STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAVID SANGILLO, )

)

Petitioner, )

)

vs. ) CASE NO. 90-5724

) LARAE HAYS and STATE OF FLORIDA, ) DEPARTMENT OF ENVIRONMENTAL REGULATION, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for hearing before P. Michael Ruff, duly-designated Hearing Officer of the Division of Administrative Hearings, in Jacksonville, Florida.

APPEARANCES

FOR PETITIONER: David Sangillo, pro se

15665 Shellcracker Road

Jacksonville, FL 32226

FOR RESPONDENT: LaRae Hays, pro se (LaRae Hays) 1574 Menlo Avenue

Jacksonville, FL 32218

FOR RESPONDENT: William H. Congdon, Esq. (DER) Department of Environmental

Regulation

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

STATEMENT OF THE ISSUE

This cause concerns a dispute between the Petitioner and the Respondents concerning whether a permit ("dredge and fill") and water-quality certification should be issued by the Respondent, Department of Environmental Regulation (hereinafter referred to as "Department" or "DER"), authorizing the construction of a private dock with terminal deck and platform, in conjunction with the construction of a 250-foot "privacy fence" in the adjacent salt marsh, and whether construction, installation and operation of the facility will violate State water-quality standards and the public-interest standards embodied in Section 403.918, Florida Statutes.

PRELIMINARY STATEMENT

This cause involves a dispute concerning whether a dredge and fill permit and water-quality certification should be issued to the Petitioner authorizing the proposed construction of a private dock, 184 feet by 4 feet, with a 12-foot by 12-foot terminal deck and a 12-foot by 5-foot "stepdown" platform at the waterward end of the dock. The project also involves the proposed construction of 6-foot high lattice walls on three sides of the terminal deck, with a pitched roof, as well as the construction of a 250-foot by 8-foot wooden "privacy fence?? parallel to the dock in the salt marsh, which constitutes waters of the State, in Duval County, Florida. A timely Petition was filed opposing the issuance of the permit. The Petitioner, in essence, alleges that the fence would obstruct his view of the beauty of the marshlands involved and could serve to impede normal tidal flow of water through the marsh, since it would be perpendicular to the upland shoreline and objects to the installation of the "stepdown" platform at the waterward end of the dock as a possible impediment to navigation. In addition to these complaints, the Petitioner expresses concerns about the location of the dock in relation to the Petitioner's property line and a Duval County easement boundary, which he maintains is infringed upon by the existing dock at the site. He complains concerning the dredging of and the location and routing of a drainage ditch and drainage water coursing through that ditch. The issues concerning title to the property and any boundary or setback requirements imposed by other agencies or units of the government; and the fact of prior illegal dredging and filling by LaRae Hays, the Respondent/applicant, is not at issue in this proceeding, however. The previous dredging and filling of the wetland area leading to the landward end of the existing dock and the associated dredging of the drainage ditch has already been addressed successfully by the Department in an informal enforcement action. The applicant has removed the fill and filled the drainage ditch and will continue to insure that the illegal fill is removed and the dredging of the ditch is properly corrected on pain of a Department enforcement action should full compliance not be achieved. In any event, however, the matters of past illegal activities are not before the Hearing Officer in this proceeding but, rather, the issue of entitlement to the permit in question, and water-quality certification, based upon the requirements of Section 403.918, Florida Statutes, as well as the rules embodied in Chapter 17-312, Florida Administrative Code.

This cause came on for hearing as noticed, at which the Department adduced the testimony of Mr. Jeremy Tyler, the Environmental Administrator of the Department's water management program. The Respondent/applicant presented the testimony of Rhoda Gibbs, Robert Hays, and LaRae Hays, the applicant herself, also testified on her behalf. The Petitioner presented the testimony of Norman Connell, an engineer employed by the City of Jacksonville, as well as John Forrest Watson, a Planning Manager with the Division of State Lands of the Department of Natural Resources. The Respondent/applicant adduced one (1) exhibit, which was admitted into evidence. The Petitioner presented four (4) exhibits, which were admitted into evidence; and the Department presented six

1. exhibits, which were admitted into evidence. The proceeding concluded, and the parties were accorded the right to submit proposed findings of fact and conclusions of law in the form of Proposed Recommended Orders, but failed to submit any such pleadings.

   FINDINGS OF FACT

   
   

   1. LaRae Hays, the Respondent/applicant, owns real property to be used for residential purposes, which adjoins a salt marsh and tidal creek contiguous to the Nassau River in Duval County, Florida. The Respondent/applicant applied for a permit and water-quality certification so as to authorize the construction of a private dock with a terminal deck and "stepdown" platform. The applicant also seeks authority to construct a 250-foot by 8-foot wooden ??privacy fence", parallel to that dock. The structures are to be built on a tidal creek and within a salt marsh contiguous to the Nassau River. The application is opposed by the Petitioner, who is an adjoining property owner. The Petitioner opposes the application for the reasons referenced in the above Preliminary Statement.

      
      

   2. The Department is an agency of the State of Florida charged with regulating and permitting activities which may be sources of pollution, such as the instant project, which are constructed, operated or installed in waters of the State, as defined in Chapter 403, Florida Statutes, and Title 17, Florida Administrative Code. The Department is charged, as pertinent hereto, with reviewing applications, such as the subject application, to insure that the water-quality standards and public-interest standards embodied in Section 403.918, Florida Statutes, as well as Chapters 17-3 and 17-312, Florida Administrative Code, are complied with before issuing a permit authorizing the construction of the proposed facility.

      
      

   3. Mr. Tyler was called as the first witness for the Department. The parties stipulated that the Department could put on its case first in the order of proof. Mr. Tyler was accepted as an expert witness in the field of the "impact of dredge and fill projects on the environment~?. It was thus established that the Respondent/applicant's project is proposed for a piece of property in the adjacent salt marsh on Black Hammock Island in Duval County, Florida. The Respondent/applicant proposes to construct a private dock, 184 feet by 4 feet, with a 12-foot by 12-foot terminal deck and a 12-foot by 5-foot "stepdown" platform. A portion of the dock is already constructed and is included in the permit sought. The deck is proposed to be surrounded on three sides with a six-foot-high lattice wall covered with a pitched roof. During the course of the proceeding, however, the Respondent/applicant conceded that she would abandon the proposal to construct the lattice walls, would rather leave the terminal deck and roofed area open so that the neighbors' view of the salt marsh and river would not be obstructed and that she would rather install blinds which can be raised or lowered for the roofed portion of the proposed terminal deck. The Respondent/applicant previously dredged and placed fill on a portion of the wetlands in question and dredged a drainage ditch along the perimeter of the wetlands and the Respondent/applicant1s property. The fill was for the purpose of creating a sort of "causeway" leading from the upland property owned by the Respondent/applicant to the landward extent of the already-existing dock. Pursuant to informal enforcement action by the Department, the Respondent/applicant agreed to, and has, removed that fill material and corrected, or is about to correct, the dredging activity done without permit in the drainage ditch in question. The proposed project is located in Class II waters, classified as "conditionally approved" for shellfish harvesting. Normally, under the provisions of Rule 17-312.080(7), Florida Administrative Code, a dredge and fill permit for the proposed project and its construction could not be authorized in such Class II shellfish harvesting waters. However, the Department has granted a variance from that rule so that the activity sought to be permitted can be authorized as a result of the instant permit application, by its notice of intent to grant the variance entered on June 5, 1990. That variance became embodied in a Final Order of the Department authorizing it,

      entered on July 31, 1990. No interested party responded to due and appropriate notice of the intent to grant the variance, hence, the Final Order approving it. The variance was accompanied by mandatory conditions involving the protection of historical or archaeological artifacts, the prohibition of more than two boats being moored at the dock; of any overboard discharges of trash, animal or human waste or fuel; against any non-water dependent structure such as gazebos or

      fish-cleaning stations, which must be located on the uplands and against boat shelters having enclosed sides. Additional conditions were that any dock over grass beds should be constructed as to allow for maximum light penetration and that water depth at the mooring area for the dock shall be sufficient to prevent bottom scouring by boat propellers. Additionally, in the notice of intent to grant document, the Department has required that in order for the permit at issue to be granted, in addition to the general conditions applicable to any such permit, the following specific conditions shall be observed by the Respondent/applicant during and after construction:

      
      

      1. Historical and archeological artifacts shall be reported to the Department, as well as the Bureau of Historic Preservation, Division of Archives History and Records;

         
         

      2. Prior to commencement of the work, the permittee shall provide written notification of commencement to the Department; turbidity control shall be utilized throughout the project to contain any turbidity generated;

         
         

      3. The waterward end of the dock shall be marked by a sufficient number of reflectors as to be visible from the water at night by reflected light;

         
         

      4. All work shall be done during periods of average or low water in order to minimize turbidity;

         
         

      5. All disturbed areas shall be re-vegetated with indigenous vegetation in order to prevent erosion or unstabilized material entering into State waters; and

         
         

      6. Finally, that the project shall comply with applicable State water- quality standards. The Respondent/applicant has agreed to these conditions.

      
      

   4. Moreover, the testimony of Mr. Tyler establishes that no water-quality violations of the standards contained in Chapter 17-312 and 17-3, Florida Administrative Code, will be occasioned by the construction or operation of this facility. The pilings necessary to perform the construction involved will be installed at periods of low or average tide, such that the installation area will not generate turbidity in the State waters involved at the site. The dock is so designed that maximum light penetration will occur so that deleterious shading of the marsh grasses involved at the site and under the footprint of the dock will not occur. Moreover, the dock and the proposed fence, for that matter, would have a beneficial effect on benthic species diversity by encouraging aquatic invertebrates to attach and form colonies on the posts and pilings where they enter State waters.

      
      

   5. It was also established, through the Department's evidence, as well as the testimony of the Respondent/applicant's witnesses, that there is a sufficient water depth in the creek located at the waterward end of the proposed dock and ~?stepdown?? platform, such that the small boats which would be able to navigate the creek, being of sufficient shallow draft, will not occasion propeller scouring or propeller-generated turbidity when operated at prevailing water depths for boats which will be moored at the end of the proposed facility.

      In summary, it has been demonstrated that no State water-quality standards will be violated by the installation and operation of the proposed facility, given the conditions which the Respondent/applicant and the Department have already agreed upon and the Respondent/applicant has accepted on the record in this case, including the condition concerning no gazebo-type structures located on the dock and no fish cleaning facilities or fueling equipment or facilities on the dock or platforms. Such conditions should be incorporated in any Final Order and permit resulting from this proceeding.

      
      

   6. In addition to the water-quality considerations discussed above, it must be determined whether reasonable assurances have been provided by the permit applicant that the proposed project will meet the "public interest" standards of Section 403.918(2)(a)1-7, Florida Statutes. In this regard, it has been demonstrated by the evidence and testimony adduced by the Respondent/applicant and the Department that the project will not adversely affect the public health, safety or welfare or the property of others in the context of the various environmental concerns addressed and regulated by Chapter 403, Florida Statutes, and Title 17, Florida Administrative Code.

      
      

   7. The unrefuted testimony of expert witness, Tyler, establishes that the project will not adversely affect the conservation of fish and wildlife, including endangered or threatened species or their habitats. The project will not adversely affect navigation, the flow of water, or cause harmful erosion or shoaling.

      
      

   8. Mr. Tyler's testimony establishes that the ecosystem in the vicinity of the project consists of a natural intertidal saltwater marsh, which is currently in excellent condition and has a high relative value of functions as a habitat and nursery area for marine and estuarine vertebrate and invertebrate species. The project will not adversely affect fishing or marine productivity in the area involved nor have an adverse effect on the current condition and relative functional value of the marsh area in terms of habitat for, and the conservation of, fish and wildlife and in terms of its value as a marine and estuarine habitat and the marsh system's function in protecting water quality.

      
      

   9. Although the project will not adversely affect fishing or marine productivity in the vicinity of the project, the proposed "privacy fence" has not been shown to be "not contrary to the public interest'1 in terms of adverse effect on recreational values??. The "privacy fence" will not pose any of the other adverse consequences in terms of the above-discussed seven (7) public- interest standards nor will it impose a detrimental impact on water quality, especially since it will be elevated approximately a foot above the surface of the soil in the marsh area, preventing any impediment to normal tidal flows and flushing. The fence will, however, impose a detrimental effect on the recreational value of the State waters involved in the subject marshland area by impeding the aesthetic qualities of the view of the marshland and river system for adjoining landowners, specifically, the Petitioner. The fence will clearly impede this "passive recreational value" and reasonable assurances that it will not do so have not been provided in the testimony and evidence of record. The desire of the Respondent/applicant to install the fence is certainly understandable in view of the hostile relations between the Respondent/applicant and the Petitioner, caused to a great degree by the Petitioner's persistence in installing and operating an overly-bright nighttime security light and, more particularly, because of the Petitioner's habit of constantly photographing, with a video camera, the Respondent/applicants or her invitees while they are using the present dock. Because the fence will impede the recreational value of

      the marshland in terms of the aesthetic nature of the view of the marsh of the Petitioner, the permit should not include authorization for installation of the fence.

      
      

   10. The relevant and more peripheral facts established in this record prove the wisdom of the words of the poet, Robert Frost, who wrote that "good fences make good neighbors". The parties' dispute concerning the use of the security light and video camera more properly sounds in the circuit court, however. A proceeding involving disputed environmental permitting issues cannot serve to resolve all the "life management" disputes between the parties.

       
       

   11. In summary, the unrefuted evidence of record demonstrates that, with the exception of the last above mentioned consideration concerning the proposed fence, that the water quality standards and the public interest standards embodied in Section 403.918(1) and (2), Florida Statutes, will not be violated by the proposed project if the conditions mentioned above and those provided for in the Department's Exhibit 3, which are incorporated in these findings of fact by reference, are imposed on any grant of a permit. A grant of the permit should also be conditioned upon periodic monitoring of the installation of the proposed project, which the Department has agreed in this record to do.

       
       

       CONCLUSIONS OF LAW

       
       

   12. The Division of Administrative Hearings has jurisdiction of the subject of and the parties to this proceeding. Section 120.57(1), Florida Statutes.

       
       

   13. Section 403.918(1) and (2), Florida Statutes, provides as follows:

       
       

       1. A permit may not be issued under ss. 403.91-403.929 unless the applicant provides the department with reasonable assurance that water quality standards will not be violated. The department, by rule, shall establish water quality criteria for wetlands within its jurisdiction, which criteria give appropriate recognition to the water quality of such wetlands in their natural state.

       2. A permit may not be issued under ss. 403.91-403.929 unless the applicant provides the department with reasonable assurance that the project is not contrary to the public interest. However, for a project which significantly degrades or is within an Outstanding Florida Water, as provided by department rule, the applicant must provide reasonable assurance 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 archaeological resources under the provisions of 5.267.061; and

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

             
             

   14. Additionally, the water quality standards embodied in Chapter 17-3, Florida Administrative Code, are pertinent to this permit application and are incorporated herein by reference. The unrefuted evidence of record shows that none of those water quality standards or the public interest standards embodied in the above-quoted statutory provisions will be violated by installation of the proposed project provided it is conditioned, both generally and specifically, as delineated in the Department's Exhibit 3, which conditions are incorporated herein by reference, and in the conditions found to be necessary in the above findings of fact. Particularly, the proposed installation of the privacy fence should be denied as posing an adverse effect on the recreational value of the State wetlands and marsh in the vicinity of the project.

RECOMMENDATION

Accordingly, in view of the above findings of fact and conclusions of law it is, therefore

RECOMMENDED that a Final Order be issued by the Department of Environmental Regulation granting the subject dredge and fill permit and water quality certification sought by the applicants provided that grant of the subject permit should include the general and specific conditions incorporated in the Department's Exhibit 3, as well as the conditions found to be necessary in the above findings of fact.

DONE AND ENTERED this 31st day of May, 1991, in Tallahassee, Leon County, Florida.

P. MICHAEL RUFF Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 1991.

COPIES FURNISHED:

David Sangillo

15665 Shellcracker Road

Jacksonville, FL 32226

LaRae Hays

1574 Menlo Avenue

Jacksonville, FL 32218

William H. Congdon, Esq. Department of Environmental

Regulation

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

Carol Browner, Secretary Department of Environmental

Regulation

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

Daniel H. Thompson, Esq. General Counsel

Department of Environmental Regulation

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

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-005724

Orders for Case No: 90-005724