STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KENNETH J. THOMAS, et al., )

)

Petitioner, )

)

vs. ) CASE NO. 80-1698

) DEPARTMENT OF ENVIRONMENTAL ) REGULATION and GENERAL )

DEVELOPMENT CORPORATION, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in Fort Pierce, Florida on November 12, 1980 before the Division of Administrative Hearings and its duly appointed Hearing Officer, R. T. Carpenter.

APPEARANCES

The parties were represented by:

For Petitioner: Kenneth J. Thomas, pro se

2649 Southwest Harem Circle Port St. Lucie, Florida 33452

Nancy Albright, pro se

2651 Harem Circle, Southeast Port St. Lucie, Florida 33452

Kathryn Walrath, pro se 2647 Southwest Harem Circle

Port St. Lucie, Florida 33452

Walter J. Konrad, pro se 2657 Harem Circle, Southwest

Port St. Lucie, Florida 33452

Victoria M. Konrad, pro se 2657 Harem Circle, Southwest Port St. Lucie, Florida 33452

William H. Isaacs, pro se 2645 Southwest Harem Circle Port St. Lucie, Florida 33452

For Respondents: Randall E. Denker, Esquire

Department of Department of Environmental Regulation Environmental Twin Towers Office Building Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

General Joseph Z. Fleming, Esquire Development General Development Corporation Corporation 620 Ingraham Building

25 SE Second Avenue Miami, Florida 33131

This matter arose on the objection of the above Port St. Lucie residents to construction of a bridge over Canal C-24. They contend that the proposed 17- foot clearance is insufficient and would therefore create a hazard or impediment to navigation.

In addition to the above named Petitioners who were present and testified at the hearing, the petition was signed by Anita R. Cockerham, Mary Bruins Kars and Henry Albright. None of the Petitioners were represented by counsel.

However, Petitioner Thomas conducted cross-examination and presented argument on behalf of the Petitioners in attendance.

Respondent General Development Corporation (GDC) moved for a directed verdict at the conclusion of proceedings on the grounds that Petitioners lacked standing and failed to present substantial competent evidence in support of their position. Ruling was reserved.

Respondent GDC submitted proposed findings of fact. To the extent these proposed findings have not been adopted or are inconsistent with the findings herein, they have been specifically rejected as not material to the result reached or not supported by the evidence.

FINDINGS OF FACT

1. Petitioners own residential property near South Florida Water Management District (SFWMD) Canal C-24. The canal is owned and maintained by SFWMD, an agency of the State of Florida. The State property includes the banks and bottom of Canal C-24 and a 50-foot-wide strip of land which separates Petitioners' property from the canal. However, some of the Petitioners have obtained permits from SFWMD to maintain boat docks in the canal and to cross the

   50 feet of intervening property as necessary.

   
   

2. Canal C-24 is closed to navigation immediately west of Petitioners' property by a SFWMD dam used to control the water level. However, the canal is open to navigation east of the dam and connects with the St. Lucie River which flows into the Atlantic Ocean.

   
   

3. Respondent GDC plans the residential development of property east of that owned by Petitioners. Construction of the proposed bridge will improve access to the GDC property and other portions of southeast Port St. Lucie which are now blocked on the north and east by water and on the west by the Florida Turnpike.

   
   

4. On August 28, 1980, Respondent Department of Environmental Regulation (DER) issued its Notice of Intent to grant a permit for construction of the

   bridge with 17 feet clearance. The bridge was originally planned to provide 12 feet clearance which was approved by SFWMD and the City of Port St. Lucie.

   Based on Petitioner's objections and the recommendation of the US Coast Guard, the clearance was increased to 17 feet. However, Petitioners maintained their opposition, giving rise to these proceedings.

   
   

5. At 17 feet the bridge would be approximately six feet below the Florida Turnpike bridge which is situated between the GDC residential development and Petitioners' property. Thus, Petitioners are currently limited to a 23-foot navigation clearance by the Florida Turnpike bridge which was present when they purchased their property.

   
   

6. None of the Petitioners operates any boat at his Port St. Lucie residence which would be affected by construction of the proposed bridge. Rather, Petitioners' objections are based on the obstruction of larger boats they might acquire and on the belief that resale value of their property would be diminished. They also content that use of the canal as a hurricane refuge for large boats will be restricted. Finally, Petitioners argue that bridge pilings will cause erosion and thus create a surface hazard in addition to the height impediment.

   
   

7. The Petitioners indicated no plans to acquire any power boats of such size as to be restricted by a 17-foot clearance, nor did their plans include the purchase or use of any sailboats which would not already be blocked by the 23- foot turnpike bridge. No studies, appraisals or together evidence was introduced to establish that property values would be affected by construction of the proposed bridge.

   
   

8. Conflicting evidence was presented on the use of the canal by third parties as a hurricane refuge. However, the expert testimony given by Respondents' witnesses established that use of the canal during storms was unsafe and impractical due to the narrowness of the canal, the absence of trees to reduce the force of the wind or secure the boats, and the possibility of strong currents caused by operation of the flood control dam. Further, this testimony established that safer moorings are available on the adjacent portion of the St. Lucie River, which has the added advantage of being directly accessible to the ocean. Such moorings are preferable because of the greater maneuverability in the river and the presence of mangroves which provide anchorage and wind protection.

   
   

9. The alleged erosion problem was not supported by any studies or expert testimony, but was based on Petitioners' observations of some soil erosion around turnpike bridge pilings. GDC's construction proposal has been considered by DER, and its engineering plans will be reviewed by the City of Port St. Lucie before it authorizes construction. This process should insure that any potential erosion problems are minimized. Furthermore, there was no evidence to indicate that soil erosion, even if it did occur at the site of the proposed bridge, would create any hazard to navigation.

   
   

10. The City Manager of Port St. Lucie supports construction of the bridge at its present level. His concern, and that of the City Commission, is centered on the need to deliver police, fire and ambulance service to the area south of the proposed bridge. Additionally, opening of the bridge will result in the improved flow of vehicular traffic in the community.

    
    

11. A local contractor who owns lots on both sides of the canal opposes any further elevation of the bridge as it would reduce the view from houses he

    intends to construct in this area. The GDC evidence established that raising the height of the bridge would also enlarge the property on either side of the canal required for bridge purposes. Finally, the cost of construction of further increasing bridge height would be substantial, amounting to approximately $40,000 per foot.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter and parties to these proceedings.

    
    

13. Petitioners claim standing under Section 120.57(1), Florida Statutes, as parties whose substantial interests are at stake. Each Petitioner's property includes direct access to Canal C-24 as a valuable incident of ownership. All use or intend to use this canal for navigation purposes. Thus, the creation of an obstruction or impediment to navigation could materially and adversely affect their interests. Petitioners, having alleged such adverse effect, have demonstrated their entitlement to proceed under Chapter 120, Florida Statutes.

    
    

14. Section 17-4.29, Florida Administrative Code, provides in part:

    
    

    (6) The Department [of Environmental Regulation] shall not issue a permit unless the biological survey, ecological study and hydrographic survey, if any, together with information and studies by the applicant affirmatively show:

    (b) That the proposed project will not create a navigational hazard, or a serious impediment to navigation.

    
    

15. The above provisions require GDC, as the applicant, to demonstrate that its project will not create a hazard or impediment to navigation. Thus, GDC, not Petitioners, has the burden of proof in these proceedings. Therefore, Respondents' motion for a directed verdict based on Petitioners' failure to present substantial, competent evidence or to demonstrate standing is DENIED.

    
    

16. Respondents did, however, conclusively establish that the proposed bridge with clearance of 17 feet will create neither a navigational hazard nor a serious impediment to navigation. Respondents further demonstrated that construction of the bridge as proposed will serve the public interest, outweighing any inconvenience to Petitioners. See State v. T.O.L., Inc., 206 So. 2d 69 (4 DCA 1968), where, under similar circumstances, considerations of general public welfare prevailed over private interests.

RECOMMENDATION

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

That the Department of Environmental Regulation grant the permit to General Development Corporation as reflected in the Notice of Intent issued on August 28, 1980.

DONE and ENTERED this 8th day of January, 1981, in Tallahassee, Leon County, Florida.

R. T. CARPENTER, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 1981.

COPIES FURNISHED:

Mr. Kenneth J. Thomas 2649 SW Harem Circle

Port St. Lucie, Florida 33452

Ms. Anita R. Cockerham 2549 SW Harem Circle

Port St. Lucie, Florida 33452

Mr. Walter J. Konrad Ms. Victoria Konrad 2657 Harem Circle, SW

Port St. Lucie, Florida 33452

Mr. Henry Albright Ms. Nancy Albright 2651 Harem Circle, SW

Port St. Lucie, Florida 33452

Mr. William Isaacs 2645 SW Harem Circle

Port St. Lucie, Florida 33452

Mr. and Mrs. Frederick C. Walrath 2647 SW Harem Circle

Port St. Lucie, Florida 33452

Ms. Mary Bruins Kars 2659 Harem Circle

Port St. Lucie, Florida 33452

Mr. Norman Zlinkoff 1814 Erwin Road

Port St. Lucie, Florida 33452

Mr. Donald M. Homer

General Development Corporation

111 South Bayshore Drive Miami, Florida 33131

Randall E. Denker, Esquire

Department of Environmental Regulation Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32301

Joseph Z. Fleming, Esquire 620 Ingraham Building

25 SE Second Avenue Miami, Florida 33131

Docket for Case No: 80-001698

Orders for Case No: 80-001698