STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARSHALL WOLFE AND ANN WOLFE, )

)

Petitioners, )

)

vs. ) CASE NO. 81-2828

)

RUSSEL D. HORN, SR., and ) STATE OF FLORIDA, DEPARTMENT OF ) ENVIRONMENTAL REGULATION, )

)

Respondents, )

and )

)

ST. JOHNS CRESCENT )

LAKESITES, INC., )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings. This hearing was conducted on April 15, 1982, in the Putnam County Courthouse, 400 St. Johns Avenue, Palatka,

Florida. 1/

APPEARANCES

For Petitioners: Marshall Wolfe and Ann Wolfe

Post Office Box 492 Georgetown, Florida 32039

For Respondent: Russell D. Horn, Sr.

9439 San Jose Boulevard, Apartment 240

Jacksonville, Florida 32217

For Respondent: Richard P. Lee, Esquire

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

For Intervenor: Lauren E. Merriam, III, Esquire

Tucker, Brannon, Blanchard and Stillwell, P.A.

Post Office Box 24 Ocala, Florida 32678

ISSUES

Issues presented here concerned the entitlement of Respondent, Russell D. Horn, Sr., to be granted an environmental permit by Respondent, Department of Environmental Regulation, to build a boat stall on an existing dock in Putnam County, Florida. The boat stall's dimensions are ten feet wide by twenty feet deep and the construction would be on the St. Johns River.

FINDINGS OF FACT

1. On July 13, 1981, Russell D. Horn, Sr., who has a residence in Putnam County, Florida, bade application to the State of Florida, Department of Environmental Regulation, for the necessary permits to construct a boat stall ten feet wide by twenty feet deep at the site of an existing dock. A copy of the application may be found as Respondent Horn's Exhibit No. 2 admitted into evidence.

   
   

2. The dock where Horn applied to build the boat slip is found in the St. Johns River, a navigable water body and waters of the State of Florida in Putnam County, Florida.

   
   

3. The application form which was executed by Horn required him to indicate the name of adjacent property owners to the property at which the dock site was located, both upland and adjacent to the uplands. See Rule 17- 4.28(11)(c), Florida Administrative Code. To accomplish this task, the applicant utilized a sketch which he had been provided when he purchased his homesite in the area and indicated to the Department that the adjoining landowners were Milton Kilis and Robert Michal. In fact, Robert Michal was not an adjacent landowner.

   
   

4. The adjacent landowner, Milton G. Kilis, wrote to advise the Department that he had no objection to the construction of the boat slip. This correspondence was dated September 11, 1981. A copy of that correspondence may be found as Respondent Department's Exhibit No. 3 admitted into evidence.

   
   

5. After reviewing the initial application, additional information was requested by a document entitled "Completeness Summary" which was addressed from the Department to the Applicant Horn. A copy of this "Completeness Summary" requesting additional information may be found as Department's Exhibit No. 1 admitted into evidence. Through this summary, Horn was requested to provide written authorization from the dock owners. It was also requested that Respondent provide an affidavit of ownership of the upland property adjacent to the dock site. Horn received permission to construct from Frank Scussell and William A. Reaves, persons he understood to be the dock owners. See Respondent Horn's Exhibit No. 3 admitted into evidence. Horn misunderstood the question related to ownership of upland property and provided a mortgage deed with its attendant description of his home site property in Putnam County, which is at a different location from that of the upland property adjacent to the dock. A copy of that deed and other matters may be found as Respondent Horn's Exhibit No. 4 admitted into evidence.

   
   

6. Department of Environmental Regulation reviewing authorities wrote on the "Completeness Summary" form, Respondent Department's Exhibit No. 1, indicating that the task of seeking written authorization from the dock owners had been achieved and that the affidavit of ownership of upland property owners

   was satisfactory. In fact, all adjacent property owners had not been notified of the pendency of the application request through the process of Horn's advising the Respondent agency of the names of all adjacent property owners to the uplands and the affidavit of ownership of the upland property owner at the dock site was not filed.

   
   

7. During the review process, permission was given by the Department of the Army, Corps of Engineers, for the construction of the boat slip. A copy of this permission, by letter dated August 31, 1981, is Respondent Department's Exhibit No. 2, admitted into evidence.

   
   

8. The Department of Environmental Regulation reviewed the permit application and prepared an application appraisal, which may be found as Respondent Department's Exhibit No. 5 admitted into evidence. The findings made by that application appraisal related to application review are found to be accurate. In particular the permit application appraisal indicated that the boat slip would be located at the waterward end of the existing dock structure, which existing dock structure accommodated four boats. The appraisal found that the project was located in South Putnam County in the town of Georgetown on the St. Johns River. The permit appraisal found that the project site would be located in the littoral zone of the river about one hundred feet waterward of the mean high water line. No littoral growth was seen at the depth of the proposed construction. Tapegrass, Mexican waterlily and cattail were present near the shore. Several large hardwood swamp trees were present at the shoreline. The project was found to be located in a Water Class III and adjacent waters were Class III according to the appraisal, no significant immediate or long-term adverse environmental impacts were to be expected to occur due to the completion of the boat slip.

   
   

9. Horn was subsequently given a construction permit to add the boat stall to the existing dock. A copy of that permit may be found as Respondent Department's Exhibit No. 6 admitted into evidence. The only specific conditions related to that matter pertain to the necessity for the utilization of turbidity curtains throughout the project for purposes of containing the turbidity that might exceed State water quality standards, The permit was issued on September 22, 1981.

   
   

10. After receiving the permit, sometime around October 20, 1981, Horn purchased the necessary lumber to construct the stall and on October 24, 1981, went to the dock site to begin the installation of pilings related to the construction of the boat stall.

    
    

11. While placing the pilings on October 24, 1981, an adjoining property owner and Petitioner in this cause, Marshall Wolfe, stood on his dock, that is, Wolfe's dock, and hailed to Horn to stop building. Horn did not know Wolfe before that time and did not know that Wolfe, not Michal, was the adjacent property owner on that side of the dock.

    
    

12. On October 28, 1981, Marshall Wolfe and his wife, Ann Wolfe, wrote to the Department in the person of G. Doug Dutton, Subdistrict Manager, and indicated that they were opposed to the issuance of the permit, which is under the number of the permit issued to Respondent, and requested a hearing on the question of the issuance. A copy of that correspondence may be found as Department's Exhibit No. 7 admitted into evidence. On the same date, October 28, 1981, Horn was contacted by the Department of Environmental Regulation and advised of the Wolfe complaint and Horn was told that he would receive a cease and desist order from the Department of Environmental Regulation.

13. On October 30, 1981, Horn returned to the construction site and found four of his neighbors finishing the construction of the stall. In fact, the neighbors did conclude the construction and the boat slip remains in place.

    
    

14. A cease and desist letter was mailed on November 2, 1981; however, this letter was not received by Horn immediately. Horn did subsequently learn of the contents of the letter some time in November or December, 1981. A copy of the cease and desist letter may be found as Respondent Department's Exhibit No. 8 admitted into evidence.

    
    

15. On December 13, 1981, an attempt was made at the instigation of Department officials for the Petitioners and Respondent Horn to resolve the controversy. This effort was unsuccessful. As a consequence, a formal hearing was necessary in keeping with the request of the Department that the Division of Administrative Hearings conduct a Subsection 120.57(1), Florida Statutes, formal hearing. This request had been made on November 12, 1981, and an initial hearings had been scheduled for February 11, 1982, following consultation between the various parties and the Hearing Officer.

    
    

16. At the initial hearing session on February 11, 1982, which was to be held in Palatka, Florida, counsel for Department indicated that the upland property was not owned by Horn and that easement rights to that property were unclear. In view of this fact the hearing was continued until the ostensible upland property owner could be notified of the pendency of the issuance of an environmental permit and be allowed to participate. Notification was subsequently provided by an Intent to Issue Statement, a copy of which may be found as Respondent Department's Exhibit No. 9 admitted into evidence. This notification was through the Department at the instigation of the Hearing Officer. The date of notification was February 12, 1982. An order was entered on March 17, 1982, which allowed the intervention of St. Johns Crescent Lakesites, Inc. into the proceedings and that party, in the person of its counsel, Lauren E. Merriam, III, Esquire, participated in the April 15, 1982 hearing.

    
    

17. St. Johns Crescent Lakesites, Inc. is the owner of the upland property adjacent to the dock in which Horn had constructed the boat slip. No indication was given that any easement rights were ever granted by that corporation to grant access to the boat slip from the adjacent property.

    
    

18. The overall dock area, in terms of square feet, is between 500 and 1000 square feet. Other than the permit application made by Horn, no other permission has been received by the Department to construct the other features of the dock.

    
    

19. A further appraisal of the project site subsequent to the September 18, 1981, appraisal has been made. That appraisal was made by the field inspector for the Department. This appraisal by Melvin Rechtor agrees with the project appraisal made by the first field inspector, John Hendricks. The testimony of Melvin Rechtor on environmental impacts of the project are accepted as accurate. Rechtor's testimony established that the project would have an insignificant impact on water quality considerations and would not adversely affect the species or the conservation of fish, marine and wildlife or other natural resources. Rechtor's testimony established that there would be no unreasonable interference with waterward access of adjacent property owners. Rechtor's testimony also established that there would be no navigational hazard nor interference with fishing and swimming by persons using the river.

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. See Subsection 120.57(1), Florida Statutes, and Chapters 253 and 403, Florida Statutes.

    
    

21. The State of Florida, Department of Environmental Regulation, has permit jurisdiction pursuant to Chapters 253 and 403, Florida Statutes, and Rule 17-4, Florida Administrative Code.

    
    

22. In keeping with Chapter 403, Florida Statutes, and Rule 17-4, Florida Administrative Code, the applicant must give reasonable assurance that the project will not violate State water quality standards pertaining to Class III Waters through the construction of the project or violate other applicable standards, rules and regulations of the Respondent, on the subject of this installation. Respondent Horn has given the necessary reasonable assurance.

    
    

23. In keeping with Chapter 253, Florida Statutes, and Rule 17-4, Florida Administrative Code, Respondent Horn must demonstrate that this project is not detrimental to the species or conservation of fish, marine and wildlife or other natural resources contrary to the public interest, nor a navigational hazard, or serious impediment to navigation, nor pose a threat to substantially alter or impede the flow of the river. The project in question, i.e., the construction of the boat slip, is not contrary to those provisions of Chapter 253, Florida Statutes and Rule 17-4, Florida Administrative Code, and Respondent is found to be in compliance with those requirements,.

    
    

24. Respondent is found, in all other respects related to environmental concerns, to have complied with all applicable provisions of the State of Florida, Department of Environmental Regulation, related to necessary permits to construct a boat slip.

    
    

25. The applicant has failed to demonstrate ownership or easement opportunities through the upland property which adjoins the dock and subject boat slip; however, this does not prohibit the grant of a permit to construct a boat slip in the portion of the property waterward of the mean high water line.

    
    

26. Based upon a full consideration of the facts and conclusions of law reached, it is RECOMMENDED:

That a final order be entered allowing the permit previously issued to stand as a valid permit, with its attendant conditions.

DONE and ENTERED this 5th day of May, 1982, in Tallahassee, Florida.

CHARLES C. ADAMS, 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 5th day of May, 1982,

in Tallahassee.

ENDNOTE

1/ Petitioners have submitted Proposed Argument, Respondent Department has submitted a Proposed Order and Intervenor has submitted a Proposed Order. These matters have been reviewed prior to the entry of this Recommended Order. To the extent that the argument and proposals are consistent with the Recommended Order, they have been utilized. To the extent that these matters are not consistent with this Recommended Order, they are hereby rejected.

COPIES FURNISHED:

Marshall Wolfe and Ann Wolfe Post Office Box 492 Georgetown, Florida 32039

Russell D. Horn, Sr. 9439 San Jose Boulevard Apartment 240

Jacksonville, Florida 32217

Richard P. Lee, Esquire Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Lauren E. Merriam, III, Esquire Tucker, Brannon, Blanchard and

Stillwell, P.A. Post Office Box 24 Ocala, Florida 32678

Docket for Case No: 81-002828

Orders for Case No: 81-002828