Conclusions Having considered the entire record in this cause, it is concluded That all statements contained within the Petition have been found to be true and correct. That the creation of the CDD is not inconsistent with applicable elements or portions of the State Comprehensive Plan and the Clay County Local Comprehensive Plan, as amended. That the area of land within the proposed CDD is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developable as one functional interrelated community. That the CDD is the best alternative available for delivering community development services and facilities to the area that will be served by the CDD. That the community development services and facilities of the CDD will be compatible with the capacity and uses of existing local and regional community development services and facilities. That the area that will be served by the CDD is amenable to separate special-district government. DONE and ENTERED this 28th day of 1989, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 1989. COPIES FURNISHED: Elizabeth C. Bowman, Esquire Post Office Box 6526 Tallahassee, Florida 32314 Patricia A. Woodworth, Secretary Florida Land and Water Adjudicatory Commission The Capitol Tallahassee, Florida 32399-0001 James Vaughn Office of Planning and Budget Environmental Policy Unit Room 404 Carlton Building 501 South Gadsden Street Tallahassee, Florida 32399
Findings Of Fact On January 13, 1983, Respondents Donia and Bobowski filed with Monroe County petitions for special use approval to deposit fill and construct an access driveway within the shoreline protection zone of Monroe County as designated by Chapter 4, Monroe County Code. The property on which the roads are proposed to be constructed consists of two lots, each 1.09 acres in size. The lots are contiguous to each other and are located on Sugarloaf Key, Monroe County, Florida. Respondents Bobowski and Donia represented in their petitions for special use approval that they owned or were in the process of purchasing the subject property. Respondent Bobowski submitted with his application a contract for sale to him of both 1.09-acre lots which specified the sale was to be closed by March 25, 1982. Ms. Donia included with her petition a letter stating that Mr. Bobowski was in the process of deeding a portion of his land to her. On January 26, 1983, Respondent Bobowski filed a Complaint for Specific Performance against James Knox Julian, Jr., owner of record of the property for which Bobowski and Donia submitted applications for special use approval. As of September 10, 1984, Julian had filed a motion to dismiss that Complaint on grounds that there had been no pleadings filed or action taken by Bobowski for a period of more than one year. There is no evidence that James Julian authorized Respondents Donia or Bobowski to submit the applications for special use approval on his behalf. Respondents Donia and Bobowski have been sent copies of pleadings in this case. The Monroe County records containing Donia's application for special use approval indicate that Catherine Donia is now Catherine Bobowski. Ms. Bobowski participated in a telephonic conference call between the parties and the undersigned in which she was specifically advised of the scheduled final hearing in this case and of the necessity for her and Thomas Bobowski to appear to present their evidence in support of their applications. Neither she nor Mr. Bobowski, nor any representative of theirs, appeared at the final hearing. On January 20, 1983, Respondents McDonald and Allen filed an application for special use approval to deposit fill and construct an access driveway within the shoreline protection zone of Monroe County as designated by Chapter 4, Monroe County Code. The McDonald/Allen property is a 2.9 acre parcel on Sugarloaf Key in Monroe County Florida. The proposed driveway runs from State Road 939A through a tidally inundated black mangrove community to a dune ridge and tropical hardwood hammock fronting the Atlantic Ocean. The driveway project described in the original application involved the deposit of 433 cubic yards of limerock fill to construct an access driveway 325 feet long, 12 feet wide, and 4 feet deep. Six culverts twelve inches in diameter were to be placed at 50-foot intervals along the access driveway. When the State of Florida Department of Environmental Regulation indicated disapproval of a fill permit as the project was originally proposed, the project was amended to replace the twelve-inch diameter culverts with four box culverts three feet by eight feet. The application for special use approval does not include a request to fill a turnaround area or a pad for a single-family residence, does not include a final set of building plans or a final selection of a house site, and does not seek approval for the placement of a septic tank system. Rather, the application for special use approval seeks permission for the driveway portion of the construction project only. The McDonald/Allen property is located on the southern shoreline of Sugarloaf Key in an area referred to as Sugarloaf Beach. The foreshore or foredune fronting the Atlantic Ocean consists of a beach and berm rising to a dune crest approximately 30 feet from the ocean. The sandy beach is approximately 6 to 15 feet in width. The dune top extends landward from the dune crest for approximately 100 to 125 feet before descending to the back dune and the wet land and transitional areas. The transitional area continues landward approximately 60 feet before descending into the wetlands. The wetlands run landward approximately 300 feet to the property boundary on State Road 939A. The foreshore or foredune of the McDonald/Allen property is covered by sea oats, sea purslane and cord grass assemblage. The entire dune top from the dune crest to the back dune is covered by a mature, climax tropical hardwood association. Species present include: torchwood, white stopper, inkwood, blolly, gumbo-limbo, blackbead, Spanish stopper, Jamaican dogwood, seven-year apple, sapodilla, coconut palm, short-leaf fig, gray nicker, wild lantana, buttonwood, snowberry, prickly pear cactus, bay cedar, and spider lily. The vegetation displays a stratified structure with a high canopy composed of very large, tall trees an indication of a very mature system. The transitional wetland community found on the back dune consists of saltwort, sea daisy, railroad vine, and seagrape. The wetlands-are characterized as submergent wetlands containing black mangroves. The black mangrove community is inundated year round with water depths measured between 6 and 12 inches over the majority of the property. The black mangroves reach heights of 15 feet, with large trees located over the southern extent of the wetlands (adjacent to the upland ridge). Attaining heights of 25 to 30 feet, these larger mangroves form a hammock with an open understory in a dense canopy. The mangrove area is a productive, healthy system. The wetlands of the McDonald/Allen property are a part of a larger area of healthy wetlands approximately 10 acres in extent, bounded by State Road 939A on the north, the dune ridge to the south, an unculverted fill road to the west, and a culverted fill road to the east. Wildlife present on the property include marsh rabbits, raccoons, black crown night herons, little blue herons, Louisiana herons, white crown pigeons, blue crabs, fiddler crabs, mosquito fish, killy-fish, sailfin mollies, and sheepshead minnows. On February 1, 1983, Respondent Stage filed an application for special use approval to deposit fill and construct an access driveway in the shoreline protection zone of Monroe County as designated by Chapter 4, Monroe County Code. The Stage property is a 0.64-acre lot on Big Pine Key in Monroe County, Florida. The proposed driveway runs from Long Beach Boulevard through a wet land area to a dune ridge and hammock fronting the Atlantic Ocean. The driveway project described in the original application called for the deposit of limerock fill to construct an access driveway 100 feet long, 12 feet wide, and 2-3 feet deep along the east side of the lot. Two culverts 12 inches in diameter were to be placed 50 feet apart. When the State of Florida Department of Environmental Regulation indicated disapproval of a fill permit as the project was originally proposed, the project was amended to locate the access driveway through the center of the lot and to replace the 12-inch diameter culverts with two 36-inch diameter culverts to be placed at the base of the access drive. The proposed access road is to lead to a proposed turnaround and a proposed single-family residence on the back dune or dune ridge of the Stage property. The application for special use approval does not include a request to fill a turnaround area or a pad for a single-family residence, does not include a final set of building plans or a final selection of a house site, and does not seek approval for the placement of a septic tank system. Rather, the application for special use approval seeks permission for the driveway portion of the construction project only. The Stage property is located on the southern shore of Long Beach on Big Pine Key. The natural systems of the Stage property are similar in many respects to those of the McDonald/Allen property. The foreshore or foredune fronting the Atlantic Ocean has a shoreline consisting of a dense mangrove fringe. The foredune rises to a dune crest approximately 28 feet landward from the shoreline. The dune top extends landward from the dune crest approximately 100 feet before descending to the back dune and wetland area. The back dune runs landward 40 feet before descending into the wetlands. The wetlands run landward approximately 10 feet to a filled area approximately 75 feet deep fronting Long Beach Boulevard. Landward of the mangrove fringe on the foredune is a dense growth of night shade, behind which the hardwood hammock vegetation begins, at approximately 10 feet from the shoreline. The understory of the hammock has a very rich growth of wild bamboo. Trees in the hammock community include blolly, spider lily, Jamaican dogwood, Keys bamboo, gumbo-limbo, darling plum, seven-year apple, wild dilly and coconut palm. The area along the lower back dune displays transitional vegetation consisting of blackbead, limber caper, sea grape, bay cedar, sea daisy, and remnant black and white mangroves. At lower elevations of the property below the back dune and abutting the roadside fill area are found buttonwood, black mangrove without pneumatophores, saltwort, red mangrove, black mangrove, white mangrove, and sea purslane. The wetland and red mangrove area is about 10 to 15 feet in size, healthy, and of high productivity. The transitional vegetation is productive in that it has a very high value to the organisms that are feeding upon it in that particular area, although its productive value is lower than that of the red mangrove system. Wildlife found on the property include marsh rabbit, raccoon, Key deer, and hermit crabs. Other species expected to be found are the eastern indigo snake the red black snake, and the silver rice rat, all species listed by the federal government as threatened. Both the McDonald/Allen and Stage properties are located in the Florida Keys in Monroe County, which has been designated an area of critical state concern. The Florida Keys is the only tropical area in the entire continental United States. The uncontroverted testimony of witnesses for the Respondents and Petitioner was that virtually every natural feature found there is unique. The Long Beach and Sugarloaf Beach coastal dune structures are particularly significant natural systems because of the scarcity of these sandy beaches and dune systems in the Florida Keys. Such systems have been estimated to represent only 2 percent of the land mass of the Florida Keys. They are even more scarce when considered in reference to the land mass of the United States because there are no comparable natural systems in North America. The dune systems on Sugarloaf Beach and Long Beach are storm berms or storm beaches, which are created when near source material is driven by storm effect onto the beach and ridge. These beaches are stable when highly vegetated and undisturbed. The plant communities found on the dune system have adapted to resist the impact of storms, both wind and wave. Seagrape trees, for example, diminish the shearing effect of the wind by absorbing wind energy. Many of the plant species are deeply rooted and essentially adapted to the intermittent effects of storms. When the natural systems and vegetative communities are altered, the dune system loses its resistance to storm and is subject to instability and erosion. Many of the plant and animal species present in the Florida Keys and on the McDonald/Allen and Stage properties are only found in the Keys. They are endemic species which have deviated from the mother populations on the mainland, and they are of particular interest to the scientific community. The McDonald/Allen property, in particular, is unique because it combines a very mature hardwood system with the coastal dune structure. Maturity of the hardwood hammocks is evidenced by the large dimensions of the trees, especially the gumbo-limbos and inkwood, and the height and structure of the tree canopy. The mangrove wetland areas on the McDonald/Allen and Stage properties could also be called unique by virtue of their location in the Florida Keys, though they are similar to other mangrove wetland areas. They are both productive, healthy systems. Such mangrove systems are considered to be one of the most important natural resources in Southern Florida. They provide shoreline protection, build up land areas, provide nutrients to the marine environment, and serve as nurseries for marine species and wildlife habitat for reptiles and wading birds such as herons, egrets, white crown pigeons and gray king birds. Transitional areas may have lower productivity than the wetland areas, but they still have a very high value to organisms feeding upon them. A community of animals will still be dependent upon the transitional vegetation, and removal or stress to that vegetation will also stress the dependent animal elements. On April 22, 1983, the Zoning Board of Monroe County denied the McDonald/Allen application for special use approval to deposit the fill and construct the access road. Reasons for the denial were that the project failed to comply with Sections 19-75(2)a, 19-111, and 19-59(6), Monroe County Code. Section 19-75(2)a requires a determination of the effect of the change under review on that particular property and on surrounding properties. Section 19- 111(a)(4) requires that all applications for a permit in wetland areas consider the natural biological functions, including food chain production, general habitat, nesting, spawning, rearing and resting sites for aquatic or terrestrial species, the physical aspects of natural drainage, salinity and sedimentation patterns, and physical protection provided by wetland vegetation from storm and wave action. Section 19-59(6) requires consideration of the project's compliance with the County's Comprehensive Plan. The Zoning Board was particularly concerned about the fact that the project was contrary to the policy expressed in the County's Comprehensive Plan to prohibit new construction that would threaten the stability of dune ridges, and about the cumulative impact on the wetland areas and on the dune system of several nearby projects for which applications had been submitted. On August 5, 1983, the Board of County Commissioners reversed the denial of the McDonald/Allen application for special use approval by adopting Resolution No. 233-1983. The Resolution authorizes the deposit of fill and construction of the access driveway as requested by the McDonald/Allen application. The Resolution makes no finding that the project meets the requirements of the Monroe County Code or Monroe County Comprehensive Plan. The Resolution also fails to specify any conditions or protective measures that should be met by the applications in regard to design, construction activities or coordination with adjoining land owners to reduce the impacts of the proposed development. No evidence was introduced at the final hearing in this cause to show that the Board of County Commissioners considered these items or any provision for them. An employee of Petitioner was present at the Monroe County Board of County Commissioners meeting on August 5, 1983, when a vote was taken on the McDonald/Allen application. However, Petitioner did not receive a written copy of the Resolution reducing that action to writing until October 14, 1983, when Monroe County transmitted the Resolution by hand-delivery. On August 25, 1983, the State of Florida Department of Environmental Regulation (hereinafter "DER") issued a permit to McDonald/Allen to deposit 433 cubic yards of fill for an access road with four box culverts three feet by eight feet. The permit is based upon Chapter 403, Florida Statutes, and Chapters 17-3 and 17-4, Florida Administrative Code, jurisdiction and therefore only evaluates impacts on water quality. It does not address impacts on storm surge abatement; marine and wildlife resources habitats; suitability of the proposed project in regard to its location, site characteristics and intended purpose; the effect of the proposed project on surrounding properties (including cumulative impacts of several projects in close proximity of each other); or compliance with the Monroe County Code or Monroe County's Comprehensive Plan. On July 29, 1983, the Zoning Hoard of Monroe County denied the Stage application for special use approval to deposit fill and construct an access road. One of the items considered by the Zoning Board was the permit issued to Respondent Stage by DER on July 13, 1983, to deposit approximately 62 cubic yards of crushed limerock fill for an access road with two 36-inch diameter culverts. The DER permit addressed only impacts to water quality as specified by Chapter 403, Florida Statutes, and Chapters 17-3 and 17-4, Florida Administrative Code. As was the case with the permit issued to McDonald/Allen, the determination by DER to issue the permit did not include the analysis required by the Monroe County Code and the Monroe County Comprehensive Plan of impacts to natural systems. Reasons cited by the Zoning Board for the application's denial are the project's failure to meet the requirements of the Monroe County Code regarding the Suitability of the use in regard to its location, site characteristics, and intended purpose; and the project's failure to comply with the County's Comprehensive Plan encouraging protection of wetlands to the maximum extent possible and prohibiting new construction that would threaten the stability of dune ridges. On October 28, 1983, the Monroe County Board of County Commissioners reversed the denial of the Stage application for special use approval by adopting Resolution No. 296-1983. Again, there are no protective or limiting conditions specified in the Resolution in regard to construction of the road or its relationship to the remainder of the project. The access road proposed by the McDonald/Allen application will eliminate approximately 4,000 square feet of high-quality submerged mangrove wetlands. This, in turn, would eliminate high-quality habitat used by a variety of large birds such as herons, ibises, little blue herons; gastropods; species of small fish such as killifish, sheepshead minnow, sailfin, mosquito fish; blue crabs, fiddler crabs and Saltwater snakes. The proposed fill road would also present a 325-foot long barrier to the existing tidal flow, thereby impeding the natural flow of water, particularly during a storm event when even very large culverts are blocked by vegetation and other debris. A fill road would also provide a substrate for colonization by exotic vegetation, to the detriment and possible exclusion of native vegetation. In addition, the evidence indicates that at least four more fill roads are proposed in immediate proximity to the proposed McDonald/Allen fill road, within the same 10-acre wetland area. If approved, the cumulative impacts of several roads would be significantly greater than the one road. There would be a significant increase in the direct removal of vegetation and wildlife habitat and an even greater impact on tidal flow through the area with each additional road (even ignoring the fact that each road is merely a portion of the real project). This is because each barrier to tidal flow placed downstream from the source water diminishes the ability of the tidal water to reach other areas even further downstream. The essence of Respondents McDonald/Allen's testimony and exhibits in regard to cumulative impacts is that with proper planning only one access road need be built in the 10-acre wetland area in which the McDonald/Allen property lies. No evidence was submitted to show that such planning efforts exist or are likely to be fruitful. There is no reasonable assurance that only one access road will be sought or constructed in that area; rather, the evidence is to the contrary. Respondent Stage's proposed access road would eliminate a small amount of productive red mangroves and would eliminate transitional wetlands of somewhat lower productivity, thereby exacerbating the existing stresses to the transitional community on the Stage property. The road would also be subject to blockage during a storm event, which would further diminish the existing tidal flow. Current intended use of both the McDonald/Allen and Stage properties is for a single-family residence, although neither applicant has finalized any design for that residence. Construction and occupancy of even a single-family residence in the tropical hardwood hammock on the dune back or dune top of either property can be expected to produce a typical range of impacts to the natural systems. The most significant is the removal of hardwood hammock trees and understory vegetation. At a minimum, clearing is required for a house pad, a turnaround (and parking) area, a septic tank and drain field, and a surrounding area sufficient to accommodate construction equipment and workers. Additional clearing can be anticipated by occupants of a single-family residence who seek to take advantage of ocean breezes and view and who create pathways to the beach. Any opening of the hammock's tree canopy or understory would increase exposure of the lower forest to the drying effects of wind and salt and upset the hammock's microclimate, causing progressive destruction of vegetation. Clearing also provides conditions which make the site conducive to colonization by exotic species. Additional impacts customarily associated with single-family residence occupancy are the introduction of pets who are natural predators of endangered species, of noxious chemicals used for spraying insects, and of intrusion into the habitat of wildlife which now utilize the area and are not tolerant of human activity in immediate nesting and feeding areas. Several dwellings constructed on a dune ridge would cumulatively impact and even further threaten destruction of the hardwood hammock and dune system. Once in place and occupied, a single-family home will create impacts that are extremely difficult to prevent or mitigate and which are uncontrolled by any County ordinance or State regulations. The current and future owners of both the McDonald/Allen and Stage properties have access to that property since either a state-- or county-- maintained road borders one entire side of each of those properties. Accordingly, neither proposed driveway is necessary to provide access to the property. Since the special use approvals given by Monroe County to McDonald/Allen and Stage are not conditioned upon the obtaining of permits for the construction of the now-intended dwelling structure, the actual use of the driveways remains speculative. Although the Stage property may be zoned exclusively for a single-family residence, the McDonald/Allen parcel appears to be in an area of Monroe County in which single-family residences are only one of the uses allowed. Additionally, several years ago Respondent Stage, without first obtaining a permit, has placed fill on his property which covers the width of his property along Long Beach Boulevard. Although Respondent Stage eliminated a wetlands area 100 feet by 75 feet by placing fill therein, he has not been required to remove that fill, and it is speculative as to whether any agency with the authority to require the removal of that fill would do so since no mitigation has yet been required of him.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED THAT a final order be entered denying the applications of Respondents McDonald/Allen, Donia, Bobowski, and Stage for special use approval. Pursuant to the requirements of Section 380.08(3), Florida Statutes (1983): There are no changes in the proposal by Respondent Donia that would entitle her to receive the special use approval requested herein; There are no changes in the proposal by Respondent Bobowski that would entitle him to receive the special use approval requested herein; Respondents McDonald and Allen could make their driveway application eligible for a special use approval by altering the design of the driveway to piling or boardwalk construction rather than fill construction; and, Respondent Stage can make his driveway application eligible for a special use approval by altering the project design so that the primary structure utilizes the portion of his property which was previously filled. It is further, RECOMMENDED THAT each application for special use approval submitted herein remain ineligible to receive such approval until such time as it can be demonstrated, such as through the issuance of all necessary permits, that the intended primary use--residential construction--will not degrade or destroy the tropical hardwood hammock, dune ridge, or other natural systems located on or surrounding Respondents' properties. DONE and RECOMMENDED this 8th day of April, 1985 at Tallahassee, Florida. LINDA M. RIGOT 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 8th day of April, 1985. COPIES FURNISHED: Honorable Bob Graham Governor The Capitol Tallahassee, Florida 32301 Honorable Bill Gunter Insurance Commissioner The Capitol Tallahassee, Florida 32301 Honorable Jim Smith Attorney General The Capitol Tallahassee, Florida 32301 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301 Honorable George Firestone Secretary of State The Capitol Tallahassee, Florida 32301 Honorable Gerald Lewis Comptroller The Capitol Tallahassee, Florida 32301 John T. Herndon, Secretary Florida Land and Water Adjudicatory Commission Office of the Governor The Capitol Tallahassee, Florida 32301 Sheri Smallwood, Esquire County Attorney, Monroe County 310 Fleming Street Key West, Florida 33040 James Hendrick, Esquire Albury, Morgan & Hendrick 317 Whitehead Street Key West, Florida 33040 Catherine Donia Post Office Box 502 Big Pine Key, Florida 33043 Thomas Bobowski Post Office Box 502 Big Pine Key, Florida 33043 Sarah E. Nall, Esquire C. Laurence Keesey, Esquire Department of Community Affairs 2571 Executive Center Circle, East Tallahassee, Florida 32301
The Issue The issue is whether the Petition to Establish the Southeastern Community Development District (Petition) meets the applicable criteria set forth in Chapter 190, Florida Statutes (2006),1 and Florida Administrative Code Rule Chapter 42-1. The purpose of the hearing was to gather information in anticipation of quasi-legislative rulemaking by the Florida Land and Water Adjudicatory Commission (Commission).
The Issue At "issue" in this hearing was the Petition for Rulemaking to Establish a Uniform Community Development District, dated October 10, 2002 (Petition). The Petition, filed by Beach Road Development Company L.L.C., requested that the Florida Land and Water Adjudicatory Commission (FLWAC) adopt a rule to establish a state-chartered uniform community development district, to be called the Cocohatchee Community Development District, on certain property in Lee County, Florida. The hearing was for purposes of gathering information in anticipation of quasi- legislative rulemaking by FLWAC.
The Issue The issue before the Florida Land and Water Adjudicatory Commission (FLWAC) in this proceeding is whether the Petition to Establish the Three Creeks Community Development District (Petition) meets the criteria set forth in Chapter 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code. The local public hearing was for the purpose of gathering information in anticipation of quasi-legislative rulemaking by FLWAC.
The Issue The issue before the Florida Land and Water Adjudicatory Commission (FLWAC) in this proceeding is whether to grant the Petition to Establish the Tesoro Community Development District (Petition), dated December 22, 2003, as supplemented and corrected. The local public hearing was for purposes of gathering information in anticipation of quasi-legislative rulemaking by FLWAC.2
The Issue The issue is whether the Petition to Establish the Coastal Lake Community Development District should be granted pursuant to Chapter 190, Florida Statutes, and Florida Administrative Code Chapter 42-1. The local public hearing was conducted for the purpose of gathering information in anticipation of rulemaking by the Florida Land and Water Adjudicatory Commission (Commission).
The Issue The general issue for determination in this administrative proceeding is whether Ordinance No. 1266-2002, adopting Amendment 02-1 (Plan Amendment) to the City of Rockledge's Comprehensive Plan, is not "in compliance" within the meaning of Section 163.3184(1)(b), Florida Statutes, as alleged in the Petition for Administrative Hearing, as amended.
Findings Of Fact The Parties Petitioners, Shelly W. Sutterfield, William E. Sutterfield, Becky Kosher, and James Kosher, are residents of the City, who reside within Pine Cove Subdivision, which is east of Fountain's property. This subdivision is located in the City's Planning District 8. Ms. Sutterfield stated that Petitioners want "to maintain the integrity of [their] planning district as low and medium-density in [their] neighborhood." Ms. Sutterfield also believed that the Plan Amendment "will add a high-density residential close to -- in close proximity to [their] neighborhood" and that "it will set a precedent for others to do the same thing." Ms. Kosher agreed. Petitioners appeared at most, if not all, of the local government public hearings held regarding consideration of the Plan Amendment leading up to and including the adoption of Ordinance No. 1266-2002 by the City. Petitioners opposed the Plan Amendment during each hearing. See also Findings of Fact 35-40. The Department is the state land planning agency responsible for reviewing local government comprehensive plans and plan amendments pursuant to Chapter 163, Part II, Florida Statutes (Act). This includes review of the proposed Plan Amendment adopted by the City, and a determination of whether the proposed Plan Amendment is "in compliance" with the Act. In this case, the Department reviewed the Plan Amendment submitted by the City and determined that it was "in compliance" with the Act. The City is the oldest incorporated municipality in Brevard County. The City is located on the shoreline of the Indian River Lagoon south of the City of Cocoa and north of Palm Shores and Melbourne. The City is approximately 10 square miles with a population of 20,174 as of 2000. The City is primarily a residential community, although it has some light, clean industry as well as a variety of commercial centers and institutional facilities, including a hospital, four public and three private schools, and churches of various denominations. The City has adopted a Comprehensive Plan and a FLUM, which was amended last on July 19, 2000, excluding the Plan Amendment at issue in this case. The City is divided into eight planning districts as reflected on the City's FLUM and in the text to the FLUE, Chapter 1, Appendix A, Planning District Guidelines, of the Comprehensive Plan. On May 19, 1999, the City adopted its Evaluation and Appraisal Report (EAR)-based amendments to its Comprehensive Plan pursuant to Ordinance No. 1182-99. Fountain is incorporated under the laws of the State of Florida and owns all the property (located within the City of Rockledge) that is the subject of the Plan Amendment. The Plan Amendment On or about August 23, 2001, Fountain submitted an application to the City, requesting the Plan Amendment at issue in this proceeding. First, Fountain requested a change to the City's FLUM, removing their property from Planning District 8, and placing it in Planning District 5. The property consists of approximately 9.163 acres (site or subject property) and is located adjacent to the intersection of Huntington Lane, to the east, and Eyster Boulevard, to the north. The property has pine trees and open grass areas. The subject property has no significant historical value and no environmental concerns have been raised. See Findings of Fact 50-68 for a more complete description of the subject property in relation to existing, surrounding land uses. As noted in Fountain's application: The applicant is proposing to build a high- rise apartment complex and needs additional density to meet the scale of economy for the project. The applicant also believes that with the FPL substation directly to the south and the property to the west being a large multi-family apartment project and the property to the north allowing manufacturing[,] [i]t would make more sense for the property to be in Planning District 5, instead of Planning District 8. The property to the east allows a mixture of low-density residential and single-family residential. In its application, Fountain claimed that the maximum allowed development under the existing designation in the FLUM for the property site is 96 residential dwelling units. Petitioners dispute this number and claim that the error is material. If the Plan Amendment is approved, the maximum allowable development under the proposed designation for the site is 118 dwelling units, i.e., 9.163 acres times a proposed maximum density of 13 dwelling units per acre. There is no dispute regarding this number. To this end, Fountain indicated that it "is willing to enter into a binding development agreement during the rezoning phase with the City to ensure adequate buffering to adjoining properties, where needed, as well as eliminate the possibility of the property to be used for commercial or manufacturing purposes." Fountain submitted a draft agreement to the City. However, no agreement has been signed by Fountain or the City. The subject property (without the Plan Amendment) is located in the northwest quadrant of Planning District 8. Planning District 5 is located immediately north of the subject property (across the street), and north of Eyster Boulevard, which runs east and west. Planning District 5 is located on the FLUM as a mixed- use planning district. The subject property, and the property to the west, south and east, are located in Planning District 8, which is designated as medium density residential on the FLUM. As defined in the City's Comprehensive Plan, "[m]edium density residential land uses shall be at a density greater than three (3) dwelling units per acre and not exceeding fourteen (14) dwelling units per acre." As provided in the Comprehensive Plan "Guidelines" for Planning District 5, the density for Planning District 5 for a new residential development "is limited to a maximum of fourteen (14.0) dwelling units per acre. . . ." With respect to Planning District 8, the "Guidelines" provide that the [m]aximum density allowed shall not exceed five (5) dwelling units per acre, current multi-family zoning districts shall be limited to existing densities. Any proposed zoning district changes shall be limited to a maximum of five (5) dwelling units per acre. Undeveloped areas west of Fiske Boulevard will be encouraged to be developed with a maximum of three (3) dwelling units per acre in order to protect the natural character of the land. In addition to requesting a change in the FLUM designation for the site, from Planning District 8 to Planning District 5, Fountain also proposed, and the City ultimately adopted, a textural Plan Amendment to the Planning District 5 "Guidelines," including paragraph 5.A., which provides: Those areas located on the west side of Huntington Lane and south of Eyster Boulevard and north of the Florida Power and Light sub-station, may develop residential at a maximum of thirteen (13.0) dwelling units per acre (appropriate zoning districts include R2A, R3, TH). No principal structure shall be constructed within 225 feet of the right-of-way of Huntington to a distance of 425 feet from the south boundary of the described property, and not closer than 50 feet to Huntington Lane beyond the 425 feet. Other conditions include the submittal of a binding site plan, building height limited to a maximum of 38 feet; deceleration lane to any point of ingress and egress, traffic calming techniques will be used at entrances, and sidewalk along Huntington Lane for the entire length of the property. Paragraph 5.A. was adopted as a site-specific addition within the Planning District 5 "Guidelines." Petitioners claim that this provision, when read with other provisions discussed in Planning District 5, allows Fountain to develop authorized land uses on the subject property, other than the development of only residential dwelling units. When read in its entirety, and based on the weight of the evidence, the text Plan Amendment authorizes only residential dwelling units and no other land use. The inclusion of only residential zoning districts and the clear language that the property may be developed "at a maximum of thirteen (13.0) dwelling units per acre" bolster this finding. Further, it is not uncommon for local governments to include various restrictions, such as maximum height restrictions and setback requirements, in plan amendments. These restrictions are not considered land development regulations within the context of the Comprehensive Plan. Rather, they are plan policies which define the parameters for future development within the planning districts, including Planning District 5. There is a body of "land development regulations" which are intended to implement comprehensive plans and are subject to independent scrutiny. See, e.g., Section 163.3202, Florida Statutes. However, the restrictions noted in the Plan Amendment are not land development regulations within the context of this "in compliance" review proceeding. Donald Robert Griffin of the City prepared a report consisting of two pages. Prior to preparing the report, Mr. Griffin reviewed the properties surrounding the subject property and also analyzed the potential impacts of the Plan Amendment on roads, sewer, and water, for example. In analyzing paragraph 5.A., City staff also considered in part setbacks and reducing the zoning on the site to ensure compatibility. The staff report includes input from City department heads, the City Manager, and other staff. Staff recommended approval. Staff indicated that the change in the residential land use classification for the approximate 9.163 acres would be consistent with the City's allocation percentages in its Comprehensive Plan. (The "need" for this Plan Amendment is not at issue in this proceeding.) Staff further noted: It would be staff's opinion that if the Brevard County enclave: (east of Fiske Blvd.; north of Howard Blvd. and south of Eyster Blvd.) was annexed into the city it would probably be put into Planning District 5, since it has a combination of mixed land uses. In addition, those properties immediately to the west of the subject property are identified as Woodhaven Apartments (799 Eyster Blvd.) a multi-family complex and the BCARC Group Home (951 Eyster Blvd.) a multi-family complex. Immediately to the south of the subject property is an FPL electrical substation. Immediately east of the subject property is Huntington Lane, a 50-foot road right-of-way, and property zoned either R-2A or R-2 on the east side of Huntington Lane. Immediately to the north of the subject property is Eyster Boulevard, a 100-foot-right-of-way and vacant M-1 industrial property. At the eastern terminus of Howard Boulevard, Florida Power and Light has a 100-foot wide easement, where power lines are currently in place. The easement limits the additional expansion of buildings into this 100-foot area. The property on the east end of Pine Cove, has a mixture residential and commercial uses adjacent to it, as part of Planning District 5. If this Comprehensive Plan Amendment is approved to allow the proposed change into Planning District 5, staff would recommend that when the property goes for rezoning, based on compatibility and consistency issues, that only residential land uses be allowed on the 9.163 acres. In addition, if the Amendment is approved, it should be suggested to the City Council that the area between Howard Boulevard and FPL Easement to the South; Fiske Boulevard to the west; Huntington Lane to the East; be incorporated into Planning District 5 at a future date. The Applicant does not have control over any other property beyond the 9.163 acres, noted in the application. Fountain's planner, Rochelle W. Lawandales, prepared a planning report dated October 2001. This document was submitted to the City for its consideration. This planning report provides technical information to support the proposed textural addition to the "Guidelines" (5.A.) for Planning District 5 and change to the FLUM. Ms. Lawandales describes the subject property, including the existing density for the approximate 9.163 acre site, as follows: "Approximately 6 acres [of the 9.163 acres] are zoned R-3 with a density of 13 units per acre. The remaining approximate 3 acres are designated as R-2 and R-2A. R-2A is medium density multi-family district allowing up to 8 units per acre and the R-2 allows up to 5 units per acre." (emphasis added.) (In 2001, the City approved a rezoning request for the six-acre parcel, changing the zoning from R-2A to R-3. According to the Comprehensive Plan, an R-3 designation authorizes a maximum density of 14 units per acre, not 13. It is uncertain why Ms. Lawandales used 13 units per acre.) The multiplication of approximate 9.163 acres times the noted (by Ms. Lawandales) densities per acre, yields a specific density of 96 residential units, which is the same number used in item 19 of Fountain's application. When this number (96) is subtracted from the maximum allowable development under the proposed designation (Plan Amendment) for the subject property, i.e., 118 units (9.163 X 13), the difference is 22, which purports to be the number of additional units which would be authorized if the proposed Plan Amendment is approved. Petitioners assert this number is incorrect and the record supports Petitioners' position in part. Prior to the EAR-based amendments to the City's Comprehensive Plan adopted in 1999, it appears that the zoning for the approximate north six acres of the subject property was R-2A, with a density of eight units per acre, which yields 48 units. The density for one acre was R-2A, which yields an additional eight units per acre. The remaining two acres were assigned a designation of R-2, which yields a density of five units per acre, or ten total units per acre for the two acres. When added together, the approximate 9.163-acre parcel yields a maximum allowable development for the subject property, pre-EAR- based amendment, of 66 units per acre, not 96 units per acre. This means that the maximum allowable additional development on the subject property under the existing land use designation, within the Planning District 8 pre-EAR-based amendments is 52, or 118 minus 66, not 22. Petitioners claim that the post-EAR based amendment zoning would allow five units per acre for the north six acres or approximately 31 units. (Presumably, this is based on Petitioners' contention that the density authorized for Planning District 8 for "post-EAR based amendment zoning" is five dwelling units per acre based on the following Planning District 8 statement regarding density: "Maximum density allowed shall not exceed five (5) dwelling units per acre, current multi- family zoning districts shall be limited to existing densities.") The zoning for the remaining three acres remained the same, which yields 18 units, for a total of 49 units, which would be allowed on the subject property without the Plan Amendment. According to Petitioners, this means that the Plan Amendment will authorize an additional 69 units, i.e., 118 minus 49, not the 22 units disclosed by Fountain. Fountain's representation that approval of the Plan Amendment would yield only an additional 22 dwelling units on the subject property was carried over to the Department's two (2) staff analyses, which were prepared in response to the proposed Plan Amendment. See Finding of Fact 43. Whether this revelation would have changed the City's, or the Department's, decisions is unknown, although the City Council and the Department were advised that the Plan Amendment authorized a maximum of 118 units. It is persuasive that the Department, in assessing whether the Plan Amendment is "in compliance," in part, considered the total maximum theoretical density, or 118 residential dwelling units, which may be authorized by the Plan Amendment on the subject property. Importantly, the maximum density of the proposed land use is expressly stated in the textural Plan Amendment, which was approved by the City, and found to be "in compliance" by the Department. Local Government Hearings Regarding the Plan Amendment On September 17, 2001, the Citizen's Advisory Committee (Committee) met to consider the Plan Amendment. The minutes reflect that the staff report mentioned in Finding of Fact 25 was presented to the Committee; that the Committee had several questions, which are noted in the minutes along with the responses; that Fountain gave a brief presentation using Ms. Lawandales' planning document referred to herein; and that several residents, including Ms. Kosher and Ms. Sutterfield, spoke in opposition. A motion to approve the request failed by a vote of four to two. On October 2, 2001, the Planning Commission (Commission) met to consider the proposed Plan Amendment. Fountain presented its position. (The Commission is the land planning agency for the City.) Ms. Lawandales also gave a presentation on behalf of Fountain. Several persons who are identified as having Cocoa and Rockledge addresses, appeared before the Commission. While some persons from Cocoa and Rockledge favored the proposal, the majority of the persons with Rockledge addresses opposed the project. Mr. McKnight, the City Manager, stated that the hearing before the Commission "did not require advertisement in the newspaper, as previously done; therefore, this too, was not an issue of concern, but that the property had been posted and all property owners within 500 feet were mailed a notice." Ms. Kosher and Ms. Sutterfield opposed the Plan Amendment. The Commission unanimously approved the Plan Amendment. On October 17, 2001, the City Council conducted a public hearing "to consider the request for Comprehensive Plan Amendment and cause the scheduling of a Transmittal Hearing." Ms. Kosher, Ms. Sutterfield and others opposed the Plan Amendment. Others supported the request. In response to concerns raised by Ms. Sutterfield regarding advertisements for this meeting and the Planning Commission meeting on October 2, City Manager McKnight responded that a newspaper advertisement is not required until the Transmittal Hearing. By unanimous vote, a motion to authorize a public hearing before the Commission on November 6, 2001, and a transmittal hearing before the City Council on November 7, 2001, was passed. On November 1, 2001, the City had published a "Notice of Change of Land Use" in "Florida Today," a newspaper of general circulation, published in Brevard County. This "Notice" advised the public of hearings to be held on November 6, 2001, before the Planning Commission and on November 7, 2001, before the City Council. Ms. Sutterfield received notice of the transmittal hearings by U.S. Mail prior to the hearings.1 On November 6, 2001, the Commission met once again to consider the Plan Amendment. The minutes of this public hearing reflect that "this was a transmittal public hearing." Local residents, including Ms. Kosher and Ms. Sutterfield, voiced their opposition to the Plan Amendment. The Commission voted in favor of the Plan Amendment by a vote of six to one. On November 7, 2001, the City Council met to consider the Plan Amendment. This transmittal hearing was held six days, not seven days, after the notice was published. Once again Ms. Kosher and Ms. Sutterfield opposed the Plan Amendment along with two other persons giving a Rockledge address. By unanimous vote, the City Council approved a motion to authorize transmittal of the Plan Amendment to the Department. This was the first of two transmittal hearings conducted by the City. The second was conducted on February 6, 2002, after timely notice was advertised. On February 6, 2002, the City adopted Ordinance No. 1266-2002, incorporating the Plan Amendment. Notice The City did not comply with the seven-day advertising requirement set forth in Section 163.3184(15)(b)1., Florida Statutes. See Conclusions of Law 101-102. It is concluded, however, that the "due public notice" procedures set forth in the City's Land Development Code do not apply. See Conclusion of Law 101. This is not fatal. Ms. Sutterfield and Ms. Kosher attended the November 6 and 7, 2001, transmittal hearings, as well as other hearings, both before and after these transmittal hearings, furnishing the City with their comments and objections at each hearing. Also, Ms. Sutterfield received notice of the transmittal hearings by U.S. Mail prior to the hearings. Ms. Kosher has been involved with this matter since November of 1999. Petitioners have shown no prejudice arising out of the City's non-compliance with the advertising/notice requirement for the transmittal hearings. The Department's Review of the Plan Amendment On November 15, 2001, the Department received the City's letter of transmittal with supporting documentation, including the proposed Plan Amendment. By Memorandum dated January 4, 2002, the Department "[s]taff has identified no potential objections or comments with the proposed amendments." With respect to the textural Plan Amendment to Planning District Policy 5.A., the Department staff stated: "The addition of this policy to Planning District 5 limits the potential growth of the parcel to 13 dwelling units per acre from the 14 now allowed in the Planning District. This is consistent with District 5 Mixed Use and Medium Density Residential Land Uses. Additionally the lower dwelling unit concentration in combination with the specific building set back regulations will work to buffer District 8 from the non-residential land uses in District 5." With respect to moving the approximate 9.163 acres subject property from Planning District 8 to Planning District 5, the Department staff noted: Moving the tract of land from Planning District 8 to Planning District 5 will allow for an additional 22 dwelling units to be developed on the land. The applicant is willing to enter into a binding development agreement during the rezoning phase with the City to ensure adequate buffering to adjoining properties, as well as eliminating the possibility of the property being used for commercial or manufacturing purposes. The analysis of existing public facilities provided shows the infrastructure is adequate to support the additional 22 dwelling units the proposed land use change would allow. The site is not home to any significant historic resources nor is it home to any endangered, threatened or species of special concern. The Department did not receive any negative comments from the Florida Department of Transportation, the Florida Department of State, the Florida Department of Environmental Protection, or the East Central Florida Regional Planning Council. The Department received several letters from citizens, objecting to the proposed Plan Amendment and summarized them as follows: "The residents state the high density residential development would be incompatible with the existing low density residential neighborhood. The residents opposing the amendment state it is spot zoning and will set a negative precedent for other developers. Several residents also mention the increase in traffic and how this would impact the safety of school children. The residents question the ability of the existing infrastructure will [sic] be adequate to serve the increased population. They also mention the insufficient notice given for the LPA meeting." On February 6, 2002, the City approved the Plan Amendment during a public hearing and, thereafter, sent the Department Ordinance No. 1266-2002, with supporting documents. Notice of this public hearing was published in the January 24, 2002, edition of The Reporter, published weekly in Brevard County, and a newspaper of general circulation. On March 11, 2002, the Department staff conducted a review of the Plan Amendment in order to prepare its notice of intent. The staff analysis reflects no comments or objections from the Department with respect to the Plan Amendment. On March 29, 2002, the Department had published "notice of its intent to find the Amendments to the Comprehensive Plan for the City of Rockledge adopted by Ordinance No. 1266-2002 on February 6, 2002, IN COMPLIANCE, pursuant to Sections 163.3184, 163.3187 and 163.3189, F.S." Thereafter, Petitioners filed a timely challenge to the Department's Notice of Intent. Petitioners' Challenges Petitioners contend that the Plan Amendment is not "in compliance," as defined in Chapter 163, Part II, Florida Statutes, because the Plan Amendment is not supported by adequate data and analysis; is not compatible with surrounding land uses; and is inconsistent with the City's Comprehensive Plan. Petitioners also argue that the Plan Amendment approves spot zoning or spot planning. Petitioners further contend that the City did not comply with statutory and City notice requirements prior to its transmittal hearing and, as a result, that the Plan Amendment is void ab initio. Data and Analysis Description of the Subject Property and Surrounding Area Fountain's property, approximately 9.163 acres, is rectangular in shape and is bounded on the north by, and directly abuts, Eyster Boulevard. This site is located in the geographic center of the City. Eyster Boulevard, abutting and to the north of the site and between Fiske Boulevard and Murrell Road, is a two-lane urban collector road (between Fiske Boulevard and Murrell Road), with a right-of-way width of 100 feet, and with a current Level of Service (LOS) of C, with a minimum acceptable LOS of E. (There are no traffic/transportation-related issues raised in this proceeding. Also, there is no evidence that the Plan Amendment will cause any reduction or deficiencies in the LOS for utilities.) Across Eyster Boulevard to the north of the site and extending west from Huntington Lane in Planning District 5, are industrial uses, mobile homes, apartment complexes, some commercial uses and Kennedy Middle School. The subject property is bounded on the west by an existing two-story, multi-family development, developed to eight units per acre, known as Woodhaven Apartments. The development of these apartments pre-dates the adopted EAR-based amendments. The apartments are located in Planning District 8, and will continue to be located in Planning District 8 if the Plan Amendment is approved. The Brevard County Association for Retarded Persons (BCARC), located west of Woodhaven, is a group home multi-family complex also located in Planning District 8, which has been developed at more than 25 units per acre. Development of this facility pre-dates the EAR-based amendments. A Brevard County enclave, consisting of a wide variety of uses, including commercial and manufacturing, is located east along Eyster Boulevard and west to Fiske Boulevard, and west of the BCARC. This enclave does not have a land use designation on the FLUM (nor is it within Planning District 8) because it is outside the jurisdiction of the City. (Objective 8.2 of the Comprehensive Plan states in part: "Any proposed development will be evaluated for its impact on adjacent local governments. ") The subject property is also bounded on the south by a Florida Power and Light (FPL) substation, within planning District 8, which has a R-2 zoning classification, five units per acre. There is a 100-foot FPL easement which runs east and west, directly south of the substation. This substation was in existence at the time of the adoption of the EAR-based amendments. Also, church property is located south of the 100 foot easement. The subject property is bounded on the east by, and directly abuts, Huntington Lane. Huntington Lane runs perpendicular north and south of Eyster Boulevard. Huntington Lane, south of Eyster Boulevard, which abuts the subject property, apparently carries no designation in the City's Comprehensive Plan, and is considered to be a local two-lane road. (Huntington Lane north of Eyster Boulevard is designated by the City in its Comprehensive Plan as a local road.) The right-of-way width for Huntington Lane adjacent to and east of the subject property is 50 feet. Immediately east of the site and adjacent to the Huntington Lane right-of-way, is vacant property of an approximate depth of 175 feet. This vacant land runs south to north and then east, abutting Eyster Boulevard to the south. For the most part, this vacant land has a density under the Comprehensive Plan of R-2A, which authorizes a density of eight units per acre. There is also vacant land to the east of the site and abutting the Huntington Lane right-of-way, which is due south of the rectangular vacant land, which has a density of R- 2, which permits five units per acre. The single-family subdivision (Pine Cove) is located to the east of the vacant land which abuts Huntington Lane. Petitioners reside in this single-family subdivision. (The maximum potential density for the subdivision allowed multi-family residential units, with eight units per acre. However, the developer opted to build single-family residential homes instead.) The predominant land use character of Planning District 8 is single-family residential. This includes the subdivision where Petitioners reside. The subject property has approximately 900 feet of frontage on Huntington Lane. The subject property is approximately 1,500 to 2,000 feet east of Fiske Boulevard, which is a roadway designated in the City's Comprehensive Plan as a four-lane divided minor arterial. (It is contemplated that Eyster will ultimately have five lanes. There are also existing intersection improvements at the corner of Huntington and Eyster.) The subject property is approximately one mile west of Murrell Road, which is a roadway designated in the City's Comprehensive Plan as a four-lane divided minor arterial. Both Fiske Boulevard and Murrell Road have a center turn lane with no islands. Prior to the proposed Plan Amendment, all the property within the City located south of and along Eyster Boulevard, between Fiske Boulevard and Murrell Road, was included in Planning District 8, except for the several parcels (referred to in this proceeding as "incursions") east of the subdivision, abutting Murrell Road. Also, prior to the proposed Plan Amendment, all of the property within the City located north of and along Eyster Boulevard, between Fiske Boulevard and Murrell Road, was included in Planning District 5. The incursions along Murrell Road are authorized by the City in its Comprehensive Plan. The incursions are contiguous to the residential dwellings and not separated by a 50 foot road right-of-way, as in the case of Huntington lane. However, these incursions are approximately one mile from the subject property and Petitioners' residences. These incursion areas along Murrell Road allow for Planning District 5 and Planning District 6 land uses pursuant to specific textural provisions set forth in the Comprehensive Plan for each of these planning districts. These textural provisions restrict Planning District 5 and Planning District 6 incursions in that area to a maximum depth of 630 feet west of Murrell Road, as well as provide other limitations on the types and intensities of development. (According to the Comprehensive Plan, the first 300 feet of the 630 feet can be developed at 14 units per acre, and the next 330 feet at eight units per acre. Also, "[r]esidential uses may be allowed to locate on the west side of Murrell Road to a depth of six hundred thirty (630) feet. Commercial uses may also be allowed to a depth of three hundred (300) feet.") The provisions for Planning District 6 incursions west of Murrell Road, as to densities and depth of development, are the same as those recited for Planning District 5 incursions on the west side of Murrell Road. The Planning District 5 and Planning District 6 incursions along Murrell Road predate the EAR-based amendments. Other than the incursions along Murrell Road, there have been no incursions of Planning District 5 into Planning District 8 until the Plan Amendment. The existing provisions covering Planning Districts 5 and 8 were the result of EAR-based amendments to the City's Comprehensive Plan adopted by the City in mid-1999. Planning District 8 was created by splitting the area from a then larger existing planning district.2 The City's Comprehensive Plan Planning Districts In its Comprehensive Plan, the City created eight planning districts. The boundaries and policies in the planning districts are fluid. Planning District 8, in which the subject property was located prior to the proposed Plan Amendment, is designated as the Central Rockledge Area. The "Area Objective" of this planning district is [t]o maintain and improve this area as a low and medium density residential area and insure that future development will not substantially alter or depreciate the existing character of the area. This planning district also authorizes, in part, the following types of land uses: Development within the district will be limited primarily to single-family detached dwellings and directly related land uses such as parks, schools, utilities, streets and other such activities whose primary purpose is to serve residents of the district. . . . Limited commercial, professional, and multi-family residential uses will be considered in appropriate locations based on severe compatibility and consistency tests. After due consideration by the city other zoning district [sic] shall be limited to existing use which range from R2A, R-3, TH, P1, C1, to C2, which may be changed and approved only if consistent with, and compatible to the intent or [sic] criteria of this district. The maximum density allowed in Planning District 8 "shall not exceed five (5) dwelling units per acre, current multi-family zoning districts shall be limited to existing densities. Any proposed zoning district changes shall be limited to a maximum of five (5) dwelling units per acre. Undeveloped areas west of Fiske Boulevard will be encouraged to be developed with a maximum of three (3) dwelling units per acre in order to protect the natural character of the land." Planning District 5 is designated as the Barton Boulevard Area. The "Area Objective" for this planning district is [t]o guide development in this area toward the establishment of a mixed-use area consisting of highly intensive mixed uses while maintaining compatibility with regional thoroughfares, local roads, municipal systems, and adjacent land uses. In part, "[d]evelopment in this district wall be limited to retail trade, business and professional offices, multiple family attached dwellings, public and semi-public service, . . . and other such activities that are compatible with and support the intent of this district." The density of new residential development in the Planning District 5 "is limited to a maximum of fourteen (14.0) dwelling units per acre. . . ." "Compatibility" is discussed in the Planning District 5 "Guidelines" as follows: Urban design guidelines shall be developed which address appropriate scale, materials, building orientation, signing, landscaping, detailing, and other physical features within the district. Adherence to the design guidelines shall be required to insure orderly development of the area and compatibility of uses within and adjacent to the district. Adequate vegetation, constructed buffers (fences, walls, berms, etc.) and/or open space will be used between different land uses. Compatibility, Suitability, and Urban Infill The Plan Amendment proposes the development of a maximum of 118 residential units, with a maximum density of 13 units per acre for the 9.163 acres. The site and the surrounding property to the east, south, and west are designated as "medium density residential" land uses on the FLUM. According to the Comprehensive Plan, a low density residential land use is restricted to a "density not exceeding three (3) dwelling units per acre." A medium density residential land use would include "a density greater than three (3) dwelling units per acre and not exceeding fourteen (14) dwelling units per acre." The site (as proposed) and the surrounding property are within the parameters of these measuring sticks, with the site (as proposed) at the upper end and the apartments (to the west) and the subdivision (to the east), as developed, at the lower end of the density spectrum. Yet both areas are within the medium density residential definition. In reviewing the Plan Amendment, the Department considered whether the uses proposed in the Plan Amendment in Planning District 5 were compatible with surrounding property, including the subdivision east of the site. In support, Mr. Wilburn testified in part: "We look at the surrounding area based on internal compatibility or compatibility in [sic] any other internal policies they may have as far as the movement or restriction of a planning district." Whether a proposed land use is compatible with surrounding land uses is a question of degree, rather than black and white. To this end, the Department examines what the comprehensive plan allows from a standpoint of maximum proposed density. On the other hand, the Department does not ignore the reality as to actual build-out on surrounding property. Consistency with the authorized land uses in Planning District 5 was also considered. As noted by Mr. Wilburn, "in this case Planning District 5 allows residential, industrial, commercial. Commercial or heavy industrial might be inconsistent next to residential, but as part of the plan amendment, they have limited it strictly to residential." However, the Department did not review the Plan Amendments for consistency with the Goals, Objectives, and Policies for Planning District 8 because the City is proposing to change the boundaries and make-up of Planning District 5, not Planning District 8. Here, as noted above, the issue of whether the proposed development as contemplated by the Plan Amendment is "compatible" with the surrounding property is largely a question of degree. For example, a nine-story high-rise, with 50 units per acre, next to a single-family residential area would most likely present compatibility problems. In this vein, Henry B. Iler, Petitioners' expert planner, opined that the proposed (by the Plan Amendment) three-story multi-family housing project would not be compatible with the single-family subdivision to the east of the site. Mr. Iler believes that going from five or eight units per acre to 13 units per acre takes the proposed development out of the existing character of the subdivision. Stated otherwise, Mr. Iler believes that with a density of eight units per acre, the land could be developed with single-family homes and "a few simple townhouses," whereas, with 13 units per acre, the land use would "move into the apartment/attached- housing product." For Mr. Iler, it is the latter described development which makes the proposed development "out of character" with the existing subdivision. The Department's expert planner, Mr. Roger Wilburn, and other experts, opined to the contrary. For Mr. Wilburn, compatibility is one of degree. In light of the nature of the surrounding property, and given the restrictions in the Plan Amendment, e.g., transition buffers (distance requirements in paragraph 5.A. and other provisions set forth in the Planning District 5 "Guidelines," and the restriction to residential use only, it is at least fairly debatable that the Plan Amendment, authorizing the development of the 9.163 acres as residential, with a maximum density of 13 units per acre, is "compatible" with the surrounding property and is not otherwise inconsistent with the Comprehensive Plan. It is also at least fairly debatable that the Plan Amendment is "suitable" to the area. (For example, there are no environmental, topographical, or soil factors at issue which might make the land unsuitable for its intended use.) The subject property may also be considered urban infill as it is in the middle of an urban area, served by existing urban services. The Plan Amendment seeks approval of residential development which is functionally related to surrounding property and is creating a compact development.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued concluding that the Plan Amendment adopted by the City of Rockledge in Ordinance No. 1266-2002 is "in compliance" as defined in Chapter 163, Part II, Florida Statutes, and the rules promulgated thereunder. DONE AND ENTERED this 16th day of September, 2002, in Tallahassee, Leon County, Florida. CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of September, 2002.
The Issue The issue in this case is whether the Petition to Establish Rule and the Amended Petition to Establish Rule (the Petition) should be granted.
Findings Of Fact The Petitioner, Centrex Homes, is a Nevada General Partnership which owns or has authority over the property proposed for establishment of the state created District. Clay County is the affected local general purpose government, a political subdivision of Florida, within whose jurisdiction in the unincorporated area of the county the proposed land is located. The Petition proposes the establishment by rule of Fleming Island CDD on certain proposed real property in the unincorporated area of Clay County. (The uniform statutory charter for all established community development districts (CDDs) is found in Sections 190.006 through 190.046, Florida Statutes (Supp. 1998), as amended by Chapter 99-378, Laws of Florida (1999). See Conclusions, infra.) The proposed land to be served by Fleming Island CDD consists of approximately 1,580 acres bounded on the north and west by vacant property; on the east by U.S. Highway 17, Fleming Island Estates and the St. Johns River; on the southwest by Black Creek; and on the south by Black Creek and the St. Johns River. A map showing the location of the land areas to be served by the CDD was attached as Petitioner's Exhibit No. 1 to the Petition. As proposed, Fleming Island CDD contains no enclaves; the land is contiguous and will be separated only by roads, streets, or other similar, small barriers. The Petition alleges that the metes and bounds legal description of the property is contained in Petition Exhibit No. 2. The Petition Exhibit Nos. 3, 4, and 5 constitute documentation that the owners of all the real property proposed to be included in Fleming Island CDD have given written consent to the establishment of the CDD on the proposed property. The Petition names the five persons (revised in the Amended Petition) to serve on the initial Board of Supervisors upon establishment of the CDD by rule. The Petition identifies and depicts in Petition Exhibit No. 6 proposed land uses within the previously-approved DRI. The Petition identifies the DRI development order in Petition Exhibit No. 7. The Petition identifies and depicts in Petition Exhibit No. 8 the main trunk waterlines, sewer interceptors, and outfalls on the property proposed to be served by the CDD. The Petition sets forth in Petition Exhibit No. 9 (revised in the Amended Petition) the proposed timetable and schedule of estimated costs for the construction of the proposed facilities. The Petition alleges and Petitioner's Exhibit No. 2 admitted at the hearing demonstrates that the Clay County Local Government Comprehensive Plan is an effective local government comprehensive plan which is in compliance with state law. The Petition also alleges that the Clay County future land use map (FLUM) designates the land to be within Fleming Island CDD. Petition Exhibit No. 11 is a Statement of Estimated Regulatory Costs. The Petitioner paid $15,000 to Clay County for the required filing and processing fees prior to filing the Petition on April 30, 1999. Based on the evidence, all statements contained within the Petition are found to be true and correct. See pre-filed and oral testimony of Gary L. Moyer; testimony of Petitioner's land use planner, Susan Fraser, AICP; and testimony of Petitioner's business expert, William J. Rizzetta. The underlying community development anticipated to be served by the CDD is described in Section 1.0 of the Statement of Estimated Regulatory Costs at Petition Exhibit No. 11 and in the testimony of Gary L. Moyer. It will be consistent with and similar to the adjacent development. Development in Fleming Island CDD is to proceed under the development order for development of regional impact (DRI). The evidence, especially the testimony of Susan Fraser (AICP), indicates that establishment of Fleming Island CDD will not be inconsistent with any applicable element or portion of the state comprehensive plan or of the Clay County Comprehensive Plan. There was no evidence to the contrary. The evidence indicates that the area of land within the proposed CDD is of sufficient size, is sufficiently compact, and sufficiently contiguous to be developable as one, functional, interrelated community. There was no evidence to the contrary. The evidence indicates that the CDD is the best alternative available for delivering community development services and facilities (including recreational facilities) to the area that will be served by the CDD. There was no evidence to the contrary. The evidence indicates that the CDD's services and facilities will not be incompatible with the capacity and uses of existing local and regional community development services and facilities. There was no evidence to the contrary. The evidence was that the area to be served by Fleming Island CDD is amenable to separate special-district government. There was no evidence to the contrary. Clay County also held a public hearing on the Petition, which resulted in the County's adoption of a Resolution 99-57 supporting the Petition and establishment of the Fleming Island CDD.
Conclusions On October 2, 1999, a local public hearing was held in this case in Green Cove Springs, Clay County, Florida, before Don W. Davis, Administrative Law Judge (ALJ), Division of Administrative Hearings, under the authority of Section 190.005(1)(d), Florida Statutes (Supp. 1998).
The Issue Whether the subject activities of Charles River Laboratories, Inc. (CRL) constitute development within the meaning of Chapter 380, Florida Statutes. Whether the challenged after-the-fact building permit is contrary to the provisions of Chapter 380, Florida Statutes, the Monroe County Comprehensive Plan (Comprehensive Plan), and the Monroe County Land Development Regulations (LDRs). Whether the Department of Community Affairs (DCA) is barred by the Doctrine of Equitable Estoppel from challenging the after-the-fact permit issued by Monroe County. Whether the DCA and Curtis Kruer are barred by the Doctrine of Collateral Estoppel from challenging the after-the-fact permit. Whether the action by the DCA is consistent with prior agency practice.
Findings Of Fact THE PARTIES Petitioner is the state land planning agency that administers the provisions of Chapter 380, Florida Statutes, and the regulations promulgated thereunder. Petitioner has the authority to appeal to the Florida Land and Water Adjudicatory Commission any development order issued in an area of critical state concern. The appeal in the instant proceeding was timely. Monroe County is a political subdivision of the State of Florida and is responsible for issuing permits for construction in unincorporated Monroe County. Monroe County issued Permit 95100012145, the permit that is the subject of this appeal, on December 1, 1995. Monroe County did not actively participate at the formal hearing. Charles River Laboratories (CRL) is the applicant for the permit that is the subject of this appeal. Paul Schilling, D.V.M., has been the director of CRL's monkey breeding activities in the Keys since 1983 and signed the application for the permit on behalf of CRL. CRL applied to Monroe County for an after-the-fact building permit for certain work that had been completed on Raccoon Key and Key Lois. The building permit subsequently issued by Monroe County and challenged in this proceedings authorized certain work done on three feeding stations on Raccoon Key and certain work done on a field cage on Key Lois. The field cage is used as a breeding pen for monkeys. Michael C. Coppola signed the application as the general contractor of record. Mr. Coppola did not participate in this proceeding. Intervenor, Curtis Kruer, moved to the Florida Keys in 1977. He resides on Big Pine Key and maintains an office on Summerland Key. Mr. Kruer is a recreational fisherman and a licensed fishing guide and boat captain. He earns a portion of his livelihood as a fishing guide and has, in the past, chartered trips to the shallow waters surrounding Key Lois and Raccoon Key. In recent years, he has stopped fishing these areas because of what he perceives to be diminished fish population caused by degraded water quality and less seagrass extent and quality. Mr. Kruer is also of the opinion that there has been a diminution of the aesthetic character of the islands. Mr. Kruer attributes these negative impacts to CRL's use of the islands. In addition to commercial fishing activities, Mr. Kruer has fished the waters of both islands for recreation. He has reduced his recreational fishing around Key Lois because of the environmental degradation, but he continues to fish for recreation around Raccoon Key. Mr. Kruer has shown that he has been impacted by the activities of CRL on Key Lois and Raccoon Key and that he will be further impacted if those activities continue. He established that he has the requisite standing to intervene in this proceeding. AREA OF CRITICAL STATE CONCERN Most of Monroe County, including the subject property, is within the Florida Keys Area of Critical State Concern, as designated under Sections 380.05 and 380.0552, Florida Statutes. These statutory provisions require that Monroe County adopt and implement a comprehensive plan and land development regulations consistent with the Principles for Guiding Development found at Section 380.0552(7), Florida Statutes. THE MONROE COUNTY COMPREHENSIVE PLAN The Monroe County Comprehensive Plan was adopted by the Monroe County Commission on February 28, 1986, and became effective on September 15, 1986 (Comprehensive Plan). The Comprehensive Plan complies with the Principles for Guiding Development and has been approved by the Petitioner and by the Administration Commission. The Monroe County Comprehensive Plan is implemented by and through its adopted land development regulations (LDRs), codified primarily in Chapter 9.5, Monroe County Code (M.C.C.). Although there have been subsequent amendments to the Comprehensive Plan, those amendments have not been shown to be relevant to this proceeding. CRL's use of these islands predated the adoption of the Comprehensive Plan. Prior to the adoption of the Monroe County Comprehensive Plan, all pertinent permitting agencies, including the Department of Community Affairs, were aware of CRL's activities on these two islands. In the 1980s Dr. Schilling met with representatives of the Department of Community Affairs and with Monroe County staff, including the Monroe County biologist. Dr. Schilling was not told during any of these meetings that the Department of Community Affairs objected to its operations on these two islands. The actual uses CRL was making of these two islands at the time the Comprehensive Plan was adopted was not incorporated into the Comprehensive Plan. In 1984, Jim Murley was employed by the Department of Community Affairs, but not as its director, the position he currently holds. Mr. Murley advised CRL's attorney in 1984 that CRL should insure its continued use of the two islands by writing itself into the comprehensive plan so that there is no conflict with its use of the two islands and the adopted plan. Despite that advice, CRL did not file anything with Monroe County in an effort to write its use of the two islands into the Comprehensive Plan. CRL's use of these islands has not been registered with Monroe County as nonconforming use. Although the Monroe County Code provides for such registration, the evidence established that Monroe County has never undertaken the task of registering nonconforming uses in the county. THE PROPERTY CRL owns Key Lois and Raccoon Key, two offshore islands in the general vicinity of Cudjoe Key and Summerland Key that are within the Florida Keys Area of Critical State Concern. Key Lois, formerly known as Loggerhead Key, is located within the Florida Keys Marine Sanctuary approximately two miles south of Cudjoe Key in Hawk's Channel, which is in the Atlantic Ocean. CRL owns approximately 57 acres on Key Lois above the mean high water line. Raccoon Key is located in the Great White Heron National Wildlife Refuge, which is also within the Florida Keys National Marine Sanctuary and lies approximately three miles north of Cudjoe Key in the Gulf of Mexico. 1/ CRL owns approximately 100 acres on Raccoon Key that is above the mean high water line. CRL breeds reheus monkeys (Macaca mullata) on these two islands and also utilizes a land base on Summerland Key as part of its monkey farming operation. The monkeys that are bred on these two islands are either kept for future breeding or are sold for medical research related to human health. These monkeys are an important resource for medical research. The islands were selected, in part, because it would enable CRL to keep the monkeys isolated from diseases. Monkey breeding is properly considered a commercial activity as opposed to an agricultural activity. CRL began its monkey breeding operations on Key Lois in 1973 and on Raccoon Key in 1976. When they were first introduced to the Keys, the monkeys on both islands were not confined so that each monkey had free-range of its island. As a result of a dispute with the Florida Department of Environmental Regulation (FDER), CRL has agreed to a scheduled reduction of the monkeys' access to both islands. 2/ CRL has agreed to eliminate all free ranging monkeys from Key Lois by the year 2003 and to eliminate all free ranging monkeys from Raccoon Key by the year 2008. The monkey population reached its zenith in 1983 about the time Dr. Schilling assumed his responsibilities as the director of CRL's monkey breeding activities in the Keys. At that time the monkey population on Key Lois was approximately 2,000 and the monkey population on Key Raccoon was approximately 4,000. Since that time there has been a steady decline in the monkey population on both islands and, at the time of the formal hearing, there were approximately 200 monkeys on Key Lois and 1,000 monkeys on Raccoon Key. CRL supplies food and water to the monkeys on a daily basis. THE STRUCTURES The structure at issue on Key Lois is a field cage which was reconstructed from a former holding pen with solid walls to a structure whose sides and ceiling is chain link fencing. In the permit that is at issue in this proceeding, the structure is referred to as Field Cage 7. The structure was formerly referred to as Compound III. A permit for the former holding pen (then referred to as Compound III) was issued by the Army Corps of Engineers (ACOE) on June 22, 1983. Compound III was described by that ACOE permit as follows: "96' x 48' x 12', galvanized sheet metal and chain link fencing with pipes set in concrete. Used for feeding, watering and trapping monkeys. Construction date 1972." The former pen was initially used as a temporary holding pen for newly acquired animals. CRL now uses this structure as a breeding pen. Glen Boe and Associates prepared the sketches that were attached to CRL's permit application to Monroe County. The sketch depicted the basic structure 3/ of Field Cage 7 as being 50 feet in width and 100 feet in length, which is slightly larger than the description on the ACOE permit. Despite those differences, the footprint of the basic structure has not been enlarged. The discrepancy between the ACOE permit and the Boe drawing is an error. In addition to the basic structure, the Boe drawings also depict two small holding pens on either end of the cage. These holding pens are approximately 10' x 15' on one end and 10' x 20' on the other end. These holding pens facilitate the handling of monkeys and were added to the structure, without a permit, in 1988. The floor of Field Cage 7 is sand. The walls and top are supported by galvanized pipe on ten foot centers. These pipes are sunk in concrete footers. The walls, gates, and top of the structure are constructed of the same materials that are used for a typical chain link fence, with galvanized pipe being used for the framework. The solid walls were removed because they were corroding, they were too hot, and they were not keeping the monkeys confined. The chain link material provides a more suitable cage for the monkeys and is less wind resistant than solid walls. During spring high tides, all of Key Lois is typically inundated with water except for a narrow sand berm. In some years, this sand berm has been partially inundated. The three feeding stations on Raccoon Key were designed to be a feeding station that could also be used to trap and confine adult monkeys. Each of these structures is an octagon that is 32 feet in length and 32 feet in width with an open top, gates, and chain link fencing at the bottom of the walls. The wall above the chain link portion is constructed of smooth sheet metal, which prevents the monkeys from climbing over the top of the structure when the doors are closed for the purpose of trapping and confining monkeys. The three feeding cages on Raccoon Key are located in areas that flood during spring tides Both Raccoon Key and Key Lois are vulnerable to hurricanes. These islands would likely be inundated and the structures obliterated if a major hurricane were to strike them. DEVELOPMENT The activity authorized by the building permit is "development" as defined in the Monroe County land development regulations and Chapter 380, Florida Statutes. The building permit is a "development order" within the meaning of Chapter 380, Florida Statutes. See Section 9.5-4(D-8), Monroe County Code, and Section 380.04, Florida Statutes. 4/ CRL argues that these should be construed to be temporary structures and that the building activity associated with those temporary structures does not require a building permit. CRL did not establish that these structures, which are expected to remain in place for over a decade, are exempt from permitting requirements as temporary structures. THE SUBJECT PERMIT CRL has received permits from different permitting agencies for various structures, a marina, and a dock facility. It has also received letters advising that certain activities did not require a permit. There are structures on both islands that were constructed by CRL without the benefit of a building permit. CRL applied for the subject building permit after Curtis Kruer complained to Monroe County staff that there had been building activity on the two islands that had not been permitted. Thereafter, CRL was contacted by Monroe County staff. Dr. Schilling testified that CRL did not believe that a building permit was required since the structures have no roofs and were constructed either in the same footprint as prior structures or were moved at the direction of the FDER. Rather than argue with Monroe County's staff, Dr. Schilling caused an application to be filed that resulted in the challenged building permit. The application, filed October 11, 1995, was for permits for three feeding cages on Raccoon Key, a field cage (Field Cage 7) on Key Lois, and fencing. The permit application does not refer to any agency agreements, identify any other structures on the islands, indicate whether these structures replace or relocate other structures, or identify any habitat types or areas. The permit application contains drawings that reflect that the structures are more than fifty feet from the waters that surround the two islands. The permit that was subsequently issued was for the three feeding cages and the field cage only. The fencing was not permitted. This permit constitutes a development order. The Department of Community Affairs routinely reviews development orders issued in the Florida Keys Area of Critical State Concern. The Department timely filed its appeal of this development order. There was insufficient evidence to establish that the Department's appeal of this development order was inconsistent with prior agency practice. Monroe County typically requires a habitat analysis and a computation reflecting that a project satisfies the open space requirements contained in LDRs. The county biologist usually conducts a site inspection. In this case, Monroe County did not require a habitat analysis, an open space computation, or a site visit by the county biologist because it viewed these structures as reducing a nonconforming use. The staff considered CRL's use of the entire islands to be the nonconforming use that was being reduced. Monroe County has adopted an official "existing conditions map" that should show the vegetation, natural features, and developed land in the county. 5/ If the existing conditions map does not show a habitat designation, the habitat should be determined by field verification. The existing conditions map reflects the habitat for Raccoon Key, but it does not designate the habitat of Key Lois. THE LAND USE DISTRICT Section 9.5-202 establishes the different land use districts for Monroe County 6/ , including a land use designated as "Offshore Island District (OS)", the designation in which Raccoon Key and Key Lois fall. Section 9.5-212 pertains to the purpose of the "Offshore Island District (OS)" designation and provides as follows: The purpose of the OS district is to establish areas that are not connected to U.S. 1 as protected areas, while permitting low intensity residential uses and campground spaces in upland areas that can be served by cisterns, generators and other self-contained facilities. Section 9.5-231 pertains in general to the permitted uses in the different land use districts and provides, in pertinent part, as follows: No structure or land in Monroe County shall hereafter be developed, used or occupied unless expressly authorized in a land use district in this division. . . . Section 9.5-241 lists the uses that are permitted as of right in the Offshore Island District and the uses that are permitted as major conditional uses. The use CRL makes of the two offshore islands involved in this proceeding is not included as an "of right use" or as a "major conditional use." The use CRL makes of these two islands is inconsistent with the OS designation. That use is of greater impact than those contemplated by the OS designation. NONCONFORMING USES AND NONCONFORMING STRUCTURES Prior to the building activity at issue in this proceeding, the Field Cage 7 on Key Lois and the three feeding stations on Raccoon Key were nonconforming structures. 7/ CRL's use of both islands are nonconforming uses. Article V of the LDRs pertains to nonconforming uses. Section 9.5-141 provides, in pertinent part, as follows: The purpose of this article is to regulate and limit the continued existence of uses and structures established prior to the enactment of this chapter that do not conform to the provisions of this chapter. Many nonconformities may continue, but the provisions of this article are designed to curtail substantial investment in noncon- formities and to bring about their eventual elimination in order to preserve the integrity of this chapter. Section 9.5-143 pertains to "nonconforming uses" and provides, in pertinent part, as follows: Authority to Continue: Nonconforming uses of land or structures may continue in accordance with the provisions of this section. Ordinary Repair and Maintenance: Normal maintenance and repair to permit continuation of registered nonconforming uses may be performed. Extensions: Nonconforming uses shall not be extended. This prohibition shall be construed so as to prevent: Enlargement of nonconforming uses by additions to the structure in which such nonconforming uses are located . . . Relocation: A structure in which a nonconforming use is located may not be moved unless the new use thereafter shall conform to other limitations of the land use district into which it is moved. Change in Use: A nonconforming use shall not be changed to any other use unless the new use conforms to the provisions of the land use district in which it is located. Section 9.5-144 pertains to "nonconforming structures" and provides, in pertinent part, as follows: Authority To Continue: A nonconforming structure devoted to a use permitted in the land use district in which it is located may continue in accordance with the provisions of this section. Ordinary Repair and Maintenance: Normal maintenance and repair of registered nonconforming structures may be performed. Enlargements and Extensions: Noncon- forming structures which are used in a manner conforming to the provisions of this chapter may be enlarged or extended provided that the nonconformity is not further violated. Relocation: A nonconforming structure . . . shall not be moved unless it thereafter shall conform to the regulations of the land use district in which it is located. . . . ACTIVITY WAS NOT REPAIR AND MAINTENANCE The building activity on Raccoon Key involved new construction as opposed to repair and maintenance of existing nonconforming structures. These structures were abandoned or razed and the three new structures with a different design and constructed of different materials in a different footprint were built. The building activity on Key Lois was new construction as opposed to repair and maintenance of an existing nonconforming structure. The former structure, with the exception of the two holding pens that were added in 1988 without a permit, should be considered to be a nonconforming structure. The structure was dismantled to its foundation and a completely new structure was erected. With the exception of the holding pens on either end, the new structure was constructed in the footprint of the previous, nonconforming structure. A building permit from Monroe County was required for the building activity at issue in this proceeding. OPEN SPACE REQUIREMENTS An open space ratio is defined in Section 9.5-4(0-4) as ". the percentage of the total gross area of a parcel that is open space." There are two different open space ratios applicable to the subject permit. One is based on the land use district designation and the other is based on the type habitat on the property. In the instance where a land use district open space ratio and a habitat open space ratio are different, the higher open space ratio applies. The open space ratio requirement for the Offshore Island land use designation is found at Section 9.5-262, M.C.C., and requires that 95 percent of the area be left as open space. Section 9.5-343, M.C.C., contains the open space ratios designed to protect habitat. These open space ratios vary depending on the land type depicted on the Existing Conditions Map, which has been adopted and shows vegetation, natural features, and developed lands. On Raccoon Key, these three designations are depicted on the Existing Conditions Map: "fringing mangroves", "saltmarsh and buttonwood associations", and "speciality farms". Much of the island consists of fringing mangroves. A portion along the eastern shoreline is designated saltmarsh and buttonwood. Five areas in which CRL had placed structures are designated as speciality farms. The southernmost of the feeding stations on Raccoon Key at issue in this proceeding and Field Cage 7 on Key Lois are in fringing mangrove areas, a designation that has an open space requirement of 100 percent. Section 9.5- 345(m), M.C.C., authorizes the construction of piers, docks, utility pilings, and walkways in mangroves. The feeding station and the field cage are not the type structures that can be built in mangroves. The other two feeding stations on Raccoon Key at issue in this proceeding are in areas with 95 percent open space ratios. Dr. Schilling performed an open space analysis by which he concluded that all structures on both islands at issue in this proceeding met the applicable open space requirements. The southernmost feeding station on Raccoon Key and Field Cage 7. Key Lois do not comply with the open space ratio requirement. As to the other structures, the Department of Community Affairs established that Dr. Schilling's analysis was flawed. The evidence failed to establish whether the remaining structures meet the open space requirements. SETBACK REQUIREMENTS Section 9.5-286(b) pertains to shoreline setback requirements and provides as follows: (b) All buildings other than docks, utility pilings, walkways, nonenclosed gazebos and fences and similar structures shall be set back fifty (50) feet from natural water bodies with unaltered shorelines or unlawfully altered shorelines, measured from the landward limit of mangroves, if any, and where mangroves do not exist, from mean high tide line. The Monroe County staff relied on the drawings attached to the application in concluding that the structures comply with setback requirements. These drawings erroneously reflect that Field Cage 7 is more than 50 feet from the water and they do not reflect the landward extent of mangroves. The shoreline on Key Lois is unaltered. Field Cage 7 is obviously within 50' of the shoreline. Field Cage 7 does not comply with the setback requirement found in Section 9.5-286(b), M.C.C. The shoreline on Raccoon Key is unaltered. All three of the feed stations at issue in this proceeding are within 50' of the landward extent of mangroves. These three feed stations do not comply with the setback requirement found in Section 9.5-286(b), M.C.C. ADVERSE ENVIRONMENTAL IMPACTS Despite the food that is provided, the free roaming monkeys have destroyed mangroves on the two islands. In the process of pulling leaves off the mangroves, the monkeys strip bark and break branches from the mangroves. The adverse impact on the mangroves is evident, with dead mangroves being observed in large quantities on both islands. Because Key Lois is a sand key, the absence of mangroves to stabilize its shorelines and to break or absorb wave energy has contributed to erosion. Nutrients from fecal waste and food reach the nearshore waters of both islands. The excessive nutrient loading has contributed to algal blooms and the degradation of those nearshore waters. PRIOR DISPUTES In the 1980s, a dispute developed between CRL and the FDER regarding CRL's activities on these two islands. As a result of that dispute and after several years of negotiation, CRL and the FDER settled their dispute by the execution of two consent orders, one pertaining to Key Lois and the other pertaining to Raccoon Key. The Department of Community Affairs was not a party to that dispute and did not participate in the negotiations. In 1986, CRL filed a civil action in the Circuit Court of the Sixteenth Judicial Circuit in and for Monroe County, Florida, against the Governor and Cabinet sitting as the Board of Trustees of the Internal Improvement Trust Fund (Board of Trustees) to determine the mean high water line for the purposes of delineating the boundary between the lands owned by CRL and the sovereign submerged lands held in trust by the State of Florida. The case number assigned to that proceeding was 86-190-CA-13. That civil action was settled, with the consent agreements between CRL and FDER being incorporated by reference. The Department of Community Affairs was not a party to the suit between CRL and the Board of Trustees and did not participate in the negotiations that resulted in the settlement agreement. 8/ The settlement agreement between CRL and the Board of Trustees was approved by the circuit judge presiding over the civil action and was incorporated by reference in the court's "Consent Final Judgment" entered in Case No. 86-190-CA-13. The court's order provided in part, that the ". . .terms and conditions contained in [the Settlement Agreement] shall govern the parties' conduct and define their respective duties and obligations." By its settlement agreement with the Board of Trustees, CRL agreed to cease its operations on Key Lois and convey title to Key Lois to the State of Florida no later than December 31, 2012. It also agreed to cease its operations on Raccoon Key and quitclaim its ownership of Raccoon Key to the United States for inclusion in the National Wildlife Refuge System no later than December 31, 2024. The consent agreements with the FDER requires CRL to obtain all governmental permits that are necessary to effectuate the terms of the agreements. Those provisions require CRL to obtain any necessary building permits. The settlement agreement between CRL and the Board of Trustees also included the following: ". . . [H]usbandry practices will be changed to reduce the free-ranging population. Nonproductive animals will be intensely culled; selective breeders will be replaced and juveniles will be confined in corral gang-type caging similar to that used by many zoos." The provisions of the consent order between CRL and FDER for Key Lois included the scheduled reduction of the free-range population of animals, to culminate with the elimination of all free-ranging monkeys during the year 2003, and the restoration of the previously damaged mangrove areas on the island. "Holding Compound III," now referred to as Field Cage 7, was identified on a location map. The following comment reflected the future plans for this structure: "This compound will be renovated and turned into the first breeding corral." The provisions of the consent order between CRL and FDER for Raccoon Key also provided for the scheduled reduction of the free-range population of animals , to culminate with the elimination of all free-ranging monkeys during the year 2008, and the restoration of the previously damaged mangrove areas on the island. Five feeding stations were identified on the location map. The following comments reflected the future plans for these structures: "Three 48' x 24' wire structures are used to feed and trap the free ranging animals. FS I will be relocated to near (sic) Compound II. FS V will be dismantled and not replaced. FS II, III and IV will remain in use as long as free range animals are on the island." The structures referred to by the consent order as FS II, FS III, and FS IV are referred to by the development order issued by Monroe County as feeding stations 1, 2, and 3, respectively. These three feeding stations were moved short distances to less environmentally sensitive areas at the direction of FDER, but they remain in the approximate location as they were prior to the adoption of the Comprehensive Plan. The feed stations on Raccoon Key were also redesigned by CRL so that they could be better suited for trapping adult monkeys. In reliance on the consent orders with the FDER and with the settlement with the Board of Trustees, CRL has expended over $197,000 in lease fees and administrative fees to the FDER, spent some $120,000 on refoliation, $90,000 on fencing, $15,000 in feed stations, $125,000 in breeding and holding pens, and $200,000 for water treatment plants, for a total of $747,000. CRL contributes approximately one million dollars per year to the local economy in salaries and purchases. MODIFICATIONS There was no evidence of modifications to the structures that would render them consistent with the Comprehensive Plan. VARIANCES The Monroe County Code makes provision for the issuance of variances in appropriate circumstances. Section 9.5-523, M.C.C., pertains to variances and provides, in pertinent part, as follows: Variances may be granted to the requirements contained in divisions 10, 9, 4, 11, and 14, article VII, pursuant to the standards and procedures set forth in subparagraph (e) of this section, but only if a variance is not otherwise available as part of the conditional use approval process. Variances may be granted from the open space ratio requirements of section 9.5-182 according to the standards and procedures set forth in subsection (e) of this section. However, no variance shall be granted under this section if such variance would result in an open space ratio less than that required by section 9.5-343. * * * An application for a variance shall be submitted to the development review coordinator in a form prescribed by the planning director. The development review coordinator shall schedule a hearing on the variance upon receipt of a completed application. The notice requirements shall be those described in section 9.5-45. All applications for variances under this section shall be heard and decided by the planning commission at a regularly scheduled public hearing. Appeals may be filed by an owner, applicant, adjacent property owner, any aggrieved or adversely affected person as defined by section 163.3215(2), Florida Statutes; or any resident or real property owner may request an appeal of the planning commission's variance decision under the hearing officer appellate article of these regulations [Section 9.5-535, et seq.] by filing the notice required by that article within thirty (30) days of the date of the written variance decision of the planning commission. The planning commission, in granting or denying a variance under this section, shall consider whether the following conditions are met: A showing of good and sufficient cause; Failure to grant the variance would result in exceptional hardship to the applicant; A determination that the granting of the variance will not result in additional threats to public expense which would not otherwise occur; create a nuisance; or cause fraud or victimization of the public; Unique or peculiar circumstances or conditions which apply to the property but which do not apply to other properties in the same land district; The granting of the variance would not confer upon the applicant any special privilege denied by these regulations to other properties in the same land district. The planning commission, in determining whether the foregoing conditions for a variance are met, shall consider the following factors relevant: Physical characteristics of the proposed construction for which a variance is requested; Whether it is possible to use the property without the variance; The increased or decreased danger to life and property if the variance is or is not requested; The importance to the community of the services to be provided if the proposed variance is granted; The compatibility of the proposed variance in light of existing and permitted development in the immediate area; The safety of access to the property for ordinary and emergency vehicles if the variance is or is not granted; The additional or lessened costs of providing governmental services if the variance is or is not granted. The issues pertaining to the issuance of variances for these structures are not identical to the issues litigated in this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that FLAWAC enter a final order that adopts the findings of fact and the conclusions of law contained herein. It is further recommended that the final order find that the subject permit is inconsistent with the Monroe County Comprehensive Plan and Land Development Regulations. It is further recommended that FLAWAC order that the structures can remain in place until CRL has had a reasonable opportunity to apply to Monroe County for variances for the subject structures and for an amendment to the Monroe County Comprehensive Plan. Should CRL not apply for variances or an amendment to the comprehension plan within a reasonable time established by FLAWAC, or should those applications be denied, the subject structures should be ordered removed. DONE AND ORDERED this 16th day of December, 1996, in Tallahassee, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 16th day of December, 1996.
