The Issue The issue to be determined is whether the applicant, St. Augustine Port, Waterway and Beach District (District), is entitled to issuance of a permit by the Florida Fish and Wildlife Conservation Commission (Commission) for the incidental take of the least tern, subject to mitigation, related to the restoration of the Summer Haven River in St. Augustine, Florida.
Findings Of Fact The Parties Petitioner, William Clements, is the owner of a residence at 9079 June Lane, St. Augustine, Florida. The St. Augustine Port, Waterway and Beach District is a special taxing district created in 1937. Its enabling legislation was re-enacted in Chapter 2000-478, Laws of Florida, by which the District is authorized “[t]o improve all navigable and nonnavigable waters situated within the district, to create and improve for harbor purposes any waterways within the district, . . . to straighten, widen, deepen, and otherwise improve any and all waters, water courses, inlets, bays, lakes, or streams, whether navigable or otherwise, located within the district . . . and to dredge and deepen any natural or artificial waterway within the district.” Chapter 2000-478, § 4(c), Laws of Florida. The Florida Fish and Wildlife Conservation Commission is an agency of the state, created pursuant to Article IV, section 9 of the Florida Constitution to “exercise the regulatory and executive powers of the state with respect to wild animal life and fresh water aquatic life.” The Friends of Summer Haven River, Inc. (Intervenor), is a 501(c) corporation created in 2011 for the purpose of preserving and protecting the River as a waterway and wildlife habitat. Summer Haven River Prior to 2008, the River was a natural waterbody that extended several miles from its current intersection with the Matanzas River at its southern reach, to the Matanzas Inlet at its northern reach. The River was originally part of the natural channel of the Matanzas River until the Matanzas River was dredged and straightened in the 1930s to become part of the improved Intercoastal Waterway. The by-passed channel became known as the Summer Haven River. Prior to 2008, the area to the east of the River consisted of a stable dune system that separated the River from the Atlantic Ocean. U.S. Highway A1A used to run along the dune line until it was moved inland in the 1960s. In 2008, Tropical Storm Fay opened a breach in the dune system, and established a water connection between the Atlantic Ocean and the River. The breach was not immediately repaired. A subsequent series of storms further affected the area, flattening the dunes and depositing the sand into the River, filling the River for a substantial stretch. The action of the storms completely destroyed the preexisting open water and wetland estuarine system, the beach/dune system, and the associated habitat and foraging grounds used by a number of species of wildlife, including endangered and threatened species. The filled River bed is a low, flat, sandy expanse that extends to the Atlantic shoreline. It is occasionally over- washed and flooded by high tides and storm events. Prior to 2008, persons living to the west of the River, as does Petitioner, would have to walk or drive north on U.S. A1A, go across the Matanzas River bridge, and then cross the island to access the beach. The breach of the dunes and filling of the River created an uninterrupted stretch of sand that allows direct access across the historic River bed to the Atlantic beaches. Petitioner’s Interest in the River Petitioner’s residence fronts the Intercoastal Waterway. It is not directly adjacent to the River restoration area, but is near the location that is to be subject to restoration of the River, and the area of least tern habitat to be impacted. Petitioner uses the sandy areas near the least tern nesting area for walking with his dog, but does not venture into the nesting area. Petitioner lives in the area “because the whole environmental system of this area . . . it's good. We like it. We like this beach. We like the birds nesting there.” Petitioner testified that “[m]y interest or standing is the environment integrity, the beauty of the area, the access to the beach, the access to the intercoastal waterway, the fishing, just pick any reason that somebody would live in that area and that's the reason we live there.” The Least Tern The least tern (Sterna antillarum) has been designated by the Commission as a state-designated threatened species. The least tern is not a Federally-designated endangered or threatened species. Least terns are seasonally migratory. They winter in the Caribbean, Central America or South America, and return north in the spring to areas in North America, including Florida, to pair, mate, and breed. Least terns like open, sandy, well-drained areas surrounded by water. They prefer areas with enough scattered vegetation to provide cover for the chicks from the sun and from predators, but not so much vegetation as to allow predators to encroach undetected. The terns will try to nest on the highest area of a beach, though away from trees or structures that could provide predator perches. Least terns are opportunistic nesters. If there is a suitable and appropriate nesting site, least terns will not hesitate to use it. However, if conditions change, the terns will move. In Florida, due to loss of undisturbed areas of suitable material, about half of least terns now nest on pea gravel rooftops, though those types of rooftops are in decline. Those areas are dry, and free of predators, people, and dogs, which have made many natural areas unsuitable for nesting. Least terns are also predictable nesters. As long as a nesting site remains suitable for nesting, the terns will return in subsequent years. Conditions affecting their return include the overgrowth of vegetative cover, predators, and human traffic. Least terns prefer to nest in colonies. They build their nests on the ground. The eggs and chicks, though camouflaged, are an easy mark if discovered by predators. Terrestrial predators include raccoons, snakes, rats, and coyotes. Avian predators include gulls, crows, and herons, though there is little evidence of avian predation at sites in St. John’s County. Nests can be destroyed in areas that are affected by over-wash from storms or high tides. If such conditions occur early in the season, the terns may re-nest. However, areas of inundation create a nesting problem. Least tern eggs hatch 22 days after they are laid. The chicks fledge approximately 25 days later, and are able to migrate south several weeks thereafter. Least Tern Management Plan On March 31, 2011, the Commission issued a Least Tern Biological Status Report. The Commission recognized the decline in population of the least tern due to “low reproductive success, decrease in available nesting sites, increased predation, and vulnerability to stochastic events.” The report noted that “[r]ecreational disturbance has an overwhelming influence on the nesting success of least terns,” and that “[p]redation of eggs and chicks . . . can be severe for some colonies.” On November 1, 2013, the Commission published the final draft of “A Species Action Plan for Four Imperiled Beach- Nesting Birds,” which is applicable to the least tern. The plan recognizes that spoil islands are a suitable and effective location for nesting. The plan notes that the Commission’s rules lack specific guidelines for incidental take but provides that incidental take permits should be issued “if there will be a scientific or conservation benefit and only upon the applicant’s demonstration that the permitted activity will not have a negative impact on the survival potential of the species.” The Summer Haven River Nesting Site After the River was filled with sand, which created a wide, sandy, open area with little vegetation, it began to be used as a nesting area by the opportunistic least terns. The Commission first identified the River site as a least tern nesting area in 2010. In 2010, the site was used by about 100 pairs of nesting terns. Since the area had been newly identified, there was no count of surviving chicks or flight- capable juveniles. In 2011, the use of the River site was at its peak. The site was used by over 100 nesting pairs, producing 36 flight-capable juveniles. In 2012, there were again approximately 100 nests, but the number of flight-capable juveniles declined into single digits. By 2013, the number of nesting pairs of least terns declined to 36. The chick count was in single digits. Although there was one count in 2013 of 20 flight-capable juveniles, it is believed that they were from other nearby nesting areas. The River site was also subject to over-wash in 2013 which may have adversely affected the viability of eggs and chicks. The area of the River site posted as the least tern nesting area varies year-to-year, and is generally about 10 acres in size. The terns use only about five acres of that site. They prefer the north end, which is higher and drier, over the south end, which is lower and has been repeatedly washed out. Since its first use by least terns in 2010, the River site has been discovered by predators as evidenced by the increasing number of raccoon tracks in the area. In addition, people have been reported in the colony, and dogs have been observed running through the colony and chasing after the birds. Restoration of Summer Haven River The underlying consolidated Joint Coastal Permit and Authorization to Use Sovereign Submerged Lands issued by the Department of Environmental Protection (DEP), for which the incidental take permit was necessary, calls for the River to be restored to its pre-2008 condition. The total project area is approximately 32 acres in size. The River cannot be restored to its original width and depth without removing the least tern nesting area. The consolidated DEP permit has not been challenged, and is not a subject of this proceeding. The sand removed from the pre-2008 River channel will be used to recreate the dune system along the shore, which will consist of a protective berm, an intermediate “back berm” at an elevation of 8 feet NAVD (North American Vertical Datum or, roughly, height above “sea level”), and a line of dunes with a crest of 12 feet NAVD. The restoration of the River is expected to have a beneficial effect on wetland and open water habitat, beach and dune habitat, and other fish and wildlife species that previously used the River. The restoration of the River will be performed outside of the nesting season so that the least terns, and their nests, eggs, and chicks will not be physically affected or killed. However, the removal of the nesting habitat constitutes “harm and harassment,” thus necessitating an incidental take permit for an otherwise lawful activity. Intervenor’s Interest in the Permit Intervenor has approximately 300 active members interested in the restoration of the River, a substantial number of which reside in the vicinity of the River. Prior to the storms of 2008, the members enjoyed a variety of recreational activities on the River, including boating, kayaking, bird watching and enjoying the scenic nature of the River and its associated habitats. Intervenor is paying various permit- related costs, including the cost of obtaining a release of an easement on the mitigation spoil island, the cost of a Phase I environmental study on the spoil island, and the cost of publishing newspaper notice of proposed agency action. Mitigation To offset the effect of the River restoration on the least tern, the District has proposed mitigation in the form of two recreated or enhanced nesting sites. Back Berm One of the new nesting sites will be on the “back berm” of the recreated dune system. The back berm will provide three acres of least tern habitat near the shore, and in the same general location as the area affected by the River restoration activities. The back berm will be an open, sandy area at an elevation of eight feet, which should minimize incidents of over-wash and provide a greater degree of security for the nesting area. The back berm will not have any devices for protection from predators, and as such will exist much as the existing area does now. The back berm will exist as a natural nesting area similar to others along the coast. The back berm will provide a suitable and effective area for least tern nesting. Spoil Island The other new nesting site will be located on the northern end of a diked spoil island created during the dredging of the Intracoastal Waterway. The spoil island will provide 6.4 acres of least tern habitat within about one mile of the River restoration site. The spoil island, having been dredged from adjacent waters, has a sandy, somewhat shelly substrate that is consistent and compatible with the area. The spoil island is removed from direct tidal and storm-driven influences, and surrounded by a dike. As such, it is unlikely to be subject to the over-washes that have affected the River site. The spoil island is uninhabited, and inaccessible except by boat. Thus, the spoil island is unlikely to suffer impacts from the presence of humans and their pets. Least terns fly for miles around their breeding sites foraging for food. Thus, the one mile distance from the spoil island to the River nesting site, and distance from the spoil island to the waters of the Atlantic Ocean will pose no impediment to their ability to locate the spoil island as a potential nesting area, or to thereafter forage and feed. The mitigation proposal calls for the spoil island to be shaped and contoured with a gentle slope from the highest area on the north to the lowest area on the south. The dike will not be touched so as to preserve its integrity and prevent erosion. Excess vegetation and trees extending more than five feet above the top of the dike are to be removed as part of the initial habitat creation, and again prior to the second and third nesting seasons. In order to prevent predators from invading the property, a 2,000-foot solar powered electrical fence is to be installed 30 feet from the inside edge of the dike around the full perimeter of the spoil island mitigation site. Although the evidence was somewhat contradictory as to the height of the fence, the greater weight of the evidence demonstrates that the fence is to be 42 inches in height. Before the nesting season, the fence will be activated, and bait caps will be placed along the perimeter in locations that will cause predators attracted by the bait to be shocked by the fence. In that way, they will be reluctant to come near the perimeter when birds show up to inhabit the interior. Thus, the likelihood that a predator would jump the fence or dig under the fence is minimized. The fence is a commercially available fence that has proven to be effective in dry, sandy soils to prevent the incursion of raccoons, foxes and coyotes. Petitioner has argued that the fence will likely not be effective in keeping out snakes, which he believes to inhabit the spoil island. Given that the southern part of the island, outside of the mitigation area, is protected gopher tortoise habitat, and that snakes often live in gopher tortoise burrows, his belief is not unwarranted. However, snakes are not a primary predator, and are not known to decimate colonies as can mammalian predators. The protection provided to birds in a natural environment cannot be absolute. Mitigation sufficient to offset the loss of habitat allowed by an incidental take permit does not require the creation of a bubble, but requires reasonable and scientifically supported means of ensuring the viability of the site for nesting and habitat. The electric fence as proposed provides such a means. The District is to install social attractors, including a solar powered bird call broadcast system and life size decoys. The bird call system is designed to operate at a volume that will be effective to attract least terns as they fly up and down the coast. The decoys will be placed in paired and single configurations located within the mitigation site. The Commission has used broadcast bird calls and decoys to attract a similar species of tern to an island in the Dry Tortugas that had been made suitable for nesting as a result of the destruction of vegetation during the hurricanes of 2005. The effort was a success, and the terns were attracted and have returned each year, even after the bird calls were discontinued. The evidence supports a finding that the broadcast bird calls and decoys will be effective to draw the attention of the least terns and attract them to the spoil island. During the nesting season, an observer is to be dispatched to the spoil island twice weekly to inspect the fence, make sure it is functioning properly, and check for any signs of human, natural, animal, or weather-related interference. The observer will make minor repairs and adjustments to the fence as necessary. The observer will also inspect the decoys and make sure they are in place and in good shape, and make adjustments or replacements if necessary, and ensure that the bird call system is functioning, and perform maintenance if needed. The evidence is sufficient to demonstrate that the twice-weekly inspections will be effective to insure the integrity of the social attractors. The observer will be able to determine if the fence causes entanglement of other species of animals, including gopher tortoises. In the event entanglement, though unlikely, is discovered, the system may be modified to prevent such occurrences. The evidence in this case suggests that avian predators are not a significant cause of predation of least tern colonies in St. John’s County. However, if the twice-weekly inspections during breeding season reveal that avian predation has become a problem, the District has agreed to implement such controls as are needed, in consultation with the Commission, and to obtain necessary permits for such controls. Petitioner argues that it would be a better gauge of success and effectiveness to construct and install the back berm and spoil island mitigation, and allow for a period of years to elapse before allowing the River restoration and incidental least tern habitat disruption to proceed. However, the likelihood is that the least terns would not be attracted to the spoil island site as long as the River site, as poor as it has become, is present and undisturbed. In addition, the back berm site is to be constructed from material recovered during the River restoration. Thus, the proposal to construct the mitigation in advance of the impact is impractical and, given the preponderance of the evidence in this proceeding, unnecessary. The suggestion that the mitigation proposed offers no absolute guarantee of success overlooks the fact that the current River site has no controls, is subject to regular over- wash, and appears to be increasingly affected by predators and humans. The evidence in this case is persuasive that the mitigation proposed will provide better nesting habitat than that available at the River site, resulting in a greater chance of breeding success for least terns in the area and a likely increase in the local population. The mitigation will completely offset the “take” of least terns occasioned by the River restoration such that there will be no net injury, harm, or loss of least terns. The activities authorized by the Permit will not affect human safety. It is possible that the least terns displaced from the River site may find places to nest other than those created pursuant to the incidental take permit. The predators in the spoil island area may be particularly clever and able to circumvent the fence. However, the greater weight of the reasoned, scientific evidence in this case is persuasive that there is a substantial likelihood the mitigation proposed will benefit the conservation and management of least terns, and will have a positive impact on the survival potential of the least tern.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law set forth herein it is RECOMMENDED that the Florida Fish and Wildlife Conservation Commission enter a final order approving the issuance of Listed Species Incidental Take Permit No. LSIT- 13-00009A to the St. Augustine Port, Waterway and Beach District. DONE AND ENTERED this 26th day of June, 2014, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 26th day of June, 2014. COPIES FURNISHED: Ryan Smith Osborne, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399 Jacob David Varn, Esquire Fowler White Boggs Banker 101 North Monroe Street Tallahassee, Florida 32301 William George Clements 9079 June Lane St. Augustine, Florida 32080 James E. Bedsole, Esquire Law Offices of James E. Bedsole, LLC 7 Old Mission Avenue St. Augustine, Florida 32084 Eugene N. Wiley II, Executive Director Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399 Harold G. Vielhauer, General Counsel Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399
Findings Of Fact The Guana River Marsh Aquatic Preserve (the Preserve) is state-owned property. Title is held by the Board of Trustees of the Internal Improvement Trust Fund. It includes some 13 miles of Atlantic Ocean beach within St. Johns County. Within the boundaries of the Preserve is included the Guana River State Park (the Park). It, too, is state-owned. It is managed and operated by the Division of Recreation and Parks (the DRP) of the Department of Environmental Protection (the DEP). Some of the Preserve's Atlantic Ocean beaches are included within the boundaries of the Park. The "wet sand," or "hard sand," area of the Atlantic Ocean beaches in the Preserve is the area of the beach between mean high water and mean low water. The mean high water line is essentially the landward extent of the ocean at mean high tide; the mean low water line is essentially the landward extent of the ocean at mean low tide. When the tide is low, this entire area of the beach is exposed. It remains wet and, generally, relatively hard-packed during the time it is exposed. However, there are beds of "red shell" in this part of the beach that are softer. In the summer, this part of the beach averages approximately 50 feet in width. In the winter, when the waves and tides generally are higher, it is narrower. In the Preserve, the mean high water line usually is indicated both by debris washed up during the highest tides and left on the beach and by a "shelf." This "shelf," made by the erosive action of the ocean waves during the highest tides and during storms, rises at an angle of approximately 45 degrees and can be from one to four or five feet high. Landward of this shelf is the "dry sand" or "soft sand" beach, also sometimes referred to as the "upper beach." It extends landward from the mean high water line to the vegetation line, where the dunes start. Usually, some pioneer vegetation is found in the uppermost reaches of this part of the beach, forming what is called the "foredune" area of the beach. The tides along the Atlantic Ocean beaches in the Preserve are semi- diurnal, i.e., there usually are two high tides and two low tides a day. These high and low tides last approximately one hour, and each day they occur approximately an hour later than they did the day before. There are five beach access points with motor vehicle parking areas located along U.S. Highway A1A within the Preserve. Three are within the Park. There is parking for approximately 120, 68, 79, 42 and 25 vehicles in these five parking areas. There also is a current proposal for the addition of three more access points in the Park, with parking for a total of 340 vehicles, five beach bathhouses, and five pedestrian overpasses. There are many other places where pedestrians can walk from A1A to the beaches, including 30 County-controlled access points. But there are no lawful parking areas adjacent to any of these other access points at this time, and parking on the right-of-way of A1A is prohibited. Currently, the only lawful motor vehicle access to the Atlantic Ocean beaches in the Preserve is to the south of the Preserve. Prior to the agency action challenged in these proceedings, motor vehicles lawfully could be driven onto the beach at this access point and be driven north into the Preserve, so long as they remained below the mean high water line. A former access near the north end of the Preserve has been cordoned off. To leave the Preserve, motor vehicles would have to be turned around and driven back south to the same motor vehicle access point. Due to the restricted access to the Atlantic Ocean beaches in the Preserve, not much use is made of those beaches. In comparison, beaches to the south are used much more heavily. Of the relatively few who use the motor vehicle access to the south and drive on the beach north through the Preserve, some ultimately use the beaches to picnic, swim, surf, beach-comb and similar activities; some probably just drive on the beach. There was no evidence quantifying the uses currently being made of the beaches in the Preserve. In the past, homemade motor vehicles called "skeeters" were built with a light-weight chassis and over-sized wheels. They were used for driving on both the hard and soft areas of the beaches, as well as illegally in the dunes. This practice has been curtailed due to better enforcement of the prohibitions against driving in the dunes, a generally heightened environmental consciousness among the public, and prohibitions against driving the "skeeters" on public highways. Generally, there has been less driving on the beaches of the Preserve in recent years, although the practice persists at a reduced level. At all times of the year, it sometimes is impossible to drive along the entire length of the beaches in the Preserve without driving on the soft sand area. This is especially true during the winter months when the waves and tides are higher and storms are more frequent. But even in the summer months, there are times when "red shell beds" in the "wet sand" part of the beach must be circumvented to avoid getting stuck. Especially when the tide is not at its lowest, the only way to avoid some of these "red shell" beds is to drive over the "shelf" and onto the "soft sand." Depending on the tides, this may also be necessary in order to turn a vehicle around on the beach. In many places, the "soft sand" area is not very wide, and it would be necessary under those circumstances to drive in the "foredune" area. The times of the daily high and low tides can be obtained relatively easily by members of the public. But there is no assurance that all persons who would drive on the beaches would know the times of the tides. Nor is there any assurance that persons who drive the "wet sand" or "hard sand" part of the beaches at low tide also would plan to both start their beach drive and their return trip during low enough tides to be able to avoid driving on the "soft sand" part of the beach. For these and other reasons, it would be difficult, if not practically impossible, to effectively monitor beach driving throughout the Preserve and consistently enforce a restriction to driving only on the "wet sand" or "hard sand" areas of the beach. In the summer months, sea turtles lay eggs in nests dug in the sand of the foredune and dune areas of the Atlantic Ocean beaches in the Preserve. After a period of incubation in the nests, the turtle hatchlings dig themselves out of the nests and crawl to the ocean to begin their lives in the sea. Driving motor vehicles over nests on those parts of the beaches in the summer months could crush eggs in their nests or pack the sand hard enough to reduce the number of hatchlings that emerge from the nest alive. In addition, driving motor vehicles in these area, even in other parts of the year, can leave ruts in the beach that disorient hatchlings that leave the nests in summer so that fewer reach the ocean alive. Sea turtles crawl out of the ocean to their nest sites at night. Artificial lighting can disturb their nesting and egg-laying activities. However, it seems that moving lights, or lights that turn on and off (in the manner of car lights), create more of a disturbance than stationary lights, such as those more often found at residences along the beaches in the Preserve. The Management Plan does not prohibit artificial lighting along the beaches in the Preserve, but it recommends that further attention be given to this problem and that ways to address the problem be explored and pursued in cooperation with the County. Various shore birds, including the threatened least tern, make their nests in the foredune area of the beaches in the Preserve. Driving on the foredunes destroys and disturbs nesting habitat and disturbs the nesting activities of these birds. In addition, both these ground nesting shore birds and a variety of migratory birds make use of different areas of the beaches to rest and feed. Driving on the beaches disturbs these activities, as well. The only known nesting colony of least terns in St. Johns County is located in the Park, where beach driving is prohibited. The Division of Parks and Recreation (DPR) of the Department of Environmental Protection (DEP) has utilized F.A.C. Rule 16D-2.002(4)-(5) to prohibit driving or parking motor vehicles on the beaches of the Park by not designating the beaches as driving or parking areas within the Park. At least parts of the beaches in the Park have been posted as areas where driving motor vehicles is prohibited. In order to develop a management plan for the Preserve, the manager of the Preserve personally researched the geology, climate and natural resources of the Preserve, as well as the records of the County, and also collected data pertaining to the Preserve from several state agencies. Over the course of a year, the manager's input was taken into consideration, and a management plan, called the Guana River Marsh Aquatic Preserve Management Plan (the Management Plan), was developed for the Preserve. It was adopted by the Board of Trustees of the Internal Improvement Trust Fund on December 17, 1991. The Management Plan recites in pertinent part: At the present time, motorized vehicular traffic is permitted, by county ordinance, below the natural vegetation line on the beaches adjacent to the Atlantic Ocean in St. Johns County. Vehicles are not allowed on the 4.2 miles of beach within Guana River State Park. The coarse coquina sand and steep profiles of the beaches in the preserve make driving on the wet sand area difficult. Drivers are forced to cross the dry sand area, damaging the foredunes, pioneer dune vegetation and sea turtle nesting habitat. Due to the negative environmental impacts resulting from this activity, motorized vehicular traffic shall not be considered an authorized activity on sovereign submerged lands within [Prime Resource Protection Area] PRPA beach management areas of the preserve, and therefore will be prohibited. Under the Management Plan, all of the Atlantic Ocean beaches in the Preserve are Prime Resource Protection Area, and the driving of motorized vehicles on them is prohibited. On June 11, 1993, the DEP's DRP sent St. Johns County a letter advising that, based on the Management Plan, DEP no longer would permit the driving of motor vehicles on the Atlantic Ocean beaches in the Preserve. The proposed amendment to F.A.C. Rule 18-20.004(7), incorporating the Management Plan, was noticed in the Florida Administrative Weekly on August 6, 1993. On or about August 18, 1993, the DEP agreed not to enforce the beach driving prohibition in the Preserve until these cases are resolved.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Respondent, the Department of Environmental Protection enter a final order enforcing the prohibitions contained in both F.A.C. Rule 16D-2.002(4)-(5) and the proposed amendment to F.A.C. Rule 18-20.004 against the driving of motor vehicles on the beaches on the Atlantic Ocean beaches in St. Johns County that are within the Guana River Marsh Aquatic Preserve. RECOMMENDED this 30th day of November, 1993, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 November, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3970 To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1. Accepted and incorporated. 2.-6. Accepted and incorporated to the extent not subordinate or unnecessary. 7. Subordinate and unnecessary. 8.-9. Accepted and incorporated to the extent not subordinate or unnecessary. First sentence, rejected as not proven. There also is access by boat and, albeit over longer distances, by foot. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted in part and rejected in part, as reflected in the Findings of Fact. Accepted as representative of dead low tide. Subordinate and unnecessary. Accepted and incorporated. Rejected in part: in that there are "red shell beds" in summer, too, and they can force drivers onto the "soft sand" areas in summer, too, depending on the tides; in that "dramatically" is argument and not proven; and in that Exhibit 2 depicts dead low tide in summer. Accepted but subordinate and unnecessary. Rejected as not proven. (Enforcement of such mitigation would be impracticable or impossible.) Accepted but subordinate and unnecessary. Accepted and incorporated. 20.-21. First sentence, accepted and incorporated. Second sentence, accepted that the County uses "due care," but enforcement of a prohibition against driving anywhere except on the "hard sand" is impracticable or impossible. Rejected as not proven. Accepted but subordinate and unnecessary. Rejected as not proven that there is "no way to get to many beach areas" or that limited access "restricts traditional use." (Access as limited, or more limited, is "traditional.") 25.-27. Accepted and incorporated. Rejected as not proven. (How easy it is depends entirely on the tide, the number and location of people on the beach, and the presence of "red shell" beds.) Accepted and incorporated. Respondent's Proposed Findings of Fact. 1.-3. Accepted and incorporated except to the extent conclusion of law and unnecessary. Accepted and incorporated. Accepted but subordinate and unnecessary. 6.-20. Accepted and incorporated to the extent not concluson of law, subordinate or unnecessary. 21.-24. Rejected as being conclusion of law. 25.-33. Accepted and incorporated to the extent not subordinate or unnecessary. 34. Rejected as conclusion of law as to who is "responsible." 35.-54. Accepted and incorporated to the extent not subordinate or unnecessary. 55. Rejected as not proven. Also, conclusion of law. COPIES FURNISHED: Daniel J. Bosanko, Esquire Assistant County Attorney St. Johns County Post Office Box 1533 St. Augustine, Florida 32085-1533 Edwin A. Steinmeyer, Esquire Barrie J. Sawyer, Esquire Assistant General Counsel Department of Environmental Protection Mail Station 35 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, Esquire General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue Whether Respondents discriminated against Petitioner, Nisrine Smith, on the basis of her disability, in violation of the Florida Fair Housing Act (FHA), chapter 760, part II, Florida Statutes; and, if so, the appropriate penalty.
Findings Of Fact Respondent Ocean Towers is a residential condominium facility in Volusia County, Florida, with numerous condominium units. Respondent Sentry managed Ocean Towers during the time period relevant to the instant matter, but it no longer serves as the manager of Ocean Towers. Ms. Smith leased a furnished condominium unit from its owner and resided at Ocean Towers, beginning in January 2019. Ms. Smith paid monthly rent to the condominium unit’s owner, which also included all utility charges. Ms. Smith is a person with a nonvisible disability, which she described as post-traumatic stress disorder, depression, and anxiety, who requires the use of an emotional support animal (ESA).3 On September 8, 2019, Ms. Smith brought an approximately 14-week- old female Rottweiler puppy named Vida to live with her at Ocean Towers. At that time, the “Daytona Beach Ocean Towers Rules & Regulations” provided, in part, as follows: Respondents’ Proposed Recommended Order concedes certain dispositive facts, and also includes contradictory factual findings—both within the Proposed Recommended Order itself, as well as when compared to evidence presented—that the undersigned considered and discusses in this Recommended Order. 3 Both Petitioner’s Proposed Recommended Order, as well as Respondents’ Proposed Recommended Order (which, as discussed in footnote 2 above, is largely duplicative of Petitioner’s Proposed Recommended Order), assert—in identical fashion—that Ms. Smith has a disability and requires the use of an ESA. While the evidence at the final hearing was not entirely clear on this point (a point which resulted in FCHR finding no reasonable cause), Respondents, in their Proposed Recommended Order, concede this point. The undersigned has thus based this Finding of Fact on this stipulation. Confusingly, other “original” or “nonduplicated” portions of Respondents’ Proposed Recommended Order state that Ms. Smith never provided documentation to it that she had a disability, which required an ESA, but Respondents have clearly conceded this particular factual finding in their Proposed Recommended Order. PETS: Guests may not have pets in the building. All authorized small pets except certified service dogs must be carried while in public areas of the building and garage. Unless inside units, pets must be on a leash and owners are responsible for cleaning up after their pet while on [Daytona] Towers property. Ms. Smith had not informed Ocean Towers about Vida’s arrival prior to bringing her to Ocean Towers. On September 12, 2019, Maria Montgomery, who was the administrative assistant for Ocean Towers, emailed Ms. Smith concerning Vida. The email stated that “new pets are to be firstly reported to the office and rules apply as I am sure you are aware.” It further states that “Service animal or companion pets all need to have registered papers copied to the office[,]” and further states “[w]e do not need to know ‘why’ if it is a companion animal-we just need to have the authorization on file for Security, etc. in the event someone asks why an animal not in the ‘normal’ pet description of 20 pounds or less is living in the building ” Ms. Montgomery’s September 12, 2019, email to Ms. Smith was likely precipitated by Ocean Towers resident Ms. Honeycutt, who was also the condominium association president in 2019. Ms. Honeycutt—who has been paralyzed since birth and uses a wheelchair—testified that she encountered Ms. Smith and Vida on two occasions. On the first occasion, in an elevator, Ms. Honeycutt testified that Vida jumped on her lap. On the second occasion, in the condominium lobby, Ms. Honeycutt testified that Vida again jumped on her lap, but that she was able to move away from Vida. Mr. Zehrung, who was the manager at Ocean Towers in 2019 (and employed by Sentry), testified that he received numerous complaints from other tenants about an unleashed Rottweiler, and was aware of Ms. Honeycutt’s encounters with the dog as well. After determining that Ms. Smith was the owner of the dog, he informed her of the Ocean Towers “Rules and Regulations” concerning pets; he stated that Ms. Smith did not initially tell him that Vida was an ESA, but did so about one week after this conversation. In response to Ms. Montgomery’s email request, Ms. Smith provided Ocean Towers with a letter, dated September 17, 2019, from the “Medical & Psychiatric Clinic of Florida, Inc.,” from “Yessica Sanchez, Office Coordinator, ARNP.” That letter stated: Ms. Nisrine Smith is currently being treated at the Medical & Psychiatric Institute of Florida, Inc. Ms. Smith presently has her pet Rottweiler, also known as Vida, with her in her apartment. It would be beneficial for her to have her pet if the apartment complex allows her to keep it. The September 17, 2019, letter, which is not from a treating physician, makes no reference to whether Ms. Smith has a disability, and further makes no reference to her dog as an ESA, but rather refers to the dog as a “pet.” Ms. Smith testified that, after submitting the September 17, 2019, letter to Ocean Towers, she felt everything would be “okay,” and that she would be able to keep Vida as an ESA. However, she testified that she was “rudely treated” by other residents, including comments about the dog’s size, and the Ocean Towers rules that require a resident to carry their pet while in the lobby and indoor common areas. Ms. Smith felt that she was being discriminated against by Ocean Towers because of Vida’s dog breed, Rottweiler. Both Ms. Honeycutt and Mr. Zehrung testified that the September 17, 2019, letter that Ms. Smith submitted to Ocean Towers was not a sufficient request for an ESA. They both testified that had Ms. Smith submitted an appropriate “ESA letter” with “correct documentation,” Ocean Towers would have allowed Ms. Smith to keep Vida at Ocean Towers. Mr. Zehrung testified that there were three or four other tenants of Ocean Towers who had ESA’s, with “documentation.” On September 19, 2019, Ocean Towers, through its attorney, sent, via certified and regular mail, a letter to Ms. Smith and the owners of the condominium unit, that stated, in pertinent part: It is our understanding that your current tenant has a rottweiler within the unit. Said possession of the dog in the unit in common elements of the Association is a violation of the governing documents of the Association. * * * The Association received a letter from your tenant indicating that the rottweiler is an emotional support animal; however, regardless if it is an emotional support animal, the Association will not permit this animal to reside at the property because it is a dangerous breed on the Association’s insurance and only small animals are permitted. The dog is not a service animal, and therefore must be removed from the property by September 30, 2019. Furthermore, prior to the removal of the pet from the property, the owner must carry the pet when the pet is not within their unit, the dog must be on a leash, the dog may not be in the common elements of the Association and must only use the facilities that are designated for relieving pet waste. At no point is this dog allowed to be not on a leash or not hand-carried. In the event that the dog is not removed by September 30, 2019, the Association will file before the Department of Business and Professional Regulation a petition for injunctive relief seeking the permanent removal of the dog. In the event that this is necessary, the Association will be entitled to recover their reasonable attorney’s fees and cost. The September 19, 2019, letter from Ocean Towers to Ms. Smith directly contradicts the testimony of Ms. Honeycutt and Mr. Zehrung in two important ways: (a) it admits that Ms. Smith’s September 17, 2019, letter was a request for an ESA; and (b) it denies Ms. Smith’s request (“regardless if is an emotional support animal”), based on the dog’s breed, labeling it a “dangerous breed on the Association’s insurance[.]”4 The undersigned further notes that the September 19, 2019, letter from Ocean Towers makes no reference to any incident of Vida jumping on Ms. Honeycutt, or any other incident of alleged aggressive behavior of Vida. Although Ms. Honeycutt’s testimony that Vida jumped on her lap on two occasions is credited, Respondents failed to present any other credible evidence that Vida was an “aggressive animal,” or whether Vida posed any direct threat to the safety of the residents of Ocean Towers, as Respondents contend in their Proposed Recommended Order. Additionally, Respondents did not present any evidence that demonstrated that a rottweiler was forbidden under any insurance policy that covered the Respondents. Ms. Smith testified that she felt that Ocean Towers and its residents discriminated against and harassed her, and as a result, she decided to move out of her condominium unit the weekend of September 21 to 23, 2019. She testified that she received the September 19, 2019, letter during the weekend that she moved out. 4 The September 19, 2019, letter also contradicts numerous proposed findings of fact in Respondents’ Proposed Recommended Order which contest whether Ocean Towers ever received “proper documentation” of Ms. Smith’s request for an ESA. Respondents’ Proposed Recommended Order states that the September 19, 2019, letter, and a September 25, 2019, letter “were silent as to the need of an ESA and neither letter addressed that Smith suffered from a disability that would entitle Smith to have an ESA animal[,]” and, ultimately, that “Towers did not discriminate against Smith because Smith never provided documentation to the Association that she had a disability that required her to have an Emotional Support Animal.” Resp. Proposed Recommended Order at p. 5, ? H. The undersigned notes that the September 19, 2019, letter, which contradicts these proposed findings, was written by Ms. Kirian, who is counsel of record in this matter, and who authored the Proposed Recommended Order. Additionally, as stated in note 3 above, Respondents concede, in their Proposed Recommended Order (which is identical to Petitioner’s Proposed Recommended Order on this point), that Ms. Smith “is a person with a non-visible disability who requires the use of an Emotional Support Animal (ESA).” Resp. Proposed Recommended Order, p. 3, ? A. After moving out, on September 25, 2019, Ms. Smith provided another letter from the “Medical & Psychiatric Institute of Florida, Inc.,” from “Asad H. Kahn, M.D.,” to Ocean Towers, which stated: Attention: Current Housing Manager Ms. Nasrine [SIC] Smith is currently receiving treatment at our office for psychiatric condition. She has a pet dog. It would not be emotionally beneficial for her to lose her pets at this point. We do not have any opinion on risk of safety of the residential area due to the animal. The safety of the area needs to be assessed by the security of the housing project. Ms. Smith testified that after moving out, she was able to purchase a home. She contends that she incurred moving expenses when she vacated Ocean Towers, and that her current monthly mortgage payments, which do not include utilities, are more expensive than her previous rental payments at Ocean Towers. However, Ms. Smith did not present any persuasive evidence that quantified any damages she contends that she incurred as a result of Respondents’ discriminatory housing practices. The undersigned finds that Ms. Smith established, by a preponderance of the evidence, that Respondents discriminated against her based on her disability, by failing to provide a reasonable accommodation—an ESA—in violation of the FHA.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby RECOMMENDS that the Florida Commission on Human Relations issue a final order granting Nisrine Smith’s Petition for Relief, in part, as follows: (a) finding that Respondents engaged in a discriminatory housing practice based on Ms. Smith’s disability, by failing to provide a reasonable accommodation to Ms. Smith in the form of an ESA; (b) ordering Respondents to prohibit the practice of denying reasonable accommodations to individuals and tenants who request a reasonable accommodation on the basis of their disability; and (c) ordering Respondents to pay for the reasonable attorney’s fees and costs incurred by Ms. Smith’s counsel in this proceeding. DONE AND ENTERED this 30th day of March, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Tammy S. Barton, Agency Clerk S ROBERT J. TELFER III Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 2021. Nisrine Smith Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 Joseph John St. Angelo, Esquire Community Legal Services of Mid-Florida 122 East Colonial Drive, Suite 200 Orlando, Florida 32801 Laura Qualatone Daytona Beach Ocean Towers, Inc 4188 South Atlantic Avenue New Smyrna Beach, Florida 32169 5143 Taylor Avenue Port Orange, Florida 32127 Marlene Kirtland Kirian, Esquire South Milhausen, P.A. Gateway Center 1000 Legion Place, Suite 1200 Orlando, Florida 32801 Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020
The Issue The issue to be determined in this case is whether the Leon County Application Review Committee's preliminary decision approving a site and development plan for the Market District Housing (LSP 180013) is consistent with the Tallahassee-Leon County Comprehensive Plan ("Comp Plan") and the Leon County Land Development Code ("Code").
Findings Of Fact The Parties The Petitioner, Wynona C. Braswell, lives at 2784 Palafox Lane, which is the single-family lot located at Lot 5, Block A, of the 2008 Palafox Preserve Subdivision Plat ("Plat"). The Petitioner, Vickie Goodman, lives at the single- family lot located at Lot 1, Block A, of the Plat. The Petitioners are concerned that changes in the storm water management facility on Lot 1, Block B, of the Palafox Preserve Subdivision will reduce the size of the storm water pond. The Petitioners are concerned that changes in the storm water pond will cause the conservation easement to overflow and burden the storm water facilities owned by residential homeowners. Leon County is a political subdivision of the State of Florida and has adopted a comprehensive plan that it amends from time to time pursuant to chapter 163, Florida Statutes. Leon County is responsible for enacting and applying relevant Comp Plan and Code provisions to the development of property located within its political boundaries. Palafox is a limited liability corporation that is the applicant seeking approval for the "Type A" site and development plan, which is the subject of this proceeding. Palafox is the sole member of the Palafox Preserve Commercial Property Owners' Association, Inc. Gary Zins owns and controls Palafox through its managing member, Evergreen Communities, Inc., and is also the president of the Palafox Preserve Commercial Property Owners' Association, Inc., and controls the association as its only officer and director. Land Use Designations The Project is located on approximately 2.75 acres of the approximately 6-acre parcel of land identified as Lot 1, Block B, on the Plat. The parcel is within the Suburban ("SUB") and Lake Protection ("LP") categories on the Future Land Use Map of the Comp Plan. The parcel is split zoned Office Residential 3 ("OR-3") and LP. The Project is proposed only within the OR-3 zoned portion. Policy 2.2.5 of the Future Land Use Element ("FLUE") of the Comp Plan provides that the major function of the SUB designation is to mix placement of employment and shopping opportunities, with convenient access to low and medium density residential land uses. The proposal for 36 dwelling units which equates to a density of approximately 13 dwelling units per acre ("du/a") meets the gross density requirement of the OR-3 zoning district. The Project is located within the Urban Services Area established by the FLUE, which is the area identified by Leon County as desirable for new development based on the availability of existing infrastructure and services. The parcel contains a localized closed basin, wetlands and 100-year floodplain. Consistent with Comp Plan Conservation Element Policies 1.3.2 and 1.3.6, the areas of the site that contain environmentally sensitive features were previously placed in a perpetual conservation easement, and Palafox does not propose to disturb the area in the conservation easement. Background Leon County previously approved development of 19 single-family lots located on Lots 1 through 19, Block A, of the Plat. This development included infrastructure such as Palafox Lane, which is the entrance to the subdivision, and storm water management facilities in both Block A and Block B of the Palafox Preserve Subdivision. The Palafox Preserve Subdivision is a common scheme of development, and the storm water management facilities are operated under a single operating permit. It is also a private subdivision with all of the storm water management facilities dedicated to private entities and not to Leon County. A wetland of approximately seven acres was identified as part of the Natural Features Inventory ("NFI") and placed in a perpetual conservation easement in 2006. The wetland was initially delineated in 2001 by Kevin Songer who represented the applicant at that time. Mr. Songer's wetland delineation was field reviewed by representatives from Leon County and the Florida Department of Environmental Protection, adjusted, and finally approved by Leon County in 2006 as part of the NFI approval. The wetland and perpetual conservation easement straddle the boundary between Block A and Block B with about two- thirds in Block A and about one-third in Block B. With the required buffer area added to the approximately seven-acre wetland, the perpetual conservation easement in total covers approximately nine acres. Subsequent permits for the development of the Palafox Preserve Subdivision, such as for the 19 homesites, relied on the 2006 NFI, which included the 2001 wetland delineation and the perpetual conservation easement. Leon County did not require new wetland delineations prior to development of each homesite even though homes were built as recently as 2012, 2013, and 2014. The storm water management facility constructed in Block B of the Plat is labeled as SWMF #1. SWMF #1 was designed to retain the additional runoff from the first 500 feet of Palafox Lane up to the 100-year, 24-hour storm. SWMF #1 has a concrete weir that allows a controlled discharge into the adjacent conservation easement wetlands. Storm water management facilities constructed in Block A included SWMFs #6 and #7 that collect the runoff from the homesites located on the west side of the conservation easement, namely Lots 11 through 19. Lots 11 through 19 all contain a portion of the conservation easement area as well as platted drainage easements. SWMFs #6 and #7 are constructed in the platted drainage easements on Lots 11 through 19 in Block A. SWMFs #6 and #7 are constructed in a horseshoe shape adjacent to the conservation easement, are designed as detention facilities, and discharge to the conservation easement wetlands. The SWMF #1 retention facility, the SWMFs #6 and #7 detention facilities, and the conservation easement containing the wetlands are within the localized closed basin. There is another SWMF to the west behind homesites located on Lots 1 through 7 that is labeled SWMF #5. SWMF #5 is not within the localized closed basin and discharges to the Lake Jackson drainage basin. The conservation easement also contains a "pop-off" or outfall which allows for discharge of water from the wetlands to the west if it reaches a certain elevation, which based on the plans is 223.57 feet. It was designed to mimic pre-development conditions and only discharges if the 100-year, 24-hour storm is exceeded. If discharged, the water would travel west through drainage easements to SWMF #5 and ultimately to Lake Jackson. Because the localized closed basin retains up to the 100-year, 24-hour storm, it is a closed basin under the Code. Leon County also previously approved commercial development on Lot 1, Block B, of the Plat, which is still active (Palafox Preserve Commercial Project). The site development approval and environmental permits for the Palafox Preserve Commercial Project are current but would be superseded by final approval of the site and development plan and environmental permit for the current Project. The Project In 2014, an earlier application for Site Plan and Development Review was submitted for the Market District Housing Project. An Environmental Permit Application ("EMP") was also reviewed concurrently under the Code. Leon County issued a preliminary written decision of approval, which was appealed by Robert and Wynona Braswell, and the case was assigned to DOAH. Based on certain issues, the application was withdrawn, and the parties litigated in circuit court. That litigation concluded with a Final Judgment in favor of Evergreen Communities, Inc., and Palafox. Palafox then submitted the current site and development plan application for the Project dated April 4, 2018, which was designated LSP 180013. Palafox concurrently submitted an EMP application for the Project, which was designated as LEM 18- 00034. The Project's current Plan application was reviewed by various departments within Leon County, as well as several other entities and agencies. Ms. Shawna Martin, principal planner with the Leon County Development Services Division, coordinated the review gathering comments and feedback from the various departments and agencies and coordinated the preparation of a Staff Report for the Application Review Meeting ("ARM") held on April 25, 2018. The Staff Report recommended approval of the Project finding that the Project's proposed development was consistent with the Comp Plan, met applicable zoning standards and requirements, and met the applicable provisions of the County's Environmental Management Act ("EMA") and the provisions of chapter 10 of the Code. Leon County's Environmental Services Division ("Environmental Services"), under the supervision of Nawfal Ezzagaghi, a licensed professional engineer, reviewed the EMP application for the Project concurrently with the site plan and development review. Mr. Ezzagaghi has been the environmental review supervisor for Leon County since 2005, and is responsible for the review by Environmental Services' staff of environmental management plans, engineering calculations, engineering plans, and providing input on site plans and to the public works department. During the review of the application, both in 2014 and 2018, Environmental Services under Mr. Ezzagaghi's supervision reviewed the application including the storm water design, modeling, and construction plans, and coordinated and communicated with the applicant. Environmental Services received and reviewed the materials, conducted an independent analysis, and ultimately verified compliance with the EMA. The Petitioners received notice of the ARM meeting, submitted verbal and written comment, and ultimately challenged the written preliminary decision of approval. The Petitioners' challenge raised three primary issues: (1) that the Project is inconsistent with the Plat; (2) that the perpetual conservation easement wetland should have been re- delineated as part of the Project's current permitting application; and (3) that the storm water plan for the Project does not meet the requirements of the Code. Palafox Preserve Subdivision Plat The Plat designates a portion of Lot 1, Block B, as the "POA Drainage Easement." The dedication provisions of the Plat convey the POA Drainage Easement to the Palafox Preserve Commercial Property Owners' Association, Inc. Palafox, the applicant, is the sole member of the Palafox Preserve Commercial Property Owners' Association, Inc. The dedication provisions of the Plat convey all "drainage easements" to the Palafox Preserve Home Owners Association, Inc., which is the owners' association for Block A--the residential area of the subdivision. Plat Note 5 states that "the construction of permanent structures, including fences but excluding driveways, by the Property Owner is prohibited within drainage and utility easements." The Petitioners claim that the Project is inconsistent with the prohibition in Plat Note 5. SWMF #1 is located within the POA Drainage Easement on Lot 1, Block B, of the Plat and does not serve any part of the residential area of the subdivision. On its face, the prohibition in Plat Note 5 does not apply to the POA Drainage Easement. In addition, words such as "fences" and "driveways" more reasonably refer to residential areas of the Plat. Wetland Delineation The application for the Project did not contain a new NFI. Leon County informed Palafox that the parcel had already been through the NFI process and held a valid and active EMP. As a matter of policy, Leon County does not require submission of a new NFI or new wetland delineation once previously delineated wetlands are under a perpetual conservation easement that is dedicated to Leon County as a preservation area. Unlike the 2001 wetland delineation line submitted in the 2006 NFI and placed under the perpetual conservation easement, Kevin Songer's 2015 wetland delineation work for the Petitioners was neither checked by independent peer review nor confirmed by any state or local environmental regulatory agency. Mr. Songer's 2015 wetland delineation does not represent a recognized wetland jurisdictional line. Storm Water Plan The storm water management system for the Project is a "two-step system" designed to address both the water quality and volume control standards of the EMA. For water quality, the Code requires a one and one-eighth-inch standard for storm water treatment and the Project would satisfy this requirement through a new storm water detention and treatment facility. The detention pond is designed to treat the volume determined from the one and one-eighth-inch standard, or slightly more than 14,000 cubic feet. This is the more critical volume for which the new facility must be designed. For volume control, the closed basin standard requires the runoff volume in excess of the pre-development runoff volume to be retained for all storm events up to a 100-year, 24-hour duration storm. That difference is approximately 9,650 cubic feet. The closed basin for which retention must be demonstrated includes the conservation easement wetlands, and modeling demonstrated a change in elevation from 221.51 to 221.54 over approximately six acres. This difference in elevation is retained in the wetlands up to and including the 100-year, 24- hour storm. The post-development elevation of 221.54 does not approach the 223.57 "pop-off" elevation of the wetlands. SWMF #1 was designed to retain runoff from the first 500 feet of Palafox Lane up to the 100-year, 24-hour storm. The evidence established that SWMF #1 was "over-designed" because of circumstances in 2006 to 2007, which may have included different Code requirements and the wishes of the original developer. The Petitioners' engineer, Sal Arnaldo, who did not have any previous experience with the Code, opined that the existing SWMF #1 could not be replaced by the proposed detention with treatment facility. Mr. Arnaldo's understanding of the Code was that all storm water that falls on Block B and runoff from the first 500 feet of Palafox Lane must be retained in a retention pond up to and including the 100-year, 24-hour storm. He viewed SWMF #1 as the "closed basin" or the "site" that was not allowed to discharge to the conservation easement wetlands. In his opinion, the proposed detention facility for the Project did not provide the same function. Different pond sizes, designs, and storm water management methods can be used to meet the requirements of the Code exemplified by the fact that the two-step approach used for the Project is the same approach used on the west side of the wetlands for Lots 11 through 19, Block A. SWMFs #6 and #7 are also detention facilities which were designed to treat storm water and discharge to the conservation easement wetlands. Leon County's expert engineer, Mr. Ezzagaghi, testified that the SWMF #1 retention facility, the SWMFs #6 and #7 detention facilities, and the conservation easement containing the wetlands are part of the closed basin under the Code. Thus, the standard is not a comparison of the capacity of existing SWMF #1 to the capacity of the proposed detention facility, but whether the storm water system as a whole controls for the post- development volume that is in excess of pre-development conditions. The evidence demonstrated that the Project's proposed storm water system will not significantly impact the conservation easement wetlands and will not cause flooding or other adverse impacts to downstream areas. Summary The preponderance of the evidence, which includes Leon County's interpretation and application of applicable provisions of the Comp Plan and Code, demonstrated that the Project is consistent with all requirements for approval. See § 10-7.407, Leon Cnty. Code.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Leon County Board of County Commissioners enter a final order approving the Project, subject to the conditions outlined by the Application Review Committee in its written preliminary decision dated April 27, 2018. DONE AND ENTERED this 31st day of August, 2018, in Tallahassee, Leon County, Florida. S FRANCINE M. FFOLKES 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 31st day of August, 2018.
The Issue The issues for determination in this case are whether Respondent is indebted to Petitioner for the purchase of agricultural products, and whether such indebtedness constitutes a breach of the conditions of the bond posted by the Surety for which payment should issue.
Findings Of Fact Petitioner, DONNIS A. BARBER and KATHLEEN BARBER, d/b/a PEACE RIVER GROWERS (PEACE RIVER GROWERS), is a producer of agricultural products, primarily nursery ornamental plants, located in Zolfo Springs, Florida. Donnis A. Barber is an owner of PEACE RIVER GROWERS. Respondent, TOULIA XIOTAS INCORPORATED, d/b/a GULF BREEZE LANDSCAPING (GULF BREEZE), is a licensed dealer in agriculture products, holding license number 10091, issued by the Department of Agriculture and Consumer Services. At all material times, David Joy was the manager of GULF BREEZE. Co-Respondent and Surety, FRONTIER INSURANCE COMPANY OF NEW YORK (FRONTIER), posted Bond Number 5004806 in the amount of $9,999.00 in support of Respondent's license as a dealer in agricultural products. The inception date of the bond was April 30, 1996, and the expiration date of the bond was April 30, 1997. Prior to 1997, Petitioner PEACE RIVER GROWERS had sold agriculture products to GULFBREEZE for several years. GULF BREEZE would, in the usual course of business, order products by telephone which would be delivered by PEACE RIVER GROWERS with payment in full due at the time of delivery. GULF BREEZE changed ownership in 1996. Under its new ownership and manager David Joy, GULF BREEZE continued to order and receive agricultural products from PEACE RIVER GROWERS in 1997. GULF BREEZE, for several transactions in 1997, paid in full for the delivered agricultural products. On four business transactions in 1997 GULF BREEZE failed to pay for the agricultural products received from PEACE RIVER GROWERS at the time of delivery. Specifically, on February 26, 1997, PEACE RIVER GROWERS delivered products to GULF BREEZE valued at $831.20; on March 7, 1997, PEACE RIVER GROWERS delivered products valued at $857.50; on March 11, 1997, PEACE RIVER GROWERS delivered products valued at $425.00; and on April 4, 1997, PEACE RIVER GROWERS delivered products valued at $945.00. The total value of the agricultural products delivered by PEACE RIVER GROWERS to GULF BREEZE on these four occasions is $3,058.70. At the time of each of these four deliveries, PEACE RIVER GROWERS was informed by an employee of GULF BREEZE that the manager, David Joy, was not present, but that payment by check would be mailed. Upon failing to receive payment the delivery of April 4, 1997, PEACE RIVER GROWERS ceased making deliveries of agricultural products to GULF BREEZE. After several demands for payment by PEACE RIVER GROWERS, GULF BREEZE on May 27, 1997, remitted $200.00 to PEACE RIVER GROWERS, which amount was applied to a January 17, 1997, delivery, and which is not at issue in these proceedings. GULF BREEZE failed to properly make payment for agricultural products delivered by PEACE RIVER GROWERS and is indebted to SARASOTA GROWERS in the amount of $3,058.70.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered directing Respondent TOULIA XIOTAS INCORPORATED, d/b/a GULF BREEZE LANDSCAPING, to pay Petitioner DONNIS A. BARBER, d/b/a PEACE RIVER GROWERS $3,058.70 for agricultural products sold to Respondent, and in the event Respondent fails to make such payment, within fifteen (15) days of that order, that the Surety be required to pay pursuant to the bond posted. DONE AND ENTERED this 14th day of November, 1997, in Tallahassee, Leon County, Florida. RICHARD HIXSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUMCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 14th day of November, 1997. COPIES FURNISHED: Brenda Hyatt, Chief Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, Florida 32399-0800 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399 Donnis A. Barber, Owner Peace River Growers Highway 66 East Post Office Box 780 Zolfo Springs, Florida 33890 Toulia Xioutas, Incorporated Gulf Breeze Landscaping 901 MacEwen Drive Osprey, Florida 34229 Frontier Insurance Company of New York 195 Lake Louise Marie Road Rock Hill, New York 12775-8000
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the Hearing Officer's view of the project site, the following relevant facts re found: Respondent Sunset Realty Corporation initially applied to the Department of Environmental Regulation on March 2, 1979, for a permit to place 54,600 cubic yards of fill adjacent to Three Sisters Island and waterward of the mean high water line in Charlotte Harbor in order to construct a causeway and a sixty-foot bridge from Boca Grande Isles to Three Sisters Island. The applicant Sunset was notified on May 3, 1979, that adverse comments on the project had been received due to its impact upon biological resources. DER suggested that the application be modified by bridging the entire submerged area to alleviate biological and hydrographic concerns. On June 21, 1979, the respondent Sunset filed a revised application which reduced the volume of fill from 54,600 cubic yards to 25,000 cubic yards and extended the bridge from sixty feet to ninety feet long. The Department of Environmental Regulation forwarded to Lee County a summary of the Department's biological and hydrographic report. Additional information was not requested by the County. On October 31, 1979, the Lee County Commission considered the information made available to them from the Department and passed a resolution giving their approval to the first revision of the project by respondent Sunset. Finding that the applicant had not provided reasonable assurance that immediate and long-term impacts of the project would not result in violation of state water quality standards for Class II waters, the Department of Environmental Regulation issued its Intent to Deny Sunset's permit application on March 24, 1980. After a biological and hydrographic study of the project area, Sunset filed a second revision to its project on June 30, 1980. This revised application requested a permit for 10,000 cubic yards of fill and a 120-foot long bridge. In addition, this revision contained plans to install groins at the south end of Three Sisters Island and on Boca Grande Isles, to place riprap along the face of the fill, to remove and relocate existing oyster bars, to maintain turbidity barriers around the project during construction, and to direct stormwater run-off from the concrete bridge to an upland retention area on Three Sisters Island. It was also stipulated by respondent Sunset at the hearing that it would agree, as a condition of the permit, to replant mangrove vegetation along the shoreline of Three Sisters Island. On July 18, 1980, the Department of Environmental Regulation issued a Letter of Intent to Issue the applicant a permit for the revised project. The Department of Environmental Regulation did not seek reapproval of the revised project from the Lee County Commission because the scope and impact of the revised project were substantially reduced. It is not the policy of DER to request a new local approval for reduced projects. All property within the project boundary including submerged lands to be filled is held in fee simple by respondent Sunset. The waters affected by the proposed project are Class II waters, but are unclassified by the Department of Natural Resources as to shellfish harvesting. The nearest Class II waters which thus far have been approved for commercial shellfish harvesting are located approximately one and a half miles north of the project site. The proposed project would involve the destruction and elimination of approximately one acre of productive marine bottoms. The area has an abundance of grass beds and organisms that constitute a viable marine nursery and habitat. The area is not considered a spawning ground for any significant commercial or sport fish species. While the project will eliminate one acre of shallow water and productive bottom resources, the project should have no permanent effect upon the quality of the remaining surrounding waters. Three different species of mangroves vegetate the shoreline and the project would entail the removal of approximately 2/10 acre of mangroves. As indicated above, the applicant has agreed to insert a condition in the permit to revegetate mangroves around the site. The project will also entail the removal of one or two oyster bars. Live oysters can be removed and relocated by the use of floating cages. Relocation of the oysters to the riprapping and bridge pilings should increase their productivity. While the proposed fill will eliminate a wading bird habitat, birds will not otherwise be affected except during the construction of the project. The area around Three Sisters Island is an excellent fishing ground for line and net fishing for trout, red fish, mullet and sheepshead. Concern was expressed by commercial fishermen at the hearing that the bridge would obstruct net fishing, that the construction of the bridge would drive the fish away temporarily and that the fish, being creatures of habit, would not come back. The 120-foot bridge itself would have a minor effect of approximately 2% upon the restriction of flow in the area. A flow resistance is presently caused by the channel itself, a sharp bend in the channel that occurs at a constriction or spit, and the spit itself. The spit severely restricts flow and the channel needs to be enlarged. The remedial measure proposed is to place groins on the spit and on Boca Grande Isles across the spit. This will gradually enlarge the opening and reduce constriction. The placement of groins could provide a 40% increase in flow through the channel, and the increased circulation will improve the overall system. The two groins proposed are 40 feet and 80 feet in length. The groins will intercept the transport of sand and the pass will thereby be enlarged. The groins will be visible to boaters in shallow water and will not be a significant hazard to navigation. Three Sisters Island is a fifteen acre island to be utilized by Sunset Realty Corp. for residential development. Employees of DER who testified at the hearing were not aware of DER ever permitting filling in Class II waters for the purpose of aiding a private development or use. Other regulatory agencies providing comments on the proposed project after its first revision recommended that all fill be deleted from the project plans and that the bridge be constructed so as to span the entire submerged lands and shoreline wetlands. These agencies included the United States Department of the Interior, the Department of the Army, the Florida Game and Fresh Water Fish Commission, the United States Department of Commerce and the United States Environmental Protection Agency. With the exception of Durbin Tabb and Richard Lotspeich, both of whom felt that the destruction of one acre of bottom resources would not be significant to the total system, all other experts in marine biology who testified at the hearing felt that spanning the entire area with a bridge and eliminating the fill would provide a viable alternative to the permanent elimination of wetlands and shorelands. The petitioner Gasparilla Island Conservation and Improvement Association, Inc. is a non-profit, tax exempt corporation which was incorporated in 1971. The qualification for membership is the ownership of real property on Gasparilla Island. Approximately 700 property owners on Gasparilla Island are eligible to be members of GICIA. The actual membership is approximately 446. Twenty-two members own property on Boca Grande Isles, the subdivision closest to Three Sisters Island. Among the purposes of the GICIA are the promotion of Land, water and wildlife conservation uses and purposes in the Gasparilla Island area in Lee County and Charlotte County, Florida, including the preservation of ecology of the area, the protection of fish and shellfish breeding areas, the preservation of wildlife, and the promotion of anti-pollution measures. Members of the association use the proposed project area for recreational boating, commercial fishing, shellfish gathering, swimming, fishing and enjoyment of the natural flora, fauna and wildlife. Association members will be adversely affected by the destruction of grasslands, mangroves and oyster beds. The Organized Fishermen of Florida, Inc. (O.F.F.) is a non-profit corporation with chapters throughout the State of Florida. Its purposes include the protection of the fishing industry of Florida and the promotion and sponsorship of conservation. Some members of O.F.F. regularly fish in the Three Sisters Island area that would be impacted by the proposed project. No evidence was presented at the hearing that the State Board of Directors of O.F.F. officially sanctioned witnesses to appear on behalf of the incorporated Organized Fishermen of Florida. No evidence was presented at the hearing as to the standing or substantial interest of the Florida Division of the Izaak Walton League or Eugene C. Enlow, both listed as Petitioners in the "Amendment of Petition for Formal Hearing." Petitioner Freemen Boynton is the owner of a residence located on Lot No. 98 on Boca Grande Isles. The proposed access bridge and groins are to be constructed on Lots No. 99 and 100 which are contiguous to Mr. Boynton's lot. The groin on Lot No. 99 could cause sand and other debris to accumulate upon Mr. Boynton's riparian property. Petitioner Boynton uses his home on Boca Grande Isles about two and one-half months per year and fishes along the shore, collects oysters, conch and shells and engages in bird watching. He is a member of the Gasparilla Island Conservation and Improvement Association, Inc., and he feels that the proposed project would remove some of the recreational aspects of his property and Three Sisters Island. Petitioner Ralph Cole is 71 years old and has been a commercial fisherman in the Charlotte Harbor area since the age of 12. He fishes the Three Sisters Island area every week. He feels that the area is an excellent fishing ground and that the proposed bridge would be in the way of striking a net.
Recommendation Based upon the findings and fact and conclusions of law recited herein, it is RECOMMENDED that the application of Sunset Realty Corporation for a permit be DENIED insofar as it includes the deposition of 10,000 cubic yards of fill in Class II waters. Respectfully submitted and entered this 24th day of February, 1981, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1981. COPIES FURNISHED: Joseph W. Landers, Jr. Ausley, McMullen, McGehee, Carothers and Proctor Post Office Box 391 Tallahassee, Florida 32302 Charles G. Batsel Wotitzky, Wotitzky, Johnson, Mandell and Batsel 201 W. Marion Drive Punta Gorda, Florida 33950 Robert M. Rhodes and Terry E. Lewis Messer, Rhodes, Vickers and Hart Post Office Box 1976 Tallahassee, Florida 32302 Lester E. Durst Farr, Farr, Haymans, Moseley and Emrick Post Office Box 635 Punta Gorda, Florida 33950 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 H. Ray Allen Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue The issue to be determined in this case is whether the amendments to the Manatee County Comprehensive Plan (Manatee Plan) adopted by the Board of County Commissioners of Manatee County via Ordinance No. 13-10 on December 5, 2013, are “in compliance,” as defined in section 163.3184(1)(b), Florida Statutes (2013).
Findings Of Fact The Parties Katie Pierola is a resident and landowner in Manatee County. Mrs. Pierola made timely objections and comments to Manatee County on the 2013 Amendments. Greg Geraldson is a resident and landowner in Manatee County. Mr. Geraldson made timely objections and comments to Manatee County on the 2013 Amendments. Manatee County is a political subdivision of the State and has adopted the Manatee Plan, which it amends from time to time pursuant to section 163.3184, Florida Statutes. Robinson Farms is a Florida corporation doing business in Manatee County and owning real property in the County. It owns the property affected by the 2013 Amendments. The 2013 Amendments The 2013 Amendments would amend the Future Land Use Map of the Manatee Plan to change the future land use classification of approximately 20 acres of land owned by Robinson Farms from RES-1 to RES-3. The land is described by metes and bounds in Exhibit A to Ordinance No. 13-10. It is located on the north side of 9th Avenue Northwest, about 600 feet east of 99th Street. The RES-1 classification allows one dwelling unit per acre (du/a). The RES-3 classification allows up to three du/a. The General Introduction chapter of the Manatee Plan, Section D – Special Plan Interpretation Provisions, would be amended to add the following new text: D.5.16 Ordinance 13-10 (ROBINSON FARMS PLAN AMENDMENT) The 20± acre property identified as the Robinson Farms Plan Amendment and designated RES-3 on the Future Land Use Map pursuant to Manatee County Ordinance No. 13-10 shall be limited to a maximum of thirty eight (38) residential units. Coastal Evacuation Area and Coastal High Hazard Area All 20 acres of the Robinson Farms property is within the Coastal Evacuation Area (CEA). The CEA is defined in the Manatee Plan as: The evacuation Level A for a Category 1 hurricane as established in the regional evacuation study applicable to Manatee County, as updated on a periodic basis. Future Land Use Element (FLUE) Policy 2.2.2.4.2, which addresses the purposes of the CEA, states in part: To limit population in the Category 1 hurricane evacuation area requiring evacuation during storm events. To limit the amount of infrastructure, both private and public, within the CEA Overlay District and thereby limit magnitude of public loss and involvement in mitigating for loss of private infrastructure to Manatee County residents. To, through exercise of the police power, increase the degree of protection to public and private property, and to protect the lives of residents within the CEA, and reduce the risk of exposing lives or property to storm damage. All but 4.68 acres is within the Coastal High Hazard Area (CHHA). The CHHA is defined in the Manatee Plan as: The geographic area below the Category 1 storm surge line as established by a Sea, Lake, and Overland Surges from Hurricanes (SLOSH) computerized storm surge model, pursuant to applicable law, as updated on a periodic basis. FLUE Policy 2.2.2.5.2, which addresses the purposes of the CHHA, repeats the same purposes that are set forth above for the CEA. Relevant Goals, Objectives, and Policies Goal 4.3 of the Coastal Element of the Manatee Plan is: Protection of the Residents and Property Within the Coastal Planning Area from the Physical and Economic Effects of Natural Disasters Coastal Element Objective 4.3.1 states: Limit development type, density and intensity within the Coastal Planning Area and direct population and development to areas outside the Coastal High Hazard Area to mitigate the potential negative impacts of natural hazards in the area. Coastal Element Policy 4.3.1.1 states: Direct population concentrations away from the Coastal Evacuation Area FLUE Policy 2.2.2.4.5(a), which addresses development restrictions in the CEA, states: Prohibit any amendment to the Future Land Use Map which would result in an increase in allowable residential density on sites within the Coastal Evacuation Area. FLUE Policy 2.2.2.4.4(a) states, in part: The area designated under the CEA Overlay District on the Future Land Use Map shall also be subject to all goals, objectives and policies for any land use category overlaid by the CHHA District, except where policies associated with the CEA Overlay conflict with such goals, objectives and policies. In this event, policies associated with the CHHA Overlay District shall override other goals, objectives and policies. FLUE Policy 2.2.2.5.5(a), which addresses development restrictions in the CHHA, states: Prohibit any amendment to the Future Land Use Map which would result in an increase in allowable residential density on sites within the Coastal High Hazard Area Overlay District. FLUE Policy 2.2.2.5.4(a) states that, in the event of a conflict between CHHA policies and other policies in the Manatee Plan, the CHHA policies shall override. Data and Analysis Petitioners contend that the 2013 Amendments are not based on best available data and analysis as required by Florida Administrative Code Rule 9J-5.005(2). However, that rule was repealed in 2011. Section 163.3177(1)(f) requires that plan amendments be based on “relevant and appropriate data and analysis.” This section explains: To be based on data means to react to it in an appropriate way and to the extent necessary indicated by the data available on that particular subject at the time of adoption of the plan or plan amendment at issue. Petitioners contend that the proposed reclassification of the Robinson Farms property from RES-1 to RES-3 does not react appropriately to the data which show the Robinson Farms property lies within the CEA and CHHA. However, as explained in the Conclusions of Law, it is not the mapping of the CEA and CHHA that creates a conflict with the 2013 Amendments. The conflict is created by the policies which address future land uses in the CEA and CHHA. Internal Consistency Petitioners contend that the 2013 Amendments make the Manatee Plan internally inconsistent with Coastal Element Objective 4.3.1 and Coastal Element Policy 4.3.1.1 which require “population concentrations” to be directed away from the Coastal Evacuation Area. No evidence was presented by Petitioners or by Manatee County on the County’s interpretation of the term “population concentrations.” However, FLUE Policy 2.2.2.4.5(a) prohibits any increase in residential density in the CEA. Therefore, assuming as we must that the Manatee Plan is internally consistent, it follows that “population concentrations” in Coastal Element Objective 4.3.1 and Policy 4.3.1.1 means any increase in residential density. Because the 2013 Amendments increase residential density in the CEA, they are inconsistent with this objective and policy. Because the 2013 Amendments would amend the Future Land Use Map to increase allowable residential density on a site within the CEA they are inconsistent with FLUE Policy 2.2.2.4.5(a), which prohibits any amendment to the Future Land Use Map that would increase allowable residential density on sites within the CEA. Because the 2013 Amendments would amend the Future Land Use Map to increase allowable residential density on a site within the CHHA they are inconsistent with FLUE Policy 2.2.2.5.5(a), which prohibits any amendment to the Future Land Use Map that would increase allowable residential density on sites within the CHHA. Competing Policies Manatee County and Robinson Farms argue that there are other policies in the Manatee Plan, such as those that discourage urban sprawl and encourage infill in the Urban Core Area, which the County must weigh along with the policies discussed above. The County contends that it weighed these conflicting policies and reached a fairly debatable determination that the 2013 Amendments are consistent with the Manatee Plan. Contradicting this argument are FLUE Policy 2.2.2.4.4(a) and FLUE Policy 2.2.2.5.4(a), which state that the CEA and CHHA policies shall override any conflicting goals, objectives, and policies in the Manatee Plan. Urban sprawl, infill, and other policies of the Manatee Plan cannot be invoked to avoid the specific prohibitions in FLUE Policies 2.2.2.4.5(a) and 2.2.2.5.5(a) against any amendment to the Future Land Use Map that would result in an increase in allowable residential density on sites within the CEA and CHHA. Density Offsets Manatee County and Robinson Farms argue that the County’s reduction in dwelling units in other parts of the CHHA over the past several years is a valid consideration in determining whether an increase in residential density on the Robinson Farms property is permissible despite the prohibition in FLUE Policy 2.2.2.5.5(a). In support of their argument, they cite Department of Community Affairs v. Leeward Yacht Club, LLC, DOAH Case No. 06-0049GM, 2006 WL 2497934 (Nov. 16, 2006). However, the Leeward Yacht Club case involved the comprehensive plan of Lee County, which did not prohibit increases in residential density in the CHHA. In contrast, the Manatee Plan quite plainly prohibits “any amendment” to the Future Land Use Map that would increase residential density in the CHHA. Previous Proceedings These same parties were involved in a dispute regarding an earlier proposed amendment to the Manatee Plan to reclassify property owned by Robinson Farms from RES-1 to RES-3. The 2010 Amendment was different in that it affected 28 acres (which encompasses the 20 acres in the 2013 Amendments). The 2010 Amendment would have increased the residential density on the 28 acres from 28 dwelling units to 105 dwelling units, all in the CEA. It would have added 56 dwelling units to the CHHA. Petitioners challenged the amendment and an evidentiary hearing was held before Administrative Law Judge D.R. Alexander (DOAH Case No. 11-0009GM). On April 13, 2011, Judge Alexander entered a Recommended Order which recommended that the 2010 Amendment be determined not in compliance because: The amendment was not based on relevant and appropriate data because the most current SLOSH model results were not used; The amendment was inconsistent with FLUE Policy 2.2.2.4.5(a) which prohibits any increase in residential density in the CEA. The amendment was inconsistent with Coastal Element Objective 4.3.1 and Policy 4.3.1.1 which require that population and development be directed to areas outside the CHHA. The Recommended Order went to the Administration Commission, which ultimately dismissed the case when Manatee County rescinded Ordinance No. 10-02 and the 2010 Amendment. In Manatee County Ordinance No. 11-035, which was the ordinance used to rescind the 2010 Amendment, the Board of County Commissioners determined that the 2010 Amendment was internally inconsistent with FLUE Policy 2.2.2.4.5(a), Coastal Element Objective 4.3.1, and Coastal Element Policy 4.3.1.1 because the amendment increased residential density in the CEA and CHHA.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission issue a final order determining that the 2013 Amendments adopted by Manatee County Ordinance No. 13-10 are not in compliance. DONE AND ENTERED this 8th day of July, 2014, in Tallahassee, Leon County, Florida. S 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 8th day of July, 2014. COPIES FURNISHED: James A. Minix, Esquire Manatee County Attorney's Office Post Office Box 1000 Bradenton, Florida 34206 Edward Vogler, II, Esquire Vogler Ashton, PLLC 2411-A Manatee Avenue West Bradenton, Florida 34205-4948 Thomas W. Reese, Esquire 2951 61st Avenue South St. Petersburg, Florida 33712-4539 Barbara Leighty, Clerk Transportation and Economic Development Policy Unit The Capitol, Room 1801 Tallahassee, Florida 32399-0001 Peter Antonacci, General Counsel Office of the Governor The Capitol, Suite 209 Tallahassee, Florida 32399-0001 Robert N. Sechen, General Counsel Department of Economic Opportunity Caldwell Building, MSC 110 107 East Madison Street Tallahassee, Florida 32399-4128
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: Banana Island is separated by marshland into areas known as Islands No. 9 and No. 10. The respondent Association presently owns and operates on Island No. 10 a dock and a dive shop which sells snacks and compressed air to divers who use the nearby springs. The purpose of the proposed boardwalk is to connect the existing dock facilities on Island No. 10 to the upland area on Island No. 9, a portion of which will be used as a picnic area for boaters, swimmers and divers. The boardwalk is to be 220 feet long and six feet wide. The immediate area upon which the boardwalk is to be constructed is not utilized by the manatee because of its shallow depth. While the boardwalk would result in the shading of approximately 1,000 feet of marshland, this amount is too insignificant to affect the manatee. There are approximately 1,000 manatee in the United States, and the manatee has been designated as an endangered species under Federal and Florida law. The manatee exists throughout the southeastern portion of the United States. They inhabit areas off Texas, Louisiana, Florida, on up to North Carolina, though it is unusual to see them north of Brunswick, Georgia. The Kings Bay area of Crystal River, primarily around the Springs, and the area of Homosassa Springs provides a winter home for approximately 110 manatee, or about ten percent of the entire manatee population. The manatee come to the Kings Bay area in the winter months from mid-November through March 31st due to the warmer temperatures of the water around the springs. There is only occasional use of the springs area by the manatee between March 31st and November 15th. The numbers of manatee coming into the Kings Bay area has increased since 1971. This increase could be due to better observation techniques or to the reduction of other suitable habitats for the manatee. At least seventy percent of the population return each year. This year, seven new calves were born in the area. During the cooler months, approximately forty- five percent of the manatee can be found within five-eights of a mile of the main spring in Kings Bay. The proposed boardwalk is to be located approximately 150 feet from the main springs. No manatees have been sighted within twenty-five yards of the boardwalk site. The existing dock is located about seventy feet from the main springs. Manatees have been sighted near the end of this dock, which was built in 1971. The general area surrounding the site of the proposed boardwalk, primarily the springs area, is used heavily by boaters, swimmers and divers. Observations during a nonconsecutive seven-day period in late November and early December noted some 603 boats using the general area of Kings Bay, some 250 divers around the springs area and over 430 top-water observers of the manatee. These numbers would lessen during the Spring and pick up again during the Summer and latter part of the Fall months. On January 1, 1979, some fifty-two boats were served within the main springs area. In Citrus County alone, there are over 5,700 registered pleasure and commercial boats. When cruising, the manatee generally travels at a rate of speed of two to three miles per hour. When moving out of the way of a boat, the manatee can move at about eight to nine miles per hour. When confronted by an oncoming boat, the manatee either immediately submerges or turns to the right. Many manatee in the Kings Bay area have propeller scars on their bodies. A few of the manatee, generally the juvenile manatee, appear to enjoy and seek contact and association with the divers. The majority move away and seek to avoid the divers. During periods of heavier boat traffic around the springs, the manatee generally move out into the colder water adjacent to the springs. Continued disruptive activity such as motor sounds, fast moving boats, heavy diver or boat traffic, and harassment from divers and swimmers can prove to be dangerous to the manatee. Such activity can result in a failure to mate and reproduce, body wounds, and a forcing of the manatee out into colder waters, thus disrupting normal feeding patterns and behavior. In 1978, the Florida legislature passed the "Florida Manatee Sanctuary Act," declaring the State of Florida to be a refuge and sanctuary for the manatee. Section 370.12(2), 1978 Supplement to Florida Statutes. This Act directed the Department of Natural Resources to adopt rules regulating the operation and speed of motorboat traffic between the dates of November 15th and March 31st in the Kings Bay area of Crystal River, as well as in other portions of the waters of the State. At the time of the administrative hearing in this cause, the Department of Natural Resources was in the process of adopting Chapter 16N-22 in implementation of the Florida Manatee Sanctuary Act. These proposed rules establish slow speed zones, idle speed zones and prohibited zones for motorboats in Citrus County. The area in dispute herein is designated as an idle speed zone, defined as the minimum speed that will maintain the safe steerageway of a motorboat. The federal government is expected to adopt all state regulations pertaining to the protection of the manatee. It was the opinion of both of the witnesses having knowledge and expertise regarding the activities and behavior patterns of the manatee that any development which attracts and promotes human activity in the springs area could possibly have a deleterious effect upon the manatee. As noted above, the dock and dive shop have been in existence and operation since 1971. Boating and diving activity has increased since that time. The respondent Association has no objection to and is in favor of the proposed new boat speed regulations. While a few boats can now tie up to the existing dock, boats would not be able to tie up to the boardwalk. Trash receptacles are planned for Island No. 9. If Banana Island No. 9 were accessible via the proposed boardwalk for recreational and/or picnic activities, it is entirely possible that there would be less boating activity around the immediate area of the main springs. The majority of the boats around the springs are small boats which the divers and manatee observers rent for those purposes. It is possible that larger boats could be utilized to provide transportation for swimmers and divers to and from the area, thus reducing the number of boats in the immediate area of the springs. During the hearing, the applicant offered and stated its willingness to close down the boardwalk during the winter months should future studies or surveys illustrate that the manatee is being harmed therefrom. The successful and profitable operation of the respondent's boating and diving enterprises depends upon the continued habitation of the area by the manatee.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the respondent's application for a permit to construct and maintain a boardwalk be granted, subject to the stipulations proposed in the permit appraisal relating to the opening and the maintenance of vegetation. Respectfully submitted and entered this 15th day of March, 1979, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Kenneth F. Hoffman Rogers, Towers, Bailey, Jones and Gay Post Office Box 1872 Tallahassee, Florida 32302 Alfred W. Clark Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Baya M. Harrison Mark J. Proctor Ausley, McMullen, McGehee, Assistant Department Attorney Carothers and Proctor 202 Blount Street Post Office Box 391 Crown Building Tallahassee, Florida 32302 Tallahassee, Florida 32304
The Issue The issue to be determined is whether Petitioner Cargor Partners VIII – Long Bar Pointe, LLLP (“Cargor”) is entitled to an award of attorney’s fees pursuant to section 57.105, Florida Statutes (2017).
Findings Of Fact Notice On February 17, 2017, the attorney for Cargor sent Joseph McClash a letter on law firm stationary. In the first paragraph of the letter it states, “Please allow this letter to serve as notice of Cargor’s intent to seek relief pursuant to Section 57.105, Florida Statutes (the “Statute”) against you, individually as qualified representative, and the named Petitioner.” Cargor sent an email to McClash on February 28, 2017, reminding McClash that “the 57.105 deadline is March 10, 2017.” McClash referred to a motion for attorney’s fees that he received on or about March 13, 2017, but the motion was not shown to the Administrative Law Judge nor introduced into evidence. On April 5, 2017, the same day that McClash voluntarily dismissed the petition for hearing in DOAH Case No. 17-0655, Cargor filed with DOAH its motion for attorney’s fees under section 57.105. Contested Claims The renewal of a FDOW is governed by section 373.421(2), Florida Statutes, which states in relevant part that the FDOW shall be renewed “as long as physical conditions on the property have not changed, other than changes which have been authorized by a permit pursuant to this part, so as to alter the boundaries of surface waters or wetlands.” If the boundaries of wetlands or other surface waters have been altered without a permit, the FDOW cannot be renewed and an application for a new FDOW is required. The SWFWMD reviewer explained in a letter requesting additional information from Cargor: Please be advised that letters of exemption do not qualify as permits issued under Part IV of chapter 373, F.S. and therefore if work has been done on the site that has altered the wetlands or other surface water boundaries in association with a letter of exemption, a new formal determination application will be required. McClash claims Cargor did not qualify for the renewal of its FDOW because Cargor altered the boundaries of surface waters or wetlands on its property after the 2011 FDOW was issued and the some of the alterations were made pursuant to letter of exemption. In its February 17, 2017, letter to McClash, Cargor set forth six grounds for Cargor’s contention that McClash’s petition for hearing should be withdrawn. The first three grounds were described in Cargor’s letter as follows: The Formal Determination of Wetlands and Other Surface Waters, dated December 28, 2016, which is the subject of this Proceeding, does not authorize any construction activity. Consequently, no standing to challenge is or could be properly presented. There is no injury in fact and no one is in immediate danger of a direct injury from the issuance of the Formal Determination of Wetlands and Other Surface Waters, dated December 28, 2016, as of the date and time of filing the Petition in this Proceeding. Consequently, no standing to challenge is or could be properly presented. The Formal Determination of Wetlands and Other Surface Waters, dated December 28, 2016, is not a permit, license, or authorization. Consequently, no standing to challenge is or could be properly presented by an association. These were issues of law and they were decided against Cargor in an Order dated February 28, 2017. The fourth and fifth grounds described in Cargor’s letter involve the central issue in the case: Changes in the land have been previously authorized by the Southwest Florida Water Management District (“SWFWMD”) pursuant to existing and final permits including (i) SWFWMD ERP No. 43040157.001, dated August 6, 2014, (ii) SWFWMD CONCEPTUAL ERP No. 49040157.002, dated September 4, 2015, (iii) SWFWMD ERP No. 4304157.003, dated March 31, 2016, and (iv) SWFWMD Notice of Qualification for Permanent Farming Exemption, dated August 30, 2016. Changes in the land are authorized by the identified permits and authorizations. All changes in the land have occurred pursuant to the identified permits and authorizations. Allegations to the contrary are simply false and are not supported by material facts. In 2015, Cargor was issued a “Conceptual ERP” permit, which describes, among other things, planned modifications to some agricultural ditches. However, the conceptual permit does not allow the commencement of construction activities. On August 30, 2016, SWFWMD issued to Cargo a Permanent Farming Exemption, pursuant to section 373.406(13), which authorized Cargor to excavate three agricultural ponds in uplands. In its application for the exemption, Cargor also proposed to modify some agricultural ditches. On March 31, 2017, SWFWMD issued Cargor an ERP Individual Construction Major Modification, which, among other things, authorized work in ditches. This permit was issued just before McClash’s voluntary dismissal and, therefore, could not have authorized the changes on Cargor’s property that McClash described in the petition for hearing. Before filing his petition, McClash consulted with a wetland scientist, Clark Hull, about the merits of McClash’s proposed challenge to the FDOW renewal. Hull gave McClash an affirmative response, but his input was speculative because it was based on assumptions and representations that Hull had not investigated. McClash consulted with another wetland scientist, Pamela Fetterman, who conducted an “aerial, desktop review of publically available Geographic Information Systems (GIS) data.” Fetterman described her initial review as an evaluation of potential undelineated wetlands and other surface waters. The Administrative Law Judge ruled that the delineation approved by the 2011 FDOW became final and could not be challenged by McClash. McClash then asked Fetterman to review changes in physical conditions on the property that occurred after the FDOW was issued. Fetterman produced a report (McClash Exhibit R-6), in which she opined that the changes to physical conditions on Cargor’s property “have a high likelihood of affecting the previously delineated landward extent of wetlands and other surface waters.” She stated further: [C]hanges in physical conditions of the property took place prior to issuance of the [FDOW renewal] as purported “exempt agricultural activities”, and include ditch dredging alterations to delineated other surface waters. . . . A Permanent Farming Request for Exemption Confirmation letter was applied for on August 23, 2016 for construction of these ponds and modification of existing ditches, some of which were determined to be jurisdictional other surface waters by the subsequently re-issued [FDOW]. At the final hearing on fees, neither McClash nor Cargor made clear to the Administrative Law Judge: (1) the physical changes to the property that were alleged to be authorized by permit, (2) the physical changes that were alleged to be authorized by exemption, or (3) any physical changes that were alleged to be unauthorized. The sixth ground described in Cargor’s letter is as follows: The picture attached to the Petition as set forth in Paragraph 9, and the stop work allegation set forth in Paragraph 10 are irrelevant and have no factual relationship to any issue in the proceeding. Since any changes in the land have occurred pursuant to identified permits and authorizations, the allegations are simply false and/or intentionally misleading. It is not a basis for an award of attorney’s fees under section 57.105 that an irrelevant photograph was included in a petition for hearing. Moreover, the aerial photograph in McClash’s petition was relevant in this case because it showed the physical conditions of Cargor’s property. In the petition, McClash states that Manatee County issued a stop work order on November 16, 2016, for construction activities commenced on Cargor’s property without a County- approved erosion control plan. This allegation also pertained to physical changes to the property. All evidence about physical changes was relevant in determining whether Cargor was entitled to renewal of the FDOW. Fees Cargor claims fees based on 48.4 hours of attorney time (Edward Vogler) at an hourly rate of $410, and 3.6 hours of attorney time (Kimberly Ashton) at an hourly rate of $385, for a total of $21,230.00. The fees Cargor is seeking include the hours spent on legal issues raised by Cargor that were rejected by the Administrative Law Judge. These fees amount to at least $1,025. See Cargor Exhibit 1, Invoice entries for February 20, 2017. Cargor’s attorney testified that the fees are reasonable. Cargor did not call an expert witness to corroborate the reasonableness of the hourly rate and the reasonableness of the hours expended.
