88-001067RP Outdoor Advertising Of The Keys vs. Department Of Community Affairs Status: Closed Recommended Order on Tuesday, March 28, 1989.

Summary: Certain petitioner proved that the department should have approved their map amendments because they are consistent with the principles for guiding development

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: ) CASE NOS. 88-1067RP;

) 88-1071RP; 88-1074RP-

Petitions For Draw-Out Proceedings ) 88-1077RP; 88-1083RP;

Pursuant To Section 120.54(17), ) 88-1092RP-88-1100RP;

F.S., Concerning The Department Of ) 88-1113RP-88-1115RP;

Community Affairs' Proposed Rules ) 88-1117RP-88-1119RP;

9J-14.006 and 9J-15.006 ) 88-1121RP; 88-1122RP

___________________________________) and 88-1128RP

RECOMMENDED ORDER

The final hearing was held in this matter in Tavernier, Florida, on January

23-25, 1989, before Donald D. Conn, a duly designated Hearing Officer of the

Division of Administrative Hearings. The parties were represented as follows:

APPEARANCES

For Petitioners: David L. Manz, Esquire

Post Office Box 177

Marathon, Florida 33050

Nicholas Mulick, Esquire

88539 Overseas Highway

Tavernier, Florida 33070

Andrew M. Tobin, Esquire

James S. Mattson, Esquire

Post Office Box 586

Key Largo, Florida 33037

Fred Tittle, Esquire

Post Office Drawer 535

Tavernier, Florida 33070

James A. Helinger, Jr., Esquire

209 Turner Street

Clearwater, Florida 34616

Betty Brothers Rein, pro se

Route 1, Mile Marker 28

Little Torch Key, Florida 33043

For Respondent: David C. Jordan, Esquire

Department of Community Affairs

2740 Centerview Drive

Tallahassee, Florida 32399

This is a draw-out proceeding held pursuant to Section 120.54(17), Florida

Statutes, in which the issue is whether the Department of Community Affairs

(Department) should adopt Proposed Rules 9J-14.006 and 9J-15.006 disapproving

certain map changes proposed by Petitioners, and approved by the Monroe County

Board of County Commissioners. At the hearing, the Department called the

following witnesses: Lane Kendig, who was accepted as an expert in land use

planning, land development regulations, and comprehensive planning; James L.

Quinn, who was accepted as an expert in comprehensive and land use planning, and

the area of critical state concern program; George Schmahl, who was accepted as

an expert in the biology and ecology of the Florida Keys, and comprehensive

planning; Donald Craig, who was accepted as an expert in comprehensive planning,

and the Monroe County comprehensive plan and land use regulations; and Maria

Abadal, who was accepted as an expert in Monroe County comprehensive planning

and land development regulations. Petitioners called the following expert

witnesses: Mary Kay Reich, who was accepted as an expert on Monroe County

comprehensive planning and land use regulations; Arthur H. Weiner, who was

accepted as an expert in biology and ecology; Bernard Zyscovich, who was

accepted as an expert in comprehensive land use planning and zoning; and Maria

Abadal, an expert in Monroe County comprehensive planning and land development

regulations. In addition, seventeen individual Petitioners testified as fact

witnesses. The Department introduced twelve exhibits, and thirty-six exhibits

were introduced on behalf of Petitioners.

No transcript of the hearing was filed. The parties requested, and were

granted, thirty days following the hearing to file proposed recommended orders,

including proposed findings of fact. The Appendix to this Recommended Order

contains a ruling on each timely filed proposed finding of fact.

FINDINGS OF FACT

1. On or about December 10, 1987, the Department filed Proposed Rules 9J-

14.006 and 9J-15.006 with the Department of State, and published notice of its

intent to adopt these proposed rules in the December 18, 1987 edition of the

Florida Administrative Weekly. In pertinent part, these proposals disapprove

certain Map Amendments requested by Petitioners, and approved by the Monroe

County Board of County Commissioners in October, 1987.

2. Petitioners timely filed petitions for draw-out proceedings pursuant to

Section 120.54(17), Florida Statutes, and in March, 1988, the Department

transmitted these petitions to the Division of Administrative Hearings for a

hearing under the provisions of Section 120.57, Florida Statutes. The

Department has determined that normal rule-making proceedings under Section

120.54 are not adequate to protect Petitioners' substantial interests, and has

suspended rule-making regarding these Petitioners and the Map Amendments at

issue in this case. Petitioners' standing is not at issue in this proceeding.

3. The Florida Keys' Comprehensive Plan was adopted by the Monroe County

Board of County Commissioners in February, 1986, and Volume III of the Plan,

consisting of land development regulations, was approved by the Department and

the Administration Commission in July, 1986. The Department uses, and relies

upon, the provisions of this Plan in interpreting and applying the Principles

For Guiding Development set forth at Section 380.0552(7), Florida Statutes, and

in determining if proposed changes in land development regulations or Plan

amendments are in compliance with said Principles.

4. As part of its Comprehensive Plan, Monroe County adopted land use

district maps in February, 1986, which depict the approved land use and zoning

of individual parcels. Petitioners herein urge that the zoning of their parcels

in February, 1986, as portrayed on the district maps, is in error or is not

justified due to their particular circumstances. Therefore, they have sought

Map Amendments which were approved by the Monroe County Board of County

Commissioners in October, 1987, but which the Department proposes to disapprove

as not in conformance with the Principles for Guiding Development. All proposed

changes to land use district maps must take into account the uses and

restrictions applied to the districts by the development regulations, as well as

the goals and policies set forth in the Plan.

5. The Keys' Comprehensive Plan states that amendments or changes may be

considered by the Board of County Commissioners based on:

a) changed projections, such as public service needs, from those on which

the text or boundary was based;

b) changed assumptions, such as regarding demographic trends;

c) data errors, including errors in mapping, vegetative types and natural

features;

d) new issues;

e) recognition of a need for additional detail or comprehensiveness; and

f) data updates. However, no change may be approved if it results in an

adverse community change. Typographical or drafting errors may be corrected by

the Board at any time, without notice or hearing.

6. In pertinent part, the land development regulations set forth in Volume

III of the Keys' Comprehensive Plan provide:

Existing Uses

All uses existing on the effective date of

these regulations which would be permitted as

a conditional use under the terms of these

regulations shall be deemed to have a

conditional use permit and shall not be

considered nonconforming.

* * *

Sec. 5-201. Uses permitted as of right are

those uses which are compatible with other

land uses in a land use district provided

they are developed in conformity with these

regulations.

* * *

Sec. 5-301. Conditional uses are those uses

which are generally compatible with the other

land uses permitted in a land use district,

but which require individual review of their

location, design and configuration and the

imposition of conditions in order to ensure

the appropriateness of the use at a

particular location.

* * *

Sec. 7-101. The purpose of this Chapter is

to regulate and limit the continued existence

of uses and structures established prior to

the enactment of these regulations that do

not conform to the provisions of these

regulations. Many non-conformities may

continue, but the provisions of this Chapter

are designed to curtail substantial

investment in non-conformities and to bring

about their eventual elimination in order to

preserve the integrity of these regulations.

* * *

Sec. 7-103. Nonconforming Uses.

A. Authority to continue. Nonconforming

uses of land or structures may continue in

accordance with the provisions of this

Section.

B. Ordinary repair and maintenance. Normal

maintenance and repair to permit continuation

of registered nonconforming uses may be

performed.

C. Extensions. Nonconforming uses shall not

be extended. This prohibition shall be

construed so as to prevent:

1. Enlargement of nonconforming uses by

additions to the structure in which such

nonconforming uses are located; or

2. Occupancy of additional lands.

D. Relocation. A structure in which a

nonconforming use is located may not be moved

unless the use thereafter shall conform to

the limitations of the land use district into

which it is moved.

E. Change in use. A nonconforming use shall

not be changed to any other use unless the

new use conforms to the provisions of the

land use district in which it is located.

F. Termination.

1. Abandonment or discontinuance. Where

a nonconforming use of land or structure is

discontinued or abandoned for six (6)

consecutive months or one (1) year in the

case of stored lobster traps, then such use

may not be re-established or resumed, and any

subsequent use must conform to the provisions

of these regulations.

2. Damage or destruction. ... if a

structure in which a nonconforming use is

located is damaged or destroyed so as to

require substantial improvement, then the

structure may be repaired or restored only

for uses which conform to the provisions of

the land use district in which it is located.

Fair market value shall be determined by

reference to the official tax assessment

rolls for that year or by an appraisal by a

qualified independent appraiser. The extent

of damage or destruction shall be determined

by the Building Official, in consultation

with the Director of Planning, by comparing

the estimated cost of repairs or restoration

with the fair market value.

Sec. 7-104. Nonconforming Structures.

A. Authority to continue. A nonconforming

structure devoted to a use permitted in the

land use district in which it is located may

be continued in accordance with the

provisions of this Section.

B. Ordinary repair and maintenance. Normal

maintenance and repair of registered

nonconforming structures may be performed.

C. Relocation. A nonconforming structure,

other than an historic structure previously

listed on the National Register of Historic

Places or the Florida Inventory of Historic

Places, or designated as historic by the

Board of County Commissioners, shall not be

moved unless it thereafter shall conform to

the regulations of the land use district in

which it is located.

D. Termination.

1. Abandonment. Where a nonconforming

structure is abandoned for twelve (12)

consecutive months, then such structure shall

be removed or converted to a conforming

structure.

2. Damage or destruction.

a. Any part of a nonconforming structure

which is damaged or destroyed to the extent

of less than fifty percent of the fair market

value of said structure may be restored as of

right if a building permit for reconstruction

shall be issued within six (6) months of the

date of the damage.

b. ... any nonconforming structure which

is damaged or destroyed so as to require

substantial improvement may be repaired or

restored only if the structure conforms to

the provisions of the land use district in

which it is located. Fair market value shall

be determined by reference to the official

tax assessment rolls for that year or by an

appraisal by a qualified independent

appraiser. The extent of damage or

destruction shall be determined by the

Building Official, in consultation with the

Director of Planning, by comparing the

estimated cost of repairs or restoration with

the fair market value.

THE BROTHERS' PROPERTIES

7. Map Amendment 48 was requested by R. Krajfasz, Bruce Barkley and Betty

Brothers Rein (Case No. 88-1071 RP) concerning certain property they own on the

west shore of Little Torch Key which is currently zoned NA (native area) , and

which they are seeking to have rezoned SC (suburban commercial). This is an

undeveloped parcel with 700 feet adjacent to, and to the south of, U.S. 1, which

is surrounded by other, larger, undeveloped properties zoned NA and SR (suburban

residential). The property is a salt marsh wetland which cannot be developed

without substantial filling. Existing conditions include scrub mangroves,

buttonwood and mangrove stands.

8. The Keys' Comprehensive Plan recognizes the unique and irreplaceable

character of the area's natural environment and seeks to protect the quality of

nearshore waters, wetlands, and transitional areas through the designation, NA.

It expresses the policy of prohibiting the destruction, disturbance or

modification of any wetland, except where it is shown that the functional

integrity of such wetland will not be significantly adversely affected by such

disturbance. There has been no such showing regarding Map Amendment 48. It is

also an expressed policy in the Plan to establish and promote a scenic corridor

along U.S. 1, and prohibit development along U.S. 1 that disturbs the natural

horizon. (See Sections 2-103, 104, 105 and 109, Vol. II, Keys' Comprehensive

Plan.) Approval of this Map Amendment is inconsistent with these policies since

SC zoning allows much more intensive use of the property, placing a greater

demand on water resources and other infrastructure in the Keys.

9. Bud and Patricia Brothers have requested the rezoning of certain

undeveloped properties they own on Big Pine Key, known as Long Beach Estates,

consisting of approximately 14 acres planned for a motel site, and 30 lots of

greater than one acre each. These requests are for Map Changes 61 and 63 (Case

Nos. 88-1074 and 88-1075 RP). These properties are currently zoned NA, and the

rezoning sought is SR. Existing conditions consist of red mangrove, hammock

species, sea grape, pond apple, bay cedar and similar species.

10. Map Amendments 61 and 63 have not been shown to be consistent with the

Future Land Use Element in that they would reasonably result in development

which would have significant adverse affects on wetland areas, beaches, berms

and the quality of nearshore waters. (See Sections 2-104, 105 and 107.)

11. The requested rezonings of the Brothers' Properties (Map Amendments

48, 61 and 63) would be inconsistent with the Principles for Guiding

Development. Specifically, they would adversely affect the shoreline and marine

resources, including mangroves and wetlands, native tropical vegetation, dunes,

water quality and the natural scenic resources of the Florida Keys. Petitioners

failed to present competent substantial evidence in support off these requested

Map Amendments. There is no demonstrated need for additional commercial

development in the Little Torch Key area.

BIG PINE KEY

12. Petitioners Schirico Corporation and BHF Corporation have filed Map

Amendments 66 and 67, respectively, (Case Nos. 88-1076 and 88-1077 RP) which

seek to rezone their properties on Big Pine Key to SC from NA and SC (Schirico),

and from SR (BHF).

13. Although there was conflicting evidence concerning the exact extent of

wetlands on the Schirico property, both the Petitioner and the Department

presented evidence demonstrating that a significant portion of the property in

Map Amendment 66 is wetland with wetland species, including black, white and red

mangroves, and buttonwood. The property is in a transition zone between uplands

and wetlands, and is crisscrossed with mosquito ditches. The requested

Amendment is for the entire undeveloped parcel of almost ten acres, designating

it all SC.

14. The BHF parcel is approximately 5 acres in size, undeveloped, and is

located off of U.S. 1 with SC property between it and U.S. 1. The property is

also adjacent to SR and IS (improved subdivision) properties. The traffic flow

along an arterial road from this parcel to U.S. 1 is very heavy due to existing

commercial development and the county road prison camp located in close

proximity. This parcel acts as a buffer between commercial uses, and would be

an ideal site for affordable housing.

15. There is an excess of undeveloped SC property on Big Pine Key, and,

therefore, both of these proposals are inconsistent with sound economic

development.

16. Map Amendment 66, requested by Schirico, is inconsistent with the

Principles of Guiding Development which seek to protect mangroves, wetlands,

fish and wildlife, and their habitat, as well as native tropical vegetation, and

to limit adverse impacts of development on water quality in the Keys.

17. Map Amendment 67, requested by BHF, is inconsistent with the

Principles for Guiding Development which emphasize the need to strengthen local

government's land use management capabilities, provide affordable housing, and

to protect the public welfare.

THE MEDIAN STRIP

18. The following Petitioners own property which comprise the median strip

between U.S. 1 and County Road 5 on Plantation Key: Robert Vaughn (Map

Amendment 170; Case No. 88- 1094 RP); Diane Droney (Map Amendment 172; Case No.

88-1095 RP); Jean Anderson (Map Amendment 173; Case No. 88-1096 RP); Monte Green

(Map Amendment 174; Case No. 88-1097 RP); Harry Palen (Map Amendment 175; Case

No. 88-1098 RP); Robert Vaughn (Map Amendment 176; Case No. 88-1099 RP); and

Karl Beckmeyer and William Horton (Map Amendment 177; Case No. 88-1100 RP). In

addition, Petitioners Outdoor Advertising of the Keys (Case No. 88-1067 RP),

Dorothy M. Baer (Case No. 88-1092 RP) and C. W. Hart (Case No. 88-1093 RGA)

support Map Amendments 170, 172-177.

19. The median strip between U.S. 1 and County Road 5 is 120 feet deep and

individual lots in the median are generally 60 feet wide. Petitioners each own

from one to six lots in the median strip which are currently used and developed

for substantially commercial purposes, such as cabinet making and sales,

greeting card and novelty shop, retail plant nursery and office, a mini-mall

with 17 stores, gas station and a professional office building. Current zoning

of this property is SR, and Petitioners seek SC zoning with these Map

Amendments.

20. Although there is some undeveloped property in the median strip, there

is no residential development in this strip. A 120 foot wide strip between

highways is not appropriate for residential development. This median strip is

primarily a commercial area, and Petitioners in this case have existing

commercial uses, or own property adjacent to such commercial uses. Therefore,

these applications should be dealt with together, as one package, rather than

individually, according to Maria Abadal, the Department's planning manager who

directs the critical area program in the Keys. Abadal testified that commercial

areas should be zoned for commercial uses, and SC is a commercial zoning

classification. Donald Craig also testified that some of these Map Amendments

should be approved because SR is intended to encourage residential development,

and residential uses are not appropriate in a median strip. He noted that other

median strips in the Upper Keys have SC zoning. Finally, Bernard Zyscovich

confirmed that the character of this strip is clearly commercial, and it is not

appropriate for residential development.

21. Of particular relevance to these Map Amendments are the following

provisions of the Keys' land development regulations:

Sec. 9-106. Purpose of the Sub Urban

Commercial District (SC)

The purpose of this district is to

establish areas for commercial uses designed

and intended primarily to serve the needs of

the immediate planning area in which they are

located. This district should be established

at locations convenient and accessible to

residential areas without use of U.S. 1.

Sec. 9-107. Purpose of the Sub Urban

Residential District (SR)

The purpose of this district is to

establish areas of low to medium density

residential uses characterized principally by

single-family detached dwellings. This

district is predominated by development;

however, natural and developed open space

create an environment defined by plants,

spaces and over-water views.

All of Petitioners' properties allow access from County Road 5, and, therefore,

can be used without disrupting the flow of traffic along U.S. 1.

22. Most of Petitioners' existing commercial buildings are less than 2500

square feet. Buildings of this size are allowed as a matter of right in SC

zoning, but are a conditional use in SR zoning. Therefore, if destroyed by fire

or natural disaster, Petitioners could not replace existing structures as a

matter of right under their current SR zoning, but could do so under SC zoning

sought by these Map Amendments.

23. Maria Abadal expressed the Department's opposition to these Map

Amendments, which she stated ware inconsistent with the policies expressed in

the Keys' Comprehensive Plan to restrict upland clearing along U.S. 1, prohibit

development that is disruptive of the natural horizon along U.S. 1, and promote

a scenic corridor along U.S. 1. However, these parcels are already cleared, and

have been used for commercial purposes for many years. There is, therefore, no

basis for a finding of inconsistency based upon these policies. She also

testified that these Amendments are inconsistent with the Principles for Guiding

Development which seek to protect the historical heritage, character, and

natural scenic resources of the Keys. There is no basis to find that an

existing commercial area will be inconsistent with these Principles since there

is no evidence in the record of any unique historical heritage, character or

scenic resources associated with these commercial uses. By recognizing the

existing character of these parcels, and allowing their continued commercial use

as a matter of right in the event of destruction by fire or a natural disaster,

approval of these Map Amendments would appear to reduce the need for new

commercial uses elsewhere on Plantation Key, while assuring continued citizen

access to long-standing commercial activities.

THE SEWAGE PLANT NEIGHBOR

24. Robert and Judy Wittey have filed Map Amendment 194 which seeks to

rezone their 100 foot by 152.47 foot lot on Plantation Key from IS (Improved

Subdivision) to SC (Case No. 88-1113 RP). Petitioners currently use this

property to operate a commercial air conditioning business, with fiberglassing,

welding and associated storage. There is a 5200 square foot commercial building

on the property.

25. Surrounding uses include a condominium, with its sewage treatment plan

located immediately adjacent to the Wittey property, a high school athletic

field, with a sewage treatment facility within 150 feet of this property, the

high school's automotive repair garage and vocational training facilities, and a

commercial contracting business. A generator for the condominium is also

located next to this property. There are no single-family residential uses on

the street where this property is located. The Wittey property is not part of a

platted subdivision.

26. Under its current IS zoning, the building located on this property is

a nonconforming use, and may not be expanded or reconstructed if destroyed by

fire or a natural disaster. SC is the lowest intensity land use designation

that could be applied to this property which would result in the current

structure being a conforming use.

27. In pertinent part, the Keys' land development regulations provide that

the purpose of the IS designation is to accommodate the legally vested

residential development rights of the owners of subdivision lots that were

lawfully established and improved prior to the adoption of the regulations.

28. There was no showing of inconsistency with the Principles for Guiding

Development if Map Amendment 194 were to be approved. Specifically, it was not

shown that approval of this Map Amendment would have an adverse impact on public

facilities or the natural resources. The Petitioners demonstrated that SC is,

in fact, the appropriate zoning for this property, and that IS is totally

inappropriate since this property is not part of a platted subdivision. There

is no basis to zone this property IS based upon the existing uses surrounding

this property.

THE PILOT/FISH HOUSES

29. Map Amendments 242, 243 and 245 involve the applications filed by

Petitioners Coral Lake Realty, Inc. (Case No. 88-1114 RP), Jack and Dorothy Hill

(Case No. 88-1115 RP) and Shirley Gunn (Case No. 88-1117 RP) for the rezoning of

properties they own surrounding a basin, known as Lake Largo, on North Key

Largo. The Coral Lake Realty property is the site of an existing restaurant,

known as The Pilot House, and marina. The Gunn property is the former site of a

commercial fish house, which was abandoned in 1985 due to a decline of

commercial fish harvests and a loss of wholesalers. Gunn's property is also the

location of a burned out building, a dive shop, and a few commercially leased

docks. The Hill property is used to operate a commercial fish house, fish

processing, and the patching and building of traps. These properties are one-

half mile off of U.S. 1.

30. Petitioners' properties are currently zoned CFSD-5 (Commercial

Fishing-Key Largo), and they are seeking to have them rezoned MU (mixed use).

In pertinent part, the Keys' land use regulations provide:

Sec. 9-118. Purpose of the Commercial

Fishing Special Districts

(CFS).

The purpose of these districts is to

establish areas where various aspects of

commercial fishing have been -traditionally

carried out while prohibiting the

establishment of additional commercial

fishing uses which are inconsistent with the

natural environment, immediate vicinity or

community character of the area.

Sec. 9-119. Purpose of the Mixed Use

District (MU)

The purpose of this district is to

establish or conserve areas of mixed uses

including commercial fishing, resorts,

residential, institutional and commercial

uses and preserve these as areas

representative of the character, economy and

cultural history of the Florida Keys.

The only uses permitted as of right in a CFSD-5 district are commercial-fishing,

detached dwellings and accessory uses. The MU designation allows, but does not

encourage or promote, commercial fishing. It is designed for intense mixed

uses, some of which would be inappropriate for this basin. There are areas in

the Keys where fish houses are located in MU zoning. Petitioners have not

demonstrated there is any shortage of MU areas in the Keys.

31. According to Lane Kendig, an expert in comprehensive planning,

promoting commercial fishing is one of the main aims of the Keys' Comprehensive

Plan, and the CFSD zoning category is a primary method of implementing this aim.

Because commercial fishing activities can only be located in areas such as this

which have deep water access, CFSD zoning of properties with these site specific

characteristics should be encouraged, and approval of these Map Amendments would

be inconsistent with this objective of the Plan.

32. The community character of the Lake Largo basin is heavily dominated

by commercial fishing and associated activities, although some mixed uses are

also present. (See Section 2-109.) It is surrounded by SR and IS districts,

and existing residential uses.

33. The Pilot House restaurant (Map Amendment 242; Case No. 88-1114 RP) is

a nonconforming use in the CFSD-5 zone which could not be expanded, or replaced

as of right if destroyed by fire or natural disaster. Bernard J. Costello,

principal stockholder in The Pilot House, testified that MU zoning is being

sought to allow the placement of more docks in the basin, and to make additional

improvements to the restaurant which could not be allowed in CFSD-5. It is his

intention to continue to use this property as a restaurant and marina if the Map

Amendment is approved.

34. The Hill fish house (Map Amendment 243; Case No. 88-1115 RP)

processes, freezes and cooks fish which is primarily shipped in from other

countries and states. Only 10 percent of the product handled through this fish

house is caught locally in the Keys, while in 1972, all of the product was

local. Due to the decline of local commercial fishing, about five years ago

imported fish became the majority of product handled in this fish house. Some

fishermen now sell directly to trucks, and bypass the fish houses. Recreational

users now comprise a significant portion of boat slip renters on the basin.

35. While there has been a decline in local commercial fishing, such uses

are still present and the uses permitted as of right in CFSD-5 are more

appropriate for this basin than those uses for which the MU designation was

developed. These Map Amendments would be inconsistent with the community

character of this basin, and would not comply with those Principles for Guiding

Development which seek to strengthen the capabilities of local government for

managing land use and development, limit adverse impacts of development on water

quality, and protect the unique historic character and heritage of the Keys.

"NOSEEUMS"

36. Jerome and Mary Behrmann have filed Map Amendment 263 (Case No. 88-

1118 RP) seeking to have their property located on Key Largo rezoned from SR to

SC. This property has been operated as a tropical plant nursery for about five

years. Donald W. Ross has filed Map Amendment 268 (Case No. 88-1119 RP) seeking

to also have property located on Key Largo rezoned from SR to SC. This property

is used to operate an aluminum siding business. There is no access to these

properties, except from U.S. 1. Petitioners' present uses are nonconforming in

a district zoned SR, and, therefore, may not be modified, repaired or replaced

if destroyed by fire or natural disaster.

37. Both of these petitions deal with properties located on the same side

of U.S. 1 in an area of intense natural vegetation and hardwood hammocks. With

the exception of Petitioners' properties, the area immediately adjacent on the

same side of U.S. 1 is undeveloped. However, on the opposite side of U.S. 1 is

intense commercial development, including strip stores, used car sales, a flea

market and convenience store. A power station is located to the north of these

properties on the same side of U.S. 1.

38. Due to the heavy infestation of microscopic insects, known locally as

"Noseeums," resulting from natural vegetation on these and adjoining properties,

residential development would be very difficult. These mosquito-like gnats

become active in the early evening and at night, and are so small that they

cannot be prevented from entering residences by screening. Local residents will

not go outdoors after dark in areas infested with "Noseeums." Petitioners'

commercial activities do not require them to be on these properties at night.

39. In the area adjoining Petitioners' properties, U.S. 1 is a four lane

divided highway which forms a natural land use, and zoning barrier from the

commercial activities on the opposite side of the highway.

40. Petitioners' parcels represent relatively small portions of an area

zoned SR which extends approximately one mile along U.S. 1, and is from 650 to

700 feet deep. The only issue in this case is whether Petitioners' properties

should be rezoned SC, which would leave the rest of this area zoned SR. Such a

rezoning of these parcels to SC would be a classic case of spot zoning since it

would confer special benefits to these owners without regard to adjoining

owners, and would destroy and disrupt the overall integrity of this SR district.

41. There are sufficient undeveloped SC properties in this immediate area,

and there is, therefore, no demonstrated need for additional SC zoning.

42. Petitioners' expert, Bernard Zyscovich, acknowledged that those

properties presently zoned SR which adjoin Petitioners' properties could be used

for residential development. This is an area in Key Largo where the County is

attempting to direct residential development. Although it is not on the water

and does not have a water view, there are other residential areas in the Keys

which lack these amenities.

43. The rezoning to SC sought by Map Amendments 263 and 268 would be

inconsistent with the following objectives and policies of the Keys'

Comprehensive Plan (Sections 2-106 and 109):

To protect the functional integrity of upland

hammocks that contribute to the tropical and

native character of the Florida Keys,

particularly along U.S. 1 and County Road

905.

* * *

To restrict the clearing of upland vegetation

that contributes to the tropical and native

character of the Florida Keys along the U.S.

1 and County Road 905 corridors.

* * *

To limit the development of new land uses to

intensities and characters that are

consistent with existing community character

where a community character change would have

undesirable social, cultural, economic or

environmental impacts.

* * *

To establish and promote a scenic corridor

along U.S. 1 and County Road 905.

44. These Map Amendments would also be inconsistent with those Principles

for Guiding Development that mandate protection of upland resources and native

tropical vegetation such as hardwood hammocks, limiting adverse impacts of

development on water quality, and enhancement of natural scenic resources.

CAPTION'S COVE

45. Robert Maksymec is the principal stockholder of development

partnerships known as Tormac and Planmac which are Petitioners in Cases 88-1121

and 88-1122 RP, respectively, and which are seeking Map Amendments 135 and 136

for certain undeveloped, scarified properties owned by Petitioners surrounding a

basin known as Captain's Cove on Lower Matecumbe Key. These properties are

zoned CFA (commercial fishing area) and Map Amendments 135 and 136 seek SC

zoning. Although this property is located between Captain's Cove and U.S. 1, it

is accessible by arterial roads without using U.S. 1.

46. Petitioners propose to develop these properties into a hotel with 52

boat slips, and marine shops. Deed restrictions on the property bar commercial

fishing. The Department of Environmental Regulation has issued Permit Number

441008425 to construct a 52 boat slip and docking facility conditioned on non-

commercial uses, and prohibiting fuel or storage facilities, as well as boat

cleaning, hull maintenance and fish cleaning at the permitted facility. Under

CFA zoning, Petitioners' proposed use is nonconforming.

47. CFA allows more commercial and intense uses than CFSD-5. In pertinent

part, the Keys' land use regulations provide:

Sec. 9-106. Purpose of the Sub Urban

Commercial District (SC)

The purpose of this district is to

establish areas for commercial uses designed

and intended primarily to serve the needs of

the immediate planning area in which they are

located. This district should be established

at locations convenient and accessible to

residential areas without use of U.S. 1.

* * *

Sec. 9-116. Purpose of the Commercial

Fishing Area District (CFA)

The purpose of this district is to

establish areas suitable for uses which are

essential to the commercial fishing industry

including sales and service of fishing

equipment and supplies, seafood processing,

fishing equipment manufacture and treatment,

boat storage and residential uses.

48. These properties are surrounded by commercial and marine commercial

uses, and across the basin is a residential area. There is no demonstrated need

for undeveloped SC properties in this area.

49. Since these properties are located on a water basin with residential

areas in close proximity, SC zoning is inappropriate and inconsistent with the

Principles For Guiding Development, which seek to limit the adverse impacts of

development on water quality, and ensure sound economic development. It also

appears, however, that the current CFA zoning may also be inappropriate for this

property due to existing deed restrictions, DER permit conditions, and the

decline in commercial fishing activities in the Keys in recent years.

Nevertheless, the only issue in dispute in this case is whether the SC

designation sought in Map Amendments 135 and 136 is consistent with the

Principles For Guiding Development, and it is not.

THE OLD POST OFFICE

50. Petitioner Catherine Nash has filed Map Amendment 215 (Case No. 88-

1128 RP) by which she seeks to have property she owns in Tavernier, known as The

Old Post Office, rezoned from its current SR to SC.

51. The subject property is currently used to operate an art gallery and

related business, but was formerly used from 1926 to about 1960 as a grocery

store and post office. The only access to this property is from U.S. 1. The

property is surrounded by SR zoning. Across U.S. 1 there are SC zoned

properties.

52. There was conflicting testimony whether Petitioner's existing building

could be rebuilt in SR zoning if destroyed by fire or natural disaster. It has,

therefore, not been established that SC zoning is necessary to protect the

present existing use of this property.

53. Due to the lack of access to the property other than from U.S. 1, it

fails to meet an essential requirement for SC zoning. Approval of Map Amendment

215 would also represent a clear case of spot zoning since this would be an

isolated SC parcel amid an SR district.

54. Petitioner's Map Amendment has not been shown to be consistent with

the Principles For Guiding Development, and in particular those which seek to

strengthen local government's capabilities for managing land use and

development, and which seek to ensure sound economic development which is

compatible with the unique historic character of the Keys.

TROPIC SOUTH

55. Petitioner Tropic South was represented at hearing, but no evidence in

support of Map Amendment 91 (Case No. 88-1083 RP) was offered.

ECONOMIC IMPACT STATEMENT

56. There is no evidence that the Department has developed an economic

impact statement (EIS) for those portions of the proposed rules disapproving the

above referenced Map Amendments previously approved by Monroe County. The

Department did prepare an EIS for those Map Amendments transmitted by Monroe

County which the Department approved, but those Amendments, and that EIS, are

not the subject of this proceeding.

CONCLUSIONS OF LAW

57. The Division of Administrative Hearings has jurisdiction over the

parties and subject matter in this cause. Sections 120.54(17) and 120.57(1),

Florida Statutes; Rule 28-5.604(5), Florida Administrative Code.

58. At the Petitioners' request pursuant to Section 120.54(17), Florida

Statutes, the Department suspended its rulemaking proceeding as it related to

these proposed Map Amendments, and transmitted the matter to the Division of

Administrative Hearings for a separate proceeding under the provisions of

Section 120.57. This more formal proceeding was deemed appropriate because the

Petitioners demonstrated to the Department that normal rulemaking proceedings

did not provide an adequate opportunity to protect their substantial interests.

Section 120.54(17), Florida Statutes (1987).

59. The purpose of this "draw out" proceeding is to allow Petitioners to

make an effective presentation of their evidence and arguments concerning these

proposed rules, and to permit the parties to make statements under oath, conduct

discovery, and cross examine witnesses. The "draw out" proceeding allows

greater input than is available at a public rulemaking hearing. Balino v.

Department of Health and Rehabilitative Services, 362 So.2d 21 (Fla. 1st DCA

1978); cert. den., 370 So.2d 458; appeal dismissed, 370 So.2d 462; Whitehall

Boca v. Department of Health and Rehabilitative Services, 456 So.2d 928 (Fla.

1st DCA 1984).

60. Petitioners are asserting the affirmative of the issue in this case by

contending that the Department should have approved, rather than rejected, their

Map Amendments. The burden in a rule challenge is on the party attacking an

agency's proposed rule. Accordingly, the Petitioners have the burden of proof.

Florida Department of Health and Rehabilitative Services v. Career Service

Commission, 289 So.2d 412 (Fla. 4th DCA 1974); Florida Department of

Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1981); Agrico Chemical

Co. v. Department of Environmental Regulation, 365 So.2d 760 (Fla. 1st DCA

1978). Of course, the validity of these proposed rules is not at issue in this

"draw out" proceeding. Rather, the Department may modify these proposed rules

after consideration of the record established at hearing, including the parties'

evidence and argument, as well as these findings and recommendations.

61. Petitioners challenge the Department's proposed rule for failure to

include or provide an Economic Impact Statement (EIS) as required by Section

120.54(2)(a) and (b), Florida Statutes (1987). The evidence establishes that

the Department has not developed an EIS which addresses the impact of the

proposed rules at issue in this case on the Petitioners. The Department did

prepare a one-page document which is entitled "Statement of Economic Impact", a

copy of which was admitted into evidence. However, this Statement was prepared

for those Map Amendments which were approved by the Department, and no economic

impact analysis was developed by the Department for the rejection of Map

Amendments. Failure to meet the requirements of Section 120.54(2)(b) is a

ground for holding a rule invalid, whether it be a proposed or final rule.

Section 120.54(2)(d), Florida Statutes (1987); Florida-Texas Freight, Inc. v.

Hawkins, 379 So.2d 944 (Fla. 1979); Department of Health and Rehabilitative

Services v. Wright, 439 So.2d 937, 940 (Fla. 1st DCA 1983). While the validity

of these proposed rules is not at issue in this case, the Department should

avoid a future challenge by preparing an EIS at this stage of the proceeding.

62. Section 380.05(6), Florida Statutes, provides that no proposed land

development regulation shall become effective until the Department has adopted a

rule approving such regulation. By definition, land development regulations

include land use maps and map amendments. Section 380.031(8), and Rule 28-

20.19(4), Florida Administrative Code. In pertinent part, Section 380.0552,

Florida Statutes provides:

380.0552 Florida Keys Area; protection

and designation as area of critical state

concern.--

(7) PRINCIPLES FOR GUIDING DEVELOPMENT.--

State, regional, and local agencies and units

of government in the Florida Keys Area shall

coordinate their plans and conduct their

programs and regulatory activities consistent

with the principles for guiding development

as set forth in chapter 27F-8, Florida

Administrative Code, as amended effective

August 23, 1984, which chapter is hereby

adopted and incorporated herein by reference.

For the purposes of reviewing consistency of

the adopted plan or any amendments to that

plan with the principles for guiding

development and any amendments to the

principles, the principles shall be construed

as a whole and no specific provision shall be

construed or applied in isolation from the

other provisions. However, the principles

for guiding development as set forth in

chapter 27F-8, Florida Administrative Code,

as amended effective August 23, 1984, are

repealed 18 months from July 1, 1986. After

repeal, the following shall be the principles

with which any plan amendments must be

consistent:

(a) To strengthen local government

capabilities for managing land use and

development so that local government is able

to achieve these objectives without the

continuation of the area of critical state

concern designation.

(b) To protect shorelines and marine

resources, including mangroves, coral reef

formations, seagrass beds, wetlands, fish and

wildlife, and their habitat.

(c) To protect upland resources,

tropical biological communities, freshwater

wetlands, native tropical vegetation (for

example, hardwood hammocks and pinelands),

dune ridges and beaches, wildlife, and their

habitat.

(d) To ensure the maximum well-being of

the Florida Keys and its citizens through

sound economic development.

(e) To limit the adverse impacts of

development on the quality of water

throughout the Florida Keys.

(f) To enhance natural scenic resources,

promote the aesthetic benefits of the natural

environment, and ensure that development is

compatible with the unique historic character

of the Florida Keys.

(g) To protect the historical heritage

of the Florida Keys.

(h) To protect the value, efficiency,

cost-effectiveness, and amortized life of

existing and proposed major public

investments, including:

1. The Florida Keys Aqueduct and water

supply facilities;

2. Sewage collection and disposal

facilities;

3. Solid waste collection and disposal

facilities;

4. Key West Naval Air Station and

other military facilities;

ansportation facilities;

6. Federal parks, wildlife refuges, and

marine sanctuaries;

7. State parks, recreation facilities,

aquatic preserves, and other publicly owned

properties;

8. City electric service and the

Florida Keys Co-op; and

9. Other utilities, as appropriate.

(i) To limit the adverse impacts of

public investments on the environmental

resources of the Florida Keys.

(j) To make available adequate

affordable housing for all sectors of the

population of the Florida Keys.

(k) To provide adequate alternatives for

the protection of public- safety and welfare

in the event of a natural or man-made

disaster and for a post-disaster

reconstruction plan.

(l) To protect the public health,

safety, and welfare of the citizens of the

Florida Keys and maintain the Florida Keys as

a unique Florida resource.

* * *

(9) MODIFICATION TO PLANS AND

REGULATIONS. --Any land development regulation

or element of a local comprehensive plan in

the Florida Keys Area may be enacted,

amended, or rescinded by a local government,

but the enactment, amendment or rescission

shall become effective only upon the approval

thereof by the state land planning agency.

The state land planning agency shall review

the proposed change to determine if it is in

compliance with the principles for guiding

development set forth in chapter 27F-8,

Florida Administrative Code, as amended

effective August 23, 1984, and shall either

approve or reject the requested changes

within 60 days of receipt thereof. Further,

the state land planning agency, after

consulting with the appropriate local

government, may, no more often than once a

year, recommend to the Administration

Commission the enactment, amendment, or

rescission of a land development regulation

or element of a local comprehensive plan.

Within 45 days following the receipt of such

recommendation by the state land planning

agency, the commission shall reject the

recommendation, or accept it with or without

modification and it, by rule, including any

changes. Any such local development

regulation or plan shall be in compliance

with the principles for guiding development.

(Emphasis supplied.)

63. Petitioners in Cases Numbered 88-1067 RP, 88-1092 through 88-1100 RP,

and 88-1113 RP which seek the approval of Map Amendments 170, 172 through 177,

and 194 (The Median Strip and Sewage Plant Neighbor) have met their burden of

proof in this case. It has been shown that approval of these Map Amendments

would be consistent with the Principles For Guiding Development set forth in

Section 380.0552(7), above, as interpreted and applied by the Department relying

upon pertinent provisions of the Keys' Comprehensive Plan.

64. As set forth in the above Findings of Fact, the Median Strip is

already predominately developed for commercial uses. While there is some

undeveloped property, there is no residential property in the portion of the

strip where Petitioners' properties are located. Approval of these Amendments

will not result in spot zoning since they should be dealt with as one package

according to the Department's expert in Monroe County comprehensive planning,

Maria Abadal. The evidence also established that residential development is not

appropriate in a 120 foot wide median strip between two highways. The character

of this strip is commercial, the existing uses serve the commercial needs of

residents, and the properties at issue are accessible without use of U.S. 1.

Under these circumstances, Petitioners have shown that their properties meet the

purpose of a Sub Urban Commercial District (SC), and would not be appropriate

for a Sub Urban Residential (SR) designation. By allowing existing commercial

uses to continue in areas already used for commercial purposes, and to be

replaced in the event of fire or natural disaster, these Map Amendments are

consistent with those Principles which promote sound economic development,

protect community character, and preserve the natural resources of the Keys by

obviating the future need to relocate these commercial uses to presently

undeveloped properties.

65. The Sewage Plant Neighbor is inappropriately designated as Improved

Subdivision (IS) since this property is not part of a platted subdivision, a

necessary condition for IS. The Petitioner demonstrated that this property is

currently used for commercial purpose, and is surrounded by two sewage treatment

plants, a high school athletic field and repair garage, and a condominium

generator. The Map Amendment filed by Petitioner seeks SC zoning, and it was

shown that approval of this Amendment would be consistent with those Principles

Far Guiding Development which seek to promote sound economic development and the

protection of the public welfare, and would not violate any Principle that

emphasizes the need to protect the natural resources of the Keys.

66. The remaining Petitioners did not meet their burden of showing that

their Map Amendments were consistent with the Principles For Guiding

Development, and that, therefore, the Department should approve those

Amendments. Specific findings which support this conclusion are set forth above

for each of the remaining Petitioners. In summary, however the evidence

presented by Petitioners was not of sufficient competence and substantiality,

when weighed against the evidence presented by the Department, to establish a

predominance in favor of these Petitioners. The degradation of the Keys'

natural resources, wetlands, and water quality, adverse impacts on historical

and community character, as well as the availability of affordable housing, and

spot zoning which would result from approval of certain Amendments, are all

matters of primary concern regarding these remaining Map Amendments, approval of

which would also be inconsistent with the need to strengthen local government's

land use management capabilities.

RECOMMENDATION

Based upon the foregoing, it is RECOMMENDED that the Department approve Map

Amendments 170 and 172 through 177 (The Median Strip), as well as 194 (Sewage

Plant Neighbor), and otherwise disapprove all other Map Amendments which are the

subject of this proceeding, as proposed in Rules 9J-14.006 and 9J-15.006,

Florida Administrative Code. Further, it is RECOMMENDED that the Department

prepare an Economic Impact Statement which addresses the impact of its proposed

action on Petitioners.

DONE and ENTERED this 28th day of March, 1989, in Tallahassee, Leon County,

Florida.

___________________________________

DONALD D. CONN

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 28th day of March, 1989.

ENDNOTE

1/ The Board of County Commissioners of Monroe County was dismissed as a party

herein following the conclusion of the Department's case since no evidence was

introduced by the Department indicating that the project, which is the subject

of this hearing, was contrary to the land use plan of Monroe County.

APPENDIX

Rulings on the Department's Proposed Findings of Fact.

1. Adopted in Finding of Fact 3.

2. Adopted in Finding of Fact 4.

3. Adopted in Finding of Fact 6.

4-5. Adopted in Finding of Fact 4.

6-9. Adopted in Finding of Fact 7.

10. Adopted in Findings of Fact 8,11.

11. Adopted in Finding of Fact 8.

12. Adopted in Finding of Fact 11.

13-14. Adopted in Finding of Fact 9.

15. Adopted in Finding of Fact 10.

16. Adopted in Finding of Fact 11.

17-18. Adopted in Finding of Fact 9.

19. Adopted in Finding of Fact 10.

20. Adopted in Finding of Fact 11.

21. Adopted in Findings of Fact 12,13.

22. Adopted in Finding of Fact 13.

23. Rejected in Finding of Fact 13.

24. Adopted in Finding of Fact 13.

25. Adopted in Finding of Fact 16.

26. Adopted in Findings of Fact 12,14.

27. Adopted in Finding of Fact 14.

28. Adopted in Finding of Fact 15.

29. Adopted in Findings of Fact 15,17.

30. Adopted in Finding of Fact 18.

31. Adopted in Finding of Fact 19.

32. Rejected as irrelevant and not based on competent substantial

evidence. These Petitioners seek SC zoning.

33. Rejected as irrelevant.

34. Adopted in Findings of Fact 20,21 but otherwise rejected in Finding of

Fact 22 and as irrelevant.

35. Rejected in Finding of Fact 19, and otherwise as irrelevant.

36-37. Rejected in Finding of Fact 23.

38-39. Adopted in Finding of Fact 24.

40. Adopted in Finding of Fact 26.

41. Adopted and Rejected in part in Finding of Fact 25.

42-43. Rejected in Finding of Fact 28.

44-45. Adopted in Findings of Fact 29,30.

46. Adopted in Finding of Fact 29.

47. Adopted in Finding of Fact 32.

48. Adopted in Finding of Fact 29.

49-50. Adopted in Finding of Fact 30.

51. Adopted in Finding of Fact 31.

52. Adopted in Finding of Fact 30.

53. Adopted in Findings of Fact 31,32 .

54. Adopted in Finding of Fact 35.

55. Adopted in Findings of Fact 36,37.

56-57. Adopted in Finding of Fact 36.

58. Adopted in Findings of Fact 37,39.

59. Adopted in Finding of Fact 40.

60. Rejected as unnecessary.

61. Adopted in Finding of Fact 43.

62. Adopted in Finding of Fact 44.

63-65. Adopted in Findings of Fact 45,48.

66. Adopted in Finding of Fact 46.

67. Rejected as unnecessary.

68. Adopted in Finding of Fact 49.

69. Adopted in Finding of Fact 50.

70-71. Adopted in Finding of Fact 51.

72. Rejected in Finding of Fact 52.

73. Adopted in Finding of Fact 53.

74. Adopted in Finding of Fact 54.

75-78. Rejected in Finding of Fact 55.

Rulings on Petitioner Wittey's Proposed Findings of Fact.

1. Adopted in part in Findings of Fact 24,25.

2. Adopted in Findings of Fact 24,26.

3-4. Rejected as not based on competent substantial

evidence.

5. Adopted in Finding of Fact 25.

6. Rejected as argument on the evidence rather than a finding of fact.

7. Adopted in-Finding of Fact 26.

8. Rejected as unnecessary as subordinate.

9. Adopted in Findings of Fact 25,27 and 28.

10. Adopted in Finding of Fact 56.

11. Adopted in Finding of Fact 28.

Rulings on Petitioner Coral Lake's Proposed Findings of Fact.

12. Adopted in Findings of Fact 29,30.

13. Adopted in Finding of Fact 33.

14. Adopted in Finding of Fact 32.

15. Adopted in Finding of Fact 33.

16-17. Rejected as simply a statement about the evidence.

18. Adopted in Finding of Fact 32.

19-22. Rejected as simply a summation of testimony, or statements about

the evidence and not findings of fact.

Rulings on Petitioner Hills' Proposed Findings of Fact.

1. Adopted in Findings of Fact 29,34.

2. Adopted in Finding of Fact 30, but otherwise rejected as irrelevant and

unnecessary.

3. Adopted in Findings of Fact 30,33.

4. Rejected in Findings of Fact 31,34 and 35.

5. Rejected as simply a summation of evidence.

6. Rejected in Findings of Fact 31,32 and 35.

7. Adopted in Finding of Fact 30.

8. Adopted in Finding of Fact 29.

9-11. Adopted in part in Finding of Fact 34, but otherwise rejected in

Finding of Fact 35, and as irrelevant and not based on competent substantial

evidence.

12. Adopted and Rejected in part in Finding of Fact 32, and otherwise

rejected as simply a summation of testimony.

13. Rejected as speculative, a summation of testimony, and not based on

competent substantial evidence.

14. Adopted in Finding of Fact 56.

Rulings on Petitioners Behrmann's and Ross' Proposed Findings of Fact.

1-3. Adopted in Finding of Fact 36.

4. Adopted and Rejected in part in Findings of Fact 37,39.

5. Adopted in part in Finding of Fact 38, but otherwise rejected as

irrelevant and not based on competent substantial evidence.

6-7. Rejected as irrelevant.

8. Rejected as unnecessary.

9-10. Rejected in Finding of Fact 42.

11. Rejected as irrelevant.

12-14. Rejected in Findings of Fact 43,44.

15. Adopted in Finding of Fact 56.

Rulings on Petitioners Tormac's and Planmac's Proposed Findings of Fact.

12. Adopted in Finding of Fact 45.

13. Adopted in Finding of Fact 48.

14. Adopted in Finding of Fact 46.

15-17. Rejected as irrelevant and unnecessary.

18. Rejected as not based on competent substantial evidence.

19. Rejected as unnecessary.

20-21. Rejected in Finding of Fact 49.

22. Adopted in Finding of Fact 49.

23-24. Rejected as unnecessary and not a finding of fact.

25. Adopted in Finding of Fact 47.

26. Rejected in Finding of Fact 49.

Rulings on Petitioner Nash's Proposed Findings of Fact.

12. Adopted in Finding of Fact 50,51.

13. Adopted in Finding of Fact 51.

14. Rejected in Finding of Fact 52.

15. Rejected in Finding of Fact 51.

16. Rejected as cumulative and unnecessary.

17. Rejected as unnecessary.

18-19. Rejected in Finding of Fact 54.

20. Adopted in Findings of Fact 52,54.

21-22. Rejected as unnecessary and not a finding of fact.

COPIES FURNISHED:

David C. Jordan, Esquire

Department of Community Affairs

2740 Centerview Drive

Tallahassee, Florida 32399

William B. Spottswood, Esquire

500 Fleming Street

Key West, Florida 33040

David L. Manz, Esquire

Post Office Box 177

Marathon, Florida 33050

Franklin D. Greenman, Esquire

5800 Overseas Highway

Suite 40

Marathon, Florida 33050

Nicholas Mulick, Esquire

88539 Overseas Highway

Tavernier, Florida 33070

Andrew M. Tobin, Esquire

James S. Mattson, Esquire

Post Office Box 586

Key Largo, Florida 33037

Fred Tittle, Esquire

Post Office Drawer 535

Tavernier, Florida 33070

James A. Helinger, Jr., Esquire

209 Turner Street

Clearwater, Florida 34616

Betty Brothers Rein

Route 1, Mile Marker 28

Little Torch Key, Florida 33043

Larry Keesey, Esquire

Department of Community Affairs

2740 Centerview Drive

Tallahassee, Florida 32399

Thomas G. Pelham, Secretary

Department of Community Affairs

2740 Centerview Drive

Tallahassee, Florida 32399

Carroll Webb, Executive Director

120 Holland Building

Tallahassee, FL 32399-1300