W. ROWE, )
)
Petitioners, )
)
vs. ) CASE NO. 79-1570
)
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 the above matter on October 9, 1979 in Ft. Myers, Florida.
The following appearances were entered: William J. Helwig and A. W. Rowe, the Petitioners, appeared on their own behalf; H. Ray Allen and William Hyde, Tallahassee, Florida, for the Respondent, Department of Environmental Regulation; and Howard S. Rhoads, Ft. Myers, Florida, for the Intervenor, Seago Group, Inc.
On or about April 27, 1979, Seago Group, Inc. submitted an application to the Florida Department of Environmental Regulation to construct a vehicular bridge ever Indian Creek in Lee County, Florida. By letter dated June 22, 1979 the Department gave notice of its intent to issue the permit. On July 12, 1979 William J. Helwig and A. W. Rowe ("Petitioner" hereafter) filed a request for administrative hearing pursuant to Section 120.57(1) Florida Statutes. The Department forwarded the matter to the office of the Division of Administrative Hearings on July 23, and requested that a Hearing Officer be assigned and a hearing scheduled.
The Applicant, Seago Group, Inc., moved to intervene in the proceeding and moved to dismiss the request for hearing. The Motion to Intervene was granted and the Motion to Dismiss was denied by Order entered August 14, 1979. A second Motion to Dismiss was filed and was denied by Order entered September 13, 1979. The final hearing was scheduled to be conducted as set out above by notice dated August 1, 1979.
At the final hearing the Department of Environmental Regulation called the following witnesses: Mike Nowicki, an environmental specialist employed by the Department; and Daniel Garlick, an environmental specialist employed by the Department. The Intervenor called Gordon Meiers, an employee of a consulting engineering firm who was previously the Lee County engineer; and Thomas Hoolihan, the Intervener's president. Petitioners testified as witnesses on their own behalf, and called Robert Cordes, a present assistant county engineer in Lee County as an additional witness. DER Exhibits 1-4; Intervenor's Exhibits 1-3; and Petitioner's Exhibits 1-5, 9-11, 14, 15, 18, and 19 were all offered
into evidence and received. Petitioner's Exhibits 6, 7, 8, 12, 13, 16, and 17 were offered into evidence and were rejected. DER Exhibit 5 was marked for identification but was withdrawn as an exhibit. The parties have submitted
post-hearing arguments and legal briefs. The Department and the Intervener have submitted Proposed Findings of Fact.
FINDINGS OF FACT
Seago Group, Inc., the Applicant/Intervenor, owns a tract of land in Lee County Florida, which is completely surrounded by creeks and canals, including Indian Creek on the north. The Intervenor intends to develop the parcel and is seeking a permit from the Department to construct a bridge over Indian Creek to provide access. There is presently a cul-de-sac at the end of Indian Creek Drive on the north side of the creek. The bridge would extend Indian Creek Drive over the creek onto the applicant's property. The Intervenor held an option to purchase land for the right-of-way on the north side of the creek.
The Petitioners own property adjacent to Indian Creek Drive. The Petitioner Helwig owns property upon which be resides, and which adjoins the proposed bridge site. The Petitioner Rowe owns property upon which he resides several lets up Indian Creek Drive from the proposed bridge site.
The Intervenor originally made application to construct a road over Indian Creek at a different, but nearby location using a culvert rather than a bridge. The Department's staff appraised the application and recommended that it be denied because deposits of fill around the culverts would have eliminated productive submerged creek bottoms, interfered with the ability of the aquatic habitat to support fish and wildlife populations, and eliminated shoreline vegetation which serves to filter runoff which enters the creek, thus helping to preserve good water quality in the creek. The application was withdrawn by the Intervenor before final action was taken on the Department's staff recommendations. The Intervenor thereafter filed the instant application. The application was to construct:
... A 26 ft. wide by 50 ft. long vehicular bridge constructed with 21" prestressed slabs on pile bent abutments over Indian Creek in Lee County, Florida.
The application further provided:
All work will be conducted on upland with no need for any equipment or material required to be in the water. All equip- ment and material will be delivered by upland access.
The application did not reflect that Intervenor had previously sought a permit for the culvert constructions, but the Department was clearly aware of the previous applications and its appraisal of the bridge application was treated as a supplement to the appraisal of the culvert application. In its Notice of Intent to Issue the Permit, the Department erroneously designated the bridge as a "two-span" bridge. The application is actually for a one-span bridge. In its notice the Department added the following specific conditions:
Turbidity screens shall be used during construction.
Drainage at bridges approaches shall be by swale and no ditches shall be constructed. Drainage shall meet county specifications.
No dredging or filling in Indian Creek.
No bridge construction shall take place until ownership or easement is obtained through Mr. David Ruch's property pursuant
to letters on file with the Department.
The Intervenor has acceded to the specific conditions and agreed to comply with them in the event the permit is ultimately issued.
All of the pilings for the proposed bridge would be constructed at or above the mean high water line of Indian Creek. Some turbidity could be expected during construction, however, the use of turbidity screens would eliminate any significant impact upon the water quality, fish and other wildlife resources of Indian Creek during construction. The only potential source of pollution from the bridge after construction would be from runoff entering Indian Creek from the bridge. The amount of runoff that would result from a 50 ft. long by 26 ft. wide bridge is negligible. The limited impact that such runoff could have upon the creek can be eliminated by having drainage flow through a swale system. Since the Intervenor has agreed to utilize a swale system, it does not appear that the bridge would have any adverse impact upon the water quality of Indian Creek or any other water body. Neither does it appear that the bridge would adversely affect fish and wildlife resources.
Since all bridge pilings would be constructed at or above the mean high water line, transitional zone vegetation can continue to flourish along the shoreline.
The planned clearance between the creek elevation at mean high water and the bridge is seven feet. The bridge would thus impede traffic by any boats that protrude more than seven feet above the water line. This presents no significant navigational impact in Indian Creek. There are two avenues for navigating from the bridge site on Indian Creek to the Caloosahatchee River.
One of these avenues is presently obstructed by a bridge with an elevation less than that proposed by the Intervenor. The other avenue is obstructed by a very shallow area that will not permit navigation by other than very small vessels. The Department in the past has denied applications to dredge that shallow area.
The Intervenor and the Department have submitted Proposed Findings of Fact. To the extent that these proposed findings have not been included in the foregoing Findings of Fact, they are hereby adopted as fully as if set forth herein.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and over the parties. Section 120.57(1), 120.60, Florida Statutes.
The Petitioners have a substantial interest in this proceeding.
Petitioners have contended that the application for bridge construction is defective in that the Petitioner Helwig was not listed as an adjoining property owner. It is true that the application did not list the
Petitioner Helwig, that the Petitioner Helwig is an adjoining property owner, and that this fact was reflected in the pertinent county tax rolls. The Petitioners did, however, ultimately obtain knowledge of the application, and they have had an opportunity to present evidence with respect to it. To the extent that the Petitioner Helwig was not properly listed on the application, he has not shown that he suffered any prejudice from the exclusion.
The Petitioners contend that the application was defective in that it did not reflect that a previous application had been denied. In fact a previous application had not been denied. The Department's staff had recommended denial, but the application was withdrawn before any final order was entered. Furthermore, no prejudice resulted from this putative defect since the Department staff was clearly aware of the previous application when it appraised the instant application.
