Findings Of Fact The Petitioner has an option to purchase property located at 301-307 Island Way Boulevard, Island Estate, Clearwater, Florida, on which he proposes to construct ten townhouses. Initially Petitioner asked for two variances. The first variance was for 25.12 feet to allow construction on a lot only 124.88 feet wide. This variance was granted for this nonconforming lot. The second variance, for 13.24 feet to allow construction of the ten townhouse complex 12 feet from the side property line, was denied by the Clearwater Code Adjustment Board. The Board concluded the variance requested did not meet the requirements of Section 45.24 of the Clearwater Land Development Code. Petitioner presented evidence that if the lot had been 150 feet wide they would have had 90 feet to build on without requesting any variance. However, since the lot was nonconforming, in order to have 89 feet on which to place the building, the requested variance would be necessary. Petitioner also presented evidence that the construction of ten townhouses on this lot is necessary for the project to be on a solid economic basis. Subsequent to the denial of this variance by the Development Code Adjustment Board, Petitioner submitted plans, which have been approved by the City of Clearwater, to erect nine townhouses on this property without any variance needed. However, these townhouses would be smaller than would be the ten townhouses initially proposed and would provide a lesser return on the capital invested.
Findings Of Fact The Petitioners, Dale K. Niemann and Janet R. Niemann, own property on Devon Drive, in Clearwater, Florida, which is approximately two houses down the street from the Respondent, John Blakely. On or about May 25, 1990, Mr. Blakely requested two variances from the Development Code Adjustment Board of the City of Clearwater. It was his intention to seek the variances in order to extend his present dock approximately twenty-five feet (to a length of eighty-nine feet) and to allow the dock to be positioned 8 feet from an extended side property line. The Petitioners oppose the requests and argue that the extension is not necessary to make reasonable use of Respondent's dock. Further, they claim that, if allowed, the dock extension, together with the boat lift the Respondent proposes, will interfere with their view of the water. The proposed dock extension will not obstruct navigational activities. The natural shoaling process has resulted in the accretion of sand and silt along the Respondent's property. As a result, during low tides it is difficult to utilize the existing dock and would be impossible to use it for the proposed boat lift. Also, there is a grass flat landward of the proposed boat lift site upon which the Respondent's construction will not infringe. The construction of the lift at the terminus of the existing dock might disrupt that grass bed. The Respondent will not financially gain from the granting of the requested variances. The approval of the variances will not impair an adequate supply of light or ventilation to the adjacent properties, nor substantially diminish or impair the value of the surrounding property. The approval of the variances will not adversely affect the public health, safety, order, convenience or general welfare of the community. The approval of the variances will not violate the general spirit and intent of the Development Code. While the approval of the variances may alter the Petitioners' view from the side window of their residence, such alteration should not materially detract or injure their property or the property or improvements of others in the neighborhood. Other structures which Respondent could construct without the approval of variances could be more detrimental to the neighborhood.
Findings Of Fact On or about August 11, 1987, an application for conditional use approval to allow on-premises consumption of alcoholic beverages (2COP) was filed on behalf of Leland Farnsworth for property located at 2838 Gulf to Bay Boulevard in Clearwater, Florida. The property is zoned general commercial (CG) and single family residential (RS-8). A public hearing before the Planning and Zoning Board was held on September 1, 1987. The Planning and Zoning Board voted 4-1 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, Farnsworth seeks approval for on-premises consumption of alcoholic beverages since he intends to convert the use of the property from a motel to a restaurant and bar. The parties stipulated that the property in question is within five hundred feet of several residences, including Petitioners'.
Findings Of Fact Petitioner is the state land planning agency charged with the responsibility to administer the provisions of Chapter 380, Florida Statutes, and the regulations promulgated thereunder. Petitioner has the authority to appeal to the Florida Land and Water Adjudicatory Commission any development order issued in an area of critical state concern. Monroe County is a political subdivision of the State of Florida, and is responsible for issuing development orders for development in Monroe County. Monroe County issued the development order that is the subject of this appeal. Respondent, Bruce Schmitt, is the owner of real property known as Section 15, Township 66, Range 32, Sombrero Beach Road and Tingler Lane - 88 Tingler Lane, Vaca Key Bright, Florida. 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. On May 25, 1993, Monroe County issued building permit number 9320003962 to Bruce A. Schmitt, Owner, and Marathon Woodworking, General Contractor, authorizing the construction of a 4 feet X 140 feet wooden dock with a 4 feet x 40 feet terminus. The site of the permitted dock is on an open water shoreline. Running parallel to this shoreline is a channel that is greater than four feet in depth at mean low tide and is greater than twenty feet in width. The permitted dock will terminate at the edge of that channel in an area that is at least four feet deep at mean low tide and more than 20 feet in width. There are no hard coral bottoms found in the area where the dock will terminate. In the vicinity where Mr. Schmitt proposes to construct his dock, there is a channel that is perpendicular to the shoreline that intersects with the channel that is parallel to the shoreline. This perpendicular channel leads out to deep water. The channel providing access to deep water crosses an area of shallow water, which is an area of flats that is referred to by the Department as a shoal. The water depth of this area at mean low tide ranges between 3.0 and 3.5 feet. The channel running parallel to the shoreline and the channel leading out to deep water are not marked. Boats that use this area traditionally have used the channel that is parallel to the shoreline to access the channel in front of Mr. Schmitt's property that leads to deep water. These boats thereafter access deep water by crossing the area of flats that is referred to by the Department as a shoal. While it was established that boats cannot navigate around the shoal, the dimensions of the shoal were not established. Natural shallow water marine communities, such as seagrasses, exist in the waters in the navigation route for boats that will use the permitted dock. Sea grass beds play an important role in water quality maintenance in the Keys through filtration and nutrient uptake and serve as nursery habitats for fisheries. The cumulative impact of the operation of propeller- driven boats in the Keys results in damage and destruction to shallow water marine communities, such as sea grass beds, through prop dredging. There is evidence of considerable prop dredging of the sea grass beds in the shallow waters offshore of the subject property. Boats have been known to run aground in the flats off Mr. Schmitt's property. Any boat using the permitted dock will have to cross shallow waters with seagrass with water depths of less than four feet at mean low tide. Pursuant to the provisions of Sections 380.05 and 380.0552, Florida Statutes, Monroe County has adopted a comprehensive plan which complies with the Principles for Guiding Development found at Section 380.0552(7), Florida Statutes. Section 380.0552(7), Florida Statutes, requires Monroe County land development regulations to comply with certain principles for guiding development, including the following: (b) to protect shoreline and marine resources, including mangroves, coral reef formations, wetlands, fish and wildlife and their habitat. * * * (e) to limit the adverse impacts of development on the quality of water throughout the Florida Keys . . . Monroe County's Comprehensive Plan, which has been approved by the Department and by the Administration Commission, is implemented, in part, through its adopted land development regulations, codified in Chapters 6 and 9.5, Monroe County Code. Section 9.5-345(m) (2), Monroe County Code, provides as follows: (2) All structures on any submerged lands and mangroves shall be designed, located, and con- structed such that: * * * No structure shall be located on submerged land which is vegetated with seagrasses except as is necessary to reach waters at least four (4) feet below mean low levels for docking facilities; No docking facilities shall be developed at any site unless a minimum channel of twenty (20) feet in width where a mean low water depth of at least minus four (4) feet exists. Section 9.5-4(W-1), Monroe County Code, provides as follows: (W-1) "water at least four (4) feet below mean sea level at mean low tide" means locations that will not have a significant adverse impact on off- shore resources of particular importance. For the purposes of this definition, "off-shore resources of particular importance" shall mean hard coral bottoms, habitat of state or federal threatened and endangered species, shallow water areas with natural marine communities with depths at mean low tide of less than four (4) feet, and all designated aquatic preserves under Florida Statutes, Section 258.39 et seq. Section 2.104, Nearshore Waters, Monroe County Comprehensive Plan, Volume II, Future Land Use Element, provides as follows: The Florida Keys are dependent on nearshore water quality for their environmental and economic integrity. The heart of the Florida Keys economy, the means by which Monroe County exists as a civil and social institution, is based on its unique oceanic character. If nearshore water quality is not maintained, then quality of life and the economy of Monroe County will be directly and immediately impacted. OBJECTIVES 1. To protect, maintain, and where appropriate, to improve the quality of nearshore waters in Monroe County. POLICIES 1. To prohibit land use that directly or indirectly degrades nearshore water quality. * * * To prohibit the development of water dependent facilities, including marinas, at locations that would involve significant degradation of the biological character of submerged lands. To limit the locations of water-dependent facilities at locations that will not have a significant adverse impact on off-shore resources of particular importance. For the purposes of this policy, off-shore resources of particular importance shall mean hard coral bottoms, habitat of state or federal threatened or endangered species, shallow water areas with natural marine communities with depths at mean low tide of less than four (4) feet, and all designated aquatic preserves under Florida Statutes, section 258.39 et seq. There are no channel markers to deep water in the area of the permitted dock that have been approved by the Department of Environmental Protection. There was a dispute in the evidence as to whether marking the channel that has served this area as the access route to deep waters would be appropriate and whether such marking would create a navigational hazard. The conflict in the evidence presented is resolved by concluding that the marking of the channel that serves as the navigation access route for boats that will use the permitted dock is appropriate, will aid navigation, and will not create a navigation hazard. This conclusion is reached, in part, because the channel is well defined by its long-term use and connects with the channel that is parallel to the shoreline at a known point.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a final order which conditionally denies Building Permit Number 9320003962, but which authorizes Monroe County to issue that permit once the access channel to deep water has been properly marked and approved by the Department of Environmental Protection. DONE AND ENTERED this 25th day of October, 1994, 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 25th day of October, 1994.
Findings Of Fact Ramchandra Jakhotia and Rashmi Jakhotia, his wife, acquired the King Cole Motel at 401 East Shore Drive, Clearwater, Florida in 1983 and have owned the property since that time. At the time of acquisition and for some time prior thereto the property included a commercial marina with 22 slips. In 1985 the City of Clearwater revised its Development Code effective October 13, 1985 and, incident thereto, effective July 7, 1988, enacted Section 114.05, Live-Aboard Vessels as Ordinance 4597, Clearwater City Code. That enactment provided, in part, that: Prohibited; exceptions: It shall be unlawful for any person to moor any live-aboard vessel at any location within or upon the navigable waters in the City for any period of time in excess of seventy-two (72) hours, except as follows: At a marina facility for which conditional use approval has been obtained, or a marina facility in existence as of October 13, 1985 for which conditional use approval would otherwise be required;... In January 1986 a survey was taken of all marinas within the City of Clearwater to determine the number of live aboard vessels coming within the purview of the revised Development Code. At this survey eight live aboard vessels were occupying berths at the King Cole Motel marina and this was the number determined to be grandfathered for which no conditional use approval would be required. In 1988 King Cole Motel applied for conditional authorization to utilize 14 additional berths for live aboard vessels. This conditional use was approved subject to the applicant installing a pump-out facility and meeting the parking requirements. Although the parking requirements for a commercial marina, i.e., 0.5 parking space per slip, is the same as the parking requirement at marinas for live aboard vessels, the latter generally place a greater demand on parking spaces than does non-live aboard vessels. To change the approved use from commercial marina without live aboards to live aboards is a change in the use and requires conditional use approval. Before conditional use approval can be granted the applicant must comply with all code requirements, such as required parking spaces, at the time of the change in use. At the time Appellant acquired the King Cole Motel the 22 commercial slips were grandfathered as an authorized use without any parking being provided. Accordingly, as a 22-slip commercial marina Appellant did not have to provide parking. When the eight slips used for live aboards were counted in 1986 they too were grandfathered in without the need for parking spaces. However, when Appellant applied in 1988 for authorization to use 14 other slips for live aboard vessels, the code required the applicant to provide seven parking spaces. To his credit Appellant obtained the use of seven parking spaces down the road from the marina but those spaces were not contiguous to Appellants' marina as required by the code. Therefore, Appellants' use of the additional slips for live aboards did not meet the parking requirement in his conditional use approval. In 1992 Appellant applied for a variance of the seven parking spaces required to allow the use of these additional slips by live aboard vessels. This hearing was held before the Development Code Adjustment Board on February 11, 1993 and it is from the denial of this variance that this appeal is taken. The Board denied the variance requested because the Appellant failed to demonstrate that the standards established by Section 45.24 Land Development Code were met. In these proceedings Appellant presented no additional evidence to support the variances requested than was submitted to the Board.
The Issue Whether Respondent, while serving as an appointed member of the Ocoee Planning and Zoning Commission, violated section 112.313(7)(a), Florida Statutes (2015)1/ by having a contractual relationship that conflicted with his official responsibilities; and, if so, the appropriate penalty.
Findings Of Fact At all times material to the complaint, Respondent served as an appointed member of the Ocoee P & Z Commission. Respondent is subject to the requirements of part III, chapter 112, Florida Statutes, the Code of Ethics for Public Officers and Employees, for his acts and omissions during his tenure on the P & Z Commission. As a member of the P & Z Commission, Respondent is subject to the “Ocoee Florida Land Development Code, Section 3, Planning and Zoning Commission [Land Development Code].” Section 3-2 of Land Development Code provides in part as follows: Establishment and Membership The Planning and Zoning Commission shall consist of nine (9) members appointed by the City Commission and one member appointed by the School Board of Orange County as a non- voting member. The member appointed by the School Board of Orange County shall attend those meetings at which the Planning and Zoning Commission considers comprehensive plan amendments and rezonings that would, if approved, increase residential density on the property that is the subject of the application. No member shall be an employee of the City of Ocoee and all members, except the member appointed by the School Board of Orange County, shall be residents of the City of Ocoee. When selecting members to the Planning and Zoning Commission, the City Commission shall attempt to select persons from different geographical areas within the City so as to create geographical diversity and representation. * * * E. Compliance with Laws The Planning and Zoning Commission, and its individual members, shall comply with all applicable laws relative to public bodies, including disclosure of interests and procedure[s] for refraining from participation [when] a conflict of interest exists. * * * G. Duties and Responsibilities To act as the Local Planning Agency (LPA) of the City of Ocoee, pursuant to Section 163.3174, Florida Statutes, and to prepare on its own initiative recommendations for amendments to the Comprehensive Plan of the City of Ocoee, including text and/or maps, and to forward such amendments to the City Commission for consideration. No such recommendation shall be made except after a public hearing held in accordance with State and local requirements. To review and make recommendations to the City Commission on applications for amendments to the Comprehensive Plan. No such recommendation shall be made except after a public hearing held in accordance with State and local requirements. To prepare on its own initiative recommendations for amendments to this Code, text and/or maps, and to forward such amendments to the City Commission for consideration. No such recommendation shall be made except after a public hearing held in accordance with State and local requirements. To review and make recommendations to the City Commission on applications for amendments to this Code, including applications for annexation or change of zoning. Pursuant to Section 163.3174(4)(c), Florida Statutes, the Planning and Zoning Commission shall also have the responsibility to review and make a finding as to the consistency of the proposed land development regulation with the adopted Comprehensive Plan and to report such finding to the City Commission. No such recommendation shall be made except after a public hearing held in accordance with State and local requirements. To review and make recommendations to the City Commission on applications for various development approvals or permits as provided within this Code, including, but not limited to Planned Unit Developments (PUD), special exceptions, subdivisions, and any other application for which the City Commission requests a report and/or recommendation. Where a public hearing is required by the applicable procedural section, no such recommendation shall be made except after a public hearing held in accordance with State and local requirements. To act in an advisory capacity to the City Commission on land use and land development issues and to make such studies and to conduct such investigations as may be requested from time to time by the City Commission. To review zoning of newly annexed lands when it represents an increase in intensity of use or a conflict with the Comprehensive Plan pursuant to requirements of State law and City ordinance. In addition to serving on the P & Z Commission, Respondent buys and sells commercial real estate. Respondent is a manager and shareholder in W.O.R.Y. INVESTORS, LLC (WORY), an entity that is also in the business of buying and selling commercial real estate. Respondent, in his individual capacity, owned approximately four acres, which abutted six acres owned by WORY. Both properties have an address on West Road in Ocoee, Florida, and will be referred to collectively herein as the “West Road property.” The Contract On or about November 11, 2015, Respondent, in his individual capacity, and as manager for WORY, executed an “Agreement of Sale” wherein the West Road property was to be purchased by Charter Schools Development Group, LLC (buyer), for $1,890,540. According to the Agreement of Sale, the buyer wanted to “develop and construct on the Property a K-8 public charter school.” The Agreement of Sale contained a number of contingencies, referred to in the contract as “Buyer Required Approvals,” that Respondent was required to satisfy prior to finalization of the sale of the West Road property. Paragraph six of the Agreement to Sale sets forth a number of the pre-sale contingencies imposed on Respondent, and the same provides as follows: 6. Development The Buyer intends to develop and construct on the Property a K-8 public charter school and adjacent commercial development acceptable to Buyer consisting of buildings and other improvements including, but not limited to recreation fields, related landscaping, open space, storm water, and appropriate parking (the "Project"). Buyer's obligation to complete the purchase of the Property from Seller in accordance with the terms of this Agreement is contingent upon the satisfaction of each of the following conditions with regard to the Property (each of which may be waived in whole or in part in writing by Buyer): Buyer has obtained final, unappealed and unappealable approvals from all necessary governmental authorities (including governmental agencies), for zoning, utilities and any other approvals (including necessary parking requirements) Buyer deems necessary, in its sole discretion, permitting the construction and use of the improvements comprising the Project, including but not limited to any required special exception. Buyer has obtained final, unappealed and unappealable approvals and/or permits required by any and all governmental authorities (including governmental agencies) so that the Property shall have immediate and adequate access to water, sewer and all other utilities in accordance with the final approved site development plan. Buyer has obtained final, unappealed and unappealable approvals and/or permits required by any and all governmental authorities (including governmental agencies) for storm water management; including easements and agreements for constructing and maintaining storm water basins; all wetlands studies and approvals in such form that wetlands, if any, shall not preclude construction of roads, utilities, storm water management facilities, any other required improvements for erection of buildings on the Property. Buyer has obtained all permits and approvals, and all conditions thereof shall have been satisfied, so as to allow for recording of the final plan and issuance of building permits subject only to satisfaction of the following requirements by Buyer at or after Closing (i) submission of construction drawings in accordance with applicable law, (ii) execution by the Buyer of the necessary development agreements, (iii) execution and funding by Buyer of the necessary escrow agreements for municipal improvements, and sewer and water improvements, and (iv) payment by the Buyer of all municipal fees and charges associated therewith. Subject to Seller's obligation set forth in Section 6(f) below, Buyer has obtained any and all other easements, approvals and/or permits that may be necessary to construct and use the improvements comprising the Project. Buyer shall obtain, at no additional cost to Seller, all easements and roads that in Buyer's sole reasonable discretion are necessary for property access, utilities and signage to the Property in accordance with Buyer's final approved site development plan. The items referred to in subsections 6(a) through 6(f) hereof shall hereafter be referred to as the "Buyer Required Approvals." After the end of the Inspection Period, Buyer shall diligently proceed with the filing of all applications necessary for obtaining the Buyer Required Approvals. Seller agrees, at no expense to Seller, to cooperate with buyer in connection with the Buyer Required Approvals to the extent of signing all applications necessary for obtaining the buyer Required Approvals and appearing and testifying at the various hearings. Seller's cooperation as aforesaid shall not entitle Seller to any additional compensation. All permit fees, studies, deposit and investigation costs incurred in connection with the Buyer Required Approvals shall be the sole responsibility of buyer and buyer agrees to affirmatively use its good faith efforts to obtain all of the Buyer Required Approvals without delay and as expeditiously as reasonably possible. Seller hereby grants to Buyer a power of attorney to file, on Seller's behalf, all applications related to the Buyer Required Approvals; provided, however, that the Land shall not be rezoned prior to the expiration of the Inspection Period. Seller acknowledges that buyer will likely contact, meet with and/or obtain consents for the Project from neighboring property owners during the Inspection Period and in the process of obtaining the Buyer Required Approvals. (emphasis added). None of the provisions of paragraph six of the Agreement of Sale were waived by either party. Paragraph 15(b) of the Agreement of Sale provides as follows: (b) If Seller shall violate or fail (in breach of its obligations hereunder) to fulfill or perform any of the terms, conditions or undertaking set forth in this Agreement within ten (10) days written notice from Buyer or (five (5) days written notice in the event of a monetary default), Buyer shall be entitled to: (i) terminate this Agreement and receive the return of the Deposit and reimbursement of Buyer's documented out-of-pocket due diligence expenses up to $15,000.00, and, thereupon, the parties hereto will be released and relieved from all provisions of this Agreement, or (ii) pursue specific performance. Paragraph 17 of the Agreement of Sale states that “[b]uyer and Seller agree to cooperate with each other and to take such further actions as may be requested by the other in order to facilitate the timely purchase and sale of the Property.” Paragraphs 6, 15(b) and 17 of the Agreement of Sale obligated Respondent to take all steps necessary, including “appearing and testifying at the various hearings,” for ensuring that the “Buyer Required Approvals” were satisfied, which in turn would allow Respondent to receive his share of the purchase price for the West Road property. Section 112.311(1), provides in part that “[i]t is essential to the proper conduct and operation of government that public officials be independent and impartial and that public office not be used for private gain other than the remuneration provided by law.” Rezoning and Respondent’s Role In order for a charter school to be built on the West Road property, it was necessary to rezone the existing planned unit development land use plan covering the property. Ocoee City Planner Michael Rumer testified that there are two types of rezoning. There is a straight rezoning to a zoning category listed in the land development code and there is rezoning to a planned unit development (PUD). Both types of zoning use the following process: an application is filed; then there is a review process by a development review committee, which is a staff level review; that review is forwarded to the P & Z Commission for a recommendation; and then it goes to the Ocoee City Commission for two readings of an ordinance for rezoning if the rezoning is approved. This is the process that was followed for the West Road property PUD. On February 9, 2016, the issue of whether to recommend rezoning of the West Road property to allow for the charter school referenced in the Agreement of Sale came before the P & Z Commission. Respondent was present for the meeting. During the meeting, Respondent spoke in favor of the rezoning request for the West Road property. When a fellow commissioner made a request for more time to review the rezoning issue, Respondent opposed the delay by stating “[i]f you don't give them a go now, you basically kill the deal because it's a time sensitive thing that they want the kids in there in August.” During the meeting, the commissioners struggled with whether to recommend denial of the West Road property zoning request, recommend approval of the request without conditions, or recommend approval of the request with conditions. After two previous motions regarding the zoning request died for lack of a “second,” a third motion was made wherein approval was recommended “with the condition that we’re all going to look at the traffic movement with the final site plan design.” When it appeared as though this motion was also likely to fail for lack of a “second,” Respondent encouraged the chairman of the P & Z Commission to voice a “second” for the motion since Respondent was unable to do so.2/ Respondent’s actions during the meeting of February 9, 2016, were consistent with his obligations under the Agreement of Sale to assist the buyer of the West Road property with securing the “Buyer Required Approvals.”
Recommendation Based on the Findings of Facts and Conclusions of Law, it is RECOMMENDED that a civil penalty of $10,000.00 be imposed against Respondent due to his violation of section 112.313(7)(a) and that Respondent also be publicly censured and reprimanded. DONE AND ENTERED this 10th day of April, 2017, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 10th day of April, 2017.
The Issue The ultimate legal and factual issue in this matter is whether Engle Homes, Inc., and Lake Bernadette, Inc. (Permittees), have provided the Southwest Florida Water Management District (District) with reasonable assurances that the activities they propose to conduct pursuant to Management and Storage of Surface Water (MSSW) General Construction Permit No. 49005837.017 (the Permit) meet the conditions for issuance of permits established in Rules 40D-4.301, 40D-4.302, and 40D- 40.302, Florida Administrative Code. In particular, the issues of fact to be litigated are whether the Project will cause adverse water quality impacts to receiving waters and adjacent lands; whether the Project will cause adverse flooding of on-site or off-site property; whether the Project will cause impacts to existing surface water storage and conveyance capabilities; and whether the Project will adversely affect the property of others.
Findings Of Fact The Parties Engle Homes, Inc., and Lake Bernadette, Inc., are corporations licensed to operate in the State of Florida. The District is the administrative agency charged with the responsibility to conserve, protect, manage, and control water resources within its boundaries pursuant to Chapter 373, Florida Statutes, and the rules promulgated thereunder as Chapter 40D, Florida Administrative Code. Driscoll resides at 35716 Welby Court, Zephyrhills, Florida 33541, Lot 14, within the Timber Creek 2 Subdivision (Subdivision). Driscoll requested this hearing to show the District that there is a drainage problem on Lots 13 and 14, and the adjacent Geiger property to the south, which should be fixed at this time and as part of the Project. Driscoll wants "Engle Homes to propose a new solution to fix the entire Welby Court Geiger property problem," i.e., from Lots 4 through 14, and not a piecemeal solution as proposed in the Permit modification. The Subdivision Engle Homes, Inc., and Lake Bernadette, Inc., developed the Timber Creek 2 Subdivision. Lots 15 through 25 run east to west and are north of Welby Court. Lots 15 and 16 are located north of the cul-de-sac, on the eastern portion of Welby Court. Lots 3 through 14 run west to east, south of Welby Court. Lots 13 and 14 are south of the cul-de-sac on the eastern portion of Welby Court and are across the street and the cul-de-sac from Lots 16 and 15, respectively. Residences exist on Lots 5, and 7 through 14. Driscoll owns Lot 14, a corner lot, which is the southeastern most lot of the Subdivision. Don Geiger (Geiger) owns the land (approximately five acres) south of the property lines of Subdivision Lots 5 through Geiger's northern driveway, essentially a dirt road, runs parallel to Lots 5 through 14. Subsequent to the original construction activity involving the Subdivision, the developer realized that there was an "existing depression" (referenced on Engle Exhibit number 1), south of Lots 7 and 8, and on Geiger's property. Geiger complained to the District about standing water in this area. This depression area is approximately 90 feet long and 30 feet wide which needed to be "drained off" according to Geiger. The depressed area on Geiger's property was most likely caused when Lots 7 through 14 were graded and sodded, which raised the "lots up a few inches" above Geiger's driveway/property. Water is trapped during a storm event between the back yards and the depressed area. As a result, the southern end of the back yards, particularly Lots 7 and 8, and the driveway remain constantly wet. The Project On January 16, 2001, Engle Homes, Inc., and Lake Bernadette, Inc., filed MSSW Permit Application No. 49005837.017 with the District, to address the problems with the rear lot grading and the adjacent property. The actual Project area for the permit modification1 includes the southern portions of Lots 4 through 9 and south of the property lot line including Geiger's property. See Finding of Fact 5. The modified permit does not address the drainage area including the back yards of Lot 13 and Driscoll's Lot 14, and the other portion of Geiger's property/driveway to the south. On April 5, 2001, the District issued MSSW Permit No. 49005837.017 to Engle Homes, Inc., and Lake Bernadette, Inc., under the provisions of Chapter 373, Florida Statutes, and Chapter 40D-40, Florida Administrative Code, for the modification of a surface water management system to serve the Project area. The proposed Project will involve the construction of a concrete inlet box with a safety grate, storm sewers, and grass swales. Specifically, the project is intended to solve the drainage problems associated with the "existing depression" south of the boundary line for Lots 7 and 8 on Geiger's property (although Lots 4 through 9 ("area 1") are included within the Project area), and the back yards of Lots 7 and 8. A catch basin is proposed to be located south and on the lot line between Lots 8 and 9, which is expected to drain off the water in the depression area to the modified surface water management system. The inlet box will be placed in the corner between Lots 8 and 9. The collected water in the inlet box will be routed underground through a series of 18-inch storm sewer pipe straight north through a drainage easement between Lots 8 and 9 to Welby Court. The underground pipe ties into an existing pipe in front of Lot 9 on the street, then runs east along the Welby Court right-of-way and then north between Lots 19 and 20, and eventually north into a large permitted retention pond, located to the north of the Subdivision which will handle the stormwater. Driscoll's Alleged Drainage Problem There is another distinct drainage area, i.e., "area 2," which includes Geiger's property and the southern portions of Lots 13 and 14, where water drains from south to north into a roadside ditch to Geiger Cemetery Road ("area 3"), which runs south to north and east of Lots 14 and 15. During a September 2001 tropical storm, there was standing water on Geiger's driveway, directly south of Lots 13 and 14, which was present for more than 3 days. This was referred to by Mr. Barrett as a "small drainage problem that could easily be corrected." On the other hand, Geiger says that there is standing water on his driveway, south of Lots 13 and 14, "all the time." This caused Geiger to move his driveway "50 or 60 feet" south. According to Geiger, the berm, which runs across Lots 10 through 14, should be lowered and the backyards reconfigured. But this would be quite disturbing to the neighbors. Therefore, Geiger recommends the placement of drains south of Lots 13 and 14, which would direct the water out to the ditch at Geiger Cemetery Road and away from Driscoll's Lot 14. The modified Permit is not intended to solve this problem, although Driscoll wants this problem fixed. It is not necessary to resolve Driscoll's issue regarding whether there is a drainage problem in and around Driscoll's lot. The two drainage areas 1 and 2 discussed herein are not connected, although they are close in proximity. The solution to the first problem has no impact on the second, and there is no cited statutory or rule requirement that both issues must be addressed in this Permit application. This is Driscoll's quandary. Compliance with Rules 40D-4.301 and 40D-4.302, Florida Administrative Code The Project will not impact wetlands or surface waters. The Project will not adversely impact the value of functions provided to fish and wildlife, and listed species, including aquatic and wetland-dependent species, by wetlands or other surface waters and other water-related resources. The Project will not adversely impact the quality of receiving waters such that the water quality standards will be violated. The Project will not cause adverse secondary impacts to the water resources. The Project will not adversely impact the maintenance of surface or groundwater levels or surface water flows established pursuant to Section 373.042, Florida Statutes. The Project will not cause adverse impacts to a work of the District. The Project is capable, based on generally accepted engineering and scientific principles, of being effectively performed and of functioning as proposed. The Project will be conducted by an entity with financial, legal, and administrative capability of ensuring that the activity will be undertaken in accordance with the terms and conditions of the permit, if issued. The Project will comply with any applicable special basin or geographic area criteria established pursuant to Chapter 40D, Florida Administrative Code, by the District. The Project will not adversely affect the public health, safety, or welfare. The Project will not adversely impact the conservation of fish and wildlife, including endangered or threatened species, or their habitats. The Project will not adversely affect navigation. The Project will not cause harmful erosion or shoaling. The Project will not adversely affect fishing or recreational values or marine productivity in the vicinity of the Project. The Project will not adversely affect significant historical and archeological resources. The Project will not cause unacceptable cumulative impacts upon wetlands and other surface waters. The Project area is less than 100 acres. The Project does not require dredging or filling of wetlands, or construction of boat slips. The Project is not contrary to the public interest. The Project will not cause adverse water quantity impacts to receiving waters and adjacent lands, and will not adversely affect or impact the property of others, including Driscoll's property, Lot 14. "Area 1," between Lots 4 and 9, is a separate drainage area, and the water from this area does not drain to Lot 14. Driscoll's property is not within the Project area, and the Project was not intended to resolve his alleged drainage problem. The Project will not cause adverse flooding to on-site or off-site property. The Project will not cause adverse impacts to existing surface water storage and conveyance capabilities. Rather, the project is expected to improve the conveyance of water and drainage for "area 1" and the Project area.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Southwest Florida Water Management District enter a final order issuing Management and Storage of Surface Water General Construction Permit No. 49005837.017. DONE AND ENTERED this 24th day of October, 2001, in Tallahassee, Leon County, Florida. CHARLES A. STAMPELOS 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 24th day of October, 2001.
Findings Of Fact Petitioner is the state land planning agency charged with the responsibility to administer the provisions of Chapter 380, Florida Statutes, and the regulations promulgated thereunder. Petitioner has the authority to appeal to the Florida Land and Water Adjudicatory Commission any development order issued in an area of critical state concern. The appeal in the instant proceeding was timely. Monroe County is a political subdivision of the State of Florida and is responsible for issuing development orders for development in unincorporated Monroe County. Monroe County issued the development order that is the subject of this appeal. Respondents, Mortimer and Gay Hall, are the owners of real property known as Lots 60 and 61, Block 19, Breeze Swept Beach Estates on Ramrod Key in unincorporated Monroe County. The Halls have constructed a single family dwelling on that property, but the building permit for the construction of the dwelling is not at issue in this proceeding. Most of Monroe County, including the subject property, is within the Florida Keys Area of Critical State Concern as designated under Sections 380.05 and 380.0552, Florida Statutes. On January 21, 1992, Monroe County issued the subject building permit, Permit Number 9010001679, to Mortimer and Gay Hall as owners and Pierce Construction and Builders as contractor. The subject permit would be subject to certain conditions imposed by the Florida Department of Natural Resources (DNR). As permitted, the use of the structure would be limited to swimming and recreation. Boating, or the mooring of boats, would not be permitted. By letter dated December 17, 1991, DNR authorized the project subject to certain conditions and limitations, and provided, in pertinent part, as follows: Mort and Gay Hall are hereby authorized to proceed with the construction of a swim platform as proposed This authorization is specifically conditioned upon the following: * * * The structure shall be used only for passive recreational activities such as swimming and fishing. Mooring of vessels at the facility either on a temporary or permanent basis is strictly prohibited. The platform and walkway shall be elevated four feet above mhw [mean high water]. Handrails at a height of four feet shall be installed along the walkway and around the platform. Handrails shall be two feet above the platform deck. Install at least three "NO MOORING" signs along the perimeter of the platform. Install a ladder on the waterward terminus of the platform for water access. The application submitted by the Halls to Monroe County that resulted in the subject permit incorporated the DNR conditions and described the project as follows: Applicant wishes to install a wooden swim platform (20 ft. length x 8 ft. width) and a wooden elevated access walkway (25 ft. length x 4 ft. width) to access this platform; for the purpose of using the channel cut for swimming activities at their existing single family residence. Monroe County's comprehensive plan, which has been approved by the Petitioner and by the Administration Commission, is implemented through its adopted land development regulations, codified in Chapter 9.5, Monroe County Code. Section 9.5-345(m)(2), Monroe County Code, referred to as the four foot rule, provides as follows: (2) All structures on any submerged lands and mangroves shall be designed, located and constructed such that: * * * No structure shall be located on submerged land which is vegetated with sea grasses except as is necessary to reach waters at least four (4) feet below mean low level for docking facilities; No docking facility shall be developed at any site unless a minimum channel of twenty (20) feet in width where a mean low water depth of at least minus four (4) feet exists; Section 2.104, Nearshore Waters, Monroe County Comprehensive Plan, Volume II, Future Land Use Element, provides, in pertinent part, as follows: The Florida Keys are dependent on nearshore water quality for their environmental and economic integrity. The heart of the Florida Keys economy, the means by which Monroe County exists as a civil and social institution, is based on its unique oceanic character. If nearshore water quality is not maintained, then quality of life and the economy of Monroe County will be directly and immediately impacted. OBJECTIVES 1. To protect, maintain and, where appropriate, to improve the quality of nearshore waters in Monroe County. * * * POLICIES 1. To prohibit land use that directly or indirectly degrade nearshore water quality. * * * To prohibit the development of water dependent facilities, including marinas, at locations that would involve significant degradation of the biological character of submerged lands. To limit the location of water-dependent facilities at locations that will not have a significant adverse impact on off-shore resources of particular importance. For the purposes of this policy, off-shore resources of particular importance shall mean hard coral bottoms, habitat of state or federal threatened and endangered species, shallow water areas with natural marine communities with depths at mean low tide of less than four (4) feet, and all designated aquatic preserves under Florida Statutes section 258.39 et seq. By Final Judgment entered June 7, 1991, the Honorable Richard G. Payne, Judge of the Circuit Court of the Sixteenth Judicial Circuit, in and for Monroe County, Florida, ruled in Stanton v. Monroe County, Case No. 91-20-035- CA-18, that Monroe County's four foot rule does not apply to swimming piers, concluding, in pertinent part, as follows at page five of the Final Judgment: 5. To the extent that the County's Comprehensive Plan and Land Development Regulations fail to provide for swimming piers ... the court finds that it is unreasonable to treat such piers as if they were docks at which boats are to be moored. Pursuant to the judicial review authority of Chapter 163, Fla. Stat., the court declares ... [the four foot rule] inapplicable to piers at which boats are not to be moored. The County has adequate judicial remedies, including injunction, to prevent the use of such piers, including the subject pier, for the mooring of boats. Despite the Stanton ruling, supra, Monroe County has interpreted the four foot rule as being applicable to swimming piers such as the one the Halls wish to construct. Monroe County's long-standing interpretation of the four foot rule would not prohibit the permit because of the minimal effect such construction would have on the nearshore waters. Since 1986, Monroe County has adopted an interpretation of Section 9.5-345(m)(2), Monroe County Code, and of Section 2.104, Nearshore Waters, Monroe County Comprehensive Plan, Volume II, Future Land Use Element, that would permit the construction of the subject project. That interpretation permits the development of docks in subdivisions that were under development in 1986 if there is at least four feet of water at the terminal point of the dock at mean low tide. The structure that is the subject of this proceeding is in a subdivision that was under development prior to 1986 and would, if permitted, terminate in a channel more than 20 feet wide with water at least six feet deep at mean low tide. Monroe County's interpretation of the four foot rule is that the rule was intended to restrict the development of boating access facilities in new, undeveloped subdivisions and to regulate proposed expansion of existing marinas and the development of new marinas. Monroe County considers the subject application by the Halls to meet all of its permitting criteria. The structure will be constructed in a dredged area of adequate size for swimming. Access to the structure by boat is unlikely because the swimming area is surrounded by a reef and hard bottom that is extremely shallow, even at high tide. At low tide much of this surrounding area is above water, and the deepest area of water is approximately six inches. At high tide, the water depth of the surrounding area ranges from approximately four inches to approximately eighteen inches. On the waterward side of the surrounding area, the water depths are less than four feet. Petitioner's concern is that boats will moor at the structure regardless of the restrictions on the permit and that these boats will cause degradation to the nearshore waters while crossing to deep water. Benthic communities exist in the waters between the Halls's property and deep water, such as rock-hard bottom, sea grasses, algae, and hard coral. Turtles, manatees, sharks, stingrays, eagle rays, snapper, pink shrimp, mullet, and other marine animals populate those waters. Sea grass beds play an important role in water quality maintenance in the Keys through filtration, nutrient uptake, stabilization of the bottom, and as a habitat for commercially important species. One cannot reach deep water by boat from the Halls's property without crossing areas in which the water depth is less than four feet at low tide. Petitioner speculates that prop dredging, and the resulting damage to seagrass beds and shallow water marine communities, would result if one were to attempt to navigate these shallow waters by a propeller powered boat. Petitioner's concern is premised on the unwarranted assumptions that the structure will be illegally used at some point in the future by boats. Petitioner has failed to establish that this concern justifies denial of the permit. Petitioner did not establish that damage would be done to the environment by swimming in the area of the proposed swimming platform. Respondents presented evidence that several similar projects were permitted at approximately the same time as the Halls's permit without Petitioner filing an appeal. This evidence was insufficient to establish that Petitioner should be estopped to appeal the subject permit, that Petitioner engaged in selective enforcement of its regulatory power, or that Petitioner otherwise brought the subject appeal for an inappropriate purpose.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Florida Land and Water Adjudicatory Commission enter a final order affirming Monroe County's decision to issue building permit number 9010001679, and dismissing the appeal filed by the Department of Community Affairs. DONE AND ENTERED this 26th day of January, 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of January, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-2958DRI The following rulings are made on the proposed findings of fact submitted on behalf of Petitioner. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, and 14 are adopted in material part by the Recommended Order. The proposed findings of fact in the first sentence of paragraph 11, 12, 13, and 16 are subordinate to the findings made. The proposed findings of fact in paragraph 15 are rejected as being unnecessary to the conclusions reached because the use of the platform is limited. The testimony by Robert L. Herman as to the purpose and interpretation of the four foot rule by Monroe County is found to be a more persuasive than Mr. Metcalf's testimony. The following rulings are made on the proposed findings of fact submitted on behalf of Respondents. The proposed findings of fact in paragraphs 1, 2, 3,4, and 8 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 5 and 6 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 8 are rejected as being unnecessary to the conclusions reached. COPIES FURNISHED: Lucky T. Osho, Esquire David Jordan, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Theodore W. Herzog, Esquire Theodore W. Herzog, P.A. 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 James T. Hendrick, Esquire Attorney for Monroe County Post Office Box 1117 Key West, Florida 33040 Carolyn Dekle, Director South Florida Regional Planning Council 3400 Hollywood Boulevard Suite 140 Hollywood, Florida 33021 Pierce Construction and Builders Route 4, Box 319 Summerland Key, Florida 33042 Bob Herman, Herb Rabin, Lorenzo Aghemo, Pat McNeese Monroe County Growth Management Division Public Service Building, Wing III 5100 Junior College Road West Stock Island Key West, Florida 33040 William R. Kynoch, Deputy Director Florida Land and Water Adj. Commission Executive Officer of the Governor 311 Carlton Building Tallahassee, Florida 32301
The Issue As to Case 92-1751DRI whether Building Permit No. 9110002865 issued by Monroe County, Florida, to Ronald and Patricia LaCroix as owners and Pierce Construction and Builders as contractor for the construction of a dock is contrary to the provisions of Chapter 380, Florida Statutes, the Monroe County Comprehensive Plan and the Monroe County Land Development Regulations. As to Case 92-3949DRI whether Building Permit No. 9110003422 issued by Monroe County, Florida, to David Goodridge as owner and Pierce Construction and Builders as contractor for the construction of a dock is contrary to the provisions of Chapter 380, Florida Statutes, the Monroe County Comprehensive Plan and the Monroe County Land Development Regulations. As to Case 92-5582DRI whether Building Permit No. 9210004503 issued by Monroe County, Florida, to Dick and Jean Madson as owners and Mark W. Milnes Construction as contractor for the construction of a dock is contrary to the provisions of Chapter 380, Florida Statutes, the Monroe County Comprehensive Plan and the Monroe County Land Development Regulations.
Findings Of Fact Petitioner is the state land planning agency charged with the responsibility to administer the provisions of Chapter 380, Florida Statutes, and the regulations promulgated thereunder. Petitioner has the authority to appeal to the Florida Land and Water Adjudicatory Commission any development order issued in an area of critical state concern. Each appeal in this consolidated proceeding was timely and each involved a development within the Florida Keys Area of Critical State Concern as designated under Sections 380.05 and 380.0552, Florida Statutes. Monroe County is a political subdivision of the State of Florida and is responsible for issuing development orders for development in unincorporated Monroe County. Monroe County issued the development orders that are the subject of this appeal. Respondents, Ronald and Patricia LaCroix, are the owners of real property known as Lot 43 Saddlebunch RV Park on Saddlebunch Key in unincorporated Monroe County. On December 12, 1991, Monroe County issued building permit 9110002865 to Mr. and Mrs. LaCroix as owners and to Pierce Construction and Builders as general contractors, to build a boat dock on the subject property and extending beyond the mean high water mark into a man-made canal. At the point that the boat dock would terminate, the canal is more than twenty feet wide and is more than four feet deep at mean low tide. The canal extends throughout the Saddlebunch RV Park. Respondent, David Goodridge is the owner of real property known as Lots 38 and 39 Saddlebunch RV Park on Saddlebunch Key in unincorporated Monroe County. On March 20, 1992, Monroe County issued building permit 9110003422 to Mr. Goodridge as owner and to Pierce Construction and Builders as general contractors, to build a seawall and boat dock on the subject property and extending beyond the mean high water mark into a man-made canal. At the point that the boat dock would terminate, the canal is more than twenty feet wide and is more than four feet deep at mean low tide. The canal extends throughout the Saddlebunch RV Park. Respondents, Dick and Jean Madson are the owners of real property known as Lot 38, Section D, Sugarloaf Shores subdivision, Sugarloaf Key in unincorporated Monroe County. On May 13, 1992, Monroe County issued building permit 9210004503 to Mr. and Mrs. Madson as owners and to Mark W. Milnes Construction as general contractors, to build a dock and davits on the subject property and extending beyond the mean high water mark into a man-made canal. At the point that the boat dock would terminate, the canal is more than twenty feet wide and is more than four feet deep at mean low tide. The canal extends throughout Sugarloaf Shores subdivision. Monroe County's comprehensive plan, which has been approved by the Petitioner and by the Administration Commission, is implemented through its adopted land development regulations, codified in Chapter 9.5, Monroe County Code. Section 9.5-345(m)(2), Monroe County Code, referred to as the four foot rule, provides as follows: (2) All structures on any submerged lands and mangroves shall be designed, located and constructed such that: * * * No structure shall be located on submerged land which is vegetated with sea grasses except as is necessary to reach waters at least four (4) feet below mean low level for docking facilities; No docking facility shall be developed at any site unless a minimum channel of twenty (20) feet in width where a mean low water depth of at least minus four (4) feet exists; Section 2.104, Nearshore Waters, Monroe County Comprehensive Plan, Volume II, Future Land Use Element, provides, in pertinent part, as follows: The Florida Keys are dependent on nearshore water quality for their environmental and economic integrity. The heart of the Florida Keys economy, the means by which Monroe County exists as a civil and social institution, is based on its unique oceanic character. If nearshore water quality is not maintained, then quality of life and the economy of Monroe County will be directly and immediately impacted. OBJECTIVES 1. To protect, maintain and, where appropriate, to improve the quality of nearshore waters in Monroe County. * * * POLICIES 1. To prohibit land use that directly or indirectly degrade nearshore water quality. * * * To prohibit the development of water dependent facilities, including marinas, at locations that would involve significant degradation of the biological character of submerged lands. To limit the location of water-dependent facilities at locations that will not have a significant adverse impact on off-shore resources of particular importance. For the purposes of this policy, off-shore resources of particular importance shall mean hard coral bottoms, habitat of state or federal threatened and endangered species, shallow water areas with natural marine communities with depths at mean low tide of less than four (4) feet, and all designated aquatic preserves under Florida Statutes section 258.39 et seq. Section 9.5-4(W-1), Monroe County Code, provides as follows: (W-1) "Water at least four (4) feet below mean sea level at mean low tide" means locations that will not have a significant adverse impact on off- shore resources of particular importance. For the purposes of this definition, "off-shore resources of particular importance" shall mean hard coral bottoms, habitat of state or federal threatened and endangered species, shallow water areas with natural marine communities with depths at mean low tide of less than four (4) feet, and all designated aquatic preserves under Florida Statutes section 258.39 et seq. Benthic communities exist in the waters between the two canals and deep water, such as rock-hard bottom, sea grasses, algae, and hard coral. Turtles, manatees, sharks, stingrays, eagle rays, snapper, pink shrimp, mullet, and other marine animals populate the Sound. Sea grass beds play an important role in water quality maintenance in the Keys through filtration, nutrient uptake, stabilization of the bottom, and as a habitat for commercially important species. Neither the canal system for Saddlebunch RV Park nor the canal system for Sugarloaf Shores subdivision has access to deep water without crossing areas of water in Sugarloaf Sound with depths of less than four feet at mean low water. Many of these shallow areas contain sea grass beds. The operation of motor driven boats may result in damage to sea grass beds and shallow water marine communities through prop dredging if boats were to attempt to cross these shallow areas. Although there is evidence of prop dredging in parts of these shallow waters, it was not shown that the damage was done by boats traveling from these canal systems and deep water. Whether boats that may be docked at these sites if these permits are granted will cause damage at some future time to some portion of the shallow waters of Sugarloaf Sound between the canal systems and deep water is speculation. Since 1986, Monroe County has adopted an interpretation of Section 9.5-345(m)(2), Monroe County Code, and of Section 2.104, Nearshore Waters, Monroe County Comprehensive Plan, Volume II, Future Land Use Element, that would permit the construction of each of the subject projects. That interpretation permits the development of marginal seawalls, vertical bulkheads and docks in subdivisions that were under development in 1986 if the proposed structure would terminate in a channel more than 20 feet wide with water more than four feet deep at mean low tide. The structures that are the subject of this proceeding meet that permitting criteria. Monroe County's interpretation of the so-called "four foot rule" is that the rule was intended to restrict the development of boating access facilities in new, undeveloped subdivisions and to regulate proposed expansion of existing marinas and the development of new marinas. Monroe County's interpretation of its rules is that the type development at issue in this proceeding, constructed on an individual family home-site, would have minimal effect on the nearshore water environment of critical state concern. Monroe County considers the subject applications to meet all of its permitting criteria. Respondents presented evidence that several similar projects were permitted at approximately the same time as the subject permits were issued without Petitioner filing an appeal. This evidence was insufficient to establish that Petitioner should be estopped to appeal the subject permits, that Petitioner engaged in selective enforcement of its regulatory power, or that Petitioner otherwise brought the subject appeals for an inappropriate purpose.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Florida Land and Water Adjudicatory Commission enter a final order which affirms Monroe County's decision to issue building permit number 9110002865, and which dismisses the appeal filed by the Department of Community Affairs that is at issue in Case 92-1751DRI. It is further recommended that the Florida Land and Water Adjudicatory Commission enter a final order which affirms Monroe County's decision to issue building permit number 9110003422, and which dismisses the appeal filed by the Department of Community Affairs that is at issue in Case No. 92-3949DRI. It is further recommended that the Florida Land and Water Adjudicatory Commission enter a final order which affirms Monroe County's decision to issue building permit number 9210004503, and which dismisses the appeal filed by the Department of Community Affairs that is at issue in Case No. 92-5582DRI. DONE AND ORDERED this 26th day of January, 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of January, 1993. APPENDIX TO RECOMMENDED ORDER TO CASE NO. 92-1751DRI, CASE NO. 92-3949DRI, AND CASE NO. 92-5582DRI The following rulings are made on the proposed findings of fact submitted by Petitioner. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, 8, 10, 11, and 14 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 7 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in the first two sentences of paragraph 9 are adopted in material part by the Recommended Order. The proposed findings of fact in the last sentence of Paragraph 9 are rejected as being unsupported by the evidence. While the evidence established that damage may result, the evidence did not establish that damage would result. The proposed findings of fact in the first sentence of paragraph 12 are rejected as being unsubstantiated by the evidence since the water in the canals is deeper than four feet. The proposed findings in the second sentence of paragraph 12 are subordinate to the findings made. The proposed findings of fact in the last sentence of Paragraph 12 are rejected as being unsupported by the evidence. While the evidence established that damage may result, the evidence did not establish that damage would result. The proposed findings of fact in paragraph 13 are rejected as being subordinate to the findings made. The proposed findings of fact in the first sentence of paragraph 15 are rejected since the evidence established that Monroe County's interpretation of the four foot rule dates to 1986. The proposed findings of fact in the second sentence of paragraph 15 are rejected as being unnecessary to the conclusions reached. The remaining proposed findings of fact in paragraph 15 are adopted in material part by the Recommended Order. The proposed findings of fact in the first sentence of paragraph 16 are subordinate to the findings made. The proposed findings of fact in the second sentence of paragraph 16 are rejected as being argument. The proposed findings of fact in the final sentence of paragraph 17 (there are two paragraphs 16, the second of which is being referred to as paragraph 17) are adopted in material part by the Recommended Order. The remaining proposed findings of fact in paragraph 17 are rejected as being unnecessary to the conclusions reached. The following rulings are made on the proposed findings of fact submitted by Respondents. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 16, and 17 are rejected as being the recitation of testimony that is subordinate to the findings made. The proposed findings of fact in paragraph 12 are rejected as being contrary to the record of the proceedings. The proposed findings of fact in paragraph 13 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 14 are adopted in part by the Recommended Order are rejected in part as being subordinate to the findings made. The proposed findings of fact in paragraph 15 are rejected as being unnecessary to the conclusions reached. COPIES FURNISHED: Lucky T. Osho, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Randy Ludacer, Esquire Monroe County Attorney 310 Fleming Street Key West, Florida 33040 James T. Hendrick, Esquire Morgan & Hendrick 317 Whitehead Street Key West, Florida 33040 William R. Kynoch, Deputy Director Florida Land and Water Adjudicatory Commission Executive Office of the Governor 311 Carlton Building Tallahassee, Florida 32301 Carolyn Dekle, Director South Florida Regional Planning Council Suite 140 3400 Hollywood Boulevard Hollywood, Florida 33021 Robert Herman Monroe County Growth Management Division Public Service Building, Wing III 5825 Jr. College Road Stock Island Key West, Florida 33040 Charles M. Milligan, Esquire Post Office Box 1367 Key West, Florida 33041 David and Florence Clark 4606 Wayne Road Corona Del Mar, California 92625 Edward Warren Werling Post Office Box 1042 Summerland Key, Florida 33042 Theodore W. Herzog, Esquire 209 Duval Street Key West, Florida 33040 Pierce Construction & Builders Route 4, Box 319 Summerland Key, Florida 33042 Dick and Jean Madson Post Office Box 276 Summerland Key, Florida 33402 Mark W. Milnes Route 5, Box 775-G Big Pine Key, Florida 33043 David M. Maloney, Esquire Office of the Governor The Capitol, Room 209 Tallahassee, Florida 32399-0001
The Issue Whether Petitioner is entitled to a consent to use sovereign submerged lands.
Findings Of Fact MBRRC filed an application for an environmental resource permit and authorization to use sovereign submerged lands located in the Biscayne Bay Aquatic Preserve (BBAP). This application sought approval to construct two finger piers and to install twelve mooring pilings for the benefit of a private yacht club. The application was filed with the Department for review on October 20, 1995. The Petitioner’s property is located on Hibiscus Island, a man-made island within the BBAP, and is accessed by boat. The island is primarily used for residential purposes. Petitioner’s facility is the only commercial docking facility on the island. Petitioner owns approximately 140 feet along the waterfront with its property line extending 20 feet seaward of the upland property. It has an existing dock which is approximately 10 feet wide that runs the length of, and parallel to, the seawall along its waterfront. The proposed finger piers would extend waterward and perpendicular to the existing dock from its ends. This extension proposes to use approximately 16 feet into the sovereign submerged land at the ends and would also allow the installation of 12 mooring pilings between the piers. The ultimate purpose of the installation is to allow perpendicular docking. At all times material to this case the Department has considered the proposed construction to be a new facility subject to the requirements of Section 258.397(3)(a), Florida Statutes, and Rule 18-18.006(3), Florida Administrative Code. No existing structures at the site would qualify the applicant for the type of lease proposed. The Petitioner annually hosts numerous fishing and social events at its club facility. Participants typically “raft” vessels together in order to gain access to the shore. Historically this process has moored vessels parallel to the existing dock/seawall. This “rafting” would not necessarily be eliminated by the addition of the proposed finger piers. Petitioner seeks to expand the docking facility as requested in order to provide better ingress and egress to its property. It contends that fishing and boating in the BBAP will be enhanced by such improvements. Petitioner maintains its property is being treated differently than others; however, policies used by the Department in this instance are applicable to all areas of the BBAP. By letter dated February 6, 1996, the Department advised the Petitioner that staff would recommend denial of the application. That letter advised Petitioner of the “extreme hardship” test found in Rule 18-18.006(3), Florida Administrative Code as well as Section 258.397(3)(a), Florida Statutes. The letter noted that this standard was “at best very difficult to demonstrate” and advised Petitioner of the “public interest” requirement also set forth by rule and statute. “Self-imposed circumstances” as used in the applicable rule has been construed to include circumstances where the applicant seeks to improve existing boat access, to increase the number of docking slips, and to enhance the upland property. The Board of Trustees of the Internal Improvement Trust Fund (Board of Trustees) has determined that the construction of single-family docks meets the “extreme hardship” test because single-family docks are considered to be the lowest impact use available on sovereign submerged land. It is deemed appropriate to allow a qualified right of ingress and egress to the upland owner. The Petitioner’s proposal is not a public project or a public necessity. Petitioner currently has ingress and egress to its upland property. The Petitioner’s property is a nonconforming use in a residential area. The term “property owners in the area” has been construed to mean the BBAP. The proposed project is not unique to the applicant, and the burden to the applicant is shared by other property owners in the BBAP. The proposed project would provide additional access to an upland property owner who already has boat access to the waterway. Neither the project site nor the island on which it is located are unique as other properties of a similar nature are within the BBAP. In order to establish that a proposed project is “in the public interest,” applicants are required to demonstrate that the activity would improve either public recreation, water quality, fish hatcheries, or other matters of public interest. In this instance, Petitioner did not submit a written proposal to support the public interest requirement during the application process. Consequently, DEP has not assessed such proposal for its quantity or quality. Petitioner relies on its improved boating access to support a claim of enhancement to public recreation. As to water quality, fish hatcheries, or other matters of public interest, the proposed project would adversely affect seagrasses and other environmental resources by shading. Although the installation of mooring pilings would provide some environmental benefit, those benefits would not be quantifiable and would be offset by increased shading from the project. Other proposals submitted by Petitioner incidental to its Dade County permit application are insufficient in detail and scope to show the public interest requirement would be met. The proposed project is located in an area that is intermediate between the most sensitive and least sensitive sites, for the purpose of manatee protection. The proposed project would have an adverse environmental impact on manatee protection since it creates additional docking slips and additional boat traffic. The proposed project would result in environmental costs through the loss of resources and increased turbidity. The proposed project would provide no quantifiable economic benefit to the public, but would provide some economic cost in the loss of habitat and food source for fisheries. The proposed project would provide no social benefits different from those presently provided by the existing facility. The benefit of the proposed project is merely enhancement of the Petitioner’s current use at a cost of lost fisheries, increased danger to manatees, and increased turbidity.
Recommendation Based on the foregoing, RECOMMENDED: That the Department of Environmental Protection enter a final order denying Petitioner’s request for authorization to lease sovereign submerged land. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 31st day of March 1997. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 31st day of March 1997. COPIES FURNISHED: Stephen E. Tunstall, Esquire Stephen E. Tunstall, P.A. 2701 Southwest LeJeune Road Suite 410 Coral Gables, Florida 33134 Jeffrey Brown, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Kathy Carter, Agency Clerk Office of the General Counsel Department of Environmental Protection, Mail Stop 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Perry Odom General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
