The Issue Whether Petitioners are entitled to permit exemption with regard to proposed dredging of an existing canal.
Findings Of Fact Bunch owns a house on a lot leased from the County. The lot is located on Navarre Beach Finger Canal Number 2. Bunch purchased the house, in part, to use the canal for access to Santa Rosa Sound in his pursuit of recreational boating activities. If permitted, the opening of the canal will allow Bunch to have easier access to his house with his boat. Denial of the maintenance dredging exemption to date has impaired Bunch’s full use of the property. The County applied for a permit to dredge and perform certain activities to enhance navigability of Navarre Beach Finger Canal Number 2 on March 5, 1996. The application was submitted by the County on behalf of residents with property located on the Canal. As part of the permit review process, Respondent’s personnel determined that the maintenance dredging exemption of Section 403.813(2)(f), Florida Statutes was not applicable to the requested dredging of a sand bar at the mouth of Navarre Beach Finger Canal Number 2. Navarre Beach Finger Canal Number 2 is a man-made water body meeting the definition of the term “canal” contained in Rule 62-312.050(3), Florida Administrative Code. As documented by evidence presented at the final hearing, Navarre Beach Finger Canal Number 2 is currently navigable and functional. The Canal is accessed and navigated by different types of recreational water craft, inclusive of a 23 foot pleasure craft with a two and a half foot draft, john boats, jetskis and a 27 foot Rendezvous Bayliner Boat. The average size of recreational residential boats in Florida is 23 feet. During the 1960’s, the Canal was open and accessed by similiar fishing and pleasure boats. Navarre Beach Finger Canal Number 2 has progressively widened and deepened in recent years. Plugged from at least 1970 until 1992, the Canal was opened by the natural event of Hurricane Opal which removed a solid sand dune separating the Canal from Santa Rosa Sound. Recent measurements establish that the Canal depth is three feet at the mouth where the sand bar is located, 12 feet just inside the sand bar, and then varying depths ranging between four to seven feet for the length of the Canal. At the lowest tide conditions, the depth at the sand bar is approximately one and one half feet and increases to four feet or more at high tide. The mouth of Navarre Beach Finger Canal Number 2 since Hurricane Opal varies from 40 to 50 feet in width at high tide to six to ten feet wide at the lowest tide conditions. Water depths in Santa Rosa Sound and connected waters vary with tide stage and time of year. Average water depth in the Sound in the area of Navarre Beach Finger Canal Number 2 is five to six feet. Sometimes, on a winter low tide, one can walk 100 feet out into the Sound and still be on dry land. During a four to five consecutive day period in August of 1996, mid (not high or low) tide yielded a depth of three feet at the sand bar across an area of 10-20 feet at the mouth of the Canal. Extremely low tide conditions were observed by Respondent’s employee on an October 14, 1996 inspection of the area which revealed an estimated depth of one and a half feet at the mouth of the Canal across an area of approximately six feet. Under average conditions, the mouth of the Canal corresponds to the August 1996 measurements with a 10 to 20 width and a three foot depth at the sand bar. Navarre Beach Finger Canal Number 2 is not presently closed and regularly exchanges water with Santa Rosa Sound. Constructed sometime between 1962 and 1964, Navarre Beach Finger Canal Number 2 was originally dredged all the way to Santa Rosa Sound. There was no sand bar at the mouth. The Canal was fully navigable and freely accessed by fishing and pleasure boats from the Sound. Historical plats, engineering drawings, plats and survey drawings corroborate testimony of witnesses at the final hearing that the Canal was open and functional in the 1960’s and 70’s and was maintained. Between 1972 and 1984, sand accumulated at the mouth of Navarre Beach Finger Canal Number 2. There was a periodic flow between the Canal and the waters of Santa Rosa Sound and pumping or dredging of sand took place. Generally, this ongoing maintenance was accomplished informally without permits or written authorization. Boats occasionally went in and out of the Canal. Over the years following 1980, the flow decreased but there was always some water flowing in and out of the Canal in connection with the waters of the Sound. In the early to mid 1980’s approximately 900 feet of the sides and bottom of Navarre Beach Finger Canal Number 2 were dredged, but sand at the mouth of the Canal was left alone. A permit exemption for the purpose of maintenance dredging of the Canal was previously granted in 1980. Barrier island shorelines, such as Santa Rosa Island, change frequently and are considered to be “dynamic areas”. If considered to be maintenance dredging, the removal of the sand bar at the mouth of Navarre Beach Finger Canal Number 2 qualifies as a typical, routine type of maintenance common in this type of coastal setting. Petitioners maintain that the proposed maintenance dredging activity will be conducted so that all the spoil material will be placed on an upland disposal site without any discharge of materials into waters of the State of Florida; will be accomplished only to the extent necessary to restore Navarre Beach Finger Canal Number 2 to it’s previously dredged design and without any dredging below five feet of the mean low water line; will have no adverse effect on fish and wildlife conservation, including endangered or threatened species; will not adversely affect navigation or flow of water; will not cause harmful shoaling or erosion results; will not affect fishing, recreational values or marine productivity in the vicinity; will have permanent results with regard to functionality of the Canal; and will not adversely affect significant historical or archaeological resources or the current condition in relative value of functions being performed in the areas affected by the proposed activity. Petitioners’ application for exemption from the dredging permit process addressed matters other than the maintenance exemption sought in this proceeding. As established by testimony at the final hearing, those activities will not be conducted as part of the proposed maintenance dredging exemption. Dan Garlick, Petitioners’ expert in water quality, coastal ecology, and marine contracting, supervised the preparation of a December 8, 1995 report of the hydrographic conditions at Navarre Beach Finger Canal Number 2. The purpose of the report was to estimate the flushing potential of the Canal when opened. By comparing present conditions in the adjacent and similar Navarre Beach Finger Canal Number 1 to anticipated post dredge conditions in Navarre Beach Finger Canal Number 2, a “worst case scenario” documented in the report shows a flushing time of 5.9 hours for Navarre Beach Finger Canal Number 2. This is an exceptional flushing time. 1995 and 1996 water quality sampling in Navarre Beach Finger Canal Number 2 reveals that the Canal water generally exceeds applicable class III standards. Bacteria counts in Santa Rosa Sound have exceeded those found in the Canal. Removal of the remainder of the sand barrier at the mouth of Navarre Beach Finger Canal Number 2 will result in a water quality as good as that in nearby Navarre Beach Finger Canal Number 1--a quality that meets all applicable state standards. Degradation of water quality of waters of the State of Florida will not result from opening of Navarre Beach Finer Canal Number 2. Sailmaker Cove Canal is situated approximately 3 miles from Navarre Beach Finger Canal Number 2 and opens into Santa Rosa Sound. From 1989 until the permitting of maintenance dredging in 1993 or 1994, there was no exchange of water between Sailmaker Cove Canal and Santa Rosa Sound. In that instance, Respondent’s personnel determined that a maintenance dredging exemption was appropriate. Petitioner James Bunch is included in the list of affected property owners whose names and addresses were included with the application to Respondent for permission to conduct the dredging activity which is the subject of this proceeding. Petitioner Bunch and Petitioner Santa Rosa County Commission have standing to bring this proceeding.
Recommendation Based upon the foregoing findings of fact and the conclusions of law, it is, RECOMMENDED: That a final order be entered granting the requested maintenance dredging exemption. DONE and ENTERED this 14th day of January, 1997, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 14th day of January, 1997. COPIES FURNISHED: Thomas V. Dannheiser, Esquire Santa Rosa County Board of County Commissioners 6865 Caroline Street SE Milton, FL 32570-4978 Lynette L. Ciardulli, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, FL 32399-3000 William W. Goodell, Jr., Esquire LL and E Tower 909 Poydras Street, Suite 2550 New Orleans, LA 70112-4000 Virginia B. Wetherell, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, FL 32399-3000 Perry Odom, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, FL 32399-3000
The Issue The issue in this case is whether the evidence sustains the decision of the City of Clearwater Development Code Adjustment Board (the Board) to deny the application of the Appellant, Clearwater Bay Marine Ways, Inc., for a 62-space parking requirement variance (200 spaces instead of the 262 required under the Code) for its property located at 900 North Osceola Avenue, Clearwater, Florida. (The variance is required as a result of the Appellant's desire to use a part of the property as a cruise ship docking facility.)
Findings Of Fact On or about October 25, 1993, the Appellant, Clearwater Bay Marine Ways, Inc., applied to the City of Clearwater Development Code Adjustment Board (the Board) for an 81-space parking requirement variance (128 spaces instead of the 209 required under the Code) for its property located at 900 North Osceola Avenue, Clearwater, Florida. After filing the application, the site plan was modified, and the variance application was modified to request a 62-space variance (200 spaces instead of the 262 required under the Code). The variance is required as a result of the Appellant's plan to have Adventure Seaways Corporation use a part of the property for use as a docking facility for its 600-passenger cruise ship, the Majestic Empress. The City of Clearwater Development Code (the Code) has no parking space requirements specifically designed for cruise ship operations. To establish the parking space requirements, it was decided to utilize Section 42.34(6)(d)2.c. of the Code, which addresses certain "retail sales and service uses," and states: Theaters, indoor and outdoor recreation centers, swimming pools, skating rinks and other public or private recreation and amusement facilities: One parking space per three customers or patrons computed on the basis of maximum servicing capacity at any one time, as determined by the requirements of the city, plus one additional space for every two persons employed on the premises at peak period of use. Specific provisions over and above the standard may be required for uses such as movie theaters involving successive changes of patrons with a corresponding overlap in parking required. Under that provision, it was calculated that 200 spaces would be needed for peak capacity for the 600-passenger cruise ship. An additional 62 parking spaces are needed for other uses proposed in the site plan (including boat slips, a dive charter operation, a sail charter operation, a 2,800 square foot parts and service business and three work bays), for a total of 262 parking spaces for the overall site plan. The evidence was that no adjustments to the calculation under the "one space per three customers or patrons" formula were "determined by the requirements of the city," and that no additional spaces were required for "persons employed on the premises." (There was some evidence that the Adventure Seaways employees will park off-site.) Nor was there any evidence that there were any "[s]pecific provisions over and above the standard required for . . . successive changes of patrons with a corresponding overlap in parking required." The Adventure Seaways Corporation plans two excursions of the Majestic Empress a day, one during the day and one in the evening. It is expected that the ship would sail at full capacity only approximately one day a week, on Saturday. At peak capacity, it is expected that 30 percent of the passengers will arrive at the docking facility by tour bus. During the day cruise, the buses would leave the facility and return at the end of the cruise to drop off passengers for the evening cruise and pick up off-loading day cruise passengers. They would not remain at the facility during the times other cruise ship passengers would have their cars parked at the facility. Using only the "one space per three customers or patrons" formula under Section 42.34(6)(d)2.c. of the Code, the 70 percent of the total complement of passengers, who are expected to arrive by personal vehicle on peak days, would require only 140 parking spaces (420 passengers divided by three per parking space), well below the 200 spaces allocated to the cruise ship operation under Clearwater Bay Marine Ways site plan. Since Adventure Seaways has not been able to use the Majestic Empress at the Clearwater Bay Marine Ways facility without the parking space variance, it has transferred a smaller cruise ship, the Crown Empress, from its docking facility at Johns Pass on Treasure Island in the interim. The Crown Empress's capacity is only 400 passengers, and no parking space variance is required to use it at the Clearwater Bay Marine Ways facility. Meanwhile, Adventure Seaways has received temporary permission to utilize the Majestic Empress at the Johns Pass facility on the condition that it make greater than normal use of tour buses to transport passengers to and from the Johns Pass docking facility. Adventure Seaways purchased the Majestic Empress after being encouraged by City officials about the prospects of being able to utilize the Clearwater Bay Marine Ways facility. After purchasing the vessel, it had the vessel reconfigured to reduce its draft to accommodate the shallow waters it would have to navigate getting to and from the facility. Adventure Seaways also closed in the top deck of the vessel to meet Code requirements for noise control. Neither the special shallow draft configuration nor the noise control measures are required for utilization of the Johns Pass facility. Part of the encouragement by City officials about the prospects of Adventure Seaways being able to utilize the Clearwater Bay Marine Ways facility included assurances that the City would help Adventure Seaways gain access to additional parking, or develop or acquire additional parking, in the vicinity, if needed. Another option would be to utilize off-site parking and transport passengers to and from the Clearwater Bay Marine Ways facility by bus.
Findings Of Fact This proceeding results from the filing of an application for a commercial bank charter by Respondent Sunny Isles Bank (proposed) (hereinafter "Sunny Isles Bank") with the Respondent Office of Comptroller (hereinafter "Comptroller") on August 9, 1984. The organizers of the proposed Sunny Isles Bank were originally listed as Sami Behar, Martin Dayton, Arthur Horowitz, Sylvia Lazare, Julius Littman, Christine Mallock, Morris Massry, Robert S. Oller, and Alvin Stern. Thereafter, Sami Behar's name was withdrawn. At no time have any names of proposed officers been advanced. The organizers who are also the proposed directors propose to locate a new bank at 17140 Collins Avenue, Miami Beach, Florida. That proposed location falls within a community commonly known as Sunny Isles. Sunny Isles falls within the primary service area (hereinafter "PSA") designated by the organizers and has an eastern border of the Atlantic Ocean, a western border of the Intracoastal Waterway, a southern reach to Baker's Haulover Cut and a northern boundary at the southern edge of Golden Beach. Additionally, the organizers define their proposed PSA to include, to the west of Sunny Isles, an area called Eastern Shores, which is part of the City of North Miami Beach. The organizers' delineation also includes in their proposed PSA the town of Golden Beach lying north of Sunny Isles. The protestant Petitioner Jefferson National Bank at Sunny Isles (hereinafter "Jefferson") is a commercial bank located within the designated proposed PSA. In the charter application they certified as true and correct, the proposed directors made intentional mis- representations as to stock subscriptions for the proposed Sunny Isles Bank. Completely omitted are approximately a dozen stock subscribers. The application misrepresented the ownership of the stock at the time it was filed with the Comptroller, and the proposed directors have continued to fail to disclose at any subsequent time the facts which had been omitted. The application further misrepresents the shares subscribed to by Morris Massry. The application states that Massry had subscribed to 10,000 shares of the proposed Sunny Isles Bank. In fact, the stock subscription agreements produced by the proposed Sunny Isles Bank show that Massry subscribed to only 5,000 shares of the proposed bank stock. The charter application also misrepresents the number of shares owned by Julius Littman by indicating that Littman owned 10,000 shares as of August 7, 1984, the date the application was filed. However, the subscription agreements reveal that Littman owned only 5,000 shares on that date although he has subsequently purchased 6,000 additional shares. The application falsely represents that, at the time of filing, no relative of a proposed director had subscribed to shares of stock in the proposed Sunny Isles Bank. In fact, Jack Massry, the brother of Morris Massry, had, as of August 7, 1984, subscribed to 5,000 shares of stock in the bank. The applicants have further failed to notify the Comptroller in writing at any subsequent time of this omission. The application also falsely represents that no elected or appointed public official other than Julius Littman was a stock holder at the time of filing the application. In fact, Joseph Moffat, an elected city councilman in North Miami Beach, had subscribed to 2,500 shares before August 7, 1984. Littman is and has been a member of the North Miami Beach city council along with Moffat and, accordingly, knew at the time the application was filed of Moffat's public official status. Again, the applicants have failed to subsequently disclose this misrepresentation to the Comptroller. See Confidential Exhibit "A". See Confidential Exhibit "A". In addition to the above-described misrepresentations contained in the application, various false statements and omissions are found in the organizers' biographical reports. Alvin Stern knowingly withheld the information that numerous complaints had been filed against the Royal Glades Convalescent Home of which Stern was the principal owner for many years. Stern also failed to disclose, as was required in Section ll(C) of his biographical report, the fact that a number of investigations by the Department of Health and Rehabilitative Services had been undertaken with respect to Royal Glades. Stern testified at the final hearing that such investigations were known to him at the time they were undertaken, yet, he offered no explanation for failing to disclose those investigations. See Confidential Exhibit "A". See Confidential Exhibit "A". See Confidential Exhibit "A". There is nothing ambiguous about the disclosure forms the organizers of Sunny Isles Bank failed to complete honestly. Further, there is nothing unclear about the certification each executed. The numerous misrepresentations made by those organizers in the application and supporting biographical reports reveal a lack of honesty for a position of public trust which requires ongoing and truthful disclosure to regulatory authorities. In addition to the misrepresentations made by them, the proposed directors evidence a consistent pattern of indifference to their prospective positions and responsibilities as directors of the Sunny Isles Bank. Christine Mallock not only failed to read the charter application but cannot read English. Yet, she certified the truth and correctness of the application. Although she believes it is "flattering" to be a director of a bank, she does not know what a director or a bank does and has no information regarding the plans for the proposed Sunny Isles Bank. Alvin Stern, another proposed director, is also unfamiliar with banking and the duties of a bank director. He has no knowledge of any plans for the proposed bank including the marketing, deposit mix, or services to be offered. He is further unaware if any of the other proposed directors have any banking experience. Martin Dayton, another proposed director of the bank, has no banking experience except as a bank customer and testified to having no idea what his duties as a director would entail other than attending meetings. Dayton has no knowledge of the proposed bank's services or plans for operation. Dayton became involved with and invested in the proposed bank without doing any investigation as to the soundness of the investment opportunity or the actual functioning of the bank. Robert Oller, another organizer of the proposed bank, has no understanding about the proposed bank or his duties as a director. He does not know what services the bank will offer or what customer base it expects to develop. Moreover, he has not read the charter application, despite his signature on the application certifying that it is true and correct to the best of his knowledge and belief. Arthur Horowitz, another proposed director of the proposed bank, is primarily interested in the bank because he "would like to have been involved in a bank." Horowitz has no idea what his duties as a director would be and assumes that the job would take only a few hours a week. He did not fully read the application before it was submitted, nor did he ever discuss it with Littman. See Confidential Exhibit "A". Massry was selected by Littman to be a director of the proposed bank in the hope that he would bring funds into the bank. Massry resides primarily in Troy, New York, but recently has begun spending approximately one week per month in Broward County where he has acquired certain rental units. Even though Massry is touted as the "money man" for the proposed bank, he has made no agreement with his partners to move any of the funds relating to their Broward County investments to the proposed Sunny Isles Bank in Dade County, let alone into a non-interest- bearing account at that proposed bank. He further testified that he is satisfied with the services he receiyes from the bank in Broward County with which he currently does business. Massry has no current ties to the Sunny Isles area and, if approved as a director, would be expected to have limited participation in the affairs of the Sunny Isles Bank. Julius Littman is the chief organizer of the proposed Sunny Isles Bank. He admitted at the final hearing to having "hand-picked" only his friends and relatives to be proposed directors of the Bank in order that he could control them. It was interesting to note Littman's testimony since he primarily testified in terms of "my bank", "I will", and "I decided." Although Littman's wife, Sherry Littman, has not yet been proposed as a director, Littman testified that he intended to make her a director along with his mother-in-law, Sylvia Lazare. Littman's intention of controlling his friends and relatives at "his bank" explains, most likely, the reason why no proposed director other than Littman knows anything about the other directors; the bank's marketing plans, its proposed services and interest rates, or its proposed customer base. Littman's plan has apparently been successful thus far in that each of the proposed directors signed the application filed with the Comptroller without asking questions and without reading the application to know the contents. Each person appears to have simply signed the paper handed to them with "no questions asked" even though that paper contained a statement that each director was certifying that the application was true and correct. Littman undertook his efforts to create "his bank" while he was a member of the Advisory Board of Jefferson National Bank and while his wife Sherry Littman and his mother- in-law Sylvia Lazare were employees of Jefferson National Bank. Although Littman testified that his wife has had no involvement with his bank, she is the person who wrote to the Comptroller on stationery of Jefferson National Bank regarding the forms necessary to file the application for the proposed Sunny Isles Bank. Littman sees no conflict of interest in he and his wife and his mother-in-law organizing a bank to compete with Jefferson National while he served on Jefferson's Advisory Board and while his wife and his mother-in-law were employed by Jefferson since they began their efforts during a time when it appeared as though Jefferson might be sold. Not only did that fail to take place, but no contract for sale was ever executed. When the talk about Jefferson's alleged sale ceased, however, Littman's efforts did not. While still a member of Jefferson's Advisory Board, Littman approached two of Jefferson's officers (other than his wife and his mother-in-law) in an attempt to interest them in coming to work at the proposed Sunny Isles Bank. During the time that Littman served as an Advisory Board member at Jefferson, he, as subscription agent, was selling stock subscriptions in the proposed Sunny Isles Bank. Although Littman testified that he did not ask any of the proposed directors of the Sunny Isles Bank to keep the bank's organization a secret, the testimony of several of the directors establishes that Littman specifically requested that they not reveal the creation or the plans of the proposed bank. No proposed director of the proposed bank has any direct banking experience as required by law for approval of a bank charter application. The evidence is uncontroverted that only two of the proposed directors are alleged to have the direct banking experience required for any proposed bank: Julius Littman and his mother-in-law Sylvia Lazare. Littman's only banking experience is his membership on the Advisory Board at Jefferson. However, his role on that Advisory Board was honorary, and he served in only a community relations function. His involvement as an Advisory Board member gave him no direct experience in the operation of the bank since Jefferson did not involve its Advisory Board members in any decisions regarding the bank's operation but rather involved them only as reporters of the community's perception of Jefferson National Bank. Sylvia Lazare also lacks the banking experience required by the Comptroller. Although the application represents her to have been an officer at Jefferson National Bank familiar with all phases of banking, the evidence introduced at the final hearing in this cause clearly shows that her employment with Jefferson was as a Community Relations Officer, that is, someone who solicits customers for the bank and who helps existing customers with personal services such as filling out their deposit slips for them. Lazare testified directly opposite to the representation of her experience made in the application filed with the Comptroller. She testified that she is not familiar with the mechanics of loan transactions, nor does she understand such basic banking concepts as acceleration of indebtedness or waiver of acceleration. She has never worked in operations, has never been employed as a teller, has never made loans, and has not worked in the bookkeeping department of a bank. Most significantly, she herself admitted that she is not qualified to do anything as a bank officer or director other than community relations work. Based upon Lazare's own testimony; her inclusion in the application is a sham. She was unaware that she was to be a director of the proposed Sunny Isles Bank, was not even asked by Littman to be one, and is not interested in being a director. Although Lazare signed the charter application for the proposed bank certifying that the application was true and correct to the best of her knowledge, she never read the application and never knew that Littman was proposing her as a director. Although Sunny Isles Bank argues that any deficiency in its proposed board of directors can be cured by simply substituting other proposed directors and does not justify the denial of the application for a charter, that argument overlooks the repeated misrepresentations and complete ignorance and indifference to banking and to a director's responsibility to the public and regulatory authorities so that the substitution suggested would require a substitution of the entire proposed board of directors. Even if an entirely new proposed board of directors were required, such a substitution would not overcome Littman's stated intent of selecting only directors who would be controlled by him, a control which involves conflict of interest and intentional misrepresentations both to a regulatory agency and under oath in the formal proceeding in this cause. A bank's PSA is the small geographical area from which a proposed bank expects to draw approximately seventy-five percent of its deposits. The proposed Sunny Isles Bank improperly delineates its PSA by adding Eastern Shores and Golden Beach to the Sunny Isles community. The correct PSA for the proposed Sunny Isles Bank consists of the traditional Sunny Isles area and is bounded on the east by the Atlantic Ocean, on the south by Baker's Haulover Cut, on the west by the Intracoastal Waterway, and on the north by the southern limits of the town of Golden Beach. By improperly including Eastern Shores and Golden Beach in its PSA, the organizers somewhat improved the demographic and age characteristics of its PSA population. The inclusion of these two residential areas reduces the average age of the population and increases the affluence and size of the population. There is no data base for including the residents of Eastern Shores and Golden Beach in the proposed PSA for the Sunny Isles Bank. Rather, the actual deposit experience of Jefferson, located in Sunny Isles, reveals that it is not realistic to project significant deposit levels from Eastern Shores or Golden Beach. Residents of Eastern Shores are more likely to head toward the mainland and the 163rd Street Shopping Center commercial areas for their shopping and banking needs, while residents of the Golden Beach area are more likely to travel to Aventura Mall across the William Lehman Causeway or north to the Hallandale commercial centers for their shopping and banking needs. There is no basis for the assumption that residents of Eastern Shores and Golden Beach who have not historically shopped and banked in the Sunny Isles area will suddenly do so if a charter is granted to the proposed Sunny Isles Bank. Within the PSA proposed by the Sunny Isles Bank, there are ten offices of financial institutions offering commercial and personal banking services. These financial institutions include savings and loan associations as well as commercial banks. The evidence shows without dispute that services provided in this area by savings and loan associations and commercial banks are essentially similar. Although Jefferson is the only home office commercial bank in the PSA, there is no meaningful distinction between a home office institution and a branch office institution in the Sunny Isles area. Other facts confirm a less than dynamic commercial base for the proposed bank. The population of the service area projected by the proposed Sunny Isles Bank is 24,800. Of this number, approximately fifty-two percent are age 65 or over. The PSA as properly defined has a population of approximately 16,200, of which sixty percent are age 65 or over. Median family income using either the proposed PSA or the properly defined PSA falls below both the state and county average. The Sunny Isles area, in which the proposed bank wishes to locate, attracts tourists and transient residents, and the primary industry in Sunny Isles is tourism. Tourism, however, has declined significantly in the Sunny Isles area. Many hotels and motels have been converted to condominiums which now house transient residents. In fact, the declining economic condition of Sunny Isles is a matter of such grave concern as to prompt a study by a Dade County Task Force which concluded that, among other things, a budget of approximately $15.8 million would be necessary to begin to revitalize the troubled Sunny Isles tourist economy. Elderly residents, such as those in the Sunny Isles area, primarily make use of a bank's deposit services, based upon a tendency of an elderly population to save and not to spend. Therefore, there is less need for the traditional banking services of lending, and financial institutions are primarily recipients in such an area of time deposits rather than demand deposits. No evidence was offered by the proposed Sunny Isles Bank to indicate that the banking needs of the proposed PSA are not being met by the financial institutions presently servicing the area. To the contrary, testimony establishes that the Sunny Isles area is, in fact, highly competitive with respect to the banking business and in particular with respect to loans and lending transactions. The proposed Sunny Isles Bank has not demonstrated any ability to service the Sunny Isles area any differently or any better than the various savings and loan associations and commercial banks already established there. Accordingly, it offers no significant additional services at a substantial advantage or convenience to a significant number of people. Although Sunny Isles expects to have restricted Saturday banking hours, the evidence is not clear that this service is not already available through the other financial institutions in the area or that there is a need for Saturday banking hours in an area populated by tourists and retired persons.. Although the proposed Sunny Isles Bank intends to have a "drive-in" teller area, there is no evidence to suggest that this is a service not already available within the Sunny Isles area or that such a service would cause any residents of Eastern Shores or Golden Beach to begin banking in Sunny Isles where they have not banked previously. Of the 270 businesses in the Sunny Isles area in December, 1984, one-third were vacant. While some new businesses may have opened more recently, there is no evidence that economic conditions have, as of this time, improved significantly. Between 1980 and 1984 twenty-five percent of the motel units in the Sunny Isles area were either converted to condominiums or closed. No new motels have been built since 1980. Further, no new residential development has been completed in the past few years in the Sunny Isles area. Especially in this troubled climate, the proposed Sunny Isles Bank's projection of $7.5 million in deposits after one year is unrealistic and without evidentiary support in the record. The deposits projected by the organizers are far in excess of the actual experience of other banks in the proposed PSA. In fact, the organizers project a growth rate seven times that of Pan American's Sunny Isles bank and four times that of County National in Eastern Shores. The record fails to show a basis for the organizers' projected growth rate or projections in deposit levels or types for the proposed Sunny Isles Bank. Moreover, in the Sunny Isles area demand deposits fell by forty-five percent between December 1979 and December 1983. In view of this clear trend; the proposed Sunny Isles Bank's expected ratio of time to demand deposits is clearly unrealistic. Despite its projections of ratios of 1.5 to 1 in the first year, 1.9 to 1 in the second year and 2.3 to 1 in the third year, the experiences of other banks in the PSA indicate that a proper time to demand deposit ratio is approximately 4 to In fact, the most recent statistics show that the total amount of demand deposits have fallen from September 1983 through September 1984 in the PSA delineated by the organizers. The proposed Sunny Isles Bank has also projected unrealistically its rental expenses with respect to the banking premises it proposes to occupy. The unaccounted-for expenses will require at least an extra $16,000 in rental liabilities, plus an annual cost of living increase. The proposed Sunny Isles Bank also unrealistically projected $40,000 as sufficient for contingency and other expense items. A review of overlooked expenses indicate that attorneys' fees, insurance, accounting fees, real estate taxes and other expenses were not estimated while other anticipated expenses are significantly understated. The proposed Sunny Isles Bank further unrealistically projected that it would be able to immediately sublease 2,600 square feet of space at the proposed site of the banking house. This is a questionable expectation in an area with a significant vacancy rate. The proposed Sunny Isles Bank also failed to include in its budget a large accrued rental which has accumulated from December 1, 1984, according to the terms of the executed lease admitted in evidence herein. That sum is significant. In view of the evidence showing that both deposit levels and deposit mix will fall far short of the figures needed for profitability, and in light of the likelihood that their expenses will be substantially higher than reported by the organizers, there is no basis for concluding that the proposed Sunny Isles Bank will become profitable within three years. Accordingly, the organizers of the proposed Sunny Isles Bank have not shown that local conditions indicate reasonable promise for successful operation. There is no factual basis which would support the granting of the application for a charter for the proposed Sunny Isles Bank since there is no proposed director who has exhibited the necessary qualifications to be a director of a bank in Florida, since the-primary service area was improperly delineated causing many of the figures relied upon in the application to be invalid, since there is no showing that any public convenience and advantage would be served by the establishment of an additional commercial bank in the Sunny Isles area--let alone a substantial convenience and advantage for a significant number of people, and since there does not appear to be a reasonable promise of successful operation for the proposed Sunny Isles Bank. These deficiencies in the application prohibit any amendment to the application that would qualify it for the grant of a charter. DONE and ORDERED this 20th day of November, 1985, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 1985. COPIES FURNISHED: Gerald Lewis, Comptroller State of Florida The Capitol Tallahassee, FL 32301 Carl Morstadt, Esquire Office of the Comptroller The Capitol, Suite 1302 Tallahassee, FL 32301 Kendall B. Coffey, Esquire Julie K. Oldehoff, Esquire 1401 Brickell Avenue, PH-1 Miami, FL 33131 Shalle Stephen Fine, Esquire 46 S.W. 1st Street Miami, FL 33130 Michael Colodny, Esquire 626 N.E. 124th Street North Miami, FL 33131 APPENDIX The following proposed findings of fact of Jefferson National Bank at Sunny Isles have either been adopted verbatim or have been adopted as modified to conform to the evidence: 2- 5, 11-22, 25, 26, 28, 31-42, 47-51, 53-59, and 61-70 The following proposed findings of fact of Jefferson National Bank at Sunny Isles have been rejected "as not constituting findings of fact but as constituting either argument of counsel or conclusions of law: 1, 6-10, 23, 24, 43- 46, 52, and 60. The following proposed findings of fact of Jefferson National Bank at Sunny Isles have been rejected as not being supported by competent, substantial evidence: 27. The following proposed findings of fact of Jefferson National Bank at Sunny Isles have been rejected as being subordinate: 29 and 30. The following proposed findings of fact of Sunny Isles Bank have been rejected as not constituting findings of fact but as constituting either argument of counsel or conclusions of law: 1-3, 9, and 10. The following proposed findings of fact of Sunny Isles Bank have been rejected as not being supported by competent, substantial evidence: 4-8.
Findings Of Fact The Petitioner is the owner and operator of several businesses on Clearwater Beach, including two "fast-food" facilities which serve primarily recreational beach visitors. Petitioner owns property on the northeast corner of Marian and Mandalay Streets on the beach. Marian Street is a one-way highway which terminates at Mandalay Street. It is the eastern terminus of State Road 60 and provides the main access to Clearwater Beach from mainland locations. Mandalay Street is a four-lane street which serves as the primary north-south artery on Clearwater Beach. The intersection of Marian and Mandalay Streets is the busiest intersection on Clearwater Beach. There are a traffic light and a pedestrian light at the intersection. Petitioner purchased the property at the northeast corner of the intersection in 1974. A two-story building occupies the property and covers over half of it. The building fronts on Mandalay Street. There are two commercial facilities on the first floor, one of which is presently not occupied. There are five apartments on the second floor, all of which are occupied. There are numerous commercial facilities to the north of Petitioner's property along the same side of Mandalay Street. These are primarily shops which cater to the beach-going public, and small restaurants. To the east of Petitioner's property, there is a mixture of commercial uses, primarily motels. There is a Holiday Inn motel across Mandalay Street. Petitioner's property lies within a zoning district which is classified "GB" or "General Business." The property is classified in the City's plan as commercial/tourist. Retail business uses, restaurants, motels, or high-density residential uses would all be appropriate under the "GB" zoning classification and under the City's plan. Petitioner proposes to remodel the building on his property and to operate a "fast-food" restaurant facility in it. The Petitioner proposes to place food preparation and service areas on the ground floor with some stand-up eating locations, and to place most of the seating on the second floor. The second floor would serve as a dining porch with good views of the beach area. The Petitioner has not decided whether he would seek to serve as a franchisee of some national food service organization. The Petitioner would not have any "drive-in" facility connected with the restaurant. Petitioner's property is a good location for a fast-food restaurant because it is at a highly visible location, the busiest intersection on the beach; and because it is readily accessible to the beach-going public, being located across the street from the beach. There is a very favorable prospect that a fast-food operation on the property would provide the Petitioner with a favorable return on his investment. There are five parking spaces located on the Petitioner's property adjacent to the building. Petitioner proposes to utilize the same five parking spaces to serve his proposed restaurant. Under the City of Clearwater's building and zoning regulations, persons who operate restaurants are required to provide suitable parking areas to accommodate employees and customers. The regulations require that parking spaces be provided based upon the number of employees and based upon the number of fixed seats or the square footage of the restaurant. In order to operate the restaurant that he proposes, the Petitioner would be required to provide 68 spaces under the City's building and zoning regulations. Petitioner is seeking a variance from these requirements which would allow him to provide only five parking spaces. There is considerable public parking located within close proximity to the Petitioner's property. There are approximately 1,500 metered parking spaces maintained by the City within four blocks of the property. The purpose of these spaces is not, however, to serve commercial enterprises, but rather to serve the beach-going public. While there are many such spaces, they are frequently filled during peak beach-going periods. To use the public parking facilities as parking for the Petitioner's proposed restaurant, customers would need to cross one or more streets. Petitioner contends that his proposed restaurant would not itself serve as a draw to the beach, but rather that his customers would be people who have already come to the beach. Petitioner contends therefore that there will be no additional demand for parking caused by his facility, and that he should not be required to provide any. While it is true that a "fast-food" sort of facility is not likely to serve as a substantial draw to the beach, it is also true that the Petitioner is predicting success for his facility based upon its highly visible location. It is likely that persons going to the beach would notice the restaurant and seek nearby parking locations. This would increase the demand for parking facilities in the area and would increase both vehicular and pedestrian traffic at what is already the busiest intersection on the beach. The parking problem on Clearwater Beach is not new. During peak demand times, there has been a shortage of parking for many years. The parking shortage is not one that affects only the Petitioner's property. Any business located on Clearwater Beach would have the same difficulties that Petitioner has. The difficulties are caused by lack of available land for providing parking spaces, and by the high demand for the land that is available. For the Petitioner to provide parking that would comply with the City's zoning regulations, he would need to acquire approximately four-tenths of an acre of property. The cost of such an acquisition would be prohibitive. The same problem would exist for any business person in Clearwater who proposes to operate a restaurant. It is not a problem that is unique to the Petitioner's property. There are a number of restaurants located on Clearwater Beach which do not provide parking facilities that would comply with the City's zoning regulations. There are at least two such restaurants in close proximity to the Petitioner's property. It appears that all of these restaurants were in operation prior to the adoption of the City's zoning regulations. While there was testimony that variances of the sort being sought by the Petitioner were once commonly granted, there was no competent evidence to support the contention. It does not appear that the City has enforced its zoning regulations in other than a uniform manner.
The Issue The issue in the case is whether the Town of Beverly Beach's Comprehensive Plan Amendment 03-1, initially adopted by Ordinance 2003-ORD-6 and amended by Ordinance 2004-ORD-6, is "in compliance," as required by Section 163.3184, Florida Statutes (2004).
Findings Of Fact The Department is the state land planning agency and has authority to administer and enforce the Local Government Comprehensive Planning and Land Development Regulation Act, Chapter 163, Part II, Florida Statutes (2004). One of the Department's duties under the Act is to review proposed amendments to local government comprehensive plans to determine whether the amendments are in compliance with the Act. The Town of Beverly Beach is a small municipality in Flagler County, Florida, and has the duty and authority to adopt a local government comprehensive plan pursuant to Chapter 163, Florida Statutes (2004), and to amend the plan from time to time. In June 2002, the Town proposed to amend its Future Land Use Map (FLUM) to change some of the land uses within the 37-acre Shelter Cove Planned Unit Development (PUD). The Shelter Cove PUD was the subject of an earlier lawsuit in the circuit court for Flagler County brought by the owners and developers of the property after the Town denied their PUD application. In 2002, the court entered judgment against the Town and ordered the Town to approve the PUD application. In its order, the court included a statement that the Shelter Cove PUD was consistent with the Beverly Beach Comprehensive Plan. The purpose of the plan amendment proposed in June 2002 was to re-designate 14.25 acres from Conservation/Spoil Area to Low Density Residential, 0.75 acres of Conservation/Spoil Area to Medium Density Residential, and 8.25 acres of Low Density Residential to Medium Density Residential. The proposed amendment was transmitted to the Department for compliance review. In its July 2003 ORC Report, the Department set forth four objections to the proposed amendment: 1) increased density in a Coastal High Hazard Area; 2) no traffic impact analysis regarding emergency evacuation; 3) inadequate potable water and sanitary sewer services; and 4) unsuitability for development because of saltwater marsh and potential use by threatened and endangered animal species. The Town made changes to the proposed amendment to address the Department's objections and adopted Plan Amendment 03-1 on October 6, 2003. One significant change made by the Town was to reduce the size of the land affected by the amendment from 23.25 acres to 14.5 acres. The stated purpose of the revised amendment was to deal exclusively with the spoil areas within the Shelter Cove PUD; to convert them from Conservation to Low Density Residential. The Department was not satisfied with the changes made by the Town and on November 17, 2003, it issued a Statement of Intent To Find The Comprehensive Plan Amendment Not In Compliance. This statement did not reassert the four objections of the ORC Report, but identified only two reasons for its determination that Plan Amendment 03-1 was not in compliance: 1) increased density in a Coastal High Hazard Area that would increase evacuation clearance times and 2) inadequate sanitary sewer facilities based on the denial of the utility's permit renewal by the Department of Environmental Protection (DEP). The Department recommended remedial actions that would bring Plan Amendment 03-1 into compliance. Thereafter, the Department and Town entered into a compliance agreement to identify remedial actions by the Town that would bring the plan amendment into compliance. Pursuant to the agreement, the Town adopted remedial measures in Ordinance 2004-ORD-6 (the Remedial Ordinance) that caused the Department to determine that the plan amendment was in compliance. The Remedial Ordinance (with additions and deletions as indicated in the ordinance) states in pertinent part: Limiting Density on the 14.5-acre amendment site & Hurricane Evacuation Plan Future Land Use Element: contains policies controlling the density and intensity of development (both residential and non- residential) in the Town of Beverly Beach. Policy A.1.1.9 The Low Density Residential (LDR) land use (up to 5 dwelling units/acre) shall be applied to 14.5 acres of upland spoil sites in the Shelter Cove development as shown in Exhibit A, not to exceed a total gross density of 28 residential units. In addition to the provisions described in Policy 1.1.4, the following provisions shall apply to the Shelter Cove Development: Residential land use for the Shelter Cove Planned Unit Development(PUD)shall be limited to a maximum of 115 dwelling units. The Town of Beverly Beach shall not issue a permit or certificate of occupancy until the Building Official certifies the required public facilities and services will be provided consistent with Chapter 9J-5, Florida Administrative Code (see Policy A.1.1.1). * * * Policy A.1.1.10 No later than December 2005, Beverly Beach shall revise its comprehensive plan to update the goals, objectives and policies and future land use map series and transmit such revisions to the Department of Community Affairs. The updated plan shall reflect changes to Chapter 163, Florida Statutes, and Rule 9J-5, Florida Administrative Code, since the plan went into effect in 1991. This revision shall be based on a planning period through Year 2015, with current and forecasted conditions and satisfy data and analysis requirements. * * * Revise policies under Objective D.2.1, Beverly Beach Comprehensive Plan regarding the provision of potable water and sanitary sewer Public Infrastructure/Facilities Element: refers to the protection of water quality by specific policies that require deficiencies in wastewater treatment facilities be corrected in accordance with DEP requirements. Objective D.2.1 By December 31, 1992 December 31, 2005, the Town shall require that existing deficiencies in the wastewater treatment package plants owned by Surfside Utilities operated by Ocean City Utilities be corrected in accordance with FDER Department of Environmental Protection [DEP] requirements. Policy D.2.1.1 As the Town does not own the wastewater treatment plants nor has operational control over the same, the Town shall formalize a coordination committee to include the owner/operator of Surfside Utilities Ocean City Utilities, the members of the Town Commission, members of the Flagler County Board of County Commissioners or their appointee, members of the City of Flagler Beach Commission or their appointee, and FDER the Department of Environmental Protection [DEP] and any other identified stakeholder in the Town. Policy D.2.1.2 The Town shall use the coordination committee to address the deficiencies in the wastewater plants, to set priorities for upgrading and replacing components of the plants, and to request FDER the Department of Environmental Protection [DEP]to increase and enforce their regulations requiring periodic monitoring and maintenance of package treatment plants. Policy D.1.2.3 The Town shall use the coordination committee to investigate the feasibility of assuming operational responsibility of the wastewater treatment system by another entity. Applying the five dwelling units per acre density allowed in the Low Density Residential category to 14.5 acres would generate 72.5 units. However, as indicated above, the Remedial Ordinance also restricted the total allowable dwelling units in the 14.5 acres to 28 units. The 28 units coincide with the site plan for the Shelter Cove PUD that was the subject of the circuit court judgment. The site plan called for 28 single- family lots in the former spoil areas. Charles Osbourne, Bernard Knight, and Mary Jo Knight were residents of the Town of Beverly Beach when the Town adopted Plan Amendment 03-1. They intervened against the Town in the original proceedings initiated by the Department. Following the Department's determination that the plan amendment had been brought into compliance by the Remedial Ordinance, they filed an Amended Petition to Intervene and were realigned as the Petitioners. On some date between the filing of their original petition in this case and the date of the final hearing, Petitioners Bernard Knight and Mary Jo Knight moved out of Beverly Beach. They are no longer residents of the Town. In their Amended Petition to Intervene, the Petitioners assert that the Remedial Ordinance did not resolve all the problems originally identified by the Department's ORC Report, and Plan Amendment 03-1 is still not in compliance. The Petitioners' objections to the amendment fall into three categories: insufficient and inaccurate data and analysis, insufficient legal description for the lands affected by the plan amendment, and inadequate wastewater services available for the increased density resulting from the amendment. These three categories will be used to organize the findings of fact that follow. Data and Analysis/Maps The Petitioners assert that the maps used for Plan Amendment 03-1 and the Remedial Amendment are not the official maps currently contained in the Beverly Beach Comprehensive Plan. They contend the unofficial maps contained errors that caused some of the area designated as Conservation/Saltwater Marsh to be included in the 14.5 acres re-designated Low Density Residential. At the hearing, the Petitioners also attempted to show that maps used by the Town with Plan Amendment 03-1 were not consistent with the Beverly Beach FLUM with regard to the depiction of saltwater marsh areas outside the 14.5 acres affected by the plan amendment. Whether such discrepancies exist is not a relevant inquiry for determining whether Plan Amendment 03-1 is in compliance. A 1997 report regarding threatened and endangered animal species, prepared by Lotspeich and Associates for the developer of the Shelter Cove PUD, includes a statement that there are 10.3 acres of spoil on the 37-acre PUD site. That figure is inconsistent with the Town's claim that the lands affected by Plan Amendment 03-1 consist of 14.5 acres of spoil. Lindsay Haga, a regional planner with the Northeast Florida Regional Planning Council (Council), made the determination that there are 14.5 acres of spoil area. Because the Town does not have a professional planning staff, the Council was providing planning services to the Town under contract. Ms. Haga worked on Plan Amendment 03-1 on behalf of the Town. Ms. Haga obtained a mapping of the land uses within the Shelter Cove PUD from information maintained by the St. Johns River Water Management District (District). The land use categories are based on the Future Land Use Classification Categorization System, and were applied by the District using aerial photography. Using professional software called "ArcView," Ms. Haga derived the size of the various land uses mapped within the Shelter Cove PUD by the District. The software calculated the size of the spoil areas as 14.5 acres. According to Ms. Haga, planners use this method "100 percent" of the time to delineate land uses on future land use maps. Ms. Haga was called as a witness by the Petitioners and by Beverly Beach and testified at length on direct and cross-examination on how she determined the size of the spoil areas. Nevertheless, some ambiguity remains as to whether the size and position of the spoil areas designated in the official Town FLUM are the same as their size and position as delineated by Ms. Haga for Plan Amendment 03-1 using information from the St Johns River Water Management District. The Town and the Department seem to suggest in their joint post-hearing submittal that the size and position of the spoil areas on the FLUM can be "cleaned up" or re-drawn using more site-specific information presented at the final hearing. The implication is that, if the Town's FLUM delineated less than 14.5 acres as Conservation/Spoil Area, but better data is presented at the hearing to show that the spoil areas actually cover 14.5 acres, the FLUM delineation can be ignored or treated as if did cover 14.5 acres. The redrawing of land uses as they are depicted on an adopted FLUM is arguably beyond the authority granted to the Department in Chapter 163. That issue need not be decided on this record, however, because the more credible and persuasive evidence shows there were no material changes to the size and position of the spoil areas in Plan Amendment 03-1, and no saltwater marsh was re-designated as Low Density Residential. Data and Analysis/Topographic Information The Petitioners assert that topographic data used by the Town was flawed and did not accurately reflect that much of the Shelter Cove PUD is within the 100-year floodplain. For example, the June 2002 Transmittal Packet sent to the Department included a statement that, "According to FEMA the 100 year floodplain is confined to the saltwater marsh areas located adjacent to the Intracoastal Waterway." At the hearing, the Town admitted that some of topographic information was inaccurate and described it as a "scrivener's error." The parties stipulated to the introduction into evidence of topographic information that indicates a portion of the 14.5 acres affected by Plan Amendment 03-1 lies within the 100-year floodplain. The Petitioners have not shown how the inclusion of inaccurate topographic in the data and analysis causes Plan Amendment 03-1 to be not in compliance; or, put another way, the Petitioners have not shown how the accurate topographic information proves Plan Amendment 03-1 will be inconsistent with the Beverly Beach Comprehensive Plan or applicable state laws and regulations. The Beverly Beach Comprehensive Plan does not prohibit Low Density Residential uses in the 100-year floodplain. Data and Analysis/Clustering The Petitioners contend that the data and analysis was flawed because it included a reference to the possibility of clustering dwelling units to avoid adverse impacts to areas unsuitable for development, but the Town has no regulations that allow for or address clustering. Neither the Amended Petition to Intervene nor the evidence presented by the Petitioners makes clear how this alleged error causes Plan Amendment 03-1 to be not in compliance. Any alleged error must relate to the 14.5 acres affected by the amendment. The Petitioners did not show that clustering of dwelling units is planned or necessary on the 14.5 acres. Data and Analysis/Scrub Jays The Petitioners contend that the data and analysis is insufficient because it fails to describe and account for the current use of the site by the Florida scrub jay, a bird listed as threatened by the Florida Fish and Wildlife Conservation Commission and the United States Fish and Wildlife Service. The Town and Department stipulated that scrub jays have been seen on the property. Charles Osbourne and Gail Duggins, a birdwatcher, testified that they have seen scrub jays in the Shelter Cove PUD area on several occasions. They marked Petitioners' Exhibit 15 to indicate eight specific sites within the PUD where they had observed scrub jays. None of the marked sites are located on the 14.5 acres affected by Plan Amendment 03-1. Lotspeich and Associates conducted a scrub jay survey on the 37-acre Shelter Cove PUD in 1997. They observed no scrub jays on the 14.5 acres that will be affected by Plan Amendment 03-1. In the written report of the survey, Lotspeich and Associates concluded that, "no jays reside on-site nor did any birds react as though they were defending territory which extended onto the property." Following a second survey in 2002, Lotspeich and Associates reached the same conclusion that the property "is unlikely to support a resident Florida scrub jay population." The observations of scrub jays made by Mr. Osbourne and Ms. Duggins do not contradict the conclusions of the Lotspeich and Associates reports. Mr. Osbourne and Ms. Duggins did not offer an opinion (and no foundation was laid for their competence to offer such an opinion) that scrub jays reside on the 14.5 acres affected by Plan Amendment 03-1. The Department's ORC Report stated that the originally-proposed amendment was not consistent with Policy E 1.4.3 of the Town's comprehensive plan which calls for the Town to obtain information from appropriate agencies concerning the known locations of listed plant and animal species. The Department recommended in the ORC Report that the Town conduct a survey for gopher tortoises and other listed species. The Department's objection about listed species, however, was not included its subsequent Statement of Intent to Find The Comprehensive Plan Amendment Not in Compliance. The Town had available to it, as part of the data and analysis to support Plan Amendment 03-1 and the Remedial Amendment, the Lotspeich and Associates reports prepared for the United States Fish and Wildlife Service. The reports convey the results of Lotspeich and Associates' surveys of the Shelter Cove PUD property for gopher tortoises, scrub jays and other listed species. It is likely to be the best information available since it is a site-specific, scientific study. The Petitioners did not show that better data were available or that the Lotspeich and Associates reports are flawed. In fact, the Lotspeich and Associates reports were exhibits offered by the Petitioners. Policy E.1.4.3 of the Beverly Beach Comprehensive Plan directs the Town to adopt land development regulations that provide protections for known listed species. Land development regulations are the usual and appropriate tools for applying specific protective measures to specific development proposals. No regulations have yet been adopted by the Town to protect listed species. Listed species are not left unprotected from development activities in the Town, however, since there are both state and federal laws to protect listed species and their habitats. Data and Analysis/Beach Access The Petitioners contend that the data and analysis was insufficient because it indicated that there are five locations in the Town where the public can gain access to the beach, but the Petitioners allege there are only two public beach walkovers that qualify under the Beverly Beach Comprehensive Plan. The beach access issue relates to the Town's recreational level of service standard adopted in the Recreation and Open Space Element of the Beverly Beach Comprehensive Plan. Policy F.1.1.1 specifies that the adopted level of service standard is "Five publicly-owned beach access facilities." The Petitioners apparently believe that the easements acquired by the Town that provide for public beach access across private property do not qualify as publicly-owned beach access facilities as contemplated by the Beverly Beach Comprehensive Plan. The term "publicly-owned beach access facilities" is not defined in the Recreation and Open Space Element, but one can find a statement at page F-2 that, "Access points and parking areas are support facilities for public owned beaches." Therefore, the Town considers an access point, without any man- made structures, to be a "facility." Furthermore, the comprehensive plan, itself, includes a map that depicts the location of the five public beach access points. It must be assumed that these access points met the Town's intent and meaning. By raising the issue of whether the data and analysis for Plan Amendment 03-1 is accurate in referring to the existence of five public beach access points, the Petitioners are collaterally attacking the existing comprehensive plan. Stephen Emmett, the mayor of Beverly Beach, stated that the five public beach access points depicted in the Beverly Beach Comprehensive Plan, as well as a new sixth beach access point, are currently maintained by the Town. Description of the Land Affected The Petitioners alleged in their Amended Petition to Intervene that the Town did not have an adequate legal description for the lands affected by the plan amendment. The issue was not raised in the Petitioners' Pre-Hearing Statement. When the Department objected to the Petitioners' presentation of evidence on this issue because it was not raised in their Pre- Hearing Statement, the Petitioners voluntarily withdrew the issue. Sanitary Sewer Services The Petitioners contend that sanitary sewer services are not adequate for the increased residential density that would result from Plan Amendment 03-1. The Beverly Beach Wastewater Treatment Facility is operated by Ocean City Utilities. Ocean City's application to renew the permit for the facility was denied by DEP in September 2003 because the facility was not in compliance with several DEP regulations. As a result of the denial of Ocean City's permit renewal application, DEP would not allow new customers to connect to the Beverly Beach Wastewater Treatment Facility, including the Shelter Cove PUD. DEP subsequently approved the connection of the Shelter Cove PUD wastewater collection system to the Beverly Beach Wastewater Treatment Facility. Permitting problems associated with the treatment plant was one reason for the Department's objection to the originally proposed plan amendment and the Department's subsequent determination that Plan Amendment 03-1 was not in compliance. No evidence was presented to show that Ocean City Utilities has corrected the deficiencies in the wastewater treatment plant or has obtained a renewal permit from DEP. Nevertheless, the Department determined that Plan Amendment 03-1 is in compliance based on the changes to the Beverly Beach Comprehensive Plan called for in the compliance agreement and adopted in the Remedial Ordinance. Objective D.2.1 of the Beverly Beach Comprehensive Plan was amended to require that existing deficiencies in the wastewater treatment plant be corrected by December 31, 2005. Policies D.2.1.1, D.2.1.2, D.2.1.3 were amended to re-constitute and re-energize a coordination committee to address the deficiencies in the wastewater plant and the feasibility of giving operational responsibility to another entity (such as Flagler County). In addition, the Remedial Ordinance amended Policy A.1.19 of the Beverly Beach Comprehensive Plan to prohibit the Town from issuing a permit or certificate of occupancy for the Shelter Cove PUD "until the Building Official certifies the required public facilities and services will be provided consistent with Chapter 9J-5, Florida Administrative Code." No dispute was raised about the available capacity of the Beverly Beach Wastewater Treatment Facility to serve the Shelter Cove PUD.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the Town of Beverly Beach Plan Amendment 03-1, and Remedial Ordinance 2004-ORD-6, are "in compliance" as defined in Chapter 163, Part II, Florida Statutes (2004). DONE AND ENTERED this 29th day of August, 2005, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER 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 29th day of August, 2005. COPIES FURNISHED: Shaw P. Stiller, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Sidney F. Ansbacher, Esquire Upchurch, Bailey and Upchurch, P.A. Post Office Box 3007 St. Augustine, Florida 32085-3007 Robert J. Riggio, Esquire Riggio & Mitchell, P.A. 400 South Palmetto Avenue Daytona Beach, Florida 32114 Thaddeus Cohen, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100 Heidi Hughes, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325 Tallahassee, Florida 32399-2100
Findings Of Fact Ramchandra Jakhotia and Rashmi Jakhotia, his wife, acquired the King Cole Motel at 401 East Shore Drive, Clearwater, Florida in 1983 and have owned the property since that time. At the time of acquisition and for some time prior thereto the property included a commercial marina with 22 slips. In 1985 the City of Clearwater revised its Development Code effective October 13, 1985 and, incident thereto, effective July 7, 1988, enacted Section 114.05, Live-Aboard Vessels as Ordinance 4597, Clearwater City Code. That enactment provided, in part, that: Prohibited; exceptions: It shall be unlawful for any person to moor any live-aboard vessel at any location within or upon the navigable waters in the City for any period of time in excess of seventy-two (72) hours, except as follows: At a marina facility for which conditional use approval has been obtained, or a marina facility in existence as of October 13, 1985 for which conditional use approval would otherwise be required;... In January 1986 a survey was taken of all marinas within the City of Clearwater to determine the number of live aboard vessels coming within the purview of the revised Development Code. At this survey eight live aboard vessels were occupying berths at the King Cole Motel marina and this was the number determined to be grandfathered for which no conditional use approval would be required. In 1988 King Cole Motel applied for conditional authorization to utilize 14 additional berths for live aboard vessels. This conditional use was approved subject to the applicant installing a pump-out facility and meeting the parking requirements. Although the parking requirements for a commercial marina, i.e., 0.5 parking space per slip, is the same as the parking requirement at marinas for live aboard vessels, the latter generally place a greater demand on parking spaces than does non-live aboard vessels. To change the approved use from commercial marina without live aboards to live aboards is a change in the use and requires conditional use approval. Before conditional use approval can be granted the applicant must comply with all code requirements, such as required parking spaces, at the time of the change in use. At the time Appellant acquired the King Cole Motel the 22 commercial slips were grandfathered as an authorized use without any parking being provided. Accordingly, as a 22-slip commercial marina Appellant did not have to provide parking. When the eight slips used for live aboards were counted in 1986 they too were grandfathered in without the need for parking spaces. However, when Appellant applied in 1988 for authorization to use 14 other slips for live aboard vessels, the code required the applicant to provide seven parking spaces. To his credit Appellant obtained the use of seven parking spaces down the road from the marina but those spaces were not contiguous to Appellants' marina as required by the code. Therefore, Appellants' use of the additional slips for live aboards did not meet the parking requirement in his conditional use approval. In 1992 Appellant applied for a variance of the seven parking spaces required to allow the use of these additional slips by live aboard vessels. This hearing was held before the Development Code Adjustment Board on February 11, 1993 and it is from the denial of this variance that this appeal is taken. The Board denied the variance requested because the Appellant failed to demonstrate that the standards established by Section 45.24 Land Development Code were met. In these proceedings Appellant presented no additional evidence to support the variances requested than was submitted to the Board.
The Issue This case concerns proposed amendments to Respondent's Rule 16N-22.009, The issues for determination are, 1) whether Petitioner has standing to challenge the proposed amendments, and 2) whether the amendments are an invalid exercise of delegated legislative authority. More specifically, the following issues are raised by the pleadings and presentation of the parties: Whether the rule amendments exceed the agency's grant of authority by creating a "no entry" or "motorboat prohibited zone", and by extending that zone into the right of way of the Intracoastal Waterway Channel. Whether the agency materially failed to follow rulemaking procedures prescribed by Section 120.54, F.S., by substantially revising the proposed amendments after a challenge had been filed, and by preparing an inadequate economic impact statement; and Whether the amendments are arbitrary and capricious because they are unnecessary or unrelated to manatee protection.
Findings Of Fact Petitioner, Gerald M. Ward, is a registered engineer residing in Riviera Beach, Palm Beach County, Florida. He owns a 30-foot Columbia sailboat, with motor power. He uses the boat for recreational purposes exclusively. Since 1973, the boat has been berthed at Old Ship Marina, within the slow speed zone of the existing rule, but approximately one mile outside of the proposed motorboats prohibited zone. Petitioner does not live on, nor own any real property abutting the proposed motorboat prohibited zone. Since 1979, Rule 16N-22.009, F.A.C. has provided two speed zones for operation of motor boats between November 15 and March 31 in Palm Beach County: an idle speed zone in all waters within one-half mile of the discharge of the Florida Power and Light Riviera Beach Power Plant, including the Intracoastal Waterway; and a slow speed zone for all inland waters lying between one-half mile and one and one-half miles of the power plant discharge, including the Intracoastal Waterway. These zones are within Lake Worth, the body of water between West Palm Beach and Palm Beach and extending both north and south. The changes proposed for Rule 16N-22.009, F.A.C., would create a third zone, "motorboats prohibited", in a much smaller area within the current idle speed zone, and in and immediately adjacent to the power plant discharge canal. The full text of the Department of Natural Resources (DNR) proposed rule was published in the Florida Administrative Weekly, Volume 15, No. 38, September 22, 1989, as follows: 16N-22.009 Palm Beach County Zones Amended. For the purpose of regulating the speed and operation of motorboat traffic between the dates of November 15 and March 31 of each year, the Palm Beach County zones are amended as follows: IDLE SPEED ZONE-All waters lying within one-half mile of the discharge of the Florida Power and Light Riviera Beach Power Plant including the Intracoastal Waterway, except those waters posted as a "Motorboats Prohibited Zone" as described in paragraph (c) below. (c) MOTORBOATS PROHIBITED ZONE - All waters lying within Lake Worth, commencing at a point exactly 300 feet north of the Riviera Beach Power Plant discharge canal and easterly to within 100 feet of the westernmost boundary of the Intracoastal Waterway, lying within Township 42 South and Range 43 East, running southerly to a point exactly 300 feet south of the abovementioned discharge canal and easterly to the westernmost boundary of the Intracoastal Waterway lying within Township 43 South and Range 43 East. The precise boundaries and effective period of the zone will be posted each year between November 15 and March 31 (see accompanying map for exact locations). (Emphasis in original denotes new text). No map was published. Sometime between September 22nd and October 16, 1989, DNR staff realized that the description of the proposed zone was defective. It failed to "close", and therefore did not adequately describe the area. At the public hearing on the proposed rule amendments, on October 16, 1989, Department staff person, Karen Lewis announced the need to make a technical change to the proposed amendments; she provided the attendees a copy of the revised description and a map depicting the zone. These changes were incorporated into the record of the rulemaking proceedings. On November 3, 1989, the DNR, Division of Law Enforcement, published a "notice of change" in the Florida Administrative Weekly, Volume 15, No. 44. The notice affected several other rules establishing zones in other counties, and the following text was published for proposed Rule 16N-22.009, F.A.C.: * * * 2. For proposed rule 16N-22.009, Palm Beach County Zones the word "amended" has been deleted from the title, and subsection (1)(c) has been corrected to read as follows: (c) MOTORBOATS PROHIBITED ZONE - All waters lying within Lake Worth, commencing at a point exactly 300 feet north of the northeast corner of the Riviera Beach Power Plant discharge canal, thence easterly to a point 100 feet west of the western boundary of the Intracoastal Waterway channel, lying within Township 42 South and Range 43 East; thence running southerly parallel to and 100 feet west of the western boundary of the Intracoastal Waterway channel for a distance of 700 feet to a point within Township 43 South and Range 43 East; thence westerly to the shoreline to a point 300 feet south of the southeast corner of the discharge canal; thence northerly 300 feet to the southeast corner of the discharge canal; thence westerly 150 feet, northerly 100 feet, and easterly 150 feet to the northeast corner of the discharge canal (inclusive of the entire waterbody comprising the Riviera Beach Power Plant discharge canal); thence northerly 300 feet to the point of origin. The precise boundaries and effective period of the zone will be posted each year between November 15 and March 31. The words "(see accompanying map for exact locations)" have been removed from subsection (1)(c). * * * A map depicting the three zones in Lake Worth was published at page 5144 of the Nov. 3rd Florida Administrative Weekly. The Intracoastal Waterway is a federal Corps of Engineers project extending the Atlantic coast length of Florida. In Palm Beach County the waterway consists of a main channel approximately 125 feet wide with 187.5 feet of right of way on each side. The waterway runs north and south in the waters of Lake Worth, hugging the mainland coast, east of Riviera Beach. The waterway is regulated by the Florida Inland Navigation District (FIND). An easement for maintenance of the project was granted by Chapter 13664, Laws of Florida (1929), and by a conveyance from the Trustees of the Internal Improvement Trust Fund to the United States, dated June 8, 1942. Petitioner has suggested, but failed to prove, that FIND has withheld necessary permission for DNR to establish its zone within a portion of the right of way. Maintenance or repair of a property owner's facilities is exempt from the prohibition of the motorboat prohibited zone. Rule 16N-22.003(3), F.A.C. The Department has received no objection nor written comment from the U.S. Army Corps of Engineers and U.S. Coast Guard, and its comment from FIND was simply that the draft map was inconsistent with the text of the September 22, 1989 version of the proposed rule. The Department has consistently intended that the zone extend into the right of way, but not into the waters of the Florida Intracoastal Waterway channel. The revised description of the boundaries of the zone, published on November 3rd, plainly effectuates that intent. There are no marinas in the area of the proposed motorboat prohibited zone. There is an existing dock owned by the U.S. Coast Guard within the zone, but arrangements have been made with the Coast Guard regarding their non-use of the dock during the posted months. The proposed zone is a very small area within an already limited speed zone. There is ample room for motorboats to navigate east of the zone, within the right of way, in the channel of the Intracoastal Waterway, and in the wide waters of Lake Worth lying east of the waterway. The proposed motorboat prohibited zone will not interfere with navigation or boats engaged in interstate commerce. The zone will be marked by signs installed by the department during the relevant months. While the exact type of marker has not been established, they will be obvious to boaters and will be easily removed by department staff. The increase in signs will not automatically increase boating accidents. In the record there are two versions of an economic impact statement accompanying the proposed rule. They do not materially differ; the revised version simply provides an expanded narrative without altering the estimated costs or the underlying conclusions. The Department estimates the cost of signs to be approximately $125.00 each, for four; and an additional $320.00 each for the pilings, for a total quantifiable cost of $1780.00. This is for signs to be attached to a piling structure. The department is currently investigating the possibility of using buoys which would be cheaper to install and remove. The $1780.00 is a one-time cost and the department anticipates that installation and removal each year will be routinely accomplished by existing field staff who are already working in that area. The zone will be enforced by the Florida Marine Patrol who already enforces the existing zones. Any associated increase in law enforcement costs will be absorbed into the existing operating budget. No small nor minority businesses are operating in the area within the proposed zone and no evidence was presented to disprove the department's estimate of no cost to those groups or to competition and open market for employment or to persons directly affected by the proposed action. The stated purpose of the proposed rule is for ". . . regulating the speed and operation of motorboat traffic to needed protection for the Florida manatee." (Notice of proposed rulemaking published in the Florida Administrative Weekly, Volume 15, No. 38, September 22, 1989.) The manatee is an endangered species, one of the original species identified in the Federal Endangered Species Act. Its estimated population is approximately 1,200 for the entire United States; many of whom are found in the waters of Florida. In 1978, the Florida Legislature passed the Manatee Sanctuary Act declaring the state to be a refuge and sanctuary for manatees. The act has also been amended at least three times since 1978, giving the department additional authority to protect the species. Motorboats kill, maim and disturb manatees. In the past five years there has been an 85 percent increase in the incidents of manatee deaths from collision with vessels. In 1988, 133 manatees were found dead in Florida; 43 were determined to have been killed by boats. In 1989, those figures had both been surpassed at the time of the hearing in this case. Since 1978, there have been 12 boat-related manatee deaths in Palm Beach County, including two deaths in 1988. No deaths have been observed this year. Manatees congregate in the winter months in the Florida Power and Light Riviera Beach power plant discharge canal and surrounding waters. The warm waters there are a refuge. Each year their numbers fluctuate according to the weather conditions. In warmer years fewer numbers are observed, and the totals range from a maximum one-day count of 60 in 1983-84, to 277 in 1987-88. The proposed rule is reasonably expected to fulfill the purpose of protecting the manatee. Prohibiting motorboat traffic in the limited area immediately in and surrounding the discharge canal will not only prevent deaths and harassment in that area, but will also keep the motorboats from scattering the animals into the busier, highly trafficked area further east and in the channel of the Intracoastal Waterway.
The Issue The central issue in this case is whether Sunrise is entitled to the permit for the construction of the proposed marina.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: On or about February 3, 1988, Sunrise submitted an application to the Department for permission to construct a 33 slip marina to be located at 2701 D. Sunrise Boulevard, Fort Lauderdale, Florida. The dock facilities to be built include four sections designed to accommodate yachts 70 feet or longer in length. The proposed marina would be located in a body of water known as Coral Bay. The bay opens onto the Intracoastal Waterway at the Sunrise Boulevard bridge. This marina is subject to the Department's permitting requirements under Chapter 403, Florida Statutes, and Chapter 17-12, Florida Administrative Code. The proposed marina does not require dredging. The only filling would be incidental to the placement of the pilings (supporting the dock system) and the rip rap (recommended by the Department to enhance fish habitation). Coral Bay is a Class III water which currently meets water quality standards for such classification. The water body east of the proposed marina is classified as an Outstanding Florida Water. On or about October 12, 1988, the Department issued an Intent to Issue the permit requested by Sunrise. The notice of the Intent to Issue was published on October 24, 1988. Thereafter, petitioners timely filed challenges to the proposed project. As specific conditions of the permit, the Department required the following provisions which are pertinent to the Kaye challenge: The required 300 cubic yards of natural limestone 1-3' diameter rip rap shall be placed at the toe of the bulkhead before the construction of the marginal pier. No sewage shall be discharged into the marina basin or other waters of the State. Sewage pump out facilities shall be provided, used and at all times maintained and operable. A permit is required from Broward County and shall be acquired to validate this permit. An effective means of turbidity control, such as, but not limited to, turbidity curtains shall be employed during all operations that may create turbidity so that it shall not exceed 29 Nephelometric Turbidity Units above natural background value. Turbidity control devices shall remain in place until all turbidity has subsided. * * * 8. Manatee Construction Conditions (copy enclosed) shall be implemented and in effect and Manatee Caution Signs and Educational Displays, per enclosed directive, shall be implemented. The proposed marina will occupy the southern half of Coral Bay. The Kaye property is north of the proposed site. Further north are a cooperative of townhome units and a yacht club. Access to the bay and to the Intracoastal Waterway is afforded these properties via a channel 75 feet in width which divides the bay waters. The proposed marina would not intrude into the access channel. There is an existing concrete seawall which extends vertically along the shoreline of the subject property. The parking and structures to be built incidental to the marina have been designed to require run off or drainage landward and not into Coral Bay. The water depth in the proposed marina is approximately 8 to 9 feet except along the shoreline where the depth is approximately 5 feet. It is not anticipated that the operation of the yachts will cause a significant disturbance of the marina basin floor. 10 The tidal flushing in Coral Bay is sufficient to remove incidental levels of pollutants which may be discharged. Therefore, the proposed marina will not have a significant impact on water quality. The incidental pollutants which may be expected are such items as paint leaching or minor fuel spills. Since the marina will not have fueling facilities and since sewage pump out facilities are mandated, it is not anticipated that these forms of waste will be significant to this project. The proposed marina will not have an adverse effect on the flow of water in the basin nor should it cause erosion or sedimentation. Further, it is not anticipated that the marina will adversely affect the water quality in the Outstanding Florida Water near the site. Although no water testing was performed at this site, the biota appears healthy. A number of fishes actively forage in the waters and algae can be observed down to a depth of 6 feet. Consequently, the water is clear enough to support growth to that depth. A number of birds feed and rest in the subject area. The docks are likely to displace the birds' direct access to feeding areas but it is anticipated that the rip rap will increase the surface areas available for organism development and thereby enhance the environment for fishes. While the docks will result in an estimated 16,700 square feet of shadowing of open water, given the benefits of the required rip rap, the overall impact should not be negative. Construction began on the Sunrise Boulevard bridge approximately three years ago. Manatees have not been observed at the proposed site since the work began. However, because it is known that manatees frequented this area before the construction and may again, manatee construction conditions and manatee signage provisions have been required by this permit. The construction provisions will require Sunrise to cease all construction upon the sighting of a manatee until such time as the animal vacates the area. Further, the signage provisions will require Sunrise to display warnings and to inform all marina users of the possibility of manatees in the area. Immediate notification to the appropriate authorities is required in the event a manatee is injured. It is anticipated that the proposed marina will displace transient use of Coral Bay. This loss when weighed against the benefits of having a docking facility available to yachts (with the amenities of power and fresh water) does not establish a negative recreational impact on the proposed site. The 75 foot channel is sufficient for safe passage to and from the Intracoastal Waterway and the properties owned by Sunrise and the Kayes. The proposed marina will not adversely affect recreational use of the properties. The project is intended to be of a permanent nature. The project will have no effect on significant historical and archaeological resources. There are no outstanding permits which, when reviewed in connection with this project, would establish that the water quality will be adversely affected by the proposed marina. It is not anticipated that the proposed marina, subject to the general and specific conditions of the permit, will adversely affect the public health, safety, or welfare. The negative affect to the property of others is minimal given the overall enhancement to the recreational and biological environments.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Environmental Regulation enter a final order approving the permit for Sunrise Bay Harbour, Inc. DONE and RECOMMENDED this 11th day of May, 1989, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 1989. APPENDIX RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY PETITIONER KAYE: To the extent that paragraph 1 concludes the Department did not consider the Canrael permit in evaluating the Sunrise permit, such fact is accepted. However, under the facts of this case, the Department was not required to consider such permit since it was not contemplated that both projects could or would be built. The Canrael permit had expired prior to October 26, 1988, and Canrael formally abandoned its interest, if any, in the permit at the hearing in this cause. Paragraph 2 is rejected as argument, irrelevant or immaterial to the issues of this case. Paragraph 3 is rejected as contrary to the weight of the credible evidence. Paragraph 4 is accepted. Paragraph 5 is rejected as contrary to the weight of the credible evidence. The first two sentences of paragraph 6 are accepted but are irrelevant. The last sentence is rejected as contrary to the weight of the evidence or argument. Paragraph 7 is accepted. Paragraph 8 is rejected as argument or contrary to the weight of the evidence presented. Paragraph 9 is rejected as argument and is either contrary to the weight of the evidence presented or unsupported by evidence in this cause. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT: Paragraphs 1 through 23 are accepted. With the deletion of the phrase "both lawful and unlawful," paragraph 24 is accepted. Paragraphs 25 through 29 are accepted. Paragraph 30 is rejected as irrelevant, immaterial or unnecessary to the resolution of the issues in this case. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY SUNRISE: Paragraph 1 is accepted. Paragraph 2 is accepted as stipulated by the parties at the outset of this case. Paragraph 3 is accepted. The parties did not oppose the tender of Mr. Nero in the categories listed. Paragraphs 4 through 7 are accepted. To the extent that paragraph 8 states this proposed project is within Class III waters, such paragraph is accepted. However, to the east of Coral Bay is a body listed as Outstanding Florida Water. Consequently any suggestion otherwise is rejected as contrary to the facts of this case. Paragraphs 9 through 22 are accepted. Paragraph 23 is accepted. Paragraph 24 is rejected as not supported by the evidence presented in this cause. Paragraph 25 is accepted but is unnecessary irrelevant or immaterial. Paragraph 26 is accepted. Paragraph 27 is rejected as irrelevant, immaterial, or unnecessary to the resolution of issues in this case. Paragraph 28 is accepted but is irrelevant immaterial, or unnecessary to the resolution of issues in this case. Paragraph 29 is rejected as contrary to the weigh of the evidence. Manatees have not been seen since the bridge construction began approximately three years ago. Exactly when, prior to that, a manatee was within Coral Bay is not disclosed by this record. Paragraph 30 is rejected as irrelevant. Paragraph 31 is rejected as irrelevant. Paragraphs 32 and 33 are rejected as irrelevant. COPIES FURNISHED: For Petitioner Canrael: Mary F. Smallwood Ruden, Barnett, McClosy, Smith, Schuster & Russell, P.A. 101 North Monroe Street Monroe-Park Tower, Suite 1010 Tallahassee, Florida 32301 For Petitioners Kaye: Brion L. Blackwelder JACOBSON AND FINKEL 3363 Sheridan Street, Suite 204 Hollywood, Florida 33021 Jack and Harriet Kaye 1100-1120 Seminole Drive Fort Lauderdale, Florida 33304 For Sunrise Bay: William Robert Leonard Leonard & Morrison P.O. Box 11025 Fort Lauderdale, Florida 33339 For DER: Wayne L. Schiefelbein Assistant General Counsel Department of Environmental Regulation Twin Tower Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale H. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson General Counsel 2600 Blair Stone Road Tallahassee, FL 32399-2400
Findings Of Fact W. B. Johnson Properties, Inc., Petitioner, is the owner of the 428- room Holiday Inn Surfside located on Clearwater Beach. This hotel was constructed in 1981 on land zoned CTF-28 for commercial tourist facilities. The tract of land on which the hotel is situated is approximately ten acres and the maximum density of 42 rooms per acre is utilized. This hotel is currently in conformity with all building and zoning regulations. Holiday Inn Surfside has decking around its swimming pool which is capable of accommodating only 120 to 150 deck chairs for the guests of the hotel. Additional chair space, if needed, must be obtained by using the undecked area of the beach in front of the hotel. The occupancy rate for this hotel from the beginning of 1983 to date has been 80 percent. Petitioner owns the entire beach fronting its property, a distance of some 340 feet. Prior to the passage of Clearwater Ordinance No. 3075-83, the western setback line for this property was 50 feet from-mean highwater (MHW). Ordinance 3075-83 made the Coastal Construction Control Line (CCCL), as established by Section 161.063, Florida Statutes, as the western setback line for property located on Clearwater Beach. This is now the Coastal Control setback line. The Coastal Construction setback line as it crosses Petitioner's property is 338 feet from MHW of the Gulf of Mexico. Prior to the passage of Ordinance No. 3075-83, Petitioner could have constructed decking up to the then setback line, 50 feet from MHW. Petitioner is one of the few property owners on Clearwater Beach that has undisputed ownership of the beach fronting its property seaward of the CCCL. This area of Clearwater Beach in the vicinity of Holiday Inn Surfside is the widest part of the beach between the CCCL and MHW. Exhibit 7, which was submitted as a late-filed exhibit, clearly shows the beach north of Petitioner's property is not as wide as is the beach fronting Petitioner's property, and much of the property on the beach south of Petitioner's property is owned by the City. Solely by having ownership of more beachfront property seaward of the CCCL, Petitioner is more adversely affected by Ordinance No. 3075-83 than are other property owners. Petitioner has signs restricting the use of the decking around the pool to hotel guests. Petitioner also has a patio bar in the vicinity of the pool which is accessible from the beach and from the hotel. Drinks are served to the public at this patio bar. By extending the deck 28 feet seaward of the OCCL, Petitioner would be able to provide decking for an additional 150 to 170 chairs for the use of hotel guests. With an 80 percent occupancy rate there is insufficient deck space to accommodate all of the hotel guests who desire to use these facilities. Currently the excess place their deck chairs in the sand seaward of the CCCL. Those who testified in opposition to the variance requested did so on the grounds that the increased deck facilities would bring more people to the patio bar, thereby increasing the traffic and parking problems on the beach, that the hotel did not adequately restrict the use of the existing deck to guests of the hotel, and that if this application is granted it will open the doors to others who would like to construct a deck seaward of the CCCL. None of these grounds is deemed particularly meritorious. Many factors could increase the patronage of the patio bar and more adequate decking would not be a significant one, particularly in view of Petitioner's contention that the deck was reserved for guests of the hotel, albeit not strictly enforced during periods of low occupancy.
