STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DOROTHY B. LEAVENGOOD, )

)

Petitioner, )

)

vs. ) CASE NO. 77-484

) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in St. Petersburg, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton, II, on September 8. 1977. The parties were represented by counsel:

APPEARANCES

For Petitioner: Mr. Ross H. Stanton, Jr., Esquire

280 Florida Federal Building 3637 Fourth Street North

St. Petersburg, Florida 33731

For Respondent: Ms. Patricia M. Duryee, Esquire and

Ms. Carol Barice Haughey, Esquire Montgomery Building

2562 Executive Center Circle East Tallahassee, Florida 32301

By petition for hearing dated March 7, 1977, Petitioner sought issuance of a permit authorizing a seawall, which had been substantially completed before application for the permit was made to the Board of Trustees of the Internal Improvement Fund, on October 31, 1973. Respondent has since succeeded to the authority of the Board of Trustees of the Internal Improvement Fund with respect to issuance of permits in matters of this kind.

FINDINGS OF FACT

1. In 1950, Petitioner acquired lots 8 and 9, block 23, of Lone Palm Beach subdivision, third addition, which lots front on Boca Ciega Bay in Pinellas County, and she has held the property in free simple since. Petitioner's late husband, her predecessor in title, acquired the lots in 1941. They constitute the tip of man-made peninsula jutting bayward from a barrier island bordered on the other side by the Gulf of Mexico. In 1926, the lots did not exist as such, because the peninsula had not yet been built. Petitioner's exhibit No. 10. Since the creation of the lots, their aquatic periphery has varied continually, on account of accretion and reliction. In the first half of the last decade, wooden and metal stakes were sunk along the shoreline, landward of the water's

   edge. Since then, water has washed away Petitioner's beach, moving the shoreline inland an average distance of approximately thirty feet. Erosion has been more severe along the northern half of Petitioner's beach than along the southern half. Seawalls have been built along adjacent properties on either side of Petitioner's parcel. The evidence did not establish what proportion of this erosion may have been attributable to the effects of Hurricane Agnes or to the location of neighboring seawalls or to any other particular cause.

   
   

2. In 1972, the Honorable C. Richard Leavengood, Petitioner's present husband, hired Rupert Osteen, a contractor, to build a seawall. Pinellas County issued a building permit to Mr. Osteen, covering a "Seawall - 356LF - Type D," Petitioner's Exhibit No. 5, on March 14, 1973. (In September of 1951, the Town of Redington Beach had issued a building permit for "Dredging and Filling behind Sea Wall Constructed on [what is now Petitioner's] Rear Property Line.") Construction began, but came to an abrupt halt in July of 1973, when Mr. Osteen was arrested for building a seawall "without having obtained the recommendation of the Chief of Engineers and the Authorization of the Secretary of the Army prior to beginning," a criminal offense of which he was subsequently convicted in the United States District Court for the Middle District of Florida. Respondent's Exhibit No. 4. Before work on the seawall stopped, Petitioner had caused some 4,500 cubic yards of fill dirt to be deposited on the lots.

   
   

3. After Mr. Osteen's arrest, Petitioner applied for a fill permit to the Pinellas County Commission, sitting as the Pinellas County Water and Navigation Control Authority. The Authority granted the permit on March 19, 1974, on condition that the seawall be made to tie in with the existing seawall on lot 7, which adjoins Petitioner's property to the west. On or about August 16, 1974, Petitioner applied to the Department of the Army prior to beginning," a criminal offense of which he was subsequently convicted in the United State District Court for the Middle District of Florida. Respondent's Exhibit No. 4. Before work on the seawall stopped, Petitioner had caused some 4,500 cubic yards of fill dirt to be deposited on the lots.

   
   

4. After Mr. Osteen's arrest, Petitioner applied for a fill permit to the Pinellas County Commission, sitting as the Pinellas County Water and Navigation Control Authority. The Authority granted the permit on March 19,1974, on condition that the seawall be made to tie in with the existing seawall on lot 7, which adjoins Petitioner's property to the west. On or about August 16, 1974, Petitioner applied to the Department of the Army for a permit, pursuant to Sections 403 and 1344 of Title 33, United States Code. Petitioner applied for the "after the fact" permit at issue in these proceedings on May 10, 1974. At one point in the course of negotiations between Petitioner and Respondent, Mr. Douglas Jones, Chief of Respondent's Bureau of Permitting, indicated that Respondent would permit Petitioner to erect another seawall along the present mean high water line. Eventually, Respondent's staff notified Petitioner that it would recommended denial of an after the fact permit for the existing seawall, and Petitioner filed a request for administrative hearing, which initiated these proceedings.

   
   

5. Aerial photographs dating back to 1942 were received in evidence. Respondent's Exhibits Nos. 5 through 11. None of these phontographs show land as far out in the water as the portion of the seawall Mr. Osteen finished. The partially completed seawall is further waterward tan the 1971 interface between land and water. Respondent's Exhibits Nos. 9 and 10. In November of 1973, Alan

   J. Burdette, Jr., a marine biologist, who is now employed by Respondent, inspected lots 8 and 9 of Lone Palm Beach subdivision and found water in the low area landward of the seawall. More recent photographs indicate that the seawall

   still stands somewhat offshore. E.g.., Respondent's Exhibit No. 16, taken on September 7, 1977. Mr. Bardette's inspection revealed oyster and fiddler crabs inside the seawall and clams just outside. Mangroves, which were not there at the time construction began, had sprung up. Removal of the seawall would create additional shallow bottom where algae, clams, oysters, mangroves and other marine life could flourish.

   
   

6. Mr. R. S. Murali, a hydorgraphic engineer employed by Respondent, visited Petitioner's property the day before the hearing in this matter was held. While he was on the site, the wind blew from the southwest and waves with an average height between eight and nine inches struck Petitioner's unfinished seawall every 1.2 seconds. Mr. Murali discovered evidence of erosion under the seawall, which was caused by wave action. If the seawall were placed more landward, so that waves travelled up a sloping beach before striking it, the erosion problem could be significantly alleviated.

   
   

   CONCLUSIONS OF LAW

   
   

7. Petitioner argues that she owns the submerged land lying landward of the seawall and the bottom on which the seawall has been built, as well as the portions of lots 8 and 9 which are above the mean high water line, citing City of Miami v. St. Joe Paper Co., 347 So.2d 622 (Fla. 3rd DCA 1977), cert. granted (Fla. June 6, 1977); Odom v. Deltona Corp., 341 So.2d 977 (Fla. 1976) (rel. den. 1977); Board of Trustees of Internal Improvement Trust Fund v. Bankers Life & Casualty Co., 331 So.2d 381 (Fla. 1st. DCA 1976); and Askew v. Taylor, 299 So.2d

   72 (Fla. 1st DCA 1974). Ownership is not at issue in these proceedings. The cases Petitioner cites make clear that the question of ownership is separate and distinct from the question "of the applicability of any statute regulating and protecting the ecology of the state or requiring permits before conducting activities which may be potentially dangerous to the ecology." Board of Trustees of Internal Improvement Fund v. Bankers Life & Casualty Co., 331 So.2d 381, (Fla. 1st. DCA 1976).

   
   

8. The present case is readily distinguishable from the unusual situation which obtained in Askew v. Taylor, 299 So.2d 72 (Fla. 1st DCA 1974), where, at the time a citizen purchased submerged land from the Board of Trustee, "it was clearly intended by all parties that filling would take place. . ." 299 So.2d at

1. Because "the State must be honest," the Court concluded, it could "not refuse [the landowner] the right to fill, "299 So.2d at 74, after inducing purchase of the parcel by representations that it could be filled. The Board of Trustees did have the right to cancel out the original conveyance by condemning the property, but otherwise the Board was bound to honor the terms of the sale, the Court decided. In the present case, Petitioner did not establish any special circumstances surrounding any conveyance in her chain of title.

   
   

   1. In City of Miami v. St. Joe Paper Co., 347 So.2d 622 (Fla. 3rd DCA 1977), cert. granted (Fla. June 6, 1977), the City of Miami filed suit to quiet title, which is an appropriate procedure for resolving disputes as to ownership of land. The case had nothing to do with fill permits. The decision in Odom v. Deltona Corp., 341 So.2d 977 (Fla. 1976) (reh. den. 1977), is equally inapposite. The question for decision there was the ownership of fresh water "nonmeandered lakes and ponds," 341 So.2d at 984, where "the area of the lakes is included within the perimeters of the land" conveyed by the sovereign. Land bordering tidal waters ultimately communicating with the Gulf of Mexico falls in an entirely different category. "It is of considerable significance," the Court said in the Delton case (quoting the trial court's order), "that Section

      253.151 singled out 'meandered fresh water lakes' for special treatment, and

      specified with particularity that same are not to be construed to be same character as tidal lands, streams, watercourses or rivers or as lakes attached to tidal water." 341 So.2d at 983 (emphasis supplied).

      
      

   2. The issue in the present case is the narrow questions whether removal of Petitioner's seawall and the fill dirt behind it "would be more damaging to the environment or the marine resources sought to be protected by [Chapter 253, Florida Statutes] than would be the granting of . . . [a] permit." Section

      253.124 (7) (a), Florida Statutes (9175). Guy T. Selander and Henry W. Harris

      v. Department of Environmental Regulation, No. 76-2126 (Recommended Order adopted as final order by DER July 25, 1977) (appeal pending). It is unnecessary to consider whether some basis might have existed for issuance of a "before the fact" permit under other provisions of Section 253.124, Florida Statutes (1975); and, if so, whether the requirements of Chapter 403, Florida Statues (1975), and rules promulgated thereunder would have been met.

      
      

   3. The evidence established that removal of the fill followed by removal of the seawall would yield an additional quarter acre of shallow bottom capable of supporting, inter alia, oysters, fiddler crabs, clams and mangroves; and that a seawall further landward would be less susceptible to erosion of the kind already evident underneath the existing seawall. Less damage to the environment is likely to result from removal of the existing seawall, even if another seawall is erected further inland, than form permitting the existing seawall to stand.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That Petitioner's application for an after the fact fill permit authorizing the seawall which has already been constructed around lots 8 and 9, block 23, of Lone Palm Beach Subdivision, third addition, be denied.

DONE and ENTERED this 30th day of November, 1977, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

904/488-9675

APPENDIX

Paragraph one of Petitioner's Proposed Findings of Fact has been adopted, in substance, insofar as relevant:.

Paragraph two of Petitioner's Proposed Findings of Fact has been adopted, in substance, insofar as relevant, except for the date of the permit issued by the Pinellas County Water and Navigation Control Authority, which is immaterial.

Paragraph three of Petitioner's Proposed Findings of Fact is apparently predicated on Petitioner's Exhibit No. 12, an uncertified copy of page 74 of

Pinellas County's Plat Book 20. Although a handwritten notation on the exhibit reads "Plat Recorded June 21, 1937" such extraneous handwriting on an uncertified copy is not "evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs.". Section 120.58(1)(a), Florida Statutes (1975). The question of the Butler Act's applicability is a question of law rather than of fact and it has not been necessary to decide the question.

Paragraph four of Petitioner's Proposed Findings of Fact has not been adopted, for the most part, because of lack of support in the evidence.

Paragraph five of Petitioner's Proposed Findings of fact emphasizes that the testimony as to flora and fauna related to a time considerably after application for the after the fact permit was made. While this is true, what is at issue is the ecological consequences of leaving the seawall, so that the relevant time period is the time period beginning when the application was made and extending indefinitely into the future.

COPIES FURNISHED:

Ms. Carol Haughey, Esq. Department of Environmental

Regulation

2562 Executive Center Circle, East Montgomery Building

Tallahassee, Florida 32301

Mr. Ross H. Stanton, Jr., Esq.

280 Florida Federal Building 26274th Street North

St. Petersburg, Florida 33704

Ms. Patricia M. Duryee, Esq. Department of Environmental

Regulation

2562 Executive Center Circle, East Montgomery Building

Tallahassee, Florida 32301

================================================================= AGENCY FINAL ORDER

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

BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION

DOROTHY B. LEAVENGOOD,

Petitioner,

vs. CASE NOS. 77-484

STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION,

Respondents.

/

FINAL ORDER

BY THE DEPARTMENT:

On November 30, 1977, the duly appointed Hearing Officer in the above- styled matter completed and mailed to the Department and all parties a Recommended Order consisting of his findings of fact, conclusions of law, and recommendations, a copy of which is attached hereto as Exhibit "A".

Pursuant to Section 17-1.26(2), Florida Administrative Code, and Section 120.57(1)(b)(8), Florida Statutes, the parties were allowed fifteen (15) days in which to present written exceptions to the Recommended Order. Neither the Petitioner nor the Respondent submitted exceptions. The Recommended Order thereafter came before me, as head of the Department, for final agency action on this matter.

On page 3, line 19, of his Recommended Order, the Hearing Officer entered the following finding:

"At one point in the course of negotiations between petitioner and respondent, Mr.

Douglas Jones, chief of respondent's bureau of permitting, indicated that respondent would permit petitioner to erect another seawall along the present mean high water line."

The meaning of the phrase, "present mean high water line", as used in this finding, is ambiguous and requires clarification.

If the phrase, "present mean high water line", was intended to indicate the line at which the waters of Boca Ciega Bay interface with Petitioner's seawall, such finding is not supported by competent, substantial evidence of record, and is hereby rejected. A review of the record indicates that Mr. Jones had, at one point, indicated that the Department would allow Petitioner to construct a seawall at the mean high water line as it existed prior to Hurricane Agnes.

Additionally, the record reflects that the Department indicated that it would permit the construction of another seawall at the location of the mean high water line as it existed prior to the unauthorized seawall construction and placement of 4,500 cubic yards of back fill material. [Testimony of Mr. Jones and exhibits 25, 19 and 30.] However, there is no evidence of record that could be construed to support a finding that Mr. Jones ever indicated to Petitioner that she would be allowed to erect a seawall where the present seawall is located.

Having considered the Recommended Order, including Findings of Fact and Conclusions of Law, together with the pleadings and entire record in this case, it is therefore,

Ordered by the State of Florida Department of Environmental Regulation as follows:

1. The Findings of Fact contained in the Recommended Order, as clarified or modified above, are hereby adopted and approved.

   
   

2. The Conclusions of Law contained in the Recommended Order (Exhibit "A"), to the extent that each is consistent with and not contrary to the Findings adopted in paragraph 1. above, are hereby adopted and approved.

   
   

3. The Recommendation, contained on page 6 of the Hearing Officer's Recommended Order, is hereby adopted and approved.

Accordingly, Petitioner's application for an after-the-fact permit is hereby denied.

DONE AND ENTERED this 13th day of January, 1978, in Tallahassee, Florida.

JOSEPH W. LANDERS, JR.

Secretary

2562 Executive Center Circle, East Montgomery Building

Tallahassee, Florida 32301

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing Final Order was furnished by United States Mail to MR. ROSS H. STANTON, JR., 280 Florida Federal Building, 3637 4th Street, North, St. Petersburg, Florida 33731 and MR. ROBERT

T. BENTON, II, Hearing Officer, Division of Administrative Hearings, Department of Administration, Room 530, Carlton Building, Tallahassee, Florida 32304, this 13th day of January, 1978.

CAROLE HAUGHEY

Assistant General Counsel Department of Environmental

Regulation

2562 Executive Center Circle, East Montgomery Building

Tallahassee, Florida 32301 Telephone: 904/488-9730

Copies furnished:

Division of Environmental Permitting, DER Southwest District Office, DER

Office of Enforcement, DER

Marine Patrol, Department of Natural Resources Florida Game and Fresh Water Fish Commission

U.S. Army Corps of Engineers

Docket for Case No: 77-000484

Orders for Case No: 77-000484