The Issue Whether Respondent, Walt Disney World, violated Section 760.08, Florida Statutes (2006), as alleged in the Petition for Relief in this matter.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Petitioner is a Caucasian male, born in Puerto Rico. He is an amateur photographer. He had visited Walt Disney World at least ten times prior to December 1, 2006. Respondent owns and operates a theme park in Orange and Osceola Counties, Florida. Respondent employs individuals with the job title, "security host," with the responsibility of maintaining security in the theme park. This category of employees is licensed by the State of Florida, and they receive training in "abnormal behavior of guests," threat analysis, surveillance, intelligence, and other job-related skills incidental to maintaining a safe environment within the theme park. Respondent has a specific protocol regarding theme park guests exhibiting "abnormal behavior." In the context of this case, taking photographs in the theme park is not an "abnormal behavior." In fact, guests are encouraged to photograph those accompanying them and various theme park characters, e.g., Mickey Mouse. However, excessive photographing of structures, "mapping or progression photography," is considered "abnormal behavior." "Mapping" consists of taking pictures in a progression, so as to familiarize someone who has never been to an area with the layout of that area and is considered very unusual behavior. Petitioner entered the Magic Kingdom, part of Respondent's theme park, on December 1, 2006. A security host observed Petitioner photographing the main entrance and security bag check. Petitioner was unaccompanied. The subject matter and manner of Petitioner's photography was considered to be "abnormal" by the security host. Once a security cast member identifies potentially abnormal behavior by a guest, the protocol requires the security host to contact a member of management (by radio) and continue to observe the guest. Petitioner moved further into the Magic Kingdom and took photographs of Main Street and City Hall. Because Petitioner was limiting his photography to structures, the security host's initial impression that Petitioner was doing something "abnormal" was reinforced and, in accordance with the established protocol, he again called management. As further dictated by Respondent's security protocol, the uniformed security host is then met by an "undercover" security host whose job-responsibility is "real-time threat analysis." The "threat-analysis" security host continued to observe Petitioner as he took what was interpreted by the security host to be "panoramic" photographs of Town Square and "mapping" photographs of the interior of the train station. He, too, assessed Petitioner's photographic activities as "abnormal." Because the "threat analysis" security host concurred with the initial determination of "abnormal," the security protocol dictates that a security manager make contact with the guest. This was done in a discreet and unobtrusive manner. The security manager identified himself as an employee of Respondent and asked Petitioner if "he could do anything to assist him." Petitioner did not respond, so the security manager repeated himself. Respondent responded that he "was not an Arab terrorist," or words to that effect. His response was louder than conversational, and he appeared to be agitated. Because Petitioner was uncooperative, the security manager called a uniformed law enforcement officer, an Orange County, Florida, deputy sheriff, as dictated by Respondent's security protocol. The deputy sheriff asked for, and received, Petitioner's driver license. After a license check revealed that Petitioner's address was valid, he was allowed to pursue his activities in the theme park. His interaction with the security manager and deputy sheriff lasted approximately 15 minutes. Petitioner then returned to his theme park photography without limitation and spent an additional two hours in the theme park, until his camera's battery pack ran down. He did not have any further interaction with Respondent's security personnel, nor was he kept under surveillance. Petitioner returned to Respondent's theme park on December 9, 27, 28, 29 and 30, 2006 (he had an annual pass), had access to all facilities without difficulty, and had no encounters with Respondent's security personnel. The incident that occurred on December 6, 2006, was a result of Petitioner's photography being identified as "abnormal." There is no evidence that it was precipitated by his national origin or that Respondent was not exercising reasonable diligence in an effort to protect theme park visitors and employees.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Jose M. Gandia, failed to present a prima facie case of discrimination based on national origin, and, therefore, this matter should be dismissed in its entirety and a determination be entered by the Florida Commission on Human Relations that Respondent, Walt Disney World, did not violate the provisions of Chapter 760, Florida Statutes, as alleged in the Petition for Relief. DONE AND ENTERED this 13th day of March, 2008, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 13th day of March, 2008. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Jose M. Gandia 3054 Holland Drive Orlando, Florida 32825 Paul J. Scheck, Esquire Shutts & Bowen, LLP 300 South Orange Avenue, Suite 1000 Post Office Box 4956 Orlando, Florida 32802-4956
The Issue Whether Respondent's beverage license should be suspended or revoked, or a civil penalty assessed, for alleged violations of Sections 562.13(3)(a)(1), and 561.20(7)(a)(3), 562.23, Florida Statutes and Rule 7A-3.19(2), Florida Administrative Code, pursuant to Section 561.29, Florida Statutes, as set forth in Notice to Show Cause issued by Petitioner.
Findings Of Fact The Florida Voluntary Roadside Improvement Association (Association) was incorporated in 1951 as a nonprofit corporation under the laws of the State of Florida by the Circuit Court of Leon County. The general objects of the Association as set forth in its certificate of incorporation are to develop and carry out a program of voluntary mutual cooperation among businesses occupying lands adjoining highways of Florida, highway users, and others concerning highway utilization. Petitioner has issued beverage licenses to the Association in several business names since 1969 at several locations in Tallahassee. In November, 1974, a Series 11-C beverage license (club license) was issued to the Association in the name of 1221 Club located at 1221 Alabama Street, Tallahassee, Florida. The license was in effect at the time of the alleged violations set forth in Petitioner's Notice to Show Cause and is presently held by the licensee. (Petitioner's Exhibits 1, 2, Testimony of Schoenfeld) The Association has rented space in a building owned by Willie Bennett at 1221 Alabama Street for several years. When he first purchased the building some seven years ago, it was rented to Alberta Walker who was then operating a place of business known as the Psychedelic Shack under a beverage license issued by Petitioner. In October, 1974, on a plea of nolo contendere, she was sentenced to eight months in the Leon County Jail by the County Court of Leon County for a violation of the State Beverage Law and another offense. Her beverage license was cancelled in May, 1974. City utilities for 1221 Alabama Street have been supplied under a contract with Walker in the name of Psychedelic Shack since 1970. (Petitioner's Exhibits 6, 10, 12, Testimony of Bennett, Schoenfeld, Connell, Walker) On June 3, 1977, Petitioner's beverage officer, Gary E. Sams, took a paid informant, Nathan Jones, to the vicinity of the 1221 Club and instructed him to enter the premises and attempt to become a member of the club and purchase alcoholic beverages there. Some 20 minutes later, Jones came out of the club and had a membership card. On several later occasions during the month of July, 1977, Jones purchased beer and vodka at the club from Walker who was tending the bar. Although Jones relied on a recent memorandum prepared by Sams to recall the precise dates of the beverage sales by Walker, his testimony concerning the incidents is deemed credible. (Testimony of Sams, Jones, Simmons, Respondent's Exhibit 1) On July 14, 1977, Sams observed Walker go to the door of the club, insert a key and enter the premises. On July 18, he observed Walker take a key from her purse, give it to Theodore Simmons, who thereafter unlocked the door. On July 19, Sams served a subpoena duces tecum upon Walker at the club premises for cancelled checks and bank statements of her personal checking account during the period January through June, 1977. She expressed no objection to turning over the required documents and did so that day. Theodore Simmons, the president of the Association, voluntarily turned over checks from the Association banking account in the Second National Bank of Tallahassee, which were variously dated in May and June of 1977. Upon comparison of the two sets of checks, a handwriting expert employed by the Florida Department of Criminal Law Enforcement found that Walker had written many of the words and figures appearing on the face of the checks, but had not signed them. (Petitioner's Exhibits 7-9, Testimony of Sams, Deposition of McCarthy (Petitioner's Exhibit 13) The bylaws of the Association provide that the membership committee inquires into the eligibility of applicants and submits findings to the board of directors who then vote on membership. The bylaws further provide that the treasurer of the organization shall have charge of the funds and deposit all monies in Association bank accounts, make disbursements, and maintain the books. In fact, two former treasurers of the Association resigned from their duties because they were given no functions to perform and never saw any books of the Association or handled any of its monies. Both individuals had become members of the Association by paying a $1.00 membership and were unaware as to whether any vote had ever been taken on their membership. Although at one time, the Association contemplated creating recreational facilities across the street from its premises, all that was accomplished was a clearing of land. Several times, the membership was solicited for funds to assist families of deceased members. The primary function of the club was social in nature. (Petitioner's Exhibit 3, Testimony of Dixie, Allen) Both Theodore Simmons and Alberta Walker testified at the hearing. Simmons was president of the Association from 1975 until a few months ago. Walker has been a member since May of 1975. During the period that Simmons was president, the Association had officers but not a board of directors. The club did not have a paid manager or employee. The practice was for Simmons to make sales of beverages and snacks during the hours of operation, and sign checks prepared by Walker for payment of rent, supplies and other Association expenses. Although Walker was not a paid employee, she possessed keys to the establishment, kept the books, handled the monies and made the periodic deposits in the club bank accounts. Simmons was aware that Walker had been convicted of a beverage violation and testified that "I didn't start the club until she came out of jail." Although Simmons wasn't paid for his work at the club, if he needed money, he would routinely take some from the club receipts. Walker testified that Simmons was her "boy friend" for five years and that she spent a lot of time at the 1221 Club to be with him and because she was unemployed. She testified that she kept the books of the Association because Beverage Officer Sams had said in 1975 that it was all right to "work there" due to the fact that her criminal conviction had been for a misdemeanor; but that he told her in August, 1977, that a 1976 state law prohibited her working as a bartender, although she could continue to keep the books. At the hearing, Sams conceded that he had informed Walker that she could continue to maintain the books of the Association. Walker claimed that the reason the utilities for the premises remained in her name was that it would cost $300 to transfer the account to the 1221 Club. Her claimed reason for making the club bank deposits was that Simmons had no motor vehicle and that the bank was located on the route to her home. She admitted selling alcoholic beverages as a consequence of Sams telling her that she could work at the club. The reason she had a key to the premises was that the one used during her operation of the Psychedelic Shack still opened the lock on the door of the premises. Her reason for filling out checks for Simmons to sign was that he was nervous and a poor speller. (Testimony of Simmons, Walker, Sams)
Recommendation It is recommended that Petitioner impose a civil penalty against Respondent, Florida Voluntary Roadside Improvement Association, in the amount of $100, pursuant to the authority granted under Section 561.29(1)(e) and (4), Florida Statutes, for violation of Rule 7A-3.19(2), Florida Administrative Code. DONE and entered this 21st day of February, 1978, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Francis Bayley, Esquire Department of Business Regulation The Johns Building 725 South Bronough Tallahassee, Florida 32304 W. R. Phillips, Esquire Post Office Box 594 Carrabelle, Florida 32322 Charles A. Nuzum, Director Division of Beverage Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32304
The Issue The issue in these consolidated proceedings is whether the proposed single-family residential dock meets the requirements for a letter of consent for use of sovereignty submerged lands pursuant to chapters 253 and 258, Florida Statutes, and Florida Administrative Code Chapters 18-20 and 18-21, such that the Consolidated Regulatory Exemption and Letter of Consent for Department of Environmental Protection File No. 0319584-003EE, as amended on September 30, 2020, should be granted.
Findings Of Fact The Parties DEP is the state agency charged with regulating specified activities in state jurisdictional surface waters, pursuant to chapter 373, part IV, Florida Statutes. Additionally, DEP is charged with performing all staff duties and functions for the Board of Trustees of the Internal Improvement Trust Fund ("Trustees" or "Board") related to the administration of state-owned lands pursuant to chapter 253, including sovereignty submerged lands in aquatic preserves, pursuant to chapter 258. In this case, DEP is responsible for reviewing the application for the dock and issuing the Dock Approval that has been challenged in these proceedings. Fondriest owns the upland property riparian to the sovereignty submerged lands on which the Dock is proposed to be, at 1953 Long Beach Drive, Big Pine Key, Florida. She is the applicant for the Dock Approval that has been challenged in these proceedings. The Trust owns the upland property located at 1975 Long Beach Drive, Big Pine Key, Florida. This property is located immediately adjacent to, and west of, Fondriest's property. DeMaria and Appel own the upland property located at 1997 Long Beach Drive, Big Pine Key. This property is located two parcels west of Fondriest's property. Appel owns two other upland properties located on Long Beach Drive, neither of which is located immediately adjacent to Fondriest's property. Crilly is the holder of a marine turtle permit issued by the Florida Fish and Wildlife Conservation Commission ("FFWCC"), and she volunteers as a sea turtle monitor for the Long Beach Drive area of Big Pine Key. History of the Dock Approval and Notice of Agency Action As stated above, on December 10, 2019, DEP issued a regulatory general permit and letter of consent to Fondriest, approving the 2019 Approval, which was then proposed as an 800-square-foot structure for use as a pier for non-motorized vessels. There was no evidence presented that Petitioners received a clear point of entry to challenge DEP's proposed agency action issued on December 10, 2019, either through receipt of written notice by mail, or constructively through publication of notice of the proposed agency action in a newspaper or other publication medium. The Trust filed a Petition for Administrative Hearing on January 30, 2020; DeMaria filed a Verified Petition for Formal Administrative Hearing on January 31, 2020; and Crilly filed a Verified Petition for Formal Administrative Hearing on February 27, 2020. On September 11, 2020, Fondriest filed a revised application with DEP, reducing the size of the Dock to 500 square feet; requesting a verification of exemption from permitting, pursuant to rule 62-330.015(5)(b) and section 403.813(1)(b)2; and requesting authorization, pursuant to chapters 253 and 258, and chapters 18-20 and 18-21, to use sovereignty submerged lands. On September 30, 2020, DEP issued Florida Department of Environmental Protection’s Notice of Proposed Changes to Agency Action—i.e., the "Dock Approval"— 2 Because the Dock will have less than 500 square feet of over-water surface area, it is exempt, pursuant to section 403.813(1)(b). from permitting under chapters 373 or 403. Petitioners have stipulated that the Dock qualifies for the permitting exemption under section 403.813(1)(b). verifying the regulatory exemption and authorizing the use of the sovereignty submerged lands by a letter of consent.3 DEP's agency action proposing to approve the Dock supersedes all prior DEP agency action with respect to the Dock, and constitutes the proposed agency action at issue in these proceedings. Long Beach Drive and the Surrounding Area Fondriest's property is located on Long Beach Drive, Big Pine Key, in Monroe County. Long Beach Drive is located on a spit of land comprising the southern and westernmost part of Big Pine Key. The south side of Long Beach Drive, where Fondriest's, the Trust's, and DeMaria's and Appel's properties are located, borders the Straits of Florida.4 Thus, Fondriest's, the Trust's, and DeMaria's and Appel's properties are riparian to sovereignty submerged lands underlying the Straits of Florida. The land along Long Beach Drive is platted and has been developed for residential and commercial uses. The Long Beach Drive area of Big Pine Key is located within the Coupon Bight Aquatic Preserve ("CBAP"), an Outstanding Florida Water and aquatic preserve consisting of approximately 6,000 acres of bays, mangrove forests, seagrass beds, and offshore patch coral reefs. The Long Beach Drive area, including Fondriest's property, is characterized by a rocky shore, with some narrow sandy beaches. The shore accumulates a significant amount of weed wrack consisting of seaweed, seagrass, and other debris. A beach berm created by wave and tide action 3 The Dock Approval states that the Dock does not qualify for the federal State Programmatic General Permit for section 404 of the Clean Water Act and section 10 of the Rivers and Harbors Act. Separate federal approval for the Dock has been issued by the Army Corps of Engineers, and Monroe County has issued a Building–Floodplain–Development Permit for the Dock. 4 All references to the shore or shoreline along Long Beach Drive refer to the shore or shoreline abutting the Straits of Florida. exists along much of the shore. The berm is frequently overtopped by water during high tides and storms. The beach is disturbed due to frequent use by residents and sea turtle monitors. Among the activities that take place on the beach are kayak launching, beach walking, beach cleaning and restoration, vegetation planting, and sea turtle nest monitoring. Several docks already exist along the shore on Long Beach Drive. The longshore current along the shore at Long Beach Drive flows, and transports sand from, east to west. The existing mangroves, jetties, and points along the Long Beach Drive shoreline trap sand and cause accretion of updrift beaches and starvation of downdrift beaches. The competent, credible evidence establishes that the docks along the shoreline on Long Beach Drive do not significantly contribute to beach accretion, starvation, or erosion in the area. The Proposed Dock The Dock is a private residential single-family dock associated with Fondriest's single-family residence at 1953 Long Beach Drive. It will not be used for commercial purposes or residential habitation, and there are no boat houses, boat lifts, or other enclosures proposed or approved as part of the Dock. As approved, the Dock will occupy 498 square feet, consisting of a 142-foot-long by 3-foot-wide access dock and a 12-foot-long by 6-foot-wide (i.e., 72-square-foot) terminal platform, and extending a total length of 154 feet. The access dock will be constructed with pressure-treated lumber planks spaced half-an-inch apart, to allow light penetration. The supporting pilings are comprised of PVC-encased aluminum, spaced approximately 9 feet, 5 inches apart. The PVC casing will help protect the piles from corrosion, thus helping to protect water quality. The terminal platform, which also will be supported by PVC-encased aluminum pilings, will consist of fiberglass grating, which allows sunlight penetration in order to prevent shading of seagrasses and other benthic resources.5 The top of the terminal platform is designed to be a minimum height of five feet above the mean high water line ("MHWL"). Handrails will be constructed along each side of the dock for its entire length, to prevent vessel mooring in adjacent shallow areas, thus helping protect against damage to benthic resources. The Dock will be used solely for the water-dependent activities of launching vessels and swimming. Only non-motorized vessels, such as kayaks, canoes, and paddleboards, may be launched from the Dock, and then only when there is a minimum depth of 0.5 feet (six inches, or half-a-foot) of water at the terminal platform.6 Additionally, the terminal platform must include signs of at least one-square- foot each placed on each side of the platform, stating "no mooring of motorized vessels allowed." A ladder is proposed to be located on one side of the terminal platform to provide access to the water for swimming or kayak launching, and the Dock Approval imposes a requirement that the ladder cannot be located over seagrass or hard bottom benthic communities. Although some turbidity in the water column may be generated by launching kayaks or other non-motorized watercraft from the terminal platform, the turbidity would be temporary and would not exceed that currently generated by dragging or hauling a kayak or other vessel from the shore across the substrate, to access sufficient water depth for launching. To prevent potential trapping, under the Dock, of sea turtles and other animals, such as Key Deer, an enclosure consisting of barriers one inch apart must be constructed beneath the portion of the Dock's landward access ramp having less than three feet of clearance above grade. 5 This is a standard construction material frequently used for docks in Florida. As further discussed below, the benthic survey performed for the area comprising the footprint of the Dock showed that no seagrass beds or other significant benthic resources are present. 6 The 0.5-foot water depth is keyed to the mean low water datum. At mean high water, the water depth at the terminal platform is approximately 1.2 feet. The competent, credible evidence establishes that the rest of the Dock will be elevated approximately five feet above the MHWL, so will be of sufficient height to allow animals to pass under without being trapped or impeded, and will provide sufficient clearance for sea turtle monitors to pass under as they traverse the beach. The competent, credible evidence also shows that the Dock will not impede the flow of water. The design is such that there are no structures on, or beneath, the Dock that will act as dams to prevent, or otherwise affect, the flow of water under and around the Dock. The water depth at the end of the terminal dock is 0.5 feet at mean low water, and 1.2 feet at mean high water. The Dock does not extend out to a depth of four feet of water. The competent, credible evidence establishes that the Dock will not interfere with navigation. The water depth between the shore and the end of the Dock's terminal platform is too shallow to accommodate motorized watercraft, and the Dock will be of sufficient height to enable persons using non-motorized watercraft to pass under it. The Dock will be constructed to meet the 2017 Southern Building Code, so will be able to resist 180-mile-per-hour, three-second wind gusts. The credible, persuasive evidence establishes that in a storm, the decking and stringers on the Dock will be washed off the pilings and will not become windborne projectiles. The Dock pilings will be imbedded into the substrate to a minimum depth of five feet, using a vibration hammer, rather than drilling and punching the pilings into the substrate. Using a vibration hammer will generate less turbidity in the water column than using the drill-and-punch installation technique, and turbidity curtains must be erected and maintained around the construction footprint to control turbidity and protect water quality. Additionally, the pilings will be installed using a spud barge elevated above the substrate, which also will help reduce turbidity during construction. Any turbidity generated during construction will be temporary. Installing the dock pilings using a vibration hammer also will generate less noise than the drill-and-punch technique. The Jacksonville Office of the National Marine Fisheries Service has issued a biological opinion stating that the vibration hammer installation technique "may affect/is not likely to affect" certain species listed as endangered, threatened, or of special concern. Additionally, because the Dock will be constructed in an open waterbody, the noise generated by piling installation is anticipated to be insignificant. Construction of the Dock may only be conducted outside of sea turtle nesting season, which runs from April 15 to October 31. Dock construction activities also must meet the requirements and standards established by the United States Fish and Wildlife Service to protect manatees, sea turtle species, the Smalltooth Sawfish, and the Eastern Indigo Snake. The 2011 Standard Manatee Construction Conditions for In-Water Work require vessels to navigate at slow speeds; manatee awareness signs to be posted; and construction to stop if a manatee is spotted within 50 feet of the construction site. In any event, manatees are unlikely to be present in the vicinity of the Dock, due to the very shallow water. The sea turtle and Smalltooth Sawfish construction conditions require vessels to operate at idle speeds in the vicinity of the project; turbidity curtains to be erected and maintained; and construction to be stopped if individuals of these species are observed within 50 feet of the construction site. The Eastern Indigo Snake, an upland species, is unlikely to be present at the Dock construction site. To prevent harm to individuals of this species, the letter of consent requires that educational materials be distributed to the construction crew and educational signs be placed at the construction site. No permanent exterior lighting is authorized for the Dock. This will prevent the Dock from attracting sea turtles and other marine species that are drawn to light. No turning basins, access channels, or wave break devices are proposed to be constructed for or used by the Dock. Fondriest's property has approximately 100 linear feet of riparian shoreline. There are no other docks existing on the shoreline along Long Beach Drive for at least 65 linear feet in either direction. The Dock will be constructed perpendicular to the shoreline, and will be located in Fondriest's riparian area, set back more than 40 feet from each riparian line demarcating her riparian area. Thus, the Dock will be located well outside the 25-foot setback from each riparian line. Biological and Other Resources in the Vicinity of the Dock Much of the shoreline along Long Beach Drive below the MHWL, including that along Fondriest's property, consists of bare, hard rock. The water is extremely shallow, and the bare rock is exposed at low tide. Site assessments conducted in 2020 at the location and in the vicinity of the Dock, show that limestone caprock, loose rubble, and some deeper depressions in the rock exist in the footprint of the Dock. The substrate consists of hard, highly uneven rock, with pools of tannin-stained water. Water pooled in the rock depressions is heated at low tide and, due to rotting vegetation, is nutrient-rich. The dissolved oxygen levels are very low, rendering the pools incapable of supporting substantial marine life other than cyanobacteria and filamentous algae, both of which indicate poor water quality. Some algae species are attached to the limestone caprock in the footprint and immediate vicinity of the Dock. However, recent biological resource assessments show that no seagrass beds, corals, or other hard bottom communities exist in the footprint of the Dock. Thus, the competent, credible evidence shows that there are no aquatic resources of any significant value in the footprint, or immediate vicinity, of the Dock. A small seagrass bed is located near the terminal platform. The letter of consent requires avoidance of this seagrass bed during construction and use of the Dock. Additionally, as discussed above, turbidity curtains must be installed to prevent turbidity and siltation of this seagrass bed during construction. The evidence establishes that the area waterward of the MHWL along Long Beach Drive generally supports a rich aquatic community. Fish and aquatic invertebrates inhabit the water in the vicinity, and numerous bird species use the area waterward of the MHWL, including that bordering Fondriest's property, as feeding and foraging habitat. However, no non-speculative evidence was presented to show that the construction, presence, and use of the Dock will result in adverse effects to this aquatic community, or to any plant or animal species in this aquatic community. Additionally, the competent, credible evidence shows that none of these resources exist in the footprint, or immediate vicinity, of the Dock, and conditions have been imposed in the letter of consent to ensure that the construction and use of the Dock will not adversely affect these resources. To the extent that the vibration hammer installation of the pilings will result in noise that may cause fish, birds, and other animals to leave the area, that effect will be temporary and will cease when piling installation is completed. Although some benthic or attached species, such as seahorses, may be unable to leave the area, so may be subjected to noise stress, no persuasive, non-speculative evidence was presented showing that these species inhabit the area in the vicinity of the Dock. Thus, any alleged harm to these species is speculative. Because the Dock may only be used for nonmotorized vessels such as kayaks and canoes, use of the Dock will not generate noise or otherwise adversely affect the aquatic habitat waterward of the MHWL along Long Beach Drive. The Key Deer is listed as an endangered species. Key Deer traverse and forage along the shore at Long Beach Drive. No credible evidence was presented showing that the Dock would adversely affect the ability of Key Deer to traverse and forage on the beach on, or adjacent to, Fondriest's property. As discussed above, the Dock will be elevated waterward of the MHWL to approximately five feet above grade. The evidence showed that this height is sufficient to allow Key Deer to pass underneath without being impeded or trapped. No credible evidence was presented showing that the three-foot wide access ramp would interfere with Key Deer foraging or traversing along the beach. The competent, credible evidence establishes that the Loggerhead Sea Turtle and Green Sea Turtle, both of which are listed as endangered species, use the beach above the MHWL along Long Beach Drive, including the beach on Fondriest's property above the MHWL, for nesting. The FFWCC has determined, through its Florida Sea Turtle Nesting Beach Monitoring Program, that the shore along Long Beach Drive has a relatively low nesting density—i.e., within the lower 25% of nesting density values—for both of these sea turtle species. The evidence establishes that the Hawksbill Sea Turtle, Kemp's Ridley Sea Turtle, and Leatherback Sea Turtle do not use the beach along the Long Beach Drive shoreline for nesting. No competent, credible evidence was presented showing that significant sea turtle food sources are present in the footprint, or immediate vicinity, of the Dock. The competent, credible evidence does not show that the Dock will adversely affect the habitat value of the beach on Fondriest's property for sea turtle nesting, or that it will otherwise adversely affect nesting sea turtles and hatchlings. As previously discussed, an enclosure will be constructed under the access ramp to prevent nesting sea turtles and hatchlings from becoming trapped under the Dock. The competent, credible evidence establishes that the Dock will not adversely affect other protected species, including the Lower Keys Marsh Rabbit, the Keys Rice Rat, or the Mole Skink—none of which inhabit or use the marine/beach habitat present along the shore at Long Beach Drive. To this point, no evidence was presented showing that these species are, or ever have been, present on the beach at Long Beach Drive. Thus, no evidence was presented showing that the Dock adversely affect these species. The Dock will be Located in a Resource Protection Area 3 Areas within aquatic preserves are classified as Resource Protection Area ("RPA") 1, 2, or 3, for purposes of imposing restrictions and conditions on the use of sovereignty submerged lands, to protect discrete areas having high quality and transitioning habitat. The RPA 1 classification applies to areas within an aquatic preserve that have resources of the highest quality and condition. Areas classified as RPA 1 are characterized by the presence of corals, marine grassbeds, mangrove swamps, salt marshes, oyster bars, threatened or endangered species habitat, colonial water bird nesting sites, and archaeological and historical sites. The RPA 3 classification applies to areas within an aquatic preserve that are characterized by the absence of any significant natural resource attributes. The RPA 2 classification applies to areas within an aquatic preserve that are in transition, either having declining RPA 1 resources, or new pioneering resources within an RPA 3. Recent biological resource assessments conducted at the location of, and in the immediate vicinity of, the Dock show that no mangrove swamps, salt marshes, oyster bars, archaeological or historical resources, or colonial water bird nesting sites are present. As discussed above, although sea turtles nest on the beach along Long Beach Drive, this area does not constitute significant sea turtle nesting habitat, and there is no significant food source for adult or juvenile sea turtles in the vicinity of the Dock. Thus, the evidence shows that the Dock will not be located in an RPA 1. The biological resource assessments also showed that no transitioning resources are present at the location, or in the vicinity, of the Dock. The competent, credible evidence showed that current natural resource conditions at the site are the same as those that historically existed before Hurricane Irma struck the Long Beach Drive area in 2013. Thus, the evidence shows that the Dock will not be located in an RPA 2. Because there are no significant natural resource attributes or transitioning resources in the footprint and the immediate vicinity of the Dock, it is determined that the Dock will be located in an RPA 3.7 7 Some portions of the CBAP do contain seagrass beds, offshore coral patch reefs, and mangrove swamp communities, and provide habitat for protected species, including the Key Deer and colonial water birds, and, thus, merit an RPA 1 classification. By contrast, none of these habitats and conditions are present at the location, or in the vicinity, of the Dock. The definitions of RPA 1, 2, and 3 in rules 18-20.003(54), (55), and (56), respectively, refer to "areas within aquatic preserves" which contain specified resources types and quality. Fla. Admin. Code R. 18-20.004(54) through (56)(emphasis added). Additionally, rule 18-20.004(1)(a) provides that in determining whether to approve or deny a request to conduct an activity in an aquatic preserve, the Trustees will evaluate each request on a "case-by-case basis." See Fla. Admin. Code R. 18-20.004(1)(a)(emphasis added). These rules make clear that determining whether an activity will be located in an RPA 1, 2, or 3 necessarily entails a site-specific resource assessment to determine the type and quality of habitat, and the conditions present, at that specific site. As discussed above, the site-specific biological assessments conducted show that the Dock will be located in an RPA 3, and Petitioners did not present any site- specific evidence to rebut that classification. Cumulative Impacts Analysis In determining whether an activity proposed in an aquatic preserve may be approved, an analysis must be performed to determine the projected cumulative impacts of the activity. This analysis focuses on determining the impact of the proposed activity, combined with that of similar existing activities and similar activities currently under consideration for approval. See Fla. Admin. Code R. 18- 20.006. A cumulative impacts analysis performed by Fondriest's expert witness, Sandra Walters, showed that the Dock, in conjunction with similar existing docks and all other applications for docks that could be proposed for approval, will not result in adverse cumulative impacts to the aquatic resources in the CBAP. Walters's cumulative impacts analysis took into account both the acreage and linear footage of parcels within the CBAP for which a dock similar to the one at issue in this proceeding could be approved for construction. In performing a cumulative impacts analysis using linear feet of shoreline, Walters calculated a total of 19,357 feet, or 22.6 miles, of shoreline in the CBAP. Of this linear footage, approximately 7,500 linear feet of shoreline along Long Beach Drive and approximately 1,200 linear feet of shoreline along the ocean side of the Cook's Island portion of the CBAP are developable, for purposes of having the potential to be developed for a minimum-sized single-family residential dock similar to that proposed in this case. Walters's estimate is conservative, in that it included, as developable linear shoreline footage, parcels that likely could not be developed due to rate of growth, conservation easement, or other land use or environmental restrictions. Walters's linear footage analysis showed that approximately 5.7% of the entire CBAP shoreline possibly could be developed for construction of a perpendicular dock. Assuming that each of these docks is four feet wide—which is a valid assumption, using the four-foot maximum access dock width permitted under the aquatic preserves rules—a total of .23% of the shoreline would be impacted if a perpendicular dock was developed on each eligible parcel. Walters opined, credibly and persuasively, that this impact to the resources in the CBAP would be de minimis. In performing a cumulative impacts analysis on an acreage basis, Walters calculated that if a minimum-size single-family residential dock were developed on each of the 68 total developable lots within the CBAP, a total area of approximately 34,000 square feet, or approximately .013% of the acreage in the CBAP, would experience impacts similar to those created by the Dock. Walter credibly and persuasively opined that this impact to the resources in the CBAP would be de minimis. Walters used a conservative approach—i.e., projecting a realistic "worst case" scenario—in performing the cumulative impacts analysis. Specifically, she considered all parcels for which a minimum-size single-family residential dock reasonably could be proposed for approval in the future, rather than limiting her consideration of cumulative impacts to only those currently proposed for approval by the listed agencies. Additionally, she included impacts of similar dock projects for parcels that likely would not qualify for dock approval due to development restrictions. Thus, the cumulative impacts that Walters projected in her analysis are likely greater than the actual cumulative impacts of similar dock projects that reasonably can be anticipated to be developed in the area in the future. Petitioners presented the testimony of Michael Czerwinski regarding the cumulative impacts analysis required under the aquatic preserves rule for approval of an activity in an aquatic preserve. Czerwinski's analysis projected the potential cumulative impacts if every parcel along Long Beach Drive were developed with a minimum-size single-family residential dock, including the parcels on which development restrictions have been imposed such that they would not be eligible to be developed for a single-family residential dock. Based on this assumption, Czerwinski opined that such "buildout" along Long Beach Drive would result in a "cascading" or "nibbling" effect on the resources in the CBAP, and that there would be adverse impacts on sea turtle nesting habitat. Additionally, based on the unsupported assumption of maximum "buildout" of a single-family residential dock on every parcel along Long Beach Drive, Czerwinski projected that the resources within the entire CBAP would be adversely affected as a result of the cumulative impacts from approval of the Dock. Czerwinski's cumulative impacts analysis did not take into account the numerous parcels in the CBAP, including several on Long Beach Drive, that are unable to be developed for single-family residential docks due to conservation easements and local land development restrictions. As such, his analysis considered impacts which could not reasonably be expected to result in the Long Beach Drive area from approval of the Dock. Additionally, based on the unreasonable assumption of maximum dock buildout on every parcel on Long Beach Drive, Czerwinski projected adverse impacts to the entire CBAP as a result of the Dock. This analysis again failed to take into account that numerous parcels within the boundaries of the CBAP that are not located in the Long Beach Drive area also are under development restrictions that will prevent the construction of docks on those parcels. Czerwinski's analysis did not comply with the provisions of rule 18-20.005(1) and (3), which expressly limit the consideration of impacts to only those likely to affect the preserve and which reasonably could be expected to result from the proposed activity. For these reasons, Czerwinski's testimony regarding cumulative impacts as a result of the Dock was not credible or persuasive. As discussed above, Monroe County has issued a permit authorizing the construction of the Dock. This evidences that the Dock is permissible under the Monroe County local comprehensive plan. Additionally, as discussed in detail below, the Dock is an allowable use that is consistent with the CBAP Management Plan ("Management Plan"). As previously discussed, the competent, credible evidence establishes that there are no significant biological resources in the footprint, or in the immediate vicinity, of the Dock. Thus, the Dock will not cause the loss of beneficial biologic functions that would adversely impact the quality or utility of the CBAP. As previously discussed, the competent, credible evidence establishes that the Dock will not cause the loss of the beneficial hydrologic functions, either in the immediate vicinity of the Dock, or in the CBAP. As discussed above, the Dock will be a minimum-size single-family residential dock that will not adversely affect the quantity or flow of water. Accordingly, it is determined that the Dock will not have adverse cumulative impacts on the CBAP. Consistency with the CBAP Management Plan The Management Plan expressly identifies single-family private residential docks as an allowable use within CBAP, and specifies the standards that such docks must meet. Specifically, a dock may not extent waterward of the MHWL more than 500 feet or 20% of the width of the waterbody; must be designed to ensure maximum light penetration; the terminal platform may not be more than 160 square feet in area; and the access dock may not be wider than four feet. As discussed above, the Dock will comply with these standards. The Management Plan also delineates "management areas" within the CBAP, and describes resources and allowable uses within the different management areas. The Management Plan states that final determinations of allowable uses within a particular management plan are made by agency staff on a case-by-case basis. The sovereignty submerged lands along Long Beach Drive, out to a distance of 500 feet from shore, are designated as "Management Area SF/1." The sovereignty submerged lands bordering Fondriest's property are included within the Management Area SF/1. The resources included in Management Area SF/1 generally include grass beds, fringing mangroves, coral banks, coral heads, and hardbottom communities. However, as discussed above, the site-specific biological resource assessment surveys conducted on the sovereignty submerged lands bordering Fondriest's property showed that none of these resources are present at, or in the vicinity of, the Dock site. Furthermore, private single-family residential docks are expressly identified as an allowable use in the Management Area SF/1. Long Beach Drive is not a pristine, undeveloped shoreline. There are residences and some commercial uses along Long Beach Drive, with accessory uses such as seawalls, revetments, and private docks. The Dock is consistent with these existing uses and with the aesthetics of the shoreline on Long Beach Drive. Based on the foregoing, it is determined that the Dock is consistent with the CBAP Management Plan.8 Petitioners' Interests and Timeliness of Crilly's Petition The Trust's Interests The Trust owns a parcel of real property located at 1975 Long Beach Drive, immediately adjacent to, and west of, Fondriest's property. Barry Roberts and Gloria Meredith are the trustees of the Trust. 8 Rule 18-20.004(7) states, in pertinent part: "[t]he aquatic preserve management plans shall be used by [DEP] to preserve and restore the distinctive characteristics identified by the inventories for each aquatic preserve. The management plans for each aquatic preserve are available for guidance purposes only." Fla. Admin. Code R. 18-20.004(7)(emphasis added). Thus, to the extent a rule provision in chapter 18-20 conflicts with an aquatic preserve management plan, the rule controls. See Decarion v. Martinez, 537 So.2d 1083, 1084 (Fla. 1st DCA 1989)(an agency must follow its own rules). Neither Roberts nor Meredith, in their individual capacity, is a petitioner in these proceedings. Meredith testified that she and Roberts purchased the property at 1975 Long Beach Drive because of its location and the natural resources in the area, including the tide pool habitat in the rock depressions along the shore, and the animals that forage along, and inhabit, the shore. Meredith testified that she and Roberts both have a keen personal interest in, and use and enjoy, the natural resources along the shore at Long Beach Drive. They engage in bird watching; nature photography; kayaking; and observing nature, including Key Deer, birds, nesting sea turtles, and fish and invertebrates inhabiting tide pools in the rock depressions along the shore. After Meredith and Roberts purchased the property, they placed it in the Trust in order to preserve it, and its value as a residential property, for their children and grandchildren to enjoy in the future. Meredith and Roberts, as trustees of the Trust, have significant concerns about the aesthetic impact the Dock will have on the Trust property, particularly its impact on the view of the beach and the sunrise over the water. Meredith expressed her personal concern regarding the Dock's impacts on the biological resources at, and in the vicinity of, the Dock, and she also expressed concern that the Dock would interfere with her ability to safely walk along the shoreline. She testified that she was concerned that approval of the Dock would constitute a precedent, resulting in the construction of more docks and piers which would adversely affect the natural resources and the beauty of the beach. Meredith conceded that the Dock will be located within Fondriest's riparian area, will be set back more than 25 feet from the common riparian line, and will not cross the common riparian line into the Trust's riparian area. DeMaria's and Appel's Interests DeMaria is an original Petitioner in Case No. 20-2474, which is part of these consolidated proceedings, and Appel has moved to intervene and become a party to that case. DeMaria and Appel own the Deer Run eco-lodge bed and breakfast ("Deer Run") located at 1997 Long Beach Drive, immediately west of the property owned by the Trust. The Deer Run property is not located immediately adjacent to Fondriest's property. Appel owns two other parcels on Long Beach Drive, neither of which is located immediately adjacent to Fondriest's property. DeMaria testified that she and Appel purchased the Deer Run property because they were attracted to the unspoiled natural environment along Long Beach Drive. Deer Run attracts guests from around the world, who are drawn to the natural environment. These guests engage in nature photography and in-water recreational activities, such as kayaking, paddle boarding, and windsurfing; and they use and enjoy the natural resources and aesthetics of the area. DeMaria and Appel both testified that the presence of a long dock in close proximity to Deer Run would interfere with the view of the water and sunrise from Deer Run, and would significantly detract from the natural beauty and aesthetics of the environment at, and in the immediate vicinity of, Deer Run. Both testified that the presence of the Dock would render Deer Run a less attractive destination for guests. DeMaria testified that the presence of the Dock would interfere with her personal view of the water and the sunrise over the water; her ability to walk along shoreline below the MHWL; and her personal use and enjoyment of the natural beauty and aesthetics of the area. DeMaria also volunteers as a sea turtle nest monitor under the authority of Crilly's marine turtle permit. She expressed concerns similar to those expressed by Crilly—specifically, that the existence of the Dock would interfere with her ability to safely traverse the shoreline below the MHWL on Long Beach Drive to perform her sea turtle monitoring activities. Appel echoed DeMaria's concerns regarding the alleged injury to Deer Run's ecotourism business as a result of the Dock. He also testified that the presence of the Dock on Fondriest's property would injure his personal use and enjoyment of the natural beauty and aesthetics of the Long Beach Drive area. Appel also serves as a volunteer sea turtle monitor, and, in connection with that activity, traverses the shoreline along Long Beach Drive. He testified that the presence of the Dock would interfere with his ability to safely traverse the shoreline below the MHWL to conduct sea turtle monitoring activities. Appel also testified regarding the potential for the Dock to be damaged in storms, resulting in flying and floating debris that may damage his properties and the natural resources in the area. Crilly's Interests and Timeliness of Petition Crilly is the holder of a marine turtle permit issued by FFWCC, authorizing her to monitor sea turtle nesting along the beach at Long Beach Drive. Other volunteer sea turtle nest monitors work with Crilly under the authority of her permit. Crilly and her team of sea turtle monitors walk the beach daily during sea turtle nesting season. Crilly's responsibilities under the marine turtle permit include monitoring sea turtle nesting and false crawls; collecting data on the number of hatchlings that emerge from each sea turtle nest; and collecting data on sea turtle nesting mortality. The data are provided to the FFWCC for use in sea turtle research. Crilly testified that the Dock will impede her ability and that of her team to safely traverse along the shore below the MHWL to perform the sea turtle monitoring duties authorized under her permit. Specifically, Crilly testified that because the property above the MHWL is private, she must walk along the shoreline below the MHWL. The rock is slippery with numerous depressions, and traversing under the Dock would be treacherous. She testified that "I personally would not crawl under a dock and, therefore, I would not ask any of my volunteers on my team to crawl under a dock." According to Crilly, if she and her sea turtle nest monitoring team are unable to traverse the shoreline where the Dock will be located, they will be required to retrace their steps to the roadway on Long Beach Drive, walk down the road to a public access point, walk down to the beach, and walk back to the Dock, significantly increasing the time and effort to conduct their sea turtle monitoring activities. Crilly testified that she "learned of" DEP's approval of the Dock on December 30, 2019. No evidence was presented regarding whether, or how, Crilly received notice of the 2019 Approval sufficient to provide a clear point of entry for purposes of commencing the time for her to challenge that proposed agency action. Crilly filed her Petition challenging the 2019 Approval on February 27, 2020. When DEP issued the Dock Approval on September 30, 2020, superseding the 2019 Approval, Crilly already had filed her Petition at DEP, and the Petition had been referred to DOAH. IX. Findings of Ultimate Fact Regarding Compliance with Applicable Rules The term "dock" is defined in chapters 18-20 and 18-21. Chapter 18-20, applicable to aquatic preserves, defines a dock as "a fixed or floating structure, including moorings, used for the purpose of berthing buoyant vessels either temporarily or indefinitely." Fla. Admin. Code R. 18-20.003(19). Chapter 18-21, which generally governs approvals to use sovereignty submerged lands, defines a dock as "a fixed or floating structure, including access walkways, terminal platforms, catwalks, mooring pilings, lifts, davits and other associated water-dependent structures, used for mooring and accessing vessels." Fla. Admin. Code R. 18-21.003(22). The Dock meets the definition of "dock" in both rules.9 As discussed above, the Dock Approval limits mooring to non-motorized vessels, and Fondriest, a riparian owner, will use the Dock to access the water for the water-dependent activities of kayaking, paddle-boarding, and other water-dependent activities such as swimming, snorkeling, and fishing, consistent with rule 18-20.004(1)(e)5. 9 The Dock is not a "pier," which is defined as "a structure in, or, or over sovereignty lands which is used by the public primarily for fishing or swimming." Fla. Admin. Code R. 18-20.003(41)(emphasis added). As discussed above, the Dock is a private single-family residential dock that will be constructed on sovereignty submerged lands waterward of Fondriest's property. It will not be open to, or used by, the public for fishing or swimming. As previously discussed, the Dock meets the 500-square-foot threshold for purposes of exemption from regulatory permitting, pursuant to section 403.813(1)(b). The evidence also establishes that the Dock is a "minimum-size" dock, as defined in rule 18-21.002(39). Specifically, the Dock's area has been reduced to the smallest size possible that will provide Fondriest reasonable access to the water for kayak launching. The Dock's reduced size also will minimize impacts to resources at, and in the vicinity of, the Dock. Thus, the Dock has been designed to minimize any adverse impacts to fish and wildlife and threatened and endangered species habitat, as required by rules 18-21.004(2)(b) and (i), and 18-21.004(7)(d). Compliance with Aquatic Preserve Management Policies, Standards, and Criteria Rule 18-20.004 establishes the policies, standards, and requirements for approval of uses of sovereignty submerged lands in aquatic preserves. As discussed above, the Dock extends a total of 154 feet waterward from the MHWL. This is substantially less than the allowable 500-foot maximum extent from the MHWL, and also is substantially less than 20% of the width of the Straits of Florida, which spans from the Florida Keys to Cuba. Thus, the Dock is consistent with rule 18-20.004(5)(a)1. The competent, credible evidence establishes that the Dock will not be located in an area of significant biological, scientific, historic, or aesthetic value. However, even if such resources were present, the Dock would not cause adverse impacts due to its specific design features and the use of best management practices during construction. As discussed above, the Dock will minimize shading by reduction of the width of the access dock from four feet to three feet; by elevation of both the access dock and the terminal platform five feet above mean high water; and by the use of light-penetrable grating for the terminal platform. The Dock is designed to ensure that vessel use will not cause harm to site- specific resources, as required by rule 18-20.004(5)(a)3. The types of vessels that may use the Dock are limited to non-motorized vessels, and the letter of consent is conditioned to allow vessel launching only when there is a minimum depth of 0.5 feet of water at the terminal platform. As previously discussed, the evidence establishes that the Dock will be located in an RPA 3. Nonetheless, the Dock will comply with design standards applicable to docks in an RPA 1 or RPA 2. Specifically, the Dock will be constructed of wooden planking less than eight inches wide, spaced half an inch apart after shrinkage; will be elevated five feet above the MHWL; and will have a terminal platform consisting of light-penetrable grating to minimize shading. As previously discussed, the terminal platform will have a total area of 72 square feet—well below the 160-square foot maximum size allowed in aquatic preserves under rule 18-20.004(5)(b)6. The Dock extends out from the shoreline to a depth of approximately -0.5 ft at mean low water. Thus, Dock meets the requirement that it may not extend out from the shoreline further than to a maximum water depth of -4 feet at mean low water. Fla. Admin. Code R. 18-20.004(5)(b)3. Consistency with Coupon Bight Aquatic Preserve Management Plan Rule 18-20.004(7), which addresses management plans for aquatic preserves, states, in pertinent part: "[t]he aquatic preserve management plans shall be used by the Department to preserve and restore the distinctive characteristics identified by the inventories for each aquatic preserve." Rule 18-20.004(3)(a) states, in pertinent part: "all proposed activities in aquatic preserves having management plans adopted by the Board must demonstrate that such activities are consistent with the management plan." For the reasons discussed in detail above, it is determined that the Dock is consistent with the Management Plan, and, thus, complies with rule 18-20.004(3)(a). Public Interest Demonstration Chapters 18-20 and 18-21 both require an analysis to determine whether an activity proposed to be conducted on sovereignty submerged lands meets an applicable public interest test. Rule 18-20.004(1)(b), the aquatic preserve rule's public interest test, states, in pertinent part: "[t]here shall be no further sale, lease or transfer of sovereignty lands except when such sale, lease or transfer is in the public interest (see subsection 18- 20.004(2), F.A.C., Public Interest Assessment Criteria)." However, with respect to private residential single-family docks, rule 18-20.004(4)(c) states, in pertinent part: "[f]or the purpose of this rule, a private, residential single-family docking facility which meets all the requirements of subsection 18-20.004(5), F.A.C., shall be deemed to meet the public interest requirements of paragraph 18-20.004(1)(b), F.A.C." Fla. Admin. Code R. 18-20.004(1)(b)(emphasis added). As discussed herein, the Dock meets all applicable requirements in rule 18- 20.004(5). Accordingly, the Dock meets the aquatic preserves public interest test in chapter 18-20. The Dock also meets the public interest test codified in chapter 18-21. Rule 18-21.003(53) defines "public interest" as "demonstrable environmental, social and economic benefits which would accrue to the public at large as a result of the proposed action, and which would clearly exceed all demonstrable environmental, social, and economic costs of the proposed action." Rule 18-21.004(1) states: "[f]or approval, all activities on sovereignty lands must be not contrary to the public interest, except for sales which must be in the public interest." Fla. Admin. Code R. 18-21.004(1)(emphasis added). In this case, the Dock provides recreational water access to the riparian owner, and, as discussed extensively, will not have any adverse impacts on sovereignty lands, aquatic resources, or listed species. Thus, it is determined that the Dock is not contrary to the public interest, as defined in chapter 18-21. Petitioners assert that the Dock is inconsistent with article X, section 11 of the Florida Constitution, which states: Sovereignty lands. – The title to lands under navigable waters, within the boundaries of the states, which have not been alienated, including beaches below mean high water lines, is held by the state, by virtue of its sovereignty, in trust for all the people. Sale of such lands may be authorized by law, but only when in the public interest. Private use of portions of such lands may be authorized by law, but only when not contrary to the public interest. Fla. Const., art. X, §11 (emphasis added). Chapters 253 and 258, and the implementing rules codified in chapters 18-20 and 18-21, authorize the use of sovereignty submerged lands for private residential single-family docks when not contrary to the public interest. As discussed above, the Dock is not contrary to the public interest under chapters 18-20 and 18-21. Thus, the use of sovereignty submerged lands for the Dock is consistent with article X, section 11 of the Florida Constitution. Petitioners raised, as a public interest concern, their ability to walk below the MHWL along the shoreline on Long Beach Drive. The evidence shows that the Dock will, within its narrow footprint, present a minor hindrance to Petitioners' ability to walk unimpeded along the shoreline below the MHWL. However, the competent, persuasive evidence established that Petitioners will be able to duck under the Dock, or walk around the end of the terminal platform, where the water is relatively shallow. Importantly, Petitioners did not cite any statutory or rule provisions affording completely unencumbered access, by the general public, to all sovereignty submerged lands.10 Cumulative Impacts Rule 18-20.006 requires that an activity proposed in an aquatic preserve be evaluated for its cumulative impact on the aquatic preserve’s natural system. As extensively discussed above, Fondriest's expert, Walters, conducted a comprehensive cumulative impacts analysis that addressed all pertinent considerations in rule 18-20.006, and she concluded that the Dock will not have any 10 A key purpose of chapters 18-20 and 18-21 is to establish standards for approval of private uses of sovereignty submerged lands which may, to a certain extent, hinder the general public's access to those sovereignty lands. See Fla. Admin. Code R. 18-21.004 ("[t]he following management policies, standards, and criteria shall be used in determining whether to approve, approve with conditions or modifications, or deny all requests for activities on sovereignty submerged lands"); and Fla. Admin. Code R. 18-20.004 ([t]he following management policies, standards, and criteria are supplemental to chapter 18-21 . . . and shall be uses in determining whether to approve, approve with conditions or modifications, or deny all requests for activities on sovereignty submerged lands in aquatic preserves.") adverse cumulative impacts on the CBAP as a whole, or on any significant biologic, hydrologic, or other resources within the CBAP. As discussed above, Walters's analysis was comprehensive; her testimony was credible and persuasive; and her conclusion that the Dock will not result in adverse cumulative impacts to the CBAP, or to any resources within the CBAP, was rule- based, and considered all pertinent factual information. Based on the foregoing, it is determined that the Dock will not cause adverse cumulative impacts to the CBAP, or to any resources within the CBAP, as required by rule 18-20.006. Minimization of Adverse Impacts to Sovereignty Submerged Lands and Resources Rule 18-21.004(2)(b) states, in pertinent part, that activities that would result in significant adverse impacts to sovereignty lands and associated resources may not be approved. As discussed above, the evidence establishes that there are no significant natural resources present at the location, or in the vicinity, of the Dock. Thus, the Dock will not have adverse impacts on such resources or on sovereignty submerged lands. Nonetheless, numerous protective measures have been imposed as conditions to the letter of consent, to minimize the potential for adverse water quality impacts and to protect aquatic resources. Based on the foregoing, it is determined that the Dock will meet the resource impact minimization requirements in rules 18-20.004(5)(a)1. and 18-21.004(2). Measures to Avoid and Minimize Adverse Impacts to Listed Species and Habitat 18-21.004(7)(e) requires that "construction, use, or operation of the structure or activity shall not adversely affect any species which is endangered, threatened[,] or of special concern, as listed in rules 68A-27.003, 68A-27.004[,] and 68A-27.005." DEP consulted with FFWCC on the Dock application, to determine its potential impacts to species listed as endangered, threatened, or of special concern. As discussed above, FFWCC provided recommendations to minimize the Dock's potential impacts to several listed species, and those recommendations have been imposed as conditions to the letter of consent. As discussed above, the Dock will implement numerous measures to ensure that construction and use will not adversely affect manatees, sea turtle species, the Smalltooth Sawfish, and the Eastern Indigo Snake. As discussed above, Key Deer forage on and traverse the shore along Long Beach Drive. The competent, credible evidence establishes that the Dock will not impose any substantial barrier to the Key Deer's use of the shore on Fondriest's property, and will not otherwise adversely affect the Key Deer. Also, as discussed above, the competent, credible evidence establishes that due to the lack of suitable habitat, other protected species, such as the Lower Keys Marsh Rabbit, Keys Rice Rat, and Florida Keys Mole Skink are unlikely to inhabit, or otherwise be present at or near, the Dock site. Thus, it is determined that the Dock will not have any adverse impacts on these species. Based on the foregoing, it is determined that the Dock will not have adverse impacts to listed species and their habitat. Riparian Rights Chapters 18-20 and 18-21 require that the riparian rights of owners of upland riparian property adjacent to an activity seeking approval to use sovereignty submerged lands be protected. Rule 18-20.004(4) states, in pertinent part: "[n]one of the provisions of this rule shall be implemented in a manner that would unreasonably infringe upon the traditional, common law and statutory riparian rights of upland property owners adjacent to sovereignty lands." Rule 18-21.004(3) states, in pertinent part: None of the provisions of this rule shall be implemented in a manner that would unreasonably infringe upon the traditional, common law riparian rights, as defined in section 253.141, F.S., of upland riparian property owners adjacent to sovereignty lands. Satisfactory evidence of sufficient upland interest is required for activities on sovereignty submerged lands riparian to the uplands. All structures and other activities must be designed and conducted in a manner that will not unreasonably restrict or infringe upon the riparian rights of adjacent upland riparian owners. [A]ll structures, including mooring pilings, breakwaters, jetties and groins, and activities must be set back a minimum of 25 feet inside the applicant's riparian line. Exceptions to the setbacks are private residential single- family docks associated with a parcel that has a shoreline frontage of less than 65 feet, where portions of such structures are located between riparian less than 65 feet apart. Pursuant to rule 18-21.003(63), "satisfactory upland interest" means owning the riparian uplands or having some other possessory or use interest, as specified in the rule. Section 253.141(1) defines riparian rights as follows: Riparian rights are those incident to land bordering upon navigable waters. They are rights of ingress, egress, boating, bathing, and fishing and such others as may be or have been defined by law. Such rights are not of a proprietary nature. They are rights inuring to the owner of the riparian land but are not owned by him or her. They are appurtenant to and are inseparable from the riparian land. The land to which the owner holds title must extend to the ordinary high watermark of the navigable water in order that riparian rights may attach. Conveyance of title to or lease of the riparian land entitles the grantee to the riparian rights running therewith whether or not mentioned in the deed or lease of the upland. Fondriest owns the upland property riparian to the sovereignty submerged lands on which the Dock is proposed to be located, and Petitioners stipulated that she has a satisfactory upland interest for purposes of rule 18-21.004(3). The Trust owns upland property bordering the Straits of Florida; thus, riparian rights inure to the Trust property, pursuant to section 253.141. As previously discussed, the evidence establishes that the Dock will be set back over 40 feet from the common riparian line between Fondriest's property and the Trust's property. To this point, Meredith acknowledged that the Dock would be set back more than 25 feet from the common riparian line, and will not intrude into the Trust's riparian area. No evidence was presented showing that the Dock would unreasonably interfere with the Trust's traditional riparian rights of navigation, boating, swimming, or fishing within its riparian area. Meredith testified that the Dock would obstruct the view of the waterbody, the shore, and the sunrise over the water, from the Trust property. She appeared to assert these interests on behalf of the Trust and herself. However, as more fully discussed below, under Florida law, the riparian right to an "unobstructed" view does not entail a view completely free of any infringement or restriction by structures or activities appurtenant to neighboring riparian properties. Rather, the right to an "unobstructed" view means that a riparian owner is entitled to a direct, unobstructed view of the channel of the waterbody and a direct means of ingress and egress to the channel. No evidence was presented that the Dock—which will be constructed perpendicular to the shoreline within Fondriest's riparian area—would obstruct the Trust's or Meredith's view of the channel of the Straits of Florida. Additionally, as previously discussed, the Trust presented no evidence to show that the presence of the Dock in Fondriest's riparian area would interfere with the Trust's direct ingress and egress to and from the channel of the Straits of Florida. Accordingly, it is determined that the Dock will not unreasonably infringe on the Trust's riparian rights. Similarly, it is determined that the Dock will not unreasonably infringe on the riparian rights incident to the Deer Run property, or to Appel's properties on Long Beach Drive. To this point, Demaria and Appel did not present any evidence showing that the Dock will obstruct their view of the channel of the Straits of Florida, either from the Deer Run property, or from Appel's properties. DeMaria and Appel also failed to present evidence showing that the Dock would interfere with direct ingress and egress to and from the channel of the Straits of Florida, either from the Deer Run property or from Appel's properties. Accordingly, it is determined that, consistent with section 253.141 and rule 18-21.004(3), the Dock will not unreasonably infringe on the riparian rights of the Trust or of DeMaria and Appel. General Requirements for Authorization to Use Sovereignty Submerged Lands As discussed above, the Dock will be constructed and used in a manner that will avoid and minimize adverse impacts to sovereignty submerged lands and resources, consistent with rule 18-21.004(7)(d). The competent, credible evidence also demonstrates that the construction and use of the Dock will not adversely affect listed species, consistent with rule 18-21.004(7)(e). As discussed above, the Dock will not unreasonably interfere with the riparian rights of the Petitioners, consistent with rule 18-21.004(7)(f). Additionally, the Dock will not constitute a navigational hazard, consistent with rule 18-21.004(7)(g). Due to the shallow water in the footprint and in the vicinity of the Dock, navigation in the area is typically by kayak or canoe. The competent, credible evidence shows that the Dock will not impede navigation of these types of vessels. Because the sandy beach areas on Long Beach Drive are in private ownership, the Dock will not interfere with the public easement for traditional uses of sandy beaches, as provided in section 161.141, Florida Statutes; thus, the Dock is consistent with rule 18-21.004(7)(h). Also, as discussed above, the Dock will be constructed, operated, and maintained solely for the water-dependent uses of launching non-motorized vessels and swimming, consistent with rule 18-21.004(7)(j).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection issue a Final Order granting Respondent Julia Fondriest's application for a Letter of Consent to Use Sovereignty Submerged Lands and verifying that the Dock is exempt from the requirement to obtain a regulatory permit, pursuant to section 403.813(1)(b). DONE AND ENTERED this 18th day of February, 2021, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 18th day of February, 2021. COPIES FURNISHED: Julia Fondriest Doug Scheele Lifetime Dock & Lumber, Inc. 24536 Overseas Highway Summerland Key, Florida 33042 Luna E. Phillips, Esquire Gunster, Yoakley & Stewart, P.A. Suite 1400 450 East Las Olas Boulevard Fort Lauderdale, Florida 33301 Deborah K. Madden, Esquire Gunster, Yoakley & Stewart, P.A. Suite 1400 450 East Las Olas Boulevard Fort Lauderdale, Florida 33301 Paul Joseph Polito, Esquire Department of Environmental Protection Mail Stop 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 Ralf Gunars Brookes, Esquire Ralf Brookes Attorney Suite 107 1217 East Cape Coral Parkway Cape Coral, Florida 33904 Noah Valenstein, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue In an order dated September 18, 1991, the Florida Commission on Ethics found probable cause that George Walter Anderson, as mayor of the Town of Caryville, violated Section 112.313(6), F.S. by assisting a town councilman in having street lights put in the councilman's private trailer park at public expense. The issue in this proceeding is whether the violation occurred, and if so what penalty should be recommended.
Findings Of Fact Respondent, George Walter Anderson, is the elected mayor of the Town of Caryville, Florida and held that office at the time in question. As mayor, he serves as the chief executive officer of the municipality. He supervises town employees and executes the directives of the town council, the legislative body. Henry Chambers was a Caryville town councilman in 1990 at the time in issue. He owns a trailer park variously referred to as "Henry's trailer park", "Chambers' trailer park" or "Camelia Circle". The trailer park was annexed into the city limits by Chambers' petition in 1988. Sometime in early 1990, the town was having problems with flowers being taken from graves in the cemetery. The town council voted to put lights up to provide better security. Henry Chambers asked about putting lights up in his trailer park, but no official action was taken on the request. Mayor Anderson was at the meeting and remembers the discussion generally. Mayor Anderson was not at an April 10, 1990, meeting when the issue about Henry Chambers' trailer park lights was discussed again. The recollection of several council members is that Mayor Anderson was directed to meet with a man from the Rural Electric Authority (REA) about placing or "spotting" the lights in the trailer park. No one remembers a specific vote to put lights in the trailer park. Peggy Kirk is employed by West Florida Electric Cooperative Association, Inc. (REA) and was working there on April 11, 1990, when she took a call from someone about the Town of Caryville requesting lights at Henry Chambers' trailer park. She does not remember who called, but thinks from her notations on the job order that it must have been Mayor Anderson. The town has an account with REA, and a job order could be placed by phone. The job order specifies two yard lights to be installed at Chambers' trailer park, with directions to talk with Mayor Anderson about where to put the lights. (Exhibit D) The lights were installed by REA at Henry Chambers' trailer park sometime in mid-April. The town was initially billed for the lights and poles, but the bill was later adjusted because utility poles were already in place. When the monthly bills for the lights came in, Judy Huggins, the town clerk, did not pay them because they had not been authorized. She ordinarily disbursed funds for the town, some automatically, such as power bills, when the disbursal had been approved. When a bill was questionable, she presented it to the council for approval. The matter of the trailer park lights and bill was discussed at the July 10, 1990 Caryville town council regular meeting. At the meeting the town attorney, William Howell, Jr., advised that the council could vote to pay for the lights, but that Councilman Chambers should deed an easement to the town. The council voted to approve and pay the bill as soon as the town received its easement. The power bills for the trailer park lights are now being paid by the Town of Caryville. Henry Chambers has three documents which he feels are evidence of his easement to the city. The first is his petition for annexation of the property into the Caryville city limits in September 1988. He and some of the council members believe that the annexation alone made the trailer park "public property". The second document is a March 1991 Right of Way Easement from Henry Chambers and his wife to the REA for power lines to the trailer park. And the third document is a perpetual easement from Chambers and his wife to the Town of Caryville to construct and maintain a public road, and install utilities. The easement is dated November 17, 1992. According to the current town attorney, Owen Powell, Mr. Chambers had a clear intent to give an easement; if there is any problem at all, it is with the legal description. Mayor Anderson has known Henry Chambers off and on since he was born. They have not been social buddies and there was no evidence of involvement with each other's campaigns. Anderson's involvement with the placement of the lights was no more nor less than what he does, and perceives he should do, in the routine course of his executive function. As confirmed by several council members, the mayor is often instructed to carry out tasks without a formal vote of the council. Such was the case here. There was no formal vote; the mayor was told to work with REA on "placement" of the lights. He did, and the lights were installed. There was substantial confusion about whether the lights were placed on private property, but there was no evidence that Mayor Anderson acted with wrongful intent in carrying out what he believed was the direction of the council.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Commission on Ethics enter its final order and public report finding no violation of Section 112.313(6), F.S. by Respondent Anderson in this case. DONE AND RECOMMENDED this 21st day of April, 1993, in Tallahassee, Leon County, Florida. MARY CLARK 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 21st day of April, 1993. COPIES FURNISHED: Michael Ingram, Esquire Craig Willis, Esquire Department of Legal Affairs The Capitol, Suite 1502 Tallahassee, Florida 32399 George Walter Anderson Post Office Box 152 Caryville, Florida 34227 Bonnie Williams, Executive Director Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006 Phil Claypool, General Counsel Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006
Findings Of Fact Petitioner is the owner of real property known as Lot 6, Block 10, Angler's Park, in Key Largo, Florida. He purchased that property in November of 1986. Petitioner's property is contiguous to sovereign submerged lands in Largo Sound, a sound of the Atlantic Ocean. The Board of Trustees of the Internal Improvement Trust Fund of the State of Florida holds title to submerged lands waterward of the mean high water line contiguous to Petitioner's property. The submerged lands contiguous to Petitioner's property lie within the boundaries of John Pennekamp Coral Reef State Park. The Board of Trustees dedicated the submerged lands contiguous to what is now Petitioner's property to the Florida Board of Parks and Historical Memorials, now the Division of Recreation and Parks of the Department of Natural Resources, on September 21, 1967. A dock existed on the submerged lands contiguous to Petitioner's property prior to 1967. The entire dock existed at least by 1938. The historic dock was probably one of the oldest docks in Largo Sound. Due to the passage of time and hurricanes, only the pilings and a concrete pad near shore still existed as of 1967. The dock was not rebuilt until 1988. Throughout the years, boats were moored at the dock. After the planking on the dock no longer existed, people still moored their boats to individual pilings. The dock was considered an excellent location for fishing, and people travelled by boat to the location, tying their boats to the pilings to fish. When Petitioner purchased his property, the only structures left on the contiguous submerged lands were thirteen concrete pilings and the concrete pad near shore. Only four of the pilings were sticking up out of the water. The remaining pilings were submerged. The original configuration of the historic dock was easily ascertained by the pilings and concrete pad. After Petitioner purchased his property, he began constructing a residence. He would travel from elsewhere in the Key Largo area by boat, would tie his boat to one of the pilings, and would wade ashore. Petitioner applied to Monroe County for a permit to rebuild portions of the dock. Although Monroe County accepted and retained his permit application fee, he was not issued a permit. Instead, he was told that he should contact the people at Pennekamp State Park. Petitioner then contacted Respondent's employees at Pennekamp State Park about reconstructing portions of the dock. In response to that inquiry Petitioner received a letter dated June 10, 1987, advising him that Respondent was not a permitting agency. That letter further recited two of Respondent's rules prohibiting the removal or destruction of natural features and marine life and construction activities in that state park. Having been frustrated by his attempts to obtain a permit to rebuild the dock from both Monroe County and from Respondent's employees at Pennekamp State Park, Petitioner made no further effort to obtain a permit or authorization from any other state, local, or federal government agency to reconstruct his dock. One day he backed a pickup truck to the edge of the water, hooked up, and raised the closest piling up in the air. Utilizing the existing pilings and adding additional ones, Petitioner rebuilt the dock "going a step at a time." In the course of his rebuilding the dock, Petitioner replaced the wooden decking and fasteners, replaced the wooden stringers and fasteners, added seven new concrete pilings, raised and repositioned several existing concrete pilings, and poured concrete footings for the new pilings. He completed rebuilding the dock in 1989. During the almost one year that he was rebuilding the dock, he worked in plain view of employees of local and state agencies. He was easily observed by the Coast Guard, the Marine Patrol, and the Park Service boats travelling to and through the Marvin D. Adams Waterway located approximately seventy-five feet from his property. No one told Petitioner to stop his construction activities. When it was completed, his dock was 12 feet wide and 84 feet long, 28 feet shorter than the historic dock. Petitioner's entire dock consists of 1018 square feet. Petitioner's dock is in the same location as the historic dock. Petitioner's dock is a private dock, used only by him when he moors his boat there occasionally. In re-building his dock, Petitioner extended it to a distance so that the water depth at the end of Petitioner's dock is four feet mean low water. Additionally, Petitioner left an open space of one to two inches between each plank on the deck so that sunlight could penetrate between the deck planking the entire distance of the dock. Pilings are an integral part of a dock. In 1988 Respondent began conducting a survey of private docks, commercial marinas, and fills, both authorized and unauthorized, within the boundaries of Pennekamp State Park as those boundaries were extended in 1967 to Key Largo. The survey was to be utilized in developing a policy regarding structures within the extended park boundaries. Petitioner's dock was included in that survey. The information which Respondent transmitted to the Governor and Cabinet regarding Petitioner's dock was that it was not authorized, that it was built in 1990, and that the water depth at the mooring area, considered by Respondent to be the terminal end of the dock, was two feet. Respondent did not advise the Governor and Cabinet that a dock had been in existence at Petitioner's property prior to 1967 and as far back as at least 1938, that the concrete pad and thirteen pilings from the historic dock still existed, or that Petitioner had rebuilt the dock in the same location, but shorter, than the historic dock. Further, Respondent did not advise the Governor and Cabinet that its water depth measurement of two feet was not taken at the waterward end of the dock, the way such a measurement is normally done. Respondent did advise the Governor and Cabinet that the access channel to the dock was four feet deep. On April 12, 1990, the Governor and Cabinet, sitting as the head of Respondent, approved a policy regarding development encroachments in Pennekamp State Park. The portion of that policy which relates to private docks provides as follows: Private docks must (1) be in existence prior to 1967 within state park waters to receive authorized structure status; (2) all docks within state park waters legally authorized by the Department of Natural Resources or the Board of Trustees during or after 1967 receive status as authorized structures; (3) that all other private docks in existence since 1967 within state park waters that are not legally authorized by Department of Natural Resources or the Board of Trustees have been evaluated on a case-by-case basis, taking into consideration any authorization issued by state and federal environmental agencies and, using the Florida Keys Marina and Dock Siting Policies and Criteria - 18-21.0041 Florida Administrative Code, as a guideline for reviewing environmental impact on marine communities, designate the structure as either authorized or require removal or modification; and (4) that no future authorizations will be issued for the construction of new private docks in state park waters. Respondent subsequently notified Petitioner that his dock fell into category (3), that it had been evaluated on an individual basis using the Florida Keys Marina and Dock Siting Policies and Criteria, that his dock had an impact on marine communities because it exceeded the size and dimension requirements and did not meet the water depth requirements, and that Petitioner's dock needed to be "modified." Respondent further advised Petitioner that the modifications required included reconstructing his dock to a T-shaped structure rather than Petitioner's rectangular-shaped structure. The new structure would be required to have a four-foot wide walkway with a terminal platform of no more than 160 square feet. Further, Respondent's proposed dock would also extend an additional 28 feet further into Largo Sound than Petitioner's dock. Respondent also required that Petitioner install permanent handrails along the dock in order to convert it to only a swimming/fishing pier, and the mooring of any water craft to the structure would be prohibited. Petitioner has not so modified his dock. There are algae, sea grasses, sponges, coral, and other vegetation and marine life beneath and adjacent to Petitioner's dock, constituting a marine community. Shading has an adverse impact on the growth of sea grasses and marine vegetation. Where shading exists under Petitioner's dock, the submerged land under the dock is nearly barren. However, Petitioner rebuilt the dock in a manner so as to reduce the effect of shading. The dock is 41 inches above water at high tide. The spacing between planks on the deck also allows sunlight to penetrate the water below Petitioner's dock. An underwater videotape of the area beneath and around Petitioner's dock reveals an extensive marine life habitat and nursery. The pilings which have been under water for such a long time have an extensive buildup of sponges and coral which, in turn, provide a habitat for an enormous number of fish. Spiny Florida lobsters live under Petitioner's dock, as do mangrove snapper, barracuda, porkfish, damselfish, reef fish, sea cucumbers, and urchins. In effect, Petitioner has created an artificial reef. Some of the barren areas beneath Petitioner's dock are a result of the halo effect, i.e., the crustaceans and fish living under the dock and in the sponges and soft corals on the pilings only graze so far from their homes in order to avoid predators. This halo effect can also be seen around the free-standing pilings outside of Petitioner's dock area. Even if the planking on Petitioner's dock were removed, the sea grasses would not grow back around the pilings since the grazing organisms would still be present. Although there may be less shading beneath Respondent's proposed dock than exists underneath Petitioner's dock, substantial damage to the marine community beneath Petitioner's dock would be caused by the removal of Petitioner's dock and the building of a new one. It is not clear that the long- term effect of Respondent's proposed dock would have less adverse impact than Petitioner's dock. It is likely, however, that the removal of the present dock, with or without the subsequent construction of Respondent's proposed dock, would have a substantial adverse effect on the healthy marine community now existing beneath and around Petitioner's dock.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered giving Petitioner's dock authorized structure status. DONE and ENTERED this 10th day of February, 1992, at Tallahassee, Florida. LINDA M. RIGOT 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 10th day of February, 1992. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact numbered 1-3 and 5-7 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 4 and 9 have been rejected as unnecessary for determination of the issues involved herein. Petitioner's proposed findings of fact numbered 8 and 10-19 have been rejected as not constituting findings of fact but rather as constituting conclusions of law, argument of counsel, or recitation of the testimony. Respondent's proposed findings of fact numbered 2-7, 9-13, 16-18, 20, 21, 26-31, 33, 36, and 37 have adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 1, 8, 14, 15, 25, 35, 40, and 41 have been rejected as being unnecessary for determination of the issues herein. Respondent's proposed findings of fact numbered 22-24 have been rejected as not constituting findings of fact but rather as constituting conclusions of law, argument of counsel, or recitation of the testimony. Respondent's proposed finding of fact numbered 19 has been rejected as being irrelevant to the issues herein. Respondent's proposed findings of fact numbered 32, 34, 38, 39, and 42-44 have been rejected as not being supported by the weight of the evidence in this case. COPIES FURNISHED: James H. Burgess, Jr., Esquire Syprett, Meshad, Resnick & Lieb, P.A. Post Office Box 1238 Sarasota, Florida 34230-1238 Suzanne B. Brantley, Esquire Department of Natural Resources Mail Station 35 3900 Commonwealth Boulevard Tallahassee, FL 32399-3000 Don E. Duden Acting Executive Director Department of Natural Resources Mail Station 10 3900 Commonwealth Boulevard Tallahassee, FL 32399-3000 Ken Plante, General Counsel Department of Natural Resources Mail Station 10 3900 Commonwealth Boulevard Tallahassee, FL 32399-3000
Findings Of Fact Michael Weiss is part owner of Suncoast International, Inc. and general manager of the corporation's only business, a trailer park in Flagler County known as Flagler by the Sea Mobile Home Park. At all pertinent times, the park has leased or offered for lease a total of 44 mobile home lots. In mid-1985, Mr. Weiss received a letter from petitioner Department of Business Regulation (DBR) informing him that park owners were required by law to prepare and distribute prospectuses to mobile home tenants. Efforts to draft a prospectus meeting petitioner's approval began in August of 1985. After several revisions, the petitioner approved a prospectus on June 13, 1986, No. 1802171P, for all lots. Mr. Weiss received written notice of approval, together with a copy of the prospectus to which it pertained, with attachments, on June 26, 1986; and promptly arranged for a copier to produce 50 uncollated copies of everything received from the petitioner, see Petitioner's Exhibit No. 1, including the cover letter. With the assistance of Mr. and Mrs. Whaley, who worked for the company at the park, he tried to assemble at least 44 complete sets of these materials. In late May of 1986, Mr. Weiss had given all tenants notice by registered mail of his intention to raise rents, effective September 1, 1986. Realizing he needed to distribute prospectuses before any rent increase, he had simultaneously informed tenants that a then current (but unapproved) version of the prospectus was available for inspection. Respondent's Exhibit No. 5. Hand Delivery As instructed, Ms. Whaley encouraged tenants to pick copies of the prospectus up when they paid their rent. She kept a list of persons to whom she distributed copies of the prospectus. Part of the list survived and has been received in evidence. Respondent's Exhibit No. 2. One tenant, Mary Oetken, received a copy of the approved prospectus on July 29, 1986. But the prospectus given to Ms. Oetken did not contain rules and regulations, a copy of the lot rental agreement, a lot layout plan, or the number of her lot. Ms. Oetken already had a copy of her lot rental agreement, and park personnel customarily distributed copies of rules and regulations to each tenant, before tenancies began. On August 29, 1986, another tenant, Betty Marinoff, wife of Peter, received a copy of an approved prospectus. Before September 1, 1986, Ms. Whaley hailed Mr. Philip H. Bird, and handed him a copy. Whether these copies of the approved pro-spectus included all attachments the evidence did not disclose. Robert Onusko, who has leased a lot in Flagler by the Sea Mobile Home Park continuously since August of 1981, has had a copy of the park's rules and regulations since he moved in. As did all other tenants, he paid increased rent beginning September 1, 1986. Although Mr. Onusko himself received no copy of an approved prospectus until January of 1989, Petitioner's Exhibit No. 7, Angela Whaley gave his daughter Marilyn a copy of the prospectus when Marilyn paid rent in July or August. Taped to Doors Not all tenants were then in residence at the park. About half lived there full time. (T.127) With respect to lots whose lessees were away, Mr. Weiss directed Mr. and Mrs. Whaley to tape copies of the prospectus on trailer doors. "That was common procedure with late payments or whatever . . . " T.112. In mid-August of 1986, Ms. Whaley told him that prospectuses had been distributed for each lot, either by delivery to a tenant or by posting. Clarence Rainey leased a lot from 1977 to 1989 at Flagler by the Sea Mobile Home Park, where he lived part of the year, returning to Illinois in the summer. Told by a neighbor that they were available, he asked for and received a prospectus in November of 1986. He had not received one earlier. With her husband Roger, Madeline DuJardin resided at Flagler by the Sea from February of 1979 until February of 1988. She did not get a copy of the approved prospectus before the rent increased on September 1, 1986, from $125.00 to $150.00 per month. Neither Mr. and Mrs. Rainey nor Mr. and Mrs. DuJardin received copies when they were originally distributed. Their trailers were among those to which copies were taped, weeks or months before their return in cooler weather. Charles A. Bond, who shared a trailer with a half-brother, resided at Flagler by the Sea from November 21, 1985, until December 31, 1988. While he lived at the park he never received a prospectus. Brothers surnamed Karcher each leased lots from respondent. Ms. Whaley gave one Mr. Karcher a copy of the approved prospectus, before September 1, 1986. But Richard Karcher, who in those days only spent a week at a time in the park, at intervals of several months, did not receive a copy of the approved prospectus before the rent increased. Richard Karcher had obtained a preliminary draft of the prospectus, but it differed in important respects from the draft which was eventually approved. In June of 1988, he obtained another copy of the prospectus, the copy, he testified, which he gave DBR's investigator, which also differs in important respects from the approved version. Attached to the copy Mr. Karcher gave DBR's investigator was a set of the park rules and regulations. It is not clear whether Ms. Whaley told Mr. Weiss that she had taped an approved copy to Mr. Richard Karcher's door. (T. 126, 128) Change of Law Effective July 1, 1986, statutory changes altered prospectus requirements. Petitioner mailed advice concerning the new requirements when it sent out annual fee statements to mobile park owners. Mr. Weiss did not personally receive this advice nor any written notice of the nine workshops petitioner conducted in August of 1986 to acquaint park owners with the statutory changes. Although approved a few days earlier, respondent's prospectus did not conform to all the new requirements. In early 1988, Mr. Weiss heard from Gloria Thompson, a DBR employee in its Tampa office, in connection with a complaint filed by Charles Jagde, the same person whose complaint led to the investigation that gave rise to the present proceedings. Ms. Thompson found no violation on the original complaint. Respondent's Exhibit No. 6. Eventually Mr. Weiss learned that revisions to prospectus No. 1802171 were necessary. On November 18, 1988, he filed another proposed prospectus with petitioner. After its approval on January 30, 1989, park personnel distributed the revised, approved prospectus, No. 1802171P86, to the tenants.
Recommendation It is, accordingly, RECOMMENDED: That DBR enter an order requiring respondent to send complete copies of currently approved prospectuses by registered mail to all tenants who have not received such copies personally and signed receipts so stating. DONE and ENTERED this 30th day of July, 1990, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 1990. APPENDIX Petitioner's proposed findings of fact Nos. 1 through 6, 9, 11 through 14 and 16 through 19 have been adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 7, the evidence did not establish the contents of the copy of the prospectus the Miranoffs received. With respect to petitioner's proposed finding of fact No. 8, Mr. Onusko's adult daughter Marilyn received a copy of the prospectus before the rent increased. Petitioner's proposed finding of fact No. 10 pertains to subordinate matters only. With respect to petitioner's proposed finding of fact No. 15, Mr. Karcher so testified, without contradiction. Respondent's proposed findings of fact Nos. 1 through 5, 7 through 10, 12 through 19, 21, 22, 24, and 27 through 30 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 6, the prospectus had not been approved at that time. With respect to respondent's proposed finding of fact No. 11, she did not personally deliver prospectuses to all tenants. With respect to respondent's proposed finding of fact No. 20, the differences were material. Respondent's proposed findings of fact Nos. 23, 25 and 26 are immaterial. COPIES FURNISHED: Donna H. Stinson, Esquire Moyle, Flanigan, Katz, Fitzgerald & Sheehan, P.A. The Perkins House, Suite 100 118 North Gadsden Street Tallahassee, FL 32301 Debra Roberts, Esquire Department of Environmental Regulation 725 South Bronough Street Tallahassee, FL 32399-1007 Joseph A. Sole General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1000 Paul Martz, Esquire Martz & Zimmerman 3 Palm Row St. Augustine, FL 32084 Stephen R. MacNamara Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1000 =================================================================
The Issue The issue in this case is whether a small scale amendment to the Cooper City comprehensive plan adopted pursuant to Section 163.3187(1)(c), Florida Statutes, is "in compliance."
Findings Of Fact The Parties. Petitioner, The Sunshine Ranches Homeowners Association, Inc. (hereinafter referred to as the “Homeowners Association ") is a not-for-profit corporation. The Homeowners Association has members who reside within the residential area known as Sunshine Ranches, located in Broward County. The address of the principal office of the Homeowners Association is 12400 Flamingo Road, Fort Lauderdale, Broward County, Florida. (Stipulated Facts). The Homeowners Association was formed on or about December 4, 1968. The Homeowners Association is involved in working for the betterment of residents and land owners within Sunshine Ranches to secure political, social, and economic improvement within Sunshine Ranches. Petitioner, Charles F. Seip, resides at 4661 Southwest 128th Avenue, Fort Lauderdale, Florida. Mr. Seip lives two blocks west of the parcel of property which is the subject of this proceeding. Mr. Seip has lived at his current location for 26.5 years. (Stipulated Facts). Petitioner, Anthony E. Coulson, resides at 4710 Southwest 126th Avenue, Fort Lauderdale, Florida. Mr. Coulson lives approximately four blocks from the subject property. (Stipulated Facts). Petitioner, Jeffrey Price, resides at 5001 Southwest 126th Avenue, Fort Lauderdale, Florida. Mr. Price lives approximately four blocks west of the subject property. (Stipulated Facts). Each Petitioner submitted oral and written objections to the City of Cooper City during the review and adoption proceedings conducted by the City of Cooper City on the adoption of the comprehensive plan amendment which is the subject of this proceeding. Petitioners submitted objections to the Cooper City Planning and Zoning Board and the City of Cooper City Commission. The parties stipulated that Petitioners are "affected persons." Respondent, the City of Cooper City (hereinafter referred to as the "City"), is a municipality of the State of Florida. The City is located in Broward County, Florida. The City is a "local government" as defined in Section 163.3164(13), Florida Statutes. The City's address is 9090 Southwest 50th Place, Cooper City, Broward County, Florida. (Stipulated Facts). Intervenor, George H. Lange, Trustee, is the representative of a trust that owns the property which is the subject of the amendment at issue in this proceeding. The Amendment. By Ordinance Number 96-10-3, the City adopted an amendment, L.L.U.P.A. 96-S-1 (hereinafter referred to as the "Plan Amendment") to the Cooper City Land Use Plan. (Stipulated Facts). The Plan Amendment was adopted on October 22, 1996. (Stipulated Facts). Also adopted with the Plan Amendment was a Development Agreement establishing conditions for the development of the property which is the subject of the Plan Amendment (hereinafter referred to as the "Subject Property"). The Plan Amendment was also identified as Ordinance Number PS96-15 in some notices published by the City. (Stipulated Facts). The Plan Amendment changes the land use designation of approximately 8.45 acres of land from "Estate Residential" to "Commercial" for the eastern 3.82 acres and to "Community Facility" for the western 4 acres. (Stipulated Facts). The Plan Amendment is a "small scale amendment" pursuant to Section 163.3187(1(c), Florida Statutes. Therefore, the Plan Amendment was not reviewed by the Department of Community Affairs. (Stipulated Facts). The petition challenging the Plan Amendment was filed with the Division of Administrative Hearings within 30 days of October 22, 1996, the date the Plan Amendment was adopted. (Stipulated Facts). The City and Its Comprehensive Plan. The City is a relatively small municipality located in southwestern Broward County. Geographically, the City consists of approximately six-and-a-quarter square miles. The City is located directly to the east of Sunshine Ranches. The City and Sunshine Ranches are bounded on the north and south by the same roads: Griffin Road and Orange Road in the north; and Sheridan Street in the South. The western boundary of the City either abuts Sunshine Ranches or is separated by Flamingo Road. The City is bounded on the north by the Town of Davie. It is bounded on the south by Pembroke Pines. The City adopted the Cooper City Comprehensive Plan in 1991 (hereinafter referred to as the "Plan"). It consists of Volumes I, II, and III. Volume I contains the text of the Plan. Volumes II and III contain the data and analysis for the Plan. Pursuant to a Compliance Agreement entered into between the City and the Department of Community Affairs, the Plan was found to be "in compliance" as defined in Chapter 163, Part II, Florida Statutes. The City's Evaluation and Appraisal Report. The City was required to submit an Evaluation and Appraisal Report to the Department of Community Affairs on or before March 11, 1996. At the time of the formal hearing of this case, the City had prepared a draft of its Evaluation and Appraisal Report. See Respondent's and Intervenor's Exhibit 5. The draft of the City's Evaluation and Appraisal Report had not, however, been filed with the Department of Community Affairs. Sunshine Ranches. Sunshine Ranches is an unincorporated area of Broward County. It is generally bounded by the following roads: On the north by Orange Road and Griffin Road; On the south by Sheridan Street; On the west by Volunteer Road (148th Avenue); and On the east by Flamingo Road. Griffin Road abuts the entire length of the northern boundary of Sunshine Ranches. Orange Road is located immediately to the north of Griffin Road. The two roads are separated by a canal which runs the entire length of the northern boundary of Sunshine Ranches. The area to the north of Orange Road and Griffin Road is largely undeveloped. Flamingo Road on the eastern boundary of Sunshine Ranches is a six-lane road with a wide right-of-way. There is also a canal that runs the length of Flamingo Road. The canal separates Flamingo Road from Sunshine Ranches and other parcels of property located west of Flamingo Road. The right- of-way and canal are approximately 270 feet wide. The roads along the north, south, and west of Sunshine Ranches are contiguous with Sunshine Ranches' boundaries. On the east, Flamingo road is contiguous with most of Sunshine Ranches' eastern boundary. There are, however, several parcels of property located west of Flamingo Road which are a part of the City. Sunshine Ranches consists of approximately four square miles of land, or approximately 2,500 acres. Sunshine Ranches is a rural community with a significant number of small and large horse farms. There are also large homesites, the majority of which are five acres or larger. Many homesites have barns on them. A substantial number of homes in Sunshine Acres have animals, such as horses, chickens, and cows. Most of the roads in Sunshine Ranches are dirt roads. There are no sidewalks or traffic lights. There are a few fire hydrants in Sunshine Ranches. Most areas, however, are served by fire wells. There is a volunteer fire department consisting of two vehicles. The vehicles are leased from Broward County. Sunshine Ranches is a unique community in Broward County, both in terms of the size of lots and its rural, equestrian and agricultural character. There are signs at each entrance road into Sunshine Ranches that include the following: "Welcome to Sunshine Ranches: A Rural Estate Community." Most commercial enterprises within Sunshine Ranches are involved in equestrian-related activities. These activities consist of providing boarding facilities, riding schools, and horse training facilities. There is also a plant nursery located in Sunshine Ranches. Horses owned by non-residents of Sunshine Ranches are boarded at facilities in Sunshine Ranches. Non-residents also ride horses at facilities located in Sunshine Ranches. The land use designations for Sunshine Ranches consist of the following: "Rural Ranches," which allows one residential unit per two and one-half acres; and "Rural Estate," which allows one residential unit per one acre. The designation of Sunshine Ranches as Rural Ranches and Rural Estate was accomplished by an amendment to the Broward County comprehensive plan. It was the first area in Broward County to receive these designations. The designations resulted from a study conducted by Broward County to identify, preserve, and protect rural lands from urban encroachment. Property designated Rural Ranches may be used for "Community Facilities" also. Community Facilities include schools, fire stations, churches, etc. Churches require five- acre lots. There are several parcels located along Flamingo Road in Sunshine Ranches which are used by Churches. There are also schools located within Sunshine Ranches. Approximately 90% of Sunshine Ranches is designated Rural Ranches. Approximately 10% of Sunshine Ranches is designated Rural Estate. The portion of Sunshine Ranches designated Rural Estate is located along Giffin Road. Commercial Activities Around Sunshine Ranches. There are only a few commercial sites located near the boundaries of Sunshine Ranches. One is located on the western boundary of Sunshine Ranches at Volunteer Road and Griffin Road. This site is located on the side of Volunteer Road opposite to Sunshine Ranches. The site is, therefore, separated from Sunshine Ranches by the road and a canal. The largest amount of commercial property in the vicinity of Sunshine Ranches is located near the eastern boundary of Sunshine Ranches and Flamingo Road. At the corner of Flamingo Road and Giffin Road, immediately across Flamingo Road from the Subject Property, is Wal-Mart Shopping Center. Abutting Flamingo Road is the parking lot for the shopping center. The shopping center is located to the east of the parking lot. The shopping center is currently separated from Sunshine Ranches by approximately 700 feet of parking lot, the six-lanes of Flamingo Road, the canal located on the west side of Flamingo Road and the Subject Property. Immediately to the south of the Wal-Mart parcel are properties designated "Low 5" and "Low-Medium 10." Both designations allow residential uses. Flamingo Road and the canal on the western side of Flamingo Road act as a buffer between the existing commercial activities on Flamingo Road and Sunshine Ranches. Flamingo Road has historically acted as a dividing line between commercial activities and Sunshine Ranches. Commercial activities have been limited to the eastern side of Flamingo Road. On the west side of Flamingo Road there are several parcels of land which have been annexed as part of the City. None of these parcels are currently approved for commercial uses, however. They are all currently designated for residential ("Estate Residential") or Community Facilities. Most remain undeveloped. The Estate Residential designation allows use of the property for Community Facilities. Immediately to the south of the Subject Property is a 16-acres parcel designated Estate Residential. The largest parcel of property in the City located on the western side of Flamingo Road has been developed under the name of County Glen. There are no commercial sites within County Glen. Steps were taken in developing County Glen to minimize the impact of its higher density on Sunshine Ranches. These steps included restricting the number of traffic lights within the development and a limitation on density of the lots directly abutting Sunshine Ranches to one residential unit per acre. Although County Glen is more urban than Sunshine Ranches, steps were taken to buffer Sunshine Ranches from the impact of the development, consistent with development allowed west of Flamingo Road. The Need for Commercial Property in the City. Volume II of the Plan contains an analysis of the amount of commercial acreage within the City necessary to support the residents of the City. The analysis indicates that the City has one of the lowest ratios of commercial to residential acreage in Broward County. The ratio of commercial property to residential property was 7.2 percent. Although this ratio is lower than the ratio for Broward County, the City and the Department of Community Affairs agreed that the Plan, including the amount of acreage designated for commercial use, was "in compliance." The City has not amended its Plan to change this ratio. The City has adopted two Plan amendments reducing the amount of acreage in the City designated "Commercial" under the Plan. One amendment involved approximately 14.4 acres. The evidence failed to prove the size of the other parcel. Currently, there are a number of parcels of land designated Commercial under the Plan which are vacant. One is known as the Transflorida Bank Plaza. It is located to the east of the Subject Property at the corner of Griffin Road and 100th Avenue. The property was formerly a Winn Dixie Supermarket. Part of the property is still used for commercial uses. Another vacant commercial parcel is located on Pine Island Road across from David Poenick Community Center. This parcel is 6.5 acres. The City has approved use of this property for a 55,000 square-foot Albertson's. Another vacant commercial parcel is located on Stirling Road across from the Cooper City High School. On the east side of Flamingo Road, between Stirling Road and Giffin Road, there is a shopping center known as Countryside Shops. There are vacant parcels to the south and north of this property which could be used for commercial purposes. Finally, there are other vacant commercial parcels located in the central part of the City. The location of commercial property is an important factor in determining whether the property will actually be used. Therefore, the fact that there are vacant commercial properties located in the City fails to prove that there is not a need for the total amount of property designated Commercial under the Plan. Overall, the City has reduced the amount of property designated Commercial under the Plan. The amount of land being classified as Commercial pursuant to the Plan Amendment will not increase the amount of property originally designated Commercial pursuant to the Plan. The "Industrial" land use designation under the Plan allows some uses which may be considered commercial. This was true when the Plan was found to be in compliance, however, and the amount of land designated Commercial was still approved. The evidence failed to prove that the amount of property designated Commercial, including the portion of the property being designated Commercial pursuant to the Plan Amendment, is not supported by the data and analysis that supported the amount of commercial property found to be in compliance under the Plan when it was adopted. In light of the fact that the City has not submitted its Evaluation and Appraisal Report to the Department of Community Affairs for review as required by Section 163.3191, Florida Statutes, the amount of property designated Commercial in the originally approved Plan should not be relied upon to support the Plan Amendment. While the draft of the Evaluation and Appraisal Report prepared by the City indicates a need for additional commercial acreage in the City, the Department of Community Affairs has not reviewed the report. Nor has the City amended the Plan "based on the recommendations contained in the adopted evaluation and appraisal report " Section 163.3191 (4), Florida Statutes. The Subject Property and the Impact of the Plan Amendment. The Subject Property is currently classified as "Estate Residential" in the Plan. This classification allows the use of the Subject Property for residential purposes. The Subject Property is located at the southwestern corner of Flamingo Road and Griffin Road. It is located on the west of Flamingo Road. The Subject Property abuts the northeastern corner of Sunshine Ranches. Under the Plan Amendment, the eastern approximately four acres of the Subject Property will be designated Commercial (hereinafter referred to as the "Commercial Property"). This will be the first property on the west side of Flamingo Road designated for commercial uses. The Commercial Property will be separated from Sunshine Ranches by the remaining 3.82 acres of the Subject Property. This portion of the Subject Property will be designated Community Facilities (hereinafter referred to as the "Community Facilities Property"). The Subject Property abuts an area of Sunshine Ranches which consists of Rural Estate property. This designation makes up approximately 10 percent of the property in Sunshine Ranches. The Plan Amendment allows stormwater facilities required for the Commercial Property and the Community Facilities Property to be located on the Community Facilities Property. I. Compatibility of Land Classifications with Surrounding Classifications; The Impact of the Plan Amendment on Sunshine Ranches. Policy 1.1.3 of the Plan provides that the compatibility of a proposed land use with existing land uses is a primary consideration in determining whether a land use should be allowed. Residential and commercial land uses are not inherently compatible. Despite this fact, residential and commercial land uses often abut each other. Where this occurs, steps can be taken to minimize the negative impact of the commercial use of property on the residential use of adjoining property. Flamingo Road and the adjacent canal provide a good boundary and buffer between rural Sunshine Ranches and the urbanized area of the City. The Plan recognizes this fact by requiring that the City conduct a study of the application of an urban growth boundary line for areas of the City located west of Flamingo Road. Regardless of the size of the Commercial Property, the designation of the Commercial Property for commercial uses would be the first commercially authorized use of property west of Flamingo Road or inside any of the other boundary roads of Sunshine Ranches. Comparing the uses allowed on the Commercial Property with the uses of property in Sunshine Ranches, it is evident that the uses are not compatible. This conclusion, however, does not necessarily mean that the City's approval of the Commercial Property for commercial uses is not "in compliance." Although the uses allowed on the Commercial Property and in Sunshine Ranches are incompatible, there are steps which can be taken to minimize the negative impacts which occur when commercial activities approach residential activities. One of those steps was taken when the City approved the Plan Amendment with the Community Facilities Property located between the Commercial Property and Sunshine Ranches. The Community Facilities Property, in conjunction with other measures, can be an effective buffer between the Commercial Property and Sunshine Ranches. The Development Agreement adopted by the City was adopted, in part, to address compatibility concerns. The Development Agreement eliminates various uses of the Commercial Property which would otherwise be allowed by the City's zoning for commercial parcels. The Development Agreement also provides that the Community Facilities Property will be dedicated to community facilities uses once the development of the Commercial Property is approved. The Development Agreement also includes certain development standards and requirements intended to reduce the impact on Sunshine Ranches due to incompatibility, such as requiring berms and landscaping to buffer the Subject Property from Sunshine Ranches. Horse trails along the Subject Property are to be included in the development. Land development regulations will require that steps be taken in the development of the Subject Property to reduce the negative impact on adjoining property, including Sunshine Ranches. The designation of the Commercial Property for commercial uses could, however, have a "domino affect" on other property located west of Flamingo Road. Once one parcel is approved, it will be difficult for the City not to approve similarly situated parcels. The Plan Amendment will increase the expectation of others who own property west of Flamingo Road that the land- use designation of their property can be changed to Commercial. The evidence, however, failed to prove that there are other parcels of property located west of Flamingo Road which are sufficiently similar to the Subject Property that they would be allowed to be used for commercial purposes. The evidence also failed to prove that any parcels of property located west of Flamingo Road which may be considered in the future for commercial uses cannot have conditions imposed on their use for commercial purposes which will adequately protect Sunshine Ranches from an incompatible use. The Plan Amendment could also negatively impact the ability to use adjoining property for residential purposes. In particular, the sixteen-acre parcel located immediately to the south of the Subject Property will more difficult to develop as residential if the Plan Amendment is approved. The evidence failed to prove, however, that with effective buffering adjoining property cannot be used for residential purposes. The evidence failed to prove that, with proper measures to reduce the impacts of the development on the Subject Property on Sunshine Ranches, the development of the Subject Property allowed by the Plan Amendment would necessarily be incompatible with Sunshine Ranches. The evidence failed to prove that the uses allowed for the Community Facilities Property are incompatible with the uses allowed in Sunshine Ranches. The Availability of Infrastructure. The evidence failed to prove that the Plan Amendment is not in compliance due to the lack of available vehicle trips on roads that would be impacted by development of the Subject Property. This issue, which involves the question of whether development of the Subject Property is consistent with relevant transportation levels of service, is one that should be considered at the time a development order is sought. It is not an issue for consideration in determining whether a land use designation amendment is in compliance. The same conclusion applies to other services such as sewer and water, which currently are available for the Subject Property. Urban Sprawl, the State and Regional Plan, Internal Inconsistency, and Inconsistency with the Broward County Comprehensive Plan. The evidence failed to support allegations concerning urban sprawl, the state and regional plans, internal inconsistencies, and inconsistencies with the Broward County comprehensive plan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Administration Commission finding the Plan Amendment is invalid because it was adopted in violation of Section 163.3187(6), Florida Statutes, and is not "in compliance." DONE AND ENTERED this 23rd day of July, 1997, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON 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 23rd day of July, 1997. COPIES FURNISHED: Richard Grosso, General Counsel Scott SznitRen, Certified Law Intern ENVIRONEMENTAL and LAW USE LAW CENTER, INC. Civil Law Clinic Shepard Broad Law Center Nova Southeastern Center 3305 College Avenue Fort Lauderdale, Florida 33314 Alan Ruf, City Attorney City of Cooper City 9090 Southwest 50th Place Cooper City, Florida 33328 Richard G. Coker, Jr., Esquire BRADY and CORER 1318 Southeast 2nd Avenue Fort Lauderdale, Florida 33316 Barbara Leighty, Clerk Administration Commission Growth Management and Strategic Planning 2105 Capitol Tallahassee, Florida 32399 Gregory Smith, Esquire Administration Commission 209 Capitol Tallahassee, Florida 32399-0001
The Issue Whether the State of Florida, Department of Transportation (“Department”), properly denied Wilton Manors Street Systems, Inc.’s (“Wilton Manors”), applications for outdoor advertising sign permits.
Findings Of Fact Wilton Manors is a for-profit corporation authorized to engage in the business of outdoor advertising in the state of Florida. The Department is the agency vested with the responsibility to administer and enforce the provisions of chapter 479, Florida Statutes, including the approval and denial of applications for permits for outdoor advertising signs that are located within 660 feet of the State Highway system, interstate, or federal-aid primary system. In July 2012, Wilton Manors entered into a lease agreement with the City of Boynton Beach (“City”) for the construction of a two-sided billboard on a portion of real estate owned by the City on the east side of Interstate 95, located at 510 Northwest 14th Court, Boynton Beach, Florida. The site is located in an area commonly known as the City of Boynton Beach Public Works Site. The Public Works Site consists of two parcels bordered by Interstate 95 to its west. The north and south portions of the property totals approximately nine acres. The two parcels are contiguous and have the same zoning and future land use classification. Each parcel consists of approximately four and one-half acres. The subject sign is proposed to be placed on the far northwest section of the southern parcel near the border of the northern and southern parcels. On August 9, 2012, Wilton Manors submitted two applications (application numbers 58994 and 58995) to the Department for a double-faced outdoor advertising sign to be located on the east side of Interstate 95, 0.75 miles north of Boynton Beach Boulevard. The applications were assigned file numbers 58994 and 58995. The applications were complete and the appropriate fee was provided. The proposed sign structures met the size, height, and spacing requirements of section 479.07, Florida Statutes. The proposed sign would be visible and within 660 feet of an interstate. On September 6, 2012, the Department issued Wilton Manors a Notice of Denied Outdoor Advertising Permit Application, advising that Wilton Manors’ applications for double-faced outdoor advertising sign permits were not approved because of the following reasons: Location is not permittable under land use designations of site. [s.479.111(2), FS] Location does not qualify as unzoned commercial/industrial area. [s.479.01(26), FS] On December 14, 2012, Wilton Manors filed a Petition for Formal Administrative Hearing to challenge the Department’s denial of its applications. By agreement of the parties, referral of the petition to the DOAH was deferred. In 2014, while the petition remained pending before the Department, statutory changes were made to chapter 479, to include a new section 479.024, effective July 1, 2014. After the new law became effective, Wilton Manors supplemented its permit applications and submitted additional information to the Department. The supplemental information provided by Wilton Manors to the Department in response to the statutory changes included a certification from Michael Rumpf, the City’s Planning and Zoning Director since 1999. Mr. Rumpf completed the portion of the Department’s application regarding land use, certifying the designation of the Future Land Use Map for the parcel as Public, Private Governmental and Institutional (“P, PG & I”), and the current zoning of the parcel as Public Usage (“PU”). Mr. Rumpf confirmed that the parcel is in an industrial zone or commercial zone in accordance with the new statute. Mr. Rumpf certified and checked the box “yes” under the question: “Does the referenced property qualify as a commercial or industrial parcel as defined in section 479.024, F.S. and section 14-10.0052, F.A.C.” Prior to executing the verification form, Mr. Rumpf reviewed the new statute and definitions of industrial use and commercial use in the statute. The Department requested that its expert in the area of land use and comprehensive zoning, David Depew, review the supplemental application and information submitted by Wilton Manors to the Department and determine whether the proposed parcel is in an industrial zone or commercial zone as defined in the new section 479.024. Mr. Depew concluded that it is not, and therefore, the Department did not alter its initial decision to deny Wilton Manors’ permit application based on the changes to chapter 479. The central factual issue to be determined in this case by the undersigned is whether the subject parcel is located within a commercial or industrial zone as defined in section 479.024. The City determined that the parcel is located within a commercial or industrial zone, in compliance with chapter 163, Florida Statutes. The parcel is appropriate for commerce, industry, or trade. The parcel is comprehensively zoned PU, and the City’s land development regulations include commercial or industrial uses as allowable uses. The parcels were previously used by the City for its wastewater treatment plant. The parcels continue to be actively used by the City for industrial uses and as an industrial site for the staging of waste collection, vegetative debris, recycling activities, and the storage of equipment, materials, and supplies in connection with the City’s solid waste management system and public works. Many large industrial waste-type dumpsters and recycling bins are located on the parcels. The storage of the recycling bins is part of the City’s recycling service which generates revenue for the City. Large trucks access the property on a regular basis. An existing cell tower on the northern parcel services both public and private users. The parcel can reasonably accommodate a commercial or industrial use under the future land use map of the City’s comprehensive plan and land development regulations. Sufficient utilities are available to support commercial or industrial development. The public access to the parcel is sufficient to accommodate a commercial or industrial use. Currently, the City utilizes large commercial trucks in its conduct of the aforementioned industrial operations. The parcel is not being used exclusively for noncommercial or nonindustrial uses. In sum, the persuasive evidence establishes that the parcel is located within a commercial or industrial zone.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order granting Wilton Manors’ applications for outdoor advertising sign permits (application numbers 58994 and 58995) and issue the requested outdoor advertising permits. DONE AND ENTERED this 22nd day of January, 2016, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 22nd day of January, 2016. COPIES FURNISHED: J. Stephen Menton, Esquire Rutledge Ecenia, P.A. Suite 202 119 South Monroe Street Tallahassee, Florida 32301 (eServed) Susan Schwartz, Esquire Department of Transportation Haydon Burns Building Mail Stop 58 605 Suwannee Street Tallahassee, Florida 32399-0458 (eServed) Andrea Shulthiess, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building Mail Stop 58 605 Suwannee Street Tallahassee, Florida 32399-0450 (eServed) Tom Thomas, General Counsel Department of Transportation Haydon Burns Building Mail Stop 58 605 Suwannee Street Tallahassee, Florida 32399-0450 (eServed) James C. Boxold, Secretary Department of Transportation Haydon Burns Building Mail Stop 57 605 Suwannee Street Tallahassee, Florida 32399-0450 (eServed)
