Findings Of Fact The Department is the state agency charged with the responsibility of enforcing Chapter 253, Florida Statutes on behalf of the Board of Trustees of the Internal Improvement Trust Fund (Board). The Board holds title to submerged sovereign lands pursuant to Sections 253.03 and 253.12, Florida Statutes, and Article X, Section 11, Florida Constitution. Fraraccio, together with his wife, owns a parcel of real property located in section 13, township 38 south, range 41 east which is commonly known as 26 High Point Road and which is located in Martin County, Florida. The southern boundary of the Fraraccio's property (subject property) borders the St. Lucie and Indian Rivers. In June, 1987, Fraraccio filed an application for permission to alter mangroves which grow along the shoreline of the subject property. It was Fraraccio's intention to cut the tops of the trees in order to promote horizontal growth. This application was filed with and processed by the Department of Environmental Regulation (DER). On September 1, 1987, DER issued a permit for the mangrove alteration. Pertinent to this proceeding is the following specific condition of the Fraraccio permit: 4. "No person shall commence mangrove alteration or other activity involving the use of sovereign or other lands of the state, title to which is vested in the Board of Trustees of the Internal Improvement Trust Fund or the Department of Natural Resources under Chapter 253, until such person has received from the Board of Trustees of the Internal Improvement Trust Fund the required lease, license, easement, or other form of consent authorizing the proposed use. Pursuant to Florida Administrative Code Rule 16Q-14, if such work is done without consent, or if a person otherwise damages state land or products of state land, the Board of Trustees may levy administrative fines of up to $10,000 per offense. In October, 1987, the Department's Bureau of Survey and Mapping was asked to survey the west line of the Jensen Beach to Jupiter Inlet Aquatic Preserve (Preserve) at the confluence of the St. Lucie River. Terry Wilkinson, chief surveyor for the bureau, conducted the field survey on October 14-16, 1987. Mr. Wilkinson placed a metal rebar with a cap designating "D.N.R." at a point on the mean high water (MHW) line at the Fraraccio's property. Mr. Wilkinson also staked three points with lathe markers on a line northerly along the MHW line from the rebar monument. It was Mr. Wilkinson's opinion that the Preserve abutted the Fraraccio property from the point marked by the rebar monument northward along the coast. That portion of the Fraraccio property which was south and west of the rebar did not abut the Preserve. Fraraccio disputed the findings regarding the Preserve boundary reached by Wilkinson and did not concede that his property abuts the Preserve. On December 15, 1987, the issue of the Preserve boundary was taken before the Governor and Cabinet sitting as the Board at the request of the Department, Division of State Lands. Fraraccio was represented before the Board by counsel who argued against the staff recommendation. Mr. Wilkinson's interpretation of the boundary line for the Preserve was approved. That area waterward of the MHW line from the rebar monument northerly along the Fraraccio shoreline was, therefore, deemed to be part of the Preserve and sovereign submerged land. Prior to cutting any mangrove trees, Fraraccio telephoned Casey Fitzgerald, chief of the Department's Bureau of State Lands Management, to inquire as to whether Department permission was required to trim mangroves located above the MHW line. Fitzgerald's letter advised Fraraccio "that trimming mangroves located above the MHW line would not be within the purview of this department." Fitzgerald further recommended that Fraraccio "employ the services of a registered land surveyor to specifically identify the individual trees which are so located." Fraraccio did not obtain an independent survey. Instead, he relied upon the rebar monument and the lathe markers placed by Wilkinson, and contracted to have the mangroves landward of that line trimmed. One of difficulties encountered in determining the location of a mangrove in relation to the MHW line is the fact that one tree may have several trunks and prop roots which emanate from the center of the tree. Consequently, there is some uncertainty regarding how to locate the tree. One method used locates the centermost trunk and considers that point the tree location. Another method calculates the greatest percentage of tree mass and considers that point the center of the tree. This calculated center is then matched against the MHW line. Either method results in a judgment based upon visual inspection. This judgment may differ among reasonable men. In January, 1988, Fraraccio supervised the cutting of mangroves based upon the MHW line as established by the Wilkinson survey. Fraraccio did not intend to cut trees waterward of the MHW line. No trees were cut waterward of the Wilkinson line. A number of trees were trimmed landward of the Wilkinson line. There is no evidence that either the rebar monument or the lathe markers placed by Wilkinson were moved either prior to or after the mangrove alteration. Fraraccio was responsible for the direct supervision of the workmen who completed the mangrove trim. No work was done without Fraraccio's authorization. On March 22, 1988, Kalani Cairns, inspected the Fraraccio property. Cairns took field notes of the inspection. One of comments made at that time was that it was "difficult to determine if MHWL stakes have been moved." Based upon his review of the area, Cairns determined approximately 20 mangrove trees below the MHW line had been topped. Subsequently, the Department issued the Notice of Violation and Order for corrective action. Since Fraraccio did not believe he had cut waterward of the MHW line, no corrective measures were taken. Subsequent to the Notice, additional mangroves were not cut. Fraraccio timely sought review of the notice. In preparation for the formal hearing in this cause, the Department contracted with Greg Fleming to prepare a survey of a portion of the Fraraccio property. The purpose of this second survey was to locate the MHW line along the Fraraccio shoreline and to plot mangrove trees which had been trimmed and which were waterward of the line. Approximately 24 trimmed mangrove trees were located waterward of the MHW line as determined by the Fleming survey. The Fleming survey resulted in a MHW line which was upland of the line established by the Wilkinson survey. The trimmed trees in dispute are located between the two lines, as marked on the ground, by the lathes placed by the two surveyors. Mr. Wilkinson did not testify and no credible explanation was given for why the lines, as marked in the field, differ. At the time of the cutting, however Fraraccio believed the Wilkinson lathes marked the MHW line. This belief was based upon the representations that the Department had made regarding the rebar monument marked "D.N.R." and the fact that the placement of the lathe stakes had coincided with placement of the rebar.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Trustees of the Internal Improvement Trust Fund enter a final order dismissing the Notice of Violation against Charles A. Fraraccio. DONE and ENTERED this 23rd day of June, 1989, in Tallahassee, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of June, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-4309 Rulings on the proposed findings of fact submitted by Petitioner: Paragraphs 1 through 5 are accepted. With regard to paragraph 6, it is accepted Wilkinson put down three lathes and that there is no evidence that those lathes were moved. Otherwise, the paragraph is rejected. Mr. Wilkinson did not testify and, therefore, no evidence was presented on the issue of the lathes. It is clear Fraraccio believed the lathes to be the MHW line. Paragraph 7 is accepted. Paragraph 8 is rejected as contrary to the weight of the evidence. The MHW line was correctly depicted on the ground and on paper by the Fleming survey which was done after-the-fact. Pertinent to this case is the fact that Fraraccio and DNR treated the Wilkinson survey on the ground (as shown by-the rebar and the three lathes) as the MHW line prior to the cutting. Paragraph 9 is accepted. With regard to paragraph 10, the record shows Fleming was contacted to perform the second survey in December, 1988, and that it was dated February, 1989. With that modification and clarification, paragraph 10, in substance, is accepted. Paragraph 11 is accepted to the extent that the two surveys differed on the ground (as opposed to on paper). Paragraphs 12, 13, and 14 accepted but are irrelevant. With regard to paragraph 15, it is accepted that the workmen were instructed not to cut waterward of the MHW line. The remainder is irrelevant to this proceeding. Paragraphs 16 through 18 are accepted. With regard to paragraph 10, it is accepted Fraraccio cut or trimmed the trees based upon the Wilkinson survey as depicted by the rebar and 3 lathe markers. Otherwise, paragraph 19, is rejected as irrelevant. Paragraph 20 is accepted. Paragraph 21 is rejected as irrelevant to this proceeding. Rulings on the proposed findings of fact submitted by the Department. Paragraphs 1 through 16 are accepted. The first sentence of paragraph 17 is accepted since both surveys coincided at the point of the rebar marked "D.N.R.;" otherwise, the paragraph is rejected as contrary to the weight of evidence since the surveys differed as plotted on the ground. Paragraphs 18 and 19 are accepted. Paragraph 20 is rejected as irrelevant. Paragraph 21 is accepted. Paragraph 22 is rejected as contrary to the weight of the credible evidence. Paragraph 23 is rejected as irrelevant. The number of trees cut waterward of the MHW line as established by the Fleming survey was approximately The size of the trees is irrelevant. Paragraph 24 is rejected as irrelevant. Paragraphs 25 and 26 are accepted. Paragraph 27 is rejected as irrelevant to this proceeding. COPIES FURNISHED: William L. Contole McManus, Wiitala & Contole, P.A. O. Box 14125 North Palm Beach, Florida 33408 Ross S. Burnaman Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Tom Gardner, Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, FL 32399-3000
The Issue Whether the Ochlocknee Management Corporation has demonstrated that development rights in certain real property it owns have vested against the provisions of the 2010 Comprehensive Plan?
Findings Of Fact The Initial Purchase. In January, 1986, Ochlocknee Management Corporation (hereinafter referred to as "Ochlocknee"), began negotiations for the purchase and development of land located on Buck Lake Road (hereinafter referred to as the "Buck Lake Property"). On January 25, 1986, a document indicating an intent to sell 100 acres of the Buck Lake Property to Ochlocknee was executed. On October 31, 1986, a Contract for Sale was entered into between Ochlocknee and the owners of the Buck Lake Property. Pursuant to the Contract for Sale, Ochlocknee agreed to purchase 100 acres of the Buck Lake Property (hereinafter referred to as the "100 Acres"). The 100 Acres were to be developed in three phases by Ochlocknee. The development was named Avondale. In February of 1987, the 100 Acres were rezoned and platted. The Development of Units I, II and III. Development of Avondale Unit I began in March, 1987. In August, 1987, the Unit I plat was recorded. All roads, utilities and storm water for Unit I were complete. In April, 1988, development of Avondale Unit II began. The development of Unit II began approximately 8 months after the Unit I plat was recorded. In October, 1988, the Unit II plat was recorded. All roads, utilities and storm water for Unit II were complete. In May, 1989, development of Avondale Unit III began. The development of Unit III began approximately 7 months after the Unit II plat was recorded. In November, 1989, the Unit III plat was recorded. All roads, utilities and storm water for Unit III were complete. During the construction of Unit III Ochlocknee intended to purchase an additional parcel of the Buck Lake Property. This property was to be developed as additional phases or units of the Avondale development, including Avondale Unit IV, the development which is the subject of this proceeding. When constructed, the main road running through Units I, II and III was intended to continue through, and serve, Avondale Unit IV. The road is the only road providing access between Unit IV and Buck Lake Road. Utilities for Unit III were designed and stubbed to serve Unit IV. The weight of the evidence failed to prove that any action which Leon County took in approving the development of Units I, II, or III could have been reasonably relied upon by Ochlocknee in its development of Unit IV. Most of Leon County's actions in approving the development of Avondale were taken before the Unit IV property was even purchased. Additionally, the evidence failed to prove that Leon County specifically reviewed any plans concerning Ochlocknee's plans to develop Unit IV until after the preliminary plat for Unit IV was filed for approval. The Second Purchase. In November, 1988, Ochlocknee began negotiations for the purchase of the additional parcel of the Buck Lake Property to be developed as Unit IV. The property consisted of 40.5 acres and was to be developed as Unit IV, the development at issue in this proceeding, and Unit V. In March, 1989, the owners of the 40.5 acres applied for rezoning of the 40.5 acre parcel from A-2 (agricultural use) to R-1 (residential use). In March, 1989, Ochlocknee entered into a Contract for Sale and Option, pursuant to which Ochlocknee was to purchase the 40.5 acres. Unit IV was to consist of 10 acres of the parcel. The 10 acres abut Unit III. The remaining 30.5 acres of the parcel were to be developed as Unit V. In May, 1989, the 40.5 acre parcel was rezoned as R-1, limited use. The zoning limited septic tanks on the property to 2.2 units per acre. On June 27, 1989, Ochlocknee purchased the 10 acres to be developed as Unit IV. The Regional Stormwater Facility. In April, 1988, Poole & Associates, Inc. (hereinafter referred to as "Poole"), prepared plans and designs for a regional stormwater facility for 126 acres of the Buck Lake Property. Poole provided the engineers for Avondale. The plan developed by Poole was intended to handle stormwater for all of Units II and III, all of what was to be Unit IV, part of what was to be Unit V and part of the Buck Lake Property which was not to be developed by Ochlocknee. This regional stormwater facility will hereinafter be referred to as the "Stormwater Facility". The plans and designs for the Stormwater Facility were completed before Unit IV was purchased by Ochlocknee and before Unit IV was rezoned from A-2 to R-1. In July, 1989, Ochlocknee began construction of the Stormwater Facility. Ponds used in the Stormwater Facility are located on Unit III. In November, 1989, when the Unit III plat was recorded, the Stormwater Facility was substantially completed. The Stormwater Facility was generally approved upon the recording of the Unit III plat. Recording of the Unit III plat and the approval of the Stormwater Facility only applied to the use of the Stormwater Facility for Unit III. The use of the Stormwater Facility for Unit IV was not approved or even reviewed by Leon County in November, 1989. Ochlocknee was required to maintain the Stormwater Facility for an additional year after it was approved for Unit III. After approval of the Stormwater Facility for Unit III, problems arose with the Stormwater Facility. These problems began as early as August, 1989 based upon an August 31, 1989, letter from Broward Davis & Assoc., Inc., to Ochlocknee. In a letter dated November 22, 1989, from the Respondent's engineering inspectors, Poole was provided with a "punch list" of problems associated with Units I, II and III, including problems associated with the Stormwater Facility. The punch list was developed during a meeting held on November 21, 1989. Ochlocknee informed Leon County that the problems raised in the letter referred to in finding of fact 29 would be resolved in 30 days. The problems continued, however, into 1990. Efforts continued during the remainder of 1989 and early 1990 to resolve the problems. On January 17, 1990, a new Environmental Management Act became effective in Leon County. Ochlocknee was required to insure that its proposed use of the Stormwater Facility for Unit IV complied with the Act. In a letter dated February 22, 1990, Leon County notified Poole that preliminary plans for the development of Unit IV which had been submitted to Leon County had been reviewed. Poole was informed that additional information concerning the preliminary site plans was needed before Unit IV could be approved for development. Among other things, Leon County informed Poole that additional information concerning the use of the Stormwater Facility for Unit IV would have to be submitted. Unit IV Development. In October, 1988, Poole prepared a preliminary site plan for the development of Unit IV. These plans were prepared before the property which constitutes Unit IV was purchased or rezoned from A-2 to R-1. On June 27, 1989, Ochlocknee purchased the 10 acres of Unit IV for $104,956.50. In November, 1989, Ochlocknee entered into an agreement with Poole to design roadways, utilities and obtain construction approvals for Unit IV. On December 1, 1989, preliminary plat approval for Unit IV was applied for. The preliminary plat was approved by the Tallahassee-Leon County Planning Department on January 10, 1990. On January 17, 1990, the City of Tallahassee approved the water distribution plans for Unit IV. On January 12, 1990, the City of Tallahassee agreed to provide water and electrical service for Unit IV. On February 2, 1990, a commitment for a construction loan for Unit IV was received by Ochlocknee. The Leon County comprehensive plan was submitted to the Department of Community Affairs on February 1, 1990. Ochlocknee should have been aware of the drafting of the comprehensive plan and the fact that it had been provided to the Department of Community Affairs for approval. 41 In March, 1990, Poole completed final construction drawings for the Unit IV roadways. In April, 1990, Ochlocknee received contracts for the construction of roadways and utilities for Unit IV. In May, 1990, Poole held an onsite pre-construction conference with Leon County officials, utility providers and construction personnel. Poole placed stakes for clearing limits on Unit IV during May, 1990. On June 29, 1990, Leon County approved roadway construction plans for Unit IV. At the time that the preliminary plat for Unit IV was filed by Ochlocknee for approval, Ochlocknee knew that the Stormwater Facility needed to be modified before development of Unit IV would be approved. Despite this knowledge, Ochlocknee chose to continue to propose that the Stormwater Facility be used for Unit IV. These problems continued throughout the time after the preliminary plat for Unit IV was filed. In May, 1990, Leon County informed Ochlocknee that a permit for clearing and grading, the last permit needed to begin construction, would not be issued until the Stormwater Facility proposed for Unit IV was modified and the problems previously identified by Leon County with the Stormwater Facility in 1989, were corrected. Construction on Unit IV has not commenced. Costs Associated with Unit IV. The cost of rezoning the 10 acres of Unit IV was $2,911.25 plus a $300.00 fee. The $300.00 fee was incurred in March, 1989, before the Unit IV property was purchased or the rezoning had taken place. Therefore, the fee was not incurred in reliance upon any representation from Leon County. The $2,911.25 cost was incurred between October, 1988 and May, 1989. This amount was incurred before the purchase of the Unit IV property or the approval of the rezoning. Therefore, this cost was not incurred in reliance upon any representation from Leon County. The cost of purchasing the 10 acres which are to be developed as Unit IV was $104,956.50. This cost was incurred in June of 1989. The only action taken by Leon County concerning any possible development of Unit IV prior to the time this cost was incurred was to approve rezoning Unit IV from A-2 to R-1. The cost of purchasing the 10 acres of Unit IV was not, therefore, incurred in reliance upon any action of Leon County other than approval of the rezoning of Unit IV. The cost of constructing the Stormwater Facility attributable to Unit IV was approximately $8,000.00. This cost was incurred between July, 1989, and November, 1989. Therefore, the cost was incurred after the Unit IV property was rezoned but before the preliminary plat and the development plans for Unit IV were approved by Leon County. Therefore, the cost of the Stormwater Facility attributable to the Unit IV property was not incurred in reliance upon any action of Leon County other than approval of the rezoning of Unit IV. Ochlocknee failed to present sufficient evidence to conclude what expenses were incurred by it in stubbing the road and utilities that run through Units I, II, and III are attributable to Unit IV. The weight of the evidence also failed to prove when any such expenses were incurred. These expenses were incurred sometime after the development of Unit I began (before the Unit IV property was acquired or rezoned) and sometime before Unit III was completed (before the preliminary plat for Unit IV was approved). Therefore, any expenses attributable to Unit IV for the road and utilities were incurred before Leon County took any action with regard to the development of Unit IV or were incurred only in reliance upon the rezoning of the Unit IV property. Engineering, surveying and permitting costs associated with Unit IV totalled $13,384.49. These costs were incurred between January, 1990 and May, 1990. Prior to the expenditure of these funds Leon County had approved the rezoning of Unit IV, the preliminary plat and some of the other plans for the development of Unit IV. All of these costs were incurred after Ochlocknee had been informed that there was a problem with the Stormwater Facility. All of the engineering costs were incurred before Leon County had indicated that it would approve the development of Unit IV. On April 25, 1990, Ochlocknee refinanced the note for the 10 acres of Unit IV. The new note was for $219,750.00. This amount was borrowed to refinance the cost of purchasing the 10 acres and to pay construction costs for the development of Unit IV. The funds intended for construction costs for Unit IV have not, however, been expended. The weight of the evidence failed to prove what costs Ochlocknee incurred in obtaining the $219,750.00 note. All of the costs incurred by Ochlocknee relating to the development of Unit IV were incurred in an effort to obtain approval from Leon County for the development of Unit IV. The costs were incurred before any representation from Leon County that development of Unit IV would be allowed to proceed. Some of the costs were incurred before the Unit IV property was rezoned from an agricultural use to R-1. Leon County had taken no action before approval of the rezoning. Some of the costs were incurred only in reliance upon the rezoning of the Unit IV property. Finally, all of the costs were incurred in an effort to obtain approval to develop Unit IV and before Leon County indicated through any action that development of the property would be allowed to proceed. These costs were incurred at a time when Ochlocknee should have known that the development of Unit IV would probably have to be consistent with the 2010 Comprehensive Plan. Procedure. On or about August 1, 1990, Ochlocknee filed an Application for Vested Rights Determination (hereinafter referred to as the "Application"), with Leon County. The following information concerning the development of Unit IV was contained on the Application: "Ochlocknee Management" is listed as the "Owner/Agent." Question 3 of the Application requests the name of the project, including the name and address of each owner of, and interested party in, the project or property. "AVONDALE UNIT IV" was included as the response to question 3. The project is described as "22 Residential Lots on 10 acres, Proposed with Public Road, Water, and Recorded Plat." The project location is described as "AVONDALE WAY, SOUTH OF AVONDALE III." Total project costs are estimated at "$226,205.95" and it is estimated that "$126,952,24 " have been expended to date. "Progress . . . Towards Completion" is described as: (1) all utility site, drainage plans completed as of May 4, 1990; (2) preliminary plat approval 1/10/90, water plans approved 2/1/90 and environmental permit 6/27/90; and (3) the drainage facility located in Unit III is complete. "Preliminary Plat, Water Plan Approval, Environm. Permits" are included as forms of "government approval." The response to question 10 of the Application, which requests information concerning government action relied upon prior to committing funds towards completing the project, was "[s]ubdivision Ordinance for Preliminary Plat, The Letter of Agreement, Policy & Procedures Manual for Utilities and the Environmental Management Act for the Stormwater Permits." In a letter dated August 7, 1990, Ochlocknee was informed that its Application was being referred to a Staff Committee comprised of Jim English, Mark Gumula, Howard Pardue, Buddie Holshouser and Herb Thiele. By letter dated August 24, 1990, Ochlocknee provided additional information for the Staff Committee to consider. On August 27, 1990, a hearing was held to consider the Application before the Staff Committee. Barry Poole, of Poole, and Jody Elliott, of Ochlocknee, testified. By letter dated August 27, 1990, Mark Gumula, Director of Planning of the Tallahassee-Leon County Planning Department informed Ochlocknee that the Application had been denied. By letter dated September 5, 1990, to Mr. Gumula, counsel for Ochlocknee appealed the decision to deny the Application. By letter dated October 5, 1990, the Division of Administrative Hearings was requested to provide a Hearing Officer to review this matter. By agreement of the parties, the undersigned allowed the parties to supplement the record in this matter on October 25, 1990. During the hearing before the undersigned Ochlocknee stipulated that it had sought approval of its Application based upon "common law vesting" and not "statutory vesting" as those terms are defined in Leon County Ordinance 90- 31.
Findings Of Fact This dispute involves the construction of a dock from the uplands into Lake-Walk-In-The-Water near Lake Wales, Florida. Lake-Walk-In-The-Water Heights Subdivison consists of a platted subdivision of lots along Lake-Walk-In-The-Water. In addition to those lots fronting on the lake, the plat includes 25 additional lots across the street (Chambers) which runs alongside the western edge of the lots fronting on the lake. To provide them access to the lake, those 25 lot owners received with the purchase of their lots an undivided l/25th ownership of Lot 35A, a 68.78 feet wide lot running from Chambers Street some 350 feet eastward to the lake. Rapley Armstrong owns two of the 25 lots above referred to. He is the pastor at Castle Heights Baptist Church in Tampa where his permanent residence is located. He vacations at his property near Lake-Walk-In-The-Water. Jack Hardin is a retired airline pilot who lives on or near Lake-Walk-In-The-Water. Hardin owns Lot 35 which abuts Lot 35A to the south, and, with his wife, one of the 25 lots on Chambers Street. The residence on Lot 35 is occupied by a tenant of Hardin's. Several years ago Hardin constructed a small dock near the intersection of Lots 35 and 35A which provided access to the lake. He subsequently removed this dock. Several of the lot owners of the 25 lots on the west side of Chambers Street conceived the idea of erecting a dock from Lot 35A into the lake to provide them access and ,elected Armstrong treasurer to collect money for the materials needed. Armstrong allowed the cost of the materials to be charged to his credit card and, as a community project, the dock was built in one day by some 8 or 10 men including Hardin's tenant of Lot 35. After the dock was completed, Armstrong started to call the owners of the 25 lots to obtain their contribution of $110 each for the cost of the materials used to construct the dock. His first call was to Hardin who became very angry because he had not been consulted before the dock was built. This conversation was sufficiently upsetting to Armstrong that he did not call any of the other lot owners. By letter dated July 30, 1985 (Exhibit 1), Hardin complained to the Department of Natural Resources that Armstrong had constructed a dock which crossed into the riparian line of Lot 35 and sent with his letter photographs of the dock (Exhibit 2) and a plat (Exhibit 3) with the dock drawn in free-hand. Following a preliminary investigation by J. Gordon Roberts, an investigator with DNR, the Department sent Exhibit 4 to Armstrong advising him that the dock encroached into the riparian line of Lot 35 and directing him to remove the dock. Armstrong then filed the Petition which initiated these proceedings. In January 1985, Respondent conducted a survey to locate the dock with respect to the riparian rights line of Lot This survey established the riparian rights line between Lots 35 and 35A and showed the dock to have been constructed within the riparian rights line of Lot 35A and within 25 feet of that line. This places the dock within the setback zone established by Rule 16Q-21.04(3)(d), Florida Administrative code. While the survey was being conducted, DNR personnel met with Hardin and the owners of the lots who erected the dock to try and work out a compromise. During these meetings, Armstrong agreed to allow Hardin to remove the dock if he so desired but contended he did not own the dock or the land from which the dock started towards the water. Armstrong, with the other owners, agreed to remove the T-portion of the dock that extended into the riparian rights line of Lot 35 and to place a railing along the south side of the dock to deter people from encroaching on Lot 35 from the dock. While the owners were performing this work, Hardin came to the site and demanded they cease doing any work on the dock as the dock had to be removed and relocated. At this juncture those owners not parties to this action apparently decided they would no longer cooperate with Hardin and refused to grant permission for Hardin or anyone else to remove their property. Absent the consent of the other owners, Petitioner is without authority to remove this dock. Lake-Walk-In-The-Water is a large shallow lake some 7 miles by 8 miles in area and is a meandered lake.
The Issue The issue for consideration in this case is whether the Respondent's license as a certified general contractor in Florida should be disciplined because of the alleged misconduct outlined in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the allegations contained herein, the Petitioner, Construction Industry Licensing Board was the state agency responsible for the licensing and regulation of construction contractors in this state. Respondent, Frank W. Miller, was licensed as a certified general contractor in Florida under License No. CG C036176. On June 2, 1988, Lots of Casey Key, Inc., a group of investors and contractors, including the Respondent, purchased the land in question located in Sarasota County, Florida. On June 26, 1988, the group hired an environmentalist from a list provided by the county, who evaluated the property with a view toward development. The developers also hired a surveyor and an engineer to get the proper permits for the development. They also published all required notices and acquired at least some of the required permits for the initial stage of the development. This consisted of the construction of a fishing pier extending from the property into Sarasota Bay. This permit was taken out by the Respondent. The Respondent and his associates also contacted Robert B. Patten, an environmental consultant, with a view toward having the eight acres in question rezoned so that houses could be built on it. After examining the property, however, Mr. Patten advised Respondent there were so many protected mangroves on the property, both state and local permits would be required and he, Patten, was not interested in the job. He suggested that Respondent hire an attorney to insure the proper permits were obtained. Respondent claims that in January of 1989, he took his site drawing for the proposed development to the county natural resources office headed by Mr. McCarthy, told him what was planned at the property, and secured his approval. Mr. McCarthy was not called as a witness, and all the appropriate permits were not offered, so at most it can be found that McCarthy approved the concept of the activity in principle. At approximately this same time, the environmentalist the group hired to insure compliance with the environmental requirements purportedly also assured them that the proposal was environmentally sound and properly permitted. It is accepted that he did. As a result, the group acquired the state and county permit for the pier and, in addition, a permit to clear the uplands. They also procured a permit from the Southwest Florida Water Management District and the appropriate agency governing the construction and installation of utilities. In addition, the Respondent procured a permit allowing construction of a boardwalk and a seawall. He did not, however, procure the appropriate permit to allow him to cut, trim, or top mangroves in the numbers shown here. The group hired Southern Landscaping to do all the land work under a contract which called for all mangrove trimming to be done in accordance with the Division of Natural Resources rules This company, which was the low bidder in the procurement process, was relied on to trim the mangroves in accordance with the law and before beginning work, showed how the trees would be trimmed. It appeared to Respondent at this time that the work was being and would be done properly. On March 10, 1989, Belinda S. Perry, an employee of the county's Natural Resources Department, was out on Casey Key and observed that at the Respondent's work site clearing work was being done. She questioned the permitability of this work. She also observed that the mangroves on the north side of the property had been improperly cut, and she asked her associate, Mr. McCarthy, to check it out. He did and thereafter, on March 14, 1989, Respondent came to the office with a copy of his state-issued permit. After analyzing the permit and comparing the work done with the terms thereof, Ms. Perry and Mr. McCarthy advised Respondent it appeared his work was in excess of the limits imposed by his permit and that they would have to notify state authorities and get back to him. At that time, Respondent was cooperative and indicated he wanted to get the proper authorization. As a result, Ms. Perry contacted Ms. Toledo, of the Department of Environmental Regulation, discussed the possible violation with her, and arranged to visit the site with her on March 20, 1989. When they did, Ms. Perry again observed the cutting on the North side of the property in addition to which there was a corridor which had been cut to the east (water) side of the property heading toward the bay. At that point, they contacted Mr. McClintock, the forester, who examined the Respondent's permit. When he saw it permitted only the relocation of 20 palm trees and made no mention of or gave no approval of cutting or trimming of mangroves, he authorized the issuance of a stop work order on March 20, 1989. Ms. Perry and Ms. Toledo, pursuant to the terms of that order, served a copy on Mr. Miller and advised him he was in violation of both state and county regulations and should discontinue the work at the site. Ms. Toledo recalls that when she visited the site on March 20, 1989, she observed much the same situation as described by Ms. Perry. She also recognizes that one of Respondent's permits allowed the moving of palms, and he also had one for the construction of a fishing pier. As a part of this second permit, Respondent was allowed to cut mangroves. Nonetheless, she noted on her visit that in the area to the left of the pathway, many more mangroves had been cut than were allowed by the permit. This cutting was in the form of trimming in excess of any exemption criteria outlined in Rule 17-27.060, F.A.C., (17- 321.060), which allows trimming by a property owner without a permit, but of no more than 25 % of the lateral branches. The red mangroves on the property had been topped which is totally prohibited, and the trimming of the remaining white and black mangroves was to an extent in excess of the permitted 25%. At that time, Mr. Miller indicated to Ms. Toledo that he was the general contractor in charge of the site, and the workers doing the actual trimming were operating under his direction. This is corroborated by the testimony of Mr. Boatright, one of the trimmers, who indicates much the same. At that time, in Ms. Toledo's opinion, Mr. Miller was uncooperative and aggressive and as a result, on March 31, 1989, she drafted a warning notice which was issued on April 3, 1989. On that latter date, Ms. Toledo again went to the site and saw that additional and different mangroves had been trimmed in excess of the exemption criteria mentioned above. Thereafter, on April 7, 1989, she had a telephone conversation with the Respondent during which she advised him that the Department of Environmental Regulation intended to file criminal and civil charges against Lots of Casey Key, Inc. because of the violations described. At that time, Respondent expressed his regret that the situation had happened. As a result of the visits by Ms. Toledo and Ms. Perry, in late March or early April, 1989, Steven T. Cooley, environmental prosecutor for the 15th Judicial Circuit of Florida, was notified through the Sarasota County Sheriff's Department and Division of Natural Resources that there was significant damage to a mangrove forest at Lots of Casey Key. Mr. Cooley conducted an extensive investigation into the matter and caused a collateral criminal investigation to be conducted as well, and as a result of these inquiries, decided to file criminal charges against Mr. Miller and a co-defendant, Mr. Burke. This decision was based on the investigation which revealed that the county's tree protection ordinance, Ordinance 83-44, which included mangroves among the protected species, had been violated. It appeared that Respondent and Mr. Burke had hired subcontractors who committed a significant cutting, (trimming, topping and stumping) of more than 2000 mature trees. The Respondent and Burke were contacted by code enforcement people, (Perry and Toledo), and advised to stop. Nonetheless, additional damage was done after the notice to stop and a Stop Order was thereafter issued. Respondent had a permit to cut mangroves in a corridor area out to the fishing pier, but the actual cutting far exceeded the terms of the permit. The first cutting was a thinning out of mangroves around Casey Key, which, in itself, was a violation, and even after the Respondent was informed he was in violation, he improperly cut more trees. Not all trees were cut down to the ground, but many of those which were illegally trimmed were trimmed to a point where the tree would ultimately die. This was verified by county tree experts. Mr. Cooley filed criminal charges against the Respondent rather than the actual workers who did the cutting because, in his opinion and as a result of his investigation, the workers were merely agents working under the direction of the Respondent. Mr. Miller originally pleaded Not Guilty to the charges against him but subsequently, on June 25, 1990, changed his plea to Guilty. At a sentencing hearing held in December, 1990, adjudication of guilt was withheld, and Mr. Miller was fined a total of $15,000.00; ordered to perform 500 hours of public service, and ordered to spend 10 weekends on the road gang. In addition to the criminal charges, a civil suit was filed by the county against Lots of Casey Key, Inc., to prevent additional cutting of mangroves. By stipulation, a temporary injunction was entered. Trial on the permanent injunction had not been held at time of hearing. According to Mr. McClintock, a sampling taken on March 22, 1989, after the stop work order was approved, showed approximately 2175 mangrove trees had been severely cut on the northern side of the property and between 75 and 100 cut down to the ground in the corridor on which the pathway to the fishing pier was to be constructed. This accounted for a total of 2275 trees. When he went back to the property on March 30, 1989, after the stop work order had been issued, McClintock observed that while cutting was no longer in progress, an additional cutting had taken place, and he counted approximately 78 additional trees which had been destroyed. He later verified that additional trees were cut in the corridor area as well. Taken together, a total of approximately 2350 trees were improperly cut in violation of the state and county codes protecting mangroves. This destruction is the largest in the recollection of Norman C. Easey, the Director of the county's forestry division, and it constituted a serious impact on what was then the largest single mangrove stand in the southern part of Sarasota County. Respondent does not deny that the trees were cut. He notes, however, that after Ms. Perry first came out and advised him of the possibility he was in violation, he agreed not to cut further and in fact, tried to cooperate. He met with his associates who encouraged him to nonetheless continue the cutting even though he advised against it. Ultimately he was able to convince them. An associate, Norman Sharrit, the architect for the project, recalls that Respondent spontaneously exclaimed to him that Burke and Jaffe, the other partners, directed the additional cutting after the stop work order was issued. Nonetheless, after securing his associates' agreement to suspend any cutting, Respondent attempted to contact the trimmers, Southern Landscaping, to advise them to stop work but claims he could never find anyone on site. In this claim, he is supported by Davis Baker, an adjacent retired homeowner, who, in observing the clearing process on a daily basis, noticed that the cutters kept very irregular hours and were gone as often as not. Respondent also claims he left word for the cutters to stop on the company's answering machine but the work continued. It is this additional work, after Respondent's efforts to get the work stopped, that constituted the additional cutting charged. Respondent also claims that the additional trees near the walkway were cut as activity beyond the scope of the contract which he had entered into with the landscape company. Mr. Miller also contends that the work was not done under his license because he was not an owner of Casey Key Estates. The owners of that company, the parent company for development, were Mr. Burke and Mr. Jaffe. He was, however, the Secretary of the corporation, but claims he did not have complete control as to who did what and where. He claims he was not a stockholder in the company and had no ownership in the operation. Under the terms of his agreement with the owners, he was to get a percentage of the profits when the development was completed. As of the date of the hearing, he has received nothing in the way of remuneration. Except for the claim that the work was not done under his license, it is so found. He also claims that in the instant case he was not acting as a contractor for the project. His reasoning here is not supported by the facts. His relationship with the other developers was based on the fact that he obtained the option to purchase the land; he was to put in the utilities; and he was to build the homes and construct the walk over to the beach and the seawall. He also was the one who obtained all permits and who entered into the contract for trimming with Southern Landscaping. It is found, therefore, that he was, in fact, the general contractor for this project and ultimately responsible for all actions taken under his certificate. Mr. Miller cites in his defense that as he understands the law, mangroves can be trimmed without a permit between October and March, up to 25% of the lateral growth, and in his opinion, the trimming did not constitute more than that allowable 25%. This is clearly not so, as evaluation of the Petitioner's photographs, taken near the time in question, which Respondent agrees fairly represents the site at the time, clearly indicates that more than 25% of the lateral growth of the trees' foliage was taken off. It should be noted, however, that a photograph taken some substantial time after the cutting shows that the trimmed area is filling in again and the trees are not dead. This does not mean there was no damage, however. Mr. Easely, the Director of Forestry, whose expertise indicates a reliable opinion, opined that the mangroves are not as healthy as they should be. Once cut, they are going through a period of shock and are branching out from reserve buds developed by the tree for emergency situations such as fire and damage. The tree, once in this condition, has a much shorter life span. Though new trees may, and probably will come in, there is a loss of habitat in the a rea as a result of the trimming, of some 30 to 40 years. In any case, minimization of damage does not excuse or justify prohibited trimming.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Frank W. Miller's certification as a General contractor be suspended for three years, with the execution of the last two years of the suspension stayed under such terms and conditions as prescribed by the Construction Industry Licensing Board, and that he pay an administrative fine of $5,000.00. RECOMMENDED this 8th day of April, 1991, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 1991. COPIES FURNISHED: Robert B. Jurand, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Frank W. Miller 20 Dover Drive Englewood, Florida 34223 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Daniel O'Brien Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
Findings Of Fact Gerretson is the owner of Lot 2, Block 2, Sea View Subdivision, Big Pine Key, Monroe County, Florida. 1/ On January 11, 1984, Gerretson applied to Monroe County for a land clearing permit. The permit, as requested, would have permitted him to clear his lot of vegetation in the area proposed for his house, driveway and septic tank. 2/ Gerretson's application was denied, as was his appeal to the Monroe County Board of Adjustment; however, on October 16, 1985, the Board of County Commissioners of Monroe County (Monroe County), by resolution, reversed the decision of the Board of Adjustment. The Department, pursuant to Section 380.07, Florida Statutes, filed a timely appeal with the Adjudicatory Commission. The subject property The Sea View Subdivision is sparsely developed, and its lands are in a natural state except for the existence of two roads. The subdivision is bounded on the north by Port Pine Heights, an established subdivision; on the east and south by lands belonging to the U.S. Fish and Wildlife Service, as part of the National Key Deer Refuge; and on the west by Pine Channel. The Sea View Subdivision is itself within the boundaries of the Key Deer Refuge. Gerretson's lot is located at the southern extreme of the subdivision; abutting the lands belonging to the U.S. Fish and Wildlife Service (the Government) and the northern limit of Watson Hammock, a unique natural area containing endemic, rare and endangered plant and animal species. Separating the Government's property from Gerretson's, is an unnamed 25' wide platted, but non-existent road. 3/ Currently, the closest vehicular access to Gerretson's property is by a fire break on the Government's land. This fire break is separated from Gerretson's lot by an area of natural vegetation approximately 70' in width. To access Gerretson's property from the subdivision would require that the lands dedicated for "no name road" be cleared of native vegetation a distance of 100'- 200' to the closest existing road. There are no plans, however, to construct "no name road." 4/ Gerretson's property is typical of the surrounding area, and characteristic of an old and well established pineland community. Vegetation includes endangered, threatened, and protected species such as South Florida Slash Pine, Key Cassia, Ladder Brake Fern, Thatch Palm, Cabbage Palm, and Silver Palm. Applicable development regulations Gerretsons' property is located in that portion of Monroe County designated as an area of critical state concern. Section 380.0552, Florida Statutes. As such, development must be consistent with Chapters 27F-8 and 27F- 9, Florida Administrative Code, as well as Monroe County's comprehensive plan. Pertinent to these proceedings are Rule 27F-8.03(5), Florida Administrative Code, the coastal zone protection and conservation element of Monroe County's comprehensive plan, and Sections 18-16 through 18-25 of the Monroe County Code. 5/ Rule 27F-8.03(5), Florida Administrative Code provides: Third Objective: Protect upland resources, tropical biological communities, freshwater wetlands, native tropical vegetation (for example hardwood hammocks and pinelands), dune ridges and beaches, wildlife and their habitat. Guidelines: * * * 5. Prohibit any significant disturbance, including but not limited to land clearing and excavation, of established habitats for documented resident populations of endangered species . . . Monroe County's comprehensive plan, the coastal zone protection and conservation element, dealing with natural vegetative resources and terrestrial wildlife resources provides: NATURAL VEGETATION MANAGEMENT POLICIES In recognizing the need to preserve as much natural vegetation as possible, the County will direct its land use and development regulations to minimize destruction of natural vegetation and modification of landscape. Guidelines and performance standards designed to protect natural vegetation from development will be developed and enforced. Clearing of native vegetation for development will be controlled. Land clearing will be restricted to site area being prepared for immediate construction. If the construction cannot begin within reasonable time, the cleared area will be replanted with ground cover. In areas where temporary removal of vegetation is necessary during construction, replanting of ground cover will be carried out as soon as possible. The unique and endangered status of the hardwood hammock community; and the critical role of the pineland in providing the only living habitat for the Key Deer will be recognized add given due consideration in developing future land use regulations. Development in and adjacent to hardwood hammock and pineland areas will be carefully regulated so as to maintain normal drainage patterns and the ecological balance of the entire area. Outstanding, rare, and unique communities of hardwood hammock and pineland will be preserved to the greatest extent possible. * * * The existing county ordinances designed to protect and conserve natural vegetation will be strictly interpreted, rigidly enforced, and/or amended when necessary. The County will seek assistance from and cooperate with the appropriate State and Federal agencies in developing and enforcing regulations designed to protect rare, threatened and/or endangered plant species from development, vandalism, tree poaching, and plant thefts. TERRESTRIAL WILDLIFE MANAGEMENT POLICIES In order to conserve and wisely manage the Keys' wildlife resources, the County will conscientiously direct its efforts toward the protection and improvement of wildlife habitats throughout the Keys. Development activities which may degrade, destroy, or severely impact productive areas for wildlife will be required to assess possible means and, to the extent practicable, adopt protective measures for abating these impacts on wildlife populations and habitat. Recognizing that each wildlife group has its own requirements and tolerances, the adequacy of protective measures will be evaluated for each individual species occupying the habitat. Improvement of habitat through encouragement of native vegetation which would give desirable species the best chance to flourish will be supported and encouraged. Planning, design, siting, and construction of public capital improvements and facilities such as roads, solid waste disposal sites, and utility lines and structures will be carefully regulated to minimize impact on wildlife habitat and movement patterns. The County will exert special protective efforts regarding the preservation of rare, endemic, endangered, or threatened species as identified by Federal and State agencies and the habitat required to support these species in the coastal zone. Intensive development will be directed away from the habitat of rare, endemic, endangered, or threatened species. * * * 7. Introduction as pets of those exotic animal species which may represent a potential danger to the native wildlife will be discouraged. Pertinent to this proceeding, the Monroe County Code (Code) provides: Section 18-18 Land clearing permit . . . It shall be unlawful and an offense against the county for any person . . . to clear . . . any land located within the unincorporated areas of the county without having first applied for and obtained a land clearing permit from the building department . . . * * * (c) Review and approval of development site plans which results in the issuance of a development order shall constitute compliance with the requirements of this section. In such cases the land clearing permit will be issued in conjunction with the building permit. * * * Section 18-19 Same-Application . . . Any person requesting a land clearing permit shall file an application with the county building department on a form provided by such department. Such application shall contain the following information: * * * A map of the natural vegetative communities found on and adjacent to the site, prepared by a qualified biologist, naturalist, landscape architect or other professional with a working knowledge of the native vegetation of the Florida Keys . . . With projects that are five (5) acres or more in size, the vegetation map does not have to identify the location of individual trees An overall site plan of the land for which the permit is requested, indicating the shape and dimensions of said land, the purposes for which clearing is requested, and the steps taken to minimize effects of clearing on surrounding vegetation and water bodies. A site plan analysis prepared by a qualified individual, as described above . . . shall be included. Prior to the issuance of a land clearing permit, the building department shall field check the proposed clearing site and shall verify on the application that the facts contained therein, relative to the location and description of vegetation, are factually correct. * * * Section 18-21. Same - Approval. After an application for a land clearing permit has been filed and verified, the building department and the planning and zoning department shall review and consider what effects such removal of vegetation will have upon the natural resources, scenic amenities and water quality on and adjacent to the proposed site. Upon finding that such removal of natural vegetation will not adversely affect the natural resources, scenic amenities and water quality adjacent to the proposed site, the permit shall be approved, approved subject to modification or specified conditions, or denied . . . Areas of concern Gerretson's property and the surrounding refuge area are prime habitat for the Key Deer. 6/ The Key Deer is listed as a threatened species by the State of Florida and endangered by the Federal Government. 7/ Currently, the Key Deer population is on the decline from a once stable population of about 400 to a current population of about 250. 8/ This decline is directly attributable to loss of habitat and the consequent adverse impacts of human presence, such as increased automobile traffic, large domesticated dogs, and loss of wildness in the deer. While the proposed clearing of Gerretson's lot would, in and of itself, probably not significantly impact the Key Deer or its habitat, the fact that he has no road access to his property will require the continuous crossing of adjacent natural habitat and significantly expand the sphere of human impact on the deer. Additionally, the purpose of Gerretson's lot clearing cannot be ignored in analyzing the ultimate impacts of his proposal. The purpose of Gerretson's permit is to allow the construction of a single family residence on his lot. Gerretson's lot is located at the southern extreme of Sea View Subdivision, and his home would be the first built in the area. The construction of this house alone, with its consequent human presence, would adversely impact the Key Deer and its habitat. Considering the precedential nature of Gerretsons' construction, the cumulative impact from the project on the deer would be significantly greater. 9/ Notwithstanding the evident adverse impacts, Gerretson failed to offer any plan to mitigate the impacts of the proposed land clearing and construction on the Key Deer population. Gerretsons' proposal would also displace endemic, protected, threatened and endangered plant species in the area of the proposed house, driveway and septic tank. To support his application, Gerretson submitted a vegetation survey by a "qualified person." The survey does not, however, "map" the natural vegetation by locating individual species but, rather, divides Gerretson's lot into four quadrants and lists the vegetation found in each quadrant. While there is no dispute that the survey accurately lists the vegetation to be found in each quadrant, the survey is of little or no value in identifying the significant vegetation that will be displaced by construction, analyzing the site to determine the least disruptive site layout, or developing an adequate transplanting or revegetation scheme. In sum, Gerretson's vegetation survey fails to comply with the letter or spirit of the Monroe County Code. 10/ At hearing, Gerretson averred that he would transplant any endangered or threatened species, and would limit his fill activity to that required for the septic tank system. 11/ He failed, however, to identify the species that would be impacted or offer any plan for transplantation or revegetation that could be evaluated for its likelihood of success. In sum, Gerretson failed to offer any viable plan to mitigate the impacts of his proposal on endemic, protected, threatened and endangered plant species. The Department also asserts that the subject permit should not issue because Gerretson's property does not abut an existing road. Section 19-135, Monroe County Code, provides: No building or structure shall be erected on a parcel of land which does not abut a public or private road having a minimum width of fifteen (15) feet. The fact that "no name road" does not exist would preclude Gerretson, absent variance from the Monroe County Code, from securing a building permit to construct his residence. While the subject permit is a land clearing permit and not a building permit, there is no rational basis to grant a clearing permit to construct a house if the house cannot be built. Accordingly, it would be appropriate to condition the issuance of a land clearing permit on the issuance of a building permit.
The Issue Whether petitioners and intervening petitioners, or any of them, have standing or party status because removal of the dam would cause injury in fact of sufficient immediacy of a kind within the zone of interests protected by Section 403.91 et seq., Florida Statutes (1985)? If so, whether NWFWMD's permit application conforms to the requirements that Section 403.918, Florida Statutes (1985), Chapter 17-12, Florida Administrative Code, and Rules 17-3.001, 17- 3.121, 17-4.242 and 17-4.290(5) and (6), Florida Administrative Code, set out? Whether NWFWMD has given reasonable assurances that removal of the dam would not cause water quality violations by lowering dissolved oxygen concentrations below allowable levels, or by causing eutrophication or turbidity or an increase in heavy metals, including chromium or other battery constituents, in excess of allowable levels? Whether removal of the dam would be in the public interest, taking into account the diversity of aquatic life, including aquatic weeds, and whether fish spawning will be enhanced or hindered, whether heavy metals would reach Apalachicola Bay and affect oyster beds or marine productivity, what effects on the property of others would be, what the effects would be on fishing and other recreation, public safety for canoers and others, navigation generally, mosquito breeding and odors?
Findings Of Fact The Dead Lakes are a wide place in the Chipola River. Near Wewahitchka, a forest of towering cypress trees once flourished in the periodic inundation of the Chipola River. But when a sinkhole collapsed the river banks, widening the Chipola River and the lower reaches of Stone Mill Creek, a tributary, to form the Dead Lakes, the trees growing in the riverbed also sank. Permanent immersion eventually killed many of the trees. The dead, moss-draped remnant the loggers left inspired the name of the lakes, which stretch for some ten miles through Gulf and Calhoun Counties. The Rise and Fall of the Dead Lakes The level of the Dead Lakes depends not only on how much water flows in, but also on how much flows out. Before man's intervention, the rate of outflow depended all year round on the stage or height of the Chipola Cutoff, the fork of the Apalachicola River into which, just below the Dead Lakes, the Chipola River drains, as well as on the stage or height of the Chipola River above the Dead Lakes. When the Apalachicola River and, therefore, the Chipola Cutoff were high, a backwater or damming effect tended to keep the level of the Dead Lakes up. Although pristine conditions no longer obtain, the relative elevations of the Chipola and Apalachicola Rivers still affect the water level in the Dead Lakes, at certain stages. The Chipola River drains approximately 1,280 square miles in northwest Florida and southeast Alabama. Although the Chipola is spring fed, the flow of water into the Dead Lakes depends ultimately on rainfall in the basin, which varies seasonally. At Altha, the lowest flow ever recorded was 330 cubic feet per second, and the highest flow on record there was 25,000 cubic feet per second. The Apalachicola River, which arises out of the confluence of the Flint and Chattahoochee Rivers, drains a much larger area. Its flow has been altered by the Jim Woodruff Dam and other dams further north that the Army Corps of Engineers constructed, and now uses to generate electricity, and in an effort to keep at least nine feet of water in the Apalachicola River channel, for the benefit of commercial traffic. Although intended to bolster low flows, the Jim Woodruff Dam was first used to impound a reservoir, Lake Seminole, for the purpose. In combination with dry conditions, the result was record low water levels in the Dead Lakes of about ten feet NGVD during the years 1954 through 1958. Lakes Dammed Alarmed at this change in the Dead Lakes, people in the area decided a dam should be built. Not one of the 88 owners of property on the lake objected. The Legislature created the Dead Lakes Water Management District (DLWMD), Chapter 57-1115, Laws of Florida (1957); and the DLWMD constructed a stop log, low head weir just below and parallel to the bridge on which State Road 22A crosses the water flowing out of the lakes. The 787-foot weir was completed in late 1959 or early 1960 on the right of way of the St. Joseph and Iola Railway, alongside the bridge, not far upriver from the point where the clear water leaving the Dead Lakes joins the muddy waters of the Chipola Cutoff. The weir was designed to maintain the Dead Lakes at elevations up to 18.2 feet, in times of low flow. The stop log feature allowed adjustments so that elevations of less than 18.2 feet could also be maintained. In 1962, however, the stop log portion of the weir gave way, and that part of the weir was reconstructed, as the remainder had originally been constructed, with interlocking sheet pile, which, braced and buttressed with I- beams, did not allow any draw down of the lakes below 18.2 feet NGVD. No work has been done on the dam since 1962, and experts predict it will fail in about ten years if not attended to. The DLWMD installed four culverts about seven or eight feet high and twelve feet wide to the west of the weir in 1974, in order to restore draw down capability, as a means of controlling aquatic weeds. The DLWMD caused a channel to be excavated to these culverts, which were equipped with gates that could be raised and lowered with a screw mechanism. Although the invert elevation of the culverts is 10.5 at the upriver end and 10.3 feet at the other end, the Dead Lakes can only be drawn down to about 14 feet because of "base flow" and because of the configuration of the bottom, upriver of the culverts. With the gates of the draw down structure closed, the height of the weir (18.2 feet NGVD) is the limiting factor. Effect of Removal For about one-fifth of the year neither the weir nor the draw down structure determines how high the water in the Dead Lakes is, because interaction between flows in the Chipola River and in the Chipola Cutoff, the fork of the Apalachicola River which eventually rejoins the main river channel, keeps the Dead Lakes at or above the weir crest. During this part of the year, usually beginning in December and ending in March, Respondent's Exhibit No. 2, p. 20, the absence of the dam that NWFWMD seeks a permit to remove would make no difference. But, during times of low flow, with the dam out, the water level in the lakes would fall well below the current floor. Only one percent of the year, however, on average, would the lakes fall as low as the levels they reached in the 1954 to 1958 period. Eighty-five percent of the time the water level would be at or above 12 feet NGVD, without the dam, and the median elevation would be 14.75 feet NGVD, less than a foot above the lowest levels now reached. Without the dam, the lakes would cover more than 3,660 acres, the area covered at 14 feet NGVD, for half the year. The Dead Lakes now cover at least 5,500 acres half the time, or did before the draw down gates began staying open. No Control Over Control Gates As of the last day of the hearing, the testimony was that two of the draw down gates were open and two were closed. For some months preceding the hearing, private citizens opened and closed the gates willy nilly, although it was a good deal easier to close them than to open them, because they are quite heavy and the screw mechanisms are broken. With the dam's transfer to the NWFWMD for the purpose of seeking the permit here in contention, the DLWMD has become defunct, de facto if not de jure. According to Forest Revell, however, as quoted by Sheriff Harrison, the last word from the DLWMD on the gates was an order that they remain open. They were locked open in May of 1986 when Edward Baily, 67 years of age, found himself unable to start his outboard motor as he drifted north of the draw down structure in a small boat with his wife. The current dragged them through a culvert. Mrs. Bailey survived, but her husband did not. Charles Alford Gaskins had been sucked through a culvert some time before Mr. Edwards' fatal accident. Sheriff Al Harrison closed the gates to protect the divers who retrieved Mr. Bailey's corpse, but later opened them in obedience to the DLWMD's reportedly final order on the subject, not without, however, bringing the matter to the attention of a former member of the DLWMD board, Mr. McCarty at the NWFWMD, and various other officials, including then Governor Graham. All disclaimed authority to order the gates closed, and nobody posted any warning. In order to close the gates to protect the divers, the sheriff found it necessary to cut the locks, which were not replaced when the gates were reopened. At the time of the hearing, whether the gates were open or closed was "up to the vandals." All In Favor Sponsored by James Harold Thompson, then Speaker of the House of Representatives, House Bill No. 1262 became law with the Governor's approval on June 19, 1984. Chapter 84-380, Laws of Florida (1984). After the enactment of Chapter 84-380, Laws of Florida (1984), NWFWMD began applying for the permits necessary to remove the Dead Lakes dam, including the dredge and fill permit at issue here. So far it has obtained the requisite permit from the Army Corps of Engineers and a permit from the NWFWMD itself. The Florida Department of Natural Resources has no objection to taking the dam out. Florida's Game and Fresh Water Fish Commission, the United States Department of the Interior's Fish and Wildlife Service, and the United States Environmental Protection Agency also approve. The Department of Environmental Regulation is the state environmental agency to which the NWFWMD has made the application for the permit at issue in these proceedings. As stated in its notice of intent, DER, which actively participated at the formal hearing, supports removal of the Dead Lakes Dam. Also favoring removal of the dam is the Board of Commissioners of Calhoun County, which participated in the formal administrative proceeding as an intervenor. On March 13, 1984, Calhoun County had a "straw vote" on whether the Dead Lakes Dam should be removed. Those in favor of removal prevailed, 1,575 to 276. The County Commission endorsed removal by resolution on March 27, 1984, Respondent Intervenor's Exhibit No. 3, and subsequently voted to intervene in these proceedings in support of NWFWMD's application for a permit to remove the dam. The voters of Gulf County also favored removal of the dam in a referendum held there. The vote was 1,550 for and 594 against. The Gulf County Commission, too, endorsed removal by adopting a resolution, No. 84-7, Respondent's Exhibit No. 35, but Gulf County has not sought intervention in these proceedings. The same is true of the Cities of Marianna and Blountstown, whose City Councils have also passed resolutions in support of removal of the dam. Respondent Intervenor's Exhibits Nos. 4 and 5. Many of the owners of land on the Dead Lakes are not registered to vote in Gulf or Calhoun Counties, or in Marianna. Also participating as a party in support of removal of the dam is the Chipola Basin Protective Group, a corporation not for profit organized in July of 1983 in an effort to conserve and preserve natural resources in and around the Chipola River. Some 100 people are members, including some who own land on the Dead Lakes and others who own property elsewhere on the Chipola River and "use these natural resources." All Opposed Opposing the permit application are a number of property owners whose waterfront access to the Dead Lakes, although in times of low flow already impaired in many cases, would become still more difficult, if the water in the lakes dropped below the levels at which the dam now keeps it. The east side of the lakes are timberland in single ownership. On the west side, both permanent homes and weekend cottages have been built, and there are a number of fish camps and the like whose revenue depends on access to and fishing in the Dead Lakes. Daniel Monroe Sullivan began fly fishing in the Dead Lakes in 1935, and has fished there regularly since, except for 1939 through 1945 when he went off to the war, where he lost both knees. He "put everything [he] had" into the old Rowell landing, which he purchased in 1975, from Mr. Rowell, who since 1960 had let him keep a trailer on the property. The parcel has frontage on the Dead Lakes of 286 feet and is 394 feet deep. Improvements include a six-stall boathouse with handrails, and a floating dock. Mr. Sullivan has things arranged so that he can lower himself into a boat and set out, or could until people started opening the gates of the draw down structure. Now, at low water, some 300 yards of mud separate the boathouse from the Dead Lakes. Mr. Sullivan's physical condition makes it impossible for him to trailer a boat by himself and launch it from one of the three or four ramps where the water is always deep enough even with the gates open. Just north of Mr. Sullivan, Tullis D. Easterling, who also first fished the Dead Lakes more than 50 years ago, owns two lots, comprising about an acre and a half, with 212 feet fronting the western shore of Dead Lakes. He has a mobile home, a cook shack and other improvements, including a shed for three boats and a 60 to 70 foot dock, which extended 40 feet out into the water, when it was built. With two of the draw down gates closed, he can still use the dock, which is no small convenience for a man 77 years old. At low water, with the gates open, 300 yards of mud separate his dock, too, from the Dead Lakes. From his property north of Mr. Easterling's place, Charles L. Nowlin was able to launch his boat by backing his trailer down a sort of ramp he fashioned with patio blocks. He has about 400 front feet, "when there's water," and a two bedroom cottage on the property. Usually the water is from 2 to 2.5 feet deep in the "natural slip" in which he keeps his boat, but in 1985 and in again in 1986 the slip went completely dry at times. He had to launch his boat elsewhere and pole into a neighbor's dock. Thomas C. Brock, a 64-year-old retiree, has a two bedroom cottage on the Dead Lakes, and a 45-foot dock at the end of which the water was 4 to 4.5 feet deep at the time of the hearing. At low water, however, with all the draw down gates open, "you can plant a turnip patch" in front of his place. Once the lakes attain a height of 15 feet, Mr. Brock can reach his dock by boat. An avid fisherman, Mr. Brock fishes on the Dead Lakes regularly, having first fished there in 1945. James W. Quick and his wife live year round in a home on the Dead Lakes. Retired from the Air Force, he fishes continuously. At the time of the hearing, the water was 3.5 to 4 feet deep at the end of the Quicks' 80-foot pier, but last summer the pier was 300 yards from the water and you had to go another 100 yards into the water before it got knee deep. Oscar G. Clark has owned the property next to the Quicks since 1951. He bought the place for the fishing, which has long been his main recreation. Fishing on the Dead Lakes is what he mainly does since his wife died. He has a ramp and space for four boats under a boat shed, and has no trouble using the ramp in high water, but the last two years in a row the water has been too low seven or eight months running. James C. and Dorothy Taylor own a house on the west side of the Dead Lakes, on the Chipola River channel. The water is 12 to 14 feet deep only some ten feet beyond the end of their dock, which extends 28 feet into the lake. The depth of the water at the end of the Taylors' dock ordinarily fluctuates between 2.5 and 4 feet, but three or four times since 1981, the water's edge has receded two feet beyond the end of the dock. The Taylors' neighbors on the channel, Messrs. Linton and Bidwell are in essentially the same situation. Paris Wayne Carter, a Wewahitchka businessman, bought a place on the Dead Lakes two years ago, with a dock that ordinarily extends 25 feet out into the water, where the water is ordinarily two to five feet deep. But last year at low water with the gates open, he walked 300 yards from his boat dock to the water's edge. James Carroll Stokes, who is totally and permanently disabled, sold his house and used the proceeds to buy six acres on the west arm of the Dead Lakes. He lives there now in a mobile home. He has 18 hookups on the property for recreational vehicles, and charges campers $8.00 a night. When the lakes are at 18 or 19 feet, the boat ramp he has is half out of the water, but at low water with the draw down gates open the ramp cannot be used to launch boats, which affects his business adversely. In 1980, the year Leland Taylor bought the Jerry Gates Fish Camp, business was pretty good. The fish camp consists of five cabins and a house on five acres with 1,200 feet on the lake, and has eight boats and six motors. Even at low water with the gates open, he can get from the end of his 300 foot pier, where he keeps two of the boats, to the middle of the Dead Lakes, but, under such conditions, the boat shed where most of the boats are kept is separated from the water by 200 feet. With the opening of the draw down gates, business has slackened considerably. Mr. Taylor has had to telephone people planning to come to his camp to fish to tell them the water level would not allow it. Juanita Dill put the Cypress Lodge up for sale over two years ago. The Cypress Lodge was once a thriving business. Gulf Life agents 40 to 50 strong used to come every year to go fishing, but business fell off sharply in the last few years, and Ms. Dill has closed the placed down. The evidence did not establish that the decline in business was on account of problems with access to the lakes, as opposed to poorer fishing. But interrogatories adduced as evidence at hearing established that Ms. Dill, Max W. Kilbourn, Jim Gross, R. F. Martin, G. W. Hobbs, J. M. Whittaker, Lee Thompson, Duncan Smith, J. C. Blanton, C. D. Ramsey, Sr., Theodore Elchos, and V. D. Hilton, "have already suffered loss of their access to navigable water." For 45 or 50 years, Clyde Finch Brogdon has owned 165 acres with about three quarters of a mile fronting on the Dead Lakes. Mr. Brogdon raises sheep and cattle on the property. When the water recedes, the animals stray into the mud and bog down. He has to pull them out with a tractor and a length of line. Mr. Brogdon also has a boat ramp on his property that stops well short of the water when the lakes are down. Snails or something die and stink when the water recedes. For a day or two afterwards there is an expanse of "souring mud." Water Quality The clear "fast flowing Chipola River slows and spreads to form the strangely beautiful Dead Lakes," Respondent's Exhibit No. 40, but remains relatively free of suspended solids both in the Dead Lakes and when the river narrows again near the dam, until its confluence with the muddy Chipola Cutoff. In the long run, removal of the dam would lessen turbidity below the dam by increasing the volume of clear water mixing with the Chipola Cutoff during periods of low flow. In the long run, removal of the dam would lessen turbidity even in times of high flow because it would virtually eliminate the erosion now occurring in the vicinity of the draw down structure. In the short run, removing the dam would occasion a temporary increase in turbidity. The plan is to station equipment on the bridge (instead of on a barge) to "vibrate out" the sheet piles and to remove the steel from the site, leaving the riprap on the bottom to damp turbidity and curtail the movement of sediment. If the vibration shears a sheet pile, however, the contractor will have to go one foot beneath the bottom and cut the pile there. Under a proposed special permit condition, the contractor will not start work until the water level upriver of the dam is within one foot of the water level downriver, in order to avoid a sudden rush of water. This will help keep turbidity down and is also important for the safety of the bridge. Dissolved Oxygen In August of 1984, with flows low enough so that the Dead Lakes Dam had impounded the waters of the Dead Lakes, investigators took water samples from the Dead Lakes and from "the Chipola River above the influence of the dam." DER's Exhibit No. 8. Analysis of a sample taken from the bottom, at a point where the lake was nine feet deep, revealed 3.3 milligrams of dissolved oxygen per liter. A sample taken only one foot below the lake surface was not much better: 3.5 milligrams of dissolved oxygen per liter. By comparison, the upriver samples yielded results of 7.0 milligrams of dissolved oxygen per liter, or higher. The samples demonstrate the negative net effect impoundment has on dissolved oxygen levels, even though impoundment makes for more aquatic weeds, which add more dissolved oxygen to the water than they remove. The Dead Lakes Dam is in part responsible for these depressed levels of dissolved oxygen in the summer months, and its removal would alleviate the situation. By slowing or stopping the flow of the Chipola River, the dam increases precipitation of organic sediments, which gather on the bottom and compete with living organisms for the limited amount of dissolved oxygen available. Not only would removal of the dam decrease precipitation by increasing the velocity of the flow, it would cause a greater expanse of lake bottom to be uncovered, permitting oxidation of sediments exposed to sunlight and air. As a consequence, when the water again covered the sediment, the sediment would require less dissolved oxygen. Eutrophication Water hyacinths (Eichornia crassipes), limnophila (Limnophila sessiflora) and Brazilian elodea (Egenia densa), which are species of aquatic weeds not indigeous to Florida, all grow in the Dead Lakes, although they are under control and do not present a serious problem. Indeed, some vegetation, even of this kind, is advantageous. Exotic aquatic weeds flourish at the expense of native species, however, and, in overabundance are detrimental to game fish. Herbicides have proven effective against them, except perhaps in the case of Brazilian elodea which, however, such fluctuations as now occur in the level of the lakes seem to keep in check. The impounding effects of the Dead Lakes Dam create favorable conditions for the exotic, aquatic weeds' growth; the lakes tend to grow more shallow and weeds spread. The dam causes accumulation of the nitrates that enter the Chipola from agricultural operations upriver. Without the dam, no abundance of aquatic weeds could persist. Periodic draw downs or natural fluctuations are a good means of controlling most weed species. Water hyacinths, which can germinate in a draw down, are the exception. With the dam removed, sedges and slender rushes would grow up quickly and, in 10 to 20 years, a cypress forest would reestablish itself closer to the river channel, shading the river. Not only cypress, but also willow and button bush would grow up and keep sunlight from aquatic weeds underneath. Heavy Metals From 1970 until it went out of business in 1979, the Sapp Battery Company (Sapp) operated a battery salvage facility on the bank of Little Dry Creek, an intermittent tributary that empties into the Chipola several miles upriver of the Dead Lakes, north of Altha. While it operated, Sapp disposed of heavy metals, including lead, zinc, mercury and cadmium, improperly, so that these materials made their way into the Chipola River, caused at least one fish kill, and apparently caused the elevated levels of heavy metals found in the tissues of native mussels and corbicula alike. Finfish as well as mollusks exhibited these elevated levels at one time. Although several intervening ox bows or deep bends have been "deposition areas," there are no impoundments in the Chipola River between the Sapp site and the Dead Lakes. In 1984, the U.S. Environmental Protection Agency secured the site of the battery salvage facility, and heavy metals have not entered the Chipola River from that source since. Any manganese still in the water may be geologic in origin. A gladiola farm nearby may contribute to mercury in the river by dipping bulbs in mercurial fungicides. Cadmium is found in phosphate fertilizer, and both manganese and zinc are also used in agriculture. Heavy metals tend to bind to fine clay grains which precipitate out of the water and end up in the sediment and this seems to have happened in the Chipola River, including the Dead Lakes, where occasional sediment samples have revealed high concentrations of heavy metals. But the water itself is now free of measurable quantities of heavy metals. No heavy metals were detected in a sample of the water column taken on April 3, 1987, just above the Dead Lakes. The evidence rules out the hypothesis that removal of the Dead Lakes Dam would let water contaminated with heavy metals escape into the Chipola Cutoff and ultimately into Apalachicola Bay, with its extensive oyster beds. The only conceivable mischief along these lines would be the transport downstream of contaminated sediment into a marine environment in which chemical reactions binding heavy metals would be altered or reversed, releasing them into the water. But the weight of the evidence suggests that, for better or worse, contaminated sediments bound for a marine environment have probably already migrated downriver. In times of low flow, the dam slows or stops the river, precipitating all manner of suspended solids, including materials on the periphery which may never be resuspended or reach the estuary. On the other hand, accumulations of muck up to 12 inches deep in the river channel are regularly resuspended, as the water rises above the weir crest and the current scours the channel bottom. In times of high flow, rocks, fine sand and shells lying on the upriver side of the Dead Lakes Dam are stripped clean of all organic sediment. The dam has not prevented the movement of large quantities of sediment downstream. Public Interest Removing the Dead Lakes Dam would enhance the public safety. When the dam is underwater, as it is, on average, more than two months a year, it is a submerged barrier presenting a considerable hazard to the unwitting boater. Although the application does not contemplate removing the draw down structure, removal of the dam would take away the incentive to open the draw down gates. Even if the gates remained open, moreover, and the water was high enough to flow through the culverts, the absence of the dam would reduce the rate of flow through the draw down structure and the attendant danger. Apart from the matter of safety, the evidence did not show that removal of the dam would have any effect on the public health, although Sheriff Harrison did testify to parts of dead fish being strewn on the ground near the dam where fishermen gathered. Petitioners raised the possibility that the river would leave isolated pools of water as it receded, pools in which mosquitos might breed. But the weight of the credible testimony was that gambusi or other fish trapped in such pools would eat the mosquito larvae; and that the mosquito population should not increase, in the absence, at least, of some man-made interference with drainage. Andromadous Fish On balance, taking the dam out should enhance the conservation of fish and wildlife, including endangered or threatened species, and their habitats. During spawning season, with the dam in place, fishermen gather on the downriver side of the Dead Lakes Dam and catch substantial numbers of roe-laden fish. They are "all bottled up trying to get in." At one time, Alabama shad, striped bass and Gulf of Mexico sturgeon were found in the Dead Lakes and still further north in the Chipola River. During the summer months these andromadous fish seek a "thermal refuge" in cooler fresh water. Now only the Alabama shad swims north of the dam. Before the dam went in, striped bass occurred in fairly substantial numbers north of where the dam now is. Evidently they cannot navigate the dam now. Even when the water is well above the weir crest, certain species that swam upriver to spawn before the dam was built no longer do so. Either they swim too close to the bottom, or they are unable to contend with currents through the draw down structure and over the weir. Beginning last century and as late as 1970, commercial fishermen took Gulf of Mexico sturgeon, some of which weighed as much as 350 pounds each. By 1983, the number of Gulf of Mexico sturgeon had dropped to 380 fish, and the number fell to 69 in 1986. Now the Gulf of Mexico sturgeon is in category two under the federal endangered species law. The Dead Lakes Dam closes off 80 miles of the Chipola River to this dwindling population. The temperatures in the Chipola River are more constant and the flows more stable than those in the Apalachicola River to which the sturgeon are now relegated. Only 17 percent of the open river system formerly available to the Gulf sturgeon is still accessible. Removal of the dam may also increase the numbers and widen the distribution of the greyfin redhorse, the snail bullhead, the spotted bullhead and the dusky shiner. Respondent's Exhibit No. 27. Fish who do reach the Dead Lakes to spawn come when the water is above the weir crest, and go to the shallow periphery to deposit their eggs. At such times, it is not the dam that determines the height and configuration of the Dead Lakes, and its removal would not interfere with this spawning. On the contrary, removal of the dam would help matters. During times of low flow, the dam slows or stops the water occasioning precipitation of soft organic material in the shallows. When spawning time comes, roe can sink into this material and fail to hatch for want of oxygen. Little Effect On Birds Restoration of a more natural hydroperiod would let certain trees reestablish themselves in areas now covered year round, improving the habitat for nesting birds. Newly uncovered land would be seasonally available to deer, turkey and squirrel, but less hospitable for alligators and others. Aquatic organisms trapped in sloughs would become food for predators, like the wood stork. During periods of low flow, the black bear and the indigo snake would have additional foraging. The little blue heron, the snowy egret and the tricolored heron might benefit from removal of the dam as might, theoretically, the limpkin, although there is no proof the limpkin is present in the area. If bald eagles are present, removal of the dam would work to their disadvantage, but no record exists of their nesting or making any other use of the area. Thousands of ducks flocked to the Dead Lakes regularly as recently as 1964 or 1965. Now perhaps a tenth that many come, mainly wood ducks and a few mallards. On the other hand, the number of ospreys has increased since the dam went in. This may in part be attributable to protection they have received under the game laws in recent years. For most birds and other air breathing wildlife, removal of the dam would not have a significant effect one way or the other. Fish Stories Fishing is the main recreational use to which the Dead Lakes are put. The short-term effect of impounding the Dead Lakes during times of low flow was an increase in the number of fish who multiplied or congregated to avail themselves of the newly prolonged enlargement of their aquatic habitat. Over time, however, other effects have become evident and taken their toll. If the numbers of fish have not fallen dramatically, their average size has. Diminished oxygen attributable to the impoundment has increased fish mortality by its direct effect on the fish, as well as indirectly by its effect on organisms further down the food chain. Hardest hit among the fish have been some of the most sought after: shellcracker, large mouth bass, blue gill and channel catfish, among others. Removing the dam would improve the fishing. Fishing on the Dead Lakes was once almost too good to be true, to hear the old-timers tell it. As late as 1959, there were 20 fish camps on the lake. Mr. Brock remembers seven "major" ones in the 1940s. Now six are open, if that. Sixty years ago, Sam Casey fished the whole summer, and for many summers after that, but now he doesn't bother after the willow fly season is over. Cyrus Royce Lewis also began fishing on the Dead Lakes in the 1920s, and now he, too, goes almost exclusively during late spring and early summer, when may flies and willow flies hatch. After that, it's no use, he finds. Expert fishermen like Mr. Sullivan, Mr. Easterling, Mr. Brock, Mr. Quick, and Mr. Leland Taylor, who testified he caught a ten-pound bass last spring, still catch fish regularly, but the fishing is not what it once was. It is a lot harder to catch fish now, and some owners of property on the lakes, including Charles Cook Bridges, want to see the dam out so the fishing will improve. In the 1950s, you might see 200 boats tied to each other fishing over a five-acre shellcracker bed. The Game and Fresh Water Fish Commission roped off some of the beds to protect spawning fish; the game warden had to sleep in his boat to guard the beds. As late as 1964 there were single shellcracker beds that covered three acres of lake bottom. Now you only see "pocket beds," maybe half the size of the courtroom in Calhoun County Courthouse. The first time Alton Coxwell, now 55 years old, went fishing on the Dead Lakes was with his mother who put an umbrella over him. When, as a small child, he began getting bait for his uncle, his uncle sold all of it to people going fishing on the Dead Lakes. Before the Second World War, Willy Rowell alone had 300 boats but nobody had outboard motors to speak of. People fished with flies, or catawba worms and crickets then. Nowadays Mr. Coxwell sells lots of earthworms. He put retail sales of earthworms at 21,000 for Thursday the week of the hearing. But only two to five percent of these earthworms were used as bait in the Dead Lakes. Nineteen years ago, more than 20 percent of the earthworms Mr. Cox sold were used for bait in the Dead Lakes. In 1977, the Bay County Bass Club had four tournaments on the Dead Lakes, but for the last two or three years they have held only one tournament a year on the Dead Lakes. They have considered not scheduling any more there. Two fishermen in each of 23 to 27 boats, all of whom are familiar with the Dead Lakes, participate in these tournaments. Jim Bozeman of Wewahitchka caught 14 pounds of bass in his first tournament in 1977, but did not finish in the top three. Last tournament the winner caught less than five pounds of bass. The biggest bass caught in a 1977 tournament on the Dead Lakes weighed 7 pounds 4 ounces. In last year's tournament on the Dead Lakes, the biggest fish weighed three pounds. The biggest bass (eight pounds) that Mr. James C. Taylor ever caught he took in July of 1978. The Chipola River is more productive both above and below the Dead Lakes. Increased fishing pressure cannot account for the decline in numbers and the even more remarkable decline in the size of game fish in the lakes. Indeed, the weight of the credible evidence was that less fishing occurs on the Dead Lakes now than 10 or 20 years ago when the fishing was better. Since 1981, the number of permits sold for fishing on the Dead Lakes has declined. The fisheries' biologists corroborated the testimony that, after an initial beneficial effect, the impoundment of the Dead Lakes has had an adverse effect on the numbers and weight of fish in the Dead Lakes. Very likely the low dissolved oxygen levels in the summertime keep many fingerlings from surviving to grow larger. Mr. Leland Taylor's testimony that he has never seen mature fish floating dead on the lakes is consistent with the hypothesis that many do not survive the critical fingerling stage. Removal of the dam would increase fish production. While the volume of water in the Dead Lakes and therefore the fish habitat would shrink further in low flows than it does with the dam in place, the fish would have access to habitat downstream without having to contend with the dam. Invertebrates Other aquatic life has waned with impoundment of the Dead Lakes, including snails of the kind that leave a white, snail-wide streak of eggs on trees growing at the water's edge. When they hatch, they fall into the water and become food for the shellcrackers, but their numbers have been declining since 1966. The drought in 1955, which like last year's, was among the most severe the Chipola River has experienced, did not affect the diversity of aquatic life in the Dead Lakes adversely. In August of 1984, a sampling of benthic organisms, bloodworms and the like, in the Chipola River near State Road 71 above the Dead Lakes yielded 1,256 individuals comprising 33 species, with a Shannon-Weaver diversity index of 4.07. A sample taken at the same time in the Dead Lakes near the dam yielded 304 individuals representing only eleven species, and a Shannon-Weaver diversity index of 2.38. A contemporaneous sample taken downriver from the dam had a comparable Shannon-Weaver diversity index (2.41), although 18 species were present. Of 975 organisms in the downriver sample, 575 were tubificid worms, a species which does not contribute significantly to fish productivity. Although less water during drier periods would mean less bottom area for benthic organisms, some of these organisms depend on periodic fluctuation. Even those that require constant immersion can survive, when the water level falls slowly enough for them to adjust. The loss of some organisms would not necessarily diminish the diversity of species. Historically prolific throughout the Chipola River, native mussels are now found only in the upper reaches of the river. Removal of the dam would restore the environment in which they prospered before the impoundment. The impoundment has affected larger invertebrates adversely too. Dr. Nowlin testified he had not seen any crawfish lately. Higher dissolved oxygen in the lakes would increase the diversity of species of macro- and benthic invertebrates alike. Mr. Stokes, Mr. Brogdon, Mr. Leland Taylor and others testified about the stench of souring mud that persisted for a day or two after each of the abrupt draw downs which the erratic opening of the control gates occasions. As Mr. Brogdon testified, the odor arises because "something dies." Removal of the dam will bring an end to the sudden, random outrushing of impounded water through the draw down structure. Without the dam, the water level will fall and fall further, but the drop will be more gradual so that organisms that need water to survive will have a chance to migrate and remain submerged. A more gradual lowering would also mean that less bottom would be newly exposed in the same interval of time. For both these reasons, removal of the dam should make odors associated with changes in the level of the Dead Lakes less, not more, of a problem. Public Welfare And The Property Of Others The Dead Lakes dam serves no flood control function. In times of low flow, it creates a reservoir, but the weight of the evidence was that such a reservoir is not needed. Nothing in the record suggests that removal of the dam would affect any significant historical or archaeological resources. There are two public boat ramps on the Dead Lakes, one at Oak Grove in Calhoun County and one in the Dead Lakes Recreational Area. Removal of the dam would render both of them useless for much of the year, unless they were extended. With the dam gone, fishermen and other recreational boaters would be able to navigate the Chipola River from a point in Jackson County down to its confluence with the Chipola Cutoff and from there down the Apalachicola River to Apalachicola Bay and the Gulf of Mexico, during much of the year. Boaters coming upriver could enter the Dead Lakes under a wider range of conditions. The dam, of which neither buoys nor anything else gives warning, presents a considerable navigational hazard. On the other hand, removal of the dam would impede navigation for riparian owners, who would need to extend their docks or boat ramps or take other measures to gain access to the water during times of low flow. Bound up with the environmental effects of removing the dam are certain economic realities. The weight of the evidence established that the value of most of the private residences, permanent and others, along the west shore of the lakes, would tend to decrease with removal of the dam, because removal would aggravate the access problem most of these landowners now have. On the other hand, other environmental consequences of removing the dam, notably better fishing, will have a beneficial economic effect, tending to increase land values not only for riparian landowners but also for owners of other property in the area. For riparian owners of land lying on the Chipola River above the Chipola Cutoff and below the Dead Lakes, the economic consequences of removing the dam would all be good. Jim Bozeman lives on the bank of the Chipola Cutoff 4.5 miles downriver from the dam on the site where his father has a public boat landing. Still further downriver are two other major businesses of this kind. With installation of the dam closing off the Dead Lakes, the Bozemans' business, which includes renting boats and motors as well as launching others' boats, fell off. Removal of the dam should have the opposite effect. Ten fish camp properties have docks or ramps on the Dead Lakes between the dam and Cypress Creek, as do 41 or 42 private landowners. Land upriver from Cypress Creek fronts the river channel, and lies beyond the influence of the dam. If the dam is removed, these property owners will have to extend their docks in order to have access to the water year round. In some cases, extending boat ramps may be an alternative. There is a statutory exemption from permitting requirements for private docks of up to 500 square feet. DER generally permits private docks no wider than six feet if they are built in T- and L- shapes, whatever their length. The environmental authorities do not favor excavating channels. The remains or "skeletons" of early docks reflect adaptations to fluctuations in the level of the lakes of the magnitude likely to recur upon removal of the dam. There are multi-tier docks on the lakes today. Only a few inches of water at the end of a dock will allow access to the lakes by boat, although it may be impossible to use the motor close to the dock. The prosperity of the fish camps depends more on the size of the fish population than on the length of the dock necessary to reach the fishing boats. William Setterich, who owns Stokes Fish Camp, which is located midway along the western shore of the Dead Lakes, wants to see the dam removed. It will mean more mud in front of his fish camp more of the time and he would have to spend some more money on the dock, but the prospect of better fishing would justify the investment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petition of Daniel M. Sullivan, et al in Case No. 84- 4468, and the "Petition" of Raymond Drainville in Case No. 85-0129, be dismissed. THIS RECOMMENDED ORDER entered this 8th day of July, 1985 in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of July, 1985. COPIES FURNISHED: Carroll L. McCauley, Esquire Ms. Victoria Tschinkel Post Office Box 3567 Secretary Panama City, Florida 32401 Department of Environmental Regulation Mr. Raymond Drainville Twin Towers Office Bldg. 2027 N. Roberts Circle 2600 Blair Stone Road Cantonment, Florida 32533 Tallahassee, Florida 32301 William J. Rish, Esquire Post Office Box 39 Port St. Joe, Florida 32456 B. Suzi Ruhl, Esquire 203 N. Gadsden Street Suite 7 Tallahassee, Florida 32301 Patria Fitzpatrick, Esquire Post Office Box 2464 Panama City, Florida 32402 J. David House, Esquire 119 River Street Blountstown, Florida 32424 Douglas L. Stowell, Esquire Gary J. Anton, Esquire P. O. Box 1018 Tallahassee, Florida 32302 Susan Swihart, Esquire Asst. General Counsel Twin Towers Office Bldg. 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact Respondent, Arthur B. Lujan (Lujan) and his wife, Betty L. Lujan, are the owners of a 34.09-acre parcel of land which includes Enchanted Island and its surrounding submerged lands. 1/ Enchanted Island is a 3 1/2-acre island located in Florida Bay to the east of Key Haven and north of U.S. Highway 1, Monroe County, Florida. On January 15, 1986, Lujan applied to Monroe County for a land clearing permit and fill permit. The permits, as requested, would have permitted him to clear, after-the-fact, the island of vegetation, fill the island to +4' MHW (mean high water), and restore an access road to the island. Lujan's applications were approved, and the permits issued on February 4, 1986. The Department of Community Affairs (Department), pursuant to Section 380.07, Florida Statutes, filed a timely appeal with the Florida Land and Water Adjudicatory Commission (Adjudicatory Commission). Background In 1970, Lujan and his wife purchased the subject property, which included Enchanted Island and its surrounding submerged lands. At that time, an access road connected the western tip of the island to U.S. Highway 1. 2/ In or about April 1972, Lujan constructed, by the deposit of fill over bay bottom, an access road from U.S. Highway 1 to the eastern tip of Enchanted Island. Since this work was being performed without a federal permit, the Department of the Army, Corps of Engineers (Corps) on April 26, 1972, advised Lujan to cease and desist all unauthorized work in navigable waters of the United States. Lujan complied with the Corps' request, but did not remove the road. In late December 1972, Lujan began fill work on the western access road and on Enchanted Island itself. According to Lujan, his intention was to clearly define the boundary of Enchanted Island, raise its elevation from approximately +3' MSL (mean sea level) to +4' MSL, and restore the western access road, which had been subjected to erosion. Lujan was performing the work on the access road without a federal permit, and on January 4, 1973, the Corps advised Lujan to cease and desist all unauthorized work in navigable waters. 3/ In response to the cease and desist order, Lujan ceased activity on both the access road and Enchanted Island itself. 4/ At that time, the boundary of Enchanted Island had been defined by a perimeter road above MHW and the access road restored, but the elevation of the island had not been raised or its interior altered. Lujan further responded to the Corps' cease and desist order by filing suit in the United States District Court, Southern District of Florida (District Court) to enjoin the Corps from any further interference with the use and enjoyment of Enchanted Island. That suit was dismissed without prejudice when Lujan agreed to submit an after-the-fact permit application to the Corps. That application, filed May 30, 1973, sought leave to restore the western access road, place three culverts through the road, and to remove the unauthorized eastern access road and place its material on the island to bring the final elevation of the island to +4' MLW (mean low water). Subsequently, on June 17, 1974, the Corps denied Lujan's permit. In February, 1975, Lujan again filed suit against the Corps in District Court seeking injunctive and declaratory relief and de novo review of the Corps' permit denial. The United States responded by instituting suit against Lujan for violation of the permit requirements of Section 10 of the Rivers and Harbor Act of 1899, and the Federal Water Pollution Control Act of 1972. In their action, the government sought civil penalties, and an order that the unauthorized work be removed and the area restored to its pre-existing condition. These two actions (Case Nos. 75-150-CIV-EBD and 75-635-CIV-EBD) were ultimately consolidated. On December 5, 1975, the District Court ruled that the Corps' permit denial was neither arbitrary nor capricious. The court further ordered Lujan to remove the western access road and restore the area to the natural depth of the adjacent bottom, and to pay a civil penalty. 5/ Lujan appealed. On appeal, the United States Court of Appeals, Fifth Circuit (Appellate Court) agreed with Lujan's assertion that, inter alia, the Corps had breached an agreement to only consider in their determination substantive objections from the state agencies who had to be notified. The Appellate Court found the state agencies' objections to lack substance, and reversed the decision of the District Court. On remand, the Corps was instructed not to consider any previously filed objections from the state agencies since they were not specific in nature. 6/ Following remand, the Corps notified Lujan that viewed from the context of its 1975 regulations, the interior of Enchanted Island was deemed a wetlands area which could not be filled absent a Corps permit. The District court found, however, that since the Corps acted improvidently in stopping Lujan's activities in January 1973, it would be inequitable for the Corps to retroactively apply its wetlands policy to Lujan's property. Succinctly, the court found in its order of April 26, 1985, that: In 1972, when Lujan initially was ordered to cease work on the road, Corps jurisdiction was not exercised above MHTL. Its 1975 regulations created a "wetlands policy" which asserted jurisdiction over activities above MHTL. Had the Corps not interfered capriciously with Lujan's activities, he would have completed his fill project prior to the change in regulations and the project would have been "grand fathered in" ... Retroactive application of the permitting requirement is not appropriate. Consequently, the court held: The Corps is directed to reopen the permit application only with respect to the western access strip and only so that the administrative process may effec- tuate a reasonable restoration plan. No permitting is required as to Enchanted Island above MHTL, and the Corps is enjoined from exercis- ing jurisdiction over the area (to the extent that Lujan's activities do not affect navigable waters, which would confer jurisdiction upon the Corps). The parties shall meet, formulate an agreed restoration order, and submit it to the court for evaluation within sixty (60) days of this order. (Emphasis added). Lujan and the Corps experienced no difficulty in formulating an agreed restoration plan for the western access road; however, they reached an impass when Lujan insisted that the plan include approval of his desire to fill the interior of Enchanted Island to +4' MHW. While it took no exception to the court's order that it not exercise jurisdiction over the interior of Enchanted Island, the Corps refused to agree that a provision directing the filling of the interior of the island was appropriate. According to the Corps, such matters were not a subject matter of the current litigation and could be an infringement upon county and state permitting requirements. At a hearing held November 15, 1985, at which Mr. Lujan was present, the court concurred with the Corps and directed that any language which referred to raising the existing uplands of Enchanted Island to +4' MHW be deleted. Notwithstanding the court's instruction that the restoration plan contain no reference to filling the uplands of the island, the plans attached to the consent agreement still contained such language, in brackets, when submitted to the court. By order of December 20, 1985, the court ratified the restoration plan, as submitted; however, by order of February 14, 1986, the court corrected its oversight by deleting the bracketed language which dealt with filling the uplands of the island. Current Development Activities On January 6, 1986, Lujan applied with the Florida Department of Transportation (DOT) for a driveway permit which would allow him to connect the western access road through DOT right-of-way to U.S. Highway 1. Receipt of this permit was crucial to Lujan's plans, since at sometime subsequent to January 4, 1973, the portion of the western access road which occupied DOT right-of-way had been removed, creating a water gap in the road. On January 8, 1986, the requested permit was granted, with the following legend stamped conspicuously thereon: VALIDITY OF THIS PERMIT IS CONTINGENT UPON PERMITTEE OBTAINING NECESSARY PERMITS FROM ALL OTHER AGENCIES INVOLVED. On January 14, 1986, Lujan began to prepare the island to receive fill. On that day Lujan filled the "water gap" in the access road and began the process of leveling the high and low portions of the island by bulldozing on the southerly end of the island. It was Lujan's intention to level to the north end of the island and along the access road, and then fill and grade the island. At approximately 5:30 p.m., January 14, 1986, George Garrett, a Monroe County biologist, arrived on the job site with the announced intention of red tagging it since no county permits had been obtained. In response, Lujan exhibited a copy of the District Court's order. Mr. Garrett, at that point, elected not to red tag the job site and requested that Lujan with his supervisor the next day. 7/ Mr. Garrett's request that Lujan meet with his supervisor the next day regarding the project did nothing to deter Lujan's clearing efforts. The proof establishes that when Mr. Garrett left the island on January 14, 1986, there had been some scarification at the southerly end of the island, but the mangrove community which dominated the central portion of the island, discussed infra, had not been disturbed. At 8:30 a.m., January 16, 1986, when the island was again inspected, the island had been cleared of most vegetation and leveled, and the mangroves which had occupied the interior of the island were now resting in several large piles of debris. On January 15, 1986, Lujan met with Bob Herman, Mr. Garrett's supervisor, to discuss the activities which were occurring on the island. As a consequence of that meeting, the job site was red tagged pending Lujan's application for and receipt of Monroe County permits. On January 15, 1986, Lujan filed an application with Monroe County for a fill permit which would permit him to fill the island to +4' MHW and restore the western access road, as well as a land clearing permit which would permit him, after the fact, to clear the island of vegetation. Attached to the applications were copies of the District Court's order of December 20, 1985, and the consent agreement of December 16, 1985. On each application Lujan affixed the following legend: This application is without waiver of applicant's rights in Case Nos. 75-150-CIV-EBD and 75-635-CIV-EBD and position that no permits may be required and that such permits (if any) should be processed using 1972 county laws then in effect. Lujan's applications were not accompanied by a vegetation survey and plot plan as required by Chapters 4 and 18, Monroe County Code, infra. The applications were, however, accompanied by a copy of the December 16, 1985, consent agreement, which contained plans for the restoration of the westerly access road. These plans delineated the areas to be filled, the location of culverts, and the location and elevations of the proposed paved access road. On February 4, 1986, upon instructions from its County Attorney, Monroe County issued a fill permit and land clearing permit to Lujan despite his failure to provide a vegetation survey or disclose his development plans for the island. Each permit contained the following remarks: Said permit issued in accord with the Federal Court Orders entered by Judge Ned Davis on the 26th day of April, 1985, and on the 20th day of December, 1985. Immediately upon receipt of the county permits, Lujan began to fill the interior of the island and restore the westerly access road as rapidly as possible. According to Lujan, he had a contract to obtain fill on advantageous terms if he could promptly remove it from the Key West naval station. By February 14, 1986, auspiciously, Enchanted Island had been cleared of vegetation and its elevation raised to +4' MHW, and the access road restored. On February 20, 1986, the Department of Community affairs (Department) noticed its appeal of the Monroe County permits to the Adjudicatory Commissions. 8/ Enchanted Island At the time Lujan was stopped by the Corps on January 4, 1973, the topography of Enchanted Island had been altered by the establishment of a perimeter road around its boundaries above the MHW mark, and its westerly access road restored. Mangroves fringed the island waterward of the perimeter road, but none existed along the newly restored access road. The interior of the island, located upland of the perimeter road, was not shown to have been significantly altered at that time. On January 14, 1986, when Lujan began to clear and grade the island, its topography had not changed significantly from January 1973; the perimeter of the island was still defined by a roadway above MW and the fringing mangroves waterward of the road still stood. At the center of the island, upland from the perimeter road, a depression existed which covered approximately 15-25 percent of the island's lands and which was characterized by red, black and white mangroves, as well as some buttonwood. This depression was saturated by water at a frequency and duration adequate to support its wetlands species; however, since it was located upland of the MHW mark the Source of its waters was most probably from percolation and rainfall. Located elsewhere on the interior of the island were buttonwood, Bay Cedar and sea oxeye daisy. By January 16, 1986, Lujan had cleared the interior of the island of any significant vegetation, and leveled it. The mangroves, which now fringed portions of the access road, as well as those which fringed the island, were not, however, disturbed. Monroe County Regulations Chapter 4, Article II, of the Monroe County Code (MCC) establishes and regulates development within a shoreline protection zone. Pursuant to Section 4-18, MCC, the zone is established as follows: There is hereby established a shoreline protection zone in all that portion of the county defined in Section 22F-8.02, Florida Administrative Code, and generally known as the Florida Keys. The shoreline protection zone includes submerged lands covered by the waters of the Atlantic Ocean and the Gulf of Mexico (Florida Bay) out to the seaward limit of the State's territorial boundaries, whether in sovereign or private ownership, including those lands contiguous to such waters where fringing mangrove communities occur. In order to maintain the functional integrity of these mangrove communities, the interior boundary of the shoreline protec- tion zone is hereby established at a line extending fifty (50) feet laterally upland from the landward limit of the shoreline mangroves. The shoreline mangroves shall include mangrove communities which contain red (Rhizophora mangle), black (Avicennia nitida) or white (Laguncularia racemosa) mangroves but excluding those mangrove communities which are isolated inland and separated from open water areas by nonmangrove natural vegetative communities. Consequently, all of the western access road and the portion of Enchanted Island lying within 50' upland from the landward limit of the shoreline mangroves are within the shoreline protection zone. The mangroves which occupied the depressed area in the central portion of the island were not, however, within the zone. Pemittable uses within the shoreline protection zone are delineated by sections 4-19 and 4-20, MCC, as follows: Sec. 4-19. Permitted uses in zone. Only the following uses are permitted within the shoreline protection zone established by this article: Access canals or channels; Docks; Elevated boardwalks; Other structures elevated on pilings; Utility lines, crossing or rights-of-way. Sec. 4-20. Uses permitted upon special approval; special exception uses. The following uses are permitted by special approval of the zoning board as provided by the provisions of chapter 19, article IV of this Code of Ordinances. Access driveways and turnarounds for single-family residences. [Additionally] ... the follow- ing standards shall also be met before the zoning board may grant approval for a special exceptions use within the shoreline protection zone: The principal structure shall be located as close as possible to the landward edge of site so as to reduce driveway length. All access driveways and turnarounds shall provide for piped culverts under the access driveway and/or turnaround at appropriate intervals so as to maintain tidal regime. To secure a permit for development within the shoreline protection zone, whether for a permitted use or special exception use, it is incumbent upon the applicant to comply with the provisions of section 4-21, MCC. That section provides: No development permit of any kind shall be issued to any person to undertake any development within the shoreline protection zone without first obtaining a zoning clearance from the zoning official. An application for any development permit within the shoreline protection zone shall be referred to the zoning official. The materials to be referred to the zoning official shall include the following, in duplicate: Proposed site plan A natural vegetation map Other information as may be appropriate to determine the impact of the development on the natural functions of the shoreline protection zone. The placement of landfill within the shoreline protection zone is hereby prohibited and no permit shall be issued authorizing the same, except as provided in section 4-20 of this article. No application for a zoning clearance shall be approved and no permit shall be issued except upon a written finding by the zoning board 9/ that the proposed development will not encroach upon or destroy the value of areas within the shoreline protection zone or otherwise adversely affect those conditions and characteristics which promote shoreline stabilization, storm surge abatement, water quality maintenance, wildlife and marine resource habitats, and marine productivity. Lujan's proof in support of his request for a fill permit within the shoreline protection zone was deficient. He offered no natural vegetation map or proposed site plan, and offered no proof that his proposed activity would not encroach upon or destroy the value of the shoreline protection zone or otherwise adversely affect shoreline stabilization, storm surge abatement, water quality maintenance, wildlife and marine habitats, and marine productivity. Significantly, Lujan also failed to disclose his plans for the development or use of the island. Absent proof that the fill activity is designed to create an access driveway or turnaround for single-family residences, the deposit of fill within the shoreline protection zone is prohibited. 10/ Section 4-21(c), MCC. Under the circumstances, it is concluded that Lujan has failed to demonstrate that he is entitled to a special exception use which would permit the deposit of fill on the westerly access road or upon those lands lying within 50' upland from the landward limit of the shoreline mangroves (the shoreline protection zone). Lujan's failure to disclose the nature of his plans to develop the island also rendered it impossible to evaluate the criteria established by section 4-20(b)(1), MCC. The deposit of fill within those areas of Enchanted Island lying upland of the shoreline protection zone is governed by chapter 19, MCC. Pertinent to this proceeding, section 9-111, MCC, provides: (a) Deposit of Fill. No person shall engage in the deposit of fill within the unincorporated areas of Monroe County, without first having obtained a county permit for such activity. (1) Definitions. Deposit: The act of placing, discharging or spreading any fill material. Fill: Any material used or deposited to change elevation or contour in upland areas, create dry land from wetlands or marsh in an aquatic area, or material discharged into a body of water to change depth or benthic contour. * * * Uplands: Land areas upon which the dominant vegetative communities are other than species which require saturated soil for growth and propagation. Wetlands: Aarshes and shallow areas which may periodically be inundated by tidal waters and which are normally characterized by the prevalence of salt and brackish water vegetation capable of growth and reproduction in saturated soil, including but not limited to the following species: * * * Black mangrove Buttonwood Red mangrove White mangrove * * * * * * * * * * * * Upland permit application. In reviewing all applications for a permit in upland areas, consideration will be given to the nature of indigenous vegetation, and protection of same as defined in chapter 18 of the Monroe County Code, which set standards for the removal of endangered and protected vegetative species, and to drainage patterns and the possible effects the deposit of fill would have upon water and storm runoff. * * * Wetland permit application. In reviewing all applications for a permit in wetland areas, consideration will be given to the natural biological functions, including food chain production, general habitat, nesting, spawning, rearing and resting sites for aquatic or terrestrial species; the physical aspects of natural drainage, salinity and sedimenta- tion patterns, physical protection provided by wetland vegetation from storm and wave action. The proposal will also be reviewed in conjunction with chapter 4 of the Monroe County Code, which provides for the protection of wetland vegetative communities within Monroe County. When reviewing applications for fill permits, whether within or without the shoreline protection zone, the provisions of Chapter 18, MCC, and the Monroe County Comprehensive plan, which deal with land clearing, must also be evaluated. Pertinent to this case, chapter 18 provides: Sec. 18-18. Land clearing permit -- Required ... It shall be unlawful and an offense against the county for any person, either individually or through agents, employees or independent contractors, to clear, by mechanical or any other means, any land located within the unincorporated areas of the county without having first applied for and obtained a land clearing permit from the building department of the county. A land clearing permit shall be required for the removal of all or parts of naturally occurring vegetation in the county. * * * Sec. 18-19. Same -- Application (a) Any person requesting a land clearing permit shall file an application with the county building department on a form provided by such department. Such application shall contain the following information: * * * A map of the natural vegeta- tive communities found on and adjacent to the site, prepared by a qualified biologist, naturalist, landscape archi- tect or other professional with a working knowledge of the native vegetation of the Florida Keys ... With projects that are five (5) acres or more in size, the vegetation map does not have to identify the location of individual trees. For projects of this size, the vegetation map should identify the different vegetative communities, such as tropical hammock, mangrove and buttonwood transitional, and be accompanied by a descriptive narrative that identifies any significant trees or natural features of the side (sic). An overall site plan of the land for which the permit is requested, indicating - the shape and dimensions of said land, the purposes for which clearing is requested, and the steps taken to minimize effects of clearing on surrounding vegetation and water bodies. A site plan analysis prepared by a qualified individual, as described above in (3), shall be included. * * * Sec. 18-21. Same -- Approval. After an application for a land clearing permit has been filed and verified, the building department and the planning and zoning department shall review and consider what effects such removal of vegetation will have upon the natural resources, scenic amenities and water quality on and adjacent to the proposed site. Upon finding that such removal of natural vegetation will not adversely affect the natural resources, scenic amenities and water quality adjacent to the proposed site, the permit shall be approved, approved subject to modification or specified conditions, or denied. In the event a request is denied, the reasons for denial shall be noted on the application form and the applicant shall be so notified. Pertinent to this case, the Monroe County Comprehensive Plan, Coastal Zone Protection and Conservation Element, provides: NATURAL VEGETATION MANAGEMENT POLICIES In recognizing the need to preserve as much natural vegetation as possible, the County will direct its land use and development regulations to minimize destruction of natural vegetation and modification of landscape. Guidelines and performance stan- dards designed to protect natural vegetation from development will be developed and enforced. Clearing of native vegetation for development will be controlled. Land clearing will be restricted to site area being prepared for immediate construction. If the construction cannot begin within reasonable time, the cleared area will be replanted with ground cover. * * * 3. Regulations controlling development in areas characterized primarily by wetland vegetative species such as mangrove and associated vegetation will emphasize preservation of natural vegetation to the maximum degree possible. Local regulations in this regard will be consistent with the appropriate State and Federal regulations. 8. The existing County ordinances designed to protect and conserve natural vegetation will be strictly interpreted, rigidly enforced, and/or amended when necessary. Lujan violated the provisions of sections 9-111 and 18-18, MCC, when he, without benefit of a permit, leveled and cleared Enchanted Island of vegetation. Now, after the fact, he requests the appropriate fill and land clearing permits; however, he offers no vegetation map, no plan to mitigate the removal of endangered and protected species, and no proof as to the drainage patterns on the island and the probable effect the deposit of fill or the removal of vegetation would have upon storm runoff or water quality. While no vegetation map was submitted, the proof at hearing did establish the general nature of the vegetation existent on the island prior to clearing. That proof established that the mangrove community previously located at the center of the island reposed in relative isolation, and that its natural biological functions were nominal. Consequently, the removal of that vegetation was not counterindicated from the biological function perspective; however, the impact of such removal and the filling of that area on storm runoff and water quality was not addressed by Lujan. Further, Lujan offered no plan to mitigate the impact caused by his removal of Bay Cedart, and endangered species. With respect to the access road, Lujan offered no vegetation survey, and the proof was insufficient to assure that only minimal clearing would occur. Additionally, Lujan offered no proof concerning the impact that such removal, if any, and the deposit of fill would have on drainage patterns, storm runoff, or water quality. The premises considered, it is concluded that Lujan has failed to demonstrate his entitlement to a fill permit or land clearing permit for Enchanted Island and the access road. In addition to the reasons set forth in paragraphs 27-28, supra, Lujan has also failed to address the issues of storm runoff and water quality.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Land and Water Adjudicatory Commission enter a Final Order reversing Monroe County's decision to issue the subject permits No. 14723A and 14724A, and deny Lujan's request for a land clearing and fill permit for Enchanted Island and the westerly access road. That such Final Order specify those items set forth in paragraph 10, Conclusions of Law, as the changes necessary that would make Lujan's proposal eligible to receive the requested permits. DONE AND ORDERED this 9th day of April, 1987, in Tallahassee, Florida. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 1987.
The Issue The issue for determination in this matter is whether Petitioner, Robert A. Mason, has demonstrated, pursuant to the Vested Rights Review Process of Clay County, Florida, that a vested rights certificate to undertake development of certain real property located in Clay County should be issued by Clay County, notwithstanding that part of such development will not be in accordance with the Clay County Comprehensive Plan.
Findings Of Fact The Property The Applicant, Petitioner Robert A. Mason, is the owner of real property located in Clay County, Florida. The Applicant's property is known as "Cypress Landing," containing 5.977 acres, which consists of a rectangular tract 200 feet by approximately 841 feet in the Hollywood Forest Subdivision, bounded on the east by the west shore of the St. Johns River, and on the west by the right-of-way for Peters Avenue, now known as Harvey Grant Road. The Applicant acquired the property on July 25, 1958, by warranty deed from Victor M. and Ruth C. Covington recorded in Official Records Book 3, page 250, public records of Clay County, Florida. The property was the south 1/2 of Lot 12, Lot 12-A, and Lot 13, and the north 1/2 of Lot 14 of Hollywood Forest, a platted subdivision on Fleming Island in Clay County. At the time Petitioner acquired the property, the applicable zoning district permitted the development of the property for single- family residential at a maximum density of three units per acre. When the Applicant originally acquired the property in 1958, he and his wife had intended at some future time to live on the property and use the property for their own purposes, including recreation, keeping horses, and retirement. At the time the Applicant acquired the property there was an existing dock extending from the property into the river. Due to subsequent changes in his employment circumstances, the Applicant did not build a residence on the property. The Applicant is a registered forester who retired from the Georgia Forestry Commission after 32 years of service. The Applicant and his wife currently reside in Georgia. Cypress Landing contains a multitude and variety of trees, including magnolia, Florida holly, live oak and cypress, many of which are more than 200 years old and have diameters in excess of 36 inches. The Applicant has taken great care and followed specific conservation measures to identify and preserve the historic trees on the property. Development of the Property In 1982-1983, the Applicant prepared a development plan for the Cypress Landing property which comprised a single-family residential development. The planned development consisted of a total of seven single-family lots, two of which faced the river, and the other five which were 122 feet by 200 feet and lay side by side between the road and the waterfront lots. The development plan included an easement (the "Road Easement") for ingress, egress, drainage and utilities along the northern waterfront lot into the southern waterfront lot. From the east end of the Road Easement, an additional pedestrian easement was provided along the northern ten feet of the southern waterfront lot for pedestrian access to the river. The Applicant employed a surveyor, McKee, Eiland & Mullis, Land Surveyors Inc., of Orange Park, Florida. The Applicant instructed the surveyor to plat the property in accordance with the development plan and all existing codes. The property was thereafter subdivided into seven lots, identified as Lots A, B, C, D, E, F, and G. Lots A through E are the inland lots and each measure 122 feet by 200 feet with a 30 feet non- exclusive easement for ingress, egress, drainage and utility purposes. Lots A through E are inland lots. Lots F and G are the waterfront lots which are slightly larger than the other five lots and not as uniform in configuration. Lot F has approximately 116 feet of water frontage and Lot G has approximately 97 feet of water frontage. In 1984, relying on the applicable zoning regulations, the Applicant contracted with Robert Bray to install a roadway which is 30 feet in width and 866 feet in length running along Lots A through E and ending at Lot F. The roadway was constructed with specific concern for the protection and preservation of the trees on the property. A pre-cast concrete curb running the entire length of the roadway was installed to protect the trees from runoff. Porous rock was used as the foundation of the roadway to promote proper drainage. The roadway was also constructed with an ellipsis at Lot C to protect a historic tree. The design of the roadway, as well as the materials used in building the roadway, met all Clay County code requirements at the time of construction. In 1984, the Applicant reconstructed the dock on the property. The dock had previously been damaged due to storms. The dock was reconstructed by Duke Marine Construction in accordance with all appropriate regulations. Covenants have been executed to allow for use of the dock as a community dock for all lot owners. The community dock is 300 feet in length. Also in 1984, the Applicant erected a sign indicating the entrance to Cypress Landing. The sign was later vandalized and removed. In 1988, the Applicant contracted with Jacksonville Electric Authority for the installation of an underground electric distribution system in Cypress Landing. The underground utilities distribution system was designed specifically to protect and preserve the existing trees on the property, and was installed by boring under the trees to place a conduit to protect the established roots. The underground electrical distribution system was installed in accordance with the Clay County code at that time. On May 29, 1987, the Applicant sold Lot A to Robert M. and Mary Wasdin. Clay County issued a building permit for the construction of a residence on Lot A. A house has been constructed on Lot A. On September 1, 1989, the Applicant sold Lot E to Robert G. and Marva Lou Widhalm. Clay County issued a building permit for the construction of a residence on Lot E. A house has been constructed on Lot E. Applicant's Expenses The applicant expended approximately $4,609.45 on topographical surveys, tree location surveys, and engineering plans which were prepared for the mapping and platting of Cypress Landing. The surveying expenses were paid prior to the adoption of the Clay County 2001 Comprehensive Plan. The Applicant incurred significant expenses in the design and construction of the roadway. Additional costs were incurred by the Applicant for the construction of the roadway in an environmentally sensitive manner which protected and preserved the historic trees on the property. The total amount expended in 1984 by the Applicant for the construction of the roadway was $6,880, all of which was paid prior to the adoption of the Clay County 2001 Comprehensive Plan. The Applicant expended $19,540 for the reconstruction of the community dock in 1984, which was paid prior to the adoption of the Clay County 2001 Comprehensive Plan. The Applicant expended $7,101.87 for the installation of the underground electrical distribution system in 1988 and 1989. This amount included an additional cost of $1,209.87 paid to JEA, which was the difference in cost between the underground system and an equivalent overhead electrical distribution system. This amount also included a cost of $5,502 paid to Allstate Electrical Contractors, Inc. of Jacksonville, Florida, for the boring and installation of the PVC conduits to protect the historic trees on the property. The expenses were paid prior to the adoption of the Clay County 2001 Comprehensive Plan. The Applicant expended $363.58 for costs associated with the Cypress Landing entrance sign and a security fence. The expenses were paid prior to the adoption of the Clay County 2001 Comprehensive Plan. Rights that will be Destroyed In 1991 Clay County originally adopted the Clay County 2001 Comprehensive Plan pursuant to Chapter 163, Part II, Florida Statutes. The Clay County 2001 Comprehensive Plan is now known as the Clay County 2015 Comprehensive Plan. Under the Comprehensive Plan, Cypress Landing was designated with a land use designation in the plan of "Rural Fringe." Policy 2.10 of the Clay County 2015 Comprehensive Plan provides that if land is divided into three or more lots, any three of which are 9.9 acres or less in size, then such land must be platted in accordance with the County's regulations, and all lots must be provided access to a road improved to meet County paved road standards. The County's Subdivision Regulations were amended after 1990. Section 16(1)(d)1.a.i. thereof now requires a minimum width for subdivision streets of 60 feet. The regulations further require that such streets be paved. The Cypress Landing Road Easement is only 30 feet wide. Moreover, new surface water runoff requirements require retention areas for rainwater. To comply with the post-1991 Clay County land use regulations would require a reconfiguration of the lots in Cypress Landing. Reconfiguration is not possible because two of the lots have been sold to new owners. Policy 2.9 of the Clay County 2015 Comprehensive Plan restricts any easement that provides access to multiple lots to a length of 1,000 feet, and limits to five the number of lots that may utilize the same for access. While the Cypress Landing Road Easement is less than 1,000 feet in length, the number of lots within the Cypress Landing development exceeds the maximum that can access the Road Easement. The Petitioner would be precluded from selling or developing the remaining lots within the Cypress Landing development without reconfiguration and loss of one or more lots. Moreover, because Lots "A" and "E" have already been sold, the Petitioner cannot add additional right-of-way width to the Road Easement in order to comply with the County's Subdivision Regulations regarding minimum right-of-way width. The Applicant would have been entitled to statutory vested rights if 50 percent of the lots had been sold prior to 1992. Procedural Requirements The procedural requirements of Vested Rights Review Process of Clay County, adopted by Clay County Ordinance 92-18, as amended, have been met.
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Closing File in this proceeding. A copy of the Order is attached to this Final Order as Exhibit A. ; BACKGROUND On July 27, 2009, the State of Florida, Department of Community Affairs, filed a Notice of Violation against Respondents Boyett Land Incorporated, LLC, and Aguieus-HTS, LLC, pursuant to Section 380.11, Florida Statutes. The Department requested that Respondents cease unlawful development activity and take corrective action to ensure that all development within the Green Swamp Area of Critical State Concern is in accord with the requirements of Chapter 380, Florida Statues. Thereafter, the Department and Respondents commenced settlement negotiations. The parties subsequently reached agreement to settle the issues in the instant case without the need for an administrative hearing. On October 28, 2010, the Department filed a Notice of Voluntary Dismissal and Motion to Close File and. Relinguish, Jurisdiction, , On October 29, 0 12:15 PM D. of str Filed December 17, 201 ivision ative Hearing: DCA FINAL ORDER NO. DCA-GM-274 2010, the Administrative Law Judge issued an Order Closing File and relinquished jurisdiction to the Department. No Exceptions to the Administrative Law Judge's Order were filed.
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b)(1)(C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT'S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. CERTIFICATE OF FILING AND SERVICE THEREBY CERTIFY that the original of the foregoing has been filed with the undersigned designated Agency Clerk, and that true and correct copies have been furnished to the persons listed below in the manner described, on this /7 7 day of December, 2010. By U.S. Mail: Elwood M. Obrig, Esq. Elwood M. Obrig, P.A. 635 West Highway 50, Suite A-1 Clermont, FL 34711 Telephone: (352) 243-2114 Matthew B. Sullivan, Esq. 630 Chestnut Street Clearwater, Florida 33756 Telephone (727) 723-3771 Sanford Minkoff, Esq. Lake County Attorney’s Office Post Office Box 7800 Tavares, Florida 32778-7800 Malo tard Paula Ford Agency Clerk
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.
