The Issue The issues are whether Keith Rockman's construction of a dock and other structures on Choctawhatchee Bay in Fort Walton Beach, Florida, is exempt from Wetland Resource Permit requirements, and whether authorization to use sovereign submerged lands for the project should be given.
Findings Of Fact Based on the evidence presented by the parties, the following findings of fact are made: On December 19, 2005, Mr. Rockman, who lives at 325 Brooks Street, Southeast, Fort Walton Beach, Florida, filed an application with the Department's Northwest District Office in Pensacola requesting authorization to construct a platform seven feet wide by eight feet long; an access pier three feet long; another access pier four feet wide by forty-five feet long; four mooring pilings outside the slip; and ten mooring pilings inside the proposed slip, totaling 371 square feet. The application indicated that the proposed construction activities would take place in the Choctawhatchee Bay, a Class III water of the State, on which Mr. Rockman's property fronts. (This waterbody is more commonly known as the Santa Rosa Sound or the Intracoastal Waterway.) The property already had an existing 25-foot dock when Mr. Rockman purchased the property sometime in 2005; however, because Mr. Rockman wishes to dock a larger boat than the prior owner, he has requested authorization to build the structures in issue here. Based upon the information supplied by the applicant, Diana Athnos, an Environmental Manager with the Northwest District Office, advised Mr. Rockman by letter dated January 31, 2006, that the Department had "determined that [his] project is exempted from [the Department's] Wetland Resource Permit requirements by Rule 62-312.050(1)(d), Florida Administrative Code." The letter also stated that the "letter is your authorization to use sovereign submerged land (if applicable) for the construction of your project, as required by Chapter 253.77, Florida Statutes and Chapter 18-21, F.A.C." After Department approval was obtained, Mr. Rockman completed construction of the project. Mr. Rockman elected not to publish notice of the Department's decision or provide notice by certified mail to specific individuals. Therefore, third parties were not barred from challenging the Department's decision until after they received actual notice. Petitioner, who lives next door to Mr. Rockman, learned about the Department's decision in a telephone call with the Northwest District Office on March 8, 2006. The papers filed in this case indicate that Petitioner and other neighbors had actually observed construction activities on Mr. Rockman's property in November 2005 and had filed complaints with the Department regarding these unauthorized activities. These complaints evidently led to the filing of an application by Mr. Rockman. On March 17, 2006, Petitioner, who resides at 328 Brooks Street, Southeast, Fort Walton Beach, and has 50 feet of frontage on the water with a dock extending into those waters, filed a letter with the Department, which was treated as a Petition challenging the Department's earlier decision. This Petition was later dismissed by the Department on the ground it raised claims concerning Petitioner's riparian rights, a matter beyond the Department's jurisdiction. Petitioner then filed an Amended Petition on July 11, 2006, in which he again contended that his riparian rights would be severely restricted by the proposed activities, and that the dock would create a navigational hazard. Although Florida Administrative Code Rule 62-312.050(1)(d)3. requires that a project not "create a navigational hazard" in order to be exempt from permitting requirements, Petitioner opted to base his claims on two provisions in Florida Administrative Code Rule 18-21.004(7), which contains the general conditions for authorizations to use sovereign submerged lands. The riparian rights issue was again excluded from consideration at a status conference held on January 5, 2007. The parties advise that this issue is now being pursued in a separate action in circuit court. Through the introduction into evidence of its complete permit file as Department Composite Exhibit 1, the Department established that the proposed activities are exempt from permitting requirements under Florida Administrative Code Rule 62-312.050(1)(d). More specifically, the activity will take place in waters which are not located in Outstanding Florida Waters; the structures are less than 1,000 square feet of surface area over the landward extent of waters of the State; they will be used for recreational purposes; they will be constructed on pilings; they will not substantially impede the flow of water or create a navigational hazard; and the structure is the sole dock constructed pursuant to the exemption as measured along the shoreline for a minimum distance of 65 feet. The dock and associated structures and pilings will be constructed over sovereign submerged lands owned by the State of Florida. Under Florida Administrative Code Rule 18-21.005(1), which specifies the forms of authorization for consent to use sovereign submerged lands, "no application or written authorization is required for an activity that is exempt from the requirements of obtaining a permit," so long as certain conditions are met, including those found in Florida Administrative Code Rules 18-21.004(7). See Fla. Admin. Code R. 18-21.005(1)(b). The only relevant condition raised in the Amended Petition is whether or not the "[s]tructures or activities shall . . . create a navigational hazard." Fla. Admin. Code R. 18-21.004(7)(g). In construing this rule, and the similar requirement in Florida Administrative Code Rule 62- 312.050(1)(d)3., the Department considers whether the structures will create a navigational hazard for boaters on the Intracoastal Waterway, as well as the owners of property who reside on either side of Mr. Rockman. In his Amended Petition, Mr. Woolshlager contended that the proposed structures or activities will create a navigational hazard when he accesses the dock in front of his property. As clarified at hearing, Petitioner does not dispute that he (or any "good boat driver") has adequate ingress and egress for his smaller boat, even with the larger dock on Mr. Rockman's property. Indeed, the record shows that he has been observed leaving his dock and accessing the Intracoastal Waterway. However, Petitioner indicated that if he should die, his wife intends to sell the property. If the new purchaser desires to dock a larger boat, he fears that there will not be sufficient room to do so, and the value of his property will be diminished. Through testimony from a licensed boat captain, it was established that Mr. Rockman's dock does not create a navigational hazard for boaters in the Intracoastal Waterway whose boat channel lies at least 600 feet or so from the shoreline, or for property owners on either side of the applicant's property. Although Petitioner cannot dock a larger boat than he now has (a 21-foot boat), this is because he needs to dredge out the area where his existing dock is built and reconfigure its shape. (Mr. Woolshlager agreed that his dock actually encroaches a few feet onto Mr. Rockman's property; however, Mr. Woolshlager advises that the prior owner (who sold the property to Mr. Rockman) agreed to this encroachment when he purchased the property.) Therefore, all criteria have been satisfied.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order granting Mr. Rockman's application for an exemption from permitting requirements and authorization to use state-owned submerged lands. DONE AND ENTERED this 7th day of May, 2007, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 2007. COPIES FURNISHED: Lea Crandall, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 John N. C. Ledbetter, Esquire 4641 Gulfstarr Drive Suite 102 Destin, Florida 32541-5324 Nona R. Schaffner, Esquire Amanda G. Bush, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Michael William Mead, Esquire John S. Mead, Esquire Michael Wm Mead, P.A. Post Office Drawer 1329 Fort Walton Beach, Florida 32549-1329 Gregory M. Munson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Michael W. Sole, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue The issue in this case is whether a proposed activity by Cayo Costa Island Partnership is exempt from permitting.
Findings Of Fact Cayo Costa Island is a bridgeless barrier island situated between Gasparilla Island to the north and Captiva Island to the south. East of Cayo Costa Island is Pine Island, and east of Pine Island is Cape Coral. In the 1960s, Travis Gresham subdivided and commenced development of a portion of Cayo Costa Island. Development included the dredging of canals. Eventually, one or more plat maps were recorded in the public records of Lee County, so that warranty deeds for residential lots referred to such recorded plat maps. There is also a subdivision sales plat map, which may not have been recorded. Not all of the land was subdivided into lots. The sales plat map reserves a considerable amount of land and canals for future development. One of the reserved areas is to the east of the subdivided lots. The location of the proposed dock is in the extreme southwest corner of this unplatted area. The dock would be located at the western end of a relatively wide manmade canal, which measures 2000 feet long and 105 feet wide. The east end of the canal terminates in Pine Island Sound. Petitioner and her late husband purchased from Mr. Gresham lot 16 in block 1 over 30 years ago, and they moved onto the island almost 20 years ago. The lot does not abut the canal, nor the upland adjacent to the subject dock. She has permanently resided on the island continuously since 1976. In 1984, she and her husband conveyed their property by warranty deed to the State of Florida, reserving a life estate. Petitioner's husband and some friends constructed the subject dock at the end of the canal in September 1978. A couple of years later, another nearby resident named Carl Noah substantially enlarged the dock. On March 16, 1993, Mr. Noah conveyed by warranty deed his real property to Paul Faust. At the same time, Mr. Noah gave Mr. Faust a quitclaim deed for "boat docks constructed by [Mr. Noah] to be used with the [residential] structure." After purchasing the property from Mr. Noah, Mr. Faust was contacted by Petitioner, who told him that she had previously owned the dock and that Mr. Noah had shared it with her. Mr. Faust agreed to share the dock with her, for as long as he owned it. There are no recorded easements concerning the use of the dock. On the sales plat map, the west end of the canal is clearly separated from the subdivided area by a road, which is named Harbor Drive. However, Harbor Drive was never constructed and there is no physical evidence of the proposed road. Petitioner's late husband and his friends who helped build the dock mistakenly believed that the west end of the canal terminated at Harbor Drive. Undoubtedly, other persons were similarly confused, including the property assessor, who had never assessed the property that separates the west end of the canal from Harbor Drive. However, in May 1993, Noel Andress, one of the partners of Cayo Costa Island Partnership, obtained a warranty deed from Mr. Gresham for a triangular- shaped piece of land running north just to the existing dock from the intersection of Harbor Drive and an actual road known as La Costa Drive. Mr. Andress quitclaimed the triangular-shaped parcel, which is described by metes and bounds, to Cayo Costa Island Partnership on January 13, 1994. After Mr. Andress acquired the triangular-shaped parcel, he directed his attorney to write Petitioner and Mr. Faust and inform them to remove their personal property from the real property that Mr. Andress had recently acquired. Mr. Faust is contesting this matter in court. Unfortunately, the record does not include the application or applications submitted by Cayo Costa Island Partnership. Mr. Andress testified that he submitted an application in February or March of 1993. The proposed dock, which would replace the dock built by Mr. Sellars and Mr. Noah, would serve a single family. The proposed dock would consist of two sections: a 5' by 92' main section and a 6' by 10' walkway to the upland area. Thus, the total area of the dock would be 520 square feet. The application reportedly provides that Cayo Costa Island Partnership would use turbidity barriers during construction. The location of a 92-foot dock running parallel to the end of a 2000- foot long undeveloped canal presents no impediment to navigation. There is no reason to infer an adverse impact to flood control or, as long as turbidity barriers are used, a violation of water quality standards. By letter dated June 15, 1994, the Department of Environmental Protection acknowledged receipt of the application, as well as additional drawings and documents submitted on April 8, 1994. Based on these materials, the letter states that the proposed project "appears to qualify as an activity which is exempt from the need for a Department wetland resource permit under Florida Administrative Code Rule 17-312.050(1)(h)."
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Environmental Protection enter a final order dismissing the petition of Petitioner. ENTERED on November 22, 1994, in Tallahassee, Florida. ROBERT E. MEALE 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 on November 22, 1994. APPENDIX Rulings on Petitioner's Proposed Findings A-C: rejected as not findings of fact. A1: rejected as not finding of fact and irrelevant, except for last sentence, which is adopted or adopted in substance. A2-end: rejected as irrelevant, recitation of evidence, subordinate, and unsupported by the appropriate weight of the evidence. Rulings on Cayo Costa's Proposed Findings 1-10: adopted or adopted in substance. 11-12: rejected as subordinate. 13-15: adopted or adopted in substance. 16-23: rejected as subordinate, recitation of testimony, and unnecessary. 24-31: adopted or adopted in substance. 32-33: rejected as irrelevant. COPIES FURNISHED: Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Kenneth Plante, General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Barbara Mathews Trescott Pepper Law Firm 1505 S.E. 40th St. Cape Coral, FL 33904 Mary F. Smallwood Ruden, Barnett P.O. Box 10888 Tallahassee, FL 32302 John Chaves Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue The issues in these cases are whether the Respondent, Roy Palmer, is entitled to a Noticed General Environmental Resource Permit, under Florida Administrative Code Chapter 62-341, and a Consent of Use under Florida Administrative Code Chapter 18-21.
Findings Of Fact Procedural History On or about February 13, 1995, the Respondent, Roy Palmer (Palmer), applied for a wetland resource permit to construct a 395-foot boat dock for use at his single-family residence at property he owned on Sarasota Bay, an Outstanding Florida Water. As proposed, this dock was to originate from the northern part of Palmer's property and have a terminal platform with two boat moorings and two boat lifts. On September 1, 1995, the Department of Environmental Protection (the Department or DEP) gave notice of intent to issue a permit for a shorter (370-foot) dock originating from the southern part of the Palmer property. The Petitioners filed a petition for administrative hearing challenging the intended action. DEP referred the petition to the Division of Administrative Hearings (DOAH), where it was assigned DOAH Case No. 95-5311. On or about December 11, 1995, Palmer applied for a noticed general environmental resource permit (ERP) permit for his dock under new DEP rules went into effect on October 3, 1995. This proposal was for the 370-foot dock originating from the southern part of the Palmer property. On or about January 10, 1996, DEP acknowledged receipt of the noticed general ERP (No. 582819483) and informed Palmer that it appeared to meet the requirements of the new rule. DEP also gave notice of intent to grant Palmer's application for consent of use of sovereign submerged lands necessary to construct the dock. (The record is not clear when the application for consent of use was filed.) The Petitioners filed a petition for administrative hearing challenging agency action regarding both the noticed general ERP and the consent of use. DEP also referred this petition to DOAH, where it was assigned DOAH Case No. 96-0736. Palmer withdrew the original permit application and moved to dismiss DOAH Case No. 95-5311. In July, 1996, Palmer applied for a noticed general ERP to build a still shorter (232-foot) dock originating from the southern part of the Palmer property (Permit No. 292583). Apparently, no notice of the application was published or required to be published. It is not clear whether the Petitioners "filed a written request for notification of any pending applications affecting the particular area in which the proposed activity is to occur." Palmer's second noticed general ERP (No. 292583) was amended on or about August 19, 1996, to eliminate one boat mooring and one boat lift. DEP took no action on Palmer's second application for a noticed general ERP No. 292583. On September 23, 1996, Palmer filed a Motion to Dismiss the Petition for Administrative Proceeding in DOAH Case No. 96-0736 because he had withdrawn the previous application for a noticed general ERP for a 370-foot dock (No. 582819483) and was proceeding only on the second noticed general ERP (No. 292583) for the 232foot dock. Palmer's intent was to dismiss only the portion of his prior application regarding the noticed general permit, but not the consent of use. On October 28, 1996, the Petitioners filed a petition for administrative hearing challenging noticed general ERP No. 292583 for the 232-foot dock. This petition alleged that the Petitioners filed a written objection to noticed general ERP No. on September 16, 1996, which requested a written response, and that no response of any kind was received until the Petitioners inquired and were told that DEP did not intend to respond to either the noticed general ERP (No. 292583) or the Petitioners' objection. Proposed Dock at Issue The proposal at issue is for a 227-foot access pier and 20 foot by 5 foot terminal platform with only one boat mooring and one boat lift. The length, location, and design of Palmer's proposed dock was changed in an attempt to satisfy the Department of Environmental Protection (DEP or the Department) and Palmer's neighbors. Palmer's task in this regard was difficult in part because a longer dock with a terminus in deeper water could have less impact on seagrasses (the major environmental concern) but would have a greater impact on the neighbors' views of Sarasota Bay (the major infringement of riparian rights concern.) In the final version, Palmer tried to balance these conflicting concerns. As proposed, neither the terminal platform, boat lift, nor mooring location occurs over submerged grassbeds, coral communities or wetlands. Starting at the mean high water line, the first 75 feet of the access pier for the proposed dock will traverse essentially no sea grasses. In the next 75 feet to 150 feet of the access pier, there will be approximately 80% vegetative cover consisting primarily of the seagrass halodule wrightii. Between 150 feet and 200 feet, there will be approximately 20% vegetative cover consisting of the seagrasses halodule wrightii and thalassia testudinum. Between 200 feet and 232 feet, seagrasses consisted primarily of thalassia testudinum, except that the terminal platform is located in an area of essentially bare sand. Starting at 80 feet from the mean high water line, the access pier for the proposed dock will ramp up to 5 feet above mean high water for the next 20 linear feet and continue at that elevation for the next 112 feet to reduce shading of the seagrasses. Then it will descend stairs for the next 5 linear feet, until it is 3.5 feet above mean high water, and will continue at that elevation for 10 more feet to where it joins the 20 foot by 5 foot terminal platform. In this way, wherever it traverses seagrasses, the access walkway portion of the pier will be elevated 5 feet above mean high water. The access walkway will be only 4 feet wide and will have half-inch wide gaps between its deck boards to allow sunlight through and further reduce shading of the seagrasses. The access walkway also will have handrails that are maintained in such a manner as to prevent use of the access walkways for boat mooring or access. As proposed, the terminal platform and boat lift occurs in a location with minimum depth of 2.2 feet below the mean low water level. There is some water 1.7 feet deep in the vicinity of the terminal platform, but the structure can be used without traversing the shallow water. The structure is designed so that boat mooring and navigational access will be in water at least 2 feet deep. Including access pier and terminal platform, the total area of Palmer's proposed dock over sovereign, submerged land would be 1,008 square feet. There will be no wet bars or living quarters over wetlands or surface waters or on the pier, and there will be no structures enclosed by walls or doors. There will be no fish cleaning facilities, boat repair facilities or equipment, or fueling facilities on the proposed dock. No overboard discharges of trash, human, or animal waste, or fuel will occur from the dock. The only dredging or filling associated with construction of Palmer's proposed dock will be the minimum dredge and fill required for installation of the actual pilings for the pier, terminal platform, and boat lift. Altogether, less than 30 square feet of bay bottom will be disturbed during construction and displaced to accommodate the pilings. Palmer's noticed general ERP is subject to the general conditions set out in Florida Administrative Code Rule 62- 341.427. Among those conditions is the requirement that Palmer implement best management practices for erosion, turbidity, and other pollution control to prevent violation of state water quality standards. The pilings will be jetted, not driven, into place to minimize disturbance of the bay bottom and temporary increases in turbidity. Turbidity barriers will be installed and maintained in a functional condition at each piling until construction is completed and soils are stabilized and vegetation has been established. Used properly, turbidity barriers have proved effective in containing temporary turbidity from dock construction. Based on the expert testimony, it is found that the construction of Palmer's proposed dock will not significantly impact seagrasses. The Petitioners presented expert testimony on seagrasses, but their expert testified only generally based on studies showing that shading negatively impacts seagrasses. He had no prior knowledge of the Palmer dock design, seagrass coverage, or the depth of the water. When apprised of some information concerning Palmer's proposed dock, he admitted that the studies involved far more severe shading conditions than would be caused by the proposed dock. He could not testify that the Palmer dock design would harm seagrasses, with the exception of those actually removed by the installation of the pilings. Accidental boat propeller dredging in using a dock can be a secondary impact on seagrasses from dock construction. But while a dock could perhaps attract a few boats, the dock's presence also might cause boaters to steer clear of the dock or reduce speed in the vicinity of the dock, which could result in a net reduction in the risk of damage to seagrasses from accidental prop dredging. Petitioners Dr. Franklin Pfeiffenberger, James Castoro, and Winifred Castoro jointly own a dock to the south of the Palmer property. This dock, which was built in the 1930's, projects 190 feet into Sarasota Bay and traverses seagrasses. Unlike the proposed Palmer dock, the Pfeiffenberger dock is not elevated, and it terminates in seagrasses. The seagrasses under the Pfeiffenberger dock are the same types as those located in the Palmer dock alignment--a combination of halodule wrightii and thalassia testudinum. The dock has been rebuilt a number of times over the years. Upon physical inspection, apparently healthy and growing seagrasses were found underneath the Pfeiffenberger dock. The proposed dock will not harm wildlife, including manatees (the only endangered species in the area, animal or plant). Manatees use Sarasota Bay in general, but the east side of the bay, where the Palmer property is located, is not a high use area. It is shallow and would not be considered "select" habitat for manatees. The proposed dock would not have any detrimental effect on manatee travel patterns; they could easily swim around the dock. Manatees eat seagrasses and other aquatic vegetation, but the proposed dock will not have significant adverse impact on those resources. Finally, while a dock could perhaps attract a few boats, the dock's presence also might cause boaters to steer clear of the dock or reduce speed in the vicinity of the dock, which could result in a net reduction in the risk of injury to manatees in the area from boat collisions and prop scarring. Except for temporary turbidity during construction, no other water quality parameters will be violated as a result of the construction of Palmer's proposed dock. Palmer's proposed dock and its use will not significantly impede navigability in Sarasota Bay. The bay is approximately 18,000 feet wide at that point, and it is approximately 4,800 feet from Palmer's property to the Intracoastal Waterway. Since the water is shallow near shore in the vicinity of the Palmer property, relatively few boats frequent the area. Those that do are generally smaller boats. These boats easily could navigate so as to avoid the dock; very small boats, such as canoes and kayaks, might even be able to carefully pass under the elevated portion of the dock. Palmer's proposed dock also would not be a serious impediment to other recreational uses of Sarasota Bay in the area. The water is too shallow for swimming. Fishing could improve because the dock could attract baitfish. People could continue to wade-fish by walking around or even under the proposed dock. Palmer's proposed dock is aesthetically consistent with the area in which it is located. All the Petitioners have some sort of man-made structure projecting out into Sarasota Bay from their property. As already mentioned, Dr. Pfeiffenberger and the Castoros have a 190-foot dock projecting straight out into Sarasota Bay. Within the past five years, Dr. Pfeiffenberger has installed a bench to sit on at the end of the dock. To the north of the Palmer property, property owned by Mr. and Mrs. Cabaniss has a yacht basin formed by a sea wall that projects roughly perpendicular to the shoreline out into the bay. Immediately north of the Cabaniss property, there is a boat house on the Goldman property where it abuts the yacht basin. The Goldmans' boat house is approximately 20 feet in length and 10 feet in height from ground level. Immediately south of the Palmer property, Ms. Stenhouse has a small dock (which appears to be located over seagrasses.) As a result, the viewsheds of Palmer and the Petitioners already contain many docks and man- made structures. In addition, the Ringling Causeway and bridge can be seen from all of these properties. Palmer's proposed dock will appear in some views from the Petitioners' properties. Generally, the closer the neighbor, the more will be seen of Palmer's proposed dock. Some of the Petitioners will only be able to see the proposed dock if they go out to the westerly edge of their properties on the bay. While the proposed dock will appear in and alter these views, it will not eliminate any Petitioner's view of Sarasota Bay. Even the closest neighbors will have some unobstructed views around the proposed dock. It also will be possible to see over and under the proposed dock, similar to the way in which many of the Petitioners now enjoy their views. There are tall pine and palm trees on the Cabaniss property between their house and their view of the bay. Most of the other properties in the vicinity appear to have similar viewsheds. Ms. Stenhouse has a large stand of mangroves of the western edge of her property; they cover approximately 60 percent of the panorama from her house, but they are trimmed up so she can see through them. While some people would prefer not to have the Palmer dock there, other people might view the availability of single- family residential docks to be an asset to the properties in the neighborhood. Based on expert testimony, it cannot be found that property values in the area would go down as a result of Palmer's proposed dock. Palmer's proposed dock does little if anything to further the idealistic goals and objectives of the City of Sarasota Comprehensive Plan and the Sarasota Bay Management Plan to restore and expand seagrasses in Sarasota Bay in that the proposed dock will eliminate some seagrasses. However, only approximately 30 square feet of seagrasses will be lost. Otherwise, the proposed dock is consistent with other goals and objectives of the City of Sarasota Comprehensive Plan and the Sarasota Bay Management Plan in that the dock has been aligned and planned so as to minimize impacts on seagrasses while balancing the neighbors' desire to minimize the impact on their views of Sarasota Bay. Palmer's Riparian Rights Palmer and his wife received a Warranty Deed, dated August 27, 1993, from James Kirk, II, individually and as personal representative of the Estate of Marie Ferguson. The deed describes Lots 27 and 28 of the Indian Beach subdivision in Sarasota, Florida, with a western boundary "along the shores of Sarasota Bay." Palmer attached this deed to his applications. Since at least November 1992, the mean high water line of Sarasota Bay has been west of a seawall on the Palmer property. The evidence was clear that the seawall has been there since at least 1944 and that Palmer has not filled the area to the west of the seawall or built any structure that influences its existence. The evidence was not clear as to the creation and history of upland to the west of the seawall. From aerial photographs, it appears that at least some upland has existed to the west of the seawall at least from time to time for at least the last 30 years. For reasons no witness could explain, the Palmers also received a Warranty Deed from Kirk, dated September 3, 1993, purporting to convey title only up to the seawall on the Palmer property. Likewise for reasons no witness could explain, a land surveyor named Lawrence R. Weber prepared a boundary survey based on the description in the September 3, 1993, Warranty Deed. Also for reasons no witness could explain, the Palmers received a Quit Claim Deed from Kirk, dated October 20, 1993. This instrument quitclaimed to the Palmers "all of the Grantor's property to the mean high water line of Sarasota Bay, including riparian rights." Except for the mysterious September 3, 1993, Warranty Deed from Kirk, all deeds in the chain of title back to at least 1944 reflect an intention to convey riparian rights. A deed given by Helen and Frederick Delaute to Cecilia and Harold Wilkins, dated April 19, 1944, described the westerly boundary of the property as running northerly along the shores of Sarasota Bay and specifically referenced riparian rights. (This deed attached a survey showing the still-existing seawall.) The next deed in the chain of title was from the widowed Cecilia S. Wilkins to Edward and Laura Williams dated December 27, 1954. The metes and bounds description again referenced the westerly boundary as running along the shores of Sarasota Bay and specifically referenced foreshore accretions and riparian rights. The next deed in the chain of title was from Edward and Laura Williams to Aidan and Wilma E. Dewey dated June 30, 1958. This deed again defined the westerly boundaries of the property as the shores of Sarasota Bay and specifically referenced foreshore accretions and riparian rights. The next deed in the chain of title was from Aidan and Wilma Dewey to Edward and Marie Ferguson dated August 23, 1967. This deed again defined the westerly boundary of the property as the shores of Sarasota Bay and specifically referenced foreshore accretions and riparian rights.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order issuing Noticed General Environmental Resource Permit (No. 292583) and Consent of Use (No. 582819483) to Roy Palmer. DONE AND ENTERED this 1st day of September, 1998, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 1st day of September, 1998. COPIES FURNISHED: Richard Filson, Esquire Filson and Penge, P.A. 2727 South Tamiami Trail, Suite 2 Sarasota, Florida 34239 Thomas I. Mayton, Esquire T. Andrew Zodrow, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 David M. Levin, Esquire Icard, Merrill, Cullis, Timm, Furen & Ginsburg Post Office Box 4195 Sarasota, Florida 34237 Alexandra St. Paul, Esquire The Riverview Center 1111 3rd Avenue, West Suite 350 Bradenton, Florida 34205 Kathy Carter, Agency Clerk Department of Environmental Protection Office of General Counsel 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection Office of General Counsel 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Respondent McMullen is the owner of property located at Keaton Beach, Taylor County, Florida. The southern portion of the property borders on the Gulf of Mexico and the western portion borders on an artificial canal. Adjacent land lies to the east and north of the subject property. Prior to August of 1980, respondent constructed or caused to be constructed on the southern and western portions of the property a vertical bulkhead or seawall approximately 106 feet long, with approximately 105 cubic yards of fill material behind it, creating a fill area 106 feet long by 12 feet wide. The respondent did not apply to the DER for a permit to proceed with this activity. In September of 1980 and again in January of 1981, the DER sent warning notices to the respondent advising him that he was in violation of the statutes and rules governing permitting for stationary installations and dredging and filling activities. The petitioner received no response to these notices from the respondent. On June 9, 1981, the petitioner issued its "Notice of Violation and Orders for Corrective Action", alleging as facts that the bulkhead and fill area were placed within the landward extent of the Gulf of Mexico, that construction was undertaken without a permit and that the activity caused and will continue to cause pollution so as to harm and injure animal, plant and aquatic life. The "Orders for Corrective Action" included the payment of the DER's expenses and the complete restoration of the area. A 1979 aerial photograph of the subject Keaton Beach area indicates that the southern property line of respondent's property formed a straight line with the southern property line of the adjacent property to the east of the respondent. The respondent's vertical seawall now extends waterward of the southern property line of the adjacent property, which is bordered with rip rap. The exact determination of where the waters of the State terminate on the respondent's property cannot be made because that area is now covered by fill. The waters of the State bordering the adjacent property extend to the bands of grass behind the rip rap. This a be determined from the vegetation on the adjoining property and the condition of the shoreline. The petitioner's expert witness in ecology and dredge and fill permitting estimated that the respondent's bulkhead extends approximately 12 feet waterward of the mean high water line. The area surrounding respondent's property was dredged and/or filled in the late 1950's, and at least a portion of the respondent's property was created from the fill. Loose rocks from the dredging operation were placed on the borders of the fill, and the site began to stabilize and develop its own shoreline with wetland vegetation. At least some of the property to the south of respondent's property was dredged in order to connect or provide better navigational access to the two canals to the east and west of the property. During periods of extreme low tide, both edges of the dredged area are out of the water. The construction of the vertical seawall with fill placed behind it covered vegetation found in the landward extent of waters of the State and eliminated the existing littoral and intertidal zones. The grasses and vegetation which were displaced served an important filtrative function and nutrient transport has now been interrupted. Significant revegetation of the area in front of the bulkhead cannot be expected in its present condition. Erosion and runoff from the area behind the seawall can reasonably be expected to be a source of pollution so as to harm or injure animal, plant or aquatic life. The placement of rip rap, or a loose aggregation of broken concrete ore rock piled up to form a wall, is a more environmentally compatible method of land retention than the construction of a vertical seawall. The rip rap has the ability to dissipate energy by breaking up waves, and retarding the erosive effects of wind and wave action. Unlike a seawall, vegetation can grow around the rip rap. The respondent did have in his possession a letter dated September 28, 1977, from David B. Scott, an Environmental Specialist with the DER, which stated: "In regard to your letter of September 26, 1977, a permit from this agency will not be needed for seawall construction in an artificial canal. All that is required is that your seawall not impede navigation and that you do not violate existing water quality standards." This letter was addressed to a Mr. Dennard L. White, who was believed by respondent to be a nearby property owner. Mr. White's letter of September 26, 1977, was not presented at the hearing. The DER is not attempting in this proceeding to exert jurisdiction over the seawall built on the western side of respondent's property, which fronts the artificial canal. The costs and expenses of the DER in investigating the violations alleged in this proceeding amounted to $216.76.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that respondent be found guilty of violating Section 403.161(a) and (b), Florida Statutes, and that he be ordered to comply with and perform the Orders for Corrective Action dated June9, 1981. Respectfully submitted and entered this 19th day of March, 1982, in Tallahassee, Florida. DIANE D. TREMOR, 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 19th day of March, 1982. COPIES FURNISHED: Cynthia K. Christen, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 John R. Weed, Esquire 605 South Jefferson Street Perry, Florida 32347 Victoria Tschinkel Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Richard M. Davis, Esquire Suite 320 Lewis State Bank Bldg. Tallahassee, Florida 32302
Findings Of Fact Petitioner, Silver Springs Shores, Inc., is a Florida corporation. Petitioner is a wholly owned subsidiary of Amrep Corporation. Petitioner's primary business has been to develop a large subdivision in Marion County known as Silver Springs Shores. Petitioner holds title to all of the lots in the subdivision. Amrep Construction, Inc. is a New Mexico corporation authorized to do business in Florida. Amrep Construction, Inc. is a wholly owned subsidiary of Amrep Corporation. Amrep Construction, Inc. is a construction company, which, inter alia, contracts to build homes for purchasers of lots in Silver Springs Shores. A third corporation, Holiday Shores Tours, Inc., also a wholly owned subsidiary of Amrep Corporation, functions as a sales office. Holiday Shores Tours, Inc. seeks prospective purchasers of lots owned by Silver Springs Shores, Inc. and encourages them to contract to have a home built by Amrep Construction, Inc. on the lot. Holiday Shores Tours, Inc. promoted sales of lots and homes in Silver Springs Shores. In the transactions involved in this case, Holiday Shores Tours, Inc. secured purchasers of lots with homes to be constructed by Amrep Construction, Inc. Amrep Construction, Inc. would make arrangements for conveyance of the lot, for mortgage financing, and for the construction of the home. Initially, a "home-binder" would be executed by the purchaser and by a representative of Amrep Construction, Inc. This binder reflects the purchase price of the lot and home. Subsequently Amrep Construction, Inc. and the purchaser would execute a "building agreement". This agreement provides in paragraph 3 for a purchase price which does not include the value of the purchaser's lot. Sub-paragraphs a, b, and c of paragraph 3, however, break down the purchase price and appear to include an additional amount above that stated in the opening sentence of paragraph 3, which amount coincides with the price of the lot. Subsequent to execution of the building agreement, Amrep Construction, Inc. would forward a "Warranty Deed Initiation Request" to Silver Springs Shores, Inc. Through this form Silver Springs Shores, Inc. was requested to issue a warranty deed to the ultimate purchaser. At the time of closing, the purchaser would pay the total purchase price including the price of the lot and the home to Amrep Construction, Inc. The price of the lot would typically have already been paid, and a deed issued, and recorded by Petitioner. The deed is the document which is subject to taxation. The price of the lot would be reflected on the closing statement as a credit to the purchaser. Petitioner paid the documentary stamp tax imposed in accordance with Florida Statutes 201.02, and the documentary surtax imposed in accordance with Florida Statutes 201.021, as if the consideration for the conveyance of real property was the amount paid for the lot only. The Respondent in its formal notice of assessment has treated the transactions as if the consideration for a conveyance of real property was the amount paid for the lot and construction of the new home. There is no dispute between the parties as to the computation of the tax. There is a dispute as to whether the transaction in real property was for a lot only, or for a lot and home. Purchasers of lots in Silver Springs Shores, who contracted with Amrep Construction, Inc. for construction of a new home, did not enter into separate transactions for purchase of a lot, and for construction of a home. The transaction was a single undertaking to build a new home on a lot. There is no separate agreement by which the purchaser is obligated to purchase and pay for a lot. Not all of the real estate transactions in Silver Springs Shores have been consummated in the manner described above. Prospective purchasers are permitted to purchase lots in Silver Springs Shores and to use a construction company other than Amrep Construction, Inc., or to build homes themselves. At least 36 transactions were consummated in this manner. These transactions are listed in Petitioner's Exhibit 1. In these transactions the Respondent assessed the documentary stamp tax and documentary surtax on the price of the lot only. Amrep Construction, Inc. purchased several lots directly from Silver Springs Shores, Inc. Amrep Construction, Inc. would then build a home on the lot and seek to sell the finished product to a customer. Respondent imposed the documentary stamp tax on the transactions between Amrep Construction, Inc. and Silver Springs Shores, Inc.
Findings Of Fact Stipulated Facts Jim and Paulette Holzinger own Lot 17, Section B, Long Beach Estates, located on Big Pine Key in unincorporated Monroe County, Florida. The property is south of Long Beach Drive. The property is located within the Florida Keys Area of Critical State Concern. See Sections 380.05 and 380.0552, Florida Statutes. Under these statutes, Monroe County adopted a comprehensive plan and implemented it with land development regulations which are consistent with the Principles for Guiding Development found in Section 380.0552(7), Florida Statutes. The Department of Community Affairs approved the County's comprehensive plan in Rule Chapter 9J-14, Florida Administrative Code, and the Administration Commission approved the comprehensive plan in Chapter 28-29, Florida Administrative Code. The County's comprehensive plan is implemented through its land development regulations, codified as Chapter 9.5 of the Monroe County Code. Monroe County is responsible for issuing development orders for land development in unincorporated Monroe County, including these development orders (building permits). The Local Government Comprehensive Planning and Land Development Act, Chapter 380, Florida Statutes, restricts the County from permitting development which is inconsistent with the Monroe County Comprehensive Land Use Plan, Sections 163.3161(2) and 163.3194(1), Florida Statutes. No person may undertake any development within an area of Critical State Concern except in conformity with Chapter 380; Section 380.05(16), Florida Statutes. After the County issued the three related permits, the Holzingers engaged Pinewood Enterprises, Inc., as general contractor, for the construction of their single-family residence. Those permits were rendered to the Department of Community Affairs on July 21, 1992, and the Department issued its notice of appeal of those permits on September 4, 1992. No party disputes the timeliness of the appeal. The Holzingers' lot is vegetated by mangroves, transitional plant species, and beach berm plant species. The site plan, and which was part of the Holzingers' application for the permits, which Monroe County approved, includes the approval of dredging of a portion of Lot 17 and the placement of fill on site to provide driveway access to the single-family residence. The site plan locates the single-family residence in an area of Bay Cedar thicket. The mangroves are located along the north of the lot along Long Beach Drive. Facts Found Based on Evidence Adduced at the Final Hearing The Holzingers' lot is located at the southernmost area of Big Pine Key, and is separated from the rest of the key by a wetland to the north of the property. To its south is the Atlantic Ocean. The lot is approximately 100' x 230' and contains approximately 22,750 square feet from property line to property line. On the lower keys land elevations only extend from sea level to a maximum of approximately five or six feet above sea level. The soil or substrate conditions on the lot are white calcareous deposits which appear to the untrained eye to be sand. It is not quartzite, but deposits from the breakdown of marine grasses or marine algae which have the appearance of sand. There is no caprock on the property. B (1). Habitats Recognized in the Monroe County Plan The Monroe County Comprehensive Development Plan is based upon the Data and Analysis found in volume 1 of the Plan. According to that Data and Analysis, there are different types of habitat found in the Keys. These include salt marsh, salt marsh and buttonwood association, mangrove community, tropical hardwood hammock, and beach berm complex. The most significant one here is beach berm complex; it includes: "bare, sandy shoreline with a mound or ridge of unconsolidated sand that is immediately landward of and usually parallel to the shoreline and beach. The sand is calcareous material that is the remains of marine organism such as corals, algae and mollusks. The berm may include forested costal ridges and may be colonized by hammock vegetation." Section 9.5-4(B-3), Monroe County Code [the land development regulations]. In the Data and Analysis, the County records that on Long Beach Key the most landward area of the berm is tropical hardwood hammock. The low hammocks are upland hardwood forest communities containing species such as blolly, buttonwoods, darling plums, spanish stopper and wild dilly, all of which are found on the vegitation survey of the lot done by a biologist for Mother Nature's Enterprises, Linda Pierce, as part of the Holzinger building permit application. See Section 9.5-4(L-10), Monroe County Code, which defines low hammocks. Low hammocks include berm hammock, and the beach berm association described in the County comprehensive plan includes berm hammocks (Tr. 184). B (2). The Land Use Maps and their Designations The existing conditions map which is part of the Monroe County comprehensive plan designates the area of the Holzingers' property as beach berm association. That map is drawn at the sale of one inch equals 2,000 feet. Similar aerial maps at a scale an order of magnitude smaller (one inch equals 200 feet) also show the land as beach berm with fringing mangroves. These aerial photographs have been overlaid with the Comprehensive Plan's habitat designations for use in the practical application of the land development regulations by County employees. Under the land use regulations found in the Monroe County Code, the County Commission is required to follow the existing conditions map it adopted, Section 9.5-227, Monroe County Code. Under the first paragraph of Section 9.5- 345 the environmental design criteria applicable to development of a parcel of land depend upon the habitat designated for the parcel on the existing conditions map (the map drawn at the larger scale of one inch equals 2,000 feet). Ground proofing of the habitat on the lot done by the Lower Keys' biologist, Diana Stephenson, and by the Department of Community Affairs planner/biologist, Kathleen Edgerton, show that the land is actually beach berm from the ocean to the mangroves, and there is a small area of disturbed saltmarsh landward from the mangroves to the county road which runs down the center of the key. I am not persuaded by the testimony of the biologist for the Holzingers, Mr. Smith, who believes that there is a separate tropical hardwood hammock habitat on the Holzingers' lot. A full habitat analysis would have been required if there were mixed habitats on the lot (Tr. 88, 96) and the Holzingers did not submit one to the County as part of their application. Because the County biologist found no separate low hardwood hammock habitat on the lot, she believed that no habitat evaluation index was required in processing the Holzinger application, and none was done independently by the County. Mr. Smith contended at final hearing that there are several distinct habitats on the single lot. Moving south from Long Beach Drive toward the ocean he first finds a disturbed saltmarsh of approximately 4,000 square feet; then a mangrove community of about 2,500 square feet; then a saltmarsh and buttonwood association of about 2,500 square feet; next a tropical hardwood hammock of moderate quality and finally, closest to the ocean, beach berm complex. This analysis, which designates a separate saltmarsh and buttonwood association waterward of the mangrove community, and then a separate tropical hardwood hammock waterward of the saltmarsh and buttonwood association, fails to give significant weight to the fact that low hammocks are typically found within beach berm complex. While Mr. Smith testified to the square footages for each of the five habitats, he only performed rough calculations for their size, he was not working with, nor did he perform an actual survey which would define the boundaries of the various habitats he believes are present. He readily acknowledged his preliminary habitat analysis was incomplete. Moreover, accepting for the sake of argument that there is a mixed habitat on the lot under the evidence adduced by the Holzingers, a complete habitat evaluation index should have been performed by the Holzingers as a necessary part of their application, since the County biologist did not do one in the belief there was no need for one. The essential problem with the view expressed by Mr. Smith that there are five habitats on this 100-foot lot is his contention that due to the very small changes in elevation through the Keys, one must identify different habitats recognized in the Monroe County comprehensive plan and land development regulations by assessing the predominance of different types of vegitation typical of a habitat. To Mr. Smith, if the vegitation is of a type normally found in a tropical hardwood hammock, and it predominates over the other vegitation, that area must be classified as a tropical hardwood hammock. At that level of generalization, the statement is no doubt true. Neither the land development regulations or the County's Comprehensive Plan require, or even permit, a microanalysis of the vegitation for the purpose of defining multiple habitats on a lot. Taking a broad view, such as that embodied in the existing conditions map, the predominate vegetative and soil conditions on the southern part of the island where Lot 17 is located are consistent with the categorization as beach berm association. The same is true using the aerial maps on which the different habitat designations from the land development regulations have been overlaid. What Mr. Smith has done is to look for small areas within the 100' x 230' parcel to identify areas where tropical hardwood species may be said to "predominate." The obvious purpose of Mr. Smith's division of the lot into small areas is to be able to characterize these uplands species as "predominating." This is essential to justify intensive use of the property. The comprehensive plan and the land development regulations do not permit any use of areas colonized by mangroves, which are wholly protected by a 100 percent open space requirement. This means that 100 percent of the area colonized by mangroves must be maintained in its natural condition and free and open to the sky, Section 9.5-343, Monroe County Code. Open space ratio for saltmarsh and buttonwood associations is .85 but for moderate quality low hammocks is only .60. Beach berm association is highly protected, with an open space requirement of 90 percent. Only 10 percent of the land area waterward of the mangrove habitat, therefore, can be covered with the footprint of the single-family residence and any associated driveway or other access way because it is beach berm complex. Accepting the mangrove line contained in the vegitation assessment submitted by the Holzingers in their application done by Mother Nature's Enterprises, and then using a "planimeter" to measure the area from the mangrove line to the mean high water line on the lot, there is 16,594 square feet of property. Given the 90 percent open space requirement, a very small area of 1,659 square feet may be covered with the footprint of the single-family home, including its porch, eaves, and driveway. The footprint of the house, its porch, and driveway shown on the site plan approved by the County, with the addition of a five-foot clearing zone around the footprint of the house [because it is essentially impossible to clear land only to the footprint of the completed building] reveals that the County's permits would allow the clearing of 2,880 square feet. Even without the five-foot construction zone around the house, porch and driveway, the County permits allow the clearing of 2,172 square feet. It is very difficult to understand how the Monroe County official in charge of the office which issues building permits could have determined that the development proposed by the Holzingers was permittable. That official did not testify. The County biologist for the Lower Keys who did testify, Ms. Stephenson, was adamant that the project was never permittable under the Monroe County land development regulations. The only explanation by which the permit conceivably could have been granted would be to do something the land development regulations do not permit: aggregate the square footage which the code makes available for development on the landward side of the mangroves, in the area of disturbed saltmarsh between the road and the mangroves, and add the usable square footage for that habitat area to the usable square footage on the waterward side of the mangroves, in the beach berm association. But the amount of each habitat which must remain as open space is determined for each habitat type. They cannot be aggregated across habitats, to give some total usable number of square feet, to be cleared anywhere on the property. That would ignore the significance of the separate habitat designations. The 1,659 square feet available for development in the beach berm association must be used only within that habitat, and square footage available for development within the disturbed salt marsh cannot be added to it. Fill Issues The site plan approved by the County permits fill to be used to construct a driveway on the property through the mangrove area and the beach berm area. This is simply an error on the part of the County, for no party disputes that fill is forbidden in these areas. The performance standards in the land development regulations do permit certain piers, docks, utility pilings and walkways over mangrove areas, but no fill is permitted. Section 9.5- 345(m)(1), Monroe County Code (Tr. 139). The Holzingers could receive a permit to build a raised bridge over the mangroves for access to the beach berm association portion of the lot, as has been done on a nearby lot to the west of the Holzingers' lot. They cannot, however, fill the mangroves to create the driveway shown on the site plan the County approved. The building permit the County granted which purports to allow fill in mangrove areas is inconsistent with the County's own land development regulations and cannot stand. The next question is whether there is some alternate means of access to the lot which can be used instead of that permitted. At the final hearing Mr. Smith stated that on a recent visit to the Holzingers' property, he found an old road on the east side of the property which is high land which could serve as a location for a driveway or accessway to the interior of the Holzingers' property. There is, however, actually no old road anywhere on Lot 17. There was an old road on Lot 16, and a bit of the spoil from that road may be found on Lot 17, but there simply never has been a road on the Holzingers' lot which they can use for a driveway. Fill will be required to locate any driveway, and that is inconsistent with the County land development regulations. The only thing the Holzingers can do to overcome this problem would be to build a bridge over the mangrove area and completely avoid the use of any fill. Summary of Findings The scarified or a disturbed saltmarsh area from the county road to the mangrove area is too small to be useful. The Holzingers do not plan to build in that area. Whatever portion of that area which is not required to be open space cannot be "banked" to allow additional clearing in the beach berm association on the waterward side of the mangroves. For all practical purposes, that disturbed saltmarsh area adds nothing to the buildable or clearable area on Lot 17. The mangrove area has a 100 percent open space requirement. Mangroves are a highly protective habitat, which contribute nothing to the buildable area on Lot 17. The remaining portion of the Lot 17 waterward from the mangrove area to the mean high water line is too small to permit the construction and erection of the house and driveway permitted by the development orders (building permits) issued by Monroe County. The buildable area in the beach berm association is no more than a total of 1,660 square feet for the house, its porch, the driveway. The County has issued a permit to use 2,880 square feet of that habitat (including an allowance for a construction zone), or at least 2,172 square feet, assuming the location of the house, porch, and an eight-foot wide driveway and no construction clearing around the footprint around the house/porch. This fails to meet the 90 percent open space requirement found in the Monroe County Code. The building permits issued by Monroe County to the Holzingers are therefore invalid. To obtain valid permits, the Holzingers must substantially reduce the footprint of the house, including an allowance for a construction clearing zone. A house that small may be undesirable, but it could be permitted. What the County has attempted to permit, however, is invalid under its own regulations.
Recommendation It is RECOMMENDED that development approval for the subject lot be denied, unless the applicant presents, and the County and the Department approve, a revised permit and site plan which demonstrates compliance with the mandatory open space requirements for the beach berm and mangrove habitats, and which eliminates the placement of fill in the beach berm complex and the mangrove wetlands on site. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 9th day of July 1993. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of July 1993. APPENDIX The Findings of Fact proposed by the Department have been generally adopted, although the long quotation from Volume I and II of the County Comprehensive Plan are not essential or necessary. See proposed finding 10. The Respondents submitted no proposed Findings of Fact. COPIES FURNISHED: Stephanie M. Callahan Assistant General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Theodore W. Herzog, Esquire 209 Duval Street Key West, Florida 33040 Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 G. Steven Pfeiffer, General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 David K. Coburn, Secretary Florida Land & Water Adjudicatory Commission Executive Office of the Governor 311 Carlton Building Tallahassee, Florida 32301
The Issue Whether Respondents committed the violations alleged in the Notice to Show Cause.
Findings Of Fact Sandy Key Properties, Ltd., is the developer of Sandy Key, a condominium (Sandy Key). Thomas S. O'Rorke and Marion L. Bradford are general partners of Sandy Key Properties, Ltd. Sandy Key was meant to be a 244 condominium project consisting of four buildings with 61 units each. The condominium project was to be built in four phases, with each phase representing one building. Only three phases of the condominium project were built, however, consisting of 183 units. The ninety-second unit was sold on January 19, 1984. Control of the Owners Association Until September 1, 1984, the Respondents elected a majority of the board of directors of the Sandy Key Owners Association (Association). Up until then the board consisted of three directors: Thomas S. O'Rorke, Marion L. Bradford and Richard Douglas, who was a unit owner and Respondent's employee. On September 1, 1984, the Association held its annual meeting. At the meeting, the unit owners decided to increase the membership of the board of directors to five. The three sitting directors were reelected and two unit owners were added to the board. The Respondents did not vote their units at the election. On March 9, 1985, Mr. Douglas was replaced on the board by Bob Jackson. Mr. Douglas no longer worked for Respondents and Mr. Jackson was taking over Mr. Douglas' duties as Respondent's employee. During the time he served on the board, Mr. Douglas followed the orders given by Mr. O'Rorke. At the annual meeting held on September 14, 1985, the board's membership was increased from five to seven. The five sitting directors were reelected and two more unit owners were added. Respondents voted their units. On March 31, 1986, Mr. Jackson resigned from the board and was replaced by Mr. Douglas. At the annual meeting held on September 13, 1986, Mr. Bradford stated "that he and Mr. O'Rorke were not nominated to the board by the nominating committee since they automatically become board, members because they are the developers of Sandy Key." Petitioner's Composite Exhibit 1; Minutes of September 13, 1986 meeting. Five unit owners were also elected to the board. Two of the unit owners, Mr. Lassen and Mr. Putnam were also limited partners of Sandy Key Properties, Ltd., and Mr. Putnam was the developer's CPA. Respondents voted their units at the meeting. At a recall election held on May 2, 1987, Mr. O'Rorke was reelected and six new directors were elected. The six new directors were unrelated to the Respondents. Mr. O'Rorke was President of the Association from March 1983 to September 1985 and from September 1986 to May 1987. For those same periods, Mr. Bradford was Vice-President. From September 1985 to September 1986, Mr. Bradford was President and Mr. O'Rorke was Vice-President. Throughout the period beginning in 1983 and ending on May 2, 1987, Mr. O'Rorke and Mr. Bradford controlled the Association. Even though the majority of unit owners were allowed to elect the board of directors, Mr. O'Rorke asserted on numerous occasions that the developers were still in control of the Association. This assertion was based on Mr. O'Rorke's belief that the applicable law allowed him to retain control of the Association because he planned to build Phase IV of the project consisting of 61 units. The nondeveloper unit owners acquiesced in the assertion of control by Respondents until May 2, 1987. Until then, the unit owners believed that Respondents were in control and everyone acted accordingly. Prior to May 2, 1987, Respondents never relinquished control of the Association and the unit owners never accepted control of the Association. Up to the date of the hearing, Respondents had not delivered to the Association all the items required to be delivered by Section 718.301, Florida Statutes. One of the items Respondents never delivered is the review of the Association's financial records by a Certified Public Accountant required by Section 718.301(4)(c), Florida Statutes, and Rule 7D-23.003, Florida Administrative Code. Guarantee and Assessments At the hearing, the parties stipulated that the initial "guarantee period" ended on June 30, 1983. The "guarantee period" is that period of time, pursuant to Section 718.116(8)(a)2., Florida Statutes, wherein the developer obligates himself to pay any amount of common expenses which exceeds the assessments for common expenses imposed on other unit owners. In return for the guarantee, the developer does not have to pay assessments on the units it owns. On June 30, 1983, the Association reserve accounts were underfunded by $1,564.05. After June 30, 1983, Respondents did not pay assessments on developer- owned units as required of other unit owners. At the hearing, the parties agreed to stipulate to the amount of assessments Respondent should have paid from June 30, 1983, to December 16, 1986, and to file the stipulation after the hearing. The parties, however, were unable to reach agreement and a stipulation was not filed. The disagreement between the parties is over whether the assessment liability is $91,141.48, as asserted by Respondents, or $93,231.86, as asserted by Petitioner. From the evidence presented at the hearing, the assessments that should have been paid by Respondents from June 30, 1983, to December 16, 1986 total $91,141.48. For assessments paid more than ten days late, interest in the amount of 12 percent per annum from the date the assessment was due should also have been paid. Also, assessments not paid within ten days of the date due are subject to a $10 late fee. Petitioner's Exhibit 2, at p.10. Even though the Respondents did not make assessment payments to the Association in a formal and timely manner, Respondents continued to pay for Association expenses on a sporadic and as needed basis. From the evidence presented, however, one cannot determine the amount of these payments nor how to properly offset them against the assessments that Respondents failed to timely pay and against the interest and late fees that accrue to each unpaid assessment. As of December 16, 1986, the Association's reserve accounts were underfunded by $26,271.61. Financial Reports, Annual Meetings The Association did not mail or deliver to all unit owners a financial report for the year 1985 within 60 days following the end of the year. The Association did not call or hold an annual meeting of unit owners for the year 1983. The Association did not mail copies of proposed budgets and budget meeting notices, and did not hold budget meetings for the years 1984 and 1985. The Association failed to maintain its records according to good accounting practices prior to August 1986. During 1986, the Association imposed and collected a $50 per unit special assessment for shrubbery replacement. This assessment was first approved by the unit owners. Each unit owner's share of the common elements is 0.52 percent for a two-bedroom unit and 0.6208 1/3 percent for a three-bedroom unit.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Respondents be fined $100 for violating Section 718.115(2), Florida Statutes; Respondents be fined $2,500 for violating Section 718.116, Florida Statutes; Respondents be fined $1,000 for violating Section 718.112(2)(f) , Florida Statutes; Respondents be fined $1,000 for violating Section 718.111(13) , Florida Statutes; Respondents be fined $500 for violating Section 718.112(2)(d) , Florida Statutes; Respondents be fined $1,000 for the violations of Section 718.112(2)(e) Florida Statutes; Respondents be fined $500 for violating Section 718.111(12)(,a)11., Florida Statutes; Respondents be fined $2,500 for violating Section 718.301, Florida Statutes; and Respondents be ordered to have prepared the review of financial records required by Section 718.301(4)(c), Florida Statutes. DONE and ENTERED this 15th day of March, 1989, in Tallahassee, Leon County, Florida. JOSE A. DIEZ-ARGUELLES 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 15th day of March 1989. APPENDIX Rulings on Petitioner's Proposed Findings of Fact 1-4. Accepted. 5-6. Rejected as recitation of testimony. Not a finding of fact. Accepted. 9-11. Not a finding of fact. Accepted. Accepted, except portions that are argument. Also, some of these proposed facts are subordinate to facts found. Accepted generally. Not a finding of fact. 16-19. Accepted generally. Not a finding of fact. Accepted generally. Accepted. 23-32. Accepted generally; subordinate to facts found. Rulings on Respondents Proposed Findings of Fact Rejected as not supported by the weight of the evidence. First sentence accepted. Second and third sentences rejected. While the evidence establishes that Respondents paid some amounts, it cannot be determined what amounts were paid for association expenses. First sentence accepted, except as to phrase that unit owners had control. Second sentence rejected. Rejected. Accepted. First sentence accepted. Second sentence rejected. Accepted. Rejected. First sentence accepted. Second sentence rejected; the turnover review would help Respondents establish any offsets they may be entitled to. Accepted. Rulings on Intervenor's Proposed Findings of Fact 1-2. Accepted. 3. Not a finding of fact. 4-5. Accepted generally. 6-7. Rejected as argument. 8. Accepted. 9-11. Not a finding of fact. 12-13. Accepted. 14. Argument. 15-16. Accepted generally. 17-19. Not a finding of fact. 20. Accepted. 21-23. Not a finding of fact. 24 Accepted. Accepted but subordinate to facts found. First sentence is not a finding of fact. Second sentence accepted. 27-34. Not findings of fact. 35-37. Accepted but subordinate to facts found. COPIES FURNISHED: Karl M. Scheuerman, Esquire Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Thurston A. Shell, Esquire Post Office Box 1831 Pensacola, Florida 3259 Steven E. Quinnell, Esquire and Gregory D. Smith, Esquire Post Office Drawer 1832 Pensacola, Florida 32598 E. James Kearney, Director Division of Florida Land Sales, Condominiums and Mobile Homes 725 South Bronough Street Tallahassee, Florida 32399-1007 Van B. Poole, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000
Findings Of Fact Respondent Pierson is the owner of a parcel of land located at 7 Heilwood Street, Clearwater Beach, Florida. This parcel consists of the North 1/2 of Lot 2 and all of Lot 3 in Block 6, Revised Map of Clearwater Beach, according to the plat thereof as recorded in Plat Book 11, page 5, of the Public Records of Pinellas County, Florida. The westwardly portion of the parcel is beach front property on a coastal barrier island. When the subdivision known as Clearwater Beach Subdivision was platted, fifteen lots were placed in Block 6. The three beachfront lots were smaller in area than the other twelve lots which were uniform in size and shape. However, when Lot 2 was divided and the northern half went to Lot 3 and the southern half to Lot 1, fourteen similar parcels were created in Block 6. Pierson purchased the parcel in question as unimproved property in Clearwater Beach Subdivision in 1962. This was nine years prior to the creation of Coastal Construction Control Lines by the Florida Legislature. The establishment of the Coastal Construction Control Line for Clearwater Beach in 1977, caused building setbacks previously established by the City of Clearwater for this unimproved parcel to become even further restricted. The Coastal Construction Control Line deleted the seaward 5/8ths of the Pierson property on which a building could have been erected previously on Clearwater Beach. Few parcels on this island were impacted as severely as Respondent Pierson's by the creation of the Coastal Construction Control Line because most of these parcels already contained permanent improvements. This parcel remained vacant until Respondent Pierson erected a duplex in 1986. This improvement was constructed according to the Land Development Code in effect at the time with the following exceptions: A variance of zero setback from the Coastal Construction Control Line and a 6 foot height variance to permit construction of a building 31 feet in height were granted by the Board. At the time the variances were granted, Respondent had the option to build either a duplex or a triplex at the site. Respondent seeks to expand this structure and to convert it into a triplex. In order to complete the planned expansion, a variance of 18 feet was requested from the Board to allow construction 7 feet from the Heilwood Street right-of-way. Currently, the Code requires a 25 feet setback from a street right-of-way. In addition, a variance of two feet from the eastward property boundary was requested to allow construction up to 6 feet from this side property line. Code provisions require an 8 feet setback. The existing structure is 6 feet from this side property line. The proposed addition to the current structure would continue with that eastern setback of 6 feet to the north, with an additional 25 feet of structure extending towards Heilwood Street. The expansion of the building to the west would terminate at the Coastal Construction Control Line. The property is zoned RM-20 with a land use plan designation as high density residential developed. The parcel is 95.12 feet in length and 87 feet in width, an area of 8,242.38 square feet. Ordinarily, a parcel with these dimensions is of sufficient size to build the structure proposed by Respondent Pierson without violating the street right-of-way setback and the side property line setback mandated by the Code. In this case, setback variances are required to complete the triplex because of the Coastal Construction Control Line's location on the parcel. In his application for variance, together with evidence presented, Respondent Pierson contends that the variance request arises from a condition unique to the property. The "unique" condition being that he did not build what he now wants to build on the property before the land use restrictions currently in place limited development of the parcel to such an extent. All other lot owners in the locale chose to develop their lots earlier than Respondent did, under less restrictive conditions. As a result, Respondent Pierson's duplex is setback further from Heilwood Street than the other buildings. Deciding when and what to build as a real property improvement is part of real estate ownership. Now that Respondent Pierson wants to change his previous development decision to reflect his current intended property use, he wants the same setback benefits as those acquired by other property owners on Heilwood Street who developed their parcels during past time periods with less restrictive setbacks. The Coastal Construction Control Line and the building setbacks have been placed on the property because of legitimate state and local concerns. A driveway was placed by Respondent Pierson in front of the duplex as it faces the water at the end of a dead-end street. The location of this driveway and the existing setback of the duplex from the road beyond all of the other property setbacks on this street, make this portion of Respondent's property a convenient area for traveling cars to turn around or to park while using the beach. Respondent Pierson contends that the variances he has requested will discourage the use of his land as a turnaround area, because it would be clear to those attempting to use his driveway that they were trespassing. His primary interest is to maintain his private interests in the property which should go beyond those currently enjoyed by the public. It is a desire for these rights that control his request for the variances as opposed to a desire to secure a greater financial return. The variances granted by the Board will not be materially detrimental or injurious to the Vasilaros property. The variances, however, could impair the present value of the Petitioner's property because the expansion of the Pierson duplex into a triplex would block a large amount of the Gulf view the Vasilaros building was designed to acquire. Petitioners' lot is in the same subdivision as the parcel owned by Respondent Pierson. Even before the Vasilaros lot was improved, the landowners knew or should have known that another parcel separated this lot from the beach. Respondent Pierson is under no statutory or contractual obligation to restrict his land use to allow Petitioners a view. The variances granted would result in a nonconforming building. All of the other structures in the immediate vicinity are nonconforming because these structures were built before current zoning regulations were adopted. Respondent Pierson seeks to blend with the neighborhood on the street and to have the same nonconforming advantages. Respondent Pierson could convert the current structure into a triplex. The apartments would be much smaller than the ones contemplated in the proposed plan. He seeks to create the third apartment for his own retirement home. On August 22, 1991, the Board granted a variance of 15 feet to permit construction of a triplex 10 feet from a street right-of-way and a second variance of 2 feet to allow construction up to 6 feet from the side property line to the south because the Board found that the applicant has substantially met all the standards for approval, as listed in Section 137.012(d) of the Land Development Code. More specifically, the Board found: a) The variances arise from a condition which is unique to the property and not caused by the applicant; b) The Coastal Construction Control Line restricts the use of two- thirds of the property, allowing only 19 percent use, c) The particular physical surroundings, shape, or topographical conditions involved and the strict application of the provisions of this Development Code would result in unnecessary hardship upon the applicant; and d) The variances granted are the minimum necessary to overcome the hardship created by the minimal use of the property subject to the requisite building permit being obtained within six months from the date of this public hearing.
Recommendation Accordingly, it is ORDERED that the variances granted by the Board be set aside and the application for the variances submitted be denied. DONE and ENTERED this 11th day of February, 1992, in Tallahassee, Leon County, Florida. COPIES FURNISHED: JOHN T BLAKELY ESQ PO BOX 1368 CLEARWATER FL 34617 GEORGE W GREER ESQ 600 CLEVELAND ST - STE 685 CLEARWATER FL 34616 MILES LANCE ESQ PO BOX 4748 CLEARWATER FL 34618 CINDIE GOUDEAU/CITY CLERK CITY OF CLEARWATER PO BOX 4748 CLEARWATER FL 34618 MICHAEL WRIGHT/CITY MANAGER CITY OF CLEARWATER 112 S OSCEOLA AVE CLEARWATER FL 34618 VERONICA E. DONNELLY 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 11th day of February, 1992.
