Judges: LINDA M. RIGOT
Agency: Department of Environmental Protection
Latest Update: Feb. 28, 1984
Summary: Dismissal of neighbors' petitions challenging dredge and fill permit for lack of standing and failure to show any water quality violation would result.
83-1309.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
STORMY SANDQUIST, MARION C. SNIDER, ) VOLLA F. SNIDER, CARMEN ASHTON, ) REUBEN D. SITTON, GAIL P. SITTON, ) SANDRA N. SHULER, PATTY SEVERT, ) GREG SEVERT, NANCY MOORE and )
PAUL MOORE, JR., )
)
Petitioners, )
)
vs. ) CASE NO. 83-1309
) RONALD JANSON and DEPARTMENT OF ) ENVIRONMENTAL REGULATION, )
)
Respondents. )
)
RECOMMENDED ORDER
Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on August 25, 1983, in St. Augustine, Florida.
Petitioners, Stormy Sandquist, Marion C. Snider, Volla F. Snider, Carmen Ashton, and Sandra N. Shuler, each appeared on his/her own behalf. Petitioners, Reuben D. Sitton, Gail P. Sitton, Patty Severt, Greg Severt, Nancy Moore, and Paul Moore Jr., did not appear and were not represented. Respondent, Ronald Janson, was represented by John D. Bailey, Jr., Esquire, St. Augustine, Florida, and Respondent, Department of Environmental Regulation, was represented by Charles G. Stephens, Esquire, Tallahassee, Florida.
Respondent, Department of Environmental Regulation, notified Respondent, Ronald Janson, of its Intent to Issue the dredge and fill permit for which Janson had made application. Petitioners each individually oppose the issuance of that permit. Accordingly, the issue for determination is whether Respondent Janson's application for a dredge and fill permit should be approved.
Several discovery motions filed by Respondent, Department of Environmental Regulation, prior to the formal hearing in this cause were held in abeyance at the request of the Department. Those pending motions are now moot and are, therefore, denied.
Respondent Janson filed a Motion for Leave to File Motion to Dismiss and a Motion to Dismiss on the day preceding the formal hearing in this cause. At the formal hearing, the Motion for Leave to File Motion to Dismiss was granted, but the Motion to Dismiss was denied. Janson was expressly permitted, however, to raise the issue of standing as a defense during the formal hearing.
At the formal hearing, the City of St. Augustine, Florida, filed a Motion to Intervene as a petitioner in order to have a stipulation placed on the record. That motion was granted, and the parties stipulated that the record in
this cause would be held open until October 1, 1983, to allow the City time to consider Respondent Janson's request to place fill and a culvert within a tidally-influenced ditch owned by the City. By letter dated September 30, 1983, the City Attorney advised that the City has granted authority for Respondent Janson to cross the City-owned ditch, the manner of construction to be approved by the City Engineer so as to be the least environmentally damaging.
A non-party who appeared as a witness on behalf of Petitioner Shuler at the formal hearing caused another non-party to file documents dealing with the merits of this cause with the Division of Administrative Hearings on September 28, 1983. On September 30, 1983, the undersigned entered a Notice of Ex Parte Communication, pursuant to Section 120.66, Florida Statutes (1981). In correspondence filed October 11, 1981, Petitioner Shuler requested that a portion of the materials which formed the basis for the Notice of Ex Parte Communication be accepted as her late-filed exhibit 4. That request be and the same is hereby denied.
Ronald Janson, Loren N. Jones, Timothy James Deuerling, and Jeromy Guy Anthony Tyler testified on behalf of the Respondents, who presented a singular case. Additionally, Respondent Janson's exhibits 1-11 were admitted in evidence.
Petitioner, Stormy Sandquist, testified on her own behalf and presented the testimony of Cathy DuFresne. Additionally, Petitioner Sandquist's exhibits 1-4 were admitted in evidence.
Petitioner, Sandra N. Shuler, testified on her own behalf and presented the testimony of Carol Fall and Ed Lowe. Additionally, Petitioner Shuler's exhibits 1, late-filed 2, 3, 5 and 6 were admitted in evidence.
Petitioners, Marion C. Snider and Volla F. Snider, declined to testify and presented no evidence in support of their petitions. Likewise, Petitioner, Carmen Ashton, did not return from the lunch break, did not testify, and presented no evidence in support of her petition.
Only Respondent, Ronald Janson, and Petitioner, Stormy Sandquist, submitted posthearing proposed findings of fact in the form of proposed recommended orders. To the extent that any proposed findings have not been adopted in this Recommended Order, they have been rejected as not having been supported by the evidence, as having been irrelevant to the issues under consideration herein, or as constituting unsupported argument of counsel or conclusions of law.
FINDINGS OF FACT
On November 1, 1982, Respondent Janson filed a Joint Application for a dredge and fill permit from Respondent, Department of Environmental Regulation, and from the Department of the Army Corps of Engineers. The project described in that application involved the construction of an approximately 1,000-square- foot, pile-supported residence, landward of the mean high water line but within the landward extent of Robinson Creek in St. Johns County, Florida. The proposed project also involved the placement of approximately 35 cubic yards of fill and a 30-foot culvert within a small (approximately 4-foot), tidally- influenced roadside ditch for driveway access and parking. The original application sought permission to place part of a concrete driveway and tool shed within the landward extent of Robinson Creek.
The project is to be constructed on Lot 47, J.A. Lew Subdivision. Respondent Janson owns Lot 47, as well as Lots 45 and 46, which lots are north of and adjoining Lot 47 and also adjoining Robinson Creek. The next adjoining property owner to the north is the City of St. Augustine, Florida, which presumably owns the street. The adjoining property owner to the south of Lot 47 is Virginia P. Melichar. Neither Melichar nor the City objected to the Department's approval of the dredge and fill permit application.
In support of his application, Janson retained the services of a registered surveyor and civil engineer, who performed a survey on Lot 47 to determine the location of the mean high water line with reference to the proposed project. That expert determined the location of the mean high water line to be at elevation 2.4 feet. Accordingly, all work contemplated by the dredge and fill permit is upland from the mean high water line.
T.J. Deuerling, an environmental specialist for Respondent, Department of Environmental Regulation, visited the project site on December 13, 1982 and on December 30, 1982 in order to prepare the Department's Biological and Water Quality Assessment. As a result of those site visits, Deuerling recommended to Respondent Janson that he modify his permit application by moving the concrete slab and tool shed from the marsh area onto the uplands. Janson did so revise his application.
In spite of the name of the permit being sought by Respondent Janson, the project involves no dredging. However, the culvert and its attendant fill would be placed in the man-made roadside ditch. That ditch constitutes a very weak transitional marsh. Although the culvert will eliminate some vegetation within that ditch, the effect of the elimination will be insignificant on water quality. The pilings for the pile-supported residence will also eliminate a small area of marsh. The anticipated shading caused by the pile-supported residence may impact somewhat on the vegetation in a small area below the residence; however, due to the fact that the floor of the house will be eight feet above the ground, light will still be able to penetrate. Therefore, the vegetation below the pile-supported residence will continue to act as a filter for pollutants. Janson has mitigated the small loss in wetlands by modifying his project so as to remove the concrete slab and tool shed from the marsh area to the uplands.
Due to the project's small size, no storm water impact can be expected. Additionally, no evidence was introduced to show a violation of any water quality standard as a result of the proposed project.
On March 16, 1983, Respondent, Department of Environmental Regulation, executed its Intent to Issue the dredge and fill permit in accordance with the revised application and subject to the conditions that: (1) turbidity curtains be employed in the ditch during the placement of fill over the culvert to contain any turbidity generated, and (2) construction on the uplands be confined to periods of normal water level conditions. On July 5, 1983, the Department of the Army Corps of Engineers issued its Permit and Notice of Authorization.
The essence of the testimony presented by the Petitioners, including that of the employees of the St. Johns River Water Management District, who testified in opposition to the proposed project, is that even though Janson's proposed project would not impact water quality in a way that was either significant or measurable (although no one even suggested any specific water quality standard that might be violated), approval of Janson's permit might set a precedent for other projects which might then have a cumulative impact in some
unspecified way at some unspecified location. No evidence was offered to show that Respondent, Department of Environmental Regulation's review of permit applications is other than site specific. Further, no evidence was introduced to show any proposed project anywhere having any impact with which Janson's project could be cumulative.
Petitioners Sandquist and Shuler live in the neighborhood of the proposed project, perhaps as close as two blocks away.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1), Florida Statutes (1981).
The petition for formal hearing should be dismissed with prejudice as to Reuben D. Sitton, Gail P. Sitton, Patty Severt, Greg Severt, Nancy Moore, Paul Moore, Jr., Marion C. Snider, Volla F. Snider, and Carmen Ashton, since each of those Petitioners either failed to appear at the formal hearing in this cause or, having appeared, failed to present any evidence as to standing or as to the merits of their petitions.
Petitioners Sandquist and Shuler, the only Petitioners who participated in the formal hearing requested by the 11 Petitioners in this cause, have failed to prove that they have a substantial interest in this matter sufficient to confer the requisite standing necessary to proceed. The mere fact that each of them lives somewhere in the general neighborhood affords no connection to the proposed project or the project site different than any interest possessed by the general public. Accordingly, their petitions should also be dismissed for lack of standing.
Assuming arguendo that either Petitioner Sandquist or Shuler has standing by sheer virtue of residing somewhere near the proposed project site, their petitions should still be dismissed with prejudice. Pursuant to Chapter 403, Florida Statutes, Respondent, Department of Environmental Regulation, has enacted rules pursuant to which applications for required permits shall be evaluated. Section 17-4.28(3), Florida Administrative Code, regulates permits for dredging or filling activities and provides as follows:
(3) 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 . . .
Absolutely no evidence has been introduced to show that any water quality standard would be violated. Rather, even Petitioners' witnesses admit that the impact, if any, on water quality as a result of Respondent Janson's proposed project cannot be measured.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing with prejudice the
petition filed herein as to each individual Petitioner and issuing a dredge and fill permit to Respondent Janson in accordance with his revised application.
DONE and RECOMMENDED this 13th day of January, 1984, in Tallahassee, Leon County, Florida.
LINDA M. RIGOT, 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 13th day of January, 1984.
COPIES FURNISHED:
Stormy Sandquist
3 Aviles Street
St. Augustine, FL 32084
Marion C. Snider Volla F. Snider
79 Fullerwood Drive
St. Augustine, FL 32084
Carmen Ashton
51 East Park Avenue
St. Augustine, FL 32084
Reuben D. Sitton Gail P.Sitton
35 Seminole Drive
St. Augustine, FL 32084
Sandra N. Shuler
22 East Park Avenue
St. Augustine, FL 32084
Patty Severt Greg Severt
1 Fern Street
St. Augustine, FL 32084
Nancy Moore Paul Moore, Jr.
6 Fern Street
St. Augustine, FL 32084
John D. Bailey, Jr., Esq.
P.O. Box 170
St. Augustine, FL 32085-0170
Charles G. Stephens, Esq.
Department of Environmental Regulation 2600 Blair Stone Road
Tallahassee, FL 32301
Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road
Tallahassee, FL 32301
Docket for Case No: 83-001309
Orders for Case No: 83-001309
| Issue Date |
Document |
Summary |
|
Feb. 24, 1984 |
Agency Final Order
|
|
|
Jan. 13, 1984 |
Recommended Order
|
Dismissal of neighbors' petitions challenging dredge and fill permit for lack of standing and failure to show any water quality violation would result.
|
