The Issue The issue in this case is whether the evidence sustains the decision of the City of Clearwater Development Code Adjustment Board (the Board) to grant the application of the Appellant, the City of Clearwater for dock length, width and setback variances to allow the reconstruction of the public pier facility located at the west end of Magnolia Drive in Clearwater, Florida. (The pier was destroyed by the "No Name Storm of the Century" on March 12-13, 1993.)
Findings Of Fact On or about September 1, 1993, the City of Clearwater applied to the City of Clearwater Development Code Adjustment Board (the Board) for dock length, width and setback variances to reconstruct the public pier facility located at the west end of Magnolia Drive in Clearwater, Florida, where it terminates at the waterfront in an "aquatic lands/coastal zoning district." The pier was 91.5 feet in length and 40 feet in width; it was set back 12.5 feet from the extension of the adjacent property lines. It was destroyed by the "No Name Storm of the Century" on March 12-13, 1993. Since the site has 65 feet of waterfront, reconstructing it to its previous dimensions requires variances of: (1) 59 feet in dock length (over the 32.5 feet allowed by the City of Clearwater Development Code); (2) 17.25 feet in dock width (over the 22.75 feet allowed by the Code); and (3) 7.5 feet reduction in setback from the extended adjacent property lines (below the 20 feet required by the Code.) Before its destruction, the public pier at the west end of Magnolia Drive in Clearwater had been in existence for many years. (The original version was built in approximately 1915.) The evidence is that the community at large desires to reconstruct the pier to its former dimensions. The old pier has historic and sentimental significance. It also serves as a recreational facility for residents without private access to a dock on the waterfront. Especially in the last several years before its destruction, public use of the old pier brought with it problems of misuse, loitering, litter, noise, trespassing, and crime. The police did not have the resources to prevent these problems. Criminal activity in the area seems to have decreased since the destruction of the old pier. As a result, the property owners closest to the pier do not want the public pier reconstructed at all, and certainly do not want it reconstructed to its former dimensions. They oppose the variance application. The conditions imposed by the Board (no deviation from the proposed materials and building plan, the erection of signs as to closing times to be enforced by the police, proper lighting, and the installation of an electronic safety system, including a gate, to be monitored by the police) will help alleviate many of the concerns of the neighboring property owners but are not guaranteed to eliminate them in their entirety. The water is shallow in the vicinity of the site, and a dock of a certain length is necessary for the dock to be used for boats of any appreciable size and draft. However, this condition is not unique to the particular site in question, but is uniformly applicable all along the City waterfront, and there was no evidence as to the length of dock required for adequate water depth for use by boats. There is no competent, substantial evidence in the record from which it could be found that the granting of the variances will not be materially detrimental or injurious to other property or improvements in the neighborhood in which the property is located. There is no competent, substantial evidence in the record from which it could be found that the granting of the variance will not impair the value of surrounding property.
The Issue The issue in this case is whether the evidence sustains the decision of the City of Clearwater Development Code Adjustment Board (the Board) to deny the application of the Appellant, Clearwater Bay Marine Ways, Inc., for a 62-space parking requirement variance (200 spaces instead of the 262 required under the Code) for its property located at 900 North Osceola Avenue, Clearwater, Florida. (The variance is required as a result of the Appellant's desire to use a part of the property as a cruise ship docking facility.)
Findings Of Fact On or about October 25, 1993, the Appellant, Clearwater Bay Marine Ways, Inc., applied to the City of Clearwater Development Code Adjustment Board (the Board) for an 81-space parking requirement variance (128 spaces instead of the 209 required under the Code) for its property located at 900 North Osceola Avenue, Clearwater, Florida. After filing the application, the site plan was modified, and the variance application was modified to request a 62-space variance (200 spaces instead of the 262 required under the Code). The variance is required as a result of the Appellant's plan to have Adventure Seaways Corporation use a part of the property for use as a docking facility for its 600-passenger cruise ship, the Majestic Empress. The City of Clearwater Development Code (the Code) has no parking space requirements specifically designed for cruise ship operations. To establish the parking space requirements, it was decided to utilize Section 42.34(6)(d)2.c. of the Code, which addresses certain "retail sales and service uses," and states: Theaters, indoor and outdoor recreation centers, swimming pools, skating rinks and other public or private recreation and amusement facilities: One parking space per three customers or patrons computed on the basis of maximum servicing capacity at any one time, as determined by the requirements of the city, plus one additional space for every two persons employed on the premises at peak period of use. Specific provisions over and above the standard may be required for uses such as movie theaters involving successive changes of patrons with a corresponding overlap in parking required. Under that provision, it was calculated that 200 spaces would be needed for peak capacity for the 600-passenger cruise ship. An additional 62 parking spaces are needed for other uses proposed in the site plan (including boat slips, a dive charter operation, a sail charter operation, a 2,800 square foot parts and service business and three work bays), for a total of 262 parking spaces for the overall site plan. The evidence was that no adjustments to the calculation under the "one space per three customers or patrons" formula were "determined by the requirements of the city," and that no additional spaces were required for "persons employed on the premises." (There was some evidence that the Adventure Seaways employees will park off-site.) Nor was there any evidence that there were any "[s]pecific provisions over and above the standard required for . . . successive changes of patrons with a corresponding overlap in parking required." The Adventure Seaways Corporation plans two excursions of the Majestic Empress a day, one during the day and one in the evening. It is expected that the ship would sail at full capacity only approximately one day a week, on Saturday. At peak capacity, it is expected that 30 percent of the passengers will arrive at the docking facility by tour bus. During the day cruise, the buses would leave the facility and return at the end of the cruise to drop off passengers for the evening cruise and pick up off-loading day cruise passengers. They would not remain at the facility during the times other cruise ship passengers would have their cars parked at the facility. Using only the "one space per three customers or patrons" formula under Section 42.34(6)(d)2.c. of the Code, the 70 percent of the total complement of passengers, who are expected to arrive by personal vehicle on peak days, would require only 140 parking spaces (420 passengers divided by three per parking space), well below the 200 spaces allocated to the cruise ship operation under Clearwater Bay Marine Ways site plan. Since Adventure Seaways has not been able to use the Majestic Empress at the Clearwater Bay Marine Ways facility without the parking space variance, it has transferred a smaller cruise ship, the Crown Empress, from its docking facility at Johns Pass on Treasure Island in the interim. The Crown Empress's capacity is only 400 passengers, and no parking space variance is required to use it at the Clearwater Bay Marine Ways facility. Meanwhile, Adventure Seaways has received temporary permission to utilize the Majestic Empress at the Johns Pass facility on the condition that it make greater than normal use of tour buses to transport passengers to and from the Johns Pass docking facility. Adventure Seaways purchased the Majestic Empress after being encouraged by City officials about the prospects of being able to utilize the Clearwater Bay Marine Ways facility. After purchasing the vessel, it had the vessel reconfigured to reduce its draft to accommodate the shallow waters it would have to navigate getting to and from the facility. Adventure Seaways also closed in the top deck of the vessel to meet Code requirements for noise control. Neither the special shallow draft configuration nor the noise control measures are required for utilization of the Johns Pass facility. Part of the encouragement by City officials about the prospects of Adventure Seaways being able to utilize the Clearwater Bay Marine Ways facility included assurances that the City would help Adventure Seaways gain access to additional parking, or develop or acquire additional parking, in the vicinity, if needed. Another option would be to utilize off-site parking and transport passengers to and from the Clearwater Bay Marine Ways facility by bus.
The Issue The issue in this appeal is whether the decision of the City of Clearwater Development Code Adjustment Board denying Petitioner's application for variances for certain signage on his property is supported by the evidence in the record, or whether it departs from the essential requirements of law. See Section 137.014(f)(3), City of Clearwater Land Development Code.
Findings Of Fact Petitioner is the owner of certain property located at 1923-1943 U.S. Highway 19 North, Clearwater, Florida (Section 05-29-16, M&B 23.05). This property is zoned CC (Commercial Center), and is the site of a strip shopping mall. On or about March 23, 1989, Petitioner applied for three variances for the subject property, as follows: 243 square feet to permit a total of 411 square feet of property identification signage; 13.5 feet in height to permit a 33.5 foot high pole sign; permission for a roof mounted sign. The Development Code Adjustment Board denied Petitioner's application for variances on April 13, 1989, and Petitioner timely filed this appeal of the Board's decision. Under the provisions of the City of Clearwater Land Development Code applicable to the Petitioner's property, only 168 square feet of property identification signage and pole signs not to exceed 20 feet in height would be allowed without a variance, and roof signs of any kind are prohibited unless a variance has been granted. Several months prior to Petitioner's filing for these variances, a roof sign was erected on the building located on the subject property. This roof sign consists of individual letters spelling "Harbor Square", which is the name of this shopping mall. The letters are from 3 feet, to 4 feet 9 inches in height, and span a distance of 34 feet 9 inches in width. The roof sign replaced a property identification sign at the right of way which previously carried the name of the shopping center, but the space on the pole sign previously used to identify the mall was not eliminated. That space is now used to identify a uniform business in the mall. Petitioner is seeking these after the fact variances to authorize the roof sign which has already been erected, and to approve the height of an existing pole sign. An enforcement action initiated by the City is pending this variance determination. Tenants in the Harbor Square mall testified that the change in signage has made the mall more visible and accessible, and several of their customers have commented that their businesses are now easier to find. The tenants feel that this change in signage will benefit their businesses financially. The Development Code Adjustment Board has previously granted variances from the signage limitations imposed by the Code, but the evidence produced at hearing indicates that none of these variances were granted after the fact. The two variances which were approved for roof signs were based upon a finding of conditions unique to the property which created a hardship for the applicant. In both instances, the Board found that the applicant had not created his own hardship, but that it arose from the size or positioning of the property involved in each application. In this case, nothing unique about the property can be found. The applicant has caused his own problems by allowing a sign to be erected without first obtaining a permit or variance. The Petitioner urges that it was the responsibility of his sign contractor to obtain all necessary permits or variances, and that the contractor did not inform him that a variance was necessary before he erected the sign. However, neither the sign contractor nor the Petitioner himself was present to testify, and therefore, there can be no finding with regard to his credibility, or with regard to whatever arrangement he had with the contractor. In any event, as the property owner seeking a variance, Petitioner has failed to establish any basis for a finding of a hardship or circumstance unique to his property, other than the fact that he allowed this sign to be erected without obtaining the necessary approvals from the City.
Findings Of Fact Petitioner is the state land planning agency charged with the responsibility to administer the provisions of Chapter 380, Florida Statutes, and the regulations promulgated thereunder. Petitioner has the authority to appeal to the Florida Land and Water Adjudicatory Commission any development order issued in an area of critical state concern. Monroe County is a political subdivision of the State of Florida, and is responsible for issuing development orders for development in unincorporated Monroe County. Monroe County issued the development order that is the subject of this appeal. Respondents, David and Florence Clark, are the owners of real property known as Lot 90, Holly Lane, Section F, Sugarloaf Shores, Florida (Lot 90). Sugarloaf Shores is a legally platted subdivision. The Clarks were, at the time of the formal hearing, constructing a single family dwelling on that property. The building permit for the construction of the dwelling is not at issue in this proceeding. Most of Monroe County, including the subject property, is within the Florida Keys Area of Critical State Concern as designated under Sections 380.05 and 380.0552, Florida Statutes. There is an extensive man-made canal system throughout Sugarloaf Shores subdivision that is several miles in length, is between six and ten feet in depth, and is approximately sixty feet in width. The subject permit is for construction where Lot 90 fronts this canal system and involves construction beyond the mean high water mark onto submerged lands. On January 17, 1992, Monroe County issued the subject building permit, Permit Number 9210003952, to David and Florence Clark as owners and Edward Warren Werling as contractor. The subject permit authorizes the construction of a vertical bulkhead designed to limit erosion together with a docking facility with davits and access to the canal system. Most of the neighboring lots in the vicinity of the project have vertical bulkheads with docking facilities. The bulkhead is desirable to prevent erosion of the canal bank at Lot 90 and pollution of the canal waters. The requested development would give the Clarks safe access to the canal and provide private boating facilities. Pursuant to the provisions of Sections 380.05 and 380.0552, Florida Statutes, Monroe County has adopted a comprehensive plan which complies with the Principles of Guiding Development found at Section 380.0552(7), Florida Statutes. Section 380.0552(7), requires Monroe County's land development regulations to comply with certain Principles For Guiding Development, including the following: (b) To protect shoreline and marine resources, including mangroves, coral reef formations, seagrass beds, wetlands, fish and wildlife and their habitat. * * * (e) To limit the adverse impacts of development on the quality of water throughout the Florida Keys. ... Monroe County's comprehensive plan, which has been approved by the Petitioner and by the Administration Commission, is implemented through its adopted land development regulations, codified in Chapter 9.5, Monroe County Code. Section 9.5-345(m)(2), Monroe County Code, provides as follows: (2) All structures on any submerged lands and mangroves shall be designed, located and constructed such that: * * * No structure shall be located on submerged land which is vegetated with sea grasses except as is necessary to reach waters at least four (4) feet below mean low level for docking facilities; No docking facility shall be developed at any site unless a minimum channel of twenty (20) feet in width where a mean low water depth of at least minus four (4) feet exists; Section 9.5-4(W-1), Monroe County Code, provides as follows: (W-1) "Water at least four (4) feet below mean sea level at mean low tide" means locations that will not have a significant adverse impact on off- shore resources of particular importance. For the purposes of this definition, "off-shore resources of particular importance" shall mean hard coral bottoms, habitat of state or federal threatened and endangered species, shallow water areas with natural marine communities with depths at mean low tide of less than four (4) feet, and all designated aquatic preserves under Florida Statutes section 258.39 et seq. Section 2.104, Nearshore Waters, Monroe County Comprehensive Plan, Volume II, Future Land Use Element, provides, in pertinent part, as follows: The Florida Keys are dependent on nearshore water quality for their environmental and economic integrity. The heart of the Florida Keys economy, the means by which Monroe County exists as a civil and social institution, is based on its unique oceanic character. If nearshore water quality is not maintained, then quality of life and the economy of Monroe County will be directly and immediately impacted. OBJECTIVES 1. To protect, maintain and, where appropriate, to improve the quality of nearshore waters in Monroe County. * * * POLICIES 1. To prohibit land use that directly or indirectly degrade nearshore water quality. * * * To prohibit the development of water dependent facilities, including marinas, at locations that would involve significant degradation of the biological character of submerged lands. To limit the location of water-dependent facilities at locations that will not have a significant adverse impact on off-shore resources of particular importance. For the purposes of this policy, off-shore resources of particular importance shall mean hard coral bottoms, habitat of state or federal threatened and endangered species, shallow water areas with natural marine communities with depths at mean low tide of less than four (4) feet, and all designated aquatic preserves under Florida Statutes section 258.39 et seq. Benthic communities exist in Sugarloaf Sound, such as rock-hard bottom, sea grasses, algae, and hard coral. Turtles, manatees, sharks, stingrays, eagle rays, snapper, pink shrimp, mullet, and other marine animals populate the Sound. Sea grass beds play an important role in water quality maintenance in the Keys through filtration, nutrient uptake, stabilization of the bottom, and as a habitat for commercially important species. The canal system for Sugarloaf Shores subdivision does not have access to deep water without crossing shallow sea grass beds with depths of less than four feet at mean low water. The operation of motor driven boats may result in damage to sea grass beds and shallow water marine communities through prop dredging. Although there is evidence of prop dredging in parts of Sugarloaf Sound in these shallow areas, it was not shown that the damage was done by boats traveling from the Sugarloaf Shores canal system and deep water. Whether a boat that may be docked at some future time if the permit is granted will cause damage to some portion of Sugarloaf Sound is speculation. Since 1986, Monroe County has adopted an interpretation of Section 9.5-345(m)(2), Monroe County Code, and of Section 2.104, Nearshore Waters, Monroe County Comprehensive Plan, Volume II, Future Land Use Element, that would permit the construction of the subject project. That interpretation permits the development of marginal seawalls, vertical bulkheads and docks in subdivisions that were under development in 1986 if there is at least four feet of water at the terminal point of the dock at mean low tide. The dock that is the subject of this proceeding would, if permitted, terminate in water of at least six feet in depth at mean low tide. Monroe County's interpretation of the so-called "four foot rule" is that the rule was intended to restrict the development of boating access facilities in new, undeveloped subdivisions and to regulate proposed expansion of existing marinas and the development of new marinas. Monroe County's interpretation of its rules is that a vertical bulkhead and dock built on an individual family home-site, where a dwelling was already built or under construction, would have minimal effect on the nearshore water environment of critical state concern. Monroe County considers the subject application by the Clarks to meet all of its permitting criteria. The subject project has received an exemption from permitting from the Florida Department of Environmental Regulation and from the Florida Department of Natural Resources. The Army Corps of Engineers has agreed to issue a permit for the project with no special conditions. There is no definition of "docking facility" contained within the Monroe County Land Development Regulations or the Monroe County Comprehensive Plan. It was not established that a bulkhead is a docking facility or that the construction of a bulkhead on Lot 90 should be prohibited under any of the theories advanced by Petitioner. Respondents presented evidence that several similar projects were permitted at approximately the same time as the Clarks's permit without Petitioner filing an appeal. This evidence was insufficient to establish that Petitioner should be estopped to appeal the subject permit, that Petitioner engaged in selective enforcement of its regulatory power, or that Petitioner otherwise brought the subject appeal for an inappropriate purpose.
Conclusions The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes. The subject appeal was timely taken by Petitioner pursuant to Section 380.07(2), Florida Statutes, from a development order of Monroe County granting the Clark's request for a building permit to construct a vertical bulkhead and dock on their residential lot on Sugarloaf Shores subdivision. Pursuant to the provisions of Section 120.57(1), Florida Statutes, the propriety of Monroe County's action was reviewed de novo. Transgulf Pipeline Co. v. Board of County Commissioners of Gadsden County, 438 So.2d 876 (Fla. 1st DCA 1983). The ultimate burden of persuasion rested on the Clarks to establish their entitlement to the permit authorizing their proposed development. Young v. Department of Community Affairs, 567 So.2d 2 (Fla. 1st DCA 1990), and Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981). Dispositive of whether the subject construction is consistent with the Monroe County land development regulations is the interpretation to be accorded Section 9.5-345(m)(2), Monroe County Code. Generally, an administrative construction of a statute by an agency responsible for its administration is entitled to great deference and should not be overturned unless clearly erroneous. Department of Environmental Regulation v. Goldring, 477 So.2d 532 (Fla. 1985); All Seasons Resorts, Inc. v. Division of Land Sales, Condominiums, and Mobile Homes, 455 So.2d 544 (Fla. 1st DCA 1984); and Sans Souci v. Division of Land Sales and Condominiums, 421 So.2d 623 (Fla. 1st DCA 1982). The same deference has been accorded to rules which have been in effect over an extended period and to the meaning assigned to them by officials charged with their administration. Pan American World Airways, Inc. v. Florida Public Service Commission, 427 So.2d 716 (Fla. 1983), and State Department of Commerce, Division of Labor v. Matthews Corp., 358 So.2d 256 (Fla. 1st DCA 1978). Moreover, the agency's interpretation does not have to be the only one or the most desirable one; it is enough if it is permissible. Pan American World Airways, Inc. v. Florida Public Service Commission, supra, and Florida Power Corp. v. Department of Environmental Regulation, 431 So.2d 684 (Fla. 1st DCA 1983). Here, no less deference should be accorded Monroe County's interpretation of its land development regulations where, as here, such interpretation is reasonable, evidences due consideration for private rights of ownership, and is not contrary to its comprehensive plan. See e.g. Thomson v. Village of Tequesta Board of Adjustment, 546 So.2d 457 (Fla. 4th DCA 1989). It is concluded that Monroe County's interpretation of Section 9.5- 345(m)(2), Monroe County Code, is a permissible interpretation and that the subject development is consistent with the Monroe County comprehensive plan and land development regulations. The Clarks have satisfied their burden of proof by demonstrating that the proposed construction is consistent with the Monroe County comprehensive plan and land development regulations and that they are entitled to the subject permit.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Florida Land and Water Adjudicatory Commission enter a final order affirming Monroe County's decision to issue building permit number 9210003952, and dismissing the appeal filed by the Department of Community Affairs. DONE AND ORDERED this 30th day of December, 1992, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 1992.
The Issue The issue in this case is whether to grant the appeal of Valentinos Koumoulidis from the Planning and Zoning Board's denial of his application for variances from the requirement of a minimum lot width of 150 feet at the setback line and from the requirement of a minimum of 20 percent clear space.
Findings Of Fact When the Appellant, Valentinos Koumoulidis, bought the subject property, the building was being used as a six-unit motel--three units on each of two floors. There were approximately 1600 square feet of space on each of the two floors. The property fronts at 606 Bayway Boulevard; the back of the property is waterfront. In 1991, the Appellant applied for and was granted a parking variance and variances to enable him to convert the first floor to retail use and convert the second floor to a residence. Apparently construction was delayed, and in October, 1992, the Appellant reapplied for the variances to enable him to convert the first floor to retail use and convert the second floor to a residence, while withdrawing the application for a parking variance. (He had decided to convert from straight- in/back-out parking to an off-street parking lot.) In 1994, the Appellant again applied for variances, this time to allow him to add approximately 300 square feet of commercial space to the back of the first floor and approximately 900 square feet of residential space to the back of the second floor. The Board denied those variance requests in October, 1994. Rather than appeal, the Appellant decide not to pursue the addition of commercial space to the back of the first floor and, on December 22, 1994, instead applied for variances to allow him just to add approximately 900 square feet of residential space to the back of the second floor. (Of the 900 square feet, approximately 550 would be enclosed, and approximately 350 would be open deck.) The evidence (primarily through the testimony of Noel Woods, one of the Appellant's neighbors) was that the residential property in the immediate vicinity is comparable, in terms of square footage of living space per dwelling unit, to the Appellant's current second floor--i.e., approximately 1600 to 1700 square feet. There was some evidence that residential properties across the intracoastal waterway from the Appellant's property are valued as high as a million dollars. But the evidence (again, the testimony of Noel Woods) also was that condominium units in the immediate vicinity are valued at approximately $175,000. There was no evidence that the use the Appellant is making of his property (retail on the first floor and residential on the second floor) is not a reasonable use.
The Issue At issue in this proceeding is whether a development order (building permit) issued by Monroe County to John and Alice Scott, Owners, and Hugh E. Rhodus, General Contractor, for the construction of a vertical seawall/dock on Lots 31 and 32, White Marlin Beach subdivision, Matecumbe Key, Monroe County, Florida, is consistent with the Monroe County Comprehensive Plan and land development regulations.
Findings Of Fact The Property Respondents John and Alice Scott are the owners of two canal front lots known as Lots 31 and 32, White Marlin Beach subdivision, Matecumbe Key, Monroe County, Florida. Lots 31 and 32 were acquired in 1968 and 1970 and are undeveloped. The subject lots are in incorporated Monroe County, Florida, and are zoned Improved Subdivision (IS). The Scotts reside on a third lot facing the bay that is across the street from the subject lots. Respondents' lots are within the Florida Keys Area of Critical State Concern. The land where the White Marlin Beach subdivision is located was at one time all mangroves and other trees. The subdivision was created in 1955-56 by means of dredge and fill activities. During the late 1960s and early 1970s, the shorelines of Lots 31 and 32 were even with an existing bulkhead on an adjacent lot. Very small mangroves were beginning to revegetate the shorelines. By 1979-1980, some shoreline erosion had occurred on the lots, estimated at 5-6 feet. At some unknown time thereafter, additional shoreline erosion occurred, estimated at its greatest point to be approximately 10 feet from the original platted fill line. At the time the permit application was considered and at the time of the hearing, the revegetated mangroves had grown into a substantial fringe of high complexity, running the entire 117-foot length of the two lots and varying from 5 to 15 feet in width. Some of the trees are as tall as 12 feet. The area in which the mangroves have revegetated slopes gently toward the canal. It constitutes a shallow water habitat which, in addition to the mangrove vegetation, supports crabs, juvenile fish, algae, and seagrasses. The expert witnesses of both Petitioner and Respondent testified that the mature mangrove fringe on the two lots has stabilized the land area adjacent to the canal. Landward of the mangrove fringe, the lots are comprised of unconsolidated sand used to create the lots. The edges of the fill material form a gentle slope from as low as six inches up to 24 inches at one extreme. Upland erosion is occurring along the edge of the unconsolidated fill, washing down the slope of the fill into the mangroves. Erosion of the edges of upland fill is a common occurrence in the Florida Keys. 10 The unconsolidated fill material where the erosion is occurring constitutes the uplands portion of the lots and is caused by weather events (wind and rain), rather than by tidal or wave action. There is active boating traffic on the subject canal; many large commercial and pleasure boats use the canal. Marine fuel and supplies are sold at Angelo's. There is a commercial fishing "village" located at and around Angelo's. To reach open water, i.e., the Gulf bay, boats must pass lots 31 and 32 after leaving Angelo's. Most of the other lots on the same canal as lots 31 and 32 are primarily protected by seawalls. The Scotts, under the subject seawall permit, are seeking to tie in to the adjoining seawall for consistency in community character and appearance. The adjoining property owners and many of the neighboring property owners want the mangroves removed and a seawall built to protect lots 31 and 32. Permit Application and Issuance On March 11, 1992, the Scotts applied to Monroe County for a permit to construct a seawall on Lots 31 and 32, White Marlin Beach subdivision. The Scotts' seawall permit application was denied by Pat McNeese, the Monroe County Environmental Resources Director, based upon her conclusion that erosion was not occurring on the lots and thus a seawall was not allowed under the Monroe County land development regulations. The Scotts appealed Ms. McNeese's decision to the Monroe County Planning Commission. As part of their evidence, Respondents offered a certified land survey conducted on November 1, 1992, which shows that the approximate shoreline of the property is at its greatest point roughly 10 feet landward of the platted shoreline. After hearing, the Planning Commission upheld Ms. McNeese's decision to deny the permit. The Scotts then appealed the Planning Commission's decision to the Monroe County Board of County Commissioners. The Board overturned the Planning Commission. The Board found that the Scotts are entitled to a permit to develop a seawall for erosion control under the provisions of Section 9.5-345(m)(2)(b), Monroe County Code. On April 19, 1993, Monroe County issued building permit number 9230005939 which is the subject of this proceeding. The permit was rendered to the Department on April 21, 1994, and was appealed by the Department 45 days thereafter. Monroe County Comprehensive Plan and Land Development Regulations The Monroe County Comprehensive Plan contains various policies directed toward preservation or conservation of the Keys environment and maintenance of water quality. Section 2.104, Nearshore Waters, Monroe County Comprehensive Plan, Volume II, Future Land Use Element, states, in part, that: The Florida Keys are dependent on nearshore water quality for their environmental and economic integrity. The heart of the Florida Keys economy, the means by which Monroe County exists as a civil and social institution, is based on its unique, oceanic character. If nearshore water quality is not maintained, then quality of life and the economy of Monroe County will be directly and immediately impacted. OBJECTIVES 1. To protect, maintain and, where appropriate, improve the quality of nearshore waters in Monroe County. * * * POLICIES 1. To prohibit land uses that directly or indirectly degrade nearshore water quality. * * * To prohibit the development of water dependent facilities, including marinas, at locations that would involve significant degradation of the biological character of submerged lands. To limit the location of water-dependent facilities at locations that will not have a significant adverse impact on off-shore resources of particular importance. For the purposes of this policy, off-shore resources of particular importance shall mean hard coral bottoms, habitats of state or federal threatened and endangered species, shallow water areas with natural marine communities with depths at mean low tide of less than four (4) feet, and all designated Aquatic Preserves under Ch. 253.39 et seq. the [sic] Florida Statutes. The Monroe County Comprehensive Plan, Volume II, Sec. 2-115 entitled "Enforcement" provides: A major component of any future land use element is the need to strictly enforce implementing regulations. If Monroe County is to achieve the promise of this Plan, it is essential that all persons involved in the land development process adhere to the requirement of this Plan and that the integrity of the development review process be protected. The Monroe County Comprehensive Plan, Future Land Use Element, Volume II, Natural Vegetation Management Policies provides: 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 standards designed to protect natural vegetation from development will be developed and enforced. Clearing of native vegetation for development will be controlled. * * * 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. * * * 8. The existing County ordinances designed to protect and conserve natural vegetation will be strictly interpreted, rigidly enforced, and/or amended when necessary. * * * Of all the natural landforms and features which must be given due consideration in their protection, protection of the shoreline is of prime concern. . . . Chapter VII, Coastal Zone Protection Element, Marine Resources Management Policies section, Future Land Use Element, Monroe County Comprehensive Plan, Volume II, states that: Recognizing the crucial role that the marine environment plays in the local economy, the protection, conservation, and management of marine resources will be viewed as an issue requiring the County's utmost attention. In an effort to protect and conserve marine resources, emphasis will be placed on protecting the entire marine eco-system. 1.2. To this end, maintenance of water quality; protection of marine flora and fauna, including shoreline vegetation; and preservation of coral reefs will be regarded as being absolutely essential to maintaining the integrity of the marine system. Utilization of marine resources will be judged sound or unsound from the standpoint of whether or not a permitted use insures conservation and long-term maintenance of the resource. * * * Land and water activities which are incompa- tible with the preservation of marine resources because of their potential adverse effects will be prohibited, restricted, or carefully regulated depending upon the nature of the activity and the extent of potential impact. Development of bulkheads (the vertical component of a seawall) is characterized in the Monroe County Comprehensive Plan as "shoreline modification" and is addressed in Volume II as follows: Shoreline Modification Shoreline generally requires some degree of modification before it can be utilized for development of any sort. But such modification, unless carefully planned, can have adverse effects far beyond the area directly altered for development. For this reason, all shoreline modifications are subject to close scrutiny and regulation by local, State and Federal agencies. The following guidelines should be used at the local level to minimize the impact of shoreline modifications of different types. Bulkheads and Bulkhead Lines Bulkhead lines should be set at, or landward of, the mean high water line or the landward boundary of the shoreline protection zone, which- ever is applicable. Where possible, sloping rip-rap structures and coastal vegetation should be used rather than vertical seawalls. The Monroe County land development regulations provide in pertinent part: Sec. 9.5-288. Bulkheads, seawalls, riprap and fences. Bulkheads, seawalls, riprap and fences may be allowed as principal uses where it is demonstrated that their purpose is for erosion protection or upland protection (except for the Big Pine Area of Critical County Concern). Seawalls, in any configuration to include integral steps, ladders, platforms, quays, wharfs, and integral docks landward of seawalls, are permitted, with or without a principal building, in all land use districts for the purpose of erosion control. . . . Riprap placement is permitted without a principal structure for erosion control. * * * Sec. 9.5-335. Purpose of environmental perform- ance standards. It is the purpose of this division to provide for the conservation and protection of the environmental resources of the Florida Keys by ensuring that the functional integrity of natural areas is protected when land is developed. * * * Sec. 9.5-345. Environmental design criteria. (m) Mangroves and Submerged Lands: Except as provided in paragraph (3), only piers, docks, utility pilings and walkways shall be permitted on mangroves and submerged lands; All structures on any submerged lands and mangroves shall be designed, located and constructed such that: All structures shall be constructed on pilings or other supports; Bulkheads and seawalls shall be permitted only to stabilize disturbed shorelines or to replace deteriorated existing bulkheads and seawalls; * * * d. No docking facility shall be developed at any site unless a minimum channel of twenty (20) feet in width where a mean low water depth of at least minus four (4) feet exists; No fill shall be permitted in any natural water body; No fill shall be permitted in any manmade water body unless the applicant demonstrates that the activity will not have a significant adverse impact on natural marine communities. * * * Sec. 9.5-4. Definitions. (W-1) Water at least four (4) feet below mean sea level at mean low tide means locations that will not have a significant adverse impact on off- shore resources of particular importance. For the purpose of this definition, "off-shore resources of particular importance" shall mean hard coral bottoms, habitat of state or federal threatened and endangered species, shallow water areas with natural marine communities with depths at mean low tide of less than four (4) feet and all designated aquatic preserves under Florida Statutes section 258.39 et seq. The land development regulations must be implemented in a manner consistent with the Monroe County Comprehensive Plan. Seawall The shoreline is generally the area between mean high water and mean low water. For regulatory purposes, the "shoreline" is considered to be mean high water. While a seawall will protect shoreline property, there are negative impacts associated with development of seawalls which merit consideration. In this case, development of the permitted seawall would involve elimination of the existing mature mangrove fringe, which filters upland runoff, and filling in the shelf, including submerged lands, which provides habitat for juvenile fish, crabs and algae. Water quality in the White Marlin Beach canals will deteriorate as additional seawalls are constructed. Wave force is increased as waves bounce off one seawall and then another, which in turn brings up sediments which may contain pollutants. Increased wave force also draws sediments out from under existing bulkheads, causing or contributing to their deterioration and adding to the suspended sediments in the canal. Riprap and coastal vegetation absorb rather than intensify wave energy. While some amount of shoreline erosion occurred on Lots 31 and 32 during the 1970s and at some time thereafter, the shorelines on Lots 31 and 32 are now stabilized by the existing mangrove fringe. Since the shorelines of Lots 31 and 32 are not presently eroding, that portion of the permit which authorizes the removal of the shoreline vegetation and development of a vertical seawall is not consistent with the Monroe County land development regulations. Rip-Rap Even if shoreline erosion were occurring, a seawall or bulkhead to stabilize the shoreline would still not be authorized under the Monroe County Comprehensive Plan and land development regulations. The shoreline on Lots 31 and 32 is gently sloping, with only about 1-1/2 feet of silt over the bedrock within the mangrove fringe. Rip-rap would be feasible on Lots 31 and 32 if shoreline erosion were to be currently taking place. Upland Erosion The Scotts are experiencing some erosion on the edges of the upland fill on Lots 31 and 32, caused by wind, rain, digging crabs, and the spreading roots of mangrove trees. Such erosion on the edges of upland fill is common in the Florida Keys. Construction of a vertical seawall, which is a shoreline stabilization technique, is not appropriate to address an upland erosion problem. Erosion of upland fill material is commonly addressed by use of a retaining wall landward of the shoreline. Development of a retaining wall on Lots 31 and 32 would not necessitate removal of the existing shoreline vegetation and placement of fill on submerged lands as authorized under the subject permit. Fill Behind Seawall The plans approved with the subject permit authorize the placement of fill behind the seawall. A portion of the proposed fill would be placed below mean high water on submerged lands. Section 9.5-345(m)(2)(4), Monroe County Code, prohibits the placement of fill in a manmade water body unless the applicant demonstrates that the activity will not have a significant adverse impact on natural marine communities. The mangrove community and submerged shelf that exist on lots 31 and 32 are natural marine communities. The permanent obliteration of the shoreline vegetation and elimination of the submerged lands that presently exist on Lots 31 and 32 would be a significant adverse impact on natural marine communities. Accordingly, the placement of fill on the submerged lands on Lots 31 and 32 is not authorized under the Monroe County land development regulations. Docks Section 9.5-345(m)(2)(d), Monroe County Code, requires that docking facilities be developed only where a water depth of at least minus four feet mean low water (-4 MLW) exists. The plans approved under the subject permit show a water depth of zero (0) feet MLW at the waterward extent of the proposed seawall/dock. The Scotts' intention is to align the seawall spanning Lots 31 and 32 with a seawall on an adjacent lot. Water depth in that approximate location, which differs from the approved site plan and is therefore not authorized by the permit, is 1.6 feet at low tide. There is not adequate water depth at the waterward side of the proposed seawall/dock, as shown either on the approved plan or as described in testimony, to accommodate a docking facility on Lots 31 and 32. Further, because the dock has a vertical seawall component, it is not designed to be constructed on pilings or other supports, as required by Section 9.5-345(m)(2)(a), Monroe County Code. Accessory Use The Monroe County land development regulations define an accessory use or structure as a use or structure that serves a principal use and is located on the same lot or lots under the same ownership and in the same land use district as the principal use or structure. The regulation specifically prohibits the establishment of an accessory use prior to the principal use to which it is accessory. Accessory uses are generally regulated based upon whether the accessory use is located on the same property as the principal use. Under the County definition of accessory use, when dealing with a single lot, the principal use must be established first. The reference to the plural "lots" accommodates larger projects which typically encompass more than one lot, such as hotels and multifamily projects. It would also encompass an individual's residence where the lots were aggregated for development. The intent of the regulation is not to restrict the accessory uses to any one of those individual lots, but to recognize that the accessory use can also extend and cover all of the lots where the principal use is located. The regulation was adopted to cure an ongoing problem in the Keys of speculative development where shoreline improvements were developed without the establishment of principal uses to increase the value of saleable lots. In this case, the principal use (the Scotts' residence) is not located on either of the two lots for which the permit was issued. To allow development of those properties prior to the establishment of principal uses on them would be inconsistent with the Monroe County land development regulation and the purpose for which it was adopted.
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 denying permission to develop the vertical seawall/dock authorized under Monroe County building permit number 9230005939 and denying all other relief requested by the Respondents. It is further recommended that such final order specify those items set forth in paragraphs 45 and 46, Conclusions of Law, as changes in design and circumstances necessary to enable the Scotts to obtain a permit to stabilize the upland fill on the lots and entitle them to a permit or permits for docking facilities. DONE AND ENTERED this 14th day of October 1994 in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 14th day of October 1994. APPENDIX The following are the specific rulings on all proposed findings of fact submitted by all parties. Findings proposed by the Petitioner: With the one exception mentioned immediately below, all proposed findings of fact submitted by the Petitioner have been accepted, with occasional editorial modifications in the interest of clarity and accuracy. The one exception is paragraph 25, which was rejected as unnecessary repetition or summary of findings already made. Findings proposed by the Respondents: Paragraph 1: Accepted in substance. Paragraph 2: Rejected as subordinate and unnecessary details in view of the de novo nature of this proceeding. Paragraphs 3, 4, 5, 6, 7, 8, 9, and 10: Accepted in substance. Paragraph 11: Rejected as contrary to the greater weight of the evidence. (There is conflicting evidence on this subject. The testimony of the Petitioner's witnesses is found to be more persuasive than the version put forth by the Respondents' witnesses.) Paragraph 12: Accepted in substance. Paragraphs 13 and 14: Rejected as subordinate and unnecessary details. Paragraphs 15 and 16: Both of these paragraphs are rejected as too overly broad and imprecise to be meaningful in the context of the issues in this proceeding. More precise and detailed findings have been made regarding the nature of past and current erosion on the subject property. Paragraph 17: Rejected as too narrow a statement to be accurate. As noted in the findings of fact, other factors are contributing to the upland erosion. Paragraph 18: Rejected as not supported by persuasive competent substantial evidence. Although there is some testimony along the general lines of what is proposed in this paragraph, that testimony appears to be more nearly hyperbole than hard science. Paragraph 19: Rejected as consisting primarily of argument, rather than proposed findings of fact. Further, the last sentence of this paragraph is a conclusion that is contrary to the greater weight of the evidence. Paragraph 20: Rejected as consisting primarily of argument and proposed conclusions of law, rather than proposed findings of fact. Paragraph 21: First two sentences rejected as subordinate and unnecessary details in view of the requirements of the Monroe County Comprehensive Plan and land development regulations. Last sentence rejected as constituting a conclusion that is contrary to the greater weight of the evidence. Paragraph 22: Rejected in part as not fully supported by persuasive competent substantial evidence and in part as irrelevant. (The water being too shallow, it does not particularly matter why it is too shallow.) Paragraph 23: Rejected as subordinate and unnecessary details in view of the requirements of the Monroe County Comprehensive Plan and land development regulations. Paragraph 24: Accepted in substance with some editorial language omitted. Paragraphs 25 and 26: Rejected as constituting conclusions that are contrary to the greater weight of the evidence. COPIES FURNISHED: Sherry A. Spiers Assistant General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Carol A. Scott, Esquire KUBICKI, DRAPER, GALLAGHER & MCGRANE, P.A. 1200 City National Bank Building 25 West Flagler Street Miami, Florida 33130 James T. Hendrick, Esquire 617 Whitehead Street Key West, Florida 33040 David K. Coburn, Secretary Florida Land & Water Adjudicatory Commission 311 Carlton Building Tallahassee, Florida 32301
Findings Of Fact On or about July 9, 1987 an application for conditional use approval to allow off-premises sale of beer and wine (2APS) was filed on behalf of Petitioner for property located at 2030 Gulf to Bay Boulevard in Clearwater, Florida. The property is zoned general commercial (CG). A public hearing before the Planning and Zoning Board was held on August 4, 1987. At that hearing, the Petitioner's representative was not allowed to give rebuttal testimony, although the Board's by-laws do allow the applicant to rebut testimony in opposition to the application, and rebuttal is, in fact, usually allowed. The Petitioner's representative did not specifically request an opportunity to rebut the opponent's testimony, but assumed he would be given an opportunity to speak before the Board voted. The Planning and Zoning Board voted 3-2 to deny conditional use approval for this application. A timely appeal was taken by Petitioner on August 18, 1987. With this application, Petitioner seeks approval to sell beer and wine at a 7-11 convenience store. By subsequent application and approval of the Planning and Zoning Board on September 1, 1987 Petitioner has been granted a conditional use for 1APS, package sale of beer only. However, this 1APS application and approval is not at issue in this case. The parties stipulated that the property in question is within five hundred feet of a church and several residences.
The Issue This proceeding concerns a Consent Order entered into by the Department of Environmental regulation (DER), and James and Patricia Gratzer (Gratzers) regarding an allegedly unpermitted fill in Winter Springs, Florida. The ultimate issue for determination is whether DER abused its discretion in resolving the alleged violations by entering into the subject Consent Order.
Findings Of Fact In the fall of 1990, the Gratzers purchased a 4.35 acre lot located at 216 Stoner Road in Winter Springs, Florida. At the time of purchase, the Gratzers planned to divide the lot and build a residence on the two acre parcel. In preparation for construction of their new home, the Gratzers approached the Winter Springs City Council to subdivide the property and to approve of use of the fill road as ingress and egress for both lots. In February of 1991, the Gratzers and their builder obtained the proper building permits from the County and septic tank permits from the Department of Health and Rehabilitative Services. Construction began on the residence on April 9, 1992 when the Gratzers' builder brought in several trucks of dirt to the end of the existing fill road to begin the house pad. At the time the Gratzers began construction on the subject lot, they had no idea or reason to believe that they were about to build in jurisdictional wetlands of the State of Florida. On approximately April 14, 1992, the Gratzers were first made aware that they may have problems with potential wetlands on the property when an officer of the Game and Fresh Water Fish Commission visiting the site instructed the builders to halt construction, pending a review by DER. As a result of the site visit, the Gratzers investigated further with DER employees the potential wetlands on their property. They also sought the advice of an attorney and his environmental consultant regarding possible ways to solve DER's concerns. On approximately April 26, 1991, an employee of DER visited the site and made an initial determination that the property was a jurisdictional wetland subject to permitting by DER. Under present rules the Gratzer property, with exception of the filled access road, would all be in DER jurisdictional wetlands if only the natural vegetation were considered. Upon being informed of DER's initial determination, the Gratzers hired an engineer from Boyer-Singleton & Associates to make an engineering determination as to the extent of jurisdictional wetlands based upon a ten-year backstop. A ten-year backstop is a method provided by statute to determine the ultimate landward extent of DER's vegetational jurisdictional line. It is a hydrological calculation to determine water elevation levels in a certain area, subject to the ten-year recurrent storm event. By rule and statute, DER's jurisdiction over wetlands effectively stops at the upper end or limit of the ten-year flood elevation line. Claude Cassagnol, of Boyer-Singleton and Associates, an expert in hydrology, reviewed available materials, visited the site and made an initial determination of the ten-year backstop on the Gratzers' property, and ultimately mapped out his conclusions on a plat. Mr. Cassagnol's hydrological study, and his review of Federal Emergency Management Agency (FEMA) materials, led him to conclude that the ten-year backstop would leave the Gratzer's house pad out of any DER jurisdictional wetlands. As a result of his study, Cassagnol forwarded several letters to George Baragona of DER requesting that Mr. Baragona, an expert hydrologist, review his determination and ratify his conclusions. The Gratzers, on advice of counsel, allowed their building contractor to complete compaction of the house pad and begin preparations to pour the house floor. The septic tank contractor for the Gratzers completed installation of the tank and drain field prior to July 1st. After the Gratzers had recommenced construction, on approximately July 10, 1992, DER, issued a Notice of Violation (NOV) which ultimately formed the basis for the Consent Order in this case. The Gratzers immediately ceased further construction on the property and sought further negotiations with DER. Shortly after the NOV was issued, George Baragona reviewed the information, studies and plats submitted by Mr. Cassagnol regarding the ten-year backstop. Baragona made a determination of the ten-year backstop at a point more landward than Cassagnol's. It appears from the plat submitted at hearing, that Baragona's ten- year backstop line runs along the base of the fill roadway; his testimony, however, indicated that his backstop line dipped in and out near the roadway, and he simply chose the baseline of the fill road as his "worst case scenario". Baragona, because of the house pad, was required to extrapolate a line through the house pad, resulting in approximately half of the house pad area being in jurisdictional wetlands. The result of further negotiations between the parties was the Consent Order which is the subject matter of this proceeding. As settlement, the Gratzers agreed to Baragona's "worst case scenario" ten-year backstop, placing approximately half of the house pad was in DER jurisdictional wetlands. As part of the settlement, the Gratzers agreed to, and have paid, a fine of $1,400.00 to DER and have granted a conservation easement over a large portion of the remainder of their property, resulting in an 11.6 to 1 ratio of conservation easement to impacted wetlands, slightly above DER's guideline 10 to 1 ratio. In investigating the alleged violations at the subject property, DER reviewed the cumulative impacts of the project and determined that they were not great, in light of the surrounding area and its already high level of development. In making this determination, DER reviewed property lists, maps and other facts to determine the level of current development. In reviewing the alleged violations, DER also considered whether or not this project would have been able to get a permit had the Gratzers sought a permit prior to any construction. It was DER's determination that the project would have been permittable under the criteria in Chapter 403, in conjunction with the mitigation offered at the site. Finally, in its review and study of the alleged violations, DER determined there was no evidence that this project would have any adverse impact on water quality. DER made a determination that this was a "low to medium" violation, and that the impacts were properly addressed through the Consent Order which imposed the $1,400.00 fine and secured the conservation easement. Fill Road Issue A small road or driveway existed on the site at the time the Gratzers purchased the property, extending from Stoner Road from the south, to the center of their property. Although Baragona indicated the DER modelled backstop line did not always extend to the driveway, he said it sometimes appeared to "bump up" to the eastern edge of the driveway. Baragona could not say with absolute certainty where the 10 year backstop would be on the east side of the site if the driveway were not present. The type of wetland vegetation on the Gratzer property would be considered jurisdictional wetland vegetation under rules adopted pursuant to the 1984 Warren F. Henderson Wetlands Act (Section 403.91, et seq.), but would not be considered jurisdictional wetland vegetation under rules applicable prior to October 1, 1984. If the driveway on the Gratzer property was installed prior to October 1, 1984, it is legal, but if it was installed after that date it is illegal because there is no evidence it ever was properly permitted. DER does not allow illegally filled areas to cut off the extent of its wetland jurisdiction. Therefore, if the driveway on the Gratzer property were placed in DER jurisdictional wetlands without a permit, the road itself could not act as a 10 year backstop cutting off DER wetland jurisdiction to the west. There was conflicting evidence as to when the driveway was placed on the property. James Hartman, who sold the property to the Gratzers, testified he built the driveway in 1978 and 1979. William Kuyper, an expert in aerial photography interpretation, testified that based on his review of aerial photos, the road had been placed on site sometime between January 6, 1986, and March, 1989. The weight of the evidence indicates the driveway was probably placed on site before October 1, 1984, and therefore did not require a DER permit. First, the former landowner's testimony that he built the road in 1978 and 1979, must be considered more reliable than an interpretation of aerial photos taken from 12,000 feet in the air, in spite of the expertise of the photographic interpreter. A possible explanation for why the driveway "appeared" in the 1989 aerial photo but not in the 1986 aerial photo is that the road may have been disturbed, or new fill put on the road sometime between 1986 and 1989, causing the road to be more visible in 1989. Even if the 10 year backstop were to be determined without the driveway present, it would not be significantly different. While DER's 10 year backstop line "bumps up" against the road in places, it does not "bump up" in other places along the driveway, but in order to be conservative the line was placed along with driveway in all areas. The modelled location of the line north of the housepad where there is no driveway is consistent with where the line is modelled south of the housepad where the driveway is located. The Society and its Concerns The Society's corporate status was not controverted. CFWS members have been patrolling the Lake Jessup/Gee Creek area and other wetland areas and have found what they believe are violations of the law and rules intended to protect wetland resources. Although neither Michael Mingea nor his expert witness have been on the Gratzer property, they have been in the immediate area and are concerned about the cumulative impact of small dredging projects, like the Gratzers, which projects are routinely reported to DER by the Society. Beginning in May 1991, the Society corresponded regularly with Secretary Browner at DER and Secretary Williams at the Department of Health and Rehabilitative Services (HRS) and their respective staffs, regarding what the Society perceived were violations occurring through lax enforcement. The Society believed, though review of HRS and DER files, that the Gratzers' project included a septic tank placed in jurisdictional wetlands. This was not established; rather, the septic tank was erroneously placed inside a setback line, but outside the jurisdictional line, and a variance was readily obtained from HRS. DER does not have direct jurisdiction over septic tank permits and HRS' authority is derived from the statutes, not from DER. The Society's position regarding the Gratzer project is based in substantial part on its assertion that the fill road was illegally placed and that DER's jurisdiction extended through the entire property. The Society, however, did not rebut the sound evidence by George Baragona of the 10-year backstop. Nor did it present competent evidence of any alleged water quality violations. Only one other actual violation of permit requirements was established, and DER has required the developer to move the project from jurisdictional wetlands.
Recommendation Based on the foregoing, it is hereby, recommended that the Consent Order that is the subject of this proceeding be adopted as Final Agency Action. RECOMMENDED this 24th day of July, 1992, in Tallahassee, Leon County, Florida. MARY CLARK 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 24th day of July, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-0104 The following constitute specific rulings on the findings of fact proposed by Petitioners: 1.-3. Adopted in preliminary statement and paragraph 19. 4. Adopted in substance in paragraph 5. 5.-6. Rejected as unnecessary. 7.-8. Adopted in substance in paragraph 14. 9.-12. Rejected as unnecessary. 13. Adopted in part in paragraph 20, otherwise rejected as unnecessary. 14.-16. Rejected as unnecessary. 17.-18. Rejected as contrary to the evidence. 19. Rejected as contrary to the greater weight of evidence. 20.-22. Rejected as unnecessary. 23.-25. Rejected as contrary to the evidence. 26. Rejected as unnecessary. 27.-30. Rejected as contrary to the evidence. 31.-32. Rejected as summary of testimony or argument, rather than findings of fact. 33.-34. Rejected as contrary to the weight of evidence. 35.-36. Rejected as unnecessary. 37. Rejected as contrary to the evidence. [Section VI, pp 19-22 includes unnumbered paragraphs summarizing testimony, rather than findings of fact]. COPIES FURNISHED: Michael W. Mingea, President Central Florida Wetlands Society P.O. Box 2826 Orlando, FL 32802 Rex D. Ware, Esquire P.O. Box 1794 Tallahassee, FL 32302 Douglas H. MacLaughlin, Esquire DER-Twin Towers Office Bldg. 2600 Blair Stone Road Tallahassee, FL 32399-2400 Carol Browner, Secretary DER-Twin Towers Office Bldg. 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, Esq. DER-Twin Towers Ofc. Bldg. 2600 Blair Stone Road Tallahassee, FL 32399
Findings Of Fact On or about April 5, 1988, Petitioner filed an application for a variance to replace an existing four foot fence extending to the seawall on his property at 643 Harbor Island, Lot 12 Island Estates, Clearwater, Florida. The subject property is zoned RS-6. Petitioner had already replaced his previous fencing prior to the filing of this application with wooden fencing which extends on the north and south side of his property through the setback to the seawall. The Development Code Adjustment Board considered Petitioner's application at its meeting on May 12, 1988, and based upon the Petitioner's explanation that the variance was sought simply to replace an existing fence that had termite damage, the Board approved his application on a 3 to 2 vote. The variance approval was conditioned upon the Petitioner obtaining a building permit within one month of the approval. Petitioner failed to obtain the required building permit, and no excuse was offered for this failure. Therefore, he had to reapply for the variance. On or about July 21, 1988, Petitioner filed his variance reapplication. The Development Code Adjustment Board considered this reapplication on August 25, 1988, at which time Petitioner again stated that he was simply replacing an existing fence. Due to a tie vote, consideration of the reapplication was continued to the Board's meeting of September 8, 1988. At the meeting on September 8, he explained for the first time that while the fencing on the south side of his property was simply the replacement of a previous fence which had extended to the seawall, the fencing on the north side was not. The previous fence on the north side of his property had stopped prior to the fifteen foot setback. With this clarification, the Board approved his variance reapplication for the south side of his property, but denied the variance for the north side. Petitioner has timely appealed the denial of his variance reapplication as it relates to the north side of his property. Petitioner testified at hearing that prior to the construction of his current wooden fence, he had a wood fence all the way to the seawall on the south side of his property. Since he had to replace that fencing due to termite damage, he took the opportunity to also replace and extend the wooden fencing on the northern side of his property through the setback. This action was not based on any hardship, but simply because he and his family felt it would look better if he had the same fencing on both sides of his property. It is clear and undisputed that Petitioner constructed a new fence on the north side of his property through the setback without obtaining a variance or permit. He did this simply for aesthetic reasons, and not due to any hardship. He failed to disclose this in his applications, or when the Board met on May 12 and August 25, 1988 to consider this matter.
The Issue The issues are whether respondents’ motions to dismiss the amended petitions should be granted on the ground they were not timely filed, or whether the time limitation for filing a request for hearing was equitably tolled.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Petitioners, Judge Ray and Gerra Gatlin (petitioners or Gatlins), own a parcel of real property in the central portion of Baker County, Florida, generally located to the north of U. S. Highway 90 between Glen St. Mary and Macclenny, Florida. Respondent, St. Johns River Water Management District (District), is the state agency charged with the responsibility of issuing Water Resource Management (WRM) and Management and Storage of Surface Water (MSSW) permits within its boundaries. Respondent, Department of Transportation (DOT), is a state agency charged with the responsibility of maintaining the state highway system. On April 27, 1993, DOT filed two applications with the District seeking MSSW and WRM permits for a road widening and bridge replacement project on State Road 10, also known as U. S. Highway 90, in Baker County. After notices of receipt of application and intent to grant the applications were published in a local newspaper on June 3 and July 22, 1993, respectively, and no requests for a hearing were received, the District issued the two permits on August 10, 1993. On December 20, 1996, or 1,216 days after the permits had been issued, petitioners filed their petitions for administrative hearing to contest the issuance of the permits. The petition challenging the MSSW permit has been assigned Case No. 97-0803 while the challenge to the issuance of a WRM permit has been assigned Case No. 97-0804. As amended on February 10, 1997, the petitions generally allege that the Gatlins were not given actual notice of the WRM application as required by a District rule, DOT supplied inaccurate or false information in the applications as to the ownership of the property on which a portion of the work was to be performed, and the District's notice was confusing and misleading. Because of this, they contend the time limitation for challenging the permits was equitably tolled. Motions to dismiss the amended petitions on the ground they are untimely have been filed by the District and DOT, and they are the subject of these proceedings. Events Prior to Issuance of the Permits As early as 1990 or 1991, the DOT began planning for certain improvements to State Road 10 from County Road 125 in Glen St. Mary, Florida, east to State Road 121 in Macclenny, Florida. The work involved the widening of the road from two to four lanes and replacing an existing bridge. Excluding the work within the two municipalities, the total length of the project was less than two miles. On April 23, 1991, the DOT sent all property owners along U. S. Highway 90 a letter advising that a public meeting would be held on May 16, 1991, to discuss the proposed improvements. Although DOT records indicate that petitioners were on the mailing list, petitioners deny that they ever received a letter. In addition to a personal letter to each owner, notice of the meeting was published in a local newspaper. Another meeting with owners of property adjacent to S. Highway 90 was held on August 13, 1992, concerning the proposed project. Although a letter was sent to all property owners on July 21, 1992, advising that such a meeting would be held, petitioners deny that they ever received one. A notice of the meeting was also published in a local newspaper. The MSSW permit On April 23, 1993, DOT filed with the District an application, with various attachments, seeking the issuance of a MSSW permit. If approved, the permit would authorize DOT to construct surface water works, including the treatment of stormwater runoff by wet detention ponds, on an approximately eleven acre site. The application described the project as follows: The proposed facility typical section will be a four-lane roadway with a center turn lane through Glen St. Mary and unincorporated Baker Co. [T]hrough Macclenny, the typical section will be a two-lane roadway with a center turn lane. It further described the location of the project as follows: The segment of SR 10 (US 90) presented in this application begins approximately 500 feet west of the intersection of SR 10 and CR 125 and runs east to the intersection of SR 10 and SR 121. The project is located in Section 36, Township 2 south, and Range 21 east and Sections 31 and 32, Township 2 south, and Range 22 east in Baker County. In answer to a question regarding who owned the works to be constructed, DOT identified itself as the owner. The application did not require, however, that an applicant certify that it was the present owner of the property on which the proposed works were to be constructed. In fact, DOT followed its standard practice of not filling in the areas on the application form that asked for "Project Acreage" and "Total Acreage Owned" because it did not know exactly how much property it would need to acquire through exercise of its power of eminent domain until the District had approved the design of the proposed surface water works. It was clear, however, that DOT had the ability and intention to acquire whatever property was needed through eminent domain proceedings. Attached to the application were certain sketches. They did not depict the storm detention pond which was to be built on the Gatlins' property. Under an applicable District rule and statute, the District was required to give actual notice of the application only to persons who had previously filed a written request for such notice. Because petitioners had not made such a request, they were not given actual notice. In the absence of a written request, the statute allows constructive notice of the agency’s intended action to be provided by publication in a newspaper of general circulation in the county in which the work is to be performed. The specific requirements for this notice are found in Rule 40C-1.511(5), Florida Administrative Code. They include "a brief description of the proposed activity and its location," "location of the application," "statement of the District's intended action," "scheduled date of Board action," and "notification of administrative hearing opportunity." On July 22, 1993, the District published notice of its intended agency action in The Baker County Press, a weekly newspaper of general circulation published in Macclenny, Florida. The notice read, in pertinent part, as follows: The District gives notice of its intent to issue a permit to the following applicant on August 10, 1993: FLORIDA DEPARTMENT OF TRANSPORTATION, P. O. Box 1089, Lake City, Fla., 32056, application #4-003-0010AG. The project is located in Baker County, Sections 31, 32 & 36, Township 02 South, Ranges 21 & 22 East. The application is for the CONSTRUCTION OF A SURFACE WATER MANAGEMENT SYSTEM ASSOCIATED WITH THE WIDENING OF SR 10 (U.S. 90) FROM CR 125 TO SR 121. The receiving waterbody is the St. Mary's River. The file containing the above-listed application is available for inspection Monday through Friday except for legal holidays, 8:00 am to 5:00 pm at the St. Johns River Water Management District headquarters or the appropriate field office. The District will take action on the permit application listed above unless a petition for an administrative hearing is filed pursuant to the provisions of section 120.57, F.S., and section 40C-1.511. A person whose substantial interests are affected by the District’s proposed permitting decision identified above may petition for an administrative hearing in accordance with section 120.57, F.S. Petitions must comply with the requirements of Florida Administrative Code Rules 40C-1.111 and 40C- 1.521 and be filed with (and received by) the District Clerk, P.O. Box 1429, Palatka, Florida 32178-1429. Petitions must be filed within fourteen (14) days of publication of this notice or within fourteen(14) days of actual receipt of this intent, whichever occurs first. Failure to file a petition within this time period shall constitute a waiver of any right such person may have to request an administrative determination (hearing) under Section 120.57, F.S., concerning the subject permit application. Petitions which are not filed in accordance with the above provisions are subject to dismissal. Thus, the notice provided a brief description of the project and its location, the location of the application, the District's intended action, the scheduled date of Board action, and notification as to the right of a hearing. Although petitioners acknowledge that they never read the notice, they contend that, even if they had read it, the notice was nonetheless misleading and confusing in several respects. First, they point out that the legal notice identified the receiving waterbody as the St. Mary's River. The application, however, identified the receiving water as the South Prong St. Mary's River whereas the technical report of the District staff identified the receiving water as the Little St. Mary's River. The South Prong St. Mary's River and the Little St. Mary's River are the same river, and it eventually flows into the St. Mary's River approximately six miles north of petitioners' property. Therefore, the notice is technically correct since the larger St. Mary's River is the ultimate receiving water for the smaller tributary. Even if the notice was in error in this respect, however, for the reasons cited below, the error was immaterial and would not mislead or confuse readers. The notice provides further clarification on the project's location by stating that the project encompasses the "construction of a surface water management system associated with the widening of SR 10 (U.S. 90) from CR 125 to SR 121." This clearly alerts the reader that the project is on or near U. S. Highway 90 between Glen St. Mary and Macclenny, a short stretch of road less than two miles in length. Given this description, a reasonable person would not assume that the work would take place on the St. Mary's River, six miles to the north, as petitioners suggest. Petitioners also point out that the notice identified the location of the project as "Sections 31, 32 & 36, Township 02 South, Ranges 21 & 22 East," an area petitioners say encompasses some 1,900 acres of land. Because the MSSW project will actually involve only 11 acres of land, they contend the notice is misleading. Although the notice identifies three sections, and each section is one square mile, the notice alerts the reader that the project will be confined to the "widening of S. R. 10 (U. S. 90)" between Glen St. Mary and Macclenny, a relatively short stretch of roadway. Finally, the notice provided that a copy of the application was on file at the "appropriate field office" of the District should any member of the public desire more detailed information. Petitioners' property lies within Sections 31 and 36 and would therefore be affected by the application. Although they reside in Baker County, petitioners did not subscribe to The Baker County Press, and therefore they did not read the legal advertisement. Accordingly, a request for a hearing was not filed by petitioners by the August 10 deadline. When no requests for a hearing were filed within the fourteen day time limitation, the District took final agency action on August 10, 1993, and issued MSSW permit number 4-003-0010G. The WRM permit On April 27, 1993, DOT filed with the District an application, with attachments, seeking the issuance of a WRM permit. If approved, the permit would authorize the excavation and filling (dredging and filling) associated with the bridge replacement over the Little St. Mary's River, also known as the South Prong St. Mary's River, midway between Glen St. Mary and Macclenny on U. S. Highway 90. The dredge and fill project encompasses approximately one-half acre of land. The WRM application contained the same description and location of the project as did the MSSW permit application. Question 14 on the application form required an applicant to certify as to ownership of the property. The applicant could either indicate that it was the record owner of the property on which the proposed project was to be undertaken, or it could indicate that it was not the record owner, but it intended to have the requisite ownership before undertaking the proposed work. DOT checked off the box which indicated that it was the record owner. At hearing, a DOT representative agreed that this was an incorrect response since around 8,953 square feet of the land on which the dredging and filling would take place was then owned by petitioners. In hindsight, the DOT witness says he probably should have checked off both boxes since DOT owned most of the property and would acquire the remaining part through eminent domain proceedings before the project began. Acquisition of the land was clearly within DOT's power and authority. There is no evidence that DOT provided the information with the intent of misleading the District, or that the ownership information affected the District's decision. In 1988, the Department of Environmental Regulation (DER), now known as the Department of Environmental Protection, delegated its dredge and fill permitting authority to water management districts. In carrying out that delegation of authority, the districts were required to follow all applicable DER rules. One such rule, Rule 62-312.060(12), Florida Administrative Code, required that the District forward a copy of the application to and request comments from the adjacent waterfront property owners unless the number of owners was so extensive that personal notice was impractical. Petitioners own adjacent waterfront property, and it was not shown that the number of waterfront owners was so extensive that personal notice was impractical. To implement the above rule, question 5 on the application form required the applicant to identify all adjacent waterfront owners. DOT answered "See Attachment." At hearing, the individual who prepared the application "believed" that a list was attached to the application when it was filed with the District, but he could not locate a copy of the list in his file. The application was the first dredge and fill permit application for Baker County processed by the District. When the application was received by the District, a clerical employee reviewed the application to determine if it was complete. If an item was missing, the clerk was instructed to note the missing item on an "initial checkoff sheet." In this case, a "very, very cursory look" was made, and no box on the checkoff sheet was marked. This would indicate that the list was attached to the application. After this review was made, the application was sent to the technical staff for review. Whether the attachment was ever received by the District, and then lost or misplaced, is conjecture. In any event, a District witness acknowledged that there may have been a "mix-up" during the initial review. Because the District had no attached list, it gave no actual notice to adjacent owners, including petitioners, prior to publication of the notice. Therefore, the rule requiring actual notice on this type of application was not satisfied. Except for this instance, the District is unaware of any other occasion when a list of adjacent waterfront property owners, through inadvertence, was lost or not provided. On July 22, 1993, the District published notice of its intent to issue a permit in The Baker County Press. The notice read, in pertinent part, as follows: The District gives notice of the Intent to Issue a permit to the following applicant on August 10, 1993: FLORIDA DEPARTMENT OF TRANSPORTATION, P. O. Box 1089, Lake City, Fla., 32056, application #4-003-0010AG. The project is located in Baker County, Sections 31, 32 & 36, Township 02 South, Ranges 21 & 22 East. The application is for EXCAVATION AND FILLING ASSOCIATED WITH THE WIDENING OF SR 10 (U.S. 90) FROM CR 125 TO SR 121. The receiving waterbody is the St. Mary's River. The file pertaining to the above-listed application is available for inspection Monday through Friday except for legal holidays, 8:00 am to 5:00 pm at the St. Johns River Water Management District headquarters or the appropriate field office. The District will take action on the permit application listed above unless a petition for an administrative proceeding (hearing) is filed pursuant to the provisions of section 120.57, F.S., and section 40C-1.511, F.A.C. A person whose substantial interests are affected by the District’s proposed permitting decision identified above may petition for an administrative hearing in accordance with the requirements of Florida Administrative Code Rules 40C-1.111 and 40C-1.521 and be filed with (received by) the District Clerk, P.O. Box 1429, Palatka, Florida 32178-1429. Petitions for administrative hearing on the above application must be filed within fourteen (14) days of publication of this notice or within fourteen (14) days of actual receipt of this intent, whichever first occurs. Failure to file a petition within this time period shall constitute a waiver of any right such person may have to request an administrative determination (hearing) under section 120.57, F.S., concerning the subject permit application. Petitions which are not filed in accordance with the above provisions are subject to dismissal. Thus, the notice provided a brief description of the project and its location, the location of the application, the District's intended action, the scheduled date of Board action, and notification of hearing opportunity. Even though they did not read the notice, petitioners contend that it was "confusing and misleading to any readers." First, they point out that the legal notice identifies the receiving water as the St. Mary's River. Both the application and technical report of the District staff, however, identified the receiving water as the South Prong St. Mary's River. The South Prong St. Mary's River flows north and south and crosses under U. S. Highway 90 at the bridge replacement site. It eventually flows into the St. Mary's River, which is approximately six miles further north and forms the boundary between Florida and Georgia in that area. Therefore, the notice was technically correct since the St. Mary's River is the ultimate receiving water from the smaller tributary. Even if the notice erred in this respect, the error was immaterial and would not mislead the reader. This is because the cited sections, township, ranges and road being improved are all at least five miles south of the St. Mary's River, and thus the notice could not lull readers into believing that the project would actually be closer to that river, some six miles to the north. Petitioners also point out that, even though the dredge and fill project encompasses only one-half acre, the notice identifies the project as being located in Sections 31, 32, and 36, Township 2 South, Ranges 21 and 22 East, a tract of some 1,900 acres. These sections, township and ranges are the same ones included in the legal description of the then existing right-of-way for U. S. Highway 90 owned by DOT and which was attached to the application. While it is true that each section is one square mile, the actual work site within the sections was narrowed considerably by advice that the work would be "associated with the widening of SR 10" between Glen St. Mary and Macclenny. Given this information, a prudent person owning land on U. S. Highway 90 between the two municipalities would be alerted that the project might well impact his property. Finally, the notice provided that a copy of the application was on file for review if any member of the public desired more specific information. As a corollary to the above argument, petitioners contend that the notice implies that dredge and fill work will only be performed on DOT's existing right-of-way since the sections, township and ranges track the legal description of DOT's right-of-way along U. S. Highway 90. Again, however, only a "brief description" of the project's location is required, and the above description in the notice satisfies this requirement. Although petitioners reside in Baker County, they did not subscribe to the local newspaper, and therefore they did not read the legal advertisement. Accordingly, they did not file a request for a hearing. When no requests for a hearing were received within fourteen days after publication of the notice, on August 10, 1993, the District issued WRM permit number 12-003-0001G. C. Events After Issuance of the Permits On September 22, 1994, DOT sent to petitioners, by certified mail, a Letter of Notification regarding DOT's intention to acquire the interest in eight parcels of the Gatlins' property for the road improvement project. The letter was received by Gerra Gatlin on September 23, 1994. While the letter did not specifically state that a detention pond and bridge replacement project would be built on the Gatlins' property, it explained that DOT was currently planning the construction of a "highway facility" on State Road 10 and that its records indicated that petitioners owned property within the area which was needed for right-of-way on this project. The letter went on to describe the project in general terms, and it referenced parcel 140 which was owned by the Gatlins. On a separate parcel information sheet attached to the letter, parcel 140 was divided into three parcels: 140A, 140B, and 140C. The sheet noted that parts B and C were designated as "water storage" areas. Parcel 140B is 10.727 acres in size and will hold the stormwater detention pond currently being constructed by DOT. A portion of the dredge and filling related to the bridge replacement project will occur on parcel 140C. Ray Gatlin acknowledged that he became aware of a "pond" when he initially reviewed the packet, but he was not sure in which part of parcel 140 the pond would be located since the "printing was off" on the drawings, and he could not find parcel 140C. Therefore, he immediately hired a Jacksonville attorney, Robert S. Yerkes, to represent him and his wife in the condemnation matter. On October 31, 1994, Yerkes sent a letter to DOT requesting a copy of "the current right way map and construction plans, as well as the present schedule for aquisition and construction." On November 17, 1994, DOT sent Yerkes the right-of-way maps but noted that "[c]onstruction plans are still not available." Whether Yerkes requested the construction plans after that date is not of record. On May 22, 1995, a DOT right-of-way specialist met with Yerkes and Ray Gatlin regarding the acquisition of the Gatlins’ property. On July 19, 1995, DOT initiated an action in eminent domain against petitioners, and several other landowners, by filing a petition in the Circuit Court of Baker County. Among other things, the petition sought to condemn parcels 140A, 140B, and 140C owned by petitioners. An Order of Taking was entered by the court on September 6, 1995, which conveyed fee simple title of parcel 140, and its parts, to DOT. When Yerkes "didn’t get the job done," the Gatlins hired new counsel, who made an appearance on July 31, 1996. Just prior to the appearance of new counsel, and because of "a problem with the assessment," the Gatlins hired an environmental consultant, Peter M. Wallace, to verify whether DOT had correctly told them that no jurisdictional wetlands existed within the parcel being condemned. At this time, the Gatlins were in a dispute with DOT over the value of their property. After determining that wetlands existed on the parcel, Wallace made inquiry in late July 1996 with a District employee, Christine Wentzel, to ascertain if any permits had been issued to DOT for a project on U. S. Highway 90 between Glen St. Mary and Macclenny. Wentzel was unaware of any permits being issued, but she referred Wallace to Helen Cortopassi, who would have reviewed the applications three years earlier. Cortopassi told Wallace that no permits relating to this project had been issued. Because Wallace believed that the storm detention pond would impact wetlands, and therefore required a review by DER or the United States Army Corps of Engineers, he made similar inquiries with those two agencies regarding the issuance of permits. He was assured that those two agencies had not issued permits. In late September 1996, Cortopassi telephoned Wallace and advised him that a further review of her files revealed that two permits had been issued for the project. Because Wallace had inquired about permits for a project on U. S. Highway 90, and Cortopassi had created a file for the project under State Road 10 (rather than U. S. Highway 90), she had failed to discover them when Wallace first made his inquiry two months earlier. On October 15, 1996, Wallace went to the DOT office and reviewed its files pertaining to the project. He found copies of the issued permits and a set of construction plans which revealed a pond. A public records request filed by the Gatlins' counsel with DOT in September 1996 was later granted, and copies of the applications were eventually obtained from DOT on December 9, 1996, or almost three months after the request was made. Within fourteen days thereafter, or on December 20, 1996, the Gatlins filed their initial requests for a hearing. DOT did not begin work on the project until March 1997, or some three months after the requests for hearing were filed. Photographs received into evidence show that, in April 1997, some excavation work was being done around the bridge site. Work has continued during the pendency of this proceeding. At least a small portion of the storm detention pond will be built in wetlands. The District made no review of the wetlands impact associated with the pond. Had this been done, a disclosure of the pond in the dredge and fill permit application would have been required. Petitioners contend that, if actual notice of the WRM had been given, as required by rule, and a wetlands impact performed, in this way they would have had actual notice of the MSSW application by simply reviewing the WRM application. The District contends, however, that the content and manner of notice would not have changed.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the St. Johns River Water Management District enter a final order granting the motions to dismiss and dismissing the amended petitions for hearing in Case Nos. 97-0803 and 97-0804 with prejudice. DONE AND ENTERED this 14th day of July, 1997, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 \ COPIES FURNISHED: Filed with the Clerk of the Division of Administrative Hearings this 14th day of July, 1997. Henry Dean, Executive Director St. Johns River Water Management District Post Office Box 1489 Palatka, Florida 32178-1489 J. Victor Barrios, Esquire 1026 East Park Avenue Tallahassee, Florida 32301-1673 Susan K. S. Scarcelli, Esquire Post Office Box 3399 Tampa, Florida 33601-3399 Nancy B. Barnard, Esquire Post Office Box 1429 Palatka, Florida 32178-1429 Francine M. Ffolkes, Esquire Mary S. Miller, Esquire Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0458
