STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

INES D. DEGNAN and EDWARD J. ) DEGNAN, KATHRYN CHIRINGTON and ) DAVID R. CHIRINGTON, BRENDA B. ) JEFFCOAT, JANIS V. FARRELL, CAROL )

1. NEWTON and ROGER K. NEWTON, ) CAROLYN VANDERGRAFF and KENNETH ) VANDERGRAFF, EMIL DISANO and ) TAMMY SWAINE and RUSSELL SWAINE, )

   )

   Petitioners, )

   )

   vs. ) CASE NO. 90-7035

   ) JOSEPH TELESE and STATE OF FLORIDA ) DEPARTMENT OF ENVIRONMENTAL )

   REGULATION, )

   )

   Respondents. )

   )

   
   

   RECOMMENDED ORDER

   
   

   Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Veronica E. Donnelly, held a formal hearing in the above-styled case on March 29, 1991, in Clearwater, Florida.

   
   

   APPEARANCES

   
   

   For Petitioner: Ines D. Degnan, Qualified

   Representative

   8410-144th Lane North Seminole, Florida 34646

   
   

   David R. Chirington, Qualified Representative

   8400-144th Lane North Seminole, Florida 34646

   
   

   Alton Jeffcoat, Qualified Representative

   8340-144th Lane North Seminole, Florida 34646

   
   

   Carol B. Newton, Qualified Representative

   8450-144th Lane North Seminole, Florida 34646

   For Respondent Steven M. Siebert, Esquire Telese: JOHNSON BLAKELY POPE BOKOR

   RUPPEL & BURNS, P.A.

   911 Chestnut Street

   Clearwater, Florida 34616

   
   

   For Respondent W. Douglas Beason, Esquire DER: Assistant General Counsel

   Twin Towers Office Building 2600 Blairstone Road

   Tallahassee, Florida 32399-2400 STATEMENT OF THE ISSUES

   Should Respondent, Department of Environmental Regulation (DER), grant the Applicant/Respondent Joseph Telese (Telese), a dredge and fill permit pursuant to the Notice of Intent to Issue filed August 21, 1990, in File No. 521715273.

   
   

   Are the jurisdictional lines setting forth the geographical area over which DER has permitting authority properly depicted in the Notice of Intent to Issue?

   
   

   Will the proposed project have adverse, cumulative impacts on the drainage flow in the area, as well as other natural resources in the locale?

   
   

   Will more fill be needed to complete the designed project than is represented in the permit application and Notice of Intent to Issue?

   
   

   PRELIMINARY STATEMENT

   
   

   The Petitioners are owners of single family homes in an existing subdivision located to the east of property owned by Respondent Telese for which he is seeking a dredge and fill permit from DER. The permit has been requested to enable the Respondent Telese to fill 0.12 acres of tidal wetlands on the property, and to install culverts in the two conveyance/mosquito ditches that run through the area. These site modifications would enable the Respondent to reconfigure the existing platted subdivision lots at this location, which in turn would make the proposed 12 residential lots more desirable to potential purchasers.

   
   

   In its Notice of Intent to Issue, DER determined that the mitigation requirements set forth in the notice were sufficient to offset the adverse impacts that may be caused by the proposed development to the surrounding area.

   
   

   Petitioners dispute a number of material facts set forth in notice, and question the cumulative impacts of the proposed development on the drainage system and other natural resources of the state in the area. A formal administrative hearing was requested, and the case was referred to the Division of Administrative Hearings.

   
   

   Prior to the commencement of the hearing, Petitioners agreed to allow their attorneys to withdraw from the case. Four representatives of the Petitioners were questioned by the Hearing Officer and were found to be qualified to represent the Petitioners in the proceeding.

   Respondent Telese's Motion to Award Attorney's Fees and Costs are denied as premature. However, the Hearing Officer advised the parties she would act pursuant to the requirements of Section 120.59(6), Florida Statutes, and make the required rulings and recommendations if Petitioners were found to have participated in the proceeding for an improper purpose.

   
   

   During the hearing, Respondent Telese presented two witnesses and two exhibits during the preliminary showing of its entitlement to the permit. These exhibits were offered jointly with DER and were admitted as joint exhibits. One of the witnesses was recalled later in the proceeding to rebut the Petitioners presentation, and leave was granted to the Respondent Telese to file a rebuttal exhibit post-hearing. The third exhibit was admitted without objection as Respondent Telese's Exhibit #3.

   
   

   Two witnesses were called by Petitioners at hearing and eight exhibits were offered. Exhibits #4 and #5 were withdrawn after the Hearing Officer ruled that newspaper and magazine articles would not be considered as reliable evidence when offered to prove the truth of the facts asserted within the publications.

   All other exhibits were admitted, and Petitioners were granted leave to file two exhibits post-hearing. No objections were raised to the additional exhibits, and they were subsequently admitted as Petitioners' Exhibits #9 and #10.

   
   

   A transcript of the proceeding was not ordered. All parties submitted proposed recommended orders by the agreed upon deadline of April 29, 1991. Rulings on the proposed findings of fact are in the Appendix to the Recommended Order.

   
   

   FINDINGS OF FACT

   
   

   1. Background

      
      

      1. Respondent Telese is the owner and developer of Egret Woods Subdivision on real property contiguous to state waters in Pinellas County, Florida. The property is near the incorporated areas of Indian Shores and Largo. A residential subdivision borders the project locale to the east, and tidal mangrove swamps fringe the property to the west. An intracoastal connecting waterway known as the "Narrows" lies to the west of the swamps. These state waters connect Boca Ceiga Bay and Clearwater Harbor. The proposed subdivision area is an upland strip between the existing subdivision and the tidal swamp adjacent to the "Narrows". The uplands are predominantly vegetated by live oak, saw palmettos and slash pines.

         
         

      2. In order to develop the property, and to reconfigure lots from a previously platted subdivision, Respondent Telese applied for a permit from DER to fill 0.12 acres of DER jurisdictional wetlands located at the development site. The application for the permit represents that 340 cubic yards of clean, non-deleterious sandy loam is needed to fill disturbed high marsh areas and other low areas on the proposed lots. Respondent Telese has also requested permission to install culverts in the two conveyance/mosquito ditches that run through the lots before they reach their discharge points outside of the proposed lot lines.

      3. The Petitioners are owners of single-family homes within the subdivision to the east known as Whispering Pines Forest, 5th Addition. These property owners filed a Petition in which they disputed the appropriateness of the Notice of Intent to Issue filed by DER on August 21, 1990. In support of their position, the Petitioners identified a number of areas of controversy they contend should cause DER to reverse its preliminary decision to grant the "dredge and fill" permit on this project.

         
         

   2. Elimination of Natural Drainage

      
      

      1. The first area of controversy is the Petitioners' contention that their interests are substantially effected by the elimination of natural drainage from their subdivision into the uplands referred to as Egret Woods Subdivision. The entire area was owned by the same developer prior to the creation of Whispering Pines Forest 5th Addition. Essentially, the Petitioners allege that a subservient estate was created on these adjacent lands for their surface water drainage purposes which the proposed development eliminates.

         
         

      2. A review of the Notice of Intent to Issue reveals that culverts are to be placed in two of the open conveyance ditches currently transporting surface water runoff from Whispering Pines Forest 5th Addition through the uplands of Egret Woods into the wetlands.

         
         

      3. While this proposed change in the means of conveyance of the surface water may not affect the volume of water conveyed, it could adversely effect the quality of the water at the discharge points into the wetlands.

         
         

      4. At hearing, the Petitioners were unable to clearly articulate their concerns about this water quality issue. However, it is intricately interwoven into the surface water management issues. The water quality concern was obliquely referred to in the Biological and Water Quality Assessment Report where DER's application appraiser commented that the proposed conservation easements and the mitigation plantings, which replace the high marsh removed for lot reconfiguration, are sufficient to offset the potential adverse impacts of the requested fill and culvert changes to the existing water quality at the project site.

         
         

      5. Although this particular water quality issue was properly addressed by DER in its review of the permit application, it was not clearly set forth in the Notice of Intent to Issue. There is no way for a person whose substantial interests are affected by the proposed permitting decision to determine that DER had considered mitigation measures to prevent this adverse effect. A decrease in surface water quality would have been caused by the marsh elimination and the placement of culverts if the marsh had not been replanted, and other mitigative measures had not occurred at the locale.

         
         

      6. The Petitioners properly requested a formal administrative hearing to address surface water management issues as DER's consideration of the matter was not made clear to them in the Notice of Intent to Issue. The written report that discusses water quality as it relates to the mitigation plan was provided to Petitioner's post-hearing, after a copy of the written appraisal was sent to the Hearing Officer and all parties by DER.

   3. Planned Roadway

      
      

      1. The second area of controversy is the Petitioner's concern about the effects of the planned roadway on their properties. As the planned roadway involves the county, it is not a matter considered in the dredge and fill permit. Neither DER nor the Hearing Officer has subject matter jurisdiction. The Petitioners did not pursue this area of controversy or the road location at hearing based upon the Hearing Officer's ruling that it was not relevant to this permit review.

         
         

   4. High Water Mark and the Setting of the DER Jurisdictional Line

      
      

      1. The third area of controversy raised by Petitioners involves their collective concern about a variance in the height of the Mean High Water Line on the property on different documents presented to different agencies. The current survey for DER completed by the surveyor shows the Mean High Water Line at 1.16, while the survey submitted to Pinellas County in 1981 from the same surveyor reads the Mean High Water Line at 1.25. This was explained at hearing by the surveyor. It was his opinion as a professional surveyor that there is no basic difference between these two mean high water lines. Since the survey to the county in 1981, the Mean High Water Line has varied between 3 - 3 1/2 feet in some areas. The same methodology and simple mathematical formula was used by him during the two different surveys which were about eight years apart. The difference in the two surveys is within the tolerance level accepted within the industry and needs no further reconciliation.

         
         

      2. As a correlative issue, Petitioners raise a concern about the change in DER's jurisdictional line on various documents involving this same site over a number of years. DER's jurisdictional lines have changed since the "Hendersons Wetland Act" enacted on October 1, 1984. The jurisdictional line as depicted on this permit application was established by dominant plant species as defined in Rule 17-301.400, Florida Administrative Code, just prior to the application submission. This was the correct way to determine jurisdiction on the property at this particular point in time. Although the mean high water line may have been determinative of DER's jurisdiction on earlier permits, only the current law applies to the facts of this case.

         
         

      3. DER reviewed the jurisdictional lines as depicted on the property by Respondent Telese's consultant and found them to be properly placed during the processing of the permit application.

         
         

      4. Historical DER jurisdictional lines and permit reviews are irrelevant to this permit review as it is based upon the agency's current rules the applicable statutory criteria, and current site conditions.

         
         

   5. Fill Calculations

      
      

      1. The fourth area of controversy involves the Respondent's request to place fill on the site. When Petitioners used an engineer's scale to measure the areas to be filled on the permit drawings, their volume calculations reveal that more fill will be needed than represented on the permit application. Petitioners are concerned that this error could cause DER to approve a permit which does not accurately depict site conditions.

      2. The actual fill calculations were done by the professional engineer with a computer model based upon average elevations, depth and area. In his professional engineering opinion, his calculations were accurate, which was given great weight by the Hearing Officer.

         
         

      3. The drawings used by the Petitioners to calculate the required fill for the area were pictorial communications of what the Respondent Telese intended to accomplish at the site. These drawings were designed for descriptive purposes only and were not scaled to the extent that they could be accurately used for fill calculations in the manner applied by Petitioners. The computer modeling used by the professional engineer was the more prudent approach to the on-site fill requirements.

         
         

   6. De Novo Permit Review

      
      

      1. Although the wetlands resource permit requested by Respondent Telese is commonly referred to as a "dredge and fill" permit, there is no dredging associated with the project. The proposed placement of fill in the high marsh area of tidal wetlands on the property and the culvert placement requires construction activity in Class III Waters.

         
         

      2. Water quality impacts to the area will be a short term problem as water turbidity should take place only during construction. Specific conditions regarding construction techniques have been placed in the permit as permit conditions to minimize the impacts.

         
         

      3. There is no factual dispute as to whether the proposed conservation easement, the replacement and enlargement of the high marsh in another location, the removal of exotics such as Brazilian Pepper trees, and the planting of black mangroves will sufficiently mitigate the adverse impacts on water quality and the public interests at the proposed development.

         
         

      4. Without the replacement of the disturbed high marsh with high marsh plantings at a 1.91:1 ratio, the enhancement of the property through exotic removal, and the conservation easements at a 132:1 ratio, the Respondent Telese is unable to provide reasonable assurances that the project is not contrary to the public interest under the statutory criteria established in Section 403.918, Florida Statutes.

         
         

      5. The proposed project will not adversely affect the public health, safety, or welfare or the property of others. The flooding anticipated by the Petitioners is speculative, and has not been directly related to the fill placement and the culverts in the two conveyance/mosquito ditches.

         
         

      6. Conservation of fish and wildlife and their habitats, will not be adversely affected due to the high marsh replacement and the fact that the area provided only marginal wetland habitat prior to the permit application due to the invasion of exotics at the site. Any impact from the proposed project on this public interest criterion is offset by the mitigation plan.

         
         

      7. The project will not adversely affect fishing or recreational values or marine productivity in the vicinity of the project. The proposed plantings of black mangroves and the removal of exotics, along with the new high marsh swamp should enhance the productivity of the area.

      8. No future projects of a similar nature can be developed at this locale due to the conservation easements the Respondent Telese has consented to provide over the remaining undeveloped property owned by him in the area. These easements will allow the Department to limit and control activities that may be undertaken in these tidal waters to prevent degradation of the site from an environmental standpoint.

         
         

      9. The mitigation planting schedule provides reasonable assurances that water quality standards will not be violated in the area as a result of culvert placement in the two conveyance/mosquito ditches that transport surface water to Class III waters of the state.

         
         

   7. Balancing of Interests

      
      

      1. In the "dredge and fill" permit application appraisal, site review, and Notice of Intent to Issue, DER considered and balanced all of the required statutory criteria to determine that the project is not contrary to the public interest or applicable water quality standards.

         
         

   8. Area of Controversy

1. All of the areas of controversy raised by the Petitioners which are within the Division of Administrative Hearings' jurisdiction, have been sufficiently met by the reasonable assurances of Respondent Telese and the permit conditions required by DER. Based upon the evidence presented at hearing, it is concluded that the harms anticipated by Petitioners will not occur.

   
   

   1. Recommendation Regarding the Assessment of Attorneys Fees and Costs

      
      

2. Petitioners did not participate in this proceeding for an improper purpose. The Notice of Intent to Issue was vague as to how interests were balanced and how the mitigation would offset the adverse impacts that concerned Petitioners. The petition was filed and prosecuted in good faith and addressed legitimate concerns of concerned citizenry who reside on adjacent lands.

   
   

   CONCLUSIONS OF LAW

   
   

3. The Division of Administrative Hearings is not authorized to review any of the matters set forth in the petition which involve the Army Corps of Engineers or matters of zoning. The issuance of the permit must be based solely on compliance with the applicable statutory criteria, administrative rules and case law regarding dredge and fill permits. Council of the Lower Keys v. Charley Toppino and Sons, Inc., 429 So.2d 67 (Fla. 3d DCA 1985). The Division has jurisdiction over the parties and all other matters set forth in the petition pursuant to Section 120.57(1), Florida Statutes.

   
   

4. The Petitioners have standing to dispute the appropriateness of the Notice of Intent to Issue because their substantial interests are affected by the determination that a permit should be issued. The standing requirements is satisfied because Petitioners own land adjacent to the proposed development. Any damage of the water quality and the wetland habitat caused by the proposed project could affect their property and property rights. Hillsboro-Windsor Condo. Ass'n v. DNR, 418 So.2d 359 (Fla. 1st DCA 1986).

5. DER has regulatory authority and permitting jurisdiction over the proposed project pursuant to Sections 403.087 and 403.913, Florida Statutes, and Chapters 17-301 and 17-312, Florida Administrative Code.

   
   

6. When a petition is filed which sets forth areas of controversy regarding a permit, a de novo hearing takes place before a hearing officer. Florida Dept. of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981). During this proceeding, the Respondent Telese established a prima facie case which substantially supported DER's decision to file the Notice of Intent to Issue.

   
   

7. Although the areas of controversy presented by the Petitioners did not address the proposed mitigation, testimony at hearing revealed that DER considered and determined what measures were needed to mitigate adverse affects that may be caused by the project. The measures taken, such as the conservation easement and the marsh relocation, were legally sufficient to offset perceived adverse effects of the project. Section 403.918, Florida Statutes; 1800 Atlantic Developers v. Department of Environmental Regulation, 552 So.2d 946 (Fla. 1st DCA 1989).

   
   

8. A review of the applicable statutory and rule criteria shows that the public and private interests were balanced by DER in this case prior to the issuance of the Notice of Intent to Issue. The evidence presented by Petitioners on the areas of controversy addressed in their petition did not establish that the project was contrary to the public interest once the mitigation was made a permit condition by DER and agreed to by Respondent Telese. Accordingly, there is no legal or rational basis upon which to recommend denial of the permit. Florida Dept. of Transportation, supra.

RECOMMENDATION

Based upon the foregoing, it is recommended:

1. That a Final Order be entered approving Respondent's Telese's dredge and fill permit number 521715273, pursuant to the Notice of Intent to Issue filed August 21, 1990.

   
   

2. That Petitioners should not be assessed attorney fees and costs as they did not participate in these proceedings for an improper purpose.

RECOMMENDED this 28th day of June, 1991, in Tallahassee, Leon County, Florida.

VERONICA E. DONNELLY

Hearing Officer

Division of Administrative Hearings 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 1991.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-7035

Petitioners' proposed findings of fact are addressed as follows:

1. Accepted. See HO #11.

2. Rejected. Does not allow for change in seasons or conditions. See HO #11.

3. Accepted. See HO #11.

4. Accepted. See HO #15.

5. Accepted.

6. Rejected. Not within Hearing Officer's subject matter jurisdiction. Irrelevant to this proceeding.

7. Accepted. See HO #3.

Respondent Telese's proposed findings of fact are addressed as follows:

1. Accepted. See HO #1, #2 and #18.

2. Accepted. See HO #1, #2, #20 and #23.

3. Accepted. See HO #20 and #21.

4. Accepted. See HO #21.

5. Accepted. See HO #22 - #27.

6. Accepted. See HO #13 and #16.

7. Denied. Contrary to fact. See HO #4 - #17.

DER's proposed findings of fact are addressed as follows:

COPIES FURNISHED:

Ines D. Degnan

8410-144th Lane North Seminole, Florida 34636

David R. Chirington 8400-144th Lane North Seminole, Florida 34646

Alton Jeffcoat

8340-144th Lane North Seminole, Florida 34646

Carol B. Newton

8450-144th Lane North Seminole, Florida 34646

Steven M. Siebert, Esquire JOHNSON BLAKELY POPE BOKOR

RUPPEL & BURNS, P.A.

911 Chestnut Street

Clearwater, Florida 34616

W. Douglas Beason, Esquire Assistant General Counsel

Department of Environmental Regulation 2600 Blairstone Road

Tallahassee, Florida 32399-2400

Daniel H. Thompson, Esquire General Counsel

Department of Environmental Regulation 2600 Blairstone Road

Tallahassee, Florida 32399-2400

Carol Browner, Secretary

Department of Environmental Regulation 2600 Blairstone Road

Tallahassee, Florida 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: 90-007035

Orders for Case No: 90-007035