density" limitation would require the calculation of the area of the Subject Property that must be devoted to open space, setbacks, and buffers. The Planning Commission probably undertook this step in calculating the "maximum net density" for the Subject Property, as its figures seem to include unstated deductions for the 20 percent open space plus another factor, probably for setbacks and buffers--all of which are discussed in its report. However, the Planning Commission erroneously neglected to apply the "allocated density" limitation to the "gross acres," exclusive of submerged land, public rights-of-way, and the minimum land required to support the other upland uses. As noted above, doing so would have yielded no more than 58 motel rooms. At present, the Subject Property contains 60 hotel or motel rooms. The Subject Property therefore cannot support the addition of another 12 hotel or motel rooms, given its "allocated density" of only 58 rooms. In general, BB justifies the addition of 12 rooms to the front motel by arguing that it is only transferring these units from the 12 existing wet slips. It is unnecessary to determine whether a transfer under these facts is lawful when, if these 12 slips count as units, the Subject Property is already 14 units over its "allocated density." The resolution of the third question--what constitutes a "room"--dispenses with this argument. Thirty of the existing 40-50 boat slips in the marina have water, electric, and cable hook-ups and are presently used for some form of habitation. Most vessels berth at the marina for two or three days, although the average stay is slightly over one month. The average stay at the 30 slips offering utilities, though, is two to three months. Typically, two persons use a vessel berthed at the marina for more than a couple of days. BB seals the discharge ports of all vessels mooring at the marina for any appreciable period of time. BB provides a sewage pumpout service for these and other vessels. The wastewater from the marina operations goes to a septic tank, in contrast to the wastewater from the motel operations, which goes to an onsite package plant. Persons mooring at the marina for at least two months normally obtain telephone service and may obtain cable television service, in addition to the potable water and electrical services provided by BB. The marina also provides rest rooms, laundry facilities, showers, a bar, limited food service, and a mail box. However, BB rules require that all persons berthing at the marina register a permanent address because the slips are "not considered permanent housing." At the request of the Florida Keys Aqueduct Authority and the Monroe County Planning Department, BB has limited rental agreements at the marina to a maximum of one month, although some persons enter into back-to-back rental agreements. Persons staying more than one week often have cars. Contrary to BB's contentions, none of these slips provides additional density for the Subject Property, and therefore the 12 slips are not available for transfer to the motel. For the same reason, as discussed below, the proposed transfer of the 12 units would also violate the Rate of Growth Ordinance (ROGO). In two respects, the record reveals that the conversion of marine-based residential uses to upland residential uses might facilitate the achievement of important land use planning objectives. First, the wastewater collected from the marina is directed to a septic tank, and the wastewater collected from the motel is directed to a package plant. Absent a significantly reduced flow from the marine-based residential use, the upland residential use would therefore impact the adjacent waters to a lesser extent. Second, marine-based residential users may be more reluctant to evacuate for an approaching hurricane than upland residential users. Absent a significantly greater number of visitors during hurricane season if the 12 units were taken from the marina slips and added to the motel, the upland residential use might therefore facilitate timely hurricane evacuation of the vulnerable Keys. However, the record was relatively undeveloped on these two points, and these possible advantages to the conversion of marine-based residential uses to upland-based residential uses do not override the LDRs. The LDRs may treat the more intense residential use associated with "live-aboards" differently than the less intense residential use associated with other moored vessels. Although the LDRs' treatment of "live-aboards" may not be entirely consistent, any inconsistency is irrelevant in this case because the moored vessels at the Banana Bay marina do not qualify as "live-aboards." As stipulated for the purpose of this case, LDR Code Section 9.5-4(T-4) defines a "transient residential unit" as "a dwelling unit used for transient housing such as a hotel or motel room, or space for parking a recreational vehicle or travel trailer." LDR Code Section 9.5-4(D-31) defines a "dwelling unit" as "one (1) or more rooms physically arranged to create a housekeeping establishment for occupancy by one (1) family with separate toilet facilities." LDR Code Sections 9.5-4(D-23) through 9.5-4(D-30) identify the various types of dwellings that may contain "dwelling units.” These dwellings are, respectively, detached zero-lot-line dwellings, multifamily apartment dwellings, attached dwellings, detached individual dwellings, duplex dwellings, commercial apartment dwellings, rooftop dwellings, and townhouse dwellings. The frequent references to "open yards" in these definitions precludes the application of these definitions to moored vessels, even "live- aboards." The exclusion of all moored vessels, including "live-aboards," from density calculations is also suggested by two other portions of the LDRs. As is typical, LDR Code Section 9.5-120.1 provides that the mechanism for enforcing density limitations is in the issuance of building permits, but this enforcement mechanism is of doubtful use in regulating vessel moorings, which do not typically involve the issuance of a building permit. Also, the density definitions discussed above both refer to the development of various types of residential uses on "land." Moreover, none of the zoning districts established in Marathon's LDRs measures the intensity of marina uses, including vessels moored for extended periods as live-aboards, by imposing some sort of marine density limitation, either by including the moored dwelling units or the submerged acreage. Because the LDRs did not intend to include such marine-based uses in density calculations, LDR Code Section 9.5-267, which is a table setting forth "allocated densities" and "maximum net densities," covers only upland-based uses, including recreational vehicle or campground spaces per acre, and does not extent to marine-based uses, such as live-aboard marina slips. However, two provisions in the LDRs require density calculations to include "live-aboards." LDR Code Section 9.5-308, which seems to be an older provision in the LDRs, provides that "each live-aboard shall count as a dwelling unit for the purpose of calculating density limitations in the district in which it is permitted." Better incorporated into the present regulatory scheme of the LDRs, LDR Code Section 9.5-120.1 defines a "residential dwelling unit" as a "dwelling unit," including a "transient rental unit," as defined in LDR Code Section 9.5-4(T-3), and "live-aboard vessels," as defined in LDR Code Section 9.5-4(L-6). However, LDR Code Section 9.5-4((L-6) states that a "live-aboard vessel" is "any vessel used solely as a residence or any vessel represented as a place of business, a professional or other commercial enterprise, or a legal residence." The record does not suggest that any of the moored vessels were used "solely" as a residence, as distinguished, for instance, from a vessel used for residential and recreational purposes, or that any of the mixed-use vessels served as the occupants' legal residence. Absent a finding that the moored vessels constitute "transient residential units," ROGO does not support this proposed transfer of residential uses from marine-based to upland-based. LDR Code Section 9.5-123(f)(3) authorizes the transfer of an existing "residential dwelling unit" from one site to another within the same subarea. However, LDR Code Section 9.5-122 defines a "residential dwelling unit" to extend only to "live-aboards." For the reasons already discussed, the less intense residential uses associated with the vessels moored at Banana Bay's marina preclude their treatment as "residential dwelling units" eligible for transfer to the motel. Petitioner has proved that the development order is materially inconsistent with the LDRs. LDR provisions governing the density and intensity of residential development go to the heart of effective land use planning, especially in an area as sensitive as the Keys. For these reason, it is unnecessary to consider the consistency of the development order with the more general provisions of Marathon's comprehensive plan, on which Marathon's LDRs are based.
Recommendation It is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a final order denying the request of Banana Bay of Marathon, Inc., to approve the transfer of 12 slips to 12 rooms in a motel on the Subject Property. DONE AND ENTERED this 7th day of December, 2001, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 7th day of December, 2001. COPIES FURNISHED: Barbara L. Leighty, Clerk Growth Management and Strategic Planning The Capitol, Suite 2105 Tallahassee, Florida 32399 Charles Canaday, General Counsel Office of the Governor Department of Legal Affairs The Capitol, Suite 209 Tallahassee, Florida 32399-1001 Cari L. Roth, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Mitchell A. Bierman Weiss Serota 2665 South Bayshore Drive Suite 420 Miami, Florida 33133 James S. Mattson James S. Mattson, P.A. Post Office Box 586 Key Largo, Florida 33037
Findings Of Fact The Subject Property. The property at issue in this proceeding consists of approximately 205 acres of land located in Clay County, Florida. The subject property is known as "Station Pond (Oak Forest Extension)." Station Pond was subdivided into 40 lots by an unrecorded subdivision plat. The lots range in size from approximately three to fifteen or twenty acres. Roads, which are unpaved, surrounding Station Pond, and drainage for Station Pond, are privately owned. The roads and drainage were completed prior to December of 1978. A boundary survey of Station Pond was prepared and contains a surveyor's certification of January 8, 1980. Pre-1985 Subdivision Regulations of Clay County. Prior to September of 1985 Clay County did not require platting of subdivisions such as Station Pond. In September of 1985, Clay County adopted Ordinance 85-68 creating three types of subdivisions and providing for the regulation thereof. An exception to these requirements, however, was included in Ordinance 85-68: subdivisions shown on a certified survey prior to September of 1985 with lots and roads laid out would continue to not be subject to regulation so long as the lots continue to comport with the survey. Government Action Relied Upon Before the Applicant's Sale of the Property. The Applicant was aware that it could develop Station Pond as an unrecorded subdivision in Clay County. The development of Station Pond comes within the exception to Ordinance 85-58. In a letter dated December 15, 1978 the Clay County Director of Planning and Zoning informed the Applicant that Oak Forest Clay County would "issue building permits in accordance with the uses permitted and lot/building requirements for an Agricultural zoned district, and in accordance with all other local ordinance provisions, state statutes, etc., as enclosed." This representation was based upon the conclusion of Clay County that Oak Forest was not subject to Clay County subdivision ordinances. Similar conclusions were reached by the Clay County Health Department in a letter dated September 8, 1978, and by the Clay County Public Works Director in a letter dated December 18, 1978. The Applicant's Detrimental Reliance. The Applicant's predecessor corporation provided dirt roads around part of Station Pond. The roads were constructed prior to December of 1978. The costs of the roads incurred by the Applicant was approximately $15,000.00. Rights That Will Be Destroyed. If the Applicant must comply with the Clay County comprehensive plan it will be required to pave the roads of the subdivision and provide an approximately 3 mile long paved access road. Procedural Requirements. The parties stipulated that the procedural requirements of Vested Rights Review Process of Clay County, adopted by Clay County Ordinance 92-18, as amended, have been met.
The Issue The issue in this case is whether the amendment to the Lee County Comprehensive Plan adopted by Ordinance No. 05-20 is "in compliance," as that term is defined in Section 163.3184(1)(b), Florida Statutes (2005),1 for the reasons set forth in the Petition for Formal Administrative Hearing and Statement of Intent filed by the Department of Community Affairs ("the Department").
Findings Of Fact The Parties The Department is the state land planning agency and is statutorily charged with the duty of reviewing comprehensive plans and their amendments, and determining whether a plan or amendment is “in compliance,” as that term is defined in Section 163.3184(1)(b), Florida Statutes. Lee County is a political subdivision of the State of Florida and has adopted a comprehensive plan that it amends from time to time pursuant to Section 163.3167(1)(b), Florida Statutes. Leeward is a Florida limited liability company that owns a portion of the real property that is the subject of the amendment at issue. The Amendment The amendment would change the future land use designation for 41.28 acres in the northeast quadrant of the Interstate 75 (I-75)/State Road 80 (SR 80) interchange from General Commercial Interchange to Urban Community, as shown on the FLUM. The General Commercial Interchange land use is described in the County Plan as “intended primarily for general community commercial land uses: retail, planned commercial districts, shopping, office, financial, and business.” It does not allow residential development. The Urban Community land use provides for a mix of residential, commercial, public, quasi-public, and limited light industrial uses. The standard density range for residential uses in the Urban Community category is one to six dwelling units per acre (du/a). The 41.28 acres affected by the amendment ("the amendment site") consist of 19.28 acres of lands along the Orange River owned by Leeward, a platted subdivision known as Dos Rios of approximately 11 acres, and the remaining acreage consists of right-of-way for SR 80 and I-75. Currently operating on Leeward's property is a vessel repair facility, a marina with wet and dry slips, and an ecotourism company. Leeward also has its office on the site. The Dos Rios subdivision includes 26 single-family lots. Apparently, only a few of the lots (the number was not established in the record) have been developed. Because residential land uses are not allowed in the General Commercial Interchange category, the Dos Rios lots were non-conforming uses. Maximum Allowed Density The County Plan provides residential density bonuses to promote various County objectives, such as the provision of affordable housing. With density bonuses, lands designated Urban Community can boost their density to a maximum of ten du/a. There was testimony presented by Leeward that the County has not often approved applications for density bonuses. Even if the practice of the County in approving density bonuses were relevant, the practice can change. It is reasonable for the Department to consider the maximum intensity or density associated with a future land use designation when determining whether a FLUM amendment is in compliance. Therefore, in this case, it is reasonable to consider the Urban Community land use designation as allowing up to ten du/a. The Department asserts that the amendment would allow the 41.2 acres affected by the amendment to have a total of 412 dwelling units (41.2 acres x 10 du/a). Leeward disputed that figure because the 41.2 acres includes road right-of-way and the Dos Rios subdivision. A hearing officer appointed to review a Lee County development order recently determined that right-of-way external to a development should not be included in calculating allowable units, and the County accepted the hearing officer's recommendation based on that determination. The definition of "density" in the County Plan supports the determination.2 Therefore, for the purposes of this case, the right-of-way in the northeast quadrant should not be included in calculating the maximum residential density that would result from the amendment. On the other hand, Leeward's argument that the Dos Rios subdivision acreage should not be included in the ten du/a calculation is rejected. For the purposes of an "in compliance" determination, it is reasonable for the Department to apply the maximum potential densities to all developable and re- developable acreage. Using 29 acres as the approximate acreage affected by the amendment when road right-of-way is subtracted, the amendment would create the potential for 290 residences in the northeast quadrant of the interchange. Adoption of the Amendment The amendment was initiated as part of the County's reexamination of the existing land use designations in the four quadrants of the I-75/SR 80 interchange. Following the County planning staff's completion of a study of the entire interchange, it recommended several changes to the County Plan, but no change was recommended for the northeast quadrant. Apparently, the amendment at issue was urged by Leeward, and, at a public hearing held on June 1, 2005, the Board of County Commissioners voted to adopt the amendment. Pursuant to Section 163.3184(6), Florida Statutes, the proposed amendment was forwarded to the Department for an "in compliance" review. Following its review, the Department issued its ORC Report on August 19, 2005. In the ORC Report, the Department objected to the proposed amendment based upon what it considered to be inappropriate residential densities in the coastal high hazard area (CHHA) and floodplain. The Department recommended that the County not adopt the proposed amendment. On October 12, 2005, another public hearing was held before the Board of County Commissioners to consider adoption of the amendment. At the public hearing, the County planning staff recommended that the land use designation in the northeast quadrant not be changed to Urban Community "due to the potential increase in density in the Coastal High Hazard Area." Nevertheless, the Board of County Commissioners approved the amendment. Representatives of Leeward appeared and submitted comments in support of the amendment at the public hearings before the Board of County Commissioners. On December 16, 2005, the Department issued its Statement of Intent to Find Comprehensive Plan Amendment Not in Compliance, identifying three reasons for its determination: (1) inconsistency with state law regarding development in the CHHA and flood prone areas, (2) internal inconsistency with provisions of the County Plan requiring the consideration of residential density reductions in undeveloped areas within the CHHA, and (3) inconsistency with the State Comprehensive Plan regarding subsidizing development in the CHHA and regulating areas subject to seasonal or periodic flooding. On January 5, 2006, the Department filed its petition for formal hearing with DOAH. Coastal High Hazard Area The Florida Legislature recognized the particular vulnerability of coastal resources and development to natural disasters and required coastal counties to address the subject in their comprehensive plans. [I]t is the intent of the Legislature that local government comprehensive plans restrict development activities where such activities would damage or destroy coastal resources, and that such plans protect human life and limit public expenditures in areas that are subject to destruction by natural disaster. § 163.3178(1), Fla. Stat. The statute also requires evacuation planning. Until 2006, the CHHA was defined as the "category 1 evacuation zone." § 163.3178(2)(h), Fla. Stat. In 2006, the CHHA was redefined as "the area below the elevation of the category 1 storm surge line as established by the Sea, Lake, and Overland Surges from Hurricanes (SLOSH) computerized storm surge model."3 Ch. 2006-68, § 2, Laws of Fla. The County Plan defines the CHHA as "the category 1 evacuation zone as delineated by the Southwest Florida Regional Planning Council." Map 5 of the County Plan, entitled "Lee County Coastal High Hazard Area (CHHA)," shows the entire amendment site as being within the CHHA. Nothing on Map 5, however, indicates it was produced by the Regional Planning Council. Daniel Trescott, who is employed by the Southwest Florida Regional Planning Council and is responsible for, among other things, storm surge mapping, stated that the Category 1 evacuation zone is the storm surge level for the worst case scenario landfall for a Category 1 storm. He stated that the Category 1 storm surge for Lee County was determined by the SLOSH model to be 5.3 feet. Mr. Trescott stated that the 5.3 foot contour (shown on Plate 7 of the Regional Planning Council's "Hurricane Storm Tide Atlas - Lee County") more accurately delineates the CHHA than Map 5 of the County Plan. Although Mr. Trescott's testimony suggests a conflict between the County Plan's definition of the CHHA and Map 5's depiction of the CHHA, the two can be reconciled by a finding that Map 5 is a gross depiction of the CHHA for general public information purposes, but the precise location of the CHHA boundary is the one delineated by the Regional Planning Council, and the latter is controlling. Using the 5.3 contour on the amendment site, Leeward's witness, Michael Raider, estimated that there are approximately 16 acres of the amendment site within the CHHA. Applying the maximum allowable residential density under the Urban Community land use designation (with bonuses) of ten du/a means the amendment would result in a potential for 160 dwellings in the CHHA. Florida Administrative Code Rule 9J-5.012(3)(b)6. and Rule 9J-5.012(3)(c)7., respectively, require each local government’s coastal management element to contain one or more specific objectives that "[d]irect population concentrations away from known or predicted coastal high-hazard areas” and limit development in these areas. The parties' evidence and argument regarding whether the amendment was "in compliance" focused on these rules and the following goal, objective, and policy of the County Plan related to the CHHA: GOAL 105: PROTECTION OF LIFE AND PROPERTY IN COASTAL HIGH HAZARD AREAS. To protect human life and developed property from natural disasters. OBJECTIVE 105.1: DEVELOPMENT IN COASTAL HIGH HAZARD AREAS. Development seaward of the 1991 Coastal Construction Control Line will require applicable State of Florida approval; new development on barrier islands will be limited to densities that meet required evacuation standards; new development requiring seawalls for protection from coastal erosion will not be permitted; and allowable densities for undeveloped areas within coastal high hazard areas will be considered for reduction. POLICY 105.1.4: Through the Lee Plan amendment process, land use designations of undeveloped areas within coastal high hazard areas will be considered for reduced density categories (or assignment of minimum allowable densities where ranges are permitted) in order to limit the future population exposed to coastal flooding. In the opinion of Bernard Piawah, a planner employed by the Department, the amendment is inconsistent with the goal, objective and policy set forth above because these provisions only contemplate possible reductions of residential densities in the CHHA and there is no provision of the County Plan that addresses or establishes criteria for increasing residential densities in the CHHA. Population Concentrations As stated above, Florida Administrative Code Rule 9J-5.012(3)(b)6. directs local governments to include provisions in their comprehensive plans to direct population concentrations away from the CHHA. The term "population concentrations" is not defined in any statute or rule. The term apparently has no generally accepted meaning in the planning profession. The word "population" has the ordinary meaning of "all of the people inhabiting a specific area." The American Heritage Dictionary of the English Language (1981). The word "concentration" has the ordinary meaning of "the act or process of concentrating." Id. The word "concentrate" means "to direct or draw toward a common center." Id. In the context of Florida Administrative Code Rule 9J-5.012, the term "population concentrations" suggests a meaning of population densities (dwelling units per acre) of a certain level, but the level is not stated. Leeward argues that, because there is no state guidance on the meaning of the term "population concentrations," surrounding land uses should be examined to determine whether a proposed density would be "proportionate to its surroundings." According to Leeward, in order to be a population concentration, the density under review would have to be greater than the surrounding density. This comparative approach is rejected because the overarching Legislative objective is protection of life, which plainly calls for a straightforward consideration of the number of lives placed in harm's way. The Department, in its Proposed Recommended Order, states: By assigning either zero residential density to land by virtue of an Open Space land use designation, or a maximum density of one unit per acre by assigning a low density land use designation, the County Plan fulfills the mandates of State law that development be limited in and residential concentrations be directed away from the CHHA. Thus, not surprisingly, the Department does not consider one du/a to be a population concentration. A density of ten du/a is an urban density, as indicated by the fact that it is the maximum density allowed in the Urban Community land use designation and the highest density within the "standard density range" for the County's Central Urban land use designation. It is a generally known fact, of which the undersigned takes notice, that urban areas are areas where populations are concentrated. It is a another generally known fact, of which the undersigned takes notice, that ten dwelling units on one acre of land amounts to a lot of people living in a small space. Leeward, itself, described the residential density allowed under the Urban Community designation as "relatively intense." Leeward's Proposed Recommended Order, at 7. Whether measured by density alone (ten du/a) or by Leeward's estimate of 160 residences on 16 acres, the amendment places a population concentration in the CHHA. Offsets in the CHHA Leeward presented evidence that the County has been reducing residential densities, sometimes referred to as "down- planning," in other areas of the CHHA in Lee County. The reduction in dwelling units in the CHHA over the past several years may be as high as 10,000 units. The Department did not present evidence to dispute that there has been an overall reduction in dwelling units in the CHHAs of Lee County. Leeward argues that these reductions "offset" the increase in dwelling units in the CHHA that would result from the amendment and this "overall" reduction in densities in the CHHA must be considered in determining whether the amendment is "in compliance" with state law and with provisions of the County Plan related to directing population concentrations away from the CHHA. At the hearing and in its Proposed Recommended Order, the Department argued that the consideration of offsets in the CHHA was improper and unworkable, but that argument conflicts with the Department's actual practice and official position as described in the January 2006 "Department of Community Affairs Report for the Governor's Coastal High Hazard Study Committee." In that report, the Department acknowledged there is no statutory or rule guidance regarding what the maximum density should be in the CHHA. The Report notes that some local governments have established maximum densities for the CHHA (e.g., Pinellas County, 5 du/a; Franklin County 1 du/a). The Department states in the report that it reviews amendments to increase density in the CHHA on a "case by case" basis, and explains further: When a Comprehensive Plan Amendment in the CHHA proposes a density increase, DCA's review considers the amount of the density increase, the impact on evacuation times and shelter space, and whether there will be a corresponding offset in density through "down planning" (generally accomplished through public acquisition). One of the visual aides used in conjunction with the 2006 report to Governor's Coastal High Hazard Study Committee, entitled "Policy Issue #2 - Densities in High Hazard Areas," also describes the Department's practice: Without locally adopted density limits, DCA conducts a case by case review of amendments without any defined numeric limit. DCA considers amount of density increase, impact on evacuation times and shelter space, and whether there will be a corresponding offset in density through "down planning" in other areas of the CHHA. These statements use the phrase "there will be a corresponding offset," which suggests that for an offset to be considered, it would have to be proposed concurrently with an increase in residential density on other lands within the CHHA. However, according to the director of the Department's Division of Community Planning, Valerie Hubbard, offsets in the CHHA do not have to be concurrent; they can include previous reductions. Furthermore, although the Department pointed to the absence of any criteria in the County Plan to guide an offset analysis, Ms. Hubbard said it was unnecessary for a comprehensive plan to include express provisions for the use of offsets. To the extent that this evidence of the Department's interpretation of relevant law and general practice conflicts with other testimony presented by the Department in this case, the statements contained in the report to the Governor's Coastal High Hazard Study Committee and the testimony of Ms. Hubbard are more persuasive evidence of the Department's policy and practice in determining compliance with the requirement that comprehensive plans direct population densities away from the CHHA and limit development in the CHHA. As long as the Department's practice when conducting an "in compliance" review of amendments that increase residential density in the CHHA is to take into account offsets, the Department has the duty to be consistent and to take into account the County's offsets in the review of this amendment. The County planning director testified that he believed the applicable goal, objective, and policy of the County Plan are met as long as there has been a reduction in residential densities in the CHHAs of the County as a whole. The Department points out that the planning director's opinion was not included in the County planning staff's reports prepared in conjunction with the amendment. However, it necessarily follows from the Board of County Commissioners' adoption of the amendment that it does not interpret Objective 105.1 and Policy 105-1.4 as prohibiting an increase in residential density in the CHHA. Although these provisions make no mention of offsets, the Department has not required offset provisions in a comprehensive plan before the Department will consider offsets in its determination whether a plan amendment that increases density in the CHHA is in compliance. The wording used in Objective 105.1 and Policy 105-1.4 requiring "consideration" of density reductions in the CHHA can be harmonized with the County planning director's testimony and with the County's adoption of the amendment by construing these plan provisions consistently with the Department's own practice of allowing increases in the CHHA when the increases are offset by overall reductions in dwelling units in the CHHA. Seeking to harmonize the amendment with the provisions of the County Plan is the proper approach because, as discussed later in the Conclusions of Law, whether an amendment is consistent with other provisions of the plan is subject to the "fairly debatable" standard which is a highly deferential standard that looks for "any reason it is open to dispute or controversy on grounds that make sense or point to a logical deduction." Martin County v. Yusem, 690 So. 2d 1288, 1295 (Fla. 1997). Shelter Space and Clearance Time Prior to the hearing in this case, Leeward moved to strike certain statute and rule citations in the Department's petition related to shelter space and clearance time4 because they were not included in the Department's ORC Report. The motion was denied because, although Section 163.3184(8)(b), Florida Statutes, limits the Department's petition to issues raised in the "written comments" in the ORC Report, the statute does not indicate that the Department is barred from citing in its petition, for the first time, a rule or statute that is directly related to the written comments. The CHHA is defined in the County Plan as the category one "evacuation zone." It is the area most in need of evacuation in the event of a severe coastal storm. Shelter space and clearance time are integral to evacuation planning and directly related to the Department's comment in the ORC Report that the amendment would, "expose a substantial population to the dangers of a hurricane." Therefore, the Department was not barred from presenting evidence on shelter space and clearance time in support of this comment. The Department's practice when reviewing an amendment that increases residential density in the CHHA, described in its 2006 report to the Governor's Coastal High Hazard Area Study Committee, is to consider not only dwelling unit offsets in the CHHA, but also the effect on shelter space and clearance time. That report did not elaborate on how shelter space and clearance time are considered by the Department, but evidence that a comprehensive plan amendment would have a significant adverse effect on shelter space or clearance time could presumably negate what would otherwise appear to the Department to be an acceptable offset of residential density in the CHHA. On this record, however, the Department did not show that a significant adverse impact on shelter space or clearance time would be caused by this particular amendment.5 Special Planning Areas Leeward argues that, even if the amendment were determined to be inconsistent with Objective 105.1 and Policy 105-1.4, that inconsistency should be balanced against other provisions in the County Plan that are furthered by the amendment, principally the provisions related to the Caloosahatchee Shores Community Planning Area and the Water- Dependent Use Overlay Zone. There is no authority for such a balancing approach that can overcome an inconsistency with an objective or policy of the comprehensive plan. Therefore, whether the amendment furthers the provisions of the County Plan related to the Caloosahatchee Shores Community Planning Area, Water-Dependent Use Overlay Zone, or other subjects is irrelevant to whether the amendment is consistent with Objective 105.1 and Policy 105-1.4. On the other hand, the Department's contention that the amendment is inconsistent with the provisions of the County Plan related to the Caloosahatchee Shores Community Planning Area is contrary to the more credible evidence. 100-Year Floodplain The amendment site is entirely within the 100-year floodplain. In its Statement of Intent, the Department determined that the amendment was not in compliance, in part, because the amendment site's location in the 100-year floodplain made it unsuitable for residential development. In addition, the Department determined that the amendment caused an internal inconsistency with the following policies of the County Plan related to development in the floodplain: POLICY 61.3.2: Floodplains must be managed to minimize the potential loss of life and damage to property by flooding. POLICY 61.3.6: Developments must have and maintain an adequate surface water management system, provision for acceptable programs for operation and maintenance, and post-development runoff conditions which reflect the natural surface water flow in terms of rate, direction, quality, hydroperiod, and drainage basin. Detailed regulations will continue to be integrated with other county development regulations. According to Mike McDaniel, a growth management administrator with the Department, "we try to discourage increasing densities in floodplains and encourage that it be located in more suitable areas." The policies set forth above are intended to aid in the achievement of Goal 61 of the Community Facilities and Service Element "to protect water resources through the application of innovative and sound methods of surface water management and by ensuring that the public and private construction, operation, and maintenance of surface water management systems are consistent with the need to protect receiving waters.” Plainly, Goal 61 is directed to regulating construction and surface water management systems. There is no mention in this goal or in the policies that implement the goal of prohibiting all development or certain kinds of development in the 100-year floodplain. The Department's argument in this case regarding development in the 100-year floodplain is rejected because it ignores relevant facts and law. First, substantial portions of Lee County and the State are within the 100-year floodplain. Second, there is no state statute or rule that prohibits development in the 100-year floodplain. Third, the Department of Environmental Protection, water management districts, and local governments regulate development in the floodplain by application of construction standards, water management criteria, and similar regulatory controls to protect floodplain functions as well as human life and property. Fourth, there has been and continues to be development in the 100-year floodplain in Lee County and throughout the State, clearly indicating that such development is able to comply with all federal, state, and local requirements imposed by the permitting agencies for the specific purpose of protecting the floodplain and the public. Fifth, the Department "discourages" development in the floodplain but has not established by rule a standard, based on density or other measure, which reasonably identifies for local governments or the general public what development in the floodplain is acceptable to the Department and what development is unacceptable. Finally, the Department's practice in allowing offsets in the CHHA, as discussed previously, necessarily allows for development in the 100-year floodplain in that particular context.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued by the Florida Land and Water Adjudicatory Commission determining that the amendment adopted by Lee County in Ordinance No. 05-10 is "in compliance" as defined in Chapter 163, Part II, Florida Statutes. DONE AND ENTERED this 25th day of August, 2006, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of August, 2006.
