The Issue The issue in this case is whether the Petition to Establish Rule and the Amended Petition to Establish Rule (the Petition) should be granted.
Findings Of Fact The Petitioner, Centrex Homes, is a Nevada General Partnership which owns or has authority over the property proposed for establishment of the state created District. Clay County is the affected local general purpose government, a political subdivision of Florida, within whose jurisdiction in the unincorporated area of the county the proposed land is located. The Petition proposes the establishment by rule of Fleming Island CDD on certain proposed real property in the unincorporated area of Clay County. (The uniform statutory charter for all established community development districts (CDDs) is found in Sections 190.006 through 190.046, Florida Statutes (Supp. 1998), as amended by Chapter 99-378, Laws of Florida (1999). See Conclusions, infra.) The proposed land to be served by Fleming Island CDD consists of approximately 1,580 acres bounded on the north and west by vacant property; on the east by U.S. Highway 17, Fleming Island Estates and the St. Johns River; on the southwest by Black Creek; and on the south by Black Creek and the St. Johns River. A map showing the location of the land areas to be served by the CDD was attached as Petitioner's Exhibit No. 1 to the Petition. As proposed, Fleming Island CDD contains no enclaves; the land is contiguous and will be separated only by roads, streets, or other similar, small barriers. The Petition alleges that the metes and bounds legal description of the property is contained in Petition Exhibit No. 2. The Petition Exhibit Nos. 3, 4, and 5 constitute documentation that the owners of all the real property proposed to be included in Fleming Island CDD have given written consent to the establishment of the CDD on the proposed property. The Petition names the five persons (revised in the Amended Petition) to serve on the initial Board of Supervisors upon establishment of the CDD by rule. The Petition identifies and depicts in Petition Exhibit No. 6 proposed land uses within the previously-approved DRI. The Petition identifies the DRI development order in Petition Exhibit No. 7. The Petition identifies and depicts in Petition Exhibit No. 8 the main trunk waterlines, sewer interceptors, and outfalls on the property proposed to be served by the CDD. The Petition sets forth in Petition Exhibit No. 9 (revised in the Amended Petition) the proposed timetable and schedule of estimated costs for the construction of the proposed facilities. The Petition alleges and Petitioner's Exhibit No. 2 admitted at the hearing demonstrates that the Clay County Local Government Comprehensive Plan is an effective local government comprehensive plan which is in compliance with state law. The Petition also alleges that the Clay County future land use map (FLUM) designates the land to be within Fleming Island CDD. Petition Exhibit No. 11 is a Statement of Estimated Regulatory Costs. The Petitioner paid $15,000 to Clay County for the required filing and processing fees prior to filing the Petition on April 30, 1999. Based on the evidence, all statements contained within the Petition are found to be true and correct. See pre-filed and oral testimony of Gary L. Moyer; testimony of Petitioner's land use planner, Susan Fraser, AICP; and testimony of Petitioner's business expert, William J. Rizzetta. The underlying community development anticipated to be served by the CDD is described in Section 1.0 of the Statement of Estimated Regulatory Costs at Petition Exhibit No. 11 and in the testimony of Gary L. Moyer. It will be consistent with and similar to the adjacent development. Development in Fleming Island CDD is to proceed under the development order for development of regional impact (DRI). The evidence, especially the testimony of Susan Fraser (AICP), indicates that establishment of Fleming Island CDD will not be inconsistent with any applicable element or portion of the state comprehensive plan or of the Clay County Comprehensive Plan. There was no evidence to the contrary. The evidence indicates that the area of land within the proposed CDD is of sufficient size, is sufficiently compact, and sufficiently contiguous to be developable as one, functional, interrelated community. There was no evidence to the contrary. The evidence indicates that the CDD is the best alternative available for delivering community development services and facilities (including recreational facilities) to the area that will be served by the CDD. There was no evidence to the contrary. The evidence indicates that the CDD's services and facilities will not be incompatible with the capacity and uses of existing local and regional community development services and facilities. There was no evidence to the contrary. The evidence was that the area to be served by Fleming Island CDD is amenable to separate special-district government. There was no evidence to the contrary. Clay County also held a public hearing on the Petition, which resulted in the County's adoption of a Resolution 99-57 supporting the Petition and establishment of the Fleming Island CDD.
Conclusions On October 2, 1999, a local public hearing was held in this case in Green Cove Springs, Clay County, Florida, before Don W. Davis, Administrative Law Judge (ALJ), Division of Administrative Hearings, under the authority of Section 190.005(1)(d), Florida Statutes (Supp. 1998).
The Issue The issue in this case is whether the Florida Land and Water Adjudicatory Commission should promulgate a rule establishing the Fiddler's Creek Community Development District.
The Issue The issue is whether the Petition to Amend the Boundaries of the Crossings at Fleming Island Community Development District (Petition) meets the applicable criteria set forth in Chapter 190, Florida Statutes (2007)1, and Florida Administrative Code Rule Chapter 42-1. The purpose of the local public hearing was to gather information in anticipation of quasi-legislative rulemaking by the Florida Land and Water Adjudicatory Commission (Commission).
The Issue Under Section 9.5-540(b) of the LDRs, the issue on this appeal is whether the Planning Commission's decision should be affirmed, reversed, or modified.
Findings Of Fact The Planning Commission's Resolution No. P32-01 lists the following findings of fact in support of its decision, while noting that the Lesicks' request was denied by a vote of 2-2: [T]he Lesicks have a single-family structure, on 5.24 acres on Money Key, in the Offshore Island Land Use District. . . . . [I]t is the intent of the LDRs and the 2010 Plan that nonconforming uses should not be rebuilt if destroyed. Based on the Monroe County Code and the Monroe County 2010 Plan, we find that the "grandfather clauses" in Section 9.5-268 and Policy 101.3.23 are intended to protect existing residents of the County by permitting the replacement of their homes if destroyed and that Money Key currently is not being used as a principal residence. [T]he structure on Money Key is currently being used for vacation rentals and therefore does not qualify for the exemption in Section 9.5-268 of the [LDRs], even though the property had both a homestead exemption and a public lodging license in 1996. Therefore, we conclude that approval of the applicant's request would violate the intent of the Monroe County 2010 Comprehensive Plan and the [LDRs]. Other "findings of fact" listed in Resolution No. P32-01 clearly were conclusions of law. To the extent that they are findings of fact, statements as to the intent of the County's Plan and LDRs are not supported by competent substantial evidence. They are contrary to the unambiguous language of the County's Plan and LDRs, as indicated in the Conclusions of Law, infra. Otherwise, the findings of fact are supported by competent substantial evidence. The evidence was that the Lesicks occupied the structure on Money Key from on April 19, 1994, and claimed a homestead exemption beginning in 1995. They applied for a Florida Public Lodging License on May 19, 1995, and the structure was registered with an opening date of May 25, 1995. Until renting the structure in March 1996, they continued to occupy it (including on January 4, 1996, a critical date under the Plan and the LDRs). After renting it in March 1996, they ceased occupying it; however, they continued to claim homestead exemption on the property through 1998.
The Issue The issue is whether to approve the City of Gulf Breeze's (City's) application for a Consolidated Wetland Resource Permit and Sovereign Submerged Lands Authorization to conduct a restoration project in Pensacola Bay.
Findings Of Fact Background This dispute involves a challenge by Petitioners to the third phase of a restoration project by the City designed to preserve the Island and protect its historical resources. The project site is located in sovereign submerged lands adjacent to the Island on the southwest side of the Highway 98 Bay Bridge which traverses Pensacola Bay connecting the Cities of Gulf Breeze and Pensacola. The Island is not a true island, but has always been connected to the mainland by a strip of land referred to as an isthmus, which meets the shoreline at Lot 36 of an older subdivision known as the First Addition to Casablanca Parcel No. 1 and platted almost sixty years ago. The isthmus juts out from Lot 36 into Pensacola Bay in a northwesterly direction for several hundred feet before making a 90-degree turn to the southwest where the Island then runs roughly parallel to the shoreline for around a half mile. See Joint Ex. 5-7, 14, and The Island, isthmus, and shoreline form the boundary around a small body of water known as Gilmore Bayou, an ecologically important and pristine salt marsh area. According to aerial photographs, at its widest point, the Island appears to be no more than a few hundred feet wide. Petitioners reside at Lot 37, which is just northeast of the isthmus on the shoreline. The rear part of Lot 37 faces Pensacola Bay and the City of Pensacola to the northwest. Lots 36, 35, and 34 (running to the southwest along the shoreline and facing Gilmore Bayou), are owned by Patricia Moreland, Robert Ozburn, and Intervenor Paul Tamburro, respectively, all of whom testified at the final hearing. Except for Petitioners, the project is supported by virtually all of the residents of the area as well as numerous civic organizations. See Joint Ex. 33. On July 14, 2008, the City filed with the Department its Joint Application for Works in the Waters of Florida, which would allow the City to complete the third phase of the project by (a) planting native submerged vegetation over approximately three acres of sovereign submerged lands, and (b) placing approximately 16,000 cubic yards of fill material and planting native emergent vegetation to stabilize the fill material on sovereign submerged lands at the north end of the Island. See Joint Ex. 3. The Department has authority under chapter 373, Florida Statutes, and Florida Administrative Code chapter 18-21 to approve the application. After an extensive review of the application, on August 9, 2010, the Department issued a Consolidated Notice of Intent to Issue Wetland Resource Permit and Consent to Use Sovereign Submerged Lands, which authorized the proposed project. See Joint Ex. 4. The proprietary authorization (letter of consent) was issued under the authority of rule 18- 21.005(1)(c), which identifies a number of activities that qualify for a letter of consent. In this case, because of the range of proposed activities, the project could qualify for a letter of consent under subparagraphs 8., 15., and 16. of the rule. On September 1, 2010, Petitioners filed their petition challenging the proposed agency action. While their initial pleading raised a number of issues, and cited two rules as a basis for reversing the agency action, these allegations have been substantially narrowed over the course of the proceeding and are now limited to the following: whether the project constitutes management activities associated with the protection of a historic site, thus qualifying for a letter of consent under rule 18-21.005(1)(c)16.; and whether the project unreasonably restricts or infringes upon their riparian rights of navigation, boating, swimming, and view, as proscribed by rule 18-21.004(3)(c). They also question whether Intervenor has standing to participate, but that issue is not dispositive of the primary issues in this case. Petitioners do not contest the issuance of a Wetland Resource Permit. Finally, Respondents and Intervenor question whether Petitioners have standing to initiate this action. The Project Site The project is located on sovereign submerged lands adjacent to the Island, a "naturally occurring sandy beach," as that term is contemplated in rule 18-21.005(1)(c)8. This is true even though portions of the "sandy beach" have eroded over time. The City owns the entirety of the Island. See Joint Ex. 14 and 15. This was not disputed by Petitioners. The Island is a public park, natural preserve, and historic site that is owned and maintained by the City exclusively for public use. Deeds by which the property was conveyed to the City require that it be forever used as a natural preserve and maintained in its natural state. See Joint Ex. 14 and 15. The Island and the area immediately adjacent thereto have a long and significant history dating back to the 1700's. Throughout the 1700's and 1800's, various portions of the Island were used as a careening facility for the repair and maintenance of large vessels. A marine railway was also built. In the late 1800's, a quarantine station was constructed on the Island where people who had contracted yellow fever were isolated. A cemetery exists upon the Island containing the remains of many who perished from the yellow fever epidemic. Also, there were many shipwrecks at the Island, of which some of the remains still exist. Accordingly, there are historic resources and artifacts such as shipwrecks and human remains on and around the Island. The Island has sustained significant erosion over the past 70 years. The northeast shoreline has eroded some 450 to 500 feet during that period of time. There has been a significant loss of vegetation and land mass. Without protection, the Island is in a perilous condition and subject to a permanent breach. The peat bog underlying the Island is vital to the stability of the Island and has been greatly damaged. It requires protective measures, such as those contemplated by the proposed project in order to assure its preservation. Due to the effects of hurricanes and storms, the erosion has substantially increased during the past decade. The erosion has caused the unearthing of and damage to historic artifacts and the salt marsh in Gilmore Bayou. There are clearly visible remnants of the former marine railway on the Island, which are being weakened by current weather events and require protection in order to preserve them. Caskets from the cemetery as well as human bone remains have been unearthed and additional damage will occur without protective restoration efforts. If the erosion continues, there will be more damage to the historic artifacts and the salt marsh will be destroyed. The Project To prevent further erosion and to protect the Island and Gilmore Bayou, the City has applied to the Department for three separate phases of a project to stabilize the shoreline. The first two phases of the project involved the construction of an artificial reef breakwater and the planting of shoreline vegetation. See Joint Exhibit 7a. They have already been approved by the Department and are no longer in issue. The first and second phases were challenged by Petitioners but the cases were eventually settled. See Case No. 09-4870, which involved the second phase. The third phase of the project is being conducted primarily for the maintenance of essentially natural conditions and for the propagation of fish and wildlife. This phase can be described as follows: restoration or nourishment of a naturally occurring sandy beach as contemplated by rule 18-21.005(1)(c)8.; habitat restoration or enhancement as contemplated by rule 18-21.005(1)(c)15.; management activity associated with protection of a park as contemplated by rule 18-21.005(1)(c)16.; management activity associated with protection of a preserve as contemplated by rule 18-21.005(1)(c)16.; management activity associated with protection of a historic site as contemplated by rule 18-21.005(1)(c)16.; and management activity associated with protection of habitat restoration or enhancement as contemplated by rule 18- 21.005(1)(c)16. While the project implicates each of the above provisions, the application and proposed agency action indicate that the letter of consent is granted on the theory that the project is associated with protection of historic sites. See Joint Ex. 4. The third phase is also designed to minimize or eliminate adverse impacts on fish and wildlife habitats and other naturally occurring resources. The project consists of the placement of 16,000 cubic yards of fill material in the area between the existing artificial oyster reef and the shoreline to restore and replace conditions that previously existed. The fill will consist of beach compatible sand that will be approximately six inches to a foot above mean high water. This phase also involves the planting of appropriate native wetland vegetation in the fill area, which will help stabilize the fill. The planting of vegetation in the third phase is separate and distinct from the plantings authorized in the second phase of the project. The project is needed in order to prevent further damage to a public park; public preserve; threatened, endangered, or special concern species of vegetation/habitat; and historic artifacts. These protection efforts were requested and recommended by the Florida Department of State. Petitioners contest only the propriety of the fill materials and the planting of the emergent stabilizing grasses on the fill. The fill portion of the project is located a significant distance from Petitioners' property. The closest portion of the project is estimated to be at least 550 feet from Petitioners' property, while the bulk of the project will take place between some 750 to 1,200 feet from their property. The Proposed Vegetation Planting In the third phase of the project, the City proposes to plant and establish emergent grasses (those that grow in water but partially pierce the surface) and sea grasses, all of which are appropriate native wetland vegetation on the Island. The proposed emergent grasses are Spartina alterniflora (also known as smooth cordgrass) and Juncus roemerianus (also known as black needle rush), which will be used for stabilization of wetlands. The proposed submerged seagrasses are Halodule wrightii (a type of shoal grass) and Ruppia maritime (a type of widgeon grass), which will help stabilize the fill. The smooth cordgrass is native to the Island. It will be planted in the fill area to prevent the fill from eroding. It is expected that once they mature, the height of the plants will not exceed two and one-half feet. Due to the water depth in the area, the shoreline slope, the sediment supply, and the wave action, the smooth cordgrass will not spread outside the proposed project area. Also, it will not interfere with navigation, boating, swimming, fishing, or view. The vegetation will, however, help fishing in the area. The black needle rush is also native to the Island. It will only grow to approximately two and one-half feet in height due to stressful conditions caused by the salt content in the water and wave action. It will not spread beyond the proposed project area and will not interfere with navigation, boating, swimming, fishing, or view. Like the smooth cordgrass, it will enhance fishing in the area. Both Halodule wrightii and Ruppia maritime are native to the Island. Both have slow growth rates, which when coupled with the "high energetics of the system," will hinder their ability to spread outside the project area. Neither seagrass will hinder navigation, boating, swimming, fishing, or view. They will afford a greater opportunity for snorkeling, recreation, and fishing; they will serve as a nursery habitat for finfish and shellfish; they will increase the habitat value of the area; and they will improve water quality. Petitioners submitted no evidence to contradict these findings. They also failed to submit any evidence that the fill material or grasses would spread into any riparian area that might be appurtenant to their Lot 37. The above findings are reinforced by the results of a separate project known as Project Greenshores located across Pensacola Bay from the Island. Project Greenshores involved the restoration of wetlands using dredge material to restore islands that are then protected by the construction of a breakwater and are stabilized by the planting of the same grasses that are proposed for the Island project. The two projects are in relatively close proximity to each other and have essentially the same environment. One difference, however, is that Project Greenshores receives a small source of sediment from stormwater outfalls, which means that it has a higher chance of grasses growing than does the Island. Even with the increased sediment, the grasses at that project have not spread beyond the project area, they have not interfered with navigation, boating, swimming, view, or fishing, and they have enhanced fishing in the area. Historical Artifacts Petitioners contend that the project does not qualify for a letter of consent under rule 18-21.005(1)(c)16. That provision authorizes the Department, acting on behalf of the Board of Trustees of the Internal Improvement Trust Fund, to issue a letter of consent for "management activities associated with . . . historical sites . . . provided there is no permanent preemption by structures or exclusion of the general public." As noted above, the Island has a long and significant history dating back to the early 1700's and there are historic resources and artifacts on the Island. See Finding of Fact 10, supra. When there is an archeological site issue in a permit, the Department typically relies on information from the Division of Historical Resources of the Department of State. See Fla. Admin. Code R. 18-21.004(2)(c)("reports by other agencies with related statutory, management, or regulatory authority may be considered in evaluating specific requests to use sovereignty lands"). Here, the Department relied on information from that agency, which indicates that there are archeological resources at the project site. The Department of State also recommended placing fill over the artifacts to protect them, which will be accomplished by the proposed fill. In addition, the Department relied upon information contained in a survey conducted by Mr. Empie, a registered professional surveyor, to generally show where those artifacts are located. See Joint Exhibit 5, also referred to as the Empie survey. The evidence supports a finding that the project is for management activities associated with historical sites. The record shows that there is strong public support for the project. See Joint Ex. 33. Although many of the artifacts will be covered by the fill, the fill will actually protect them from damage, destruction, theft, and removal. By protecting them, future generations will be able to enjoy the artifacts. No "structures," as that term is defined in rule 18- 21.005(1)(c)16., are part of the project. Therefore, the project will not cause permanent preemption by structures. Contrary to Petitioners' assertion, the project will not exclude the general public from the fill area. The City contemplates that other activities, such as underwater snorkeling, will encourage the public to utilize the project site. The evidence supports a finding that the project qualifies for a letter of consent under this rule. Riparian Lines The Empie survey provides a reasonable depiction of the various riparian lines in the areas adjacent to the proposed project. See Joint Ex. 5. A professional surveyor with the Division of State Lands, Mr. Maddox, agreed that it was a reasonable depiction of the angle of the riparian lines and a "fair distribution of riparian areas," including that of Lot 37. The only property owner adjacent to the Island is Patricia Moreland, who owns Lot 36 and has resided on that parcel since 1956. As noted above, the isthmus meets the northwest boundary line of Lot 36. By executing a Letter of Concurrence, Ms. Moreland conferred upon the City all rights, both proprietary and riparian, that she has with respect to Lot See Joint Ex. 16. Petitioners contend that they own riparian rights appurtenant to their Lot 37, which is to the east of Lot 36. The City and Intervenor dispute this claim and contend that Lot 37 does not adjoin any navigable water and thus there are no riparian rights appurtenant to Lot 37. Assuming arguendo that Lot 37 adjoins Pensacola Bay, it is still separated from the project site by riparian areas appurtenant to the Moreland property (Lot 36) as well as the riparian areas appurtenant to the City property, i.e., the Island and isthmus. The Empie survey, which reasonably depicts the riparian lines in the project area, shows the project site as being approximately 300 feet inside the existing breakwater, which is shown as being no closer than 48.9 feet away from the westernmost riparian line appurtenant to Lot 37. See Joint Ex. The primary portion of the fill site is located around 370 feet from the closest point of the western riparian line appurtenant to Lot 37. Id. No portion of the project is located within 25 feet of the Lot 37 riparian line. Id. Petitioners presented no evidence disputing the riparian areas identified on the Empie survey or otherwise identifying the areas of riparian rights appurtenant to their property. While they engaged the services of Mr. Barrett, a professional land surveyor to prepare a boundary survey, the purpose of the survey was to show that Lot 37 adjoins Pensacola Bay, rather than depicting the riparian areas appurtenant to that lot. See Petitioners' Ex. 1. Infringement on Riparian Rights Rule 18-21.004(3)(c) requires that "activities [in submerged lands] must be designed and conducted in a manner that will not unreasonably restrict or infringe upon the riparian rights of adjacent upland property owners." (emphasis added) Petitioners contend that, even though they do not routinely use their riparian rights, the project will restrict or infringe upon their riparian rights of boating, swimming, navigation, and view. To make this determination, they assert that the appropriate test under the rule is mere infringement, and not "unreasonable" infringement; however, this interpretation is contrary to the plain wording in the rule. The main living floor of Petitioners' residence is approximately 50 feet above sea level. The emergent grasses will be located no closer than 500 feet from the edge of Lot 37 and 600 feet from their residence and are expected to grow only to a height of no more than two and one-half feet. The concern that the grasses will impair Petitioners' view is without merit. Although Dr. Cope initially believed that fill or grass would be placed or planted "all the way up to and abutting our lot 37," this interpretation of the City's plans was incorrect. A photograph taken from his back yard indicated that he could view the northeastern corner of the Island where new vegetation or fill might be placed, but the photograph depicted an area outside of the Lot 37 riparian area. See Petitioners' Ex. 18. While Dr. Cope initially stated that the new emergent grass would "clearly degrade the view from both the house and the shoreline," he later acknowledged that the project would not have any effect upon his view of Lot 37's riparian areas. There are a boathouse and dock in the waters behind Petitioners' house. However, Petitioners submitted no evidence to support their suggestion that the project might cause the water behind Lot 37 to become more shallow and adversely affect boating and navigation. Contrary evidence by the Department and City was unrefuted. Finally, Dr. Cope stated at hearing that he has never been swimming in Gilmore Bayou or Pensacola Bay and has no intention of doing so. His wife offered no evidence that she ever intends to swim in those waters. In summary, the activities undertaken in the project area will not unreasonably restrict or infringe upon Petitioners' riparian rights of swimming, boating, navigation, or view within the meaning of rule 18-21.004(3)(c). Petitioners' Standing Respondents and Intervenor contend that Petitioners lack standing to bring this action for two reasons: that they do not own Lot 37 individually but rather as trustees, and the petition was not filed in that capacity; and that Lot 37 does not adjoin navigable waters. See § 253.141(1), Fla. Stat. ("[r]iparian rights are those incident to land bordering upon navigable waters"). As described by the City's real estate expert, in June 2010, or before the instant petition in this case was filed, the Copes executed two deeds for estate planning purposes, which resulted in "legal title [being] owned part by Dr. and Ms. Cope as to one-half life estate and for Ms. Cope as to one-half for her life estate [and] then the remainder interest is vested in the trustees [of the D. Nathan Cope or Cynthia Russell Cope revocable trust agreements] for the remainder interests." Put in plainer language, this meant that the ownership of Lot 37 is now divided as follows: an undivided 50 percent is owned by the wife as to a life estate and by the wife's revocable trust as to the remainder interest, and the other undivided 50 percent is owned by the wife and husband as to a life estate for the husband's lifetime and by the husband's revocable trust as to the remainder interest. Therefore, there are four entities or persons with an ownership interest in the property: Dr. Cope, Mrs. Cope, Dr. Cope's trust, and Mrs. Cope's trust. The City presented expert testimony regarding the chain of title of Lot 37, beginning in June 1952 when the subdivision was first platted, and running through June 2010, when Petitioners conveyed the property to themselves as trustees of two revocable trusts. According to the expert, the subdivision plat in 1952 reflects a narrow strip of property (described as a hiatus strip) separating the entire subdivision, including Lot 37, from the waters of Gilmore Bayou, Pensacola Bay, and Woodland Lake, a nearby body of water. The strip was a park that was dedicated to the public. See Joint Ex. 1. In 1962, the developer conveyed by quit claim deed the entire strip to the record title holder of each lot in the subdivision. At that time, Lot 37 was owned by the Blaylocks. The expert found that each conveyance of Lot 37 that occurred after 1962, up to and including the Copes' purchase of the property in February 2008, did not include the hiatus parcel. Therefore, he opined that title in the strip property continues to remain with the Blaylocks. Besides his title search, the expert further corroborated this opinion by referring to a topographic survey of Lot 37 prepared in June 2005, see Joint Ex. 2a; a title insurance policy on Lot 37 issued in 2008 when the Copes purchased the property that specifically excludes title insurance for the hiatus parcel; and a recent Santa Rosa County tax bill describing the property without the hiatus parcel. In response, Petitioners contend that the hiatus strip never existed or the 1952 plat is invalid because it failed to comply with section 177.08, Florida Statutes (1951), which required that "all land within the boundaries of the plat must be accounted for either by blocks, out lots, parks, streets, alleys or excepted parcels." Because a dispute over the exact boundary lines of Lot 37 exists, this issue must be resolved in the appropriate circuit court. See § 26.012(2)(g). For purposes of deciding the merits of this case, however, it is unnecessary that this determination be made. Intervenor's Standing Dr. Tamburro currently resides on Lot 34, which faces Gilmore Bayou, and jointly owns the property with his wife. He uses the Bayou to boat and for other recreational purposes. He also uses the Island to swim, walk, and boat. The preservation of the Island is important to him since it serves as a barrier island in protecting his home during storm events. Although Dr. Tamburro's wife did not join in his petition to intervene (but appeared as his counsel), he still has a recognized ownership interest in the property.1
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order approving the City's application for a Wetland Resource Permit and Letter of Consent to Use Sovereign Submerged Lands. DONE AND ENTERED this 20th day of April, 2011, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of April, 2011.
The Issue Whether Permit Number 9220003617 issued by Monroe County, Florida, to Jeanne and Aldo Faga is inconsistent with the Monroe County Comprehensive Plan and Monroe County Land Development Regulations. Three areas of dispute were involved in this proceeding: Whether the permitted development (as modified by stipulation) is inconsistent with provisions requiring development to be clustered on the least environmentally sensitive portion of the site; Whether the permitted development (as modified by stipulation) is inconsistent with provisions pertaining to construction in mangroves and submerged lands; and Whether the permitted development (as modified by stipulation) is inconsistent with provisions establishing setback requirements from beach berms that are known turtle nesting areas.
Findings Of Fact THE PARTIES Petitioner is the state land planning agency charged with the responsibility to administer the provisions of Chapter 380, Florida Statutes, and the regulations promulgated thereunder. Petitioner has the authority to appeal to the Florida Land and Water Adjudicatory Commission any development order issued in an area of critical state concern. Jeanne Faga and the Estate of Aldo Faga, deceased, hereafter referred to collectively as the "Fagas," are the owners of approximately ten acres of real property known as Lots 23 through 32, Block 21, Coco Plum Beach subdivision, Fat Deer Key, in unincorporated Monroe County, Florida. This property, acquired by the Fagas in 1971, has been subdivided by the Fagas into four parcels. Lots 23-24 have been consolidated and will be referred to as Parcel A. The remaining lots have been divided into Parcels B, C, and D. Grill Construction, Inc., is a Florida corporation and is the general contractor for Respondent for the building permit at issue. Monroe County, Florida, is a political subdivision of the State of Florida. Monroe County did not actively participate in this proceeding. THE DEVELOPMENT ORDER AND ITS HISTORY Most of Monroe County, including the subject property, is within the Florida Keys Area of Critical State Concern, as designated under Sections 380.05 and 380.0552, Florida Statutes. These statutory provisions require that Monroe County adopt and implement a comprehensive plan and land development regulations consistent with the Principles for Guiding Development found at Section 380.0552(7), Florida Statutes. Monroe County has adopted a comprehensive plan, effective September 15, 1986, which complies with the Principles for Guiding Development and which has been approved by the Petitioner and by the Administration Commission. The Monroe County comprehensive plan is implemented by and through its adopted land development regulations, codified primarily in Chapter 9.5, Monroe County Code (M.C.C.). While Respondent originally applied for a development permit for one residence on each of the four parcels and for an access bridge on Parcel A, the subject of this permit appeal proceeding is the development order for Parcel A only. If the project is permitted, it is contemplated that the access bridge at issue in this proceeding will provide access to the residences the Fagas hope to build on Parcels B, C, and D. The initial permit application for a residence on each of the four (4) parcels and an access bridge on Parcel A capable of use by motor vehicles was denied by Monroe County staff. The Fagas thereafter appealed the staff denial to the Planning Commission. The Planning Commission reviewed the project and affirmed the denial by staff. The Fagas thereafter appealed the denial by the Planning Commission to the Monroe County Commission. On July 28, 1993, the Monroe County Board of County Commissioners adopted Resolution No. 299-1993, which reversed the denial of the appeal by the Planning Commission, and authorized the Fagas to go forward with the building permit applications. On September 23, 1993, Monroe County issued to the Fagas and Grill Construction Co. building permit number 9220003617, the development order that is the subject of this proceeding. This development order includes public works permit number 0764 and building permit number 9220003615, which address the proposed access bridge on the subject site. The development order approves the permit for the access bridge that was issued by the Department of Environmental Protection. This development order authorizes the construction of a 4,501 square foot single family home with 2,426 square feet of porches, a 813 square foot enclosure for parking and storage, fill for a driveway, a separate guest house and an elevated bridge approximately 12 feet wide and 160 feet long. The building permit issued by Monroe County at issue in this proceeding did not include construction on Parcels B, C and D. The Department timely filed its challenge to the subject development order pursuant to Section 380.07, Florida Statutes. STIPULATED PERMIT CONDITIONS The parties stipulated that the following modifications to the development order would be made if the project is permitted: 2/ The subject development permit conditions shall be amended to state that the subject site plan shall include no drainage swales and no concrete slabs. The subject development permit conditions shall be amended such that the site plan shall include no fill or excavation between the proposed structures and the salt water slough, for a driveway or for any other purpose, except for minimal fill necessary for the ramp at each end of the proposed bridge. No fill or excavation shall occur within the existing mangrove habitat as depicted on the site plan and as verified in the field prior to construction. The subject development permit conditions shall be amended to reflect that the access bridge reflected on the site plan rendered with the building permit application shall be of a length so as to clear the mangroves and salt water slough on site such that either end of the access bridge will terminate beyond the end of the mangrove lines and the boundaries of the slough. The subject development permit conditions shall be amended to reflect the guest suite be connected to the main structure (single family residence, or "SFR") by an enclosed interior hallway, atrium or the like, so as to form a single habitable unit. In addition, the Fagas will execute a restrictive covenant to run with the land which prohibits rental, sale or lease of the guest suite, or anything less than the entire single family residence. Each stairwell to the SFR will access a deck which provides uniform access to each room in the SFR, and the site plan shall include no additional independent access to the guest suite. Only minimal excavation will be allowed for transplantation on the beach berm, i.e., the absolute minimum amount necessary to transplant the native species identified in the County-approved transplantation plan. The transplantation shall occur in a manner which preserves the contour of the beach berm and ground cover resources on site and restores the area cleared for development to natural conditions which include native plant species transplanted on site. GENERAL DESCRIPTION OF PARCEL A Most of the land constituting the four Faga parcels was "created" in the late 1950s, by depositing seaward (south) of the then existing shoreline spoil material from offshore dredging. The original "beach" in this area of Fat Deer Key (prior to the dredge and fill activities) existed just south of Coco Plum Drive, which now serves as the northern border of the Faga parcel. As a result of this dredge and fill activity, most of the dry land that presently exists on Parcels A-D was created from lands that were submerged. Additionally, the saltwater slough that exists on Parcels A-D was created as a result of this dredge and fill activity. The subject site, Parcel A, is bordered on the north by Coco Plum Drive, on the West by a multistory condominium development, on the South by the Atlantic Ocean, and on the East by Parcel B. Parcel A is rectangular, with the East - West measurement being approximately 215 feet and the North - South measurement being approximately 375 feet. The Eastern third of the central portion of the Faga parcel contains a shallow, manmade water body (the "saltwater slough"), which is fringed with mangroves. Because the saltwater slough was created by the dredge and fill activity, it is appropriate to classify the saltwater slough as a manmade water body pursuant to Section 9.5-4 9(M-4), M.C.C., which defines the term "manmade water body" as follows: (M-4) Manmade water body means a water body that was created by excavation by mechanical means under human control and shall include a canal, cut basin or channel where its edges or margins have subsequently been modified by natural forces. All of Parcel A, meets the following definition of "disturbed land" found at Section 9.5-4(D-14), M.C.C.: (D-14) "Disturbed Land": Disturbed land means land that manifested signs of environmental disturbance which has had an observable effect on the structure and function of the natural community which existed on the site prior to the disturbance. The remainder of the property, including the sandy beach area and beach berm, will be discussed in detail below. CLUSTERING REGULATIONS Section 9.5-345(a), M.C.C., requires clustering of development as follows: "Clustering": When a parcel proposed for develop- ment contains more than one (1) habitat type, all development shall be clustered on the least sensitive portions of the parcel subject to the maximum net densities of Section 9.5-262, the open space requirements of Sections 9.5-262 and 9.5-269 and the performance standards of this section. For the purposes of this subsection, the sensitivity of habitat types shall be as listed with subsection being the most sensitive and subsection (18) being the least sensitive. The least sensitive part of the parcel shall be fully utilized prior to the distribution of density to the next least sensitive habitat type. High hammock (high-quality); Palm hammock; Cactus hammock; Beach/berm; Pinelands (high-quality); Salt marsh and buttonwood associations; High hammock (moderate-quality); Low hammock (low-quality); Low hammock (moderate-quality); Pinelands (low-quality); High hammock (low-quality); Low hammock (low-quality); Disturbed with hammock; Disturbed with salt marsh and buttonwood; Disturbed beach/berm; Disturbed with exotics; Disturbed with slash pines; Disturbed. Landowners are required to cluster development on the least sensitive portions of their property, subject to open space requirements for the respective classifications and subject to the maximum density for a parcel. An area classified as "disturbed" has a twenty percent open space requirement. Parcel A has a maximum density limit of 2.5 units per acre. HABITAT DETERMINATION -- GENERALLY To determine whether it is necessary to cluster this development, it is necessary to determine the habitat classification for Parcel A. Monroe County has adopted an existing conditions map that purports to show the existing habitat classifications on Parcel A. The existing conditions map reflects two habitat classifications for Parcel A: open water (the area of the saltwater slough) and disturbed with buttonwood and salt marsh. The area designated on the Aslan survey 3/ as the saltwater slough is properly designated as open water. The parties agree that the classification on the existing conditions map for the remainder of Parcel A as "disturbed with buttonwood and salt marsh" is incorrect. The parties disagree as to the appropriate habitat classification for the portions of Parcel A landward and seaward of the saltwater slough. Brian Winchester, on behalf of the Fagas, spent in excess of 80 hours on the four Faga parcels, conducting visual observations and taking core samples. He conducted field surveys of the four parcels during July 9-11, September 23- 24, October 20-22, and November 11-12, 1992. Staff of the Monroe County Environmental Resources Department conducted a joint site visit to the parcels with Mr. Winchester on September 23 and October 21, 1992. Mr. Winchester identified each small area of the parcel that he believed justified a distinct habitat classification and, based on a qualitative and quantitative analysis (which included counting individual stems in some areas), determined whether there was a dominate species for each area. In October and November, 1992, Mr. Winchester staked the edges of each portion of Parcel A that he believed constituted a distinct habitat. Those staked areas reflecting a plant community were then measured by Aslan, Inc. and depicted on the Aslan survey. The Aslan survey also marks the mean high water line on the property and measures the topography of all four parcels. Kathleen Edgerton and Patricia McNeese, the biologists who testified for the Petitioner, disagreed with Mr. Winchester's habitat evaluation. They conducted separate on-site inspections of the property, each with the benefit of the Aslan survey, and each determined what she considered to be the appropriate habitat classifications on Parcel A. Ms. Edgerton and Ms. McNeese were in agreement as to how the habitats of Parcel A should be classified. Petitioner's experts determined the extent of the saltwater slough and the mangrove fringe surrounding it. They determined the extent of the beach berm (which they consider to extend to the mangrove fringe on the seaward side of the slough) and determined the habitat of Parcel A seaward of the mangrove fringe. They then determined the habitat classification for the portion of Parcel A lying landward of the mangrove fringe. Based on their on-site evaluations of the property, Petitioner's experts did not believe that the portion of Parcel A lying landward or seaward of the mangrove fringe justified more than one habitat classification. In resolving the conflicting testimony between Respondents' expert and Petitioner's experts, more weight is given to the opinions expressed by Ms. Edgerton and Ms. McNeese because they have had extensive experience in conducting habitat classifications for lands in the Florida Keys as a part of their official responsibilities. While Mr. Winchester is an accomplished biologist, his experience in making habitat determinations in the Florida Keys is limited. The undersigned is persuaded by the testimony from Petitioner's experts that observations of species on site for making habitat determinations involve the subject parcel in larger perspective than that used by Mr. Winchester. HABITAT DETERMINATION -- LANDWARD OF THE SLOUGH Mr. Winchester expressed the opinion that the following habitat classifications exist on the portion of Parcel A lying landward of the mangrove fringe: a small strip of land adjacent to the road that should be classified as "disturbed"; a larger strip of land that should be classified as "disturbed with exotics"; and a third strip of land that should be classified as "disturbed with salt marsh and buttonwood". Petitioner's experts testified that the entire portion of Parcel A landward of the mangrove fringe should be classified as "disturbed". This dispute is resolved by finding that the greater weight of the evidence establishes that the portion of Parcel A landward of the mangrove fringe should be classified as "disturbed". While exotics, including Australian Pines and Brazilian peppers, exist in different areas of this part of the property, Petitioner's experts established that other vegetation exists and that exotics do not dominate the portions of the property classified by Mr. Winchester as "disturbed with exotics". Likewise, it is concluded that the portion of the property classified by Mr. Winchester as "disturbed with salt marsh and buttonwood" should be classified as "disturbed" since there is little salt marsh and buttonwood does not dominate. Further, there exists in this area trees and vegetation that are not typically found in an area designated as "salt marsh and buttonwood". THE MANGROVE FRINGE AND THE SALTWATER SLOUGH The Department of Environmental Protection (DEP) has claimed jurisdiction of the saltwater slough, an assertion that is not challenged in this proceeding. The parties disagree as to whether the saltwater slough is tidally influenced and whether the mangrove fringe around the saltwater slough meets the definition of a "mangrove community". The salt water slough consists of shallow, landlocked water over mud, sand and marl bottoms. The water level increases with heavy rains and infrequent storm tides, and decreases during periods of drought. The slough has been observed to be dry during time of drought, negating any inference of regular tidal influence. Based primarily on Mr. Winchester's observations and quantitative measurements, it is concluded that there is no regular tidal influence on the slough. That the saltwater slough is ecologically significant and provides a valuable resource for birds, especially during storms, was not seriously disputed at the formal hearing. The birds that normally use the beach will come into the slough, where they can stay within the protection of the mangroves. They feed there, and are not subjected to wave force and wind that they would receive if they were on the outside. The salt water slough is encircled by a fringe of mangroves. Mr. Winchester classified the mangrove fringe as "disturbed with mangroves". This classification is consistent with similar classifications on Monroe County's existing conditions maps, but the classification is not separately listed in the County's land development regulations pertaining to clustering because specific regulations limit development in mangroves. 4/ Whether the areas delineated by the Aslan survey as being the mangrove fringe is classified as "mangroves" or as "disturbed with mangroves" is irrelevant for determining the issues presented by this proceeding. HABITAT DETERMINATION - WATERWARD OF THE SLOUGH Section 9.5-4(B-3), defines the term "beach berm" as follows: Beach berm means a bare, sandy shoreline with a mound or ridge of unconsolidated sand that is immediately landward of, and usually parallel to, the shoreline and beach. The sand is calcareous material that is the remains of marine organisms such as corals, algae and molluscs. The berm may include forested, coastal ridges and may be colonized by hammock vegetation. Parcel A contains a sandy beach, including a seaweed wrack and some low vegetation which is typical of beach berm vegetation as defined in the Monroe County Code. Behind the low vegetation, lies an area of Australian Pine trees that extends to the seaward extent of the mangrove fringe. Petitioner asserts that the beach berm on Parcel A extends to the mangrove fringe and that the proper classification for all of Parcel A seaward from the mangrove fringe is "disturbed beach berm". Respondents assert that seaward from the mangrove fringe on the east side of the parcel there is a small section that should be classified as disturbed with salt marsh and buttonwood, that the area with the Australian Pines should be classified as disturbed with exotics, and that the remaining portion should be classified as disturbed beach berm. The accepted characteristics of beach berm soil, as defined in the LDRs and Comprehensive plan, are "calcareous" and "unconsolidated". Reference to the soil as calcareous refers to its origin, while the consolidation of the soil refers to its compression and its cohesiveness. The soil from the mean high water line to the mangrove fringe seaward of the slough is unconsolidated, calcareous sand. The only area that appears to exhibit consolidated soils is that which has been compacted by vehicular use in the property. Vegetation typical of beach berms is scattered throughout the parcel between the mean high water mark and the mangrove fringe. The area of Parcel A that lies between the mean high water mark and the mangrove fringe seaward of the saltwater slough, is beach berm. This portion of Parcel A is properly classified as "disturbed beach berm" as opposed to "beach berm" because the entire parcel is disturbed lands and because Australian Pines have encroached on a portion of the beach berm. CLUSTERING ANALYSIS Petitioner established that development on Parcel A (with the exception of the access structure to be discussed below) should be limited to the area landward of the slough that should be classified as "disturbed". The Petitioner established that this area of Parcel A is large enough to accommodate a reconfigured version of the development. TURTLE NESTING SETBACK Section 9.5-345(3)(f), M.C.C., provides for a setback of construction from turtle nesting areas in areas designated as disturbed beach berm as follows: f. No structure shall be located within fifty (50) feet of any portion of any beach-berm complex which is known to serve as an active nesting or resting area of marine turtles, terns, gulls or other birds . . . While no specific sites on Parcel A were identified as active nesting sites, the beach on which Parcel A is located is a known turtle nesting area. The expert testimony from Patrick Wells established that marine turtles most frequently nest within 50 feet of the mean high water line. The expert testimony of Mr. Metcalf established that the setback of fifty feet required in Section 9.5-345(o)(3)f, M.C.C., should be typically measured from the backslope of any beach berm crest. If there is no beach berm crest on a parcel or if the beach berm crest is more than fifty feet from the mean high water line, the setback should be measured from a line that is parallel to and fifty feet landward of the mean high water line. 5/ Mr. Winchester identified the existence of a beach berm "crest" within the area of Parcel A that is designated on the Aslan survey as disturbed beach berm. Mr. Winchester testified that he observed a three or four inch drop behind the crest and was of the opinion that the beach berm crest was formed by wind and wave action. The crest, as identified by Mr. Winchester, is marked on the Aslan survey and is just a few feet from the mean high water line. Petitioner's experts testified that there was no crest and that there was a gradual rise in the beach berm elevation from the mean high water mark to the beginning of the mangrove fringe. This conflict in the evidence is resolved by finding that there is no discernible beach berm crest until it reaches the mangrove fringe. This finding is consistent with the expert testimony presented by the Petitioner, the photographic evidence, and the topographical markings on the Aslan survey. Further, this finding is consistent with the manner in which this property was created by the depositing of fill. Based on the foregoing findings, it determined that the beginning of the setback line should be from a line parallel to and fifty feet landward of the mean high water line. The distance of the setback itself should be fifty feet as required by Section 9.5-345(o)(3)f, M.C.C. The development order at issue in this proceeding does not comply with the turtle nesting setback requirement. THE ACCESS STRUCTURE Section 9.5-345(m), M.C.C., authorizes construction of piers, docks, utility pilings and walkways on areas with mangroves and submerged lands. All structures on any submerged lands and mangroves are required to be designed, located, and constructed on pilings or other supports. DEP has issued a permit for the access structure that, if constructed, will be on pilings that are set in areas of the mangrove fringe and in areas of the slough. As permitted by DEP, the access structure would be 12 feet wide and 160 feet long. As noted above, the parties have stipulated that the subject development permit conditions shall be amended to reflect that the access bridge reflected on the site plan rendered with the building permit application shall be of a length so as to clear the mangroves and salt water slough on site such that either end of the access bridge will terminate beyond the end of the mangrove lines and the boundaries of the slough. The DEP permit contains appropriate special and general conditions to assure that the access structure will be constructed consistent with pertinent permitting criteria. The primary objection to the access structure raised by the Petitioner is to the width of the structure. Mr. Metcalf testified, without contradiction, that the acceptable standard in the planning profession for the maximum width for a walkway is six feet. Based on that testimony, it is found that the access structure should be authorized with the conditions imposed by DEP and as modified by the parties's stipulation, but with the additional condition that the width of the structure be changed from twelve feet to six feet.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a final order that adopts the findings of fact and conclusions of law contained herein and denies the subject development order number 9220003617. The permit can be approved if the Fagas choose to modify its application to conform to the findings and conclusions contained herein. DONE AND ENTERED this 1st day of November, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of November 1995.
Findings Of Fact Stipulated Facts Jim and Paulette Holzinger own Lot 17, Section B, Long Beach Estates, located on Big Pine Key in unincorporated Monroe County, Florida. The property is south of Long Beach Drive. The property is located within the Florida Keys Area of Critical State Concern. See Sections 380.05 and 380.0552, Florida Statutes. Under these statutes, Monroe County adopted a comprehensive plan and implemented it with land development regulations which are consistent with the Principles for Guiding Development found in Section 380.0552(7), Florida Statutes. The Department of Community Affairs approved the County's comprehensive plan in Rule Chapter 9J-14, Florida Administrative Code, and the Administration Commission approved the comprehensive plan in Chapter 28-29, Florida Administrative Code. The County's comprehensive plan is implemented through its land development regulations, codified as Chapter 9.5 of the Monroe County Code. Monroe County is responsible for issuing development orders for land development in unincorporated Monroe County, including these development orders (building permits). The Local Government Comprehensive Planning and Land Development Act, Chapter 380, Florida Statutes, restricts the County from permitting development which is inconsistent with the Monroe County Comprehensive Land Use Plan, Sections 163.3161(2) and 163.3194(1), Florida Statutes. No person may undertake any development within an area of Critical State Concern except in conformity with Chapter 380; Section 380.05(16), Florida Statutes. After the County issued the three related permits, the Holzingers engaged Pinewood Enterprises, Inc., as general contractor, for the construction of their single-family residence. Those permits were rendered to the Department of Community Affairs on July 21, 1992, and the Department issued its notice of appeal of those permits on September 4, 1992. No party disputes the timeliness of the appeal. The Holzingers' lot is vegetated by mangroves, transitional plant species, and beach berm plant species. The site plan, and which was part of the Holzingers' application for the permits, which Monroe County approved, includes the approval of dredging of a portion of Lot 17 and the placement of fill on site to provide driveway access to the single-family residence. The site plan locates the single-family residence in an area of Bay Cedar thicket. The mangroves are located along the north of the lot along Long Beach Drive. Facts Found Based on Evidence Adduced at the Final Hearing The Holzingers' lot is located at the southernmost area of Big Pine Key, and is separated from the rest of the key by a wetland to the north of the property. To its south is the Atlantic Ocean. The lot is approximately 100' x 230' and contains approximately 22,750 square feet from property line to property line. On the lower keys land elevations only extend from sea level to a maximum of approximately five or six feet above sea level. The soil or substrate conditions on the lot are white calcareous deposits which appear to the untrained eye to be sand. It is not quartzite, but deposits from the breakdown of marine grasses or marine algae which have the appearance of sand. There is no caprock on the property. B (1). Habitats Recognized in the Monroe County Plan The Monroe County Comprehensive Development Plan is based upon the Data and Analysis found in volume 1 of the Plan. According to that Data and Analysis, there are different types of habitat found in the Keys. These include salt marsh, salt marsh and buttonwood association, mangrove community, tropical hardwood hammock, and beach berm complex. The most significant one here is beach berm complex; it includes: "bare, sandy shoreline with a mound or ridge of unconsolidated sand that is immediately landward of and usually parallel to the shoreline and beach. The sand is calcareous material that is the remains of marine organism such as corals, algae and mollusks. The berm may include forested costal ridges and may be colonized by hammock vegetation." Section 9.5-4(B-3), Monroe County Code [the land development regulations]. In the Data and Analysis, the County records that on Long Beach Key the most landward area of the berm is tropical hardwood hammock. The low hammocks are upland hardwood forest communities containing species such as blolly, buttonwoods, darling plums, spanish stopper and wild dilly, all of which are found on the vegitation survey of the lot done by a biologist for Mother Nature's Enterprises, Linda Pierce, as part of the Holzinger building permit application. See Section 9.5-4(L-10), Monroe County Code, which defines low hammocks. Low hammocks include berm hammock, and the beach berm association described in the County comprehensive plan includes berm hammocks (Tr. 184). B (2). The Land Use Maps and their Designations The existing conditions map which is part of the Monroe County comprehensive plan designates the area of the Holzingers' property as beach berm association. That map is drawn at the sale of one inch equals 2,000 feet. Similar aerial maps at a scale an order of magnitude smaller (one inch equals 200 feet) also show the land as beach berm with fringing mangroves. These aerial photographs have been overlaid with the Comprehensive Plan's habitat designations for use in the practical application of the land development regulations by County employees. Under the land use regulations found in the Monroe County Code, the County Commission is required to follow the existing conditions map it adopted, Section 9.5-227, Monroe County Code. Under the first paragraph of Section 9.5- 345 the environmental design criteria applicable to development of a parcel of land depend upon the habitat designated for the parcel on the existing conditions map (the map drawn at the larger scale of one inch equals 2,000 feet). Ground proofing of the habitat on the lot done by the Lower Keys' biologist, Diana Stephenson, and by the Department of Community Affairs planner/biologist, Kathleen Edgerton, show that the land is actually beach berm from the ocean to the mangroves, and there is a small area of disturbed saltmarsh landward from the mangroves to the county road which runs down the center of the key. I am not persuaded by the testimony of the biologist for the Holzingers, Mr. Smith, who believes that there is a separate tropical hardwood hammock habitat on the Holzingers' lot. A full habitat analysis would have been required if there were mixed habitats on the lot (Tr. 88, 96) and the Holzingers did not submit one to the County as part of their application. Because the County biologist found no separate low hardwood hammock habitat on the lot, she believed that no habitat evaluation index was required in processing the Holzinger application, and none was done independently by the County. Mr. Smith contended at final hearing that there are several distinct habitats on the single lot. Moving south from Long Beach Drive toward the ocean he first finds a disturbed saltmarsh of approximately 4,000 square feet; then a mangrove community of about 2,500 square feet; then a saltmarsh and buttonwood association of about 2,500 square feet; next a tropical hardwood hammock of moderate quality and finally, closest to the ocean, beach berm complex. This analysis, which designates a separate saltmarsh and buttonwood association waterward of the mangrove community, and then a separate tropical hardwood hammock waterward of the saltmarsh and buttonwood association, fails to give significant weight to the fact that low hammocks are typically found within beach berm complex. While Mr. Smith testified to the square footages for each of the five habitats, he only performed rough calculations for their size, he was not working with, nor did he perform an actual survey which would define the boundaries of the various habitats he believes are present. He readily acknowledged his preliminary habitat analysis was incomplete. Moreover, accepting for the sake of argument that there is a mixed habitat on the lot under the evidence adduced by the Holzingers, a complete habitat evaluation index should have been performed by the Holzingers as a necessary part of their application, since the County biologist did not do one in the belief there was no need for one. The essential problem with the view expressed by Mr. Smith that there are five habitats on this 100-foot lot is his contention that due to the very small changes in elevation through the Keys, one must identify different habitats recognized in the Monroe County comprehensive plan and land development regulations by assessing the predominance of different types of vegitation typical of a habitat. To Mr. Smith, if the vegitation is of a type normally found in a tropical hardwood hammock, and it predominates over the other vegitation, that area must be classified as a tropical hardwood hammock. At that level of generalization, the statement is no doubt true. Neither the land development regulations or the County's Comprehensive Plan require, or even permit, a microanalysis of the vegitation for the purpose of defining multiple habitats on a lot. Taking a broad view, such as that embodied in the existing conditions map, the predominate vegetative and soil conditions on the southern part of the island where Lot 17 is located are consistent with the categorization as beach berm association. The same is true using the aerial maps on which the different habitat designations from the land development regulations have been overlaid. What Mr. Smith has done is to look for small areas within the 100' x 230' parcel to identify areas where tropical hardwood species may be said to "predominate." The obvious purpose of Mr. Smith's division of the lot into small areas is to be able to characterize these uplands species as "predominating." This is essential to justify intensive use of the property. The comprehensive plan and the land development regulations do not permit any use of areas colonized by mangroves, which are wholly protected by a 100 percent open space requirement. This means that 100 percent of the area colonized by mangroves must be maintained in its natural condition and free and open to the sky, Section 9.5-343, Monroe County Code. Open space ratio for saltmarsh and buttonwood associations is .85 but for moderate quality low hammocks is only .60. Beach berm association is highly protected, with an open space requirement of 90 percent. Only 10 percent of the land area waterward of the mangrove habitat, therefore, can be covered with the footprint of the single-family residence and any associated driveway or other access way because it is beach berm complex. Accepting the mangrove line contained in the vegitation assessment submitted by the Holzingers in their application done by Mother Nature's Enterprises, and then using a "planimeter" to measure the area from the mangrove line to the mean high water line on the lot, there is 16,594 square feet of property. Given the 90 percent open space requirement, a very small area of 1,659 square feet may be covered with the footprint of the single-family home, including its porch, eaves, and driveway. The footprint of the house, its porch, and driveway shown on the site plan approved by the County, with the addition of a five-foot clearing zone around the footprint of the house [because it is essentially impossible to clear land only to the footprint of the completed building] reveals that the County's permits would allow the clearing of 2,880 square feet. Even without the five-foot construction zone around the house, porch and driveway, the County permits allow the clearing of 2,172 square feet. It is very difficult to understand how the Monroe County official in charge of the office which issues building permits could have determined that the development proposed by the Holzingers was permittable. That official did not testify. The County biologist for the Lower Keys who did testify, Ms. Stephenson, was adamant that the project was never permittable under the Monroe County land development regulations. The only explanation by which the permit conceivably could have been granted would be to do something the land development regulations do not permit: aggregate the square footage which the code makes available for development on the landward side of the mangroves, in the area of disturbed saltmarsh between the road and the mangroves, and add the usable square footage for that habitat area to the usable square footage on the waterward side of the mangroves, in the beach berm association. But the amount of each habitat which must remain as open space is determined for each habitat type. They cannot be aggregated across habitats, to give some total usable number of square feet, to be cleared anywhere on the property. That would ignore the significance of the separate habitat designations. The 1,659 square feet available for development in the beach berm association must be used only within that habitat, and square footage available for development within the disturbed salt marsh cannot be added to it. Fill Issues The site plan approved by the County permits fill to be used to construct a driveway on the property through the mangrove area and the beach berm area. This is simply an error on the part of the County, for no party disputes that fill is forbidden in these areas. The performance standards in the land development regulations do permit certain piers, docks, utility pilings and walkways over mangrove areas, but no fill is permitted. Section 9.5- 345(m)(1), Monroe County Code (Tr. 139). The Holzingers could receive a permit to build a raised bridge over the mangroves for access to the beach berm association portion of the lot, as has been done on a nearby lot to the west of the Holzingers' lot. They cannot, however, fill the mangroves to create the driveway shown on the site plan the County approved. The building permit the County granted which purports to allow fill in mangrove areas is inconsistent with the County's own land development regulations and cannot stand. The next question is whether there is some alternate means of access to the lot which can be used instead of that permitted. At the final hearing Mr. Smith stated that on a recent visit to the Holzingers' property, he found an old road on the east side of the property which is high land which could serve as a location for a driveway or accessway to the interior of the Holzingers' property. There is, however, actually no old road anywhere on Lot 17. There was an old road on Lot 16, and a bit of the spoil from that road may be found on Lot 17, but there simply never has been a road on the Holzingers' lot which they can use for a driveway. Fill will be required to locate any driveway, and that is inconsistent with the County land development regulations. The only thing the Holzingers can do to overcome this problem would be to build a bridge over the mangrove area and completely avoid the use of any fill. Summary of Findings The scarified or a disturbed saltmarsh area from the county road to the mangrove area is too small to be useful. The Holzingers do not plan to build in that area. Whatever portion of that area which is not required to be open space cannot be "banked" to allow additional clearing in the beach berm association on the waterward side of the mangroves. For all practical purposes, that disturbed saltmarsh area adds nothing to the buildable or clearable area on Lot 17. The mangrove area has a 100 percent open space requirement. Mangroves are a highly protective habitat, which contribute nothing to the buildable area on Lot 17. The remaining portion of the Lot 17 waterward from the mangrove area to the mean high water line is too small to permit the construction and erection of the house and driveway permitted by the development orders (building permits) issued by Monroe County. The buildable area in the beach berm association is no more than a total of 1,660 square feet for the house, its porch, the driveway. The County has issued a permit to use 2,880 square feet of that habitat (including an allowance for a construction zone), or at least 2,172 square feet, assuming the location of the house, porch, and an eight-foot wide driveway and no construction clearing around the footprint around the house/porch. This fails to meet the 90 percent open space requirement found in the Monroe County Code. The building permits issued by Monroe County to the Holzingers are therefore invalid. To obtain valid permits, the Holzingers must substantially reduce the footprint of the house, including an allowance for a construction clearing zone. A house that small may be undesirable, but it could be permitted. What the County has attempted to permit, however, is invalid under its own regulations.
Recommendation It is RECOMMENDED that development approval for the subject lot be denied, unless the applicant presents, and the County and the Department approve, a revised permit and site plan which demonstrates compliance with the mandatory open space requirements for the beach berm and mangrove habitats, and which eliminates the placement of fill in the beach berm complex and the mangrove wetlands on site. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 9th day of July 1993. WILLIAM R. DORSEY, JR. 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 9th day of July 1993. APPENDIX The Findings of Fact proposed by the Department have been generally adopted, although the long quotation from Volume I and II of the County Comprehensive Plan are not essential or necessary. See proposed finding 10. The Respondents submitted no proposed Findings of Fact. COPIES FURNISHED: Stephanie M. Callahan Assistant General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Theodore W. Herzog, Esquire 209 Duval Street Key West, Florida 33040 Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 G. Steven Pfeiffer, General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 David K. Coburn, Secretary Florida Land & Water Adjudicatory Commission Executive Office of the Governor 311 Carlton Building Tallahassee, Florida 32301
The Issue The issue in Case Number 90-5021GM is whether the Town of Indian River Shores' Comprehensive Plan adopted by Ordinance Number 386 is "in compliance," as defined in Section 163.3184(1), Florida Statutes. The issue in Case Number 92-6784GM is whether the City of Vero Beach's Comprehensive Plan adopted by Ordinance 92-21 is "in compliance," as defined in Section 163.3184(1), Florida Statutes.
Findings Of Fact The Parties. Petitioner, Lost Tree Village Corporation (hereinafter referred to as "Lost Tree") is a Florida corporation with its principal place of business located at 1 John's Island Drive, Vero Beach, Indian River County, Florida. Respondents, the Town of Indian River Shores (hereinafter referred to as the "Town"), and the City of Vero Beach (hereinafter referred to as the "City"), are municipal corporations located in Indian River County, Florida. The Town's southern boundary abuts the City's northern boundary. The Town and the City are "local governments" for purposes of Chapter 163, Part II, Florida Statutes (hereinafter referred to as the "Act"). As local governments, the Town and the City were required by the Act to adopt comprehensive growth management plans for their respective jurisdictions. Respondent, the Department of Community Affairs (hereinafter referred to as the "Department"), is an agency of the State of Florida. The Department is charged with responsibility for, among other things, the review of local government comprehensive plans and amendments thereto pursuant to the Act. Standing. Lost Tree owns real property which is located within the jurisdiction of the Town and the City, including portions of certain undeveloped islands located in the Indian River Lagoon which are the subject of the dispute in this proceeding. Lost Tree made oral and written comments to the Town and the City during the adoption of the Town's and City's comprehensive growth management plans. The Geographic Area of Indian River County. Indian River County (hereinafter referred to as the "County") is located on the east coast of Florida. The County is abutted on the north by Brevard County, on the west by Osceola County, on the south by Okeechobee County and St. Lucie County, and on the east by the Atlantic Ocean. North Hutchinson Island, a long, narrow barrier island (hereinafter referred to as the "Barrier Island"), stretches along the eastern portion of the County separating the mainland from the Atlantic Ocean. The water body between the mainland and the Barrier Island is known as the Indian River Lagoon. The Town is located wholly on the Barrier Island. The City is located immediately to the south and southwest of the Town, partly on the Barrier Island and partly on the mainland. The Indian River Lagoon. The Indian River Lagoon is a shallow lagoonal estuary bounded on the east by the Barrier Island and on the west by the mainland. On October 21, 1969, the Indian River - Malabar to Vero Beach Aquatic Preserve (hereinafter referred to as the "Preserve") was established by the Board of Trustees of the Internal Improvement Trust Fund (hereinafter referred to as the "Board of Trustees"). The Florida Legislature ratified and expanded the Preserve by the enactment of the Florida Aquatic Preserve Act of 1975, Chapter 75-172, Laws of Florida (1975). The Preserve runs from the northern boundary of the City to the town of Malabar in Brevard County, Florida. The portion of the Indian River Lagoon that is located within the boundary of the Town is part of the Preserve. The portion of the Indian River Lagoon located within the boundary of the City is not located within the Preserve. The Indian River Lagoon is connected to the Atlantic Ocean by Sebastian Inlet in the north and Ft. Pierce Inlet in the south. Sebastian Inlet is located approximately 14 to 15 miles north of the City and the Town. Ft. Pierce Inlet is located approximately 15 to 20 miles to the south of the City and the Town. Due to these distances, the area of the Indian River Lagoon located in the Town and the City is not subject to much tidal flushing. An Aquatic Preserve Management Plan was adopted by the Board of Trustees on January 21, 1986. Among other things, the plan includes the following major objective for the Preserve: "ensure the maintenance of an essentially natural condition and to restore and enhance those conditions which are not in a natural condition." In 1987, the Florida Legislature designated the Indian River Lagoon System and its tributaries as a priority area for surface water improvement and management. In 1988, the South Florida Water Management District and the St. Johns River Water Management District jointly adopted the Interim Surface Water Improvement and Management Plan (hereinafter referred to as the "Interim SWIM Plan"). In September 1989 the South Florida Water Management District and the St. Johns River Water Management District issued a Revised Surface Water Improvement and Management Plan. The Interim SWIM Plan provides the following description of the Indian River Lagoon system: The lagoon system is a biogeographic transition zone, rich in habitats and species, with the highest species diversity of any estuary in North America (Gilmore, 1986). Approximately 2200 species have been identified in the lagoon system (Barile, 1987), 35 of which are listed as threatened or endangered. Species diversity is generally high near inlets and toward the south, and low near cities, where nutrient input, sedimentation, and turbidity are high and where large areas of mangroves and seagrasses have been lost. For biological communities and fisheries, seagrass and mangrove habitats are extremely important (Virnstein and Campbell, 1987). Much of the habitat loss has occurred as the result of the direct effects of shoreline development, navigational improvements, and march management practices. The Interim SWIM Plan identifies the City as one of twelve priority problem areas. The Board of Trustees imposed a moratorium in August 1989 on the use of sovereign, submerged lands adjacent to unbridged, undeveloped coastal barrier islands. Rules 18-21.003 and 18-21.004, Florida Administrative Code, were subsequently amended by the Board of Trustees to preclude use of Public Trust lands by islands not connected by vehicular bridge with densities of less than one unit per five acres as of December 18, 1990. The policy and rules were unsuccessfully challenged by Lost Tree. On January 4, 1991, the United States Environmental Protection Agency and the St. Johns River Water Management District signed a cooperative agreement to establish the Indian River Lagoon National Estuary Program. The Indian River Lagoon Islands. Located within the Indian River Lagoon and the boundaries of the Town and the City are a number of islands. Some of those islands are at the heart of the controversy in this proceeding. Islands Located Wholly Within the Town: Islands located wholly within the Town include John's Island, Gem Island, Hole in the Wall Island, North Sister Island, South Sister Island, Gifford Island, three islands referred to during the hearing as the "Inner Islands," one of a group of islands referred to during the hearing as the "Outer Islands," and a variety of smaller unnamed islands. The islands referred to during the hearing as the "Inner Islands" consist of three islands located on the eastern side of the Indian River Lagoon closest to the Barrier Island. These islands include USA Island, Alligator Island, and a third unnamed island (hereinafter referred to as the "Third Inner Island"). Islands Located Wholly Within the City: Islands located wholly within the City include Little Prang Island, a small unnamed island located south of Little Prang Island, Fritz Island, one of the islands referred to during the hearing as the "Outer Islands," several small islands located near Fritz Island, and two islands designated "IR-32" and "IR-33." The islands referred to in the hearing as the "Outer Islands" consist of four islands located to the west and south of the Inner Islands. The Outer Islands include an island designated as "IR-28," Fritz Island, "IR-29," and a fourth unnamed island (hereinafter referred to as the "Fourth Outer Island"). Islands Located Partly Within the Town and Partly Within the City: Islands located partly in the Town and partly in the City include part of IR-28, IR-29, and the Fourth Outer Island. There is also a small unnamed island located to the east of the Fourth Outer Island. This unnamed island is similar in characteristics to the Inner and Outer Islands, except that it is much smaller. The Inner Islands. USA Island is the northernmost of the Inner Islands. USA Island is owned by Lost Tree. USA Island is an undeveloped, unbridged island consisting of approximately 28.9 to 32 acres including uplands and wetlands above approximate mean high water. USA Island is depicted as consisting of 31.6 acres on a sketch of the area prepared for Lost Tree. See DCA Exhibit 8. All of USA Island is located within the Town. The predominate soil type on USA Island is quartzipsamment, 0 to 5 per cent slope, according to the USDA Soil Survey for the area. Quartzipsamment is a sandy shell, quartz-like soil. This type of soil is classified as a "fill soil" and is recognized as an upland soil. Fill soil is commonly used and suitable for fill material for development. The elevation of USA Island is generally below the 5' elevation according to the Riomar quadrangle (USGS 7.5 minute topographical, 1970 photo revision). According to the City's topographic data, there are three small areas above 5' while most of the island is below 4'. All of USA Island is within Zone "AE" with a base flood elevation of 7' on the FEMA FIRM map. Wildlife noted on USA Island include osprey, herons, and raccoons. Vegetation on USA Island consists mainly of Brazilian pepper and Australian pine, both of which are considered exotic and nuisance species. The island also has a mangrove fringe with the heaviest concentration of white and red mangroves located on the northern shore of the island. The southernmost of the Inner Islands is named Alligator Island. Lost Tree owns all of Alligator Island except for a parcel located at the south of the island consisting of just over 28.2 acres. Alligator Island is an undeveloped, unbridged island consisting of approximately 51.7 to 62.4 acres including uplands and wetlands above approximate mean high water. Lost Tree's ownership interest in Alligator Island is depicted as consisting of 50.16 acres on a sketch of the area prepared for Lost Tree. See DCA Exhibit 8. All of Alligator Island is located within the Town. The predominate soil type on Alligator Island is quartzipsamment, 0 to 5 per cent slope, according to the USDA Soil Survey for the area. The elevation of Alligator Island is generally below the 5' elevation according to the Riomar quadrangle (USGS 7.5 minute topographical, 1970 photo revision). According to the City's topographic data, there are nine small areas above 5' while most of the island is below 4'. All of Alligator Island is within Zone "AE" with a base flood elevation of 7' on the FEMA FIRM map. There are infrequent shoaled areas around the island with seagrasses. A waterbody almost divides Alligator Island. There is also a lagoon on the southern portion of the island. These features result in a much larger shoreline. Vegetation on Alligator Island consists of Brazilian pepper and Australian pine. The shoreline of the island is fringed with mangroves. The lagoon is partly shoaled and partly filled with mangrove. Osprey have been observed using Alligator Island. The Third Inner Island is an undeveloped, unbridged island consisting of approximately 7.3 to 8.6 acres including uplands and wetlands above approximately mean high water. It is depicted as consisting of 7.88 acres on a sketch of the area prepared for Lost Tree. See DCA Exhibit 8. The Third Inner Island is owned by Lost Tree, except for 0.3 acres located at the southern tip of the island. All of the Third Inner Island is located within the Town. The predominate soil type on the Third Inner Island is quartzipsamment, 0 to 5 per cent slope, according to the USDA Soil Survey for the area. The elevation of the Third Inner Island is generally below the 5' elevation according to the Riomar quadrangle (USGS 7.5 minute topographical, 1970 photo revision). According to the City's topographic data, there are three small areas above 5' while most of the island is below 3'. All of the Third Inner Island is within Zone "AE" with a base flood elevation of 7' on the FEMA FIRM map. Wildlife noted on the Third Inner Island include osprey, and herons. Vegetation on the Third Inner Island consists mainly of Brazilian pepper and Australian pine. The island also has a mangrove fringe. The Outer Islands. The northern most Outer Island is referred to as "IR- 28" in the Indian River Spoil Island Management Plan. IR-28 consists of approximately 68 to just over 73 acres including uplands and wetlands above approximate mean high water. IR-28 is undeveloped and unbridged. Most of IR-28 is located within the boundary of the Town. The northwest end of the island is located within unincorporated Indian River County and is owned by the United States government and the Florida Inland Navigation District (hereinafter referred to as "FIND"). The United States government and FIND own approximately 9.7 acres and 15.6 acres, respectively. Located on the portion of IR-28 owned by FIND is a small park with a dock and two picnic tables. A small portion of IR-28 located at the southwest end of the island is also owned by FIND. It is identified as part of MSA-IR-6-B on DCA Exhibit 8. Lost Tree does own the remaining approximately 45 acres of IR-28. Lost Tree's ownership interest in IR-28 is depicted as consisting of 45.6 acres on a sketch of the area prepared for Lost Tree. See DCA Exhibit 8. The predominate soil type on IR-28 is quartzipsamment, 0 to 5 per cent slope, according to the USDA Soil Survey for the area. There is an area of McKee mucky clay loam located near the middle of the island on the east side. The elevation of IR-28 is generally below the 5' elevation according to the Riomar quadrangle (USGS 7.5 minute topographical, 1970 photo revision). According to the City's topographic data, most of the island is below 5'. All of IR-28 is within Zone "AE" with a base flood elevation of 7' on the FEMA FIRM map. Birds using IR-28 according to the Indian River County Spoil Island Management Plan include fourteen species total, including the American robin and brown pelican. Threatened, endangered, or species of special concern noted include the bald eagle, osprey, tricolor heron, and snowy egret. Herons have also been noted on IR-28. Vegetation on IR-28 consists mainly of Brazilian pepper and Australian pine. The island also has a mangrove fringe totaling in excess of 11 acres. A 0.3 acre marsh is located in the middle of the island on the east side. On the northern part of the island there is a 3.3 acre Boston fern field and there is a 1.85 acre meadow west of the fern field. Fifty-one species of terrestrial vegetation were documented on IR-28 in 1989. Seagrasses covering 2.42 acres north, northeast, and west of the island have also been documented. IR-29 is located to the south of IR-28 and the west of the Fourth Outer Island. All of IR-29 is owned by Lost Tree except for approximately 11 acres of the center of the island which is owned by FIND. Part of FIND's property is located within the City and part within the Town. IR-29 is undeveloped and unbridged. It consist of approximately 59 to 62.6 acres including uplands and wetlands above approximate mean high water. Approximately 16 acres of the island are located within the Town and approximately 43 acres are located within the City. The predominate soil type on IR-29 is quartzipsamment, 0 to 5 per cent slope, according to the USDA Soil Survey for the area. A 9.5 cm humus layer has been observed in non-spoil areas. The elevation of IR-29 is generally below the 5' elevation according to the Riomar quadrangle (USGS 7.5 minute topographical, 1970 photo revision). According to the City's topographic data, most of the island is below 5'. All of IR-29 is within Zone "AE" with a base flood elevation of 7' on the FEMA FIRM map. Wildlife noted on IR-29 include thirteen bird species including listed species: osprey, great blue heron, belted kingfisher, brown pelican, and little blue heron. Vegetation on IR-29 consists mainly of Brazilian pepper, Australian pine, and mangroves. A total of 61 species of terrestrial vegetation have been noted on the island, including prickly-pear cactus, a threatened species. A mangrove marsh exists at the southern end of the island. Mangroves also exist along the middle of the eastern shore of the island through a large part of the western shore. An extensive shoal stretches from the north tip of the island to IR-28. This shoal has a large area of seagrasses. Seagrasses also exist along the western shore of the island. The Fourth Outer Island is located to the south of IR- 28 and the east of IR-29. All of the Fourth Outer Island is owned by Lost Tree. The Fourth Outer Island is undeveloped and unbridged. It consist of approximately 47 to 51 acres including uplands and wetlands above approximate mean high water. Approximately 23 acres of the island are located within the Town and approximately 24 acres are located within the City. The predominate soil type on the Fourth Outer Island is quartzipsamment, 0 to 5 per cent slope, according to the USDA Soil Survey for the area. The elevation of the Fourth Outer Island is generally below the 5' elevation according to the Riomar quadrangle (USGS 7.5 minute topographical, 1970 photo revision). According to the City's topographic data, most of the island is below 5'. All of the Fourth Outer Island is within Zone "AE" with a base flood elevation of 7' on the FEMA FIRM map. Wildlife noted on the Fourth Outer Island include osprey and herons. Vegetation on the Fourth Outer Island consists mainly of Brazilian pepper, Australian pine, and mangroves. Mangroves exist in clusters along the shore of the island. No seagrasses were observed around the island. The southern most Outer Island is named Fritz Island. Fritz Island consists of approximately 58.6 to 64.7 acres. Fritz Island is located wholly within the City's boundary. Fritz Island is undeveloped and unbridged. Lost Tree owns approximately 28.8 to 32.1 acres of the northern portion of Fritz Island and approximately 4.8 to 5.7 acres of the southern tip of Fritz Island. Located between the two portions of Fritz Island owned by Lost Tree is a parcel of approximately 15.8 acres owned by private interests. The remainder of the island, approximately 10.7 acres located on the western side of the island, is owned by FIND. The predominate soil type on Fritz Island is quartzipsamment, 0 to 5 per cent slope, according to the USDA Soil Survey for the area. The elevation of Fritz Island is generally below the 5' elevation according to the Riomar quadrangle (USGS 7.5 minute topographical, 1970 photo revision). According to the City's topographic data, most of the island is below 5'. All of Fritz Island is within Zone "AE" with a base flood elevation of 7' on the FEMA FIRM map. Wildlife noted on Fritz Island include osprey and herons. Vegetation on Fritz Island consists mainly of Brazilian pepper, Australian pine, and mangroves. A large shoal is located along the south western side of the island. Extensive seagrasses exist in this area. Other Islands Located Within the Town: John's Island, Gem Island, Hole in the Wall Island, North Sister Island, South Sister Island, Gifford Island. Gem Island is already approved for development by Lost Tree as a private residential neighborhood with 40 lots. Gem Island is located north of the Inner and Outer Islands. Johns Island was developed by Lost Tree beginning in 1968 as an exclusive, private "club" development with approximately 1,600 dwelling units, three golf courses, and other amenities. Hole in the Wall Island, North Sister Island, South Sister Island, and Gifford Island are all undeveloped and unbridged islands with very similar characteristics to the Inner and Outer Islands. The most significant difference between these islands and the Inner and Outer Islands is that they are all significantly smaller islands. Other Islands Located Within the City: Little Prang Island, IR-32, IR-33 and Other Small Islands. Little Prang Island, IR-32, IR-33, and several other small islands located within the City are all undeveloped and unbridged islands with very similar characteristics to the Inner and Outer Islands. The most significant difference between these islands and the Inner and Outer Islands is that they are all significantly smaller islands. Prang Island had already been issued preliminary plat approval at the time the City adopted the City's comprehensive plan. Therefore, the City did not believe that it could reduce the already approved development of the island through the land use designation for the island adopted in the City's plan. I. The Adoption of the Town's Comprehensive Plan. In an effort to comply with the Act, the Town developed a draft of a comprehensive plan (hereinafter referred to as the "Town's Draft Plan") and submitted it to the Department for review in November 1988. The Inner Islands and the portion of the Outer Islands located within the Town's jurisdiction were designated "LD" or "Low Density Residential Development" on the Future Land Use Map (hereinafter referred to as the "FLUM") of the Town's Draft Plan. Pursuant to Policy 1-2.1.2 of the Future Land Use Element of the Town's Draft Plan, the density allowed for property designated as "LD" or "Low Density Residential Development" was a maximum of up to 3 dwelling units per acre. In September 1989, the Town developed a revised plan (hereafter referred to as the "Town's Transmittal Plan") and transmitted it to the Department for review pursuant to the Act. The Town's Transmittal Plan did not change the land use designation or density of use for the Inner Islands or the Outer Islands within the Town's jurisdiction. The Department, following its review of the Town's Transmittal Plan, issued an Objections, Recommendations, and Comments Report (hereinafter referred to as an "ORC"). Following discussions with the Department, the Town revised the Town's Transmittal Plan and adopted the Town of Indian River Shores Comprehensive Plan (hereinafter referred to as the "Town's Adopted Plan"), by Ordinance Number 386, on May 16, 1990. The Town's Adopted Plan was found by the Department to be "in compliance" as required by the Act. The Department caused Notice of Intent of its determination to be published on July 13, 1990, in the Vero Beach Press-Journal. Between the time that the Town adopted the Town's Transmittal Plan and the Town's Adopted Plan, Lost Tree submitted a preliminary plat application to the Town proposing development of the Inner Islands at a density of approximately 1 unit per acre. Opposition to the proposed development arose in the Town and Lost Tree's proposed development was denied in April 1990. The Town designated the Inner Islands and the portion of the Outer Islands located within the Town as "RC/ESI" or "Residential Conservation/Environmentally Sensitive Islands," with a density of 1 unit per 5 acres. The Adoption of the City's Transmitted Comprehensive Plan. As required by the Act, the City developed a proposed comprehensive plan which it adopted in September 1989 for transmittal to the Department for review (hereinafter referred to as the "City's Transmittal Plan"). The City's Transmittal Plan designated most of the portion of the Outer Islands located within its jurisdiction as "RL" or "Residential Low". The portion of the Outer Islands within the City's jurisdiction not designated "RL" in the City's Transmittal Plan was designated "CV" or "Conservation." Those portions of the Outer Islands designated "CV" were in public ownership. The area of the mainland to the west of the Outer Islands which abutted the Indian River Lagoon and an area known as Cache Cay located to the east of the Outer Islands were also designated "RL." Immediately to the east of Fritz Island, the portion of the barrier island abutting the Indian River Lagoon was designated "RH" or "Residential High," with a density of up to fifteen units per acre. At the time of the City's consideration of the City's Transmittal Plan, zoning for the Outer Islands within its jurisdiction allowed density of approximately 4.3 units per acre. Pursuant to Policy 1.1 of the Future Land Use Element of the City's Transmittal Plan the density allowed for "RL" property was from 0 to 5 units per acre The Department, following its review of the City's Transmittal Plan, issued an ORC. Among other things, the ORC contained an objection to the density of development allowed on the Outer Islands within the City's jurisdiction: 26. 9J-5.006(3)(c)7 The residential densities established on the islands within the Indian River Lagoon are not consistent with the environmental characteristics of these islands as noted in the Conservation Element. Furthermore, the City has not included any data which show that these islands are needed to accommodate residential development or their ability to support any type of development. Recommendation Revise the Future Land Use Map to remove the residential densities designated on these islands. These islands should be designated as conservation. The ORC also contained an objection to the inventory and analysis of estuarine pollution: 4. 9J-5.012(2)(d) The inventory and analysis of estuarine pollution conditions does not include an assessment of the impact of the development and redevelopment proposed in the Future Land Use Element upon water quality, circulation patterns and the accumulation of contaminates in sediments. The analysis also does not address the impacts of the development of Prang and Fritz islands on estuarine pollution. Recommendation Expand the data and analysis to include the impact of development and redevelopment proposed by the Future Land Use Element on estuarine conditions. Finally, the ORC contained the following objection to the residential designation for islands located in the Indian River Lagoon for inconsistency with rules calling for the protection of wetlands, wildlife habitat, and environmentally sensitive areas: 17. 9J-5.013(2)(c)(6). The City has designated a number of the islands in the Indian River Lagoon for residential development. The analysis of existing natural resources (page 6-2) states that these islands contain viable wetland communities and wildlife habitats, especially for birds, fishes and other animal wildlife. These islands are also located in the Federal Emergency Management Agency (FEMA) special flood hazard zones and are currently without infrastructure. The designation of these islands for residential development is inconsistent with 9J-5.006(3)(b)5., 9J- 5.006(3)(c)1., 9J-5.006(3)(c)6. and 9J- 5.012(3)(b)1., 9J-5.012(3)(b) 6 and 7., 9J- 5.012(3)(c) 3, 4, and 7 F.A.C., which call for the protection of remaining coastal wetlands, wildlife habitats and environmentally sensitive areas. Recommendation Revise the land use designations on the islands within the Indian River Lagoon to be consistent with their environmental conservation characteristics and value and to protect lives and property from natural hazards. A conservation designation is recommended. Essentially, the Department concluded that data and analysis supplied by the City did not support residential development of islands in the Indian River Lagoon when the City's need for future growth was considered and the environmental characteristics and location of the islands were taken into consideration. The City's planning director did not agree with the foregoing objections and the recommendation of the Department that undeveloped islands in the Indian River Lagoon should be designated "Conservation." Following the issuance of the Department's ORC, the City adopted a comprehensive plan by Ordinance 90-12, on February 20, 1990 (hereinafter referred to as the "City's Adopted Plan"). The designation of portions of the Outer Islands located within the City as "RL" was retained in the City's Adopted Plan. The City's Adopted Plan did not designate the Outer Islands as "environmentally sensitive." Nor did the City's Adopted Plan contain any prohibition against erecting bridges to undeveloped islands located with the Indian River Lagoon. The Department determined that the City's Adopted Plan was not "in compliance. On April 8, 1990, the Department filed a petition with the Division of Administrative Hearings. The petition was designed Case Number 90-2328GM. Modification of the City's Zoning of the Outer Islands. At the time that the City was considering the adoption of the City's comprehensive plan the City modified the zoning of the Outer Islands in response to citizen efforts to prevent the development of the Outer Islands. In December 1989 the City adopted two ordinances: 89- 80 and 89-81. Ordinance 89-80 established a new single-family residential zoning district designated as "R1AAA." Densities were limited to 1 unit per 2 acres in R1AAA zoned districts. Ordinance 89-81 provided for the transfer of development rights in R1AAA zoned districts. The R1AAA zoning district was established by the City to "make specific development requirements that recognize the significance of land without infringing on the property owner's constitutional rights" through the creation of a new property classification which the City labeled "environmentally significant." The City created the category of "environmentally significant" in recognition of the fact that the Outer Islands have some significant environmental features. On June 5, 1990, the City adopted Ordinance 90-30. Pursuant to this ordinance the City rezoned the undeveloped islands within its jurisdiction located in the Indian River Lagoon R1AAA. In addition to rezoning the Outer Islands, the City adopted Ordinance 90-15 on February 24, 1990. This ordinance provides the following prohibition on establishing bridgeheads: No property shall be used as bridgehead property for an island that is undeveloped as of the date of this ordinance when said use shall have for its purpose the connection with any public right- of-way in the city of Vero Beach. Further, if said property is not within the City's jurisdiction but is immediately contiguous thereto, the city shall prohibit, by the erection of barriers, any connection with the city right- of-way. Ordinance 90-15 was adopted after residents along Silver Shores Road on the Barrier Island expressed concern about the use of right-of-way at the end of the road to access the Inner Islands. The City's Remedial Comprehensive Plan. Subsequent to the filing of the Department's request for hearing on the City's Adopted Plan, the Department and the City entered into a Stipulated Settlement Agreement. Among other things, the City agreed to add Policy 5.6 to the City's Future Land Use Element. Policy 5.6 prevents the use of bridgeway property to connect an undeveloped island with City right-of-way. On July 21, 1992, consistent with the Stipulated Settlement Agreement, the City adopted a remedial plan by Ordinance 92-21 (hereinafter referred to as the "City's Remedial Plan"). Pursuant to the City's Remedial Plan, the Outer Islands were designated as "ES" or "Environmentally Significant." The permissible density for property designated "ES" was lowered to 0.2 units per acre (one unit per five acres). On November 4, 1992, the Department caused a Cumulative Notice of Intent finding the City's Remedial Plan to be "in compliance" to be published in the Vero Beach Press- Journal. The Town's Treatment of the Lagoon Islands in the Town's Adopted Plan. The FLUM and Chapter 1 of the Town's Adopted Plan implement the Future Land Use Element of the Town's Adopted Plan as required by Section 163.3177(6), Florida Statutes. The FLUM and the objectives and policies of Chapter 1 of the Town's Adopted Plan create land use designations for all property within the Town and set qualitative standards to be applied in allocating future land uses to Town property. The Inner Islands and the portion of the Outer Islands located within the Town are designated "RC/ESI" or "Residential Conservation/Environmentally Sensitive Islands" on the FLUM. See Map I-1 of FLUM. Pursuant to Policy 1-1.1.3, the Town established a maximum density of "up to one (1) residential unit per 5 gross acres" for environmentally sensitive islands. All other undeveloped islands located in the Indian River Lagoon within the jurisdiction of the Town area are also designated "RC/ESI." Objective 1-2.6 of the Town's Plan sets out the Town's objective regarding the use of "environmentally sensitive lands" and "isolated islands": OBJECTIVE 1-2.6: CONSERVING ENVIRONMENTALLY SENSITIVE LANDS AND ISOLATED ISLANDS. The Future Land Use Map series I-4 through I-11 identify the general location of conservation resources including hydric soils (McKee Mucky clay loam, and Kesson muck); the Indian River estuarine system; flood plain areas; mangrove areas; coastal marshes; functional wetlands; the Atlantic Ocean beach and dune system, including the high hazard area; and sites of historic or archaeological significance pursuant to s9J- 5.006(4)(b), F.A.C. In addition, hydric hammocks and mixed hardwood swamp are identified as wetlands which shall be protected. These areas are not sufficiently large or distinct to be accurately mapped in the Plan, but shall be considered and mapped during the development review process in order to assure technically sound assessment of wetland boundaries, transition zones, and uplands as defined in the Town wetland protection ordinance. Similarly, the on-site assessments shall identify upland sub-areas within the environmentally sensitive areas which may have very limited development potential. Such uplands shall be deemed developable upon the owner/applicant's demonstration that roadway improvements and other requisite infrastructure can be made available concurrent with the impacts of the proposed new development as set forth in the Town's concurrency management procedures. All such infrastructure shall meet adopted levels of service (LOS) standards and shall not reduce the LOS of existing infrastructure below the adopted minimum standards. The Future Land Use Maps I-1 to I-3 designate areas with extensive wetland systems as well as the hurricane high hazard area as environmentally sensitive (ES). In addition, isolated islands within the Indian River Lagoon having extensive mangrove fringe, coastal marsh, and/or functional wetlands are also identified as environmentally sensitive islands (ESI). General performance criteria and procedures for regulating development within these areas are incorporated in this section. These areas are allocated a designation of "Residential Conservation" as explained below: . . . . To further the Town's objective concerning "isolated islands" the town adopted the following policy: Policy 1-2.6.2: Management Policy for Residential Conservation/Environmentally Sensitive Island (RC/ESI). The Future Land Use Map allocates a "residential conservation/environmentally sensitive island" designation to environmentally sensitive isolated islands within the corporate limits which currently do not have access and/or have not received approval for access to the mainland of the Town. These islands are not only environmentally sensitive but also lack available or anticipated future public infrastructure or requisite protective and emergency services. Development Restrictions and Management Techniques. The development restrictions and management techniques identified for lands designated "Residential Conservation/Environmentally Sensitive (RC/ES) in Policy 1-2.6.1 (a-e) shall apply to isolated islands, excepting that density on areas designated ISE shall have a maximum density of one (1) unit per five (5) acres. Additional Performance Criteria. In addition to the provisions cited in paragraph "a" above, no development shall be approved unless a subdivision plat has been submitted which incorporates the following prerequisite conditions prior to issuance of a development order or permit: A plan for vehicular access to the main barrier island shall receive approval from all applicable government agencies and the Town of Indian River Shores. Plans for the provision of requisite public infrastructure and emergency protective services, i.e., police, fire and ambulance shall be approved by the Town of Indian River Shores. Proof of compliance with all applicable regulations and permitting procedures of the Federal, State and local environmental agencies shall be approved. The Town also adopted the following as part of Policy 1-1.1.6 of the Town's Adopted Plan in an effort to protect wetlands on islands in the Indian River Lagoon: No development shall occur on unbridged islands within the Indian River Lagoon pursuant to Policy 1-2.6.2. Unless [sic] the federal and state permitting agencies having jurisdiction approve road and bridge permits required to establish satisfactory access and grant dredge and fill permits, then in such case Policy 1-2.6.2 cites performance standards which provide a management approach that allows for the reasonable use of such isolated islands assuming compliance with all other applicable laws and ordinances. The policy mandates approval of the road and bridge permits by the state and/or federal agencies having jurisdiction prior to granting of final Town plan approvals, development orders, or permits. Johns Island and Gem Island are designated "LD" or "Low Density Residential Development" on the FLUM. See Map I-2 of the FLUM. Density for "LD" property is limited to 3 units per gross acre. Johns Island and Gem Island were designed "LD" consistent with the fact that development had already begun or been approved on these islands. Lost Tree's Challenge to the Town's Adopted Plan. Lost Tree has challenged the following provisions of the Town's Adopted Plan to the extent that they designate the portion of the Inner Islands and the Outer Islands owned by Lost Tree as "RC/ESI": Section 1-2, "Future Land Use Map," page 1-12, and, in particular, Map I-1 of the FLUM; Objective 1-2.6; Policy 1-2.6.2; and Policy 6-1.9.1. This policy merely provides that the Town will implement the Land Use Element to the extent that it "incorporates implementing policies for managing environmentally sensitive lands identified on the Future Land Use Map." It does not designate any lands as "RC/ESI." In particular, Lost Tree has alleged in the Amended Prehearing Stipulation that the foregoing provisions of the Town's Adopted Plan creating the "RC/ESI" land use designation are not "in compliance" for the following reasons: They are inconsistent with Section 163.3177(6)(g)3, F.S. They are inconsistent and uncoordinated with other provisions of the comprehensive plan which identify Lost Tree's lands as predominantly "upland" or "nonwetland," including Data Inventory and Analysis, Map 1- 12 (page 1-32), Map V-2 (page 5-4), and Goals Objectives and Policies, Map 1-4 (page 1-16) and Map 1-11 (page 1-23); They are not clearly based on appropriate data because Lost Tree's islands are not environmentally sensitive lands; [They] are inconsistent with Policy 6-1.7.3 (page 6-7); They are not based on appropriate data and analysis accompanying the Plan; They ignore the mandate in Section 187.201(15)(a), F.S.; They fail to designate all property within the scope of the definition of environmentally significant land as environmentally significant on the FLUM, making the Plan internally inconsistent. Lost Tree has challenged the following provisions of the Town's Adopted Plan to the extent that they establish a density of 1 residential unit per 5 acres for land designated "RC/ESI": Policy 1-1.1.3; Objective 1-2.6; and Policy 1-2.6.2. In particular, Lost Tree has alleged in the Amended Prehearing Stipulation that the foregoing provisions of the Town's Adopted Plan establishing the density for "RC/ESI" designated property are not "in compliance" for the same reasons that Lost Tree has argued that the provisions creating the "RC/ESI" designation are not "in compliance." Finally, Lost Tree has challenged the following provisions of the Town's Adopted Plan to the extent that they prohibit development unless state and federal agencies having jurisdiction over necessary roads and bridges approve the permits required to bridge small channels which separate the portion of the Inner Islands and the Outer Islands owned by Lost Tree from the Barrier Islands: Policy 1-1.1.6; Objective 1-2.6; and Policy 1-2.6.2. In particular, Lost Tree has alleged in the Amended Prehearing Stipulation that the foregoing provisions of the Town's Adopted Plan are not "in compliance" for the following reasons: They are not based on appropriate data as required by Section 163.3177(8) & (10)(e) and Rules 9J-5.005(2)(a) and (c), F.A.C.; They are not based on surveys, studies and data regarding the character of the undeveloped land in order to determine its suitability for use as required by Section 163.3177(6)(a) and Rule 9J-5.006(2)(a); They are not based upon appropriate data and analysis accompanying the Plan as required by Sections 163.3177(8) and 163.3177(10)(e), F.S. and Rule 9J-5.005(2)(a) and (2)(c); They ignore the mandate in Section 187.201(15)(a), F.S.; They fail to designate all property within the scope of the definition of environmentally significant land as environmentally significant on the FLUM, making the Plan internally inconsistent. Lost Tree also alleged that the foregoing policies are inconsistent with two policies which are not actually a part of the Town's Adopted Plan. That allegation is, therefore, without merit. Lost Tree's Challenge to the Town's "RC/ESI" Land Use Designation and Density. The challenge to the designation of the Inner Islands and the portion of the Outer Islands located within the Town's jurisdiction of "RC/ESI" is largely based upon Lost Tree's conclusion that the environmental characteristics of the islands do not justify classifying them as "environmentally sensitive." The use of the designation "Environmentally Sensitive Islands" alone is of little significance. The Town could have just as easily designated the islands as simply "Undeveloped Islands." What is significant is the limitation on the density allowable for the "RC/ESI" designation. In reality, it is the density which Lost Tree has attempted to prove is not justified by the environmental features and other characteristics of the islands. While the evidence proved that there may be other more environmentally sensitive areas, the evidence also proved that there are environmentally important features of the Inner and Outer Islands which may reasonably be taken into consideration by the Town in designating the land use category and the allowable density for the islands. Those environmental considerations include the location of the islands within the Preserve, the existence of mangroves and wetlands on the islands, the use of the islands by osprey, herons, brown pelicans, and other birds, the location of the islands within the 100 year flood plain, and the high susceptibility of the islands to hurricane impacts. The existing environmental features of the islands alone would justify the Town's selected name for the land use designation for the islands and the resulting allowable density. The Town's decision was also based, however, on the fact that the islands do not have any immediately available access or transportation linkage. There was ample data and analysis to support the Town's conclusion concerning the environmental features of the Inner and Outer Islands. There was also ample data and analysis to support the Town's conclusion that there was no immediately available access or transportation link to the islands. The data and analysis submitted by the Town to the Department in support of the Town's Adopted Plan included several documents dealing with the Preserve. These documents include the following documents: "The Sebastian Inlet - Ft. Pierce Inlet Barrier Island: A Profile of Natural Communities, Development Trends, and Resource Management Guidelines," Office of Environmental Services, Florida Game & Fresh Water Fish Commission (November 1982); "Surface Water Improvement and Management (SWIM) Plan for the Indian River Lagoon, (September 1994/September 1989); "Management Plan and Implementation Strategy for the Indian River Lagoon Systems," Marine Resource Council, Florida Institute of Technology (March 1987); "Proceedings of the Indian River Resources Symposium: The Indian River Lagoon," The Marine Resources Council of East Central Florida (June 1985); "Indian River - Malabar to Vero Beach Aquatic Preserve Management Plan," Bureau of Historic and Environmental Land Management, Division of Recreation and Parks, Department of Natural Resources (January 21, 1986); "1988 Florida Water Quality Assessment 305(b) Technical Appendix," Department of Environmental Regulation (July 1988); "Soil Survey of Indian River County, Florida," U.S. Department of Agriculture, Soil Conservation Service (January 1987); "Indian River Lagoon: Spoil Island Management Plan," Nancy Brown-Peterson and Ross W. Evans, Bureau of Aquatic Preserves, Division of State Lands, Florida Department of Natural Resources (undated); U.S.G.S. Quadrangle Sheets -- Vero Beach Quadrangle and Riomar Quadrangle. These documents were also relied upon by the City. Additional information relied upon only by the Town is set out in the Data Inventory and Analysis (Petitioner's Exhibit 45) of the Town's Adopted Plan. This data includes: Existing Land Use Map Series: Soils and Topography (pages 1-32 to 1-34); Exiting Land Use Map Series: 100 Year Floodplain (pages 1-29 to 1-30); Existing Land Use Map Series: Land Uses Within Adjacent Jurisdictions (pages 1-28 to 1-30); a series of maps depicting conservation resources (pages 5-4 to 5-5.1); a discussion of wildlife habitat (page 5-7 to 5-8); a discussion of endangered, threatened, and special concern species (page 5-15 to 5-16); a map of wetland resources (pages 6-3 to 6-6); maps of marine grass beds (pages 1-27 and 6-9); and a consideration of the impacts of hurricanes (page 1-21). The Data Inventory and Analysis for the Town's Adopted Plan also includes a discussion of the Inner and Outer Islands found on pages 1-20 to 1-21 of the Data Inventory and Analysis portion of the Town's Adopted Plan. While the statement concerning the consideration of "historical" wetland elevations is incorrect, the statement, when considered as a whole, supports the Town's decision to reduce the density of development allowed on the Inner and Outer Islands. The statement is hereby adopted into this Recommended Order by reference. The source documents and other data and analysis accepted into evidence during the hearing of these cases do not focus on the Inner and Outer Islands. Instead, they focus on the general conditions of the Indian River Lagoon and the surrounding area, and the need to protect the area. These documents support the Town's concern about the location of the Inner and Outer Islands in the Preserve. To the extent that the data and analysis does deal specifically with the Inner and Outer Islands, it supports the findings of fact concerning the characteristics of the Inner and Outer Islands made in this Recommended Order. The data and analysis supports the Town's designation of the Inner and Outer Islands on the FLUM and the density of land use allowed by the Town's Adopted Plan. While the data and analysis does not support the Town's treatment of the Inner and Outer Islands solely based upon their location within the Preserve, the data and analysis supports a conclusion that the location of the islands, the specific environmental characteristics of the islands, and the lack of accessibility to the islands taken together justify the Town's land use designation of the Inner and Outer Islands. The maps of the Town's Adopted Plan cited by Lost Tree as reflecting inconsistent treatment of Lost Tree's islands on the FLUM are maps that show the existence of seagrass beds, wetlands, conservation areas, and shoreline mangroves. None of these maps indicate anything contrary to the Town's land use designation for the Inner or Outer Islands. Policy 6-1.7.3, titled "Removal of Undesirable Exotic Vegetation," is part of the Conservation Element of the Town's Adopted Plan and provides the following: The Town shall amend the adopted Tree and Mangrove Protection Ordinance to require that, prior to the issuance of a certificate of occupancy for a new development, the owner/applicant shall remove all nuisance and invasive exotic vegetation. Although there are nuisance and invasive exotic vegetation on the Inner and Outer Islands, nothing in the Town's land use designation of the Inner and Outer Islands is inconsistent with Policy 6-1.7.3. Policy 6-1.7.3 continues to apply equally to the development of the Inner and Outer Islands at 1 unit per 5 acres as it would at a higher density. Section 187.201, Florida Statutes, is the State Comprehensive Plan. Section 187.201(15)(a), Florida Statutes, establishes the following State Goal: (a) Goal.--Florida shall protect private property rights and recognize the existence of legitimate and often competing public and private interests in land use regulations and other government action. The Town's land use designation of the Inner and Outer Islands, while limiting the extent of development on the islands, does not ignore Section 187.201(15)(a), Florida Statutes. The Town took into consideration the interest of owners of undeveloped islands in the Indian River Lagoon to develop their property and the need to protect the environmental assets of those islands. The Town gave full consideration to private property interests. Finally, the evidence failed to prove that the treatment of the Inner and Outer Islands in the Town's Adopted Plan is inconsistent with the treatment of other similar property within the Town's jurisdiction. At best the evidence proved that there are some islands, e.g., Hole in the Wall Island, that have more extensive environmental features and that there are some environmentally important islands that are not being protected, e.g., John's Island. The islands designated "RC/ESI" have a range of environmental features, all of which justify the Town's land use designation despite the fact that the islands included in the category are not "identical." Those islands for which development is being allowed, on the other hand, are distinguishable from the island designated "RC/ESI." John's Island and Gem Island already have a transportation link to the Barrier Island and have already been approved for development and/or are already under development. Lost Tree's Challenge to Policy 1-1.1.6 of the Town's Adopted Plan; Bridge Access Requirement. Lost Tree's challenge to Policy 1-1.1.6, Objective 1- 2.6, and Policy 1-2.6.2 of the Town's Adopted Plan simply repeats its challenge to Objective 1-2.6 and Policy 1-2.6.2. In reality, this challenge only raises new issues concerning Policy 1-1.1.6 of the Town's Adopted Plan. Policy 1-1.1.6 of the Town's Adopted Plan prohibits development on unbridged islands until two conditions are met: (a) all permitting necessary to provide bridge access are obtained; and (b) the conditions of Policy 1-2.6.2 of the Town's Adopted Plan are met. While it is not impossible to develop unbridged islands in the Indian River Lagoon without providing bridge access, such development does create development planning problems for a governmental body. First, there is the difficulty of providing necessary emergency services which citizens expect their local governments to provide: fire and police protection. While it is true that such services can be provided, it is also true that they cannot be provided as easily as other areas where road access is readily available. Secondly, unbridged islands are more difficult to evacuate in case of a hurricane. Data and analysis available to the Town supports a concern for the safety of any citizens that might occupy unbridged islands located in the Indian River Lagoon. The available information supports a conclusion that evacuation of islands located within the Indian River Lagoon would be required even in the event of the lowest category hurricane. Existing data and analysis concerning the impacts of hurricanes on low-lying areas and the difficulty of providing emergency services to unbridged, isolated islands support the Town's decision to limit development of unbridged islands in the Indian River Lagoon until adequate access to the islands was arranged if such access could be provided. The evidence, however, proved that access to the Inner and Outer Islands located within the Town's jurisdiction cannot be provided by bridge. Consequently, the Town, by requiring that the islands be bridged as a condition precedent to development, has effectively eliminated Lost Tree's ability to develop the islands. The available data and analysis does not support such a prohibition. Policy 1-1.1.6 of the Town's Adopted Plan, by effectively eliminating Lost Tree's ability to develop the unbridged islands, conflict with Section 187.201(15)(a), Florida Statutes, quoted, supra. Policy 1-1.1.6 is, in effect, an absolute bar to development. Finally, the evidence failed to prove that the treatment of the Inner and Out Islands in Policy 1-1.1.6 of the Town's Adopted Plan is inconsistent with the treatment of other similar property within the Town's Jurisdiction. The City's Treatment of the Lagoon Islands in the City's Remedial Plan. Section 1.3.0 of the City's Remedial Plan recognizes that the FLUM illustrates the location of eleven land use classifications established in Table 1.8 of the City's Remedial Plan. One of those land use classifications is "Environmentally Significant" or "ES": Islands, riverfront, environmentally sensitive, and lands adjacent to environmentally sensitive. Section 1.3.2.2 of the City's Remedial Plan provides the following definition of "Environmentally Significant": "Environmentally significant" land shall be defined as property having one or more of the following characteristics: undeveloped islands, undeveloped waterfront; environmentally sensitive; immediately adjacent to environmentally sensitive land or undeveloped waterfront; flora and fauna typically associated with wetlands; or a habitat for rare, threatened or endangered species or species of special concern. Environmentally sensitive lands shall include areas meeting one or more of the following criteria: . . . . f) Undeveloped islands within the Indian River Lagoon; . . . . The FLUM of the City's Remedial Plan designates five islands within the City's jurisdiction as "ES," including parts of Fritz Island, the Fourth Outer Island, IR-29, Little Prang Island, and an island located immediately to the south of Prang Island. Prang Island is designated "RL" (Residential Low, with a density range of 0 to 5 units per acre). Two other islands located between two bridges within the City's jurisdiction are designated "CV" (Conservation). "CV" is also the designation for the southwest part of Fritz Island and the northern part of IR-29 located in the City. Objective 5 of the Future Land Use Element of the City's Remedial Plan provides the following: Upon adoption of the Comprehensive Plan, the City will act to protect and preserve identified environmentally sensitive areas and resources in the community, and to promote responsible site development through new land development regulations and standards established by 9/1/90. Among the Policies adopted by the City to carry out Objective 5 of the Future Land Use Element, the City's Plan includes the following: 5.3 Future development on undeveloped islands in the Indian River lagoon will be limited to residential densities not exceeding 0.2 unit per new acre, and a transfer of development rights (TDR) procedure will be established by 9/1/90 to facilitate transferal of development to other locations in the City. . . . . No property shall be used as a bridgehead property for an island that is undeveloped when said use shall have for its purpose the connection with any public right-of- way in the City of Vero Beach. Further, if said property is not within the City's jurisdiction but is immediately contiguous thereto, the City shall prohibit, by the erection of barriers, any connection with the City right-of-way. Prior to March 1, 1992, the land Development Regulations will be amended to include development criteria for lands designated Environmentally Significant. The development criteria shall include the following: Site plan approval shall be required. No fill or regrading of the property shall be allowed except to establish required road elevations and for driveways, unless the environmental assessment shows that fill or regrading will not adversely affect the environment and fill is available on site. Driveways shall not exceed road elevations. An environmental assessment shall be required to be prepared by a qualified professional. The assessment shall address any rare, threatened or endangered plants and animals and their habitats. The environmental assessment shall be considered in the site plan review process. A minimum of 80% of the site shall be held in open space and landscaped with native and/or drought tolerant vegetation as outlined in the Landscape and Tree Protection Ordinance. Structures will be reviewed on a site-by- site basis. The location of any structure will be so as to minimize potential impacts on any rare, threatened or endangered plants or animals and their habitats that are identified in the environmental assessment. Minimum lot sizes will be two (2) acres with a reduction to one (1) acre on the mainland and five (5) acres with a reduction to one unit per two and one-half (2.5) acres on islands using Transfer Development Rights, provided that the lot size reduction does not create adverse environmental impacts and provided that the net density shall not be greater than 0.5 units per acre on the mainland and 0.2 units per acre on islands. Further, transfer of density from the mainland to an island shall not occur. All review criteria above will be applicable to sites where density is transferred. Policy 8.2 of the Conservation Element of the City's Remedial Plan is virtually identical to Policy 5.7 of the Future Land Use Element of the Plan. Lost Tree's Challenge to the City's Remedial Plan. Lost Tree has challenged the City's Remedial Plan to the extent that the FLUM designates the portion of the Outer Islands owned by Lost Tree as "ES." In particular, Lost Tree has alleged in the Amended Prehearing Stipulation that the FLUM's designation of its property as "ES" is not "in compliance" for the following reasons: The designation is not based upon appropriate data as required by Section 163.3177(8) and (10)(e), F.S., and Rule 9J-5.002(a) [sic] & (c), F.A.C.; The designation is not based upon surveys, studies and data regarding the area and the character of undeveloped land in order to determine its suitability for use pursuant to Section 163.3177(6)(a), F.S., and Rule 9J- 5.006(2)(b); The designation is not based upon appropriate data and analysis accompanying the Plan pursuant to Sections 163.3177(8) and (10)(e), and Rules 9J-5.005(2)(a) and (2)(c) so as to make the Plan internally inconsistent contrary to Section 163.3177(2) and 9J-5.005(5)(a); The designation is inconsistent with Policy 5.1 and 8.1, contrary to Section 163.3177(2), F.S., and Rule 9J-5.005(5)(a); The designation is contrary to any applicable requirements of Section 187.201(15)(a), F.S.; The designation is inconsistent with Section 163.3177(6)(g)3, F.S.; The FLUM fails to designate all property within the scope of the definition of environmentally significant land as environmentally significant on the FLUM, making the Plan internally inconsistent in contravention of Section 163.3177(2), F.S., and Rule 9J-5.005(a); The designation discourages rather than encourages the use of innovative land development regulations such as clustered development, contrary to Rule 9J-5.006(3)(b)9. Lost Tree has challenged the following provisions of the City's Remedial Plan to the extent that they establish a density and development criteria for land designated "ES":: Policy 5.3 of the Future Land Use Element; Policy 5.7 of the Future Land Use Element; and Policy 8.2 of the Conservation Element. In particular, Lost Tree has alleged in the Amended Prehearing Stipulation that the foregoing provisions of the City's Remedial Plan establishing the density and development criteria for "ES" designated property are not "in compliance" for the following reasons: The policies are not based upon appropriate data as required by Section 163.3177(8) and (10)(e), F.S., and Rule 9J-5.005(2)(a) and (2)(c); The polices are not based upon surveys, studies and data regarding the area and the character of undeveloped land in order to determine its suitability for use as required by Section 163.3177(6)(a), F.S., and Rule 9J- 5.006(2)(a); The policies are not clearly supported by appropriate data and analysis accompanying the Plan as required by Sections 163.3177(8) and (10)(e), F.S., and Rules 9J-5.005(2)(a) and (2)(c); The Policies contravene applicable requirements of Section 187.201(15)(a), F.S.; The policies are inconsistent with Section 163.3177(6)(g)3, F.S.; The policies impermissibly discourage the use of innovative land development regulations such as clustered development, contrary to Rule 9J-5.006(3)(b)10. Finally, Lost Tree has challenged Policy 5.6 of the City's Remedial Plan. In particular, Lost Tree has alleged in the Amended Prehearing Stipulation that Policy 5.6 of the City's Remedial Plan is not "in compliance" for the following reasons: it is inconsistent with Section 163.3177(3)(a), F.S.; it is inconsistent with Section 163.3177(4)(a), F.S.; it is inconsistent with any applicable requirements of Section 187.201(18)(b)1, F.S.; it is inconsistent with Intergovernmental Coordination Element Goal 8.4.0 and Traffic Circulation Element Goal 2.6.0 and Objective 5; it is contrary to Section 163.3177(2), F.S., and Rule 9J-5.005(5)(a); it is contrary to any applicable requirement of Section 187.201(15)(a), F.S.; it is not based on appropriate data and analysis as required by Section 163.3177(8) and (10)(e), F.S., and Rules 9J-5.005(2)(a) and (2)(c). Lost Tree's Challenge to the City's "ES" Land Use Designation and the Density and Development Criteria for "ES" Property. Like Lost Tree's challenge to the Town's Adopted Plan, the challenge to the City's land use designation for the Outer Islands located within the City's jurisdiction of "ES" is largely based upon Lost Tree's conclusion that the environmental characteristics of the islands do not justify classifying them as "environmentally significant." What name is given to the land use designation for the Outer Islands, however, is of little significance. Again, what is really at issue is the limitation on the density of use for property designated "ES." The same findings of fact concerning the environmental importance of the Inner Islands and the portion of the Outer Islands located within the Town's jurisdiction apply to the portion of the Outer Islands located within the City's jurisdiction. Those findings of fact are hereby incorporated by reference. Some of the same documents relied upon by the City to support the limitation on the density of development on the Outer Islands were also relied upon by the Town. See finding of fact 137. Other data was cited by the City in its Adopted Plan as "References Cited" and throughout the plan itself. Lost Tree's witnesses failed to consider all of the data and analysis relied upon by the City. The data and analysis available to the City concerning the environmental characteristics of undeveloped islands located within the City's jurisdiction, like the islands located within the Town's jurisdiction, support the City's decision to limit the density of development on undeveloped islands. While the City's density designation for undeveloped islands changed significantly from the City's Transmittal Plan to the City's Remedial Plan, the evidence failed to prove that the data and analysis relied upon by the City from the beginning did not support a range of densities. More importantly, the evidence failed to prove that the density ultimately agreed to in the Remedial Plan is not within the range of densities supported by the data and analysis. The designation of some undeveloped islands as "ES" was not proved to be "inconsistent" with any other provision of the City's Remedial Plan. In particular, Policy 5.1 of the Future Land Use Element and Policy 8.1 of the Conservation Element. Policy 5.1 of the Future Land Use Element provides: Environmentally sensitive areas and resources, both natural and historic, will be defined and mapped through cooperative arrangements with Indian River County and cognizant state and regional agencies, which arrangements the City will seek to establish by 3/31/91. Policy 8.1 of the Conservation Element provides: By March 31, 1991, the City, through cooperative efforts with Indian River County and cognizant state and regional agencies, shall determine environmentally sensitive lands within the City and maintain a map of these lands in the City Planning Department. The City Land Development Regulations (to be adopted by September 1, 1990) shall address protection standards for the lands. The criteria for identifying environmentally sensitive lands shall evaluate, at a minimum, the following: Endangered or threatened wildlife or marine life habitats. Threatened or endangered vegetative species. Tidal flow pattern. Hydric soils. 100-year flood zones. Aquifer recharge potential. Beach and dune conditions. Unique habitat characteristics. Nothing in Policy 5.1 of the Future Land Use Element or Policy 8.1 Conservation Element is inconsistent with the designation of "ES" property pursuant to the FLUM. As for the development criteria of Policies 5.3 and 5.7 of the Future Land Use Element, and Policy 8.2 of the Conservation Element, the data and analysis available to, and relied upon by, the City supports these policies. Lost Tree failed to prove that the "ES" land use designation and its density and development criteria are inconsistent with Section 187.201(15)(a), Florida Statutes. The City considered the interest of owners of undeveloped islands in developing their property and balanced that interest with the need to protect the environmental assets of those islands. The City did so by allowing development on the islands and the use of transferable development rights. Lost Tree also failed to prove that the "ES" land use designation and its density and development criteria are inconsistent with Section 163.3177(6)(g)3, Florida Statutes. That provision sets out requirements that must be included in any coastal management element of a plan. Nothing in the challenged policies is inconsistent with those requirements. Lost Tree failed to prove that the "ES" land use designation and its density and development criteria are inconsistent with the treatment of other similar property within the City's jurisdiction. The evidence proved, at best, that there are some islands within the City's jurisdiction that are more environmentally significant and some that are just as significant that are not afforded the same protection. Those islands that are included in the "ES" land use designation are all within a range of environmentally significant islands that the City may protect. Similar islands that are not included in the "ES" land use designation and, therefore, may be developed, had already been approved for development and are vested properties. They could not, therefore, be included in the "ES" designation. Finally, Lost Tree failed to prove the "ES" land use designation and its density and development criteria discourage, rather than encourage, the use of innovative land development regulations such as clustered development. Lost Tree's Challenge to Policy 5.6 of the Future Land Use Element; No Bridge-Heads. Policy 5.6 of the Future Land Use Element prevents the use of any property located within the City as a bridgehead to connect any undeveloped island with the Barrier Island or the mainland. As a result of this policy, access by bridge to any undeveloped island within the City's jurisdiction is prohibited. Access will have to be obtained by boat or some other means. The policy also eliminates the use of any property in the jurisdiction of the City to access undeveloped islands within the jurisdiction of the Town. Unlike the Town's policy of prohibiting development on the Inner and Outer Islands unless bridge access is provided, the City's policy does not prevent all development of islands within its jurisdiction. Therefore, the findings of fact concerning the data and analysis that support limiting the building of bridges to undeveloped islands made, supra, support the City's policy. While the City's policy impacts the developability of islands located within the Town, it is the Town's policy of requiring bridge access before development can proceed on the islands which is not supported by data and analysis and not the City's no-bridgehead policy. The evidence also failed to prove that the City's no- bridgehead policy is inconsistent with any provision of the State Comprehensive Plan since the City's policy does not effectively prohibit development of the islands. Ownership of the Inner and Outer Islands. Lost Tree's challenge in these cases was specifically limited to the challenged provisions of the Town's Adopted Plan and the City's Remedial Plan to the extent those provisions apply to Lost Tree's ownership interest in the Inner and Outer Islands. The evidence failed to prove the precise extent to which Lost Tree actually owns the Inner and Outer Islands. The evidence was, however, sufficient to prove that Lost Tree owns at least a part of each of the Inner and Outer Islands. The evidence was also sufficient to prove the impact of the challenged provisions of the Towns' Adopted Plan and the City's Remedial Plan on the islands as a whole. That impact, therefore, necessarily will also apply to the parts of the islands which are owned by Lost Tree. In other words, to the extent that the evidence proved how the challenged provisions apply to the entire "pie," it necessarily proved how the challenged provisions apply to Lost Tree's "slice of the pie," whatever slice it may own. Developability of the Inner and Outer Islands. The evidence proved that the Inner and Outer Islands do not have any features that would prevent their development. Steps can be taken to protect mangroves, wetlands, any non-exotic vegetation, and the surrounding waters. Infrastructure can be provided with or without bridge access to the islands. Stormwater impacts may be mitigated through proper planning. Docks which may be constructed along the islands can also be limited in order to reduce impacts. Finally, hurricane evacuation of the islands can be provided. Existing Town and City laws provide for protection of mangroves, wetlands, and non-exotic vegetation. State and federal laws also provide protection for environmental features such as wetlands and the waters of the Indian River Lagoon. The Florida Department of Environmental Protection and the St. Johns River Water Management District regulate stormwater permitting in an effort to mitigate impacts on the Indian River Lagoon. The foregoing facts, however, only prove, at best, that a local government may not be able to prevent all development of property that would potentially have an impact on the Indian River Lagoon unless their are compelling reasons to do so. Those facts do not support a finding that local governments, such as the Town and the City, may not impose stricter standards than have existed in the past and that are currently imposed by the state or federal governments in order to reduce the impacts of development even further. Those facts simply support the Town's and City's conclusion that development of unbridged islands in the Indian River Lagoon should be limited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a Final Order finding the Town's Adopted Plan, except for Policy 1-1.1.6, to be ”in compliance." IT IS FURTHER RECOMMENDED that the Administration Commission find Policy 1-1.1.6 of the Town's Adopted Plan to be not "in compliance." IT IS FURTHER RECOMMENDED that the Administration Commission find the City's Remedial Plan to be "in compliance." DONE AND ENTERED this 19th day of February, 1999, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 19th day of February, 1999. COPIES FURNISHED: Mary F. Smallwood, Esquire Margaret-Ray Kemper, Esquire Ruden, McClosky, Smith, Schuster and Russell, P.A. 215 South Monroe Street, Suite 815 Tallahassee, Florida 32301 Ernest A. Cox, Esquire Gunster, Yoakley, Valdes-Fauli & Stewart, P.A. 777 South Flagler Drive, Number 500E West Palm Beach, Florida 33401 William L. Hyde, Esquire Rebecca A. O'Hara, Esquire Gunster, Yoakley, Valdes-Fauli & Stewart, P.A. 215 South Monroe Street, Suite 830 Tallahassee, Florida 32301 Ross Stafford Burnaman, Assistant General Counsel Andrew S. Grayson, Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Robert Sechen, City Attorney City of Vero Beach Post Office Box 1389 Vero Beach, Florida 32961-1389 Kenneth G. Oertel, Esquire Oretel, Hoffman, Fernandez & Cole, P.A. Post Office Box 1110 Tallahassee, Florida 32314-1110 Chester E. Clem, Esquire 2770 Indian River Boulevard Suite 501, Univest Building Vero Beach, Florida 32960-4278 James F. Murley, Secretary Department of Community Affairs Suite 100 2555 Shummard Oak Boulevard Tallahassee, Florida 32399-2100 Stephanie Gehres Kruer, General Counsel Department of Community Affairs Suite 325-A 2555 Shummard Oak Boulevard Tallahassee, Florida 32399-2100
The Issue The issue for determination is whether the Woodleys are entitled to a permit to construct a single family residence seaward of the Coastal Construction Control Line in Charlotte County, Florida. At hearing Petitioner presented the testimony of Thomas L. Jones, Albert Case Hine III (by deposition), and Sylvia S. Woodley. Petitioner had seven exhibits admitted into evidence and proffered two exhibits. Respondents presented the testimony of Sylvia S. Woodley and Erick J. Olsen. Respondents had five exhibits admitted into evidence. At the start of the formal hearing, Petitioner's Motion to Amend the Petition was granted with the agreement of the parties and the formal hearing proceeded under the Amended Request for Formal Hearing. The transcript of the proceedings was filed on January 2, 1986, and the parties filed posthearing Proposed Orders on January 14, 1986. A ruling has been made on each proposed finding of fact in the Appendix attached to and made a part of this Recommended Order.
Findings Of Fact Based upon the stipulation of the parties, the following facts are found: On September 25, 1984, Joseph V. Bell, Jr., on behalf of John C. and Sylvia S. Woodley, filed an application for a permit pursuant to Chapter 161, Florida Statutes, to construct a single-family dwelling to extend a maximum of 420 feet, a balcony to extend a maximum of 73 feet and installation of a septic tank and drainfield to extend a maximum of 35 feet, respectively, seaward of the coastal construction control line (CCCL) in Charlotte County, Florida, at approximately 536 feet south of the Department of Natural Resources' reference monument R-47. The application filed was deemed complete pursuant to rule by DNR staff on October 29, 1984. The application was withdrawn from the January 8, 1985, Governor and Cabinet meeting at the request of the applicant. This application was deferred from the March 19, 1985, Governor and Cabinet meeting with a motion for the Executive Director to submit a recommendation relative to the State acquisition of the property. The application was again considered at the May 7, 1985, Governor and Cabinet meeting and the Executive Director recommended acquisition of the Woodley property and surrounding area adjacent to the Don Pedro Save our Coast Project. With the concurrence of the Woodleys, the Governor and Cabinet deferred the request to February 1, 1986, to allow time for the land acquisition. On June 5, 1985, the Land Acquisition Selection Committee met to consider adding the proposed addition to the Don Pedro Island Complex Land Acquisition Project under the Save Our Coast Component of the State Recreation and Parks Land Acquisition Program. The Committee voted 5-1 against the land acquisition. The Executive Director again agendaed the application for consideration before the Governor and Cabinet, sitting as the agency head of the Department of Natural Resources, on July 2, 1985. The staff recommendation was for denial. The following additional facts were found based upon testimony and evidence presented at the formal hearing: The application was approved by the Governor and Cabinet on July 2, 1985, with the specific conditions that the structure be constructed in accordance with DNR's structural specifications (pursuant to Section 16B-33.07, Florida Administrative Code) and that the Woodleys agree not to armor their property in the future. The Woodleys have stipulated that they will comply with these conditions. DNR Final Order No. 3229 was issued by DNR on July 29, 1985, and incorporated the aforementioned conditions. The Woodleys have owned the subject property since 1956. The Petitioner, Thomas L. Jones, purchased the property adjacent to and landward of the Woodleys' property on June 28, 1985. Jones' witness, Dr. Albert Case Hine, III, whose testimony was offered by deposition, is a geological oceanographer studying modern shallow marine depositional environments and coastal geological systems. However, Hine was neither offered as nor accepted as an expert witness. According to Hine, the Woodleys' property could be threatened by future inlet activity. However, this opinion was based on a undated report which does not identify the author. Additionally, Hine has never visited the island or shoreline in question, has never studied Charlotte County, and based his opinion essentially on information provided to him by Jones. Therefore little weight is given to Hine's testimony. Erik Olsen was admitted as an expert in coastal engineering, coastal processes and the application of Chapter 161, Florida Statutes, and Chapter 16B-33, Florida Administrative Code. Olsen has direct experience with Charlotte County and particularly the Knight Island Complex which includes everything from Stump Pass about five miles north, to Gasparilla Pass about three miles south of the Woodleys' property. He has reviewed historical data for that area spanning 120 years. Olsen has been on the Woodleys' property. Woodleys' property is not threatened by inlet activity which would result in the reopening of a pass adjacent to and abutting on the property. The single family residence proposed by the Woodleys will be located as far landward on their property as possible. The structure will have no adverse impact on adjacent properties and will pose no risk or danger to the general public or to the ecological system in the area of their property. The siting of the proposed structure complies with the provisions of Rule 16B- 33.07(1), Florida Administrative Code. The only risk of construction of the structure is being borne and will be borne by the Woodleys. The attendant risk is that of erosion. The shoreline adjacent to the Woodleys' property has eroded at the average rate of 4.9 feet per year over the past ten years. The rate is an average and takes into account differing rates of erosion and accretion during different time periods. For example, the erosion rate for May, 1974 to October, 1981 was 3 feet per year. As the result of a major storm, the erosion rate from July, 1982 to December, 1982 was 54 feet per year. The accretion rate for December, 1982 to September, 1983 was 20 feet per year and for September, 1983 to April, 1984 was up to 5 feet per year. The future erosion rate will be affected by various factors such as storms and a potential Corps of Engineers project. In the past at lea-et one other structure existed on a lot seaward of the Woodleys' property, but it has been either destroyed by storm action and erosion or removed with only the pilings remaining. Approximately 60 feet of the lot still remained between the Woodleys' lot and the shoreline in 1984. On or about November 6, 1985, approximately 40 feet of the lot remained between the Woodleys' lot and the mean high water line. On a survey performed by Giffels-Webster Engineering Inc., on November 6, 1985, the approximate thirty year erosion projection is approximately 20.5 feet seaward of the seaward limit of the Woodleys' property.
Conclusions The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes. The DNR administers the regulation of construction and excavation activities seaward of established Coastal Construction Control Lines (CCCL) pursuant to Chapters 161, Florida Statutes, and Chapter 16B-33, Florida Administrative Code. Permits for construction seaward of the CCCL are issued by DNR upon application of the property owner and upon consideration of adequate engineering data concerning shoreline stability, storm tides related to shoreline topography, design features, potential impacts, the location of structures upon the beach-dune system and potential cumulative effect of the location of structures upon the beach-dune system. Rule 16B- 33.06, Florida Administrative Code. Rule 16B-33 05, Florida Administrative Code, purports to allow only activities seaward of the CCCL which are necessary and justified. In the present case the construction of the proposed single family residence is necessary and justified by the Woodleys' right and desire to enjoy the property which they purchased in 1956. The Woodleys submitted sufficient facts and data to meet the requirements of Rule 16B-33.06. The proposed structure is located as far landward on their property as possible in order to minimize the potential impact on the beach-dune system. It is concluded that the proposed structure is justified under Rule 16B-33.06. Rule 16B-33 07, Florida Administrative Code, sets forth the structural and-other requirements necessary for permit approval. As that rule relates to location of the proposed structure, it has been satisfied. The structure is also located so as to minimize any expected adverse impact on the beach-dune system. There are no expected adverse impacts on adjacent properties. As a condition of the permit, the structure will be designed and constructed to resist the forces associated with a one-hundred year storm event. The Woodleys have agreed to this condition and have had the necessary design modifications made in the plans for the structure. The single family residence proposed by the Woodleys will satisfy all of the requirements of Rule 16B-33.07. In summary, the Woodleys have met the requirements of Chapter 161, Florida Statutes, and Chapter 16B-33, Florida Administrative Code. They have established by the competent, substantial evidence that they are entitled to the permit.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Natural Resources enter a Final Order granting to John C. and Sylvia Woodley a permit for construction of a single family residence seaward of the Coastal Construction Control Line in Charlotte County, Florida, subject to the following conditions. That the structure be constructed in accordance with the structural specifications established in Rule 16B-33.07, Florida Administrative Code. That no permit be sought or issued for armoring of the subject property in the future. It is further RECOMMENDED that the Amended Request for Formal Hearing, filed by Thomas L. Jones, be DISMISSED. DONE and ENTERED this 27th day of January, 1986, in Tallahassee, Florida. DIANE K. KIESLING 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 27th day of January, 1986. APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties to this case. Rulings on Proposed Findings of Fact of Petitioner 1. Adopted in substance in Finding of Fact 9. 2. Adopted in substance in Finding of Fact 16. 3. Adopted in substance in Finding of Fact 17. 4. Adopted in substance in Finding of Fact 10. 5. Adopted in substance in Finding of Fact 7. 6. Adopted in substance in Finding of Fact 6. 7. Adopted in substance in Finding of Fact 3. 8. Adopted in substance in Finding of Fact 5. 9. Adopted in substance in Finding of Fact 10. Adopted in substance in Finding of Fact 7. Rejected as unnecessary. Rulings on Proposed Findings of Fact of Respondent DNR Adopted in substance in Finding of Fact 1. Adopted in substance in Finding of Fact 2. Adopted in substance in Finding of Fact 3. Adopted in substance in Finding of Fact 4. Adopted in substance in Finding of Fact 5. Adopted in substance in Finding of Fact 6. Adopted in substance in Finding of Fact 7. Adopted in substance in Finding of Fact 8. Adopted in substance in Finding of Fact 9. Adopted in substance in Finding of Fact 11 except as it recites testimony. Adopted in substance in Finding of Fact 12 except as it recites testimony. Adopted in substance in Finding of Fact 12 except as it recites testimony. Adopted in substance in Finding of Fact 12 except as it recites testimony. Adopted in substance in Finding of Fact 12 except as it recites testimony. Adopted in substance in Finding of Fact 15 except as it recites testimony. Adopted in substance in Finding of Fact 15 except as it recites testimony. Rejected as unnecessary. Adopted in substance in Finding of Fact 13 except as it recites testimony. Adopted in substance in Finding of Fact 13 except as it recites testimony. Adopted in substance in Finding of Fact 13 except as it recites testimony. Adopted in substance in Finding of Fact 14 except as it recites testimony. Rejected as unnecessary. Adopted in substance in Finding of Fact 15 except as it recites testimony.e-'~LR Adopted in substance in Finding of Fact 15 except as it recites testimony. Adopted in substance in Finding of Fact 18. Rulings of Proposed Findings of Fact of Respondents Woodleys Adopted in substance in Finding of Fact 1. Adopted in substance in Finding of Fact 2. Adopted in substance in Finding of Fact 6. Rejected as unnecessary and irrelevant. Adopted in substance in Finding of Fact 7. Rejected as unnecessary. Adopted in substance in Finding of Fact 7. Adopted in substance in Finding of Fact 7. Rejected as argument and as constituting a conclusion of law. Adopted in substance in Finding of Fact 11. Adopted in substance in Finding of Fact 12. Adopted in substance in Findings of Fact 15 and 16. Rejected as conclusory and argumentative. COPIES FURNISHED: Andrew Grayson, Esquire 3900 Commonwealth Boulevard Tallahassee, Florida 32303 David P. Rankin, Esquire 4600 West Cypress, Suite 410 Tampa, Florida 33607 W. Kevin Russell, Esquire and Phillip J. Jones, Esquire 201 West Marion Avenue Suite 301 Punta Gorda, Florida 33950
The Issue At issue in this proceeding is whether petitioners' application for consent to construct a private dock within John Pennekamp Coral Reef State Park should be approved.
Findings Of Fact The parties Petitioners, Ian Koblick and Tonya Koblick, are the owners of Lots 3 and 4, Block 9, Anglers Park, Key Largo, Monroe County, Florida, according to the plat thereof recorded in plat book 1, page 159, public records of Monroe County, Florida. Such real property is contiguous to Largo Sound, a navigable water body, and title to the submerged lands under Largo Sound is vested in the State of Florida, in trust for the people of the state. Respondents are the Department of Natural Resources (DNR) which, pertinent to this case, includes the Division of State Lands and the Division of Recreation and Parks; and, the Board of Trustees of the Internal Improvement Trust Fund (Board of Trustees) which is comprised of the Governor and Cabinet, who are also the agency head of the Department of Natural Resources. Sections 20.25, Florida Statutes. The Division of State Lands performs all staff duties for the Board of Trustees related to acquisition, administration and disposition of state lands, and the Division of Recreation and Parks is charged with the duty to supervise, administer, regulate, control, preserve and maintain all public parks held by the state. Sections 253.01 and 258.004, Florida Statutes. The application On January 29, 1988, petitioners submitted a joint application to the Department of Environmental Regulation (DER) and the Department of the Army, Corps of Engineers (Corps), to construct a private single-family dock on the sovereign submerged lands contiguous to their property. Thereafter, on February 10, 1988, a copy of the application was likewise filed with the Division of State Lands, presumably by DER in conformance with Section 253.77, Florida Statutes, since the project involved construction on state lands. According to the application, the proposed dock would measure 70 feet in length and 4 feet in width, and include one boat slip measuring 30 feet in length and 9 feet in width. Petitioner Ian Koblick proposed to dock his personal boat at such facility, and to use such boat for, inter alia, commuting to and from work. Construction of the dock does not, however, bear any relationship to petitioner's ability to access their property, since their property is accessible by road. On February 3, 1988, DER notified petitioners that their application was exempt from its dredge and fill permitting requirements, pursuant to Section 403.813(2)(b), Florida Statutes, and on April 27, 1988, the Corps notified petitioners that their project was authorized by a Department of the Army general permit, issued under the authority of Section 10 of the Rivers and Harbors Act of March 3, 1899 (33 U.S.C. 403), which allowed the construction of private single-family piers in navigable waters of the United States under certain conditions. In the interim, by letter of February 22, 1988, DNR's Division of State Lands advised petitioners that their project would require approval pursuant to Chapter 253, Florida Statutes (presumably Section 253.77, Florida Statutes), and that since the project was located within John Pennekamp Coral Reef State Park, it might be affected by comments requested of DNR's Division of Recreation and Parks. Following a delay occasioned by DNR's study of dock and fill encroachments within John Pennekamp Coral Reef State Park, discussed infra, the Division of State Lands, by letter of March 9, 1989, advised petitioners that: . . . The fundamental problem with your dock application lies in the fact that the proposed structure falls within the boundaries of John Pennekamp Coral Reef State Park. Pursuant to Florida Administrative Code 16D-2.011(3), construction activities of any kind are prohibited within Pennekamp Park unless initiated by the Division of Recreation and Parks . . . I understand that . . . our Florida Keys Field Office is presently preparing a package for submittal to Tallahassee so that a final response of your request can be made . . . . Thereafter, following the Board of Trustees' resolution of the encroachment issue, discussed infra, the Division of State Lands, by letter of September 26, 1991, denied petitioners' application for a consent for use of state lands, based on Rule 16D-2.011(3), Florida Administrative Code. However, by letter of November 13, 1991, the Division of State Lands advised petitioners that: The Division of State Lands has reconsidered its denial of consent for use of the state lands associated with Mr. Koblick's residential dock, as stated to Mr. Koblick in my letter of September 26, 1991, and has determined that there is no basis in its rules to deny his application for a single- family dock. Therefore I rescind that letter. However, Mr. Koblick's dock is located in John Pennekamp Coral Reef State Park and construction activities in the park are a violation of the Florida Administrative Code Rules of the Division of Recreation and Parks. The Board of Trustees of the Internal Improvement Trust Fund has dedicated the responsibility of the John Pennekamp State Park to the Division of Recreation and Parks of the Department of Natural Resources. Based upon our assessment, I strongly recommend that you contact Fran Mainella, Director, Division of Recreation and Parks, at the address above, to determine if Mr. Koblick's application is consistent with its policies and codes prior to beginning any construction activities. In response to such correspondence, petitioners, by letter of December 17, 1991, requested authorization from the Division of Recreation and Parks to construct their dock within the park. By letter of December 27, 1991, the Division of Recreation and Parks, based on Rule 16D-2.011(3), Florida Administrative Code, denied petitioner's application. Here, by complaint against respondents, DNR and the Board of Trustees, petitioners contest the propriety of the Division of State Land's failure to issue a consent of use permit pursuant to Rule 18-21.005(1)(a), Florida Administrative Code, and the refusal of the Division of Recreation and Parks to approve their application for authorization to construct their dock within the boundaries of John Pennekamp Coral Reef State Park. Petitioners contend, as set forth in their proposed recommended order, that they should prevail in the instant proceeding based on the following "theories": 1/ The "riparian rights" provision in Dedication 22309A, must be construed as of September 21, 1967 (the date of the dedication), to include the riparian right to build a dock in Pennekamp Park. When the "riparian rights" provision was adopted it was intended to afford land owners protection from Board of Parks and Historic Memorials Rules which prohibited dredging, filling and other construction activities in Pennekamp Park. The "riparian rights" provision was also intended to assure that adjacent landowners would not be treated in a different manner merely because of their proximity to Pennekamp Park. Having obtained an exemption from the Department of Environmental Regulation ("DER") on February 3, 1988, Petitioners were entitled to a consent of use "by rule" in accordance with Rule 18-21.005(1)(a), Fla. Admin. Code. Since Respondents authorized and permitted numerous docks, seawalls, and dredge and fill activities in Pennekamp Park for over 20 years, their decision to apply Rule 16D-2.011(3), Fla. Admin. Code, to Petitioners' single family dock is arbitrary and unreasonable. The April 12, 1990, Board of Trustees "Policy" was ineffective to modify the riparian rights provision in Dedication 22309A, or to repeal the consent of use granted on February 3, 1988, by Rule 18- 21.005 Fla. Admin. Code. Because the April 12, 1990, Board of Trustees' Policy prohibits "future authorizations" it does not apply to Petitioners' application which was deemed authorized as of February 3, 1988. The John Pennekamp Coral Reef State Park On December 3, 1959, the Board of Trustees dedicated certain portions of the outer Continental Shelf situated seaward of a line three geographic miles from Key Largo, Monroe County, Florida, to the Florida Board of Parks and Historic Memorials, the predecessor to DNR's Division of Recreation and Parks. Such dedication was for the express purpose of establishing the area as the Key Largo Coral Reef Preserve, now known as the John Pennekamp Coral Reef State Park, and to restrict the use of such submerged lands to park, recreational and preservation purposes. At the time of the aforesaid dedication, the State of Florida and the United States of America (United States) had been involved in litigation regarding the seaward boundaries of the State of Florida in the Gulf of Mexico and the Atlantic Ocean, and the Trustees recognized that all, or a portion, of the dedicated lands might ultimately be found not to lie within the boundary of the State of Florida. Notwithstanding, there apparently being a community of interest between the state and federal governments regarding the preservation of the coral reef formation, the State of Florida dedicated whatever interest it might have in such submerged lands for park, recreational and preservation purposes. Ultimately, the United States prevailed, and the State of Florida was found to have no interest in the submerged lands lying seaward of a line three geographic miles from Key Largo. Notwithstanding, the dedication of December 3, 1959, was generally known to describe the westerly boundary of John Pennekamp Coral Reef State Park, and provided established reference points from which additional submerged lands dedicated on September 21, 1967, discussed infra, could be identified. By Dedication 22309A, dated September 21, 1967, the Board of Trustees dedicated to the Florida Board of Parks and Historic Memorials, the predecessor to DNR's Division of Recreation and Parks, certain sovereignty lands in Monroe County, Florida, as follows: Those submerged tidal bottom lands in the Atlantic Ocean lying between the John Pennekamp Coral Reef State Park and Key Largo including the submerged land in Largo Sound and the various inlets along the easterly coast of Key Largo; as and for public State Park purposes only . . . SUBJECT, HOWEVER, to any riparian rights and interest which may exist in or affect the above described lands. Considering the dedication of December 3, 1959, which was commonly known to delineate the then western boundary of John Pennekamp Coral Reef State Park, and the dedication of September 21, 1967, the current boundaries of the park can be located by a surveyor. Those boundaries extend from the three-mile limit offshore to the mean high water line of Key Largo, within fixed lines on the north and south, and include Largo Sound, under which the submerged lands contiguous to petitioners' property lie. Today, as a consequence of the aforesaid dedications and certain leases between the Board of Trustees and the Division of Recreation and Parks, John Pennekamp Coral Reef State Park consists of approximately 56,000 acres, of which 53,000 acres are submerged. Administered by DNR's Division of Recreation and Parks, the park currently draws approximately one million visitors a year. The rules at issue Section 253.77, Florida Statutes, provides: (1) No person may commence any excavation, construction, or other activity involving the use of sovereign or other lands of the state, the title to which is vested in the Board of Trustees of the Internal Improvement Trust Fund or the Department of Natural Resources under this chapter, until such person has received from the Board of Trustees of the Internal Improvement Trust Fund the required lease, license, easement or other form of consent authorizing the proposed use. Consistent with such provision, the Board of Trustees have adopted Rule 18-21.005, Florida Administrative Code, which establishes the form of approval required for various activities. Pertinent to this case, subsection (1)(a) of the rule provides that where, as here, the proposed activity is exempt from DER permitting requirements under Section 403.813(2)(b), Florida Statutes [providing for exemption of private docks of 500 square feet or less of over- water surface area under certain circumstances], it "is hereby exempted from any requirement to make application for consent of use, and such consent is herein granted by the board " Notwithstanding the provisions of Rule 18-21.005(1)(a), Florida Administrative Code, which grants, "by rule," consent of use where the project is exempt from DER permitting requirements, the Division of Recreation and Parks' Rule 16D-2.011(3), Florida Administrative Code, prohibits all construction activities in John Pennekamp Coral Reef State Park not specifically initiated by the Division of Recreation and Parks. Such rule has been effective since July 16, 1975, and is similar to other rules applicable to all other state parks, which likewise prohibit construction activities not initiated by the division. 2/ The purpose of the Division of Recreation and Parks' rule is to protect and preserve the coral reef formations and other natural resources of the park, and is premised on the assumption that the cumulative impact of construction activities in the park, such as docks, seawalls, groins, boat ramps, mooring buoys and ski ramps, would have an adverse effect on the park's natural resources. 3/ Construction activities in the park Following receipt of petitioners' application in February 1988, it became apparent that, notwithstanding the provisions of Rule 16D-2.011(3), Florida Administrative Code, encroachments into John Pennekamp Coral Reef State Park existed. Consequently, the Board of Trustees, as head of DNR, directed that DNR prepare a comprehensive report on all filling and construction activities that had occurred in the park. Thereafter, on August 22, 1989, the Board of Trustees directed DNR to conduct public meetings with respect to a proposed policy to address the encroachments that were discovered. Pertinent to this case, DNR's study identified 40 private docking facilities within the park boundaries. Of those structures, DNR's report revealed that seven were constructed prior to the park's expansion in 1967, 22 had no apparent authorization, six had received permits from either DER, Monroe County or the Corps but not DNR, and five had been "authorized" by DNR. The study further identified four commercial docking facilities within the park, only one of which was authorized, it having been registered as a grandfathered structure, and 12 unauthorized fills. 4/ Regarding the five private docks that had been "authorized," the proof demonstrates that the first dock was approved by the Board of Trustees on September 13, 1974, prior to the effective date of Rule 16D-2.001(3), Florida Administrative Code, and that the Division of Recreation and Parks, although asked to comment, voiced no objection to its construction. Such authorization was apparently granted under the "Trustees' Exemption Rule," the provisions of which do not appear of record. The remaining four docks were "approved" for a consent of use in 1980, 1982, 1986, and 1987, respectively, by field staff of DNR's Division of State Lands, under the exemption afforded by Rule 18- 21.005(1)(a), Florida Administrative Code, but no approval was ever requested of, or granted by, the Division of Recreation and Parks. Regarding the "approval" garnered from the Division of State Lands for the four private docks, it is worthy of note, in so far as it may have borne on the Trustees' policy choice of April 12, 1990, discussed infra, that under the provisions of Rule 18-21.005(1)(a), Florida Administrative Code, consent of use is automatic and no express or separate authorization is required. Notwithstanding, the Division of State Lands has, when requested to do so by applicants who apparently desire written confirmation of such exemption, provided such "approval." Based on DNR's study and the public meetings, DNR recommended a policy to the Board of Trustees, at their meeting of April 12, 1990, to address the encroachments that had occurred in the park. That policy, approved by the Board of Trustees, was as follows: Private Docks: . . . (1) that all docks in existence prior to 1967 within state park waters receive authorized structure status; (2) that all docks within state park waters legally authorized by the Department of Natural Resources or the Board of Trustees during or after 1967 receive status as authorized structures; (3) that all other private docks in existence since 1967 within state park waters that are not legally authorized by Department of Natural Resources or the Board of Trustees have been evaluated on a case-by- case basis, taking into consideration any authorization issued by state and federal environmental agencies and, using the Florida Keys Marina and Dock Siting Policies and Criteria - 18-21.0041, Florida Administrative Code, as a guideline for reviewing environmental impact on marine communities, designate the structure as either authorized or require removal or modification; and (4) that no future authorizations will be issued for the construction of new private docks in state park waters. Commercial docks: . . . (1) that docks currently authorized within state park waters by the Department of Natural Resources or Board of Trustees will retain authorized status until such time that current authorization expires; (2) that all other docks be considered as unauthorized structures and removed from state park waters within 90 days of receiving legal notification from the Department of Natural Resources; and (3) that no expansion of authorized commercial docks or construction of new commercial docking facilities be authorized. Fills: . . . (1) that unauthorized fills have been evaluated on a case-by-case basis using environmental impact to the marine environment as the primary evaluation criteria; (2) fills found to be detrimental to the marine environment may require partial or complete removal; and (3) no new fills be authorized. Such policy was an apparent effort by the Board of Trustees to fairly resolve the status of structures existent before the park's boundaries were expanded in 1967, as well as subsequent encroachments, some of which, until 1988, were approved by the Division of State Lands under the provisions of Rule 18-21.005(1)(a) in apparent ignorance of, or refusal to accord deference to, the Division of Recreation and Parks Rule 16D-2.011(3). The Board of Trustees' policy has not been formally adopted as a rule, but does reflect an interpretation of Chapter 18-21, Florida Administrative Code, that would preclude the approval of a consent of use where the proposed activity would violate the rules of the Division of Recreation and Parks. See also Kreiter v. Chiles, 595 So.2d 111 (Fla. 3d DCA 1992), rev. denied 601 So.2d 552 (Fla. 1992), discussed infra, where the Board of Trustees denied a request for a consent of use under similar circumstances. Riparian rights and the "subject to" clause Here, petitioners contend that the riparian rights provision contained in the "subject to" clause of Dedication 22309A should be construed to include the right of riparian upland owners, such as petitioners, to construct a dock on adjacent sovereign submerged lands. For the reasons that follow, petitioners' contention is rejected. As heretofore noted, Dedication 22309A, dated September 21, 1967, expanded the boundaries of John Pennekamp Coral Reef State Park by dedicating certain sovereignty lands in Monroe County, Florida, as follows: Those submerged tidal bottom lands in the Atlantic Ocean lying between the John Pennekamp Coral Reef State Park and Key Largo including the submerged land in Largo Sound and the various inlets along the easterly coast of Key Largo; as and for public State Park purposes only . . . SUBJECT, HOWEVER, to any riparian rights and interests which may exist in or affect the above described lands. The "subject to" clause was inserted into the aforesaid dedication by the Board of Trustees based on its staff's recommendation that the dedication be authorized: . . . but . . . contain the provision that the statutory riparian rights and the right to purchase the riparian bottom lands by an affected upland owner not be impaired in any manner. (Emphasis added). Considering the staff recommendation, which was the apparent impetus for the "subject to" clause, and the language of the "subject to" clause, it is concluded that the "subject to" clause is clear and unambiguous and evidences no intention to accord upland owners any riparian right beyond that existent under law. Such rights were defined at the time, as they are now under Section 253.141(1), Florida Statutes, as follows: Riparian rights are those incident to land bordering upon navigable waters. They are rights of ingress, egress, boating, bathing, and fishing and such others as may be or have been defined by law . . . . As will be addressed in the conclusions of law, riparian rights did not at the time, and do not now, include the unqualified right to construct a dock on sovereign submerged lands, and petitioners' contention that the "subject to" clause should be so interpreted is rejected as contrary to the clear and unambiguous language of such clause. In reaching the foregoing conclusion, the proof offered by petitioners regarding the Board of Trustees' sale of state owned submerged lands in the park to private persons subsequent to 1967, the Board of Trustees' authorization for the construction of an access or navigational channel in the park by a private person subsequent to 1967, and the authorizations granted for private docks within the park, as heretofore discussed, has not been overlooked. However, for the reasons that follow, such proof failed to persuasively demonstrate, as contended by petitioners, that the "subject to" clause was intended to afford upland owners an unqualified right to construct a private dock on sovereign submerged lands or to restrict the Division of Recreation and Parks, or its predecessor, from restricting such construction activities in the park. Foremost among the reasons petitioners' proof was unpersuasive is the conclusion reached that the "subject to" clause is clear and unambiguous. Under such circumstances, resort to extrinsic evidence to interpret the clause is unnecessary, and the proof offered by petitioners is irrelevant. Moreover, as to the proof itself, it is woefully lacking in sufficient specificity to persuasively demonstrate that the clause should be interpreted differently. With respect to the proof dealing with the Board of Trustees' sale of some state-owned submerged lands within the park to private persons subsequent to 1967, there was no proof regarding the date of any such sales, to whom it was sold, or the circumstances surrounding the sale, but simply generalized proof that such sales had occurred. The same lack of specificity exists with regard to the proof offered with regard to the Board of Trustees' authorization for the construction of a navigation channel within the park subsequent to 1967. Under such circumstances, the proof offered fails to demonstrate any persuasive nexus between the Board of Trustees' action and the "subject to" clause. Rather, the Board of Trustees' action may as easily be ascribed to other legal authority upon which the board was empowered to alienate state lands, as the "subject to clause," and any conclusion to the contrary would be base speculation. See e.g., Sections 253.12 et. seq., Florida Statutes (1967). Finally, the proof offered regarding the authorizations granted for the construction of private docks within park boundaries, discussed supra, and the opinions expressed within DNR during such period that common and statutory law regarding riparian rights contemplated the construction of such docks pursuant to the riparian owner's right of ingress and egress, does not compel a different conclusion. Rather, such proof evidences a misapprehension of the law, as opposed to a reflection of any significance to be accorded the language used in the "subject to" clause beyond its patent import.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondents render a final order which denies petitioners' request for consent of use, as well as their request for authorization to construct a private dock within the boundaries of John Pennekamp Coral Reef State Park. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 2nd day of February 1993. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February 1993.
