The Issue Whether Development Order 13-87 issued by the Monroe County Planning Commission on January 21, 1988, granting major conditional use approval to a project known as Residence Inn Resort should be approved.
Findings Of Fact Respondent Wigwam, Inc., is the present equitable owner of the subject parcel of land, is the successor to the development authorizations for a proposed hotel and marina known as Residence Inn Resort to be constructed on that parcel, and is the developer of the project. Respondent Peter Louis Edwards is the legal owner of the subject parcel of land. The subject parcel is a tract of land located at Mile Marker 52.4 on U.S. 1, on a portion of Government Lot 2, in Section 6, Township 66 South, Range 33 East on Key Vaca, Marathon, Monroe County, Florida. The site plan prepared for Ocean Resort now know as Residence Inn Resort, Marathon, Florida, by Kris Mihelich, Inc., last revision 9/3/87, pages SD-1 to SD-6 is the site plan approved by Monroe County for the subject parcel. The subject parcel consists of 4.82 acres of land above water located between U.S. 1 and the Atlantic Ocean. The subject parcel includes within its boundaries a dredged harbor at least 8 feet deep below mean sea level at mean low tide. The current Monroe County Land Use Maps show the land use designation for the subject parcel as Destination Resort (hereinafter "DR") for the oceanward three-quarters of the parcel and Suburban Residential (hereinafter "SR") for the landward one-quarter of the parcel adjacent to U.S. 1. The companion case, Residence Inn Resort v. Department of Community Affairs, DOAH Case No. 88-3469RGM (Final Order issued simultaneously herewith), is a challenge to a proposed rule of the Department of Community Affairs rejecting a portion of a Monroe County ordinance which would change the designation of the "SR" portion of the parcel to "DR" so that the entire parcel would be designated "DR." That rule challenge has been dismissed in the Final Order issued simultaneously with this Recommended Order. Accordingly, the designations for the subject parcel remain "DR" for the oceanward portion and "SR" for the landward portion. Even if the rule challenge had been successful thereby allowing the entire parcel to be designated "DR," the Findings of Fact and Conclusion of Law contained within this Recommended Order would remain the same. The Development Order under appeal in this cause, Planning Commission Resolution No. 13-87, would approve a major conditional use for the subject parcel. That Development Order would allow construction of a 96-unit hotel resort and would allow the harbor located within the property to be used as a marina. The 96-unit density is computed by including 24 transferrable development rights known as TDRs purchased by Wigwam, Inc., which increase the density on the subject parcel to 96-units. The maximum permittable density for this parcel designated "DR" in part and "SR" in part is not sufficient to allow a 96-room hotel. The maximum permittable density if the entire parcel were designated "DR," or as the parcel is now designated as partially "DR" and partially "SR," will not allow the development of 96 permanent dwelling units. Section 3-101.P-4. of the Monroe County Land Development Regulations provides that "permanent residential unit means a dwelling unit that is designed for, and capable of, serving as a residence for a full housekeeping unit which includes a kitchen composed of at least a refrigerator and stove." Section 3-101.T-2 of the Monroe County Land Development Regulations provides that "temporary residential unit means a dwelling unit used for transient housing such as a hotel, motel or guestroom that does not contain a kitchen " The 96 hotel rooms approved by Monroe County in the Development Order under review herein each include a kitchen. If each unit of the proposed Residence Inn Resort is constructed with a kitchen, as Resolution 13-87 would allow, each of the 96 units would be a permanent unit. The Institute of Transportation Engineering (hereinafter "ITE") Trip Generation Manual is a compilation of traffic data that has been accumulated over a number of years by transportation engineers on many types of land uses. The data has been categorized by land use and summarized in terms of average number of trips generated by each individual type of land use. The ITE studies of trip generation rates are performed by placing a standard traffic counter with a pneumatic hose at the entrances and exits to the land use in question. The traffic counter records both hourly and daily summaries of vehicle trips over the traffic counter. The ITE trip generation rate for hotels and motels is 10.189 daily trips per occupied room. The ITE trip generation rate for hotels is 8.7 trips per room on a weekday basis. The ITE definition of a hotel for the purpose of that trip generation rate is a place of lodging, providing sleeping accommodations, restaurants, a cocktail lounge, meeting and banquet rooms with convention facilities, and other retail and service shops. The only significant difference between the proposed Residence Inn Resort and the typical hotel studied in the ITE Trip Generation Manuel is that the proposed Residence Inn Resort has a marina. All of the other proposed amenities are typically found in ordinary hotels. The proximity of the proposed Residence Inn Resort to an airport is also not unusual for hotels. As discussed hereinafter, the marina, which is the only real distinguishing feature between hotels and the Residence Inn Resort, does not qualify for approval as part of this project since it is not in compliance with the Monroe County Land Development Regulations. A hotel providing 50 or more rooms is permitted as a major conditional use in a destination resort district only if the applicant has demonstrated through a traffic impact study prepared by a qualified professional that traffic generated by the use will not exceed 50% of the trips generated by a hotel or motel as shown in the Institute of Transportation Engineering Trip Generation Manual. Section 9-213.B.1.c., Monroe County Land Development Regulations. Prior to the issuance of the subject Development Order by Monroe County, Respondent Wigwam, Inc., prepared a transportation study for the proposed development. That transportation study did not demonstrate, and made no attempt to demonstrate, that the traffic generated by the proposed Residence Inn Resort would not exceed 50% of the trips generated by a hotel or motel as shown in the ITE Trip Generation Manual. On the contrary, the transportation report submitted to Monroe County simply utilized the same trip generation rates that appear in the third edition of the ITE Trip Generation Manual. A June 21, 1988, letter directed to Monroe County from Post, Buckley, Shuh and Jernigan after the Development Order under appeal in this cause had already issued indicates that Monroe County simply assumed that the proposed Residence Inn Resort would have a trip generation rate 50% less than the trips generated by a hotel or motel as shown in the ITE Trip Generation Manual. No traffic impact studies submitted to Monroe County prior to the issuance of the Development Order under review in this case support such a conclusion. Respondent Wigwam, Inc., presented the testimony of two experts in the field of transportation engineering, Dan Hoyt and Richard Mercer. Both Mr. Hoyt and Mr. Mercer had prepared transportation reports subsequent to the issuance of the Development Order under review in this cause, which concluded that the traffic generated by the proposed Residence Inn Resort would not exceed 50% of the trips generated by a hotel or motel as shown in the ITE Trip Generation Manual. Both believed that the number and type of amenities included in the proposed Residence Inn Resort would be so attractive that the hotel guests would not want to leave the premises. However, Mr. Hoyt's opinion is based upon a list of amenities significantly larger than the amenities actually approved for the Residence Inn Resort. A large part of Mr. Mercer's opinion is based on the assumption that the type of people that will be guests at the proposed Residence Inn Resort simply will not want to leave the hotel, and not upon any particular merit to the amenities planned for the hotel. Both experts testified that their conclusions were based upon their overall professional judgment rather than upon specific empirical data. The Department presented the testimony of one transportation expert, Rick Hall. Mr. Hall testified that there are two methods of demonstrating an "internal trip capture rate" (the retention of guests on-site due to the number of amenities which guests would normally have to travel to off-site) that is greater than what is normally expected. The first and best method is to take empirical measurements of similar types of facilities that are already constructed. In the case of Residence Inn Resort, an existing hotel or motel with a marina located in Monroe County would be a similar facility for purposes of taking traffic generation measurements. No one has performed such an empirical study for the proposed Residence Inn Resort. The second method of demonstrating a greater internal capture rate is to move into the theoretical realm, as was attempted by Mr. Hoyt and Mr. Mercer. However, when the internal capture rate predicted by Mr. Hoyt and Mr. Mercer is tested with common sense, as was ably done on cross-examination, it is apparent that the amenities of the proposed Residence Inn hotel are not sufficient to keep 50% of the average number of trips on-site. For example, 112 trips per day would have to be assigned to the 5-table barbecue picnic area, 50 trips per day assigned to the small beach, and numerous trips to the other small amenities. Messrs. Hoyt and Mercer did not increase the number of trips off-site for persons to purchase those items necessary to utilize the barbecue/picnic area or for preparing meals and snacks in the kitchens provided in each unit, did not consider the fact that the small beach anticipated to keep the guests of the 96- room hotel on-site would only be approximately 50 feet by 150 feet once constructed, and considered no data regarding actual use by hotel guests of the proposed small sports court based upon such usage at similar facilities. A more reasonable internal trip capture rate for the Residence Inn Resort is 20% of the ITE Trip Generation Manual rate. However, this 20% is attributed to the marina proposed for the project, which marina is disapproved in this Recommended Order as set forth below. The dredged harbor within the subject parcel is at least 8 feet deep. Just oceanward of the project boundary, the undredged ocean bottom shoals to less than 4 feet at mean low tide. This area is more than 4 feet deep measured from mean sea level. A marina is permitted as a major conditional use in a destination resort district provided that "the parcel proposed for development has access to water of at least 4 feet below mean sea level at mean low tide." Section 9- 213.B.2.a., Monroe County Land Development Regulations. The Land Development Regulations define the phrase "water of at least 4 feet below mean sea level at mean low tide" to mean locations that will not have a significant adverse impact on off-shore resources of particular importance. For the purposes of this definition, off-shore resources of particular importance shall mean ... shallow water areas with natural marine communities with depths at mean low tide of less than four (4) feet ... Section 3-101.W-1., Monroe County Land Development Regulations. The shallow water area just oceanward of the project boundary is comprised of a natural marine community of seagrass beds. The dominant species is turtle grass, also known as Thallassia. Monroe County Development Order No. 13-87 was rendered to the Department on April 7, 1988, and no earlier. The Department timely filed the Notice of Appeal and Petition in this cause. There is no basis for application of the doctrine of equitable estoppel in this proceeding, requiring the Department of Community Affairs and the Florida Land and Water Adjudicatory Commission to approve the Development Order issued by Monroe County which is the subject matter of this proceeding.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is Recommended that the Florida Land and Water Adjudicatory Commission issue a Final Order: Denying the proposed 96-unit Residence Inn Resort and marina as preliminarily approved by Monroe County in the Development Order appealed herein; Providing that the proposed hotel without marina may be approved if: None of the hotel rooms contain kitchens; The density is reduced to comply with the current "DR" and "SR" land use designations; and Wigwam, Inc., is able to demonstrate a 50% reduction in trips from the motel and hotel rate as shown in the ITE Trip Generation Manual. Providing further that a different project may be approved so long as it complies with the Monroe County Land Development Regulations. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 18th day of October, 1989. LINDA M. RIGOT 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 18th day of October, 1989. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 88-3450 Petitioner's proposed Findings of Fact numbered 1-24 have been adopted either verbatim or in substance in this Recommended Order. Respondent Wigwam, Inc.'s, proposed Findings of Fact numbered 1-3, 5, and 7-12 have been adopted either verbatim or in substance in this Recommended Order. Respondent Wigwam, Inc.'s, proposed Findings of Fact numbered 4 and 6 have been rejected as being subordinate to the issues under consideration herein. Respondent Wigwam, Inc.'s, proposed Findings of Fact numbered 13 and 21-25 have been rejected as not constituting findings of fact but rather as constituting statements of a party's position. Respondent Wigwam, Inc.'s, proposed Findings of Fact numbered 14-20 and 26-32 have been rejected as being irrelevant to the issues under consideration in this cause. Respondent Wigwam, Inc.'s, proposed Finding of Fact numbered 33 which is 2 1/2 pages long has been rejected primarily because it is contrary to the weight of the credible evidence in this cause. Respondent Wigwam, Inc.'s, proposed Finding of Fact numbered 34 has been rejected as not being supported by the weight of the evidence in this cause. COPIES FURNISHED: David Jordan, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399 William J. Roberts, Esquire Roberts, Egan and Routa 217 South Adams Street Post Office Box 1386 Tallahassee, Florida 32302 Fred Tittle, Esquire Tittle & Tittle, P. A. Post Office Drawer 535 Tavernier, Florida 33070 Lucien Proby, Esquire Monroe County Attorney 310 Fleming Street Key West, Florida 33040 Thomas G. Pelham, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399 Larry Keesey, General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399 Patty Woodworth, Director Land and Water Adjudicatory Commission Planning and Budgeting Executive Office of the Governor The Capitol, PL-05 Tallahassee, Florida 32399-0001
The Issue The issue is whether to approve Petitioners' application for a beneficial use determination (BUD) on their property in Key Largo, Florida, and if approved, to determine the type of relief that is appropriate.
Findings Of Fact Petitioners purchased their property in September 2006 for $60,000.00 (or at the peak of the Florida housing boom). The parcel is located at the corner of Meridian Avenue and Lycaloma Avenue, mile marker 94.5, on the Gulf of Mexico side of U.S. Highway 1 in Key Largo. It is also identified as Block 9, Lot 1, Section 3 of the Bay Haven Subdivision, an older, partially-developed subdivision comprised of four sections and several hundred lots. Since September 15, 1986, the subdivision, including Petitioners' lot, has been zoned Suburban Residential (SR), which allows only one residential unit per two acres. No challenge to that action was taken by any person, and no contention has been made that the County failed to follow the established procedure for adopting its LDRs. A challenge to the validity of the LDRs is now barred by the statute of limitations.1 See § 95.11(3)(p), Fla. Stat. The Bay Haven Subdivision is located in South Key Largo and was first platted after World War II. Building permits for all existing homes in the subdivision were applied for before the zoning change became effective in September 1986. Due to the SR restrictions, around 250 lots remain vacant at this time, including 99 in Section 3 where Petitioners' lot is located. Many of these vacant lots have been deeded by their owners to the County for conservation purposes in exchange for points that can be used with a Rate of Growth Ordinance (ROGO)2 allocation to develop other property in the County. Petitioners' corner lot lies at the intersection of two streets and has an irregular shape with a large radius at the intersection. It is bordered on two sides by single-family homes, measures 8,276 square feet, or around 0.19 acres, and is somewhat larger than the typical subdivision lot size of 5,000 square feet. Mr. Beauchamp, who resides in Wisconsin, testified that he purchased the property with the expectation of building a home when he retired as an air traffic controller. Before purchasing the property, he assumed that it was zoned Improved Subdivision (IS) because this was the zoning incorrectly shown on the multiple listing service sheet provided by his realtor. Neither Mr. Beauchamp nor his realtor was familiar with County zoning classifications or permissible uses for the parcel.3 Sometime in 2006 they visited a County office to secure further information. Mr. Beauchamp says they spoke with two unidentified "planners," who told them that a single-family home could be built on the property. However, nothing was confirmed in writing, and there is no record of the meeting. Other than this meeting, neither Mr. Beauchamp nor his realtor took any other steps to verify the zoning on the property and/or any development restrictions that might apply. Based solely on the oral advice given by these two unnamed County employees, the Beauchamps purchased the lot. According to Petitioners' expert, Robert Smith, before purchasing a vacant lot in the Keys, normal due diligence would require a prospective purchaser to arrange a pre-application conference with Planning Department staff and secure a written Letter of Understanding confirming the rights of the property owner. See § 110-3, M.C.C. However, Petitioners (and their realtor) did not complete appropriate due diligence; they simply checked with an unidentified County employee and without any other assurance purchased the property.4 In May 2012, Petitioners' agent, Randy Wall, a builder and former Planning Commissioner but not an attorney, met with a representative of the County Building Department to begin the process of securing approval to build a single-family residence on the property. Mr. Wall was advised that the zoning on the property was SR, which allows only one dwelling unit per two acres. This was confirmed in an email dated July 13, 2012, from the Assistant Director of Planning, which stated as follows: The parcel has a zoning designation of SR which requires Two (2) acres per residential unit. As noted by planning staff, this parcel does not have sufficient land area for the zoning and associated density. At the meeting, Mr. Wall also inquired about the possibility of changing the zoning on the property from SR to IS (which would allow construction of a single-family home), but decided not to pursue that option because he recognized the poor prospects of securing a zoning change for a single lot in a large subdivision, when scores of other lots were subject to the same restriction. He assumed, probably correctly, that this might invite a spot zoning challenge. Other than having a discussion with County representatives, Mr. Wall did nothing more. He did not file an application for a residential dwelling unit allocation under the County's ROGO process, or any other formal application for relief, such as a change in the zoning district or land use designation, a variance, or an exception. Believing that the County staff would "fix the problem" because the County had made "a mistake" in reclassifying the entire subdivision as SR, Mr. Wall prepared and filed a BUD application, which was eventually deemed to be complete on September 27, 2013. The BUD process is intended "to provide a means to resolve a landowner's claim that a [LDR] or comprehensive plan policy has had an unconstitutional effect on property in a nonjudicial forum." § 102-103(a), M.C.C. An applicant for a BUD must include a statement "describing the [LDR], comprehensive plan policy, or other final action of the county, which the applicant believes necessitates relief under this division." § 102-105(b)(5), M.C.C. The application at issue simply stated that "the adoption of the land use designation of SR for the subdivision of Bay Haven constituted a compensable taking." The application did not refer to any comprehensive plan policy or final action taken by the County. As relief, the application requested that the County take one of the two following actions: (a) change the Future Land Use Map and zoning designations to allow a residence to be built on the lot; or (b) notwithstanding the SR zoning, issue a permit for development. The BUD process requires applicants to state whether they are alleging a facial or as-applied regulatory taking as the basis for administrative relief. See § 102-104, M.C.C. Unless a landowner asserts that a LDR or comprehensive plan provision, on its face, has caused a taking of his property, relief is permitted only after "the landowner has received a final decision on development approval applications from the county, including building permit allocation system allocations, appeals, administrative relief pursuant to section 138-54, and other available relief, exceptions, or variances." Id. Mr. Wall did not formally apply for any type of development approval and received no final decision, as contemplated by the Code. However, Mr. Wall testified that he "understood" the County was waiving that requirement in this instance. He also stated in the application that "Joe Haberman contracted [sic] the Beauchamps and informed them that staff had deemed this phase unnecessary and to move directly to submitting a [BUD] application." Other than this assertion, there is no evidence to confirm this understanding, and the County's Principal Planner testified that a waiver had not been granted. She also confirmed that no development approval application had been filed, and no final decision had been made, both required by the Code in order to seek relief under an "as applied" theory. Therefore, rightly or wrongly, as plainly stated in the application, Petitioners' basis for relief is that the LDR on its face constitutes a taking of their property.5 Besides a single-family home, which is impermissible here due to size limitations of the lot, two other uses are permitted as of right in the SR district: community parks and beekeeping. See § 130-94, M.C.C. Also, a property owner may apply for a minor conditional use, subject to approval by the Planning Director. Permissible minor conditional uses include public or private community tennis courts and swimming pools; public buildings and uses; parks and community uses; institutional uses; and churches, synagogues, and houses of worship. Id. However, Mr. Beauchamp testified that he is not interested in any of these uses since he believes most, if not all, would be offensive to a residential neighborhood or simply impractical due to the size of his lot. The property can also be sold to the owners of adjacent Lot 11 to be used as a side yard, its use before being purchased by Petitioners. Finally, the Principal Planner testified that there are transferable development rights (TDRs) on the property, whose value at this time is unknown. See § 130-160, M.C.C. Therefore, the Beauchamps are not deprived of all economically beneficial use of their property. Cf. § 102-110(c), M.C.C. ("[t]he highest, common, or expected use, is not intended as an appropriate remedy, unless expressly required by applicable statute or case law"). There was no evidence from a property appraiser on the fair market value of the parcel, as encumbered by the regulation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of County Commissioners deny Petitioners' application for relief under the BUD Ordinance. DONE AND ENTERED this 10th day of July, 2014, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 2014.
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Closing File in this proceeding. A copy of the Order is attached to this Final Order as Exhibit A.
Other Judicial Opinions 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 PILED 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. FINAL ORDER NO. DCA09-GM-291 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies have been furnished by U.S. Mail to ea of the persons listed below on this f day of , 2009. Paula Ford pp raency Clerk The Honorable Bram D. E. Canter Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 By U.S. Mail Geoffrey T. Kirk, Assistant County Attorney Hernando County Attorney's Office 20 North Main: Street, Suite 462 Brooksville, FL 34601-2850 By Hand Delivery Lynette Norr Assistant General Counsel Department of Community Affairs
The Issue The issue is whether the Department of Environmental Protection (DEP) should revoke two consents of use issued to the Lays for construction of an exempt dock on Cayo Costa Island near Pelican Bay in Lee County.
Findings Of Fact In spring 2000, after contracting to purchase Lots 16 and 17 in the Cayo Costa Subdivision on Cayo Costa Island in Lee County, but before closing, the Lays contacted Peggy Grant, an environmental specialist in DEP's South District office in Fort Myers, Florida, to inquire whether it would be possible to construct a single-family dock on and over sovereign submerged land owned by the State of Florida in a lagoon west of Pelican Bay. The Lays testified without contradiction that, in making their inquiry, they showed Grant a boundary survey of the property. The boundary survey showed that there was a strip of road easement above the mean high water (MHW) line east of all of Lots 16 and 17 except for the extreme southeast corner of the lots. According to the Lays, again without direct contradiction, Grant told them that it would be possible to construct a dock into the lagoon because the lots were riparian to the lagoon at least at the southeast corner. It was not clear from the evidence whether Grant told the Lays that their dock could emanate from parts of their lots other than the southeast corner. The Lays subsequently closed on the property. On July 12, 2000, the Lays filed a consolidated application for exemption from the need to obtain an environmental resource permit and for consent of use for a 208 square-foot single-family dock emanating from the easternmost point of the boundary between Lots 16 and 17--a point from which the dock would have to traverse approximately 10-15 feet of land above MHW designated as roadway easement on the boundary survey. The Lays testified that the boundary survey was part of the application, but no boundary survey was contained in DEP's files, and it is found that the application did not include the boundary survey. It is found that the Lays, in testifying as they did, confused the application submission with the inquiry of Peggy Grant in spring 2000. There was no other information in the application indicating a road easement or the location of MHW. After the Lays filed their application, DEP located the site on an aerial produced by DEP's Geographic Information System and conducted a site visit. During this phase, DEP and the Lays focused on minimizing impact on mangroves bordering the lagoon. Negotiations ensued, and the Lays eventually agreed to submit additional information down-sizing their proposed dock to 58 square feet. The revised application was granted on August 21, 2000, under DEP File No. 36-0172390-001. The consent of use included General Consent Conditions. Among other things, they stated: "The Letter of Consent associated with these General Consent Conditions as well as these conditions themselves are subject to modification after five (5) years in order to reflect any applicable changes in statutes, rule or policies of the Board [of Trustees of the Internal Improvement Trust Fund] or its designated agent [DEP]." There were no other conditions or statements regarding modification or revocation of the consent of use. After obtaining their exemption and consent of use, the Lays realized they needed a larger dock. On September 11, 2000, they applied for an exemption and consent of use for a 114 square-foot single-family dock. The Lays concede that the boundary survey was not included in this application. This application was granted on October 14, 2000, under DEP File No. 36-0172390-002. It included the same General Consent Conditions as the first consent of use for the 58 square-foot dock and no other conditions or statements regarding modification or revocation of the consent of use. The Lays next approached Lee County for a permit for their dock. They showed Lee County their DEP exemption and consent of use and their boundary survey. On November 13, 2000, Lee County informed the Lays that the County permit could not be issued due to County setback requirements from the road easement shown on the boundary survey. The Lays then asked for consideration of a variance from the setback requirements or vacation of the road easement (which clearly could serve no purpose or be of any use as a road). At that point, the County referred the matter to the County Attorney's office for a legal opinion. On December 29, 2000, a memorandum opinion was prepared to the effect that the road easement, if implicitly offered for dedication by filing of the Second Revised Plat of Cayo Costa Subdivision in the early 1910's, was never accepted by the County. The County surmised that the road easement belonged to the State of Florida. For that reason, no setback requirements from a road easement applied, and the County permit could be issued. The Lays were informed of the County's legal opinion in early January 2001. They were told that the County informed DEP of the legal opinion and the boundary survey and that the Lays could expect to receive their County permit shortly. When DEP was informed about the County's legal opinion, DEP had a copy faxed to its Office of General Counsel in Tallahassee on January 12, 2001, along with a copy of the boundary survey. Upon review of the documentation, DEP came to the conclusion that the Lays were not riparian owners at the point of their proposed dock (at the southeast corner of Lot 16 and northeast corner of Lot 17) as a result of the road easement. On January 18, 2001, DEP gave the Lays notice of DEP's intent to revoke both consents of use (for the 58 and 114 square-foot docks). DEP takes the position not only that it did not have the benefit of the boundary survey in either application for exemption and consent of use but also that it accepted at face value the representations in the applications that the Lays were riparian owners where they proposed to build their dock. Actually, the Lays' applications did not contain explicit representations to riparian ownership. But they did state that the Lays owned "the property described," or had "legal authority to allow access to the property," and did list only "Florida Department of Parks and Recreation" as the only adjoining property owner. In addition, they implicitly represented entitlement to the exemptions and consent of use applied for.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP enter a final order: (1) disapproving DEP's notice dated January 18, 2001, of intent to revoke the Lays' two consents of use; and (2) dismissing this administrative proceeding in which DEP seeks revocation of its two consents of use. DONE AND ENTERED this 14th day of August, 2001, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of August, 2001. COPIES FURNISHED: Francine M. Ffolkes, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000 John and Janet Lay 3901 Southwest 27th Court Cape Coral, Florida 33914 Kathy C. Carter, Agency Clerk Office of General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 David B. Struhs, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building Tallahassee, Florida 32399-3000
