STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD O'MALLEY, )

)

Petitioner, )

)

vs. ) Case No. 86-4747

) DEPARTMENT OF ENVIRONMENTAL ) REGULATION and MEISTER )

DEVELOPMENTS, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on March 26, 1957, at Punta Gorda, Florida.

APPEARANCES

For Petitioner: Thomas W. Reese, Esquire

123 Eighth Street North

St. Petersburg, Florida 33701

For Respondent Richard Grosso, Esquire and DER: John C. Sottcher, Esquire

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

For Respondent S. Lee Crouch, Esquire Meister: Post Office Box 700

Hollywood, Florida 33009

By Petition for formal hearing dated November 4, 1986, Richard O'Malley, Petitioner, by and through his attorney, contests the Department of Environmental Regulation's (DER), Respondent, Notice of Intent to Issue a dredge and fill permit to Meister Development Group, applicant and Respondent, to construct a 205 linear feet interlocking block revetment with rip rap toe stones and the depositing of approximately 296 cubic yards of fill 196 feet waterward of mean high water in Charlotte Harbor, Lee County, Florida. As grounds therefore, it is alleged the project (which has been completed) is causing severe erosion on O'Malley's property; that the project does not meet DER's water quality standards; the project is not in the public interest; and the project will have secondary and cumulative adverse impacts.

Although this petition for hearing was filed after the permit had issued and the project completed, Petitioner is an adjacent land owner to the applicant whose name was omitted from the application as an adjacent land owner and he did not receive notice of the application. All parties stipulated that Petitioner

has standing to maintain this action. The parties further stipulated that water quality issues are limited to erosion related questions and the public interest test issues only concern the adverse effect on the property of others and harmful erosion.

At the hearing Meister Development Group presented the application and documentation upon which DER issued its Notice of Intent to Issue permit and rested. Fla. Dept. of Transportation vs. JWC Company, Inc., 396 So.2d 779 (Fla. 1st DCA 1981). Thereafter Petitioner called four witnesses, DER called two witnesses, the applicant called one witness and three exhibits were admitted into evidence. Exhibit one is the application file and exhibit three consists of six photographs taken in the vicinity of the beach fronting Petitioner's property.

Proposed findings have been submitted by the parties. Treatment accorded those proposed findings are contained in the appendix attached hereto and made a part hereof.

FINDINGS OF FACT

1. The site of the revetment that is the subject of this litigation is located near the northerly coast of Pine Island in Charlotte Harbor. The property fronts on Pine Island Sound which is inside the barrier islands westward of Pine Island. Pine Island Sound is as an Outstanding Florida Water and Charlotte Harbor at this location is classified as Class II waters. Petitioner's property abuts the property owned by Meister Development Group. On Petitioner's property is located a two-story residence and two rental units. On Meister's property a four unit residential development has been erected.

   
   

2. Sometime around 1970 a vertical seawall was erected to protect both Petitioner's property and Respondent's property. Since that time the beach has accreted to the point that by 1989 the sand beach extended an average of approximately twenty-five feet seaward of the seawall in front of Petitioner's property.

   
   

3. However, this seawall ended near the middle of Respondents property and erosion of the beach became serious at the four unit residential development building located thereon in 1984. In 1984 the beach at this location had eroded to the point that the high water mark had passed the northern most portion of the building foundation and was threatening to undermine the structure. At this time this shoreline was devoid of aquatic vegetation.

   
   

4. Meister employed an engineering firm to prepare a solution to the erosion problem. That firm concluded a revetment was needed and the application for the dredge and fill permit that is here contested was filed in July 1984.

   
   

5. Since the application involved use of land seaward of the mean high water, permission of the Department of Natural Resources (DNR) was required before the application could receive final approval. To obtain the approval of DNR Meister agreed to provide a conservation easement to DNR and a public easement to allow the public access to cross the property seaward of the residential development. Additionally Meister conferred with Outstanding Florida Water Group to obtain their acquiescence to the project and agreed to provide navigational aids to mark the Jug Creek Channel across form the Meister property.

6. Before a dredge and fill permit can be granted involving an Outstanding Florida Water the applicant must show the project to be in the public interest. In consulting with DER the applicant proposed a sloping revetment which is generally considered to better tolerate wave action than does a vertical wall. To enhance the public interest concept the applicant agreed to place toe stones at the foot of the revetment and plant mangroves. The toe stones would serve to hold sand in which the mangroves could grow and serve as a habitat for aquatic organisms. The applicant also agreed to place an artificial reef of rocks on the sand shoal which sits about one half mile north of applicant's and petitioner's property.

   
   

7. Although the mangroves planted did not survive due to heavy wave action and the permit did not require survivability of these mangroves, at the hearing Meister agreed to a provision in the permit's next renewal that will include a requirement that a percentage of these mangroves planted in the toe stones survive.

   
   

8. Landward of the residential development is a stormwater retention area that serves to keep contaminants out Pine Islands Sound. The erosion of the beach at the Meister property was threatening to extend further inland and allow contaminants to leach from the water retention area into Pine Island Sound and contaminate that body of water. Approval of the project would serve to remove that threat and be in the public interest.

   
   

9. Finally consideration was given to the fact that the foundation of the condominium was being threatened which affected the dwelling of the residents. Protecting these residences is also considered to be in the public interest.

   
   

10. The project was completed during a two weeks period in August 1986. The revetment generally takes off in the same line as the Vertical seawall on petitioner's property and is basically convex to fit the existing building and meet the zoning setback requirement of twenty-five feet from the building. To construct the revetment the existing vertical seawall on Meister's Property had to be removed. During construction turbidity screens were installed and construction was restricted to periods of low water to reduce turbidity. Any excess turbidity caused by the construction would settle out within twenty-four hours.

    
    

11. Dr. O'Malley left Pine Island in March and returned in October 1986. At the time he left the beach in front of his seawall extended an average of twenty-five feet from the seawall. When he returned in October the revetment had been completed and approximately fifty-percent of Petitioner's beach had eroded. In October 1986 the beach on O'Malley's property extended two to twenty feet from the seawall. O'Malley was aware that prior to his departure the Meister property had suffered severe erosion. Believing that the construction of the revetment was the cause of the erosion of his beach Petitioner instituted this action. This was the only issue seriously contested.

    
    

12. Petitioner's expert witness opined that the revetment acted like a groin east of Petitioner's property and caused a littoral drift, which is basically from east to west in this area, to take the sand from Petitioner's property. Further this witness opined that the longer fetch (area of open water to the north-east of Meister property) was the primary cause of the erosion of the Meister property.

    
    

13. Historically beaches erode and accrete. Gentle waves have the tendency to cause accretion while storm waves result in seaward migration of

    beach sand. Photographs (exhibit 3) of Petitioner's property show typically storm wave generated erosion. The expert opinion of Respondents' witnesses that the erosion of Petitioner's property was caused by storm driven waves and was not caused by the revetment is deemed the more credible explanation of the erosion of Petitioner's beach.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

15. Section 403.918, Florida Statutes, establishes criteria for issuing dredge and fill permits and subsection (2) thereof provides in pertinent part:

    
    

    for a project ... which is within an Outstanding Florida Water, as provided by Department rule, the applicant must provide reasonable assurances that the project will be clearly in the public interest.

    1. In determining whether a project is not contrary to the public interest, or is clearly in the public interest, the department shall consider and balance the following criteria:

       1. Whether the project will adversely affect the public health, safety, or welfare or the property of others;

       2. Whether the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats;

       3. Whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling;

       4. Whether the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project;

       5. Whether the project will be of a temporary or permanent nature;

       6. Whether the project will adversely affect or will enhance significant historical and archeological resources under the provisions of s. 267.061; and

       7. The current condition and relative value of functions being performed by areas affected by the proposed activity.

16. As noted above the parties stipulated that water quality issues were limited to those due to or caused by erosion and the public interest issues only involves the adverse effect on the property of others and harmful erosion. Despite this stipulation the statute requires, and the evidence submitted supports, that DER balance the criteria to determine whether or not granting the requested permit is in the public interest.

    
    

17. As a condition in granting the permit DER required the installation of toe stones at the foot of the revetment and the planting of mangroves. Although the wave actions subsequent to the planting of the mangroves caused the mangroves not to survive, this was one factor considered in determining the project to be in the public interest. Other factors included the granting of easements across the Meister property, placing navigational channel markers in Jug Creek Channel and the fact that the revetment would stop the threatened contamination of Pine Island Sound from the storm water retention area landward of the revetment.

    
    

18. While the effect the project will have on the property of others is a criterion to consider, the weight of credible evidence presented is that the installation of the revetment is not the proximate cause of beach erosion at Petitioner's property nor is it a material contributing factor to such erosion. It is significant that four residences were threatened with destruction unless something was done to stop the erosion at the Meister property. This is a factor which also affects the public welfare.

    
    

19. Beaches accrete and erode in a continuing process. The revetment here installed does not operate as a groin and thereby cause erosion of Petitioner's property which is downdrift from the revetment. The photographs presented by the Petitioner show, in the opinion of expert witnesses, beach erosion associated with high winds and heavy waves not erosion due to littoral drift.

    
    

20. From the foregoing it is concluded that the construction of the revetment is not the cause of beach erosion on O'Malley's property and that the project, with the conditions imposed, is in the public interest. It is

RECOMMENDED that the petition of O'Malley be dismissed. ENTERED this 11th day of June, 1987, in Tallahassee, Florida.

K.N. AYERS 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 11th day of June, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4747

Treatment Accorded Petitioners Proposed Findings

1-9. Accepted. Included in Preamble and HO #1.

1. Accepted.

2. Accepted. However, this is rejected as an issue as no evidence was submitted that the fixed revetment would have any effect on water quality.

3. Accepted. However, this is rejected as an issue as no evidence was submitted that the fixed revetment would have any effect on water quality.

4. Accepted. However, this is rejected as an issue as no evidence was submitted that the fixed revetment would have any effect on water quality.

5. Included in HO #1.

6. Accepted.

7. Rejected. There was a gradual overall accretion of O'Malley's beach during the period 1982-1986.

8. Included in HO #1.

9. Accepted as the basis for the petition filed herein.

10. Rejected as mere testimony of this witness.

11. Rejected. Littoral drift is east to west but was not the principal or a major cause of erosion of O'Malley's beach.

12. Rejected.

13. Rejected.

14. Rejected.

15. Accepted insofar as included in HO #12. Otherwise, rejected.

16. Accepted.

17. Rejected as a mere guess of witness.

18. Accepted.

19. Rejected. One witness used an incorrect base for his measurement and Respondent's witness could not verify the estimated variance without an on-site verification.

20. Rejected as unsupported by credible evidence.

21. Included in HO #10.

22. Rejected as mere argument.

23. Accepted.

24. Rejected as unsupported by credible evidence.

25. Included in HO #6 and #7.

26. Included in HO #7.

27. Rejected. DER Permit was subject to DNR approval and that approval was conditioned upon granting the easements, marking the channel and placing the artificial reef.

28. Rejected. See Section 403.918(2)(a)7, F.S.

29. Rejected. See Section 403.918(2)(a)7, F.S.

30. Rejected. See Section 403.918(2)(a)7, F.S.

31. Accepted. Section 403.918, F.S., provides public interest guidelines.

32. Accepted.

33. Rejected.

34. Accepted.

35. Rejected as unsupported by credible evidence.

36. The permit file was accepted as evidence relied upon by DER in granting the permit.

37. Rejected. Permit file contained proper certification.

Treatment Accorded Respondent's Proposed Findings

1. Included in HO #1.

2. Included in Preamble.

3. Included in Preamble.

4. Included in Preamble.

5. Included in Preamble and HO #10.

6. Included in HO #10.

7. Included in HO #10.

8. Included in HO #3.

9. Included in HO #6.

10. Included in HO #6.

11. Accepted in conclusion.

12. Included in HO #8.

13. Included in HO #9.

14. Included in HO #6.

15. Accepted.

16. Included in HO #1 and #13.

17. Included in HO #11.

18. Included in HO #12.

19. Included in HO #12.

20. Included in HO #12.

21. Considered in reaching HO #12 and #13.

22. Considered in reaching HO #12 and #13.

23. Considered in reaching HO #12 and #13.

24. Considered in reaching HO #12 and #13.

25. Considered in reaching HO #12 and #13.

26. Included in HO #13.

COPIES FURNISHED:

Thomas W. Reese, Esquire 2951 61st Avenue South

St. Petersburg, Florida 33712

S. Lee Crouch, Esquire CROUCH & MINER, P.A.

2500 E. Hallandale Beach Blvd. Hallandale, Florida 33009

Richard Grosso, Esquire Department of Environmental Regulation

Twin Towers Office Bldg. 2600 Blair Stone Road Tallahassee, Florida 32301

Dale Twachtmann, Secretary Department of Environmental Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400

Docket for Case No: 86-004747

Orders for Case No: 86-004747