88-003451 Department Of Community Affairs vs. James D. Young And Olivia A. Young Status: Closed Recommended Order on Wednesday, February 1, 1995.

Summary: Applications for land clearing permit/development orders denied where applicant refused to offer evidence in support of their applications

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF COMMUNITY AFFAIRS, )

)

Petitioner, )

)

vs. ) CASE NO. 88-3451

)

JAMES D. YOUNG, SR.; OLEVA A. )

YOUNG; and MONROE COUNTY, FLORIDA, )

)

Respondents. )

____________________________________)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned

Hearing Officer of the Division of Administrative Hearings, on November 30,

1988, in Key West, Florida.

APPEARANCES

Petitioner: John M. Carlson, Esquire

Department of Community Affairs

2740 Centerview Drive

Tallahassee, Florida 32399-2100

Respondents David Paul Horan, Esquire

James D. Young, Sr., 608 Whitehead Street

and Oleva A. Young: Key West, Florida 33040

Respondent

Monroe County: Did not appear and was not represented

PRELIMINARY STATEMENT

On March 14, 1988, Respondent Monroe County issued to Respondents James D.

Young, Sr. and Oleva A. Young Land Clearing Permits Nos. 8810000446, 8810000449,

and 8810000450. Petitioner Department of Community Affairs timely filed this

appeal to the Florida Land and Water Adjudicatory Commission, contesting the

issuance of those permits/development orders, pursuant to Section 380.07,

Florida Statutes. Accordingly, the issue for determination herein is whether

Respondents James D. Young, Sr., and Oleva A. Young's applications for those

land clearing permits should be granted.

At the commencement of the final hearing Petitioner moved to amend its

Petition in this cause to (1) correctly spell the first name of Respondent Oleva

A. Young, and (2) correctly reflect that copies of the land clearing permits in

question were delivered by Monroe County to Petitioner on March 17, 1988, rather

than on March 14, 1988. That motion was granted.

FINDINGS OF FACT

1. On October 18, 1988, a telephonic motion hearing was conducted in this

cause. During the course of that motion hearing, the parties requested a ruling

as to which party carries the burden of proof in this proceeding. The

undersigned ruled at that time that the burden of proof is on Respondents James

D. Young, Sr., and Oleva A. Young.

2. On October 25, 1988, an Order was entered in this cause memorializing

the rulings made during the course of that telephonic hearing. Paragraph

numbered 7 of that Order provides as follows:

7. This being a proceeding pursuant to

Chapter 380, Florida Statutes, the burden

of proof in this cause is on the applicants

for the permit/development order, the

entitlement to which is the subject matter

of this proceeding.

3. There is no evidence in this cause that any party filed an appeal from

the October 25, 1988, Order.

4. Immediately after the commencement of the final hearing in this cause,

Respondents James D. Young, Sr., and Oleva A. Young again raised the issue of

which party carries the burden of proof in this proceeding. Upon failing to

obtain a ruling that the Petitioner Department of Community Affairs carries the

burden of proof, Respondents James D. Young, Sr., and Oleva A. Young announced

their refusal to participate further in this proceeding.

5. Respondents James D. Young, Sr., and Oleva A. Young failed to present

any evidence in this cause.

CONCLUSIONS OF LAW

6. The Division of Administrative Hearings has jurisdiction over the

subject matter hereof and the parties hereto. Section 120.57(1), Florida

Statutes.

7. Respondents James D. Young, Sr., and Oleva A. Young are applicants for

Monroe County land clearing permits/development orders. Although Respondents

James D. Young, Sr., and Oleva A. Young received approval of their applications

for land clearing permits from Respondent Monroe County, they have not yet

received the approval by the State of Florida required under the statutory

scheme contained in Chapter 380, Florida Statutes. They, therefore, still carry

the burden of proving their entitlement to those permits/development orders in

this proceeding. Graham v. Estuary Properties, Inc., 399 So.2d 1374 (Fla.

1981), cert. den'd 454 U.S. 1083; Transgulf Pipeline Co./Department of Community

Affairs v. Board of County Com'rs, 438 So.2d 876 (Fla. 1st Dist 1983)) review

den'd 449 So.2d 264; Florida Department of Transportation v. J.W.C. Co., Inc.,

396 So.2d 778 (Fla. 1st Dist. 1981); Department of Community Affairs v. Arthur

B. Lujan, Board of County Commissioners of Monroe County, Florida, and the

Planning, Building, and Zoning Department of Monroe County, Florida, DOAH Case

No. 86-1496 (Final Order entered July 6, 1987); Department of Community Affairs,

et al. v. Bartecki, Kephart, and Monroe County Zoning Board, DOAH Case No. 84-

1198 (Final Order entered September 24, 1985); Department of Community Affairs

v. Monroe County, Florida, McDonald/Allen, Donia, Bobowski, and Stage, DOAH Case

Nos. 83-3704, 84-0360, 84-0361; and 84-0362 (Final Order entered June 10,

1985). As the Court stated in Florida Department of Transportation v. J.W.C.

Co., Inc., supra:

We view it as fundamental that an applicant

for a license or permit carries the

`ultimate burden of persuasion' of

entitlement *through all proceedings, of

whatever nature, until such time as final

action has been taken by the agency.*

At. 787 [Emphasis supplied between *]

8. Respondents James D. Young, Sr., and Oleva A. Young having failed to

present any evidence in this cause, they have failed to present a prima facie

case and have failed to carry their burden of proof in this proceeding.

9. Section 380.08(3), Florida Statutes, requires the consideration of any

conditions which can be attached to the permit/development order under

consideration which would allow that permit/development order to be granted.

Since no evidence was presented regarding the three land clearing permit

applications involved herein, there are no conditions pursuant to which

Respondents James D. Young, Sr., and Oleva A. Young's applications for land

clearing permits can be granted.

RECOMMENDATION

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

RECOMMENDED that a Final Order be entered denying Respondents James D.

Young, Sr., and Oleva A. Young's applications for Monroe County Land Clearing

Permits Nos. 8810000446, 8810000449, and 8810000450.

DONE and RECOMMENDED this 21st day of December, 1988, at Tallahassee,

Florida.

___________________________________

LINDA M. RIGOT, 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 21st day of December, 1988.

COPIES FURNISHED:

Patty Woodworth, Secretary

Land and Water Adjudicatory Commission

Planning and Budgeting

Executive Office of the Governor

The Capitol, PL-05

Tallahassee, Florida 32399-0001

Thomas G. Pelham, Secretary

Department of Community Affairs

2740 Centerview Drive

Tallahassee, Florida 32399-2100

John M. Carlson, Esquire

Department of Community Affairs

2740 Centerview Drive

Tallahassee, Florida 32399-2100

David Paul Horan, Esquire

608 Whitehead Street

Key West, Florida 33040

Larry Keesey, Esquire

Department of Community Affairs

2740 Centerview Drive

Tallahassee, Florida 32399-2100

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA

LAND AND WATER ADJUDICATORY COMMISSION

DEPARTMENT OF )

COMMUNITY AFFAIRS )

)

Petitioner, )

)

vs. ) 88-17

) DOAH CASE NO. 88-3451

JAMES D. YOUNG, SR., )

OLEVA A. YOUNG, and )

MONROE COUNTY, FLORIDA, )

)

Respondents. )

__________________________)

FINAL ORDER

This cause came before the Governor and Cabinet of the State of Florida,

sitting as the Florida Land and water Adjudicatory Commission ("the

Commission"), on February 28, 1989, 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 December 21, 1988

("the Recommended Order"), a copy of which is attached as Exhibit A, and

exceptions filed subsequent thereto. Based upon the Commission's review of this

cause, it is hereby ordered:

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

Fact set out in paragraphs 1 through 5 of the Recommended Order.

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

Law set out on pages 3 through 5 of the Recommended Order.

3. The Commission takes notes an incorporates in this Order the

Recommendation of the Hearing Officer set out on page 5 of the Recommended

Order.

RULINGS ON RESPONDENTS'

EXCEPTIONS TO THE RECOMMENDED ORDER

As the outset, the Commission takes note of a procedural irregularity which

occurred following the issuance of the Recommended Order in this case. Under

our rule 42-2.008, Administrative Code, any exceptions must be filed with, not

simply serve upon, the Governor's Office of Planning and Budgeting within

fifteen days of service of the recommended order. In this case, the Commission

did not receive a exceptions of Respondents James D. Young, Sr. and Oleva A.

Young ("Respondents") until January 11, 1989, a date clearly outside the

fifteen-day period. Because the certificate of service reflects that the

exceptions were served on the parties in a timely manner, we will proceed to

consider the merits of the exception. We do, however, strongly urge all parties

who come before this Commission to comply with the time requirements specified

in our rules so that all appeals may proceed appropriately toward a timely and

efficient resolution.

Respondents' exceptions challenge the entire thrust of the Recommended

Order. Specifically, Respondents disagree with the following related statements

by or conclusions of the Hearing Officer: 1) "the issue for determination

herein is whether Respondents'...applications for...permits should be granted"

(page 2); 2) the Respondents are "applicants" which "have not yet received the

approval by the State of Florida required under the statutory scheme contained

in Chapter 380, Florida Statutes" (page 3); and 3) Respondents have failed to

carry their burden of proof (page 4). Respondents urge this Commission to use

"its God-given common sense" to hold, contrary to the Recommended Order, that

the petitioner--not Respondents--bear the ultimate burden of persuasion in this

proceeding. While accepting Respondents' invitation to use common sense (after

mixing it `with a large quotient of reliance upon consistently-applied legal

principles), we decline to depart from the Recommended Order. Thus,

Respondents' exception is denied.

We do not determine the issue of burden of proof on a blank slate. This

Commission, through its own language and the adoption of recommenced orders in

the past, had consistently held that it is the applicant who bears the ultimate

burden of proof in an appeal under Section 380.07 to Demonstrate entitlement to

the permit at issue. This is true even where the permit has already been issued

by the local government. See, e.c., Department of Community Affairs v. Lujan et

al., DOAH Case No. 6-1496 (Final Order entered July 6, 1967), and Department of

Community Affairs v. Bartecki, DOAH Case No. 84-1198 (Final Order entered

September 24, 1985). We believe this conclusion is not only supported, but

indeed is compelled, by the relevant case law which, as the hearing officer

correctly points out, provides that:

it is fundamental that an applicant

for a license or permit carries the

"ultimate burden of persuasion"' of

entitlement through all proceedings,

of whatever nature, until such time

as final action has been taken by the

agency.

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

1st DCA 1981).

Respondents' exception makes much of the fact that the Department's notice

of appeal and petition requests an opportunity "to establish the facts asserted

in its Petition." We find Respondents' argument to be unpersuasive. The burden

to come forward with evidence may, to be sure, shift between the parties at

various points in the proceeding. See, e.g., id. at 788. By refusing to

participate at the hearing, however, Respondents unilaterally foreclosed their

opportunity both to present a preliminary showing sufficient to make out a prima

facie case and to satisfy their ultimate burden of persuasion. Under these

circumstances, we agree with the Hearing Officer that the permit applications at

issue should be denied.

One final note is in order. The last five pages of Respondents' exceptions

set forth in some detail legal and factual argument purportedly supporting

issuance of the permit. Having refused to participate in the administrative

hearing, Respondents' may not now turn this final phase of the process into an

arena for obtaining factual determinations from this Commission.

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 or the Commission, Patricia A. Woodworth, 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

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

DONE and ENTERED this 28th day of February, 1989, in Tallahassee, Florida.

_________________________________

Patricia A. Woodworth

Secretary to the

Florida Land and Water

Adjudicatory Commission

cc: Members of the Commission

Counsel of Record

COPIES FURNISHED:

Honorable Bob Martinez

Governor

The Capitol

Tallahassee, Florida 32399

Honorable Bob Butterworth

Attorney General

The Capital

Tallahassee, Florida 32399

Honorable Doyle Conner

Commissioner of Agriculture

The Capitol

Tallahassee, Florida 32399

Honorable Tom Gallagher

Treasurer

The Capitol

Tallahassee, Florida 32399

Honorable Jim Smith

Secretary of State

The Capitol

Tallahassee, Florida 32399

Honorable Gerald Lewis

Comptroller

Tallahassee, Florida 32399

Honorable Betty Castor

Commissioner of Education

The Capitol

Tallahassee, Florida 32399

Deborah Hardin-Wagner

Assistant General Counsel

The Capitol, Room 209

Tallahassee, Florida 32399

John M. Carlson, Esquire

Department of Community Affairs

2740 Centerview Drive

Tallahassee, Florida 32399-2100

David P. Horan, Esquire

608 Whitehead Street

Key West, Florida 33040

Linda M. Rigot, Esquire

Hearing Officer

Division of Administrative

Hearing

The Desoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Tom Brown

County Administrator

Public Service Building

5825 Junior College Road

Key West, Florida 33040

James D. Young

Oleva A. Young

Post Office Box 631

Big Pine Key, Florida 33040

Michael Puto

Mayo, Monroe County

310 Fleming Street

Key West, Florida 33040

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

RECOMMENDED ORDER

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF COMMUNITY AFFAIRS, )

)

Petitioner, )

)

vs. ) CASE NO. 88-3451

)

JAMES D. YOUNG, SR.; OLIVIA A. )

YOUNG; and MONROE COUNTY, FLORIDA, )

)

Respondents. )

___________________________________)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned

Hearing Officer of the Division of Administrative Hearings, on September 28,

1994, in Key West, Florida.

APPEARANCES

For Petitioner: Karen Brodeen, Esquire

Department of Community Affairs

2740 Centerview Drive

Tallahassee, Florida 32399-2100

For Respondents David Paul Horan, Esquire

Young: Horan, Horan & Esquinaldo

608 Whitehead Street

Key West, Florida 33040

For Respondent Did not appear and was

Monroe County: not represented

STATEMENT OF THE ISSUE

The issue presented is whether the land clearing permits issued to

Respondents Young by Respondent Monroe County comport with the requirements of

Chapter 380, Florida Statutes.

PRELIMINARY STATEMENT

Upon issuance by Monroe County of three land clearing permits to

Respondents James D. Young, Sr., and Olivia A. Young, the Petitioner Department

of Community Affairs filed an appeal with the Florida Land and Water

Adjudicatory Commission, alleging that the permits failed to comport with the

requirements of Chapter 380, Florida Statutes. This cause was thereafter

transferred to the Division of Administrative Hearings to conduct a formal

proceeding.

This cause was scheduled for final hearing on November 30, 1988, in Key

West, Florida. At that final hearing, Respondents Young refused to present any

evidence. A Recommended Order was entered December 21, 1988, recommending

denial of the applications for land clearing permits based upon the then-well-

settled law that the applicant for a permit had the burden of proof to show

entitlement through all proceedings regarding that application. On February 28,

1989, the Florida Land and Water Adjudicatory Commission entered a Final Order

adopting that Recommended Order, relying on that same case law. On appeal, the

District Court of Appeal of Florida, Third District, affirmed that Final Order

by Opinion rendered June 19, 1990, but certified to the Supreme Court of Florida

the issue of the burden of proof in an appeal by the Department pursuant to

Section 380.07, Florida Statutes, as a question of great public importance.

The Supreme Court of Florida accepted jurisdiction in this cause pursuant

to the certified question of great public importance provision of the Florida

Constitution and quashed the District Court's decision in an opinion issued

September 9, 1993. The Supreme Court extensively analyzed the conflict in the

statutory language in Section 380.07, Florida Statutes, authorizing the

Department to take an appeal to the Florida Land and Water Adjudicatory

Commission from the issuance of a development order by a local government

pursuant to Chapter 380, Florida Statutes, with the statutory language requiring

the Commission to hold a de novo hearing pursuant to the provisions of Chapter

120, Florida Statutes.

The Supreme Court held that in a case, such as the instant case, involving

the issuance of a development order in an Area of Critical State Concern, such

as the Florida Keys Area of Critical State Concern, the legislature has made a

statutory determination that development will have an adverse impact if the

development is not in accordance with Chapter 380, Florida Statutes, the local

development regulations, and the local comprehensive plan. The Court further

determined that since Monroe County is not an agency for purposes of Chapter

120, Florida Statutes, the development orders (land clearing permits) issued by

Monroe County in this cause did not constitute proposed agency action and the

effect of the Department's appeal to the Commission was to stay the

effectiveness of otherwise valid orders (the Monroe County permits). The Court

noted that in the instant case the Department had requested that the Commission

reverse the development orders as illegal and violative of the Monroe County

Land Development Regulations and Comprehensive Plan and, therefore, illegal and

violative of Chapter 380, Florida Statutes. The Court then answered the

certified question by concluding that when the Department initiates a proceeding

before the Commission pursuant to Section 380.07, Florida Statutes, the

Department carries both the ultimate burden of persuasion and the burden of

going forward, hence, the burden of proving that the development orders which

are the subject of this proceeding were not issued in accordance with Chapter

380, Florida Statutes.

The Supreme Court remanded this cause for a new hearing. On November 3,

1993, the District Court of Appeal of Florida, Third District, withdrew its

mandate, vacated its Opinion, adopted the Opinion of the Supreme Court of

Florida, and remanded this cause to the Commission for further proceedings. By

Order entered March 24, 1994, the Florida Land and Water Adjudicatory Commission

remanded this cause to the Division of Administrative Hearings to conduct a new

hearing. That hearing was conducted on September 28, 1994.

The Department presented the testimony of Kenneth Metcalf and of George P.

Schmahl. Respondents Young presented the testimony of George P. Schmahl and of

Respondent James D. Young, Sr. Additionally, the Department's exhibits numbered

1-5 and Respondents Young's exhibits numbered 1-12 were admitted in evidence.

The Department and Respondents Young submitted post-hearing proposed

findings of fact in the form of proposed recommended orders. A specific ruling

on each proposed finding of fact can be found in the Appendix to this

Recommended Order.

FINDINGS OF FACT

1. Respondents James D. Young, Sr., and Olivia A. Young are the owners of

Lots 1, 6, 7, 8, 9, 25, and 26, Tropic Island Ranchettes Subdivision, Big Pine

Key, Monroe County, Florida. These lots are located within the Florida Keys

Area of Critical State Concern. Each lot is approximately one acre in size.

2. On January 4, 1985, the Youngs applied to Monroe County for three land

clearing permits to clear lots 1 (application number 8810000446), 6, 7, 8, and 9

(application number 8810000450), and 25 and 26 (application number 8810000449).

The applications stated that the Youngs intended to totally clear all seven lots

for the purpose of planting a field grown nursery of ficus benjamina as stock

plants. The applications were accompanied by a vegetation survey which revealed

that the seven lots contained many species of plants classified as endangered,

as threatened, and as protected in Monroe County.

3. The applications were referred to George P. Schmahl, the County's

biologist, for review. After making an on-site inspection, Schmahl issued a

detailed report on February 1, 1985. That report noted that the vegetation on

all seven of the parcels is generally characterized as a native pineland

community with fresh water wetlands areas. The report noted the presence of

plant species on the State's endangered and threatened species lists, especially

the Silver Palm, Keys Cassia, and Thatch Palm. Schmahl also noted that the

parcels in question constituted habitat for the federally-endangered Key Deer,

as shown by the presence of deer tracks, deer droppings, and evidence of grazing

observed by Schmahl during his on-site visit. The report noted, therefore, that

the total clearing of the land would eliminate many protected plant species and

the habitat for a protected mammal. It further noted that filling in the

wetlands areas would eliminate sources of fresh water for the Key Deer and would

alter the natural drainage pattern in that part of Big Pine Key.

4. As to the intended use reflected in the applications for permits,

Schmahl's report stated his concern regarding the utilization of those lots for

agricultural purposes. He assumed that the fresh water aquifer located beneath

Big Pine Key would be used as a source of irrigation, that the amount of water

required for a seven-acre nursery would be considerable and contrary to the

increased demand for residential consumption, and that the application of

pesticides and herbicides required for plant cultivation would be introduced

into the ground water by rain and irrigation run-off. Schmahl further noted his

concern that the species of plant (ficus benjamina) which the Youngs had chosen

to grow on the seven-acre parcel had been specifically designated as an

undesirable exotic species by Monroe County and that its planting in the Florida

Keys was discouraged due to its destructive root systems and because it

constituted a competitive threat to native species.

5. Schmahl's report concluded with his recommendation to Monroe County's

building director and the County's director of planning and zoning that the

applications be disapproved as proposed because (1) the Youngs had not provided

for the retention of native vegetation, (2) the proposed activity would

eliminate a large number of protected plant species, (3) the proposed activity

would eliminate habitat for a federally-endangered animal species, (4) natural

drainage patterns would be altered, (5) the fresh water aquifer would be

impacted by excessive consumption and introduction of agricultural runoff, and

(6) the species of plant proposed to be propagated has been designated as an

undesirable exotic species by the Monroe County Coastal Zone Conservation and

Protection Element.

6. Schmahl's report contained a subsequent section entitled "Other

Considerations." That section noted Schmahl's concern that the property might

not be properly zoned for the intended use since the property was zoned GU, a

category which allowed agricultural activity, but a nursery was required to have

a BU-1-0 zoning designation. Schmahl also questioned the reliability of the

intended use stated on the Youngs' applications, noting that the Youngs had

developed 13 of their other lots in the Tropic Island Ranchettes Subdivision

differently than the stated intended use in the applications for land clearing

permits and zoning changes for those lots. For example, the land clearing

permit application for lots 11-21 stated that the intended use was agricultural,

but the lots were actually used for a flea market and parking. Lastly, Schmahl

noted his concern that the singular development of the parcels controlled by the

Youngs in the Subdivision avoided the Major Development designation and extra

regulatory review attendant thereto if developed at the same time.

7. By letter dated February 25, 1985, the Monroe County Building Director

forwarded to the Youngs a copy of Schmahl's report, advised the Youngs that the

biologist had recommended that the applications be disapproved as submitted, and

requested the Youngs to respond to that report, specifically the section

summarizing Schmahl's six concerns and the section entitled Other Considerations

before any decision would be made on the three applications for land clearing

permits.

8. That letter requesting that Monroe County's concerns be addressed by

the applicant brought two responses. One response was in the form of a letter

dated February 26, 1985, from the Youngs' attorney demanding that the County

state in writing the changes to the permit applications required by the County

or state in writing that the County was prohibiting the Youngs from clearing

their property. That letter failed to address any of the concerns which the

County had advised the Youngs they must address in order for the County to make

any decision.

9. The other response to the County's correspondence was by Mr. Young

himself. After receiving the County's letter, he went to see Schmahl and asked

Schmahl what changes the Youngs should make in their applications. Schmahl

advised Young that if he would amend his applications and apply instead to grow

native plants, then Schmahl could review the applications more favorably.

10. Thereafter, the Youngs did not submit any changes to their

applications for permits. Further, no response to the County's letter

requesting that its concerns be specifically addressed was made by the Youngs or

by their attorney.

11. On February 28, 1986, Monroe County adopted a comprehensive plan and

land development regulations. On July 28, 1986, the Administration Commission

approved that comprehensive plan and land development regulations. On October

3, 1986, Monroe County adopted Ordinance No. 033-1986 which established an

effective date of September 15, 1986, for the comprehensive plan and land

development regulation adopted by Monroe County. That Ordinance also

specifically repealed all ordinances or parts of ordinances in conflict

therewith.

12. On March 26, 1987, Mr. Young went to the Monroe County Building

Department to amend one of the three applications to reflect that the Youngs'

new intended use was a parking lot for the flea market. That was the County's

first indication that the files on the three applications for clearing permits

were classified as open files. Based on his conversations, Young understood

that the County would require any applications for permits to comply with the

1986 comprehensive plan and land development regulations and that he would have

to submit a Habitat Evaluation Index study. Although Mr. Young then spoke to

the County's biologist regarding his intent to expand his flea market parking,

Young did not amend the application.

13. Mr. Young sent a letter dated April 6, 1987, to the County complaining

about how his permit applications, he, and his wife had been treated. That

letter was followed by an April 8, 1987, letter from his attorney to the County

referencing his clients' applications for "clearing/parking" in the area

adjacent to the flea market, advising the County that it was required by law to

review the applications pursuant to pre-1986 criteria, and advising the County

that the Department's short-lived attempt to change the zoning on his clients'

property at that time could not be done. On that same date, Mr. Young received

a letter from the County advising him that the County Administrator would

investigate his complaint concerning the problems with his land clearing permit

applications.

14. On July 27, 1987, the Youngs' attorney wrote to Monroe County

outlining the history of his clients' applications from his perspective,

suggesting that his clients were being prevented from using their property in

any manner, and discussing the concepts of "due process," "just compensation,"

and "Monroe County's liability for temporary takings."

15. On August 14, 1987, the County responded to the Youngs' attorney's

correspondence by outlining the chronology of the applications from the County's

perspective and expressing surprise that the issue had again been raised. A

September 2, 1987, letter to the Youngs' attorney from another County official

acknowledged Mr. Young's demand that the permit applications be processed by the

County pursuant to the pre-1986 criteria and referenced a meeting which had

taken place with the Youngs' attorney in late July. That correspondence noted

that all concerned persons had been properly and adequately noticed that all

outstanding Monroe County land clearing and building permit applications would

be null and void effective September 15, 1986, (although the date was later

extended), requiring re-submission. The letter noted that since no one on

behalf of the Youngs had responded to the County's February 25, 1985, letter

requesting a response from the applicants to the biologist's concerns and

recommendation of denial of the permit applications, the open files were

effectively closed as of October 1, 1986. That letter pointed out that the

applicants had never responded to the County's itemization of specific concerns

which must be addressed by the applicant before a decision could be reached.

The letter noted that the writer had advised Mr. Young on that date

telephonically that his applications would be processed pursuant to the pre-1986

law due to their submission date, but that statement had been made to Mr. Young

before the writer reviewed the file and discovered that the applicant had never

responded to the County's request for specific information to alleviate the

County's specified concerns. The conclusion of the letter was that the

applications were governed by the 1986 comprehensive plan and land development

regulations "unless there is new evidence to the contrary and/or the County

Attorney deems otherwise." The letter suggested a meeting.

16. On October 8, 1987, the County Attorney authored a memorandum advising

the County Administrator that after hearing the recitation of facts and

chronology by the Youngs' attorney and by Robert [sic] Young, and since the file

had never been "closed," the applications could be treated under "the new or the

old laws." No legal authority is recited for that conclusion; rather, the

memorandum specifies that the County Attorney's opinion is based on the facts

recited to him by the Youngs and their attorney.

17. Thereafter, representatives of the Youngs and the County met to

negotiate the permit applications. The Youngs submitted a Habitat Evaluation

Index study. The Youngs agreed to leave buffer zones on the property and

promised not to sue the County.

18. The County issued the three permits in question on March 14, 1988.

The permits reflect that the Youngs paid the permit application fees on that

date (although the applications show the fees were paid on January 4, 1985).

The conditions for the permit were set forth on Permit No. 8810000446 relating

to Lot 1. The other two permits only recited that they were subject to the same

stipulations as were typed on the permit for Lot 1.

19. The permit conditions call for maintaining a buffer zone of 25 feet,

approval of the location of the buffer zone by the County biologist prior to

clearing, and transplanting of protected trees on site, if possible, or to other

sites, if not, with the principal concern being for Thatch Palms. The permit

also recited that it was a site preparation permit for the purposes of

establishing a nursery and that in no event would cars associated with the

adjacent flea market be allowed to utilize the site for parking. Lastly, the

permit required that either the owner or "associated parties utilizing the

property" would submit a site plan for the proposed nursery for review within

six months and that the business use of the property was subject to relevant

occupational license requirements.

20. On the following day, the County biologist visited the site and marked

the buffer zones. As soon as he finished doing so, the Youngs began clearing

the property and continued clearing until they received the Notice of Appeal

filed by the Department which initiated this proceeding.

21. The term "buffer zone" used in the permit conditions is synonymous

with the term "open space ratio," which is usually expressed in terms of

percentage. The percentage expressed in the open space ratio represents the

percentage of land area that must remain in its natural condition. The permit

for Lot 1 requires an open space ratio of approximately 35 percent. The permit

for Lots 25 and 26 requires an open space ratio of approximately 25 percent.

The permit for Lots 6, 7, 8 and 9 requires an open space ratio of approximately

22 percent.

22. When the new Monroe County comprehensive plan and land development

regulations went into effect in 1986, they contained specific provisions which

recognized pre-existing rights, so that an applicant or a permit holder for a

single-family detached dwelling could go forward with such a project under the

less restrictive regulations which were in effect prior to the 1986 plan. The

Youngs' applications for clearing permits do not include proposed construction

of a single-family detached dwelling and do not fall, therefore, within the

parameters of the "grandfathering" provisions which apply only to single-family

detached dwellings.

23. When the new Monroe County comprehensive plan and land development

regulations went into effect in 1986, they contained specific provisions which

recognized "vested rights." Pursuant thereto, a process was established for a

property owner to follow if that owner claimed to have a vested right to proceed

with a project under the less restrictive regulations which were in effect prior

to the new 1986 Plan. Under the vested rights provision, an application for

vested rights was required to have been filed within one year of the effective

date of the new regulations, or the alleged vested rights were deemed to be

abandoned. The Youngs never applied for vested rights. By the time the subject

permits were issued on March 14, 1988, the application deadline to file for

vested rights already had expired.

24. The Youngs did not submit a site plan for their nursery when they

applied for the three land clearing permits. Monroe County did not require the

Youngs to submit a site plan prior to issuing the permits in 1988, and the

Youngs have never submitted a site plan to Monroe County.

25. The subject parcels have a habitat value to the Florida Key Deer,

which is an endangered species endemic, i.e., unique, to the Florida Keys. The

property is adjacent to and part of a corridor for movement of the Florida Key

Deer and is critical to the deer's migration and breeding needs. The deer feed

on the berries and new shoots of various plants on the site. They also drink

from the fresh water wetlands which are on the property.

26. The land clearing authorized by the issuance of the permits will have

an adverse effect on natural resources, especially the functional integrity of

the pinelands and the Florida Key Deer. The extensive clearing and small

perimeter buffer areas provided by the permits will destroy important vegetation

listed as endangered or threatened and will negatively impact the Florida Key

Deer which roam through the property and feed on many plants on site. Although

the Youngs suggest that at least some of the property is fenced so it is not

used by the Key Deer, the presence of deer tracks and deer droppings, and the

evidence of grazing by the deer negate that suggestion. Further, the permit

conditions do not protect and maintain the fresh water wetlands areas which

serve as a drinking water source for the Key Deer.

CONCLUSIONS OF LAW

27. The Division of Administrative Hearings has jurisdiction over the

parties hereto and the subject matter hereof. Section 120.57(1), Florida

Statutes.

28. In determining whether the land clearing permits issued to Respondents

Young by Respondent Monroe County comport with the requirements of Chapter 380,

Florida Statutes, the threshold issue to be determined is which law applied to

the Youngs' applications for land clearing permits, that is, whether Monroe

County should have applied the Comprehensive Plan and Land Development

Regulations which became effective September 15, 1986, or whether Monroe County

should have applied the pre-1986 criteria to those applications. The Department

and the Youngs have stipulated that if Monroe County was required to apply the

new Land Development Regulations and Comprehensive Plan which became effective

in 1986 (hereinafter "the 1986 Code") to those applications, or the current

Code, the requirements of the 1986 Code and the current Code have been violated

by the issuance of the permits, and that the permits have, therefore, been

illegally issued in violation of Chapter 380, Florida Statutes. Specifically,

the parties have stipulated that under the "new" regulations, the permits

violate the open space ratio requirements limiting clearing to 40 percent and

violate other requirements, including vegetative indexes. Under the 1986 Code

and current Code, therefore, the permits are invalid, and the parties have

stipulated to certain conditions being imposed.

29. The Department's position is that the law to be applied is the law in

effect when the permits were issued on March 14, 1988. The Youngs argue that

the law to be applied is the law that was in effect when the applications were

filed on January 4, 1985. The law in Florida is well settled that when a change

in the law occurs during the pendency of an application, that change in the law

is operative as to the application so that the law as changed, rather than as it

existed at the time the application was filed, determines whether the

application should be granted. See, for example, Lavernia v. Dept. of

Professional Regulation, Bd. of Medicine, 616 So.2d 53 (Fla. 1st Dist. 1993);

Bruner v. Bd. of Real Estate, Dept. of Professional Regulation, 399 So.2d 4

(Fla. 5th Dist. 1981); City of Boynton Beach v. Carroll, 272 So.2d 171 (Fla. 4th

Dist. 1973). Under the general law, the Department's position is correct,

Monroe County should have applied the 1986 Code, and the permits were illegally

issued.

30. One exception has been carved out of the general rule allowing an

application to be reviewed under the law in effect at the time it was filed

where the permitting authority has unreasonably delayed its decision on an

application until after the law has changed. The Youngs argue that Monroe

County did so delay its decision on their applications, bringing them under this

exception. The facts in this case provide no support for that argument. The

delay between the filing of the applications and the issuance of the permits was

caused solely and completely by the Youngs, and none of the delay involved can

be attributed to Monroe County.

31. The applications were filed January 4, 1985. Monroe County referred

those applications to its biologist for review and recommendation. On February

1, 1985, the County's biologist issued his report containing an in-depth

analysis of the project, the site, and the regulations controlling those

applications. That report recommended that the applications be denied for six

specific reasons and also included three other areas of specific concern. On

February 25, 1985, Monroe County forwarded to the Youngs a copy of that report,

advising the Youngs that the recommendation of the biologist was that the

applications be disproved as submitted. That letter advised the Youngs that

they must respond to the report, specifically the nine specified areas of

concern, before Monroe County could make a decision regarding those

applications. The Youngs never responded to that request.

32. It is true that on February 26, 1985, the Youngs' attorney wrote to

the author of the County's February 25 letter, noting that the County would send

him a copy of the report so that the Youngs could modify their applications to

eliminate the objections and demanding that the County advise the Youngs

specifically as to what changes would need to be made in their applications.

Since the County did send a copy of the report which outlined with specificity

the problems with the applications which needed to be addressed, the County had

already complied with that demand, and the letter from the Youngs' attorney the

day after that information was provided was superfluous. The County had already

told him what changes needed to be made; yet, no changes were ever made. Mr.

Young also testified that when he received the biologist's report, he went to

see the biologist to ask what he needed to do, and the biologist told him that

if he would change the applications so that the application was to grow native

plants, the biologist would look more favorably on those applications. Neither

the Youngs nor anyone on their behalf ever submitted any changes to those

applications.

33. On February 28, 1986, Monroe County adopted its Comprehensive Plan and

Land Development Regulations. Still, the Youngs failed to respond to the

County's February 25, 1985, letter. Monroe County's new Land Regulations and

Comprehensive Plan went into effect on September 15, 1986. Still the Youngs

failed to respond to the February 25, 1985, letter from the County. Likewise,

the Youngs failed to take advantage of the provisions in the new law which

allowed them to apply for a determination as to whether they had a vested right

to have their applications determined under the old law. The window for making

such an application closed, and any possible vested right was abandoned by

operation of law.

34. On March 26, 1987, Mr. Young went to the County Building Department to

advise the County that he wanted to amend at least one of the applications to

develop a parking lot for the flea market rather than a nursery. It was then

that Monroe County discovered that the application files were still classified

as open files. His visit was followed by a letter from his attorney which

referred to the applications as being applications for clearing and for parking.

35. Thereafter, the Youngs, their attorney, and Monroe County officials

attended to the applications, with the County first taking the position that

when the new law came into effect all pending applications had become null and

void but the County was willing to review the Youngs' applications although the

review would be done under the new law. The County attorney then wrote a

memorandum containing no analysis of the law but opining that based on the facts

told to him by the Youngs, their applications could be determined under either

the old law or the new law. Thereafter, it is uncontroverted that the issuance

of permits was negotiated between the Youngs and Monroe County, the Youngs were

required to provide a Habitat Evaluation Index study which was required only

under the new law, and the permits were issued on March 14, 1988.

36. Since it was the Youngs who caused the delay in the County's

processing of their applications by failing to respond to the County's request

for information and by failing to address the applications from February, 1985,

through March of 1987, the facts do not bring the Youngs within the exception to

the general rule of which law applies. Their applications, therefore, should

have been reviewed under the 1986 Code, and the parties have stipulated that

those applications did not comply with the 1986 Code and, therefore, did not

comply with Chapter 380, Florida Statutes, and the permits were, therefore,

illegally issued.

37. Even if the pre-1986 Code were applicable, the Youngs' applications

for land clearing permits did not comply with that law for several reasons.

First, Section 18-19(a)(6) of the pre-1986 Monroe County Code requires an

applicant for a land clearing permit to include in the permit application:

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.

The Youngs did not submit a site plan as part of their permit applications and

have never done so. The Youngs argue that a site plan was not needed since they

were going to totally clear the parcels in question and, therefore, could have

just submitted a blank piece of paper as a site plan. That argument ignores the

stated purpose of the site plan which is to include specific information on

overall development activity, not just clearing, and demonstrates the steps

taken to minimize the effects of clearing on surrounding vegetation and water

bodies.

38. Section 18-18(c) of the pre-1986 Monroe County Code sets forth

requirements for land clearing permits and provides as follows:

(c) Review and approval of development site

plans which results in the issuance of a

development order shall constitute compliance

with the requirements of this section. In

such cases the land clearing permit will be

issued in conjunction with the building permit.

The record in this cause also reveals that Monroe County only issued land

clearing permits in conjunction with permitting for the activity for which the

land was to be cleared. The evidence further reveals that most nurseries are

retail operations requiring some type of infrastructure on-site, such as plant

sheds, offices, driveways for vehicles transporting plants and trees off-site,

irrigations systems, loading and unloading areas, and parking. As the Youngs

failed to submit a site plan showing how they intended to develop the lots, they

failed to disclose how the property would be developed and used, and Monroe

County did not comply with this section of the Code in issuing land clearing

permits which were not in conjunction with other permits required for the

intended use. By failing to require the Youngs to submit a site plan which may

have revealed the other types of permits which would have been needed, Monroe

County issued the land clearing permits in violation of this Section of the pre-

1986 Monroe County Code.

39. Section 18-21 of the pre-1986 Monroe County Code provides as follows:

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.

The record in this cause reveals through uncontroverted testimony that the land

clearing authorized by the permits will have an adverse impact on natural

resources, especially the functional integrity of the pinelands and the Florida

Key Deer, contrary to the requirements of Section 18-21. The evidence is

uncontroverted that the buffer zones required by Monroe County when it issued

these permits were minimal at best, were insufficient to protect the habitat of

the Key Deer, and were only esthetic. There was no report submitted, and no

finding was made by the County that the narrow buffer zones would serve to

protect the endangered and threatened species of plants and trees, would

maintain the fresh water wetlands areas which serve as a source of drinking

water for the Key Deer, or would preserve the Key Deer habitat.

40. Sections 18-18, 18-19, and 18-21 of the pre-1986 Code must be read in

conjunction with Section 18-17 which expresses the intent of that portion of the

Code relating to land clearing permits and which provides that the intent of

that Section of the Code regulating the clearing of land is "[t]o promote and

encourage the protection of unique and biologically important natural resources

. . . ." The permits issued by Monroe County do not fulfill that intent. The

Youngs argue that by attaching conditions to the permits that were issued Monroe

County minimized the impacts of the clearing of the lots. The Youngs offered no

evidence in support of that argument.

41. The thrust of that argument, and the main argument offered by the

Youngs, is that the permits were issued as a result of settlement negotiations

and that the Youngs and Monroe County were satisfied with the final product of

those negotiations. Indeed, the evidence is uncontroverted that Monroe County

and the Youngs believed that they had entered into a good settlement. However,

whether the settlement was a good one bears no relationship to the issue of

whether the permits that were issued complied with the law. It is clear that

they did not.

42. The Youngs argue that the permits involved herein are exempt from

review under Section 380.07, Florida Statutes, because of the exception in

Section 380.04(3)(e), Florida Statutes, for the use of land for agricultural

purposes. That argument is without merit. The evidence is uncontroverted that

the lots in question have a GU zoning designation which allows agricultural use,

that a nursery use allows the on-site sale of plants and not just the growing of

plants, that the pre-1986 Monroe County Code itself distinguished between

agricultural use and nursery uses and treats nursery use as a business type of

use, and that a nursery use is not authorized for a GU zoning category. Because

Monroe County did not require the submission of a site plan, and because Monroe

County did not require that the land clearing permits be issued only in

conjunction with other permitting required for the activity for which the land

would be used, and because both the applications for permit and the permits

themselves indicated that the Youngs would be operating a nursery, the Youngs

have shown no entitlement to the exemption offered by a different type of use,

that is, an agricultural use. Since nursery use is authorized in BU-1-0

districts pursuant to Section 19-216.3 of the pre-1986 Code and are not

authorized in GU districts pursuant to Section 19-180 of the pre-1986 Code, the

permits authorizing the Youngs to clear the land and operate a nursery in a GU

district were illegal. The Youngs have shown no entitlement to the exemption,

and the evidence in this cause reveals that they are not so entitled.

43. The cases relied upon by the Youngs and the arguments made by them

regarding changes in zoning laws do not apply to this cause since the land in

question lies within an Area of Critical State Concern, which contemplates a

different regulatory scheme requiring not only local approval for the permits in

question but also State approval. Further, those arguments and cases do not

apply in a situation such as this where the 1986 Code specifically provided to

the Youngs an opportunity to obtain a determination of their vested rights to

have their application reviewed under the pre-1986 regulations. Section 8-301,

et seq., of the 1986 Code provided that the Youngs had one year in which to seek

a determination that their applications be judged under the prior law or any

vested rights would be deemed abandoned. The Youngs did not do so, and they had

no vested rights to have the pre-1986 law applied to their applications.

Lastly, case law relied upon by the Youngs herein involved disputes where the

applications for permits complied with the law when they were filed, contrary to

the facts in this case.

44. The parties have stipulated that the permits involved in this cause

did not comply with the 1986 Code or the current Code and were therefore

illegally issued if that later law applies. It has been concluded in this

Recommended Order that the 1986 Code is the law that applies. Even if the pre-

1986 law applied, Monroe County did not follow that law and the permits issued

in this cause were issued illegally and do not comport with the requirements of

Chapter 380, Florida Statutes. Since the permits are illegal under either the

former law or the later law, Section 380.07, Florida Statutes, requires the

consideration of conditions and restrictions to be attached to the permits. The

Youngs and the Department have stipulated that the following conditions should

apply:

A. Lots 6 and 7 may be cleared with the exception of the present 30 foot

buffer (natural) area which is adjacent to the western lot line of lots 6 and 7.

There will be no disturbance, mowing, or clearing of this buffer area. (Lots 6

and 7 are two of the four parcels which are the subject of Permit No.

8810000450.)

B. Lots 8 and 9 will remain in their natural state. Exotic vegetation

will be kept out and only native vegetation will be allowed to re-vegetate.

(Lots 8 and 9 are the other two of the four parcels which are the subject of

Permit No. 8810000450.)

C. There will be no objection to a nursery use on the cleared (non-buffer)

areas of lots 6 and 7. No new development will be allowed without additional

permits.

D. The permits for lots 1, 25, and 26 are deemed null and void. (Lot 1 is

the subject parcel of Permit No. 8810000446. Lots 25 and 26 are the subject

parcels of Permit No. 8810000449.)

45. The foregoing conditions are appropriate and should be approved by the

Florida Land and Water Adjudicatory Commission; however, they are not, alone,

sufficient since they would still allow the planting of ficus benjamina which

has been designated as an undesirable exotic species pursuant to the Coastal

Zone Conservation and Protection Element of the Monroe County Comprehensive Plan

and Land Development Regulations. Accordingly, an additional condition should

be imposed which prohibits the planting of ficus benjamina and allows the Youngs

to plant only species native to the Florida Keys.

RECOMMENDATION

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

RECOMMENDED that a Final Order be entered:

A. Declaring Monroe County Land Clearing Permits Nos. 8810000446 and

8810000449, which authorized the clearing of lots 1, 25, and 26 in Tropic Island

Ranchettes Subdivision of Big Pine Key, null and void.

B. Approving Monroe County Land Clearing Permit No. 8810000450 subject to

the additional conditions found in paragraphs numbered 44 and 45 of this

Recommended Order.

DONE and ENTERED this 1st day of February, 1995, at Tallahassee, Florida.

___________________________________

LINDA M. RIGOT

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of February, 1995.

APPENDIX TO RECOMMENDED ORDER

1. Petitioner's proposed findings of fact numbered 2-14, 16, and 20-22

have been adopted either verbatim or in substance in this Recommended Order.

2. Petitioner's proposed findings of fact numbered 1, 15, and 17-19 have

been rejected as not constituting findings of fact but rather as constituting

argument of counsel, conclusions of law, or recitation of the testimony.

3. Respondent Youngs' proposed findings of fact numbered 4-8, 12, 20, 22,

25, 29-32, 35, 36, and 40 have been adopted either verbatim or in substance in

this Recommended Order.

4. Respondent Youngs' proposed findings of fact numbered 16, 18, 23, 24,

33, and 38 have been rejected as not constituting findings of fact but rather as

constituting argument of counsel, conclusions of law, or recitation of the

testimony.

5. Respondent Youngs' proposed findings of fact numbered 1-3, 9, 10, 14,

15, 19, 21, 26, 37, 39, and 41-43 have been rejected as being irrelevant to the

issues involved in this proceeding.

6. Respondent Youngs' proposed findings of fact numbered 11, 13, 17, 27,

28, and 34 have been rejected as not being supported by the weight of the

competent, credible evidence in this cause.

COPIES FURNISHED:

David Paul Horan, Esquire

Horan, Horan & Esquinaldo

608 Whitehead Street

Key West, Florida 33040

Karen Brodeen, Esquire

Department of Community Affairs

2740 Centerview Avenue

Tallahassee, Florida 32399-2100

Gregory C. Smith, Esquire

Counsel to FLWAC

The Capitol, Room 209

Tallahassee, Florida 32399-0001

Randy Ludacer, Esquire

Monroe County Attorney

500 Whitehead Street

Key West, Florida 33040

Robert B. Bradley, Secretary

Florida Land and Water

Adjudicatory Commission

Office of the Governor

The Capitol

Tallahassee, Florida 32399-0001

Dan Stengle, General Counsel

Department of Community Affairs

2740 Centerview Drive

Tallahassee, Florida 32399-2100

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended

Order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should contact the agency that will issue the final

order in this case concerning agency rules on the deadline for filing exceptions

to this Recommended Order. Any exceptions to this Recommended Order should be

filed with the agency that will issue the final order in this case.