91-007300 Department Of Community Affairs vs. Charles Moorman, Kathleen Moorman And Your Local Fence Status: Closed Recommended Order on Thursday, April 30, 1992.

Summary: Respondent's construction of fence without permit contrary to Monroe County development regulations. Removal of fence required.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF COMMUNITY AFFAIRS, )

)

Petitioner, )

)

vs. ) CASE NO. 91-7300

)

CHARLES MOORMAN AND KATHLEEN )

MOORMAN, and YOUR LOCAL FENCE, )

a Florida Corporation, )

)

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 case on February 6, 1992, in Key West, Florida.

APPEARANCES

For Petitioner,

Department of

Community Affairs: Katherine Castor, Esquire

David L. Jordan

Assistant General Counsel

Department of Community Affairs

2740 Centerview Drive

Tallahassee, Florida 32399-2100

For Respondents,

Charles Moorman,

Kathleen Moorman,

and Your Local

Fence, Inc.: Theodore W. Herzog, Esquire

209 Duval Street

Key West, Florida 33040

STATEMENT OF THE ISSUES

At issue in this proceeding is whether a fence constructed by Charles and

Kathleen Moorman ( Moormans), as owners, and Your Local Fence, Inc. (Your Local

Fence), as contractor, in the Big Pine Key Area of Critical County Concern, Big

Pine Key, Monroe County, Florida, was contrary to the provisions of Chapter 380,

Florida Statutes.

PRELIMINARY STATEMENT

By notice of violation dated September 9, 1991, petitioner, Department of

Community Affairs (Department), charged that the Moormans, as owners, and Your

Local Fence, as contractor, had violated the provisions of Chapter 380, Florida

Statutes, by constructing a fence within the Big Pine Key Area of Critical

County Concern contrary to the provisions of the Monroe County comprehensive

plan and land development regulations, and without benefit of an effective

permit. As corrective action, the Department sought, among other things, the

removal of the subject fence and restoration of the property. In reply, the

respondents filed a request for formal hearing to contest the agency's proposed

action, and the matter was referred to the Division of Administrative Hearings

for the appointment of a Hearing Officer to conduct a formal hearing pursuant to

the provisions of Section 120.57(1), Florida Statutes.

Upon filing with the Division of Administrative Hearings, this case was

consolidated with Case Nos. 91- 4110DRI, 91- 5966DRI, 91- 5968DRI, and 91- 6603DRI,

which were referrals from the Florida Land and Water Adjudicatory Commission,

but which involved common issues of fact and law. On April 29, 1992, an order

severing this case from the other cases was entered.

At the consolidated hearing, the Department called as witnesses: Kenneth

Metcalf, accepted as an expert in comprehen-sive planning, and Peter Kalla,

accepted as an expert in Biology. Testifying on behalf of the respondents in

this case, as well as the individual respondents in the consolidated cases,

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 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

Background

1. 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, including Areas of

Critical State Concern, and all rules promulgated thereunder.

2. 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 implemen-tation 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. Most of Monroe County, including the Big Pine Key

Are of Critical County Concern discussed infra, is contained within the Florida

Keys Area of Critical State Concern.

3. Respondents, Charles and Kathleen Moorman ( 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 the Big Pine Key

Area of Critical County Concern, as well as the Florida Keys Area of Critical

State Concern, and consists of native pine lands, which are natural habitat for

the Key Deer.

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

engaged in constructing fences in Monroe County, and is owned by Mr. Moorman.

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 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.

6. Pertinent to this case, the Moormans' permit was not effective until 45

days after it was rendered to the Department (the "appeal period"), which period

accords the Department an opportunity to review the permit and decide whether to

contest its issuance by filing an appeal with the Florida Land and Water

Adjudicatory Commission (FLWAC), and , if appealed, its effectiveness is stayed

until after the completion of the appeal process. Section 380.07(2), Florida

Statutes, and Section 9.5-115(a), Monroe County Land Development Regulations

(MCLDR). Here, the Department, pursuant to the provisions of Section 380.07,

Florida Statutes, filed a timely appeal with FLWAC to contest the issuance of

such permit.

7. Notwithstanding the Moormans' express knowledge that their permit was

not effective until expiration of the Department's appeal period and, if

appealed, resolution of the appeal process, the Moormans erected the fence on

their property. Such action was contrary to the provisions of the Monroe County

land development regulations and Chapter 380, Florida Statutes. Sections 9.5-

111(a) and 9.5-115(a), MCLDR, and Section 380.07(2), Florida Statutes.

8. By separate recommended order to FLWAC, bearing Case No. 91-4110DRI,

91-5966DRI, 91-5968DRI, and 91-6603DRI (the "FLWAC Cases"), it was found, for

reasons hereinafter discussed, that building permit No. 9110002231, issued by

Monroe County for the construction of the Moormans' fence in the Big Pine Key

Area of Critical County Concern was not consistent with the Monroe County

comprehensive plan and land development regulations. Accordingly, it was

recommended that FLWAC enter a final order reversing Monroe County's decision to

issue such permit and to deny the Moormans' application for such permit.

Consistency of the Moorman permit

with the Monroe County comprehensive

plan and land development regulations

9. 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.

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

Regulations ( MCLDR), provides:

(b) Purpose: The 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 expec-

tations 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 habitation and

the survival of the Florida Key Deer;

d. The role and importance of freshwater

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 planning, 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 publication 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 within 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.

10. 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.

11. 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 was concluded in the

FLWAC Cases, and is concluded here, that the permit issued by Monroe County for

the construction of the Moorman fence in the Big Pine Key Area of Critical

County Concern is not consistent with the Monroe County comprehensive plan and

land development regulations.

Other considerations

12. 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 his permit,

or maintaining this enforcement action. Mr. Moorman's contention was not found

persuasive in the FLWAC Cases, and is not found persuasive in this case.

13. 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.

14. 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 Moorman permit is not

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

propriety of fencing in such area. 2/ Moreover, neither the Moormans 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 fence. Under such circumstances, it was found

in the FLWAC cases, and is so found here, that the proof fails to support the

conclusion that the Department misled the Moormans or Your Local Fence so as to

bar it from contesting the propriety of their permit or, here, from maintaining

this enforcement action. 3/

CONCLUSIONS OF LAW

15. The Division of Administrative Hearings has jurisdiction over the

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

and 380.11(2), Florida Statutes.

16. Pertinent to this case, Section 380.11(2)(a), Florida Statutes,

authorizes the Department to institute an administrative proceeding to prevent,

abate or control a condition or activity that violates the provisions of Part I,

Chapter 380, Florida Statutes, or any rule promulgated thereunder. A

development within an area of critical state concern that is undertaken contrary

to the provisions of Chapter 380, is such an activity. Section 380.05(16),

Florida Statutes.

17. Here, most of Monroe County, including the lands at issue, are located

within the Florida Keys Area of Critical State Concern designated by Section

380.0552, Florida Statutes, and Monroe County has adopted local land development

regulations and a local comprehensive plan that have been approved and adopted

in Chapters 9J-14 and 28-20, Florida Administrative Code, as required by Section

380.05, Florida Statutes. Accordingly, development in the Florida Keys Area of

Critical State Concern that is not consistent with the Monroe County

comprehensive plan and development regulations is an activity subject to the

remedial provisions of Section 380.11(2)(a), Florida Statutes.

18. As a prerequisite to construction, the Monroe County land development

regulations provide that "No development shall occur except pursuant to a

building permit." Section 9.5-111(a), MCLDR. The Monroe County land development

regulations, consistent with the provisions of Section 380.07(2), Florida

Statutes, further provide that where, as here, the property is located within an

area of critical state concern a building permit is not effective until 45 days

after rendition to the Department (the "appeal period"), and that the

effectiveness of the permit is further stayed by the filing of a notice of

appeal pursuant to Section 380.07, Florida Statutes. Section 9.5-115(a), MCLDR.

19. Here, the Department, pursuant to Section 380.07, Florida Statutes,

filed a timely appeal with FLWAC to contest the issuance of the Moorman permit.

Under such circumstances, the Moorman fence was erected without benefit of an

effective permit, contrary to the provisions of the Monroe County land

development regulations.

20. Regarding the propriety of Monroe County having issued the permit in

the first instance, it was concluded in the FLWAC Cases that the issuance of

such a permit for the construction of a fence in the Big Pine Key Area of

Critical County Concern was not consistent with the Monroe County comprehensive

plan and land development regulations. The same conclusion prevails in the

instant case.

21. Notwithstanding, it has been urged on behalf of the respondents that

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

the propriety of Monroe County's issuance of the subject permit, or from

maintaining this enforcement action, 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.

22. 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 representation;

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, the doctrine of equitable estoppel will not apply, and the

regulations must be applied as writteni-State Systems, Inc. v. Department

of Transportation, 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.

23. The circumstances considered, the decision of the Moormans, as owners,

to install their fence, as well as the decision of Your Local Fence, as

contractor, to install such fence on their behalf, prior to the effective date

of their permit, 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).

RECOMMENDATION

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

recommended that the Department of Community Affairs enter a final order

directing the respondents, Charles Moorman, Kathleen Moorman, and Your Local

Fence, Inc., to remove the 400 linear foot fence constructed on the Moorman

property, and that the respondents not construct, reconstruct, enlarge or expand

a fence on the subject property unless and until such time as the Monroe County

Board of County Commissioners adopts, and the Department of Community Affairs

approves, a comprehensive plan and land development regulations which

specifically authorize such development. Removal of the subject fence shall

occur within thirty (30) days after the entry of the final order.

RECOMMENDED 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 the Division

of Administrative Hearings this 30th

day of April 1992.

ENDNOTES

1/ The Florida Key Deer is a unique species of deer listed as endangered by

both the state and federal government. The official estimate of the total

population of these deer is 250-300, most of which live on Big Pine Key.

Currently, the deer are dying at a steady rate of approximately 60 deer per

year, while their natality rate is approximately 50 deer per year. At such

rate, the deer may soon lose, it they have not already lost, their ability to

survive as a species since the best available estimate of the persistence level

necessary to maintain their viability as a species is 100 to 300 deer.

The primary causes of Key Deer fatalities are habitat loss and human-

induced mortality. Pertinent to this case, fences are harmful to the Key Deer

because the deer are extremely mobile and need all of the space afforded by Big

Pine Key to survive. Fences prevent access to food supplies, complicate the

desired mixing of the gene pool, block exit routes out of canals, and funnel the

deer into undesirable locations such as roadways. Here, as previously noted,

the Moorman property is located within, and surrounded by, native pine lands,

which are natural habitat for the Key Deer. The erection of the Moorman fence

restricts the Key Deer's access to native habitat as well as providing a barrier

that could funnel the deer toward the road at the front of the Moorman property.

Erection of the fence was not, however, shown to have destroyed any native

vegtation such as to require, beyond removal of the fence, restoration of the

property.

2/ 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.

3/ 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, 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 TO RECOMMENDED ORDER, CASE NO. 91-7300

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

1. Addressed in paragraph 1.

2. Addressed in paragraph 2.

3. Addressed in paragraphs 3 and 4.

4. Addressed in footnote 3.

5. Addressed in paragraph 5.

9. Addressed in paragraphs 12-14.

10. Addressed in paragraph 7.

11. Addressed in paragraphs 2 and 9-11.

12 and 13. Addressed in footnote 1.

14. Addressed in paragraphs 12-14.

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

209 Duval 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

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

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.