01-003914 Upper Keys Citizen Association And Florida Keys Chapter Izaak Walton League Of America vs. Monroe County And Florida Keys Electric Cooperative Association, Inc. Status: Closed DOAH Final Order on Wednesday, March 5, 2003.

Summary: Competent and substantial evidence to support the Monroe County Planning Commission`s decision to approve application for minor conditional use to construct electrical substation in Key Largo, Monroe County, Florida.

ST ATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

UPPER KEYS CITIZENS ASSOCIATION )

and FLORIDA KEYS CHAPTER IZAAK )

WALTON LEAGUE OF AMERICA, )

)

Appellants, )

)

vs. ) Case No. 01 - 3914

)

MONROE COUNTY and FLORIDA KEYS )

ELECTRIC COOPERATIVE )

ASSOCIATION, INC., )

)

Appellees. )

)

FINAL ORDER

Appellants, Upper Keys Citizens Association and Florida

Keys Chapter Izaak Walton League of America (Appellants), seek

review of Monroe County Planning Comm ission (Commission)

Resolution No. P52 - 01, approving, with conditions, a request by

Appellee, Florida Keys Electric Cooperative Association, Inc.

(FKECA), for a minor conditional use for an unmanned electrical

substation on property adjacent to State Road 905, approximately

2.5 miles south of the Ocean Reef Club gatehouse, North Key

Largo, Monroe County, Florida. Resolution No. P52 - 01 is dated

August 8, 2001, and this appeal was timely filed. The Division

of Administrative Hearings, by contract, and pursu ant to Article

XIV, Section 9.5 - 535, Monroe County Code (M.C.C.), has

jurisdiction to consider this appeal.

I. Issues

Appellants raise two issues on appeal: (1) whether they

were denied procedural due process of law when Commissioner

Jerry Coleman decli ned to recuse himself from consideration of

the request for a minor conditional use, after Appellants

requested his recusal; and (2) whether the Commission's decision

to approve the minor conditional use is consistent with the

Monroe County 2010 Comprehens ive Plan (Plan), and in particular

Policy 103.2.4. Stated otherwise, the second issue includes

consideration of whether there is competent substantial evidence

to support the Commission's findings and ultimate decision to

approve, with conditions, the min or conditional use.

After approval of several, unopposed extensions of time for

all of the parties in this appeal, Appellants filed an Initial

Brief and a Reply Brief, and Monroe County and FKECA filed

separate Answer Briefs. Oral argument was heard on Fe bruary 7,

2003.

II. Background

On or about September 9, 1998, FKECA applied for a minor

conditional use for the purpose of establishing an unmanned

electrical substation to be located on a 2.02 - acre portion of a

former Florida Department of Transportation (FDOT) right - of - way,

known as Old Card Sound Road, in North Key Largo, Monroe County,

Florida. This parcel was acquired by FKECA from FDOT (by quit

claim deeds) in 1997 and 1998. FKECA exchanged a three - acre

parcel for this 2.02 - acre site (which is the site approved by

the Commission), when FKECA determined that the former site

could not be used for the substation because of "environmental

sensitivity." Numerous documents were submitted with the

application.

On April 11, 2001, Martin Schultz, Senior Pla nner, and

Ralph Gouldy, Senior Administrator - Environmental Resources,

provided the Development Review Committee (DRC) with a

Memorandum which provided a review of the application.

Staff reviewed the application for consistency with

provisions of Monroe C ounty Land Development Regulations (LDR)

and the Plan, and the application was found to be in compliance

with several criteria and not in compliance with others. Staff

stated that compliance had not been determined with respect to

other regulations. The application was also reviewed for and

found in compliance with several provisions of the Plan,

including but not limited to Policy 103.2.4, see page 8, infra .

(Record, pages 415 - 416). Staff recommended approval of the

minor conditional use with condition s.

On June 4, 2001, the DRC unanimously recommended that the

Commission approve the minor conditional use, with conditions,

and entered Resolution No. D16 - 01. The DRC adopted the

"Findings of Fact and Conclusions of Law" proposed in the

Memorandum. Unlike the staff's analyses of compliance issues,

the DRC's Resolution does not directly discuss Policy 103.2.4.

See Endnote 7, infra .

On or about June 18, 2001, Appellants requested the recusal

of Commissioner David Ritz based on a conflict of inter est.

Commissioner Ritz recused himself and did not participate in

consideration of the matter.

By separate letter of June 18, 2001, Appellants also

requested the recusal of Commissioner Coleman based on

allegations of bias in light of the alleged " antagonistic nature

of" the relationship between Appellants' counsel (Lee R. Rohe,

Esquire) and Commissioner Coleman arising out of independent

litigation between Commissioner Coleman and Appellants'

counsel's clients/parties opposing Commissioner Coleman' s

interests. Appellants also provided an affidavit of Joan

Mowery, a member of Appellants' organizations, who expressed "a

present and real fear that the organizations represented by

Mr. Rohe will not receive a fair and impartial hearing on

July 25, 2001. . . ."

By letter dated July 23, 2001, Commissioner Coleman advised

Mr. Rohe that he would not recuse himself and stated the reasons

for his decision. Commissioner Coleman participated in, made

the motion to approve the staff recommendation, and vote d in

favor of approving the minor conditional use.

On June 6, 2001, staff (Mr. Schultz and Mr. Gouldy)

prepared a Memorandum, analyzing the application. This

Memorandum is similar to the Memorandum staff prepared and

submitted to the DRC on April 11 , 2001. (A copy of the June 6,

2001, Memorandum was not included in the Record. By Order of

February 25, 2003, Monroe County, after consultation with the

parties, was ordered to file a copy of this Memorandum because

it was referred to and incorporated b y reference as part of the

record by the Commission in Resolution No. P52 - 01. This

Memorandum is made a part of the Record.)

With respect to Policy 103.2.4, staff stated: "The

applicant's submittals concerning land availability, State and

Federal use restrictions on public lands, constraints regarding

transmission distances, and required environmental disturbances

relative to alternate sites closer to Ocean Reef suggest that

the proposed site results in the least environmental impacts

while meeting the engineering constraints faced by the utility.

Staff recognizes that efficient, reliable, and adequate

electrical service protects the public health, safety, and

welfare."

After discussing the compliance issues, the staff's June 6,

2001, Memorand um (in the "Staff Analysis" section IV.) provided:

Due to the environmental sensitivity of North

Key Largo, the FKEC substation must be designed

to minimize environmental degradation. Since

much of the area is under conservation within

the Crocodile Lakes National Wildlife Refuge

and the Key Largo State Botanical Site,

available disturbed sites are limited.

Additional limitations on site selection result

from engineering constraints related to energy

line losses associated with transmission of

electricity over distance. Placing the

facility on identified sites north of the

intersection of S - 905 and Card Sound Road will

require hammock clearing for the substation and

as well as for a significant number of

additional high voltage transmission towers.

Much of the proposed site is disturbed with

secondary regrowth of native vegetation and

exotics, and the presence of numerous fill and

debris piles. It is Staff's opinion that

minimizing encroachment into the site, removal

of debris, fill, and exotic vegetatio n, along

with an approved restoration of the remaining

disturbed area and continuing management of

exotic vegetation and fire ant infestation,

will result in less cumulative environmental

impacts than would occur with alternative sites

to the north.

On July 25, 2001, the Commission held a public hearing to

consider FKECA's application. John Burch, P.E., Mickey

Harrelson, P.E., Charles Russell, CEO of FKECA, Robert Smith,

Thomas Edward Lodge, Ph.D., and Donald L. Craig, A.I.C.P.,

testified for FKECA. Joan Mowery, Michael F. Chenoweth,

Esquire, and several members of the public, including but not

limited to Steve Klett, the refuge manager at Crocodile Lake

National Wildlife Refuge, testified in opposition to the

application.

After hearing the evide nce and argument of counsel, the

Commission voted three to one to approve the minor conditional

use, with conditions. The Commission's decision was reduced to

Resolution No. P52 - 01 and entered August 8, 2001.

III. Facts

The following facts are gathered from the evidence

presented to the Commission, which is contained in the Record of

this appeal. 1

The proposed substation is to be located on a 2.02 - acre

parcel (project or proposed site), adjacent to State Road 905,

approximately 2.5 miles south of the O cean Reef Club gatehouse,

in North Key Largo, Florida. The proposed structure is shown to

be approximately 1,924 square feet with equipment and wires also

on the site extending to power poles adjacent to State Road 905.

The proposed substation is designe d to serve the Ocean Reef

Community.

The proposed site is zoned Native Area (NA) under Monroe

County's Land Development Regulations (LDR) as a land use

district. 2

The proposed site is an abandoned roadway adjacent to a

former radar base, which is currently part of the Dagny Johnson

Key Largo Hammock Botanical State Park (Park) 3 on the Atlantic

Ocean, or eastern side of the site. The majority of the other

lands in the area are reserved for conservation with the Park,

and the Crocodile Lake National Wildlife Refuge (Refuge) on

Biscayne Bay, or western side of the site. The landowners

adjacent to the proposed site are the Board of Trustees of the

Internal Improvement Trust Fund, as owner of State of Florida

lands, the FDOT, and the United States of America.

A s part of the application, FKECA submitted a "Key Largo

Substation Needs Analysis" dated August 2000. The purpose of

this needs analysis was to demonstrate that the proposed site

was appropriate as a substation and consistent with applicable

provisions of the Monroe County Code LDRs and the Monroe County

Comprehensive Plan, and in particular, Policy 103.2.4 which

provides: "Monroe County shall require that public facilities

be developed on the least environmentally sensitive lands and

shall prohibit the l ocation of public facilities on North Key

Largo, unless no feasible alternative exists and such facilities

are required to protect the public health, safety, or welfare." 4

FKECA indicated in its Needs Analysis that its "long - range

facilities plan" identifi ed the North Key Largo distribution

system as requiring improvement by the addition of a proposed

substation. FKECA noted that

the thirteen (13) mile long feeder system,

adjacent to State Road 905, serving the North

Key Largo area, including the Ocean Re ef Club,

is experiencing substantial line loss and

diminished reliability due to the lack of

adequate voltage stabilization. In layman's

terms this situation means that the present

electric distribution system is inefficient,

loses voltage along the lengt h of the

distribution system, and often results in

brown - outs or voltage spikes in the Ocean Reef

community.

Because of the proposed project site's size and location

within the native land use district, FKECA was required to

obtain a minor conditional use permit.

To support its application, FKECA provided, in part, an

assessment of alternative sites for the proposed substation.

Before discussing the evidence pertaining to this analysis, a

brief discussion of the evidence as to how electricity is

provide d by FKECA is appropriate.

John Burch is a licensed professional engineer in the State

of Florida. He has worked for FKECA for over nine years and is

currently the Director of Engineering for FKECA. He has

experience in electrical system planning and d esign, construction,

and operations.

FKECA buys almost 100 percent of their power from Florida

Power & Light (FPL). The electricity travels from FPL's system

to FKECA's system by a transmission system, "like a super

highway." The electricity travels fro m Florida City south down

Card Sound Road (SR 905). In order to serve the public, the

electricity must pass through an interchange. It becomes usable

through a transformer and a substation. The closest substation

in the North Key Largo area is the Oz Mo ody station at Mile

Marker 106.

According to Mr. Burch, the load has "dramatically

increased" over the past 12 years and the system is not designed

to carry the required load. FKECA has experienced a line loss

which has resulted in an "extremely large amo unt of power loss

because of the large amount of power that must flow for" an

extra 20 miles. FKECA estimates approximately $329,700 a year

in lost resources because of the need to transport power an

additional 20 miles.

Location of the substation at the proposed site would allow

FKECA "to meet the national standards for voltage drop. If

[FKECA moves] any farther south from that location then the

voltage drop is going to increase dramatically and [FKECA will

not] be able to meet the voltage drop standards ."

The proposed substation is approximately 40 percent smaller

than a normal substation. No additional transmission or

distribution lines will be required. The substation allows

FKECA to tap into the existing transmission line system.

There are no transm ission lines from the proposed site to

Ocean Reef; only a distribution line. If an Ocean Reef site

were chosen, transmission lines would need to be built.

If the substation is built on the proposed site, FKECA's

line losses would be reduced from $329,000 a year to $68,000 a

year, the voltage would be within the national standards, and

reliability would be increased.

Mickey Harrelson, a registered professional engineer in the

State of Florida, also testified in favor the application. He

described the funct ion of the existing system as "totally

inadequate." Mr. Harrelson confirmed Mr. Burch's testimony

regarding the benefits of using the proposed site from an

engineering perspective.

Charles Russell, CEO of FKECA, testified in support of the

application. H is testimony supported Mr. Burch's testimony. He

reiterated that placing a substation inside Ocean Reef would

cause environmental damage by the necessity of building "two or

three miles" of transmission lines.

Eleven sites, plus the site ultimately app roved by the

Commission and owned by FKECA, were examined pursuant to the

following criteria: project electrical suitability;

environmental criteria; land ownership criteria; land use and

zoning designations; comprehensive plan policy criteria;

principles for guiding development; and surrounding lands. A

map attached to the Needs Analysis identifies the corridors

along State Roads 905 and 905A in which an electrical substation

could be placed according to FKECA. As noted by FKECA:

The selection of these corridors was based upon

the absolute criteria that the substation be

placed within an area adjacent to the existing

distribution lines from the mainland and along

State Route [sic] 905. Within these corridors,

sites were chosen based upon the availabilit y

of disturbed upland areas close to Road 905 or

Road 905A. Once the sites were chosen,

electrical suitability criteria are applied to

each of the sites. The electrical suitability

criteria are driven by the behavior of

electricity transmitted over land by means of

wire, and the cost attendant with providing

such lines and ancillary equipment. The effect

of electrical transmission of the type

available to the cooperative results in

geographic limitations on where a substation to

boost or maintain voltage may be placed.

Pertinent here, environmental impacts were considered.

Robert Smith of the Robert Smith Company, and Dr. Thomas Edward

Lodge completed an environmental analysis of each potential

site. Mr. Smith has a bachelor's degree in mathematics an d

biology. He also has a master's degree in organismal ecology

and biochemistry.

The record contains "alternate site biological reports" and

"habitat evaluation indices for project site and alternate sites

marginally feasible with disturbed areas."

Mr. Smith explained that the Plan establishes a habitat

evaluation procedure called an "HEI or habitat analysis" which

"is a compilation of various environmental parameters that are

reviewed and combined into an overall picture of the relative

degree of pristi neness of one parcel or another parcel as it

relates to either plant communities or animal communities in a

particular area or the actual physical ground that the community

is located within. That's codified within Comprehensive Plan as

well as the Monroe County Code."

In assessing proposed sites, Mr. Smith and Donald Craig,

A.I.C.P., reviewed existing aerial and zoning maps of Monroe

County, and looked at potential areas large enough to

accommodate the substation and connecting to State Road 905.

During the hearing before the Commission, Mr. Smith

provided a summary of his findings with respect to each site

which amplified the written documentation in the record. (There

is a map in the record (Record, page 273) prepared by Dr. Lodge,

which shows the loc ation of the 12 sites.)

Relevant here, alternate site number 11 was analyzed.

(Only sites 9 and 10 are south of site 11.) Alternate site

number 11 measures approximately 3.1 acres, and was owned by

FKECA, and was proposed originally for the electrical substation

until it was determined to be unsuitable because of the

environmentally sensitive nature of the site. As noted above,

this site was traded to the FDOT for the current proposed site.

Mr. Smith concluded (in a January 10, 2000, written report)

th at site 11 "was analyzed and found to be a high quality

tropical hardwood hammock. The open space ratio would be 0.80.

The hammock of which the subject parcel is a part has

significant wildlife value for endangered species." On the

"normative suitabilit y scale" provided with the needs analysis,

alternate site number 11 received a score of 10, whereas the

FKECA proposed site received a score of 32, with a higher score

being more suitable than a lesser score, based on the "alternate

site selection criteria " mentioned above. See page 11, supra .

The proposed site received the highest score (of the alternative

sites reviewed) for suitability.

Mr. Smith also provided a mixed habitat analysis for the

proposed site. The site was described and habitat types

eva luated. The hammock areas located on the property are

described in some detail. Mr. Smith also observed that a

majority of the site "would be classified as disturbed lands."

His conclusions are:

IV. Conclusion, Open Space, Buildable Area and

Clustering :

A. Low Hammock: The low hammock was evaluated

and found to be a moderate quality hammock.

The environmental open space would be .60 which

would allow for 40 % buildable area. Since the

zoning is native hammock (NaH), the open space

would be .80 and only 20 % could be used for

buildable purposes. This would equate to

± 1,484 sq.ft. of buildable area.

B. High Hammock: The high hammock was

evaluated and found to be a moderate quality

hammock. The environmental open space would be

.60 which would fo r 40 % buildable area. Since

the zoning is native hammock (NaH), the open

space would be .80 and only 20 % could be used

for buildable purposes. This would equate to

± 4,836 sq.ft. of buildable area.

C. Disturbed Lands: The disturbed lands

measured 53 ,420 sq.ft. (1.23 acres). The

environmental open space ratio of .20 which

would allow for 80% to be built upon. Since the

zoning is native disturbed (NaD), the open

space would be .60 and only 40 % could be used

for buildable purposes. This would equate to

± 21,368 sq.ft.

D. Fringing Mangroves: The fringing mangroves

portion of the parcel measured ± 3,600 sq.ft.

The environmental and zoning open space is

100 % and as such no buildable area is present.

Total Buildable Area: 27,688 sq.ft. The

Monroe County Code requires that clustering of

buildable area be within the environmentally

least sensitive area of the parcel when more

that [sic] one habitat category is present on

site. The environmentally least sensitive area

of the parcel would be the dist urbed lands

portion.

Alternate site 1 was evaluated on June 29, 1999.

(Alternate site number 1 is the northernmost site.) This site

is "part of the utility area of Ocean Reef Club, North Key

Largo, Monroe County, Florida." It is zoned "Sparsely Settled

(SS)." Mr. Smith provided the following written "summary

statement": "The subject parcel is located within the Ocean

Reef Club within North Key Largo. The parcel is a portion of

the utility grounds area of the Club. The parcel was contained

within a d evelopment agreement (D.A.) with Monroe County. The

use proposed within the development agreement was for a driving

range. The parcel abuts the airport and is within the geometric

dome of interaction with the flight path glide zone, a.k.a.

clear zone. T here are no environmental features on site." It

is a "scarified" site. This site received a rating of "15."

Alternate site number 2 (south of site 1) was also

evaluated by Mr. Smith on June 28, 1999, and January 15, 2000.

This site is located at "Old Ca rd Sound Roadway and adjacent

lands adjacent to the Ocean Reef Club, North Key Largo, Monroe

County, Florida." Alternate site number 2 received a rating

of "8" on the suitability scale. Mr. Smith's conclusions in the

January 15, 2000 report are:

III. C onclusion, Open space and Buildable Area:

Aopical Hardwood Hammock: The hammock was

evaluated and found to be a high quality

hammock. The open space ratio would be 0.80

which would allow for 20 % of the hammock to be

cleared and built upon[.] Howe ver all clearing

in excess of 10 % would require that any tree

larger than 4 inches in diameter at breast

height be relocated. The hammock would need to

be cleared for a length of 178 L.F. and a width

of 59 L.F. (10,502 sq. ft.) in order to

accommodate th e proposed facility. Since the

open space ratio is 0.80 then the minimum area

of 52,510 sq.ft. (1.205 acres)[.] [T]ropical

hardwood hammock would need to be annexed onto

the roadway such as to conform with the Monroe

County Code.

B. Roadway: The distur bed portion of the

roadway right of way located adjacent to the

Ocean Reef Club (north) could not be used as it

is within the required setbacks associated with

the native landuse [sic] district. The roadbed

is ± 25 feet wide with a shoulder area of ± 10

f eet. The facility is 94 feet wide and 178

feet long (16,732 sq.ft.). This area would

accommodate 178 L.F. X 35 L.F. = 6,230 sq. ft.

The remainder of the facility would be in the

tropical hardwood hammock areas. In order to

conform with the open space re quirement of 0.60

(native disturbed or scarified) the length of

the roadway and adjacent shoulder area would

need to be 297 linear feet. This would be in

addition to any driveway or roadway needed to

access and setback the facility from the paved

roadway (S - 905).

During the hearing, Mr. Smith further amplified on his

conclusions that the proposed sites (1 and 2) in or around Ocean

Reef were not as feasible as the site chosen. With respect to

the Ocean Reef site, Mr. Smith considered Mr. Burch's assessmen t

of the need to construct transmission lines to the Ocean Reef

site and opined:

I went and looked at the locations on both

sides of the road, seeing where you would put a

transmission line and I have been informed that

if a transmission line would be cons tructed it

would be on the west side of 905. So I went

through, walked the whole distance there and

did a habitat analysis of the west side of the

road. And effectively it would result in

clearing of approximately four acres of either

tropical hardwood h ammock or mangrove wetlands.

It probably would be impossible to obtain

permits to do that type of clearing.

Mr. Smith also discussed the appropriateness of the

proposed site during the final hearing, and testified in part:

The proposed site is or was an abandoned

roadway which at one time was 905 before it was

abandoned. It currently was a roadway,

physically has a roadway in the center of it

and part of that has been filled, other parts

have not been filled, didn't need to. It's

[sic] elevational chang e for the Keys is

relatively significant because it goes from a

wetland elevation on one corner to an elevation

of around eight or nine or even ten feet at the

highest point which is relatively quick

gradation for the Keys. Along the roadway --

at one tim e the entire roadway was cleared

except for some portions of the northernmost

corner of the parcel. . . .

. . . The northernmost portion of the parcel

was not cleared and it's about, approximately

20 to 22 feet wide from the edge of the cleared

area to th e edge of the surveyed parcel and

that's part of mature tropical hardwood

hammock. The rest of the parcel is considered

to be disturbed and portions of it are

recovering with native species and other

portions are growing with exotic pest plants.

The rear of the parcel, the eastern most third

approximately, would be characterized as

disturbed with exotic pest plants. It's heavy

[sic] trashed. There is a fair amount of

dumping and debris that's there and a

significant number of, a significant number of

ol d pieces of metal that have been thrown

there, boats, washing machines, that type of

stuff and roofing material.

The one corner of the property which would

be the western most corner abuts on to a

mangrove area and has some mangrove wetlands.

We are not proposing to be in that area. We

are proposing to use the existing roadway. And

when we first designed the site plan it was

located in the rear of the western most sector

of the parcel because of the amount of exotics

that were there. After meeting with the county

biologist, spoke with Niko Reisinger and also

with Ralph Gouldy they suggested maybe we

should consider moving it closer to the

highway.[ 5 ]

Our objective originally was to try to

situate in the rear where there were more

exotics, and as well you wouldn't be able to

see the facility the further back that it is.

I just thought from design perspective it is

probably a better idea to be closer to the road

because there is less wires and everything that

need to be put in. However the cou nty decided

and we had gone along with it obviously, that

we move the facility closer to the road, to

905.

One of the benefits associated with that

or I leave [sic] the logic pattern that the

county biological staff used, and they can

correct me if I 'm wrong, is that a portion of

any development order issued by Monroe County

requires that if you have any area that has

exotic pest plants that all the exotic pest

plants need to be removed from there and the

area restored. So our intent was to situate

t he facility closer to 905 which allowed us a

much larger area in the rear of the parcel to

recreate and reforest, hence recreating the

wildlife corridor that would extend from the

forest on the north side to the reforesting

areas to the south of the parcel hence it's a

bigger area to restore.

Mr. Smith advised that the proposed site consists of

approximately two acres and FKECA will be using approximately

one - third of the site. According to Mr. Smith, the net result

would be to end up with more tropical ha rdwood hammock than

currently exists due to restoration that would be required of

FKECA. Mr. Smith was satisfied that the design and the location

of the substation on the proposed site minimizes environmental

impacts.

With respect to the potential buildin g of the facility in

Ocean Reef, Mr. Smith advised that a secondary impact of using

this site would require the removal of approximately four acres

of either tropical hardwood hammock or mangrove wetlands.

Overall, he opined that the "impact upon placemen t of the

facility there [Ocean Reef] would be many times greater than

where [FKECA proposed] it to be." On the other hand, Mr. Smith

agreed that the Ocean Reef "site [number 1] had no environmental

features." "It's scarified." But, he reiterated on cros s -

examination that he was concerned with the placement of required

transmission lines which was problematic.

Dr. Lodge, an environmental scientist and primarily an

ecologist, also testified in favor of the application.

Dr. Lodge has a Bachelor of Arts degree with a major in zoology

from Ohio Wesleyan University, and a Ph.D. in biology from the

University of Miami in 1974. He is the author of the Everglades

handbook subtitled Understanding the Ecosystem , which contains

chapters on mangrove, tropical har dwood hammock, and Florida

Bay. He has had considerable experience in evaluating impacts

of construction in environmentally sensitive areas.

Dr. Lodge visited all of the proposed sites, and some of

them several times. He focused on the environmental as pects of

each site.

Dr. Lodge opined that the proposed alternative of

constructing transmission lines into Ocean Reef was not

appropriate. He was concerned with the fragmentation which

would result from construction of the transmission lines in this

area. He was also concerned with the "edge effect" which can

result in an ecological problem involving invasive species. He

opined that there was a "much larger environmental impact" to

run transmission lines rather than use the proposed site.

As part of the application, FKECA submitted a memorandum

letter from Mr. Craig dated June 14, 2001, evaluating the

expected impacts from an alternative location of the proposed

substation somewhere within the Ocean Reef Club. Mr. Craig

summarized the results of the con sultant team's analysis that an

Ocean Reef Club substation be rejected. The conclusions are as

follows:

1. A substation at ORC would require the

construction of a new double circuit

transmission line from the three - way stop to

ORC.

2. Line losses will still be unacceptable with

a new transmission line extension to the Ocean

Reef Club.

3. The environmental damage associated with

construction of a new transmission line would

be greater than those associated with the

proposed site.

4. The new transmiss ion line would have to

carry one - half (1/2) the load of the entire

system for the Florida Keys. The alternating

current with loads of this size must have a

return circuit to Key West.

5. The cost of an alternative involving a

complete underground transm ission line to the

ORC substation site would be excessive and

would involve as much, if not more

environmental damage as the transmission line

alternative.

6. An assumption that new transmission poles

would simply be placed in the same location as

the ex isting distribution poles is incorrect.

The Florida Department of Transportation

requires that the larger concrete transmission

poles be placed far away from the road travel

lanes in order to minimize the damage to

automobiles and passengers in collisions with

large immobile objects.

In addition, the consulting team calculated the location,

site and effects of placing a series of transmission line poles

to a substation located at the Ocean Reef Club. Numerous

calculations are included in Mr. Craig's lett er. Part of the

analysis contained in Mr. Craig's letter referenced clearing

impacts associated with the construction of the transmission

line on which distribution lines would be supported.

During the hearing, Mr. Craig summarized his previous

findings with respect to the construction and maintenance

impacts which will likely result if a transmission line or a

sub - service line were to be placed inside the Ocean Reef Club.

He, in concert with other experts including Mr. Burch and

Mr. Russell, concluded that it would take approximately 38 new

poles to take the transmission line into the gate of Ocean Reef

Club, an alternative site favored by Appellants. He stated that

the clearing of existing hammock for new transmission lines on

the Ocean Reef site was worse than installation of the

substation. Approximately 3.9, not 10.9 (Record, pages 103 and

257) acres of hammock would be cleared. Mr. Craig also

subtracted the temporary construction clearing from this figure

to arrive at the permanently cleared area of 3.47 acres.

Mr. Craig further testified regarding FDOT regulations

which require the placement of utility structures at the

farthest edge of the right - of - way.

As a professional planner, Mr. Craig opined that the

proposed site was the least environme ntally sensitive site that

has been identified for the placement of the substation and that

there are no other considered sites which would be equally or

more feasible than the proposed site. (Mr. Craig is not an

engineer nor a practicing biologist or eco nomist.)

On cross - examination, Mr. Craig reiterated that in his

opinion, the clearing of the hammock for the new transmission

line to and from Ocean Reef Club would be worse than the

installation of the substation at the proposed site.

During the hearing, Mr. Craig's assessments especially with

respect to the location of the poles and the clearing impacts

associated with the construction of the transmission line, were

criticized by Appellants' witness Mr. Michael F. Chenoweth.

Mr. Chenoweth suggested that perhaps FDOT would grant a waiver

from siting requirements in order to avoid the loss of the

approximately four acres of hammock due to the construction of

the transmission lines.

Mr. Chenoweth believes that there is room for the

substation inside the O cean Reef Club, outside the gate of the

Ocean Reef Club, and inside the entrance to the Angler's Club.

He stated that there are alternative and feasible sites between

alternate sites 1 and 2.

Mr. Chenoweth also disagrees with the staff analysis that

the proposed site will result in less cumulative environmental

impacts than would occur with alternative sites to the north,

i.e , the Ocean Reef area. Mr. Chenoweth states that FKECA

should have pursued a waiver from the FDOT from the setback

requirements an d, second, alternate site number 1 is the best

site because it has no environmental features that will be

impacted by construction of the substation. He also favors

alternate site number 2. Mr. Chenoweth states that North Key

Largo had "the largest conti guous hardwood hammocks . . . in the

United States" and that the "[P]ark has the highest CARL

priority when it was being acquired."

Prior to the hearing, Mr. Chenoweth submitted a letter

offering a lengthy critique of the application.

Mr. Chenoweth has a d egree in environmental engineering

technology from Florida International University and a law

degree. He spent 31 years as a reserve officer in the Army

Corps of Engineers. He does not have training in the siting of

structures for FDOT right - of - way proje cts. Rather, his

testimony is based on his personal observations.

His belief that a waiver is possible is based on his

experience with the Governor and Cabinet of the State of

Florida. He has never sought a waiver from the FDOT.

On rebuttal, Mr. Burch di sagreed with Mr. Chenoweth

regarding whether the FDOT would grant a waiver.

There were several persons from the public who opposed the

application. They spoke, in part, about the importance of the

Park, e.g. , being a "fragile ecological treasure" and "hom e to

many endangered and threatened plants and animal species."

(Record, page 160). Steve Klett, the refuge manager at the

Crocodile Lake National Wildlife Refuge, also spoke in

opposition to the application. He is a biologist who lives

approximately on e mile from the proposed site. Mr. Klett opined

that "[t]he project would result in a loss and fragmentation of

habitat important to these species and would attract black rats,

fire ants and invasive exotic plants which are all detrimental

to the endanger ed species in North Key Largo. A case in point

is the endangered Key Largo woodrat and Key Largo cotton mouse.

Both species have shown a rather dramatic decline in their

population over the last 20 years." He believes that the Ocean

Reef site "would hav e far less impact to the endangered species

of North Key Largo."

The Record contains a May 31, 2001, letter from David E.

Dismutes, Ph.D., a "consulting economist." Dr. Dismukes was

critical of, in part, FKECA's Needs Analysis, including the

information o n alternative sites, and growth forecasts.

After closing arguments, Edward Koconis, A.I.C.P, Island

Planning Team Director, and DRC Chair, favored the application,

although he said "it wasn't the easiest thing in the world."

Nevertheless, he recommended t hat the Commission adopt an

additional finding of fact which appears in Resolution No. P52 -

01 as follows:

6. Based on the application, we find that the

proposed project is consistent with Florida

Statute 380.0552(7), balanced between

380.0552(7)(h)8. which st ates that one of

the principles for guiding development in

the Florida Keys Area, regarding the

protection and designation as an area of

critical concern, is to protect the value,

efficiency, cost - effectiveness, and

amortized life of existing and proposed

major public investments, including City

Electric Service and the Florida Keys Co -

op, and Section 380.0552(7)(i) which states

that adverse impacts of public investments

on the environmental resources of the

Florida Keys be limited, and all other

factors of Section 380.0552(7).

Mr. Koconis stated that these statutory provisions should be

considered, especially regarding an interpretation of

"feasibility" which appears in Plan Policy 103.2.4. See page 8,

supra .

After deliberating, Commissioner Coleman moved to approve

the staff recommendation (approval of the application).

Commissioners Coleman and Hill, and Chairman Mapes voted in

favor of the motion. Commissioner Werling voted against. The

Commission adopted the additional language offered by

Mr. Koconi s (paragraph 6) and "all other enumerated factors."

Except for paragraph 6, the Commission's Resolution is

quite similar to the DRC's Resolution with respect to findings

of fact and conclusions of law, and without specific findings of

fact regarding Policy 103.2.4. See Endnote 7, infra .

Commissioner Coleman moved to approve the staff recommendation

which necessarily included the analyses performed by staff in

the June 6, 2001, Memorandum, and which included a discussion of

the facts in light of Plan Polic ies and LDR's, and specifically

Plan Policy 103.2.4.

The Commission's Resolution requires three conditions:

that Monroe County approve a transplantation plan; that the

County engineer approve the surface water management plan; and

that prior to the issuan ce of a building permit, a Habitat

Conservation Plan containing a restoration plan must be prepared

and an 'incidental take' permit be obtained from the United

State Fish & Wildlife Service (USFWS). (This latter condition

is in response to a May 5, 1999, letter from the USFWS stating

that the implementation of the project "will result in take of

listed species protected under the Endangered Species Act of

1973, as amended (16 U.S.C. 1531 et seq. )(ESA))."

IV. Legal Discussion

The Division of Administrativ e Hearings has jurisdiction

over the subject matter of this proceeding and of the parties

pursuant to Article XIV, Section 9.5 - 535, M.C.C. The hearing

officer "may affirm, reverse or modify the order of the planning

commission." Article XIV, Section 9.5 - 540(b), M.C.C. The scope

of the hearing officer's review under Article XIV is:

The hearing officer's order may reject or

modify any conclusion of law or

interpretation of the Monroe County land

development regulations or comprehensive

plan in the planning commission's order,

whether stated in the order or necessarily

implicit in the planning commission's

determination, but he may not reject or

modify any findings of fact unless he first

determines from a review of the complete

record, and states with parti cularity in his

order, that the findings of fact were not

based upon competent substantial evidence or

that the proceeding before the planning

commission on which the findings were based

did not comply with the essential

requirements of law.

Id. "The h earing officer's final order shall be the final

administrative action of Monroe County." Article XIV, Section

9.5 - 540(c), M.C.C.

In DeGroot v. Sheffield , 95 So. 2d 912 (Fla. 1957), the

court discussed the meaning of "competent substantial evidence"

and stated:

We have used the term "competent substantial

evidence" advisedly. Substantial evidence

has been described as such evidence as will

establish a substantial basis of fact from

which the fact at issue can be reasonably

inferred. We have stated it t o be such

relevant evidence as a reasonable mind would

accept as adequate to support a conclusion.

. . . In employing the adjective "competent"

to modify the word "substantial" we are

aware of the familiar rule that in

administrative proceedings the forma lities

and the introduction of testimony common to

the courts of justice are not strictly

employed. . . . We are of the view,

however, that the evidence relied upon to

sustain the ultimate findings should be

sufficiently relevant and material that a

reaso nable mind would accept it as adequate

to support the conclusion reached. To this

extent, the "substantial" evidence should

also be "competent."

Id. at 916 (citations omitted.)

A hearing officer (administrative law judge) acting in his

or her appellat e review capacity is without authority to reweigh

conflicting testimony presented to the Commission or to

substitute his or her judgment for that of the Commission on the

issue of the credibility of witnesses. See Haines City

Community Development v. Hegg s , 658 So. 2d 523, 530 (Fla. 1995).

The question before the undersigned is not whether the

record contains competent substantial evidence supporting the

view of Appellants; rather, the question is whether competent

substantial evidence supports the findin gs made by the

Commission. Collier Medical Center, Inc. v. State, Department

of Health and Rehabilitative Services , 462 So. 2d 83, 85 (Fla.

1st DCA 1985).

The issue of whether the Commission "complied with the

essential requirements of law" is synonym ous with whether the

Commission "applied the correct law." Haines City Community

Development , 658 So. 2d at 530.

Appellants contend that, in light of the request for

disqualification made by Appellants, Commissioner Coleman should

have disqualified himsel f from consideration of the requested

minor conditional use.

In the Initial Brief, Appellants recite several statutory

provisions which, according to Appellants, required

disqualification under the circumstances. Appellants also

contend that they were d eprived of procedural due process

because Commissioner Coleman did not disqualify himself. In

their Reply Brief, Appellants rely almost exclusively on their

procedural due process claim.

During oral argument, Appellants' counsel stated that the

Commissi on was not subject to Chapter 120, Florida Statutes, and

necessarily Section 120.665, Florida Statutes, and that various

other cited provisions, such as the Code of Judicial Conduct,

were guidelines to be considered, but were not binding on

Commissioner Co leman. 6 In other words, the central issue

presented in this appeal is whether Appellants were denied

procedural due process.

Under the Monroe County Code, the review criteria are

limited and do not include consideration of whether procedural

due process w as afforded by the Commission. See page 28, supra.

Because the decision to grant or deny a permit under the Monroe

County Code is a quasi - judicial action, Appellants may, if they

wish, seek review of this final order by filing a petition for a

writ of ce rtiorari with the appropriate circuit court. Board of

County Commissioners of Brevard County v. Snyder , 627 So. 2d 469

(Fla. 1993). See also Park of Commerce Associates v. City of

Delray Beach , 636 So. 2d 12, 15 (Fla. 1994). When the circuit

court revie ws a decision of an administrative agency under

Florida Rule of Appellate Procedure 9.030(c)(3), there are three

discrete components of its certiorari review, including whether

the administrative proceeding has been conducted in accordance

with the constit utional requirements of procedural due process.

See City of Deerfield v. Valiant , 419 So. 2d 624, 626 (Fla.

1982). See also Robert Stoky and Ruth Stoky v. Monroe County,

Florida , Case No. 00 - 0377DRI (DOAH Oct. 12, 2001) at pages 23 -

24. Accordingly, Appe llants' procedural due process claim is

not considered.

Appellants also contend that the Commission's decision to

approve the minor conditional use for the location of the

electrical substation on the proposed site is inconsistent with

the Plan.

In the I nitial Brief, Appellants cite to several provisions

of the Plan and the LDR's. Appellants' main claim throughout

this proceeding (before the Commission and in this review

proceeding) has been that FKECA's application is inconsistent

with Policy 103.2.4, w hen strictly construed, and, implicitly

that the Commission's findings (and ultimate findings of fact

and decision) are not supported by competent substantial

evidence. 7

"After a comprehensive plan . . . has been adopted in

conformity with this act, all de velopment undertaken by, and all

actions taken in regard to development orders by, governmental

agencies in regard to land covered by such plan or element shall

be consistent with such plan or element as adopted." Section

163.3194(1)(a), Florida Statutes. Local government development

orders are subject to strict scrutiny in order to assure

compliance with the duty imposed by Section 163.3194. See ,

e.g. , Pinecrest Lakes, Inc. v. Shidel , 795 So. 2d 191 (Fla. 4th

DCA 2001) (standard applied in the context o f a circuit court

de novo proceeding pursuant to Section 163.3215, Florida

Statutes), cert . denied , 821 So. 2d 300 (Fla. 2002). (The

Record contains a Verified Complaint submitted on behalf of

Upper Keys pursuant to, in part, Section 163.3215. The status

of this matter is unknown. (Record, Pages 209 - 220)).

In this appellate review proceeding, which is not a de novo

proceeding, whether the Commission's determination, and

necessarily FKECA's application, is consistent with the Plan,

and specifically Policy 103.2.4, is to be determined in light of

the standard of review provided in the Monroe County Code and in

light of the evidence, which is not viewed in the light most

favorable to Appellants. See Collier , supra .

It is beyond the purview of this review proceeding for the

undersigned to judge the credibility of the witnesses (including

expert witnesses) and to re - weigh the evidence. This is

precisely what Appellants request.

Based on a review of the entire Record, it is concluded

that there was compete nt substantial evidence to support the

Commission's findings ( see Endnote 7) and ultimate decision to

approve the application based on the Commission's implicit

finding that the proposed project is consistent with Policy

103.2.4. There was expert testimon y supported by other

competent substantial evidence in the Record to sustain the

Commission's decision.

DECISION

Based upon the foregoing, the Commission's decision to

approve the minor conditional use, with conditions, is AFFIRMED.

DONE AND ORDERED t his 5th day of March, 2003, in

Tallahassee, Leon County, Florida.

___________________________________

CHARLES A. STAMPELOS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 5th day of March, 2003.

ENDNOTES

1 / See Article XIV, Section 9.5 - 5 38, M.C.C., for the contents of

the Record, which includes "[a]ll applications, memoranda, or

data submitted to the [C]ommission" and "[e]vidence received or

considered by the" Commission.

2 / Pursuant to Article VII, Section 9.5 - 210, M.C.C., the purpose

of this district "is to establish areas that are undisturbed

with the exception of existing solid waste facilities, and

because of their sensitive environmental character should be

preserved in their natural state."

3 / The Park was purchased by the Stat e of Florida with the

purpose of maintaining the area as a wildlife preserve. It is

estimated that the State of Florida has spent more than $155

million under several land acquisition programs to acquire a

number of parcels to protect and preserve signifi cant tropical

hammocks and pinelands in the Keys and protect one of the

world's most significant coral reef ecosystems. According to

Mr. Robert J. Lovern, Assistant Division Director, Division of

State Lands, of the Department of Environment Protection

(D epartment), the placement of an electric substation on lands

acquired by the state for conservation purposes is an

"incompatible use." Mr. Lovern suggests that "[i]n choosing

such a substation site, consideration should be given to

ecological, historical and recreational values, as appropriate."

(Record, page 247). These comments were made in a letter dated

June 20, 2001, at a time when FKECA requested permission from

the Department to locate a substation on state - owned property on

North Key Largo in exc hange for the site owned by FKECA in the

same vicinity.

4 / Appellants do not oppose per se the construction of an

electrical substation in North Key Largo. Appellants contend

that the chosen site is not the least environmentally sensitive

land available and that other feasible alternatives exist, e.g. ,

on Ocean Reef Club property and land adjacent thereto. (Record,

page 95).

5 / The County biologist recommended relocation of the facility

as close as possible to State Road 905 while maintaining wetland

setbacks and open space ratios within the hammock areas.

6 / Appellees contend that recusal of a commissioner, as a public

officer, is confined to an examination of the requirements of

Section 112.3143(3)(a), Florida Statutes, providing the

circumstanc es when a voting conflict may arise involving a

public officer. Appellants do not argue that this section

applies. Consistent with the disposition of Appellants'

procedural due process claim, no decision is reached on whether

Section 112.3143(3)(a), Flor ida Statutes, applies in this case.

7 / Article III, Section 9.5 - 47, M.C.C., requires the Commission

to provide, in a resolution, "[a] clear statement of specific

findings of fact and a statement of the basis upon which such

facts were determined, with sp ecific reference to the relevant

standards set forth in this chapter, including but not limited

to the standards in section 9.5 - 65." Appellants do not

challenge the legal sufficiency of the Resolution in light of

Section 9.5 - 47. The Commission's Resoluti on contains findings

of fact and conclusions of law. The transcript of the hearing

before the Commission indicates that the motion was to approve

the staff recommendation on the application and to include

paragraph 6 recited herein at page 26 and "all oth er enumerated

factors." (Record, pages 200 - 201). The motion seems to have

necessarily included staff's analyses of the Plan and LDR's,

including Policy 103.2.4, in light of the facts presented to

staff at the time the June 6, 2001, Memorandum was prepare d.

(The Commission also had the benefit of considering the evidence

adduced during the public hearing.) It is concluded that the

June 6, 2001, Staff Memorandum, including the portion which

discusses Policy 103.2.4., which includes the Staff Analysis -

sect ion IV., to the extent it is incorporated by the Commission

as findings of fact, is supported by competent substantial

evidence.

COPIES FURNISHED :

Richard J. Grosso, Esquire

Environmental and Land Use Law Center, Inc.

3305 College Avenue

Fort Lauderdale , Florida 33314

Lee Robert Rohe, Esquire

Lee Robert Rohe, P.A.

Post Office Box 420259

Summerland Key, Florida 33042

Michael F. Chenoweth, Esquire

Post Office Box 236

Homestead, Florida 33090

Karen K. Cabanas, Esquire

Morgan & Hendrick

Post Office Box 1117

Key West, Florida 33041

Nicholas W. Mulick, Esquire

Hershoff, Lupino & Mulick

90130 Old Highway

Tavernier, Florida 33070

Nicole Petrick, Staff Assistant

Monroe County Planning Department

2798 Overseas Highway, Suite 400

Marathon, Florida 33050

NOTICE OF RIGHTS

Pursuant to Article XIV, Section 9.5 - 540(c), M.C.C., this

Final Order is "the final administrative action of Monroe

County." It is subject to judicial review by common law

petition for writ of certiorari to the circuit court in the

appr opriate judicial circuit.