91-004110DRI Department Of Community Affairs vs. Charles Moorman And Kathleen Moorman, Owners; Your Local Fence, Contractor; And Monroe County, A Political Subdivision Of The State Of Florida Status: Closed Recommended Order on Thursday, April 30, 1992.

Summary: Fence permits issued by Monroe County in Big Pine Key area of critical concern inconsistant with Monroe County and development regulations.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF COMMUNITY AFFAIRS, )

)

Petitioner, )

)

vs. ) CASE NO. 91- 4110DRI

)

CHARLES MOORMAN AND KATHLEEN )

MOORMAN, Owners and YOUR LOCAL )

FENCE, Contractor; and MONROE )

COUNTY, a political subdivision )

of the State of Florida, )

)

Respondents. )

_____________________________________)

)

DEPARTMENT OF COMMUNITY AFFAIRS, )

)

Petitioner, )

)

vs. ) CASE NO. 91- 5966DRI

)

RAYMOND McRAE and ROSEMARIE McRAE, )

Owners; and MONROE COUNTY, a )

political subdivision of the )

State of Florida, )

)

Respondents. )

_____________________________________)

)

DEPARTMENT OF COMMUNITY AFFAIRS, )

)

Petitioner, )

)

vs. ) CASE NO. 91- 5968DRI

)

NICHOLAS HORNBACHER and JEAN )

HORNBACHER, Owners; YOUR LOCAL )

FENCE, Contractor; and MONROE )

COUNTY, a political subdivision )

of the State of Florida, )

)

Respondents. )

_____________________________________)

)

DEPARTMENT OF COMMUNITY AFFAIRS, )

)

Petitioner, )

)

vs. ) CASE NO. 91- 6603DRI

)

JAMES DANIELS AND KATHRYN DANIELS, )

Owners; YOUR LOCAL FENCE, )

Contractor; and MONROE COUNTY, a, )

political subdivision of the )

State of Florida, )

)

Respondents. )

_____________________________________)

RECOMMENDED ORDER

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

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

above-styled cases on February 6, 1992, in Key West, Florida.

APPEARANCES

For Petitioner, Katherine Castor

Department of David L. Jordan, Esquire

Community Affairs: Assistant General Counsel

Department of Community Affairs

2740 Centerview Drive

Tallahassee, Florida 32399-2100

For Respondents, Theodore W. Herzog, Esquire

Charles Moorman, 209 Duval Street

Kathleen Moorman, Key West, Florida 33040

and Your Local

Fence, Inc.:

For Respondents, Raymond McRae and

Raymond McRae and Rosemarie McRae, pro se

Rosemarie McRae: Route 3, Box 283F

Big Pine Key, Florida 33043

For Respondents, Nicholas Hornbacher and

Nicholas Hornbacher Jean Hornbacher, pro se

and Jean Hornbacher: Route 3, Box 223E

Big Pine Key, Florida 33043

For Respondents, James Daniels and

James Daniels and Kathryn Daniels, pro se

Kathryn Daniels: Route 3, Box 297

Big Pine Key, Florida 33043

For Respondent, No appearance1

Monroe County:

STATEMENT OF THE ISSUES

At issue in these consolidated proceedings is whether certain development

orders (permits) issued by Monroe County to the respondents, as owners and Your

Local Fence, Inc., as contractor, for the construction of fences in the Big Pine

Key Area of Critical County Concern are consistent with the Monroe County

comprehensive plan and land development regulations.

PRELIMINARY STATEMENT

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

Florida Land and Water Adjudicatory Commission from development orders (permits)

of Monroe County which granted the applications of the individual respondents,

as owners, and Your Local Fence, Inc., as contractor, to install fences on the

respective owners' property. On appeal, petitioner, Department of Community

Affairs (Department), contended that the subject permits were inconsistent with

the Monroe County comprehensive plan and land development regulations since they

would allow the erection of fences in the Big Pine Key Area of Critical County

Concern, and that there were no conditions under which such development could

occur.

At hearing, the Department called as witnesses: Kenneth Metcalf, accepted

as an expert in comprehensive planning, and Peter Kalla, accepted as an expert

in Biology. Testifying on behalf of the individual respondents and Your Local

Fence, Inc., were: Charles Moorman, James Daniels, Nicholas Hornbacher, Jean

Hornbacher, Raymond McRae and Rosemarie McRae. Department exhibits 1-7, Moorman

exhibits 1-5, Hornbacher exhibit 1, and McRae exhibits 1-6 were received into

evidence.

At the conclusion of the hearing the record was held open to allow the

Department an opportunity to review its records and to address certain issues

raised by the Moormans through the taking and filing of a post-hearing

deposition of Kenneth Metcalf. Such deposition was taken on February 6, 1992,

filed with the Division of Administrative Hearings on February 24, 1992, marked

as Department exhibit 8, and received into evidence.

The transcript of the hearing was filed March 9, 1992, and the parties were

granted leave until March 19, 1992, to file proposed findings of fact. The

Department elected to file such proposals, and they have been addressed in the

appendix to this recommended order.

FINDINGS OF FACT

The parties

1. Respondents, Charles and Kathleen Moorman ( Moorman), Nicholas and Jean

Hornbacher ( Hornbacher), James and Kathryn Daniels ( Daniels), and Raymond and

Rosemarie McRae ( McRae), are the owners of certain real property, described more

full infra, that is located within the Big Pine Key Area of Critical County

Concern and the Florida Keys Area of Critical State Concern, and upon which they

have received development orders (permits) from Monroe County to erect fences.

Respondent, Your Local Fence, Inc. (Your Local Fence), is a business owned by

Mr.  Moorman and is the contractor that applied for the permits on behalf of the

Moormans, Hornbachers and Daniels. The McRaes applied for their own permit, and

proposed to install the fence themselves.

2. Respondent, Monroe County, is a local government within the Florida

Keys Area of Critical State Concern designated by Section 380.0552, Florida

Statutes, and is responsible for the implementation of, and the issuance of

development orders that are consistent with, the Monroe County comprehensive

plan and land development regulations, as approved and adopted in Chapters 9J-14

and 28-20, Florida Administrative Code.

3. Petitioner, Department of Community Affairs (Department), is the state

land planning agency charged with the responsibility of administering and

enforcing the provisions of Chapter 380, Florida Statutes, and all rules

promulgated thereunder. Section 380.031(18) and 380.032(1), Florida Statutes.

Here, the Department has filed a timely appeal to the issuance of the subject

permits, and contends that construction of the fences authorized by such permits

is inconsistent with the Monroe County comprehensive plan and land development

regulations.

The Moorman permit

4. The Moormans are the owners of Lots 15, 16 and half of Lot 17, Block D,

Pine Heights Subdivision, Big Pine Key, Monroe County, Florida. Such property

is located within, and surrounded by, native pine lands; natural habitat for the

Key Deer.

5. On March 20, 1991, Monroe County issued to the Moormans, as owners, and

Your Local Fence, as contractor, building permit No. 9110002231 to construct a

fence on the foregoing property. As permitted, the fence would be constructed

of wood to a height of 6 feet and, except for a front setback of 25 feet, would

completely enclose the Moormans' property. So constructed, the fence would

measure 125 feet along the front and rear of the property and 75 feet along the

side property lines for a total of 400 linear feet.

The Hornbacher permit

6. The Hornbachers are the owners of Lot 23, Block 3, Eden Pine Colony

Subdivision, Big Pine Key, Monroe County, Florida. Such property is located on

a cul-de-sac, at the terminus of a dead end street, and is bordered on the north

and west by a canal and on the east by a neighbor's fence.

7. On May 20, 1991, Monroe County issued to the Hornbachers, as owners,

and your Local Fence, as contractor, building permit No. 9110002807 to construct

a fence along the south side of their property. As permitted, the fence would

be chainlink construction, 4 feet high, and would extend from their neighbor's

fence on the east, around that portion of their property that abuts the cul-de-

sac, and then along their southern boundary to the canal. So constructed, the

fence would run a total of 90 linear feet.

The Daniels permit

8. The Daniels are the owners of Lots 1 and 2, Block 72, Port Pine Heights

Subdivision, Big Pine Key, Monroe County, Florida. Such property, when acquired

by the Daniels, was bounded on three sides by a 4-foot high chainlink fence and

along the rear by a canal.

9. On July 17, 1991, Monroe County issued to the Daniels, as owners, and

Your Local Fence, as contractor, building permit No. 9110003165 to construct a

fence along the rear portion of their property that abuts the canal. As

permitted, the fence would be of chainlink construction, 4 feet high, and run a

total of 158 linear feet.

The McRae permit

10. The McRaes are the owners of Lot 6, Block 17, Port Pine Heights

Subdivision, Big Pine Key, Monroe County, Florida. Such property is bordered on

the north and south by vacant lots, and on the west by a canal.

11. On June 12, 1991, Monroe County issued to the McRaes, as owners and

contractors, building permit No. 9110002853 to construct a fence along the

front, as well as the north and south sides of their property. As permitted,

the fence would be of chainlink construction, 4 feet high, and, except for a set

back of 29.5 feet, would enclose the front and side property lines of the

property. So constructed, the fence would run a total of 157 linear feet.

Consistency of the permits with the

Monroe County comprehensive plan and

land development regulations

12. Big Pine Key is the primary habitat of the Key Deer, an endangered

species, and Monroe County has designated most of Big Pine Key, including the

properties at issue in these proceedings, as an area of critical county concern.

Pertinent to this case, Section 9.5-479, Monroe County Land Development

Regulations ( MCLDR), provides:

(b) Purpose: he purpose of the Big Pine Key

Area of Critical County Concern is to

establish a focal point planning effort

directed at reconciling the conflict between

reasonable investment backed expectations and

the habitat needs of the Florida Key Deer

which is listed as endangered under the

Federal Endangered Species Act.

(c) Focal Point Planning Program:

(1) Monroe County shall initiate a focal

point planning program for the Big Pine Key

Area of Critical County Concern that considers

the following:

a. The reasonable investment backed

expectations of the owners of land within the

Big Pine Key Area of Critical Concern;

b. The habitat needs of the Florida Key Deer;

c. The conflicts between human habita-tion

and the survival of the Florida Key Deer;

d. The role and importance of fresh-water

wetlands in the survival of the Florida Key

Deer;

e. Management approaches to reconciling the

conflict between development and the survival

of the Florida Key Deer; and

f. Specific implementation programs for the

Big Pine Key Area of Critical County Concern.

(2) The focal point planning program shall be

carried out by the director of plan- ning, in

cooperation with the officer in charge of the

National Key Deer Refuge. The planning program

shall include a public participation element,

and shall provide for notice by publi-cation of

all public workshops or hearings to the owners

of land within the Big Pine Key Area of

Critical County Concern

(3) The focal point planning program for the

Big Pine Key Area of Critical County Concern

shall be completed with-in twelve (12) months

of the adoption of this chapter, and the

director of planning shall submit a report

together with recommended amendments to the

Monroe County Comprehensive Plan and this

chapter within thirty (30) days after the

completion of the focal point planning program

for the Big Pine Key Area of Critical County

Concern

(d) Interim Regulations: Notwithstanding any

other provisions of this chapter, no

development shall be carried out on the Big

Pine Key Area of Critical County Concern prior

to the completion of the focal point planning

program required by subsection C of this

section and the adoption of amendments to the

Monroe County Comprehensive Plan and this

chapter except in accordance with the

following

(1) No development shall be carried out in

the Big Pine Key Area of Critical County

Concern except for single-family detached

dwellings on lots in the Improved Subdivision

District or on lots having an area of one (1)

acre of more.

And, Section 9.5-309, MCLDR, provides:

It is the purpose of this section to

regulate fences and freestanding walls in

order to protect the public health, safety

and welfare

* *

(e) Big Pine Key Area of Critical County

Concern: No fences shall be erected here

until such time as this chapter is created

to provide for the regulation of fences

within this ACCC.

13. The foregoing land development regulations were adopted by Monroe

County to further and implement the standards, objectives and policies of the

Monroe County comprehensive plan. Here, such regulations further the plan's

"Generic Designations and Management Policies," contained within the plan's

"Criteria for Designating Areas of Particular Concern," to maintain the

functional integrity of habitat and, more particularly, the requirement that:

Development within areas identified as Key

Deer habitat shall insure that the continuity

of habitat is maintained to allow deer to

roam freely without impediment from fences or

other development.

Rule 28-20.020(8), Generic Designations, subparagraph 4, Florida Administrative

Code.

14. Over the course of the past five years, Monroe County has discussed

design criteria for fences on Big Pine Key but has not yet adopted a regulation

that would provide for fences within the Big Pine Key Area of Critical County

Concern, as mandated by Section 9.5-309, MCLDR, nor has Monroe County amended

Section 9.5-479, MCLDR, to permit, pertinent to this case, any development

except single-family detached dwellings on lots in the Big Pine Key Area of

Critical County Concern. Under such circumstances, it must be concluded that

the subject permits issued by Monroe County for the construction of fences in

the Big Pine Key Area of Critical County Concern are not consistent with the

Monroe County comprehensive plan and land development regulations.

Extra legal action and the

applicants voiced rationale

for fencing their properties

15. Notwithstanding express knowledge by the Moormans, Hornbachers,

Daniels and Your Local Fence, that the subject permits were not effective until

expiration of the time within the Department was authorized to appeal their

issuance, the Moorman, Hornbacher and Daniels fences were erected by Your Local

Fence. However, the McRaes, likewise knowledgeable about the time delay in the

effectiveness of their permits, abided by existent law, and deferred erecting

their fence pending resolution of this dispute.

16. At hearing, proof was offered by the applicants to explain why they

desired to fence their property. Proof was also offered to explain why the

Hornbachers and Daniels felt a sense of exigency to erect their fences, and why

they prevailed on Your Local Fence to erect such fences in the face of express

notice from Mr. Moorman (the principal of Your Local Fence) that the permits

were not effective and subject to appeal by the Department.

17. According to the Hornbachers, the purpose for their fence was to keep

stray dogs and their "leavings" from the yard, to keep the Key Deer that

populate the area from eating their vegetation, and to keep uninvited persons

and vehicles from entering their property. The later reason was of particular

import to the Hornbachers since they were about to leave for their annual

vacation in Michigan, and strangers had entered onto their property during their

prior absences. Therefore, to provide their residence with a degree of

security, they insisted the fence be installed before they left, and before

their permit was effective.

18. According to the Daniels, the purpose for their fence was primarily to

provide a secure environment for their children.2 In this regard, the proof

demonstrates that the Daniels are both police officers with the City of Key West

and work the same shift; that they have three children, ages, 7, 4, and 2, that

reside at the home and are cared for by an elderly woman in their absence; and

that the canal that abuts their backyard, as well as an existent boatramp,

represents a potential hazard to the children's safety. Cognizant of such

hazard, which was magnified by one child having already slipped down the boat

ramp, the Daniels insisted that the fence be installed, and Your Local Fence

acquiesced, before their permit was effective.

19. The Moormans offered no compelling reason for having erected their

fence prior to the effective date of their permit, but did espouse its purpose.

According to Mr. Moorman, the purpose for their fence was to keep the neighbors'

two children from playing under his house where he had installed a hot tub, and

to keep the Key Deer that populate the area from entering his property and

eating any vegetation he might choose to cultivate.

20. According to the McRaes, who have not yet erected their fence, they

desire a fence to prevent neighbors' dogs from leaving "droppings" in their

yard, and to keep the Key Deer from eating their plants.

21. While each of the applicants have articulated logical reasons to fence

their yards, such reasons are not relevant where, as here, the permits were

issued as of right. Rather, with regard to the Big Pine Key Area of Critical

County Concern, the erection of fences is strictly prohibited until such time as

the plan and regulations are amended to allow such use.3

Other considerations

22. At hearing, Mr. Moorman offered proof that the Department had failed

to appeal every fence permit issued by Monroe County in the Big Pine Key Area of

Critical County Concern, and contended, as a consequence of such failure, that

the Department should be precluded from contesting the issuance of the subject

permits. Mr. Moorman's contention is not, however, persuasive.

23. Here, the proof demonstrates that the Department's Key West Field

Office, to which Monroe County renders its permits, was established in 1983, and

that from January 1, 1984 to September 15, 1986, the Monroe County land

development regulations did not regulate fences on Big Pine Key and the Big Pine

Key Area of Critical County Concern ( BPKACCC) did not exist. Effective

September 15, 1986, the Monroe County land development regulations were adopted

in their current form and, among other things, created the BPKACCC and

prohibited fencing within such area. Accordingly, prior to September 15, 1986,

there was no prohibition against erecting fences in the BPKACCC, and no reason

for the Department to question the propriety of such develop- ments.4

24. Since the effective date of the current regulations, the Department

has, as contended by Mr.  Moorman, failed to appeal some permits for fencing in

the BPKACCC. Such failure was, however, persuasively shown to have occurred as

a consequence of severe understaffing, which inhibited the Department's ability

to review all permits issued by Monroe County in a timely fashion (i.e., before

the appeal period expired), and the breach of a memorandum of understanding

entered into between the Department and Monroe County, and not as a consequence

of any position adopted by the Department that fencing in the BPKACCC was

permissible. Accordingly, the Department's appeal of the subject permits is not

inconsistent with any position it has previously taken with regard to the

propriety of fencing in such area.5 Moreover, neither the applicants nor Your

Local Fence made any inquiry of the Department as to why some permits were

appealed and others were not, or requested that the Department waive its appeal

period, prior to erecting their fences. Under such circumstances, it cannot be

reasonably concluded that the Department misled any applicant so as to bar it

from contesting the propriety of the subject permits, and those who chose to

erect their fences knowing their permits were not yet effective acted at their

peril.6

CONCLUSIONS OF LAW

25. The Division of Administrative Hearings has jurisdiction over the

parties to, and the subject matter of, these proceedings. Sections 120.57(1)

and 380.07(3), Florida Statutes.

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

a development order of Monroe County granting the applicants' request for

building permits to install fences on their property in Big Pine Key, Monroe

County, Florida; an area of critical state concern. Pursuant to the provisions

of Section 120.57(1), Florida Statutes, the propriety of Monroe County's action

was reviewed de novo. Transgulf Pipeline Co. v. Board of County Commissioners

of Gadsden County, 438 So.2d 876 (Fla. 1st DCA 1983).

27. The ultimate burden of persuasion rested on the applicants to

establish their entitlement to the permits authorizing their proposed

development. Young v. Department of Community Affairs, 567 So.2d 2 (Fla. 1st

DCA 1990), and Florida Department of Transportation v. J.W.C. Co., Inc., 396

So.2d 778 (Fla. 1st DCA 1981). Here, for the reasons set forth in the findings

of fact, the applicants have failed to demonstrate their entitlement to the

subject permits. Succinctly, approval of the subject permits is contrary to the

express provisions of the Monroe County land development regulations which

currently preclude the erection of fences in the Big Pine Key Area of Critical

County Concern. Moreover, there are no changes in the applicants' proposals

that would make them eligible to receive such permits as of right.

28. Notwithstanding, it has been urged on behalf of the applicants that

the Department should be barred, ostensibly equitable estopped, from contesting

the propriety of Monroe County's issuance of the subject permits simply because

it failed to appeal all such permits in the past. Such circumstances do not,

however, support application of the doctrine of equitable estoppel.

29. The doctrine of equitable estoppel may be applied against the state,

although only in exceptional circumstances, upon a showing of the following

elements:

. . . (1) a representation as to a

material fact that is contrary to a later-

asserted position; (2) reliance on that

represen-tation; and (3) a change in

position detrimental to the party claiming

estoppel, caused by the representation and

reliance thereon.

Tri-State Systems, Inc. v. Department of Transportation, 500 So.2d 212, 215

(Fla. 1st DCA 1986). Here, for the reasons set forth in the findings of fact,

not one element of the doctrine finds support in the proof adduced at hearing.

Moreover, the doctrine of equitable estoppel will not apply to transactions

forbidden by statute or that are contrary to public policyi-State Systems,

Inc. v. Department of Transportation, supra, and Reedy Creek Improvement

District v. Department of Environmental Regulation, 486 So.2d 642 (Fla. 1st DCA

1986). Monroe County's comprehensive plan and land development regulations,

having been adopted as rules in Chapters 9J-14 and 28-20, Florida Administrative

Code, are accorded such deference. See State v. Jenkins, 469 So.2d 733 (Fla.

1985), and Florida Livestock Board v. Gladden, 76 So.2d 291 (Fla. 1954).

Accordingly, where, as here, the Department has timely challenged Monroe

County's action as being contrary to existent law, the doctrine of equitable

estoppel will not apply, and the regulations must be applied as writteni-

State Systems, Inc. v. Department of Transporta-tion, supra, Boca Raton

Artificial Kidney Center, Inc. v. Department of Health and Rehabilitative

Services, 493 So.2d 1055 (Fla. 1st DCA 1986), and Reedy Creek Improvement

District v. Department of Environmental Regulation, supra.

30. The circumstances considered, the decision of the Moormans,

Hornbachers, and Daniels, as owners, to install their fences, as well as the

decision of Your Local Fence, as contractor to install such fences on their

behalf, prior to the effective date of their permits, was ill-advised, and their

decision to do so was at their peril. See e.g., Boca Raton Artificial Kidney

Center, Inc. v. Department of Health and Rehabilitative Services, 475 So.2d 260

(Fla. 1st DCA 1985), and Sexton Cove Estates, Inc. v. State Pollution Control

Board, 325 So.2d 468 (Fla. 1st DCA 1976). The McRaes' decision to abide by the

terms of their permit and the pendency of these proceedings was prudent.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a

final order reversing Monroe County's decision to issue building permit Nos.

9110002231, 9110002807, 9110002853, and 9110003165, and deny the applications of

the Moormans, Hornbachers, McRaes, and Daniels, as owners, as well as your Local

Fence, as contractor, where pertinent, for such permits. It is further

recommended that such final order specify that there are no changes in the

subject proposals that would make them eligible to receive the permits as

requested.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th day of

April 1992.

__________________________________

WILLIAM J. KENDRICK

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of Division

of Administrative Hearings this

30 day of April 1992.

ENDNOTES

1/ Antonia Gerli, a Monroe County planner did attend and observe the

proceedings. Monroe Count was not, however, represented by counsel at the

proceedings.

2/ At hearing, the Daniels also suggested that the fence would serve to

secure their 90-pound Rottweiler and thereby accord protection to the Key Deer.

Such was not, however, a very compelling rationale. Rather, the Daniels'

judgment in introducing such an animal within Key Deer habitat, assuming he

presents a danger to Key Deer as they suggest, must be seriously questioned, as

well as their apparent failure to otherwise secure such animal in the past.

3/ Where a resident's perceived needs conflict with the land development

regulations, the regulations provide, under certain circumstances, for

consideration by the county of an application for conditional use. During the

course of such procedure, competing interests can be examined and, if possible,

a balanced result obtained that will further or not adversely affect either

interest. Here, since the permits were issued as of right, such issues were not

considered by the County and are not relevant here. Whether the applicants

could qualify for a conditional use was not at issue in these proceedings and,

therefore, no opinion is rendered in that regard.

4/ The fences that existed on or abutted the applicants' properties when

they applied for the subject permits were not at issue in these proceedings, and

were presumably erected prior to the effective date of the current regulations.

5/ Moreover, as discussed in the conclusions of law, the subject

regulations do not suffer any ambiguity regarding the propriety of fences within

the BPKACCC that would render any contrary position taken by the Department, had

there been one, of any significance.

6/ This is not the first case in which the Department has appealed one of

Mr. Moorman's permits. On April 12, 1990, the Department appealed building

permit no. 9010000369 issued to Mr. Moorman and Your Local Fence to erect a

fence on his property for the same reasons advanced in this case. On November

14, 1990, Mr. Moorman entered into a consent agreement whereby he represented

that he did not dispute the allegations in the petition appealing the issuance

of such permits, and consented to the issuance of an order cancelling such

permits. Mr. Moorman then went to the county and withdrew such permit and

applied for a refund on it. The very next day, Mr. Moorman submitted a permit

application, identical to the one that had been appealed, which resulted in the

permit at issue in this proceeding, Considering the proof, it is apparent that

Mr. Moorman knew some applications were not being caught by the Department, and

was hoping that his new application would likewise escape scrutiny. Mr. Moorman

was not, however, so fortunate, and his suggestion that he was in any manner

misled by the Department is not credible.

APPENDIX

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

1. Addressed in paragraphs 3 and 12.

2. Addressed in paragraphs 1 and 2.

3-5. Addressed in paragraphs 3-5 and footnote 6.

6. Addressed in paragraphs 3, 6 and 7.

7. Addressed in paragraphs 3, 10 and 11.

8. Addressed in paragraphs 3, 8 and 9.

9. To the extent necessary, addressed in paragraphs 23 and 24.

10. Addressed in paragraph 15.

11-13. Addressed in paragraphs 12 and 13, otherwise unnecessary detail.

14. Addressed in paragraphs 23 and 24, otherwise unnecessary detail.

Copies furnished:

Katherine Castor, Esquire

Department of Community Affairs

2740 Centerview Drive

Tallahassee, Florida 32399-2100

David Maloney, Esquire

Assistant General Counsel

Office of the Governor

The Capitol, Room 209

Tallahassee, Florida 32399-0001

James and Kathryn Daniels

Route 3, Box 297

Big Pine Key, Florida 33043

Your Local Fence, Inc.

Post Office Box 1720

Big Pine Key, Florida 33043

Theodore W. Herzog, Esquire

618 Whitehead Street

Key West, Florida 33040

Charles and Kathleen Moorman

Route 3, Box 439

Big Pine Key, Florida 33043

Randy Ludacer, Esquire

Monroe County Attorney

310 Fleming Street

Key West, Florida 33040

Nicholas and Jean Hornbacher

Route 3, Box 223E

Big Pine Key, Florida 33043

Raymond and Rosemarie McRae

Route 3, Box 283F

Big Pine Key, Florida 33043

Jack Osterholt, Director

South Florida Regional Planning Council

Suite 140

3400 Hollywood Boulevard

Hollywood, Florida 33021

Douglas M. Cook, Secretary

Florida Land and Water

Adjudicatory Commission

Executive Office of the Governor

The Capitol, PL-05

Tallahassee, Florida 32399

Copies furnished continued:

Mr. Bob Herman

Monroe County Growth Management Division

Public Service Building

Wing III

5100 Junior College Road West

Stock Island

Key West, Florida 33040

Linda Shelley, Secretary

Department of Community Affairs

2740 Centerview Drive

Tallahassee, Florida 32399-2100

488-8466

G. Steven Pfeiffer

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.