STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANK CONDURELIS, BESSIE JO ) CONDURELIS, FRANK J. HEMELGARN, ) and REBECCA N. HEMELGARN, )

)

Petitioner, )

)

vs. ) CASE NO. 77-647

) STATE OF FLORIDA, DEPARTMENT OF ) ENVIRONMENTAL REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, G. Steven Pfeiffer, held a public hearing in this case on November 8, 1977, in Fort Myers, Florida.

APPEARANCES

The following appearances were entered:

For Petitioner: William H. Shields

Pavese, Shields, Garner, Haverfield & Kluttz

Fort Myers, Florida

For Respondent: Carole Haughey

Tallahassee, Florida

Frank Condurelis, Bessie Jo Condurelis, Frank J. Hemelgarn, and Rebecca N. Hemelgarn ("Petitioners" hereafter) submitted an application for a permit to construct a cable crossing across a canal to the Department of Environmental Regulation ("Department" hereafter). On March 3, 1977, the Department issued a notice of its intent to deny the application. Petitioners thereafter filed a Petition for Administrative Hearing with the Department. In accordance with the provisions of Section 120.57(i) (b) (3), Florida Statutes, the Department forwarded the Petition to the office of the Division of Administrative Hearings for the assignment of hearing officer and the scheduling of a hearing. The hearing was originally scheduled to be conducted on July 20, 1977, by notice dated April 20. Petitioners twice requested continuances, and the final hearing was scheduled as noted above by notice dated August 9, 1977.

At the final hearing, the Petitioners called Lester Bulson, a registered professional land surveyor, as their only witness. Mr. Bulson was accepted as an expert witness in the field of land surveying. The Department called the following witnesses: Julian Clarkson, an attorney who has represented individuals in proceedings involving land ownership claims which are adverse to claims made by the Petitioners; and Allyson Ayers, and Thomas M. Provenzano,

environmental specialists employed by the Department. Joseph DeCenzo, a resident of the Bayside Estates subdivision, which is located in close proximity to the Petitioners' proposed project, testified as a member of the public at large. Sixty-eight other persons, all of whom own property within the Bayside Estates subdivision, adopted the statement made by Mr. DeCenzo.

Hearing Officer's Exhibits 1 through 7, Petitioners' Exhibits 1 through 7, and Respondent's Exhibits 2 through 10 were offered into evidence at the final hearing and were received. Respondent's Exhibit 1 was offered into evidence and was rejected. During the hearing the undersigned took official notice of the rules of the Department of Environmental Regulation, Chapter 17, Florida Administrative Code. The parties have submitted posthearing legal memoranda, and the Petitioners have submitted a proposed recommended order.

FINDINGS OF FACT

1. The Petitioners and an adjoining land owner have been involved in a dispute respecting the boundary between their property. The adjoining land owner developed a residential community known as the Bayside Estates subdivision. A canal system was dredged creating waterfront lots in the subdivision, and the canal system was connected to a waterway which flows to the Gulf of Mexico. The portion of the canal system which connects it to the waterway leading to the Gulf of Mexico was constructed on property owned by the Petitioners. Litigation respecting the rights of the Petitioners and adjoining land owners has been conducted in the Circuit Court of the 20th Judicial Circuit, Lee County, Florida, and in the Florida Second District Court of Appeal.

   
   

2. Petitioners are seeking to construct a cable across the joining portion of the canal system, which they contend lies totally within their property. The canal system is a navigable waterway. The stated purpose of the Petitioners' proposed project is to prevent persons who live above the Petitioners' property from using the waterway for boating access to the Gulf of Mexico. The project would serve as a clear obstruction to navigation within the canal system.

   
   

3. The Bayside Estates subdivision is located on the canal system above the point where the Petitioners would construct their proposed cable. There are approximately 300 property owners in the subdivision and as many as 150 of them are boat owners. These persons presently utilize the portion of the canal system which the Petitioners propose to block for water access to the Gulf of Mexico. These persons purchased property in the subdivision with the understanding and the belief that they would have water access to the Gulf of Mexico.

   
   

4. Other than the fact that it would serve as an obstruction to navigation, the Petitioners, proposed cable would have no environmental impact, except perhaps an aesthetic one. The cable would not obstruct the flow of water, and would not be a source of pollution.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties to this action and over the subject matter. Sections 120.57(1), 120.60, Florida Statutes (1976 Supp.).

6.. The Rules of the Department, Chapter 17-4.29 provide in pertinent part as follows:

"(1) Pursuant to Sections 253.123 and

253.124 and 253.02, Florida Statutes, no work, including dredging, filling

or construction in, on, over or connecting to navigable waters of the State shall

be commenced prior to the issuance by the Department of a permit authorizing the project undertaken.

(6) The Department shall not issue a permit unless a biological survey, ecological study and hydrographic survey, if any, together with infor- mation and studies provided by the Applicant affirmatively show:

(b) That the proposed project will not create a navigational hazard, or a serious impedement to navigation, or substantially alter or impede the natural flow of navigable waters, so as to be contrary to the public interest."

1. The Petitioners' proposed project would provide an absolute impedement to navigation, and indeed it is designed expressly for that purpose. The fact that many persons use the waterway where the project would be constructed for recreational purposes, and for water access to the Gulf of Mexico shows clearly that the proposed project would be contrary to the public interest.

   
   

2. Petitioners contend that the above quoted Rules are invalid because Chapter 253, Florida Statutes, contains no express authority for the Department to establish any permitting standards respecting navigability. This contention is without merit. In Yonge v. Askew, 293 So.2d 395, 400 (1 DCA Fla. 1974), the Court stated that the Department of Environmental Regulation, as the successor of the Trustees of the Internal Improvement Trust Fund for permitting purposes is,

   
   

   ". . . charged with the responsibility of preserving the navigable waters of this state not only for the benefit of upland owners but also for all of the people of Florida. Theirs is the duty of taking a broad and objective view

   of all matters under their jurisdiction which might adversely affect the public interest and of reaching their decisions in a manner consistent with the greatest good for the greatest number."

   The Court went on to state: (at p. 401) Reverting to the Statute under con-

   sideration [Chapter 253, Florida Statutes]

   it appears to cast on the applicant for a permit the burden of making an af-

   firmative showing that the works for which the permit is sought will be in the public interest."

   
   

   The works which the Petitioners are proposing would have the affect of closing a navigable waterway to many persons who presently use the waterway for recreational purposes. Petitioners have made no reasonable suggestion as to how their proposed project could conceivably be considered in the public interest.

   
   

3. The Petitioners further contend that insofar as Chapter 253, Florida Statutes, authorizes the Respondent to deny the application which the Petitioners have filed in this case, the Statute is unconstitutional. This contention, to the extent that it has any merit, cannot be litigated in this forum.

   
   

4. The Petitioners' application to construct a cable across the navigable waters of this State should be denied. If the Petitioners' property rights to the waterway have been violated, they should seek redress in the Courts, and not through an application filed with the Department of Environmental Regulation, which would, if granted, have the effect of obstructing the navigable waters of the State.

RECOMMENDED ORDER

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

That the application submitted by the Petitioners to construct a cable across navigable waters of the State should be denied.

RECOMMENDED this 9th day of January, 1978, in Tallahassee, Florida.

G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Carole Haughey, Esquire Assistant General Counsel Department of Environmental

Regulation

2562 Executive Center Circle, East Montgomery Building

Tallahassee, Florida 32301

William H. Shields, Esquire PAVESE, SHIELDS, GARNER, HAVERFIELD & KLUTTZ

Post Office Drawer 1507 Fort Myers, Florida 33902

Docket for Case No: 77-000647

Orders for Case No: 77-000647