The Issue The issue in this case is whether the evidence sustains the decision of the City of Clearwater Development Code Adjustment Board (the Board) to deny the application of the Appellant, Sun Watch, Inc., for a five foot building height variance for its property located at 670 Island Way, Clearwater, Florida. (The variance is required as a result of the Appellant's desire to build a 95 foot high condominium on the property.)
Findings Of Fact On or about August 23, 1993, the Appellant, Sun Watch, Inc. (Sun Watch or the Appellant), applied to the City of Clearwater Development Code Adjustment Board (the Board) for a five-foot building height variance to allow it to build a 95-foot tall building where zoning regulations limit buildings to 90 feet in height. The building, as presented in the application, would have nine stories over a one-story parking garage and would accommodate 96 condominium units, each 3000 square feet. The application and supporting evidence presented to the Board was to the effect that the building cannot be constructed as planned without the five-foot height variance because: (1) eight feet of clearance from floor to ceiling is required in order to successfully market the planned luxury condominuim units; (2) the building's post-tension slab construction, designed for greater structural strength to withstand more severe wind storms, requires eight-inch thick slabs per floor; and (3) the heating and air conditioning system recommended for the building requires one foot per floor for the duct work, furring, drywall and finishing. The City of Clearwater Development Code (the Code) requires only a minimum of seven feet, six inches, clearance between the floor and ceiling of the Sun Watch residential units. In addition, only seven feet, even, of clearance is required in common areas, such as corridors within the units. If the heating and air conditioning duct work is placed in the corridors, or if the ceilings in the other parts of the residential units are lowered to the seven foot, six inch, minimum, no variance would be required, according to the application and supporting evidence presented to the Board. But the Appellant proved: (1) that the desirable large rooms planned for the perimeter of the residential units were too large to be effectively heated and cooled from the common areas alone; (2) that, notwithstanding the Code allowances, seven foot ceilings are too low for optimal heating and cooling because the air coming from the ceiling registers would blow down too directly onto the unit dwellers; and (3) that people would not buy luxury condominium units with smaller rooms or with lower ceilings. Notwithstanding the logic of the Appellant's arguments, as far as they go, it is clear that the primary purpose of the large size of the condominium units planned for the Sun Watch building, both in square footage and in ceiling height, is to secure greater profits from the sale of luxury condominiums, instead of smaller, less than luxury units. The primary purpose of the ninth story of residential units is to achieve the maximum density for which the property is zoned, with the commensurate higher profits, instead of a lower zoned density. In fact, the design which necessitated the building height variance application in this case was drawn at the request of the developer, whose instructions to his architect were to design a building to utilize the maximum allowable density on the property. In addition, the evidence at the final hearing established that, in response to the developer's instructions, the developer's architect drew the design which necessitated the building height variance application in this case without knowledge of the 90-foot building height restriction. Only after the design was drawn did the architect realize that the design would necessitate a variance from the building height restriction. The evidence at the final hearing was that there were inaccuracies in the building design on which the variance application was based. Instead of a foot per floor for the duct work, furring, drywall and finishing, actually 13 to 14 inches would be required. In addition, instead of the eight feet, nine inches, in the design for the parking garage and slab under the first floor, actually nine feet, eight inches, will be required. Based on those facts, instead of the five foot variance in the application, actually a variance of between nine feet, eight inches, and ten feet, five inches, would be required to build the proposed nine story, 96 unit, condominium with one story parking garage. (This actual variance requirement takes into account Section 42.23(5) of the Code, which allows parapet walls to extend up to 30 inches above a building height limitation; the Sun Watch building has a four foot parapet wall, but its variance application did not seem take advantage of the extra 30 inches allowable under the Code.) No application for the variance actually required for the proposed Sun Watch building ever has been presented to the Board for approval. There was some evidence that the additional height of the proposed Sun Watch condominium would interfere with the view of some of the neighbors in the building immediately to the north, that the reduced light reaching the building immediately to the north will adversely affect the heating and cooling of the building, causing increased electric bills, and that the proposed Sun Watch condominium would impair the value of the units in the building immediately to the north. The application and evidence did not clearly prove the contrary.
Findings Of Fact Petitioner applied for conditional use approval from Respondent for the package sale of beer, wine and liquor (4-COP) at 2779 Gulf-To-Bay Boulevard, Clearwater, Florida, on or after September 4, 1987. The subject property is zoned general commercial (CG), and conditional use approval is required for package sales on property zoned CG. Conditional use approval was previously granted for this property on June 30, 1987, to allow on-premises consumption of alcoholic beverages, but this prior approval is not under review in this proceeding. On October 13, 1987, the Planning and Zoning Board voted unanimously to deny Petitioner's application for the package sale of beer, wine and liquor. Petitioner has timely sought review of the Planning and Zoning Board decision. It is undisputed that the subject property is less than 500 feet from an adult congregate living facility (ACLF) which constitutes the residence of approximately 300 persons. Frank Pascoe, the President and representative of the ACLF, testified about the residents' concerns about security, and the adverse impact of this application on the general welfare of their neighborhood. Paula Harvey, Planning Director, testified about the adverse impacts of this application on neighborhood noise, traffic and parking. Ordinance 4470-87 applies to this application since said Ordinance, by its terms, governs applications filed subsequent to September 3, 1987. Petitioner offered no evidence in support of its application. Specifically, there is no evidence in the record favorable to the applicant concerning noise, parking and the compatibility of this application with the neighborhood.
The Issue As to Case 92-1751DRI whether Building Permit No. 9110002865 issued by Monroe County, Florida, to Ronald and Patricia LaCroix as owners and Pierce Construction and Builders as contractor for the construction of a dock is contrary to the provisions of Chapter 380, Florida Statutes, the Monroe County Comprehensive Plan and the Monroe County Land Development Regulations. As to Case 92-3949DRI whether Building Permit No. 9110003422 issued by Monroe County, Florida, to David Goodridge as owner and Pierce Construction and Builders as contractor for the construction of a dock is contrary to the provisions of Chapter 380, Florida Statutes, the Monroe County Comprehensive Plan and the Monroe County Land Development Regulations. As to Case 92-5582DRI whether Building Permit No. 9210004503 issued by Monroe County, Florida, to Dick and Jean Madson as owners and Mark W. Milnes Construction as contractor for the construction of a dock is contrary to the provisions of Chapter 380, Florida Statutes, the Monroe County Comprehensive Plan and the Monroe County Land Development Regulations.
Findings Of Fact Petitioner is the state land planning agency charged with the responsibility to administer the provisions of Chapter 380, Florida Statutes, and the regulations promulgated thereunder. Petitioner has the authority to appeal to the Florida Land and Water Adjudicatory Commission any development order issued in an area of critical state concern. Each appeal in this consolidated proceeding was timely and each involved a development within the Florida Keys Area of Critical State Concern as designated under Sections 380.05 and 380.0552, Florida Statutes. Monroe County is a political subdivision of the State of Florida and is responsible for issuing development orders for development in unincorporated Monroe County. Monroe County issued the development orders that are the subject of this appeal. Respondents, Ronald and Patricia LaCroix, are the owners of real property known as Lot 43 Saddlebunch RV Park on Saddlebunch Key in unincorporated Monroe County. On December 12, 1991, Monroe County issued building permit 9110002865 to Mr. and Mrs. LaCroix as owners and to Pierce Construction and Builders as general contractors, to build a boat dock on the subject property and extending beyond the mean high water mark into a man-made canal. At the point that the boat dock would terminate, the canal is more than twenty feet wide and is more than four feet deep at mean low tide. The canal extends throughout the Saddlebunch RV Park. Respondent, David Goodridge is the owner of real property known as Lots 38 and 39 Saddlebunch RV Park on Saddlebunch Key in unincorporated Monroe County. On March 20, 1992, Monroe County issued building permit 9110003422 to Mr. Goodridge as owner and to Pierce Construction and Builders as general contractors, to build a seawall and boat dock on the subject property and extending beyond the mean high water mark into a man-made canal. At the point that the boat dock would terminate, the canal is more than twenty feet wide and is more than four feet deep at mean low tide. The canal extends throughout the Saddlebunch RV Park. Respondents, Dick and Jean Madson are the owners of real property known as Lot 38, Section D, Sugarloaf Shores subdivision, Sugarloaf Key in unincorporated Monroe County. On May 13, 1992, Monroe County issued building permit 9210004503 to Mr. and Mrs. Madson as owners and to Mark W. Milnes Construction as general contractors, to build a dock and davits on the subject property and extending beyond the mean high water mark into a man-made canal. At the point that the boat dock would terminate, the canal is more than twenty feet wide and is more than four feet deep at mean low tide. The canal extends throughout Sugarloaf Shores subdivision. Monroe County's comprehensive plan, which has been approved by the Petitioner and by the Administration Commission, is implemented through its adopted land development regulations, codified in Chapter 9.5, Monroe County Code. Section 9.5-345(m)(2), Monroe County Code, referred to as the four foot rule, provides as follows: (2) All structures on any submerged lands and mangroves shall be designed, located and constructed such that: * * * No structure shall be located on submerged land which is vegetated with sea grasses except as is necessary to reach waters at least four (4) feet below mean low level for docking facilities; No docking facility shall be developed at any site unless a minimum channel of twenty (20) feet in width where a mean low water depth of at least minus four (4) feet exists; Section 2.104, Nearshore Waters, Monroe County Comprehensive Plan, Volume II, Future Land Use Element, provides, in pertinent part, as follows: The Florida Keys are dependent on nearshore water quality for their environmental and economic integrity. The heart of the Florida Keys economy, the means by which Monroe County exists as a civil and social institution, is based on its unique oceanic character. If nearshore water quality is not maintained, then quality of life and the economy of Monroe County will be directly and immediately impacted. OBJECTIVES 1. To protect, maintain and, where appropriate, to improve the quality of nearshore waters in Monroe County. * * * POLICIES 1. To prohibit land use that directly or indirectly degrade nearshore water quality. * * * To prohibit the development of water dependent facilities, including marinas, at locations that would involve significant degradation of the biological character of submerged lands. To limit the location of water-dependent facilities at locations that will not have a significant adverse impact on off-shore resources of particular importance. For the purposes of this policy, off-shore resources of particular importance shall mean hard coral bottoms, habitat of state or federal threatened and endangered species, shallow water areas with natural marine communities with depths at mean low tide of less than four (4) feet, and all designated aquatic preserves under Florida Statutes section 258.39 et seq. Section 9.5-4(W-1), Monroe County Code, provides as follows: (W-1) "Water at least four (4) feet below mean sea level at mean low tide" means locations that will not have a significant adverse impact on off- shore resources of particular importance. For the purposes of this definition, "off-shore resources of particular importance" shall mean hard coral bottoms, habitat of state or federal threatened and endangered species, shallow water areas with natural marine communities with depths at mean low tide of less than four (4) feet, and all designated aquatic preserves under Florida Statutes section 258.39 et seq. Benthic communities exist in the waters between the two canals and deep water, such as rock-hard bottom, sea grasses, algae, and hard coral. Turtles, manatees, sharks, stingrays, eagle rays, snapper, pink shrimp, mullet, and other marine animals populate the Sound. Sea grass beds play an important role in water quality maintenance in the Keys through filtration, nutrient uptake, stabilization of the bottom, and as a habitat for commercially important species. Neither the canal system for Saddlebunch RV Park nor the canal system for Sugarloaf Shores subdivision has access to deep water without crossing areas of water in Sugarloaf Sound with depths of less than four feet at mean low water. Many of these shallow areas contain sea grass beds. The operation of motor driven boats may result in damage to sea grass beds and shallow water marine communities through prop dredging if boats were to attempt to cross these shallow areas. Although there is evidence of prop dredging in parts of these shallow waters, it was not shown that the damage was done by boats traveling from these canal systems and deep water. Whether boats that may be docked at these sites if these permits are granted will cause damage at some future time to some portion of the shallow waters of Sugarloaf Sound between the canal systems and deep water is speculation. Since 1986, Monroe County has adopted an interpretation of Section 9.5-345(m)(2), Monroe County Code, and of Section 2.104, Nearshore Waters, Monroe County Comprehensive Plan, Volume II, Future Land Use Element, that would permit the construction of each of the subject projects. That interpretation permits the development of marginal seawalls, vertical bulkheads and docks in subdivisions that were under development in 1986 if the proposed structure would terminate in a channel more than 20 feet wide with water more than four feet deep at mean low tide. The structures that are the subject of this proceeding meet that permitting criteria. Monroe County's interpretation of the so-called "four foot rule" is that the rule was intended to restrict the development of boating access facilities in new, undeveloped subdivisions and to regulate proposed expansion of existing marinas and the development of new marinas. Monroe County's interpretation of its rules is that the type development at issue in this proceeding, constructed on an individual family home-site, would have minimal effect on the nearshore water environment of critical state concern. Monroe County considers the subject applications to meet all of its permitting criteria. Respondents presented evidence that several similar projects were permitted at approximately the same time as the subject permits were issued without Petitioner filing an appeal. This evidence was insufficient to establish that Petitioner should be estopped to appeal the subject permits, that Petitioner engaged in selective enforcement of its regulatory power, or that Petitioner otherwise brought the subject appeals for an inappropriate purpose.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Florida Land and Water Adjudicatory Commission enter a final order which affirms Monroe County's decision to issue building permit number 9110002865, and which dismisses the appeal filed by the Department of Community Affairs that is at issue in Case 92-1751DRI. It is further recommended that the Florida Land and Water Adjudicatory Commission enter a final order which affirms Monroe County's decision to issue building permit number 9110003422, and which dismisses the appeal filed by the Department of Community Affairs that is at issue in Case No. 92-3949DRI. It is further recommended that the Florida Land and Water Adjudicatory Commission enter a final order which affirms Monroe County's decision to issue building permit number 9210004503, and which dismisses the appeal filed by the Department of Community Affairs that is at issue in Case No. 92-5582DRI. DONE AND ORDERED this 26th day of January, 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of January, 1993. APPENDIX TO RECOMMENDED ORDER TO CASE NO. 92-1751DRI, CASE NO. 92-3949DRI, AND CASE NO. 92-5582DRI The following rulings are made on the proposed findings of fact submitted by Petitioner. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, 8, 10, 11, and 14 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 7 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in the first two sentences of paragraph 9 are adopted in material part by the Recommended Order. The proposed findings of fact in the last sentence of Paragraph 9 are rejected as being unsupported by the evidence. While the evidence established that damage may result, the evidence did not establish that damage would result. The proposed findings of fact in the first sentence of paragraph 12 are rejected as being unsubstantiated by the evidence since the water in the canals is deeper than four feet. The proposed findings in the second sentence of paragraph 12 are subordinate to the findings made. The proposed findings of fact in the last sentence of Paragraph 12 are rejected as being unsupported by the evidence. While the evidence established that damage may result, the evidence did not establish that damage would result. The proposed findings of fact in paragraph 13 are rejected as being subordinate to the findings made. The proposed findings of fact in the first sentence of paragraph 15 are rejected since the evidence established that Monroe County's interpretation of the four foot rule dates to 1986. The proposed findings of fact in the second sentence of paragraph 15 are rejected as being unnecessary to the conclusions reached. The remaining proposed findings of fact in paragraph 15 are adopted in material part by the Recommended Order. The proposed findings of fact in the first sentence of paragraph 16 are subordinate to the findings made. The proposed findings of fact in the second sentence of paragraph 16 are rejected as being argument. The proposed findings of fact in the final sentence of paragraph 17 (there are two paragraphs 16, the second of which is being referred to as paragraph 17) are adopted in material part by the Recommended Order. The remaining proposed findings of fact in paragraph 17 are rejected as being unnecessary to the conclusions reached. The following rulings are made on the proposed findings of fact submitted by Respondents. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 16, and 17 are rejected as being the recitation of testimony that is subordinate to the findings made. The proposed findings of fact in paragraph 12 are rejected as being contrary to the record of the proceedings. The proposed findings of fact in paragraph 13 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 14 are adopted in part by the Recommended Order are rejected in part as being subordinate to the findings made. The proposed findings of fact in paragraph 15 are rejected as being unnecessary to the conclusions reached. COPIES FURNISHED: Lucky T. Osho, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Randy Ludacer, Esquire Monroe County Attorney 310 Fleming Street Key West, Florida 33040 James T. Hendrick, Esquire Morgan & Hendrick 317 Whitehead Street Key West, Florida 33040 William R. Kynoch, Deputy Director Florida Land and Water Adjudicatory Commission Executive Office of the Governor 311 Carlton Building Tallahassee, Florida 32301 Carolyn Dekle, Director South Florida Regional Planning Council Suite 140 3400 Hollywood Boulevard Hollywood, Florida 33021 Robert Herman Monroe County Growth Management Division Public Service Building, Wing III 5825 Jr. College Road Stock Island Key West, Florida 33040 Charles M. Milligan, Esquire Post Office Box 1367 Key West, Florida 33041 David and Florence Clark 4606 Wayne Road Corona Del Mar, California 92625 Edward Warren Werling Post Office Box 1042 Summerland Key, Florida 33042 Theodore W. Herzog, Esquire 209 Duval Street Key West, Florida 33040 Pierce Construction & Builders Route 4, Box 319 Summerland Key, Florida 33042 Dick and Jean Madson Post Office Box 276 Summerland Key, Florida 33402 Mark W. Milnes Route 5, Box 775-G Big Pine Key, Florida 33043 David M. Maloney, Esquire Office of the Governor The Capitol, Room 209 Tallahassee, Florida 32399-0001
The Issue Whether Petitioner is entitled to a consent to use sovereign submerged lands.
Findings Of Fact MBRRC filed an application for an environmental resource permit and authorization to use sovereign submerged lands located in the Biscayne Bay Aquatic Preserve (BBAP). This application sought approval to construct two finger piers and to install twelve mooring pilings for the benefit of a private yacht club. The application was filed with the Department for review on October 20, 1995. The Petitioner’s property is located on Hibiscus Island, a man-made island within the BBAP, and is accessed by boat. The island is primarily used for residential purposes. Petitioner’s facility is the only commercial docking facility on the island. Petitioner owns approximately 140 feet along the waterfront with its property line extending 20 feet seaward of the upland property. It has an existing dock which is approximately 10 feet wide that runs the length of, and parallel to, the seawall along its waterfront. The proposed finger piers would extend waterward and perpendicular to the existing dock from its ends. This extension proposes to use approximately 16 feet into the sovereign submerged land at the ends and would also allow the installation of 12 mooring pilings between the piers. The ultimate purpose of the installation is to allow perpendicular docking. At all times material to this case the Department has considered the proposed construction to be a new facility subject to the requirements of Section 258.397(3)(a), Florida Statutes, and Rule 18-18.006(3), Florida Administrative Code. No existing structures at the site would qualify the applicant for the type of lease proposed. The Petitioner annually hosts numerous fishing and social events at its club facility. Participants typically “raft” vessels together in order to gain access to the shore. Historically this process has moored vessels parallel to the existing dock/seawall. This “rafting” would not necessarily be eliminated by the addition of the proposed finger piers. Petitioner seeks to expand the docking facility as requested in order to provide better ingress and egress to its property. It contends that fishing and boating in the BBAP will be enhanced by such improvements. Petitioner maintains its property is being treated differently than others; however, policies used by the Department in this instance are applicable to all areas of the BBAP. By letter dated February 6, 1996, the Department advised the Petitioner that staff would recommend denial of the application. That letter advised Petitioner of the “extreme hardship” test found in Rule 18-18.006(3), Florida Administrative Code as well as Section 258.397(3)(a), Florida Statutes. The letter noted that this standard was “at best very difficult to demonstrate” and advised Petitioner of the “public interest” requirement also set forth by rule and statute. “Self-imposed circumstances” as used in the applicable rule has been construed to include circumstances where the applicant seeks to improve existing boat access, to increase the number of docking slips, and to enhance the upland property. The Board of Trustees of the Internal Improvement Trust Fund (Board of Trustees) has determined that the construction of single-family docks meets the “extreme hardship” test because single-family docks are considered to be the lowest impact use available on sovereign submerged land. It is deemed appropriate to allow a qualified right of ingress and egress to the upland owner. The Petitioner’s proposal is not a public project or a public necessity. Petitioner currently has ingress and egress to its upland property. The Petitioner’s property is a nonconforming use in a residential area. The term “property owners in the area” has been construed to mean the BBAP. The proposed project is not unique to the applicant, and the burden to the applicant is shared by other property owners in the BBAP. The proposed project would provide additional access to an upland property owner who already has boat access to the waterway. Neither the project site nor the island on which it is located are unique as other properties of a similar nature are within the BBAP. In order to establish that a proposed project is “in the public interest,” applicants are required to demonstrate that the activity would improve either public recreation, water quality, fish hatcheries, or other matters of public interest. In this instance, Petitioner did not submit a written proposal to support the public interest requirement during the application process. Consequently, DEP has not assessed such proposal for its quantity or quality. Petitioner relies on its improved boating access to support a claim of enhancement to public recreation. As to water quality, fish hatcheries, or other matters of public interest, the proposed project would adversely affect seagrasses and other environmental resources by shading. Although the installation of mooring pilings would provide some environmental benefit, those benefits would not be quantifiable and would be offset by increased shading from the project. Other proposals submitted by Petitioner incidental to its Dade County permit application are insufficient in detail and scope to show the public interest requirement would be met. The proposed project is located in an area that is intermediate between the most sensitive and least sensitive sites, for the purpose of manatee protection. The proposed project would have an adverse environmental impact on manatee protection since it creates additional docking slips and additional boat traffic. The proposed project would result in environmental costs through the loss of resources and increased turbidity. The proposed project would provide no quantifiable economic benefit to the public, but would provide some economic cost in the loss of habitat and food source for fisheries. The proposed project would provide no social benefits different from those presently provided by the existing facility. The benefit of the proposed project is merely enhancement of the Petitioner’s current use at a cost of lost fisheries, increased danger to manatees, and increased turbidity.
Recommendation Based on the foregoing, RECOMMENDED: That the Department of Environmental Protection enter a final order denying Petitioner’s request for authorization to lease sovereign submerged land. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 31st day of March 1997. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 31st day of March 1997. COPIES FURNISHED: Stephen E. Tunstall, Esquire Stephen E. Tunstall, P.A. 2701 Southwest LeJeune Road Suite 410 Coral Gables, Florida 33134 Jeffrey Brown, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Kathy Carter, Agency Clerk Office of the General Counsel Department of Environmental Protection, Mail Stop 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Perry Odom General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue Whether or not the Petitioners, Guy T. Selander and Henry W. Harris, should be granted an "after the fact" construction permit in accordance with Section 253.124(7)(a), F.S., for the retaining wall which has been constructed on or near their property located on Beauclerc Point, Duval County, Florida.
Findings Of Fact This cause came on to be heard upon the Petitioners' request for an "after the fact" construction permit for a retaining wall which had been built on or near their property. The specific property spoken of is two lots located on Beauclerc Point, Duval County, Florida. These lots are shown as numbers 21 and 22 found on Petitioners' Exhibit No. 15, admitted into evidence. This is a replat based upon a survey of November 28, 1923. The exhibit shows the retaining wall superimposed on the survey. A more specific showing of the placement of the retaining wall on lots 21 and 22 may be found in Petitioners' Exhibit No. 16, admitted into evidence. Petitioner, Guy T. Selander is the owner of lot number 21, which lot contains his residence. Henry W. Harris is the owner of lot No. 22 and there are no permanent buildings located on that lot. Dr. Selander built a home on lot No. 21 in the years 1974 through 1975. Prior to building the home he was of the opinion that he needed to protect the front of the lot which faces the St. Johns River. Dr. Harris was also interested in protecting his lot. Between them it was determined that they would build a retaining wall to protect their lots. The two lots are located on a bluff which drops approximately 20 to 25 feet down to the level of the river. The St. Johns River is a navigable river. Prior to commencing the construction of the retaining wall, the Petitioners, upon the suggestion of a friend of Dr. Selanders, applied to the City of Jacksonville, Duval County, Florida for a building permit. The application for permit was made on January 19, 1973. The Petitioners were granted a permit on January 19, 1973, entitled "miscellaneous permit", No. 495. A copy of the permit is a part of Petitioners' Exhibit No. 1, admitted into evidence. The Petitioners at that time did not seek further approval of the construction of their retaining wall, by the state authorities or the United States Corp of Engineers. In constructing the retaining wall the Petitioners contemplated the use of fill, some of which was to be placed in the river proper. Some fill was placed in the river at this point in time which constituted an obstruction or alteration of the natural flow of the St. Johns River. The apex of the retaining wall and the southwest section of the retaining wall, was constructed waterward of the existing bulkhead line found on the neighboring property located to the north and south of the subject two lots. The apex of the retaining wall, as can be seen in Petitioners' Exhibit No. 15, lies at the approximate center of the two lots. At the time the permit was requested of the City of Jacksonville and the retaining wall was constructed, which construction was between January, 1973 and September, 1973, Section 253.124(1)(2), F.S., required that the permit application be approved by the Board of Trustees of the Internal Improvement Trust Fund, prior to any construction. As indicated, this approval was not received prior to commencing construction and in September, 1973, officials of the State of Florida and the U.S. Corp of Engineers came to the property and discovered that the wall was being constructed. At this point in the construction, the bottom of the river where the retaining wall was being placed had been smoothed out and sand bags filled and laminated, such that the wall was in place. Then "riprap", broken concrete, was being placed landward of the retaining wall. The officials of the two governmental bodies told the Petitioner Selander that he would need approval of the Board of Trustees of the Internal Improvement Trust Fund and of the U.S. Corp of Engineers to construct that wall. Prior to undertaking the project of constructing the retaining wall, the land along the toe of the bluff had been dry land, but as established before, some fill had been placed in the river, with the majority of that fill being placed at the southern most point of the two lots. This location is further described as being the point where the retaining wall makes an approximate right angle and comes back to the southern boundary line of lot No. 22. The retaining wall and the Selander residence may be seen in Petitioners' Photographic Exhibits No. 9 and 11, admitted into evidence. The condition of the shoreline on lots No. 21 and No. 22 prior to the construction of the retaining wall and placement of the fill may be seen in Petitioners' Photographic Exhibit No. 8, admitted into evidence. This photograph was taken somewhere in the time period of 1970 through 1971, and shows water of the St. Johns River at a place on the lot fronts that was later filled in. The photograph, Petitioners Exhibit No. 8, also shows that the retaining wall had been constructed waterward of the mean high waterline. Subsequent to the conversation with the state and federal officials, the Petitioners filed a request for an "after the fact" permit. This permit request was filed on November 1, 1973 and is found as Petitioners' Exhibit No. 1, admitted into evidence. The Petitioners stopped working on the project and did not recommence until after receiving the recommended approval of the City of Jacksonville, which is found in Petitioners' Exhibit No. 2, admitted into evidence, an August 16, 1974, letter from the Director of Public Works of the City of Jacksonville. This permit letter is conditioned upon the approval of the Trustees of the Internal Improvement Trust Fund and of the U.S. Army Corp of Engineers. From that point there were various requests made by the agencies of the state, which were complied with by the Petitioners. Additional work was done on the retaining wall based on receipt of a copy of a letter from Robert W. Hall, Administrator of the Dredge and Fill section of the State of Florida, Department of Pollution Control. This letter is Petitioners' Exhibit No. 6, admitted into evidence and is dated October 31, 1974. The letter indicates the recommended approval of the Department of Pollution Control of the project conditioned upon the installation of "riprap" material waterward of the retaining wall, and pending the Trustees' approval. The principal questions being addressed by the agencies were: Whether or not it would be more detrimental to the marine biological resources to remove the construction and fill. If the answer to the first question was yes, then what was the nature of the erosion of the bluff line, was it slow and imperceptible or was it avulsion or artificially induced. During the course of the investigation of the application for permit, review of the project was made by the Department of Natural Resources. In addition, a field inspector with the Board of Trustees of the Internal Improvement Trust Fund, Jeremy Tyler, went to the project and examined the retaining wall and surrounding area on November 18, 1974. His inspection revealed that the water on the property located south of the Petitioners' property touched the bluff of the bank at high tide. The water on the property south of the Petitioners' property was lapping against the bulkhead at the base of the bluff. The witness noted that the point of the bluff in that general area was located on the Harris and Selander property. According to this witness's observation, the mean high waterline on November 18, 1974 would have been an approximate diagonal line going from the adjacent north bulkhead line to the adjacent south bulkhead line. On November 3, 1975, Jerome Kelly, a subdistrict biologist for the State of Florida, made an inspection of the property. He felt that the only adverse effect on the biological resources that would occur with the removal of the retaining wall would be removal of a stand of typha, also known as cattails, which was waterward of the north end of the retaining wall. A memorandum of his observations is found as Respondent's Exhibit No. 5, admitted into evidence. The Petitioners employed Dr. Joe A. Edmisten, an ecological consultant. The results of the examination of the property, which was made by Dr. Edmisten may be found as Petitioners' Composite Exhibit No. 17, admitted into evidence. Dr. Edmisten and his assistant took soil samples and cores in the general area and examined various aquatic and wetland plants in the area of the project. It was concluded by Dr. Edmisten that soil had washed from the bluff line before and this erosion was prohibiting the health of certain of these plants. Additionally, Dr. Edmisten felt that the retaining wall was assisting in the development of these plants and the development of periphyton and sessile animals. He felt that the removal of the retaining wall would cause the destruction of the aquatic plants, terrestial plants and animals, and aquatic animals and the substrate. The report does not speak to the issue of the long term effects of removing the retaining wall landward of its present placement and landward of the mean high waterline; however, his testimony at the hearing seemed to suggest that a properly constructed retaining wall in such a location would not be inappropriate. This is in keeping with the testimony of Jerome Kelly who didn't feel that removing the wall and placing it in a location landward of the mean high waterline would damage the ecological system. Additionally, it can be seen that if the wall was moved landward of its present location there would be a greater volume of water for marine life to exist in. The second consideration that was addressed in the discussion of the "after the fact" permit was the question of whether the erosion of the property found in the lots of the Petitioners had transpired through imperceptible erosion or by specific avulsion or artificially induced erosion. Testimony was offered by Petitioner Harris, which appears as a deposition in lieu of in hearing testimony. Affidavits were also submitted to the Respondent by persons living in the vicinity of the Petitioners' property. These affidavits may be found as part of the Edmisten report which is Petitioners' Exhibit No. 17, admitted into evidence. The Petitioners tried to demonstrate that the loss of land was caused by avulsion due to hurricane Dora which occurred in 1964 and through various northeastern storms. It is clear that the property line has receded since the replat of 1923 shown in Petitioner's Exhibit No. 15, admitted into evidence. It is unclear however, whether this erosion was caused by avulsion, imperceptible erosion or artificially induced erosion. Therefore, the Petitioners have failed to demonstrate their entitlement to reclaim land beyond the mean high waterline. Based upon an examination of the facts it has been demonstrated that it would not be more damaging to the environment or the marine resources protected by Chapter 253, F.S., to cause the removal of the fill which has been placed waterward of the mean high waterline, as opposed to granting an "after the fact" permit.
Recommendation It is recommended that the "after the fact" construction permit sought by the Petitioners under authority of Section 253.124(7)(a) F.S., be denied. DONE AND ORDERED this 24th day of June, 1977, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Almer W. Beale, II, Esquire South 1014, Barnett Bank Building Jacksonville, Florida 32202 Vance W. Kidder, Esquire Department of Environmental Regulation 2562 Executive Center Circle, East Tallahassee, Florida 32301
Findings Of Fact By Application for Permit to Move Building over State Roads dated November 1, 1985, Eyal Sade, on behalf of Sade Housemovers applied for a permit to move a dwelling over state roads some 32 miles in Tampa and vicinity. Although this application showed the width of the building to be 32.2 feet, including eaves, E & S Construction/Sade Housemovers, was issued regular Permit No. B17531 on November 6, 1985 (Exhibit 1). Width, excluding eaves, was left blank on this application. This permit provided the building would be moved over state roads between the hours of 12:00 midnight and 6:00 A.M. and be escorted by local police. The application showed utility companies TECO, GTE and WRec [sic] had been notified of the move and the move had been cleared by the Florida Highway Patrol without comment regarding the need for escort. Also Seaboard railroad system had been notified (Exhibit 1). This move commenced shortly after midnight, November 19, 1985, with escorts from the Hillsborough County Sheriff's Department. The building had to be jacked up on the platform on which it rode and required a 90 degree turn to commence its trip south on Nebraska Avenue (U.S. 41). This delayed the start of the movement down Nebraska Avenue approximately 30 minutes. Shortly after the trip started, the portable generator that provided lighting on the building stopped functioning and the escorts told Mr. Sade he had to get the lights on the building. Sade attempted to have the generator repaired as the move progressed. When the movers stopped for approximately five minutes to repair the generator, the police escorts testified that the crew moving the building stopped working to eat. This was denied by Sade and the members of his crew who all testified that the sandwiches that Sade procured were eaten as the move progressed. The two deputies from the Sheriff's Office who escorted the move considered the move to be progressing slowly and told Sade several times that he should be ready to park the building before 6:00 A.M. Sade had spent three days surveying the route before November 19, and had taken measurements of all bridges and the elevation of lights. Mrs. Sade had contacted by telephone the City of Tampa Utilities Department to advise them of the move as well as Pasco County officials for the portion of the route in Pasco County. There was a conflict in the testimony of the deputies and Sade regarding the presence of a man on top of the building to clear traffic lights as the building passed under these lights. Sade testified he had a man on the building during the time the building was in the City of Tampa. The deputies testified they told Sade he needed someone on the top of the building. The bridge over the Hillsborough River on SR 39 was some twenty miles from the commencement of the trip and the building arrived at this bridge around 5:30 A.M. The escorts had told Sade several times that he should not be on the road after 6:00 A.M. and that hour was approaching. Sade was aware of a large lot on which the building could be parked off the highway located about one mile south of Hillsborough River bridge and decided to cross the bridge to get to that location. While crossing the Hillsborough River bridge, the building got stuck on the guardrail and had to be backed off. Sade's winch broke down but they were able to obtain a bulldozer from a business adjacent to the bridge which helped get the building off the pavement and along the right of way as demanded by the escorting officers. While this was going on, the traffic was totally blocked for about 20 minutes and delayed with one way traffic having to proceed past the building until the building was finally moved completely off the roadway. Even then the overhang of the building extended offer the road to the white line along the edge of the pavement. Sade's testimony that this eave was 17 feet above the pavement was not disputed; however, William Ledden opined that a semi-trailer would hit the roof of the building if it attempted to pass under this eave. By the time the building was parked along the right-of-way, it was approximately 8:40 A.M. and traffic had been stopped and delayed for almost three hours. The problem of getting the building stuck on the bridge, the resulting delay past 6:00 A.M. and that the building was still on the road was reported to Petitioner, and William Ledden, a certified officer employed by DOT as a weights and safety inspector, was dispatched to the scene. Ledden looked at the permit issued Sade for the move, saw it was a regular permit, saw that it expired at 6:00 A.M. and directed Sade not to move the building until a proper permit was issued. Ledden was present during the time the wrecker relocated the building alongside the paved road on the shoulder. For a building exceeding 30'6" in width a Special Permit is required (Rule 14-63.03, Florida Administrative Code). Ledden testified he made it clear to Sade that the building was not to be moved without a valid permit. On the morning of November 20, 1985, after midnight, the building was moved without incident across Hillsborough River bridge to the large lot south of the bridge that Sade had hoped to make the night before. Sade reapplied to DOT for a permit to move the building to its intended destination and on November 25, 1985, Special Permit No. B17546 (Exhibit 2) was issued to Respondent. This permit indicated all necessary parties were notified of the move. Shortly after midnight, November 27, 1985, the movement of this building recommenced pursuant to the Special Permit. The move progressed satisfactorily until the bridge on SR 39 over Blackwater Creek was reached. Petitioner's witness testified the building hit the rub rails on both sides of the bridge. Photograph admitted on Exhibit 4 shows one side of the building rubbing on the guardrail. Respondent acknowledged that the clearance was close and that to clear the guardrail on one side, the building had to be raised on that side. The driver of the towing truck acknowledged that he initially got off line and one side of the building touched the guardrail and it was necessary to back off the bridge to get realigned. To raise one side of the building to enable it to clear the guardrail on the right side, 2 x 12 planks were placed on the roadway for the right wheels of the carriage to ride on. These planks had to be moved continuously as the building progressed across the bridge. This materially slowed the progress across the bridge. Other than the initial rubbing of the guardrail, the only complaint of Petitioner regarding this part of the move is that the bridge was blocked to traffic for one and one-half hours while the building crossed the bridge. Sade testified the building was on the bridge for only 30 to 45 minutes; however, the longer period is deemed more reliable. After clearing the bridge, the building struck some tree limbs alongside the road and a railroad stop sign over the road which had to be realigned. This realignment was done by the moving crew and no safety hazard resulted. The carriage for the building had been raised as much as possible to clear the bridge guardrails and still be low enough to clear the overhanging traffic signals, hence the need to raise one side of the carriage to clear the guardrail at the Blackwater Creek bridge. The November 27 move was completed prior to 6:00 A.M. in accordance with the permit.
The Issue Whether Building Permit No. 9210004557 issued by Monroe County, Florida, to Daniel and Betsy Jones as owners and Russell D. Moore as contractor for the construction of a canal front vertical bulkhead and dock as a structural accessory to a single family dwelling is contrary to the provisions of Chapter 380, Florida Statutes, the Monroe County Comprehensive Plan and the Monroe County Land Development Regulations.
Findings Of Fact Petitioner is the state land planning agency charged with the responsibility to administer the provisions of Chapter 380, Florida Statutes, and the regulations promulgated thereunder. Petitioner has the authority to appeal to the Florida Land and Water Adjudicatory Commission any development order issued in an area of critical state concern. Monroe County is a political subdivision of the State of Florida, and is responsible for issuing development orders for development in unincorporated Monroe County. Monroe County issued the development order that is the subject of this appeal. Respondents, Daniel and Betsy Jones, are the owners of real property known as Lot 27, Section D (ext. to Hibiscus Lane), Sugarloaf Shores, Florida (Lot 27). Sugarloaf Shores is a legally platted subdivision. The Jones were, at the time of the formal hearing, constructing a single family dwelling on that property. The building permit for the construction of the dwelling is not at issue in this proceeding. Most of Monroe County, including the subject property, is within the Florida Keys Area of Critical State Concern as designated under Sections 380.05 and 380.0552, Florida Statutes. There is an extensive man-made canal system throughout Sugarloaf Shores subdivision that is several miles in length, is between six and ten feet in depth, and is approximately sixty feet in width. The subject permit is for construction where Lot 27 fronts this canal system and involves construction beyond the mean high water mark onto submerged lands. On June 26, 1992, Monroe County issued the subject building permit, Permit Number 9210004557, to Daniel Jones and Betsy Jones as owners and Russell D. Moore as contractor. The subject permit authorizes the construction of a vertical bulkhead designed to limit erosion together with a docking facility with davits and access to the canal system. Most of the neighboring lots in the vicinity of the project have vertical bulkheads with docking facilities. The bulkhead is desirable to prevent erosion of the canal bank at Lot 27 and pollution of the canal waters. The requested development would give the Jones safe access to the canal and provide private boating facilities. Pursuant to the provisions of Sections 380.05 and 380.0552, Florida Statutes, Monroe County has adopted a comprehensive plan which complies with the Principles of Guiding Development found at Section 380.0552(7), Florida Statutes. Section 380.0552(7), requires Monroe County's land development regulations to comply with certain Principles For Guiding Development, including the following: (b) To protect shoreline and marine resources, including mangroves, coral reef formations, seagrass beds, wetlands, fish and wildlife and their habitat. * * * (e) To limit the adverse impacts of development on the quality of water throughout the Florida Keys. ... Monroe County's comprehensive plan, which has been approved by the Petitioner and by the Administration Commission, is implemented through its adopted land development regulations, codified in Chapter 9.5, Monroe County Code. Section 9.5-345(m)(2), Monroe County Code, provides as follows: (2) All structures on any submerged lands and mangroves shall be designed, located and constructed such that: * * * No structure shall be located on submerged land which is vegetated with sea grasses except as is necessary to reach waters at least four (4) feet below mean low level for docking facilities; No docking facility shall be developed at any site unless a minimum channel of twenty (20) feet in width where a mean low water depth of at least minus four (4) feet exists; Section 9.5-4(W-1), Monroe County Code, provides as follows: (W-1) "Water at least four (4) feet below mean sea level at mean low tide" means locations that will not have a significant adverse impact on off-shore resources of particular importance. For the purposes of this definition, "off-shore resources of particular importance" shall mean hard coral bottoms, habitat of state or federal threatened and endangered species, shallow water areas with natural marine communities with depths at mean low tide of less than four (4) feet, and all designated aquatic preserves under Florida Statutes section 258.39 et seq. Section 2.104, Nearshore Waters, Monroe County Comprehensive Plan, Volume II, Future Land Use Element, provides, in pertinent part, as follows: The Florida Keys are dependent on nearshore water quality for their environmental and economic integrity. The heart of the Florida Keys economy, the means by which Monroe County exists as a civil and social institution, is based on its unique oceanic character. If nearshore water quality is not maintained, then quality of life and the economy of Monroe County will be directly and immediately impacted. OBJECTIVES 1. To protect, maintain and, where appropriate, to improve the quality of nearshore waters in Monroe County. * * * POLICIES 1. To prohibit land use that directly or indirectly degrade nearshore water quality. * * * To prohibit the development of water dependent facilities, including marinas, at locations that would involve significant degradation of the biological character of submerged lands. To limit the location of water-dependent facilities at locations that will not have a significant adverse impact on off-shore resources of particular importance. For the purposes of this policy, off-shore resources of particular importance shall mean hard coral bottoms, habitat of state or federal threatened and endangered species, shallow water areas with natural marine communities with depths at mean low tide of less than four (4) feet, and all designated aquatic preserves under Florida Statutes section 258.39 et seq. Benthic communities exist in Sugarloaf Sound, such as rock-hard bottom, sea grasses, algae, and hard coral. Turtles, manatees, sharks, stingrays, eagle rays, snapper, pink shrimp, mullet, and other marine animals populate the Sound. Sea grass beds play an important role in water quality maintenance in the Keys through filtration, nutrient uptake, stabilization of the bottom, and as a habitat for commercially important species. The canal system for Sugarloaf Shores subdivision does not have access to deep water without crossing shallow sea grass beds with depths of less than four feet at mean low water. The operation of motor driven boats may result in damage to sea grass beds and shallow water marine communities through prop dredging. Although there is evidence of prop dredging in parts of Sugarloaf Sound in these shallow areas, it was not shown that the damage was done by boats traveling from the Sugarloaf Shores canal system and deep water. Whether a boat that may be docked at some future time if the permit is granted will cause damage to some portion of Sugarloaf Sound is speculation. Since 1986, Monroe County has adopted an interpretation of Section 9.5-345(m)(2), Monroe County Code, and of Section 2.104, Nearshore Waters, Monroe County Comprehensive Plan, Volume II, Future Land Use Element, that would permit the construction of the subject project. That interpretation permits the development of marginal seawalls, vertical bulkheads and docks in subdivisions that were under development in 1986 if there is at least four feet of water at the terminal point of the dock at mean low tide. The dock that is the subject of this proceeding would, if permitted, terminate in water of at least six feet in depth at mean low tide. Monroe County's interpretation of the so-called "four foot rule" is that the rule was intended to restrict the development of boating access facilities in new, undeveloped subdivisions and to regulate proposed expansion of existing marinas and the development of new marinas. Monroe County's interpretation of its rules is that a vertical bulkhead and dock built on an individual family home-site, where a dwelling was already built or under construction, would have minimal effect on the nearshore water environment of critical state concern. Monroe County considers the subject application by the Jones to meet all of its permitting criteria. The subject project has received an exemption from permitting from the Florida Department of Environmental Regulation and from the Florida Department of Natural Resources. The Army Corps of Engineers has agreed to issue a permit for the project with no special conditions. There is no definition of "docking facility" contained within the Monroe County Land Development Regulations or the Monroe County Comprehensive Plan. It was not established that a bulkhead is a docking facility or that the construction of a bulkhead on Lot 27 should be prohibited under any of the theories advanced by Petitioner. Respondents presented evidence that several similar projects were permitted at approximately the same time as the Jones's permit without Petitioner filing an appeal. This evidence was insufficient to establish that Petitioner should be estopped to appeal the subject permit, that Petitioner engaged in selective enforcement of its regulatory power, or that Petitioner otherwise brought the subject appeal for an inappropriate purpose.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a final order which approves the construction of the bulkhead. It is further recommended that the Final Order conditionally deny the permit, but specify that the County may approve the building permit at issue if there are channel markers to open water marked and approved by the Florida Department of Environmental Protection. DONE AND ENTERED this 11th day of June, 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings 11th day of June, 1993. COPIES FURNISHED: Lucky T. Osho, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 J. Daniel and Betsy Jones 2515 Nela Avenue Orlando, Florida 32809 Russel D. Moore Route #5, Box 600 Big Pine Key, Florida 33043 Randy Ludacer, Esquire Monroe County Attorney Fleming Street Key West, Florida 33040 David K. Coburn, Secretary Florida Land and Water Adjudicatory Commission Executive Office of the Governor Carlton Building Tallahassee, Florida 32301 Carolyn Dekle, Director South Florida Regional Planning Council Suite 140 3400 Hollywood Boulevard Hollywood, Florida 33021 Robert Herman Monroe County Growth Management Division Public Service Building, Wing III 5825 Jr. College Road Stock Island Key West, Florida 33040 Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 G. Steven Pfeiffer, General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100
Findings Of Fact On March 30, 1981, the State of Florida, Department of Environmental Regulation, received a request from William H. Griffith to allow him to place "rip-rap" adjacent to a retaining wall which fronts Griffith's property. Griffith is a resident at 259 Sabine Drive, Pensacola Beach, Florida. This residence address is in Escambia County, Florida. The details of the application for permit are as set forth in Respondent Griffith's Exhibit 3, admitted into evidence, which is a copy of the application. The application as originally constituted requested that Griffith be allowed to place "rip-rap" material along the front of his property adjacent to the retaining wall which wall was approximately 140 feet in length. The depth of the "rip-rap" material was to be 30 feet with an approximate height of the material being 3 feet. The "rip-rap" material was to be constituted of concrete test block cylinders which are 6 to 8 inches in diameter by 12 to 14 inches in length, together with other aggregate material constituted of irregularly shaped chunks of concrete. Those materials are depicted in the Petitioner's Exhibit 1A through H which are photographs taken at the site of the proposed project. Subsequent to the submission of the application for permit, a modification was made which reduced the depth of the "rip-rap" material from 39 feet to 10 feet 6 inches. This modification occurred sometime in May, 1981, and is depicted in the Respondent Griffith's Exhibit 3. The proposed project, in its modified form, would involve navigable waters of the State. Specifically, it would involve Class II waters, namely the intercoastal waterway which is fronted by the Respondent Griffith's property. A sketch of this location in Escambia County is depicted in the item entitled "vicinity map" which is part of Respondent Griffith's Exhibit 3. The purpose of the "rip-rap" as it is presently contemplated through the project would be to prohibit tidal erosion of the Respondent Griffith's property, in the area of his beach front, particularly as it is exacerbated by seasonal winds. A permit application appraisal was made by the Department and was concluded on July 27, 1981. A copy of that appraisal may be found as the Respondent Department's Exhibit 1, admitted into evidence. Through the process of the permit review and appraisal, the Department requested that the applicant remove four "rip-rap" groins running perpendicular to the retaining wall, which were 20 to 30 feet long. Those groins were not acceptable to the Department as devices to prohibit erosion. Respondent Griffith has removed the majority of the fill material and the present design contemplates the total removal of those groins. At the time of the permit review and at present the existing retaining wall is located 8 to 10 feet landward of the approximate mean high water shoreline. If constructed the 10 foot 6 inch depth "rip-rap" fill structure would extend approximately 2 feet waterward of the approximate mean high water shoreline. A description of the flora and fauna located at the project site, together with general description of the soil types may be found in Respondent Department's Exhibit 1. The impact of the project as described in the permit application appraisal, Respondent Department's Exhibit 1, indicates that the placement of "rip-rap" would stabilize the eroding shoreline adjacent to the applicant's property; provide moderate amounts of substrate to act as a habitat and shelter for intertidal organisms; would act as a limited inhibitor to littoral sand transport, particularly as related to Petitioner Gibson's property, in that there will be some deprivation of sand transport onto the Gibson property until the "rip-rap" stabilizes; however, this deprivation of sand transport of the Gibson property is not substantial. The impact on the Gibson property is further described in the appraisal statement as being insignificant. (It is also suggested that Gibson utilize "rip-rap" as opposed to the vertical timber retaining wall which is in place at his property and is subject to being undermined by tidal pressures.) These perceptions as set forth in the Department's permit application appraisal are factually correct. Having conducted the permit review and being of the opinion that the permit should be issued, the Department sent a letter of intent to issue the permit on July 29, 1981, and served Petitioner Gibson with a copy. The permit document was also forwarded to the applicant. The letter of intent and permit document may be found in Respondent Griffith's Exhibit 5, which was admitted into evidence. This exhibit is a copy of the aforementioned items. Subsequent to the notification of the intent to grant, Petitioner Gibson requested a Subsection 120.57(1), Florida Statutes, hearing, which Petition, in its final form, may be found as Respondent Griffith's Exhibit 2, admitted into evidence, which is a copy of the verified Petition of the Petitioner. The hearing was then noticed and conducted on November 10, 1981, pursuant to the hearing notice, a copy of which may be found as Respondent Griffith's Exhibit 1, admitted into evidence. The project as contemplated will not have a significant negative impact on the flora and fauna. To the extent that there is some destruction by the placement of the "rip-rap" material, this destruction is more than offset by the provision of habitat and shelter for intertidal organisms. The placement of the "rip-rap" will not have a negative impact on water quality in the waters of the State which are adjacent to the Respondent Griffith's property and in which the "rip-rap" will be implaced to the extent of approximately 2 feet waterward of the approximate mean high water shoreline. Should the "rip-rap" material not be placed, shoreline erosion will continue in the area of the applicant's property and that of the Petitioner. The placement of the "rip-rap" is not a hazard to navigation nor in conflict with the public interest. The applicant has received necessary approval from the Army Corps of Engineers for the installation of the "rip-rap" material as may be seen by the grant of a permit from the Corps, a copy of which is found as Respondent Griffith's Exhibit 4, admitted into evidence.
Findings Of Fact John Taylor, III, Petitioner, owns property located at 1200 South Missouri Avenue in the City of Clearwater which is zoned CC (commercial center). The subject property consists of a mall and movie theater. On or about April 17, 1986, Michael Johnson, on behalf of Petitioner, applied for a variance to allow two message signs on the subject property and also to allow total message signage of 256 square feet. Without a variance, the subject property can have only one message sign which cannot exceed 192 square feet. The property presently has one message sign and total message signage of 176 square feet located on its marquee. At a meeting of the Development Code Adjustment Board on May 8, 1986, Petitioner's variance application was denied. The parties stipulated that Fusco Corporation is the manager of the mall located on Petitioner's property and further that Fusco is the owner of all improvements on the property. Further, Cineplex-Odeon has leased the theater located on the subject property and has renovated and expanded it from two to five movie theaters. Finally, Michael Johnson was employed by Cineplex-Odeon to install the changeable message sign which is the subject of this variance. The second message sign which is sought by this variance would be located 350 feet from Missouri Avenue, which runs north and south in front of the subject property. Specifically, it will be located in the front wall of the theaters next to the ticket counter, and will be 16 feet long by 4.4 feet high. The sign would actually be a display case, 6 inches deep, with five individual poster display cases, which would be used to display coming attraction posters. Each display case would have a hinged glass door, through which the poster could be seen. Coming attraction posters are 2 feet long by 3.3 feet high. The 6 inch depth of the display case extends equally into, and protrudes out of, the front wall of the theater. Petitioner has not established that a hardship would exist if this variance is not approved. Coming attraction posters can be, and in fact are, displayed in the theater lobby. During the renovation of the theater, the front wall could have been removed and a window installed to allow viewing of the lobby posters from outside the theater. Finally, the existing sign on the property could be used to advertise coming attractions, as well as movies which are currently playing. The display case for which this variance is sought on behalf of Petitioner is a "changeable message sign," as that term is used in Section 134.011(a), Land Development Code, since it would be a graphic communication or device which would be primarily used to convey information or advertise and would also be prominently visible from outside the theater.
Findings Of Fact Background Petitioner, David E. Musselman, is the owner of Lot 23, Block 22, Cudjoe Gardens Eighth Addition, Cudjoe Key, Monroe County, Florida. The lot measures 127 feet along its front and rear property line, 135 feet along its side property lines and, similar to adjacent lots, its rear property line abuts an artificially created waterway. Currently, most of petitioner's lot enjoys an elevation of six feet; however, from the edge of the waterway landward a distance of approximately 20 feet [to what has been referred to as the "toe of the existing slope" in these proceedings] the surface consists of exposed caprock at an elevation of approximately four inches above mean high water. It is petitioner's desire to construct a single family residence upon such lot and, incident to such construction, to erect a seawall along the edge of the waterway such that the elevation at the waterway will be increased by two feet, and to backfill from the seawall to his home. Such backfilling would require the deposition of approximately 3,540 square feet of fill within the Department's jurisdiction, which was shown to extend from the edge of the waterway to the toe of the existing slope, and would raise the elevation in such area two feet above existing grade. On December 16, 1991, petitioner filed an application with respondent, Department of Environmental Regulation (Department), for an exemption from the Department's wetland permitting requirements. If approved, such exemption would allow petitioner to construct the vertical seawall along the waterway, and backfill from the seawall to his proposed home. By notice of agency action dated February 14, 1992, the Department proposed to deny petitioner's application predicated on its conclusion that his proposal did not meet the exemption criteria established by Rule 17- 312.050(1)(g), Florida Administrative Code. Petitioner filed a timely protest to contest the Department's conclusion. The exemption Pertinent to this case, Rule 17-312.050(1)(g), Florida Administrative Code, exempts from permitting the following activities: (g) Construction of seawalls or riprap, including only that backfilling needed to level the land behind the seawalls or riprap, in artificially created waterways where such construction will not violate existing water quality standards, impede navigation or adversely affect flood control. An artificially created waterway shall be defined as a body of water that has been totally dredged or excavated and which does not overlap natural surface waters of the state. For the purpose of this exemption, artificially created waterways shall also include existing residential canal systems . . . . At hearing, the parties stipulated that the waterway which abuts the rear property line of petitioner's lot is an artificially created waterway, as well as an existing residential canal, and that the proposed project will not violate existing water quality standards, impede navigation, or adversely affect flood control. Notwithstanding, the Department contends that petitioner's application should be denied because no need has been demonstrated that would support the construction of the seawall along the edge of the waterway, as opposed to locating it further inland, and therefore the amount of backfill, with its attendant loss of wetlands, is excessive. For the reasons set forth in the conclusions of law, the Department's position is untenable as a matter of law. 1/
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department enter a final order approving petitioner's application for an exemption to construct a seawall, and to backfill from such seawall to his proposed home, as applied for. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 4th day of June 1992. WILLIAM J. KENDRICK 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 4th day of June 1992.
