The Issue At issue in this proceeding is whether a fence constructed by Charles and Kathleen Moorman (Moormans), as owners, and Your Local Fence, Inc. (Your Local Fence), as contractor, in the Big Pine Key Area of Critical County Concern, Big Pine Key, Monroe County, Florida, was contrary to the provisions of Chapter 380, Florida Statutes.
Findings Of Fact Background Petitioner, Department of Community Affairs (Department), is the state land planning agency charged with the responsibility of administering and enforcing the provisions of Chapter 380, Florida Statutes, including Areas of Critical State Concern, and all rules promulgated thereunder. Monroe County is a local government within the Florida Keys Area of Critical State Concern designated by Section 380.0552, Florida Statutes, and is responsible for the implemen-tation of, and the issuance of development orders that are consistent with, the Monroe County comprehensive plan and land development regulations, as approved and adopted in Chapters 9J-14 and 28-20, Florida Administrative Code. Most of Monroe County, including the Big Pine Key Are of Critical County Concern discussed infra, is contained within the Florida Keys Area of Critical State Concern. Respondents, Charles and Kathleen Moorman (Moormans) are the owners of Lots 15, 16, and half of Lot 17, Block D, Pine Heights Subdivision, Big Pine Key, Monroe County, Florida. Such property is located within the Big Pine Key Area of Critical County Concern, as well as the Florida Keys Area of Critical State Concern, and consists of native pine lands, which are natural habitat for the Key Deer. Respondent, Your Local Fence, Inc. (Your Local Fence), is a business engaged in constructing fences in Monroe County, and is owned by Mr. Moorman. On March 20, 1991, Monroe County issued to the Moormans, as owners, and Your Local Fence, as contractor, building permit No. 9110002231 to construct a fence on the foregoing property. As permitted, the fence would be constructed of wood to a height of 6 feet and, except for a setback of 25 feet, would completely enclose the Moormans' property. So constructed, the fence would measure 125 feet along the front and rear of the property and 75 feet along the side property lines for a total of 400 linear feet. Pertinent to this case, the Moormans' permit was not effective until 45 days after it was rendered to the Department (the "appeal period"), which period accords the Department an opportunity to review the permit and decide whether to contest its issuance by filing an appeal with the Florida Land and Water Adjudicatory Commission (FLWAC), and , if appealed, its effectiveness is stayed until after the completion of the appeal process. Section 380.07(2), Florida Statutes, and Section 9.5-115(a), Monroe County Land Development Regulations (MCLDR). Here, the Department, pursuant to the provisions of Section 380.07, Florida Statutes, filed a timely appeal with FLWAC to contest the issuance of such permit. Notwithstanding the Moormans' express knowledge that their permit was not effective until expiration of the Department's appeal period and, if appealed, resolution of the appeal process, the Moormans erected the fence on their property. Such action was contrary to the provisions of the Monroe County land development regulations and Chapter 380, Florida Statutes. Sections 9.5- 111(a) and 9.5-115(a), MCLDR, and Section 380.07(2), Florida Statutes. By separate recommended order to FLWAC, bearing Case No. 91-4110DRI, 91-5966DRI, 91-5968DRI, and 91-6603DRI (the "FLWAC Cases"), it was found, for reasons hereinafter discussed, that building permit No. 9110002231, issued by Monroe County for the construction of the Moormans' fence in the Big Pine Key Area of Critical County Concern was not consistent with the Monroe County comprehensive plan and land development regulations. Accordingly, it was recommended that FLWAC enter a final order reversing Monroe County's decision to issue such permit and to deny the Moormans' application for such permit. Consistency of the Moorman permit with the Monroe County comprehensive plan and land development regulations Big Pine Key is the primary habitat of the Key Deer, an endangered species, and Monroe County has designated most of Big Pine Key, including the properties at issue in these proceedings, as an area of critical county concern. 1/ Pertinent to this case, Section 9.5-479, Monroe County Land Development Regulations (MCLDR), provides: Purpose: The purpose of the Big Pine Key Area of Critical County Concern is to establish a focal point planning effort directed at reconciling the conflict between reasonable investment backed expectations and the habitat needs of the Florida Key Deer which is listed as endangered under the Federal Endangered Species Act. Focal Point Planning Program: Monroe County shall initiate a focal point planning program for the Big Pine Key Area of Critical County Concern that considers the following: The reasonable investment backed expec- tations of the owners of land within the Big Pine Key Area of Critical Concern; The habitat needs of the Florida Key Deer; The conflicts between human habitation and the survival of the Florida Key Deer; The role and importance of freshwater wetlands in the survival of the Florida Key Deer; Management approaches to reconciling the conflict between development and the survival of the Florida Key Deer; and Specific implementation programs for the Big Pine Key Area of Critical County Concern. The focal point planning program shall be carried out by the director of planning, in cooperation with the officer in charge of the National Key Deer Refuge. The planning program shall include a public participation element, and shall provide for notice by publication of all public workshops or hearings to the owners of land within the Big Pine Key Area of Critical County Concern. The focal point planning program for the Big Pine Key Area of Critical County Concern shall be completed within twelve (12) months of the adoption of this chapter, and the director of planning shall submit a report together with recommended amendments to the Monroe County Comprehensive Plan and this chapter within thirty (30) days after the completion of the focal point planning program for the Big Pine Key Area of Critical County Concern. Interim Regulations: Notwithstanding any other provisions of this chapter, no development shall be carried out on the Big Pine Key Area of Critical County Concern prior to the completion of the focal point planning program required by subsection C of this section and the adoption of amendments to the Monroe County Comprehensive Plan and this chapter except in accordance with the following: No development shall be carried out in the Big Pine Key Area of Critical County Concern except for single-family detached dwellings on lots in the Improved Subdivision District or on lots having an area of one (1) acre of more. And, Section 9.5-309, MCLDR, provides: It is the purpose of this section to regulate fences and freestanding walls in order to protect the public health, safety and welfare. * * * Big Pine Key Area of Critical County Concern: No fences shall be erected here until such time as this chapter is created to provide for the regulation of fences within this ACCC. The foregoing land development regulations were adopted by Monroe County to further and implement the standards, objectives and policies of the Monroe County comprehensive plan. Here, such regulations further the plan's "Generic Designations and Management Policies," contained within the plan's "Criteria for Designating Areas of Particular Concern," to maintain the functional integrity of habitat and, more particularly, the requirement that: Development within areas identified as Key Deer habitat shall insure that the continuity of habitat is maintained to allow deer to roam freely without impediment from fences or other development. Rule 28-20.020(8), Generic Designations, subparagraph 4, Florida Administrative Code. Over the course of the past five years, Monroe County has discussed design criteria for fences on Big Pine Key but has not yet adopted a regulation that would provide for fences within the Big Pine Key Area of Critical County Concern, as mandated by Section 9.5-309, MCLDR, nor has Monroe County amended Section 9.5-479, MCLDR, to permit, pertinent to this case, any development except single-family detached dwellings on lots in the Big Pine Key Area of Critical County Concern. Under such circumstances, it was concluded in the FLWAC Cases, and is concluded here, that the permit issued by Monroe County for the construction of the Moorman fence in the Big Pine Key Area of Critical County Concern is not consistent with the Monroe County comprehensive plan and land development regulations. Other considerations At hearing, Mr. Moorman offered proof that the Department had failed to appeal every fence permit issued by Monroe County in the Big Pine Key Area of Critical County Concern, and contended, as a consequence of such failure, that the Department should be precluded from contesting the issuance of his permit, or maintaining this enforcement action. Mr. Moorman's contention was not found persuasive in the FLWAC Cases, and is not found persuasive in this case. Here, the proof demonstrates that the Department's Key West Field Office, to which Monroe County renders its permits, was established in 1983, and that from January 1, 1984 to September 15, 1986, the Monroe County land development regulations did not regulate fences on Big Pine Key and the Big Pine Key Area of Critical County Concern (BPKACCC) did not exist. Effective September 15, 1986, the Monroe County land development regulations were adopted in their current form and, among other things, created the BPKACCC and prohibited fencing within such area. Accordingly, prior to September 15, 1986, there was no prohibition against erecting fences in the BPKACCC, and no reason for the Department to question the propriety of such develop-ments. Since the effective date of the current regulations, the Department has, as contended by Mr. Moorman, failed to appeal some permits for fencing in the BPKACCC. Such failure was, however, persuasively shown to have occurred as a consequence of severe understaffing, which inhibited the Department's ability to review all permits issued by Monroe County in a timely fashion (i.e., before the appeal period expired), and the breach of a memorandum of understanding entered into between the Department and Monroe County, and not as a consequence of any position adopted by the Department that fencing in the BPKACCC was permissible. Accordingly, the Department's appeal of the Moorman permit is not inconsistent with any position it has previously taken with regard to the propriety of fencing in such area. 2/ Moreover, neither the Moormans nor Your Local Fence made any inquiry of the Department as to why some permits were appealed and others were not, or requested that the Department waive its appeal period, prior to erecting their fence. Under such circumstances, it was found in the FLWAC cases, and is so found here, that the proof fails to support the conclusion that the Department misled the Moormans or Your Local Fence so as to bar it from contesting the propriety of their permit or, here, from maintaining this enforcement action. 3/
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Department of Community Affairs enter a final order directing the respondents, Charles Moorman, Kathleen Moorman, and Your Local Fence, Inc., to remove the 400 linear foot fence constructed on the Moorman property, and that the respondents not construct, reconstruct, enlarge or expand a fence on the subject property unless and until such time as the Monroe County Board of County Commissioners adopts, and the Department of Community Affairs approves, a comprehensive plan and land development regulations which specifically authorize such development. Removal of the subject fence shall occur within thirty (30) days after the entry of the final order. RECOMMENDED in Tallahassee, Leon County, Florida, this 30th day of April 1992. WILLIAM J. KENDRICK 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 30th day of April 1992.
The Issue Whether Petitioner, Gateway Farms, LLC, is entitled to payment from Landscape Service Professionals, Inc., and the Gray Insurance Company, as Surety, pursuant to sections 604.15 through 604.34, Florida Statutes (2015), for the purchase of trees; and, if so, in what amount.
Findings Of Fact The Parties Gateway is a producer and seller of agricultural products, including slash pine trees. Gateway operates tree farms on 200 acres in five different locations in Columbia, Alachua, and Suwannee Counties. David Hajos is the owner and principal operator of Gateway. Mr. Hajos has 17 years of experience in growing, harvesting, and selling pine and other species of trees in Florida. Respondent Landscape is a Florida licensed dealer in agricultural products, pursuant to chapter 604. Landscape is a full-service landscape business located in Tamarac, Florida. Sandy Benton has been the president of Landscape for 18 years. Respondent, Insurance Company, filed a denial of the claim and was represented at hearing by Landscape’s counsel. Gateway has been doing business with Landscape for many years, with no indication of prior problems relating to the quality of trees provided. Lynn Griffith, Landscape’s plant and soil expert, considers Gateway to be a competent and professional grower. The Setting At all relevant times, Landscape was a contractor responsible for installing landscaping at the Palm Beach County Solid Waste Authority (SWA) site on Jog Road in Palm Beach County, Florida. Pursuant to orders placed by Landscape, Gateway sold a total of 148 slash pines for use at the SWA site. The invoices for those pines are dated January 22 and 23, and February 9 and 16, 2015. Upon their arrival at the site, authorized personnel of Landscape received, inspected, and accepted the 148 slash pine trees. No problems or concerns were expressed regarding the delivery or condition of the slash pines. The Dispute Giving Rise to this Proceeding Between 20 and 30 of the trees ordered from Gateway were intended as replacement trees for the approximately 150 slash pines provided by six other vendors that had been planted by Landscape, and then died. When the dead trees were removed by Landscape, pine beetles were observed infesting the trees. Within several weeks of planting, 58 of the slash pines purchased from Gateway began to show signs of decline, resulting in their eventual death. Landscape consulted with the Palm Beach County Extension Service and industry professionals as to the cause of the death and decline of the slash pine trees, who undertook an investigation into the same. Slash pine trees are very sensitive and can be easily stressed. Stress can be caused by a variety of factors including: transplanting; harsh handling; bark exposure to sunlight, including superficial wounds to the bark; too much or too little water; or planting too deeply. The stress will cause a tree to emit chemicals that attract beetles, which inhabit the trees and may kill a stressed tree within a week or two of the infestation. In March 2015, Lynn Griffith, an agricultural consultant, conducted an SWA site visit. Mr. Griffith noted that a majority of the planted pines were healthy, but there were some that were not doing well; some had holes in them indicative of a pine beetle infestation. In his report dated March 12, 2015, Mr. Griffith opined on the impact of the ambrosia (pine) beetle infestation on the slash pines: The quantities of boreholes in some of the dead or declining pines would lead me to conclude that borers could be a primary cause of death, but in other cases the number of holes was low, indicating the pine decline was initiated by other factors. In an e-mail dated April 24, 2015, Ms. Benton advised Gateway (and JWD Trees, another supplier of slash pines to the SWA site) that the cause of the death and decline of the slash pine trees were because the two suppliers failed to properly prepare them in the nursery, and had sold them to Landscape with root systems inadequate to support the normal performance of the plant. At hearing, Ms. Benton’s opinion regarding the cause of death of the pines was echoed by John Harris, accepted as an expert in landscape economics and arborism. Mr. Harris’s opinion centered on only one possible explanation for the trees’ demise: a failure to have an adequate root system or an inability of the roots to generate new growth. Typically, this is caused by improper “hardening off” of the root system by the grower. However, on cross-examination, Mr. Harris acknowledged that while pine beetles typically infest stressed trees, if the beetle population builds up enough in an area they will attack otherwise healthy trees. At hearing, Mr. Hajos testified that the pine trees he supplied to Landscape had been properly hardened off for a period of six weeks: Hardened off is a process when you dig a tree and you hold it until it starts to regenerate new roots, so instead of just digging it up and selling it we dig it up and hold it under optimal irrigation and nursery conditions before we ship the tree. Mr. Hajos further testified that any trees that are going to die due to the stress of being dug out of the ground will die during the hardening off process. Mr. Hajos attributed the death of the Gateway trees to several factors, including stress caused by improper lifting of the trees during loading and unloading, stress caused by a delay in planting the trees after they arrived at the SWA site, and the pre-existing pine beetle infestation. Mr. Hajos examined a photograph received in evidence and explained that it showed a tree being improperly lifted by Landscape personnel during unloading. The photograph showed the strap around the tree trunk doing the primary lifting. The result is that rather than distributing the pressure between the trunk and the strap on the root ball, the root ball will be loosened, which will stress the tree. Mr. Hajos testified that he was aware that the Gateway trees that had been delivered to the SWA site were left on the ground for days before being planted. This testimony was corroborated by Landscape’s Daily Job Report log which reflected the delivery of the first load of Gateway pines to the SWA site on January 23 and 24, 2015, but that planting of those trees did not begin until January 29, 2015. On one occasion, a Landscape truck that had picked up trees from Gateway, broke down in Ocala on its return trip to Palm Beach County and had to return to the Gateway site in High Springs. There, the trees were unloaded, and then reloaded onto a different truck where they were delivered two days later to the SWA job site. This inordinate delay and additional loading and unloading further stressed the trees. Once Landscape became aware that it had a beetle infestation at the SWA site, it began a preventative spray program. However, once a pine beetle has entered the bark of a pine tree preventative spraying will be ineffective at eradicating the pest. Newly planted pine trees at the SWA site were not sprayed on the day of planting, thereby providing the pine beetles an opportunity to infest the new trees. Guy Michaud was Landscape’s job foreman at the SWA site. Mr. Michaud has been in the business of planting trees since 1983, and has worked for Landscape for 14 years. Mr. Michaud could not testify with certainty that the Gateway trees died of inadequate roots, as opposed to a beetle infestation. None of the other species of trees sold by Gateway for use at the SWA site experienced problems. Based on the totality of the evidence, it is more likely than not that a combination of factors contributed to the SWA slash pine deterioration, including delays in planting the trees after delivery, rough handling, and the beetles. None of these causes are attributable to the actions of Gateway. Likewise, the greater weight of the evidence does not support a conclusion that the trees sold by Gateway to Landscape were non- viable nursery stock. Subsequent to filing its claim in the amount of $13,462.30 with the Department, Gateway received a payment of $5,528.84 from Landscape. Thus, the unpaid balance due Gateway for the 58 slash pines is $7,933.46. Gateway is entitled to payment in the amount of $7,933.46 for the slash pine trees it provided to Landscape. Besides the amount set forth above, Gateway claims the sum of $50.00 paid for the filing of the claim against Landscape and its bond. The total sum owed to Gateway by Landscape is $7,983.46.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Agriculture and Consumer Services approving the claim of Gateway Farms, LLC, against Landscape Professional Services, Inc., in the total amount of $7,983.46 ($7,933.46 plus $50 filing fee); and if Landscape Professionals Services, Inc., fails to timely pay Gateway Farms, LLC, as ordered, that Respondent, The Gray Insurance Company, as Surety, be ordered to pay the Department of Agriculture and Consumer Services as required by section 604.21, Florida Statutes, and the Department reimburse the Petitioner as set out in section 604.21, Florida Statutes. DONE AND ENTERED this 18th day of March, 2016, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of March, 2016.
The Issue Whether the development order issued by the Monroe County Board of Commissioners for the construction of an elementary school on Big Pine Key, Florida, complies with the Monroe County Land Development Regulations, the Monroe County Comprehensive Plan, and the Florida Keys Area Protection Act.
Findings Of Fact THE PARTIES Petitioner, Department of Community Affairs (Department) is the state land planning agency charged with the responsibility to administer Chapter 380, Florida Statutes, and regulations promulgated thereunder. The Department has the authority to appeal any development order issued in an area of critical state concern to the Florida Land and Water Adjudicatory Commission. Monroe County is a political subdivision of the State of Florida and is responsible for issuing development orders for development in unincorporated Monroe County. Monroe County rendered Resolution 482-1992 (hereinafter referred to as the "development order") to the Department on November 3, 1992. Respondents Kitty Wasserman and BHF Corporation are the owners of approximately 11.41 acres of land on Big Pine Key, in unincorporated Monroe County, Florida, (hereinafter referred to as "the subject property"). Respondent Monroe County School Board (hereinafter referred to as "the School Board") has an option to purchase the subject property, and proposes to develop an elementary school on the subject property. The subject property is within the Florida Keys Area of Critical State Concern, as designated pursuant to Sections 380.05 and 380.0552, Florida Statutes. THE PROCEDURAL HISTORY OF THE DEVELOPMENT ORDER On November 27, 1991, the School Board applied to Monroe County for a conditional use permit to develop an elementary school on the subject property. On February 27, 1992, the Development Review Committee of Monroe County adopted a resolution that recommended denial of the application. On March 12, 1992, Lorenzo Aghemo, Director of Planning for Monroe County, entered Development Order 06-92, which denied the application. On July 9, 1992, the Monroe County Planning Commission entered Resolution P22-92, which denied the School Board's appeal of Development Order 06-92. On October 7, 1992, the Board of County Commissioners of Monroe County adopted Resolution 482-1992, which reversed the Planning Commission's Resolution P22-92. In a very brief order that contained no findings of fact or explication of rationale that is helpful to this proceeding, the Board of County Commissioners reversed the denial of the application as follows: Based on the principles of comity, this Board will respect the decision of the District School Board acting within the scope of its authority under Article 9, Section 4, of the Florida Constitution, pursuant to Section 235.193, Florida Statutes. Accordingly, the appeal of the District School Board of Monroe County is granted and the decision of the Planning Commission is reversed. Resolution 482-1992 constitutes the subject development order. This development order allows the development of a 60,028 square foot elementary school to serve a total of 507 students on the subject property pursuant to schematic drawings referred to as School Board Development Scheme 6. THE PROPOSED SCHOOL The State Board of Education has approved the proposed school site on Big Pine Key. The proposed school would be constructed pursuant to the State Uniform Building Code for Public Educational Facilities as required by Section 235.26(1), Florida Statutes. The Department does not dispute that an additional elementary school is needed to serve the public school students in the Lower Keys. There is only one elementary school, and one middle school, in the 50 miles between Marathon and Key West. Both of those schools are on a single site on Sugarloaf Key. In the absence of any environmental or comprehensive planning factors, Big Pine Key would be a logical place for the construction of a new elementary school since the largest number of students that would be served by such a school live on Big Pine Key. The proposed school would serve about 260 kindergarten through 5th grade students who live on Big Pine Key, as well as about 100 students who live on the neighboring Keys, Torch and Ramrod. Recognizing the need for a new elementary school, the Board began looking for sites on Big Pine Key in late 1988. County planning staff and biologists provided technical support to the Board to assist the Board in locating a site that complied with the County's comprehensive plan and LDRs. County personnel identified 18 possible locations on Big Pine Key, including the subject property. At that time, the County was preparing a Big Pine Key Community Plan, and the site that is the subject of this proceeding was in an area identified by that plan as "Range of Location for New Community Center Including School." A critical element in siting an elementary school is proximity to the students who will attend the school. It is important that elementary schools be sited so that parents have access to, and have a close relationship with, the school in order to be supportive of their children. Ideally, elementary schools should be neighborhood schools, i.e., in the area where the children live. A rule of thumb for elementary students is for the school to be within one-half mile walking distance. Busing should not involve more than a 15 minute ride. The approximately 260 elementary students that live on Big Pine Key presently attend the overcrowded Sugarloaf Elementary School. Because of restrictions on open space, the Board reduced the size of the planned school from 760 students to 507. The Board also clustered all of the buildings on the easternmost part of the property, away from proposed north- south deer corridors. The site plan was redesigned at least six times to provide additional green space, to use pervious concrete to reduce runoff, to provide for a single access road, and to preserve small, fresh water wetlands on the site. The eastern boundary of the proposed site abuts Key Deer Boulevard. The exhibits admitted into evidence that depict Scheme 6 show an access road to the school from U.S. 1. The U.S. 1 access road has been deleted, and the only access to the proposed property would be from Key Deer Boulevard. Construction of the buildings will be concentrated on the eastern side of the parcel. Four buildings are contemplated. The academic building will be in the northeast portion of the tract and will be a two-story building 88' (east to west) x 250' (north to south). The other three buildings will be situated south of the academic building. The art, music, and physical education building will be the westernmost of these three buildings and will be 64' (east to west) x 88' (north to south). The administrative building will be the center of these three buildings and will be 70' (east to west) x 78' (north to south). The kitchen, dining, multipurpose, stage, and custodial building will be the easternmost of these three buildings and will be 112' (east to west) x 88' (north to south). Between the buildings and Key Deer Boulevard will be drive ways and parking areas. Parking and a turn around area is located south of the buildings. The proposed school will include a softball field, which will be available for after-school recreational use. The softball field will be located west of the buildings. It is contemplated that the western portion of the property will remain undeveloped. As will be discussed below, the School Board is willing to dedicate an easement across the western portion of the property (including the Wasserman tract) to be used as a north-south corridor for the movement of Key Deer. THE SITE The subject parcel is within the range and habitat of the Key Deer. The Key Deer is listed as a federal and state endangered species, and is endemic to the Lower Keys. With the exception of an old roadbed that crosses the property, the subject parcel is undisturbed pineland. The subject parcel includes scattered freshwater wetlands, one of which is deep enough to be a permanent source of freshwater. The subject parcel is Key Deer habitat, since it contains food and a permanent source of freshwater, and is freely accessible to the deer. Individual Key Deer have often been observed on the subject parcel. Radio collar tracking and observation of fecal pellets confirm that the Key Deer freely utilize the habitat on the subject parcel. A portion of the subject parcel is designated Suburban Residential (SR) by the Monroe County land use map, and the remainder of the proposed site is designated Suburban Commercial (SC). Public buildings can be constructed on lands designated SR only after obtaining a conditional use permit from Monroe County. For that reason, the School Board is required to obtain a conditional use permit from Monroe County for the construction of the school. Monroe County's comprehensive plan includes a chart entitled "Impact Matrix of Habitat Structure and Function," developed in the late '70s and early '80s, that was translated into a point system called a Habitat Evaluation Index ("HEI"). For pineland habitat, the primary upland habitat on Big Pine Key, there are "high" and "low" quality areas. Eight habitat parameters are evaluated for each pineland parcel, with a maximum score of 3 points per parameter. An HEI of 18-24 indicates high quality; anything below an HEI of 18 is low quality. The proposed Big Pine Key school site has an HEI of 15, making it low quality pineland. The subject parcel is located a few hundred feet north of U.S. 1 on Big Pine Key, and immediately west of Key Deer Boulevard. On the opposite side of Key Deer Boulevard from the subject property is a shopping center that includes a Winn Dixie and a bank. On the opposite side of US 1 is an Eckerds Drug Store, Scotty's Hardware, Ace Hardware, Overseas Lumber Company, a garden center, and a commercial complex. To the north, the site is bounded by a church with classroom buildings, and a one-acre, fenced compound with a water tank owned by the Florida Keys Aqueduct Authority. Only the western boundary of the site borders a parcel with vegetation on it. The proposed school site consists of two tracts; the 2.5 acre Wasserman tract and the 8.91 acre BHF tract. The Wasserman tract, on the west, is partially fenced. While there was an assertion that the owners of the Wasserman tract had the right to reestablish the integrity of the fence, the evidence established that the fence has gaps in it and that it does not currently impede the movement of Key Deer across the property. The Wasserman tract is high on the US Fish & Wildlife Service's acquisition list as a "Priority 1" parcel for a Key deer movement corridor. The Board has stated its intention, should it acquire the two parcels and build the school, to take down the fences from the Wasserman tract and make the tract perpetually available as a north-south corridor for Key Deer movement. This would make the Wasserman parcel available for Key deer movements. Should the integrity of the fence be reestablished, the removal of that fence and a perpetual easement for use of the tract would be a benefit to the Fish & Wildlife Service's corridor plan for the movement of Key Deer. The School Board has attempted to strike a compromise between siting the school on Big Pine Key and off U.S. 1, keeping it out of prime Key Deer habitat and freshwater wetlands, and locating it where the children are. The School Board considers Big Pine Key to be the best area for the school because of the number of students who live on Big Pine Key. The School Board considers the subject location to be the best potential site for the elementary school on Big Pine Key. This determination was made from an educational viewpoint and based on recommendations from biologists and planners on the County staff. If a school is to be constructed on Big Pine Key, this site is the best that the School Board could locate. The subject site is considered by the School Board to be affordable, with a purchase price, for over 11 acres, at a little over $36,000 per acre. In comparison, another site on Big Pine Key that is located on the South side of U.S. 1 (most of the population of Big Pine Key is North of U.S. 1), would cost $250,000 per acre. The School Board has invested over $100,000 in the planning process, designing site plans, traffic studies, and the like. It is estimated that the School Board will have to spend an additional $70,000 for the planning for another site. The School Board was aware of the environmental concerns surrounding this project at the subject location. The Department did not mislead the School Board into believing that the subject location was considered by the Department to be an acceptable site. There are alternative sites for the elementary school. One of the alternatives for the needed elementary school is to expand the facilities at the existing site on Sugarloaf Key. That site is surrounded by a fresh water wetland. It has both endangered Silver Rice Rats and Key Deer on and near the site. There are serious problems with any attempt to permit a school at the Sugarloaf Key site, and it is likely that environmental concerns and other permitting problems will arise at any alternative site in the Florida Keys. Fresh water wetlands exist on and near the subject parcel. There are about 3,000 square feet of fresh water wetlands on the entire 11.41 acre site. Site plan #6 depicts a fresh water wetland on the southeast corner of the subject tract. The greater weight of the evidence establishes that this fresh water wetland is not on the subject tract, but that it is south of the school site. This wetland is a permanent source of freshwater for Key Deer. The construction of the proposed school will degrade this wetland. The construction will either divert rainwater away from the wetland or it will drain stormwater runoff over asphalt and roadbed into the wetland. The main access road from Key Deer Boulevard shown on development scheme 6 goes through a freshwater wetland on the proposed school site. Construction of the main access road will cause the freshwater wetland to be filled. THE COMPREHENSIVE PLAN AND LDRS The school will be a "public building" as defined by the pertinent land development regulations. Monroe County's Comprehensive Plan and LDRs were approved by the Department, and the Administration Commission, by Fla. Admin. Rules 9J-14 and 28-29, on July 29, 1986. The Monroe County Comprehensive Plan includes a Future Land Use Element and a Terrestrial Wildlife Management Section. Monroe County's Comprehensive Plan contains goals, objectives, and policies. These terms are defined in Rule 9J-5, Florida Administrative Code, as follows. 9J-5.003(36) "Goal" means the long-term end toward which programs or activities are ultimately directed. 9J-5.003(61) "Objective" means a specific, measurable, intermediate end that is achievable and marks progress towards a goal. 9J-5.003(68) "Policy" means the way in which programs are conducted to achieve an identified goal. Section 2-103 of the Future Land Use Element of the Monroe County Comprehensive Plan provides, in pertinent part, as follows: The Florida Keys constitute a unique and irreplaceable natural resource of local, regional, state, national, and international value. * * * It is essential, therefore, that the natural environment of Monroe County be conserved, and where appropriate, enhanced and restored. All future actions, both public and private, should be carried out in a way so as to ensure that the essential ingredients of Monroe County character are preserved and protected for existing and future generations. Objectives 1. To manage and control the use of land so that the natural environment of Monroe County is protected. Policies To protect natural, undisturbed lands from significant disturbance. To protect threatened and endangered species and their habitats from human activities that would expose such species to displacement or extinction. To conserve the habitat of endemic species of plants and animals. Section 2-106 of the Future Land Use Element of the Monroe County Comprehensive Plan provides, in pertinent part, as follows: The Key's hammocks and other upland habitats also are critical habitats for a number of plants and animals of special significance, including the Key Largo Wood Rat and Cotton Mouse, the Schaus Swallowtail Butterfly and the diminutive Key Deer. Of the 74 species of plants and animals listed as state or federal threatened and endangered species, 61 use uplands as a critical part of their habitat. These species are important because they bring to the Keys an element of speciality [sic]. The uniqueness of an area is a key factor in its attractiveness, and the continued maintenance of unique Key's species serves the intuitive human need to avoid extinction of species. Objective * * * 2. To protect the habitats of threatened and endangered species. Policies To protect upland areas that serve as habitat for threatened or endangered species Section 2-112 of the Future Land Use Element of the Monroe County Comprehensive Plan provides, in pertinent part, as follows: A principal focus of Monroe County's Comprehensive Plan is the capacity of the natural and built environment of the Florida Keys to accommodate future growth and development. At the core of this focus is an understanding that the geophysical characteristics of the Keys limit its future opportunities for economic growth and development. * * * A. Objectives To manage growth within the environmental and economic capabilities of the Florida Keys. To ensure that future development is consistent with the long term functional integrity of the natural resources of the Florida Keys. The Terrestrial Wildlife Management Policies section of the Monroe County Comprehensive Plan states that: In order to conserve and wisely manage the Keys' wildlife resources, the County will conscientiously direct its efforts toward the protection and improvement of wildlife habitats throughout the Keys. Development activities which may degrade, destroy, or severely impact productive areas for wildlife will be required to assess possible means and, to the extent practicable, adopt protective measures for abating these impacts on wildlife populations and habitat. Recognizing that each wildlife group has its own requirements and tolerances, the adequacy of protective measures will be evaluated for each individual species occupying the habitat. * * * 1.4 Planning, design, siting and construction of public capital improvements and facilities such as roads, solid waste disposal sites, and utility lines and structures will be carefully regulated to minimize impact on wildlife habitat and movement patterns. The County will exert special protective efforts regarding the preservation of rare, endemic, endangered, or threatened species as identified by Federal and State agencies and the habitat required to support these species in the coastal zone. Intensive development will be directed away from the habitat of rare, endemic, endangered or threatened species. * * * 2.4 Any major development project, public or private, will be reviewed to assess its impact on wildlife species of special concern in regard to the habitat, breeding, and feeding characteristics of such species. Adequate protective measures will be required to forestall potentially adverse impacts. The Terrestrial Wildlife Management Policies Section of the Monroe County Comprehensive Plan also provides that: 4. The County will encourage and support scientific studies related to wildlife management in the Keys and will utilize the recommended management principles in the deliberations concerning the impacts of various land uses upon the wildlife resources of the area. The Monroe County Comprehensive Plan designates the following areas as Areas of Particular Concern: Existing wildlife refuges, reserves, and sanctuaries. Known habitats of rare and endangered species as defined by the U.S. Department of the Interior, the Florida Game and Freshwater Commission, or the Florida Department of Natural Resources. Major wildlife intensive use areas such as well developed hammock communities, highly productive coastal tidelands, and mangroves. Big Pine Key, including the proposed school site, Ramrod Key, Big Torch Key, Little Torch Key, Cudjoe Key, and most of Sugarloaf Key, are within the boundaries of the area authorized for acquisition by the U.S. Government for inclusion in the Key Deer National Wildlife Refuge. The proposed school site is entirely within 1,000 feet of US Highway One, and is 1-1/2 miles south of the southernmost boundary of the Key Deer Refuge. The Department contends that because the U.S. Fish and Wildlife service wants to acquire the subject property as part of the Key Deer National Wildlife Refuge, the subject property should be considered to be within the administrative boundaries of the Refuge. This contention is rejected because the greater weight of the evidence established that the subject property is not a part of the Refuge and that the U.S. Fish and Wildlife Service currently exercises no jurisdiction over the subject property. The subject property should be considered an Area of Particular Concern because it is a known habitat of the endangered Key Deer. THE PRINCIPLES FOR GUIDING DEVELOPMENT The Florida Keys Area of Critical State Concern was designated in order to control the increased growth expected as a result of the construction of new bridges, the expansion of the Florida Keys aqueduct system, and other public facilities. The Florida Keys Area Protection Act requires that all state, regional, and local agencies and units of government coordinate their plans and conduct their programs consistent with the "Principles for Guiding Development". Section 380.0552, Florida Statutes, is the Florida Keys Area Protection Act. Section 380.0552(7), Florida Statutes, provide the "Principles for Guiding Development" in the Florida Keys, including the following pertinent to this proceeding: (c) To protect upland resources . . . freshwater wetlands, native tropical vegetation (for example . . . pinelands) . . . wildlife, and their habitat. * * * (i) To limit the adverse impacts of public investment on the environmental resources of the Florida Keys. * * * (l) To protect the public health, safety, and welfare of the citizens of the Florida Keys and maintain the Florida Keys as a unique Florida resource. All state, regional, and local agencies and units of government are directed to conduct their programs consistent with the foregoing Principles for Guiding Development. The availability and proximity of public facilities is desirable for development. The proposed school would make Big Pine Key a more attractive location for residential development. Indeed, the greater weight of the evidence established that the construction of the school on Big Pine Key would encourage development on Big Pine Key. THE KEY DEER The Key deer is listed as a federal and state endangered species. The Key Deer population is presently estimated to be between 250 and 300 animals, down from a high of 400 animals in the late 1970s. The cause of the decline in population is a combination of habitat loss, road kills, dogs, poaching, and other human-deer interactions. The Key Deer population is presently considered to be stable and the herd is considered to be healthy. The U.S. Fish and Wildlife Service has conducted a scientific study related to wildlife management in the Keys entitled the Final Land Protection Plan for the Establishment of Deer Movement Corridors (Feb. 1991). The study provides the following at page 4: Present and future actions to protect the Key Deer must (1) prevent the loss of essential habitat and properly manage all of the remaining protected areas; (2) prevent further fragmentation of the deer population and habitat; and (3) reduce roadkills and other adverse interactions with humans. Folk, Klimstra, Kruer, and Folk (1990), in their special report entitled Key Deer Accessibility to All of Big Pine Key, conclude that in order to maintain a viable herd, measures must be taken to ensure that deer have freedom of movement and access to all areas of Big Pine Key. They recommend the establishment of greenbelt corridors to allow the deer to safely cross U.S. Highway 1. They also recommend the protection of lands north and south of the highway to provide for contiguous corridors. Big Pine Key, including the subject parcel, is a major wildlife intensive use area. The hub of the Key Deer population is on Big Pine Key, with approximately 60 - 70 percent of the Key Deer population concentrated on that island. Although the deer inhabit several other Keys, Big Pine Key is the most important island for the Key Deer population because it is the only island which has permanent year around sources of freshwater in different parts of the island. The Key Deer use virtually all of Big Pine Key as habitat. Development of the proposed school will cause a loss of approximately five acres of Key Deer habitat on the subject parcel, and that loss of habitat will adversely affect the viability of the Key Deer. Location of a school in this area, together with the associated recreation activity, will concentrate daily human activity on Big Pine Key. There will also be a corresponding increase in human-deer interaction and further degradation of the remaining Key Deer habitat near the school. The development of the proposed school will eliminate a portion of the habitat of an endangered species. The freshwater wetland adjacent to the southeastern corner of the subject parcel is a permanent source of freshwater for the Key Deer. The construction of the proposed school will either divert rainwater away from the wetland or it will drain stormwater over asphalt and roadbed into the wetlands. The first option will reduce the size of the freshwater wetland. The second option will degrade the water quality of the wetlands. The development of the school buildings, the parking lot, and the playing field, between the remaining deer habitat and the wetland, will not prevent the Key Deer from using the wetlands that will remain after the construction is completed. The greater weight of the evidence established that the Key Deer will cross paved areas and could locate these wetlands after constuction is completed. The greater weight of the evidence also established, however, that the construction will discourage the Key Deer from using these wetlands. There are very few naturally occurring permanent freshwater sources in the south portion of Big Pine Key, where the proposed school will be located. Removing wetlands from the system, or minimizing access to the wetlands, will create an additional level of stress by making less water available to the deer. Most of the commercial and industrial development on Big Pine Key is concentrated on or immediately adjacent to U.S. 1. This band of commercial and industrial development forms an artificial barrier to deer movement which prevents the deer from gaining access to the diversity of natural foods needed to avoid nutritional deficiencies, and breaks the deer herd into small isolated groups resulting in inbreeding. In order to maintain a viable herd, the U.S. Fish and Wildlife Service has determined that two north-south corridors providing freedom of movement across U.S. 1 are necessary in order to allow the deer freedom of movement to all parts of Big Pine Key and has recommended the establishment of movement corridors as a Key Deer management principle. The western portion of the subject parcel is part of one of the two deer movement corridors recommended by the U.S. Fish and Wildlife Service. The construction and use of the proposed school will disrupt the deer movement corridors, and obstruct the free movement of the Key Deer between the north and south portions of Big Pine Key. Because the buildings will be clustered on the easternmost portion of the tract, the development will impede the east and west movement of Key Deer across the property. The east-west corridor is not, however, as significant as the north-south corridor because the commercial development on the east side of Key Deer Boulevard presently impedes that corridor. There is little more that could be done to improve the site plan, or provide more mitigation to protect the habitat of the Key Deer. The School Board has done everything practicable to adopt protective measures for abating the school's impact on the Key Deer population and habitat.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Water and Adjudicatory Commission enter a final order which rescinds the subject development order and denies the subject application. DONE AND ORDERED this 25th day of October, 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1316DRI The following rulings are made on the proposed findings of fact submitted by Petitioner. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 7, 8, 9, 10, 11, 12, 13, 16, 20, 21, and 23 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 6 are adopted in part by the Recommended Order. The proposed findings of fact in the second sentence are rejected as being unnecessary to the conclusions reached since the open space issue was dismissed. The proposed findings of fact in paragraph 14 are adopted in part by the Recommended Order. The described wetland was found to be adjacent to the southeastern corner of the subject property. The proposed findings of fact in paragraph 15 are adopted in material part by the Recommended Order or are subordinate to the findings made. The proposed findings of fact in paragraphs 17, 18, 22, 24, and 25 are subordinate to the findings made. The proposed findings of fact in paragraph 19 are rejected as being unnecessary to the conclusions reached. The following rulings are made on the proposed findings of fact submitted by Monroe County School Board, Kitty Wasserman, and BHF Corporation. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, 7, 9, 11, 13, 14, 15, 18, 28, and 29 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 8, 10, 12, and 19 are adopted by the Recommended Order or are subordinate to the findings made. The proposed findings of fact in paragraphs 16, 17, 31, 32, and 42 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 20, 23, 26, 27, 30, 37, 38, 39, 40, 41, and 42 are subordinate to the findings made or to the conclusions reached. The proposed findings of fact in paragraph 21 are adopted in material part by the Recommended Order with the exception of the proposed findings of fact in the last sentence of the paragraph, which are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in sentences 1, 2, 3 and 5 of paragraph are subordinate to the findings made. The remainder of paragraph 22 is rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 24 are rejected as being contrary to the findings made. The proposed findings of fact in the first two sentences of paragraph 25 are subordinate to the findings made. The remainder of paragraph 25 is rejected as being contrary to the findings made. The proposed findings of fact in paragraphs 33, 34, and 35 are rejected as being unnecessary to the conclusions reached since the Department clearly is not estopped from challenging the subject project. The proposed findings of fact in paragraph 36 are rejected as being unnecessary to the conclusions reached. While there are many other factors that would encourage growth on Big Pine Key, the pertinent issue is whether the construction of this school would encourage growth on Big Pine Key. The proposed findings of fact in paragraph 43 are rejected as being unnecessary to the conclusions reached since the open space issue was dismissed. COPIES FURNISHED: David L. Jordan, Esquire Lucky T. Osho, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 James S. Mattson, Esquire Andrew Tobin, Esquire Mattson & Tobin Post Office Box 586 Key Largo, Florida 33041-1900 John R. Collins, Esquire Attorney for Monroe County School Board Post Office Box 1788 Key West, Florida 33041-1788 James T. Hendrick, Esquire Morgan & Hendrick Attorney for Monroe County 317 Whitehead Street Key West, Florida 33040 William B. Spottswood, Esquire 500 Fleming Street Key West, Florida 33040 BHF Corporation Post Office Box 285 Big Pine Key, Florida 33043 Ms. Kitty Wasserman 3740 Inverrary Drive, Apt. #E-2 Lauderhill, Florida 33319 Greg Smith, Esquire Governor's Legal Office The Capitol, Room 209 Tallahassee, Florida 32399 David K. Coburn, Secretary Florida Land & Water Adjudicatory Commission 311 Carlton Building Tallahassee, Florida 32301 Carolyn Dekle, Director South Florida Regional Planning Council 3400 Hollywood Boulevard Hollywood, Florida 33021
Conclusions THIS CAUSE comes before the Agency For Health Care Administration (“the Agency") concerning Certificate of Need ("CON") Application No. 10183, which was filed by Rockledge HMA, LLC/Wuesthoff Medical Center-Rockledge (“Wuesthoff Rockledge”) in the first batching cycle of 2013, and preliminarily denied by the Agency. 1. On July 9, 2013, Wuesthoff Rockledge filed a Petition for Formal Administrative Proceeding contesting the preliminary denial to establish a 15-bed comprehensive medical rehabilitation unit, which was forwarded to the Division of Administrative Hearings (“DOAH”). 2. On July 11, 2013, HealthSouth of Sea Pines Limited Partnership d/b/a HealthSouth Sea Pines Rehabilitation Hospital (“HealthSouth”) filed a Petition for Leave to Intervene supporting the Agency’s denial of Wuesthoff Rockledge’s CON application. Filed July 14, 2014 10:32 AM Division of Administrative Hearings 3. On July 23, 2013, DOAH entered an Order Granting Petition to Intervene. 4. On June 18, 2014, Wuesthoff Rockledge filed a Notice of Voluntary Dismissal. It is therefore ORDERED: 1. The denial of CON Application 10183 is UPHELD. ORDERED in Tallahassee, Florida, on this /7 day of Tetley , 2014. Agency for Heglth Care Administration
Other Judicial Opinions A party that is adversely affected by this Final Order is entitled to seek judicial review which shall be instituted by filing one copy of a notice of appeal with the agency clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Final Orger has been furnished by US. Mail or interoffice mail to the persons named below on this [0 day of ety 2014. Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308 (850) 413-3630 Copies Furnished to: W. David Watkins Administrative Law Judge Division of Administrative Hearings (Via Electronic Mail) Geoffrey D. Smith, Esquire Susan Crystal Smith, Esquire Corinne T. Porcher, Esquire Smith and Associates Suite 201, 3301 Thomasville Road Tallahassee, Florida 32308 Attorneys for Rockledge HMA, LLC d/b/a Wuesthoff Medical Center-Rockledge (U.S. Mail) R. Terry Rigsby, Esquire Pennington, P.A. Post Office Drawer 10095 Tallahassee, Florida 32302 Attorney for HealthSouth of Sea Pines Limited Partnership d/b/a Healthsouth Sea Pines Rehabilitation Hospital (U.S. Mail) Richard Joseph Saliba Assistant General Counsel Agency for Health Care Administration (Electronic Mail) Facilities Intake Agency for Health Care Administration (Electronic Mail)
The Issue The issue in this case is whether respondent should be dismissed from her position as a teacher for the reasons given in the amended notice of proposed dismissal dated January 20, 1995.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all times relevant hereto, respondent, Gwendolyn M. Beeks, was a classroom teacher employed by petitioner, Duval County School Board (Board). When the events herein occurred, respondent was employed at Pine Estates Elementary School in Jacksonville, Florida. Between July 9, 1994, and August 22, 1994, respondent had access to the bank account of the Pine Estates Elementary School Safety Patrol. Based on a complaint by parents of patrol members, an investigation of the bank account was conducted by the state attorney. On November 14, 1994, the state attorney filed an information against respondent charging her with violating Section 812.014(c), Florida Statutes, a third degree felony. Specifically, respondent was charged with the theft of approximately $1,600.00 from the Safety Patrol bank account. On December 15, 1994, respondent entered a plea of guilty to the charge. The circuit court withheld adjudication, placed her on eighteen months probation, required restitution, payment of costs and a letter of apology, and ordered that she perform fifty hours of public service. On January 20, 1995, the Board issued its amended notice of proposed dismissal. Respondent has been suspended without pay since that time.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Duval County School Board enter a final order discharging respondent as a classroom teacher for violating Sections 4(a) and (d) of the Duval County Teacher Tenure Act, as amended. The charge that she has violated Section 4(b) should be dismissed. DONE AND ENTERED this 11th day of December 1995, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 1995. COPIES FURNISHED: Dr. Larry L. Zenke Superintendent of Schools Duval County Public Schools 1701 Prudential Drive Jacksonville, Florida 32207-8182 Thomas E. Crowder, Esquire 600 City Hall 1300 East Bay Street Jacksonville, Florida 32202 Ms. Gwendolyn M. Beeks 9801 Baymeadows Road, Number 156 Jacksonville, Florida 32202 Honorable Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
