The Issue The issue is whether the Department of Environmental Protection (DEP) should revoke two consents of use issued to the Lays for construction of an exempt dock on Cayo Costa Island near Pelican Bay in Lee County.
Findings Of Fact In spring 2000, after contracting to purchase Lots 16 and 17 in the Cayo Costa Subdivision on Cayo Costa Island in Lee County, but before closing, the Lays contacted Peggy Grant, an environmental specialist in DEP's South District office in Fort Myers, Florida, to inquire whether it would be possible to construct a single-family dock on and over sovereign submerged land owned by the State of Florida in a lagoon west of Pelican Bay. The Lays testified without contradiction that, in making their inquiry, they showed Grant a boundary survey of the property. The boundary survey showed that there was a strip of road easement above the mean high water (MHW) line east of all of Lots 16 and 17 except for the extreme southeast corner of the lots. According to the Lays, again without direct contradiction, Grant told them that it would be possible to construct a dock into the lagoon because the lots were riparian to the lagoon at least at the southeast corner. It was not clear from the evidence whether Grant told the Lays that their dock could emanate from parts of their lots other than the southeast corner. The Lays subsequently closed on the property. On July 12, 2000, the Lays filed a consolidated application for exemption from the need to obtain an environmental resource permit and for consent of use for a 208 square-foot single-family dock emanating from the easternmost point of the boundary between Lots 16 and 17--a point from which the dock would have to traverse approximately 10-15 feet of land above MHW designated as roadway easement on the boundary survey. The Lays testified that the boundary survey was part of the application, but no boundary survey was contained in DEP's files, and it is found that the application did not include the boundary survey. It is found that the Lays, in testifying as they did, confused the application submission with the inquiry of Peggy Grant in spring 2000. There was no other information in the application indicating a road easement or the location of MHW. After the Lays filed their application, DEP located the site on an aerial produced by DEP's Geographic Information System and conducted a site visit. During this phase, DEP and the Lays focused on minimizing impact on mangroves bordering the lagoon. Negotiations ensued, and the Lays eventually agreed to submit additional information down-sizing their proposed dock to 58 square feet. The revised application was granted on August 21, 2000, under DEP File No. 36-0172390-001. The consent of use included General Consent Conditions. Among other things, they stated: "The Letter of Consent associated with these General Consent Conditions as well as these conditions themselves are subject to modification after five (5) years in order to reflect any applicable changes in statutes, rule or policies of the Board [of Trustees of the Internal Improvement Trust Fund] or its designated agent [DEP]." There were no other conditions or statements regarding modification or revocation of the consent of use. After obtaining their exemption and consent of use, the Lays realized they needed a larger dock. On September 11, 2000, they applied for an exemption and consent of use for a 114 square-foot single-family dock. The Lays concede that the boundary survey was not included in this application. This application was granted on October 14, 2000, under DEP File No. 36-0172390-002. It included the same General Consent Conditions as the first consent of use for the 58 square-foot dock and no other conditions or statements regarding modification or revocation of the consent of use. The Lays next approached Lee County for a permit for their dock. They showed Lee County their DEP exemption and consent of use and their boundary survey. On November 13, 2000, Lee County informed the Lays that the County permit could not be issued due to County setback requirements from the road easement shown on the boundary survey. The Lays then asked for consideration of a variance from the setback requirements or vacation of the road easement (which clearly could serve no purpose or be of any use as a road). At that point, the County referred the matter to the County Attorney's office for a legal opinion. On December 29, 2000, a memorandum opinion was prepared to the effect that the road easement, if implicitly offered for dedication by filing of the Second Revised Plat of Cayo Costa Subdivision in the early 1910's, was never accepted by the County. The County surmised that the road easement belonged to the State of Florida. For that reason, no setback requirements from a road easement applied, and the County permit could be issued. The Lays were informed of the County's legal opinion in early January 2001. They were told that the County informed DEP of the legal opinion and the boundary survey and that the Lays could expect to receive their County permit shortly. When DEP was informed about the County's legal opinion, DEP had a copy faxed to its Office of General Counsel in Tallahassee on January 12, 2001, along with a copy of the boundary survey. Upon review of the documentation, DEP came to the conclusion that the Lays were not riparian owners at the point of their proposed dock (at the southeast corner of Lot 16 and northeast corner of Lot 17) as a result of the road easement. On January 18, 2001, DEP gave the Lays notice of DEP's intent to revoke both consents of use (for the 58 and 114 square-foot docks). DEP takes the position not only that it did not have the benefit of the boundary survey in either application for exemption and consent of use but also that it accepted at face value the representations in the applications that the Lays were riparian owners where they proposed to build their dock. Actually, the Lays' applications did not contain explicit representations to riparian ownership. But they did state that the Lays owned "the property described," or had "legal authority to allow access to the property," and did list only "Florida Department of Parks and Recreation" as the only adjoining property owner. In addition, they implicitly represented entitlement to the exemptions and consent of use applied for.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP enter a final order: (1) disapproving DEP's notice dated January 18, 2001, of intent to revoke the Lays' two consents of use; and (2) dismissing this administrative proceeding in which DEP seeks revocation of its two consents of use. DONE AND ENTERED this 14th day of August, 2001, 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of August, 2001. COPIES FURNISHED: Francine M. Ffolkes, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000 John and Janet Lay 3901 Southwest 27th Court Cape Coral, Florida 33914 Kathy C. Carter, Agency Clerk Office of General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 David B. Struhs, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building Tallahassee, Florida 32399-3000
Findings Of Fact The Respondent, Appalachian Leasing Services, Inc., is the owner of a commercial vehicle which was operated on Interstate 75 and State Road 93 on April 21, 1992, when the vehicle stopped at the DOT weight station in White Springs, Florida. The Respondent is in the business of renting and leasing commercial trucks to customers who use the trucks for one or more trips for hauling freight in interstate and intrastate commerce. The truck in question was stopped at the weight station at 6:00 p.m. on April 21, 1992. The vehicle was registered in the State of West Virginia. The International Registration Plan (IRP) registration was examined by weight inspector (now officer) J.D. Franklin. That registration did not show Florida as an apportioned state. Inspector Franklin weighed the vehicle which produced a total weight of 77,380 pounds. The inspector used a statutory legal weight for lack of registration situations of 35,000 pounds which resulted in an excess or non-registered weight condition of 42,380 pounds. The inspector then issued a Load Report and Field Receipt No. 74023K assessing a penalty of $.05 per pound for that weight, which resulted in a fine of $2,119.00. Additionally, the inspector issued IRP Trip Permit No. 115944, assessing a fee of $30.00 for the trip permit which was necessary to render the vehicle legal to operate in Florida for that trip or for a maximum of ten (10) days. Thus, the total assessment for the penalty and the permit fee was $2,149.00. The Respondent company and its personnel, Ms. Eddy and Mr. Smith, who dealt with the registration of such vehicles, particularly Ms. Eddy, had been under the impression that the vehicle was bound from West Virginia to the west coast of the United States and the legally required registration was thus aboard the vehicle and it was correctly registered for that journey. In fact, unbeknownst to the Respondent owner of the truck, the lessee, for whom the trip was being made, had changed the truck's destination to Florida. In spite of that, the Respondent had already taken steps to register the vehicle with Florida apportionment by sending a cashier's check to the West Virginia Department of Transportation IRP office. Thus, the apportioned registration process for Florida was in progress at the time the subject stop was made and penalty assessed in Florida by officer Franklin. Florida has a policy, according to Ms. Elise Kennedy, the Executive Secretary to the Commercial Motor Vehicle Review Board of DOT, that if the foreign state where the vehicle is registered, or its tag agency, will take full responsibility for the vehicle actually being legally registered to go between that state and Florida, then a 100 percent refund of the penalty amount will be made by DOT. If the foreign state (here, West Virginia) asserts that the applicant company has done what it was supposed to do in seeking to obtain registration, but the registration simply has not been accomplished yet, then a 75 percent refund will be made. Both refund situations under Florida's policy, however, require that the foreign state supply written documentation of its position and the action taken by the company to obtain proper registration. If no written documentation from the foreign state is forthcoming, then DOT has a policy not to refund any of the penalty amount. Here, West Virginia would provide no written documentation because it had not received the cashier's check for the registration sent in by the Respondent. Mr. Jim Smith of the Respondent company established that, indeed, the cashier's check had been issued on April 16, 1992 and mailed to the West Virginia tag office on April 17, 1992. Mr. Smith contacted Ms. Elise Kennedy of DOT and explained that situation. She told him that if West Virginia would send a letter to the effect that the application was in process, then perhaps a partial refund could be made. West Virginia refused to do so, however, because they had never received the check. In fact, it had been lost in the mail or for unknown reasons to the Respondent, it had never gotten to the West Virginia authorities although the Respondent established that it was posted. Because of this problem, a new check was issued and dispatched to the West Virginia tag office on April 29, 1992. The Respondent is in possession of a "paid stamp" from West Virginia dated May 1, 1992 showing that all registration had been properly paid and effected. See exhibit 8 in evidence. Thus, through circumstances not caused by the Respondent, the West Virginia registration, including the IRP apportionment for Florida, was not timely effected at the point the vehicle was apprehended in Florida and the penalty assessed. Commercial vehicles registered in a member jurisdiction such as Florida or West Virginia are required to be apportioned registered for each member state the vehicle is operating in or the vehicle must be the subject of a valid temporary IRP permit to operate in the member state. Florida is a member of the IRP, as is West Virginia; therefore, both are jurisdictional states. The Respondent has a franchise from Paccar Leasing Services to lease Kenworth commercial vehicles (trucks) in the States of Kentucky, West Virginia, Ohio, and Virginia. The Respondent has been in the business of leasing and renting commercial vehicles for five years. Mr. Jim Smith, the manager of the Respondent company, indicated that the check was, indeed, sent to the West Virginia registration office to renew the subject vehicle's IRP registration for Florida; however, because West Virginia did not receive the check, it would not give a letter assuring Florida that registration was in process. There was apparently a misunderstanding between the Respondent and the lessee of the vehicle as to the vehicle's destination. Mr. Smith acknowledges that it is the responsibility of his leasing company to have current and valid registrations or permits to operate in various states before his company's vehicles are operated in those states by its lessees. Although a proper registration for Florida was obtained as soon as the mistake was discovered on April 21, 1992, the subject vehicle was not apportioned, registered or permitted for the State of Florida. This was shown to be an inadvertent mistake and not part of a regular pattern of conduct by the Respondent, however.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Department of Transportation finding that the fee and penalty totaling $2,149.00 was correctly assessed Appalachian Leasing Services, Inc. by the Department under the statutory provisions cited above but that in the exercise of its discretion and taking into account the extenuating circumstances established by the record evidence, 50 percent of the penalty portion be refunded to the Respondent. DONE AND ENTERED this 20th day of April, 1993, in Tallahassee, Florida. P. MICHAEL RUFF 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 20th day of April, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-4802 Petitioner's Proposed Findings of Fact 1-3. Accepted. Respondent's Proposed Findings of Fact Respondent submitted no proposed findings of fact. COPIES FURNISHED: Ben Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458 Attn: Eleanor F. Turner, M.S. 58 Thornton J. Williams, Esq. General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0458 Vernon L. Whittier, Jr., Esq. Department of Transportation 605 Suwannee Street Mail Station 58 Tallahassee, FL 32399-0458 Jim Smith, Manager Appalachian Leasing Services, Inc. 1285 Old Frankfort Pike Lexington, KY 40504
Findings Of Fact Earthmark operates the Corkscrew Regional Mitigation Bank under contract with the South Florida Water Management District (SFWMD). RCH is a company in the business of sand and limestone mining and was the applicant for Environmental Resource Permit No. 0266397-001. The Department is the state agency with the authority and duty to regulate mining activities in Florida. On August 20, 2008, the Department issued a Notice of Intent to Issue Environmental Resource Permit No. 0266397-001 (“Corkscrew Road Excavation” or “the mining permit”) to RCH to extract sand and limestone from a 1,365.5-acre tract of land owned by RCH in Lee County. On August 22, 2008, the Notice of Intent was published in the Fort Myers News-Press, a daily newspaper of general circulation in Lee County and nearby counties in the region. The newspaper notice included a statement that a person desiring to challenge the proposed action of the Department must file a petition for hearing with the Department within 21 days. No petition to challenge the proposed action was received by the Department within 21 days of publication of the newspaper notice. On November 25, 2008, 43 days after the deadline stated for the filing of a petition for hearing, Earthmark filed its Petition for Formal Administrative Hearing with the Department. On December 8, 2008, the Department referred the petition to DOAH. The Corkscrew Regional Mitigation Bank operated by Earthmark is located on 632.5 acres of land adjacent to the proposed sand and limestone mine. The mitigation bank was established in the 1990s and was originally operated by Mariner Properties Development, Inc. (Mariner). Negotiations began in 2006 between Earthmark Mitigation Services, Inc., of which Petitioner Earthmark was a subsidiary, to purchase from Mariner the contractual rights to operate the mitigation bank. The purchase agreement was executed in April 2007, and closed (all contingencies satisfied) in March 2008. Throughout the time that Mariner operated the mitigation bank, it regularly employed the consulting services of Kevin L. Erwin Consulting Ecologist, Inc. Erwin’s company has its offices in Fort Myers. Erwin has had a long career in environmental consulting and is knowledgeable about the Department’s environmental permitting procedures. In November 2007 and January 2008, Ervin was paid by Earthmark for consulting services. In May 2008, Earthmark and Erwin executed an agreement for consulting services. Erwin is the Qualified Mitigation Supervisor for the Corkscrew Regional Mitigation Bank. On March 28, 2007, Erwin attended a meeting in Fort Myers with SFWMD and Lee County employees, and other interested persons to discuss, among other topics, mining activity in Lee County. Erwin’s interests at the workshop were generalized. He was not attending exclusively because of his association with the Corkscrew Regional Mitigation Bank. He testified that he was representing the interests of “three or four dozen” clients. On the sign-in sheet for the workshop, under the heading “Organization,” Erwin wrote KLECE, the initials of his consulting company. Howard Hayes, Program Administrator in the Department’s Bureau of Mines and Minerals Regulation, was invited to attend the meeting and to make a presentation. Hayes testified that, during his presentation at the meeting, he mentioned that a permit application for the Corkscrew Road Excavation was pending at the Department. It was not made clear in Hayes’ testimony whether he included details sufficient to identify the location of the proposed Corkscrew Road Excavation. It is logical that Hayes would mention the pending permit application because mining activity in Lee County was a prominent subject of the workshop. Attached to Earthmark’s petition for hearing is an affidavit by Erwin that includes the following statement: On March 28, 2007, as a representative of Earthmark, I requested, from the Program Administrator of the FDEP Mines and Mineral Regulation, that I be notified of any actions concerning the proposed mine. Erwin subsequently prepared an amended affidavit that changed this statement to read as follows: On March 28, 2007, I, as a representative of the Mitigation Bank, requested from the Program Administrator of the FDEP Bureau of Mines and Minerals Regulation that I, on behalf of the Mitigation Bank, be notified of any agency action concerning the proposed corkscrew excavation project (application number 0266397-001). The clarity and specificity of Erwin’s request for notice, as described in his affidavit statements, with respect to the permit application of interest to Erwin and the identity of the mitigation bank as the entity for whom Erwin was making the request, was not borne out in Erwin’s testimony at the hearing. Erwin testified at the hearing that he does not recall hearing Hayes mention the proposed Corkscrew Road Excavation. Erwin testified that he asked Hayes to “keep us posted” about meetings, permit applications, and proposed agency actions regarding any mining proposals in Lee County. Erwin did not specifically request to be informed about the Corkscrew Road Excavation. Furthermore, although Erwin said that Hayes knew that Erwin was associated with the Corkscrew Regional Mitigation Bank, Erwin did not refer specifically to the mitigation bank when he asked Hayes to “keep us posted.” Erwin did not describe Hayes’ response to his oral request for notice about mining permits, except that Hayes’ response was understood by Erwin to be in the affirmative. Erwin did not say, for example, that Hayes told him, “Okay, I will notify you when the Department issues its Notice of Intent on the Corkscrew Road Excavation.” Erwin did not say that Hayes made a written note to himself regarding Erwin’s request for notice. Hayes remembers seeing and talking to Erwin at the meeting in Fort Myers. Hayes said that Erwin was one of several people that stood around him after Hayes’ presentation to ask Hayes questions or to discuss mining issues. However, Hayes does not recall being asked by Erwin to give him notice of mining permit applications or proposed Department actions on mining permits, in general, or the Corkscrew Road Excavation, in particular. It is Hayes’ practice to take notes at meetings and workshops and to include in his notes any request that he receives from a person to be notified of proposed agency action. Hayes took notes during the March 28, 2007 meeting, which were admitted into evidence, but Hayes made no note that Erwin (or anyone else) had requested notice of mining permit applications or proposed Department actions on mining permits. In the past, the Department’s Bureau of Mines and Minerals Regulation has accepted both written and oral requests for notification of proposed agency action. When such a request is made, a note is placed in the Department’s permit application file as a reminder to send the person who made the request a copy of the Notice of Intent. No note was placed in the permit application file for the Corkscrew Road Excavation. The preponderance of the evidence, taking into account the credibility of the witnesses, supports a finding that, whatever Erwin said to Hayes on March 28, 2007, his words were not effective to cause Hayes to understand that Erwin was making a formal request for notice of the Corkscrew Road Excavation that required Hayes to place a note in the permit application file and to send Erwin a copy of the Notice of Intent when it was issued. Earthmark claims that it first became aware of the Corkscrew Road Excavation when it was informed by Erwin in October 2008. Erwin testified that he first learned about the mining permit from a SFWMD employee and received a copy of the Notice of Intent on October 7, 2008. By that date, the 21-day deadline for filing a petition had already passed. From the March 2007 workshop in Fort Myers to October 2008, a period of almost 19 months, neither Erwin nor any employee or agent of Earthmark made an inquiry at the Department about proposed mining activity in Lee County. If Erwin knew about the proposed Corkscrew Road Excavation in March 2007, as indicated in his affidavits, the fact that he never inquired about the proposed mine is difficult to understand. Erwin said he made no inquiry because he trusted the Department to inform him. After being informed by Erwin about the Corkscrew Road Excavation on or about October 7, 2008, Earthmark waited 20 days to file with the Department a Request for Extension of Time to File a Petition for Formal Administrative Hearing. Earthmark requested an extension of 21 days, to November 17, 2008, which the Department granted. Earthmark then waited until November 17, 2008, to file a second request for an extension of time to file a petition. The Department denied the second request and ordered Earthmark to file its petition no later than November 25, 2008. Earthmark filed its petition on November 25, 2008, 39 days after it was informed about the mining permit.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is recommended that Earthmark’s Petition for Formal Administrative Hearing be DISMISSED as untimely. DONE AND ENTERED this 29th day of December, 2008, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 2008. COPIES FURNISHED: Ronald Woodrow Hoenstine, III, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Frank E. Matthews, Esquire Hopping, Green & Sams, P.A. 123 South Calhoun Street Post Office Box 6526 Tallahassee, Florida 32314-6526 Anthony J. Cotter, Esquire Gray Robinson, P.A. 301 East Pine Street, Suite 1400 Post Office Box 3068 Orlando, Florida 32802 Lea Crandall, Agency Clerk 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, Mail Station 35 Tallahassee, Florida 32399-3000 Tom Beason, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000
Findings Of Fact Based upon the evidence adduced at hearing, matters officially recognized, and the record in this case as a whole, the following Findings of Fact are made: The property that was the subject of Monroe County Building Permit No. 9110002601 (hereinafter referred to as the "Property") is an 18.85-acre parcel located on No Name Key in unincorporated Monroe County within the Florida Keys Area of Critical State Concern. Since 1985, the Property has been owned by Florida Keys Investment Properties, Inc. (hereinafter referred to as "FKIP"). The Property is the site of a borrow pit occupying 9.65 acres of the Property's surface area. Since the early 1970's, Petitioner, Rudolph Krause & Sons of Florida, Inc., (hereinafter also referred to as "Krause & Sons") has been operating the borrow pit and excavating fill from the Property for sale to the public pursuant to permits issued by the County. Both Krause & Sons and FKIP are owned by Rudolph Krause, his wife, Roseann Krause, and other members of the Krause family. Since 1975, Roseann Krause has assumed primary responsibility for obtaining from the County the permits necessary to perform the excavation work on the Property (hereinafter referred to as the "excavation permits"). Such excavation permits have been issued by the County each year from 1975 to 1991, with the exception of 1988. 1/ Each of these excavation permits contained language indicating that the permit was a renewal of at least one previously issued permit. No excavation permit other than the 1991 permit, Monroe County Building Permit No. 9110002601, has been appealed by the Department. Although the excavation work on the Property has been conducted with the approval, and to the apparent satisfaction, of the County, in 1985 the United States Army Corps of Engineers filed a complaint in federal district court against Mr. and Mrs. Krause, FKIP and Krause & Sons alleging that certain work had been done in the wetlands portion of the Property without the requisite dredge and fill permit and therefore in violation of federal law. Neither the County nor the Department were parties to this federal district court proceeding, although the County, at least, was aware of the proceeding. In September of 1985, the federal district court entered a final consent judgement, the first eight numbered paragraphs of which provided as follows: This Court has jurisdiction of the subject matter of this action and of the parties thereto. The provisions of this Final Judgment shall be binding upon the Defendants; their successors and assigns; and all persons, firms and corporations in active concert or privity with the Defendants who have actual or constructive notice of this Judgment by personal service or otherwise. All references to geographical locations with respect to this dredge and fill/ restoration on No Name Key shall be directed to the attached sketch entitled "Florida Keys Investment Properties, Inc. Restoration Plan." (Exhibit A). Exhibit A is merely an enlarged view of a portion of Exhibit B, which is a jurisdictional determination by Curtis Kruer, dated June 3, 1983. Within 18 months of entry of this Final (Consent) Judgment, the Defendants shall remove all fill material located in the area indicated on Exhibit A (the south side and southern portion of east side of the existing borrow pit) down to the adjacent wetland elevation. All spoil material so removed will be placed on upland areas on site or at the Defendants' option, may be trucked off site. Spoil material may be stockpiled in areas designated as wetlands immediately adjacent to the areas of the borrow pit to be excavated. Defendants shall notify the Big Pine Key regulatory Field Office of the United States Army Corps of Engineers upon commencement and completion of this phase of the earthmoving work. Within three years of the entry of this Final (Consent) Judgment, the Defendants shall be allowed to enlarge the existing borrow pit as shown on Exhibit A to a maximum depth of -60 feet MSL. Within 120 days from completion of the excavation work described in paragraph 5 above or within 40 months after entry of this decree, whichever date comes first, the Defendants, shall complete the creation of the wetland shelf area on the eastern and western sides of the borrow pit (excluding that portion of the pit to be excavated in the uplands, i.e. Section "C" on Exhibit B) by grading the area down to the adjacent natural wetland elevations as shown on Exhibit A. All spoil material will be placed on an upland site or, at Defendants' option, may be temporarily stored on site, and then trucked off site within the period set forth in the first sentence of this paragraph. Defendants agree to conduct the above- described restoration measures in an environmentally-sensitive manner and shall use their best efforts to avoid damage to adjacent wetlands or water areas (other than the borrow pit) during this process. In addition, a low fill berm 6-feet wide and 2- feet high shall be constructed and remain around the immediate edge of the pit as shown in Exhibit A at all times during excavation of the pit. This berm shall be extended around the immediate edge of the pit's final configuration. This allows Defendants to continue excavation of the pit in a northerly direction into the existing uplands shown as "C" on Exhibit B. Defendants are hereby permanently enjoined from conducting any further dredging, filling or construction activities at No Name Key, adjacent to Big Spanish Channel in any wetland or water area, above or below the mean high water line, without the prior issuance of a Department of Army permit. The only exception to this provision is the work described herein. Only that portion of Defendants' property depicted as Section "C" on attached "Sketch of Jurisdictional Determination" (Exhibit "B" hereto) is agreed to be uplands, not subject to Army Corps of Engineers jurisdiction. Mrs. Krause had submitted an application for a renewal excavation permit in February of 1985, prior to the entry of the federal district court's final consent judgment. The application, as originally submitted, did not specify the total amount of fill Krause & Sons expected to excavate during the year. In a letter dated March 12, 1985, that she sent to the County's Building Director, Mrs. Krause acknowledged that she did not include this information in the application. The body of the letter read as follows: I applied for renewal of our excavation (borrow pit on No Name) permit in February. I wish to keep current this permit but at the present time I cannot supply you with any additional information since it is in litigation with the Corps of Engineers. As soon as this litigation is resolved, I will supply you with the needed information as to width, length and depth to be dug as well as total amount of cubic yards. I do not wish this permit to lapse in any way and therefore request that you issue a renewal based upon this information at this time. If you have any questions regarding this information, please do not hesitate to call me. Thank you for your attention to this matter. I certainly appreciate your understanding. The following month, Mrs. Krause supplemented the application she had submitted in February by providing the County with two sketches of the Property which were similar, but not identical, to the one appended to the final consent judgment and identified as Exhibit B. On one of these sketches, she had made the following handwritten notations: "proposed 25,000 yds. 25'x750'x35,'" which notation appeared next to the southwestern edge of the borrow pit; and "uplands to be dug," which notation appeared in the same area on the northerly portion of the Property that is depicted in the final consent judgment's Exhibit B as Section "C" (hereinafter referred to as the "Uplands"). It is apparent from a review of the two sketches that the "proposed 25,000 yds" were to come from an area on the western side of the pit and not from the Uplands. On April 29, 1985, the County issued the excavation permit (Building Permit No. 13289A) for which Mrs. Krause had applied on behalf of Krause & Sons. In issuing this permit, the County used a printed building permit form which contained the following language: THIS PERMIT SHALL ALLOW WORK (AS DEFINED UNDER WORK DESCRIPTION BELOW AND AS SHOWN AND SPECIFIED ON PLANS SUBMITTED AND ON FILE IN THE BUILDING DEPARTMENT OFFICES) TO BE PERFORMED ON THE FOLLOWING PROPERTY BY THE OWNER LISTED: Typed in under "WORK DESCRIPTION" on the form was the following: "Renewal of Excavation Permit, Supplement to 11332A, 10203A, 9543A, 7791A, 6498A, 4884A, 3492A." Recipients of permits issued on these printed building permit forms are also furnished "permit cards" that they are instructed to post in an appropriate location at the work site. Each "permit card" contains the following advisement: The person accepting this permit shall conform to the terms of the application on file in the office of the Zoning Department of Monroe County and construction shall conform to the requirements of the Monroe County Codes. In or around early 1986, Krause & Sons hired E.I. DuPont De Nemours (hereinafter referred to as "DuPont") to blast, as a preliminary step in the resource extraction process, portions of the Property that had not yet been excavated (hereinafter referred to as the "Unexcavated Areas"), including the entire uplands area referred to as Section "C" in the federal district court's final consent judgment. Thereafter, DuPont, on behalf of Krause & Sons, applied to the County for a permit authorizing such blasting. The requested permit (Building Permit No. 14835A) was issued on February 20, 1986. In issuing Building Permit No. 14835A, the County used the same printed building permit form that it had used in issuing the 1985 excavation permit referenced in paragraph 15 above. It also provided an appropriate "permit card" for posting. Typed in under "WORK DESCRIPTION" on Building Permit No. 14835A was simply the following: "Blasters and Users Permit." No further indication was given as to the nature or scope of the work authorized to be performed. Following the issuance of Building Permit No. 14835A on February 26, 1986, Dupont began its blasting of the Unexcavated Areas. The work was completed later that year. Mr. Krause was on site during the blasting and provided assistance to DuPont. In April of 1986, before the completion of the blasting, Mrs. Krause, on behalf of Krause & Sons, sought to renew Building Permit No. 13289A, the excavation permit she had obtained for the Property the previous year. The application she submitted indicated that Krause & Sons proposed to "[e]xcavate approx. 25,000 cu yds." Along with the application, she submitted a copy of the sketch of the Property containing her handwritten notations that she had sent to the County to supplement the previous year's application. The requested permit (Building Permit No. 15276A) was issued on April 30, 1986. In issuing Building Permit No. 15276A, the County used the same printed building permit form that it had used in issuing the blasting permit and the previous year's excavation permit. In addition, it provided an appropriate "permit card" for posting. Typed in under "WORK DESCRIPTION" on Building Permit No. 15276A was the following: "Renewal of Excavation Permit- Approximately 25,000 CY FILL Supplement to 13289A, 11332A, 10203A, 9543A, 7791A, 6498A, 4884A, 3492A." On September 15, 1986, after DuPont had completed its blasting, the County's current land development regulations (hereinafter referred to as the "Regulations") became effective. Section 9.5-231(a) of the Regulations provides that "[n]o structure or land in Monroe County shall hereafter be developed, used or occupied unless expressly authorized in a land use district in this division." Under the Regulations, the Property is in a "Native" or "NA" land use district. 2/ Section 9.5-239 of the Regulations lists the uses that are allowed in "NA" land use districts. "Resource extraction," which is defined in Section 9.5-4 of the Regulations as "the dredging, digging, extraction, mining and quarrying of limerock, sand, gravel or minerals for commercial purposes," is not among the uses listed. "Resource extraction" is permitted as a major conditional use in Industrial land use districts under Section 9.5-249(c)(2) of the Regulations, however. Sections 9.5-431, 9.5-432 and 9.5-433 of the Regulations specifically address the subject of resource extraction. They provide as follows: Section 9.5-431. General. All resource extraction activities in the county shall comply with the provision of this division in order to ensure that such activities do not adversely affect long-term ecological values in the county and that abandoned extraction sites will be restored. Section 9.5-432. Resource extraction standards. All resource extraction activities shall: Be designed so that no area of excavation, storage area for equipment or machinery or other structure or facility is closer than: Two hundred (200) feet to any property line; and Five hundred (500) feet to any residential nonresource extraction related commercial use in existence on the date the permit is issued; Be located on a parcel of at least twenty (20) acres; Be fenced or blocked so as to prevent unauthorized entry into the resource extraction operation through access roads; Will not involve excavation below sixty feet; Will not cause the introduction of saline aquifer waters into fresh water aquifers; Will involve restoration of disturbed areas at the completion of the resource extraction operation in accordance with section 9.5-433, and the implementation of the restoration plan is secured by a surety bond or other guarantee of performance approved by the county; and Operate solely between the hours of 8:00 a.m. and 5:00 p.m. Section 9.5-433. Restoration standards. All parcels of land which are used for resource extraction operations shall be restored as follows: Restoration shall be a continuous process, and each portion of the parcel shall be restored within two (2) years after resource extraction is completed for that portion; Topsoil shall be restored in approximately the same quality and quantity as existed at the time the resource extraction operation was initiated; Any body of water created by the resource extraction operation shall have a graded shoreline with a slope not to exceed one (1) foot vertical to five feet horizontal; All equipment, machinery and structures, except for structures that are usable for recreational purposes or any other use authorized in the area, shall be removed within six (6) months after the resource extraction operation is terminated and restoration is completed; and Reclamation shall to the maximum extent practical result in the reestablishment of the vegetation association which existed prior to the extraction activity. A "nonconforming use," as that term is used in the Regulations, is defined in Section 9.5-4 thereof as "any use lawfully being made of any land, buildings or structure, other than a sign, on the effective date of this chapter or any amendment thereto, rendering such use nonconforming, which does not comply with all of the regulations of this chapter, or any amendment thereto." Section 9.5-143(a) of the Regulations provides that "[n]onconforming uses of land or structures may continue in accordance with the provisions of this section." Among "the provisions of this section" are the following found in subsection (c) thereof: Extensions: Nonconforming uses shall not be extended. This prohibition shall be construed so as to prevent: Enlargement of nonconforming uses by additions to the structure in which the nonconforming uses are located; or Occupancy of additional lands. According to Section 9.5-141 of the Regulations, the purpose of the provisions relating to "nonconforming uses" is to regulate and limit the continued existence of uses and structures established prior to the enactment of this chapter. Many nonconformities may continue, but the provisions of this article are designed to curtail substantial investment in nonconformities and to bring about their eventual elimination in order to preserve the integrity of this chapter. Section 9.5-113 of the Regulations prescribes the procedure to be followed in the "[r]eview of building permit applications." Subsection (b) of this section provides as follows: If the application and the construction plans and environmental analysis demonstrates compliance with all environmental standards of this chapter and technical, health and safety requirements of the County Code, a site preparation permit shall be issued within thirty (30) days of receipt of a complete application and upon receipt of an improvement guarantee, if a subdivision is involved, under the provisions of section 9.5-85 or a performance bond, in an amount acceptable to the director of planning to ensure completion of the development, if a subdivision is not involved. Section 9.5-115 of the Regulations is entitled "Expiration of building permit." Subsections (a) through (d) of this section provide as follows: A building permit shall automatically expire and become null and void if work authorized by such permit is not commenced within sixty (60) days from the effective date of the permit, or if such work, when commenced, is suspended or abandoned at any time for a period of one hundred twenty (120) consecutive days. The effective date of a building permit authorizing land clearing or which authorizes development as defined in chapter 380, Florida Statutes, shall be as provided in rule 9J-1.03, Florida Administrative Code, as long as the parcel is located within an area of critical state concern. If the work covered by the permit has not commenced or has commenced and been suspended or abandoned, the building official may extend such permit for a single period of sixty (60) days from the date of extension is [sic] made prior to the expiration date of the initial permit. If the work covered by the permit has commenced, is in progress, but has not been completed and in the opinion of the building official and the director of planning, is being carried on progressively in a substantial manner, the permit shall remain in effect until completion of the job. If work has commenced and the permit becomes null and void or expires because of lack of progress or abandonment, a new permit covering the proposed construction shall be obtained before proceeding with the work under regulations in effect at the time the new permit is issued. Section 9.5-115 of the Regulations makes no reference to "renewal" permits. The first excavation permit Krause & Sons received after the effective date of the Regulations (Building Permit No. 17487A) was issued on May 1, 1987. In issuing Building Permit No. 17487A, the County used the same printed building permit form that it had used in issuing the 1986 blasting permit and the 1985 and 1986 excavation permits. In addition, it provided an appropriate "permit card" for posting. Typed in under "WORK DESCRIPTION" on Building Permit No. 17487A was the following: "Excavation Pit- RENEWAL- Supplement to Permit #13289A, 11332A, 10203A, 9543A, 7791A, 6498A, 4884A, 3492A." Typed in under "REMARKS" on Building Permit No. 17487A was the following: APPLICANT MUST APPLY FOR A BLASTING PERMIT IF THIS ACTIVITY IS REQUIRED Issued under the condition that restoration required from Army Corps be completed. Biologist recommends approval as per Monroe County Code. On April 26, 1988, Mrs. Krause, on behalf of Krause & Sons, filed an application to renew Building Permit No. 17487A. Accompanying the application was a sketch of the Property. On the sketch, Mrs. Krause had drawn an arrow pointing to the southern portion of the Uplands. Above the arrow she had written, "proposed to dig approx 19,444 cu yds," and in the area to which the arrow was pointing, she had written, "Approx. 19444 cu yds to be dug." There was a delay in the issuance of the requested permit. On April 4, 1989, the permit (Building Permit No. 8910000731) was finally issued. An application to renew Building Permit No. 8910000731 was filed on April 3, 1990. The requested permit (Building Permit No. 9010000645) was issued on June 21, 1990. The effective date of the permit was August 28, 1990. An application to renew Building Permit No. 9010000645 was filed on April 16, 1991. The requested permit (Building Permit No. 9110002601 and hereinafter also referred to as the "Permit") was issued on July 11, 1991. In the "Remarks" section of the Permit the following was typed: RENEWAL OF PERMIT 90-10000645, 89-10000731 AND 17487A. PLANNING APPROVAL 6-25-91 AG BIOLOGIST RECOMMENDS APPROVAL AS PER MONROE COUNTY CODE. THIS PERMIT DOES NOT AUTHORIZE BLASTING. A SEPARATE PERMIT IS REQUIRED. Neither the application nor the Permit specified the amount of fill to be excavated or where on the Property the excavation was to occur. There was only one area of the Property however, where there was further excavation to be done. This area was the Uplands. Krause & Sons and FKIP had hoped, pursuant to the authorization provided by the permit, to merely remove the already blasted fill material that remained there. 3/ No further blasting was needed. A copy of the Permit was hand delivered to the Department's Key West field office (hereinafter referred to as the "field office") on July 12, 1991. In charge of the field office was Kenneth Metcalf, a Community Program Administrator with the Department. Under his supervision were two planners, a biologist and a secretary. The duties of the field office staff included, but was not limited to, reviewing and commenting upon proposed development activity within the office's territorial jurisdiction, which covered not only unincorporated Monroe County, but the municipalities of Key West, Key Colony Beach and Layton as well. Approximately 25 percent of the staff's time was devoted to the review of building permits issued by Monroe County and the cities of Key West, Key Colony Beach and Layton. The staff reviewed over 10,000 permits a year, of which about 30 to 40 were ultimately appealed by the Department. Given the 45-day time limit for filing an appeal, the staff had approximately four weeks from the date of issuance within which to review each permit and submit its written recommendation and report to Department headquarters in Tallahassee. In conducting its permit review, the staff examined the materials it received from the local government, which typically included the permit itself, the permit application and accompanying site plan, to ascertain if the development authorized by the permit complied with the local government's land development regulations. 4/ Because of time constraints, the staff did not make a practice of contacting applicants and asking them to supply missing information that the staff thought was necessary to demonstrate compliance, although there were occasions that it did request such information from the local government that had issued the permit. In the staff's opinion, the information that it had been provided in connection with Building Permit No. 9110002601 was insufficient to demonstrate that the Permit complied with Monroe County's land development regulations. Along with a copy of the Permit, the staff had an aerial photograph of the Property, taken in 1985, upon which to base its opinion regarding the Permit's compliance with the Regulations. That resource extraction activity had taken place on the Property was apparent from an examination of the photograph. The staff had not been furnished with the permit application, with a site plan of the Property, nor with copies of any other County issued-permits concerning the Property. It had requested these materials from the County, but the County had not provided them. Consistent with its standard operating procedure, the staff had made no effort to obtain any additional information from the Krauses or FKIP. Neither the Krauses nor FKIP provided, or offered to provide, the staff with additional information. As a result, at the time it completed its review of the Permit and rendered its opinion on the Permit's compliance with the Regulations, the staff was unaware of the existence of Building Permit No. 14835A, the "Blasters and Users Permit" that DuPont, on behalf of Krause & Sons, had obtained in February of 1986, and which authorized the blasting of the entire Uplands. Given the information that the staff had in its possession, which reflected that the Property was located in a land use district in which resource extraction activity was not allowed under the Regulations, the staff's conclusion that the Permit was not in compliance with the Regulations was a reasonable one. The Permit did not indicate on its face that the resource extraction activity it authorized qualified as a "nonconforming use" under the provisions of Section 9-5.143 of the Regulations, nor was it apparent from a reading of the Permit, in conjunction with an examination of the 1985 aerial photograph that the staff also had in its possession, that the permitted activity so qualified. Adopting the field staff's recommendation, the Department, on August 26, 1991, filed with the Florida Land and Water Adjudicatory Commission written notice of its appeal of Building Permit No. 9110002601. The Department's notice of appeal was accompanied by a petition in which the Department alleged that the Permit had been issued contrary to the provisions of the County's land development regulations in that it authorized resource extraction activity in a land use district in which such activity, under the Regulations, was not allowed. According to the petition, "[t]here [were] no conditions under which [such activity could] be authorized consistent with the Monroe County land development regulations absent amending the land use district maps [to change the Property's land use designation from NA] to Industrial use and proceeding through the conditional use process," during which the applicability of the resource extraction and restoration standards of Sections 9.5-432 and 9.5-433 of the Regulations would need to be addressed. On November 27, 1991, approximately three months after the Department filed its appeal, the field office staff, in response to a second, post-appeal request it had made, received from the County's assistant building official six index cards reflecting historical permitting activity relating to the Property. None of these cards made reference to Building Permit No. 14835A, the February, 1986, "Blasters and Users Permit." The Department first learned about the existence of this "Blasters and Users Permit" during discussions with the Krauses sometime after it had filed its notice of appeal of Building Permit No. 9110002601 and the accompanying petition. 5/ On December 18, 1991, the Department's notice of appeal and petition were referred to the Division of Administrative Hearings for the assignment of a Hearing Officer. A final evidentiary hearing on the Department's appeal was held on October 13, 1992. Three witnesses, Mr. Krause, Mrs. Krause, and Metcalf, testified at the hearing. The Krauses testified regarding the extent of the blasting activity authorized by Building Permit No. 14835A, a copy of which was offered and received into evidence. A total of 28 other exhibits were admitted into evidence. Following the conclusion of the hearing, the parties filed post- hearing submittals. In their post-hearing submittal, the Krauses did not dispute that resource extraction, the activity authorized by Building Permit No. 9110002601, is a use that, under the Regulations, that is not expressly allowed in the NA land use district in which the Property is located. They argued, however, that the resource extraction activity they were seeking to undertake pursuant to Building Permit No. 9110002601, to wit: the completion of the excavation of the Uplands, should be permitted as a "nonconforming use" under the provisions of Section 9-5.143 of the Regulations, regardless of whether such activity would be allowable under the Regulations' other provisions. The Hearing Officer, in his Recommended Order, agreed with the Krauses, reasoning as follows: A "nonconforming use" that may continue in accordance with the provisions of Section 9-5.143 is "any use lawfully being made of any land, buildings or structure, other than a sign, on the effective date of [Chapter 9.5 of the Monroe County Code], rendering such use nonconforming, which does not comply with all of the regulations of [Chapter 9.5]." September 15, 1986, was the effective date of the Regulations. By that date, the excavation of the Uplands had already begun. The entire area had been blasted as the first step in the excavation process that Respondents now desire to complete. The Department acknowledges in its proposed recommended order that such blasting occurred, but contends that it was not authorized by the blasting permit (Building Permit No. 14835A) that had been obtained prior to the blasting. According to the Department, the "blasting permit cannot be construed as authorizing that extent of blasting but is most reasonably viewed as authorizing blasting [only] of the wetlands on the eastern and western sides of the pit." Having carefully considered the evidence on the matter, including, most significantly, the copy of Building Permit No. 14835A and the accompanying "permit card" which were offered and received into evidence as Respondents' Exhibit 6, as well as the testimony of Mr. and Mrs. Krause, the Hearing Officer has reached a contrary conclusion. The documents that comprise Respondents' Exhibit 6 do not indicate, on their face, that the blasting authorized by the County was to be restricted to any particular area of the Property, much less "the wetlands on the eastern and western sides of the pit;" however, they each contain language suggesting that the extent of the authorization given by the blasting permit may not be determined without reference to the permit application and any plans submitted in connection therewith. No such application materials or copies thereof were in the County's files at the time of hearing, nor were they otherwise readily available to Respondents, who had never been given copies of these application materials to keep for their records. Under such circumstances, it was permissible for Respondents to supplement Respondents' Exhibit 6 with parol evidence to establish the extent of the land area which was subject to the provisions of the blasting permit. See Nahmod v. Nelson, 3 So.2d 162, 164-65 (Fla. 1941)("[u]nquestionably secondary evidence is admissible to prove the contents of a lost writing where proper predicate is laid and where such evidence is otherwise competent and admissible"). The parol evidence offered by Respondents was the testimony of Mr. and Mrs. Krause. The Krauses testified that permission was sought and obtained to blast the entire Uplands. Their testimony on this matter was unrebutted. While neither Mr. or Mrs. Krause actually prepared or submitted the application to gain such permission, given their respective positions with the entity for which the blasting work was done, it appears likely, and therefore the Hearing Officer has found in the absence of any persuasive evidence to the contrary, that their testimony was based upon firsthand knowledge and not speculation or what someone else had told them. In view of the foregoing, the Hearing Officer has credited the Krauses' testimony and taken it into consideration in determining that the blasting of the entire Uplands was authorized by Building Permit No. 14835A. The resource extraction activity that Building Permit No. 9110002601 authorizes, therefore, will not involve the use of any land that was not lawfully being used for that purpose at the time of the effective date of the Regulations. Such activity thus qualifies as a "nonconforming use," within the meaning of Section 9.5-143 of the Regulations, which the Commission should allow to continue, notwithstanding that the Property is in a land use district in which such activity, but for its qualification as a "nonconforming use," would be prohibited. The Hearing Officer noted that, "[i]n engaging in such continued activity, Respondents must comply with the applicable provisions of Sections 9.5-432 (resource extraction standards) and 9.5-433 (restoration standards) of the Regulations [both of which were referenced in the Department's appeal petition], but only to the extent that these provisions do not operate to effectively prevent them from excavating any land that, on the effective date of the Regulations, was being lawfully used for resource extraction activity." The Hearing Officer recommended that, "[i]n the interest of clarity and to avoid any uncertainty regarding the matter, the final order issued by the Florida Land and Water Adjudicatory Commission . . . make specific reference to these requirements [the Krauses] must meet, notwithstanding that [they] would still be required to comply with these requirements even if, like Building Permit No. 9110002601, the order did not contain any such specific reference." On March 11, 1993, the Florida Land and Water Adjudicatory Commission issued a final order adopting the Hearing Officer's Recommended Order. Petitioner was represented by counsel in the appeal proceeding that culminated in the issuance of this final order and it incurred attorney's fees and costs as a result of such representation that it is obligated to pay.
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
The Issue The issues in this permit enforcement proceeding are whether Respondent violated the conditions of a general use permit, authorizing use of a designated portion of the Department of Transportation's right-of-way property, and, if so, what remedy is appropriate and authorized?
Findings Of Fact Ronald Puleo owns property that fronts on U.S. Highway 41, South Tamiami Trail, in Sarasota, Florida. He purchased the property in 1989 and has used the property to operate a business called Sarasota Auto Rentals. A commercial building on Mr. Puleo's property faces east, toward Tamiami Trail. The building houses not only Mr. Puleo's auto rental business, but also several other commercial tenants who operate businesses that serve the public. According to signs in front of the building, these tenants have included a window-tinting business and Scoot, Inc., apparently involving the sale and/or rental of motor scooters. Pictures in evidence of Mr. Puleo's property and the vicinity, taken during the relevant time of this controversy,3/ portray a fairly busy, established commercial area, as witnesses confirmed. The property to the south of Mr. Puleo's property is occupied by Enterprise, another rental car business. Further south, there is a solid line of establishment after establishment, a mixture of buildings, signs, and parking areas as far as the eye can see. To the north of Mr. Puleo's property, there is a large car dealership with visible logos for Volkswagen and Audi. Tamiami Trail is a major north-south roadway through Sarasota. In front of Mr. Puleo's property, the road is six-laned, with three lanes in each direction separated by a median. Outside of the solid white lines marking the road's outer edge, the area adjacent to the roadway is finished with concrete gutters with intermittent drainage grills, raised curbs, and then a sidewalk flanked on either side by grass. At the interspersed access connections that allow ingress and egress to and from the various business properties, the curb and sidewalk flatten to street level, and there is pavement instead of grass. Standing on the grassy strip on the interior side (i.e., the side farther from the street), there is a row of intermittent tall poles with street lights. After the interior grassy strip (moving away from the street), there appears to be mostly asphalt paving in front of the businesses. On Mr. Puleo's property, in particular, there is one access connection near the north end of the property. To the north of the access connection, a single street light pole stands on the interior grassy patch to the west of the sidewalk. On the south side of the access connection, there is a small grassy strip to the right of the sidewalk. The rest of the space in front of Mr. Puleo's property is paved with asphalt. Directly in front of Mr. Puleo's building, the asphalt is painted with white stripes, designating parking spots perpendicular to the building. The parking spots have concrete parking bumpers at the front edges, which are very close to the front of the building itself; perhaps there is enough room for a person to walk in front of a parked vehicle to go into the building, but no more than that. In addition to the designated parking spots, other parts of the asphalt pavement in front of Mr. Puleo's building are used, and historically have been used, for parking vehicles. Running east to west along the north property line, from the edge of the interior grassy patch, Mr. Puleo uses the pavement to park a row of rental cars. These cars are backed in either due south- to-north, or diagonally southeast-to-northwest, so that the car fronts face south (towards the asphalt in front of Mr. Puleo's property) or southeast (angled towards Tamiami Trail). These parked cars along the north property edge often have small "Rent Me" signs in the front windows. In addition, historically, Mr. Puleo, his customers, his tenants, his tenants' customers, and sometimes customers or visitors of nearby businesses have parked vehicles along the east edge of the asphalt pavement in front of Mr. Puleo's building and along the south edge of the paved area in front of the building. Historically, Mr. Puleo and others also have parked vehicles on an area to the south of Mr. Puleo's southern property line, in front of what is now the Enterprise rental car business, where there used to be asphalt pavement to the west of the sidewalk and interior grassy strip. Lance Grace has been the operations engineer for the Department's Sarasota Operations Center since 2003. Mr. Grace first became familiar with Mr. Puleo's property and the property to the south in 2004, when Mr. Puleo's neighbor to the south was an exotic car dealer. According to Mr. Grace, there was competition between the two neighboring businesses to park on the asphalt-paved area that was to the south of Mr. Puleo's property line, and Mr. Grace was asked to get involved. Mr. Grace did not identify by whom he was asked to get involved, but the impression given was that it may have been the exotic car dealer. Mr. Grace testified that the exotic car dealer did not like Mr. Puleo parking on the asphalt to the south of his property line, because it blocked the view to the exotic car dealer's property. At that time, the Department asserted the right to all of the Tamiami Trail frontage as its right-of-way westward from the roadway, past the sidewalk and grassy strips, all the way to a line that runs north-south, very close to Mr. Puleo's building--so close that the line actually bisects the designated parking spaces in front of Mr. Puleo's building so that half of the parking spaces are within the right-of-way. This right-of- way line is 40 feet to the west of the interior grassy strip. Therefore, the asphalt-paved area in front of the exotic car dealer's business was included in the Department's right-of-way. Mr. Grace said that when he was asked to get involved in 2004, he tried to let the property owners work it out among themselves, although he did tell them that "all this parking within the right-of-way is illegal" and that if they continued to have issues, then he would have to get involved to "deal with it from a statutory point of view." At the hearing, Mr. Grace explained: "There is a Section 337 [in the Florida Statutes] that deals with unauthorized use within the right-of-way, and it is specifically written to prevent the parking and display of items within the right-of-way for safety and efficient use of the roadway." Mr. Grace testified that it was, and is, the Department's position based on the statute to which he alluded that parking is not allowed on its right-of-way. Nonetheless, the parking continued on the paved area to the south of Mr. Puleo's property in front of the neighboring business. Mr. Grace testified that at some point, when there continued to be issues with parking there, the decision was made to have the asphalt removed and replaced with grass to discourage parking in that portion of the right-of-way. Mr. Grace's recollection was that a portion of that asphalt "may have" been removed by the Department, but that at least part of the asphalt on the right-of-way was removed by Mr. Puleo's neighbor, who did not like the parked vehicles blocking the view of his business. The pictures in evidence show the rectangular area south of Mr. Puleo's property where grass was placed to discourage parking in response to the dispute between Mr. Puleo and his neighbor to the south. However, in front of Mr. Puleo's property and elsewhere on both sides of Tamiami Trail, areas claimed as Department right-of-way remain paved between the interior grassy strips and the fronts of buildings. Mr. Puleo credibly testified that historically, as long as he has owned the property, persons working at or visiting other establishments in the vicinity on both sides of Tamiami Trail have used the right-of-way similarly by parking vehicles on the area between the interior grassy strips next to the sidewalks and their buildings. Mr. Puleo's testimony was further corroborated by the pictures in evidence. For example, the Department offered in evidence an aerial picture with the legend "Sarasota County Property Look- Up," on which tan lines are superimposed to demonstrate the Department's right-of-way boundary. This aerial picture (Petitioner's Exhibit 2) shows the lineup of cars parked along the northern boundary of Mr. Puleo's property described above. The same aerial view also shows that other businesses in the vicinity use Department right-of-way property for parking. The property in the bottom left corner of the picture, on the other side of Tamiami Trail and a little to the south of Mr. Puleo's property, illustrates this usage. Just inside of the sidewalk and interior grassy strip, two cars are diagonally parked on a paved area facing Tamiami Trail. According to the tan right-of- way line, these two cars and the asphalt paving on which they are parked are wholly on right-of-way property. On the same parcel, the right-of-way line bisects a number of vehicles parked on paved areas that appear to be designated parking spaces, much like the right-of-way line in front of Mr. Puleo's building bisects his parking spaces. The aerial photo also shows that on the property two parcels to the south of Mr. Puleo's property, several vehicles are parked perpendicular to the roadway with the front bumpers very near the sidewalk; one of the cars is so close that the edge of its front bumper might even protrude a bit over the edge of the sidewalk. These cars are wholly within the right-of-way. Other pictures in evidence present similar images, such as the color photos that are part of the 2009 permit, which were taken by Mr. Rosenstein. Mr. Grace acknowledged that Mr. Puleo's historic use of the right-of-way was not unique to his property, but rather, was fairly common in the general area, as shown in the pictures. According to Mr. Grace, "the first real major effort" to try to prevent parking within the right-of-way in this vicinity occurred in 2005. This "major effort" involved him sending "several letters" to Mr. Puleo and several other businesses in the vicinity advising that "selling of items and parking in the right-of-way" was illegal. Mr. Grace noted that Mr. Puleo has not ever stopped parking vehicles in the right-of-way in front of his property, despite the 2005 letter described by Mr. Grace. The pictures in evidence (bearing dates in and after 2009) show that others in the vicinity similarly continued parking vehicles in the right-of-way after 2005. Mr. Grace was asked what enforcement authority he has with regard to the problem he has perceived of parking and advertising items for sale in the right-of-way. He candidly admitted that he does not have law enforcement authority; he said that he can only inform property owners that there is a statute that applies to this situation and it is illegal. Mr. Grace testified that, if necessary, he can request assistance from law enforcement and that when he sent letters to property owners in 2005, he sent copies to the Florida Highway Patrol. Throughout Mr. Grace's involvement in right-of-way matters with Mr. Puleo, dating back to 2004, no citations have been issued by the Florida Highway Patrol or any other law enforcement authority for what Mr. Grace testified was Mr. Puleo's illegal use of the right-of-way. When asked whether he has asked for enforcement assistance in Mr. Puleo's case, Mr. Grace said that he did so once. As Mr. Grace described the occasion, the Department was poised with a crew in place to remove asphalt from the right-of- way in front of Mr. Puleo's business. Apparently, Mr. Grace sought approval from the Florida Highway Patrol to authorize the crew to proceed. From what Mr. Grace recalls, Mr. Puleo may have gotten an attorney involved, because the Florida Highway Patrol "backed down at that point," telling Mr. Grace that they were "not sure about this whole right-of-way issue." Mr. Grace did not say when this incident occurred, except to note that it was before "the lawsuit." In 2007, the Department filed a complaint in circuit court for ejectment against Mr. Puleo and his business, seeking to eject them from the Department's right-of-way. Michael Hope is the Department attorney who prepared the ejectment complaint. Both Mr. Hope and Mr. Grace acknowledged that the purpose of this lawsuit was to stop Mr. Puleo from parking and advertising on Department right-of-way. Mr. Puleo and his business counterclaimed. A twist in the controversy arose when title work revealed that the 90 feet of Tamiami Trail frontage in front of Mr. Puleo's property, from the roadway to a line bisecting the parking spaces in front of Mr. Puleo's building, did not all belong to the Department as right-of-way, as believed. Instead, more than half of the frontage--50 feet--actually was owned entirely by Mr. Puleo in fee simple. This twist changed the dynamics of the dispute between the parties. The Department was put into the position of having to secure permission from Mr. Puleo to use his property for drainage and underground utilities traversing 50 feet of Mr. Puleo's property. And in an ironic twist, it was suddenly the Department having to make amends for its prior unauthorized use of Mr. Puleo's property. Meanwhile, although Mr. Puleo's bargaining position certainly had changed, his objective remained unchanged; he wanted to continue his admitted historic use of the paved portion of the other 40 feet of Tamiami Trail frontage, which was Department right-of-way up to the line bisecting the parking spaces in front of Mr. Puleo's building. In addition, Mr. Puleo wanted an asphalt strip restored on the right-of-way south of Mr. Puleo's property line, where it had been removed and planted with grass to discourage his historic use of that right-of-way. Protracted negotiations ensued, and the parties ultimately reached a settlement agreement in July 2009. The settlement agreement is set forth in a pleading that bears the caption of the circuit court case, entitled "Stipulation for Dismissal of All Claims and Counterclaims," signed by both parties on July 10, 2009. Although the settlement agreement in evidence does not indicate approval by the circuit court, the parties acknowledge that it was, in fact, approved by the court. As suggested by the title, the settlement agreement resulted in the dismissal of all claims and counterclaims (subject to the right reserved in paragraph 12 of the settlement agreement to reopen the case for the purpose of enforcing the agreement). Both parties agree that two paragraphs of the settlement agreement provide background germane to this administrative enforcement action, as follows: [The Florida Department of Transportation, FDOT] acknowledges that the 40 foot portion of Parcel 106 that is proximate to the PULEO frontage is PULEO's historic driveway, for driveway usage for the PULEO property and that such driveway shall not be changed, except as provided herein, or in accordance with FDOT Access Management standards and procedures, with PULEO retaining rights to procedural redress under Chapter 120 of the Florida Statutes. FDOT has issued a permit (permit #2009- K-194-36), Exhibit C, and thus agrees that PULEO may construct a 15 foot deep asphalt "turn out" for driveway usage for PULEO's property; such driveway "turn out" shall not be changed except in accordance with FDOT Access Management standards and procedures, with PULEO retaining rights to procedural redress under Chapter 120 of the Florida Statutes. Paragraph 7 of the settlement agreement addresses Mr. Puleo's use of the Department's right-of-way on the 40-foot portion of the Tamiami Trail frontage that is not owned outright by Mr. Puleo. As confirmed by both parties' witnesses, this right-of-way area is shown on Respondent's Exhibit 1 as the square outlined in pink. On Petitioner's Exhibit 2 (the aerial picture), it is the square area immediately north of the green-yellow- highlighted rectangle designated right-of-way parcel 196, east of the tan line bisecting five parking spots in front of Mr. Puleo's building and south of the tan line protrusion that extends eastward to the roadway, then north to Mr. Puleo's northern property boundary. The tan line protrusion marks the 50-foot frontage owned by Mr. Puleo; this area is shown on Respondent's Exhibit 2 as the larger blue rectangle next to the pink square. Paragraph 8 of the settlement agreement addresses Mr. Puleo's use of the right-of-way to the south of Mr. Puleo's property, which previously had been paved and used by Mr. Puleo. The Department issued the 2009 permit identified in paragraph 8 on July 9, 2009, the day before the settlement agreement was executed. The 2009 permit is part of the settlement agreement, as Exhibit C thereto.4/ Issuance of the 2009 permit allowed Mr. Puleo to repave (at Department expense) and use a designated portion of the right-of-way to the south of Mr. Puleo's property. Department attorney Michael Hope reviewed and signed the settlement agreement, with the 2009 permit attached. Before the settlement agreement was signed, Mr. Hope gave the instructions to Mr. Rosenstein to prepare the permit. Mr. Rosenstein has primary responsibility within the Sarasota Operations Center for issuing permits, although occasionally Mr. Grace, to whom Mr. Rosenstein reports, gets involved in issuing permits. When the matter of preparing a permit for Mr. Puleo arose, Mr. Grace was on vacation. The issuance of the 2009 permit to Mr. Puleo was unusual for several reasons. First, it was issued as part of a settlement agreement, instead of by the normal procedure of an application being filed by someone requesting a permit. Second, Mr. Rosenstein was asked by Mr. Hope to prepare and issue the permit and deliver it to Mr. Puleo, all in a single day, which is highly unusual. Mr. Rosenstein had to drop everything and immediately go to Mr. Puleo's property to take pictures from several angles of the adjacent right-of-way to the south. He marked the pictures to describe and outline the area of right-of- way that Mr. Puleo would be allowed to pave and use. Mr. Rosenstein then had to fill out the permit, cross-referencing the marked pictures. He had to add the appropriate form pages containing the Department's standards for the paving activity adjacent to Tamiami Trail, addressing such matters as requirements for signs alerting traffic to the work and procedures for lane closures, if necessary. Mr. Rosenstein then had the completed permit reviewed and approved by the permits coordinator who signed the permit along with Mr. Rosenstein. He then delivered the completed permit to Mr. Puleo.5/ Mr. Rosenstein testified that the 2009 permit is a "general use permit." According to Mr. Rosenstein, a general use permit is considered a residual category to allow an activity on right-of-way that does not fall within any other permit category. He identified the other permit categories as drainage permits, utility permits, landscape permits, and access connection permits to make a connection to access a state road. The 2009 permit is not an access connection permit, as the asphalt pad authorized by the 2009 permit stops at the inside end of the interior grassy strip and does not extend to the roadway; a vehicle cannot drive directly from the asphalt pad onto Tamiami Trail. The 2009 permit, as completed by Mr. Rosenstein, states that the permittee, Mr. Puleo, requests permission from the Department "to construct, operate and maintain: INSTALL ASPHALT PAD AS SHOW [sic] IN PICTURE." Mr. Rosenstein attached two pages with pictures of the site. The first page has a single picture on which Mr. Rosenstein put the following description: "Extend Parking Area with Asphalt 15 x 40 feet." He marked the outline of the designated rectangle in red. As designated, the area extended the pavement that was in front of Mr. Puleo's property to the south, adding 15 feet of Tamiami Trail frontage to the south. The 40-foot length of the rectangle extended from the edge of the interior grassy strip west of the sidewalk to the end of the Department's right-of-way. This means that the west end of the new asphalt pad would be even with the midpoint of the parking spaces in front of Mr. Puleo's building, where they are bisected by the Department's right-of-way line. Mr. Rosenstein acknowledged that he did not add any special conditions to the permit to specify or restrict the usage of the approved asphalt pad. There was no evidence to suggest that Mr. Rosenstein was given instructions to include special permit conditions to specify or restrict the usage of the asphalt. In the space on the permit form for special conditions, the only condition put on the 2009 permit required Mr. Puleo to "sod all areas of disturbed right-of-way." Mr. Rosenstein gave conflicting testimony regarding his understanding of the 2009 permit that he was instructed to prepare. At first, he testified that he had no information at the time regarding the purpose of the asphalt pad or its intended use. However, he stated later that he understood at the time that the purpose of the asphalt pad was to allow cars to turn around. According to Mr. Hope, he instructed Mr. Rosenstein to prepare a permit "for a turn-out area for driveway purposes over a portion of the right-of-way." Mr. Hope testified that the asphalt pad was intended to be used only as a "turn out," in which cars pulling out of the parking spaces in front of Mr. Puleo's building could back into the newly paved area and then drive forward to exit onto Tamiami Trail at the access connection. Mr. Hope said that the "turn- out" area was needed primarily for cars parking in the two southernmost parking spaces in front of Mr. Puleo's building. Although this turn-out use might explain one of the reasons for the asphalt pad authorized by the 2009 permit, that use alone would not explain authorizing a 40-foot-long asphalt pad that extends parallel to the parking spaces. Cars would not back out of parking spaces and then back up while turning 180 degrees before pulling forward to exit Mr. Puleo's business. Mr. Rosenstein did not recount the instructions he received from Mr. Hope for preparing the permit. Neither Mr. Rosenstein nor Mr. Hope explained why the authorized asphalt pad extend for 40 feet, all the way from the interior grassy strip to the west end of the Department's right-of-way. Mr. Rosenstein did not explain how he knew to mark the pictures to designate the site for the asphalt pad or where the dimensions came from. Mr. Rosenstein claimed that he was focused on giving instructions to the contractor that would be installing the asphalt pad, not on the use of the new paved area after construction. Nonetheless, he admitted that general use permits are intended to address not only construction, but also the subsequent operation or use of what is constructed. Mr. Rosenstein conceded that since the 2009 permit did not address the ultimate usage, then the ultimate usage would be determined by the permittee. Actually, the 2009 permit does address the usage of the new paved area by the description "extend parking area." The 2009 permit, thus, identifies the paved right-of-way on Mr. Puleo's property as a "parking area" and authorizes asphalt paving to "extend" that "parking area" to add another 15 feet of Tamiami Trail frontage for the entire length of the right-of-way. Based on the credible evidence of record, the reasonable meaning of the description "extend parking area," placed by Mr. Rosenstein on the picture that became part of the 2009 permit, is to indicate that the paved area in front of Mr. Puleo's building was, in fact, used as a parking area and that the new asphalt was being authorized as an extension of that area and of that use. Neither Mr. Rosenstein nor any other witness offered a different credible interpretation of the "extend parking area" description in the 2009 permit. Mr. Hope testified that he discussed the subject of parking and the other historic uses with Mr. Puleo in a single face-to-face settlement negotiation meeting with Mr. Puleo and his attorneys. According to Mr. Hope, at that meeting, Mr. Puleo asked Mr. Hope whether he would be allowed to park vehicles or put signs on the new paved area; Mr. Hope said that he told Mr. Puleo no, that the new paved area was a turn-out area to be used for driveway purposes only, by which he meant for moving vehicles from one area to another. Mr. Hope conceded that this single face-to-face settlement meeting occurred many months before the settlement agreement was reached. Mr. Puleo testified that the meeting he attended with Mr. Hope took place nine months before the 2009 permit was prepared and the settlement agreement was finalized. Mr. Puleo testified that he did not ask Mr. Hope at that meeting whether parking would be allowed on the right-of-way and does not recall Mr. Hope addressing that subject, either. However, Mr. Puleo did recall subsequent protracted negotiations in which he understood that the Department did not want to give Mr. Puleo the right to use the new asphalt pad for parking. Mr. Puleo credibly testified that since this was important to him, he refused to agree on those terms. Mr. Puleo testified that the Department ultimately agreed to settle on his terms by issuing the 2009 permit that authorized him to "extend [his] parking area" and by making that permit a part of the settlement agreement. Mr. Hope's recollection of what was said at a settlement conference nine months before the 2009 permit was prepared and incorporated into the settlement agreement is inconsistent with the description expressed in the 2009 permit. Even if a conversation took place that was anything like his recollection, the credible evidence established that the Department's preliminary position changed between then and the issuance of the 2009 permit. Mr. Hope testified that he reviewed the final settlement agreement document, including the exhibits, before he signed it. He acknowledged reviewing the 2009 permit after it was issued and before he signed the settlement agreement, because the 2009 permit was an exhibit to the settlement agreement. Given that the sole purpose of the ejectment lawsuit he prepared was to stop Mr. Puleo from parking and advertising on Department right-of-way, it is not credible that Mr. Hope would not have insisted on express prohibitions in the 2009 permit against parking and advertising, had he believed that those prohibitions would have been permissible as part of the settlement agreement, of which the 2009 permit was a critical part. It is not credible that Mr. Hope would have agreed to the 2009 permit authorizing Mr. Puleo to "extend parking area" as part of the settlement agreement, unless, as Mr. Puleo testified, that is what was bargained for and what Mr. Puleo required to enter into the settlement agreement. Mr. Puleo's testimony in this regard is accepted as more credible than Mr. Hope's testimony. When Mr. Grace came back from vacation, he was made aware of the permit and the settlement agreement. He testified that "despite the original purpose of the lawsuit, there was parking and advertising continuing to occur within the right-of- way." He conducted surveillance and had pictures taken of the property after the asphalt pad was installed. Pictures were taken of Mr. Puleo's property and the extended parking area on July 27 and 30, 2009, to document that the new asphalt pad was being used for parking. Mr. Grace testified that he called Mr. Puleo to report that he observed parking on the new asphalt. Mr. Puleo told Mr. Grace that he was allowed to park on the new asphalt because his permit authorized him to "extend parking area." Mr. Grace claimed that he had not looked at the permit until then. At that point, Mr. Grace "started discussing the matter with Mike Hope," and they decided that it was time to revoke the 2009 permit and issue a new permit "that would clarify and still support the original intent of the settlement agreement, but clarify the intent." Inexplicably, the Department took no action until May 13, 2010, when Mr. Grace sent a letter by certified mail to Mr. Puleo. The entire text of the letter was as follows: Re: Permit Number 2009-K-194-36 Dear Mr. Puleo: As part of the stipulation agreed to between the [Department] and you the above referenced permit was issued on July 9, 2009. The permit was issued to comply with stipulation number 8 which states "PULEO may construct a 15 foot deep asphalt "turn out" for driveway usage for PULEO's property." The stipulation clearly states that the asphalt turn out is for driveway usage. However, it has been observed on numerous occasions that the asphalt area is routinely being used as a parking area which does not comply with the intent of the agreement. When this issue was previously brought to your attention you referenced a picture which was included with the permit depicting the area for asphalt placement. The picture included verbiage that included "Extend Parking Area". This reference was made in error by a staff member who was not completely familiar with the terms of the stipulation. This permit will be voided and replaced with a new permit to comply with the terms of the stipulation which included the use of the right of way as a driveway and not for parking. The permit referenced above will be voided effective May 21, 2010. A replacement permit will be issued concurrently with the voiding of this permit. Please contact me if you have any questions. Thank you for your cooperation in these matters. (emphasis added). Mr. Grace's statement--that the 2009 permit's authorization to "extend parking area" was made in error by the Department representative--is an admission that the 2009 permit does indeed authorize Mr. Puleo to park on the new asphalt. However, contrary to Mr. Grace's characterization, the 2009 permit cannot be said to have been issued in "error" or not in compliance with the terms of the settlement agreement, because the 2009 permit itself was made part of the settlement agreement. Mr. Grace's description implies that the settlement agreement came first, followed by the 2009 permit, which did not match up to the requirements of the settlement agreement; in fact, the reverse is true--the 2009 permit was issued first and the 2009 permit, as prepared and issued (including the "extend parking area" description), was incorporated into the settlement agreement as an exhibit and an express component of paragraph 8. The only explanation given for revoking the 2009 permit was its purported inconsistency with the settlement agreement. For example, there were no allegations of substantial changes in the use of the right-of-way that would trigger new and different safety concerns. Instead, Mr. Grace's May 13, 2010, letter acknowledged that Mr. Puleo had only continued his historic use of the right-of-way in front of his property, extending that use to the new asphalt extension of his parking area. The May 13, 2010, letter did not inform Mr. Puleo that he had a right to an administrative hearing to contest the Department's intended action to revoke his 2009 permit. Instead of offering Mr. Puleo a window of time in which to request an administrative hearing, only eight days after the May 13, 2010, letter was mailed to Mr. Puleo, Mr. Grace sent a second certified letter to Mr. Puleo. The entire text of this May 21, 2010, letter was as follows: Re: Permit Number 2010-K-194-30 Dear Mr. Puleo: As stated in my May 13, 2010, letter to you permit number 2009-K-194-36 is void and no longer valid. A replacement permit number 2010-K-194-30 is enclosed for your use and meets the terms of the stipulation referenced in my previous letter. Please contact me if you have any questions. Thank you for your cooperation in these matters. The 2010 permit is a general use permit, just as the 2009 permit was. Despite the fact that the asphalt pad that was authorized by the 2009 permit to "extend parking area" had already been installed, the 2010 permit authorized Mr. Puleo to "Install Asphalt Pad as shown in attached photo's [sic]." The 2010 permit in evidence is incomplete, in that no photos are attached. Presumably, the missing photos are different from those included with the 2009 permit. Whereas the 2009 permit had a single "special condition" requiring the replacement of all sod disturbed during the installation of the asphalt pad, the 2010 permit added the following as new special conditions: The asphalt placed in the Department's right-of-way is for the limited use of vehicles as a driveway only. This is limited to maneuvering of a vehicle for ingress and egress only. No other permissions are granted herein. The Department's right-of-way shall not be used for parking, storage of equipment, placement of signs, or any other use not expressly stated within the terms of this permit. Mr. Grace testified that he drafted the special conditions in the 2010 permit. He explained why he believed it was necessary to draft these conditions: In the case of Mr. Puleo, it's been a situation that I have been trying to resolve since 2004, and I felt like it was necessary to clearly state that the permit, while it allows the use of the right-of-way for placement of the asphalt, and it's allowed, per the stipulation, for ingress and egress, I said that, in order for this to be clear to Mr. Puleo, I had to state that parking and display of items for sale were not permitted. Mr. Grace's testimony--that it was necessary to specifically prohibit parking and advertising as conditions in the permit itself because of the history with Mr. Puleo--is an admission that the 2009 permit cannot be interpreted to prohibit those historic uses, because it lacks the necessary express conditions. Mr. Grace has driven by Mr. Puleo's property 100 times between 2004 and the day of the hearing, observing the same kind of parking and advertising activity that Mr. Grace has been trying to stop since 2004. The pictures in Petitioner's Composite Exhibit 10 were described as representative of the alleged violations. As these pictures demonstrate, the advertising activity referred to is the placement of small "Rent Me" signs in the windows of vehicles parked on the pavement in front of Mr. Puleo's property on the right-of-way. Therefore, as Mr. Grace clarified, the advertising on the right-of-way is not a separate activity from the parking on the right-of-way; he considers the parking and advertising to be a single violation. Mr. Grace acknowledged that the special conditions in the 2010 permit, which he found necessary to make clear that Mr. Puleo had to stop the parking and advertising that he has been doing on the right-of-way since 2004, could have been put in the 2009 permit. As found above, the credible evidence establishes that the Department would have expressly prohibited parking and advertising on the new asphalt pad authorized by the 2009 permit, if the Department had been in a bargaining position to insist on those terms, but the Department was not. The Department presented no credible evidence that Mr. Puleo's parking and advertising in the right-of-way ever has endangered the health, safety, and general welfare of the public by causing distractions to motorists, unsafe pedestrian movement, dangerous traffic movement, increased vehicular accidents, motorist injuries, or fatalities. There was no evidence of any safety-related problems of any kind actually caused by Mr. Puleo's historic use of the right-of-way in front of his property or to the south of his property line where the asphalt was installed to extend his parking area. No evidence was offered to prove that allowing Mr. Puleo to use the new asphalt pad for the same parking and advertising activity he has conducted historically would interfere with safety, operation, aesthetics, or maintenance of the State Highway System, utilities, or right-of-way. Instead, the evidence established that Mr. Puleo's historic parking and advertising on the right-of-way have not given rise to any traffic-related or pedestrian-related problems. Mr. Puleo's use of the right-of-way is no more intrusive or distracting than the similar uses of right-of-way evident from the pictures in evidence. Moreover, Mr. Puleo's historic use of the right-of-way is no more intrusive or distracting than Mr. Puleo's lineup of rental cars with "Rent Me" signs in the windows along his northern property line, which Mr. Puleo has every right to do, because he owns that property in fee simple. While in a different case, the Department certainly could have legitimate safety concerns with certain parking on its right-of-way, such as if vehicles parked on the grassy strips on either side of the sidewalk, or straddled the sidewalk itself, or if parked vehicles blocked access connections or interfered with motorist visibility. However, not all right-of-way areas present the same safety concerns. Parking on the right-of-way might, but would not necessarily, impede pedestrian traffic on sidewalks or interfere with ingress and egress or motorist visibility at access connections, depending on where the right-of-way is and how far it extends in from the roadway. These sorts of safety concerns are matters to be proven, and there was no such proof offered by the Department in this case.6/ The Department sought to justify the issuance of the 2010 permit, with its new special conditions, on the grounds that the 2010 permit is more consistent with the terms of the settlement agreement. The Department points to the terms "turn out" and "driveway usage" in paragraph 8, which the Department argues should give rise to a permit restricting usage of the new asphalt to moving traffic only. Mr. Puleo contends that "driveway usage" in both paragraphs 7 and 8 refer to the ordinary meaning of that term, which includes parking. As the parties acknowledged at the outset of the hearing and as the undersigned reiterated throughout the hearing, the nature of this proceeding is a permit enforcement proceeding. Interpretation and enforcement of the settlement agreement are matters for the circuit court. Moreover, as noted above, the settlement agreement incorporates the 2009 permit as one of the settlement agreement's terms, not the other way around. Therefore, while one might want to consider what the 2009 permit says, if one were interpreting the settlement agreement (because the 2009 permit is part of the settlement agreement), the reverse is not true. The 2009 permit stands on its own terms, because it was issued before the settlement agreement was executed. The 2009 permit uses the description "extend parking area" and neither incorporates the settlement agreement by reference, nor uses the terms "turn out" or "driveway usage" that appear in the settlement agreement. Even if the 2009 permit provided that the newly installed asphalt was for "driveway usage" as paragraph 8 of the settlement agreement does, absent a specific definition of that phrase, one would resort to the common, ordinary meaning from dictionaries. The word "driveway" alone is commonly defined as "a private way or road for cars, leading from a street or road to a garage, house, or other building." See, e.g., Webster's New World Collegiate Dictionary (2010); American Heritage Dictionary of the English Language, 4th Ed. (2010) (both available online at yourdictionary.com). The same online source provides examples of usage of the word "driveway" in sentences and phrases, as follows: Driveway parking. A paved driveway in the property provides ample parking. The property is approached via a block-paved driveway with parking for approximately four vehicles. These examples illustrate that driveway usage includes parking, based on the common, ordinary meaning of the term. The Department offered a specialized meaning of "turn out" and "driveway" from its design standards for access connections that are permitted on right-of-way property. Those standards provide that access connections are to be designed with driveways of sufficient length to allow all vehicular parking and maneuvering to take place beyond the right-of-way, so that driveways and turn outs within the right-of-way are used only for "moving vehicles entering or leaving the highway." That specialized definition makes sense in the context of designing access connections that are permitted uses of a right-of-way. If vehicles are parked or are maneuvering to turn around within the right-of-way that is being used as an access connection, that use would interfere with the movement of vehicles entering or leaving the highway, as the design standard itself makes clear. Here, however, the asphalt extension of Mr. Puleo's parking area does not connect to the roadway and is not proximate to the access connection point on Mr. Puleo's property. Thus, the design standard's specialized usage of the terms driveway and turn out to restrict use of the right-of-way to "moving vehicles entering or leaving the highway" has no application to the facts here. The Department's witnesses established that neither the 2009 permit, nor the 2010 permit at issue in this case, is an access connection permit. Perhaps the clearest indicator that the 2009 permit means what it says and was intended that way is by reference to Mr. Puleo's historic use of the right-of-way in front of his building. The settlement agreement addresses this right-of-way in paragraph 7, stating that the Department acknowledges that Mr. Puleo has used this right-of-way as "his historic driveway." The Department also acknowledges that there are parking spaces on the right-of-way that is Mr. Puleo's historic driveway; part of every vehicle parked in a designated space in front of Mr. Puleo's building is on the right-of-way that is described in the settlement agreement as Mr. Puleo's "historic driveway." Vehicles historically have also parked on other parts of the pavement in front of Mr. Puleo's building, besides the designated parking spaces, on Department right-of-way, also known as Mr. Puleo's historic driveway. Another apt name for Mr. Puleo's historic driveway was suggested by Mr. Rosenstein's 2009 permit description--parking area. The evidence establishes that the two phrases are one and the same for purposes of describing Mr. Puleo's historic usage of the right-of-way in front of his building; he has used his historic driveway as a parking area. The corollary is that the 2009 permit authorized Mr. Puleo to extend the parking area and, thereby, extend his historic use of his driveway as a parking area to the extended driveway/parking area. Nonetheless, after the Department unilaterally revoked the 2009 permit and replaced it with the 2010 permit, the Department issued its Complaint. The Complaint alleged that by parking vehicles and advertising on the new asphalt pad, Mr. Puleo violated the new special conditions of the 2010 permit. Sections 335.181 and 337.406, Florida Statutes, were cited as the statutes under which Mr. Puleo's alleged violations were charged. This time, the Complaint acknowledged that the Department's charges were only intended action and that Mr. Puleo could contest the charges before they became final by timely requesting an administrative hearing. At the hearing, the Department offered no explanation for its failure to follow the same procedure when it notified Mr. Puleo by letter on May 13, 2010, that his 2009 permit would be revoked, effective eight days hence. The Complaint is predicated only on Mr. Puleo's alleged violation of the 2010 permit, by his use of the new asphalt pad for parking and advertising. The Complaint does not charge Mr. Puleo with any improper use of the right-of-way in front of his building. The parties stipulated that Mr. Puleo has been parking and advertising on Department right-of-way.7/ Mr. Puleo credibly testified that he would not have agreed to a settlement of the circuit court litigation with the Department without the 2009 permit authorizing him to "extend [his] parking area." Mr. Puleo reasonably relied on the Department's representations expressed in the 2009 permit and in the settlement agreement incorporating the 2009 permit. The Department's representations recognized that Mr. Puleo's "historic driveway" was used as a parking area; the Department's representations authorized Mr. Puleo to extend his parking area and continue his historic usage of the parking area, as extended by the new asphalt pad. In reliance on the Department's representations, Mr. Puleo changed his position to his detriment by agreeing to a settlement agreement that resulted in the dismissal of the circuit court litigation. In entering into the settlement agreement, Mr. Puleo acquiesced to terms that were of great value and importance to the Department, because Mr. Puleo understood from the Department's representations that he was receiving, in return, the terms that were of great importance to him. The 2009 permit was issued as an inducement to secure Mr. Puleo's agreement to execute the settlement agreement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order (1) determining that permit number 2009-K- 194-36 remains in full force and effect; (2) determining that permit number 2010-2010-K-194-30 is void and of no effect; and (3) dismissing the Complaint (as deemed amended), based on the failure to prove violations of the 2009 permit under the statutes charged in the Complaint, and based on the established defense of equitable estoppel. DONE AND ENTERED this 14th day of February, 2013, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of February, 2013.
Findings Of Fact Bayfront commenced construction of the biological waste incinerator here at issue prior to March 21, 1992, the effective date of the moratorium on construction of biological waste incinerators and was exempt from that moratorium. An inspection of the premises on April 9, 1992, (exhibit 5) showed substantial work had been accomplished and the inspector concluded, and DEP's legal counsel concurred, that in order to have achieved the construction progress shown on April 9, 1992, the work had to have been commenced prior to March 21, 1992. Further, a building permit to renovate the building into which the waste incinerator was placed was issued November 12, 1991, (exhibit 7) and a building permit to install a waste incinerator was issued March 4, 1992, (exhibit 6). No contradictory evidence was submitted by Petitioner. Respondent's witnesses testified without contradiction that Bayfront's application for an operation permit was complete in all respects, including certification by a professional engineer; that all test results showed the emissions into the atmosphere were within the prescribed standards; that certain conditions contained in the construction permit as a result of the settlement agreement resolving the challenge to the issuance of the construction permit are contained in the operation permit; that those conditions exceed the conditions required by the rules for incinerators; and that Bayfront affirmatively provided the Department with reasonable assurance based on plans, test results, installation of pollution control equipment, or other information that the operation of the incinerator will not discharge, emit, or cause pollution in contravention of DEP's standards as contained in Rule 17-4.070(1), Florida Administrative Code. This testimony is accepted as factual. The draft permit authorizes Bayfront to burn a maximum of fifteen hundred pounds per hour of waste. Each time a test run is conducted to check the emissions, the pounds of waste burned per hour during the test establishes an upper limit on the rate of burning waste. As explained by James L. McDonald, the engineer processing air pollution applications for the Department at Transcript p. 50-51: The construction application asked for a permit at fifteen hundred pounds per hour. So the construction permit is -- the condition that we would want, the Department would normally want the test within ten percent of that fifteen hundred pounds an hour in order to go ahead and issue, if its in total compliance, to issue an operating permit at fifteen hundred pounds. Since the test came in at a reduced rate, below the ten percent, then that's why in the operating permit condition twenty-one says you're limited to the rate that we're, the test was conducted. [sic] Now, also, its interesting to note that in their test, if you look at their runs two and three -- because there are rules that say the Department could accept two runs out of three if a condition occurred that was out of their control -- if your average runs two and three, they would average within ten percent of fifteen hundred. So, as a permit processor, it even gave me some reasonable assurance that they could probably comply with the fifteen hundred. But, since the test of all three runs came in as an average of twelve fifty-one, then the operating permit included that twelve fiftyone. And like the real world out there, just like power plants, when it comes time for their annual testing, if they are at half speed, their business is down, it allows them to test at half speed. We won't require them to go up to full speed. They can test at half speed. But then they are limited there. And if they go above it at a later date they would have to retest. So they can work their way back up to where the Department has reasonable assurance that the upper limit of fifteen hundred pounds -- that's where later in condition twenty-one of the operating permit it says but in no case shall the maximum permit or burning rate of fifteen hundred pounds per hour be exceeded. Petitioner's second two grounds for challenging the issuance of the operation permit was answered by McDonald's testimony, above quoted, and this evidence was not rebutted by Petitioner. The primary thrust of the evidence presented by Petitioner was that Bayfront had somehow misled the City of St. Petersburg regarding the operation of the incinerator and had not complied with all of the City's requirements in other respects, ergo, Bayfront could not be relied on to comply with the conditions in the operation permit. This evidence is irrelevant to the determination of whether or not the operation of the incinerator complies with all of the Department rules. The conditions of the operating permit require Bayfront to submit periodic reports to the Department from which the Department can determine whether the conditions in the permit are being complied with. Furthermore, the Department requires the permittee to notify the Pinellas County Department of Environmental Management at least fifteen days prior to the date on which each formal compliance test is to begin (Permit Condition No. 22) to allow them to witness the test, if desired. The construction permit, complying with the settlement agreement, required Bayfront to adhere to more frequent testing and more extensive testing then is required by the rules for operating biological waste incinerators. All of the tests and reports submitted by Bayfront on the operation of this incinerator met all of the requirements in the construction permit and the draft operation permit.
Recommendation It is RECOMMENDED that Bayfront Medical Center be issued Permit No. AO52- 224337 to operate a biological waste incinerator at Fifth Avenue South and Eighth Street, St. Petersburg, Florida. DONE AND ENTERED this 16th day of November 1993 in Tallahassee, Leon County, Florida. K. N. AYERS 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 16th day of November 1993. COPIES FURNISHED: Adrian W. Helm, Esquire 925 14th Avenue North St. Petersburg, Florida 33712 Daniel N. Burton, Esquire Thomas K. Maurer, Esquire Terri L. Gillis-Tucker, Esquire Foley and Lardner 111 North Orange Avenue, Suite 1800 Orlando, Florida 32801 W. Douglas Beason, Esquire Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Virginia B. Wetherell, Secretary Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante, General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact Respondent is the owner and developer of the Plaza Venetia Marina, located in Biscayne Bay in Dade County, Florida, immediately north of the Venetian Causeway. The marina is constructed on submerged lands leased from the Board of Trustees of the Internal Improvement Trust Fund. On May 4, 1976, DER issued Permit No. 13-30-0364-6E to Respondent. That permit authorized the construction of two concrete marina docks, one "T" shaped and 255 feet long, and the other "J" shaped and 500 feet long. The project site is north of the Venetian Causeway on the western edge of Biscayne Bay, Section 31, Township 53 North, Range 42 East, Dade County, Florida. On August 18, 1977, DER issued Permit No. 13-30-3984 to Respondent. That permit authorized the construction of a 700 foot long "J" shaped pier with 24 finger piers and associated mooring pilings, and the construction of a 280 foot long "T" shaped pier. This permit authorized construction to be undertaken directly north of the docks authorized by Permit No. 13-30-0364-6E described above. On August 18, 1977, Respondent applied to DER's West Palm Beach office for a permit to construct the center pier of the Plaza Venetia Marina. On October 27, 1977, DER issued Permit No. 13-30-0740-6E to Respondent. This permit, which is the only one of the three permits at issue herein, authorized construction of a boat tie-up and fueling facility for a public marina. This facility represented a final phase of a master plan which includes the two other marinas with tie-up accommodations authorized by Permit Nos. 13-30-0364-6E and 13-30-3984. The drawings which accompanied the permit application carried the designation "FUEL" on the large platform at the end of the center pier of the marina. The cover letter from Respondent's authorized agent explained that " . . . the fueling area has been made sufficiently large so as to isolate the fuel pumps." No specific mention was made in the application or supporting materials of any building to be constructed on the central pier, and none of the permit drawings initially filed with DER depict any such building. DER employees who processed the permit, however, knew at some time during the processing of the permit application that some sort of structure would likely be constructed on the platform at the end of the center pier, although the plans did not disclose such a building, and the agency made no inquiries about, nor requested any additional information from Respondent concerning the type of structure contemplated. At the time of the issuance of Permit No. 13-30-0740-6E Respondent did not know the exact nature, size, or height of any structure that it might wish to build on the central platform. At the time, Respondent had only a conceptual idea of a structure that might accommodate the uses it contemplated for the platform. The words "fueling station" appear on the platform at the end of the center pier in one of the drawings attached to Permit No. 13-30-0740-6E. That drawing was not initially filed with the original permit application, but was provided during the permitting process by Respondent prior to issuance of the permit. Permit No. 13-30-0740-6E was issued to Respondent on October 27, 1977, pursuant to the authority granted DER under Chapters 253 and 403, Florida Statutes. Nowhere in the permit is there any reference to Section 258.165, Florida Statutes. The permit, by its expressed terms, authorized the following: To construct a boat tie-up and fueling facilities [sic] for a public marina. The facility will extend approximately 390 feet into Biscayne Bay from the bulkhead line. The dock will provide tie-up spaces for 20 boats and six fuel slips, and will contain floating oil collars in case of oil or gasoline spillage. This facility represents the final phase of a master plan which includes two other marinas with tie-up facilities . . . On January 11, 1979, some approximately fourteen months after issuance of the permit for the center pier, Respondent sent a letter to DER's West Palm Beach office which read as follows: Enclosed please find a copy of a letter as sent to the Army Corps, re: the service facility you and I discussed for the already approved fuel dock (State No. 13-30-0740-6E) for the Plaza Venetia Marina. I also enclose copy of the plans. Please review as quickly as possible since we intend to start construction on the marina within 30 to 45 days. (Emphasis added.) Enclosed with the January 11, 1979, letter to DER was a copy of a January 11, 1979, letter to the Army Corps of Engineers which read as follows: Recently I reviewed with [a Corps representative] the placement of a small service accommodation facility on the already approved fuel dock for the Plaza Venetia Marina . . . I left a set of plans with [the Corps] at the Corps office in Miami Beach. The facility is in close keeping with the permitted use of the marina. It will occupy less than half the already approved area of the fueling facility. It will be constructed on an already permitted facility. Included are a small bait and tackle shop; convenience store; captains' office; observation area and required bathrooms. The discharge from the bathrooms will flow directly into the main County sewer disposal system and will utilize a sewer pump-out facility located on the fuel dock. * * * After carefully reviewing my existing permit, the limited nature of the facility described, and its sole purpose of servicing the already permitted marina, please advise me if any modifications are required. I look forward to hearing from you as quickly as possible on this matter since construction of the marina is projected to begin within the next 30 to 45 days. A copy of the floor plan of the proposed building was attached to the January 11, 1979, letter received by DER. This floor plan indicates areas to be included in the building for bait and tackle facilities, a food store, storage areas, restroom facilities, and a marina office. Also shown on the floor plan is a storage area for electric carts to be used in servicing vessels utilizing the marina facility. The record in this cause establishes that Respondent never intended its January 11, 1979, letter to DER to be a request for a permit modification or an application for a new permit. Instead, the letter was intended only as a request for DER review of and comments on the proposed structure to be built at the end of the central pier. DER representatives in its West Palm Beach office forwarded the letter to the Tallahassee office of DER. DER never responded either orally or in writing to Respondent's communication of January 11, 1979, enclosing the building plan. On June 19, 1979, DER had opened its file No. 13-9916 in its standard form dredge and fill permitting section in Tallahassee in response to a letter received from Respondent requesting the addition of some dolphin pilings along the bulkhead at the Plaza Venetia Marina. The request from Respondent was treated as standard form application because the scope of the entire marina project exceeded short-form criteria. After receiving this request from Respondent, DER sent a completeness summary to Respondent within 30 days of receipt of the application requesting that Respondent provide approval from the Department of Natural Resources for the use of sovereignty submerged lands. Through various correspondence, this application was expanded to include several additional modifications to the overall marina, including reconfiguration of the fuel dock, addition of finger piers, reconfiguration of the "T" docks, and addition of a 12-foot boardwalk. Finally, the application was modified so that it constituted an application to consolidate the three existing permits. On January 29, 1980, Respondent submitted the last item of information required by the completeness summary except for DNR approval for use of sovereignty submerged lands. The aforementioned letter of January 11, 1979, from Respondent, which included the building floor plan, was apparently placed in DER file No. 13-9916 relating to Respondent's requested permit modification. Although the floor plan is contained in this file, the record in this cause clearly establishes that neither Respondent nor DER treated either the January 11, 1979, letter or the enclosed plan as a request for modification of Permit No. 13-30-0740-6E. DER file No. 13-9916 sat dormant for almost three years awaiting DNR consent for the use of state-owned lands. By letter dated July 10, 1981, DER requested Respondent to indicate whether it wished to pursue the permit modification application further since it had been 1,085 days since DER had notified Respondent of the necessity to furnish notification from DNR concerning further use of state sovereignty submerged lands. By letter dated July 15, 1981, Respondent withdrew its permit modification application. On April 20, 1979, the City of Miami issued a valid building permit for the marina fueling station. Respondent notified DER in July, 1979, that it was beginning construction of the marina. Construction of the central pier began on July 16, 1979, and ended on June 11, 1980. Construction of the fueling platform began on February 28, 1981, with erection of the fueling station walls beginning sometime after April 1, 1981. Subsequent to the commencement of construction DER representatives inspected the building site on several occasions. Respondent was not made aware in advance of when these inspections would occur since they were scheduled at the sole discretion of DER. DER first learned of the actual construction of the marina fueling station after receipt of a citizen complaint on December 1, 1981. Upon inspection of the site by DER personnel on December 2, 1981, it was discovered that the building on the fuel dock was partially complete with finish work and the placement of some interior and exterior walls remaining to be accomplished. DER served a warning notice on Respondent on December 7, 1981, advising Respondent of an alleged violation of its existing permit. A second warning letter was sent to Respondent on January 26, 1982, followed by the issuance of the Notice of Violation by DER. DER incurred costs and expenses of $405.40 in investigating the alleged violation. The structures authorized by Permit Nos. 13-30-0364-6E, 13-30-3984, and 13-30-0740-6E ("the structures") have been constructed by Respondent. The structures are located within the Biscayne Bay Aquatic Preserve ("the Preserve") established by Section 258.165, Florida Statutes. Biscayne Bay at the site of the structures is a navigable water of the State of Florida. A building with a floor area of approximately 3,800 square feet and a roof area of 5,292 square feet has been constructed at a cost of approximately $500,000 on the platform at the end of the center pier of the marina. The net area of the platform contains about 9,640 square feet. It has been stipulated by the parties that construction of the building on the center pier will not result in significant adverse water quality or biological impacts which were not contemplated when the above-referenced permits were issued for the marina. The building as presently constructed has provisions for the following uses: a waiting area for water-borne transportation, a bait and tackle shop and marine supply store, an electric cart parking and recharging station, and an attendant's room with cash register and equipment for the fuel pumps. All of these uses are customarily associated with the operation of marina facilities. The building as constructed differs in several minor respects from the one shown on the plans submitted to DER in the January 11, 1979, letter from Respondent. What had been shown on those plans as outdoor seating has been enclosed, walls and proposed uses have been relocated within the building, and the entire building has been moved back on the fuel dock. It is concluded, however, that these changes are of such a minor nature as to not constitute a material departure from the plans furnished to DER in January of 1979. As-built plans for the building have never been provided by Respondent to DER. At the time of Respondent's application for the permit for the center pier, DER rules required that a permit applicant provide cross-sectional drawings of proposed structures to be built in conjunction with docking facilities such as those proposed by Respondent. Drawings attached to the permit application show two cross sections through the center pier, but neither of these cross sections depict a building to be constructed on the pier. Respondent did not submit cross-sectional drawings for the building at the time of its application, and none had been submitted to DER as of the date of final hearing in this cause. However, DER at no time requested such cross-sectional drawings, despite the fact that those agency representatives processing Respondent's permit application assumed from the outset that some structure would and could be built by Respondent on the platform attached to the central dock under the terms of the October 27, 1977, permit. The estimated cost for removal of the building at the end of the central pier is $150,000-$200,000.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered by the State of Florida, Department of Environmental Regulation, dismissing the Notice of Violation. DONE AND ENTERED this 3rd day of June, 1983, at Tallahassee, Florida. WILLIAM E. WILLIAMS 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 3rd day of June, 1983. COPIES FURNISHED: Paul R. Ezatoff, Jr., Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Clifford A. Shulman, Esquire and Thomas K. Equels, Esquire Brickell Concours 1401 Brickell Avenue, PH-1 Miami, Florida 33131 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Lee Rohe, Esquire Assistant Department Attorney Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303 Elton Gissendanner, Director Department of Natural Resources Executive Suite 3900 Commonwealth Boulevard Tallahassee, Florida 32303 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION, Petitioner, v. CASE NO. 82-1640 FLORIDA EAST COAST PROPERTIES, INC., Respondent. /
Findings Of Fact The Florida Department of Transportation is seeking to initiate a project to widen a portion of Gulf Boulevard (State Road 699) on Treasure Island, Pinellas County, Florida. In connection with the project, DOT filed an application for "complex source permit" with DER prior to April, 1976. The Petitioners filed a petition and request for public hearing in connection with that application on April 19, 1976. The matter was forwarded to the office of the Division of Administrative Hearings for further proceedings. DER thereafter attempted to withdraw its complex source permit rule. DOT withdrew its application for permit, and by order entered September 30, 1977, a Hearing Officer of the Division dismissed the case. The effort to repeal the complex source permit rule was later determined to be invalid, DOT re-applied for a permit, and Petitioners renewed their request for a hearing by petition dated April 18, 1978. Proceedings were thereafter conducted before the Division of Administrative Hearings, and a recommended order was entered on December 6, 1978. On December 6, 1976, DOT filed an application for dredge and fill permit with DER respecting the same road-widening project. The permit was issued by the Southwest District Office of DER, which is located in Tampa. Notice of the pendency of the dredge and fill permit application was published in a local newspaper of general distribution. No direct notice, however, was given to the Petitioners. The Petitioners directed an inquiry as to the existence of outstanding permit applications in connection with the project by letter dated October 18, 1977. The Department responded advising the Petitioners as follows: Dredge and fill permits for the installation of culverts have been applied for in our Southwest District Office. The permits are currently pending and the application files. . . are available for inspection daily. Despite the fact that the permit had actually been issued nearly seven months earlier, DER did not advise the Petitioners that the permit had been issued, but only that it was pending. Petitioners apparently made no further inquiry respecting the dredge and fill permit until they learned, in connection with proceedings being conducted respecting the complex source permit application, that the dredge and fill permit had been issued. The Petitioners promptly thereafter initiated this proceeding. A copy of the petition in this proceeding was forwarded to counsel for the Department of Transportation by the Petitioners. At a pre-hearing conference conducted in the complex source permit proceeding, counsel for DOT indicated that it may participate in this proceeding. Counsel for DER discussed this proceeding with counsel for DOT and was advised that DOT would not become a party to this proceeding. DOT has not appeared as a party to this proceeding. No evidence was offered to establish whether DOT has taken any action to complete the work authorized by the dredge and fill permit that was issued.
