STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LOUISE E. STONE, )

)

Petitioner, )

)

vs. ) CASE NO. 79-1662

) RAYMOND B SPANGLER and STATE ) OF FLORIDA, DEPARTMENT OF )

ENVIRONMENTAL REGULATION, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings, on November 5, 1979, at the Council Chambers, City of Clermont, 802 West DeSoto, Clermont, Florida.

APPEARANCES

For Petitioner: Robert F. Vason, Jr., Esquire

308 East Fifth Avenue Mount Dora, Florida 32757

For Respondent: Raymond B. Spangler

Route 3, Box 319

Clermont, Florida 32711

For Respondent, Segundo J. Fernandez, Esquire Department of Department of Environmental Regulation Environmental 2600 Blair Stone Road

Regulation: Tallahassee, Florida 32301

ISSUE

The issue here presented concerns the entitlement of the Applicant/Respondent, Raymond B. Spangler, to construct a boat dock of approximately 800 square feet, included in that dimension is a boat house. The Respondent, State of Florida, Department of Environmental Regulation, has indicated its intention to grant the permit application request and the Petitioner, Louise C. Stone, has opposed the Department's intention to grant the permit.

FINDINGS OF FACT

1. THIS CAUSE comes on for consideration based upon the Petitioner, Louise

   E. Stone's petition and request for formal proceedings to consider the propriety of the State of Florida, Department of Environmental Regulation's granting of an environmental permit to Raymond B. Spangler. This petition was filed after the Petitioner had received the Department of Environmental Regulation's Notice of

   Intent to Grant the permit. That notice was dated July 10, 1979, and a copy of that notice has been received into evidence as Department of Environmental Regulation's Exhibit No. 5. The Secretary of the Department of Environmental Regulation opted to have the Division of Administrative Hearings consider this case and on November 5, 1979, a formal hearing was held before a Hearing Officer with the Division of Administrative Hearings.

   
   

2. The Petitioner is an adjacent landowner to the Respondent, Raymond B. Spangler, with property located on Lake Minneola. The applicant's project is located in the northwest corner of his property and is as far removed from the common property line with the Petitioner as is possible without violating setback lines. The Petitioner's property is located to the southeast of the project.

   
   

3. The project as now contemplated calls for the construction of a boat deck and boat house with dimensions of approximately 800 square feet. The details of this construction may be found in a copy of the Application for Permit which is the Department of Environmental Regulation's Exhibit No. 1 admitted into evidence. The boat house and boat dock would be constructed on Lake Minneola, Lake City, Florida, near the town of Clermont, Florida. Lake Minneola is a navigable waterway and the boat dock and boat house would extend into the navigable water body. The discussion of the project as found in the Respondent, Department of Environmental Regulation's Exhibit No. 1 is an accurate depiction with the exception that the dock will have an increase in length from the original proposal of 70 feet to a new proposal of some 80 to 84 feet. Nonetheless, with the optimum extension, the amount of square footage still closely approximates the initially requested 800-square-foot amount. The reason for the change is due to the rise in the water level of the lake causing the mean high water line to be further landward than was the case at the time the permit was first applied for. The additional extension of the dock is necessary to allow for dry access to the water and to reach the open waterway beyond the growth of maidencane grass (Panicum Hemitomon) near the shoreline.

   
   

4. In keeping with allowed exemptions found in Section 403.813, Florida Statutes, and Rule 17-4.04, Florida Administrative Code, 500 square feet of the deck has been constructed and this portion of the dock as constructed may be seen in the Respondent, Raymond B. Spangler's Exhibit No. 10 admitted into evidence, which is a photograph of the partially completed dock. Other photographs of the partially completed dock and the surrounding area of the lake showing the adjacent property may be found as Respondent, Spangler's Exhibits 5 through 9. The Respondent, Spangler's Exhibit No. 4, a composite which was admitted into evidence, is a series of photographs and an overlay which by scale shows a view of the completed dock and a depiction of the boat house when completed.

   
   

5. The dock, when completed, will be constituted of a four-foot walkway extending approximately 80 to 84 feet into the water, intersecting at right angles at the terminus of the dock and forming a "T" shape. The boat house would be located adjacent to the walkway leading to the deck terminus. The dimensions of the covered boat house would be 25 feet by 14 feet.

   
   

6. The depth of the water in the lake at the location of the continuing dock construction is sufficiently deep to allow the construction of the dock without the necessity of dredging.

   
   

7. There is an extensive grassy community mostly constituted of maidencane (Panicum Hemitomon) and although some of the grassy community has been removed

   during the construction phase of the project, the denuded area may be easily reconstituted and the applicant has expressed his intent to achieve this end as a means to avoid further erosion which has started to occur at the site. None of the erosion which has occurred has interfered with the property of neighboring landowners.

   
   

8. The impact of the continued construction in its affect on water quality would be inconsequential. Furthermore, the construction as now completed and as contemplated does not and would not constitute a hazard to navigation, nor interfere with and cause a danger to participants in water sports and related activities that take place on Lake Minneola.

   
   

9. When the project is completed the aquatic vegetation can be expected to return and to remain as a viable wetland community. This is due to the fact that the amount of water surface covered by the project is slight and there is sufficient sunlight to support the aquatic vegetation even in the shaded areas.

   
   

10. During the construction phase the amount of turbidity caused by the construction has been de minimis, and will be, in view of the fact that the bottom of the lake is a sand base which settles out quickly. This settling effect was seen by the project evaluator, James Morgan, Department of Environmental Regulation, when he toured the site of the construction and saw Respondent Spangler placing pilings. Morgan noted that the turbidity involved was of a short duration.

    
    

11. The project will not interfere with fish and wildlife either in their day-to-day activities or in their propagation.

    
    

12. None of the standards pertaining to water quality as found in Chapter 17-3, Florida Administrative Code, will be violated by the project.

    
    

13. The project will not be an unreasonable obstruction to the view of adjoining riparian owners and the applicant does not intend to use the boat house as a dwelling.

    
    

14. When the project was first reviewed by the State of Florida, Department of Environmental Regulation, that agency notified the Florida Game and Fresh Water Fish Commission; the St. Johns River Water Management District, and the Department of Pollution Control of Lake County, Florida. None of these agencies have made known any objection to the project and the Department of Pollution Control of Lake County has specifically indicated their lack of opposition by written comment, a copy of which may be found as the Department of Environmental Regulation's Exhibit No. 3 admitted into evidence.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action.

    
    

16. Based upon a full consideration of the facts herein, it is concluded as a matter of law that the applicant, Raymond B. Spangler, has given reasonable assurances that the continued construction of this project in excess of the exempt 500 square feet, will not violate the conditions of Chapter 403, Florida Statutes, or Chapters 17-3 and 17-4, Florida Administrative Code, related to interference with fish and wildlife in their activities to include propagation; water quality, and those other protections afforded by the provisions of law. Therefore, the Respondent is entitled to conclude the construction of the boat

dock and boat house as contemplated in the application filed on May 11, 1979, as modified by the changing water levels of lake Minneola which would cause the dock length to be extended to an expanse of 80 feet to 84 feet.

RECOMMENDATION

It is recommended that the Applicant/Respondent, Raymond B. Spangler, be allowed to conclude the construction of the boat deck and boat house as contemplated by the application of May 11, 1979, with the addendum that the dock length be extended to 80 feet to 84 feet as necessary; with the proviso that the applicant ensure that the grassy community be returned to its pristine condition in the area of his project, to prohibit further erosion and that these results be accomplished by the issuance of a permit pursuant to the conditions as outlined.

DONE AND ENTERED this 16th day of November, 1979, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Robert F. Vason, Jr., Esquire Raymond B. Spangler

408 East Fifth Avenue Route 3, Box 319

Mount Dora, Florida 32757 Clermont, Florida 32711

Segundo J. Fernandez, Esquire Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

Docket for Case No: 79-001662

Orders for Case No: 79-001662