STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MILTON HESS and GAIL HESS, )

)

Petitioners, )

)

vs. ) CASE NO. 80-1769

)

WALKER G. MILLER and ) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondents. )

) DAVID STOREY, et al, )

)

Petitioners, )

)

vs. ) CASE NO. 80-1770

) WALKER G. MILLER and DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, an Administrative Hearing was held before DONALD R. ALEXANDER, the assigned Hearing Officer for the Division of Administrative Hearings, on January 7, 1981, at the Town Hall in Windermere, Florida. This cause came upon consideration based upon requests by Petitioners in Case Nos. 80-1769 and 80-1770 for formal proceedings to consider the propriety of the Department of Environmental Regulation's granting of an environmental permit to Walker G. Miller. The Petitions were filed after Petitioners had received the Department's Notice of Intent to Grant the permit. That notice was dated

September 4, 1980, and a copy of the notice had been received into evidence. By Order dated November 14, 1980, the two cases were consolidated and, accordingly, a single recommended order shall dispose of both cases. Petitioner Hess presented one witness and offered Petitioner's Composite Exhibit No. 1.

Respondent Department of Environmental Regulation (DER) presented one witness and offered DER Exhibit Nos. 1-10. Respondent Miller presented one witness and offered Miller Exhibit Nos. 1-5. Proposed findings of fact and conclusions of law ware filed by Respondent DER and Petitioner Hess on January 11 and 23, 1981, respectively, and have been considered by the Hearing Officer in the preparation of this order.

APPEARANCES

For Petitioner: Milton Hess, in pro se (80-1769) 4413 Down Point Lane

Windermere, Florida 32786

For Petitioner: David Storey, in pro se (80-1770) Route 3, Box 929

Orlando, Florida 32811

For Respondent: Richard P. Lee, Esquire Department of Twin Towers Office Building Environmental 2600 Blair Stone Road Regulation Tallahassee, Florida 32301

For Petitioner: B. J. Heller, Esquire Walker G. Miller 644 West Colonial Drive

Orlando, Florida 32804

ISSUE

The issue here presented concerns the entitlement of the Applicant/Respondent, Walker G. Miller, to construct an addition to his existing boat house of approximately 450 square feet, and an addition to his existing chain link fence, both of which are located on Lake Down, Florida. The Respondent, Department of Environmental Regulation, has indicated its intention to grant the permit application request and the Petitioners, Milton and Gail Hess, and David Storey and others, have opposed the Department's intention to grant the permit.

FINDINGS OF FACT

1. The Petitioner in Case No. 80-1769, Milton Hess, is an adjacent landowner to the Applicant/Respondent, Walker G. Miller, with property located on Lake Down, near Windermere, in Orange County, Florida. The Petitioners in Case No. 80-1770, David Storey and others, are also landowners on Lake Down. Applicant's parcel is located on Down Point, which is a peninsular extending from the Lakes's southern shore.

   
   

2. The project as contemplated by the Applicant is the construction of a

   15 foot by 30 foot unenclosed addition on the north side of an existing dock/boathouse combination located on Lake Down. The 450 square foot addition is to be utilized as a storage room adjacent to the boathouse portion of his existing structure. The present structure has a total surface area of approximately 825 square feet. Additionally, by amendment to the application made on August 13, 1980, Applicant proposes to construct a chain link fence from the south property line to the dock facility.

   
   

3. Lake Down is one of the waterbodies that constitutes the Butler Chain- of Lakes. The Lake is characterized by outstanding water quality and diversified biological resources. The Chain-of Lakes is widely recognized as the outstanding aquatic resource in the State, as far as water quality is concerned. Development on Lake Down is light, with widely scattered residential units separated by expanses of citrus groves.

   
   

4. The construction of the addition will not significantly impact Lake Down or the Butler Chain-of Lakes, either on a long-term or short-term basis. The shading effect of the structure will result in a slight decline of rooted aguatic vegetation. However, such decline should be minimal. Further, reasonable assurances have been given that the proposed project would not result in any violations of State water quality criteria or standards.

5. The existing dock structure now obstructs a portion of the view of the lake enjoyed by Petitioner Hess. However, by constructing the proposed addition on the north side of the existing boathouse, no further impediment of the view will occur.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action pursuant to Section 120.57(1), Florida Statutes.

   
   

7. Section 17-4.03, Florida Administrative Code, provides that:

   
   

   Any stationary installation which will reasonably be expected to be a source of pollution shall not be operated, maintained, constructed, expanded or modified without

   an appropriate and currently valid permit issued by the Department, unless the source is exempted by Department rule.

   
   

8. Section 17-4.07, Florida Administrative Code, provides that:

   
   

   A permit may be issued to the applicant upon such conditions as the Department may direct, only if the applicant affir- mately provides the Department with reasonable assurance based on plans, test results and other information, that

   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.

   
   

9. Section 17-4.28(3), Florida Administrative Code, provides that:

   
   

   The applicant for a dredge and/or fill permit or a federal certification for a dredging and/or filling activity shall affirmatively provide reasonable assurance to the Department that the short-term and long-term effects of the activity will not result in violations of the water quality criteria, standards, requirements and provisions of Chapter 17-3, Florida Administrative Code.

   
   

10. Based upon a full consideration of the facts herein, it is concluded as a matter of law that the applicant, Walker G. Miller, has given reasonable assurance that the construction of the boathouse and chain link fence will not discharge, emit or cause pollution in contravention of Department of Environmental criteria, standards, rules or regulations related to water quality, and that the requested permit should be issued.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that a permit be granted by the Department of Environmental Regulation to Walker G. Miller to construct an addition to his boathouse and a chain link Fence on Lake Down as more specifically described in his amended application.

DONE and ENTERED this 2nd day of February, 1981, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 1981.

COPIES FURNISHED:

David Storey Route 3, Box 929

Orlando, Florida 32811

Jack Ezzard and Kathryn Ezzard Route 3, Box 925

Orlando, Florida 32811

Tari Kazaros Route 3, Box 924

Orlando, Florida 32811

Mrs. H. D. Barrarly Post Office Box 203 Gotha, Florida 32734

Paula M. Harrison Post Office Box 203 Gotha, Florida 32734

Ava Careton Route 3, Box 926

Orlando, Florida 32811

Nikki Clagh Route 3, Box 928

Orlando, Florida 32811

Milton and Gail Hess 4413 Down Point Lane

Windermere, Florida 32786

Walker G. Miller Post Office Box 348

Windermere, Florida 32786

B. J. Heller, Esquire 644 West Colonial Drive Orlando, Florida 32804

Richard D. Lee, Esquire Assistant General Counsel

Department of Environmental Regulation Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32301

Docket for Case No: 80-001769

Orders for Case No: 80-001769