STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM F. WHITE, )

)

Petitioner, )

)

vs. ) CASE NO. 82-772

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

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Defuniak Springs, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton, II, on March 9, 1983. This case was consolidated for hearing with the permit case concerning the same project, William F. White v. State of Florida Department of Environmental Regulation, No. 82-1287. The parties were represented by counsel:

APPEARANCES

For Petitioner: George Ralph Miller, Esquire

Post Office Box 687

Defuniak Springs, Florida 32433

For Respondent: E. Gary Early, Esquire

2600 Blair Stone Road Tallahassee, Florida 32301

This case arises on petitioner's application for a variance authorizing dredging and filling for construction of a house on pilings on the edge of Choctawhatchee Bay.

ISSUE

Whether respondent should grant petitioner's application for a variance, after the fact, from Rule 17-4.28(8)(a), Florida Administrative Code?

FINDINGS OF FACT

1. In early 1981, petitioner White began putting in pilings on Lot 3, Block 6 of Chippewa Subdivision on the north shore of Choctawhatchee Bay in Walton County. The waters of Choctawhatchee Bay are Class II and the Department of Natural Resources has approved them for shellfishing. With a gas powered pump, petitioner jetted in two rows 40 feet long and ten feet apart of five pilings each and also built a bulkhead paralleling the rows of pilings and ten feet landward of them. On this foundation, he constructed a floor, including a porch floor cantilevered ten feet out waterward of the watermost row of pilings. Work had progressed through most, if not all, uprights on the first floor when

   the project came to the attention of state and federal environmental authorities, courtesy of a neighbor with whom petitioner had quarrelled (after the neighbor cut down trees on petitioner's property, to improve his view of the Bay). Construction has been at a standstill since.

   
   

2. The bulkhead stands against the face of a bluff 20 feet high that is eroding not only as a result of wave action but also because of the deteriorating effect of groundwater in the area. Erosion is occurring at the rate of two feet or more annually. (Testimony of Kerr) There has been no appreciable scouring in front of the bulkhead or the pilings because old tires have been placed in an arc in front of the structure as a sort of revetment. The tires interrupt littoral movement of sand and exacerbate erosion downshore. Although waves can break against the base of the bluff itself, the approximate mean high water line at the time of the hearing was two to three feet landward of the first row of pilings. An area behind the first row of pilings is regularly and periodically inundated. When the pilings were originally placed, the approximate mean high water line was waterward of the pilings.

   
   

   NAVIGATION

   
   

3. At high tide water underneath the house and even under the porch is only a few inches deep. Any boat tall enough to hit the porch would draw enough to run aground before getting that far. Ongoing erosion might result in deeper water at some point in the indeterminate future.

   
   

   VEGETATION

   
   

4. In the beach area at the base of the bluff, including the project site at the time construction began, giant reed (phragmites communis) and salt meadow cord grass (spartina patens) are the predominant plant species. In full sunlight giant reeds grow as tall as eight feet and spartina patens gets as high as two or three feet. On top of the bluff are sand pine, slash pine, longleaf pine, magnolia, live oak, scrub oak, yaupon, ilex and other upland species. A few upland plants have fallen down from the top of the bluff and taken root at the base of the bluff, but they are a decided minority.

   
   

5. There was little vegetation, mainly dewberries, under the half finished house at the time of hearing. According to the uncontroverted evidence, the United States Army had been on maneuvers in the vicinity and some of the approximately 29,000 men involved had selected the area underneath petitioner's structure as their bivouac, trampling the giant reeds and spartina patens underfoot. The giant reeds are rhizomatic and will inevitably reestablish themselves. The structure is high enough above the beach that enough sunlight will reach the ground for spartina patens to grow again, as well. Because of the shadow cast by the structure, however, the mass of the vegetation in the immediate area will be somewhat less than if the sun's rays were wholly unobstructed.

   
   

6. These plants provide a habitat for fish, crabs and birds. They are food for microorganisms and larger forms of life alike. Their own food includes nitrogen, phosphorous, potash and carbon, all of which they tend to remove from water running off into the Bay, averting eutrophication. They also take up heavy metals, oils and greases which are washed down from State Road 20 just north of the site.

   OTHER STRUCTURES, PERMITS

   
   

7. About two miles east of petitioner's lot are a house and a bar built on pilings pretty much in the same fashion as the house petitioner has started. They have been there at least since 1970. The Department of Environmental Regulation never issued any permit for their construction. The Department of Environmental Regulation has never permitted the building of a residence, part of which extended over navigable waters.

   
   

8. The Department of Natural Resources has issued no permit in connection with petitioner's property or otherwise authorized the use of sovereignty lands or air space above such lands.

   
   

   WASTE DISPOSAL

   
   

9. Petitioner had originally planned to install a septic tank on the state right of way, waterward of State Road 20, to receive both sewerage and other wastewater ("grey water"). The DOT had in fact issued a use permit to petitioner authorizing the installation, but DOT only considers highway safety in issuing such permits, and has since revoked the permit it issued to petitioner, pending his obtaining a septic tank permit from the local health department. Percolation tests, which are required before the local health department acts, have not been done.

   
   

10. At the hearing, petitioner altered and supplemented his proposal for disposing of waste: He proposed to install a special composting toilet and, instead of a septic tank, a holding tank with a gauge that would indicate the level of grey water in the tank.

    
    

    HARDSHIP

    
    

11. Petitioner owns no real estate other than the lot on which he began building this house. He now shares living quarters with his daughter and his widowed mother, who sleeps in the living room. His mother likes to paint, particularly sunsets. He started this project with the intention of building a place for her to live.

    
    

12. Petitioner spent time and money on this project in the belief that the county building permit he obtained fully authorized him to do so. He had spoken to a man who built a similar house who said as much. If he is not allowed to use this structure, he will get no benefit from the time and money he has expended in constructing it to this point.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Department of Environmental Regulation has regulatory jurisdiction of the waters of Choctawhatchee Bay to their landward extent as defined by Rule 17-4.02, Florida Administrative Code which includes "that portion of a water body indicated by the presence of one or a combination of [Spartina patens and Phragmites communis, among others] as the dominant species." Rule 17-4.02(17), Florida Administrative Code. The parties stipulated that the pertinent time for determining which plant species were dominant for purposes of the rule was the time construction began, and the evidence showed that spartina patens and phragmites communis predominated on site at that time. Regardless of where the mean high water line is, therefore, the Department of Environmental Regulation has permitting authority over this project.

14. By recommended order entered in Wilson F. White v. State of Florida Department of Environmental Regulation, No. 82-1287 on May 3, 1983, denial of petitioner's application for dredge and fill permit after the fact was recommended. In the event the permit nevertheless issues, the present controversy would be mooted and petitioner's application should be disposed of on that basis. The ensuing discussion assumes permit denial.

    
    

15. Respondent set forth its reasons for proposing to deny the petition for variance in Mr. Fox's letter to Mr. Baxley, dated February 19, 1982:

    
    

    1. The petitioner has not submitted evidence which supports his request for a variance in accordance with Section 403.201, Florida Statutes and

       Florida Administrative Code Rule 17-1.57.

    2. The environmental, social and economic impact to the citizens of Florida of a private dwelling structure in this lo- cation precludes issuance of a variance.

       The impacts include, but are not limited to, interference with the public

       use of navigable waters of the state without the consent of the Board of Trustees of the Internal Improvement Trust Fund; sewage leachate or spills which are a source of degradation to sensitive shellfish harvesting waters; a source, when combined with similar projects, likely to produce significant

       alteration of the biological and chemical properties of waters of the state.

    3. There is a practicable means known or available for the adequate control

       of the pollution involved which is the removal of the illegally constructed dwelling and use of the site for an activity which is not a detriment to the public welfare and which is compatible with approved shellfish harvesting waters.

       
       

       Section 403.201, Florida Statutes (1982 Supp.) lists as grounds for variances "any one of the following reasons:"

       
       

       1. There is no practicable means known or available for the adequate control of the pollution involved.

       2. Compliance with the particular requirement or requirements from which a variance is sought will necessitate the taking of measures which, because of their extent or cost, must be spread over a considerable period of time. A variance granted for this reason shall prescribe a timetable for the taking

          of the measures required.

       3. To relieve or prevent hardship of a kind other than those provided for

       in paragraphs (a) and (b). Variances and renewals thereof granted under au- thority of this paragraph shall each be limited to a period of 24 months, except that variances granted pursuant to part II may extend for the life of the permit or certification.

       Section 403.201(1), Florida Statutes (1982 Supp.)

       
       

       Rule 17-1.57, Florida Administrative Code does not add any substantive criteria. As with permit applications, applicants for variance have the burden to show entitlement, pursuant to Rule 17-1.62, Florida Administrative Code.

       
       

       MEANS AVAILABLE

       
       

16. Pollution in the present case would be minimal. Respondent concedes that "there have been no proven water quality violations," Respondent's Proposed Findings of Fact, Conclusions of Law and Proposed Recommended Order, p. 6, in arguing that the cumulative effect of many such projects should be taken into account. But, whether viewed cumulatively or individually, some pollution, however slight, would result, within the meaning of Section 403.201(1)(a) , Florida Statutes (1982 Supp.). A residence differs from a dock or a marine railroad or any other structure whose function depends on its proximity to water. The practicable means for avoiding water pollution from a residence, even the little that would occur after installation of a compostible toilet and a holding tank, is to build the residence landward of the landward extent of waters of the state.

    
    

    TIME FOR COMPLIANCE

    
    

17. Petitioner has applied for a variance after the fact, but his legal position is not enhanced by the fact that construction has already begun. Any other rule would be unsound. See generally Section 253.124(7)(a), Florida Statutes (1981). No applicant, not even an applicant who has acted in good faith as petitioner has, can bootstrap himself into a variance under Section 403.201(1)(b), Florida Statutes (1982 Supp.) by doing work without a permit, then pleading that remedial measures necessitated by that work would involve so much and take so long that a variance is required. The noncompliance contemplated by Section 403.201(1)(b), Florida Statutes (1982 Supp.) cannot be the result of unlawful conduct by the applicant for variance.

    
    

18. Since petitioner's application specifies no timetable for compliance, moreover, no variance can be granted pursuant to Section 403.201(1)(b), Florida Statutes (1982 Supp.).

    
    

    HARDSHIP

    
    

19. The only dredge and fill variance ever granted by the Department of Environmental Regulation, pursuant to Section 403.201(1)(c), Florida Statutes (1982 Supp.), was for the dredging of a channel in Stump Pass in Charlotte County. West Coast Inland Navigation District v. State of Florida Department of Environmental Regulation, No. DF-1-80 (DER; Jan. 7, 1980). The variance was strictly conditioned as to time (12 months) and was predicated on a showing of economic hardship to many individuals and businesses, as well as proof that

    rescue efforts would be delayed up to 2.5 hours without a channel through the pass.

    
    

20. Petitioner alleges in the present case that "if required to remove this structure on which he has already expended considerable sums of money, he has no place else on the property to place the structure." The precise amount of money was not proven, but there can be no doubt that time and money have been devoted to this project. There was no testimony to the effect that petitioner could not relocate this structure elsewhere on the parcel. The evidence is nevertheless clear that refusing petitioner a variance to allow completion of the house where it stands would cause him no little expense.

    
    

21. This in itself cannot, however, justify a variance. Otherwise, anybody who made any significant progress toward construction of any structure in violation of the rules of the Department of Environmental Regulation would be entitled to a variance to finish the job. The problems with any such rule are plain.

    
    

    USE UNAUTHORIZED

    
    

22. To the extent the structure extends onto sovereignty lands or into the airspace above such lands, moreover, the Department of Environmental Regulation has no authority to grant a dredge and fill variance without a showing that the Department of Natural Resources, in whom bottomlands under navigable waters are vested, has leased the land in question to the permit applicant or has otherwise authorized the private use of public property. George R. Langford et al. v. Ben

C. Boynton et al., No. 82-0533 (DER; Jan. 7, 1983), 5 FALR 296-A; Betty L. and Burwell Harrison et al. v. Edwine K. Crowley, et al., No. 79-2307 (DER; Nay 23, 1980), 2 FALR 872-A; C. H. Waites v. Jeff Taylor et al., No. 79-2286 (DER; April 22, 1980), 2 FALR 687-A. Section 253.77(1), Florida Statutes (1981) , provides:

No department, including any division, bureau, section, or other subdivision thereof, or any other agency of the state possessing regu- latory powers involving the issuance of permits shall issue any permit, license, or other evidence of authority involving the use of sov- ereignty or other lands of the state, title to which is vested in the Board

of Trustees of the Internal Improvement Trust Fund or the Department of Natural Resources under chapter 253, until the applicant for such permit, license, or other evidence of permission shall

have received from the Board of Trustees of the Internal Improvement Trust Fund the required lease, license, easement, or other form of consent authorizing the proposed use and exhibited it to such agency or department or subdivision thereof having regulatory power to per- mit such use.

The evidence adduced here did not establish the precise location of the mean high water line, which is the boundary of the "lands of the state," but

testimony that the structure stands in and over lands regularly and periodically inundated went unrebutted. In these circumstances, petitioner did not carry his burden to show that he has "the necessary approval or permission from all other persons with a legal interest in the property affected. Betty L. and Burwell Harrison et al. v. Edwine K. Crowley et al, No. 79-2307 (DER; May 23, 1980) 2 FALR 872-A, 873-A.

RECOMMENDATION

Upon consideration of the foregoing it is RECOMMENDED:

That respondent deny petitioner's application for variance.

DONE and ENTERED this 9th day of May, 1983, in Tallahassee, Florida.

ROBERT T. BENTON, II

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 9th day of May, 1983.

COPIES FURNISHED:

George Ralph Miller, Esquire Post Office Box 687

Defuniak Springs, Florida 32433

E. Gary Early, Esquire Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Victoria Tschinkel, Secretary Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Docket for Case No: 82-000772

Orders for Case No: 82-000772