STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD K. STANDER, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1028

) STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Respondent, )

and )

)

JON E. KRUPNICK, )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case at Key Largo, Florida, on 24 July 1981.

APPEARANCES

For Petitioner: James T. Hendrick, Esquire

317 Whitehead Street

Key West, Florida 33040

For Respondent: H. Ray Allen, Esquire

Assistant General Counsel

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

For Intervenor: Jon E. Krupnick, Esquire, pro se

700 Southeast Third Avenue, Suite 100 Fort Lauderdale, Florida 33316

By petition for administrative hearing dated March 26, 1981, Jon E. Krupnick, Intervenor, requested an administrative hearing to contest the Department of Environmental Regulation's (DER), Respondent, notice of intent to issue a permit to Richard K. Stander, Petitioner, to construct a dock, catwalk and cottages on Tom's Harbor Key.

In application filed 23 July 1980, Richard K. Stander seeks a permit to construct an 80-foot by six-foot wide perimeter dock with nine 15-foot by two- foot perpendicular finger piers to provide boat slips; to construct a 28-foot by 30-foot caretaker's house; and to construct approximately 1350 feet of six-foot wide elevated walkways from the dock and boatslips over an estuarine area to

seven proposed 28-foot by 30-foot elevated wood cottages on the upland area of Tom's Harbor key.

At the hearing Petitioner offered Exhibits 1 through 5, which were admitted into evidence, and rested. These included the application, DER's letter of intent to grant the application and DER's permit application appraisal.

Intervenor then offered Exhibits 6 through 11 into evidence and called three witnesses. Objections to Exhibits 7 and 11 were sustained on grounds of relevancy, objection to Exhibit 8 was sustained on grounds that it was hearsay, and objection to Exhibit 10 was reserved at the hearing. Exhibit 10 is a deposition of a witness who was called by Intervenor and testified at the hearing. No claim was made that the deposition qualified for admission under Section 90.801 (2)(a), (b) or (c), Florida Statutes; and that objection is now sustained. Thereafter, DER called two witnesses. At the conclusion of the hearing ten people, all residents of Duck Key, stated they supported the Intervenor in opposition to the grant of the permit.

Proposed findings not included below were not supported by competent evidence or were deemed immaterial to the result reached.

FINDINGS OF FACT

1. Richard K. Stander is the owner of Tom's Harbor Key located in the Florida Keys between Duck Key and Grassy Key.

   
   

2. Petitioner seeks a permit to construct a private, non-income producing fishing camp for personal acquaintances and guests. The construction includes a wood dock 80 feet long by six feet wide with nine finger piers two feet wide and

   15 feet long running from this dock to provide boat slips, and 1350 linear feet of elevated walkway six feet wide running from the dock area across the mangrove area to seven cottages to be constructed on the upland area of Tom's Harbor Key. Piling across the mangrove area will be implanted by hand auger or water-jetted in. If jetted, appropriate turbidity screens will be used. The pilings for the dock will be driven or implanted with a mechanical auger.

   
   

3. The Department of Natural Resources reviewed the application and determined that since the proposed project is a private, non-income producing facility, a lease [from DNR] is not presently required. (Exhibit 3)

   
   

4. The submerged lands where the dock and boat slips are to be constructed contain patchy turtle grass growth on an open sandy bottom. (Exhibit 4) Construction of the dock and finger pier boat slips as proposed will have no adverse impact on the flora or fauna in the area.

   
   

5. The proposed walkway will cover approximately 2400 square feet (0.06A) of wetlands consisting primarily of red and black mangroves. Constructing this walkway over these wetlands will have no adverse effect on the plants other than the pruning which will be needed to keep the walkway clear.

   
   

6. The proposed caretaker's house will be built over the wetlands area and it, like the walkway, will be elevated and will have no adverse effect on the plant or animal life. The cottages will be built on the upland area, and they, too, will be built on pilings with the bottom of the structures some ten feet above mean sea level. Petitioner proposes to use dry toilets in these cottages and remove all wastes to the mainland. Accordingly, no waste will be discharged into the waters adjacent to Tom's Harbor Key.

7. Intervenor contends the proposed project is commercial in nature rather than private but presented no evidence to support this contention. Objections to Intervenor's attempts to infer error in the DNR determination made in Exhibit

   3 were sustained as not relevant to the issue before this tribunal. Intervenor also inferred that the application was false because Petitioner stated in the application that the pilings would be implanted using a hand auger or water jet, while at the hearing it was learned the dock piling would be driven or implanted with a mechanical auger. This difference was satisfactorily explained by the testimony of the individual who prepared the application. Moreover, the harm to the environment by implanting the dock pilings by driving or mechanical auger would be less than if these pilings were jetted. It is Intervenor's position that because Petitioner erred in stating in the application how the pilings were to be implanted perhaps he erred in other parts of the application, and therefore the application should be returned to Petitioner for resubmission.

   
   

8. Tom's Harbor Key is a pristine area accessible only by water. The wetlands adjacent to this site consist of flourishing mangrove forests, and the area is highly productive. Those opposing the permit applied for are residents of Duck Key, a larger key adjacent to Tom's Harbor which is accessible by land, and which, before its development and occupancy, was also a pristine wetland habitat. Although these witnesses opined that the proposed development would have an adverse impact on the marine habitat and on the birds at the site, no factual evidence to support those conclusions was presented.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

10. Chapters 253 and 403, Florida Statutes, vest in the Respondent jurisdiction to issue permits where the project proposed by the applicant will not be contrary to the public interest and the applicant provides reasonable assurances that the project will not pollute the waters of the state. In issuing the notice of intent to issue a permit, DER conditioned the issuance upon five conditions which are repeated in the Recommendation below. Subject to these conditions the proposed project will not be contrary to the public interest and will not degrade the waters of the state. It is, therefore,

RECOMMENDED that Richard K. Stander be issued a permit to construct an 80- foot by six-foot wide perimeter dock with nine (9) 15-foot-long perpendicular finger piers; to construct a 30-foot by 28-foot caretaker's house; and to construct approximately 1350 feet of six-foot-wide elevated walkway connecting seven (7) proposed 30-foot by 28-foot wood cottages to the proposed dock in Tom's Harbor channel in Section 20, Township 65 south, Range 34 east, Monroe County, subject to the following conditions:

1. Turbidity screens shall be utilized during the jetting of pilings for the dock;

   
   

2. No live-aboard boats shall be allowed;

   
   

3. No sewage or fuel facilities shall be permitted;

   
   

4. No structures other than the boardwalk and the caretaker's house shall be located in Department of Environmental Regulation's jurisdictional wetlands;

5. No cutting, clearing or alteration of DER's jurisdictional wetlands shall be permitted beyond that necessary to install and maintain the boardwalk and caretaker's house. Clearing for the boardwalk shall he restricted to the width of the structure.

ENTERED this 14th day of August, 1981, in Tallahassee, Leon County, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of August, 1981.

COPIES FURNISHED:

James T. Hendrick, Esquire

317 Whitehead Street

Key West, Florida 33040

H. Ray Allen, Esquire Assistant General Counsel Department of Environmental Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Jon E. Krupnick, Esquire Suite 100

700 SE Third Avenue

Fort Lauderdale, Florida 33316

Victoria J. Tschinkel, Secretary Department of Environmental Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301

Docket for Case No: 81-001028

Orders for Case No: 81-001028