Findings Of Fact Ramchandra Jakhotia and Rashmi Jakhotia, his wife, acquired the King Cole Motel at 401 East Shore Drive, Clearwater, Florida in 1983 and have owned the property since that time. At the time of acquisition and for some time prior thereto the property included a commercial marina with 22 slips. In 1985 the City of Clearwater revised its Development Code effective October 13, 1985 and, incident thereto, effective July 7, 1988, enacted Section 114.05, Live-Aboard Vessels as Ordinance 4597, Clearwater City Code. That enactment provided, in part, that: Prohibited; exceptions: It shall be unlawful for any person to moor any live-aboard vessel at any location within or upon the navigable waters in the City for any period of time in excess of seventy-two (72) hours, except as follows: At a marina facility for which conditional use approval has been obtained, or a marina facility in existence as of October 13, 1985 for which conditional use approval would otherwise be required;... In January 1986 a survey was taken of all marinas within the City of Clearwater to determine the number of live aboard vessels coming within the purview of the revised Development Code. At this survey eight live aboard vessels were occupying berths at the King Cole Motel marina and this was the number determined to be grandfathered for which no conditional use approval would be required. In 1988 King Cole Motel applied for conditional authorization to utilize 14 additional berths for live aboard vessels. This conditional use was approved subject to the applicant installing a pump-out facility and meeting the parking requirements. Although the parking requirements for a commercial marina, i.e., 0.5 parking space per slip, is the same as the parking requirement at marinas for live aboard vessels, the latter generally place a greater demand on parking spaces than does non-live aboard vessels. To change the approved use from commercial marina without live aboards to live aboards is a change in the use and requires conditional use approval. Before conditional use approval can be granted the applicant must comply with all code requirements, such as required parking spaces, at the time of the change in use. At the time Appellant acquired the King Cole Motel the 22 commercial slips were grandfathered as an authorized use without any parking being provided. Accordingly, as a 22-slip commercial marina Appellant did not have to provide parking. When the eight slips used for live aboards were counted in 1986 they too were grandfathered in without the need for parking spaces. However, when Appellant applied in 1988 for authorization to use 14 other slips for live aboard vessels, the code required the applicant to provide seven parking spaces. To his credit Appellant obtained the use of seven parking spaces down the road from the marina but those spaces were not contiguous to Appellants' marina as required by the code. Therefore, Appellants' use of the additional slips for live aboards did not meet the parking requirement in his conditional use approval. In 1992 Appellant applied for a variance of the seven parking spaces required to allow the use of these additional slips by live aboard vessels. This hearing was held before the Development Code Adjustment Board on February 11, 1993 and it is from the denial of this variance that this appeal is taken. The Board denied the variance requested because the Appellant failed to demonstrate that the standards established by Section 45.24 Land Development Code were met. In these proceedings Appellant presented no additional evidence to support the variances requested than was submitted to the Board.
The Issue The issues to be resolved in this proceeding are whether the Department should issue a permit to Casetta, and whether the Department should issue a permit to Harbor Point. The two application proceedings were consolidated for hearing purposes. In many respects, common factual and legal issues relate to the two proceedings. For that reason, in the interest of economy of time and space, a single recommended order is being issued with respect to the two proceedings.
Findings Of Fact History of Proceedings In 1974, a prior owner of the property now owned by Casetta filed an application with the Department to entirely fill the pond which is the subject of this proceeding. A final order denying the application was entered by the Department on August 31, 1977. A second application to fill the entire pond was filed with the Department by Casetta's predecessor in 1979. During the pendency of that proceeding, Casetta purchased the property and by stipulation was permitted to be substituted as the Petitioner. The Department gave notice of its intent to deny the second application in February, 1981. Casetta challenged the Department's assertion that it had jurisdiction under the provisions of Chapter 253, Florida Statutes. The matter was forwarded to the Division of Administrative Hearings and given Case No. 81-1082. The matter before the Division has been closed, but it remains as a pending proceeding before the Department. It is being held in abeyance pending the resolution of Casetta's present application. The application involved in this proceeding was submitted to the Department during December, 1981. The City of Riviera Beach, Florida, granted local approval for this application; and on May 18, 1982, the Department issued a Notice of Intent to issue the permit. The Department published a notice of its proposed action in the Commercial Record, a Palm Beach County newspaper. The Florida Wildlife Federation and the Property Owners' Association of Singer Island together filed a request for formal hearing with the Department. The Singer Island Civic Association filed a separate request. Counsel for the Wildlife Federation and the Property Owners' Association withdrew during the course of the proceeding. It was indicated that these parties would voluntarily dismiss the requests for hearing, but no such papers were filed. No one appeared on behalf of the Florida Wildlife Federation or the Property Owners' Association of Singer Island during prehearing conferences that were conducted in this matter or at the final hearing. The Executive Director of the Florida Wildlife Federation testified as a public witness at the hearing and indicated that they were not participating in the proceeding as a party. During the pendency of proceedings respecting the Casetta application before the Division of Administrative Hearings, Harbor Point filed an application with the Department to install a culvert which would connect the pond that is the subject of the Casetta application with a pond located on property owned by Harbor Point through a culvert system. Harbor Point sought to have its application considered by the Department as an alternative to the Casetta application. On or about August 2, 1982, the Department issued a Notice of Intent to deny the Harbor Point application Harbor Point thereafter petitioned for a formal hearing. On or about June 4, 1982, the United States Corps of Engineers issued a permit to Harbor Point to construct its proposed culvert system. Description of Property in the Area of Proposed Projects. Casetta is the owner of approximately five acres of land that lie between the Atlantic Ocean and Lake Worth on Singer Island in Palm Beach County, Florida. The property includes a rectangular pond that is approximately three acres in area. This pond will hereafter be referred to as the "Casetta pond." Submerged lands in the Casetta pond were conveyed into private ownership by the Trustees of the Internal Improvement Trust Fund, State of Florida, in 1924. Harbor Point owns land adjacent to Casetta's property to the north. Harbor Point's property includes a pond which is configured in the approximate shape of an hourglass and is approximately one acre in area. A condominium apartment building has been constructed on Harbor Point's property. Harbor Point members own residential units in this facility. The area presently owned by Casetta and Harbor Point was, in its natural condition, a part of the littoral zone, a shallow, submerged area, on the eastern edge of the lake. Lake Worth is an estuarine water body located between the mainland and Singer Island. The littoral zone of such a lake is of fundamental ecological importance. It serves as a habitat for a wide variety of wildlife and serves to maintain water quality in the lake through uptake of nutrients by vegetation that thrives in the area. The natural condition of the area was markedly changed by the construction of State Road A-1-A. The highway separated the area, including what is now the Casetta and Harbor Point properties, to a large extent from the waters of Lake Worth. A culvert was constructed under the highway in the area of what is now the Harbor Point property. This culvert allowed tidal waters from Lake Worth to enter the area, and the area thus remained in a diminished fashion as a littoral zone of Lake Worth. Sometime between 1953 and 1964, landowners in the area constructed dikes which appear to have served as driveways along their northern and southern boundaries. Fill was placed on the Harbor Point property so that a pond was created in its present approximate configuration. The Harbor Point condominium facilities are presently in part set on the filled land. The Harbor Point pond remained connected with the waters of Lake Worth through the culvert system. The Harbor Point pond thus remains subject to tidal influences from Lake Worth. It is an estuarine system which serves as a part of the littoral zone of Lake Worth. The driveway to the condominium, however, completely Separated the Casetta pond from direct interaction with the waters of Lake Worthy. The Casetta pond is presently in an approximately rectangular configuration. Probably as a result of groundwater interaction, it is affected in a minimal manner by tidal influences in Lake Worth. The Casetta pond receives water from runoff and from groundwater interaction. It has become a freshwater body. While the Casetta pond is no longer a direct part of the Lake Worth estuarine system, and while it is by no means in its natural condition, it remains a wetland ecosystem. The pond is surrounded by mangrove communities. There is considerable biologic activity. Many bird species roost in the mangroves and feed in the pond. The mangroves provide shelter for aquatic organisms which are a food source for the birds. The pond does not support a wide diversity of marine plants or animals. A single species of minnow, mosquito fish, exists in substantial quantities These serve as a food source for birds including ducks, herons, egrets, and kingfishers It appears that the Casetta pond has been used in the past as a borrow pit to obtain fill for adjoining properties trenches, which are as much as six feet in depth, have been dug along the northern, southern, and eastern perimeters and across the pond. Because it is cut off from Lake Worth, and because of the ditches that have been cut through it, the Casetta pond is in a very deteriorated condition. While healthy mangroves surround the pond, they are, except to the west, extremely narrow populations due to the sharp banks that have been caused by dredging activity. The mangroves have no room to expand their population and are stressed due to invasion of upland vegetation such as Brazilian pepper. Widgeon grass exists in the lake bottom. Algae, however, has become the dominant vegetation in the pond. From 80 to 90 percent of the pond's bottom is covered by a mat of algae that ranges up to five and one-half inches in thickness. The algae population is increasing rapidly. Widgeon grass populations are being choked off by the algae. Dissolved oxygen levels in the Casetta pond are consistently low, below standards set in the rules of the Department. The oxygen demand of the algae community has depleted dissolved oxygen levels. While the Casetta pond functions as a wetland community, its values are severely reduced, and it appears that water quality in the pond is likely to continue to deteriorate. While by no means in a natural condition, the Harbor Point pond continues to function as a viable part of Lake Worth. This is a result of the pond being connected to the lake through the culvert system. The edges of the pond are populated by mangrove and cord grass communities. Marine species such as mullet are easily observable. Wading birds roost in surrounding vegetation and feed in the pond. The Harbor Point pond is basically a shallow, tidal water body. Water quality in the Harbor Point pond basically mirrors water quality in areas of Lake Worth to the west of Highway A-1-A. The Harbor Point pond has an eastern and western lobe connected by a narrower area, forming an approximate hourglass configuration. The eastern lobe is farthest from the connection to Lake Worth. Water quality in the eastern lobe is generally poorer than water quality in the western lobe and in Lake Worth. The deepest portion of the Harbor Point pond is in the eastern lobe. Wind action cannot serve to fully flush the waters of this area because of its relative isolation from the western lobe. Runoff from the Harbor Point condominium to the east of the pond and from a fire station parking lot to the west enters directly into the Harbor Point pond. It is filtered only by the action of grasses over which it flows. There is no ex-filtration drainage system. The culvert which connects the Harbor Point pond with Lake Worth runs from the western lobe of the pond under Highway A-1-A into Lake Worth. Lake Worth is a Class III water body under the Department's rules. The Parties' Proposals 1. The Casetta Application Casetta is proposing to construct a high-rise condominium on the eastern portion of its property. There is insufficient land on the property as it is presently configured to accommodate needed parking spaces. Casetta proposes to fill in 1.8 acres, or approximately 60 percent of the Casetta pond in order to construct parking facilities. Casetta has proposed to construct a culvert system that would connect the remaining portion of the pond with Lake Worth. The remaining portion of the pond would be regraded and configured. The northern and western boundaries would remain basically in their present configuration The remainder of the pond would be completely modified. A meandering shoreline would be created for an "L"- shaped pond. The bottom would be recontoured so that broader, shallow areas along the shoreline would be created. With the culvert system installed, the reconfigured pond would receive tidal waters from Lake Worth. The pond would effectively become, as the entire area once was, a portion of the littoral zone of Lake Worth. With the meandering shoreline and a gradually sloping bottom, the reconfigured pond would have as much area for littoral zone vegetation to establish itself as the present pond. Casetta proposes to commence construction activities by filling in a portion of the pond and regrading the remainder. The pond would be drained so that the algae that presently exists in large quantities would die and be removed. Clear fill material would be used to grade the pond. An exfiltration system would be created so that runoff that would reach the pond from upland areas would be filtered before it could enter the pond, thus reducing the impact of pollutants from upland runoff. The proposed culvert system would be in three sections. There would be a 35-foot section leading from the pond and slanting gradually downward to a point approximately eight to nine feet under Highway A- 1-A. The second section would be 110 feet long, lying vertically under Highway A-1-A. The third section would be 95 feet long, gradually rising from the second section to the bottom of Lake Worth. The bottoms of the open ends of the culvert in the Casetta pond and in Lake Worth would be at the ordinary low-tide marks. The top would be below the ordinary high-tide marks. Thus, the culvert openings would be exposed at low tide and submerged at high tide. The portion of the culvert under A-1-A would be filled with water at all times. It is necessary to place the culvert at least eight feet under Highway A-1-A in order to avoid utility pipes and cables that lie under the highway. The portion of the pipe under A-1-A would be installed through a boring technique known as "jack and bore." This technique would obviate any need for the closing of traffic on Highway A-1-A. The portion of the culvert in the Casetta pond and in Lake Worth would be installed by digging trenches, laying the pipe, then filling the trenches. Two openings would be made in the pipe at either end of the deep sections. These would be "manhole-type openings that would allow for periodic maintenance. Installation of the portion of the pipe in Lake Worth would be accomplished by building a work platform into the lake from material that is dredged from the trench. Once the pipe is laid, the material from the work platform would be placed back on top of the culvert, and any extra material would be removed from the site. Turbidity screens would be used to surround the project to reduce the short-term impacts of turbidity caused by construction. Once the pond is reconfigured and the culvert is installed, tidal flows would be introduced to the reconfigured pond on a gradual basis in order to observe any problems that might result. Shoreline grasses such as cord grass would be introduced in the shallow areas, and mangroves removed during filling operations would be replanted along the shoreline. This would serve to stabilize the shoreline and to provide the beneficial effects of littoral zone vegetation, including wildlife habitat and water quality benefits. The reconfigured Casetta pond would be approximately 33,000 square feet in area. If the culvert system functions as proposed, the reconfigured pond would become a part of Lake Worth. There are environmental and ecological advantages and disadvantages to the proposal. The disadvantages are rather obvious. One and eight-tenths acres of wetland habitat would be eliminated. While the present Casetta pond is only a marginally valuable wetland, it is not without its beneficent effects as have been described above. Furthermore, during construction, the habitat values of the Casetta pond would be lost, and short-term deleterious water quality impacts would occur in Lake Worth. There are trade-offs. The proposed filling, regrading, and connecting of the ponds to Lake Worth could have substantial positive impacts. The most apparent of these is that Lake Worth would regain 33,000 square feet of littoral zone. Construction activities have removed as much as 75 percent of the Shoreline vegetation that once Surrounded Lake Worth. The littoral zone has been replaced with developments that in ecological terms have negative impacts. Reconnecting the ponds to Lake Worth would be a slight reversal of that trend. Habitat for marine species would be increased, and the "kidney effect" that shoreline vegetation provides would be reestablished. Except during construction, Casetta's proposal would have no adverse water quality impacts upon surrounding waters. Adverse impacts during construction would be minimized by protective techniques that Casetta has proposed, including the use of turbidity screens. Long-term water quality impacts of the proposed project would be positive. Water in the present Casetta pond is of poor quality. The pond does not presently serve any water quality function for Lake Worth, since it is not connected to Lake Worth. Connecting the reconfigured pond to Lake Worth would allow waters from the lake to be purified through nutrient uptake by littoral zone vegetation. In habitat terms, the filling would reduce the total area of wetland habitat. The quality of the habitat would, however, be vastly improved. Rather than an unnatural, stagnant pond which provides habitat for only a few varieties of very common freshwater minnows, a marine habitat would be provided for all manner of creatures that survive in the littoral zone of estuarine water bodies. Bird habitats would not be reduced, since the shoreline of the lake would not be lessened. Thus, while the Casetta proposal would reduce the total size of wetland habitat, it would vastly improve it and would not have a detrimental effect that would be contrary to the public interest. In order for the reconfigured Casetta pond to offer an improved wetland habitat and a positive water quality impact for Lake Worth, it is essential that the proposed culvert system functions so as to allow an unimpeded interchange of water between the reconfigured pond and Lake Worth. If the culvert system does not operate, the result of the proposed project would be merely to lessen wetland habitat. Rather than a three-acre unnatural wetland habitat, there would be a 1.2-acre unnatural wetland habitat. Such an adverse impact upon wildlife habitat would be clearly contrary to the public interest. Furthermore, limited exchange of water between a eutrophic pond and Lake Worth could have an adverse impact upon water quality in Lake Worth so as to result in violations of the Department's water quality standards along the border of Lake Worth. The evidence does not establish that the proposed culvert system will properly function. Casetta had proposed a 36-inch culvert. Robert Snyder, a consulting engineer, was retained to determine the flushing characteristics of the culvert. Snyder calculated that maximum velocities associated with mean or average tides through the culvert system would be 1.89 cubic feet per second. Snyder calculated that this exchange rate would be sufficient to flush sediment and debris that would collect in the culvert. Thus, the culvert would be self- cleaning with only limited maintenance required to keep it open. In calculating the exchange rate, Snyder utilized the wrong formula. He overestimated the exchange rate by a factor of two. If the rate estimated by Snyder is reduced by a factor of two, it is apparent, that the exchange rate would not be sufficient to flush the culvert. Sediment and debris would collect in the pond, and rather regular maintenance would be required. Mechanical means can be utilized to clean a clogged culvert. A culvert of the length and configuration proposed by Casetta is difficult to clean through mechanical processes, however, and the processes themselves increase turbidity in the area. The evidence does not establish that regular maintenance would be sufficient to keep the culvert free of sediment and debris so that there would be a free exchange of water between Lake Worth and the reconfigured pond. When engineer Snyder was made aware of his miscalculations, he proposed reducing the size of the culvert to 24 inches. He testified that this would adequately increase the exchange rate so that the culvert would be selfmaintaining. Snyder's testimony in this regard has not been deemed credible. Given the witness's use of an erroneous formula in calculating exchange rates and another error that he admitted making in calculating scour potential, the witness cannot be considered competent to give expert testimony in these areas. If the culvert system proposed by Casetta allowed for the free exchange of waters between Lake Worth and the reconfigured Casetta pond, the water quality and habitat impacts of the proposed Casetta project would be, on balance, positive. The evidence does not, however, establish that the culvert system would function. It appears likely that the culvert system as proposed would be frequently clogged with sediment and debris, thus preventing the exchange of waters between the reconfigured pond and Lake Worth. The result of the proposed project would therefore be a reduction of wildlife habitat with potentially adverse water quality impacts upon the waters of Lake Worth. 2. The Harbor Point Proposal Harbor Point has proposed to install a culvert system that would connect the Casetta pond in its present configuration with the Harbor Point pond. Since the Harbor Point pond is connected through a culvert system with Lake Worth, the Harbor Point proposal would result in opening the Casetta pond to tidal influences from Lake Worth. Harbor Point has presented no evidence as to construction techniques that would be utilized and has provided no assurance that the construction itself would not result in water quality violations in the Harbor Point pond and in Lake Worth. Opening the Casetta pond in its present configuration to tidal influences would have the positive impact of allowing an exchange of water from the Casetta pond. Water quality in the Casetta pond would inevitably be improved. Given the configuration of the bottom of the Casetta pond, with its deep troughs, a complete exchange of waters would not occur, and water quality in the Casetta pond would be likely to remain poor, albeit improved. The Harbor Point proposal would have short-term and long-term negative impacts upon water quality in the Harbor Point pond and in Lake Worth. Simply opening the Harbor Point pond and Lake Worth to exchange of poor-quality water with the Casetta pond would have a negative impact. As water quality in the Casetta pond improves, this impact will be lessened, but will remain. Furthermore, the proposed culvert would result in poorer flushing of the waters from the eastern extremity of the Harbor Point pond. This would occur as a result of increased water velocities in the western extremity. Water quality in the eastern extremity of the Harbor Point pond is already stressed, and reducing the flushing characteristics of the pond would be likely to result in violations of the Department's water quality standards in the eastern portion of the Harbor Point pond. While the Harbor Point proposal would have the ecologically positive impact of opening the Casetta pond to tidal flows, it would have the negative impacts of reducing water quality in the Harbor Point pond and potentially along the shoreline of Lake Worth. Water quality in the Casetta pond would thus be improved at the expense of water quality in the Harbor Point pond and in Lake Worth. Riparian Rights Harbor Point owns a narrow fringe of the northern border of the Casetta pond. The precise amount of the Casetta pond that is owned by Harbor Point cannot be determined from the evidence, but it is clear that Harbor Point owns some portion of the Casetta pond which may be at one point as much as six feet of the northern portion of the pond. The Casetta pond offers minimal amenity to Harbor Point. The pond is unsuitable for boating, bathing, swimming, or any commercial enterprise. The pond is largely blocked from view by Harbor Point residents by abundant mangrove and upland vegetation. Reconfiguration of the pond as proposed by Casetta would not change the northern boundary of the pond, and it would remain largely blocked from view by Harbor Point residents. To the extent that the Casetta pond provides a view for Harbor Point residents, it is only minimally attractive given the configuration of the pond and given the fact that a high-rise condominium has been constructed on property to the south of the pond. There is no evidence in the record from which it could be concluded that the value of Harbor Point property would be in any way reduced as a result of the projects proposed by Casetta.
Findings Of Fact The applicant, Tom Tona, owns the mortgage on the island consisting of Lots 1 and 2, Block 8, Elliots Point Subdivision, Fort Walton Beach, Florida. Mr. Tona has taken steps to perfect his ownership of the island and holds a property interest sufficient to afford him standing to apply for a permit. Elliots Point Subdivision is a residential subdivision development surrounding a lagoon which opens into Santa Rosa Sound in Fort Walton Beach, Florida. The island is located in the lagoon opening to Santa Rosa Sound. It has a large area of wetlands on the north shore. The wetlands function as a habitat for wildlife in the area. Water depths surrounding the island are shallow. The island currently acts as a barrier island for the property located on the shore of the lagoon. The barrier effect of the island helps to prevent the lagoon shore from erosion which would be caused by the wave action in the sound. However, the island, itself, is rapidly eroding due to the same wave action it protects the lagoon shore from. The evidence clearly demonstrated that unless this erosion is stopped the island will completely wash away along with the habitat, including wetlands, it now provides to wildlife and no longer protect the lagoon shore from the erosion it otherwise would experience without the presence of the island. The subdivision appears to be almost completely developed along the lagoon with single family dwellings. A canal consisting of two vertical seawalls runs in between the island and Elliots Point. The canal leads to a public boat ramp within the subdivision. The vertical sea wall of the canal along with the boats that pass through it is causing erosion to occur within the wetlands adjoining the seawall. It is this 55 foot area of the wetlands that Respondent proposes to construct part of the riprap revetment. Petitioner, Audrey Dickason, owns property on the far side of the lagoon from the island. Petitioner's property does not adjoin the island, but is close enough to the island to be within view of the island. On March 6, 1991, the applicant submitted an application to the Department of Environmental Regulation for a dredge and fill permit to construct a riprap revetment around the entire island. This was Mr. Tona's first application with the Department and at the time of filing Mr. Tona was very inexperienced in completing dredge and fill applications. The application was completed to the best of Mr. Tona's knowledge. Additionally, as happens with any form document, this application did not entirely fit the fact that this was an island project and the type of property interest Mr. Tona was asserting over the island. The application as originally filed did not list any adjacent property owners. Mr. Tona did not believe there were any adjacent property owners since an island was involved. Regardless of whether Mr. Tona should have listed any property owners of the subdivision, the failure to list any such property owners was not done to deceive or defraud the Department or the island's neighbors and in reality had no impact on the notification of parties who may have been interested in Mr. Tona's application. The owners of the property directly across from the island testified at the hearing and voiced their concerns to the Department during the processing of the application. Moreover, as indicated earlier, Petitioner's property does not adjoin the island. Since Petitioner's property does not adjoin the island, she was not entitled to be listed in Mr. Tona's application for the dredge and fill permit. The evidence simply did not establish that this debatable issue justifies the denial of Mr. Tona's application for a dredge and fill permit. The application filed by Mr. Tona also had the box indicating that he owned the property checked. The other box which could have been checked was that he would acquire an interest in the property. Neither box quite fit Mr. Tona's circumstances since he already had an interest in the property. The Department advised that it would be sufficient to check the ownership box and attach a copy of the mortgage assignment which gave Mr. Tona his interest. Mr. Tona followed the Department's advice. Again, the information as to ownership was not submitted to deceive or defraud the Department or the island's neighbors and in reality had no impact on the application process. In fact, the necessary information to determine Mr. Tona's interest was submitted to the Department. Again, there is nothing in the information submitted by Mr. Tona in the application which would justify denying that application as it has since been amended. As indicated above, after consulting with the Department, Mr. Tona amended his application so that the riprap revetment would only be constructed on a 55 foot strip along the northwest corner of the island immediately adjacent to the vertical seawall and on a 322 foot stretch of the island shore, beginning at the intersection of the vertical seawall and the southwest shore of the island and extending along the shore of the island to the edge of the wetland marsh on the north side of the island. The riprap would consist of clean limestone and would extend into state waters. The fill would not impede the flow of water or cause harmful erosion or shoaling. In fact, the purpose of the revetment is to stop the rapid erosion of the island which is currently taking place and preserve the wetland habitat which exists on the island. The evidence did not demonstrate that the type fill the applicant intends to use in the construction of the revetment would cause any significant pollution or water quality problems or adversely affect fish or wildlife. The evidence demonstrated that the placement of the fill would create more habitat for fish and wildlife. The revetment is intended to be a permanent structure. After evaluating the application for consistency with the relevant pollution control standards, the Department determined that the proposed revetment met departmental standards for water quality and the public interest and issued an Intent to Issue with a draft permit authorizing the construction of the riprap revetment described above subject to several standard permit conditions. The modifications of the application along with the permit conditions provide reasonable assurances that the project will not violate water quality standards as provided in Section 403.918, Florida Statutes. Additionally, the historical evidence the Department has gained through observing the impact of other riprap revetments in a similar environment on water quality provides strong support for the above conclusion and in itself is a reasonable assurance that water quality standards will not be adversely impacted by the construction of this riprap revetment. For similar reasons, the evidence demonstrated that the proposed revetment would not be contrary to the public interest. In essence, the evidence demonstrated that the revetment would not adversely impact the public health, safety, welfare or property of others, the current condition or relative value of the area surrounding the proposed project, the conservation of fish or wildlife and their habitats, or cause harmful erosion or shoaling, or involve historical or archaeological resources. In fact, the evidence demonstrated that the only effect on the environment the proposed revetment would cause would be a beneficial effect. Petitioner's fear that the grant of this permit will allow Mr. Tona to build a house on the island and thereby destroy her view is not the type of factor which may be considered in determining whether a dredge and fill permit should be granted or denied. See Miller v. Department of Environmental Regulation, 504 So.2d (Fla. 1st DCA 1988). Petitioner's concerns for the revetment's affect on the wildlife of the area were not established by any evidence. The evidence did demonstrate that Petitioner's concerns for the wildlife using the island were simply feinted by her and are belied by the fact that if the island is not preserved from erosion there will be no habitat for any wildlife to use once the island erodes away. Based on all the evidence, Mr. Tona's application for a dredge and fill permit to construct a riprap revetment should be granted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order issuing a dredge and fill permit to construct a riprap revetment as sought by Tom Tona in his permit application as amended and subject to the permit conditions contained in the Department's Intent to Issue. DONE and ENTERED this 23rd day of September, 1991, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of September, 1991. APPENDIX TO RECOMMENDED ORDER CASE NO. 91-3872 The facts contained in paragraph 1 of Petitioner's Proposed Findings of Fact are adopted in substance, in so far as material. The facts contained in paragraphs 3 and 4 of Petitioner's Proposed Findings of Facts are subordinate. The facts contained in paragraphs 6, 7, 8 and 9 of Petitioner's Proposed Findings of Facts were not shown by the evidence. The facts contained in paragraph 5 of Petitioner's Proposed Findings of Fact are immaterial. The facts contained in paragraph 2 of Petitioner's Proposed Findings of Fact are adopted in substance, except for the finding relating to notice which was not shown by the evidence. The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10 of Respondent's Proposed Findings of Fact are adopted in substance, in so far as material. COPIES FURNISHED: Michael Mead P.O. Drawer 1329 Fort Walton Beach, Florida 32549 William Stone P.O. Drawer 2230 Fort Walton Beach, Florida 32549 Candi Culbreath Assistant General Counsel Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson General Counsel 2600 Blairstone Road Tallahassee, Florida 32399-2400 Carol Browner, Secretary Twin Towers Office Building 2600 Blairstone Road Tallahassee, Florida 32399-2400
The Issue The issue for consideration in this case is whether Charlotte County should be issued a permit to dredge Stump Pass and Deposit the spoil therefrom on the beach south of the pass.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Lemon Bay Conservancy, Inc., was a nonprofit corporation in the State of Florida whose membership is made up of individuals affected by the health of Lemon Bay. The Department of Natural Resources is the state agency responsible for the regulation and issuance of coastal construction permits pursuant to Chapter 161, Florida Statutes, and Charlotte County is a political subdivision of the State of Florida and the applicant for the permit to dredge Stump Pass which is located within its geographical boundaries. Stump Pass is a maintained coastal inlet located on the west coast of Florida between Manasota Key to the North and Knight Island to the South. It has been in approximately the same location since 1925. It is a wave dominated pass, which means the wave energy, which comes predominantly from the west/northwest, is greater than the tidal energy in the pass, and this wave action has caused the Pass channel to migrate to the south since 1974. The Pass was last dredged in 1980. For various reasons, in November, 1986, the County applied to DNR for a coastal construction permit to "maintenance dredge" a portion of the Pass and utilize the dredged material for renourishment of adjacent beaches on Knight Island. A permit for this type of work is required by the provision of Section 161.041, Florida Statutes. As the application was being reviewed by the Department, several areas were identified for modification. Among these were a reduction in the amount of material to be dredged to 136,000 cubic yards; more specific identification of the beach area to be renourished, (3,000 feet along the west side of Knight Island); and the development and submittal of a Sea Turtle Protection Plan. These modifications were made and submitted by the County in November, 1989, and the application was deemed complete on August 27, 1990. On October 11, 1990, the Department issued its Notice of Intent to Issue the permit. In doing so, it recommended the inclusion of 10 specific conditions. Since the proposed project was determined not to have a significant adverse effect on the sandy beaches, no mitigation plan was required. Since the placement of the sand from the dredging would be on the beach at Knight Island, which is downdrift of the water flow, it was consistent with the requirements of Section 161.142, Florida Statutes. Stump Pass, at its most restrictive point, is less than 100 feet wide. It is an unmarked channel. The existing channel is approximately one mile in length. The channel proposed by Charlotte County, as approved by the Department, would be approximately one half mile in length. In preparing its application for submittal to the Department, the County retained Dr. Michael S. Stephen, a consultant with Coastal Engineering, Inc., and an expert in coastal geology and engineering geology, to evaluate the proposed dredging project, one purpose of which is to provide a safe, navigable channel between the Gulf of Mexico and Lemon Bay and the west coast of Florida waterway system. In the course of his evaluation, Dr. Stephen took bathometric measurements at Stump Pass which were used to define and create a map of the water depths in the area. According to his proposal, the fill from the dredging would be placed on the shore south of the pass in an area which is accompanied by a 10 foot wide public easement which parallels the shoreline and runs north and south along the beach. In light of this, the proposed project would not interfere with the public's right to access to the area except during the construction period. This project is significantly similar to a prior dredging in 1980 and the channel will be essentially the same as on that occasion. A significant difference, however, is that the spoil will, in this case, be placed south of the pass whereas in the previous dredging it was placed on the state park to the north. One of the factors considered by the County in its decision to apply for the permit for this project was the determination that the existing channel is not safe for boats to navigate other than during calm weather in a single file. Dr. Stephen believes that the proposed channel would be safer to navigate because it is shorter than the existing channel; provides a more direct access from the inland waters to the Gulf; and avoids the cross-wave and cross-wind impacts experienced by the use of the current pass. There is substantial evidence by experienced boaters who are commercial fishermen as well as recreational boaters who contend that the safety of the pass at the present time is not an issue. Most of these opponents indicate they have had little if any difficulty in traversing the pass under all but the most extreme conditions, and that preparation plus good judgement will, in most cases, result in a safe transit. A more comprehensive discussion of this subject will be found in several paragraphs below. Historical documentation considered by Dr. Stephen in his analysis of information dating back to between 1895 to 1975, shows that the inlet has been in much the same location since 1925. In 1895, however the pass was north of its present location. Another concern of the Department when determining the appropriateness of a coastal construction application is engineering data relating to inlet stability. This concept considers the inlet as a whole and directs examination of three areas. One is lateral movement; a second is cross sectional stability, (the ability of the inlet to remain open); and a third is hydraulic stability. As was noted above in the discussion concerning the location of the inlet back to 1895, the fact that it has remained in its same location since 1925 indicates that from a migratory standpoint, it is considered stable. In addition, the throat of the pass, the actual area where the water comes through from Lemon Bay out to the Gulf, is also stable in terms of cross sectional stability or "closure parameters." Only the continuation of the channel out into the Gulf has moved to a significant degree. It is this outer portion, the outer channel of the inlet, where the proposed dredging is to take place. It is presently in a north/south configuration, having migrated from the predominantly east/west direction in which it was dredged in 1980. Expert testimony indicates that this migration has been the result of the west/northwest dominant wave action. Evidence also indicates that if this outer channel were not maintained once dredged as proposed, it would return to the location it currently occupies. As a result, Charlotte County seeks to include a maintenance dredging plan at 3 to 5 year intervals as part of its proposed management scenario. Petitioners claim that the current inlet and channel are in their natural locations, and that the channel which will result from the proposed dredging will be unstable and immediately begin to migrate back to the location of the "natural" channel which it presently occupies. In response, the County asserts that while the current channel may indicate stability in the short run, given the historic hydraulic instability of the channel, its current location and alignment are likely to change in the future. As the channel has moved toward the south, it has tended to lengthen and as a channel lengthens, the less hydraulically stable it is as a result of the frictional drag of the water flow through the channel. The longer the channel, the greater the drag, and the greater the drag, the greater the potential for flow interruption. When the channel becomes hydraulically unstable, therefore, hydraulic pressures cause a tendency to cut through the shoals lining the channel and it is the County and Department position that a shortening of the channel, as the proposed project would do, would improve the hydraulic stability of the new channel. Nothing was presented by Petitioners to dispute this and it is so found. The statute also requires the Department to take into consideration shoreline stability when considering an application for a coastal construction permit. While there has been little erosion or accretion to the shoreline north of the pass where the spoil from the 1980 dredging was placed, the area south of the pass has experienced significant erosion due, in part, it would appear, to the southerly migration of the outer channel. Immediately to the south of Monument 23, over a stretch approximately 3,000 feet long, sand has been accreting to the extend of approximately 50 to 60 feet per year. However, south of that area, for approximately 5,000 to 11,000 feet south of the inlet, the shoreline has eroded at approximately 10 feet per year. It is in this eroding area that the sand dredged from the channel would be placed. There are varying theories as to the cause of the shoreline instability the area has experienced. Some place the blame on the 1980 dredging project; others on the current location of the outer channel. Other factors may play a part, however, including major storms, and there is insufficient evidence available to justify the establishment of a causal relationship. Nonetheless, as a condition of the permit, the Department has indicated a requirement for the County to conduct detailed monitoring of the area to determine whether any adverse impacts are being caused by the project, so as to allow the taking of immediate mitigative action through its inlet management plan to moderate the impacts. Ordinarily, the Department, by its standing policy, requires applicants for permits to conduct inlet maintenance activities to submit an inlet management plan prior to approving the application. This plan is required to address various impacts that the activity would have on adjacent coasts and shorelines, and is primarily a means of providing protection of the inlet and coastal system from the harmful effects of construction activities. Here, at the time the County's application was filed, that policy had not been adopted. As a result, no management plan was filed. However, the filing of a management plan within 6 months of the dredging done under the permit has been made a condition of the permit, and any plan filed will require approval by the Governor and Cabinet. It is, generally, the policy of the Department to not allow coastal construction activities in natural inlets. A natural inlet is one that has developed by the natural coastal formulation process, and which has not been modified by man. The Department contends that Stump Pass is not a natural inlet but instead, a "maintained" inlet because portions of the original 1980 dredging are still in place and only the outer channel is subject to the present application. Though the channel dredged in 1980 may have cut through the natural point of entry and exit of water from the Gulf to Lemon Bay and return, the fact is that the depth of the channel is the result of that 1980 dredging and the channel has maintained itself naturally thereafter. It cannot be said, however, that Stump Pass is a natural pass since it includes more than just the outer channel and that additional area, the throat, is still under the influence of the 1980 dredging. Petitioners claim that the Department's program directive 950, which prohibits the alteration or maintenance of any inlet or pass unless a management plan is submitted along with the permit application has not been complied with here and, therefore, approval of the instant application is prohibited. Further, Petitioners urge that the maintenance plan being prepared by the county is not an inlet management plan, which is called for by the program directive. The Department asserts, however, that though the directive was signed by the Executive Director of the Department, it was intended as an internal policy directive only to be used as a tool for coordination between the Department's separate divisions, and because of concerns expressed by various division within the Department, it has never been implemented. It is currently still under revision and the Department has elected not to apply its provisions to this case. In fact, in a previous application, the Department allowed the applicant to proceed with its project without a management plan. The management plan was required, subsequent to accomplishment of the work, as a condition of the permit. Another factor for consideration is the impact of the proposed project on the beach dune system and its effect on the habitat of the sea turtle. The expert testimony of record establishes that the project, rather than having an adverse effect on the turtle population, would have a more beneficial effect by providing a more suitable location for nesting. The site established for the deposition of the dredged spoil is an area of beach currently suffering severe erosion problems, and the placement of sand at that location would provide beach profiles similar to those currently existing on the County's natural beaches. In addition, to protect the existing nesting habitat of the turtle, the Department has required and approved a sea turtle protection plan which, it contends, will guarantee that the project will not have an impact on nesting populations of sea turtles. The testimony of Mr. LeBuff, clearly an expert in the management of the sea turtle population, establishes that the beach area provided to the turtles as a result of this project will consist of a sandy, natural, compatible beach material that is not going to be harmful, and the final slope of the reconstructed beach will be compatible with the natural slope of the beaches within the County. As a result, he is satisfied, and it is found, that there will be no detrimental effect to the turtle population. In its application in support of the permit, the County, and the Department in defense thereof, both contend that the primary purpose for the dredging of Stump Pass is to provide a safe, navigable channel between the Gulf and the waters of Lemon Bay. In support of its claim, the County presented the testimony of several charter boat captains, professional fishermen who have lived in the area for a number of years and who are totally familiar with the pass, having traversed it on numerous occasions under just about every condition. Captain Collette contends that the current maximum depth of the pass is between 4.5 and 5 feet. In the winter tide, it is much shallower with a depth often under 3 feet. Captain Collette refuses to run night charters through the pass because, he contends, it is too dangerous. During foggy weather and thunderstorms, because of the lack of visibility and a paucity of proper markers on the channel, he will not use it. The closest other pass to his anchorage is 13 miles away which, at normal running time, takes between 45 to 60 minutes. Stump Pass is only 3 miles, or 15 minutes, from his anchorage. He has experienced trouble with the channel, especially when the wind is from the west, and he believes that the proposed channel, with its more east/west orientation, will be safer than the current channel. In his opinion, additional markers in the channel would help, but not much. In order to be safer, the channel would have to be a non-moving channel, and he believes that since the proposed channel will be maintenance dredged, it would qualify as such. Petitioner, on the other hand, contends that the channel is safe and is used by numerous boaters safely on a regular basis. The current depth of the channel at the throat of the pass is between 13 to 15 feet at mean low tide. At waypoint 2, in the outer channel, it is 9 to 10 feet, and at waypoint 4, at the southern end of the outer channel, it is 7 feet at mean low tide. The normal tide range at Stump Pass is 1.5 feet, with the exception that during winter and summer, the tides may be as much as 3.5 feet. Petitioner urges, and it is found, that the current channel at Stump Pass has been, since 1985, safely navigated by loaded commercial fishing boats as large as 39 feet in length and which draw in excess of 5 feet of water. Many of these commercial fishermen use the pass at night and in periods of low visibility, though Captain Collette may choose not to. If a boater can read the seas and the breaker bar, Captain Davids, testifying on behalf of the Petitioner, contends that local knowledge of the pass is not necessary. Unfortunately, however, many recreational boaters who make up by far the greatest percentage of users of the pass, may not have the requisite skills to the degree Captain Davids does. Nonetheless, under most conditions, Stump Pass can be safely navigated by recreational boaters who use common sense and who traverse it in a careful, cautions manner. Mr. Atwater, President of the Lemon Bay Conservancy, and himself an experienced boater, opined that the average recreational boater who uses the pass as access to the Gulf has a boat equipped with a compass, depth sounder, VHF radio, and LORAN radio signal navigation device. This may be a more optimistic than factual appraisal of the average boater's equipment, however. In sum, and considering the evidence, it is found that as it currently exists, Stump Pass is less than optimum in its navigability to many average boat owners a good portion of the time, but there has been no evidence presented to conclusively establish that it constitutes a serious safety hazard to the average recreational boater who utilizes common sense in traversing it. The County's application, along with the supporting information accompanying it, was received initially by the Department in December, 1986. It was an application for a maintenance dredging of Stump Pass back to its 1980 condition, and the Department views the project as primarily a maintenance dredging of the outer channel through the ebb tidal shoal. The application was assessed by the Department staff, along with engineering information submitted, and the Department then prepared an agenda item for the Governor and Cabinet recommending approval with special permit conditions. These include, among other things: the standard conditions required for approval of developments seaward of the coastal construction line; the submittal of plans and surveys for the project prior to the start of work; written authority for subsequent maintenance dredging prior to their accomplishment and the placing of future spoil; no additional maintenance dredging without the approval of the Governor and Cabinet of a management plan, (the purpose for this is to allow the Department to monitor the performance and evaluate and provide for mitigation of adverse impacts); the submittal of a sea turtle protection plan before issuance of a notice to proceed, (the subject plan has been received and approved); review of the permit at the five year point; and a proper placement of the spoil. A majority of those conditions have been treated in the findings previously made. The standards used to review the application are found in the provisions of Chapter 161.041, Florida Statutes, and Rule 16B-24, F.A.C.. In its analyses, the Department considered those factors required by the statute and as to the engineering, found it to be adequate. As to the design and effect on the inlet and adjacent beaches, those factors were found to justify approval of the project. Design features were found to be acceptable, and any adverse impact potential to the beach and dunes system were found to be minimal to the point there was none anticipated. Taken together, the Department concluded that the project was consistent with the requirements of both the statute and the rule. On cross examination, Mr. Leadon, the Department's expert, admitted that the proposed channel has the potential to, and a likelihood of, migrating to the south. Department policy is to let natural passes and systems take their natural course. However, this inlet has moved to the point where, in the Department's opinion, it is creating erosional stress to Knight Island. Should the pass continue to move in its current direction, it might create additional erosion of that island. The inlet has been left to take its course since its last dredging in 1980. As a result, it is much like a natural channel at this time, but for the purposes of this application, the Department considers the proposal to be a maintenance dredging of a previously dredged channel, though there has been no other maintenance dredging since 1980. Usually, a maintained channel is dredged every 2 to 3 years, but while the outer channel has migrated, the throat, which was dredged in 1980, has maintained the width and depth of that dredging. This position is found to be reasonable and sustainable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered granting to Charlotte County a coastal construction permit to maintenance dredge Stump Pass and place the dredged material on the Knight Island shorelines consistent with the conditions imposed thereon by the Department. RECOMMENDED in Tallahassee, Florida this 14th day of August, 1991. ARNOLD H. POLLOCK 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 14th day of August, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO 91-0471 The following constituted my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER LEMON BAY CONSERVANCY, INC. 1. & 2. Accepted and incorporated herein. 3. - 5. Accepted and incorporated herein. Rejected as not proven. - 10. Accepted. Accepted. & 13. Accepted. Accepted and incorporated herein. Accepted. Not a Finding of Fact but a comment on the evidence. Not a proper Finding of Fact. Rejected. Accepted. Not a proper Finding of Fact. Accepted. First sentence accepted. Balance not a Finding of Fact but a Conclusion of Law. Accepted. Accepted in part and rejected in part. The shoreline described has moved little during the time described, but as the channel moved south in later years, the shoreline to the south on Knight Island has eroded. & 27. Accepted as comment on the evidence. Not a Finding of Fact but a Conclusion of Law. Accepted. Not a Finding of Fact but a Conclusion of Law. Not a Finding of Fact but a Conclusion of Law. Not a Finding of Fact but argument. & 34. Not a Finding of Fact but a comment on the sufficiency of the evidence. Accepted. Accepted. - 40. Accepted and incorporated herein. 41. - 43. Accepted and incorporated herein. 44. - 46. Accepted. Rejected as not supported by the evidence or record. Not a Finding of Fact but speculation. Accepted. - 53. Accepted. 54. & 55. Accepted. Not a Finding of Fact but legal argument. & 58. Accepted. Legal Argument. & 61. Irrelevant legal argument. Rejected. Not a Finding of Fact but a Conclusion of Law. Irrelevant and exhibit not admitted. FOR THE RESPONDENT, CHARLOTTE COUNTY 1 - 3. Accepted and incorporated herein. 4. - 6. Accepted and incorporated herein. 7. & 8. Accepted. 9. & 10. Accepted and incorporated herein, 11. & 12. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. - 22. Accepted and incorporated herein. Accepted and incorporated herein. & 25. Accepted. Accepted. No such proposed Finding of Fact. & 29. Accepted. Accepted. Accepted. FOR RESPONDENT, DEPARTMENT OF NATURAL RESOURCES 1. & 2. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. & 6. Accepted and incorporated herein. 7. & 8. More a citation of authority that a Finding of Fact, but accepted. Accepted. & 11. Accepted and incorporated herein. 14. & 15. Accepted. 16. - 20. Accepted and incorporated herein in substance. Not a Finding of Fact but a comment on evidence and background. Accepted. & 24. Accepted. 25. & 26. Accepted and incorporated herein. 27. - 29. Accepted. 30. & 31. Accepted but not controlling. COPIES FURNISHED: Thomas W. Reese, Esquire 123 Eighth Street North St. Petersburg, Florida 33701 Dana M. Wiehle, Esquire Department of Natural Resources 3900 Commonwealth Blvd. Mail Station 35 Tallahassee, Florida 32399 Philip E. Perry, Esquire Patricia A. Petruff, Esquire Dye & Scott, P.A. P.O. Drawer 9480 Bradenton, Florida 34206 Tom Gardner Executive Director Department of Natural Resources 3900 Commonwealth Blvd. Mail Station 10 Tallahassee, Florida 32399-3000 Ken Plante General Counsel DNR 3900 Commonwealth Blvd. Mail Station 10 Tallahassee, Florida 32399-3000
The Issue The central issue in this case is whether Sunrise is entitled to the permit for the construction of the proposed marina.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: On or about February 3, 1988, Sunrise submitted an application to the Department for permission to construct a 33 slip marina to be located at 2701 D. Sunrise Boulevard, Fort Lauderdale, Florida. The dock facilities to be built include four sections designed to accommodate yachts 70 feet or longer in length. The proposed marina would be located in a body of water known as Coral Bay. The bay opens onto the Intracoastal Waterway at the Sunrise Boulevard bridge. This marina is subject to the Department's permitting requirements under Chapter 403, Florida Statutes, and Chapter 17-12, Florida Administrative Code. The proposed marina does not require dredging. The only filling would be incidental to the placement of the pilings (supporting the dock system) and the rip rap (recommended by the Department to enhance fish habitation). Coral Bay is a Class III water which currently meets water quality standards for such classification. The water body east of the proposed marina is classified as an Outstanding Florida Water. On or about October 12, 1988, the Department issued an Intent to Issue the permit requested by Sunrise. The notice of the Intent to Issue was published on October 24, 1988. Thereafter, petitioners timely filed challenges to the proposed project. As specific conditions of the permit, the Department required the following provisions which are pertinent to the Kaye challenge: The required 300 cubic yards of natural limestone 1-3' diameter rip rap shall be placed at the toe of the bulkhead before the construction of the marginal pier. No sewage shall be discharged into the marina basin or other waters of the State. Sewage pump out facilities shall be provided, used and at all times maintained and operable. A permit is required from Broward County and shall be acquired to validate this permit. An effective means of turbidity control, such as, but not limited to, turbidity curtains shall be employed during all operations that may create turbidity so that it shall not exceed 29 Nephelometric Turbidity Units above natural background value. Turbidity control devices shall remain in place until all turbidity has subsided. * * * 8. Manatee Construction Conditions (copy enclosed) shall be implemented and in effect and Manatee Caution Signs and Educational Displays, per enclosed directive, shall be implemented. The proposed marina will occupy the southern half of Coral Bay. The Kaye property is north of the proposed site. Further north are a cooperative of townhome units and a yacht club. Access to the bay and to the Intracoastal Waterway is afforded these properties via a channel 75 feet in width which divides the bay waters. The proposed marina would not intrude into the access channel. There is an existing concrete seawall which extends vertically along the shoreline of the subject property. The parking and structures to be built incidental to the marina have been designed to require run off or drainage landward and not into Coral Bay. The water depth in the proposed marina is approximately 8 to 9 feet except along the shoreline where the depth is approximately 5 feet. It is not anticipated that the operation of the yachts will cause a significant disturbance of the marina basin floor. 10 The tidal flushing in Coral Bay is sufficient to remove incidental levels of pollutants which may be discharged. Therefore, the proposed marina will not have a significant impact on water quality. The incidental pollutants which may be expected are such items as paint leaching or minor fuel spills. Since the marina will not have fueling facilities and since sewage pump out facilities are mandated, it is not anticipated that these forms of waste will be significant to this project. The proposed marina will not have an adverse effect on the flow of water in the basin nor should it cause erosion or sedimentation. Further, it is not anticipated that the marina will adversely affect the water quality in the Outstanding Florida Water near the site. Although no water testing was performed at this site, the biota appears healthy. A number of fishes actively forage in the waters and algae can be observed down to a depth of 6 feet. Consequently, the water is clear enough to support growth to that depth. A number of birds feed and rest in the subject area. The docks are likely to displace the birds' direct access to feeding areas but it is anticipated that the rip rap will increase the surface areas available for organism development and thereby enhance the environment for fishes. While the docks will result in an estimated 16,700 square feet of shadowing of open water, given the benefits of the required rip rap, the overall impact should not be negative. Construction began on the Sunrise Boulevard bridge approximately three years ago. Manatees have not been observed at the proposed site since the work began. However, because it is known that manatees frequented this area before the construction and may again, manatee construction conditions and manatee signage provisions have been required by this permit. The construction provisions will require Sunrise to cease all construction upon the sighting of a manatee until such time as the animal vacates the area. Further, the signage provisions will require Sunrise to display warnings and to inform all marina users of the possibility of manatees in the area. Immediate notification to the appropriate authorities is required in the event a manatee is injured. It is anticipated that the proposed marina will displace transient use of Coral Bay. This loss when weighed against the benefits of having a docking facility available to yachts (with the amenities of power and fresh water) does not establish a negative recreational impact on the proposed site. The 75 foot channel is sufficient for safe passage to and from the Intracoastal Waterway and the properties owned by Sunrise and the Kayes. The proposed marina will not adversely affect recreational use of the properties. The project is intended to be of a permanent nature. The project will have no effect on significant historical and archaeological resources. There are no outstanding permits which, when reviewed in connection with this project, would establish that the water quality will be adversely affected by the proposed marina. It is not anticipated that the proposed marina, subject to the general and specific conditions of the permit, will adversely affect the public health, safety, or welfare. The negative affect to the property of others is minimal given the overall enhancement to the recreational and biological environments.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Environmental Regulation enter a final order approving the permit for Sunrise Bay Harbour, Inc. DONE and RECOMMENDED this 11th day of May, 1989, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 1989. APPENDIX RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY PETITIONER KAYE: To the extent that paragraph 1 concludes the Department did not consider the Canrael permit in evaluating the Sunrise permit, such fact is accepted. However, under the facts of this case, the Department was not required to consider such permit since it was not contemplated that both projects could or would be built. The Canrael permit had expired prior to October 26, 1988, and Canrael formally abandoned its interest, if any, in the permit at the hearing in this cause. Paragraph 2 is rejected as argument, irrelevant or immaterial to the issues of this case. Paragraph 3 is rejected as contrary to the weight of the credible evidence. Paragraph 4 is accepted. Paragraph 5 is rejected as contrary to the weight of the credible evidence. The first two sentences of paragraph 6 are accepted but are irrelevant. The last sentence is rejected as contrary to the weight of the evidence or argument. Paragraph 7 is accepted. Paragraph 8 is rejected as argument or contrary to the weight of the evidence presented. Paragraph 9 is rejected as argument and is either contrary to the weight of the evidence presented or unsupported by evidence in this cause. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT: Paragraphs 1 through 23 are accepted. With the deletion of the phrase "both lawful and unlawful," paragraph 24 is accepted. Paragraphs 25 through 29 are accepted. Paragraph 30 is rejected as irrelevant, immaterial or unnecessary to the resolution of the issues in this case. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY SUNRISE: Paragraph 1 is accepted. Paragraph 2 is accepted as stipulated by the parties at the outset of this case. Paragraph 3 is accepted. The parties did not oppose the tender of Mr. Nero in the categories listed. Paragraphs 4 through 7 are accepted. To the extent that paragraph 8 states this proposed project is within Class III waters, such paragraph is accepted. However, to the east of Coral Bay is a body listed as Outstanding Florida Water. Consequently any suggestion otherwise is rejected as contrary to the facts of this case. Paragraphs 9 through 22 are accepted. Paragraph 23 is accepted. Paragraph 24 is rejected as not supported by the evidence presented in this cause. Paragraph 25 is accepted but is unnecessary irrelevant or immaterial. Paragraph 26 is accepted. Paragraph 27 is rejected as irrelevant, immaterial, or unnecessary to the resolution of issues in this case. Paragraph 28 is accepted but is irrelevant immaterial, or unnecessary to the resolution of issues in this case. Paragraph 29 is rejected as contrary to the weigh of the evidence. Manatees have not been seen since the bridge construction began approximately three years ago. Exactly when, prior to that, a manatee was within Coral Bay is not disclosed by this record. Paragraph 30 is rejected as irrelevant. Paragraph 31 is rejected as irrelevant. Paragraphs 32 and 33 are rejected as irrelevant. COPIES FURNISHED: For Petitioner Canrael: Mary F. Smallwood Ruden, Barnett, McClosy, Smith, Schuster & Russell, P.A. 101 North Monroe Street Monroe-Park Tower, Suite 1010 Tallahassee, Florida 32301 For Petitioners Kaye: Brion L. Blackwelder JACOBSON AND FINKEL 3363 Sheridan Street, Suite 204 Hollywood, Florida 33021 Jack and Harriet Kaye 1100-1120 Seminole Drive Fort Lauderdale, Florida 33304 For Sunrise Bay: William Robert Leonard Leonard & Morrison P.O. Box 11025 Fort Lauderdale, Florida 33339 For DER: Wayne L. Schiefelbein Assistant General Counsel Department of Environmental Regulation Twin Tower Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale H. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson General Counsel 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue The issue in this case is whether the evidence sustains the decision of the City of Clearwater Development Code Adjustment Board (the Board) to deny the application of the Appellant, Clearwater Bay Marine Ways, Inc., for a 62-space parking requirement variance (200 spaces instead of the 262 required under the Code) for its property located at 900 North Osceola Avenue, Clearwater, Florida. (The variance is required as a result of the Appellant's desire to use a part of the property as a cruise ship docking facility.)
Findings Of Fact On or about October 25, 1993, the Appellant, Clearwater Bay Marine Ways, Inc., applied to the City of Clearwater Development Code Adjustment Board (the Board) for an 81-space parking requirement variance (128 spaces instead of the 209 required under the Code) for its property located at 900 North Osceola Avenue, Clearwater, Florida. After filing the application, the site plan was modified, and the variance application was modified to request a 62-space variance (200 spaces instead of the 262 required under the Code). The variance is required as a result of the Appellant's plan to have Adventure Seaways Corporation use a part of the property for use as a docking facility for its 600-passenger cruise ship, the Majestic Empress. The City of Clearwater Development Code (the Code) has no parking space requirements specifically designed for cruise ship operations. To establish the parking space requirements, it was decided to utilize Section 42.34(6)(d)2.c. of the Code, which addresses certain "retail sales and service uses," and states: Theaters, indoor and outdoor recreation centers, swimming pools, skating rinks and other public or private recreation and amusement facilities: One parking space per three customers or patrons computed on the basis of maximum servicing capacity at any one time, as determined by the requirements of the city, plus one additional space for every two persons employed on the premises at peak period of use. Specific provisions over and above the standard may be required for uses such as movie theaters involving successive changes of patrons with a corresponding overlap in parking required. Under that provision, it was calculated that 200 spaces would be needed for peak capacity for the 600-passenger cruise ship. An additional 62 parking spaces are needed for other uses proposed in the site plan (including boat slips, a dive charter operation, a sail charter operation, a 2,800 square foot parts and service business and three work bays), for a total of 262 parking spaces for the overall site plan. The evidence was that no adjustments to the calculation under the "one space per three customers or patrons" formula were "determined by the requirements of the city," and that no additional spaces were required for "persons employed on the premises." (There was some evidence that the Adventure Seaways employees will park off-site.) Nor was there any evidence that there were any "[s]pecific provisions over and above the standard required for . . . successive changes of patrons with a corresponding overlap in parking required." The Adventure Seaways Corporation plans two excursions of the Majestic Empress a day, one during the day and one in the evening. It is expected that the ship would sail at full capacity only approximately one day a week, on Saturday. At peak capacity, it is expected that 30 percent of the passengers will arrive at the docking facility by tour bus. During the day cruise, the buses would leave the facility and return at the end of the cruise to drop off passengers for the evening cruise and pick up off-loading day cruise passengers. They would not remain at the facility during the times other cruise ship passengers would have their cars parked at the facility. Using only the "one space per three customers or patrons" formula under Section 42.34(6)(d)2.c. of the Code, the 70 percent of the total complement of passengers, who are expected to arrive by personal vehicle on peak days, would require only 140 parking spaces (420 passengers divided by three per parking space), well below the 200 spaces allocated to the cruise ship operation under Clearwater Bay Marine Ways site plan. Since Adventure Seaways has not been able to use the Majestic Empress at the Clearwater Bay Marine Ways facility without the parking space variance, it has transferred a smaller cruise ship, the Crown Empress, from its docking facility at Johns Pass on Treasure Island in the interim. The Crown Empress's capacity is only 400 passengers, and no parking space variance is required to use it at the Clearwater Bay Marine Ways facility. Meanwhile, Adventure Seaways has received temporary permission to utilize the Majestic Empress at the Johns Pass facility on the condition that it make greater than normal use of tour buses to transport passengers to and from the Johns Pass docking facility. Adventure Seaways purchased the Majestic Empress after being encouraged by City officials about the prospects of being able to utilize the Clearwater Bay Marine Ways facility. After purchasing the vessel, it had the vessel reconfigured to reduce its draft to accommodate the shallow waters it would have to navigate getting to and from the facility. Adventure Seaways also closed in the top deck of the vessel to meet Code requirements for noise control. Neither the special shallow draft configuration nor the noise control measures are required for utilization of the Johns Pass facility. Part of the encouragement by City officials about the prospects of Adventure Seaways being able to utilize the Clearwater Bay Marine Ways facility included assurances that the City would help Adventure Seaways gain access to additional parking, or develop or acquire additional parking, in the vicinity, if needed. Another option would be to utilize off-site parking and transport passengers to and from the Clearwater Bay Marine Ways facility by bus.
Findings Of Fact Nannette K. Scoggins is the owner of the real property located at 5622 Gulf Drive, Holmes Beach, Florida in Manatee County. Nannette K. Scoggins' property, the petitioner's property, 5624 Gulf Drive, and the other adjacent property, 5620 Gulf Drive, are zoned as "A-1 Hotel-Motel" under the City of Holmes Beach Zoning Ordinance. On November 13, 1983, Mrs. Scoggins submitted to DNR an application for a permit for construction seaward of the coastal construction control line (control line). The proposed project, known as Jansea Place, would consist of two multifamily dwellings, four units to a building, divided by a swimming pool. A portion of the most seaward building would extend a maximum of 57 feet seaward of the control line. By letter dated July 11, 1984, DNR notified petitioner that the department was considering the permit application. The petitioner responded by letter dated July 18, 1984, objecting to any construction seaward of the control line. On October 1, 1984, petitioner received notification that DNR intended to recommend approval of the permit. The permit was scheduled for a vote by the Governor and Cabinet on October 16, 1984. The staff of DNR recommended approval of the permit. By telegram dated October 15, 1984, the petitioner requested an administrative hearing, and on October 22, 1984, petitioner filed a petition for a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes. The application for permit No. ME-89 is a complete application for permit to construct seaward of the coastal construction control line. On October 5, 1983, the Superintendent of Public Works of the City of Holmes Beach certified that this project does not violate any ordinance of the City of Holmes Beach. The plans for the proposed project are signed and sealed by an architect registered in the State of Florida, and the submitted plans comply with the design standards established in Rule 16B-33.07, Florida Administrative Code to resist adequately the natural forces associated with a 100-year return interval storm event. The plans, specifications, drawings and other information submitted to DNR with the application for permit to construct seaward of the coastal construction control line are complete and accurate, and meet the requirements of DNR for that purpose. Under the provisions of Rule 16B-33, Florida Administrative Code, the application was determined to be complete on August 6, 1984. The proposed construction is located landward of an existing vertical concrete bulkhead. The seawall was built jointly by the Scoggins and Mr. McLean, who owns the property immediately to the south of the Scoggins' property. The seawall was built after the hurricane of 1972 because the existing dune system had been destroyed. Since that time, the mean high water line has continued to encroach landward to the point where it is now east of the wall. However, the seawall is not necessary for the protection of the proposed building. Although the seawall would fail under the direct impact of a major hurricane, the proposed building is adequately designed to withstand the impact erosion, the wave loads, the winds, and the water forces associated with a major hurricane. The necessity and justification for the project's location in relation to the control line is stated in the application, and petitioner has not challenged the necessity or justification. The City of Holmes Beach Zoning Ordinance requires that the buildings be separated by a minimum of 30 feet. Since the proposed buildings are separated by 30 feet, the proposed seaward building is located as far landward as possible without violating the zoning ordinance. Erosion and structural damage occurred as a result of Hurricane Agnes in 1972 and the "No Name" storm in 1982 in the area between 1,000 feet south of the Scoggins' property and 500 feet north of the Scoggins' property. Although the beach was fairly stable from 1974 to 1979, the beach began to erode in 1980. When the seawall was built in 1974, the dune line was even with the seawall. However, as can be seen from a comparison of the photographs taken in June of 1979 with those taken in early 1985, the beach has eroded since June of 1979 and the dune line is now several feet landward of the seawall. The DNR recommendation for approval of the Scoggin's permit application was based upon historical erosion data for the period between 1940 and 1974, which was the most recent data available that could be used to review the project. Mr. Clark stated that the application was recommended for approval based on the design of the proposed building and its alignment with existing structures built seaward of the control line. The proposed project is located landward of a line of existing structures. Although the adjacent properties have been affected by erosion, there was no evidence presented to show that the existing structures located seaward of the control line have been unduly affected by erosion. In 1974, when the seawall was being constructed, the worker building the seawall dug up part of the petitioner's property and destroyed the sea oats he had planted. However, the proposed project has a driveway encircling the building which would provide vehicular access to the seawall if necessary. The proposed project will partially obstruct petitioner's view to the southwest. However, there was no evidence presented that petitioner's property or the other adjacent property, would be adversely affected in any other way by the proposed project. There was no evidence presented that the proposed project would be affected by, or have an effect on, beach or coastal erosion. The proposed project would have no effect on the beach dune system.
Recommendation Upon consideration of the foregoing, it is recommended that DNR issue Permit Number ME-89 to Nannette K. Scoggins. DONE and ENTERED this 28th day of June, 1985, in Tallahassee Leon County Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 1985.
Findings Of Fact Lior Hason is the owner of Britt's Cafe, a restaurant which occupies property owned by the Petitioner's Stanislaw and Kasimiera Budzinski. On or about December 19, 1995, Harry S. Cline, an attorney for Mr. Hason and the Budzinskis, filed an application for a variance from the City of Clearwater's Development Code, for the purpose of eliminating three required parking spaces from the front of the subject property for the construction of an outdoor cafe at 201 South Gulfview Boulevard. The Code requires one parking space per 200 square feet of gross floor area, and a variance was required to remove three existing parking spaces from the unit's parking space inventory. The matter was brought before the City's Development Code Adjustment Board at its January 11, 1996 meeting. Mr. Cline appeared at the meeting on behalf of the applicant and presented the project. No one else was present to speak in support of or in opposition to the request. However, four letters in opposition from neighboring business owners were submitted. Notwithstanding these objections, the Board determined that the applicant had substantially met all standards for approval listed in the City's Land Development Code; and upon vote of the Board, the application was approved, subject to certain conditions, by a three to two majority. Mr. Hason entered into discussions with City officials to determine what was necessary. Official City reaction was initially favorable. Mr. Hason was advised of the requirements for the project and had plans drawn which called for a deck with a 35 to 36 inch railing with landscaping around it, and with posts and lights. When the plans were submitted to the City officials, the only change suggested was to raise the railing height to 45 inches, which was done, after which the City approved the plans and the permit was granted. The deck was then constructed exactly according to the approved plans. At some time during 1996, Mr. Hason discussed with some City employees putting an awning over the deck. During these discussions, the City employees sent Mr. Hason a copy of Section 41.221(1)(c), Clearwater City Code, which provides for awnings to be removable. Mr. Hason considered the sending of this Code provision to be tantamount to a favorable reply to his inquiry, and, based on that, he finalized his plans for the installation of a removable awning. The proposed awning is designed in such a fashion as to be extendible and retractable on a frame, capable of easily being pulled up against the front of the building like a drapery. With a minimum of further effort, consisting of the removal a several bolts, the entire awning construction can be removed from the frame. Mr. Hason submitted his application for the variance to install the awning on February 2, 1997. In the interim, the City employees with whom Mr. Hason discussed the project changed their position from favoring the project to opposing it. He was ultimately advised in December 1996 or January 1997 that the awning could not be permitted because an awning could not be approved over a deck for which a permit should not have been issued and for which the issuance was a mistake. Though the Board had not yet voted on the application, no information was given to Mr. Hason as to what he could do to make the project approvable. His application, on February 2, 1997, was submitted because, Hason claims, he had been told, by someone not further identified, that applying for a variance for the awning would make everything right. The Variance Staff Report submitted to the Board by the appropriate City employees acknowledged that the frame over which Mr. Hason proposed to put the awning does not meet code because it was constructed within a required setback area from South Gulfview Boulevard, but since the frame was built pursuant to a City-issued permit, consistent with City policy, the City accepted its existence. In its final recommendation to the Board, the staff concluded that notwithstanding the encroachment into the setback area, the project "appears to comply with all standards for approval, provided attention is given to the external appearance of the cafe:" The staff then went on to recommend approval of the project subject to certain conditions, all of which, Mr. Hason accepts and agrees to. Nonetheless, the Board denied the permit by a vote of four to one. Mr. Hason contends that the Board vote was an attempt by the Board to get back at him because of what it perceived as his failure to comply with the conditions placed upon the issuance of the first permit and his alleged misrepresentation of the scope of his project at the time. Mr. Hason, however, categorically denies he has done anything contrary to the dictates of the City. He went back to City officials many times during the construction of the deck to make sure the project was built as required. The majority of the Board members believe, however, that the deck as constructed, goes far beyond the limited structure approved by the granting of the parking space variance in January 1996. This animosity toward the project can be seen from a review of the audio record of the February 13, 1997, Board meeting where, during a colloquy between a Board member and Mr. Hason, it appeared the member was somewhat put out by the entire situation. His analysis indicates a less than complete recollection of the matter, however. Whereas one of the conditions to the issuance of the initial permit was that the area of the outdoor cafe should not be greater than 25 percent of the indoor area of the restaurant, this member pointed out that the 69 outdoor seats were far in excess of 25 percent of the 115 or so indoor seats. This constituted a confusion of seating as opposed to area. No evidence was presented concerning whether Mr. Hason had violated the area constraint. In the main, however, while it appeared that a majority of the Board members were unhappy about the way the project developed, and expressed the opinion that the project did not conform to what they had intended to approve, there was no indication any member s vote was motivated by anything other than a sincere belief in the correctness of his position. There was no indication of any inappropriate or vindictive action by anyone on the Board or its staff. Stephen Sarnoff, a central permitting specialist with the City reviewed the plans for the initial construction and for the current application. As he recalls, the plans for the initial deck construction did not show any support beams, fans, overhead structure or latticework fencing, and the deck, as built, does not conform to the plans as submitted. City Code requirements call for a railing of from 30 to 42 inches high. The current railing of 45 inches does not conform to that standard, and Mr. Sarnoff is not aware of any request from the City that the railing be raised to that height, as Mr. Hason claims. By the same token, while there is no requirement in the ordinance that a deck be of a certain height, anything higher than 12 inches is considered a structure and a waiver is required. This deck was approved for 12 inches. A certificate of occupancy is usually issued for a deck, but in the instant case, such a certificate has not been issued because the deck, as built, is not in compliance with the 1996 approval. If it is brought into compliance, it will be approved. Sarnoff is aware of and familiar with other outdoor restaurant decks built at various locations in the Clearwater area, as indicated by Mr. Hason. Some are not within the CR-28 zone and do not come under the same standards as are applicable here. Others, which must conform to the instant requirements appear to have movable awnings which are acceptable. Still others are in a different zoning district with different set-back requirements, and some were initially denied, but were subsequently approved when they were brought into compliance with the requirements. John Richter, a senior planner for the City, was the individual who prepared the staff report on the instant project and initially recommended approval, contingent upon changes to the external appearance of the facility. He made suggestions and has discussed the project with Hason on his several visits to the property. He did discuss an awning with Hason at some point, but their discussions did not deal with its mobility. All in all, Mr. Richter concluded that the project appears to meet the standard for approval, provided attention is given to the external appearance of the cafe. David S. Shuford, the City's central permitting director and development code administrator indicated that the variance required for the awning, which was an integral part of the structure already built, was not automatically granted with the granting of the permit for the deck structure. Section 42.221, Clearwater City Code, was adopted to promote a more festival atmosphere in some of the outdoor tourist areas. The intent of subsection (l)(c) of that provision was to require the use of moveable items and to design structures that would meet wind requirements and not interfere with pedestrian traffic. The term "moveable" means what it says, and in Shuford's opinion, from the plans he saw, the proposed awning would not be easily moveable on a daily basis. The Clearwater City Code establishes the area in question as one where, once guidelines are developed, they will be adopted and be complied with. Mr. Shuford opines that the current deck, in the rafter area, goes beyond what was proposed at the time the project was submitted for the parking variance and was approved. This is what appears to be the source of the difficulty the Board members have with it. However, if designed to comply with the guidelines, this awning could be approved. He would agree with the conditions outlined in the staff recommendation so far as they relate to painting and architectural matters.
Findings Of Fact On or about March 7, 1986, Petitioner submitted an application for a variance from the open space and rear set-back line requirements applicable to property located at 2612 U.S. 19 North, Clearwater, Florida. The subject property is zoned CC (commercial center). Petitioner's application requests a variance to provide 12.33% open space instead of 25%, and to construct a building 30 feet from the rear property line rather than 50 feet as required by the Land Development Code for property zoned CC. On or about April 24, 1986, the Development Code Adjustment Board denied Petitioner's application for a variance, and Petitioner timely appealed on May 6, 1986. The only evidence in support of its application offered by Petitioner was the testimony of Robby Tompkins. He testified that Petitioner's application is "unique" because Petitioner was 90% complete with its architectural plans for the renovation and modernization of the subject property when the current ordinance took effect, and Petitioner therefore urges that the current ordinance should not apply. Additionally, Petitioner argues that there will be no injury to the public as a result of the variance, and in fact the project will add 6800 square feet to its shopping center. Tompkins admitted that an increase in financial return was the primary reason Petitioner has sought the variance. Finally, he stated that if Petitioner complies with the 25% open space requirement, there will not be enough parking to meet Code provisions, and if sufficient parking is provided, there will not 25% open space.
