STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAWRENCE R. JAYNE, )

)

Petitioner, )

)

vs. ) CASE NO. 84-4242

) DEPARTMENT OF ENVIRONMENTAL ) REGULATION AND MICHAEL MILLEN, )

)

Respondents. )

)

RECOMMENDED ORDER

This matter came on for hearing in Tampa, Florida on May 14 and June 13, 1985, before the Division of Administrative Hearings and its duly appointed Hearing Officer R. T. Carpenter.

APPEARANCES

For Petitioner: William H. Yanger, Jr., Esquire

620 Twiggs Street

Tampa, Florida 33602

For Respondent Ralph B. Fisher, Esquire

/Applicant: 126 Flagship Drive

Lutz, Florida 33549

For Respondent Charles G. Stephens, Esquire

/DER: Carlyn Harper, Certified Legal Intern Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

This matter arose on Petitioner's opposition to DER's proposed grant of a dredge and fill permit to the Applicant. The parties submitted proposed findings of fact pursuant to Subsection 120.57(1)(b)4, Florida Statutes. A ruling on each proposed finding of fact has been made either directly or indirectly herein, except where such proposed findings have been rejected as subordinate, cumulative, immaterial, or unnecessary. DER filed a motion to strike certain proposed findings filed by Petitioner. In view of the above stated criteria, the striking of any proposed finding is unwarranted, and the motion is therefore denied.

FINDINGS OF FACT

1. The dredge/fill project sought to be permitted involves a proposed residential lot located on Lake Padgett in Pasco County. The tract is also adjacent to a canal dug by the Applicant and his father.

2. The Applicant, Michael Millen, acquired this property from his father, Otis Millen, who continues to own other property in this area. Petitioner is an adjoining landowner, and also acquired his property from Otis Millen.

   
   

3. DER prematurely issued the proposed permit 1/ on August 9, 1984. If reissued, this permit would allow the Applicant to develop a residential lot by filling a portion of a cypress swamp and creating compensating wetland elsewhere on his property. Additionally, the Applicant agrees to dedicate a three acre "conservation easement" and to install a culvert to improve drainage.

   
   

4. The advantages of this project include the creation of a homesite where none is available now, acquisition by the State of three acres of dedicated wetland (conservation easement) and improved drainage through the culvert installation. There would be no net loss in cypress swamp area.

   
   

5. The disadvantages include temporary turbidity in surrounding waters and some tree removal in the construction area. The Applicant would replace any trees removed through replanting.

   
   

6. The Applicant also seeks permits to build a "summer kitchen" over jurisdictional wetlands and to fill the lakefront area with white sand. These "add-on" permit requests are not properly a part of this proceeding, however, and were not contemplated in the application at issue here. DER's expert witness gave only limited testimony on their feasibility during the rebuttal phase of this hearing.

   
   

7. Petitioner has raised numerous objections to all the proposed projects, but principally to the one at issue here. He was not notified of DER's intent to grant the dredge and fill permit, and became aware of the project only after he observed construction activity. It was determined that DER had failed to notify him through an oversight of that agency or the Applicant.

   
   

8. Petitioner points out that lot development is not being done in accordance with the (proposed) permit. He noted that trees have been cut down, fill was dumped in the canal and work on canal banks was taking place, all in contravention of permit conditions.

   
   

9. Petitioner believes DER has acted improperly in tolerating the Applicant's unpermitted construction activity. To support this charge, he called as a witness a neighbor who had placed white sand on his lakefront property, but was required to remove it by DER enforcement personnel. The Applicant, on the other hand, has placed white sand on his beachfront property without a permit, and DER is assisting him in obtaining an after the-fact permit.

   
   

10. Petitioner proved, through a series of aerial photographs, and the testimony of both expert and lay witnesses, that the canal which separates his lot from the Millen properties was constructed between 1976 and 1977. DER had jurisdiction at that time, 2/ but no permit was ever sought or obtained.

    
    

11. The canal was dug as a "joint venture" of the Applicant and his father. It connects Lake Padgett with a drainage pond several hundred feet behind the lake. This canal has changed area drainage causing one nearby resident to experience periodic property flooding as a result.

    
    

12. Prior to the canal's construction, a small drainage ditch with an earthen or cement dam did exist in the general area. However, the canal

    construction removed the dam and greatly enlarged the size and capacity of the previous ditch. Expert interpretation of aerial photographs revealed that a substantial number of mature cypress trees were removed in conjunction with the Millens' canal project.

    
    

13. Some cypress trees were also cut for the recent (unpermitted) construction of the "summer kitchen" by the Applicant. He also constructed a dock which was later determined to be exempt by DER. Again, the Applicant had not obtained DER approval for the dock and had, in fact, been advised to stop construction until a determination of permitting requirements, if any, was made.

    
    

14. Petitioner attempted to show a conflict of interest within DER. However, the fact that one DER field representative knew Otis Millen did not demonstrate such a conflict. Rather, DER's enforcement policies have been lax or inconsistent primarily due to a shortage of field personnel.

    
    

    CONCLUSIONS OF LAW

    
    

15. The permitting authority of DER is contained in Chapter 403, Florida Statutes (1983). Rule 17-4.07(1), F.A.C. sets forth criteria for the approval of the permit sought herein, and provides in part:

    
    

    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 regulations. . . .

    
    

16. Here, the Applicant has given reasonable assurance that the proposed lot development will not be environmentally harmful. Permit deviations, such as tree removal, were unavoidable and were anticipated by DER even though the proposal indicated no tree removal. The pushing of fill dirt into the canal was accidental and should not be considered a material violation of the proposed permit.

    
    

17. After-the-fact permitting is undesirable, but is a relatively common occurrence with which DER is confronted. In this case, the Applicant and DER both believed that a valid permit had been issued prior to the start of work. The failure to notify Petitioner, however, violated his right to object and thus voided the original permit.

    
    

18. Petitioner contends that the Applicant has repeatedly violated environmental permitting law and should not be granted the requested permit. DER's policy with respect to permit approval is to evaluate the proposal at hand on its merits, and not to consider prior violations. Rather, DER views its enforcement and permitting functions separately.

    
    

19. The Applicant also seeks to obtain after-the-fact permits for his "summer kitchen" and beach sand proposals. However, these were "add-on" matters and only limited evidence was presented. The unpermitted cypress tree removal

at the "summer kitchen" site and the apparent inconsistency in enforcement of beach sand violations require investigation. Therefore, a decision on these proposed permits must be deferred pending further study by DER, notice of proposed agency action, and hearing if required.

RECOMMENDATION

From the foregoing, it is RECOMMENDED:

That the Department of Environmental Regulation reissue Permit No.

510852383 to Michael A. Millen.

DONE and ENTERED this 24th day of September, 1985 in Tallahassee, Florida.

R. T. CARPENTER, 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 24th day of September, 1985.

ENDNOTES

1/ Permit No. 510852383

2/ See Section 403.813(2)(f), F.S. (1983).

3/ The environment around this canal has "stabilized," and restoration is no longer practical.

COPIES FURNISHED:

William H. Yanger, Jr., Esquire 620 Twiggs Street

Tampa, Florida 33602

Ralph B. Fisher, Esquire

126 Flagship Drive Lutz, Florida 33549

Charles G. Stephens, Esquire Carlyn Harper,

Certified Legal Intern 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: 84-004242

Orders for Case No: 84-004242