STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MR. & MRS. JOHN C. JORDAN, et al., )

)

Petitioners, )

)

vs. ) DOAH CASE NO. 88-2393

) OGC FILE NO. 88-0419 CITY OF JACKSONVILLE and STATE )

OF FLORIDA, DEPARTMENT OF )

ENVIRONMENTAL REGULATION, )

)

Respondents. )

)

RECOMMENDED ORDER

Following the provision of notice, a formal hearing was held in this case on August 8, 1988. The authority for the conduct of the hearing was Section 120.57(1), Florida Statutes. Charles C. Adams served as the Hearing Officer.

The hearing was held in Jacksonville, Florida. This Recommended Order is being entered following the review of the exhibits admitted in the course of the hearing and in consideration of the testimony at the hearing. In addition, proposed recommended orders have been offered by the Respondents. They too have been examined and utilized in the preparation of this Recommended Order. In those instances where the factual portrayal urged by those parties has not been adhered to, an explanation is given in an appendix attached to this Recommended Order.

APPEARANCES

For Petitioners: Mrs. Susan Ablett

2620 Lynnhaven Terrace

Jacksonville, Florida 32217

For Respondent, Robyn A. Deen, Esquire City of Jacksonville: Assistant Counsel, Office

of General Counsel City of Jacksonville 1300 City Hall

Jacksonville, Florida 32202

For Respondent, William H. Congdon, Esquire State of Florida, Cecile I. Ross, Legal Intern Department of Office of General Counsel Environmental Twin Towers Office Building Regulation: 2600 Blair Stone Road

Tallahassee, Florida 32399-2400 ISSUES

The issues in this case concern the question of the entitlement of the City of Jacksonville (City) to the issuance of a dredge and fill permit and water

quality certification from the State of Florida, Department of Environmental Regulation (Department) for the replacement of an existing wooden timber bridge with a concrete pile bridge over a water body known as Deep Bottom Creek located in Duval County, Florida.

FINDINGS OF FACT

1. On January 20, 1988 the City made application to the Department for issuance of a dredge and fill permit to replace an existing wooden bridge known as the Lynnhaven Terrace Bridge which crosses Deep Bottom Creek in Duval County, Florida. At that time the existing bridge was a two lane timber bridge measuring approximately 20 feet wide, having two spans of 19 feet and 14 feet respectively with associated guardrails. The replacement bridge was to be 44 feet wide and 37 feet long. Subsequently, a revision was made to the permit application which called for reduction in the width of the bridge to 39 feet. A copy of the original application may be found as City's Exhibit 2 admitted into evidence and the revision was received as City's Exhibit 3. The bridge in its revised format would include two paved lane and two sidewalks on the outside of those lanes. This bridge too would have guardrails.

   
   

2. The bridge replacement project would involve the dredging of approximately 122 cubic yards of material from the creek bottom and the installation of 12 concrete pilings along the riverbank. Approximately 4.75 cubic yards of fill will be placed below the mean high waterline and 690 cubic yards above that line. Stabilization of the north and south banks of the side of the bridge will be accomplished with 160 linear feet of sheet pile wall. The total acreage to be filled is approximately 1.1 acres with 0.002 acres being in wetlands or open waters within the Deep Bottom Creek. By this arrangement, part of the activities are within waters of the state and the upward extent of those waters and confer jurisdiction on the Department to require a dredge and fill permit and water quality certification.

   
   

3. The jurisdiction of the Department extends to the mean high waterline of the creek in accordance with Section 403.913(2), Florida Statutes, and this takes into account the opportunity to examine the implications of dredging and filling associated with the project. The waters at issue are Class III waters. Black Bottom Creek is part of a drainage basin leading to the St. Johns River, a major water body.

   
   

4. The reason for this project concerns the present bridge's deteriorating condition as shown in the City's Composite Exhibit 1, a series of photos. The bridge is in such disrepair that it has been downgraded in its load rating to three (3) tons, which is inadequate to support heavy vehicles, to include emergency vehicles such as firetrucks. With the advent of the concrete bridge, this problem would be rectified. An attempt to effect repairs on the existing bridge is not a reasonable choice for the City.

   
   

5. The Department, in response to the application, conducted an assessment of that application or appraisal to include biological and water quality concerns. A copy of the report rendered in response to the application may be found as the Department's Exhibit 1. That report favors the grant of a permit in water quality certification and at the date of hearing that opinion was still held by the Department. The report points out that the project would straighten out a problem with a curve in the creek course by the choice of location for the new bridge. This arrangement will assist in the flow pattern and give a positive influence in preventing shoaling underneath the existing bridge. It will also positively affect the problem of the erosion in the upland area of the

   existing bridge which causes deposition of material into the creek bottom. The report describes the fact that steps to contain turbidity during the construction phase can be achieved.

   
   

6. Having been satisfied concerning this application, an Intent to Issue a Permit and water quality certification was stated on April 15, 1988. A copy of the Intent to Issue may be found as Department's Exhibit 2 admitted into evidence. The permit was to be issued on condition concerning the question of authority to operate in waters of the state as contemplated by Chapter 253, Florida Statutes. That matter is not one for consideration in the present dispute. It also refers to preservation of historical and archeological artifacts. There has been no demonstration that such artifacts exist in the area of this project. The turbidity control mechanisms were mentioned as a special condition and as suggested before, those matters can be attended by this applicant and are expected to be. There is reference to doing the work at periods of average or low water, and there was no indication that this could not be accomplished by the applicant.

   
   

7. On April 19, 1988 the actual permit was rendered and had attached letters of April 18, 1988 advising the City that it could contest the permit terms and the fact that others might promote objections to the permit and water quality certification. In fact, a number of land owners in the general vicinity of the project have contested this permit application leading to the present hearing. The petition and challenge to the intention to grant a permit was timely made. The Petitioners are Mr. and Mrs. John Jordan, Mr. and Mrs. Ian Ablett, Mr. Keith Kelly, Ms. Dorothy Brown, Mr. Hal Moyle, Ms. Holly Baker, Ms. Beatrice Diomont, J. H. Cater, Mr. and Mrs. W. Reed, Mr. and Mrs. H. Carrell, Mr. Harvey Jay, Ms. K. C. Walsh and Donald Braddock. Only Mr. and Mrs. Ablett, Mr. Kelly, and the Carrell's attended the hearing and established their standing to challenge the intended agency action. Moreover, the nature of their challenge as set forth in their petition has been restricted by a ruling which struck reference to the alleged influence which this project has on property values associated with a lack of sensitivity for aesthetics in exchanging the wooden bridge for a concrete pile bridge. Otherwise, the Petitioners through the presentation at hearing spoke in terms of shoaling at the site as a matter of their concern. This problem is not one which is attributable to the City and its activities, it is related to commercial activities upstream from the project site. As described, if anything, the project will alleviate those problems to some extent. Additional reasons which the Petitioners advanced in opposition concern the belief that they did not need a new bridge, that the bridge was too wide and that they did not need sidewalks and guardrails. Notwithstanding their perceptions, the overall public needs would favor the replacement of the bridge to include wider lanes and sidewalks for safe pedestrian passage. Again, at present, there are no sidewalks with the existing bridge. The expression of opposition by the Petitioners beyond the reference to the shoaling problem and the effects on water levels is not a matter of environmental concern contemplated by the permit application review process under consideration here.

   
   

8. On May 13, 1988, the Department of the Army issued a permit for this project, a copy of which may be found as City's Exhibit 4 admitted into evidence. In addition, the Coast Guard has no opposition to this project and has said as much in its correspondence of May 2, 1988, a copy of which may be found as City's Exhibit 5 admitted into evidence.

   
   

9. The immediate and long term impacts of this project are not violative of applicable state water quality standards, in that reasonable assurances have been given that those standards will not be exceeded.

10. This project is not contrary to the public interest. It is not adverse to public health, safety or welfare or property of others. The project will not adversely affect the conservation of fish and wildlife, to include endangered or threatened species or other habitats. The project will not adversely affect navigation or the flow of water which will cause harmful erosion or shoaling. The project will not adversely affect the fishing or recreational values or marine productivity in the vicinity of the project. The project is permanent in nature but over time it will not have adverse impacts on the environment. Considering the current conditions and diminished value of environmental functions being performed by the area, they are not particularly significant at present and the project will not change that posture, in fact it may improve the circumstance. Specifically, at present no endangered or threatened species are found within the creek. There had been some wildlife activity, but continuing problems with silting or shoaling have occurred since the homeowners in the area dredged the creek bottom, and wildlife has decreased as a result. This relates to the upstream activities which continue to promote problems in the creek bottom. On the subject of navigation, limited navigation is available by small boats or canoes at present, and the elevations of the replacement bridge are such as to not interfere with that activity.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

12. Permitting jurisdiction is conferred on the Department through Chapter 403, Florida Statutes, and Chapters 17-3, 17-4 and 17-12, Florida Administrative Code, and Section 401, Public Law 92-500.

    
    

13. The Petitioners who attended the hearing established their standing to proceed. Those Petitioners who did not have failed to show standing and should be dismissed from this action. This is as described in the foregoing fact findings. This leaves Mr. and Mrs. Ablett, Mr. and Mrs. Carrell and Mr. Kelly as Petitioners.

    
    

14. The burden of proving the entitlement to permit resides with the City. See J. W. C., Inc., vs. Department of Transportation, 396 So.2d 778 (Fla. 1st DCA 1981) and Rule 17- 103.130, Florida Administrative Code. To this end, the City must give reasonable assurances that the proposed project will not violate water quality standards or criteria related to Class III waters established at Chapter 403, Florida Statutes, and within Rules 17-3.051 and 17-3.121, Florida Administrative Code. The requirement to give reasonable assurances related to those substantive rule criteria is announced in Rule 17-12.070(1), Florida Administrative Code. The City has met the requirement for establishing reasonable assurances pertaining to water quality criteria which have application and has met its proof for the grant of water quality certification through Section 401, Public Law 92-500. Consequently, its dredging and filling activities as contemplated by the intended permit are acceptable.

    
    

15. The City must also demonstrate through reasonable assurances that the project is not contrary to the public interest. See Section 43.918(2), Florida Statutes and Rule 17- 12.070(2), Florida Administrative Code. As announced in the fact finding, those criteria related to public interest have been met in that reasonable assurances have been given that the project is not contrary to the public interest in the sense of those criteria.

16. The concerns of these Petitioners are principally related to matters of aesthetics, and the lack of necessity for the bridge; in their minds, items which are not associated with the environmental permit assessment process at issue here. Thus, they may not serve as a basis for rejecting this project. See Miller vs. Department of Environmental Regulation, 504 So.2d 1325 (Fla. 1st DCA 1987).

Having considered the facts found and the conclusions of law reached, it is RECOMMENDED:

That a final order be issued which grants the permit sought by the City upon conditions as announced in the Intent to Issue, Permit File No. 16-1443602.

DONE AND ENTERED this 29th day of September, 1988, in Tallahassee, Leon County, Florida.

CHARLES C. ADAMS

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 29th day of September, 1988.

APPENDIX TO RECOMMENDED ORDER CASE NO. 88-2393

In consideration of the proposed fact finding the following explanation is given concerning the use of those facts.

City Facts

All facts suggested are subordinate to the facts found with the exception of the last sentence of paragraph 7 which is not necessary to the resolution of the dispute.

Department Facts

Those facts suggested by the Department are subordinate to facts found.

COPIES FURNISHED:

Mr. and Mrs. John Jordan 2623 Lynnhaven Terrace

Jacksonville, Florida 32217

Mr. and Mrs. Ian Ablett 2620 Lynnhaven Terrace

Mr. and Mrs. H. Carrell 2570 Lynnhaven Terrace

Jacksonville, Florida 32217

Mr. Harvey Jay

2567 Lynnhaven Terrace

Jacksonville, Florida 32217

Ms. K. C. Walsh

2557 Lynnhaven Terrace

Jacksonville, Florida 32217

Mr. D. Braddock

2500 Lynnhaven Terrace

Jacksonville, Florida 32217

William H. Congdon, Esquire Cecile Ross, Legal Intern Office of General Counsel State of Florida, Department

of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400

Robyn A. Deen, Esquire City of Jacksonville 1300 City Hall

Jacksonville, Florida 32202

City Engineer 901 City Hall

220 East Bay Street Jacksonville, Florida 32202

Dale Twachtmann, Secretary State of Florida, Department

of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida

Docket for Case No: 88-002393

Orders for Case No: 88-002393