DOAH Case No. 94-2560DRIti- it
STATE OF FLORIDA
FLORIDA LAND AND WATER ADJUDICATORY COMMISSION
DEPARTMENT OF COMMUNITY AFFAIRS
Petitioner,
vs.
ALDO R. FAGA' and JEANNE FAGA', owners,
GRILL CONSTRUCTION, INC, General
Contractor; and MONROE COUNTY, FLORIDA,
Respondents.
AGREEMENT
FLWAC Case No. APP-93-091
DOAH Case No. 94-2560DRI
THIS AGREEMENT is entered into between The ESTATE OF ALDO FAGA and JEANNE
FAGA, property owner (hereinafter "FAGA"); GRILL CONSTRUCTION, INC., general contractor
(hereinafter "GRILL"); the FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS, an agency
of the State of Florida (hereinafter the "DCA"); and MONROE COUNTY, apolitical su> divisien
of the State of Florida (hereinafter "COUNTY').
WITNESSETH: -
WHEREAS, FAGA is the owner of real property known as:
Lots 23-32, Block 21, COCO PLUM BEACH
SUBDIVISION, Fat Deer Key, in unincorporated
Monroe County, Florida.
(hereinafter the "Subject Property"); and
WHEREAS on September 23,1993, the COUNTY issued to FAGA building permit number
92-2-3617 (including 92-2-3615) and public works permit number 0764 (collectively "Building
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Permits") for construction of a single-family residence on Parcel A of the Subject Property; and
WHEREAS, the COUNTY issued permit numbers 92-2-3618, 92-2-3619, and 92-2-3623,
for Parcels B, C, and D on the subject property; and
WHEREAS, the Florida Department of Health and Rehabilitative Services has issued Permit
numbers M3995, M4095, M4195, and M4295, for Parcels A-D, respectively; and
WHEREAS, on November 8,1993, the DCA timely appealed the Building Permits for Parcel
A to the Florida Land and Water Adjudicatory Commission alleging that the Building Permits were
inconsistent with the applicable provisions of the Monroe County comprehensive plan and land
development regulations and the provisions of Chapters 163 and 380, Florida Statutes; and
WHEREAS, most of Monroe County, including the Subject Property, is located within the
Florida Keys Area of Critical State Concern, as designated under §§380.05 and 380.0552, Florida
Statutes; and
WHEREAS, the DCA is the state land planning agency with the duty and responsibility of
administering and enforcing the provisions of Chapter 380, Florida Statutes, the Florida
Environmental Land and Water Management Act of 1972 (the "Act"), and the rules and regulations
promulgated thereunder which include the Monroe County comprehensive plan and land
development regulations; and
WHEREAS, the parties recognize the binding effect of Florida Statute § 163.3227 and
Monroe County Code §9.5-101 and 9.5-102, as to the form and content of this Agreement; and
WHEREAS, pursuant to §§380.032(3), Florida Statutes, the DCA is authorized to enter into
agreements with any landowner, developer, or governmental agency as may be necessary to
effectuate the provisions and purposes of the Act or any rules promulgated thereunder; and
WHEREAS, FAGA has submitted to the DCA and the COUNTY a site plan in an effort to
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address the issues raised by the DCA in its appeal, which documents are acceptable to the DCA and
the COUNTY with certain conditions described herein; and
WHEREAS, the permits on appeal and the Subject Property are governed by the 1986
adopted comprehensive plan and implementing land development regulations and policies as of the
date of permit application submittal; and
WHEREAS, the parties wish to avoid the expense and delay of lengthy litigation and resolve
the pending appeal under terms set forth herein, which said terms effectuate the provisions and
purposes of the Act, and it is in their best interests to do so; and
WHEREAS, the parties are resolving disputed issues of fact and law as to this appeal and
in addition, any issues associated with the proposed residences for Parcels B, C and D; and
WHEREAS, the DCA and the COUNTY find that this Agreement is in the best interests of
the state and county and is necessary to effectuate the provisions and purposes of Chapter 380,
Florida Statutes; and
WHEREAS, the COUNTY joins in this Agreement for the purpose of implementing and
enforcing the same; and
WHEREAS, this Agreement incorporates by reference all other regulatory approvals not
modified by this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and undertakings herein, and
in consideration of the benefits to accrue to each of the parties, the receipt and sufficiency of which
are hereby acknowledged the parties hereby agree as follows:
1. Representations. The above recitations and representations are true and correct and
by this reference are incorporated herein and are essential elements hereof.
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4 A
2. Site Plan. FAGA has submitted to the COUNTY and the DCA, and the COUNTY
and the DCA have approved, a revised site plan dated September 11, 1996. A copy of the revised
site plan is attached hereto as Exhibit "A". The revised site plan is acceptable to and is hereby
approved by the DCA and the COUNTY with the following conditions:
A. All elements of the revised site plan shall be requirements of development
and shall be mandatory, unless otherwise modified in this Agreement. All conditions for
development specified in this agreement shall be mandatory. All use of the term "should" shall be
deemed to be mandatory.
B. The bridge depicted on Exhibit "A" shall be technically reviewed for
modification to concrete construction as may be elected by FAGA. It is recognized that
modifications to the existing ramp and fill therewith may be required if concrete construction is
elected for the access bridge as may be authorized by the Florida Department of Environmental
Protection ("FDEP"). If concrete construction is not elected by FAGA, a wooden bridge shall be
built as depicted on the site plan, as approved by the FDEP.
C. The DCA and the COUNTY acknowledge that FAGA may exercise transfer
of development rights or sale of development rights assigned to the property in accordance with the
1986 adopted comprehensive plan provisions and land development regulations.
D. It is not the intention of the COUNTY and the DCA to require acceleration
of development of the Subject Property, but rather to maximize best land use management practices,
including conservation values consistent with FAGA's rights and commitments herein. FAGA may
elect to commence building pursuant to each building permit approval for each parcel independent
of any other parcel to sequence construction of one residence at a time. However, once building
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has commenced, all other time limitations set forth in the Monroe County Code apply. Sequencing
of construction may occur for a maximum period of ten years from the effective date of this
Agreement by which construction must be completed. The ten year buildout period may be
extended after ten years only upon written agreement among the parties. Due to the permit
conditions required by this Agreement and Exhibit A hereto, the construction schedule set forth in
the Monroe County Code applicable to Parcel A (permit numbers 92-2-3617, 92-2-3615 and public
works permit number 0764) is tolled for a period of one (1) year from the effective date of this
Agreement.
E. The subject site plan shall include no drainage swales for the ocean side of
the residences for Parcels A, B, C and D, and no concrete slab for the residence for Parcel A. Any
swales otherwise required pursuant to the approved stormwater plan shall not discharge to the
saltwater slough.
F. No fill or excavation shall occur within the existing mangrove habitat as
depicted on the site plan and as verified in the field prior to construction as per the FDEP permit.
G. The access bridge reflected on the site plan rendered with the building permit
application shall be of a length so as to clear the mangroves and salt water slough on site such that
either end of the access bridge will terminate beyond the mangrove lines and the boundaries of the
slough.
H. The guest suite shall be connected to the main structure (single family
residence, or "SFR") so as to form a single habitable unit by connecting the dripline on the north and
south side of the former main residence and former guest suite which will increase the habitable
square footage for each residence due to the reconfigured dripline. However, any increase in the
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habitable square footage shall be limited to the square footage of the dripline connection only. In
addition, FAGA will execute a restrictive covenant with the land which prohibits rental, sale or lease
of the guest suite, or of anything less than the entire single family residence. FAGA agrees that each
stairway shall provide reasonable uniform access to all portions of each residence, and the site plan
shall include no additional independent access to the guest suite.
I. Minimal excavation will be allowed for transplantation on the beach berm,
i.e., the absolute minimum amount necessary to transplant the native species in accordance with
the COUNTY approved transplantation plan.
J. The parties agree that the Subject Property, including the access bridge and
proposed residences for Parcels A, B, C, and D, as approved by regulatory agencies, are vested in
accordance with the 1986 Monroe County Comprehensive Plan and implementing regulations
including project sequencing imposed by this Agreement and said vesting shall not be subject to
appeal by the DCA or COUNTY. Project modifications and time schedule waivers shall remain
vested under the 1986 Comprehensive Plan, but shall be subject to applicable provisions of the
Monroe County Code at the time the modification or waiver is approved. The COUNTY reserves
its right to allow variance or waiver of any such provisions as allowed by law.
K. In the event that all or a portion of the existing or authorized development
subject to this Agreement should be destroyed by a storm, fire or other common disaster, FAGA,
all heirs, grantees, successors or assigns shall have the right to rebuild or repair so long as such work
is in compliance with this Agreement and applicable provisions of the COUNTY's 1986
Comprehensive Plan and implementing land development regulations
L. FAGA may elect to sequence issuance of each building permits for Parcels
C.1
A- D to allow one (1) residence to be completed before issuance of a second residence building
permit within the time schedule of Paragraph 2.1). FAGA may elect to request issuance of more
than one (1) building permit at a time or request issuance of one (1) or more building permits while
one (1) or more residence(s) are under construction within the time schedule of Paragraph 2.D.
3. Post -Development Survey. Inspection and Restoration. Within two (2) weeks
following commencement of construction of each single-family residence authorized under the
subject permits, FAGA shall provide to the DCA and the COUNTY actual written or verbal notice
that construction has commenced. The DCA and COUNTY staff shall be allowed reasonable access
to the site, with prior appointment by at least 48 hours notice, for site inspection and verification of
adherence to the revised site plan and this Agreement. The DCA and COUNTY agree to indemnify
FAGA, all heirs, grantees, successors or assigns, from all claims for damages resultant from the
gross negligence or misconduct of DCA and /or County representatives performing a site inspection
pursuant to this Agreement. Such inspections shall occur no sooner than two (2) weeks after receipt
of notice from FAGA that construction has commenced, and may take place on a random basis.
The final site inspection shall be performed no later than two (2) weeks after completion of
construction. Pursuant to the site inspections, the DCA shall notify the COUNTY and FAGA
whether violation of either the COUNTY land development regulations or this Agreement has
occurred. Said violation, if any, shall constitute a material breach of this Agreement.
4. Recommended Order. The Recommended Order entered in this case on November
1, 1995, (attached hereto as Exhibit B) shall have full force and legal erect. In consideration of the
equities involved in this case, the revised site plan (Exhibit A), and the stipulations and conditions
of this Agreement, the parties agree to jointly request the entry of a final order by the Florida Land
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and Water Adjudicatory Commission adopting the findings of fact and conclusions of law in the
Recommended Order and allowing FAGA to develop the subject property in accordance with the
permit conditions and site plan revisions described herein and attached hereto as Exhibit A.
5. Further Proceedim. By their signature hereon, the parties to this Agreement join
in a request to place this matter in abeyance pending issuance of a final order consistent with this
Agreement.
6. Breach of Agreement and Cure Provisions.
a. Upon FAGA's material breach of the terms and conditions of this Agreement,
the COUNTY or the DCA may serve written notice on FAGA and shall provide FAGA the
opportunity, within 60 days, to respond to or cure the breach, and/or to propose a method of
fulfilling the Agreement's terms and conditions within a reasonable period of time. The COUNTY
or the DCA, in their discretion, may jointly allow FAGA an opportunity to cure the breach or to
negotiate an amendment to this Agreement within a reasonable time, not to exceed six(6) months
after FAGA's response or proposal, absent exigent circumstances. The six month time frame may
be extended by the parties, in writing, as long as curing of the breach or negotiation of an
amendment to this Agreement is continuing in good faith.
b. The following events, unless caused by fire, storms, floods or other acts of
God or events beyond the control of FAGA, are to be considered a material breach of this
Agreement: (1) The failure to comply with or violation of any or all terms of this Agreement; (2)
The failure to maintain the conservation area provisions of this Agreement; (3) The failure to
maintain conditions placed on permits or approvals contained in this Agreement; and (4) The failure
to comply with applicable permitting requirements of the COUNTY after notice and opportunity
withing sixty (60) days to comply with such permitting requirements or, if applicable, to commence
compliance with such requirements if compliance requires more than sixty (60) days.
C. If the DCA or the COUNTY finds that FAGA or a successor is in material
breach of this Agreement and, after notice is given as provided herein to respond to or cure said
breach, FAGA fails within a reasonable time to respond, cure or secure an amendment resolving the
breach, then FAGA's rights hereunder are terminated and FAGA is subject to judicial action
pursuant to Section 380.11, Florida Statutes, or to any cause of action for breach of Agreement
available to DCA or the COUNTY. Any cause of action for breach of Agreement shall also be
available to FAGA for any material breach of this Agreement by DCA or the COUNTY. However,
in the event FAGA has sold a parcel or parcels, a material breach by FAGA shall not prevent an
individual parcel owner from developing that parcel or parcels if such development is not in material
breach of this Agreement.
7. Amendment. Termination or Revocation. The parties hereto shall at all times adhere
to the terms and conditions of this Agreement. Amendment, termination or revocation of this
Agreement shall be in a written document approved and executed by the parties to this Agreement
or their heirs, grantees, successors or assigns, if applicable.
8. Procedures Governing Revocation DCA. Upon breach of Paragraph 6a. hereof, the
DCA may revoke this Agreement by written notice of revocation to FAGA and the COUNTY. The
Department's revocation shall be subject to the procedural requirements of Chapter 120, Florida
Statutes.
9. Retention of Right to Request Entry of Final Order. If any party fails to implement
this Agreement within the time periods prescribed hereunder, or if this Agreement is based upon
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materially false or inaccurate information, any party shall be entitled to withdraw from this
Agreement and seek a final order in this case by motion filed with the Florida Land and Water
Adjudicatory Commission.
10. State and Federal Law. If state or federal laws enacted after the effective date of this
Agreement preclude any party's compliance with the terms of this Agreement, this Agreement shall
be modified or revoked as is necessary to comply with the relevant state or federal laws, if
applicable. However, this Agreement shall not be construed to waive or supersede any contention
under law that FAGA has acquired vested rights under prior law.
1 1. Compliance with Other Laws. The failure of this Agreement to address a particular
permit, condition, term, or restriction shall not relieve FAGA or the parcel owners of the necessity
of complying with the laws governing said permitting requirements, conditions, terms or restrictions.
12. Caveat. The parties acknowledge their disagreement over whether the subject
development order is consistent with the provisions of Chapter 380, Florida Statutes, relating to
Areas of Critical State Concern and the administrative rules promulgated thereunder and have
entered into this Agreement solely in the spirit of compromise. By their signatures hereon, no party
shall be deemed to have acquiesced in the position of another party with regard to the proper
interpretation and implementation of statutory and regulatory provisions relating to Areas of Critical
State Concern. The Agreement shall not be given precedential effect with regard to other
development orders excluding the Subject Property for other projects in an Area of Critical State
Concern.
13. Certification of Understanding and Voluntary Execution: Costs and Attorney's Fees.
The parties and/or their authorized representatives each certify that they have read and understand
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the terms and conditions of this Agreement and that it is voluntarily executed for the purposes of
making a full and final settlement of any and all claims or disputes of any nature, which could have
been asserted against the other party as a result of this appeal of the subject development order. The
parties hereto release each other party from any and all claims of whatever nature which arise or may
arise out of the appeal of the Building Permits that was the subject of DOAH Case No. 94-2560DRI.
Each party shall bear its own costs and attorney's fees incurred in this proceeding.
14. Drafting of Agreement. The parties shall be deemed to have participated generally
in the drafting of this Agreement. Accordingly, this Agreement shall be construed neutrally without
regard to the party or parties responsible for its preparation, and any terms, conditions, uncertainty,
or ambiguity shall not be construed against any of the parties as a result of the drafting of this
Agreement.
15. Entry of Final Order. Within five (5) days after this Agreement is executed by all
parties, the DCA shall submit the Agreement to the Florida Land and Water Adjudicatory
Commission with a recommendation to the Florida Land and Water Adjudicatory Commission that
it accept this Agreement and enter an order approving the Agreement, as provided in Paragraph 4
herein, thereby concluding the subject appeal. The DCA shall endeavor to expeditiously conclude
this matter to avoid unnecessary delay to FAGA.
16. Effective Date of Agreement, The effective date of this Agreement is the date on
which the Florida Land and Water Adjudicatory Commission enters its Final Order.
IT Duplicate Originals, This Agreement may be executed in any number of originals,
all of which evidence one Agreement, and only one of which need be produced for any purpose.
18. Recordation of Agreement This Agreement is intended to and shall create a binding
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covenant running with the land. FAGA shall provide the COUNTY with an executed Agreement
within sixty (60) days of the Monroe County Commission and the DCAs approval of this
Agreement, whichever date is later. The COUNTY shall record this Agreement with the Clerk of
the Circuit Court of Monroe County within fourteen (14) days upon receipt from FAGA. Recording
fees shall be paid by FAGA. Proof of recordation shall be provided by FAGA to the DCA within
fourteen (14) days after the Agreement is recorded. If this Agreement is subsequently amended,
canceled, modified, extended or revoked, the Clerk shall have notice of such action, the same shall
be recorded, and notice provided to the DCA in the same manner as the original Agreement.
19. Scope of Authoritv This Agreement affects the rights and obligations of the parties
under Chapter 380, Florida Statutes, relating to Areas of Critical State Concern. It is not intended
to influence or determine the authority or decisions of any other state or local government or agency
in issuance of any other permits or approvals that might be required by state law or local ordinance
for any development authorized by this Agreement.
20. Entirety of Agreement This Agreement incorporates and includes all prior
negotiations, correspondence, conversations, agreements or understandings applicable to the matters
contained herein and the parties agree that there are no commitments, agreements or understandings
concerning the subject matter of this Agreement that are not contained in or incorporated into this
document. Accordingly, it is agreed that no deviation from the terms hereof shall be predicated
upon any pnor representations or agreements, whether oral or written.
21. Seve_ ra�vs If a court of competent jurisdiction determines that any part of this
Agreement is contrary to, prohibited by, or deemed invalid under any applicable law or regulation,
such provisions shall be inapplicable and deemed omitted to the extent so contrary, prohibited or
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invalid; however, the remainder hereof shall not be invalidated thereby and shall be given full force
and effect.
22. Jurisdiction and GoverningLaw The parties hereto agree that initial venue for any
and all suits or actions at law regarding this Agreement shall be Monroe County, Florida, and no
other jurisdiction. This Agreement shall be construed and interpreted under the laws of the State of
Florida.
23. Successors and Assigns This Agreement shall be binding upon the parties hereto,
their successors in interest, heirs, grantees, assigns and personal representatives. Any entity
purchasing one or more of the parcels, or portions thereof, shall take subject to the terms and
provisions or this Agreement. Purchasers of one or more parcels after the date of this Agreement
may independently elect to amend the development approvals for the parcel(s), however, those
purchasers shall not be deemed the heirs, grantees, successors or assigns of FAGA for completion
of the obligations of this Agreement.
24. Notices. All notices, demands, requests, or replies provided for or permitted by this
Agreement shall be in writing and may be delivered by any one of the following methods: (a) By
personal delivery; (b) By deposit with the United States Postal Service as certified or registered mail,
return receipt requested, postage prepaid, to the address stated below; (c) By facsimile; or (d) By
deposit with an overnight express delivery service. Notice deposited with the United States Postal
Service in the manner described above shall be deemed effective three (3) business days after
deposit with the Postal Service. Notice by facsimile or overnight express delivery service shall be
deemed effective one (1) business day after transmission by facsimile or after deposit with the
express delivery service.
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For purposes of notice, demand, request or replies, the address of the COUNTY shall be:
BOB HERMAN
Director, Growth Management Division
Monroe County
2798 Overseas Highway, Suite 400
Marathon, FL, 33050-2227
With a copy to:
JAMES T. HENDRICK, ESQUIRE
Monroe County Attorney
310 Fleming Street
Key West, FL 33040
The address of FAGA shall be:
JEANNE FAGA
88 Kings Cross
Scarsdale, NY 10583
With a copy to:
J.A. JURGENS ESQUIRE
J.A. Jurgens, PA.
1964 Howell Branch Road, Suite 206
Winter Park, FL 32792
The address of the DCA shall be:
MICHAEL McDANIEL
Growth Management Administrator
Department of Community Affairs
2555 Shumard Oak Boulevard
Tallahassee, FL 32399-2100
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IN WITNESS WHEREOF, the parties have executed this Agreement on the date and year
below written.
Date
STATE OF NEW YORK
COUNTY OFc�
THE ESTATE OF ALDO FAGA AND
JEANNE' FAGA
By;
ANNE' �FAGA
The foregoing instrument wa- a;;knowledged before me this _A� day o
CANINE' FAGA, who is personally known to me or who has produced.96, by
as identification and who did not take an oath.
NOTARY PUBLIC
My Commission Expires: i 1 6 5 5 00
DAVID JACOBS
Notary Public, State of New York
No. 01 JA5004190
Qualified In Westchester Cou
Commission Expires 11/09/9—
l
Date
STATE OF FLORIDA
COUNTY OF LEON
DEPARTMENT OF COMMUNITY
AFFAIRS, an agenc a State of Florida
By:CL& yzld�
CHARLES PATTISON
The foregoing instrument was acknowledged before me this 15 day of January, 1997, by
CHARLES PATTISON, as mow;-si,,,. b%ccc�„ - of the DEPARTMENT OF
COMMUNITY AFFAIRS, who is personally known to me or who has produced
as identification and who did not take an oath.
NOTARY PUBLIC
;..
My Commission expires:
'r bvhuw rFIrW TROY FAIN INSURANCE, INC.
: ,t"jj�r rrr
l? RONa M. Frazier
7 MY COMMISSION N CC5M70 EXPIRES
October 6, 2000
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TNRU TROY FAAY INSURANCE, INC.
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December 18. 1996
MONROE
of the Sta
By:
(SEAL)
Attest:
, a political subdivision
DOUGE-4*S, Mayor
Clerk
Deputy Clerk
DAWYLMN
STATE OF FLORIDA
DEPl9�fYCLEFIK
COUNTY OF MONROE
The foregoing was acknowledged before me this 18th day of December, 1996, by KEITH
DOUGLASS, as Mayor of MONROE COUNTY, wh_o is _personally known to me or who has
produced as identification and who did not take an oath.
NOTARY P LIC
My Commission expires:
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My Comm Exp. 12130/'99
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No. CC506335 BY
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Eric B. Holly, Agent FDNR # : SHEET I OF 1
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF COMMUNITY AFFAIRS,
Petitioner,
CASE NO. 94-2560DRI
vs. )
ALDO R. FAGA and JEANNE FAGA, )
Owners; GRILL CONSTRUCTION, INC., )
General Contractor; and MONROE j
COUNTY, FLORIDA,
Respondents.
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings,
by its duly designated Hearing Officer, Claude B. Arrington, held
a formal hearing in the above -styled case on June 7-9, 1995, in
Key West, Florida.
APPEARANCES
For Petitioner: Stephanie M. Gehres, Esquire
Assistant General Counsel
Department of Community Affairs
2796 Overseas Highway, Suite 212
Marathon, Florida 33050
For the Fagas: Michael L. Gore, Esquire
Michael J. Grindstaff, Esquire
Shutts & Bowen
20 North Orange Avenue, Suite 1000
Orlando, Florida 32801
For Grill No appearance.
Construction, Inc.:
For Monroe No appearance.
County:
STATEMENT OF THE ISSUES
Whether Permit Number 9220003617 issued by Monroe County,
Florida, to Jeanne and Aldo Faga is inconsistent with the Monroe
Exhibit B
County Comprehensive Plan and Monroe County Land Development
Regulations. Three areas of dispute were involved in this
proceeding:
Whether the permitted development (as
modified by stipulation) is inconsistent with
provisions requiring development to be
clustered on the least environmentally
sensitive portion of the site;
Whether the permitted development (as
modified by stipulation) is inconsistent with
provisions pertaining to construction in
mangroves and submerged lands; and
Whether the permitted development (as
modified by stipulation) is inconsistent with
provisions establishing setback requirements
from beach berms that are known turtle
nesting areas.
PRELIMINARY STATEMENT
Petitioner timely appealed a development order issued by
Monroe County, Florida, to Aldo R. Faga and Jeanne Faga, as
owners, and to Grill Construction, Inc., as general contractor.
Mr. Faga died after the issuance of the permit, and the Estate of
Aldo R. Faga, deceased, was substituted as the party in interest.
The dispute was referred to the Division of Administrative
Hearings, and this proceeding followed.
The Fagas own ten (10) contiguous acres of property,
originally platted as 10 separate lots. The property was
reconfigured, and the lots combined to form four (4) lots,
referred to as Parcels A through D. The development order
appealed here is a building permit issued by Monroe County for
construction on Parcel A only.
To resolve the clustering issue, it is necessary to
determine the habitat types that exist on Parcel A. That
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determination will resolve whether the permitted development is
"clustered" on the property such that the development impacts the
least sensitive portion of the parcel. The determination of the
habitat seaward of the slough and the landward extent of the
beach berm is necessary to resolve whether the development as
permitted by Monroe County complies with mandated setbacks from
known or potential turtle nesting areas. Finally, it will be
necessary to resolve whether the bridge/access structure as
permitted by the Department of Environmental Protection and
approved by Monroe County is allowable under the pertinent land
development regulations.
Prior to the formal hearing, the parties entered into
certain stipulations that form the basis of findings of fact in
this Recommended Order.
At the formal hearing Petitioner presented the testimony of
four (4) witnesses: Kenneth Metcalf, Community Program
Administrator for the Florida Keys Area of Critical State
Concern; Kathleen Edgerton, a Planner IV, Biologist employed by
the Department; Patricia McNeese, an ecologist with Lewis
Environmental Services and Director of Monroe County's'
Environmental Resources Department; and Pat Wells, a manager with
the Florida Park Service. Mr. Metcalf was tendered and accepted
as an expert in the fields of urban regional planning and in the
implementation of the Critical Area Plan in the Florida Keys.
Ms. Edgerton was tendered and accepted as an expert in the fields
of biology, marine biology and Florida Keys ecology. Ms. McNeese
was tendered and accepted as an expert in the fields of biology,
marine biology and Florida Keys ecology. Mr. Wells was tendered
and accepted as an expert in the field of marine turtle nesting
in the Florida Keys.
The Respondents presented the testimony of four (4)
witnesses: Brian Winchester, President of Winchester
Environmental Associates, Inc.; Lorenzo Aghemo, Planning Director
for Monroe County; Jennifer Faga, the daughter and representative
of Respondent Jeanne Faga; and Kenneth Metcalf. Mr. Winchester
was tendered and accepted as an expert in biology and Florida
Keys biological ecosystems, including plant identification and
habitat analysis. Respondents also called as a witness Faye
Buchanan, a licensed real estate broker specializing in property
sales in the Middle Keys area of Florida. Her proffered
testimony was found to be irrelevant and was, consequently,
excluded. The Petitioner offered the following exhibits that
were admitted into evidence: 1, 2, 3, 3 (a) , 4, 7 (a) , 7(b), 7 (c) ,
7(d), 7(e), 7(f), 7(g), 8(a), 8(b), 8(c), 8(d), 8(e), 9(a), 9(b),
10, 11, 14(a), and 14(b). There were no Petitioner exhibits
marked 5, 6, 12 or 13. Petitioner's Exhibit 15 was marked for
identification purposes only. Petitioner's exhibits.16 (5 bags
of soil) and 17 (a bag of seagrass) were accepted for
demonstrative purposes only. The Fagas offered 37 exhibits,
identified as Fagas' Exhibits 1 - 37, all of which were admitted
into evidence except Exhibit number 30.
A transcript of the proceedings has been filed. At the
request of the parties, the time for filing post -hearing
submissions was set for more than ten days following the filing
4
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of the transcript. Consequently, the parties waived the
requirement that a recommended order be rendered within thirty
days after the transcript is filed. Rule 60Q-2.031, Florida
Administrative Code. Rulings on the parties' proposed findings
of fact may be found in the Appendix to this Recommended Order.
FINDINGS OF FACT
THE PARTIES
1. Petitioner is the state land planning agency charged
with the responsibility to administer 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.
2. Jeanne Faga and the Estate of Aldo Faga, deceased,
hereafter referred to collectively as the "Fagas," are the owners
of approximately ten acres of real property known as Lots 23
through 32, Block 21, Coco Plum Beach subdivision, Fat Deer Key,
in unincorporated Monroe County, Florida. This property,
acquired by the Fagas in 1971, has been subdivided by the Fagas
into four parcels. Lots 23-24 have been consolidated and will be
referred to as Parcel A. The remaining lots have been divided
into Parcels B, C, and D.
3. Grill Construction, Inc., is a Florida corporation and
is the general contractor for Respondent for the building permit
at issue.
4. Monroe County, Florida; is a political subdivision of
the State of Florida. Monroe County did not actively participate
in this proceeding.
5
THE DEVELOPMENT ORDER AND ITS HISTORY
5. 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.
6. Monroe County has adopted a comprehensive plan,
effective September 15, 1986, which complies with the Principles
for Guiding Development and which 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, codified primarily in
Chapter 9.5, Monroe County Code (M.C.C.).
7. While Respondent originally applied for a development
permit for one residence on each of the four parcels and for an
access bridge on Parcel A, the subject of this permit appeal
proceeding is the development order for Parcel A only. If the
project is permitted, it -is contemplated that the access bridge
at issue in this proceeding will provide access to the residences
the Fagas hope to build on Parcels B, C, and D.
B. The initial permit application for a residence on each
of the four (4) parcels and an access bridge on Parcel A capable
of use by motor vehicles was denied by Monroe County staff. The
Fagas thereafter appealed the staff denial to the Planning
Commission. The Planning Commission reviewed the project and
6
affirmed the denial by staff. The Fagas thereafter appealed the
denial by the Planning Commission to the Monroe Cou-ity
Commission.
9. On July 28, 1993, the Monroe County Board of County
Commissioners adopted Resolution No. 299-1993, which reversed the
denial of the appeal by the Planning Commission, and authorized
the Fagas to go forward with the building permit applications.
On September 23, 1993, Monroe County issued to the Fagas and
Grill Construction Co. building permit number 9220003617, the
development order that is the subject of this proceeding. This
development order includes public works permit number 0764 and
building permit number 9220003615, which address the proposed
access bridge on the subject site. The development order
approves the permit for the access bridge that was issued by the
Department of Environmental Protection. This development order
authorizes the construction of a 4,501 square foot single family
home with 2,426 square feet of porches, a 813 square foot
enclosure for parking and storage, fill for a driveway, a
separate guest house and an elevated bridge approximately 12 feet
wide and 160 feet long. The building permit issued by Monroe
County at issue in this proceeding did not include construction
on Parcels B, C and D.
10. The Department timely filed its challenge to the
subject development order pursuant to Section 380.07, Florida
Statutes.
7
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STIPULATED PERMIT CONDITIONS
11. The parties stipulated that the following modifications
to the development order would be made if the project is
permitted:2
A. The subject development permit
conditions shall be amended to state that the
subject site plan shall include no drainage
swales and no concrete slabs.
B. The subject development permit
conditions shall be amended such that the
site plan shall include no fill or excavation
between the proposed structures and the salt
water slough, for a driveway or for any other
purpose, except for minimal fill necessary
for the ramp at each end of the proposed
bridge. No fill or excavation shall occur
within the existing mangrove habitat as
depicted on the site plan and as verified in
the field prior to construction.
C. The subject development permit
conditions shall be amended to reflect that
the access bridge reflected on the site plan
rendered with the building permit application
shall be of a length so as to clear the
mangroves and salt water slough on site such
that either end of the access bridge will
terminate beyond the end of the mangrove
lines and the boundaries of the slough.
D. The subject development permit
conditions shall be amended to reflect the
guest suite be connected to the main
structure (single family residence, or "SFR")
by an enclosed interior hallway, atrium or
the like, so as to form a single habitable
unit. In addition, the Fagas will execute a
restrictive covenant to run with the land
which prohibits rental, sale or lease of the
guest suite,.or anything less than the entire
single family residence. Each stairwell to
the SFR will access a deck which provides
uniform access to each room in the SFR, and
the site plan shall include no additional
independent access to the guest suite..
E. Only minimal excavation will be allowed
for transplantation on the beach berm, i.e.,
the absolute minimum amount necessary to
8
transplant the native species identified in
the County -approved transplantation plan.
The transplantation shall occur in a manner
which preserves the contour of the beach berm
and ground cover resources on site and
restores the area cleared for development to
natural conditions which include native plant
species transplanted on site.
GENERAL DESCRIPTION OF PARCEL A
12. Most of the land constituting the four Faga parcels was
"created" in the late 1950s, by depositing seaward (south) of the
then existing shoreline spoil material from offshore dredging.
The original "beach" in this area of Fat Deer Key (prior to the
dredge and fill activities) existed just south of Coco Plum
Drive, which now serves as the northern border of the Faga
parcel. As a result of this dredge and fill activity, most of
the dry land that presently exists on Parcels A-D was created
from lands that were submerged. Additionally, the saltwater
slough that exists on Parcels A-D was created as a result of this
dredge and fill activity.
13.' The subject site, Parcel A, is bordered on the north by
Coco Plum Drive, on the West by a multistory condominium
development, on the South by the Atlantic Ocean, and on the East
by Parcel B. Parcel A is rectangular, with the East - West.
measurement being approximately 215 feet and the North - South
measurement being approximately 375 feet. The Eastern third of V
the central portion of the Faga parcel contains a shallow,
manmade water body (the "saltwater slough"), which is fringed
with mangroves.
14. Because the saltwater slough was created by the dredge
and fill activity, it is appropriate to classify the saltwater
9
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slough as a manmade water body pursuant to Section 9.5-4 9(M-4),
M.C.C., which defines the term "manmade water body" as follows:
(M-4) Manmade water body means a water
body that was created by excavation by
mechanical means under human control and
shall include a canal, cut basin or channel
where its edges or margins have subsequently
been modified by natural forces.
15. All of Parcel A, meets the following definition of
"disturbed land" found at Section 9.5-4(D-14), M.C.C.:
(D-14) "Disturbed Land": Disturbed land
means land that manifested signs of
environmental disturbance which has had an
observable effect on the structure and
function of the natural community which
existed on the site prior to the disturbance.
16. The remainder of the property, including the sandy
beach area and beach berm, will be discussed in detail below.
CLUSTERING REGULATIONS
17. Section 9.5-345(a), M.C.C., requires clustering of
development as follows:
"Clustering": When a parcel proposed for
development contains more than one (1)
habitat type, all development shall be
clustered on the least sensitive portions of
the parcel subject to the maximum net
densities of Section 9.5-262, the open space
requirements of Sections 9.5-262 and 9.5-269
and the performance standards of this
section. For the purposes of this
subsection, the sensitivity of habitat types
shall be as listed with subsection (1) being
the most sensitive and subsection (18) being
the least sensitive. The least sensitive
part of the parcel shall be fully utilized
prior to the distribution of density to the
next least sensitive habitat type.
1) High hammock (high -quality) ;
2) Palm hammock;
3) Cactus hammock;
4) Beach/berm;
5) Pinelands (high -quality);
6) Salt marsh and buttonwood
10
associations;
7) High hammock (moderate -quality);
8)
Low hammock (low -quality);
(moderate -qu Y)�
9)
(10)
Low hammock
Pinelands (low -quality);
(11)
High hammock ( low -quality) ;
(12)
Low hammock (low -quality);
(13)
(14)
Disturbed with hammock;
Disturbed with salt marsh and
buttonwood;
(15) Disturbed beach/berm;
(16)
Disturbed with exotics;
(17)
Disturbed with slash pines;
(18)
Disturbed.
18. Landowners are required to cluster development on the
least sensitive portions of their property, subject to open space
requirements for the respective classifications and subject to
the maximum density for a parcel. An area classified as
"disturbed" has a twenty percent open space requirement. Parcel
A has a maximum density limit of 2.5 units per acre.
HABITAT DETERMINATION -- GENERALLY
19. To determine whether it is necessary to cluster this
development, it is necessary to determine the habitat
classification for Parcel A. Monroe County has adopted an
existing conditions map that purports to show the existing
habitat classifications on Parcel A. The existing conditions map
reflects two habitat classifications for Parcel A: open water
(the area of the saltwater slough) and disturbed with buttonwood
and salt marsh.
on the Aslan survey3 as the
20. The area designated
saltwater slough is properly designated as open water.
21. The parties agree that the classification on the
existing conditions map for the remainder of Parcel A as
11
"disturbed with buttonwood and salt marsh" is incorrect. The
parties disagree as to the appropriate habitat classification for
the portions of Parcel A landward and seaward of the saltwater
slough.
22. Brian Winchester, on behalf of the Fagas, spent in
excess of 8o hours on the four Faga parcels, conducting visual
observations and taking core samples. He conducted field surveys
of the four parcels during July 9-11, September 23- 24, October.
20-22, and November 11-12, 1992. Staff of the Monroe County
Environmental Resources Department conducted a joint site visit
to the parcels with Mr. Winchester on September 23 and October
21, 1992.
23. Mr. Winchester identified each small area of the parcel
that he believed justified a distinct habitat classification and,
based on a qualitative and quantitative analysis (which included
counting individual stems in some areas), determined whether
there was a dominate species for each area.
24. In October and November, 1992, Mr. Winchester staked
the edges of each portion of Parcel A that he believed
constituted a distinct habitat. Those. staked areas reflecting a
plant community were then measured by Asian, Inc. and depicted on
the Asian survey. The Asian survey also marks the mean high
water line on the property and measures the topography of all
four parcels.
25. Kathleen Edgerton and Patricia McNeese, the biologists
who testified for the Petitioner, disagreed with Mr. Winchester's
habitat evaluation. They conducted separate on -site inspections
12
of the property, each with the benefit of the Aslan survey, and
each determined what she considered to be the appropriate habitat
classifications on Parcel A. Ms. Edgerton and Ms. McNeese were
in agreement as to how the habitats of Parcel A should be
classified.
26. Petitioner's experts determined the extent of the
saltwater slough and the mangrove fringe surrounding it. They
determined the extent of the beach berm (which they consider to
extend to the mangrove fringe on the seaward side of the slough)
and determined the habitat of Parcel A seaward of the mangrove
fringe. They then determined the habitat classification for the
portion of Parcel A lying landward of the mangrove fringe. Based
on their on -site evaluations of the property, Petitioner's
experts did not believe that the portion of Parcel A lying
landward or seaward of the mangrove fringe justified more than
one habitat classification.
27. in resolving the conflicting testimony between
Respondents' expert and Petitioner's experts, more weight is
given to the opinions expressed by Ms. Edgerton and Ms. McNeese
because they have had extensive experience in conducting habitat
classifications for lands in the Florida Keys as a part of their
official responsibilities. While Mr. Winchester is an
accomplished biologist, his experience in making habitat
determinations in the Florida Keys is limited. The undersigned
is persuaded by the testimony from Petitioner's experts that
observations of species on site for making habitat determinations
involve the subject parcel in larger perspective than that used
13
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by Mr. Winchester.
HABITAT DETERMINATION LANDWARD OF THE SLOUGH
28. Mr. Winchester expressed the opinion that the following
habitat classifications exist on the portion of Parcel A lying
landward of the mangrove fringe: a small strip of land adjacent
to the road that should be classified as "disturbed"; a larger
strip of land that should be classified as "disturbed with
exotics"; and a third strip of land that should be classified as
"disturbed with salt marsh and buttonwood". Petitioner's experts
testified that the entire portion of Parcel A landward of the
mangrove -fringe should be classified as "disturbed". This
dispute is resolved by finding that the greater weight of the
evidence establishes that the portion of Parcel A landward of the
mangrove fringe should be classified as "disturbed". While
exotics, including Australian Pines and Brazilian peppers, exist
in different areas of this part of the property, Petitioner's
experts established that other vegetation exists and that exotics
do not dominate the portions of the property classified by Mr.
Winchester as "disturbed with exotics". Likewise, it is
concluded that the portion of the property classified by Mr.
Winchester as "disturbed with salt marsh and buttonwood" should
be classified as "disturbed" since there is little salt marsh and
buttonwood does not dominate. Further, there exists in this area
trees and vegetation that are not typically found in an area
designated as "salt marsh and buttonwood".
14
GRQ H INGE AND 'F O SALTWATER SLOUCH
29. The Department of Environmental Protection (DEP) has
claimed jurisdiction of the saltwater slough, an assertion that
is not challenged in this proceeding.
30. The parties disagree an to whether the saltwater slough
is tidally influenced and whether the mangrove fringe around the
saltwater slough meets the definition of a "mangrove community".
31. The salt water slough Consists of shallow, landlocked
water over mud, sand and marl bottoms. The water level increases
with heavy rains and infrequent storm tides, and decreases during
periods of drought. The slough has been observed to be dry
during time of drought, negating any inference of regular tidal
influence. Based primarily on Mr. Winchester's observations and
quantitative measurements, it is concluded that there is no
regular tidal influence on the slough.
32. That the saltwater slough is ecologically significant
and provides a valuable resource for birds, especially during
storms, was not seriously disputed at the formal hearing. The
birds that normally use the beach will come into the slough,
where they can stay within the protection of the mangroves. They
feed there, and are not subjected to wave .force and wind that
they would receive if they were on the outside.
33. The salt water slough is encircled by a fringe of
mangroves. Mr. Winchester classified the mangrove fringe as
,,disturbed with mangroves". This classification is consistent
with similar classifications on Monroe County's existing
conditions maps, but the classification is not separately listed
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in the County's land development regulations pertaining to
clustering because specific regulations limit development in
mangroves.4 Whether the areas delineated by the Asian survey as
being the mangrove fringe is classified as "mangroves" or as
"disturbed with mangroves" is irrelevant for determining the
issues presented by this proceeding.
HABITAT DETERMINATION - WATEMAR.D OF THE SLOWH
34. Section 9.5-4(B-3), defines the term "beach berm" as
follows:
Beach berm means a bake, sandy shoreline
with a mound or ridge of unconsolidated sand
that is immediately landward of, and usually
parallel to, the shoreline and beach. The
sand is calcareous material that is the
remains of marine organisms such as corals,
algae and molluscs. The berm may include
forested, coastal ridges and may be colonized
by hammock vegetation.
35. Parcel A contains a sandy beach, including a seaweed
wrack and some low vegetation which is typical of beach berm
vegetation as defined in the Monroe County Code. Behind.the low
vegetation, lies an area of Australian Pine trees that extends to
the seaward extent of the mangrove fringe. Petitioner asserts
that the beach berm on Parcel A extends to the mangrove fringe
and that the proper classification for all of Parcel A seaward
from the mangrove fringe is "disturbed beach berm". Respondents
assert that seaward from the mangrove fringe on the east side of
the parcel there is a small section that should be classified as
disturbed with salt marsh and buttonwood, that the area with the
Australian Panes should be classified as disturbed with exotics,
and that the remaining portion should be classified'as disturbed
beach berm.
16
36. The accepted characteristics of beach berm soil, as
defined in the LDRs and Comprehensive plan, are "calcareous" and
"unconsolidated". Reference to the soil as calcareous refers to
its origin, while the consolidation of the soil refers to its
compression and its cohesiveness.
37. The soil from the mean high water line to the mangrove
fringe seaward of the slough is unconsolidated, calcareous sand.
The only area that appears to exhibit consolidated soils is that
which has been compacted by vehicular use in the property.
Vegetation typical of beach berms is scattered throughout the
parcel between the mean high water mark and the mangrove fringe.
38. The area of Parcel A that lies between the mean high
water mark and the mangrove fringe seaward of the saltwater
slough, is beach berm. This portion of Parcel A is properly
classified as "disturbed beach berm" as opposed to "beach berm"
because the entire parcel is disturbed lands and because
Australian Pines have encroached on a portion of the beach berm.
CLUSTERING ANALYSIS
39. Petitioner established that development on Parcel A
(with the exception of the access structure to be discussed
below) should be limited to the area landward of the slough that
should be classified as "disturbed". The Petitioner established
that this area of Parcel A is large enough to accommodate a
reconfigured version of the development.
TURTLE NESTING SETBACK
40. Section 9.5-345 (3) (f) , M.C.C., provides for a setback
of construction from turtle nesting areas in areas designated as
disturbed beach berm as follows:
17
S
f. No structure shall be located within
fifty (50) feet of any portion of any
beach -
berm complex which is known to serve as an
active nesting or resting area of marine
turtles, terns, gulls or other birds . . .
41. While no specific sites on Parcel A were identified as
active nesting sites, the beach on which Parcel A is located is a
known turtle nesting area. The expert testimony from Patrick
Wells established that marine turtles most frequently nest within
50 feet of the mean high water line. The expert testimony of Mr.
Metcalf established that the setback of fifty feet required in
Section 9.5-345(o)(3)f, M.C.C., should be typically measured from
the backslope of any beach berm crest. If there is no beach berm
crest on a parcel or if the beach berm crest is more than fifty
feet from the mean high water line, the setback should be
measured from a line that is parallel to and fifty feet landward
of the mean high water line.5
42. Mr. Winchester identified the existence of a beach berm
"crest" within the area of Parcel A that is designated on the
Aslan survey as disturbed beach berm. Mr. Winchester testified
that he observed a three or four inch drop behind the crest and
was of the opinion that the beach berm crest was formed by wind
and wave action. The crest, as identified by Mr. Winchester, is
marked on the Aslan survey and is just a few feet from the mean
high water line.
43. Petitioner's experts testified that there was no crest
and that there was a gradual rise in the beach berm elevation
from the mean high water mark to the beginning of the mangrove
fringe.
is
44. This conflict in the evidence is resolved by finding
that there is no discernible beach berm crest until it reaches
the mangrove fringe. This finding is consistent with the expert
testimony presented by the Petitioner, the photographic evidence,
and the topographical markings on the Aslan survey. Further,
this finding is consistent with the manner in which this property
was created by the depositing of fill.
45. Based on the foregoing findings, it determined that the
beginning of the setback line should be from a line parallel to
and fifty feet landward of the mean high water line. The
distance of the setback itself should be fifty feet as required
by Section 9.5-345(o)(3)f, M.C.C. The development order at issue
in this proceeding does not comply with the turtle nesting
setback requirement.
THE ACCESS STRUCTURE
46. Section 9.5-345(m), M.C.C., authorizes construction of
piers, docks, utility pilings and walkways on areas with
mangroves and submerged lands. All structures on any submerged
lands and mangroves are required to be designed, located, and
constructed on pilings or other supports.
47. DEP has issued a permit for the access structure that,
if constructed, will be on pilings that are set in areas of the
mangrove fringe and in areas of the slough. As permitted by DEP,
the access structure would be 12 feet wide and 160 feet long. As
noted above, the parties have stipulated that the subject
development permit conditions shall be amended to reflect that
the access bridge reflected on the site plan rendered with the
19
I ♦ l
building permit application shall be of a length so as to clear
the mangroves and salt water slough on site such that either end
of the access bridge will terminate beyond the end of the
mangrove lines and the boundaries of the slough. The DEP permit
contains appropriate special and general conditions to assure
that the access structure will be constructed consistent with
pertinent permitting criteria.
48. The primary objection to the access structure raised by
the Petitioner is to the width of the structure. Mr. Metcalf
testified, without contradiction, that the acceptable standard in
the planning profession for the maximum width for a walkway is
six feet. Based on that testimony, it is found that the access
structure should be authorized with the conditions imposed by DEP
and as modified by the parties's stipulation, but with the
additional condition that the width of the structure be changed
from twelve feet to six feet.
CONCLUSIONS OF LAW
49. The Division of Administrative Hearings has
jurisdiction over the parties to, and the subject matter of, this
proceeding. Sections 120.57(1) and 380.07(3), Florida Statutes.
50. The Petitioner timely appealed, pursuant to Section
380.07, Florida Statutes, the development order that is described
in the findings of fact portion of this Recommended Order. 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
20
Statutes. See Section 9.5-4(D-8), Monroe County Code, and
Section 380.04, Florida Statutes.
51. Although designated an appeal, this proceeding is
properly considered to be a "de novo" proceeding pursuant to the
provisions of Section 120.57(1), Florida Statutes. The initial
burden of going forward with the evidence that the development
order is not in accordance with Chapter 380, Florida Statutes,
the Monroe County Comprehensive Plan, and the Monroe County land
development regulations, and the ultimate burden of persuasion,
is on the Petitioner. Young v Department of Community Affairs,
625 So.2d 831 (Fla. 1993); Transcmlf Pipeline Co. v. Board of
County Commissioners, 438 So.2d 876 (Fla. 1st DCA 1983).
52. In Young v Department of Community Affairs, supra, at
834, the Court observed that the Legislature has
statutorily determined that development
in the Florida Keys Area of Critical State
Concern will have an adverse impact if not in
accordance with chapter 380, the local
development regulations and the local
comprehensive plan."
53. In conformity with and in furtherance of the purposes
of Chapter 380, Florida Statutes, the Local Government
Comprehensive Planning and Land Development Regulation Act
requires that Monroe County permit only that development which is
consistent with the Monroe County comprehensive plan. See,
Sections 163.3161(2) and 163.3194(1), Florida Statutes. See
also, Sections 163.3201, 163.3215(1), and 163.3213(1), Florida
Statutes.
54. The Petitioner's burden is to establish by competent,
substantial evidence that the permitted development authorized by
21
building permit number 9220003617 does not comply with the Monroe
County comprehensive plan and land development regulations, and
that the development is, consequently, not in accordance with the
provisions of Chapter 380, Florida Statutes. Petitioner has met
I
its burden in this proceeding.
55. Deference has been given to the Petitioner's
interpretation of the land development regulations pertaining to
classification of habitat. An agency's interpretation of its own
rules and regulations will not be overturned even if such
interpretation is not the sole possible interpretation, the most
logical interpretation, or the most desirable interpretation. An
agency's interpretation of its rules and governing statutes will
not be overturned unless the interpretation is clearly erroneous.
Health Ouest Co oration et al. v. Department of Health and
Rehabilitative Services and Arbor Health Care Co. et al., 11
FALR 5427 (1989), ABC Li ors Inc. v. Department of Business
Regulation, 397 So.2d 696 (Fla. 1st DCA 1981); Department of
Insurance v Southeast Volusia Hospital District, 438 So.2d 815
(Fla. 1983).
56. As reflected by the Findings of Fact, the Petitioner
has established by competent, substantial evidence that the
development of a single-family residence, guest suite and access
bridge, as authorized by Monroe County under building permit
number 9220003617, does not comply with the Monroe County
comprehensive plan and land development regulations, and
consequently is not in accordance with the provisions of Chapter
380, Florida Statutes. The stipulation as to modifications that
22
would be made by the Fagas if the development is permitted does
not bring the development into compliance.
57. The development would meet all permitting criteria,
including the 50 foot turtle nesting setback, if the development
is clustered on the least sensitive portion of the parcel (the
area landward of the saltwater slough classified as disturbed),
if the stipulated modifications are incorporated, and if the
access bridge is reduced in width from twelve feet to six feet.
RECDATION
Based on the foregoing Findings of Fact and Conclusions of
Law, it is
RECOMMENDED that the Florida Land and Water Adjudicatory
Commission enter a final order that adopts the findings of fact
and conclusions of law contained herein and denies the subject
development order number 9220003617. The permit can be approved
if the Fagas choose to modify its application to conform to the
findings and conclusions contained herein.
DONE AND ENTERED this 1st day of November, 1995, in
Tallahassee, Leon County, Florida.
C ZjDE B . ARRINGTON
Hearing Officer
Division of Administrative Hearings
The Desoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the
Division of Administrative
Hearings this 1st day of
November 1995.
23
ENDNOTES
1 These exhibits were pre -marked by the Petitioner using
its own marking system.
2 The site plan referred to in the stipulation is dated July
9, 1993, and was submitted to the Petitioner by the County as
part of the permitting file.
3 The Aslan survey was prepared on behalf of the Fagas by
Aslan,.Inc., a professional land surveying corporation.
4 See, Section 9.5-345(m), M.C.C., discussed above.
Respondents established that the mangrove fringe is not subject
to tidal influence and that, consequently, the mangrove fringe
does not meet the following definition of "mangrove community"
found at Section 9.5-4 (m-3), M.C.C.:
Mangrove community means a wetland plant
association subject to tidal influence where
the vegetation is dominated by one (1) or
more of the following three (3) species of
mangroves . . .
5 The provisions of Section 9.5-286, M.C.C., do not
Petitioner did not introduce a
apply
nesting
to this proceeding because
inventory approved by the Monroe County planning director
or by
the Florida Freshwater Fish and Game Division. Section
9.5-286,
M.C.C. provides, in pertinent part, as follows:
(c) No structure other than docks shall be
located within fifty ( 5 0 ) feet of any
shoreline area which is known to serve as an
active turtle nesting or resting area for
marine turtles. Active nesting area" is
defined as one that has appeared on (a
competently prepared) nesting inventory
(approved by the planning director and
Florida Freshwater Fish and Game Division) at
least once within the previous three (3)
years prior to the development application.
.
APPENDIX TO RECOMMENDED ORDER,.CASE NO. 94-2560DRI
The following rulings are made as to the proposed findings
of fact submitted by the Petitioner.
1. The proposed findings of fact in paragraphs 1, 2, 3, 4,
5, 6, 7, 8, 9, 10, 11, 12, 17, 20, 22, 23, 30, 33, 43, 46, 47,
24
Feb C.gr 10:35 F. 03
48, 55, S6, 57, 65, 66, 67, 69, 77, 81, 84, 86, and 88 are
adopted in material part by the Recommended Order.
2. The proposed findings of fact in paragraph 13 are
adopted in part by the Recommended Order, but are rejected to the
extent they are unnecessary to the conclusions reached.
3. The proposed findings of fact in. paragraphs 14, 16, 21,
25, 26, 27, 28, 29, 31, 32, 34, 35, 36, 37,38, 39, 41, 42, 44,
45, 491 50, 51, 52, 53, 54, 58, 59, 60, 61, 62, 63, 64, 68, 70,
71, 721 75, 76, 78, 79, 80, 82, 85, 87, 89, 90, 91, 92, 93, 94,
95, 96, 97, 98, 99, 101, and 102 are subordinate to the findings
made.
4. The proposed findings of fact in paragraphs 15 and 18
are rejected as being contrary to the findings made.
5. The proposed findings of fact in paragraph 19 are
adopted in part by the Recommended Order, but are rejected to the
extent they are contrary to the findings made.
G. The proposed findings of fact in paragraphs 24, 40, 73,
74, 83, 103, and 104 are rejected as being unnecessary to the
conclusions reached.
7. The proposed findings of fact in paragraph 100 are
rejected as being unsubstantiated by the evidence.
The following rulings are made as to the proposed findings
of fact submitted by the Fagas.
1. The. proposed findings of fact in paragraphs 1, 2, 3, 41
5, 6, 7, 8, 91 10, 11, 17, 181 19, 20, 21, 22, 23, 24, 25, 26,
27, 28, 32, 39, 40, 42, 60, and 62 are adopted in material part
by the Recommended order.
25
Feb 15 1CI: --S6 F..-Ja
2. The proposed findings of fact in par -graph 12 are
adopted in part by the Recommended Order and rejected in part as
being unnecessary to the Conclusions reached.
3. The proposed findings of fact in paragraphs 13, 14, 15,
and 16 are rejected as being unnecessary to the conclusions
reached. These proposed findings attempt to establish a bias on
the part of the Petitioner in an attempt to impugn its motive and
impeach its main witnesses. This argument pertaining to bias
lacks credibility and is, consequently, rejected.
4. The proposed findings of fact in paragraphs 29, 30, 33,
34, 351 36, 37, 38, 46, 47, 48, 54, 57, 59, and 64 are rejected
as being contrary to the findings made.
S. The proposed findings of fact in paragraphs 31, 41, 49,
So, 51, 52, 56, and 63 are subordinate to the findings made.
6. The proposed findings of fact in paragraph 43 are
adopted in material part by the Recommended Order or are
subordinate to the findings made.
7. The proposed findings of fact in paragraphs 44, 4.5, 55,
and 58 are rejected as being unnecessary to the conclusions
reached.
8. The proposed findings of fact in paragraph 53 are
rejected as being unnecessary to the conclusions reached or as
being contrary to the greater weight of the evidence.
9 The proposed findings of fact in paragraph 61 are
adopted in part by the Recommended Order. The proposed findings
pertaining to the pilings ignores the differences in width and
load capacity between the access bridge and a walkway and are,
consequently, rejected as being unsubstantiated by' the evidence.
26
V e , s
COPIES FURNISHED:
Stephanie M. Gehres, Esquire
Department of Community Affairs
2796 Overseas Highway, Suite 212
Marathon, Florida 33050
Terrell Arline, Esquire
Department of Community Affairs
2740 Centerview Drive
Tallahassee, Florida 32399-2100
J.A. Jurgens, Esquire
Post Office Box 1178
Winter Park, Florida 32790
Michael L. Gore, Esquire
Michael J. Grindstaff, Esquire
Shutts & Bowen
20 North Orange Avenue, Suite 1000
Orlando, Florida 32801
James T. Hendrick, Esquire
317 Whitehead Street
Key West, Florida 33040
Grill Construction, Inc.
784 Duck Key Drive
Duck Key, Florida 33050
Carolyn Dekle Director Council
South Florida Regional Planning
3400 Hollywood Boulevard, Suite 140
Hollywood, Florida 33021
Bob Bradley, Secretary
Florida Land & Water Adjudicatory Commission
2105 The Capitol
Tallahassee, Florida 32399-0001
Gregory C. Smith, Esquire
Governor's Legal Office
209 The Capitol
Tallahassee, Florida 32399-0001
James F. Murley, Secretary
Department of Community Affairs
2740 Centerview Drive
Tallahassee, Florida 32399-2100
Dan Stengle, General Counsel
Department of Community Affairs
2740 Centerview Drive
Tallahassee, Florida 32399-2100
27