18-005255 Dalk Land, Lp. vs. Monroe County Planning Commission Status: Closed DOAH Final Order on Tuesday, April 9, 2019.

Summary: Building Official erred in approving an elevation certificate on the grounds that the building permit issued years earlier entitles the landowner to a favorable interpretation of the flood zone boundary on its property, and in lifting a stop-work order.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DALK LAND, LP ,

Petitioner,

vs.

Case No. 1 8 - 5255

MONROE COUNTY PLANNING

COMMISSION ,

Respondent ,

and

PETER G. GIAMPAOLI AND

ELIZABETH C. GIAMPAOLI,

INDIVIDUALLY AND AS TRUSTEES OF

THE GIAMPAOLI FAMILY TRUST,

Intervenors.

_______________________________/

FINAL ORDER

Th is case came before Administrative Law Judge John G.

Van Laningham for final hearing by video teleconference at sites

in Tallahassee and Marathon , Florida, on December 5 and 6, 2018.

The hearing resumed in Marathon, Florida, on January 2 8, 2019 ,

where it finished on January 29, 2019.

APPEARANCES

For Petitioner: Irain J. Gonzalez, Esquire

Daniel C. Fors, Esquire

Fowler Whi t e Burnett, P.A.

1395 Brickell Avenue, 14th Floor

Miami, Florida 33131 - 3306

For Respondent : Steven T. Williams, Esquire

Monroe County Attorney ' s Office

1111 12th Street, Suite 408

Key West, Florida 33040

For Intervenors: Andrew M. Tobin, Esquire

Andrew M. Tobin, P.A.

Post Office Box 620

Tavernier, Florida 33070 - 0620

F. Patterson Willsey, Esquire

401 Camino Alondra

San Clemente, California 92672

STATEMENT OF THE ISSUE S

The issue s to be decided are whether the County's Building

Official erred in (i) approv ing an elevation certificate on the

authority of his conclusion that the building permit issued many

years earlier entitles Intervenors to a favorable interpretation

of the relevant flood zone boundary on their oceanfront

property, which is adjacent to Petitioner's property; and

(ii) lift ing a stop - work order based upon the approval of the

elevation certificate.

PRELIMINARY STATEMENT

On Se ptember 2 5 , 2018, Petitioner Dalk Land, LP, filed an

appeal with Respondent Monroe County, pursuant to section 122 - 9 of

the Monroe County Land Development Code, contesting the Building

Official's decisions to (i) approve a certificate of elevation for

a si ngle - family residence being built on Intervenor s ' oceanfront

property, which is adjacent to Petitioner's property; and

(ii) lift a stop - work order that had halted further progressive

work on the single - family residence pending approval of an

elevation certificate. By letter dated October 2, 2018,

Respondent forwarded the appeal to the Division of Administrative

He arings ( " DOAH " ) , where it was assigned to the undersigned.

The final hea ring began as scheduled on December 5, 2018,

and continued until the end of the following day, without

finishing. The proceeding resumed on January 28, 2019, and

concluded the next day. All parties were present throughout.

Petitioner called the followin g witnesses: Bryan Davisson, Paul

Lin, Carl Schror, Eric Isaacs, Stephen Bo ehning, and Neil Hedrick.

Petitioner's Exhibits 1 through 28 , 30, 3 1, and 36 through 43 were

received in evidence. In its case, Intervenor s presented

Mr. Schror (who had testifie d previously), Robert Reece, Rick

Griffin, and Pete Giampaoli. Intervenor s ' Exhibits 2 and 4

through 7 were admitted. Respondent did not put on a case or

offer any evidence.

The final hearing transcript , comprising four volumes, was

filed on February 8, 2019. Petitioner and Intervenor s timely

submitted p roposed f inal o rders, which were due on February 28 ,

201 9 , and these were considered in preparing this Final O rder.

Respondent elected not to file a pr oposed order.

U nless otherwise indicated, citations to the official

statute law of the S tate of Florida refer to Florida Statutes

201 8 .

FINDINGS OF FACT

1. At all times material to this proceeding, Intervenors

Peter G. Giampaoli and Elizabeth C. Giampaoli, Individually and

as Trustees of the Giampaoli Family Trust (collectively, the

" Landowner " ), have been engaged in an ongoing effort to build a

single - fami ly residence (the " SFR " ) on their oceanfront parcel

located at 16820 Old State Road 4A , Sugarloaf Key, Florida 33042

(the " Property " ). Respondent Monroe County (the " County " ) has

regulatory jurisdiction over the development of the Property,

which is situated within the County ' s territorial boundaries.

The County issued a building permit for the SFR on April 9,

2010, and that building permit, as revised, has remained active

at all times material hereto.

2. Petitioner Dalk Land, LP (the " Neighbor " ), o wns the

parcel directly adjacent to the Property ' s southwest border.

The Neighbor is unenthusiastic about the construction of the

SFR. This case stems from the Neighbor ' s objection to the

County ' s approval of the Landowner ' s revised certi fication of

elev ation, an approval which in turn prompted the concomitant

lifting of a stop - work order that the Building Official had

previously issued after having " fail ed " the Landowner ' s original

elevation certificate.

3. At the heart of the instant dispute is a line ÏÏ the line

which divides the two f lood zones wherein the seaward portion of

the Property lies . A flood zone is an area having a prescribed

level of flood ris k . The Federal Emergency Management Agency

( " FEMA " ) establishes and defines flood risks and flood zones.

FEMA determines , as well, the levels of flood risk existing in

communities nationwide, demarcat ing geographic areas of similar

risk , which it classifie s according to flood zone . FEMA

creates , stores, and updates Flood Insurance Rate Maps ( " FIRM " )

that depict these zones. The parties refer to the borders

between the zones as " flood lines " or simply " lines, " and the

undersigned will occasionally do the same. The two flood zones

of interest here are especially high risk " velocity zones "

( " VE " ), namely VE - 13 and VE - 15, which latter is , as between

them, the more hazardous coastal area.

4. The FEMA FIRMs, which are integral to the National

Flood Insurance Program enacted in 1968, have been around for

decades. I n the pre - digital age, these maps were printed on

paper and distributed in this physical form. The paper maps,

which are still used, are known as panels. In more recent

years, FEMA has been using computer - based geographic information

system data to create a nationwide digital flood insur ance rate

map called the National Flood Hazard Layer ( " NFHL " ).

5. The process of transferring points on the surface of

the globe onto a plane (known as map projection) necessarily

distorts the physical reality being depicted . Fortunately, i t

is not necessary to explore in depth the subject of cartography,

nor would the evidence support such findings in any event. It

is sufficient to find that, whether delineated on a paper map or

in the NFHL, the flood lines depicted on a FIRM are not perfect

representations of the " true lines " ÏÏ i.e., the line s that we

would see if FEMA actually painted the flood zone boundaries on

the face of the Earth ( which it doesn ' t, of course).

6. Th e issues in this case require a look at the accuracy

of competing deli neations of the relevant flood line transecting

the Property, namely that between VE - 13 and VE - 15. For purposes

of this discussion, " accuracy " will denote the relationship

between a particular delineation of the line under consideration

( for example , the NFHL line) and the True Line , where " True

Line " means the line as it would appear on a survey if we were

able to take the mean of multiple surveyors ' delin eation s of the

foundational FIRM data. Here , needless to say , the True Line is

only a construct , but the evidence is sufficient to permit the

undersigned, as fact - finder, to imagine its location in relation

to the several lines at issue , as will be explained below . The

closer a given delineation can be said to approach the True

Line , the g reater its accuracy.

7. Section 122 - 3(e) of the Monroe Count y Land Development

Code ( " LDC " ), which requires the submission of an elevation

certificate during the course of construction, provides as

follows:

[U]pon placement of the lowest horizontal

structural members of the lowest floor,

. . . it shall be the duty of the permit

holder to submit to the Building Official a

certification of the elevation of the . . .

lowest portion of the lowest horizontal

stru ctural members of the lowest floor

within V zones . . . as built in relation to

mean sea level. Such certification shall be

prepared by or under the direct supervision

of a registered land surveyor or

professional engineer and certified by the

same. . . . Any work done within the 21 - day

period and prior to submission of the

certification shall be at the permit

holder ' s risk. The Building Official shall

review the floor elevation survey data

submitted. Deficiencies detected by such

review shall be correc ted by the permit

holder immediately and prior to further

progressive work being permitted to proceed.

Failure to submit the survey or failure to

make the corrections required hereby shall

be causes to issue a stop - work order for the

project.

8. Pursuan t to section 122 - 3(e), the Landowner caused an

elevation certificate to be prepared, on its behalf, by a

surveyor named Eric Isaacs, who drafted the document (the

" First EC " ) and sealed it on February 21, 2018. The First EC

states: (i) in Item B9, that t he relevant Base Flood Elevations

( " BFE " ) for the SFR are VE - 13 and VE - 15; (ii) in Item B10, that

the source of the BFEs is the FIRM ; and (iii) in Items B6

and B7, that the date of the rele vant FIRM is February 18,

2005. 1 /

9. In the Comments box on page 2 of the First EC,

Mr. Isaacs included the following statement:

According to [the plans] created by Carl H.

Schror, a Florida licensed professional

engineer, dated Oct . 2015, and on file with

Monroe County, the [SFR] is located entirely

in the VE 13 Flood Zone. Per Carl H.

Schror, flood lines shown on said [plans]

were derived from a boundary survey

completed by Harold L. Overbeck, revision 2 -

2 - 2007.

(All caps text in original converted to sentence case for

readability.) A note inscribed on the As - Built Foundation

Survey, which Mr. Isaacs prepared and attached as an exhibit to

the First EC, states that the " HOUSE IS 100% IN THE VE 13 FLOOD

ZONE PER PAUL LIN. " To make a very long story short, Paul C.

Lin, Ph.D., P.E., is an engineer who in November 2007 performed

a hydraulic engineering analysis of the Landowner ' s proposed

swimming pool, which report includes a diagram ( " Figure 3 " )

depict ing the VE - 13/VE - 15 flood line ( the " Lin Line " ) as shown

in a site plan (which is not in evidence ) prepared by D ' Asign

Source , the architectural firm originally retained to work on

the SFR project . A later version of the D ' Asign Source site

plan ( the " D AS Plan " ) was submitted to the County ' s Building

Department in or around January 2009 as part of the Landowner ' s

application for a building permit for the original SFR design

( " D AS Ho use " ) . 2 /

10. In sum, the First EC stated (i) that the SFR is

located in both the VE - 13 and VE - 15 flood zones, according to

Mr. Isaacs ' s delineation of the relevant FIRM data (the " Isaacs

Line " ) 3 / ; and (ii) that the SFR is entirely within the VE - 13

flood zone, according to Mr. Schror ' s site plan (the " Schror

Plan " ) , whose VE - 13/VE - 15 flood line (the " Schror Line " ) w as

purportedly " derived from " the VE - 13/VE - 15 flood line as

delineated by surveyor H arold L. Overbeck (the " Overbeck Line " ) .

11. The First EC refers, directly or indirectly, to no

fewer than four delineations of the relevant flood line, so it

will be helpful to pause for a recap. The four lines are:

(i) the Isaacs Line, a n independent, primary source which is not

depicted in the First EC but which stands behind Mr. Isaacs ' s

opinion that , in his best judgment, the SFR is in both the VE - 13

and VE - 15 flood zones; (ii) the Schror Line , which is described

as a secondary or derivative source dependent upon the accuracy

of an underlying primary source ; (iii) the O verbeck Line,

which is presented as a n i ndependent, primary source (for the

Schror Line); and (iv) the Lin Line, which is cited as a n

independent, primary source for the VE - 13/VE - 15 boundary shown

in Mr. Isaacs ' s As - Built Foundation Survey. As mentioned above,

however, the Lin Line is not, in fact, a n independent, primary

source, but rather was copied from the " owner review " version of

the DAS Plan . For simplicity ' s sake, it will be assumed herein

that the Lin Line is identical to the VE - 13/VE - 15 boundary as

depicted in the final, approved DAS Plan (the " DAS Line " )

because any differences between the two are immaterial to the

disposition . Thus, then, to be clear, contrary to the statement

in the First EC, the Lin Line is actually a secondary, dependent

source; the primary (and possibly independent) source behind it

is the DAS Line, which is not mentioned in the First EC.

12. While the existence of so many lines is potentially

confusing, one simple truth is crystal clear: as a matter of

logic, the SFR is either partially w ithin VE - 15 as that zone is

circumscribed by the True Line, or it is not. By making

inconsistent statements about the applicable flood zone(s) , the

First EC hoist ed a bright red flag , which the County could not

ignore. The only way to resolve the factual question of whether

the SFR is , or is not, partially within the VE - 15 zone , which

the Landowner itself raised in the First EC , requires that a n

ultimate determination be made regarding which delineation of

the relevant boundary line , of those available, is the most

accurate . W hether the SFR can be deemed an illegal structure

based upon this factual determination is a separate, legal

issue. Care must be taken not to conflate these two related but

distinct issues.

1 3 . As noted above , i n preparing the First EC, Mr. Isaacs

consulted the NFHL to delineate the FIRM flood line. T he

undersigned will refer to the relevant NFHL VE - 13/VE - 15 boundary

line (the one which crosses the Property) as the " Digital Line . "

The Digital Line reflects the current gold standard as far as

locating the flood zone boundary is concerned . Because the NFHL

exists in an electronic format, the flood zone boundaries

depicted therein can be overlaid on a survey using computer

technology, which reduces opportunities f or introducing error.

T he evidence is overwhelming that no reasonable professional

preparing a survey of the Property in 2019, ab initio, would

rely upon t he paper FIRM in stead of the NFHL for purposes of

delineating flood zones. In this analysis, the refore, for

purposes of evaluating the accuracy of competing flood zone

delineations, the Digital Line is accepted as an adequate

approximation of the True Line , despite its somewhat smaller

scale in relation to the various site surveys in evidence. 4 /

1 4 . The County received the First EC on or around May 14,

2018. The Building Official, Rick Griffin, initially approved

the certificate on June 7, 2018, finding that it " complies with

the permit conditions, " but he later reconsidered, ordering that

the decision on the First EC be changed to " failed, " effective

July 10, 2018. As recorded in the inspector notes, which are

part of the permit file, the reason for this reversal was that

" the elevation certificate has two flood zones and the home will

not com ply with the VE 15 flood zone requirements. "

1 5 . Having found the First EC deficient, the Building

Official issued a stop - work order for project, dated July 10,

2018. The stop - work order stated that, " in order to comply, "

the Landowner would need to demo nstrate that the SFR , " including

projections (roof, balcony, etc.) , " is " not within the VE 15

Zone . "

1 6 . In response to the stop - work order, the Landowner

submitted a revised certificate of elevation, dated July 27,

2018 (the " Second EC " ). Again prepared by Mr. Isaacs, the

Second CE is nearly identical to the First CE, except that it

state s : (i) in Item B9, that the BFE for the SFR is VE - 13; and

(ii) in Item B10, that the source of the BFE is " HAROLD OVERBECK

SURVEY DATED 02 - 02 - 2007. " Moreover, t he note in the Comments

box on page 2 ha s been amended as follows:

According to [the plans] created by Carl H.

Schror, a Florida licensed professional

engineer, dated Oct. 2015, and on file with

approved by Monroe County, the [SFR] is

located entirely in the VE 13 Flood Zone.

Per Carl H. Schror, flood lines shown on

said [plans] were derived from a boundary

survey completed by Harold L. Overbeck,

revision 2 - 2 - 2007.

(All caps text in original converted to s entence case for

readability; words stricken are deletions and words underlined

are additions.) The As - Built Foundation Survey was not

attached.

1 7 . So, the Landowner did not discredit the evidence in

the First EC show ing that the house is located partially within

VE - 15. Nor was any new information submitted to prove that the

house is exclusively in VE - 13. Rather , in the Second EC , all

evidence contradicting the assertion that the SFR is entirely in

zone VE - 13 was simply scrubbed .

18. This removal of relevant data reflects the legal

argument underlying the Second EC , which runs like this. The

County imputed controlling authority to the Schror Plan when , at

times in 2017 , it approved revisions to the building permit

authorizing the construction of Carl H. Schror ' s redesign of the

SFR (the " C - Schror House " ) in place of the originally permitted

DAS House. The Schror Line depicted in the Schror Plan,

according to the Second EC, was " deri ved from " the Overbeck

Line. The Overbeck Line ÏÏ so the argument goes, although this is

not represented in the Second EC ÏÏ served as the basis for the

DAS Line shown in the DAS Plan. The DAS Plan was submitted to

the County ' s Building Department in 2009 as part of the permit

application , which the County granted when it issued the

original building permit in 2010. Thus, the argument concludes,

the DAS Plan is the " permitted " site plan and, by extension, the

DAS Line depicted therein is the " permitted " VE - 13/VE - 15 flood

line , which the County must honor, as a matter of law,

throughout the life of the building permit . Furthermore,

because the Overbeck Line was purportedly the source of the DAS

Line, the Landowner contends that the County is precluded by law

from relying upon a different source in determining the SFR ' s

BFE(s) .

19. As convoluted as this argument might appear at first

blush, it is premised on the not unreasonable notion that the

Landowner should have the right t o carry out t he construction of

the SFR pursuant to the building permit, which would not be

possible if the County were now to find, based on a delineation

of the Digital Line , that the house is partially within the

VE - 15 zone. The argument is complicated by the fact that the

C - Schror House currently being built is not in the same location

as the originally permitted DAS House, and by the fact that the

C - Schror House has a different footprint from the DAS House.

But it is not wholly without merit.

20. It is a mistake , however, to blur the distinction

between (i) the factual question of what the BFE(s) for the SFR

actually are based on the most persuasive evidence available

with (ii) the legal question of whether the County is required

by law ( be it unde r a " vested right s " theory or b ecause of

administrative finality) to honor the DAS Line or the Overbeck

Line in determining the BFE(s) for the SFR . For one thing, it

would not be necessary to reach the second issue if, based on

all the evidence, the C - Schror House were found as a matter of

fact to be exclusively within the VE - 13 zone . For another, even

if the C - Schror House were found to be in both the VE - 13 and

VE - 15 zones; and even if, further, the County were legally bound

to apply the DAS Line/Overbeck Line in determining the BFE so

that the elevation certificate would have to be approved with a

BFE based on VE - 13, the relevance of the fact that the SFR is

partially in the VE - 15 zone would subsist , nevertheless,

because, in that event, the house would be a nonconforming,

albeit legal, structure , which is a material classification .

21. The Landowner invited the County to treat these

factual and legal issues as one and sidestep the question of

fact regarding the applicable VE zone(s). Accepting the

invitation , the County bought into the Landowner ' s legal

argument that the Overbeck survey , as the " permitted "

instrument, controls the BFE determination notwithstanding the

existence of persuasive evidence showing that the Overbeck Line

is less accurate than other available delineation s of the

Digital Line, and despite th e fact that the 2007 survey ' s margin

of error is such that its use as the source of flood zone data

for the Property might lead to clearly erroneous results . Once

the Building Official had decided that the County is legally

constrained to apply the Overbeck Line, he was compelled to

approv e the Second EC on that basis. A note in the permit file

summarizes this decision and the grounds therefor as follows:

7 /30/18: Passed per B uilding O fficial

discussion with C ounty A ttorney. This SFR

is compliant with the flood zone determined

at the time of permitting to be a VE 13,

based on the flood zone overlay done by

surveyor H arold O verbeck in 2007.

(All caps text in original converted to sentence case for

readability.)

22. With the Second EC now " passed, " the Building Official

lifted the July 10, 2018, stop - work order. These are the

administrative actions that the Neighbor has contested in this

appeal.

23. Because the County accepted the Landowner ' s legal

theory that the Overbeck Line conclusively establishe s the

VE - 13/VE - 15 boundary for the Property , the Building Official

never exercised his authority (nor, arguably, executed his duty)

to independently interpret the FIRM to determine exactly where,

in his best judgment, this particular flood line lies on the

Property. As a result , while it is probab le that , in appeals

under section 122 - 9 , the Building Official ' s delineation of a

flood line should be reviewed under one deferen tial standard or

another, there is no such determination by the Building Official

in this case for the undersigned to review. Thus, the

undersigned must decide de novo the as yet unresolved disputed

factual question of whether the SFR is, or is not, partially

within the VE - 15 zone ; in this regard , the undersigned will not

be substituting his judgment for that of the Building Official,

because the Building Official did not exercise his judgment in

this regard.

24. This dispute is not really difficult to decide . The

2007 survey that contains the Overbeck Line was prepared by

Mr. Overbeck for a prior owner of the Property. Mr. Overbeck

was deceased as of the final hearing, but even without the

surveyor ' s testimony, the evidence establishes that he derived

the Overbeck Line from the paper FIRM , drawing it by hand on the

surv ey . This was a standard practice at the time, when the NFHL

was not available to (or at least not readily accessible by)

private surveyors in Monroe County. Because of the scale at

which the paper map is rendered (1" : 500') , there exists some

room for int erpretation when " scaling distances " for purposes of

transposing FIRM data into a boundary survey at a scale of, in

this instance, 1" : 60' . Without going into unnecessary detail,

the undersigned finds that the Overbeck Line is within the

professionally acceptable margin of error for its time, place,

and method of creation; in other words, the Overbeck Line is

close enough to the Digital Lin e to be considered reasonably

accurate by 2007 standards of professional surveying practice.

25. Measured against today ' s standards, however, the

Overbeck Line comes up short . The greater weight of the

evidence establishes clearly , and the undersigned fi nds, that

the Overbeck Line is not the most accurate available delineation

of the VE - 13/VE - 15 boundary on the Property. When tasked with

platting the exact location of this l ine according to their own

best judgment, professionals on rival sides of this case have

reached the same result, namely that the VE - 13/VE - 15 boundary

transects the SFR. Whether the Boehning Line (by the Neighbor ' s

engineer ) or the Isaacs Line (by the Landowner ' s surveyor) is

the more accurate makes no difference , as each professional,

after independently delineating the Digital Line to the best of

his ability, opined that the SFR is partially within the VE - 15

zone. The undersigned credits these opinions, and determines,

as a matter of ultimate fact, that the SFR is located in both

the VE - 13 and VE - 15 flood zones, just as Mr. Isaacs stated in

the First EC.

26. This does not settle the matter, for , as we have seen,

t he Landowner does not stake its case on the Overbeck Line being

found the most accurate rendering of the VE - 13/VE - 15 boundary.

There remains for decision the legal question of whether the

Landowner has the right to complete the construction of the

C - Schror House as though it were 100% in th e VE - 13 zone , because

it was determined " at the time of permitting , " based on the

Overbeck Line, that the DAS House is entirely in VE - 13. The

undersigned determine s questions of law de novo . 5 /

27. T he Landowner has grounded its legal position on the

doctrine of administrative finality, which is a kind of quasi -

judicial res judicata. The Building Official , however, did not

rely upon administrative finality to support his decision to

approve the Second EC. Rather, Mr. Griffin claimed to have

foll owed a somewhat vague and evidently unwritten " policy " to

" respec t " the prior decision to issue the building permit , which

policy required him to hew to the flood line that " was permitted

at the time " ÏÏ namely, the Overbeck Line. Mr. Griffin explained

the rationale behind this " policy " as follows:

[A]s we go through the years, we ' re seeing

different changes in FEMA. The new one is

going to be we have a 1 - foot freeboard now

that we require all new building s to be

1 foot [above the BFE]. So what does that

do with everything that ' s been permitted

back then. It ' s nonconforming now.

Well, I can ' t go out and say, " Hi, guys, we

changed the code. Now you have to go up

another foot. "

Tr. 967.

28. Although Mr. Griffin did not describe it in these

terms, the policy he applied is properly understood as the

doctrine of vested rights, which under some circumstances

prevent s a local government from imposing a requirement while

construction is ongoing that would materially alter the

c onditions set forth in the previously iss ued building permit .

Mr. Griffin erred as a matter of law in deciding that the

Landowner has the right, by virtue of the building permit, to

preclude the County from ascertaining the SFR ' s BFE s using any

data other than the Overbeck Line . This is because, as will be

discussed below, the Building Official does not have the

authority to make a vested rights determination. Rather,

c hapter 102, article IV, division 3, of the LDC prescribes a

proce dure whereby a permittee may apply for a vested rights

determination , be afforded a special magistrate hearing, and

obtain a final decision from the Board of County Commissioners

("BOCC") . Because this procedure was not followed, and because

section 122 - 9 does not confer upon the undersigned any authority

to make a vested rights determination, no further findings of

fact need be made in connection with the so - called " policy " of

respecting building permits.

29. In contrast, additional finding s are required to

dispose of the contention that administrative finality limits

the County ' s options concerning the necessary BFE

determinations. The first order of business is to figure out

what the County actually decided when it issued the building

permit in 2010.

30. This is not as easy as it might seem, because the

County did not issue a written decision, as such, setting forth

its findings and conclusions. The current Building Official,

Mr. Griffin, did not hold the post then, nor was he a County

empl oyee at the t ime , and his predecessor did not testify. In

fact, no one directly involved in the County ' s 2010 permit

approval decision , including D ' Asign Source personnel , gave

testimony . Somewhat incredibly , t he much talked about Overbeck

survey is not in the County ' s file, an absence for which no

e xplanation was offered. N or does the DAS Plan mention the

Overbeck survey. As a result, there is no direct evidence , and

little circumstantial evidence, that the County even saw the

Overbeck survey in 2010 . What we know are the undisputed facts

that , in 2010, the County approved the DAS Plan and issued a

building permit for the DAS House.

31. The parties ' more recent conduct sheds light on their

practical understanding of the prior permitting decision ' s

preclusive effect s, or lack thereof . P articularly probative are

the act ions of the parties that took place before the instant

controversy arose. In 2017, as has been mentioned, the

Landowner sought, and the County approved, se veral revisions to

the building permit. The background, b riefly , is that the

Landowner decided to have the DAS House redesigned, and in 2015

hired the engineer Carl Schror to do the work , which he did .

Mr. Schror came up with the C - Schror House, which differs from

the DAS House , among other ways, in width and length , back deck

design , and pool location ; in short, while the C - Schror House is

similar to the DAS House, it is a new creation. Moreover,

Mr. Schror ' s plans placed the C - Schror House in a different

location on the Property, closer to the Atlantic Ocean than the

DAS House would have sat had it been built according to the DAS

Plan as permitted in 2010.

32. The Schror Plan wa s based up on, and incorporates,

Mr. Isaacs ' s November 9, 2015, surv ey, a fact which is stated on

the face of the plan documents themselves . The County ' s

approval of the Schror Plan tells us that , in 2017, neither the

County nor the Landowner believed itself to be bound by the

Overbeck survey in its entirety ( because otherwise , of course,

the Isaacs survey could not have been used for any purpose ) .

Thus, it is not reasonable to infer that the County ' s 2010

permitting decision established with finality the authority of

the Overbeck survey as the d efinitive or " official " survey of

the Property for the life of the building permit.

33. Consider, i n addition, that although the Schror Plan

expressly takes advantage of t he November 9, 2015, Isaacs

survey, it does not utilize ( and fails plainly to disclose the

omission of) the Isaacs Line , which is a significant feature of

the referenced Isaacs survey. ( According to t he Isaacs Line,

recall, the C - Schror House is partially within the VE - 15 flood

zone. ) Nor, however, does the Schror Plan utilize the original,

unmodified Overbeck Line. In stead, in the Schror Plan , the

VE - 13/VE - 15 boundary is delineated by the Schror Line, which is

(according to Mr. Schror himself) a synthesis of the Overbeck

Line, the DAS Line, and the Lin Line. Because the Lin Line is

simply a copy of the DAS Line, however, and is therefore devoid

of original information content, the Schror Line is really an

amalgam of the Overbeck and DAS Lines.

34. This brings us to an important point, which the

Landowner t ends to gloss over. The Overbeck Line and the DAS

Line are similar but not identical. To be sure, a lthough no one

from D ' Asign Source testified at hearing, it is reasonable to

infer from this similarity that the DAS Line was likely " based

on " or " derived from " the Overbeck Line in the sense that the

D ' Asign Source professionals likely used the Overbeck survey as

a reference in preparing the DAS Plan and locating the DAS Line .

But , at bottom, the Overbeck Line and the DAS Line are different

lines.

35. L ikewise, the Schror Line, despite having been

deliberately derived from the Overbeck and DAS Line s , is a

unique line in its own right. The County ' s approval of the

Schror Line tells us that , in 2017, neither the County nor the

Landowner believed itself to be strictly bound by either the

Overbeck Line or the DAS Line . Thus, it is not reasonable to

infer that the County ' s decision in 2010 to issue a building

permit for the DAS House , as shown in the DAS Plan , established

with finality the authority of the O verbeck Line (which is not

even depicted in the DAS Plan) as the definitive VE - 13/VE - 15

boundary for the Property .

36. Indeed, given the fact that the Overbeck Line and the

DAS Line are not the same line , and in light of the absence of

any persuasive evidence that the County, in 2010, actually chose

one of these lines as the controlling VE - 13/VE - 15 boundary for

the Property, speculation is required to state that the flood

zone was " determined [to be VE - 13 ] at the time of permitting "

" based on the flood zone overlay done by surveyor Harold

Overbeck in 2007 . " S uch a determination about the flood zone

likel ier would have been based , were one made (which was not

proved) , on the DAS Plan, which (unlike the Overbeck survey)

was, without question, seen and approved by the Building

Official in 2010. Yet, for some reason, the Landowner cited the

Overbeck survey, not the DAS Plan, as the authoritative source

for the flood zone and BFE determinations in the Second EC.

37. W itho ut engaging in speculation , it is reasonable to

infer, and the undersigned finds, that when the Building

Official approved the DAS Plan in 2010, he accepted as credible

the relatively narrow expert opinion (as it relates to the flood

zone) reflected therein , namely that the DAS House, if built

according to the DAS Plan, would be 100% in the VE - 13 zone as

defined by the DAS Line (the " DAS Opinion " ). The DAS Opinion

was not conditional in that it did not depend upon a

presupposition about the location of the flood line; instead

of deferring to someone else ' s delineation , in other words,

the DAS Opinion attested that, in the professional opinion of

the D ' Asign Source engineer (s) /architect (s) responsible for

the plans, the DAS Line reflects the exact location of the

VE - 13/V E - 15 boun d ary. The DAS Opinion also was not generally

applicable in that it did not purport to determine the flood

zone(s) for a ny other house in any other location . If the

2010 permitting decision h as any preclusive effect vis - à - vis

flood zone issues, it is to establish conclusively that the DAS

Opinion is correct.

38. The County never changed its mind about the DAS

Opinion , which became irrelevant , anyway, when the Landowner

chose to abandon the DAS Plan and build the C - S chror House

pursuant to the Schror Plan instead. No r, it should be stated,

has any expert opinion comparable to the DAS Opinion ever

been provided regarding the C - Schror House. Not a single

professional, including the Building Official, has expressed

the unconditional opinion that the C - Schror House , if built

according to the Schror Plan, will be 100% in the VE - 13 zone

using the flood line delineation that, in the professional ' s own

independent judgment , best reflects the exact location of the

VE - 13/VE - 15 boundary. What we have , instead, are opinions that

the C - Schror House will be 100% in the VE - 13 zone , provided the

Overbeck Line (or a similar line derived therefrom or based

thereon) is presupposed to be the definitive VE - 13/VE - 15

boundary ÏÏ opinions which , put another way , stop short of

attesting that, in the maker ' s professional judgment , the

Overbeck Line best reflects the exact location of the

VE - 13/VE - 15 boundary .

39. It is ultimately determined that the County did not

make any decision in 2010 conclusively establish ing th at the

C - Schror House is located 100% with in the VE - 13 flood zone .

CONCLUSIONS OF LAW

40 . Ju risdiction in this proceeding comes from

section 122 - 9(a), which provides that DOAH " shall have the

authority to hear and decide appeals from administrative actions

regarding the floodplain management provisions of this Land

Development Code. "

41. A threshold question is whether the term " appeal , " as

used in section 122 - 9 , was intended to rest rict the scope of

decision to a mere review of prior administrative actions , or

rather connotes a full fact - finding hearing . If the latter,

appeals under section 122 - 9 would be akin to those under

s ection 102 - 185(a) of the LDC , which authorizes the Planning

Commission " to hear and decide appeals from any decision,

determination or interpretation by any administrative official

with respect to the provisions of [the LDC] . . . except

for . . . appeals from administrative actions regardin g the

f loodplain management provisions . " When the Planning Commission

has jurisdiction over a n appeal arising under section 102 -

185(a), that body must hold a public hearing at which " all

parties to the appeal shall have the opportunity to present

evidence and create a record. " § 102 - 185(e) , Monroe Cnty.

Land Dev. Code . In other words, when acting pursuant to

section 102 - 185, the Planning Commission must afford the parties

to the appeal an evidentiary hearing to resolve disputed facts.

42. The Pl anning Commission ' s appellate decision is,

in turn, appealable to a hearing officer pursuant to

section 102 - 185(f). Appeals under section 102 - 185(f) are

governed by sections 102 - 213 through 102 - 220 of the LDC . It is

plain from these provisions that a hearing officer appeal is a

traditional review - type proceeding, based on a closed

evidentiary record (from the Planning Commission appeal),

involving formal briefs and an oral argument. The hearing

officer ' s appellate decision, when issued, constitutes " t he

final administrative action of the county. " § 102 - 218(c),

Monroe Cnty. Land Dev. Code.

43. In contrast to appeals under section 102 - 185 and

sections 102 - 213 through 102 - 220, appeals from administrative

actions regarding floodplain management are not subject to

explicit provisions contemplating, respectively, an evidentiary

hearing (Planning Commission) or a briefing schedule followed

by an oral argument (hearing officer). Section 122 - 9(e) gives

the only description of the nature of the proceeding, a nd it

states simply that " DOAH shall consider the appeal pursuant to

Rule 28 - 106.201(3) F.A.C . " The referenced rule governs the

referral to DOAH of petitions for hearings involving disputed

issues of material fact pursuant to sections 120.569 an d

120.57(1), Florida Statutes.

44. The directive to follow Florida Administrative Code

R ule 28 - 106.201(3) persuades the undersigned (in the absence

of clear instructions to the contrary) that appeals under

section 122 - 9 are meant to afford parties an opport unity to

present evidence and create a record, in the same way that

appeals to the Planning Commission under section 102 - 185 provide

such an opportunity.

45. Another sign that appeal s , such as this , afford an

opportunity to try disputed issues of fact, de novo, is the lack

of any prescribed standards of review in section 122 - 9. That

said, however, the undersigned doubts that , in enacting

section 122 - 9, the County intended to authorize administrative

law judges to second - guess a decision - maker, such as the

Building Official, with respect to matters of policy or

discretion which the LDC specifically commits to the judgment of

the local officer. Thus, if the Building Official, based on his

own examination and interpretation of the NFHL, had determined

where, in his best , independent judgment, the exact location of

the VE - 13/VE - 15 boundary falls on the Property, then the

undersigned most likely would have reviewed that decision to

determine whether, in light of the material facts as established

by the competent substantial evidence adduced at hearing, such

delineation was clearly erroneous ÏÏ and upheld it if not. But

the Building Official did not do that.

46. Section 122 - 9(b) provides that " [a]n appeal may be

initiated by an owner, applicant, adjacent property owner, any

aggrieved or adversely affected person, . . . or any resident of

real property, from administrative actions regarding the

floodplain management provisions of this Land Development Code. "

As the adjacent property owner, the Neighbor has standing to

contest the actions at issue.

47. The Neighbor has the burden of proof as regards the

case in opposition to the approval of the Second EC and the

lifting of the stop - work order secondary to such approval. Cf.

§ 120.569(2)(p), Fla. Stat.

48 . The Landowner, however, has the burden of proving that

issue preclusion bars the County or the Neighbor from disputing

the truth of the Overbeck Line as the authentic VE - 13/VE - 15

boundary. This is because, like res judicata, administrative

finality is an affirmative defense. See, e.g. , Hoke v.

Ft. Lauderdale Bd. of Adjustment , 486 So. 2d 698, 699 (Fla. 4th

DCA 1986)(burden of proving that issue has been conclusively

determined in prior final order lies with party taking that

position); Shirley v. Shirl ey , 100 So. 2d 450, 452 (Fla. 2d

DCA 1958)( " One who invokes and relies on a defense that a former

adjudication was res judicata by issues raised has the burden of

proof to establish the former adjudication. " ). " If there is any

uncertainty to the matter formerly adjudicated, the burden of

showing it with sufficient certainty by the record or

extrinsically is upon the party who claims the benefit of the

former judgment. " Coleman v. Coleman , 157 Fla. 515, 26 So. 2d

445, 520 ( 1946).

49. To support a findin g of fact , evidence must meet the

preponderance standard. § 120.57(1)(j) , Fla. Stat .

50. The parties agree that the undersigned has final order

authority in this matter . The undersigned concurs and concludes

that, although section 122 - 9 does not specif ically address the

point, such authority may be reasonably inferred from th e

absence of any language directing that a recommendation be

issued to another decision - maker having final order authority .

51. Vested Rights. Generally speaking, the possession

of a building permit does not create a vested right unless there

are " circumstances which would give rise to equitable estoppel. "

Boynton Beach v. Carroll , 272 So. 2d 171, 173 (Fla. 4th

DCA 1973). The exception reflec ts a common law rule called the

doctrine of vested rights, which

limits local governments in the exercise of

their zoning powers when a property owner

relying in good faith upon some act or

omission of the government has substantially

changed position or incurred such

excessive obligations and expenses that it

would be highly inequitable and unjust to

destroy the rights that the owner has

acquired.

Key West v. R.L.J.S. Corp. , 537 So. 2d 641, 644 (Fla. 3d DCA

1989). As the court further explained:

The usual vested right claim involves a

change of mind, a broken promise: a city

issues a building permit imposing one

requirement and in the course of

construction imposes a different

requirement. In a sense, the building

permit assures the builder that he may go

forward and build in accordance with the

approved plans. When a new building

requirement is thereafter imposed, it can be

readily said that the city had changed its

mind and that the rights vested in the

builder by virtue of the permit have bee n

unfairly disturbed.

Id. at 646.

5 2 . The County has codified the doctrine of vested rights

in sections 102 - 134 through 102 - 137 of the LDC. Section 102 -

134(a) provides that, " [n]otwithstanding any other provision

of this Land Development Code, an appli cation for a permit may

be approved if an applicant has demonstrated development

expectations that are vested under the standards of section 102 -

136. "

5 3 . Section 102 - 135 prescribes the procedure for

determining a claim of vested rights:

An applicant for vested rights determination

will be afforded a quasi - judicial,

evidentiary hearing in front of a special

magistrate who will make a proposed

determination and a statement of what rights

are vested. Interested persons will be

afforded the opportunity to a ppear and

introduce evidence and argument for or

against the determination during the

evidentiary hearing. The special

magistrate ' s proposed determination shall be

forwarded to the BOCC for final approval.

5 4 . Section 102 - 136 sets forth the standards an d criteria

that a special magistrate must consider in deciding whether an

applicant has acquired vested rights in its development

expectations. These criteria correspond generally to the

familiar principles of equitable estoppel.

5 5 . The County ' s vers ion of the vested rights doctrine is

focused on guarding reasonable development expectations against

changes in the governing law that might be enacted during the

life of a building permit or other unexpired official act. The

Landowner ' s situation is , of course, a little different, in that

the pertinent County codes have not changed in any way material

to the issues at hand. Thus, if the Landowner were to file an

application for a determination of vested rights, the County

might reject it as unauthor ized. That question, however, is for

the County to decide in the first instance . 6 /

5 6 . The point is, the County makes available a full - blown

administrative remedy for the protection of vested development

rights; the codified procedure includes a de novo hearing before

an impartial magistrate; and the ultimate decision - maker

responsible for approving or rejecting such a claim is the BOCC.

Obviously, the County does not want the Building Official, or

anyone else for that matter, making a unilateral, summa ry

decision on the fact - intensive question of whether an owner has

the vested right to continue building a project that no longer

conforms to all applicable codes.

5 7 . The Building Official ' s jurisdiction and

responsibilities are spelled out in section 6 - 55(c) of the LDC ,

and they include, among others, the following duties :

(17) To verify and record the actual

elevation (in relation to mean sea level) of

the lowest floor (including basement) of all

new or substantially improved structures;

* * *

(20) To make interpretations, as needed, as

to the exact location of boundaries of the

areas of special flood hazard ;

(21) When base flood elevation data has not

been provided in accordance with chapter

122, to obtai n, review and reasonably use

any base flood elevation data available from

a federal, state or other source in order to

administer the floodplain management

provisions of the code.

§ 6 - 55(c), Monroe Cnty. Land Dev. Code (emphasis added) . 7 /

N owhere in section 6 - 55(c), or elsewhere in the code, is the

Building Official charged with determining a party ' s vested

rights.

5 8 . Wh en the Building Official approved the Second EC , he

did so on the authority of his own conclusion that the County is

precluded from l ocat ing the SFR in any flood zone other than

VE - 13 because " at the time of permitting " it was " determine d "

that VE - 13 is the flood zone for the SFR according to the

Overbeck Line. This was tantamount to a determination by the

Building Official that the Landowner has acquired vested rights

in a particular flood line and in a particular flood zone ÏÏ

rights that were not affected even by changes in the structure ' s

design and location, which were made years after the " time of

permitting. " Because th e LDC does not grant the Building

Official the authority to determine whether or when an owner ' s

rights have vested on account of having demonstrated reasonable

development expectations whose destruction would be highly

inequitable and unjust , the Building Official ' s decisions to

approve the second EC and lift the stop - work order pursuant to

such determination are ultra vires and void ab initio. See

Corona Properties of Fla., Inc. v. Monroe Cnty. , 485 So. 2d

1314, 1317 (Fla. 3d DCA 1986).

5 9 . Like the Bu ilding Official, the undersigned is without

jurisdiction to decide whether, under the doctrine of vested

rights, the County is estopped from imposing upon the Landowner

the consequences that follow from a determination that the SFR

is, in fact, in the VE - 1 3 and VE - 15 flood zones. The refore, the

undersigned must lastly decide only whether the doctrine of

administrative finality affords the Landowner any relief.

6 0 . Administrative Finality. Administrative finality, a

doctrine which is analogous to res judicata, holds that " orders

of administrative agencies must eventually pass out of the

agency ' s control and become final and no longer subject to

change or modification. " Austin Tupler Truckin g v. Hawkins ,

377 So. 2d 679, 681 (Fla. 1979); Delray Med. Ctr. v. Ag. for

Health Care Admin. , 5 So. 3d 26, 29 (Fla. 4th DCA 2009)( " In the

field of administrative law, the counterpart to res judicata is

administrative finality. " ); see also Reedy Creek Util s. Co. v.

Fla. Pub. Serv. Comm ' n , 418 So. 2d 249, 254 (Fla. 1982)( " An

underlying purpose of the doctrine of [administrative] finality

is to protect those who rely on a judgment or ruling. " ).

6 1 . The type of administrative finality (claim preclusion)

that bars a new proceeding on a prior final agency action is not

applicable here because the approval of an elevation certificate

is a new agency action, separate and distinct from the 2010

decision to issue a building permit. Possibly implicated,

instead, is another kind of finality known at common law as

collateral estoppel, estoppel by judgment, or issue preclusion.

Collateral estoppel operates to preclude parties from litigating

issues ( " that is t o say points and questions " ) that were

actually adjudicated with finality in a previous suit, even

though the earlier case involved a different cause of action.

See Deep Lagoon Boat Club, Ltd. v. Sheridan , 784 So. 2d 1140,

1142 n.4 (Fla. 2d DCA 2001). Ad ministrative finality comprises

both the doctrines of res judicata (claim preclusion) and

collateral estoppel (issue preclusion). Id. ; see also Felder

v. Dep ' t of Mgmt. Servs. , 993 So. 2d 1031, 1035 (Fla. 1st

DCA 2008)( " [A]dministrative finality is based on principles

similar to those supporting collateral estoppel and res

judicata, except that its emphasis is on litigants ' need to have

confidence in the authority of an administrative order. " ).

6 2 . The doctrine of collateral estoppel " b ars relitigation

of an issue when the following five factors are met " :

(1) an identical issue must have been

presented in the prior proceeding; (2) the

issue must have been a critical and

necessary part of the prior determination;

(3) there must have been a full and fair

opportunity to litigate that issue; (4) the

parties in the two proceedings must be

identical; and (5) the issue[] must have

been actually litigated.

Felder , 993 So. 2d at 1034 - 35.

6 3 . Whether the " identical issue " was presented to the

County in 2010 depends on the level of generality at which the

issue is defined. The Landowner would frame the issue at a high

level of generality: Does the Overbeck Line constitute the

authoritative and controlling VE - 13/VE - 15 boun dary for the

Property? As found above, however, the Landowner failed to

prove that such a broad statement of the issue was presented to

the County at the time of permitting. Indeed, it was not

established, as a matter of fact, that the County even saw th e

Overbeck survey, for a copy thereof was not retained in the

original permit file.

6 4 . Nor was it necessary for the County to decide, as a

predicate for issuing the building permit, that the Overbeck

Line shall be the only line that the County may use in

determining any flood zone - related issue thereafter arising

until the permit expires or is revoked or closed. All that the

County needed to decide , in 2010, as regards the flood zones was

to approve or reject the DAS Opinion that the DAS House would be

1 00% in VE - 13 if built according to the DAS Plan. In issuing

the building permit, the County necessarily approved the DAS

Opinion, from which it may be inferred that the Building

Official at the time deemed the DAS Opinion to be credible and

reliable. Mor e than that cannot reasonably be said without

engaging in speculation.

6 5 . The issue at hand ÏÏ namely whether the C - Schror House

being built according to the Schror Plan is 100% in VE - 13 ÏÏ is

not identical to any issue actually presented or necessarily

decided in 2010. Therefore, the County is not precluded f rom

determining, for purposes of establishing the appropriate BFEs,

whether the SFR under construction is partially within the VE - 15

flood zone, as th e Landowner ' s surveyor Mr. Isaacs found, based

upon the Building Official ' s best judgment as to the exact

location on the Property of the VE - 13/VE - 15 boundary.

6 6 . The undersigned found above, as a matter of ultimate

fact, that the SFR is located in both the VE - 13 and VE - 15 flood

zones. Now , he wants unambiguously to disclaim any intention of

usurping the authority and duty of the Building Official to make

such interpretations of the FIRMs as are required to delineate

the exact locations of particular flo od zone boundaries when

such precision is needed. See §§ 6 - 55(c) & 122 - 2(c), Monroe

Cnty. Land Dev. Code. Should the Building Official wish to

disagree with the undersigned ' s finding regarding the applicable

flood zones, then the Building Official's ab initio

interpretation of the FIRM will be needed. Recognizing that the

Building Official might prefer not to defer to the undersigned ' s

finding that the SFR is partially in VE - 15, this Final Order is

without prejudice to the Building Official ' s exerci se of his

power and duty to delineate the exact location of the VE - 13/VE -

15 boundary on the Property based on his best, independent

interpretation of the FIRM as opposed to the Overbeck survey or

some other secondary source. Of course, such a decision, if

made, would constitute a new administrative action subject to

appeal under section 122 - 9.

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that :

1. Because it is found that the SFR is, in fact, partially

within the VE - 15 flood zone, the Landowner has failed to satisfy

the condition of achieving compliance specified in the July 10,

2018, stop - work order, which is to demonstrate that the SFR is

100% in the VE - 13 flood zon e. The County therefore erred when,

on or about July 30, 2018, it approved the Second EC and lifted

the stop - work order. These administrative actions are ,

accordingly, reversed and vacated.

2. In addition, the administrative actions taken on or

about Ju ly 30, 2018, resulted from the Building Official ' s

exercise of authority he does not possess, i.e., the power to

make veste d rights determinations. These actions therefore must

be , and hereby are, declared null and void.

3 . T he status quo ante is hereb y restored, which means

that the July 10, 2018, stop - work order is once again in full

force and effect, halting further progressive work on the SFR

unless and until the Landowner , in accordance with the stop - work

order, corrects the deficiencies detected b y the Building

Official on review of the First EC .

4 . T his Final Order is without prejudice to the Building

Official ' s power to interpret the FIRM for purposes of

delineat ing his best understanding of the exact location of the

VE - 13/VE - 15 boundary on the Property .

5. The County is not barred by administrative finality

from delineating the exact location of the VE - 13/VE - 15 boundary

on the Property based on the FIRM as opposed to a secondary

source such as the Overbeck survey.

6 . Petitioner Dalk Land, LP. ' s Motion to Compel Payment of

Half of the Transcript Costs, filed on February 22, 2019, is

denied because (i) due to the ambiguity of the offer to " split

the cost " of the transcript, there appears not to have been a

meeting of the minds with regard to the number of originals for

which the parties would jointly pay ; and (ii) in any event, the

undersigned does not have jurisdiction to enforce a private

contract.

7 . Petitioner Dalk Land, LP. ' s Motion to Tax Costs and

Attorneys ' Fees, filed on March 4, 2019, is denied because the

undersigned does not find that the Landowner filed pleadings,

motions, or other papers for an improper purpose.

DONE AND ORDERED this 9th day of April , 201 9 , in

Tallahassee, Leon County , Florida.

S

___________________________________

JOHN G. VAN LANINGHAM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 9th day of April , 201 9 .

ENDNOTES

1 / Section 122 - 2(b)(1) provides that " [t]he areas of special

flood hazard identif ied by the Federal Emergency Management

Agency (FEMA) in its February 18, 2005 Maps with accompanying

supporting data, and any revisions thereof, are adopted by

reference and declared to be a part of [chapter 122 Ï Floodplain

Management], and shall be kept o n file, available to the public,

in the offices of the county Building Department. "

2 / Dr. Lin could not have used the DAS Plan as the basis for

Figure 3, because the earliest " permit set " of the DAS Plan,

dated April 22, 2008, postdates his 2007 work; he necessarily

relied upon whatever iteration of the D ' Asign Source site plan

(likely the October 27, 2007, " owner review " version) was then

extant. Whether the flood zone and other data beh ind the

D ' Asign Source site plans changed between 2007 and June 25,

2009, when the Building Department approved the DAS Plan, is

unknowable based on the current record.

3 / Much earlier, on November 9, 2015, Mr. Isaacs had revised his

boundary survey of the Property (not included with the First EC)

to add approximations of the FEMA flood zone delineation lines

based on the NFHL. As it happens, the Isaacs Line is located

north (i.e., on the landward side) of the NFHL line as rendered

for this case by the Neighbor ' s expert, Stephen Boehning (the

" Boehning Line " ). Thus, under the Isaacs Line, as compared to

the Boehning Line, a larger portion of the SFR falls within the

VE - 15 flood zone.

4 / The scale of the NFHL map of the Property depicting the

Digital Line is one inch equals 100 feet (1" : 100').

Mr. Overbeck's survey is drawn on the larger (i.e., more

detailed) scale of 1" : 60'. Mr. Isaacs's survey is even larger,

at a scale of 1" : 30'. The scale of the DAS Plan is largest,

at 1" : 20'. The smallest scal e (least detailed) map of interest

is the paper FIRM, wherein one inch equals 500 feet.

5 / This is true whether the instant appeal is a standard trial

level proceeding or a mixed trial/appellate proceeding involving

both fact - finding and the review of pr ior decisions for error.

6 / If there were no administrative remedy by which the

Landowner's claim to vested rights could be vindicated, then the

Landowner would not need to exhaust administrative remedies

before seeking judicial relief. To be clear, how ever, the

absence of a n administrative remedy is not a warrant to create

one ad hoc as a means of filling the void, which is what the

Building Official effectively did.

7 / Similar to section 6 - 55(c)(20), section 122 - 2(c) provides

that "the floodplain administrator, in consultation with the

Building Official," shall have the authority to interpret the

FIRMs, as "[r]equired" to ascertain the "precise locations" of

the boundaries of the flood hazard areas shown therein. At all

times material to this case , Mr. Griffin served as both Building

Official and floodplain administrator.

COPIES FURNISHED:

Irain J. Gonzalez , Esquire

Fowler While Burnett , P.A.

1395 Brickell Avenue , 14th Floor

Miami, Florida 33131 - 3306

(eServed)

Daniel C. Fors, Esquire

Fowler Whi t e Burnett, P.A.

1395 Brickell Avenue, 14th Floor

Miami, Florida 33131 - 3306

Steven T. Williams , Esquire

Monroe County Attorney ' s Office

1111 12th Street , Suite 408

Key West , Florida 33 040

(eServed)

Peter H. Morris, Esquire

Monroe County Attorney ' s Office

1111 12th Street, Suite 408

Key West, Florida 33040

(eServed)

Andrew M. Tobin , Esquire

Andrew M. Tobin, P.A.

Post Office Box 620

Tavernier, Florida 33070 - 0620

(eServed)

F. Patterson Willsey, Esquire

401 Camino Alondra

San Clemente, California 92672

NOTICE OF RIGHT TO JUDICIAL REVIEW

Any aggrieved party, including Monroe County, may have appellate

rights with regard to this Final Order. As final administrative

action, this Final Order is subject to judicial review by common

law petition for certiorari to the circuit court in and for

Monroe County, Florida.