Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner owns Lot 5 on Saddlebunch Key in Monroe County, Florida. The lot is approximately 24 acres in size. It is located in a pristine area devoid of any exotic species. From west to east, Petitioner's property consists of: an approximately one acre low hammock, uplands area inhabited by buttonwood trees; a transition area slightly lower in elevation than the uplands area; a salt marsh area with key grass; a narrow mangrove area with mangroves between four and six feet tall; and an open water area. The first two hundred feet or so of the open water area has small coral sponges, sea grasses and algae on the bottom. Further out, the bottom is sandy with a minimal amount of vegetation. Among the species of birds that inhabit Petitioner's property and the surrounding area are the Little Blue Heron, White Ibis and Reddish Egret. The area is also the home of two endangered species, the Silver Rice Rat (which requires large expanses of undisturbed habitat such as that presently found in Saddlebunch Key) and the Lower Key Marsh Rabbit (which inhabits areas such as the transitional and marsh areas found on Petitioner's property). 1/ On April 20, 1992, Petitioner submitted to the Department an application for a permit to build a 1200 feet long/12 feet wide dock (hereinafter referred to as the "Proposed Dock") extending east from the uplands area of his property on Saddlebunch Key out into the open waters where the water depth is approximately four feet. The Proposed Dock will enable Petitioner (and his family, as well as visitors, both invited and uninvited) to more easily access the uplands area of his property, on which he plans to build a vacation home for his and his family's use. 2/ As a result of the closure and barricading of Sugarloaf Boulevard, there is no longer a route over dry land that Petitioner can take to get to the uplands. To reach the uplands, he must either walk through wetlands or navigate a boat through the shallow waters adjoining the uplands. Regardless of which means of access he chooses, the bottom (the mud and muck in which he steps when he travels by foot and the coral sponges, sea grasses and algae against which his boat scrapes when he travels by boat) is disturbed. 3/ The Proposed Dock will be located in a Class III, Outstanding Florida Water. On May 6, 1992, the Department, by letter, advised Petitioner that it had received his application and determined that it was incomplete. The letter specified the additional information and materials Petitioner needed to supply to make his application complete. On July 8, 1992, Petitioner provided the Department with additional information and materials in response to the request made by the Department in its May 6, 1992, letter. By letters dated July 20 and 21, 1992, the Department advised Petitioner that it had received his July 8, 1992, submission, but that, notwithstanding this submission, his application remained incomplete. The letters specified the additional information and materials Petitioner still needed to supply to make his application complete. On August 10, 1992, Petitioner provided the Department with additional information and materials in response to the request made by the Department in its July 20 and 21, 1992, letters. By letter dated August 18, 1992, the Department advised Petitioner that it had received his August 10, 1992, submission, but that, notwithstanding this submission, his application remained incomplete. The letter specified the additional information and materials Petitioner still needed to supply to make his application complete. On September 9, 1992, Petitioner provided the Department with additional information and materials in response to the request made by the Department in its August 18, 1992, letter. In his letter Petitioner requested that the Department "process [his] application." Less than 90 days later, on December 7, 1992, the Department issued a Notice of Permit Denial. Petitioner has not provided reasonable assurance that the Proposed Dock will not degrade the quality of the water in and around the project site, nor has he provided reasonable assurance that the Proposed Dock is clearly in the public interest. Turbidity will occur during the construction of the Proposed Dock. When the holes into which the dock pilings will be placed are bored, the excavated material will become suspended and, if not contained, will flow with the current. The containment required will be substantial. The use of turbidity curtains is an accepted means of limiting turbidity. Although Petitioner has indicated that he will use turbidity curtains during the construction of the Proposed Dock, he has not indicated where they will be placed, how long they will remain in place and how they will be used. Turbidity has an adverse impact on the transparency of water (that is, the degree to which sunlight is able to penetrate the water). In and around the project site there is submerged vegetation that requires sunlight. If turbidity is not properly contained during construction, there will be a decrease in the transparency of the water in and around the project site and a resultant adverse impact on the biological function of the submerged vegetation in that area. Moreover, the Proposed Dock, when completed, will block sunlight and prevent this sunlight from reaching the submerged vegetation beneath the dock. Such shading will occur even though Petitioner has agreed to have one inch separations between the boards that will comprise the Proposed Dock's walkway. These separations will allow only a limited amount of sunlight to come through the dock. The amount of shading produced by the Proposed Dock will be substantial because the Proposed Dock will have an east/west alignment and therefore the sun will always be directly above it. 4/ Because the Proposed Dock will deprive the submerged vegetation beneath it of needed sunlight, the dock will have an adverse effect on such vegetation, as well as on the organisms that feed on such vegetation, and it will therefore reduce the diversity of life in the area. The reduction of the area's diversity of life will, in turn, adversely affect the biological integrity of the area. The activity associated with the construction and presence of the Proposed Dock and the vacation home that Petitioner will build if he is permitted to construct the Proposed Dock 5/ will flush birds that now inhabit Petitioner's property and the surrounding area, including the Little Blue Herons, White Ibises and Reddish Egrets, from their present habitat. This activity will also adversely affect other wildlife in the area, including, most significantly, the Silver Rice Rat and the Lower Key Marsh Rabbit, both of which are endangered species that will suffer from the invasion of the exotic species that will accompany the development of the area. In addition, the construction of the Proposed Dock will result in a loss of habitat for the Lower Key Marsh Rabbit. 6/ The Proposed Dock is intended to be a permanent structure and therefore its post-construction impacts will be of a long-lasting nature. It is reasonable to expect that other property owners in the vicinity of the Proposed Dock will seek a permit to construct a dock like Petitioner's if Petitioner is permitted to construct the Proposed Dock. These other projects, if they too are permitted, will have environmental consequences similar to those produced by the Proposed Dock. Although the Proposed Dock will enable Petitioner and his family to reach the uplands area of Petitioner's property without creating a disturbance on the bottom of the adjoining shallow waters, on balance, the Proposed Dock will have an adverse environmental impact on the uplands and surrounding area. The Proposed Dock's environmental disadvantages outweigh its environmental benefits. Petitioner has expressed a general willingness to make those modifications to his proposed project that will make the project permittable, but he has yet to make the modifications that will minimize the project's adverse environmental consequences. Mitigation of these consequences is a possibility. In the past, the Department has accepted both on-site and off-site mitigative measures. 7/
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Environmental Protection enter a final order denying Petitioner's application for a dredge and fill permit to construct the Proposed Dock. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of December, 1995. STUART M. LERNER, 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 29th day of December, 1995.
The Issue The issue in this appeal is whether the decision of the City of Clearwater Development Code Adjustment Board denying Petitioner's application for a variance is supported by the evidence in the record, or whether it departs from the essential requirements of law. See Section 137.014(f)(3), City of Clearwater Land Development Code.
Findings Of Fact On or about May 15, 1989, Branch Sunset Associates (Petitioner), the owner of certain property located at 1856 U.S. Highway 19 North, Clearwater, Florida (Section 6-29-16), applied for a variance to eliminate a condition previously imposed by the Development Code Adjustment Board on a prior variance. The property is zoned CC (Commercial Center), and is the site of a strip shopping mall. In March, 1988, the Board granted a variance allowing a tenant in Petitioner's mall, Workplace, to have a building identification sign which is larger than would be allowed under the Code without a variance. In November, 1988, Petitioner was granted a variance for the square footage of a pylon property identification sign with the condition that a Workplace sign not be placed on the pylon property identification sign located at the right of way. Petitioner and this tenant, Workplace, are now seeking removal of this condition in order to allow Workplace to be identified on the existing pylon sign, while leaving Workplace's large building identification sign in place. The Development Code Adjustment Board denied Petitioner's application for variance on June 8, 1989, and Petitioner timely filed this appeal of the Board's decision. Workplace is located approximately 800 feet off of U.S. Highway 19, and due to this distance, the prior variance of 97 square feet was granted in March, 1988, to allow a business identification sign of 225 square feet. The Code allows business identification signs up to 128 square feet without a variance. The letters spelling out "Workplace" are from 4 to 6 feet in height. Since opening in May, 1988, Workplace has experienced a steady growth in its business, and now completes approximately 1000 transactions per day. It is an office products store, and is open seven days a week. When the condition was placed on the variance for the pylon identification sign in November, 1988, the property owner agreed to this condition. At this time, it is primarily the tenant, Workplace, which is seeking this variance to eliminate the condition agreed to in November, 1988, by the property owner. Workplace seeks to be allowed to be included on the property identification sign, but is unwilling to immediately conform to Code on its building identification sign, a variance for which was granted in March, 1988, if this currently sought variance is approved. Thus, Workplace seeks to retain its variance for the size of its building identification sign, while also being included on the pylon property identification sign, which is larger than otherwise allowed due to the November, 1988, variance. The reason that the Development Code Adjustment Board approved the variance for Workplace in March, 1988, was that there was no property identification sign on site at that time, and the store was to be located so far off the right of way. This was a newly opening mall, and Workplace was one of the first new tenants to open for business. There are some prior tenants on this property that had business identification signs on their buildings that are in excess of the square footage allowed by the Code, but these are prior nonconforming signs which must be removed or brought into compliance by October, 1992. Section 134.015(c). However, when the property owner sought the variance in square footage limits to erect a pylon property identification sign in November, 1988, the Workplace business identification sign was already in place. Rather than allow Workplace to benefit from two variances, the Board conditioned the November, 1988, variance on precluding Workplace from being shown on the pylon sign. This was a reasonable condition under the circumstances, and was agreed to by the property owner. There was no showing of hardship on behalf of Workplace since business has been very good, and since any concerns about distance from the right of way were fully addressed by the March, 1988, variance.
The Issue The issue in this case is whether the evidence sustains the decision of the City of Clearwater Development Code Adjustment Board (the Board) to grant the application of the Appellant, the City of Clearwater for dock length, width and setback variances to allow the reconstruction of the public pier facility located at the west end of Magnolia Drive in Clearwater, Florida. (The pier was destroyed by the "No Name Storm of the Century" on March 12-13, 1993.)
Findings Of Fact On or about September 1, 1993, the City of Clearwater applied to the City of Clearwater Development Code Adjustment Board (the Board) for dock length, width and setback variances to reconstruct the public pier facility located at the west end of Magnolia Drive in Clearwater, Florida, where it terminates at the waterfront in an "aquatic lands/coastal zoning district." The pier was 91.5 feet in length and 40 feet in width; it was set back 12.5 feet from the extension of the adjacent property lines. It was destroyed by the "No Name Storm of the Century" on March 12-13, 1993. Since the site has 65 feet of waterfront, reconstructing it to its previous dimensions requires variances of: (1) 59 feet in dock length (over the 32.5 feet allowed by the City of Clearwater Development Code); (2) 17.25 feet in dock width (over the 22.75 feet allowed by the Code); and (3) 7.5 feet reduction in setback from the extended adjacent property lines (below the 20 feet required by the Code.) Before its destruction, the public pier at the west end of Magnolia Drive in Clearwater had been in existence for many years. (The original version was built in approximately 1915.) The evidence is that the community at large desires to reconstruct the pier to its former dimensions. The old pier has historic and sentimental significance. It also serves as a recreational facility for residents without private access to a dock on the waterfront. Especially in the last several years before its destruction, public use of the old pier brought with it problems of misuse, loitering, litter, noise, trespassing, and crime. The police did not have the resources to prevent these problems. Criminal activity in the area seems to have decreased since the destruction of the old pier. As a result, the property owners closest to the pier do not want the public pier reconstructed at all, and certainly do not want it reconstructed to its former dimensions. They oppose the variance application. The conditions imposed by the Board (no deviation from the proposed materials and building plan, the erection of signs as to closing times to be enforced by the police, proper lighting, and the installation of an electronic safety system, including a gate, to be monitored by the police) will help alleviate many of the concerns of the neighboring property owners but are not guaranteed to eliminate them in their entirety. The water is shallow in the vicinity of the site, and a dock of a certain length is necessary for the dock to be used for boats of any appreciable size and draft. However, this condition is not unique to the particular site in question, but is uniformly applicable all along the City waterfront, and there was no evidence as to the length of dock required for adequate water depth for use by boats. There is no competent, substantial evidence in the record from which it could be found that the granting of the variances will not be materially detrimental or injurious to other property or improvements in the neighborhood in which the property is located. There is no competent, substantial evidence in the record from which it could be found that the granting of the variance will not impair the value of surrounding property.
Findings Of Fact On September 13, 1977, SFWMD advised Coquina by letter that "[a]t its September 8, 1977 meeting the Governing Board of this District gave Conceptual Approval of [Coquina's] surface water management plan . . . subject to the four special conditions found on page 15 of the District's staff report. . . [and an] additional special condition Joint exhibit No. 5. The first special condition found on page 15 of the District's staff report requires that complete construction plans be submitted, including "supporting calculations for all design elements not already submitted and any other plans necessary to assure adherence to the concept plan." Joint exhibit No. 2, page 15. The plan approved by SFWMD is designed to lower the water table in a 22 square mile area northwest of Lake Okeechobee in Okeechobee County. In its natural state, the land lies under water for part of the year. The corporate owner of the land has plans to subdivide it and sell residential lots, beginning with the four contiguous sections as to which the present application for a construction permit has been made. These four sections (phase I) lie north and south of each other in the western portion of the larger tract. The proposed construction would consist of digging ditches or swales paralleling existing and planned roads; building intersecting collector swales running north and south; installing ditch checks where swales intersect; dredging a retention pond into which the collector swales could empty at the south end of the phase I tract; digging an outfill ditch to channel water leaving the retention area for Ash Slough; and erecting a weir, between the retention area and the slough. Culverts through the weir would be equipped "with standard flash board risers in which the water level is regulated by stop logs which can be added or removed," Coquina's exhibit No. 1, p. 10, and the culverts would ordinarily serve as the route by which water from the retention area would reach Ash Slough. Under extremely wet conditions, however, water from the retention area could overflow the weir. The intervening petitioners own land on Ash Slough downstream from the retention area and adjacent to the southern boundary of the phase I tract. No formal studies of the likely effects of the proposed construction downstream were undertaken by Coquina or by SFWMD in evaluating Coquina's application. The surface water management plan given conceptual approval by SFWMD provides: The quantity of runoff flowing to the south through existing sloughs will be controlled to protect the downstream areas against flooding whereas at the present there is no control. The amount flowing to the existing sloughs to the south during the 25 yr. design storm will be limited to the amount flowing to those sloughs before any development takes place. Lesser storms will be more completely retained on the property. Controlled discharge will be provided from retention areas to the existing sloughs for the purpose of nourishing these streams. Coquina's exhibit No. 1, p. 1. (Emphasis supplied) Since no records of the amount of discharge to Ash Slough "before any development" are in existence, certain assumptions and estimates were made. One such assumption on which the application for construction permit proceeds is that the phase I tract all drains to the south, in its present state. In fact, some of the water now leaving the phase I tract travels in a westerly direction and never enters Ash Slough, at least under some weather conditions. If the proposed construction is accomplished, the phase I tract would all drain to the south through Ash Slough. As things now stand, a significant amount of water leaves the phase I tract by evapotranspiration. If the water table were lowered two and a half feet, which is what Coquina proposes, less water would leave the phase I tract by evapotranspiration, leaving more water to flow over the ground. In estimating the quantity of the anticipated discharge to Ash Slough, if the proposed construction takes place, it is necessary to take into account drainage onto the phase I tract from adjoining lands. Coquina has failed to furnish plans and supporting calculations sufficient to insure that the proposed construction will not increase the amount of flow to Ash Slough during the 25 year design storm. Increased flow to Ash Slough would aggravate downstream landowners' drainage problems, unless the slough could handle the additional flow, a question which the application does not address. The foregoing findings of fact should be read in conjunction with the statement required by Stuckey's of Eastman, Georgia v. Department of Transportation, 34O So.2d 119 (Fla. 1st DCA 1976), which is attached as an appendix to the recommended order.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That SFWMD deny Coquina's application for construction permit. DONE and ENTERED this 14th day of November, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 APPENDIX Paragraph one of intervening Bass petitioners' proposed findings of fact has been adopted, in substance, insofar as relevant, except that the evidence did not demonstrate that downstream landowners would in fact be harmed. Paragraphs two, three, four, five, six and seven of intervening Bass petitioners' proposed findings of fact have been adopted, in substance, insofar as relevant. Paragraph one of respondent Coquina's proposed findings of fact has been adopted, in substance, insofar as relevant, except for the date of the application. Paragraphs two, three, four, five, six, seven, eight, nine and thirteen of respondent Coquina's proposed findings of fact have been adopted in substance, insofar as relevant. Paragraph ten of respondent Coquina's proposed findings of fact stated a conclusion of law, in part. While "testimony was presented that the construction of Phase I would have no substantial adverse affect [sic] on surrounding properties," the evidence as a whole did not establish this fact. Paragraphs eleven and twelve of respondent Coquina's proposed findings of fact have not been adopted because they were not established by the evidence, except for subparagraph eleven (f), which was proven. COPIES FURNISHED: John Henry Wheeler, Esquire South Florida Water Management District Post Office Box V West Palm Beach, Florida 33402 Robert Birenbaum, President Viking Communities Corporation (Coquina Water Management District) 123 Northeast 70 Street Miami, Florida 33138 Kyle S. Van Landingham, Esquire County Attorney Okeechobee County Courthouse Okeechobee, Florida 33472 Andrew B. Jackson, Esquire J.C. Bass & Bass Ranch, Inc. Post Office Box 488 Lake Placid, Florida 33852 Emerson Allsworth, Esquire 1177 Southeast Third Avenue Ft. Lauderdale, Florida 33316 Mr. Bob Wittenberg Division of Florida Land Sales and Condominiums The Johns Building 725 South Bronough Street Tallahassee, Florida 32304 Dr. Patrick M. McCaffrey Kissimmee Coordinating Council 2600 Blair Stone Road Tallahassee, Florida 32301 Mr. George Stansbury Central Florida Regional Planning Council Post Office Box 2089 Bartow, Florida 33830
Findings Of Fact On or about March 7, 1986, Petitioner submitted an application for a variance from the open space and rear set-back line requirements applicable to property located at 2612 U.S. 19 North, Clearwater, Florida. The subject property is zoned CC (commercial center). Petitioner's application requests a variance to provide 12.33% open space instead of 25%, and to construct a building 30 feet from the rear property line rather than 50 feet as required by the Land Development Code for property zoned CC. On or about April 24, 1986, the Development Code Adjustment Board denied Petitioner's application for a variance, and Petitioner timely appealed on May 6, 1986. The only evidence in support of its application offered by Petitioner was the testimony of Robby Tompkins. He testified that Petitioner's application is "unique" because Petitioner was 90% complete with its architectural plans for the renovation and modernization of the subject property when the current ordinance took effect, and Petitioner therefore urges that the current ordinance should not apply. Additionally, Petitioner argues that there will be no injury to the public as a result of the variance, and in fact the project will add 6800 square feet to its shopping center. Tompkins admitted that an increase in financial return was the primary reason Petitioner has sought the variance. Finally, he stated that if Petitioner complies with the 25% open space requirement, there will not be enough parking to meet Code provisions, and if sufficient parking is provided, there will not 25% open space.
The Issue This proceeding concerns a Consent Order entered into by the Department of Environmental regulation (DER), and James and Patricia Gratzer (Gratzers) regarding an allegedly unpermitted fill in Winter Springs, Florida. The ultimate issue for determination is whether DER abused its discretion in resolving the alleged violations by entering into the subject Consent Order.
Findings Of Fact In the fall of 1990, the Gratzers purchased a 4.35 acre lot located at 216 Stoner Road in Winter Springs, Florida. At the time of purchase, the Gratzers planned to divide the lot and build a residence on the two acre parcel. In preparation for construction of their new home, the Gratzers approached the Winter Springs City Council to subdivide the property and to approve of use of the fill road as ingress and egress for both lots. In February of 1991, the Gratzers and their builder obtained the proper building permits from the County and septic tank permits from the Department of Health and Rehabilitative Services. Construction began on the residence on April 9, 1992 when the Gratzers' builder brought in several trucks of dirt to the end of the existing fill road to begin the house pad. At the time the Gratzers began construction on the subject lot, they had no idea or reason to believe that they were about to build in jurisdictional wetlands of the State of Florida. On approximately April 14, 1992, the Gratzers were first made aware that they may have problems with potential wetlands on the property when an officer of the Game and Fresh Water Fish Commission visiting the site instructed the builders to halt construction, pending a review by DER. As a result of the site visit, the Gratzers investigated further with DER employees the potential wetlands on their property. They also sought the advice of an attorney and his environmental consultant regarding possible ways to solve DER's concerns. On approximately April 26, 1991, an employee of DER visited the site and made an initial determination that the property was a jurisdictional wetland subject to permitting by DER. Under present rules the Gratzer property, with exception of the filled access road, would all be in DER jurisdictional wetlands if only the natural vegetation were considered. Upon being informed of DER's initial determination, the Gratzers hired an engineer from Boyer-Singleton & Associates to make an engineering determination as to the extent of jurisdictional wetlands based upon a ten-year backstop. A ten-year backstop is a method provided by statute to determine the ultimate landward extent of DER's vegetational jurisdictional line. It is a hydrological calculation to determine water elevation levels in a certain area, subject to the ten-year recurrent storm event. By rule and statute, DER's jurisdiction over wetlands effectively stops at the upper end or limit of the ten-year flood elevation line. Claude Cassagnol, of Boyer-Singleton and Associates, an expert in hydrology, reviewed available materials, visited the site and made an initial determination of the ten-year backstop on the Gratzers' property, and ultimately mapped out his conclusions on a plat. Mr. Cassagnol's hydrological study, and his review of Federal Emergency Management Agency (FEMA) materials, led him to conclude that the ten-year backstop would leave the Gratzer's house pad out of any DER jurisdictional wetlands. As a result of his study, Cassagnol forwarded several letters to George Baragona of DER requesting that Mr. Baragona, an expert hydrologist, review his determination and ratify his conclusions. The Gratzers, on advice of counsel, allowed their building contractor to complete compaction of the house pad and begin preparations to pour the house floor. The septic tank contractor for the Gratzers completed installation of the tank and drain field prior to July 1st. After the Gratzers had recommenced construction, on approximately July 10, 1992, DER, issued a Notice of Violation (NOV) which ultimately formed the basis for the Consent Order in this case. The Gratzers immediately ceased further construction on the property and sought further negotiations with DER. Shortly after the NOV was issued, George Baragona reviewed the information, studies and plats submitted by Mr. Cassagnol regarding the ten-year backstop. Baragona made a determination of the ten-year backstop at a point more landward than Cassagnol's. It appears from the plat submitted at hearing, that Baragona's ten- year backstop line runs along the base of the fill roadway; his testimony, however, indicated that his backstop line dipped in and out near the roadway, and he simply chose the baseline of the fill road as his "worst case scenario". Baragona, because of the house pad, was required to extrapolate a line through the house pad, resulting in approximately half of the house pad area being in jurisdictional wetlands. The result of further negotiations between the parties was the Consent Order which is the subject matter of this proceeding. As settlement, the Gratzers agreed to Baragona's "worst case scenario" ten-year backstop, placing approximately half of the house pad was in DER jurisdictional wetlands. As part of the settlement, the Gratzers agreed to, and have paid, a fine of $1,400.00 to DER and have granted a conservation easement over a large portion of the remainder of their property, resulting in an 11.6 to 1 ratio of conservation easement to impacted wetlands, slightly above DER's guideline 10 to 1 ratio. In investigating the alleged violations at the subject property, DER reviewed the cumulative impacts of the project and determined that they were not great, in light of the surrounding area and its already high level of development. In making this determination, DER reviewed property lists, maps and other facts to determine the level of current development. In reviewing the alleged violations, DER also considered whether or not this project would have been able to get a permit had the Gratzers sought a permit prior to any construction. It was DER's determination that the project would have been permittable under the criteria in Chapter 403, in conjunction with the mitigation offered at the site. Finally, in its review and study of the alleged violations, DER determined there was no evidence that this project would have any adverse impact on water quality. DER made a determination that this was a "low to medium" violation, and that the impacts were properly addressed through the Consent Order which imposed the $1,400.00 fine and secured the conservation easement. Fill Road Issue A small road or driveway existed on the site at the time the Gratzers purchased the property, extending from Stoner Road from the south, to the center of their property. Although Baragona indicated the DER modelled backstop line did not always extend to the driveway, he said it sometimes appeared to "bump up" to the eastern edge of the driveway. Baragona could not say with absolute certainty where the 10 year backstop would be on the east side of the site if the driveway were not present. The type of wetland vegetation on the Gratzer property would be considered jurisdictional wetland vegetation under rules adopted pursuant to the 1984 Warren F. Henderson Wetlands Act (Section 403.91, et seq.), but would not be considered jurisdictional wetland vegetation under rules applicable prior to October 1, 1984. If the driveway on the Gratzer property was installed prior to October 1, 1984, it is legal, but if it was installed after that date it is illegal because there is no evidence it ever was properly permitted. DER does not allow illegally filled areas to cut off the extent of its wetland jurisdiction. Therefore, if the driveway on the Gratzer property were placed in DER jurisdictional wetlands without a permit, the road itself could not act as a 10 year backstop cutting off DER wetland jurisdiction to the west. There was conflicting evidence as to when the driveway was placed on the property. James Hartman, who sold the property to the Gratzers, testified he built the driveway in 1978 and 1979. William Kuyper, an expert in aerial photography interpretation, testified that based on his review of aerial photos, the road had been placed on site sometime between January 6, 1986, and March, 1989. The weight of the evidence indicates the driveway was probably placed on site before October 1, 1984, and therefore did not require a DER permit. First, the former landowner's testimony that he built the road in 1978 and 1979, must be considered more reliable than an interpretation of aerial photos taken from 12,000 feet in the air, in spite of the expertise of the photographic interpreter. A possible explanation for why the driveway "appeared" in the 1989 aerial photo but not in the 1986 aerial photo is that the road may have been disturbed, or new fill put on the road sometime between 1986 and 1989, causing the road to be more visible in 1989. Even if the 10 year backstop were to be determined without the driveway present, it would not be significantly different. While DER's 10 year backstop line "bumps up" against the road in places, it does not "bump up" in other places along the driveway, but in order to be conservative the line was placed along with driveway in all areas. The modelled location of the line north of the housepad where there is no driveway is consistent with where the line is modelled south of the housepad where the driveway is located. The Society and its Concerns The Society's corporate status was not controverted. CFWS members have been patrolling the Lake Jessup/Gee Creek area and other wetland areas and have found what they believe are violations of the law and rules intended to protect wetland resources. Although neither Michael Mingea nor his expert witness have been on the Gratzer property, they have been in the immediate area and are concerned about the cumulative impact of small dredging projects, like the Gratzers, which projects are routinely reported to DER by the Society. Beginning in May 1991, the Society corresponded regularly with Secretary Browner at DER and Secretary Williams at the Department of Health and Rehabilitative Services (HRS) and their respective staffs, regarding what the Society perceived were violations occurring through lax enforcement. The Society believed, though review of HRS and DER files, that the Gratzers' project included a septic tank placed in jurisdictional wetlands. This was not established; rather, the septic tank was erroneously placed inside a setback line, but outside the jurisdictional line, and a variance was readily obtained from HRS. DER does not have direct jurisdiction over septic tank permits and HRS' authority is derived from the statutes, not from DER. The Society's position regarding the Gratzer project is based in substantial part on its assertion that the fill road was illegally placed and that DER's jurisdiction extended through the entire property. The Society, however, did not rebut the sound evidence by George Baragona of the 10-year backstop. Nor did it present competent evidence of any alleged water quality violations. Only one other actual violation of permit requirements was established, and DER has required the developer to move the project from jurisdictional wetlands.
Recommendation Based on the foregoing, it is hereby, recommended that the Consent Order that is the subject of this proceeding be adopted as Final Agency Action. RECOMMENDED this 24th day of July, 1992, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-0104 The following constitute specific rulings on the findings of fact proposed by Petitioners: 1.-3. Adopted in preliminary statement and paragraph 19. 4. Adopted in substance in paragraph 5. 5.-6. Rejected as unnecessary. 7.-8. Adopted in substance in paragraph 14. 9.-12. Rejected as unnecessary. 13. Adopted in part in paragraph 20, otherwise rejected as unnecessary. 14.-16. Rejected as unnecessary. 17.-18. Rejected as contrary to the evidence. 19. Rejected as contrary to the greater weight of evidence. 20.-22. Rejected as unnecessary. 23.-25. Rejected as contrary to the evidence. 26. Rejected as unnecessary. 27.-30. Rejected as contrary to the evidence. 31.-32. Rejected as summary of testimony or argument, rather than findings of fact. 33.-34. Rejected as contrary to the weight of evidence. 35.-36. Rejected as unnecessary. 37. Rejected as contrary to the evidence. [Section VI, pp 19-22 includes unnumbered paragraphs summarizing testimony, rather than findings of fact]. COPIES FURNISHED: Michael W. Mingea, President Central Florida Wetlands Society P.O. Box 2826 Orlando, FL 32802 Rex D. Ware, Esquire P.O. Box 1794 Tallahassee, FL 32302 Douglas H. MacLaughlin, Esquire DER-Twin Towers Office Bldg. 2600 Blair Stone Road Tallahassee, FL 32399-2400 Carol Browner, Secretary DER-Twin Towers Office Bldg. 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, Esq. DER-Twin Towers Ofc. Bldg. 2600 Blair Stone Road Tallahassee, FL 32399
The Issue The issue in this appeal is whether the decision of the City of Clearwater Development Code Adjustment Board denying Petitioner's application for variances for certain signage on his property is supported by the evidence in the record, or whether it departs from the essential requirements of law. See Section 137.014(f)(3), City of Clearwater Land Development Code.
Findings Of Fact Petitioner is the owner of certain property located at 1923-1943 U.S. Highway 19 North, Clearwater, Florida (Section 05-29-16, M&B 23.05). This property is zoned CC (Commercial Center), and is the site of a strip shopping mall. On or about March 23, 1989, Petitioner applied for three variances for the subject property, as follows: 243 square feet to permit a total of 411 square feet of property identification signage; 13.5 feet in height to permit a 33.5 foot high pole sign; permission for a roof mounted sign. The Development Code Adjustment Board denied Petitioner's application for variances on April 13, 1989, and Petitioner timely filed this appeal of the Board's decision. Under the provisions of the City of Clearwater Land Development Code applicable to the Petitioner's property, only 168 square feet of property identification signage and pole signs not to exceed 20 feet in height would be allowed without a variance, and roof signs of any kind are prohibited unless a variance has been granted. Several months prior to Petitioner's filing for these variances, a roof sign was erected on the building located on the subject property. This roof sign consists of individual letters spelling "Harbor Square", which is the name of this shopping mall. The letters are from 3 feet, to 4 feet 9 inches in height, and span a distance of 34 feet 9 inches in width. The roof sign replaced a property identification sign at the right of way which previously carried the name of the shopping center, but the space on the pole sign previously used to identify the mall was not eliminated. That space is now used to identify a uniform business in the mall. Petitioner is seeking these after the fact variances to authorize the roof sign which has already been erected, and to approve the height of an existing pole sign. An enforcement action initiated by the City is pending this variance determination. Tenants in the Harbor Square mall testified that the change in signage has made the mall more visible and accessible, and several of their customers have commented that their businesses are now easier to find. The tenants feel that this change in signage will benefit their businesses financially. The Development Code Adjustment Board has previously granted variances from the signage limitations imposed by the Code, but the evidence produced at hearing indicates that none of these variances were granted after the fact. The two variances which were approved for roof signs were based upon a finding of conditions unique to the property which created a hardship for the applicant. In both instances, the Board found that the applicant had not created his own hardship, but that it arose from the size or positioning of the property involved in each application. In this case, nothing unique about the property can be found. The applicant has caused his own problems by allowing a sign to be erected without first obtaining a permit or variance. The Petitioner urges that it was the responsibility of his sign contractor to obtain all necessary permits or variances, and that the contractor did not inform him that a variance was necessary before he erected the sign. However, neither the sign contractor nor the Petitioner himself was present to testify, and therefore, there can be no finding with regard to his credibility, or with regard to whatever arrangement he had with the contractor. In any event, as the property owner seeking a variance, Petitioner has failed to establish any basis for a finding of a hardship or circumstance unique to his property, other than the fact that he allowed this sign to be erected without obtaining the necessary approvals from the City.
Findings Of Fact The Intervenors filed an Application for Dredge and Fill Permit with the Department of Environmental Regulation. The Department entered a notice of its intent to issue a permit. Petitioner requested a formal administrative hearing. The Department forwarded the matter to the Division of Administrative Hearings, where it was given Case No. 82-3155. A Recommended Order which includes Findings of Fact and Conclusions of Law has been entered in Case No. 82-3155. The Findings of Fact and Conclusions of Law set out in the Recommended Order are hereby incorporated into this Final Order and constitute a part of this Final Order. The Petitioner is an association of home owners within a residential development known as "Caloosa." Intervenors are seeking to develop an industrial park on land adjacent to the Caloosa development. Surface and ground waters from the proposed industrial park would drain toward Caloosa. Prior to the Department's entry of the notice of intent to issue a permit to Intervenors, the Department's personnel evaluated the application in free-form proceedings. An environmental specialist who works with the Department as a permit processor proposed to deny the application on account of the fact that Intervenors proposed to fill approximately 70 acres of wetlands, 24 of which were within the Department's permitting authority under Rule 17-4.28, Florida Administrative Code. The administrator of the Department's Dredge and Fill Permitting Section came to the conclusion that denial of the application could not be justified. He felt that the wetlands to be filled served only marginally to preserve water quality in the area. The Intervenors had proposed to artificially create wetland areas in order to compensate for the loss of filled wetland areas. The program administrator suggested to the permit processor that they negotiate to get the Intervenors to create additional artificial wetlands in order to mitigate against any possible adverse effect from the loss of natural wetland areas. These negotiations occurred, and the Intervenors agreed to increase artificially created wetland areas. The Department of Environmental Regulation does not have a rule which provides that its personnel can engage in negotiations respecting a permit application. Negotiations are, however, an inherent part of a permitting process. The Department does not have any written or unwritten policy whereby it accepts such mitigating factors as artificially created wetlands as justifying the filling of natural wetlands. It does not appear that the Department has any rule or nonrule policy concerning mitigation or trade-offs, and it does not appear that the Department has ever had such a rule or policy. The Department does not have a policy of accepting concessions, trade-offs, or mitigating factors so as to allow an applicant to violate the Department's water quality standards. Since there has been a permitting process, such factors as artificially created wetlands have been considered by the Department in determining whether an application meets the Department's criteria for issuance of a permit. The Department's policy is to consider whether an applicant has provided reasonable assurance that the short-term and long-term effects of proposed activities will not result in violations of water quality standards, as required under Rule 17- 4.28(3), Florida Administrative Code. If an applicant has proposed to construct artificial wetlands, the Department would logically consider it in making determinations about granting the permit. There is no evidence in the record of this proceeding from which it could be concluded that the Department has any unpromulgated "mitigation" policy which has the effect of a rule.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Respondent owns real property located in Township 2 North, Range 7 East, Section 32, in Madison County, Florida, that has surface water flowing through it and is encompassed within what is defined as "wetlands." Respondent is in control and possession of the property in question and all work on the property that is material to this proceeding is under the control or direction of the Respondent. There were access roads on the property as early as 1973 as reflected by Respondent's exhibit 2, a 1973 aerial photograph, but the width of the roads or the existence of ditches or culverts cannot be determined from the photograph. Petitioner's exhibit 2, a 1981 aerial photograph, shows the roads still in existence in 1981 but the width of the roads or existence of ditches or culverts cannot be determined from the photograph. Sometime before the Respondent purchased the property and began construction to expand the roads, ditches and culverts were in place; however, there was no evidence as to when the ditches and culverts came to be in place. A 1976 survey of the property reflects 60 foot roads which were to provide access to platted but unrecorded lots. These roads had not been constructed when Respondent purchased the property or began construction to expand the roads. The newly constructed portions of the road indicates an attempt to build the roads in accordance with the 1976 survey. The previously existing roads attempted to follow the natural contour of the land and as a result were not always straight, and only had a negligible effect on the flow or storage of surface water in regard to the property. Sometime around October 1987, Respondent began to rebuild and construct roads on the property by straightening existing curves, removing fill material from adjacent wetlands to widen and heighten the existing roadbed or construct a new roadbed, and to increase the depth and width of existing ditches or dig new ditches. The initial portion of the existing road providing access to the property from the county graded road has been substantially rebuilt with portion of the roadbed being 40 to 43 feet wide. Ditches along this portion of the roadbed have had their width increased up to 14 feet and their depth increased up to 6 and 8 feet. Other portions of the road has been expanded beyond the previously existing roadbed by increasing the width and height of the roadbed. The increased size of the ditches and the expanded roadbed has increased the interception of surface water above that already being intercepted by the previous roadbed and ditches and, as a result, there is an increased amount of surface water impounded or obstructed. The effect is that surface water is removed from Respondent's property at a faster rate than before road construction began and, as a result, sheet flow of surface water is decreased which diminishes the storage of surface water on the property. Although new culverts were installed during road construction, there was insufficient evidence to show that these new culverts were in addition to the culverts already in place or if they replaced old culverts. There was insufficient evidence to show that the new culverts allowed water to flow in a different direction or be removed from the property at a faster rate than before or if they impounded or obstructed surface water more so than before. The previously existing roads had sufficiently served an earlier timber harvest on the property and, by Respondent's own testimony, were sufficient for his ongoing hog and goat operation. The extensive rebuilding and constructing of roads in this case was neither necessary nor a customary practice for construction of farm access roads in this area. Respondent is engaged in the occupation of agriculture in that he has a bona fide hog and goat operation. However, Respondent's silviculture occupation is somewhat limited in that he is presently harvesting the timber but shows no indication of replanting or continuing the forestry operation upon completing the present harvesting operation. The extensive rebuilding and constructing of roads in this case goes beyond what is necessary or is the customary practice in the area for a hog or goat operation or forestry operation such as Respondent's and is inconsistent with this type of agriculture or silviculture occupation. Respondent has never applied for nor received a surface water management permit from the Petitioner even though the Petitioner has informed Respondent that a permit was required for the work being done on his property. The present alteration of the topography of the land by Respondent has obstructed and impounded surface water in such a fashion that the interruption of the sheet flow of surface water has been increased, causing the storage of surface water on the property to be diminished. At the present time, Respondent has been enjoined by the Circuit Court of Madison County, Florida, from any further activity on this project. However, should Respondent be allowed to complete this project, it is evident that the sole and predominant purpose would be to impound and obstruct the sheet flow of surface water and diminish the storage of surface water on the property in question.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that the Petitioner, Suwannee River Management District, enter a Final Order requiring Respondent, Norman Leonard, to: (a) remove all unauthorized fill material placed within jurisdictional wetlands and return those areas to predevelopment grades and revegetate with naturally occurring local wetlands species to prevent erosion; (b) back fill excavated swale ditches, return road beds and excavated ditches to predevelopment condition and grades and seed disturbed non-wetland areas with a 50:50 mix of bahia and rye grass and; (c) refrain from any other development until and unless a required permit is obtained for such development. Respectfully submitted and entered this 13th day of February, 1989, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-1445 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner 1. Adopted in Finding of Fact 1. 2.-3. Adopted in Finding of Fact 2. 4.-7. Are unnecessary findings for this Recommended Order. Adopted in Finding of Fact 18. Adopted in Finding of Fact 19. Adopted in Finding of Fact 10. Adopted in Finding of Fact 11. Subordinate to the facts actually found in this Recommended Order. Adopted in Finding of Fact 11. Adopted in Finding of Fact 12. Rejected as conclusions of law. Adopted in Findings of Fact 3 and 4. Adopted in Finding of Fact 8. Adopted in Finding of Fact 9. Adopted in Finding of Fact 9. Adopted in Finding of Fact 8. Adopted in Finding of Fact 6. Adopted in Finding of Fact 7. Adopted in Finding of Fact 6. Adopted in Finding of Fact 10. Adopted in Findings of Fact 15 and 17. 26.-29. Adopted in Finding of Fact 12. 30. Adopted in Finding of Fact 13. 31.-32. Subordinate to facts actually found in this Recommended Order. Adopted in Finding of Fact 12. Adopted in Finding of Fact 16. 35.-38. Subordinate to facts actually found in this Recommended Order. 39.-42. Rejected as not being relevant or material. Specific Rulings on Proposed Findings of Fact Submitted by Respondent 1. The first paragraph adopted in Finding of Fact 16. The balance is rejected as a conclusion of law. 2.-3. Rejected as not being relevant or material. Not a finding of fact but a statement of testimony. However, it is subordinate to facts actually found in this Recommended Order. Rejected as not supported by substantial competent evidence in the record. The more credible evidence is contrary to this finding. COPIES FURNISHED: Janice F. Baker, Esquire Post Office Box 1029 Lake City, Florida 32056-1029 Norman Leonard, Pro Se Route 2, Box 172-D Live Oak, Florida 32060 Donald O. Morgan Executive Director Suwannee River Water Management District Route 3, Box 64 Live Oak, Florida Dale H. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact Ramchandra Jakhotia and Rashmi Jakhotia, his wife, acquired the King Cole Motel at 401 East Shore Drive, Clearwater, Florida in 1983 and have owned the property since that time. At the time of acquisition and for some time prior thereto the property included a commercial marina with 22 slips. In 1985 the City of Clearwater revised its Development Code effective October 13, 1985 and, incident thereto, effective July 7, 1988, enacted Section 114.05, Live-Aboard Vessels as Ordinance 4597, Clearwater City Code. That enactment provided, in part, that: Prohibited; exceptions: It shall be unlawful for any person to moor any live-aboard vessel at any location within or upon the navigable waters in the City for any period of time in excess of seventy-two (72) hours, except as follows: At a marina facility for which conditional use approval has been obtained, or a marina facility in existence as of October 13, 1985 for which conditional use approval would otherwise be required;... In January 1986 a survey was taken of all marinas within the City of Clearwater to determine the number of live aboard vessels coming within the purview of the revised Development Code. At this survey eight live aboard vessels were occupying berths at the King Cole Motel marina and this was the number determined to be grandfathered for which no conditional use approval would be required. In 1988 King Cole Motel applied for conditional authorization to utilize 14 additional berths for live aboard vessels. This conditional use was approved subject to the applicant installing a pump-out facility and meeting the parking requirements. Although the parking requirements for a commercial marina, i.e., 0.5 parking space per slip, is the same as the parking requirement at marinas for live aboard vessels, the latter generally place a greater demand on parking spaces than does non-live aboard vessels. To change the approved use from commercial marina without live aboards to live aboards is a change in the use and requires conditional use approval. Before conditional use approval can be granted the applicant must comply with all code requirements, such as required parking spaces, at the time of the change in use. At the time Appellant acquired the King Cole Motel the 22 commercial slips were grandfathered as an authorized use without any parking being provided. Accordingly, as a 22-slip commercial marina Appellant did not have to provide parking. When the eight slips used for live aboards were counted in 1986 they too were grandfathered in without the need for parking spaces. However, when Appellant applied in 1988 for authorization to use 14 other slips for live aboard vessels, the code required the applicant to provide seven parking spaces. To his credit Appellant obtained the use of seven parking spaces down the road from the marina but those spaces were not contiguous to Appellants' marina as required by the code. Therefore, Appellants' use of the additional slips for live aboards did not meet the parking requirement in his conditional use approval. In 1992 Appellant applied for a variance of the seven parking spaces required to allow the use of these additional slips by live aboard vessels. This hearing was held before the Development Code Adjustment Board on February 11, 1993 and it is from the denial of this variance that this appeal is taken. The Board denied the variance requested because the Appellant failed to demonstrate that the standards established by Section 45.24 Land Development Code were met. In these proceedings Appellant presented no additional evidence to support the variances requested than was submitted to the Board.
