STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD SLUGGETT, )

)

Petitioner, )

)

vs. ) CASE NO. 86-1846

) DEPARTMENT OF ENVIRONMENTAL ) REGULATION and DEPARTMENT OF ) TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on September 18, 1986, in Ft. Lauderdale, Florida. The parties waived the time requirement that a Recommended Order be entered within 30 days following the conclusions of the hearing. Pursuant to leave, the parties were allowed through October 30, 1986, to submit proposed Recommended Orders supportive of their respective positions. The parties submitted proposed Recommended Orders which were considered by me in preparation of this Recommended Order. Proposed findings and conclusions which are not incorporated herein are the subject of specific rulings in an Appendix to this Recommended Order.

APPEARANCES

For Petitioner: Brigham, Moore, Gaylord, Schuster

and Sachs by Mark S. Ulmer, Esquire

200 Southeast 6th Street, Suite 404 Ft. Lauderdale, Florida 33301

For Respondent: Florida Department of Transportation Mel Wilson, Esquire

Haydon Burns Building Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32301

For Respondent: Department of Environmental Regulation

Karen A. Brodeen, Esquire and Anthony Cleveland, Esquire Twin Towers Office Building 2600 Blair Stone Road

Tallahassee, Florida 32399-2400 ISSUE

The issue presented for decision herein is whether or not Petitioner,

Department of Transportation, (DOT), is entitled to issuance of a dredge and fill permit for installation of triple box culverts over the Callery Judge Canal, between the 20 mile bend and State Road 7 on State Road 80, Palm Beach County, Florida.

INTRODUCTION AND BACKGROUND

On April 14, 1986, Petitioner, Richard Sluggett, received notice of the Department of Environmental Regulation's (DER) intent to issue a dredge and fill permit to DOT, as applied for in DER's file #50-113079-6. On April 24, 1986, Petitioner requested an administrative hearing pursuant to Section 120.57(1), Florida Statutes. At the hearing, Petitioner presented the testimony of Richard Sluggett. Petitioner's exhibits 1 and 2 were received in evidence. Respondent, DER presented the testimony of E. Loren Midgett, a licensed professional engineer who was tendered and accepted as an expert in the field of road and highway design in Florida; Joyce Howland and Steve Swingle.

Respondent, DER presented the testimony of Marion Hedgepeth, tendered and accepted as an expert in processing DER's dredge and fill permits. Respondent DER's exhibit 1 was received into evidence.

Joint Composite Exhibit 1 and Joint Exhibits 2, 3, and 4 were received into evidence.

FINDINGS OF FACT

Upon consideration of my observation of the witnesses and their demeanor while testifying, documentary evidence received including the parties pre- hearing stipulation, the following relevant facts are found:

1. Respondent DOT filed a dredge and fill permit based on its application filed with Respondent DER and proposed to upgrade a 4.9 mile segment of State Road 80 from a 2-lane roadway to a rural 4-lane divided roadway which included construction of new north and south bound bridges over a canal (designated as L-

   8) and constructing a triple box culvert to replace the existing bridge over Callery Judge Canal, located from 20 mile bend to 5.5 miles west of State Road 7, Palm Beach County, Florida. (Joint Composite Exhibit 1).

   
   

2. Respondent DER published the required notice of its intent to issue the applied for permit by DOT in the April 14, 1986 edition of the Palm Beach Post Times, a newspaper of general circulation.

   
   

3. Petitioner is the fee simple owner of the property located to the west of Callery Judge Canal. Petitioner's property includes a drainage easement which has been given to the Seminole Water Management District and includes submerged portions of the canal. Callery Judge Canal is a water control structure.

   
   

4. Callery Judge Canal is connected to another canal designated as C-51, which is also a water control structure.

   
   

5. The length of Callery Judge from the C-51 Canal extends approximately

   400 feet. There are water control structures at the end of Callery Judge Canal and approximately 4 miles both east and west of the C-51 Canal. As such, there is limited navigability of the C-51 Canal by Petitioner.

6. The C-51 Canal is used by Petitioner and unidentified public members for recreational navigation purposes. There is no commerce navigation on either the C-51 or Callery Judge Canal.

   
   

7. Petitioner currently has navigational access to C-51 through Callery Judge. Petitioner owns two boats which he has from time to time used on the Callery Judge Canal to get to the C-51 Canal.

   
   

8. Both C-51 and Callery Judge Canal are Class 3 water bodies. Respondent DER has dredge and fill jurisdiction over both canals as they connect to state waters.

   
   

9. Respondent DOT, in addition to publishing notice in the Palm Beach Post Times, sent written notice to adjacent property owners advising them of DOT's application and only Petitioner protested based on his claim of impaired navigation from Callery Judge to C-51. Additionally, Petitioner objected on the basis that the project would adversely affect his riparian rights of access to

   C-51 and that the effect of issuing of the requested permits would amount to the taking of private property without first making payment of full compensation to him.

   
   

10. The existing bridge which expands Callery Judge Canal does not meet state safety practices inasmuch as there is only the approximately 2 feet between the edge of the travel lane to the face of the railing. This space provides only a 2 foot recovery lane for disabled vehicles. With the triple box culverts as applied for by DOT, an adequate recovery lane of approximately 10 feet will be provided which meets state safety requirements for recovery lanes. (Testimony of Midgett). The triple box culverts will allow for DOT to complete its planned widening of the bridge on both ends and thereby eliminate adverse safety concerns relating to traffic "bottle necking."

    
    

11. Fish, alligators, and other wildlife will be able to continue passing from Callery Judge to C-51 after installation of the triple box culverts as proposed by DOT and therefore there will be no adverse impacts on fish and wildlife conservation.

    
    

12. The proposed culverts will allow drainage to continue and water flow will not be constricted.

    
    

13. Following construction of the triple box culverts, Petitioner may continue to enjoy other riparian rights that he presently enjoys. Thus, Petitioner may continue to swim and bathe in Callery Judge Canal. Petitioner may also continue to navigate Callery Judge for fishing and other recreational purposes.

    
    

14. There are no marinas, boat lifts, boat ramps or other facilities on C-

    51 or Callery Judge Canals which would provide navigation access to the canals by the general public. The one boat facility in either canal is a boat ramp in C-51 maintained by the South Florida Water Management District.

    
    

15. The Palm Beach County Health Department, a local approved DER program, (pursuant to Section 403.916, Florida Statutes), reviewed the subject application and determined that DOT's application, with modifications incorporated in Respondent DER's intent to issue, provided the reasonable assurances and was in the public interest pursuant to Section 403.918(2), Florida Statutes.

16. Petitioner's riparian rights to navigate Callery Judge Canal and access to C-51 would be impaired by the Respondent DOT's installation of the triple box culverts as applied for. However, when these adverse impacts are balanced against the other factors as required pursuant to Section 403.918(2), Florida Statutes, Petitioner's adverse impacts are considered to be negligible.

    
    

17. Respondent DOT has provided Respondent DER reasonable assurances that water quality standards will not be violated based on the proposed project.

    
    

18. Respondent DOT has provided Respondent DER reasonable assurances that by use of turbidity screens during construction of the culverts, turbidity values 50 feet down stream from the project site will not exceed 29 N.T.D.'s above background.

    
    

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.57(1), Florida Statutes.

    
    

20. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

    
    

21. The authority of the Respondent, DER, is derived from Chapter 403, Florida Statutes and Rule Chapter 17, Florida Administrative Code.

    
    

22. Respondent DOT provided Petitioner and other members of the public the required notice pursuant to Rule 17-103.150(2)(b), Florida Administrative Code and Section 403.815, Florida Statutes.

    
    

23. Respondent DOT has provided Respondent DER reasonable assurances that water quality standards will not be violated based on the proposed project.

    
    

24. Respondent DOT has provided Respondent DER reasonable assurances that by use of turbidity screens during construction, required turbidity values will be insured 50 feet down stream from the project and will not exceed 29 N.T.D.'s above background.

    
    

25. Respondent DOT has provided Respondent DER reasonable assurances that the proposed project is not contrary to the public interest and is in conformity with requirements set forth in Section 403.918(2), Florida Statutes. Although Petitioner's navigation of the Callery Judge Canal will be impeded by construction of the triple box culverts north of the culverts to the South Florida Water Management District's C-51 canal as the proposed construction will leave only a 2 feet clearance, (water surface to the top of the culverts) based on Petitioner's existing limited access to navigable waters, the impediment caused by DOT's proposed construction is minimal due to nearby canal obstructions located both north and west of the project area, i.e., canal crossing/culverts. Based on this limited impediment to navigation created by the project and by balancing the other factors present herein, which are deemed to be in the public interest, it is concluded that the applied for dredge and fill permit should be issued. It is so concluded. Respecting Petitioner's claim that the proposed project results in a taking of his property, it is concluded that the Circuit Court is the appropriate forum for a determination of that issue. See Department of Environmental Regulation v. Bowen, 472 So.2d 460 (Fla. 1985), approving and adopting Bowen v. Department of Environmental Regulation, 448 So.2d 566 (2d DCA 1984).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That Respondent, Department of Environmental Regulation, grant Respondent, Department of Transportation, a dredge and fill permit as set forth with the conditions accompanied in its Notice of Intent to Issue, based on the determination herein that the proposed activities are not contrary to the public interest.

RECOMMENDED this 18th day of December, 1986, in Tallahassee, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1986.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1846

Rulings on Respondent, Department of Environmental Regulation's proposed Recommended Order.

1. Paragraph 12, adopted as modified, paragraphs 12, 17 and 18, Recommended Order.

2. Paragraph 13, adopted as modified, paragraphs 15 and 16, Recommended Order.

3. Paragraph 18, rejected as unnecessary for resolution of the issues.

4. Paragraph 19, adopted as modified, paragraph 15, Recommended Order.

5. Paragraph 21, first sentence adopted and remainder rejected as being speculative or conclusionary.

6. Paragraph 24 the parties Stipulation and other statements respecting the parties positions were not incorporated in the Recommended Order as being unnecessary or was not the subject of testimony based on the stipulation.

Rulings on Respondent, Department of Transportation's proposed Recommended Order.

1. Paragraph 1 adopted as modified, paragraph 8, Recommended Order. Statutory and Code provisions are not recited in the Recommended as findings of fact. However, official notice was taken of the pertinent rules, regulations and statutory provisions.

2. Paragraph 4 substantially adopted, paragraphs 3, 4 and 5, Recommended Order.

3. Paragraph 12 rejected as being unnecessary to determine the issues posed herein and based on the ultimate determination that the project was in the public interest, paragraph 15, Recommended Order.

Rulings on Petitioner's proposed Recommended Order.

1. Paragraph 5, first sentence attributable to Respondent, Department of Transportation, rejected as no evidence was introduced to substantiate that Respondent DOT was unaware that Petitioner was owner and holder of a riparian property right of access.

2. Paragraph 4, last sentence rejected as evidence adduced indicates that Petitioner's rights to gain access between his riparian lands and the C-51 canal was considered, paragraph 16, Recommended Order.

3. Paragraph 5, last sentence rejected as there was a determination that the proposed project was in the public interest and that any impairment of Petitioner's access was counter balanced against public considerations as required in Section 403.918(2), Florida Statutes. Paragraph 16, Recommended Order.

4. Paragraph 6, rejected as being contrary to other credited evidence which indicates that the proper balancing test was in fact made. See paragraphs 10-18, Recommended Order which deals with the consideration of the public interest criteria set forth in Section 403.918(2), Florida Statutes.

COPIES FURNISHED:

Mark S. Ulmer, Esquire

200 SE Sixth Street, Suite 404 Ft. Lauderdale, Florida 33301

Mel Wilson, Esquire Department of Transportation Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32301

Karen A. Brodeen, Esquire

Department of Environmental Regulation 2600 Blair Stone Road

Twin Towers Office Building Tallahassee, Florida 32301

Victoria Tschinkel, Secretary Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301

Docket for Case No: 86-001846

Orders for Case No: 86-001846