STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JERRY CARLTON, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1081

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

)

Respondent. )

)

)

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 on 23 July 1981, at Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Jerry Carlton, pro se

5900 North Ocean Drive Hollywood, Florida 33020

For Respondent: Paul R. Ezatoff, Esquire

Assistant General Counsel

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

By petition filed March 25, 1981, Jerry Carlton, Petitioner, seeks an administrative hearing to contest the Department of Environmental Regulation's (DER), Respondent, notice of intent to deny Petitioner's application for a permit to erect a structure over the water on property owned by Petitioner. In his application for a permit, as modified at the hearing, Petitioner proposes to erect a three-story structure on pilings driven into the bottom adjacent to the Intercoastal Waterway (ICW) channel and upland property owned by Petitioner.

The first floor of this proposed structure is to be used as a commercial retail store and the two upper floors as a residence. As grounds for denial of the application Respondent alleged that Petitioner failed to provide reasonable assurances that the proposed structure would not be a source of pollution to the waters of the state, and that Petitioner failed to provide, or even request, the necessary land lease or easement deed from the Department of Natural Resources which is required for projects in the navigable waters of the state.

At the hearing George Farmer, P. E., and Jerry Carlton testified on behalf of Petitioner, Richard Walesky testified on behalf of DER and 24 exhibits were admitted into evidence. Proposed findings not included below were not supported by competent evidence or were deemed immaterial to the result reached.

FINDINGS OF FACT

1. Jerry Carlton purchased Lots 10, 11 and 12 in Block 174, Hollywood Central Beach, in 1976. This property is located between State Road A1A and the Intercoastal Waterway (ICW) The total property is 120 feet along State Road A1A and the ICW and is 80 feet deep with only 30 feet of this dimension on an upland area. A concrete bulkhead runs parallel to State Road A1A and the ICW and is some 30 feet west of the right-of-way of State Road A1A. Accordingly, the property purchased by Petitioner extends some 50 feet into the ICW west of this bulkhead.

   
   

2. Petitioner proposes to construct a building 42 feet by 40 feet with the 40-foot side parallel to the ICW and the 42-foot side extending westward from the existing concrete bulkhead. The proposed structure will be erected on pilings extending eight feet above mean high water and will contain three floors approximately ten feet apart, with the ground floor used as a store and the upper two floors as residence by Petitioner. Petitioner proposes to moor boats under this structure. When completed the structure would be near the edge of the ICW channel in water ten feet deep.

   
   

3. Property to the south of Petitioner has been bulkheaded and filled to the lot line, which extends 80 feet west of State Road A1A as does Petitioner's property. This bulkheading and filling was done several years ago, long before DER was established and given powers to regulate dredging and filling.

   
   

4. Petitioner's upland property comprises 3600 square feet (120 feet by 30 feet) on which he proposes to retain the water run-off from the roof of the proposed building and the impervious areas created in the upland area by parking spaces. His plan presently provides for only two parking spaces, although it was acknowledged that city ordinances prescribe additional off-street parking for commercial establishments. No evidence was submitted on climatological data from which the conclusion can be drawn that all rainfall will be retained on the property and none discharged into the adjacent state waters.

   
   

5. Petitioner proposes to retain waste products in a 1500- to 2000-gallon holding tank which will be serviced on a contract basis by a septic tank company. The holding tank will be equipped with adequate alarms to keep the occupants apprised of the need to have the tank emptied. No overflow valves will be provided, and any excess waste would back up into toilets on the premises.

   
   

6. A five-foot dock exists alongside the concrete bulkhead, and four houseboats have been moored at this dock for several years. As a result of the shading caused by these houseboats the submerged bottom at this site is devoid of plant life and is covered with a silty material. Areas north and south of Petitioner's property, not subject to similar shading, are generally covered with grasses and support a productive macrophyte community.

   
   

7. Petitioner applied to the US Army, Corps of Engineers (CofE), for the permit he will also need to construct the proposed structure. By letter dated January 18, 1980, (Exhibit 1) the CofE advised Petitioner that the policy of the CofE was that "stilt houses" in the navigable waters of the United States are undesirable for many reasons and are generally considered contrary to the public interest. Accordingly, such applications are usually not approved. By letter of April 10, 1980 (Exhibit 9), Petitioner requested the CofE to keep the file open. In the letter of July 3, 1980 (Exhibit 17), the CofE advised Petitioner that the site had been inspected; that adverse comments had been received from

   South Florida Regional Planning Council and Environmental Protection Agency; and that they (CofE) agreed that the proposed structure, if permitted, would set a precedent for permitting other structures (not water-dependent) in the area resulting in proliferation of over-the-water structures with a definite potential for posing a hazard to navigation, polluting public waters, and degrading fish and wildlife values in the area. The CofE did not specifically deny the permit but advised Petitioner if he wished to pursue the project to so advise and they would initiate final action.

   
   

8. By letter of July 28, 1980, (Exhibit 18), Petitioner argued to the CofE that he had given reasonable assurances in previous correspondence that the proposed project would result in no hazard to navigation, no pollution of public waters and no degradation of fish and wildlife values in the area. No credible evidence was presented by Petitioner at this hearing that the proposed project would not present a potential hazard to navigation or a potential source of pollution of the waters of the state. With respect to the degradation of fish and wildlife values in the area, so long as the houseboats remain, the site will be unproductive. However, these houseboats are floating and not fixed. If removed from the site the area would become productive. On the other hand if the proposed structure is erected the shadow cast upon the water bottom at this site will be permanent, as will be the non-productivity of this site.

   
   

9. Petitioner was advised by Respondent on January 10, 1980 (Exhibit 7) that the application was incomplete in not having received the approval of the Department of Natural Resources for the use of the state's interest in the sovereignty lands involved. Petitioner did not heed this advice until March 27, 1981, when Petitioner submitted a letter (Exhibit 20) to the Department of Natural Resources. This was subsequent to Respondent's notice of intent to deny the application dated March 13, 1981 (Exhibit 19).

   
   

   CONCLUSIONS OF LAW

   
   

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

    
    

11. Section 403.087(4), Florida Statutes, provides in pertinent part:

    
    

    The department shall issue permits

    to construct, operate, maintain, expand, or modify an installation which may reasonably be expected to be a source of pollution only when it determines that the installation is provided or equipped with pollution control facilities that will abate or prevent pollution to the degree that will comply with the standards or rules promulgated by the department

    
    

12. Rule 17-4.07, Florida Administrative Code, provides in pertinent part:

    
    

    1. A permit may be issued to the applicant upon such conditions as the Department may direct, only if the applicant affirmatively 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 regulation. . . .

       
       

    2. When the application is found deficient in any respect, or required information has not been submitted to the Department, the application shall not be accepted. The Department shall notify the applicant of the deficien- cies or lacking information and allow a reasonable time for corrections or

       submission of the necessary information.

       
       

13. Here, Petitioner presented no test results, submitted no plans showing the ultimate amount of pervious and impervious surface on the upland area of the project, submitted no climatological data, and submitted no plans or test results to demonstrate that the proposed holding pond on the upland area would perform as contended by Petitioner. In short, Petitioner failed to provide reasonable assurances that the proposed project would not cause pollution of state waters.

    
    

14. Additionally, Petitioner failed to obtain the requisite release from the Department of Natural Resources and did not even apply for such release until after he received notice of intent to deny the application for permit. It is also noted that the CofE is most unlikely to issue a permit for the proposed construction. While this is not material to this application and is given no weight in these proceedings, as a matter of fact, without approval from the CofE Petitioner cannot construct the proposed structure.

    
    

15. From the foregoing it is concluded that Petitioner has failed to provide reasonable assurances that the construction of the proposed "stilt house" will not be a source of pollution to the waters of the state and will not adversely affect the water quality of state waters. It is, therefore,

RECOMMENDED that the application of Jerry Carlton to construct a residence over navigable waters on pilings driven into submerged lands between State Road A1A and the Intercoastal Waterway be denied.

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:

Mr. Jerry Carlton

5900 North Ocean Drive Hollywood, Florida 33020

Paul R. Ezatoff, Jr., Esquire Assistant General Counsel

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

Victoria J. Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32301

Docket for Case No: 81-001081

Orders for Case No: 81-001081