The Issue Whether Respondent Pierson should be granted variances to permit construction of a triplex on a lot 95 feet wide and 87 feet deep. To do so the three variances required are (1) of 5 feet in width, (2) of 13 feet in depth, and (3) 753 square feet in area (10,000 square feet required).
Findings Of Fact Don Curtis Pierson owns the north one-half of Lot 2 and all of Lot 3, Block 6, Revised Map of Clearwater Beach, and has owned this property for some 28 years. The property is zoned RM-20 and is high density residential developed. Pierson's lot is approximately 95 feet by 87 feet (approximately 82,500 square feet). The property is currently occupied by a duplex which was constructed according to Code, except for variances of zero setback from the coastal construction control zone and a 6 foot height variance to permit the construction of a building 31 feet in height. Appellant is the owner of a multifamily building adjacent to Pierson's property which was constructed before various code provisions became effective and was constructed to the lot lines without any setbacks. When Pierson applied for variances in 1983 to construct a triplex on his property, the Board of Adjustment Appeal granted setback variances of 10 feet in rear and front setback lines to permit the construction of a triplex on this property. Vasilaros appealed that grant, and on July 12, 1983 the undersigned heard that appeal. On August 31, 1983, an order was entered denying the setbacks, but approving the construction of a triplex on the lot less than 10,000 square feet in area. That approval was predicated upon then Section 131.020 of the Land Development Code which waived the area requirement for a lot of record. This Section was removed in the 1985 rewrite of the Land Development Code. Specific code provisions respecting the size of the lot on which a three family structure may be erected are in Section 135.044 which requires a minimum lot area of 10,000 square feet, and minimum lot width and depth of 100 feet each. The applicant's only hardship upon which the requested variance can be granted is the uniqueness of the property becoming nonconforming solely by reason of zoning changes.
The Issue The issue in this case is whether to grant the appeal of Valentinos Koumoulidis from the Planning and Zoning Board's denial of his application for variances from the requirement of a minimum lot width of 150 feet at the setback line and from the requirement of a minimum of 20 percent clear space.
Findings Of Fact When the Appellant, Valentinos Koumoulidis, bought the subject property, the building was being used as a six-unit motel--three units on each of two floors. There were approximately 1600 square feet of space on each of the two floors. The property fronts at 606 Bayway Boulevard; the back of the property is waterfront. In 1991, the Appellant applied for and was granted a parking variance and variances to enable him to convert the first floor to retail use and convert the second floor to a residence. Apparently construction was delayed, and in October, 1992, the Appellant reapplied for the variances to enable him to convert the first floor to retail use and convert the second floor to a residence, while withdrawing the application for a parking variance. (He had decided to convert from straight- in/back-out parking to an off-street parking lot.) In 1994, the Appellant again applied for variances, this time to allow him to add approximately 300 square feet of commercial space to the back of the first floor and approximately 900 square feet of residential space to the back of the second floor. The Board denied those variance requests in October, 1994. Rather than appeal, the Appellant decide not to pursue the addition of commercial space to the back of the first floor and, on December 22, 1994, instead applied for variances to allow him just to add approximately 900 square feet of residential space to the back of the second floor. (Of the 900 square feet, approximately 550 would be enclosed, and approximately 350 would be open deck.) The evidence (primarily through the testimony of Noel Woods, one of the Appellant's neighbors) was that the residential property in the immediate vicinity is comparable, in terms of square footage of living space per dwelling unit, to the Appellant's current second floor--i.e., approximately 1600 to 1700 square feet. There was some evidence that residential properties across the intracoastal waterway from the Appellant's property are valued as high as a million dollars. But the evidence (again, the testimony of Noel Woods) also was that condominium units in the immediate vicinity are valued at approximately $175,000. There was no evidence that the use the Appellant is making of his property (retail on the first floor and residential on the second floor) is not a reasonable use.
Findings Of Fact Petitioner owns Lot 67 Countryside, Tract 60, which fronts on Atwood Court, with a small side (approximately 45 feet) facing Landmark Drive. Landmark Drive is a main thoroughfare with heavy traffic expected to increase as the area continues to grow. Landmark Drive is a non-addressed street on which a property owner would be permitted to erect a four-foot high fence on the property line. If Petitioner moved the fence 25 feet back from the property line the zoning regulations would permit the erection of a six-foot high fence. Moving the fence this far would place the fence some 50 feet from the right-of-way of Landmark Drive and would take up so much of Petitioner's property that his future plans to install a swimming pool would be thwarted. In the one and one-half mile stretch of Landmark Drive in the vicinity of Petitioner's property only two fences have been erected which required variances and those encroach only one or two feet into the setback line. At the same time Petitioner's request for variance was denied the board granted a variance to another owner in the same subdivision who had put up a fence without getting a variance. There, the board found it would constitute a hardship to require that landowner to remove or relocate his fence since a swimming pool was also involved. Other applications for variances to erect fences on property fronting on Landmark Drive have been denied in the past.
Findings Of Fact On or about August 11, 1987 an application for conditional use approval to allow on-premises consumption of alcoholic beverages (4COP) was filed on behalf of Joseph W. McGoldrick for property located at 2848 Gulf to Bay Boulevard in Clearwater, Florida. The property is zoned general commercial (CG) and multiple family residential (RM-12). A public hearing before the Planning and Zoning Board was held on September 1, 1987. The Planning and Zoning Board voted 5-1 to grant conditional use approval for this application. A timely appeal was taken by Petitioners on September 15, 1987. Petitioners are surrounding property owners whose property is located within five hundred feet of the subject property. With this application, McGoldrick seeks approval for on-premises consumption of alcoholic beverages since he intends to convert the use of the property to a nightclub. The parties stipulated that the property in question is within five hundred feet of several residences, including Petitioners'.
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 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.
Findings Of Fact Respondent, Mid-Keys Development Corporation (Mid-Keys), is the owner of Lot 98, Stirrup Key Subdivision, Monroe County, Florida; a property located on Florida Bay, a natural waterbody, and within that part of Monroe County designated as an area of Critical State Concern. On September 12, l989, Monroe County issued to Mid-Keys building permit No. 8920001017 to construct a single-family home on Lot 98. As permitted, the home would be constructed 20 feet landward of the top of a dike or berm which runs along the rear of the property, as well as approximately 20 feet landward of a mangrove fringe which parallels the shoreline of the property. 1/ Petitioner, Department of Community Affairs (Department) pursuant to Section 380.07, Florida Statutes, appealed the issuance of the subject permit, and contends that, as permitted, construction of the home would violate Monroe County's comprehensive plan and land development regulations. Succinctly, the Department contends that under existent regulations the proposed home must be set back 50 feet from the landward limit of the mangrove fringe. Central to the dispute in this case are the provisions of Section 9.5- 286, Monroe County Land Development Regulations (MCLDR) which provide: Sec. 9.5-286. Shoreline setback. All buildings and structures, other than docks, utility pilings, walkways, non- enclosed gazebos and fences and similar structures shall be set back twenty (20) feet from the mean high tide lines of man-made waterbodies and/or lawfully altered shorelines of natural waterbodies. All buildings other than docks, utility pilings, walkways, non-enclosed gazebos and fences and similar structures shall be set back fifty (50) feet from natural waterbodies with unaltered shorelines or unlawfully altered shorelines, measured from the landward limit of mangroves, if any, and where mangroves do not exist from the mean high tide line. (Emphasis added) The regulations do not, however, expressly define the location of the shoreline for purposes of assessing whether it is altered or unaltered, and thereupon rests the basis for the parties' dispute. In this regard, Mid-Keys contends that the development of Stirrup Key legally altered the shoreline, which it suggests a extends to the higher high tide line, and the Department contends that such development did not alter the shoreline, which it a suggests extends to the mean high tide line. The creation of Stirrup Key Subdivision. Stirrup Key is an island in Florida Bay, a natural waterbody, comprising approximately 50 acres. Currently the key is platted as Stirrup Key Subdivision; a residential community which is attached to Key Vaca by a short causeway. The character of Stirrup Key as it exists today is, however, decidedly different from what existed less than two decades ago. In March 1972, when Stirrup Key was purchased by William T. Mills, it was a low-lying island with an average elevation of two feet or less mean high water (MHW) and it was virtually untouched by man. Portions of its shoreline were covered with red mangroves, followed upland by transitional a species such as black mangrove, white mangrove, and buttonwood, and portions of its higher elevations contained some hammock. Following his acquisition of Stirrup Key in 1972, Mr. Mills, consistent with regulations existent at that time, sought and obtained the approval of all governmental agencies necessary to develop the key as it currently exists. Pertinent to this case, the Florida Department of Pollution Control (currently known as the Department of Environmental Regulation) on June 24, 1974, issued to Mr. Mills a dredge and fill permit and water quality certification to excavate on Stirrup Key an upland lagoon to minus 5.0 feet mean low water, together with an access channel, with the spoil from the excavation to be placed on upland, landward of mean high water. As a condition, the permit provided that "[n]o spoil below MHW but in upland spoil area diked along shoreline" and "[m]angrove fringe along shoreline will be preserved." Notably, the plans which were submitted to the Department of Pollution Control by Mr. Mills, and which were attached to the permit, established the boundary of the island at the mean high water line and designated the mean high water line as the shoreline. Also pertinent to this case, the State of Florida, Board of Trustees of the Internal Improvement Trust Fund, on July 22, 1974, issued to Mr. Mills a permit to dredge 72,265 cubic yards of material (1,265 cubic yards from sovereignty submerged land) from a proposed upland boat basin, together with an access channel and two circulation channels, with the spoil to be deposited on the uplands, and to construct a dike around the entire perimeter of Stirrup Key above the mean high water line. The Trustee's permit also provided that "[n]o spoil shall be deposited below mean high water but in upland spoil area diked along shoreline" and "[t]he mangrove fringe along shoreline will be preserved." Consistent with the foregoing permits, Mr. Mills undertook the development of Stirrup Key. In so doing, he constructed a dike around the entire perimeter of the island, with the toe of the dike landward of MHW, removed the transitional vegetation landward of MHW, and filled the area landward of MHW with limestone fill to an elevation of 4 to 9 feet MHW. Also consistent with his permits, Mr. Mills preserved the mangrove fringe along the shoreline. 2/ While the wetlands system of Stirrup Key has been altered by the removal of the upland transitional vegetation and the filling of the area lying landward of MHW, the function of the shoreline mangrove fringe has not been altered by the development of the island. That fringe, which extends approximately 3,000 feet along the shoreline and which measures from 60 to 100 feet in width at Lot 98, continues to provide, among other things, wildlife habitat for numerous species of birds; fisheries habitat for food, cover and refuge; shoreline stabilization; and storm surge abatement. In 1976 the plat of Stirrup Key Subdivision, which encompassed all the lands of Stirrup Key, was approved by Monroe a County and filed of record. That plat, as well as the survey of Lot 98, demonstrate that the boundaries of Stirrup Key follow the mean high water line. The Monroe County comprehensive plan and land development regulations. The Monroe County comprehensive plan, effective September 15, 1986, provides: 11. FUTURE LAND USE ELEMENT Sec. 2-101. Introduction. A fundamental component of any comprehensive land management program is a series of discrete policy statements by which individual land use decisions will be judged in the future. Indeed, a basic tenet of contemporary land management theory and the Local Government Comprehensive Planning Act, Sections 163.3161 et seq., Fla. Stat. is that land use decisions shall be consistent with a comprehensive plan. After a comprehensive plan or element or portion thereof has been adopted in conformity with this act, all development undertaken by, and all actions taken in regard to development orders by, governmental agencies in regard to land covered by such plan or element shall be consistent with such plan or element as adopted. All land development regulations enacted or amended shall be consistent with the adopted comprehensive plan or element or portion thereof. 163.3194(1), Fla. Stat. The Comprehensive Plan for Monroe County contemplates that the land use policy element and implementing regulations will be closely coordinated and designed to ensure fair and consistent land use decision-making. Incorporating the policy statements into the implementing regulations will go a long way toward overcoming many of the due process deficiencies that plague land use decision- making. Under this Plan, a request for development approval will be judged, not on the basis of an intuitive perception of the County's needs, the identity of the applicant, or the clamor of opponents, but on the adopted policies set out in the Plan. If the requested approval is inconsistent with these adopted policies, it should be denied, or the policies should be changed through the established procedure for amendments. If the proposed development is consistent with the Plan, it should be approved. Linking individual decisions to adopted policies will help to bring consistency, fairness, and a comprehensiveness to the development review process. The purpose of this element of the Monroe County Comprehensive Plan is to establish official land use policies that will guide future land use decisions in the County . . . . Sec. 2-102. General. A. OBJECTIVES 1. To establish a land use management system that protects the natural environment of Monroe County. Sec. 2-103. Natural Environment. The Florida Keys constitute a unique and irreplaceable natural resource of local, regional, state, national and international value. The Florida Keys are an island archipelago constituting a tropical experience accessible by automobile from the a continental United States. As such, the Keys are a vacation and residential resource unmatched in beauty, character and security in the continental Untied States. The natural environment of the Florida Keys -- uplands, wetlands, and nearshore waters -- is the central element of this distinctive character. In the Florida Keys, a distinct visual character, native and tropical vegetation, water-dependent recreation, distinct culture and an oceanic experience come together to make a desirable place to live and visit. It is essential, therefore, that the natural environment of Monroe County be conserved, and where appropriate, enhanced and restored. All future actions, both public and private, should be carried out in a way so as to ensure that the essential ingredients of Monroe County character are preserved and protected for existing and future generations. OBJECTIVES To manage and control the use of land so that the natural environment of Monroe County is protected. POLICIES To protect natural, undisturbed lands from significant disturbance. To protect threatened and endangered species and their habitats from human activities that would expose such species to displacement or extinction. To conserve the habitat of endemic species of plants and animals. Sec. 2-115. Enforcement A major component of any future land use element is the need to strictly enforce implementing regulations. If Monroe County is to achieve the promise of this Plan, it is essential that all persons involved in the land development process adhere to the requirements of this Plan and that the integrity of the development review process be protected. Marine Resources The great value attributed to Monroe County's marine resources is due to their crucial role in the local economy, and in providing a wide range of natural amenities and services. Health and integrity of the marine system is a fundamental prerequisite if these resources are to continue to provide social, economic, and environmental benefits that we have at times taken for granted. Mangroves, seagrass, and coral reefs, all of which are susceptible to pollution and dredging, are extremely important in providing food and shelter for myriad forms of marine life, providing storm protection, and maintaining water quality. If uses and activities such as dredge and fill, destruction of natural vegetation, use of pesticides and fertilizers, improper sewage and solid waste disposal continue indiscriminately and uncontrolled; the ability of the marine system to function effectively will deteriorate, thereby resulting in the loss of many natural services and socioeconomic benefits to society. Therefore, it is imperative that such uses and activities be carefully regulated so as to insure conservation and protection of resources and long-term maintenance of their productivity. Marine Resources Management Policies Recognizing the crucial role that the marine environment plays in the local economy, the protection, conservation, and management of marine resources will be viewed as an issue requiring the County's utmost attention. In an effort to protect and conserve marine resources, emphasis will be placed on protecting the entire marine ecosystem. To this end, maintenance of water quality; protection of marine flora and fauna, including shoreline vegetation; and preservation of coral reefs will be regarded as being absolutely essential to maintaining the integrity of the marine system. Generic Designations All marine grass beds in waters off the Florida Keys. All patch reef coral and other reef formations found in the surrounding waters off the Keys. All shore-fringing mangrove and associated vegetation extending up to 50 feet laterally upland from the landward limit of the shoreline mangrove. Management Policies These biotic communities will be preserved to the fullest extent possible. The Monroe County land development regulations, likewise effective September 15, 1986, provide: Sec. 9.5-3. Rules of construction In the construction of the language of this chapter, the rules set out in this section shall be observed unless such construction would be inconsistent with the manifest intent of the board of county commissioners as expressed in the Monroe County Comprehensive Plan, or an element or portion thereof, adapted pursuant to chapters 163 and 380, Florida Statutes (1985). The rules of construction and definitions set out herein shall not be applied to any section of these regulations which shall contain any express provisions excluding such construction, or where the subject matter or context of such section is repugnant thereto. A. Generally: All provisions, terms, phrases and expressions contained in this chapter shall be liberally construed in order that the true intent and meaning of the board of county commissioners may be fully carried out. Terms used in this chapter, unless otherwise specifically provided, shall have the meanings prescribed by the statutes of this state for the same terms. In the interpretation and application of any provision of this chapter, it shall be held to be the minimum requirement adopted for the promotion of the public health, safety, comfort, convenience and general welfare. Where any provision of this chapter imposes greater restrictions upon the subject matter than a general provision imposed by the Monroe County Code or another provision of this chapter, the provision imposing the greater restriction or regulation shall be deemed to be controlling. f. Nontechnical and technical words: Words and phrases shall be construed according to the common and approved usage of the language, but technical words and phrases and such others as may have acquired a peculiar and appropriate meaning in law shall be constructed and understood according to such meaning. m. Boundaries: Interpretations regarding boundaries of land use districts on the land use district map shall be made in accordance with the following, as partially illustrated in figure 1 [following this section]: Boundaries shown as following or approximately following the shorelines of any key or causeway or other island shall be construed as following the mean high water line of such island or key. In many instances, the boundary lines have been intentionally drawn seaward of the shoreline so that the shoreline itself will be visible. Sec. 9.5-286. Shoreline setback All buildings and structures, other than docks, utility pilings, walkways, non- enclosed gazebos and fences and similar structures shall be set back twenty (20) feet from the mean high tide line of man-made waterbodies and/or lawfully altered shorelines of natural waterbodies. All buildings other than docks, utility pilings, walkways, non-enclosed gazebos and fences and similar structures shall be set back fifty (50) feet from natural waterbodies with unaltered shorelines or unlawfully altered shorelines, measured from the landward limit of mangroves, if any, and where mangroves do not exist from the mean high tide line. (Emphasis added) The shoreline, altered or unaltered? While the Monroe County land development regulations do not expressly define the term "shoreline" with reference to a specific point for purposes of determining whether a shoreline has been lawfully altered or unaltered, a reading in pari materia of the rules of construction and the shoreline setback requirements compels the conclusion that such determination is made by reference to the mean high water line of Stirrup Key when it was developed. This definition of shoreline is consistent with Section 177.28(1), Florida Statutes, which defines the legal significance of the mean high water line as: Mean high-water line along the shores of land immediately bordering on navigable waters is recognized and declared to be the boundary between the foreshore owned by the state in its sovereign capacity and upland subject to private ownership . . . . It is likewise consistent with the peculiar and appropriate meaning in law that has established the shoreline at the mean high water line. See: Shively v. Bowlby, 152 U.S. 1, 14 S.Ct. 548 (1894), Borax Consolidated v. City of Los Angeles, 296 U.S. 10, 56 S.Ct. 23, reh. denied 296 U.S. 664, 56 S.Ct. 304 (1935), Axline v. Shaw, 35 Fla. 305, 17 So. 411 (1895), Board of Trustees of the Internal Improvement Trust Fund v. Walker Ranch General Partnership, 496 So.2d 153 (Fla. 5th DCA 1986), and Helliwell v. State, 183 So.2d 286 (Fla. 3rd DCA 1966). It is also consistent with the expressed intent of the developer of Stirrup Key and the governmental agencies that permitted such development, and it is consistent with Monroe County's land development regulations which define boundaries of islands which are shown as following the shoreline to be at the mean high water line. 3/ Accordingly, the shoreline of Stirrup Key, and more particularly Lot 98, is unaltered and a 50-foot setback from the landward limit of existing mangroves is mandated by the MCLDR.
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 reversing Monroe County's decision to issue permit number 8920001017, and deny Mid-Keys' application for such permit. It is further recommended that such final order specify those items set forth in paragraph 8, Conclusions of Law, as the changes necessary that would make Mid-Keys' proposal eligible to receive the requested permit. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 25th day of June 1990. 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 25th day of June 1990.
The Issue The issue in this case is whether the Bradford County Board of County Commissioners should approve or deny an application to rezone a 12.76-acre parcel located at the southwest corner of Highway 301 and County Road 18 in unincorporated Bradford County (“the Property”) from Residential, (Mixed) Single Family/Mobile Home (RSF/MH-1) to Commercial Intensive (CI).
Findings Of Fact The Parties Petitioners Craig W. Patterson and Timothy Buffkin own the Property and are the applicants for the proposed re-zoning. Bradford County is the local government responsible for determining the land use designation and zoning classification for the Property and has adopted a comprehensive plan and LDRs which it amends from time to time. The Property The Property is a 12.76-acre parcel located at the intersection of U.S. Highway 301 (US 301) and County Road 18 (CR 18) in unincorporated Bradford County. US 301 is a four-lane divided principal arterial roadway, and CR 18 is a two-lane major collector roadway. The intersection has a traffic light and left turn lanes on US 301. This is the only intersection of a principal arterial road and a major collector road in unincorporated Bradford County. The Property is roughly rectangular, with approximately 1,240 linear feet fronting on US 301 (eastern boundary of the Property) and approximately 450 feet fronting on County Road 18 (northern boundary). The Property is not located within a flood-prone area and has little or no wetlands. Approximately a half mile to the east of the Property is Hampton Lake. The Property is relatively flat. The soils on the property are poorly drained soils, but not indicative of wetlands. The soils and topography of the property do not preclude its development with a system to control stormwater and drainage. Currently, the Property contains one single-family dwelling unit. The Property is bounded on the north by a commercial land use and single-family residences, on the east by vacant and commercial land use, on the south by vacant land, and on the west by vacant land and single-family residences. Current Zoning and Land Use Designations Before October 2004, the Property was designated on the County’s Future Land Use Map (FLUM) as “Residential Low Density,” which authorizes residential development at a density of less than or equal to two dwelling units per acre. On October 21, 2004, the County amended the FLUM to re-designate the Property as “Commercial.” However, the zoning for the Property remained “Residential, (Mixed) Single Family / Mobile Home (RSF/MH-1). The current zoning does not allow the types of uses appropriate under its Commercial land use designation. The Property is also located within an Urban Development Area which is defined in the Future Land Use Element of the comprehensive plan as an “area to which higher density agricultural, residential (single family, multi-family and mobile homes) and commercial and industrial uses are to be directed.” Within Urban Development Areas, lands classified as “Commercial” are to be used for the “sale, rental and distribution of products or performance of services, as well as public, charter and private elementary, middle and high schools.” Certain other uses may also be approved as special exceptions or special permits. Surrounding Land Uses A portion of the land to the north of the Property and all of the land immediately east are within the municipal boundaries of the City of Hampton. The City of Hampton has zoned property at the US 301/CR 18 intersection as “CG”, a commercial designation which includes all of the uses authorized under Bradford County’s CI zoning district. Within the past several years, a truck repair and auto parts facility was located and is still operating east of the Property, across US 301. Farther east, but bordering those commercial lands, a residential subdivision (Fox Hollow) is under development. The Requested Re-zoning The Applicants seek to re-zone the Property to Commercial Intensive (CI). Permitted principal uses and structures allowed within the CI zoning district are consistent with the types of commercial uses listed in the comprehensive plan for the Commercial land use designation, namely retail outlets for the sale of food, home furnishings, vehicles, etc.; service establishments such as barber shops, shoe repair shops, repair and service garages; medical or dental offices; and wholesaling. The CI zoning district is described as “intended for intensive, highly automotive-oriented uses that require a conspicuous and accessible location convenient to streets carrying large volumes of traffic and shall be located within commercial land use classifications on the [FLUM].” The Property meets the description of a conspicuous and accessible location that is convenient to streets carrying large volumes of traffic. Concurrency Management Assessment The requested re-zoning is a “straight” re-zoning request, meaning that the re-zoning is not associated with any particular proposed use. Future development of the site will be subject to development plan review and approval, pursuant to Article Fourteen of the County LDRs. A concurrency reservation is not available until final site plan approval. However, at the County’s request, the North Central Florida Regional Planning Council (NCFRPC) performed concurrency management assessments of the re-zoning in 2006 and again in 2008. In 2006, the NCFRPC provided the County with nonbinding concurrency determination that the applicable service levels would be met or exceeded for potable water (to be supplied by potable water wells); sanitary sewer (to be served by on-site septic tanks); solid waste; drainage; recreation; affordable housing; and historic resources. As to transportation facilities, the 2006 concurrency management assessment determined that the maximum potential development of the Property would generate 389 trips on US 301 at “PM peak hour.” When added to the then-existing PM peak hour trips, based on Florida Department of Transportation (FDOT) traffic count data, US 301 would continue to operate within the adopted level of service (LOS). Between 2006 and 2008, the adopted LOS standard for US 301 was raised from “C” to “B,” meaning that the governmental objective was changed to maintain a freer flow of traffic during evening peak traffic. Therefore, despite the reduction of “background” trips on US 301, the 2008 concurrency management assessment determined that maximum development of the Property would cause the new LOS “B” standard to be exceeded. Petitioners presented a traffic analysis based upon more recent FDOT traffic count data than was used by the NCFRPC for its 2008 concurrency management assessment. The newer data showed a further decline in background trips on US 301, so that adding the maximum potential trips from the Property would no longer result in total PM peak hour trips that would exceed the adopted LOS standard. Petitioners’ more recent data and analysis is professionally acceptable and should be used. At the time of site plan review for any future development of the Property, an updated concurrency assessment will be required and will be based on the number of trips generated by the actual proposed use, rather than the trips that would be generated by the maximum development potential of the Property. The assessment will also use the most current FDOT traffic count data. Compatibility with Surrounding Land Uses The County’s Planning and Zoning Board reviewed the application for re-zoning at its July 10, 2006, meeting. It recommended denial of the re-zoning based upon the impact of the proposed change upon living conditions in the neighborhood. As factual support for the recommended denial, the Planning and Zoning Board’s report cites “all comments received during the said public hearing and the Concurrency Management Assessment concerning said application.” At the August 19, 2008, public hearing held before the Administrative Law Judge, members of the public expressed concern that the CI zoning would be incompatible with the existing residential development to the west, in the Hampton Lake area. Some members of the public also expressed concern about possible future uses of the Property, such as a truck stop or bar. Package stores for the sale of alcoholic beverages, bars, taverns, cocktail lounges, truck stops and automotive service stations can only be approved as special exception uses in the CI zoning district. Special exception uses require approval of the County’s Board of Adjustment after a public hearing, upon a finding that granting the special exception use would promote the “public health, safety, morals, order, comfort, convenience, appearance, propriety or the general welfare.” The Board of Adjustment must also determine that the special exception use would be compatible with adjacent properties. A favorable decision here on the requested re-zoning to CI is not a determination that a bar or truck stop on the Property would be compatible with the adjacent residential area. The LDRs impose site use and design criteria for commercial uses that adjoin residential districts. Site plan approval for commercial developments in CI zoning districts requires the consideration of landscape buffers, height restrictions, off-street parking requirements, lot coverage and yard standards. These development conditions are designed to minimize impacts to adjacent residential areas. Stormwater Some of the speakers at the public hearing expressed concern about stormwater runoff from the Property. One speaker, Michael Davis, testified that stormwater from the Property currently flows across his property. Another expressed concern that runoff from the Property would flow directly to Hampton Lake. On-site stormwater retention facilities would be required for the Property in conjunction with its development. The LDRs require that post-development runoff rates not exceed pre-development conditions. The objective of the required stormwater runoff controls is to approximate the rate, volume, quality, and timing of stormwater runoff that occurred under the site’s unimproved or existing state. There is no basis, at this stage of analysis, to determine that the County’s stormwater regulations are not adequate to prevent adverse stormwater impacts to adjacent residences or to Hampton Lake. Traffic on CR 18 Several speakers expressed concerns regarding increased traffic on CR 18. Petitioners conducted a site-specific traffic count for CR 18 east of US 301 and determined that the peak hour trips are now 131. The capacity for CR 18 is approximately 600. Based upon the total of 389 additional trips generated by the maximum potential development of the Property (on either US 301 or CR 18), the adopted LOS standard for CR 18 would not be exceeded. Petitioners demonstrated that the proposed re-zoning is consistent with the comprehensive plan and the LDRs.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Bradford County Board of County Commissioners approve the requested re-zoning. DONE AND ENTERED this 18th day of September, 2008, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 2008. COPIES FURNISHED: Ray Norman, Clerk of the Board Bradford County Board of County Commissioners 945 North Temple Avenue Starke, Florida 32091 Marcia Parker Tjoflat, Esquire Charles L. Gibbs, Esquire Pappas Metcalf Jenks & Miller, P.A. 245 Riverside Avenue, Suite 400 Jacksonville, Florida 32202 William E. Sexton, Esquire Brown & Broling 486 N. Temple Avenue Starke, Florida 32091
The Issue The issue in this case is whether a development order (Resolution No. 233- 1991) issued by Monroe County on June 26, 1991, to Key Largo Associates, Ltd., is inconsistent with Chapter 380, Florida Statutes, the Monroe County Comprehensive Plan and Land Use Regulations, and/or whether it violates a Joint Stipulation of Settlement previously executed by the Department of Community Affairs ("DCA"), Monroe County (the "County"), and Key Largo Associates, Ltd.'s predecessor in title.
Findings Of Fact Based upon the evidence adduced at the hearing and the entire record in this proceeding, the following findings of fact are made: DCA is the State Land Planning Agency charged with the responsibility to administer the provisions of Chapter 380, Florida Statutes, and the regulations promulgated thereunder. Monroe County is a political subdivision of the State of Florida and is responsible for issuing development orders for development in unincorporated Monroe County. The County issued the Development Order which is the subject of this proceeding. Most of Monroe County, including the subject property, is within the Florida Keys Area of Critical Concern as designated in Sections 380.05 and 380.0552, Florida Statutes. Development orders issued by a local government agency for an area of critical state concern are subject to review by DCA pursuant to Section 380.07, Florida Statutes. On April 8, 1985, DCA, Monroe County, and I. D. Properties, the previous owner of the subject property, executed a Joint Stipulation of Settlement regarding DCA's challenge to a prior development order for the subject property. That Joint Stipulation of Settlement required the preservation of certain tropical hammock on the site including Paradise Tree hammock. After executing the Joint Stipulation of Settlement, I. D. Properties quitclaimed its interest in the site to Key Largo Associates, Ltd. Key Largo Associates, Ltd. proceeded to seek approval from Monroe County to develop the property inconsistent with the terms of the Joint Stipulation of Settlement. Those efforts resulted in the Development Order which is the subject of this case. The County Commission issued the Development Order granting a major conditional use permit for the Project to Key Largo Associates, Ltd., after being ordered to do so by the Circuit Court for Monroe County. The Development Order purports to authorize the complete elimination of existing tropical hammock on the site including the Paradise Tree hammock. The Development Order is inconsistent with the Monroe County Comprehensive Plan and the Land Development Regulations adopted thereunder. In addition, the Development Order is contrary to the terms of the Joint Stipulation of Settlement.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a final order which sustains the appeal filed by the Department of Community Affairs and which rescinds the issuance of Monroe County Resolution No. 233- 1991. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 18th day of August 1993. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1993. COPIES FURNISHED: Terrell K. Arline Assistant General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Betty J. Steffens, Esquire McFarlain, Wiley, Cassedy & Jones Post Office Box 2174 Tallahassee, Florida 32316-2174 Blackwater Associates Partnership 7225 S.W. 108th Terrace Miami, Florida 33156 Ray Parker Parker Real Estate 2028 North Dixie Highway Fort Lauderdale, Florida 33305 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 FLWAC Exec. Office of the Governor 311 Carlton Bldg. Tallahassee, Florida 32301
Findings Of Fact The Subject Property. During 1973, Mode, Inc., applied for and obtained approval of Planned Unit Development (hereinafter referred to as "PUD") zoning for approximately 620 acres of real property known as Ridaught Landing located on County Road 209 in Clay County. In December of 1986, Mode, Inc., sold approximately 470 acres of Ridaught Landing to Village of Fireside, Inc. This 470 acre parcel (hereinafter referred to as the "Property"), is the subject of this proceeding. Purchase money financing and construction financing for the purchase and development of the Property was provided by Barnett Bank of Jacksonville, N.A. (hereinafter referred to as "Barnett"). In November of 1988 Barnett assigned its interest in the Property to the Petitioner simultaneously with the closing of financing by the Petitioner on the Property to Villages of Fireside, Inc. Villages of Fireside, Inc., subsequently defaulted on its indebtedness to the Petitioner and in April, 1992, the Petitioner accepted a Deed in Lieu of Foreclosure for the Property. Development of the Property; Government Action Relied Upon by the Petitioner. In November of 1985, the PUD was amended. As a condition of the amendment, Clay County required that 212 acres of uplands and associated wetlands be dedicated to a homeowner's association associated with the Property. The 212 acres were to be used as preservation area and for the construction of nature walks, gazebos and recreational areas. In January of 1988 Villages of Fireside, Inc., applied for approval of a further amendment to the PUD. Among other things, approval of a separate entrance to the Property was requested. The amendment was approved. As a result of the January, 1988 amendment, the PUD properties are to be developed as two separate subdivisions, known as Ridaught Landing and the Villages of Fireside. Development of the Villages of Fireside subdivision was approved for up to 400 single-family dwelling units within the residential portion, (b) 16 acres of recreational and private services uses, including a day-care center and a private park, and (c) the 212 acre preservation area. Villages of Fireside, Inc., submitted a plat to Clay County for the Villages of Fireside subdivision Unit One in 1988. The final plat for Unit One was approved March 22, 1988. Clay County required that the entrance to Unit One be constructed with an 80 foot right of way to accommodate the development of the entire project as approved by the PUD, as amended. The Petitioner's Detrimental Reliance. In reliance upon Clay County's approval of the PUD and amendments thereto and approval of the final plat of Unit One Villages of Fireside, Inc.: Constructed master infrastructure improvements (water and sewer systems, master roads and an oversized drainage facility) for the project at a cost of approximately $706,427.00. These improvements were made between February and October of 1988. Constructed entry features for the project at a cost of approximately $21,465.00. These improvements were made between December of 1988 and June of 1989. Constructed a nature walk through the 212 acre preservation area at a cost of approximately $97,593.00. These improvements were made between November of 1988 and January of 1989. Upon the assignment of Barnett's interest in the Property to the Petitioner in November of 1988, financing by the Petitioner for the Property to Villages of Fireside, Inc., closed. The Petitioner, therefore, refinanced construction of improvements made by Villages of Fireside, Inc., in reliance on Clay County's approval of the PUD, with amendments, and the final plat for Unit One. The Petitioner refinanced the project in reliance upon Clay County's approval of the PUD, with amendments, and the final plat for Unit One. The Petitioner considered the PUD zoning to be true and correct at the time of refinancing and the Petitioner's loan officer believed that the Property was approved for development of at least 400 single-family residential units at the time of refinancing. In reliance on Clay County's actions, proceeds were distributed by the Petitioner for construction of the nature walk through the 212 acre preservation area. The Petitioner also released the 212 acre preservation area from the lien of its mortgage on the Property so that it could be conveyed to the homeowner's association as common area. This release was made in reliance on Clay County's actions. Rights That Will Be Destroyed. Development of the Property will impact County Road 220. Pursuant to the Clay County 2001 Comprehensive Plan, there is insufficient capacity on the portion of County Road 220 that will be impacted by development of the Property to accommodate traffic projected to be generated by the Property as approved. If the Petitioner must comply with the Clay County 2001 Comprehensive Plan it will be required to delay completion of the project until County Road 220 is improved. Such a delay will have a substantial adverse financial impact upon the Petitioner. Procedural Requirements. The parties stipulated that the procedural requirements of Vested Rights Review Process of Clay County, adopted by Clay County Ordinance 92-18, as amended, have been met.
