86-001496 Department Of Community Affairs vs. Arthur B. Lujan And Florida Land And Water Adjudicatory Commission Status: Closed Recommended Order on Thursday, April 9, 1987.

Summary: Applicant failed to demonstrate that proposed development of Enchanted Island complied with Monroe County Comp. Plan and regulations.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF COMMUNITY AFFAIRS , )

)

Petitioner , )

)

vs. ) CASE NO. 86-1496

)

ARTHUR B. LUJAN, BOARD OF COUNTY )

COMMISSIONERS OF MONROE COUNTY , )

FLORIDA, AND THE PLANNING , )

BUILDING AND ZONING DEPARTMENT )

OF MONROE COUNTY, FLORIDA , )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

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

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

above-styled case on December 15-17, 1986, in Key West, Florida.

APPEARANCES

For Petitioner : Ross S. Burnaman, Esquire

Florida Department of Community Affairs

2571 Executive Center Circle East

Tallahassee, Florida 32399

For Respondent , Robert J. Paterno, Esquire

Arthur B. Lujan: Taylor, Brion, Buker & Greene

1111 South Bayshore Drive, Eleventh Floor

Miami, Florida 33131

For Respondent, Robert Wolfe, Esquire

Monroe County : Assistant Monroe County Attorney

310 Fleming Street

Key West, Florida 33040

PRELIMINARY STATEMENT

This is an appeal, pursuant to Section 380.07, Florida Statutes, to the

Florida Land and Water Adjudicatory Commission (Adjudicatory Commission) from

two development orders of the Monroe County Building and Zoning Department

(Monroe County) which granted the applications of Arthur B. Lujan (Lujan) for a

land clearing permit and fill permit for Enchanted Island, Monroe County,

Florida. The Adjudicatory Commission forwarded the Department of Community

Affair's (Department's) appeal to the Division of Administrative Hearings, and

requested the assignment of a Hearing Officer to conduct a hearing pursuant to

Section 120.57(1), Florida Statutes.

The transcript of hearing was filed February 11, 1987, and the parties were

granted leave, at their request, until March 3, 1987, to file proposed findings

of fact. Consequently, the parties waived the requirement that a recommended

order be filed within thirty (30) days of the date a transcript is filed. Rule

22I-6.31, Florida Administrative Code. Petitioner and Respondent Lujan filed

proposed findings of fact in a timely manner, and they have been addressed in

the appendix to this recommended order.

FINDINGS OF FACT

1. Respondent, Arthur B. Lujan (Lujan) and his wife, Betty L. Lujan, are

the owners of a 34.09-acre parcel of land which includes Enchanted Island and

its surrounding submerged lands. 1/ Enchanted Island is a 3 1/2-acre island

located in Florida Bay to the east of Key Haven and north of U.S. Highway 1,

Monroe County, Florida.

2. On January 15, 1986, Lujan applied to Monroe County for a land clearing

permit and fill permit. The permits, as requested, would have permitted him to

clear, after-the-fact, the island of vegetation, fill the island to ' MHW

(mean high water), and restore an access road to the island. Lujan's

applications were approved, and the permits issued on February 4, 1986. The

Department of Community Affairs (Department), pursuant to Section 380.07,

Florida Statutes, filed a timely appeal with the Florida Land and Water

Adjudicatory Commission (Adjudicatory Commission).

Background

3. In 1970, Lujan and his wife purchased the subject property, which

included Enchanted Island and its surrounding submerged lands. At that time, an

access road connected the western tip of the island to U.S. Highway 1. 2/

4. In or about April 1972, Lujan constructed, by the deposit of fill over

bay bottom, an access road from U.S. Highway 1 to the eastern tip of Enchanted

Island. Since this work was being performed without a federal permit, the

Department of the Army, Corps of Engineers (Corps) on April 26, 1972, advised

Lujan to cease and desist all unauthorized work in navigable waters of the

United States. Lujan complied with the Corps' request, but did not remove the

road.

5. In late December 1972, Lujan began fill work on the western access road

and on Enchanted Island itself. According to Lujan, his intention was to

clearly define the boundary of Enchanted Island, raise its elevation from

approximately ' MSL (mean sea level) to ' MSL, and restore the western

access road, which had been subjected to erosion. Lujan was performing the work

on the access road without a federal permit, and on January 4, 1973, the Corps

advised Lujan to cease and desist all unauthorized work in navigable waters. 3/

In response to the cease and desist order, Lujan ceased activity on both the

access road and Enchanted Island itself. 4/ At that time, the boundary of

Enchanted Island had been defined by a perimeter road above MHW and the access

road restored, but the elevation of the island had not been raised or its

interior altered.

6. Lujan further responded to the Corps' cease and desist order by filing

suit in the United States District Court, Southern District of Florida (District

Court) to enjoin the Corps from any further interference with the use and

enjoyment of Enchanted Island. That suit was dismissed without prejudice when

Lujan agreed to submit an after-the-fact permit application to the Corps. That

application, filed May 30, 1973, sought leave to restore the western access

road, place three culverts through the road, and to remove the unauthorized

eastern access road and place its material on the island to bring the final

elevation of the island to ' MLW (mean low water).

7. Subsequently, on June 17, 1974, the Corps denied Lujan's permit. In

February, 1975, Lujan again filed suit against the Corps in District Court

seeking injunctive and declaratory relief and de novo review of the Corps'

permit denial. The United States responded by instituting suit against Lujan

for violation of the permit requirements of Section 10 of the Rivers and Harbor

Act of 1899, and the Federal Water Pollution Control Act of 1972. In their

action, the government sought civil penalties, and an order that the

unauthorized work be removed and the area restored to its pre-existing

condition. These two actions (Case Nos. 75-150-CIV-EBD and 75-635-CIV-EBD) were

ultimately consolidated.

8. On December 5, 1975, the District Court ruled that the Corps' permit

denial was neither arbitrary nor capricious. The court further ordered Lujan to

remove the western access road and restore the area to the natural depth of the

adjacent bottom, and to pay a civil penalty. 5/ Lujan appealed.

9. On appeal, the United States Court of Appeals, Fifth Circuit (Appellate

Court) agreed with Lujan's assertion that, inter alia, the Corps had breached an

agreement to only consider in their determination substantive objections from

the state agencies who had to be notified. The Appellate Court found the state

agencies' objections to lack substance, and reversed the decision of the

District Court. On remand, the Corps was instructed not to consider any

previously filed objections from the state agencies since they were not specific

in nature. 6/

10. Following remand, the Corps notified Lujan that viewed from the

context of its 1975 regulations, the interior of Enchanted Island was deemed a

wetlands area which could not be filled absent a Corps permit. The District

court found, however, that since the Corps acted improvidently in stopping

Lujan's activities in January 1973, it would be inequitable for the Corps to

retroactively apply its wetlands policy to Lujan's property. Succinctly, the

court found in its order of April 26, 1985, that:

In 1972, when Lujan initially

was ordered to cease work on the

road, Corps jurisdiction was not

exercised above MHTL. Its 1975

regulations created a "wetlands

policy" which asserted jurisdiction

over activities above MHTL. Had the

Corps not interfered capriciously

with Lujan's activities, he would

have completed his fill project

prior to the change in regulations

and the project would have been

" grand fathered in" ... Retroactive

application of the permitting

requirement is not appropriate.

Consequently, the court held:

The Corps is directed to

reopen the permit application only

with respect to the western access

strip and only so that the

administrative process may effec-

tuate a reasonable restoration

plan. No permitting is required as

to Enchanted Island above MHTL, and

the Corps is enjoined from exercis-

ing jurisdiction over the area (to

the extent that Lujan's activities

do not affect navigable waters,

which would confer jurisdiction

upon the Corps).

The parties shall meet,

formulate an agreed restoration

order, and submit it to the court

for evaluation within sixty (60)

days of this order. (Emphasis

added).

11. Lujan and the Corps experienced no difficulty in formulating an agreed

restoration plan for the western access road; however, they reached an impass

when Lujan insisted that the plan include approval of his desire to fill the

interior of Enchanted Island to ' MHW. While it took no exception to the

court's order that it not exercise jurisdiction over the interior of Enchanted

Island, the Corps refused to agree that a provision directing the filling of the

interior of the island was appropriate. According to the Corps, such matters

were not a subject matter of the current litigation and could be an infringement

upon county and state permitting requirements. At a hearing held November 15,

1985, at which Mr. Lujan was present, the court concurred with the Corps and

directed that any language which referred to raising the existing uplands of

Enchanted Island to ' MHW be deleted.

12. Notwithstanding the court's instruction that the restoration plan

contain no reference to filling the uplands of the island, the plans attached to

the consent agreement still contained such language, in brackets, when submitted

to the court. By order of December 20, 1985, the court ratified the restoration

plan, as submitted; however, by order of February 14, 1986, the court corrected

its oversight by deleting the bracketed language which dealt with filling the

uplands of the island.

Current Development Activities

13. On January 6, 1986, Lujan applied with the Florida Department of

Transportation (DOT) for a driveway permit which would allow him to connect the

western access road through DOT right-of-way to U.S. Highway 1. Receipt of this

permit was crucial to Lujan's plans, since at sometime subsequent to January 4,

1973, the portion of the western access road which occupied DOT right-of-way had

been removed, creating a water gap in the road. On January 8, 1986, the

requested permit was granted, with the following legend stamped conspicuously

thereon:

VALIDITY OF THIS PERMIT IS

CONTINGENT UPON PERMITTEE OBTAINING

NECESSARY PERMITS FROM ALL OTHER

AGENCIES INVOLVED.

14. On January 14, 1986, Lujan began to prepare the island to receive

fill. On that day Lujan filled the "water gap" in the access road and began the

process of leveling the high and low portions of the island by bulldozing on the

southerly end of the island. It was Lujan's intention to level to the north end

of the island and along the access road, and then fill and grade the island.

15. At approximately 5:30 p.m., January 14, 1986, George Garrett, a Monroe

County biologist, arrived on the job site with the announced intention of red

tagging it since no county permits had been obtained. In response, Lujan

exhibited a copy of the District Court's order. Mr. Garrett, at that point,

elected not to red tag the job site and requested that Lujan with his supervisor

the next day. 7/

16. Mr. Garrett's request that Lujan meet with his supervisor the next day

regarding the project did nothing to deter Lujan's clearing efforts. The proof

establishes that when Mr. Garrett left the island on January 14, 1986, there had

been some scarification at the southerly end of the island, but the mangrove

community which dominated the central portion of the island, discussed infra,

had not been disturbed. At 8:30 a.m., January 16, 1986, when the island was

again inspected, the island had been cleared of most vegetation and leveled, and

the mangroves which had occupied the interior of the island were now resting in

several large piles of debris.

17. On January 15, 1986, Lujan met with Bob Herman, Mr. Garrett's

supervisor, to discuss the activities which were occurring on the island. As a

consequence of that meeting, the job site was red tagged pending Lujan's

application for and

receipt of Monroe County permits.

18. On January 15, 1986, Lujan filed an application with Monroe County for

a fill permit which would permit him to fill the island to ' MHW and restore

the western access road, as well as a land clearing permit which would permit

him, after the fact, to clear the island of vegetation. Attached to the

applications were copies of the District Court's order of December 20, 1985, and

the consent agreement of December 16, 1985. On each application Lujan affixed

the following legend:

This application is without waiver

of applicant's rights in Case Nos.

75-150-CIV-EBD and 75-635-CIV-EBD

and position that no permits may be

required and that such permits (if

any) should be processed using 1972

county laws then in effect.

19. Lujan's applications were not accompanied by a vegetation survey and

plot plan as required by Chapters 4 and 18, Monroe County Code, infra. The

applications were, however, accompanied by a copy of the December 16, 1985,

consent agreement, which contained plans for the restoration of the westerly

access road. These plans delineated the areas to be filled, the location of

culverts, and the location and elevations of the proposed paved access road.

20. On February 4, 1986, upon instructions from its County Attorney,

Monroe County issued a fill permit and land clearing permit to Lujan despite his

failure to provide a vegetation survey or disclose his development plans for the

island. Each permit contained the following remarks:

Said permit issued in accord with

the Federal Court Orders entered by

Judge Ned Davis on the 26th day of

April, 1985, and on the 20th day of

December, 1985.

21. Immediately upon receipt of the county permits, Lujan began to fill

the interior of the island and restore the westerly access road as rapidly as

possible. According to Lujan, he had a contract to obtain fill on advantageous

terms if he could promptly remove it from the Key West naval station. By

February 14, 1986, auspiciously, Enchanted Island had been cleared of vegetation

and its elevation raised to ' MHW, and the access road restored. On February

20, 1986, the Department of Community affairs (Department) noticed its appeal of

the Monroe County permits to the Adjudicatory Commissions. 8/

Enchanted Island

22. At the time Lujan was stopped by the Corps on January 4, 1973, the

topography of Enchanted Island had been altered by the establishment of a

perimeter road around its boundaries above the MHW mark, and its westerly access

road restored. Mangroves fringed the island waterward of the perimeter road,

but none existed along the newly restored access road. The interior of the

island, located upland of the perimeter road, was not shown to have been

significantly altered at that time.

23. On January 14, 1986, when Lujan began to clear and grade the island,

its topography had not changed significantly from January 1973; the perimeter of

the island was still defined by a roadway above MW and the fringing mangroves

waterward of the road still stood. At the center of the island, upland from the

perimeter road, a depression existed which covered approximately 15-25 percent

of the island's lands and which was characterized by red, black and white

mangroves, as well as some buttonwood. This depression was saturated by water

at a frequency and duration adequate to support its wetlands species; however,

since it was located upland of the MHW mark the Source of its waters was most

probably from percolation and rainfall. Located elsewhere on the interior of

the island were buttonwood, Bay Cedar and sea oxeye daisy. By January 16, 1986,

Lujan had cleared the interior of the island of any significant vegetation, and

leveled it. The mangroves, which now fringed portions of the access road, as

well as those which fringed the island, were not, however, disturbed.

Monroe County Regulations

24. Chapter 4, Article II, of the Monroe County Code (MCC) establishes and

regulates development within a shoreline protection zone. Pursuant to Section

4-18, MCC, the zone is established as follows:

There is hereby established a

shoreline protection zone in all

that portion of the county defined

in Section 22F-8.02, Florida

Administrative Code, and generally

known as the Florida Keys. The

shoreline protection zone includes

submerged lands covered by the

waters of the Atlantic Ocean and

the Gulf of Mexico (Florida Bay)

out to the seaward limit of the

State's territorial boundaries,

whether in sovereign or private

ownership, including those lands

contiguous to such waters where

fringing mangrove communities

occur. In order to maintain the

functional integrity of these

mangrove communities, the interior

boundary of the shoreline protec-

tion zone is hereby established at

a line extending fifty (50) feet

laterally upland from the landward

limit of the shoreline mangroves.

The shoreline mangroves shall

include mangrove communities which

contain red (Rhizophora mangle),

black (Avicennia nitida) or white

(Laguncularia racemosa) mangroves

but excluding those mangrove

communities which are isolated

inland and separated from open

water areas by nonmangrove natural

vegetative communities.

Consequently, all of the western access road and the portion of Enchanted Island

lying within 50' upland from the landward limit of the shoreline mangroves are

within the shoreline protection zone. The mangroves which occupied the

depressed area in the central portion of the island were not, however, within

the zone.

25. Pemittable uses within the shoreline protection zone are delineated by

sections 4-19 and 4-20, MCC, as follows:

Sec. 4-19. Permitted uses in zone.

Only the following uses are

permitted within the shoreline

protection zone established by this

article:

(1) Access canals or channels;

(2) Docks;

(3) Elevated boardwalks;

(4) Other structures elevated on

pilings;

(5) Utility lines, crossing or

rights-of-way.

Sec. 4-20. Uses permitted upon

special approval; special exception

uses.

(a) The following uses are

permitted by special approval of

the zoning board as provided by the

provisions of chapter 19, article

IV of this Code of Ordinances.

Access driveways and turnarounds

for single-family residences.

(b) [Additionally] ... the follow-

ing standards shall also be met

before the zoning board may grant

approval for a special exceptions

use within the shoreline protection

zone:

(1) The principal structure shall

be located as close as

possible to the landward edge

of site so as to reduce

driveway length.

(2) All access driveways and

turnarounds shall provide for

piped culverts under the

access driveway and/or

turnaround at appropriate

intervals so as to maintain

tidal regime.

26. To secure a permit for development within the shoreline protection

zone, whether for a permitted use or special exception use, it is incumbent upon

the applicant to comply with the provisions of section 4-21, MCC. That section

provides:

(a) No development permit of any

kind shall be issued to any person

to undertake any development within

the shoreline protection zone

without first obtaining a zoning

clearance from the zoning official.

(b) An application for any

development permit within the

shoreline protection zone shall be

referred to the zoning official.

The materials to be referred to the

zoning official shall include the

following, in duplicate:

(1) Proposed site plan

(2) A natural vegetation map

(3) Other information as may be

appropriate to determine the

impact of the development on

the natural functions of the

shoreline protection zone.

(c) The placement of landfill

within the shoreline protection

zone is hereby prohibited and no

permit shall be issued authorizing

the same, except as provided in

section 4-20 of this article.

(d) No application for a zoning

clearance shall be approved and no

permit shall be issued except upon

a written finding by the zoning

board 9/ that the proposed

development will not encroach upon

or destroy the value of areas

within the shoreline protection

zone or otherwise adversely affect

those conditions and

characteristics which promote

shoreline stabilization, storm

surge abatement, water quality

maintenance, wildlife and marine

resource habitats, and marine

productivity.

27. Lujan's proof in support of his request for a fill permit within the

shoreline protection zone was deficient. He offered no natural vegetation map

or proposed site plan, and offered no proof that his proposed activity would not

encroach upon or destroy the value of the shoreline protection zone or otherwise

adversely affect shoreline stabilization, storm surge abatement, water quality

maintenance, wildlife and marine habitats, and marine productivity.

Significantly, Lujan also failed to disclose his plans for the development or

use of the island. Absent proof that the fill activity is designed to create an

access driveway or turnaround for single-family residences, the deposit of fill

within the shoreline protection zone is prohibited. 10/ Section 4-21(c), MCC.

28. Under the circumstances, it is concluded that Lujan has failed to

demonstrate that he is entitled to a special exception use which would permit

the deposit of fill on the westerly access road or upon those lands lying within

50' upland from the landward limit of the shoreline mangroves (the shoreline

protection zone). Lujan's failure to disclose the nature of his plans to

develop the island also rendered it impossible to evaluate the criteria

established by section 4-20(b)(1), MCC.

29. The deposit of fill within those areas of Enchanted Island lying

upland of the shoreline protection zone is governed by chapter 19, MCC.

Pertinent to this proceeding, section 9-111, MCC, provides:

(a) Deposit of Fill. No person

shall engage in the deposit of fill

within the unincorporated areas of

Monroe County, without first having

obtained a county permit for such

activity.

(1) Definitions.

Deposit: The act of placing,

discharging or spreading any fill

material.

Fill: Any material used or

deposited to change elevation or

contour in upland areas, create dry

land from wetlands or marsh in an

aquatic area, or material

discharged into a body of water to

change depth or benthic contour.

* * *

Uplands: Land areas upon which

the dominant vegetative communities

are other than species which

require saturated soil for growth

and propagation.

Wetlands: Aarshes and shallow

areas which may periodically be

inundated by tidal waters and which

are normally characterized by the

prevalence of salt and brackish

water vegetation capable of growth

and reproduction in saturated soil,

including but not limited to the

following species:

* * *

Black mangrove

* * *

Buttonwood

* * *

Red mangrove

* * *

White mangrove

* * *

(3) Upland permit application.

In reviewing all applications

for a permit in upland areas,

consideration will be given to the

nature of indigenous vegetation,

and protection of same as defined

in chapter 18 of the Monroe County

Code, which set standards for the

removal of endangered and protected

vegetative species, and to drainage

patterns and the possible effects

the deposit of fill would have upon

water and storm runoff.

* * *

(4) Wetland permit application.

In reviewing all applications

for a permit in wetland areas,

consideration will be given to the

natural biological functions,

including food chain production,

general habitat, nesting, spawning,

rearing and resting sites for

aquatic or terrestrial species; the

physical aspects of natural

drainage, salinity and sedimenta-

tion patterns, physical protection

provided by wetland vegetation from

storm and wave action. The

proposal will also be reviewed in

conjunction with chapter 4 of the

Monroe County Code, which provides

for the protection of wetland

vegetative communities within

Monroe County.

30. When reviewing applications for fill permits, whether within or

without the shoreline protection zone, the provisions of Chapter 18, MCC, and

the Monroe County Comprehensive plan, which deal with land clearing, must also

be evaluated. Pertinent to this case, chapter 18 provides:

Sec. 18-18. Land clearing permit --

Required ...

(a) It shall be unlawful and an

offense against the county for any

person, either individually or

through agents, employees or

independent contractors, to clear,

by mechanical or any other means,

any land located within the

unincorporated areas of the county

without having first applied for

and obtained a land clearing permit

from the building department of the

county.

(b) A land clearing permit shall

be required for the removal of all

or parts of naturally occurring

vegetation in the county.

* * *

Sec. 18-19. Same -- Application

(a) Any person requesting a land

clearing permit shall file an

application with the county

building department on a form

provided by such department. Such

application shall contain the

following information:

* * *

(5) A map of the natural vegeta-

tive communities found on and

adjacent to the site, prepared

by a qualified biologist,

naturalist, landscape archi-

tect or other professional

with a working knowledge of

the native vegetation of the

Florida Keys ... With

projects that are five (5)

acres or more in size, the

vegetation map does not have

to identify the location of

individual trees. For

projects of this size, the

vegetation map should identify

the different vegetative

communities, such as tropical

hammock, mangrove and

buttonwood transitional, and

be accompanied by a

descriptive narrative that

identifies any significant

trees or natural features of

the side (sic).

(6) An overall site plan of the

land for which the permit is

requested, indicating - the

shape and dimensions of said

land, the purposes for which

clearing is requested, and the

steps taken to minimize

effects of clearing on

surrounding vegetation and

water bodies. A site plan

analysis prepared by a

qualified individual, as

described above in (3), shall

be included.

* * *

Sec. 18-21. Same -- Approval.

After an application for a

land clearing permit has been filed

and verified, the building

department and the planning and

zoning department shall review and

consider what effects such removal

of vegetation will have upon the

natural resources, scenic amenities

and water quality on and adjacent

to the proposed site. Upon finding

that such removal of natural

vegetation will not adversely

affect the natural resources,

scenic amenities and water quality

adjacent to the proposed site, the

permit shall be approved, approved

subject to modification or

specified conditions, or denied.

In the event a request is denied,

the reasons for denial shall be

noted on the application form and

the applicant shall be so notified.

Pertinent to this case, the Monroe County Comprehensive Plan, Coastal Zone

Protection and Conservation Element, provides:

NATURAL VEGETATION MANAGEMENT POLICIES

1. In recognizing the need to preserve as

much natural vegetation as possible, the

County will direct its land use and

development regulations to minimize

destruction of natural vegetation and

modification of landscape.

1.1 Guidelines and performance stan-

dards designed to protect natural

vegetation from development will be

developed and enforced.

1.2 Clearing of native vegetation for

development will be controlled.

1.3 Land clearing will be restricted to

site area being prepared for

immediate construction. If the

construction cannot begin within

reasonable time, the cleared area

will be replanted with ground cover.

* * *

3. Regulations controlling development in

areas characterized primarily by wetland

vegetative species such as mangrove and

associated vegetation will emphasize

preservation of natural vegetation to the

maximum degree possible. Local regulations

in this regard will be consistent with the

appropriate State and Federal regulations.

8. The existing County ordinances designed

to protect and conserve natural vegetation

will be strictly interpreted, rigidly

enforced, and/or amended when necessary.

31. Lujan violated the provisions of sections 9-111 and 18-18, MCC, when

he, without benefit of a permit, leveled and cleared Enchanted Island of

vegetation. Now, after the fact, he requests the appropriate fill and land

clearing permits; however, he offers no vegetation map, no plan to mitigate the

removal of endangered and protected species, and no proof as to the drainage

patterns on the island and the probable effect the deposit of fill or the

removal of vegetation would have upon storm runoff or water quality.

32. While no vegetation map was submitted, the proof at hearing did

establish the general nature of the vegetation existent on the island prior to

clearing. That proof established that the mangrove community previously located

at the center of the island reposed in relative isolation, and that its natural

biological functions were nominal. Consequently, the removal of that vegetation

was not counterindicated from the biological function perspective; however, the

impact of such removal and the filling of that area on storm runoff and water

quality was not addressed by Lujan. Further, Lujan offered no plan to mitigate

the impact caused by his removal of Bay Cedart, and endangered species.

33. With respect to the access road, Lujan offered no vegetation survey,

and the proof was insufficient to assure that only minimal clearing would occur.

Additionally, Lujan offered no proof concerning the impact that such removal, if

any, and the deposit of fill would have on drainage patterns, storm runoff, or

water quality.

34. The premises considered, it is concluded that Lujan has failed to

demonstrate his entitlement to a fill permit or land clearing permit for

Enchanted Island and the access road. In addition to the reasons set forth in

paragraphs 27-28, supra, Lujan has also failed to address the issues of storm

runoff and water quality.

CONCLUSIONS OF LAW

35. The Division of Administrative Hearings has jurisdiction over the

parties to, and the subject matter of, these proceedings.

36. This is an appeal, pursuant to Section 380.07, Florida Statutes, from

two development orders of Monroe County granting Lujan's application for a fill

permit and land clearing permit in an area of critical state concern. Pursuant

to the

provisions of Section 120.57(1), Florida Statutes, a de novo hearing was held.

Transgulf Pipeline Co. v. Board of County

Commissioners, 438 So.2d 876 (Fla. 1st DCA 1983).

37. Pertinent to this appeal, Section 380.06(13), Florida Statutes,

provides that where, as here, the proposed development is located in an area of

critical state concern,

... the local government shall

approve it only if it complies with

the land development regulations

therefor under s. 380.05 and the

provisions of this section.

Chapter 27F-8, Florida Administrative Code, the Boundary and Principles for

Guiding Development for the Florida Keys Area of Critical State Concern; Chapter

22F-9, Florida Administrative Code, the Land Planning Regulations for the

Florida Keys Area of Critical State Concern Monroe County; and, Monroe County's

comprehensive plan and zoning regulations are the land development regulations

pertinent to Section 380.05, Florida Statutes, and the proposed development.

38. Although revised comprehensive plan and land development regulations

were adopted by Monroe County on February 28, 1986, and approved, as amended, on

September 15, 1986, by the Department and the Administration Commission, such

plan and development regulations are not applicable, over Lujan's objection, to

the current proceeding. Lujan's applications were processed by Monroe County

prior to the effective date of its new regulations, the Department's appeal was

noticed under the prior regulations, and the Department made no request, prior

to hearing, that current regulations be considered. Consequently, Monroe County

regulations existent when Lujan's application was considered by the county will

be applied in this case. 11/

39. The ultimate burden of persuasion rested on Lujan to establish his

entitlement to the permits authorizing him to clear Enchanted Island of natural

vegetation and to fill the island and westerly access road. Graham v. Estuary

Properties, Inc., 399 So.2d 1374 (Fla. 1981), and Florida Department of

Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981). Lujan

has failed to demonstrate that his proposal complies with the land development

regulations applicable to this case.

40. In reaching the conclusion that Lujan has not demonstrated entitlement

to the subject permits, I am not unmindful of the District Court's orders. That

court's decision, however, directed the reopening of the Corps' permitting file

for the purpose of resolving a permitting dispute between the Corps and Lujan ,

premised on a finding that the Corps had acted arbitrarily and capriciously in

denying his permit to restore the western access road, and that it would be

inequitable, under the circumstances, to allow the Corps to exercise

jurisdiction over the interior of the island. Consequently, the Corps was

directed to develop a restoration plan for the western access road with Lujan,

and refrain from exercising jurisdiction over the interior of the island. The

court's orders did not authorize the clearing or filling of the interior of the

island, and did not purport to consider or resolve the need for collateral

permits which might be needed under Monroe County's development regulations or

those of the State of Florida.

41. While Lujan's battle with the Corps was protracted, the result was

essentially the issuance of a Corps permit for the repair of the westerly access

road. The possession of such authorization did not, however, relieve Lujan of

the responsibility of complying with other developmental regulations applicable

to the subject property.

42. Lujan's assertion that the Department is collaterally estopped or

barred by the doctrine of res judicata by virtue of the District Court

proceedings is rejected. There exists neither identity of parties between that

litigation and this proceeding, nor is there an identity of issues.

43. Lujan's assertion that the Department is estopped from pursuing this

action based on his claim that the State of Florida, or its agencies, conspired

or colluded with the Corps to effect a halt to the development of Enchanted

Island in 1973 is rejected as not supported by the proof. Other than responding

as requested by the Corps, no agency of the State of Florida was shown to have

participated directly or indirectly in the Corps' handling of its permitting

process, or the Federal litigation, or to have conspired or colluded to effect a

halt to the development of Enchanted Island.

44. While not entitled to the requested permits, Lujan is entitled to a

specification of what changes in his proposal are necessary that would make it

eligible to receive a permit. Section 380.08(3), Florida Statutes. Based on

the evidence adduced at hearing, such changes are as follows:

A. Prepare and submit a natural vegetation survey

the island and access road in accordance with

Chapter l8, MCC, and provide reasonable assurances that

clearing will be minimized and will not adversely

impact the natural resources, scenic amenities and

water quality on and adjacent to the site.

B. Prepare and submit a site plan depicting the

proposed development and use of the island, and provide

reasonable assurances that the proposed development and

fill activities will not adversely affect natural

resources or water quality.

C. To secure a land clearing and fill permit

within the shoreline protection zone that Lujan provide

reasonable assurances that the access road is dedicated

for use solely as an access way or turnaround for

single-family residences; that the principal structures

will be located as close as possible to the landward

edge of the site so as to reduce driveway length; that

the access way provide for piped culverts at

appropriate intervals so as to maintain tidal regime;

and, that shoreline stabilization, storm surge

abatement, water quality, and marine resources habitat

and marine productivity, on or adjacent to the site,

will not be adversely impacted.

D. Prepare and submit a plan to mitigate the

prior removal of Bay Cedar, an endangered species.

E. Should the permits issue, provide reasonable

assurances that the cleared and filled areas be

replanted in ground cover if the development of

Enchanted Island should not begin within a reasonable

time.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED:

That the Florida Land and Water Adjudicatory Commission enter a Final Order

reversing Monroe County's decision to issue the subject permits No. 14723A and

14724A, and deny Lujan's request for a land clearing and fill permit for

Enchanted Island and the westerly access road. That such Final Order specify

those items set forth in paragraph 10, Conclusions of Law, as the changes

necessary that would make Lujan's proposal eligible to receive the requested

permits.

DONE AND ORDERED this 9th day of April, 1987, in Tallahassee, Florida.

___________________________________

WILLIAM J. KENDRICK

Hearing Officer

Division of Administrative Hearings

The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 9th day of April, 1987.

ENDNOTES

1/ Title to the subject property was taken under a blind trust on behalf of the

Lujan's by Henry H. Taylor, Jr., Trustee. There is no dispute, however, that

the Lujans are the owners of the parcel of land in question.

2/ The access road was constructed at the time Key Haven, a small island

adjacent to Enchanted Island, was under development. At that time, the bay

bottom between the two islands was being used as a borrow pit. Fill from that

area was extracted and stockpiled on Enchanted Island for use in filling Key

Haven, as well as its connecting road to U.S. Highway 1. To access the fill the

borrow pit operator constructed the access road by depositing fill on the bay

bottom. When the dredging operations ceased, the access road was not removed.

3/ Corps' personnel actually stopped Lujan on January 3, 1973, but the cease

and desist order did not issue until January 4, 1973. At hearing, Lujan also

averred that some state agency was also involved in the work stoppage of January

3, 1973; however, he had no first hand knowledge that a state agency was

actually involved and could not identify the agency purportedly involved.

Consequently, there is no competent proof that the State of Florida, or any of

its agencies, interfered with Lujan's activities at that time.

4/ At the time, Corps jurisdiction did not extend above mean high water.

Consequently Lujan was not bound to cease his activities on Enchanted Island

itself.

5/ The eastern access road had apparently been removed by this time.

6/ Lujan charges that the State of Florida actively participated in the Corps

permitting process and, therefore, is estopped from contesting the subject

permits. Lujan further charges that the State of Florida conspired and colluded

with the Corps to prevent his development of the island, and is therefore

estopped to contest these permits. The proof fails to support Lujan's charges,

or to establish the essential elements of an estoppel against the state.

7/ On January 14, 1986, Lujan also spoke with Randal Gru, an environmental

specialist with the Florida Department of Environmental Regulation regarding his

activities. Mr. Gru requested a copy of the District Court's order, which Lujan

forwarded to him on that date. Subsequently, on January 16, 1986, Mr. Gru

advised Lujan that:

... it had been determined that

dredge and fill activities at the

above site, in, on, or over waters

or wetlands within the landward

extent of waters of the State of

Florida will require a permit from

the Department of Environmental

Regulation prior to any work beings

performed.

To date, Lujan has not applied with any State agency, other than DOT, for any

permits.

8/ During the pendency of this appeal, on April 2, 1986, Lujan received a

roadway permit from DOT. Under that permit, Lujan did substantial works along

U.S. Highway 1. Such works are, however, not relevant to this proceeding and,

further, were commissioned at his peril.

9/ Some provisions of the Monroe County code require approval by the building

and zoning department, while others require approval by the zoning board or

Board of County Commissioners. In this case all permits were issued by the

building and zoning department. The Department suggests that because the

appropriate level of county government did not approve the subject permits that

they are void. The Department's assertion is unpersuasive. Where, as here, a de

novo review of the permit applications is undertaken, the applicant is entitled

to the permits if he can demonstrate compliance with the applicable development

regulations.

10/ Should Lujan not desire to commit the island to single- family residential

use, he could have access through construction of an elevated roadway. Sec. 4-

19, MCC.

ll/ Lujan's assertion that, if permits are required, the land development

regulations in force in 1972 should be applied is unpersuasive. See: State,

Department of Environmental Regula- tion v. Oyster Bay Estates, Inc., 384 So.2d

891 (Fla. 1st DCA 1980). There is no competent proof to demonstrate that the

State of Florida, or more importantly Monroe County, interfered with Lujan's

early attempts to develop his property in such a manner as to cause a "vesting"

of any development rights or to grandfather" Lujan's project.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1496

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

1-2. Addressed in paragraph 1.

3-6. Not relevant.

7. Addressed in paragraph 3, footnote 2.

8-9. Not relevant.

10-12. Addressed in paragraphs 16 and 23.

13-14. Addressed in paragraph 32.

15. Addressed in paragraphs 2 and 18.

16. Addressed in paragraph 19.

17-18. To the extent relevant, addressed in paragraph 18.

19. Not relevant.

20. Addressed in paragraph 10.

21-23. Addressed in paragraphs 11 and 12.

24. Addressed in paragraph 24.

25. Not relevant. See paragraph 26, footnote 9.

26. Addressed in paragraph 15, footnote 7.

27. Not relevant or not necessary to result reached.

28-29. Addressed in paragraphs 13 and 21, footnote 8.

30. Addressed in paragraph 3, Conclusions of Law.

31-37. To the extent relevant, addressed in paragraphs 24-26 and 29-30.

Lujan's proposed findings of fact consist of 20 unnumbered paragraphs. To

address these proposals, the paragraphs have been numbered 1 through 20, and are

addressed as follows:

1. To the extent relevant, addressed in paragraphs 1 and 3-5.

2. Addressed in paragraph 5 and footnote 3.

3. Addressed in paragraph 5.

4. Addressed in paragraphs 13 and 23.

5-6. Addressed in paragraphs 6-12.

7. Addressed in paragraphs 13 and 14.

8. Addressed in paragraphs 15 and 17, and footnote 7.

9. Addressed in paragraph 18.

10. Addressed in paragraph 21.

11-12. To the extent relevant, addressed in paragraph 21, footnote 8.

13. Addressed in paragraph 21.

14. First sentence addressed in paragraphs 22 and 23. Second sentence

addressed in paragraph 33, and rejected as not supported by the proof. Third

and fourth sentence rejected since while the federal plan does require

culverting, there was no showing that it would improve circulation or provide

for environmental betterment and preservation of the mangrove fringe surrounding

the island.

15-16. Addressed in paragraphs 23 and 32.

17. Addressed in paragraphs 19, 27-23, and 31-34.

18-19. Addressed in paragraphs 16 and 23.

20. Addressed in paragraphs 27 and 31-34.

COPIES FURNISHED:

Ross S. Burnaman, Esquire

Florida Department of

Community Affairs

2571 Executive Center Circle East

Tallahassee, Florida 32399

Robert J. Paterno, Esquire

Taylor, Brion, Buker & Greene

1111 South Bayshore Drive

Eleventh Floor

Miami, Florida 33131

Robert Wolfe, Esquire

Assistant Monroe County Attorney

310 Fleming Street

Key West, Florida 33040

Thomas G. Pelham, Secretary

Department of Community Affairs

2571 Executive Center Circle East

Tallahassee, Florida 32399

Margaret Ray Kemper, General Counsel

Department of Community Affairs

2571 Executive Center Circle East

Tallahassee, Florida 32399 Honorable

Bob Martinez

Governor

The Capitol

Tallahassee, Florida 32301

Honorable George Firestone

Secretary of State

The Capitol

Tallahassee, Florida 32301

Honorable Robert Butterworth

Attorney General

The Capitol

Tallahassee, Florida 32301

Honorable Gerald A. Lewis

Comptroller

The Capitol

Tallahassee, Florida 32301

Honorable Betty Castor

Commissioner of Education

The Capitol

Tallahassee, Florida 32301

Honorable Doyle Conner

Commissioner of Agriculture

The Capitol

Tallahassee, Florida

Glenn W. Robertson, Jr.

Secretary

Florida Land and Water

Adjudicatory

Commission

Office of Governor

The Capitol

Tallahassee, Florida 32301

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

FLORIDA LAND AND WATER ADJUDICATORY COMMISSION

STATE OF FLORIDA, DEPARTMENT

OF COMMUNITY AFFAIRS,

Petitioner,

vs. DOAH Case No. 86-1496

ARTHUR B. LUJAN AND PLANNING,

BUILDING AND ZONING DEPARTMENT,

MONROE COUNTY,

Respondents.

__________________________________/

FINAL ORDER

This cause having come before the Governor and Cabinet of the State of

Florida, sitting as the Florida Land and Water Adjudicatory Commission (the

"Commission"), on June 16, 1987, in Tallahassee, Florida, pursuant to Sections

120.57 and 380.07, Florida Statutes, for consideration of a Recommended Order

from the Division of Administrative Hearings entered on April 9, 1987, a copy

being attached as Exhibit A, and pleadings filed in this cause subsequent

thereto. Based upon the Commission's review of the case, it is hereby ordered:

1. The Commission adopts and incorporates in this Order the Findings of

Fact set out in paragraphs 1-34 in the Recommended Order dated April 9, 1987, by

the Division of Administrative Hearings (the "Recommended Order").

2. The Commission adopts and incorporates in this Order the Conclusions of

Law set out in paragraphs 1-10 in the Recommended Order.

3. The Commission adopts and incorporates in this Order the Recommendation

of the Hearing Officer set out on page 21 of the Recommended Order.

4. The Commission notes that in this case a procedural irregularity

occurred following the issuance of the Hearing Officer's Recommended Order.

Rule 42-2.009, Florida Administrative Code, requires exceptions to a recommended

order to be filed with the Governor's Office of Planning and Budgeting within 15

days of service of the recommended order. In this case Respondent, Arthur B.

Lujan (" Lujan"), filed exceptions with the Commission on May 7, 1987. The

filing of the exceptions with the Commission by Lujan thus occurred some 28 days

after the Recommended Order was served on April 9, 1987; a filing that was

clearly in violation of the Commission's rule. Not surprisingly, the

Petitioner, Department of Community Affairs (the "Department" ), has subsequently

moved to strike the untimely filed exceptions.

We decline in this instance to grant the Department's Motion to Strike,

acknowledging that in this case Lujan's exceptions were completed and served on

the parties in a timely manner, if not filed with the Clerk of the Commission.

However, we would ask that this litigant and future litigants before the

Commission take note of the procedural rules that have been established for the

conduct of appeals in order to facilitate the efficient resolution of these

cases.

RULING ON LUJAN'S EXCEPTIONS TO THE

FINDINGS OF FACT IN THE RECOMMENDED ORDER

1. Lujan's first exception is denied. Section 120.57(1)(b)(a), Florida

Statutes, governs an agency's review of a hearing officer's findings of fact in

a recommended order. That statute provides, in pertinent part:

[An agency] may not reject or modify the

findings of fact unless the agency first

determines from a review of the complete

record, and states with particularity

in the order, that the findings of fact

were not based upon competent substantial

evidence or that the proceedings on which

the findings were based did not comply with

the essential requirements of law.

Lujan's first exception does not allege that Finding of Fact No. 2 is not

based on competent substantial evidence, nor do we believe that to be the case.

Rather, Lujan states that the Finding of Fact should have contained additional

information that Lujan deems relevant. Having considered the language suggested

by Lujan, we believe that Lujan's first exception presents no basis for

modification of Finding of Fact No. 2.

2. Lujan's second exception is denied. The Hearing Officer's Finding of

Fact No. 4 is based on competent substantial evidence and requires no

modification. Moreover, in footnote 6 the Hearing Officer supplies the

information that Lujan seeks to have incorporated by this exception.

3. Lujan's third exception is denied. Lujan would have the Commission

modify Finding of Fact No. 5 and its attendant footnote to reflect that on

January 3, 1973, the state stopped Lujan's construction activities on Enchanted

Island. Lujan cites various correspondence, testimony, and newspaper articles

to support his allegation. However, the Hearing Officer declined to elevate

this information to a Finding of Fact because Lujan had no first hand knowledge

that a state agency was involved in terminating the work and could not identify

the agency purportedly involved.

In administrative hearings, hearsay evidence may be used for the purpose of

supplementing or explaining other evidence, but it is not sufficient alone to

support a finding of fact unless it would be admissible over objection in civil

actions. See Harris v. Game and Fresh Water Fish Commission, 495 So.2d 806

(Fla. 1st DCA 1986). In this instance, we believe the Hearing Officer's Finding

of Fact No. 5 accurately reflects the competent evidence in the record, and we

do not accept Lujan's view that the exclusion of the evidence relating to the

state's alleged involvement in terminating Lujan's construction activities is a

"strict, technical, evidenciary [sic] interpretation" that can be ignored by

this Commission.

4. Lujan's fourth exception is denied. Lujan states that footnote 4

relating to Finding of Fact No. 5 stands for the proposition that "court

jurisdiction does not extend above mean high water." Since "court jurisdiction"

makes no sense in that context, we assume Lujan meant to refer to "Corps

jurisdiction," as in "Army Corps of Engineers." However, we find nothing

inconsistent between the Hearing Officer's Finding of Fact and the facts alleged

in Lujan's exception. Lujan states that the Corps erroneously asserted "that

the Enchanted Island parcel was below mean high water," and therefore, the Corps

improperly sought to place activities on Enchanted Island within its purview.

In footnote 4, the Hearing Officer simply state that "[a ]t the time, Corps

jurisdiction did not extend above mean high water." It seems that both Lujan and

the Hearing Officer are in agreement that the Corps could not regulate

activities on land resting above the mean high water line, and we fail to see

how modifying Finding of Fact No. 5 would serve any useful purpose.

5. Lujan's fifth exception is denied. Lujan takes exception to footnote 6

in the Recommended Order which rejects Lujan's argument that the state conspired

with the Army Corps to prevent development of Enchanted Island and that the

state should be estopped from contesting the subject permits. The Hearing

Officer's finding is based on competent substantial evidence and should not be

overturned.

6. Lujan's sixth exception is denied. Lujan takes exception to Findings

of Fact Nos. 11 and 12 insofar as they "attempt to interpret what the intentions

and actions of the federal district court judge in the federal court litigation

were meant to mean." (Emphasis in original.) Lujan has failed to cite the

offending language in these Findings of Fact and, quite frankly, having pried

through the strata, analyzed to a hair, and counseled close , we can find no

language which takes license with the federal court's decisions. In point of

fact, those paragraphs in the Recommended Order seem to be a rather

straightforward account of the court proceedings ; an account which is fully

borne out by evidence in the record before us.

7. Lujan's seventh exception is denied. Lujan believes that Finding of

Fact No. 13 is flawed because the language "is somewhat misleading to the extent

that the reader might think or surmize [sic] that the water gap was removed

under the authority of Lujan." We assume that Lujan means that Finding of Fact

No. 13 intimates that Lujan removed a portion of the western access road, not a

"water gap," but we decline to interpret the Recommended Order in that manner.

Finding of Fact No. 13 is accurate, is based on-competent substantial evidence

in the record, and needs no modification.

8. Lujan's eighth exception is denied. Lujan finds fault with the use of

the word "auspiciously" in Finding of Fact No. 21. The relevant portion of that

paragraph states: "By February 14, 1986, auspiciously, Enchanted Island had

been cleared of vegetation and its elevation raised to ' MHW, and the access

road restored." Lujan believes the use of the word "auspiciously" in this

context "is inappropriate and vague in its suggested meaning or purview." We,

instead, find it to simply be a literary flourish that the Hearing Officer has

included in the Recommended Order as an aside, and we interpret it to be a

comment on Lujan's renewed success in developing the island following years of

litigation. We fail to see the harm in leaving the word "auspiciously" in

Finding of Fact No. 21 and decline to strike it at this juncture.

9. Lujan's ninth exception is denied. For different reasons, Lujan takes

exception to footnote 8 and Finding of Fact No. 24 in the Recommended Order.

Footnote 8 states that the permit from the Department of Transportation dated

April 2, 1986, is irrelevant to this appeal. We agree. That permit is not the

subject of this appeal and, in fact, was issued weeks after this appeal was

taken by the Department. Further, we perceive no flaw in Finding of Fact No.

24. That paragraph quotes Chapter 4, Article II, of the Monroe County Code (the

"MCC"), which describes the shoreline protection zone. Finding of Fact No. 24

then describes that portion of Lujan's property which falls within the zone. We

believe that there is competent substantial evidence in the record to support

the Hearing Officer's application of the MCC to the subject property, as we more

fully discuss in paragraph 11 below.

10. Lujan's exceptions 10 through 12 are denied. Lujan asserts, in

essence, that the relevant portions of the MCC dealing with shoreline protection

were improperly applied to his project in a retroactive manner. However, as the

record clearly shows, Lujan had obtained no vested rights with respect to his

property which would preclude the application of these portions of the Code.

Therefore, we decline to modify those

findings of fact with which Lujan takes exception in this instance.

RULING ON LUJAN'S EXCEPTIONS TO THE

CONCLUSIONS OF LAW IN THE RECOMMENDED ORDER

11. The Commission is mindful that it enjoys considerably more latitude to

modify a conclusion of law than it has in altering or overturning a finding of

fact. Nevertheless, for the reasons set forth below, the Commission chooses not

to amend the Conclusion of Law to conform with Lujan's exceptions, and is

persuaded that the Hearing Officer came to the proper conclusions in this

instance.

The thrust of several of Lujan's exceptions to the Conclusions of Law is

this : Lujan alleges that in early January, 1973, the State of Florida and the

Army Corps of Engineers improperly stopped Lujan from developing Enchanted

Island, and it would now be inappropriate to apply subsequently enacted laws and

regulations to the development of the property in light of the state's earlier

actions. However, we believe case law dictates a conclusion contrary to that

suggested by Lujan.

As we have previously observed, the Hearing officer was correct in finding

that there is no competent evidence to prove that the state caused the premature

termination of the project in 1973. Thus, Lujan's premise is flawed from the

outset. Given this flaw, we believe the rule of law espoused in Department of

Environmental Regulation v. Oyster Bay Estates, Inc., 384 So.2d 891 (Fla. 1st

DCA 1980), is controlling, and Oyster Bay may be cited for the proposition that

a developer only obtains vested rights to construct a project when he has

obtained the necessary authorizations to commence development from the

appropriate authorities. In the absence of these approvals and reliance

thereon, a developer must improve his property according to the regulations in

place at the time those approvals are obtained.

In this case, the Hearing Officer applied the law as it existed at the time

of the issuance of the permits that form the subject of this appeal. We believe

that the Hearing Officer accurately identified the relevant point in time at

which to ascertain the applicable law and, moreover, we believe he applied that

law in the proper manner. In light of the foregoing, exceptions 13 and 14 are

denied.

12. Lujan's 15th exception is denied. We believe that the Hearing Officer

properly cites Graham v. Estuary Properties, Inc., 399 So.2d 1374 (Fla. 1981),

and Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778

(Fla. 1st DCA 1981, for the proposition that Lujan has the burden of persuasion

to establish entitlement to his development permits. Lujan cites no case law,

and we know of none, which would dictate a contrary conclusion.

13. For the same reasons set forth in paragraph 6 above, Lujan's 16th

exception is denied.

14. Lujan's 17th exception is denied. We believe that by their own terms

the federal court orders did not preclude the application of the MCC to Lujan's

property in this instance and that the Hearing Officer correctly interpreted

those terms.

15. Lujan's 18th exception is rejected. The Department is not barred by

the doctrine of res judicata by virtue of the federal court proceeding because

the state was not a party to those proceedings and the issues raised in that

proceeding are distinct from these now before the Commission.

16. For the reasons set forth in paragraphs 3 and 11 above, Lujan's 19th

exception is denied.

17. For the reasons set forth in paragraph 11 above, Lujan's 20th

exception is denied.

18. Lujan's 21st exception is denied on the basis that it is simply a

restatement of the issues previously addressed in paragraphs 1 through 17 above.

Any party to this order has the right to seek judicial review of the order

pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of

Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the

Clerk of the Commission, Glenn W. Robertson, Jr., Office of Planning and

Budgeting, Executive Office of the Governor, Room 415, Carlton Building, 501

South Gadsden Street, Tallahassee, Florida 32301; and by filing a copy of the

Notice of Appeal accompanied by the applicable filing fees with the appropriate

District Court of Appeal. Notice of Appeal must be filed within 30 days of the

day this order is filed with the Clerk of the Commission.

DONE and ENTERED this 6th day of July, 1987, in Tallahassee, Florida.

_________________________________

Glenn W. Robertson, Secretary

Florida Land & Water Adjudicatory

Commission

cc: Members of the Commission

Counsel of Record

Honorable Bob Martinez William J. Kendrick, Hearing

Governor Officer

The Capitol Division of Administrative

Tallahassee, Florida 32399-0001 Hearing

The Oakland Building

Honorable George Firestone 2009 Apalachee Parkway

Secretary of State Tallahassee, Florida 32301

The Capitol

Tallahassee, Florida 32399 Paul Bradshaw, Esquire

Assistant General Counsel

Honorable Bob Butterworth The Capitol, Room 209

Attorney General Tallahassee, Florida 32399

The Capitol

Tallahassee, Florida 32399 Robert Paterno, Esquire

TAYLOR, BRION, et al.

Honorable Gerald Lewis 111 South Haysbore Drive

Comptroller 11th Floor

The Capitol Miami, Florida 33131

Tallahassee, Florida 32399

South Florida Regional

Honorable Betty Castor Planning Council

Commissioner of Education 3440 Hollywood Blvd., Ste. 140

The Capitol Hollywood, Florida 33021

Tallahassee, Florida 32399

Honorable Jerry Hernandez

Honorable Doyle Conner Mayor, Monroe County

Commissioner of Agriculture 310 Fleming Street

The Capitol Key West, Florida 33040

Tallahassee, Florida 32399

Lucien Proby, Esquire

Honorable Bill Gunter Monroe County Attorney

Treasurer 310 Fleming Street

The Capitol Key West, Florida 33040

Tallahassee, Florida 32399

Ross Burnaman, Esquire

Department of Community Affairs

2571 Executive Center Circle, E.

Tallahassee, Florida 32301

Robert Wolfe, Esquire

Assistant Monroe County Attorney

310 Fleming Street

Key West, Florida 33040

Thomas Pelham, Secretary

Department of Community Affairs

2571 Executive Center Circle, E.

Tallahassee, Florida 32301

Clerk, Division of Administrative Hearings

The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301