88-000908GM Department Of Community Affairs vs. Monroe County Board Of County Commissioners Status: Closed Recommended Order on Tuesday, May 9, 1989.

Summary: County's construction materially altered use and appearance of road and therefore not maintenance-act thus contrary to land use plan for lack of permit.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF COMMUNITY AFFAIRS, )

)

Petitioner, )

)

vs. ) CASE NO. 88-908GM

)

BOARD OF COUNTY COMMISSIONERS )

OF MONROE COUNTY, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly

designated Hearing Officer, William J. Kendrick, held a formal hearing in the

above-styled case on March 28 and 29, 1989, in Key West, Florida.

APPEARANCES

For Petitioner: John Carlson, Esquire

L. Kathryn Funchess

Department of Community Affairs

2740 Centerview Drive

Tallahassee, Florida 32399-2100

For Respondent: Randy Ludacer, Esquire

Lucien Proby, Esquire

Robert Wolfe, Esquire

Monroe County Attorney

310 Fleming Street

Key West, Florida 33040

PRELIMINARY STATEMENT

At issue in this proceeding is whether Monroe County's construction of a

road on Big Pine Key, Monroe County, Florida, is contrary to the provisions of

Chapter 380, Florida Statutes.

At hearing, petitioner called as witnesses: William Becker; Kurtis Kruer;

Thomas Wilmers, accepted as an expert in wildlife management and wildlife

biology, specializing in the Key Deer; George Garrett; Deborah Holle, accepted

as an expert in wildlife management and wildlife biology, specializing in the

Key Deer; Maria Abadal, accepted as an expert planner, with emphasis on the

administration of the Florida Area of Critical State Concern program; and

William Tipton, accepted as an expert in transportation planning and

transportation engineering. Petitioner's exhibits 1-7, 8a-8i, 9-12, 13a-13c, 14

and 15 were received into evidence. Respondent called as witnesses: Robert

Harris, accepted as an expert in land surveying and road maintenance; Eugene

Lytton, Sr.; Charles Pierce; John Chaffee; Andrew Earl Hanson; David Giggs; and

William Becker. Respondent's exhibits 1-8 were received into evidence.

During the course of these proceedings, petitioner requested that official

recognition be taken of certain documents. These requests, filed August 25,

1988, August 17, 1988, August 10, 1988, January 31, 1989, February 2, 1989, and

March 24, 1989, and marked Hearing Officer (H.O.) exhibits 1, 2, 3, 4, 5 and 6

respectively, were granted.

The transcript of hearing was filed April 14, 1989, and the parties were

granted leave until April 24, 1989, to file proposed findings of fact. The

parties' proposed findings have been addressed in the appendix to this

recommended order.

FINDINGS OF FACT

Background

1. Petitioner, Department of Community Affairs (Department), is the state

land planning agency charged with the responsibility to administer and enforce

the provisions of Chapter 380, Florida Statutes, and the rules promulgated

thereunder.

2. Respondent, Board of County Commissioners of Monroe County (Monroe

County), is a local government within the Florida Keys Area of Critical State

Concern designated by Section 380.0552, Florida Statutes, and is responsible for

implementation of the Monroe County Comprehensive Plan and Land Development

Regulations, as approved and adopted in Chapters 9J-14 and 28-20, Florida

Administrative Code.

3. Between January 6, 1988, and January 12, 1988, Monroe County cleared,

graded and filled a .6 mile stretch of road between Key Deer Boulevard and Ixora

Road on Big Pine Key, Monroe County, Florida. As sited, the project was within

the Florida Keys Area of Critical State Concern and the National Key Deer

Wildlife Refuge, and altered the character of the road from a private access

road, which provided a right of ingress and egress for the landowners within

Pine Key Acres Section 1 (Pine Key Acres), to a public collector road, which was

capable of carrying traffic from local roads outside Pine Key Acres to major

thoroughfares.

4. On January 29, 1988, the Department issued a notice of violation to

Monroe County which, among other things, directed Monroe County to cease work on

the road project and to conform its activities to the land development

regulations approved and adopted in Chapters 9J-14 and 28-20, Florida

Administrative Code. Monroe County filed a timely request for a formal

administrative hearing pursuant to Section 120.57(1), Florida Statutes, and

contended that the road work constituted routine maintenance or improvement of

an existing road and, therefore, did not constitute development as defined by

Chapter 380, Florida Statutes. Thereafter, the matter was referred to the

Division of Administrative Hearings to conduct a formal hearing.

The Project at Issue

5. The road work at issue in this case was constructed along the easterly

.6 mile portion of the proposed right-of-way for the Cross Big Pine Key Arterial

Access Road (Arterial Road). That Arterial Road would run east and west

approximately 1.2 miles, through a corridor located approximately one-half mile

north of and parallel to US 1, and would provide the developed residential areas

of Big Pine Key, located at the extreme east and west ends of the proposed road,

with an alternate to travel on US 1 to reach the central shopping area located

immediately north of US 1 on Key Deer Boulevard.

6. As proposed, the right-of-way follows a corridor along a 50-foot wide

private easement, within which existed poorly maintained private access roads.

The property north and south of these dirt roads, with the exception of a prison

located at the southwest corner of the right-of-way and Key Deer Boulevard, is

sparsely developed with single family residences, is natural habitat for the Key

Deer, and is located immediately south of the main reservation of the National

Key Deer Wildlife Refuge.

7. The Arterial Road was conceived in 1985, following a six-month study by

a Tripartisan Road Committee formed at the suggestion of County Commissioner Ed

Swift to study alternate routes to move traffic across the island that would

avoid the congestion experienced on US 1. The committee, composed of three

members each from the Lower Keys Chamber of Commerce, Big Pine Civic

Association, and Big Pine Concerned Citizens, ultimately recommended the

proposed route to Monroe County in July 1985. This recommendation was made

without benefit of a professional traffic study or environmental study to assess

the need for or impact of the road.

8. Monroe County approved the recommended route in July 1985, and

authorized the committee to contact the landowners who held title to the land

underlying the proposed right-of-way and to see if they could be persuaded to

deed such property to the county for construction of the road. As previously

noted, the proposed right-of-way followed a 50-foot wide private easement, and

the landowners to the north and south of the proposed right-of-way owned,

respectively, 25 feet of such lands, subject to the private access easement for

adjacent land owners.

9. In 1986, as the committee was endeavoring to acquire title to the

right-of-way on behalf of Monroe County, Monroe County was developing its

comprehensive plan and land development regulations for submittal to the

Department as required by Chapter 380, Florida Statutes. Pertinent to this

case, the plan and regulations contained no reference to the Arterial Road and

permitted only one single family residence per gross acre in suburban

residential areas, and excluded public rights-of-way from that calculation.

Accordingly, since the lots along the proposed right-of-way were largely one-

acre lots, including the 25 foot easement, the lot owners were at peril of

rendering their lots unbuildable if they deeded such portions of their lands to

the county. To alleviate this impediment, Monroe County, at some time prior to

February 23, 1986, "assured" the committee that credit for the square footage

deeded to the county would be included in calculating the size of the lot for

building purposes.

10. On February 28, 1986, Monroe County adopted its comprehensive plan and

land development regulations (Land Use Plan), and forwarded them to the

Department for review. On September 15, 1986, the County's Land Use Plan was

approved by the Administrative Commission by rule and became effective. The

Land Use Plan adopted by Monroe County and approved by the Administration

Commission contained no reference or description of the proposed Arterial Road.

It further permitted only one single family residence per gross acre in suburban

residential areas, and still excluded public right-of-way from that calculation.

11. On June 6, 1986, while its Land Use Plan was pending Department and

Commission approval, Monroe County, in apparent recognition of the adverse

impact its Land Use Plan would have on lot owners along the proposed road,

adopted Ordinance No. 019-1986. Pertinent to this case, the ordinance provided:

Section 1. Where a dedication is made for a

county road and accepted by the county, the

property so dedicated shall be taken into

account by the proper county authorities and

credited to the dedicating property owner

for the purpose of computing density and/or

area when and if the property owner applies

for an improvement permit for the property.

This ordinance was never submitted to the Department for approval, and was not a

part of the Land Use Plan approved by the Administration Commission on September

15, 1986.

12. Despite the fact that the Arterial Road was not included in the

transportation element or any other element of its comprehensive plan, Monroe

County engaged the services of Post, Buckley, Schuh & Jernigan to prepare the

proposed right-of-way map for the proposed road. This map was prepared and

filed with the Clerk of the Circuit Court, Monroe County, on March 26, 1987. On

February 2, 1988, Monroe County adopted Resolution No. 059-1988 to "address" its

failure to include the Arterial Road in its Land Use Plan. Pertinent to this

case, that resolution provided:

WHEREAS, the Board of County

Commissioners of Monroe County adopted a

Comprehensive Plan and Land Development

Regulations on February 28, 1986, and said

Plan and Regulations became effective on

September 15, 1986, and

WHEREAS, Section 13-101(E) of the Land

Development Regulations provides that the

Board of County Commissioners may correct

typographical and drafting errors in the

Regulations at any regular meeting without

posted notice or public hearing provided

that notice of such corrections is

transmitted to the Florida Department of

Community Affairs within thirty days of the

adoption of such corrections: now,

therefore,

BE IT RESOLVED BY THE BOARD OF COUNTY

COMMISSIONERS OF MONROE COUNTY, FLORIDA,

that:

Section 1. The proposed "Cross Big Pine

Key Arterial Access Road" is consistent with

the transportation element of the Monroe

County Comprehensive Master Land Use Plan,

and by prior vote of the Board of County

Commissioners of Monroe County, Florida, was

identified as a proposed road to be

incorporated in the Monroe County

Comprehensive Master Land Use Plan as a

secondary collector road.

Section 2. This Resolution correcting

scrivener's errors and omissions described

in section one shall be construed nunc pro

tunc to February 28, 1986.

Section 3. That the Clerk of the Board

is hereby directed to provide notice of the

adoption of this Resolution to the

Department of Community Affairs within

thirty days of adoption and the correct

(sic) be appropriately noted in the

permanent records of Monroe County relating

to the Land Use Plan and Maps.

This resolution was never submitted to the Department, and consequently never

approved by it.

13. By January 6, 1988, Monroe County had received quit claim deeds to the

land underlying the 50-foot right-of-way from all the land owners along that

portion of the proposed route lying east of Key Deer Boulevard to the

intersection of Ixora and Hibiscus Roads, except the Trustees of the internal

Improvement Trust Fund (Trustees) which owned the land underlying the area

immediately prior to and at the intersection of the proposed road and Key Deer

Boulevard. 1/ No proof was offered at hearing that the County had received any

deeds for the right-of-way of the proposed road from its intersection with Key

Deer Boulevard west to its terminus at Ships Way, and no construction has been

undertaken along that .6 mile stretch of roadway.

14. The right-of-way acquired by Monroe County had been in existence since

it was created in 1973 as a private easement and dedicated to the landowners in

Pine Key Acres for use as a road for ingress and egress. 2/ The road the

developer constructed at that time was of limited stature, and consisted of a

30-foot wide simple fill road through the pine woods that characterize the area.

Over the years, the landowners did not maintain the road, and it sank into a

severe state of disrepair. Consequently, when the road was acquired by Monroe

County it was severely potholed and rutted, partly overgrown with vegetation,

and of insufficient width to allow the passage of cars in some areas. At the

extreme easterly end of the road, where it now connects with the intersection of

Ixora and Hibiscus Roads in the Whispering Pines Subdivision, a dump existed

which contained tree stumps from the original creation of the road, and

discarded refrigerators, air conditioners, cars and construction debris. This

debris severely restricted the access to the road at its eastern terminus, and

few ventured through it from the developed easterly part of Big Pine Key.

15. Because of the limited access to the road at its eastern terminus, its

severe state of disrepair, and the few residences that existed along its length,

the easement running from Key Deer Boulevard to Wilder Road and from Wilder Road

to Ixora Road received little traffic. What traffic it did receive was, because

of the road's character, required to travel at an exceedingly limited speed.

16. On January 6, 1988, Monroe County commenced construction on the

subject road between Key Deer Boulevard and Ixora Road. While such construction

did not conform to the design or construction standards for the Arterial Road

evidenced by the proposed right-of-way map filed by the County, the compelling

proof demonstrates that it does conform to and is in furtherance of the County's

announced desire to construct an alternative access road at the subject

location. Accordingly, while not the Arterial Road evidenced by the proposed

right-of-way map filed by the County, the subject road is in furtherance of the

County's plan to create such a road, albeit of a different design and

construction standard than evidenced by the proposed right-of-way map. 3/

17. Between January 6 and 12, 1988, Monroe County's surveyor staked the

centerline of the road right-of-way, and within 15 feet on either side of the

centerline the County's work crews laid down a new bed of fill from Key Deer

Boulevard to Ixora Road, rolled it, and would have applied a paving material but

for the Department's cease and desist order. In the process, the County cleared

vegetation from the right-of-way. At the eastern terminus of the road, the

County also removed the debris from the dump area, and connected the road to the

residentially developed areas of eastern Big Pine Key. In so doing, the county

"straightened out the edges of the road" (created a road where it no longer

existed because of lack of maintenance), and created a public access road from

Ixora Road to Key Deer Boulevard capable of handling traffic at significant

speeds. Notably, a portion of that roadway was created over the lands of the

Trustees, to which Monroe County held no title and, overall, upon lands

dedicated as a private access way.

18. Monroe County undertook the aforementioned work without benefit of a

building permit or certificate of compliance, and, accordingly, never rendered

such a permit or certificate to the Department. 4/

Big Pine Key Area of Critical County Concern

19. Section 11-109, Monroe County Land Development Regulations,

establishes the Big Pine Key Area of Critical County Concern (Area of Critical

Concern), and provides:

B. Purpose. The purpose of the Big Pine Key

Area of Critical County Concern is to

establish a focal point planning effort

directed at reconciling the conflict between

reasonable investment backed expectations

and the habitat needs of the Florida Key

Deer which is listed as endangered under the

federal Endangered Species Act.

C. Focal Point Planning Program.

1. Monroe County shall initiate a focal

point planning program for the Big Pine Key

Area of Critical County Concern that

considers the following:

(a) The reasonable investment backed

expectations of the owners of land within

the Big Pine Key Area of Critical Concern;

(b) The habitat needs of the Florida Key

Deer;

(c) The conflicts between human

habitation and the survival of the Florida

Key Deer;

(d) The role and importance of freshwater

wetlands in the survival of the Florida Key

Deer;

(e) Management approaches to reconciling

the conflict between development and the

survival of the Florida Key Deer; and

(f) Specific implementation programs for

the Big Pine Key Area of Critical County

Concern.

D. Interim Regulations. Notwithstanding any

other provisions of these land development

regulations, no development shall be carried

out on the Big Pine Key Area of Critical

County Concern prior to the completion of

the focal point planning program required by

Section C of this designation and the

adoption of amendments to the Monroe County

Comprehensive Plan and these land

development regulations except in accordance

with the following:

1. No development shall be carried out in

the Big Pine Key Area of Critical County

Concern except for single family detached

dwellings on lots in the Improved

Subdivision District or on lots having an

area of one (1) acre of more.

To date, the focal point planning program has not been completed by Monroe

County, and that portion of the subject road running between Key Deer Boulevard

and Wilder Road is within the Area of Critical Concern.

20. The Florida Key Deer is a unique species of deer listed as endangered

by both the state and federal government. The official estimate of the total

population of these deer is 250-300, most of which live on Big Pine Key.

21. The federal government has designated most of Big Pine Key as the

National Key Deer Refuge, including the area through which the subject road

runs. The area surrounding this road is prime habitat for the Key Deer because

of the large number of endemic plants that are necessary elements of the Key

Deer's diet.

22. The primary threat to the continued existence of the Key Deer is the

destruction of habitat and road kills (the killing of the animal by a motor

vehicle). Construction of the subject road will adversely impact the Key Deer's

chance of survival since it bisects the deer's natural foraging area, and will

permit high speed travel and increased traffic across a road that previously

accommodated limited local traffic at moderate speeds.

Maintenance or development?

23. Pertinent to this case, Sections 6-101 and 6-102, Monroe County Land

Development Regulations (MCLDR) provide that no "development" may occur within

the county except pursuant to a building permit and upon the issuance of a

certificate of compliance with existing development regulations. "Developer"

and "development" are defined by Section 3.101, MCLDR, as follows:

D-4 DEVELOPER means any person, including a

governmental agency, undertaking any

development as defined in this Plan.

D-5 DEVELOPMENT means the carrying out of

any building activity, the making of any

material change in the use or appearance of

any structure or land or water....

* * *

(c) For the purpose of these regulations

the following operations or uses shall not

be taken to involve "development":

* * *

(4) A change in the ownership or form of

ownership of any parcel....

* * *

(6) ... the maintenance of public rights

of way and private accessways existing on

the effective date of these Land Development

Regulations or approved private rights of

way.

24. At hearing, Monroe County contended that the work it undertook on the

subject road was not "development", as defined by the MCLDR because it

constituted "maintenance" of a private accessway existent when its Land Use

Plans became effective. Based on the findings which follow, Monroe County's

contention is rejected.

25. The 50 strips of land that Monroe County took title to was burdened

with "an easement for the purpose of use as a road for ingress and egress into

and from Pine Key Acres Section 1, Page 1," and dedicated to all the lot owners

in Pine Key Acres. The simple fill road established in 1973, and still

existent, through in disrepair, when the County's Land Use Plan became

effective, was a private accessway designed and maintained, if at all, to

provide access to Pine Key Acres property, of relatively low average traffic

volume, of limited continuity and not for through traffic. As such, although a

private accessway, the road meets the definition of "local road," as defined by

16-21(5), Monroe County Code.

26. By the work already performed by the County on the subject road, it

has changed the character and function of the roadway from a local road,

primarily used by residents who lived along its length, to a "collector road."

As such, the road now gathers an increased traffic volume from local roads

within the eastern subdivisions of Big Pine Key, and moves it at increased

speeds to arterial roads, which are, like Key Deer Boulevard and Wilder Road,

main traffic arteries carrying relatively heavy volumes of traffic for long

distances. Had the County not been halted from paving the road, the change in

character and function would have been intensified.

27. Because the County's construction activities were not designed to

maintain, and did not maintain, the character and function of the road as a

private accessway, they cannot be considered as "maintenance" of a private

accessway, but were "development" as that term is defined by the County's Land

Use

Plans. 5/

CONCLUSIONS OF LAW

28. The Division of Administrative Hearings has jurisdiction over the

parties to, and the subject matter of, these proceedings

29. Pertinent to this case, Section 380.11(2), Florida Statutes, provides:

(a) If the state land planning agency

[Department] has reason to believe a

violation of this part or any rule has

occurred or is about to occur, it may

institute an administrative proceeding

pursuant to this section to prevent, abate,

or control the conditions or activity

creating the violation.

(c) The state land planning agency

[Department] may institute an administrative

proceeding against any developer or

responsible party pertaining to any area of

critical state concern designated in

s. 380.05, ...or 380.0552:

1. To enjoin development activity if

the damage or injury is caused by the

development activity or by a violation of

s. 380.05.. .380.0552, a rule of any

governmental agency, or a development order.

* * *

3. To require the governmental

agency to properly administer critical area

regulations.

30. The activities which are the subject of this proceeding took place

within the Florida Keys Area of Critical State Concern. Accordingly, the

Department was authorized to institute these proceedings to prevent, abate, or

control the condition or activity creating a violation of Chapter 380, Florida

Statutes, or a rule of any governmental agency.

31. Consistent with the provisions of sections 380.05 and 380.0552, the

Department adopted Rules 9J-14.003 and 9J-14.004, Florida Administrative Code,

on September 15, 1986, approving portions of the Monroe County comprehensive

plan and land development regulations as consistent with the Principles for

Guiding Development. Also, on September 15, 1986, the Administration Commission

adopted Chapter 28-20, Florida Administrative Code, which established by rule

the comprehensive plan and land development regulations of Monroe County.

Included within the rules approved and adopted were the land development

regulations heretofore discussed in the findings of fact.

32. Pertinent to this case, the Monroe County comprehensive plan and land

development regulations (Land Use Plan) which have been adopted by rule provide

that "no development shall occur except pursuant to a building permit." The

term "development" is defined by the Land Use Plan to mean:

... the carrying out of any building

activity, the making of any material change

in the use or appearance of any structure or

land.... (Emphasis added)

The term "development" does not, however, include:

... the maintenance of public rights of way

and private accessways existing on the

effective date of these Land Development

Regulations or approved private rights of

way. (Emphasis added)

33. For the reasons expressed in the findings of fact, Monroe County's

construction of the road from Key Deer Boulevard to Ixora Road without benefit

of a building permit and certificate of compliance was contrary to the

provisions of its Land Use Plan. Succinctly, since construction materially

altered the use and appearance of the subject road (land) and cannot, for such

reason, be considered maintenance, Monroe County violated its Land Use Plan by

having failed to apply for and receive a building permit and certificate of

compliance, and to have rendered such documents to the Department.

34. Also pertinent to this case, the Monroe County Land Use Plan prohibits

development, except for single family residences, within the Big Pine Key Area

of Critical County Concern until the focal point planning program is completed.

Since that program is not completed, Monroe County also violated this portion of

the Land Use Plan by constructing that portion of the subject road that extends

from Key Deer Boulevard to Wilder Road.

35. Monroe County's Ordinance No. 19-1986, which attempted to amend the

allocation of use densities provided in its Land Use Plan by according credit

for lands dedicated to the county for right-of-way purposes, was never rendered

to the Department or approved by the Administration Commission. Under such

circumstances, such ordinance is not a valid land development regulation of

Monroe County. Rule 28-20.019(1), Florida Administrative Code.

36. Monroe County's Resolution No. 056-1988, which purported to amend,

nunc pro tunc to February 28, 1986, its comprehensive plan to include the

proposed "Cross Big Pine Key Arterial Access Road" on the ground that its

omission from such plan arose as a consequence of a typographical or drafting

error is also ineffective. To permit amendment under such provision of the Land

Use Plan presupposes that the parties (Monroe County, the Department, and the

Administration Commission) had previously considered and approved the inclusion

of the "Big Pine Key Arterial Access Road" within the plan, but through

oversight, its inclusion was omitted. See e.g. 9 Fla. Jur. 2d, Cancellation,

Reformation, and Recession of instruments, Section 70, et seq. Here, there was

no proof that the Department or Administration Commission had ever considered or

approved such road in the plan and, therefore, the County's attempt to amend the

plan under such provisions was ineffective, especially since such resolution was

never even rendered to the Department. Since the omission of such road was not

shown to be a clerical error, it could only be included within the County's Land

Use Plan by following the plan's provisions for amendment, which include public

notice and hearing. Such procedures having not been followed, resolution No.

059-1988 is, likewise, ineffective on that basis.

37. Notably, Monroe County concedes that ordinance no. 19-1986 was never

rendered to the Department, and that until it elects to render it to the

Department, which it has not yet done, the ordinance can never be an effective

part of its Land Use Plan. Additionally, Monroe County concedes that resolution

059-1988 was not considered with the required public notice and hearing and was

not rendered to the Department, and that until such events occur, which they

have not as yet, that such resolution can never be an effective part of its Land

Use Plan.

38. In addition to contending that the construction it undertook on the

subject road did not constitute development under Monroe County's Land Use Plan,

Monroe County also contended that the Department had no jurisdiction to maintain

this action because the subject construction did not constitute development as

defined by Chapter 380, Florida Statutes. Pertinent to this case, section

380.04 provides:

(1) The term "development" means ... the

making of any material change in the use or

appearance of any structure or land....

* * *

(3) The following operations or uses

shall not be taken for the purpose of this

chapter to involve "development" as defined

in this section.

(a) Work by a highway or road

agency... for the maintenance or improvement

of a road ... if the work is carried out on

land within the boundaries of the right-of-

way.

39. It is Monroe County's position that the work it undertook constituted

"maintenance or improvement of a road, which is exempt from the definition of

"development" under Chapter 380, and, therefore, the Department is without

jurisdiction in this case. Monroe County's argument is unpersuasive for two

reasons. First, the Department's jurisdiction under section 380.11(2) is not

limited to development activity as defined in chapter 380. Rather, chapter 380

also reposes in the Department the authority to prevent, abate or control any

activity that is contrary to the Land Use Plans of a governmental agency that

have been adopted as a rule, and in areas of critical state concern to require

the governmental agency to properly administer critical area regulations.

Second, Monroe County's construction of the subject road was "development" as

that term is defined by chapter 380.

40. Section 380.04(1), Florida Statutes, defines "development" as "the

making of any material change in the use or appearance of land [a road]."

Section 380.04(3)(a) excepts from the term "development" work by a road agency

for the "maintenance or improvement" of a road. Reading the provisions of

section 380.04 in pari materia it is concluded that the word "improvement," a

word of generality, was not intended to be applied in its broadest sense but,

rather, to take its meaning from the more restrictive word "maintenance."

"Maintenance" is defined as "the work of keeping something in proper condition,"

while "improvement" is "the act or procedure of improving," "a change or

addition that improves." To "improve" is to "advance to a better state or

quality; make better." The American Heritage Dictionary, New College Edition,

1979. Under the doctrine of noscitur a sociis, the general and specific words

are associated with and take color from each other, restricting general words to

a sense analogues to the less general word. Dunham v. State, 192 So.324 (Fla.

1939), and State v. Thompson, 101 So.2d 381 (Fla. 1958). Applying such rules of

statutory construction to the instant case compels the conclusion that the

construction activity in this case was "development," as defined by chapter 380,

because it resulted in a material change in the use and appearance of land, and

that such construction was not "maintenance or improvement," as defined by

chapter 380, because it resulted in a material change in the character and

function of the subject road.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that a final order be entered requiring the following

corrective actions:

1. Monroe County cease any and all construction on the subject road and

refrain from commencing any further construction to create an arterial access

road on Big Pine Key until it has complied with the provisions of its Land Use

Plan and Chapter 380, Florida Statutes.

2. That until such time as Monroe County has complied with its Land Use

Plans and Chapter 380, Florida Statutes, that it erect such barriers, signs or

other impediments, or take such other action as may be necessary, to limit the

volume and speed of traffic on the road it has developed to those conditions

which existed prior to its development.

3. Monroe County carry out the Big Pine Key focal point planning program

as required by Section 11-109, MCLDR, and strictly adhere to and enforce section

11-109D, MCLDR, which prohibits development in the area of Critical County

Concern, except for single family detached dwellings, until its land use

regulations are amended in accordance with Chapter 380, Florida Statutes.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 9th day of May

1989.

___________________________________

WILLIAM J. KENDRICK

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 9th day of May, 1989.

ENDNOTES

1/ All of the quit claim deeds were recorded by Monroe County with the clerk of

its circuit court on January 21, 1988, with the exception of the deed received

for the southerly twenty-five feet of tract BC. That deed was not recorded

because it was not witnessed as required by law.

2/ Notably, the land acquired by Monroe County was impressed with a private

easement for the benefit of all lot owners within Pine Key Acres, and not just

those whose land abutted that right-of-way. The deeds Monroe County received

were only from the owners along the right-of-way. Those deeds provided that the

"property shall be used as a public right-of-way for a roadway." No proof was

offered that the remaining lot owners in Pine Key Acres had agreed to the change

of their private access way to a public right-of-way, or had otherwise

relinquished their interest in the easement. Further, before its acquisition of

title, Monroe County had never assumed any responsibility for or performed any

work within the right-of-way.

3/ The proposed right-of-way map was prepared by the County in an effort to

secure funding participation from the Florida Department of Transportation

(FDOT). To garner FDOT's participation, 20 percent of construction cost, the

road, as evidenced by the map, had to comply with FDOT standards. As yet, the

County has not complied with all conditions necessary to receive FDOT support.

What those conditions are or when, if ever, they will be satisfied does not

appear of record.

At hearing, Monroe County contended that it was not building a cross Big

Pine Key arterial access road because the work undertaken did not conform to the

proposed right-of-way map, and that the only reason it did the work it did was

because it was concerned about safety and liability problems now that it owned

the right-of-way. The compelling proof demonstrates, however, that while the

work does not comport with FDOT standards for its participation, it tracks the

same route previously proposed and has, at least for the .6 miles constructed,

created an arterial access road for the developed areas lying east of Key Deer

Boulevard. Thus, while not the road proposed by the right-of-way map, the

County has accomplished its goal of creating such alternative access. That was

the compelling force for the work that was done, and not any concern for safety

or liability. Had liability or safety been the sole issue, there would have

been no reason to change the character of the road or to open the road to the

residential developments to the east. Accordingly, while liability may have

been considered, the compelling force was to create an access corridor. (See

e.g. page 2 of respondent's exhibit 6).

4/ The County did issue to itself a permit to perform public works construction

in the right-of-way. However, for the reasons discussed infra, such permit did

not comply with Monroe County's Land Use Plan or Chapter 380, Florida Statutes,

because the subject work constituted development and not-maintenance.

5/ At hearing, Monroe County presented testimony that the type of work

performed on the roadway (filling of potholes, grading, laying fill, rolling and

paving) was similar to routine maintenance work it performed on county roads

throughout Monroe County. While such type work may constitute maintenance in

one situation, it is not persuasive proof that simply because that type work was

done here it was "maintenance" as defined by the Land Use Plan. To reach that

issue, one must compare the character and function of the road before and after

the work. If character and function remain the same after improvement, then

maintenance has occurred. If character and function are significantly altered,

then such work was not maintenance but development.

APPENDIX

The Department's proposed findings of fact are addressed as follows:

1. Addressed in paragraph 1.

2. Addressed in paragraph 2.

3. Addressed in paragraph 3.

4. & 5. Addressed in paragraph 18.

6. Addressed in paragraph 14.

7-9. Addressed in paragraph 7.

10. Addressed in paragraph 8.

11., 14. & 15. Addressed in paragraphs 9 and 11.

12. & 13. Addressed in paragraphs 13 and 17, and footnote 2.

16. Addressed in paragraph 10.

17. & 18. Addressed in paragraph 12.

19.-23. Addressed in paragraphs 19-22.

24.-28. Addressed in paragraphs 23-27.

Monroe County's proposed findings of fact are addressed as follows:

2. Addressed in paragraph 3.

3. & 4. Addressed in paragraph 14.

5. Addressed in paragraphs 13 and 14.

6. Addressed in paragraph 16 and footnote 3.

7. Addressed in paragraph 17.

8. Addressed in paragraph 7.

9. & 10. Addressed in paragraphs 12 and 16.

11. Addressed in paragraph 11.

12. & 13. Addressed in paragraph 12.

COPIES FURNISHED:

John Carlson, Esquire

L. Kathryn Funchess

Department of Community Affairs

2740 Centerview Drive

Tallahassee, Florida 32399-2100

Randy Ludacer, Esquire

Lucien Proby, Esquire

Robert Wolfe, Esquire

Monroe County Attorney

310 Fleming Street

Key West, Florida 33040

G. Steven Pfeiffer, Esquire

1000 Friends of Florida

Post Office Box 5948

Tallahassee, Florida 32314

Thomas G. Pelham, Secretary Larry Keesey, Esquire

Department of Community Affairs General Counsel

2740 Centerview Drive Department of Community Affairs

Tallahassee, Florida 32399-2100 Tallahassee, Florida 32399-2100