Findings Of Fact Petitioners, Larry C. and Jan D. Giunipero, reside at 2345 Tour Eiffel Drive, Tallahassee, Florida. On February 29, 1984, they obtained a building permit from Franklin County to construct a single-family dwelling on their lot in Alligator Point, Franklin County, Florida. The Giuniperos engaged the services of a professional engineer to design their beach house. In so doing, the engineer designed the structure so as to comply with the Federal Emergency Management Association (FEMA) guidelines, which are minimum building requirements established by the Federal Insurance Administration to qualify for federal flood insurance. These guidelines have been adopted by the Franklin County Planning and Zoning Department, and insure that the structure can withstand winds of 110 miles per hour. Even before the Guiniperos obtained their permit, respondent, Department of Natural Resources (DNR), was in the process of adopting new Rule 16B-26.14, Florida Administrative Code, which would establish a coastal construction line for Franklin County. Under the proposed rule, a coastal construction control line on Alligator Point would be established, and any excavation or construction activities thereafter on property seaward of the control line would require a permit from DNR, and have to be in conformity with all structural requirements set forth in Rule 168-33.07, Florida Administrative Code. Because the Guiniperos' lot lies on the seaward side of the control line, they were obviously affected by the rule. The rule adoption process was quite lengthy and well publicized. It began in October, 1983 when a public workshop was held in Apalachicola and aerial displays of the control line were placed in the courthouse. Further public hearings were held in Tallahassee in February, March and April, 1984. These hearings were the subject of numerous notices and advertisements in the Florida Administrative Weekly, Tallahassee Democrat, Apalachicola Times, Panama City News Herald, and Franklin County News. Clearly, the agency met all legal requirements in advertising the rule. However, for some reason, neither the Giuniperos or their professional engineer were aware of the pending rule change. Similarly, the Franklin County planner failed to advise them of the imminent rule change even though aerial displays of the proposed line were in the courthouse when the permit was issued. Rule 168-26.14, Florida Administrative Code, was adopted by the Florida Cabinet on April 5, 1984, and eventually became effective on April 30, 1984. As of that date, any construction or excavation work seaward of the control line required DNR to issue a permit unless a dwelling was already "under construction" in which case the project was grandfathered in. The parties agree that petitioners do not fall in this category since the dwelling was not "under construction" within the meaning of DNR rules. A few days before the rule became effective, a DNR engineer met with the Franklin County planner to review all building permits issued since September, 1983 for construction on the seaward side of the control line. The engineer did this so that he could inspect all building sites after the line became effective and determine which, if any, were "under construction" and therefore exempt from DNR permitting requirements. Because of the volume of permits issued to persons seeking to beat the April 30 deadline, and his unfamiliarity with alligator Point, the planner was unable to give the DNR engineer the precise location of petitioners' lot. On or about May 1, 1984, the engineer visited the general locale of petitioners' lot. There was no activity on petitioners' lot, and no permit posted on the site. Accordingly, he assumed a recently completed beach house some 300 feet east of petitioners' lot was actually the Giuniperos' house. Since it was already completed, he merely filed a report the following day indicating that "if the location referenced above is accurate, the structure appeared to be completed at that time." On July 6, 1984, petitioners proceeded to install twenty-three 8" by 8" pilings on their lot at a cost of $1,760. DNR discovered this construction activity a few days later and notified petitioners by telephone that such activity was illegal without a permit. A formal cease and desist order was sent on July 11, 1984, and no activity has taken place since that time. An application for a permit remains in abeyance pending the outcome of this proceeding. The structural requirements of DNR are more stringent than those previously required by Franklin County and FEMA. Indeed, the FEMA guidelines are not a part of a coastal construction regulatory program but are merely minimum standards to meet federal flood insurance criteria. Therefore, while the Guiniperos' proposed dwelling is designed to withstand a windload of 110 miles per hour DNR requires a structure to meet a windload of 140 miles per hour. DNR also recommends that larger and more expensive pilings be used, and that the structure be designed to adequately resist a 100 year return interval storm event. Because the DNR requirements are more stringent, petitioners estimate they will incur total costs of $8,890 just to pull out the old pilings and install larger ones. 1/ Additional costs may be incurred to redesign and build the structure to withstand a wind velocity of 140 miles per hour. By rule, DNR does not grant a waiver of its permit requirements except where a building is already constructed and an applicant desires to make "minor additions" to existing nonconforming structures. The Giuniperos do not qualify for such a waiver.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioners' request for a waiver from the permitting requirements of Rule 16B-33.07 be DENIED. DONE and ORDERED this 11th day of March, 1985, in Tallahassee, Florida. Hearings Hearings DONALD R. ALEXANDER Hearing Officer Division of Administrative The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative this 11th day of March, 1985.
The Issue Is the City of Mexico Beach (the City or Applicant) entitled to the issuance of a joint coastal permit and consent to use of sovereign submerged land for the Mexico Beach Canal (Main Canal) and a municipal flushing outlet adjacent to 8th Street (8th Street outlet)? Those permits would be issued by the Department of Environmental Protection (DEP) in response to DEP Application File No.: 0124938-001JC and DEP Application File No.: 0129039- 001JC, respectively.
Findings Of Fact Petitioners Edmond Blount, Sr.; Edmond Blount, Jr.; and Robert Davenport are residents of the City of Mexico Beach, Florida. As residents they have access to the Main Canal, the public beaches adjacent to the Main Canal, and beaches adjacent to the 8th Street outlet. Edmond Blount, Jr., and Robert Davenport oppose the issuance of any permits by DEP which would allow the City to conduct dredging and the placement of dredge materials associated with the Main Canal. Those Petitioners and Edmond Blount, Sr., oppose the grant of necessary permits by DEP upon the application by the City to conduct occasional maintenance excavation at the 8th Street outlet to alleviate potential damage through erosion to properties adjacent to the 8th Street outlet. The City of Mexico Beach is a municipality in Florida which serves as the local government for that community. The City owns the Main Canal and 8th Street outlet. DEP is an environmental regulator with authority to issue or deny joint coastal permits and to grant or deny consent to use sovereign submerged lands belonging to the State of Florida. The joint coastal permitting authority and right to grant consent to use is pursuant to Chapters 161, 253, and 373, Florida Statutes, and Chapters 18-21 and 62B-49, Florida Administrative Code. In particular, DEP has joint coastal permitting authority upon sovereignty lands in the State of Florida below the mean high waterline (MHWL) of any tidal water of the State. The reference to sovereign land is an association with lands below MHWL held in trust by the State of Florida. The term tidal waters refers to waters in which there is an astronomical effect on the elevation of that water. The Gulf of Mexico which fronts the City is a tidal water of the State of Florida. The MHWL is established along the coastal regions in Florida, to include the Gulf coast that fronts the City. The MHWL is set based upon charting information concerning the local mean high tide, the average height of the high waters, and where this average intersects the land. PERMIT APPLICATION FOR MAIN CANAL On June 30, 1997, the City applied to DEP for a ten-year permit/water quality certification and authorization to use sovereign submerged lands owned by the Board of Trustees of the Internal Improvement Trust Fund (the Trustees), which would allow the City to maintenance dredge the Main Canal entrance and place the dredge material on the beach east of the canal below the water's edge. This task would be accomplished by the use of hydraulic dredging device. In the course of these activities, approximately 660 cubic yards of material would be removed approximately four times a week. The application file number for the requested permit in the Main Canal project was: 0124938-001 JC. The City, through its application, provided a complete and appropriate application with adequate engineering data to support the proposed project. The Main Canal is located in the western part of the City and is partially located in sovereign submerged lands of the State of Florida where the canal intersects the Gulf of Mexico below the MHWL. On January 13, 1998, DEP gave notice of its intent to issue necessary permits for the activities to allow dredging and the placement of fill in association with the Main Canal. More specifically, the hydraulic dredge the City intends to use in the maintenance dredging of the Main Canal is a floating device which excavates the sand from the bottom of the entrance of the Main Canal and pipes the material onto the beach immediately east of the dredge site. The dredging activities may only be conducted in a manner designed to protect the beach-dune system, water quality and habitat for marine turtles. These restrictions in the conduct of the dredging are in accordance with the proposed joint coastal permit. The dredging activity is to remove and deposit clean beach sand that has been transported by coastal processes and deposited in the lee of the jetty within the Main Canal. There is no intent, nor permission under the proposed permit, that would allow disturbance of any sediments more landward of the extent of the canal. The dredging is necessitated because the entrance of the Main Canal slowly fills with sand being transported from west to east along the shoreline. The Main Canal is stabilized on both sides by jetties. The western-most jetty extends further out than the eastern-most jetty. The Main Canal has seawalls along its inside. A recreational area is located on the western side of the Main Canal. The Main Canal is highly utilized for purposes of commerce and recreation. The Main Canal constitutes an economic support for many residents of the City. The Main Canal in proximity to the Gulf and the Gulf itself are not considered outstanding Florida waters or aquatic preserves. The waters in the Main Canal and Gulf are Class III marine waters when considering the parameters for water quality under DEP statutes and rules. Competent evidence was presented concerning water quality sampling and results in the analysis of those samples for fecal coliform bacteria and total coliform bacteria in relation to the Main Canal at its entrance where dredging would take place under the terms of the permit. Some values for fecal coliform and total coliform exceeded the allowable limits for those parameters as envisioned by Section 62-302.530, Florida Administrative Code, as preexisting conditions. However, the dredge operations will not lead to further degradation of the existing Class III marine waters in the Main Canal and degradation of the Gulf. The relatively clean sand being excavated does not contain fines or organics, which, through the dredging and placement of the sand on the beach following the dredging, would contribute to degradation of water quality standards. The activity associated with the dredging and placement of those materials on the beach will not cause a significant adverse impact to the beach-dune system, nor will the transport of sand from west to east along the beach as it presently exists be interrupted by the dredging and placement of the sand. The dredged material is being placed immediately east of the dredge operation avoiding a disruption of the natural processes of transport. The proposed disposal area is located on the beach at least 100 feet east of the canal below the waters edge at approximately minus 0.5NGVD. Finally, the deposit of the sand on the beach contributes to beach stabilization as opposed to depriving the beach of sand. The proposed permit requires that the dredge pipeline be retracted upon a daily basis during marine turtle nesting season from May 1 until October 31 each year. By this limitation in the operation of the dredge pipeline, marine turtles are not hindered in their behavior nor is their habitat unduly disturbed. The placement of the dredged sand on the beach would not be in the dry upland where the turtles would typically nest. The DEP Bureau of Protected Species Management reviewed the permit application for any significant adverse impact on nesting sea turtles and recommends the approval subject to specific conditions such as have been described. The dredging of the sand from the Main Canal and placement of that material on the beach will not cause significant adverse impact to the property of others. The Main Canal project will not create any significant erosion or turbidity. Given the small volume and coarseness of the dredged sand, elevated turbidity levels are not expected. The dredging of material from the mouth of the Main Canal and placement on the adjacent beach does not block lateral access to the beach, because the hydraulic dredge pipeline is placed at the water's edge with a discharge of dredge material being made at the water's edge in the area of the intertidal zone where water comes up to the beach. The exact discharge point is seaward of the area described as the intertidal zone. Given that the project associated with the Main Canal is located in Class III marine waters, it must not be contrary to the public interest. The project is not contrary to the public interest. PERMIT APPLICATION FOR 8TH STREET OUTLET On June 13, 1997, the City applied to DEP for a ten- year permit/water quality certification and authorization to use sovereign submerged lands owned by the Board of Trustees. This would allow the City to conduct occasional excavation of the 8th Street municipal flushing outlet which connects to the Gulf, having in mind the alleviation of potential damage to adjacent beachfront properties. That potential damage would be expected to occur in the instance where there was an uncontrolled breach of the berm surrounding the 8th Street outlet due to high incidence of rainfall, thus eroding adjacent beachfront properties. With the advent of scheduled maintenance, excavation of the outlet that erosion is expected to be deterred. The application file number for the requested permit in the 8th Street outlet project was File No.: 0129039-001 JC. The City, in its application for necessary permits to conduct excavation at the 8th Street outlet, submitted a complete and appropriate application setting forth adequate engineering details. More specifically, the permit application contemplates the removal of approximately 20 to 40 yards of beach sand per excavation, with the material excavated being placed on the beach near the water's edge. The excavation would be approximately 4 to 5 feet wide, 50 feet long, and 2 to 3 feet deep. Ordinarily, the frequency of excavation would be one to two times per month. The excavation practices would be by the use of a backhoe other than in the sea turtle nesting season. While sea turtles are nesting, the plans contemplate excavation by hand by use of a shovel or similar tool. In addition, during the turtle nesting season the application contemplates that the excavation would be done during daylight hours, only twice a month, to reduce potential flooding of marine turtle nests due to a meandering outflow from the outlet. Other than in the marine turtle nesting season the excavation would be done on an "as needed" basis. On March 16, 1998, the DEP gave notice of its intent to issue a permit for the dredging at the 8th Street outlet. The conditions associated with the intended permit for dredging of the 8th Street outlet deter any significant adverse impacts to the beach-dune system. In the area of the 8th Street outlet, a large box culvert runs underneath U.S. 98, the main highway in the city. That highway runs parallel to the beach. Once the water flows through the culvert, it accumulates in the outlet south of the road. In the instance where rainfall is diminished, the flushing outlet does not flow to the Gulf and the beach berm, which accretes seaward of the outlet, traps the water that is being released via the culvert. By contrast, in instances where heavy rainfall occurs, the water in the outlet collects to a point that it begins to flow away from the culvert in the direction of the Gulf. If the beach berm has built up over time, the path of that flow in high incidence of rainfall can encroach on buildings that are adjacent to the culvert on the south side of U.S. 98. When the rainfall is sufficient, and the water begins to flow, it reaches a sufficient velocity to move sand as a bed load. Under those circumstances, when the water strikes a ridged object, like a house foundation, the local water velocity will act to carry away the sand more readily from that location where the house foundation is found, by scouring out the sand near the foundation, undermining the building and risking the collapse of the building onto the beach. In the course of this process the water breaches the beach berm and flows towards the Gulf. In the instance where the berm on the beach has been breached, the water that has been released begins to scour the beach and establish a pattern that can run down the beach roughly parallel to the Gulf for a distance before flowing into the Gulf. By contrast, the controlled release of water from the outlet would cause less of an impact, in that it would create an immediate access through the beach berm to the Gulf without creating the potential for harm to upland property or causing erosion or scouring of dunes and vegetation in beach areas, some of which might contain turtle nests. Unlike the circumstances with high incidence of rainfall where adjacent property is eroded and damaged, the use of controlled maintenance excavation to relieve the outlet would not cause significant and adverse impact to adjacent property owners. The controlled release of the water in the outlet, unlike the natural release of that water in high incidence of rainfall, is more in the interest of the public when considering adverse impacts to property. The introduction of the water in the outlet, and its constituents, onto the beach and its consequences, is no more a problem whether based upon the natural event of high incidence of rainfall or the routine release contemplated by the project. Therefore, the alternative method of releasing the water by use of scheduled excavation is not contrary to the public interest. If anything, the use of periodic excavation to relieve the outlet would limit the breadth of discharge and the amount of discharge. The 8th Street outlet and the Gulf area adjacent to that outlet are not within outstanding Florida waters or aquatic preserves. The project site for the 8th Street outlet and the Gulf are within Class III marine waters. The existing Class III marine water quality parameters for fecal coliform and total coliform when considered in accordance with Rule 62-302.530, Florida Administrative Code, have been exceeded in the 8th Street outlet. This is borne out by test results from samples gathered at the 8th Street outlet presented at hearing. However, as with the circumstance with the Main Canal, the effect of periodic excavation to relieve the outlet will not further degrade state waters found in the outlet. The results of water quality tests performed following sampling that relate to the amount of fecal coliform and total coliform in the Gulf that could be expected at the entrance of the Main Canal and as the discharge of water within the 8th Street outlet enters the Gulf show low values for those parameters. Therefore, it is not anticipated that the release of the water from the 8th Street outlet to the Gulf under controlled conditions contemplated by the permit application would cause a violation of the parameters for fecal coliform and total coliform in the Gulf, the receiving body of water, especially when compared to the existing release of water from the 8th Street outlet to the Gulf in high incidence of rainfall. This finding is also influenced by the fact that the most excessive values for total coliform and fecal coliform in the 8th Street outlet system were found 600 to 800 feet up the water course described as the 8th Street outlet. Similar to the Main Canal, the project contemplated at the 8th Street outlet would not require mitigation before being permitted by DEP. The 8th Street outlet project would not create significant adverse impacts on coastal sediment transport. The DEP Bureau of Protective Species Management reviewed the 8th Street outlet application and recommended approval with specific conditions. Those conditions offer adequate protection to marine turtles and their habitat. The conditions include project excavation that does not create parallel trenches in the sand that inhibit movement on the beach by sea turtles. The 8th Street outlet project will not create significant erosion concerns or turbidity concerns. The 8th Street outlet project does not block lateral beach access to the public, in that the excavation to relieve the outlet on a periodic basis is temporary, that is to say only in effect when the water is being released from the outlet to the Gulf. CONSENT TO USE SOVEREIGN SUBMERGED LANDS The 8th Street outlet project, as well as the Main Canal project, involves sovereignty submerged lands below the MHWL constituted of the beach and ocean bottom. The facts show that the City is entitled to consent of use to work on sovereign submerged lands in the Main Canal and 8th Street outlet projects.
Recommendation Based upon the facts found and the conclusions of law reached, it is RECOMMENDED: That DEP issue a final order granting the City the joint coastal permits and consent to use sovereign submerged lands in accordance with application File Nos.: 0124938-001JC and 0129039-001JC respectively, subject to specific conditions contained therein. DONE AND ENTERED this 10th day of November, 1998, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 1998. COPIES FURNISHED: Edmond Blount, Sr. Post Office Box 13855 Mexico Beach, Florida 32410 Edmond Blount, Jr. Post Office Box 13854 Mexico Beach, Florida 32410 Robert Davenport Post Office Box 13926 Mexico Beach, Florida 32410 Gerard Murnan Post Office Box 13378 Mexico Beach, Florida 32410 Paul G. Komarek, Esquire Daniel and Komarek, Chartered Post Office Box 2547 Panama City, Florida 32402 Ricardo Muratti, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 John McInnis, City Manager City of Mexico Beach Post Office Box 13425 Mexico Beach, Florida 32410 Kathy Carter, Agency Clerk Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact Respondent Pierson is the owner of a parcel of land located at 7 Heilwood Street, Clearwater Beach, Florida. This parcel consists of the North 1/2 of Lot 2 and all of Lot 3 in Block 6, Revised Map of Clearwater Beach, according to the plat thereof as recorded in Plat Book 11, page 5, of the Public Records of Pinellas County, Florida. The westwardly portion of the parcel is beach front property on a coastal barrier island. When the subdivision known as Clearwater Beach Subdivision was platted, fifteen lots were placed in Block 6. The three beachfront lots were smaller in area than the other twelve lots which were uniform in size and shape. However, when Lot 2 was divided and the northern half went to Lot 3 and the southern half to Lot 1, fourteen similar parcels were created in Block 6. Pierson purchased the parcel in question as unimproved property in Clearwater Beach Subdivision in 1962. This was nine years prior to the creation of Coastal Construction Control Lines by the Florida Legislature. The establishment of the Coastal Construction Control Line for Clearwater Beach in 1977, caused building setbacks previously established by the City of Clearwater for this unimproved parcel to become even further restricted. The Coastal Construction Control Line deleted the seaward 5/8ths of the Pierson property on which a building could have been erected previously on Clearwater Beach. Few parcels on this island were impacted as severely as Respondent Pierson's by the creation of the Coastal Construction Control Line because most of these parcels already contained permanent improvements. This parcel remained vacant until Respondent Pierson erected a duplex in 1986. This improvement was constructed according to the Land Development Code in effect at the time with the following exceptions: A variance of zero setback from the Coastal Construction Control Line and a 6 foot height variance to permit construction of a building 31 feet in height were granted by the Board. At the time the variances were granted, Respondent had the option to build either a duplex or a triplex at the site. Respondent seeks to expand this structure and to convert it into a triplex. In order to complete the planned expansion, a variance of 18 feet was requested from the Board to allow construction 7 feet from the Heilwood Street right-of-way. Currently, the Code requires a 25 feet setback from a street right-of-way. In addition, a variance of two feet from the eastward property boundary was requested to allow construction up to 6 feet from this side property line. Code provisions require an 8 feet setback. The existing structure is 6 feet from this side property line. The proposed addition to the current structure would continue with that eastern setback of 6 feet to the north, with an additional 25 feet of structure extending towards Heilwood Street. The expansion of the building to the west would terminate at the Coastal Construction Control Line. The property is zoned RM-20 with a land use plan designation as high density residential developed. The parcel is 95.12 feet in length and 87 feet in width, an area of 8,242.38 square feet. Ordinarily, a parcel with these dimensions is of sufficient size to build the structure proposed by Respondent Pierson without violating the street right-of-way setback and the side property line setback mandated by the Code. In this case, setback variances are required to complete the triplex because of the Coastal Construction Control Line's location on the parcel. In his application for variance, together with evidence presented, Respondent Pierson contends that the variance request arises from a condition unique to the property. The "unique" condition being that he did not build what he now wants to build on the property before the land use restrictions currently in place limited development of the parcel to such an extent. All other lot owners in the locale chose to develop their lots earlier than Respondent did, under less restrictive conditions. As a result, Respondent Pierson's duplex is setback further from Heilwood Street than the other buildings. Deciding when and what to build as a real property improvement is part of real estate ownership. Now that Respondent Pierson wants to change his previous development decision to reflect his current intended property use, he wants the same setback benefits as those acquired by other property owners on Heilwood Street who developed their parcels during past time periods with less restrictive setbacks. The Coastal Construction Control Line and the building setbacks have been placed on the property because of legitimate state and local concerns. A driveway was placed by Respondent Pierson in front of the duplex as it faces the water at the end of a dead-end street. The location of this driveway and the existing setback of the duplex from the road beyond all of the other property setbacks on this street, make this portion of Respondent's property a convenient area for traveling cars to turn around or to park while using the beach. Respondent Pierson contends that the variances he has requested will discourage the use of his land as a turnaround area, because it would be clear to those attempting to use his driveway that they were trespassing. His primary interest is to maintain his private interests in the property which should go beyond those currently enjoyed by the public. It is a desire for these rights that control his request for the variances as opposed to a desire to secure a greater financial return. The variances granted by the Board will not be materially detrimental or injurious to the Vasilaros property. The variances, however, could impair the present value of the Petitioner's property because the expansion of the Pierson duplex into a triplex would block a large amount of the Gulf view the Vasilaros building was designed to acquire. Petitioners' lot is in the same subdivision as the parcel owned by Respondent Pierson. Even before the Vasilaros lot was improved, the landowners knew or should have known that another parcel separated this lot from the beach. Respondent Pierson is under no statutory or contractual obligation to restrict his land use to allow Petitioners a view. The variances granted would result in a nonconforming building. All of the other structures in the immediate vicinity are nonconforming because these structures were built before current zoning regulations were adopted. Respondent Pierson seeks to blend with the neighborhood on the street and to have the same nonconforming advantages. Respondent Pierson could convert the current structure into a triplex. The apartments would be much smaller than the ones contemplated in the proposed plan. He seeks to create the third apartment for his own retirement home. On August 22, 1991, the Board granted a variance of 15 feet to permit construction of a triplex 10 feet from a street right-of-way and a second variance of 2 feet to allow construction up to 6 feet from the side property line to the south because the Board found that the applicant has substantially met all the standards for approval, as listed in Section 137.012(d) of the Land Development Code. More specifically, the Board found: a) The variances arise from a condition which is unique to the property and not caused by the applicant; b) The Coastal Construction Control Line restricts the use of two- thirds of the property, allowing only 19 percent use, c) The particular physical surroundings, shape, or topographical conditions involved and the strict application of the provisions of this Development Code would result in unnecessary hardship upon the applicant; and d) The variances granted are the minimum necessary to overcome the hardship created by the minimal use of the property subject to the requisite building permit being obtained within six months from the date of this public hearing.
Recommendation Accordingly, it is ORDERED that the variances granted by the Board be set aside and the application for the variances submitted be denied. DONE and ENTERED this 11th day of February, 1992, in Tallahassee, Leon County, Florida. COPIES FURNISHED: JOHN T BLAKELY ESQ PO BOX 1368 CLEARWATER FL 34617 GEORGE W GREER ESQ 600 CLEVELAND ST - STE 685 CLEARWATER FL 34616 MILES LANCE ESQ PO BOX 4748 CLEARWATER FL 34618 CINDIE GOUDEAU/CITY CLERK CITY OF CLEARWATER PO BOX 4748 CLEARWATER FL 34618 MICHAEL WRIGHT/CITY MANAGER CITY OF CLEARWATER 112 S OSCEOLA AVE CLEARWATER FL 34618 VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of February, 1992.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: In April of 1979, H.C. Green and Joe Garrott (hereinafter referred to as "applicants") filed an application with the Department of Environmental Regulation (hereinafter referred to as "DER") for a permit to construct nine stormwater outfall pipes and three culverts and to realign an existing drainage ditch approximately 150 to 200 feet in length. The project site is located immediately east of the Braden River and north of State Road 70 in Manatee County. The site is to be utilized as a travel trailer park, with some 500 trailer spaces to be available. The project for which a permit is sought involves dredging to relocate an existing drainage ditch in order to straighten out the water course and permit continuity. It also involves the filling of the existing ditch and the filling necessary for the three road crossings. The applicants provided DER with "notice of new stormwater discharge" and DER advised the applicants with the proposed discharge system did not require a stormwater license. Upon review of the proposed mainland project, DER gave notice of its intent to issue a permit to construct nine stormwater outfall pipes and three culverts and to realign an existing drainage ditch. The proposed issuance of the permit was conditioned with requirements relating to the grading of the side slopes of the realigned ditch and the sodding, seeding and mulching of all exposed ground immediately after the completion of grading. The petitioner is the owner of approximately 35 acres of land south of State Road 70, which land is utilized as a mobile home park with about forty mobile homes, a fish camp and a boat rental business. As relevant to the permitting process of DER, petitioner's concerns regarding the mainland project center around pollution of the Braden River. His concerns regarding the island project (see paragraph 5 below) are pollution and the elimination of manatee, eagles and alligators. Construction of the stormwater outfall pipes, the culverts and the realignment of the existing ditch will not reduce the quality of the receiving body of water (the Braden River) below the classification designated for it (Class III). The project will not result in a significant impact upon water quality. Oyster beds, nursery grounds, marine soils and marine life will not be destroyed by the project. The project will not result in a harmful obstruction to navigation or increased erosion and shoaling of channels. The mainland portion of the applicant's property is abutted by an island consisting of approximately 10.4 acres. About one-half of the island is vegetated by blackrush or juncus roemerianus. In order to provide the temporary residents of the travel trailer park with access to the island for recreational purposes, the applicants propose to construct approximately 14,000 square feet of wooden walkways, bridges and boat docks. The project calls for the construction of mostly five feet wide walkways along the blackbrush fringes of the island, several wider bridges, two footbridges across small tidal creeks and five or six thirty-feet long and three-feet wide finger piers. The walkways, bridges, and piers are to be supported by pilings six or eight inches in diameter. The construction will range in elevation between eight and fourteen feet above mean sea level. DER issued its notice of intent to issue a permit for the island project with the conditions that turbidity screens be utilized during construction, that mats be used in blackrush and vegetated wetland areas during construction, that destroyed wetland vegetation be replanted, that docks only be used for the tie-up of resident use nonmotorized craft and that the area be posted use of the docking area by nonresidents and motorized craft. The applicants are willing to comply with those conditions and have stipulated that the docks will be used solely for the mooring of canoes, rowboats, paddleboats and similar nonmotorized craft, that the area will be so posted and that boat launching devices will not be available at the site. During the dock construction, the equipment utilized will be placed on mats. This procedure will serve to retain the roots of vegetation which might otherwise be destroyed by the placement of heavy equipment in the construction area. There will be a temporary increase in turbidity during construction, but turbidity screens will confine siltation to the construction area. The effect from construction of the docks, bridges and walkways will be minimal and short- term. The applicants are willing to restore any permanent damage caused by the construction activities. Normal use of canoes, rowboats or paddleboats in the waters surrounding the island would not create turbidity violations. The use of nonmotorized craft will prevent harm to any manatees that may be found in the area. The docks and walkways will cover less than 0.3 acres of blackrush. The only long-term adverse impacts from the proposed project are the elimination of bottom lands where the six to eight inch pilings are located and the possible shading of the juncus grass by the docks which could reduce the reproduction capacity of the juncus. The boardwalks or walkways have been planned in relation to the sun angle to reduce the shading of juncus. The proposed construction of walkways. bridges and finger piers will not have a significant long-term adverse impact upon the waters of the Braden River. Except for the location where the pilings are placed, there will be no long-term damage to benthic organisms. The short-term localized effect from construction will be minimal. The water quality standards for Class III waters will not be violated and there will be no harmful obstruction to or alterations of the natural flow of navigable waters. For purposes of these permit proceedings, the applicants have adduced sufficient evidence in the form of surveys, deeds, aerial photographs, testimony, and an affidavit of ownership to illustrate that they are the record owners of the property for which permits are being sought.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that: the applicant's application to construct nine stormwater outfall pipes and three culverts and to realign an existing drainage ditch (Case No. 79-2210) be GRANTED; the applicant's applications to construct approximately 14,000 square feet of walkways, bridges and docks (Case No. 80-175) be granted. the conditions listed in the notices of intent to issue the two permits be incorporated in the issued permits; and the petitions filed in Case Nos. 79-2210 and 80-175 be DISMISSED Respectfully submitted and entered this 6th day of October, 1980, in Tallahassee, Florida. DIANE E. TREMOR Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of October, 1980. COPIES FURNISHED: Ernest S. Marshall 625 9th Street West Bradenton, Florida 33505 David M. Levin and Ray Allen Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 W. Whitesell Wood, Whitesell and Karp, P.A. 3100 S. Tamiami Trail Sarasota, Florida 33579 Honorable Jacob Varn Secretary, Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made. Chandler sought exemption from permitting requirement from the Department to perform certain dredging in two artificial dead-end canals located in Placida Point Subdivision (formerly Porto-Fino Subdivision), Charlotte County, Florida. The Department has denied the exemption on the basis that "the proposed work indicates that it is not for maintenance purposes, and therefore, it does not fit the maintenance exemption". The dredging proposed by Chandler would remove the existing earthen plugs between Coral Creek (an adjacent creek) and the two canals. Coral Creek is a natural body of water and is waters of the State. The two canals were excavated (constructed) during the latter part of 1969 and early 1970 (before April 1970). Although no original design specifications were offered into evidence, there is sufficient competent evidence to show that at the time the canals were constructed earthen plugs were left between the canals and Coral Creek which restricted the water exchange between the canals and Coral Creek. The exchange of water apparently occurred at mean high water, and navigation, if any, was restricted to small boats. Porto-Fino Realty Co., Inc., (Porto-Fino) developed the Porto-Fino Subdivision in 1971, and in early 1971 applied to the Board of Trustees of the Internal Improvement Trust Fund (Board) for a dredge permit to connect the certain existing canals, which included the canals in question, to Coral Creek. As part of the application review, a site inspection was made, and it was found that the earthen plugs left between Coral Creek and the canals when they were constructed allowed water to ebb and flow during periods of high tide. As a result of this site inspection, it was recommended that before any further consideration be given the permit application, that the applicant be advised that the canals had to be adequately diked. The record is not clear on whether this permit was granted, but apparently it was not because this subject was raised again in 1974 with Lou Fusz Motor Company, the present owner of Porto-Fino Subdivision, by the Board and the Department of Army, Corps of Engineers (Corps). Apparently, it was determined by the Board, and possibly by the Corps, that the plugs had washed out and needed to be repaired. In 1975, at the request of the Board, the earthen plugs were repaired and culverts placed in the plugs to allow flushing of the canals. The earthen plugs are presently in existence in the mouth of the canals, and are colonized by mangroves, Brazilian pepper and Australian pine. The mangroves are mature trees 10-15 feet in height, and approximately 10-15 years old. The plugs do not show any signs of any recent dredging in or around the mouths of the canals. The plugs form a barrier to navigation between the canals and Coral Creek. The canals have not been used for navigational access to Coral Creek since they were repaired in 1975. The canals have not been previously dredged to maintain navigational access for boat traffic to Coral Creek, and are not presently used for navigational access to Coral Creek. There is sufficient competent substantial evidence to establish facts to show that the earthen plugs, as they presently exist, are man-made barriers that separated the two canals from Coral Creek. There is insufficient evidence to show that the repair of the earthen plugs in 1975 by the developer was illegal. The repair of the earthen plugs in 1975 by the developer was necessary because the original plugs had not been properly constructed or had washed out over the period of years. Coral Creek and the canals in question are surface waters of the state as defined in Rule 17-312.030(2), Florida Administrative Code. Canals which are used for navigation have to be periodically dredged to maintain navigational access. There is sufficient competent substantial evidence to establish facts to show that the dredging proposed by Chandler would not be "maintenance dredging" as contemplated by Rule 17-312.050(1)(e), Florida Administrative Code.
The Issue Whether a vessel is owned by Petitioner, Jonathan Selby, and is a “derelict vessel” within the meaning of section 823.11(1)(b)1., Florida Statutes (2020), and City of Riviera Beach Derelict Vessel Policy, No. 4.2., and therefore, subject to the provisions of section 705.103, Florida Statutes.
Findings Of Fact Petitioner is the owner of the 1987 Wellcraft marine vessel, Florida Boat Registration Number FL5632FV (HIN: WELC24661687)(the “vessel”), that sunk on the north side of the Riviera Beach Marina. Riviera Beach Marina is in the City of Riviera Beach. The vessel broke free from a mooring in a storm and is now in a wrecked, junked, or substantially dismantled condition. Therefore, the vessel is a “derelict vessel” as defined in section 823.11(1)(b)1., and the City of Riviera Beach Derelict Vessel Policy, No. 4.2. There was no evidence presented that the vessel became derelict because of the negligence of Petitioner.
The Issue Whether Appellant should be granted variances in setback lines to allow construction of a retail store on a lot at the northeast corner of the intersection of Papaya Street and Gulfview Boulevard on Clearwater Beach, Florida.
Findings Of Fact Appellant purchased the property at 24 Papaya Street in Clearwater Beach (lots 29-32, inclusive, Clearwater Beach Park) approximately two years ago. The only inquiry made of zoning officials regarding use of the property, other than zoning, was what part of the lot could be covered with a building. This lot is nearly square but is nonstandard in both width and depth to construct a building without a variance. These variances were granted at the initial variance request heard in December 1992. Appellant proposes to construct a retail store containing some 4700 square feet of floor space. To erect a building of this size on the lot a variance of 3 percent to allow 48 percent coverage of the lot was required. This variance was granted by the Board; however, without the variances in setback on the four sides of the parcel, this 3 percent variance in lot coverage is useless to the Appellant. This lot currently has four old buildings with a combined total of 2723 square feet. The largest is nearly square and contains approximately 1120 square feet. There are rental apartments in some, if not all, of these buildings. It is proposed to remove these buildings, if the permit to construct the proposed store is granted. The existing buildings are nonconforming and three are between 2 to 4 feet of the lot lines on the north, east and south sides of the property. The property is zoned CR-28 (Resort Commercial) and the proposed use is authorized in this zoning classification. The plans are and the applicant proposes to provide the required parking spaces for this establishment under the proposed structure. Appellant presented evidence that adjacent properties were built to the lot line with no setback. Most of these buildings were erected before setbacks were required in this area and are grandfathered in so long as the structures remain. In 1986 the Development Code Adjustment Board granted setback variances on all four sides of the property across Gulfview Boulevard from Appellant's property. That parcel was also nonstandard and even smaller than the parcel of land here involved. Because of the size of the property the Board found a hardship existed and without the requested variances the property had little value. One significant difference in these two parcels is that one had been owned by one family since 1932 while the instant parcel was required circa 1990. Further, evidence was presented that being one block east of Mandalay Avenue, the main traveled beach road, the proposed structure needs to be seen from Mandalay to attract pedestrian traffic. The building just west of Appellant's lot is built to the lot line and partially blocks the view of Appellant's property from Mandalay. The use of the property sought here is consistent with the Comprehensive Land Use Plan and no protest to the granting of the variances requested were received from adjacent property owners. Razing the existing structures and erecting the proposed store in which the applicant intends to sell upscale beach wear would improve the appearance of the neighborhood.
The Issue The ultimate issues to be resolved in this proceeding are whether the Florida Land and Water Adjudicatory Commission should grant or deny permission to Key Large Investors, Inc., to develop and what, if any, conditions and restrictions should be attached to development approval or denial. The Department of Community Affairs contends that Monroe County improperly approved the preliminary development plan and final development plan because the plans did not comply with the requirements of local ordinances and rules of the Florida Administration Commission and that the development plans were inconsistent with the Monroe County Comprehensive Plan. Key Large Investors, Inc., contends that the appeal should be dismissed because it was not filed within the required time limits, that the Department of Community Affairs is estopped from maintaining the appeal, and that the development comports with local and state criteria. The Florida Audubon Society agrees with the contentions of the Department of Community Affairs, and Monroe County agrees with the contentions of Key Largo Investors, Inc.
Findings Of Fact Key Largo Investors, Inc. ("KLI" hereafter), owns approximately 129.2 acres of land in North Key Largo, Monroe County, Florida. The property is approximately three miles south of "Card Sound Road" and 5.5 miles north of U.S. Highway 1. It is divided by State Road 905; 84.5 acres of the parcel lying to the east of the highway, and 44.7 acres to the west. The property is within the Florida Keys Area of Critical State Concern. KLI is proposing to develop a residential and marina project on the property to be known as "Carysfort Yacht Club." The Department of Community Affairs is the state land planning agency designated to undertake statewide comprehensive planning. Members of the Florida Audubon Society participate in fishing, nature study, scientific research, and other such activities in the immediate vicinity of the proposed project. Members of the Society believe that the proposed development would adversely affect their interests by eliminating, disturbing, or otherwise adversely affecting their ability to engage in such activities. The proposed project lies within Monroe County, Florida. Monroe County is the local government agency which issued the development order respecting the proposed development. KLI filed an application with Monroe County for preliminary development plan approval for the Carysfort Yacht Club The staff of the Monroe County Planning and Zoning Board reviewed the plans and other submissions, and the Board conducted a public hearing on February 26, 1981. The Board took no action at that time, but continued the matter until a meeting conducted on March 27, 1981, so that KLI could provide additional information. On March 27, the matter was again continued. A public hearing was conducted by the Planning and Zoning Board on April 24, 1981. In considering the application for preliminary development approval, the Planning and Zoning Board had KLI's application before it. The application included an "Environmental Designation Survey," a "Community Impact Statement," and additional documentation. At its April 24, 1981, meeting, the Planning and Zoning Board approved the preliminary development plan. The only condition imposed by the Board was a requirement that KLI back fill a marina that had been dredged on the site by a prior owner. The Board's order approving the preliminary development plan was never formally transmitted to the Department of Community Affairs. Personnel of the Department were aware of the decision, but had not been formally advised of it. KLI applied to the Monroe County Planning and Zoning Board for final development plan approval for Phase 1A of the proposed project. The Zoning Board met on February 25, 1982, and approved the plans through its Resolution MD 81-3-19. On March 9, 1982, a copy of this order was transmitted to the Department of Community Affairs. In accordance with the Monroe County Code, the Florida Keys Citizens Coalition appealed the Zoning Board order to the County Commission. On or about August 9, 1982, the County Commission denied the Coalition's appeal. Reconsideration was requested and denied on or about August 23, 1982. On September 24, 1982, the Department of Community Affairs filed an appeal with the Florida Land and Water Adjudicatory Commission. These proceedings ensued. The preliminary development plans initially submitted to the Monroe County Planning and Zoning Board provided for approximately 700 dwelling units on both sides of State Road 905. While it is not clear from the documents, it appears that the Planning and Zoning Board intended to approve only those portions of the preliminary development plans that provided for development on the east side of the roadway. KLI has, for now, abandoned plans to develop on the west side of the roadway. The plans provide for construction of a total of 512 dwelling units on the 84.5 acres lying to the east of State Road 905. KLI is proposing to develop the project in three stages -- 203 dwelling units would be constructed during Phase 1, 188 units during Phase 2, and 121 units during Phase 3. In its application for final development plan approval which generated this proceeding, KLI is seeking approval to develop a substage of Phase 1, which it has designated Phase 1A. The KLI property which lies to the east of State Road 905 borders on the Atlantic Ocean. The land had been cleared and partially developed before KLI purchased it. A harbor and an upland lake had been dredged. In Phase 1A of the development, KLI is proposing to construct 31 dwelling units along the Atlantic Ocean adjacent to the harbor. The plans also provide for constructing roadways and parking facilities, drainage structures, sewage treatment structures, a water distribution system, and recreational amenities. Neither the preliminary development plans nor the final development plans for Phase 1A explicitly provide that the developer will bear the cost of the infrastructure (roadways, water distribution systems, wastewater treatment facilities, and recreational amenities) of the development. The development plans, however, appear to assume that the developer would maintain these costs. At the time that KLI purchased this property, the portion of the property to the west of State Road 905 was dominated by a native hardwood hammock. Approximately 8 acres of the property to the east of State Road 905 were dominated by such a hammock. KLI, or someone acting on its behalf, illegally cleared a portion of the hammock on the west of State Road 905. It will take more than 10 years for the hardwood hammock to reestablish itself completely, but that process is now occurring. Of the approximately 8 acres of hardwood hammock that remain on the east of State Road 905, KLI proposes to ultimately clear all but approximately 1 1/2 to 2 acres. That remaining hammock would be divided by an access road. It does not appear that clearing the hardwood hammock on the east side of State Road 905 is a necessary portion of Phase 1A of the development. There are two small wetland communities on the site to the east of State Road 905 which KLI proposes to preserve in a natural, although diked, condition. Hardwood hammocks such as exist in the Florida Keys Area of Critical State Concern are unique in North America. There is a long history of these terrestrial, botanical communities being diminished. Only a small portion of hardwood hammock area that was originally in the Keys remains. The finest examples of these communities that remain in the Florida Keys, and indeed in North America, are on Key Largo. Such communities serve numerous beneficial and environmental functions. They serve to retain soils, limit discharge of pollutants into surrounding water bodies, support wildlife communities, and protect wetlands from upland areas. Preservation of hardwood hammocks is aesthetically important, but is also important to protecting the environment of the Keys. The hammock areas provide food and shelter for a wide variety of animals, birds, and plants. At least 14 species of endangered, threatened, or rare species or species of special concern were observed on the project site. In addition, 7 species of birds that are either threatened, rare, or species of special concern; and 2 species of reptiles that are threatened are known to make use of the site for habitat. The portion of the property to the west of State Road 905 forms a part of the very limited habitat that exists for crocodiles in North America. Development of the KLI property can be accomplished in such a manner as to minimally impact the important hardwood hammock and wetland areas. KLI does propose to leave wetland areas undisturbed. If the hardwood hammocks were also left undisturbed, threatened and endangered wildlife species could continue to use the site as habitat, and the various beneficent environmental functions that hardwood hammocks perform would not be KLIminated. To accomplish these ends, the portion of the property to the west of State Road 905 should not be developed. The hardwood hammock areas that have been illegally cleared should be allowed and encouraged to reestablish themselves. The hardwood hammock areas that still exist to the east of State Road 905 should not be disturbed. Roadways and other structures should be reconfigured so as to not cross the hardwood hammock areas, and they should not be cleared. The harbor and upland lake that presently exist on the KLI site were constructed prior to KLI purchasing the site. The harbor was constructed in such a manner -- it is much too deep -- that it causes adverse water quality consequences in surrounding waters. As a condition for receiving approval of its preliminary development plans, KLI agreed to back fill the marina so that adverse water quality impacts would be reduced. KLI has pursued a permit to accomplish this operation from the Department of Environmental Regulation. The permit has been issued. If the back filling of the marina is not accomplished in conjunction with the proposed development, the adverse water quality consequences of the marina will be increased because more boat traffic will be brought to the marina as a result of development. As a part of its overall development plans, KLI proposes to construct docks in the presently existing upland lake and to provide access for boats docked in the lake to the harbor through some sort of tram system. The developer also proposes to construct two additional upland lakes on the east side of State Road 905. These construction activities are not a part of Phase 1A of the proposed development. Utilizing the present upland lake as a docking facility and constructing two new upland lakes is likely to have adverse water quality consequences. Even if properly vegetated, it would be difficult to maintain good water quality in the lakes. water in the lakes interacts with surrounding water bodies through groundwater percolation. Therefore, surrounding water bodies and groundwater in the area are likely to be adversely impacted. The preliminary development plans do not include an explanation of how water quality in these upland lakes will be maintained. Without such assurance being provided, development of the upland lakes should not be approved. KLI has plans to make a considerable expenditure to revegetate developed areas. KLI has told local zoning officials that it will revegetate the area with native species so that minimal fertilization will be required and so that the character of the area will be maintained. While there have been such statements made, it does not appear that any clear requirement to that effect has been imposed on KLI. It is appropriate that KLI's revegetation plans be required to utilize native vegetational species. KLI has invested considerable sums of money in obtaining the property and in paying for professional engineering, architectural, and legal services. After Monroe County approved its preliminary development plans, KLI changed its financing arrangements in order to obtain additional money for planning and initial development efforts. The change in financing arrangements was less advantageous to KLI from the perspective of KLI backing out of the project if for any reason development does not occur. It appears that the decision to restructure the financing was made in part based upon a statement made by an attorney who worked for Monroe County. There is no evidence from which it could be concluded that any official of the Department of Community Affairs or of the Florida Land and Water Adjudicatory Commission made any representation of any kind to KLI or any of its representatives, neither does it appear that the attorney had actual or apparent authority to bind even Monroe County to any course of conduct. It does not appear that the development proposed by KLI would adversely impact the provision of government services or require that any public facilities be expanded. Local officials appear assured that presently existing roadways, solid waste facilities, freshwater supplies, schools, and recreational facilities will not be overburdened as a result of the development. No evidence was presented at the hearing from which it could be concluded that the proposed project, either itself or in combination with other proposed projects, would unduly burden such public facilities. The Department of Community Affairs has asserted that the procedures followed by the Monroe County Planning and Zoning Board and by the Board of County Commissioners of Monroe County do not comport with requirements of law. To the `extent that any such failures have been established, there is no evidence from which it could be concluded that either the fairness of the proceedings or the correctness of the action taken by local government officials was in any way impaired by the errors. It does appear that all persons who wished to address the local zoning board and the local board of county commissioners were not allowed as much time to make presentations as they desired. It does not, however, appear that local officials prevented anyone from making presentations about the proposed project. The Department has asserted that the proposed development could adversely impact the John Pennekamp recreation area, which is located nearby. It does appear that the project would generate more boating activity in the region and that boating activity is potentially injurious to the dKLIcate reef ecosystems located underwater at Pennekamp. Increased boating activity at Pennekamp is being generated from numerous sources, including from the recreation area itself. Additional activity as a result of the proposed project would be negligible. Monroe County has adopted its Ordinance No. 21-1975, which pertains to the regulation of major development projects in Monroe County. The ordinance has been codified into Article VII (Sections 6-221 through 6-245) of the Monroe County Code. The County has also adopted a comprehensive plan which includes provisions relating to preservation of beaches and shorKLInes, and trees and vegetation. The Florida Administration Commission has adopted rules relating to developments in the Florida Keys Area of Critical State Concern. See: Rules 27F-8 through 27F-14, Florida Administrative Code.
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.
Findings Of Fact The Petitioners are, and at all times material hereto were, owners of residential real property adjoining the site of the proposed construction to the northwest. The City of Cape Coral is, and at all times material hereto was, the applicant for the permit from the Department of Environmental Regulation for the construction of the proposed project, which is a public boat ramp. This boat ramp is located within the corporate limits of the City of Cape Coral. The Department of Environmental Regulation is, and at all times material hereto was, the agency of the State of Florida which has the authority to issue permits for dredging, filling or other activities of a similar nature to include construction of boat ramps on the shores or banks of navigable waterways of the state. The Caloosahatchee River is a navigable, Class III waterway of the State of Florida. Lands covered by the waters of the Caloosahatchee River at the location of the proposed project are submerged lands of the State of Florida. The City applied to the Department on March 27, 1980, for a permit to construct a boat ramp on the Caloosahatchee River at the Cape Coral Yacht Club. A boat ramp currently is located at the site of the proposed project. The existing ramp was initially partially constructed in 1964, and subsequently a seawall was removed and the two existing seawalls projecting into the water were constructed in 1969. The City's application was initially incomplete, lacking evidence of approval by the City Council. At the request of the Department, the City submitted additional information. The application as originally proposed contemplated dredging waterward of the mean high water line at the proposed project site. The dredged material was to be placed along a beach area adjacent to the proposed boat ramp, and the spoil would have projected waterward of the mean high water line. The proposed project was revised in September, 1980, to delete placing the dredged material on the adjacent beach. The revised project would retain the dredged material landward on the mean high water line until it had dried, at which time it would be removed from the site. After the dredging described above has been completed, the revised project calls for the construction of a concrete boat ramp 42 feet wide and 58 feet long extending approximately 28 feet waterward of the mean high water line of the Caloosahatchee River. In addition, three timber poling walkways at the sides of and in the middle of the boat ramp will be constructed extending waterward of the mean high water line. On May 10, 1980, Dan Garlick, an employee of the Department, conducted a Permit Application Appraisal and concluded the project would have an insignificant impact on biological resources or water quality, and would comply with Chapters 17-3 and 17-4, Florida Administrative Code. Garlick recommended approval of the project. David Key, another employee of the Department, conducted an on-site investigation and expressed concurrence with the findings contained in Garlick's report. Key also noted that no adverse impact on navigation was anticipated as a result of the project. On July 1, 1980, the National Marine Fisheries Service and US Fish and Wildlife Service investigated the proposed project. These federal agencies had no objection to the proposed boat ramp or the dredging aspects of the proposed project. These agencies had no objection to the proposed spoil basis located in the upland area of the site required to dry the dredged material. These agencies objected only to placement of the dredged material on the adjoining beach, which proposal was deleted in the City's revised plan. Petitioners introduced no expert testimony relating to the effects of the proposed project on water quality, marine resources or navigation. Lay testimony was received regarding conditions around the site of the existing boat ramp. Garbage, dead fish and flotsam accumulate at or near the site in the water and on the land. The existing seawalls extending perpendicular from the shore prevent matter in the water from being flushed by the current and tides. In the proposed project the seawall to the right of the existing boat ramp would not be removed. Prior to January, 1981, the existing ramp site was not regularly cleaned by the City. Since that date the area has been cleaned regularly; however, after weekends when the facility is most heavily used there are large quantities of refuse and garbage around the site. The City has requested and received permission from and payment has been made to the Department of Natural Resources for use of sovereignty submerged lands and the removal of 215 cubic yards of fill. After a review of the revised application, the Department gave notice of its intent to issue a permit for the proposed project by letter dated November 10, 1980. The Department based its intent to issue on a determination that the project would not adversely affect navigation, marine resources or water quality, provided the conditions set in the letter were met. The Department's Exhibit 2 is the only documentation presented by the City reflecting the City Council's action on the application. Exhibit 2 contains no findings by the local government that the proposed project would not violate any statute, zoning or ordinances; makes no findings that the project would present no harmful or increased erosion, shoaling of channels or stagnation of waters; and contains no findings that no material injury or monetary damage will result to adjoining land. The Petitioner's Exhibit 1, Minutes of the City Council for the City of Cape Coral Meeting of June 18, 1980, does not reflect that the final reports on the ecological effects of the proposed project were read into the record, and does not reflect that those reports were duly considered by the Council. It was at this meeting that final action on the application for permitting of the proposed project was presumably taken. However, the motion approved at that meeting did not authorize approval of the proposed project nor issuance of the permit. The motion empowered the Mayor to write a letter expressing approval. This motion presumable resulted in the letter of June 17, 1980, the Department's Exhibit 2, which was signed by the City Manager and not the Mayor.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the agency head withhold final action on the application for a reasonable period of time to permit the applicant to cure the procedural defects. Upon curing the procedural defects, the Hearing Officer would recommend issuance of the permits originally requested. DONE and ORDERED this 12th day of June, 1981, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 1981. COPIES FURNISHED: Daniel Sasso, Esquire Post Office Box 1422 1413 Cape Coral Parkway Cape Coral, Florida 33904 Richard Roosa, Esquire 1714 Cape Coral Parkway Post Office Box 535 Cape Coral, Florida 33904 Paul R. Ezatoff, Jr., Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION ERICH SCHLACHTA and ESTER SCHLACHTA, husband and wife, Petitioner, vs. CASE NO. 80-2258 CITY OF CAPE CORAL, PARKS AND RECREATION DEPARTMENT and STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION, Respondent. /
