Resolution 388-1993FILED F nr REC'07r'
Planning Department
RESOLUTION NO. 388-1993
A RESOLUTION OF THE MONROE COUNTY BOARD OF
COMMISSIONERS AUTHORIZING THE MAYOR TO
EXECUTE, ON BEHALF OF MONROE COUNTY, AN
AGREEMENT BETWEEN THE FLORIDA DEPARTMENT
OF COMMUNITY AFFAIRS, THE HOLZINGERS AND
MONROE COUNTY CONCERNING LOT 17, SECTION
"B" OF LONG BEACH ESTATES, BIG PINE KEY,
UNINCORPORATED MONROE COUNTY, FLORIDA,
APPROXIMATE MILE MARKER 33.
WHEREAS, Jim and Paulette Holzinger are the owners of real
property described as:
Lot 17, Section "B" of Long Beach Estates, Big Pine Key,
Monroe County, Florida; and
WHEREAS, the Holzingers applied for a building permit to con-
struct a single family residence on the above -referenced lot; and
WHEREAS, on July 21, 1992, the Monroe County Building Depart-
ment issued building permit No. 90100001986 to the Holzingers for
the construction of a single family residence; and
WHEREAS, on September 4, 1992, the Florida Department of
Community Affairs (herein "DCA") appealed building permit No.
90100001986, alleging that the the open space ratio shown on the
site plan did not comply with applicable provisions of the Monroe
County land development regulations; and
WHEREAS, the Holzingers submitted to DCA and to Monroe County
a revised site plan in an effort to address the issues raised
by DCA in its appeal, which site plan the DCA and Monroe County
accepted; and
WHEREAS, the DCA and the Holzingers wish to resolve the pend-
ing appeal under terms set forth herein; and
WHEREAS, the Holzingers, the DCA and Monroe County agree to
the following:
1. The Holzingers shall be permitted to construct a single fami-
ly residence on the subject property in accordance with the re-
vised site plan attached as Exhibit "a"; and
2. All recommendations in the revised site plan shall be require-
ments, unless otherwise modified in this Agreement; and
3. Within two (2) weeks following development of the single-fami-
ly residence authorized under the subject permit, the Holzingers
shall provide to DCA and Monroe County written or verbal notice
that development is completed. Within two (2) weeks of such
notice, Monroe County and DCA shall inspect the site to verify
adherence to the revised site plan.
4. Monroe County shall not issue a certificate of occupancy for
the residential unit until after the Holzingers provide a post -
development sketch of the site, DCA staff have inspected the
site, and DCA staff have advised Monroe County in writing that no
violation has occurred; and
5. This agreement is intended to and shall create a covenant
running with the land. Within one (1) week after entry of an
order by the Florida Land and Water Adjudicatory Commission con-
cluding this appeal, the Holzingers shall record this Agreement
in the public records of Monroe County, Florida; and
WHEREAS, the staff report by Lorenzo Aghemo, Director of
Planning, found that the agreement between the Florida Department
of Community Affairs and the Holzingers, complies with the Monroe
County Land Development Regulations; and
WHEREAS, the Director of Planning and the planning staff
consider the agreement to be in the public health, safety and
welfare; and
WHEREAS, therefore, the staff report by Lorenzo Aghemo,
Director of Planning, recommends approval of the agreement and
recommends that the Board of County Commissioners authorize the
Mayor to execute the agreement between the Florida Department of
Community Affairs and Jim and Paulette Holzinger;
BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF
MONROE COUNTY, FLORIDA THAT:
The Board of Commissioners of Monroe County, Florida,
agrees with the recommendation of the Director of Planning
that the execution of this agreement would be in the best inter-
ests of the citizens of Monroe County; and
Therefore, that the Mayor is hereby authorized to execute the
agreement between the Florida Department of Community Affairs,
Monroe County and the Holzingers, a copy of said agreement is
attached hereto and incorporated by reference; and
That the Clerk of the Board is hereby directed to forward
three certified copies of the agreement to the Division of
Growth Management.
PASSED AND ADOPTED by the Board of County Commissioners of
Monroe County, Florida, at a regular meeting of said Board held
on the 19th day of October_, A.D., 1993.
Mayor London yes
Mayor Pro Tem Cheal yes
Commissioner Freeman -yes-
Commissioner Harvey yes
Commissioner Reich yes_
By,
(SEAL)
ATTEST: DANNY L. KOLHAGE, CLERK
BY: LC. &A ,
DEPUTY CLERK
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
MAYOR/CHAIRMAN
J L S ICIE,
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF COMMUNITY AFFAIRS,
Petitioner,
vs.
DOAH CASE NO. 92-7532DRI
JIM AND PAULETTE HOLZINGER, Owners;
and PINEWOOD ENTERPRISES, INC., a
Florida Corporation and general
contractor; and MONROE COUNTY, a
political subdivision of the State
of Florida,
Respondents.
S E T T L E M E N T A G R E E M E N T
6�?v(,-f- ,7q_
This Agreement is entered into between JIM AND P-
HOLZINGER, property owners and PINEWOOD ENTERPRISES, INC., general
contractor (herein "HOLZINGER"); the FLORIDA DEPARTMENT OF
COMMUNITY AFFAIRS (herein "DCA"), an agency of the State of
Florida; and MONROE COUNTY, a political subdivision of the State of
Florida. 10
WHEREAS, 4ftnT53ftr is the owner of real property known as:
Lot 17, Section "B" Long Beach Estates, Big Pine Key,
unincorporated Monroe County, Florida.
(herein "the subject property"); and
WHEREAS, on July 21, 1992, Monroe County issued to Holzinger,
Owner and General Contractor, three (3) building permits, each
numbered 90100001986, for construction of a single-family residence
on the subject property; and
WHEREAS, on September 4, 1992, DCA timely appealed the
building permits to the Florida Land and Water Adjudicatory
Commission, alleging that the permits are not in compliance with
applicable provisions of the Monroe County land development
regulations; and
WHEREAS, most of Monroe County, including the subject
property, is located within the Florida Keys Area of Critical State
Concern, as designated under Sections 380.05 and 380.0552, Florida
Statutes; and
WHEREAS, 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
land development regulations; and
WHEREAS, pursuant to Section 380.032(3), Florida Statutes, 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, Holzinger has submitted to DCA a revised site plan in
an effort to address the issues raised by DCA in its appeal, which
documents are acceptable to DCA with certain changes described
herein; and
WHEREAS, the parties wish to 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
2
WHEREAS, Monroe County joins in this settlement agreement for
the purpose of implementing and enforcing same.
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. All representations contained above are
incorporated herein and are essential elements hereof.
2. "The parties hereto mutually agree that Holzinger shall
be, and is hereby, permitted to construct a single family residence
on the subject property in accordance with the site plan attached
hereto as Exhibit "A". The parties specifically acknowledge that
construction of the subject single family dwelling in accordance
with Exhibit "a" (and the applicable building permits) is consented
to b the DCA based upon the a '`-ffge `f_ 2�
Y p equities established by the �ioa�gers
® and the fact that the revised survey of the property secured by the
(seeExhibit"B") provides for additional buildable area
with -ee't- to the subject dwelling. The Holzingers do hereby
specifically acknowledge and agree that for the purposes of
amicable settlement and resolution of t is matter they do not
challenge or controvert, and the parAt4es ereby stipulate to, the
findings of fact and conclusions of law set forth in the
recommended order submitted by the Administrative Judge on July 9,
1993 (See Exhibit "L") as a result of the evidence taken at the
formal hearing of this matter.-w y
3
3. All recommendations in the revised site plan shall be
requirements, unless otherwise modified in this Agreement. All use
of the term "should" shall be deemed to be mandatory.
4. Post -Development Survey. Inspection and Restoration.
a. Survey/Inspection. Within two (2) weeks following
development of the single-family residence authorized under the
subject permits, Holzinger shall provide to DCA and Monroe County
actual written or verbal notice that development is completed. DCA
and Monroe County staff shall be allowed reasonable access to the
site for site inspection and verification of adherence to the
revised site plan. Such inspection shall occur no later than two
(2) weeks after receipt of notice from Holzinger that construction
is completed. Within the same two -week time period, if no
deviation from the revised site plan has occurred, DCA shall notify
Monroe County that it is satisfied that no violation of the Monroe
County land development regulations and this Agreement has
occurred.
5. Certificate of Occupancy. Monroe County shall not issue
acertificate of occupancy for the residential unit until after
LV
ifenaver has provided a post development sketch of the site, DCA
staff have inspected the site, and DCA staff have advised the
County in writing that no violations has occurred.
6. Effective Date of Agreement. The effective date of this
Agreement is the date on which the Florida Land and Water
Adjudicatory Commission enters an order approving this Agreement
and concluding this appeal.
4
7. Duplicate Originals. This Settlement 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.
8. Recordation of Agreement. This Agreement is intended to
and shall create a covenant running with the land. Within one (1)
week after entry of an order by the Florida Land and Water r-j(,
Adjudicatory Commission concluding this appeal, der shall
record this Agreement in the public records of Monroe County,
Florida, and shall provide proof of recordation to DCA, including
the official records book and page where this Agreement is
recorded.
9. Scope of Authority. This Agreement affects the rights
and obligations of the parties under Chapter 380, Florida Statutes.
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.
10. Release; Costs and Attorneys Fees. Each party hereto
releases the other from any and all claims or demands arising out
of the subject permit appeal. Each party shall bear its own costs
and attorney fees incurred in connection with this proceeding.
11. Entirety of Agreement/Amendment. This Agreement
constitutes the entire agreement of the parties. This Agreement
may be modified or amended only by a separate writing entered into
between the parties hereto and recorded in the public records of
Monroe County as provided in paragraph 8 above.
5
IN WITNESS WHEREOF, the parties have executed this Agreement
on the data and year below written.
JIM
Date
STATE OF FLORIDA
COUNTY OF MONROE
Subscribed and sworn to before me bye \ ry\ "`���^
as of Jim Holzinger ^ this day of
0 r i4q3. sl
Notary Public
My Commission Expires
V F Nq
NY COM IMac 't SS STA� OF F7.ORlA4.IOU QE1tA& INS.
IN WITNESS WHEREOF, the parties have executed this Agreement
on the data and year below written.
PINEWOOD ENTERPRISES
By:
Date
STATE OF FLORIDA
COUNTY OF MONROE
Subscribed and sworn to before me by -1 -w �``Jrr% ty --2.�
as f N t 5,% krA- of Pinewood Enterprises this S day
of Qk-- V, -e r , 19"'�
r6
Notary Public
My Commission Expires:
DENISE NALEPA
SSTATE OWISS'"��.17 IngIlyCO'MU
ZXS.
October 19, 1993
Date
vcu .� i
O FUk,,:.
414D G F lCI NC'/
Date
MONROE COUNTY, a political
subdivision of the State of Florida
By: ---
Ja
(SEAL)
, Mayor
Attest: Danny L. Kohlage, Clerk
By: Lo a441 C . lS�
Deputy Clerk
DEPARTMENT OF COMMUNITY AFFAIRS,
An Agency of the State of Florida
By:
Linda Loomis Shelley, Secretary
STATE OF FLORIDA
COUNTY OF LEON
Subscribed and sworn to before me by Linda Loomis Shelley, as
Secretary of the Department of Community Affairs, on this day
of , 19_
Personally Known
8
Notary Public
My Commission Expires:
�itlyc�r.0 ivy Jim and 'Pena holzinuer
THIS IS SHEET ONE OF TWO, SHEET TWO CONTAINS LEGAL DESCRIPTION.
From Point of Commencement to Point Of Beginning has been varified
on the ground by running the centerline of Long Seach Drive.
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LO NJ
This Lot appears to be in Plood Zone ,q _,
F` —
sURMOM NOTES „ with cap !1o•. LN 2863
S.Y.R.■ @at-ii�n rod 1/2
P.I.R.■ found iron rod aise as :soon
with a base flood elevation of 8 e—
F.X.P.■ fowl iron pipe size as shorn
F.X.R.M. Number
S.N.D.■ set nail and disk No. Ls ZB63
P.N.D.■ found nail and disk No. as shown
There are no above ground encroachments
„ terofnveyf right of way
r/w ght
that are not shown.
t ■ property line
8levations are shown thus IM, AND ARE N.G.V.
DonchmarXi 8. v ' �1 p•l a�• +Gc. S.W.
All lot angles are Wunled"hovn othorvise.
M.H.W.(Mean High Water) is approximate and doe
Cap i or 7
not purport to establish local datum or tidal
--
boundary property lines.
SURVEY IS NOT VALID UNLESS SEALED YlITH A RAISE:
BOUNDARY' SURVEY
EMBOSSED SEAL. .
Rev,jLD rid
_R Bcoa.M a.•►w Pew L...,.:.. Ilu+f M.N.
I Hereby Certiif That This svrvsy Mats The Minimum Requiremarlts
)f Chapter 21-MN-6. Florida Administrative Coder Pursuant
To
section 472.027, Florida statutes.
Harold L. OVorbeck
Florida Registered Land surveyor No. 211,-
iai �orwo ar. H.L.OVERBECK# INC. '---�-�'-•77
•e �
-Z5-43 AANGBR DRIVE r.• lbV111ai'-4as R
State of Florida
Division of Administrative Hearings
The DeSoto Building, 1230 Apalachee Parkway
Tallahassee, FL 32399.1550
(904) 488-9675 * SunCom: 278-9675
July 9, 1993
David K. Coburn, Secretary
rlorida Land & Water Adjudicatory
Commission
Office of the Governor �(
311 Carlton Building
Tallahassee, Florida 32399-0504 �..%
U
Sharvn t.. Smith
Director
Ann Cole
Clerk
L` L""�
�:.
I. yP_
NOW 1� 1993
1n Re: Departure o ommunity Affairs v.
Paulett zinger, a al.
DOAH C No. 92--75 RI
r
Jim an`d
Dear Mr. Coburn: / r
Enclosed is my Recommended Order in -the referenced
case. Also enclosed are the Exhibits admitted into evidence.
As required by Section 120.59(5), Florida Statutes
(1989), please furnish the Division of Administrative Hearings a
copy of the Final order in this case within 15 days of its
rendition.
Sincerely,
46,
illiam R. Dorsey,
Hearing Officer
WRO/bcl
Enclosure
cc: Stephanie M. Callahan, Esquire
Theodore W. Herzog, Esquire
Linda Loomis Shelley, Secretary
G. Steven Pfeiffer, General Counsel
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF COMMUNITY AFFAIRS, j
Petitioner, )
VS. ) CASE NO. 92-7532DRI
JIM AND PAULETTE HOLZINGER, )
Owners; PINEWOOD ENTERPRISES, )
INC., as general contractor; )
and MONROE COUNTY, a political }
subdivision of the State of j
Florida, )
Respondents. )
RECOM%gNDED ORDER
This matter was he4ird in Key West, Florida. on April 30,
1993, by William R. Dorsey, the Hearing Officer, designated by
the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Stephanie M. Callaghan, Esquire
Assistant General Counsel
Department of Community Affairs
2740 Centerview Drive
Tallahassee, Florida 32399-2100 •
For Respondent: Theodore W. Herzog, Esquire
209 Duval. Strut
Key West,,, Florida 33040
STATEMENT OF THE ISSUES
f
The issue is whether the three permits (for land clearing,
fill and for the construction of a single-family residence)
issued by Monroe County to .7im and Paulette Holzinger comply with
a) open space ratios and b) environmental design criteria
applicable to the types of habitat, as described in the Monroe
County land development regulations, found on the property.
/'
i!
PRELIMINARY STATEMENT
Monroe County issued a composite of three building permits
to the Holzingers, one for land clearing, one for fill, and one
for construction of a single-family residence on Lot 17, Section
B of Long Beach Estates, on Big Pine Key on July 21, 1992. Each
permit bears the number 9010001986.
The Department of Community Affairs reviewed the permits,
for the lot is in an area of critical state concern, and the
permits are "development orders-, under Sections 380.031(3) and
380.07, Florida Statutes. The Department concluded that the
permits violate provisions of the land development regulations
found in the Monroe County Code and the County's comprehensive
development plan, which have mandatory open space ratios for
mangroves of 100% and for beach berm of 90%, and which prohibit
the use of fill, for driveways in mangrove and beach berm areas.
Stipulations
The parties agreed in the Joint Prehearing Stipulation filed
at the opening of the hearing that conditions are attached to the
building permits, which are found in the handwritten notes issued
by Monroe County biologist Diana Stephenson and in a memorandum
dated August 8, 1991- The conditions include that "all Bay Cedar
trees in the construction area shall be successfully transplanted
on site or relocated by a qualified nursery or person,, (from
among those named on an attached list), and "any relocation
receipts shall be returned to biologist before final Certificate
of 0(ccupancyl." The Holzingers agree that they will transplant
any and all Bay Cedar on site as required by the permit, and the
2
Department agrees that the permit conditions the County imposed
constitute an adequate transplantation plan. Monroe County has
not actively participated in the litigation and the parties agree
that the County relies on the land owner_ to litigate the validity
of the three related permits at issue. The Department filed a
proposed recommended order, the Holzirgers did not. Rulings on
proposed findings of fact are found in the Appendix to this
Recommended Order.
FINDINGS OF FACT
A. Stipulated Facts
1. Jim and Paulette Holzinger own Lot 17, Section B, Long
Beach Estates, located on Big Pine Key in unincorporated Monroe
County, Florida. The property is south of Long Beach Drive.
2. The property is located within the Florida Keys Area of
Critical State Concern. See Sections 380.05 and 380.0552,
Florida Statutes. Under these statutes, Monroe County adopted a
comprehensive plan and implemented it with land development
regulations which are consistent with the Principles for Guiding
Development found in Section 380.0552(7), Florida Statutes. The
Department of Community Affairs .._approved the County's
comprehensive plan in Rule Chapter 9J-14, Florida Administrative
Code, and the Administration Commisdion approved the
comprehensive plan in Chapter 28--29, Florida Administrative Code.
3. The County's comprehensive plan is implemented through
its land development regulations, codified as Chapter 9.5 of the
Monroe County Code. Monroe County is responsible for issuing
development orders for land development in unincorporated Monroe
3
County, including these development orders (building permits).
The Local Government Comprehensive Planning and Land Development
Act, Chapter 380, Florida Statutes, restricts the C our:ty from
permitting development which is inconsistent with the Monroe
County Comprehensive Land Use Plan, Sections 163.3'L61(2) and
163.3194(1), Florida Statutes. No person may undertake any
development within an area of Critical State Concern except in
conformity with Chapter 380; Section 380.05(16), Florida
Statutes.. After the County issued the three related permits, the
Holzingers engaged Pinewood Enterprises, Inc., as general
l contractor, for the construction o£ their single-family
residence. Those permits were rendered to the Department of
Community Affairs on July 21, 1992, and the Department issued its
notice of appeal of those permits on September 4, 1992. No party
disputes the timeliness of the appeal.
4. The Holzingers' lot is vegetated by mangroves,
transitional plant species, and beach berm plant species. The
site plan, and which was part of the Holzingers' application for
the permits, which Monroe County approved, includes the approval
of dredging of a portion of Lot 17 and the placement of fill on
site to provide driveway access to the single-family residence.
The site plan locates the single-family residence in an area of
Bay Cedar thicket. The mangroves are located along the north of
the lot along Long Beach Drive.
B. Facts Found Based on Evidence
Adduced at the Final Hearing
5. The Holzingers' lot is located at the southernmost area
of Big Pine Key, and is separated from the rest of the key by a
4
wetland to the north of the property. To its south is the
Atlantic Ocean. The lot. is approximately 100' x 230' and
contains approximately 22,750 square feet from property line to
property line.
6. On the lower keys land elevations only extend from sea
level to a maximum of approximately five or six feet above sea
level. The soil or substrate conditions on the lot are white
calcareous deposits which appear to the untrained eye to be sand.
It is not quartzite, but deposits from the breakdown of marine
grasses or marine algae which have the appearance of sand. There
is no caprock on the property.
B (1)Habitats Recognized in
the Monroe County Plan
7. The Monroe County Comprehensive Development Plan is
based upon the Data and Analysis found in volume 1 of the Plan.
According to that Data and Analysis, there are different types of
habitat found in the Keys. These include salt marsh, Salt marsh
and buttonwood association, mangrove community, tropical hardwood
hammock, and beach berm complex. The most significant one here
is beach berm complex; it includes:
"bare, 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 islcalcareous
material that is the -remains of marine
organism such as corals, algae and mollusks.
The berm may include forested costal ridges
and may be colonized by hammock vegetation."
Section 9.5-4(B-3), Monroe County Code (the
land development regulations).
In the Data and Analysis, the County records that on Long Beach
Key the most landward area of the berm is tropical hardwood
5
hammock. The low hammocks are upland hardwood forest communities
containing species such as blolly, buttonwoods, darling plums,
spanish stopper and wild dilly, all of which are found on the
vegitation survey of the lot done by a biologist for Mother
Nature's Enterprises, Linda Pierce, as part of the Holzinger
building permit application. See Section 9.5-4(L-10), Monroe
County Code, which defines low hammocks. Low hammocks include
berm hammock, and the beach berm association described in cho
County comprehensive plan includes berm hammocks (Tr. 184).
A (2). The Land Use Maps and their Designations
8. The existing conditions map which is part of the Monroe
County comprehensive plan designates the area of the Holzingers'
property as beach berm association. That map 'is drawn at the
sale of one inch equals 2,0-00 feet.
9. Similar aerial maps at a scale an order of magnitude
smaller (one inch equals 200 feet) also show the land as beach
berm with fringing mangroves. These aerial photographs have been
overlaid with the Comprehensive Plan's habitat designations for
use in the practical application of the land development
regulations by County employees.
10. Under the land use regulations found in the Monroe
County Code, the County Commission is required to follow the
r
existing conditions map it adopted, Section 9.5-227, Monroe
County Code. Under the first paragraph of Section 9.5-345 the
environmental design criteria applicable to development of a
Parcel of land depend upon the habitat designated for the parcel
on the existing conditions map (the map drawn at the larger scale
W.
of one inc:i equals 2,000 feet). Ground proofing of the habitat
on the lot gene by the Lower Keys' biologist, Diana Stephenson,
and by the Department of Community Affairs planner/biologist,
Kathleen Edgerton, show that the land is actually beach ber:r, from
the ocean to the mangroves, and there is a small area of
disturbed saltmarsh landward from the mangroves to the county
road which runs down the center of the key.
11. I am not persuaded by the testimony of the biologist
for the Holzingers, Mr. Smith, who believes' that there is a
separate tropical hardwood hammock habitat on the ,iolzingers'
lot. A full habitat analysis would have een required if there
were mixed hab on C� (Tz� °,�) and the Holzi;.gers
did t t on o �tAe) C unt� as part of their application.
ICe se thci�ifit- biol found no separate low hardwood
ha c'k c abita oA- t'he lot, she believed that no habitat
IV uatx was required in processing the xolzinger
applic
`cs ••n, and none was- done independently by the County.
�
12. Mr. Smith contended at final hearing that there are
several distinct habitats on the single lot. Moving south from
Long Beach Drive toward the ocean he first finds a disturbed
saltmarsh of approximately 4,000 square feet; then a mangrove
community of about 2,500 square feet; then a saltmarsh and
buttonwood association of about 2,500 square feet; next a
tropical hardwood hammock of moderate quality and finally,
closest to the ocean, beach berm complex. This analysis, which
designates a separate saltmarsh and buttonwood association
waterward of the mangrove community, and then a separate tropical
7
hardwood hammock waterward of the saltmarsh and buttonwood
association, fails to give significant weight to the fact that
low hammocks are typically- fouricl within beach berm complex..
While Mr. Smith testified to the square footages for each of the
five habitats, he only performed rough calculations for their
size, he was not working with, nor did he perform an actual
survey which would define the boundaries of the various habitats
he believes are present. He readily acknowledged his preliminary
habitat analysis was incomplete. Moreover, accepting For the
sake of argument that there is a mixed habitat on the lot under
the evidence adduced by the Holzingers, a complete habitat
evaluation index should have been performed by the Holzingers as
a necessary part of their application, since the County biologist
did not do one in the belief there was no need for one.
13. The essential problem with the view expressed by
Mr. Smith that there are five habitats on this 100-foot lot is
his convention that due to the very small changes in elevation
through the Keys, one must identify different habitats recognized
in the Monroe County comprehensive plan and land development
regulations by assessing the predominance ,of different types of
vegetation typical of a habitat. To Mr. Smith, if the vegitation
is of a type normally found in a tropical hardwood hammock, and
•
it predominates over the other vegitation, that area must be
classified as a tropical hardwood hammock. At that level of
generalization, the statement is no doubt true. Neither the land
development regulations or the County's Comprehensive plan
require, or even permit, a microanalysis of the vegitaticn for
lN_
the purpose of defining multiple habitats an a lot. Taking a
broad view, such as that embodied in the existing conditions map,
the predominate vegetative and soil conditions on the southern
part of the island where Lot 17 is located are consistent with
the categorization as beach berm association. The same is true
using the aerial maps can which the different habitat designaLions
from the land development regulations have been overlaid. What
Mr. Smith has done is to look for small areas within the 100 ' x
230' parcel to identify areas where tropical hardwood species may
be said to "predominate."
14. The obvious purpose of Mr. Smith's division of the lot
into small areas is to be able to characterize these uplands
species as "predominating." This is essential to justify
intensive use of the property. The comprehensive plan and the
land development regulations do not permit any use of areas
colonized by mangroves, which are wholly protected by a 100% open
space requirement. This means that 100% of the area colonized by
mangroves must be maintained in its natural condition and free
and open to the sky, Section 9.5-343, Monroe County Code. Open
space .ratio for saltmarsh and buttonwood associations is .95 but .
for moderate quality low hammocks is only .60. Beach berm
association is highly protected, with an open space requirement
of 90%. Only 10% of the land area waterward of the mangrove
habitat, therefore, can be covered with the footprint of the
single-family residence and any associated driveway or otter
access way because it is beach berm complex. Accepting the
mangrove line contained in the,vegitation assessment submitted by
r�
the HolzingeMs in their application done by Mother Nature's
Enterprises, and then using a "planimeter" to measure the area
from the mangrove line to the mean high water line on the lot,
there is 16,594 square feet of property. Given the 90% open
space requirement, a very small area of 1,659 square feet may be
covered with the footprint of the single-family home, including
its porch, eaves, and driveway. The footprint of the house, its
porch, and driveway shown on the site plan approved by the
County, "With the addition of a five --foot clearing zone around the
footprint of the house [because it is essentially impossible to
clear land only to the ,footprint of the completed buildi..!I�_.._ "
revea-Is that the County's permits would allow the clearing of
2,880 square feet. E4en without the five-foot construction zone
around the house, perch and driveway, the County permits allow
the clearing of 2,172 square feet.
15. it is very dif:icult to understand how the Monroe
County official in charge of the office which issues building
l� permits could have determined that the development proposed by
the Holzingers was permittable. That official did not testify.
The County biologist for the Lower Keys who did testify,
Ms. Stephenson, was adamant° that the project was never
? permittable under the Monroe County land development regulations.
The-*. Tly_ explanation__ by whiic`� the permit conceivably could hav
been granted would be t6 do something the land development
regulations do not permit: aggregate the square footage which
the code makes available for development- on the landward side of
the mangroves, in the area of disturbed saltmarsh between. the
10
road and the mangroves, and add the usable square footage for
that habitat area to the usable square footage on the waterward
side of the mangroves, in the beach berm association. But the
amount of each habitat which must remain as open space is
determined for each habitat type. They cannot be aggregated
across habitats, to give some total :usable number of square feet,
to be cleared anywhere on the property. That would ignore the
significance of the separate habitat designations. The 1,659
square feet available for development in the beach berm
association must be used only within that habitat, and square
footage available for development within the disturbed salt marsh
cannot be added to it.
C. Fill Issues
T d 16. The site plan approved by the County permits fill to be
r �4L' oed to construct a driveway on the property :through the mangrove
ao "
9a and the beach berm area. This is simply an error on the
part of the County, for no party disputes that fill is forbidden
in these areas. ' The performance standards in the land
development regulations do permit certain piers, docks, utility
pilings and walkways over mangrove areas, but no fill is
permitted. Section 9.5-345(m)(1), Monroe County Code (Tr. 139).
17. The Holzingers could receive a peMit to build a raised
bridge over the mangroves for, access to the beach berm
association portion of the lot, as has been done on a nearby lot
to the west of the Holzingers' lot. They cannot, however, fill
the mangroves to create the driveway shown on the site plan the
County approved. The building permit the County granted which
purports to allow fill in mangrove areas is inconsistent with the
County's Lawn land development regulations and cannot stand.
18. The next question is whether there is some alternate
means of access to the lot which. can be used instead of that
permitted. At the final hearing Mr. Smith stated that on a
recent visit to the Holzingers' propertyr he found an old road on
the east side of the property which is high land which could
serve as a location for a driveway or accessway to the interior
of the Holzingers' property. There is, however, actually no old a)40"
road anywhere on Lot 17. There was an old road on Lot 16, and a
bit of the spoil from that road may be found on Lot 17, but there
simply never has been a road on the Holzingers' lot which they
can use for a driveway. Fill will be required to locate any
driveway, .and that is -inconsistent with the County land
development regulations. The only thing the Holzingers can do to
overcome this problem would be to build a bridge over the
mangrove area and completely avoid the use of any fill.
Summary of Findings
19. The scarified or a disturbed saltmarsh area from the
county road to the mangrove area is too small to be useful. The
Holzingers do not plan to build in that area. Whatever portion
of that area which is not required to be open space cannot be
"banked" to allow additional clearing in the. beach berm
association on the waterward side of the mangroves. For all
practical purposes, that disturbed saltmarsh area adds nothing to
the buildable or clearable area on Lot 17. The mangrove area has
a 100% open space requirement. Mangroves are a highly protective
12
habitat, which contribute nothing to the buildable area on Lot
17. The remaining portion of the Lot 17 waterward from the
mangrove area to the mean high water line is too small to permit
the construction and erection of the house and driveway permitted
by the development orders (building permits) issued by Monroe
County. The buildable area in the beach berm association is no
more than a total of 1,660 square feet for the house, its porch,
the driveway. The County has issued a permit to use 2,880 square
feet of that habitat (including an allowance 'for a construction
zone), or at least 2,172 square feet, assuming the location of
the house', porch, and an eight -Loot wide driveway and no
construction clearing around the footprint around the
house/porch. This fails to meet the 90% open space requirement
found in the Monroe County,Code. The building permits issued by
Monroe County to the Holzingers are therefore invalid. To obtain
valid permits, the Hol,zingers must substantially reduce the
footprint of the house, including an allowance for a construction
clearing zone. A house that small may be undesirable, but it
could be permitted. What the County has attempted to permit,
however, is invalid under its own regulations.
CONCLUSIONS OF LAW
20. The Division of Administrat*ive Hearings has
Jurisdiction of this proceeding pursuant to Section 120.57(1),
Florida Statutes.
21 No person may undertake any development within an Area
of Critical State Concern which fails to conform to Chapter 380,
Florida Statutes; Section 380.05(16), F-lo.'ida Statutes.
13
22. The Local Government Comprehensive Planning and Land
Development Regulation Act requires that Monore County permit
only development which is consistent with the Monore County
comprehensive land use plan. Sections 163.3161(2) and
613.3194(1), Florida Statutes.
23. As the state land planning agency, the Department of
Community Affairs must review each development permit issued in
the Florida Keys Area of Critical Concern for consistency with
the Principles Guiding Development adopted by the Legislature for
that area. Sections 380.031(18), 380.032, 380-07(2), and
380.0552(7), Florida Statutes.
24. The habitat on the Holzinger lot is primarily beach
berm con(plex, with a limited area of disturbed salt marsh along
Long Beach Drive and an area of mangrove wetlands. The beach
berm complex is shown on the County aerial photographs, the
existing conditions maps the County adopted, and confirmed by the
site visits of the County biologist. This conclusion is also
supported by the site visits and analyses of a private biologist
(Linda Pierce, doing business as Mother Nature Enterprises,
Inc.),. submitted with the Holzinger's application, and the
Department's biologist.
25. The required open space ratio for development in this
r
type of habitat is 90%.
26. Section 9.5-343, Monroe County Code, requires
compliance with open space rations. "too land shall be developed"
unless it meets the open space requirements. Id. The saction
also provides that "nor shall open spac_e�be cleared or otherwise
14
disturbed and the areas "shall be maintained in their
natural condition." Few exceptions are made to these madates,
none of which apply here.
27. It is easonable to include a onstruction clear zone
in the calculation of buildable area for purposes of determining
the amount of open space, maintained by a proposed development,
since it is virtually impossible to construct a home on virgin
land without disturbing an area outside the footprint of the
28. Despite the permit Conditions pertaining to Bay Cedar
transplanting, the permits granted to not comply with the open
space ratio that the land development regulations set for the
habitat on the Holzinger site.
29. Section 9.5--343(1-j(1), (2), Monroe County Code, states:
"no fill . . [is to be] deposited on a beach berm."
30. Section 9.5-343(m)(1), Monroe County Code, prohibits
fill in mangroves, and requires pilings or walkways.
31. Despite the permit conditions, the permit approved and
issued by the County allows fill in both the beach berm complex
and the mangroves, in violation of the Coastal Zone and
Conservation Element, Volume II of the Monroe County
Comprehensive Plan; Volume 2, the Data and Analysis, of the
comprehensive plan, and the provisions of the Monroe County Code
cited above.
RECOZ,=NDATI ON
It is RECOMMENDED that development approval for the subject
lot be denied, unless the applicant presents, and the County and
15
the Department approve, a revised permit and site plan which
demonstrates compliance with the mandatory open space
requirements for the beach berm and mangrove habitats, and which
eliminates the placement of fill in the beach berm complex and
the mangrove wetlands on site.
DONE AND ENTERED in Tallahassee, Leon County, Florida, this
9th day of July 1993.
W LLIAM R. DORSEY, JR.
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 = day of July 1993.
APPENDI%
The Findings of Fact proposed by the Department have been
generally adopted, although the long quotation from volume I and
II of the County Comprehensive Plan are not essential or
necessary. See -Proposed finding 10.
� The Respondents submitted no proposed Findings of Fact.
16
COPIES FURNISHED:
Stephanie M. Callahan
Assistant General Counsel
Department of Community Affairs
2740 Centerview Drive
Tallahassee, Florida 32399-2100
Theodore W. Herzog, Esquire
209 Duval Street
Key West, Florida 33040
Linda Loomis Shelley, Secretary
Department of Community Affairs
2740 Centerview Drive
Tallahassee, Florida 32399--2100
G. Steven Pfeiffer, General Counsel
Department of Community Affairs
2740 Centerview Drive
Tallahassee, Florida 32399-2100
David K. Coburn, Secretary
Florida Land & Water Adjudicatory Commission
Executive Office of the Governor
311 Carlton Building
Tallahassee, Florida 32301-
oll f NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
17 All parties have the right to submit written exceptions tc this
recommended order. A11 agencies allow each party at least 10
050 . days in which to submit written exceptions. Some agencies allow
a larger period within which to submit wri
should contact the tten exceptions. you
a enc that will issue the final
case concernin a order in this
enc rules n the deadline for f'
exceptions to this recommended ord r.
lin
'.� zQcommended order should b^ a fled the agencyethaenwill issue
V the final, order in this case.
�mG �
17