STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANCIS X. ATWATER, )

)

Petitioner, )

)

vs. ) CASE NO. 77-1409

) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing on Sugar Loaf Key, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton, II, on October 26, 1977, and again on December 16, 1977. Petitioner "appeared in propria persona on October 26, 1977, but was represented by counsel on December 16, 1977. The following appearances were entered:

APPEARANCES

For Petitioner: Mr. Edward B. Johnson, Jr., Esquire

410 Fleming Street

Key West, Florida 33040

For Respondent: Mr. Louis F. Hubener, Esquire

Montgomery Building

2562 Executive Center Circle East Tallahassee, Florida 32301

By application dated March 29, 1977, petitioner sought a permit from respondent to place about 500 cubic yards of fill on two submerged lots on Ramrod Key. Subsequently, petitioner augmented his application by supplying additional information, at respondent's request. By letter dated July 22, 1977, respondent gave petitioner notice of its intent to deny his application.

FINDINGS OF FACT

Petitioner is the record owner of Lot 11, Block 4 and Lot 12, Block 2 of Ramrod Shores Marina Section subdivision on Ramrod Key in Monroe County, Florida. These lots lie across Angelfish Road from each other. They both lie across Mariposa Road from Torch Ramrod Channel which leads into Niles Channel which leads into the Gulf of Mexico to the north; to the south Torch Ramrod Channel leads into Newfound Harbor which opens onto the Atlantic Ocean.

Mariposa Road appears on a subdivision plat filed in the official records of Monroe County in 1960, and on revisions of the original plat, one of which was filed in 1963, and the more recent of which was filed in 1969. On the two earlier plats, it is recited that "[r]oads shown hereon not previously dedicated or owned by the State or County are hereby dedicated to the perpetual use of the

public." The evidence did not show whether Monroe County or any other governmental body had accepted the dedication of Mariposa Road.

Cape Sable Corporation, a predecessor in title to petitioner, trucked in oolite fill to construct Mariposa Road; and repaired the road after occasional washouts, a practice which petitioner's immediate predecessor in title, James Brown, continued. Because the rock which was used to build Mariposa Road is loosely packed, water from the channel percolates through the road even when it is not high enough to move across the road in a sheet, which sometimes happens. There are also low lying places in the road through which tidal waters flow onto petitioner's property. Salt water up to a foot deep regularly stands on petitioner's property, which is overgrown with spider mangroves and red mangroves. The mangroves stabilize the shoreline on account of their root systems, which also serve to filter out certain substances which would otherwise run off into the channel. Decaying plant matter produced by the mangroves supports various microorganisms which constitute an early link in the food chain that results in commercial fisheries. Killifish, needlefish, jelly fish and wading birds all frequent petitioner's property in its present state. Covering petitioner's lots with fill would destroy or displace the marine life now flourishing there.

Respondent has requested James Brown to remove the fill along Mariposa Road, citing Chapter 403, Florida Statutes, and the Army Corps of Engineers has taken similar action under applicable federal laws. Mr. Brown evinced an intent at the hearing not to comply with these requests, but to work instead to persuade Monroe County to blacktop Mariposa Road.

Paving Mariposa Road with blacktop would involve compacting rock or otherwise creating an underbed impermeable to water. Mr. Brown envisions Mariposa Road being upgraded to the level of State Road 4, which it intersects, before being paved. If Mariposa Road were upgraded and paved in this fashion, it would act as a dam keeping tidal waters out of petitioner's lots, unless culverts were installed. In the event Mariposa Road is upgraded and paved and no culverts are installed, the marine habitat which now exists on petitioner's property would be doomed and filling the lots would hasten the process at worst.

CONCLUSIONS OF LAW

Pursuant to Chapter 403, Florida Statutes (1977), and Rule 17-4.28(3),

F.A.C. petitioner has the burden to "affirmatively provide reasonable assurance to [respondent] that the short-term and long-term effects of [filling] will not result in violations of the water quality criteria, standards, requirements and provisions of Chapter 17-3." Petitioner provided such assurance in the event upgrading and paving of Mariposa Road should precede the proposed filling, and in the event no culverts are installed, but not otherwise.

Pursuant to Chapter 253, Florida Statutes (1977), and rules promulgated thereunder, respondent is forbidden to issue a permit to petitioner unless it is shown that filling "will not interfere with the conservation of fish. . . or . .

. natural marine habitats to such an extent as to be contrary to the public interest." Rule 17-4.29(6)(a), F.A.C. In a case of this kind, the precedential effect of granting a permit must be taken into account; the effect on conservation to be anticipated from granting like permits in the same locale should be considered in assessing the public interest. Robert T. Johnston v.

D.E.R., D.E.R,, DOAH No. 76-2127 (D.E.R. May 24, 1977); Flossie H. Manucy v.

D.E.R., DOAH No. 76-1441 (D.E.R. Feb. 23, 1977). In the present case, petitioner's lots take up most of a low lying area which is surrounded by high

ground, so that whatever precedential value disposition of his application may have is a very minor factor in determining the public interest. The evidence established nonetheless that the proposed filling is not in the public interest, so long as petitioner's property continues to be washed by tidal waters. On the other hand, in the even Mariposa Road is upgraded and paved and no culverts are installed, it would be in the public interest to grant petitioner's application for a permit to fill his lots, rather than permitting stagnant water to stand on them. In any event, the proposed filling would "not create a navigational hazard." Rule 17-4.29(6)(b), F.A.C.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That respondent deny petitioner's application for fill permit unless and until Mariposa Road is upgraded, without installation of culverts, and paved, so that it acts as a dam impervious to the waters of Torch Ramrod Channel.

DONE and ENTERED this 17th day of February, 1978, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

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

904/488-9675

COPIES FURNISHED:

Mr. Edward B. Johnson, Jr., Esquire

410 Fleming Street

Key West, Florida 33040

Mr. Louis F. Hubener, Esquire Montgomery Building

2562 Executive Center Circle East Tallahassee, Florida 32301

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

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

STATE OF FLORIDA

DEPARTMENT OF ENVIRONMENTAL REGULATION

FRANCIS X. ATWATER,

Petitioner,

vs. CASE NO. 77-1409

DEPARTMENT OF ENVIRONMENTAL REGULATION,

Respondent.

/

FINAL ORDER

BY THE DEPARTMENT:

On February 17, 1978, the duly appointed Hearing Officer in the above- styled matter completed and submitted to the Department and all parties a Recommended Order consisting of his Findings of Fact, Conclusions of Law and a Recommendation. A copy of that Order is attached hereto as Exhibit "A".

Pursuant to section 17-1.68(1), Florida Administrative Code, and section 120.57(1)(b)(6) , Florida Statutes, the parties were allowed ten (10) days in which to submit written exceptions to the Recommended Order. Only 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 four of the Recommended Order the Hearing Officer made the following statement in his Conclusions of Law:

"On the other hand, in the event Mariposa Road is upgraded and paved and no culverts are installed, it would be in the public interest to grant petitioner's application for a permit to fill his lot rather than permitting stag- nant water to stand on them."

The Hearing Officer's recommendation was:

"That respondent deny petitioner's application for fill permit unless and until Mariposa

Road is upgraded with installation of cul- verts and paved, so that it acts as a dam impervious to the waters of Torch Ramrod Channel.

It is possible that some confusion may arise in a future permit proceeding as to whether the Department has taken any position on the filling and construction of Mariposa Road and the filling of Petitioner's lots based on the preceding quoted statements. Therefore, the Recommended Order should be clarified with respect to any bearing it may have on such future permit applications.

Having considered the Recommended Order, including Findings of Fact and Conclusions of Law and Recommendation, it is therefore,

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

1. The Findings of Fact and Conclusions of Law are hereby adopted and approved.

   
   

2. The Findings of Fact and Conclusions of Law shall not be construed to waive any rules, regulations or other permit requirements applicable to the filling and construction of Mariposa Road or the filling of Petitioner's lots in any future permit proceedings. Nor shall they constitute a determination of any fact or issue to be decided in a permit proceeding.

   
   

3. The Recommendation on page four of the Hearing Officer's Recommended Order is modified to read:

"That respondent deny petitioner's applica- tion for a fill permit."

The remainder of the recommendation is deleted.

Accordingly, Petitioner's application for a permit is hereby denied. DONE and ENTERED this 27th day of March, 1978, in Tallahassee, Florida.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION

JOSEPH W. LANDERS, JR.

Secretary

CERTIFICATE OF SERVICE

I HEREBY BY CERTIFY that a true copy of the foregoing Final Order was furnished by first class mail to Edward 13. Johnson, Jr., Esquire, 410 Fleming Street, Key West, Florida 33040 and to Robert P. Benton, II, Esquire, Hearing Officer, Room 530, Carlton Building, Tallahassee, Florida 32304, this 36th day of March, 1978.

LOUIS F. HUBENER

Assistant General Counsel Department of Environmental

Regulation

Twin Towers Building 2600 Blairstone Road

Tallahassee, Florida 32301

(904) 488-9733

Copies furnished to:

Paul Parks

Glen Boe

Warren Strahm Phil Edwards

Docket for Case No: 77-001409

Orders for Case No: 77-001409