STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GEORGE E. KLING, )

)

Petitioner, )

)

vs. ) CASE NO. 77-1224

) DEPARTMENT OF ENVIRONMENTAL ) REGULATION and JOHN J. ATWATER, ) JR., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case on September 28, 1977 at Clermont, Florida.

APPEARANCES

For Petitioner: Leo P. Rock, Jr., Esquire

1516 East Hillcrest Street, Suite 204

Orlando, Florida 32803

For Respondent: Segundo J. Fernandez, Esquire DER Assistant General Counsel

Department of Environmental Regulation 2562 Executive Center Circle, East Montgomery Building

Tallahassee, Florida 32301

For Respondent: Mrs. John J. Atwater, Jr., Atwater 821 Forestbrook Road

Clermont, Florida

By petition received by Department of Environmental Regulation (DER) on June 27, 1977, George E. Kling, Petitioner objects to Respondent, DER's letter of intent to issue a permit to construct a dock and boat house on Lake Minnehaha to John J. Atwater, Jr. pursuant to application made by Atwater for said permit. As grounds for the objection Petitioner alleges that the construction of the dock and boat house would materially impair Petitioner's riparian right to an unobstructed view of the lake.

Respondent, DER, filed a Notion to Dismiss the petition on the grounds that the only factors to be considered by DER in granting or denying such permits are whether or not the proposed structure would cause pollution or violate the water quality standards as provided in Chapter 403 F.S. In its Motion in Opposition to the Motion to Dismiss Petitioner contends that interference with riparian rights is a form of pollution.

By order entered August 26, 1977 the Hearing Officer requested the parties to submit briefs on the question of whether or not DER can deny a permit on the sole ground that the structure will interfere with the riparian rights of adjacent landowners. Ruling on the motion was deferred and will be addressed in this Recommended Order.

At the hearing one witness was called by Petitioner, two witnesses testified on behalf of the Respondent, and five exhibits were admitted into evidence.

FINDINGS OF FACT

1. Applicant-Respondent Atwater owns a residence fronting on Lake Minnehaha with access to the lake. He proposes to construct a dock from his property extending into the lake a distance of approximately 100 feet until adequate depth of water is found where his boat can be launched and retrieved. The boat house proposed for construction at the end of the dock will be roofed, but of open construction.

   
   

2. Lake Minnehaha is a meandered lake. Accordingly the lake bottom below the mean high water line is sovereign land under the jurisdiction of the Trustees of the Internal Improvement Trust Fund (IITF).

   
   

3. Numerous docks, some with enclosed boat houses, exist at various places around the perimeter of the lake. One such dock and boat house fronts on property just west of Atwater's property. Kling's property is adjacent and eastward of Atwater's property. Kling has a boat dock (but no boat house) extending from his property into the lake. Photographs showing views from applicant's and Kling's property are labeled to indicate that Kling's property is west of Atwater's; however, the conflict in direction is not material to the determination of the issues here involved. These photos further show that Petitioner's view of the lake from his house in the direction of the structure proposed by Atwater is materially blocked by trees and vegetation.

   
   

4. The structure proposed by Atwater will commence 20 feet inside the easterly boundary of his property at the shoreline and extend into the lake. The proposed open boat house at the end of the dock will extend 12 feet toward Kling's extended property line, leaving the dock and boat house within the lakeward extension of Atwater's property line. With an open boat house the interference with a view of the lake will be minimal.

   
   

5. Construction of the dock and boat house will not create any source of pollution and will not degrade the quality of the water of Lake Minnehaha.

   
   

   CONCLUSIONS OF LAW

   
   

6. In its motion to dismiss the petition Respondent, DER, contests the right of the Petitioner to have DER consider Petitioner's riparian rights in granting or denying Respondent Atwater's application for a permit to build a dock and boat house. Chapter 403 F.S. provides guidelines for environmental control of the waters of this state. Section 403.021 F.S. provides in pertinent part:

   
   

   "(2) It is declared to be the public policy of this state to conserve the waters of the state and to protect, maintain, and improve the quality thereof for public water supplies, for

   the propagation of wildlife, fish and other aquatic life, and for domestic, agricultural, industrial, recreational, and other beneficial uses, and to provide that no water be discharged into any waters of the state without first being given the degree of treatment necessary to protect the beneficial uses of the water."

   
   

   Section 403.031 F.S. defines pollution to be:

   
   

   ". . .the presence in the outdoor atmosphere or waters of the state of any substances, contaminants, noise, or man-made or

   man-induced alterations of the chemical, physical, biological, or radiological integrity of air or water in quantity or at levels which are or may be potentially harmful or injurious to human health or welfare, animal or plant life, or property or unreasonably interfere with the enjoyment of

   life or property, including outdoor recreation."

   
   

7. Section 403.061 provides in pertinent part that the Department of Environmental Regulation shall have the power and the duty to control and prohibit pollution of air and water in accordance with the law and rules and regulations adopted and promulgated by it.

   
   

   Rules promulgated in Chapter 17-4.07(1) provide:

   "A permit may be issued to the applicant upon such conditions as the Department may direct, only if the applicant affirmatively provides the Department with reasonable assurance based on plans, test results and other information, of the construction, expansion, modification, operation or activity of the installation will not discharge, emit, or cause pollution in contravention of Department standards, rules, or regulations."

   
   

8. Petitioner's contention, that interference with riparian rights is a form of pollution prohibited by Chapter 403. F.S. and rules contained in Chapter 17-4. F.A.C., is without merit.

   
   

9. The limited issue of whether or not DER, as the state agency exercising some of the functions previously performed by the Trustees, IITF should consider riparian rights in ruling on applications for permit was not raised by the parties. Since the Trustees hold title to sovereignty submerged lands for the benefit of the people of the State of Florida it would appear that, in granting an applicant permission to erect a structure on submerged land, the Trustees, or their alter egos for issuing permits, DER, should also consider riparian rights of upland owners in granting such permits. This proposition was considered in Hayes v. Bowman, 91 So.2d 795 (Fla. 1957) wherein the court stated at p. 802:

   
   

   "It appears to us that our position is strengthened when we take note of the fact

   that the Trustees of the Internal Improvement Trust Fund are five constitutional officers of the Executive Branch of the government. If we are ever to apply the rule that public officials will be presumed to do their duty, it would appear to us to be most appropriate in this instance. Certainly we are not to assume that in the supervision and disposition of submerged land the Trustees will knowingly ignore the rights of upland owners. It is to be assumed that they will exercise their judgment in a fashion that will give due regard to private rights as well as public rights. This Board would appear to be the most appropriate repository of the responsibility to be exercised in these matters in the first instance. The exercise of their judgment should not be subjected to adverse judicial scrutiny absent a clear showing of abuse of discretion or a violation of law."

   
   

10. From the foregoing it is concluded that DER may consider riparian rights of upland owners in granting permits involving sovereignty lands under navigable waters. Accordingly, the Motion to Dismiss the petition is hereby denied.

    
    

11. Riparian rights are legal rights enjoyed by owners of land bordering on navigable waters. City of Eustis v. Firster, 113 So.2d 260 (Fla. App. 1959). One of these rights is the right to an unobstructed view of or over such waters.

    34 FLA. JUR. 131 WATER AND WATER COURSES. Other riparian rights include the right of ingress, egress, boating, bathing, and fishing. However, this right to an unobstructed view is not so extensive as to destroy the riparian rights of a property owner to erect structures fronting his property that are necessary to a full enjoyment of his riparian rights. The riparian right to a view across the water is the right to a direct unobstructed view across the waters toward the channel over an area as near as practicable in the direction of the channel so as to distribute equitably the submerged lands between the upland and the channel. Hayes v. Bowman, supra.

    
    

12. There is no specified channel on Lake Minnehaha, and if riparian rights are to equitably distributed, the riparian right to an unobstructed view can extend only from the riparian land owner's property in the direction of the center of the lake. cf, City of Eustis v. Firster, supra.

    
    

13. Furthermore, the open boat house proposed for construction by applicant will have little, if any, effect on Petitioner's view of the lake and particularly so since existing trees and vegetation already preclude an unobstructed view of the lake from Kling's residence.

    
    

14. From the foregoing it is concluded that the riparian rights to an unobstructed view is a factor that may and should be considered by DER in granting permits to erect structures on sovereign owned bottoms of meandered lakes. It is further concluded that the dock and boat house proposed for construction by applicant Atwater creates neither pollution nor water quality degradation of the waters of Lake Minnehaha and will not interfere with Petitioner's riparian rights. It is therefore,

RECOMMENDED that the petition be dismissed and the requested permit to Atwater be granted.

DONE and ENTERED this 6th day of October, 1977, in Tallahassee, Florida.

K. N. AYERS Hearing Officer

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

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 6th day of October, 1977.

COPIES FURNISHED:

Segundo J. Fernandez, Esquire Assistant General Counsel Department of Environmental

Regulation

2562 Executive Center Circle, East Montgomery Building

Tallahassee, Florida 32301

Leo P. Rock, Jr., Esquire 1516 East Hillcrest Street Suite 204

Orlando, Florida 32803

Mr. John J. Atwater, Jr. 821 Forestbrook Road

Maitland, Florida 32751

Docket for Case No: 77-001224

Orders for Case No: 77-001224