STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STEPHEN J. DIBBS, )

)

Petitioner, )

)

vs. )

) DEPARTMENT OF ENVIRONMENTAL ) PROTECTION )

) CASE NO. 94-5409

Respondent. )

and )

) BOOKER CREEK PRESERVATION, INC., )

)

Intervenor. )

)

RECOMMENDED ORDER

A hearing was held in this case in Tampa, Florida on December 6 - 8, 1994, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: E. Gary Early, Esquire

Akerman, Senterfitt & Eidson, P.A.

216 South Monroe Street, Suite 200 Post Office Box 10555

Tallahassee, Florida 32302-2555

John W. Wilcox, Esquire

Akerman, Senterfitt & Eidson, P.A. Post Office Box 3273

Tampa, Florida 33601-3273

For Respondent: W. Douglas Beason, Esquire

Department of Environmental Protection 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

For Intervenor: Thomas W. Reese, Esquire

2951 61st Avenue South

St. Petersburg, Florida 33712 STATEMENT OF THE ISSUES

The issue for consideration in this hearing is whether Petitioner, Stephen

J. Dibbs, should be issued a permit by the Department of Environmental Protection to fill 2.014 acres of jurisdictional wetlands on his property

located at the intersection of North Dale Mabry Highway and Hoedt Road, Hillsborough County, as applied for in permit application No. 292103383.

PRELIMINARY MATTERS

By amended application dated April 26, 1994, Petitioner, Stephen J. Dibbs, (Dibbs), sought authority from the Department of Environmental Protection, (Department), to fill approximately 2.014 acres of his property located as described above in Hillsborough County, which application included a proposal for mitigation. On August 19, 1994, the Department entered its intent to deny Mr. Dibbs' application and Petitioner thereafter sought a formal hearing on the matter. In November, 1994, Booker Creek Preservation, Inc., (Booker), successfully sought to intervene, and this hearing ensued.

Mr. Dibbs testified in his own behalf and presented the testimony of Hung

T. Mai, a registered professional engineer with an emphasis in commercial real estate development and storm water handling; Timothy L. Neldner, a consultant and expert in wetlands resource assessment, permitting and mitigation; Frank R. Mudano, a registered architect and expert in retail commercial center design, development and operation; Kenneth Huntington, an employee of the Department's environmental resources permitting section (formerly dredge and fill); and Dr. Richard D. Garrity, District Director of the Department's Lakeland district. Petitioner also introduced Petitioner's Exhibits 1 through 8 and 10 through 31. Petitioner's Exhibit 9 for Identification was objected to on the basis of relevancy. Ruling was withheld, and after due consideration, the objection is sustained.

Respondent also presented the testimony of Mr. Huntington, who was qualified as an expert in wetlands resource assessment, permitting and mitigation, and of Michael McElveen, a real estate consultant and expert in commercial real estate development and evaluation. Respondent also introduced Respondent's Exhibits A and C through E. Intervenor introduced no witnesses or exhibits.

A transcript of the proceedings was provided and subsequent to the hearing, all three parties submitted proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. The Department of Environmental Protection is the state agency responsible for permitting involving water quality and the dredging and filling of wetlands as defined in Chapter 403, Florida Statutes.

   
   

2. Petitioner, Stephen J. Dibbs, owns 20.03 acres of land located at the southeast corner of the intersection of Dale Mabry Highway with Hoedt Road, north of Tampa in Hillsborough County, Florida. The property consists of 11.27 acres of non-jurisdictional uplands and 8.76 acres of forested jurisdictional wetlands which divide the property somewhat diagonally in a northwest to southeast direction. There are uplands along the entire western boundary of the property along Dale Mabry Highway and Zambito Road, as well as in the southwestern portion of the property. The property is surrounded by commercial, residential and multifamily development and is zoned by Hillsborough County for commercial use.

   
   

3. The deeper portions of the wetlands area are dominated by cypress trees and the transitional wetlands areas include laurel oak, American elm, red maple

   and dahoon holly. These wetlands currently provide habitat for fish and other wildlife and provide for water storage and treatment. This is a high quality forested wetlands which performs the valuable wetlands functions outlined above. It is subject to the Department's permitting procedures.

   
   

4. Mr. Dibbs purchased the property in 1989 knowing at the time of purchase that jurisdictional wetlands were located thereon as defined by a previously conducted Departmental jurisdiction determination. He also knew that at the time of purchase there was no vehicular access/egress to the property via Hoedt Road.

   
   

5. On April 26, 1994, Mr. Dibbs submitted a revision to his previously submitted application No. 292103383 for a permit to fill a portion of the wetlands on his property described above. Thereafter, on August 19, 1994, the Department issued its Intent to deny the requested permit and on August 31, 1994, Mr. Dibbs filed a timely Petition to contest the agency action.

   
   

6. The parties agree, and it is found, that:

   
   

   1. The subject project does not occur within an Outstanding Florida Water.

   2. The project will not negatively

      impact any threatened or endangered species.

   3. The project will not adversely affect navigation or the flow of water or cause harmful erosion or shoaling.

   4. The project will not adversely affect significant historical and archaeological resources,

      
      

7. Mr. Dibbs proposes to fill 2.014 acres of wetlands located at the western end of his property. The impacts to this filled parcel will be permanent in nature.

   
   

8. The project, as originally envisioned in the March, 1992 application by Mr. Dibbs, called for the filling of approximately 4 acres of wetlands for a large commercial development and a "Par 3" golf course. In the permitting process, the Department must first determine if the project is in the public interest, and the cumulative impact of the proposed project is a part of that public interest determination. Efforts at minimization of the proposed project's impact on the wetlands are made at that time and the applicant's proposal for mitigation cannot be considered until he has established he cannot otherwise meet the statutory standards by minimizing the proposed impacts to wetlands by avoiding them or by reducing the amount of wetlands area impacted.

   
   

9. In the course of negotiations with and at the request of the Department, Mr. Dibbs modified the project to eliminate the golf course and reduce the size of the commercial development, which resulted in a decrease in the amount of fill from approximately 4 acres to the presently sought 2.014 acres.

   
   

10. As a part of the permitting process, and in support of mitigation efforts, the Department suggested five modifications to Mr. Dibbs which it felt would make the project permittable. These were:

    
    

    1. Further minimization of wetlands impacts by a re-orientation of buildings, roads and parking areas/spaces or a reduction in the

       number of commercial sites to allow the remaining operations to be better fitted into

       available uplands with less spill-over into wetlands.

    2. Limitation of impact to the fringe areas of the wetlands rather than the interior.

    3. Investigating the feasibility of moving the Pier One Import or any other facility back from Dale Mabry and turning Chick-Fil-A and

       China Coast sideways to lesser their direct impacts.

    4. Maintain the concept of vertical retaining wall use along the wetlands construction line as proposed.

    5. Mitigate for the reduced wetlands encroach- ments at a creation ratio of 1.5:1 with tree spade transplants at 15 foot centers, interplanted with

    3 gallon or larger pot plants to create a 10'X10' overall plant spacing, and the dedication of the mitigation area and all remaining wetlands to the Department in a perpetual conservation easement.

    
    

11. Of these proposals, the vertical retaining wall, (4), and the submission of a mitigation plan, (5), were part of Petitioner's April, 1994 modification. There remains, however, some resistance to the dedication of the wetlands and mitigation area by a perpetual easement. The Department admits that the turning of the Chick-Fil-A and China Coast facilities sideways is not practicable. Since the remaining suggestions essentially involve eliminating two of the four commercial sites, Mr. Dibbs, determining that such action would render the development economically infeasible, rejected those suggestions.

    
    

12. The Department suggested modifications to the Dibbs project which limited the wetlands fill to approximately 0.5 to 0.7 acres by having only two restaurants with a truck access from Hoedt Road. While there is an issue as to the economic viability of the Department's suggestion, that suggestion is practicable from an engineering standpoint, notwithstanding the opinion of Mr. Mai, Petitioner's expert. It would also meet both the parking requirements of the Hillsborough County Land Development Code and the corporate requirements of General Mills, the owner of such mid-priced sit-down restaurants as Olive Garden and China Coast, as proposed here.

    
    

13. Nonetheless, after Petitioner's initial application was filed in 1992, consistent with the Department's mitigation suggestions, Mr. Dibbs did make certain modifications to the proposed project in an effort to minimize its impact on the environment. This accounted for the elimination of the previously considered miniature golf course and a reduction in size of the development which reduced the required amount of fill from 4 acres to 2.014 acres. The project, as described in the current application under consideration, is what Petitioner considers the smallest the project can be made and still be economically feasible.

    
    

14. As presently envisioned by Petitioner, the development project will encompass approximately 8 acres and will include four (4) freestanding commercial facilities, including two sit-down restaurants, an Olive Garden Restaurant and a China Coast Restaurant; a fast food restaurant, Chick-Fil-A; and a retail facility, Pier One Imports, all along the western boundary of the property fronting Dale Mabry Highway and Zambito Road.

15. The Chick-Fil-A would be located in the northwest corner of the development almost entirely on what is presently forested wetlands. The Pier One Imports store would be on what is presently forested wetlands, south of the Chick-Fil-A and north of the China Coast restaurant which, itself, would involve some impacts to forested wetlands. The Olive Garden restaurant would be located on the southwest corner of the property south of the China Coast. It is the only building in the proposed development which would not involve some wetlands impact. Due to the length of time involved so far in obtaining permits for the development, both Pier One and General Mills, the parent for China Coast and Olive Garden, have withdrawn their agreements with Mr. Dibbs to utilize his property though they remain interested in them. At one point, General Mills offered Petitioner $1.6 million for the Olive Garden and China Coast properties.

    
    

16. Mr. Dibbs has entered discussions with other prospective tenants but all have space requirements similar to those envisioned in the present planned development. He has found, generally, a greater demand for space than there are sites available. These space requirements convince him that the minimum encroachment that would satisfy his development plans is the 2.014 acres proposed. Any further reduction in encroachment would result in a need to change the development proposal which, Mr. Dibbs claims, would negate the economic viability of the development.

    
    

17. In order for minimization to be effective and not inappropriate, it must result in the applicant still having a project which is economically viable. Economic viability means that the estimated value of the project as completed under minimization would be equal to or exceed its estimated cost. The Department's evidence tends to indicate that a project limited to an Olive Garden restaurant and a China Coast restaurant would be economically viable. Further, the Department contends that same evidence indicates that a commercial project limited to the two out parcels, at the southern portion of the project site would also be economically viable and profitable, if not as profitable as

    Petitioner originally anticipated. That contention has not been shown to be so.

    
    

18. Dr. William C. Weaver, Barnett Professor of real estate and business valuation at the University of Florida and a forensic economist, utilizing figures provided by Petitioner, by deposition indicated that Petitioner had, as of the date of the testimony, incurred development costs totaling $746,000. Weaver also estimated that fill costs for the project as modified would be an additional $100,000. Wetlands replacement and monitoring, (mitigation) would cost an additional $100,000, and the cost of obtaining access to Hoedt Road would be an additional $100,000.

    
    

19. For the purposes of calculating a rate of return, Dr. Weaver assumed the development would be limited to the two parcels on the southern portion of the site, with access to Hoedt Road down the length of the site in some manner. These sites, he concluded, have a present value of $850,000 even though not all costs have as yet been incurred. Future development of the two parcels would, in Weaver's estimation, result in a value for the project of $1.6 million. The rate of return, then, with a present value of $850,000 and a future value of

    $1.6 million, would be approximately 9.5 percent to 10 percent. If an additional sum of $200,000 for fill and mitigation is figured in, Dr. Weaver opines the Petitioner's rate of return would still be in the 9.5 percent to 10 percent range. Accepting Dr. Weaver's analysis and the cost estimates on which it is based, for the purpose of argument, then the project, modified as proposed by the Department, would be profitable. It should be noted here that the cost figures utilized by Dr. Weaver in his calculation were those provided by Petitioner.

20. There is a high demand for commercial property in the vicinity of Petitioner's proposed project. Petitioner's site is one of the few remaining undeveloped parcels in the north Dale Mabry corridor, a high per capita income area which constitutes a market area encompassing a three to five mile radius from the property. Even with Pier One and General Mills pulling out, there is evidence that another restaurant chain, Golden Corral, has offered to construct a restaurant on the southern portion of the property.

    
    

21. The western edge of the property, for the most part, abuts Dale Mabry Highway with the exception of a small section to the south which abuts Zambito Road. Zambito Road, a two-lane, county maintained, road extends northward from Ehrlich Road to a point where it merges with the northbound lanes of Dale Mabry Highway, at that point a twelve lane divided state highway. Vehicular access and egress to and from the proposed project would be, in part, via Zambito Road. Northbound traffic on Dale Mabry could enter the project by turning right, an access presently approved by the Department of Transportation. As presently designed and approved, however, the Dale Mabry entrance would be a narrow and difficult access for service vehicles.

    
    

22. Patrons could exit the project into the northbound lane of Dale Mabry only by a right hand turn, and only if a change in permitting by the Department of Transportation would allow access onto Dale Mabry. That access would not involve any wetlands impact and this proposal is the subject of a current application to the Florida Department of Transportation on which administrative hearing is currently pending. If and when approved, any access or egress from or to Dale Mabry, calls for a fifty foot turning radius.

    
    

23. Another source of access to and egress from the project can be via Hoedt Road, a two lane road maintained by the county, which runs east and west north of Petitioner's property line and to which Petitioner currently has no legal right to vehicular access. The intersection of Hoedt Road and Dale Mabry Highway is controlled by a signal light and is located to the north of the northwest corner of the proposed development. Petitioner expects to purchase rights to vehicular access to his development from Hoedt Road from the owner of the narrow strip which runs between the road and the northern boundary of the property.

    
    

24. The proposed access-egress point would be located along the northern property line approximately 230 feet due east of the Hoedt/Dale Mabry intersection. Through this access, a customer traveling north on Dale Mabry could enter the development by turning right onto Hoedt Road while a customer travelling south on Dale Mabry would do so by turning left, (east), onto Hoedt Road. In both cases, the customer would then turn right, (south), into the development. A customer leaving the development via the northern access would turn either north or south onto Dale Mabry at its intersection with Hoedt Road. The Hoedt Road access point would be the primary means of access-egress for semi-trailers/commercial vehicles servicing the businesses in the development. The existing site plan provides for these vehicles to proceed directly behind the buildings for service.

    
    

25. A third access-egress point exists or could exist off of Zambito Road at the southwest corner of the property. A customer northbound on Zambito Road could make a right turn into the proposed development or could exit the development by turning either left or right onto Zambito, the former heading south on Zambito and the latter travelling north a short distance to where Zambito joins with Dale Mabry. This access could, with modification of the

    development plan, allow a semi-trailer to enter and exit the site from onto Zambito Road to provide service to the businesses situated on the site. Mr. Dibbs finds this an unacceptable arrangement, however. He claims the Zambito Road entrance is a difficult intersection since it is not served by a traffic signal.

    
    

26. As currently designed, the existing plan calls for a total of 430 parking spaces while the county only requires a minimum of 344 spaces for the four businesses. The parking scheme as proposed was considered necessary to meet the requirements expressed by Mr. Dibbs' proposed tenants. It is likely that other, substitute, tenants would have similar parking requirements. The Department has proposed a modification to Petitioner's development plan which would eliminate approximately 30 parking spaces proposed. This would still provide a number of parking spaces sufficient to meet both the county's minimum requirements and the reasonable requirements of proposed tenants.

    
    

27. The Department has suggested that access to the development by commercial vehicles be by the Hoedt Road entrance. It would modify the access road in such a way that it would "snake" around the existing wetlands. This would, however, result in a commingling of semi trucks, smaller delivery vehicle, and customer vehicles within the interior of the development and this would not be desirable either from a safety or a business standpoint. Ease of access, as opposed to mere access, has, in the past, been considered by the Department as a valid evaluator of practicability. For this reason, and based on many of the access considerations mentioned above, Petitioner's engineering expert, Mr. Mai, considered that access from Hoedt Road must, of necessity, be straight in to the back of the buildings, and, assuming there are to be the four buildings as proposed, this position is unrebutted by the Department. Elimination of the Hoedt Road access would be impractical.

    
    

28. Another factor to be considered on the issue of the economic practicability of minimization is that of visibility. Commercial enterprises generally must be visible to draw customers so as to be economically viable. Dale Mabry Highway is a high volume thoroughfare. The businesses on the development, medium price sit-down restaurants and an import store, all of a chain variety, cater not only to a destination oriented clientele but also to a spontaneous clientele as well. It is imperative, therefore, that these businesses be able to be seen from Dale Mabry.

    
    

29. Petitioner claims that the elimination of the two northern commercial sites as a part of minimization would adversely affect the visibility of the two remaining sites. First, he claims, the cypress stand in the northwest portion of the wetlands would interfere with the vision of those coming down from the north. He also asserts that potential customers proceeding in a southerly direction on Dale Mabry would not be able to see the remaining businesses in enough time to make an entrance choice at Hoedt Road. They would, therefore, have to proceed south on Dale Mabry for a significant distance to the next signal, turn east and proceed to Zambito Road, and turn north again to come up Zambito Road to either an access point on the far south end of the property or to the turn right off the northbound lane of Dale Mabry. Taken together, these factors and the reduction in the number of businesses on the development site would discourage customer use, and in the opinion of Petitioner's economist and development consultant, would result in the two remaining businesses not surviving more than one year. This point appears well taken.

    
    

30. The Department has also suggested that Petitioner replace pavement parking at the site with grassed parking; grade the landscape strips and parking

    medians for storm water treatment; utilize porous concrete for parking; utilize vertical as opposed to sloped retaining walls: and provide mitigation at a 1.5:1 ratio. The use of grassed parking was rejected on the basis of a safety hazard to women wearing high heeled shoes. The other suggestions were accepted by Petitioner.

    
    

31. Some consideration was given to the fact that the property owned by Mr. Dibbs at this site includes 5.12 acres of uplands at the northeast corner of the property of which at least one acre would be needed for the proposed use as the mitigation area. The northern property line runs almost due east 1309.04 feet. The most westward point of the northeast uplands crosses the northern property line just about half way back from Dale Mabry Highway. The uplands in question is currently zoned for one single family home per acre but if re-zoned might provide for two homes per acre. The surrounding land use, however, makes re-zoning unlikely. In addition, access to that property is unavailable unless a road were to be built across the wetlands from Dale Mabry. The cost of this road construction, the additional land needed for mitigation of the wetlands used for the road, and the cost of development infrastructure would make it impracticable to use the back uplands for anything.

    
    

32. The term "economic justification" as construed by the Department includes the access, visibility and parking consideration previously discussed in addition to other regulatory requirements and like issues. The Department has taken the position that any type of economic return on investment or cost benefit analysis is not an appropriate consideration in a permitting decision. Petitioner contends that the additional minimization suggestions proposed by the Department, when considered in the context of engineering, safety, design and development, and the minimal potentiality for continued viability of any business located on the property encumbered by those suggestions, are not practicable. The failure of the Department to consult with its staff economist regarding this project, and the paucity of demonstrated departmental familiarity or experience with economics, at least among permitting personnel, may lend some credence to this argument.

    
    

33. The Department has, until now, followed a policy of consistency in treating applications similar to the instant application. Generally, requests for minimization include such items as vertical retaining walls, use of porous concrete, bridges, culverts and other matters, all of which fall short of requiring actual redesign of the proposed project. In the instant case, the Department proposes the elimination of approximately 50 percent of the project as minimization before considering mitigation.

    
    

34. Turning to the issue of mitigation, notwithstanding the predictions of success by Petitioner, it appears that only the smallest part of any mitigation attempted is successful in the long run, and that for the most part, wetlands lost through dredging and filling is not replaced. Nonetheless, the parties, including the Department, continue to work within the fiction that mitigation can compensate for the destruction of existing wetlands when an applicant is otherwise unable to meet the criteria set forth in the statute. There can be little doubt that this project, as applied for, may adversely affect habitat and their wetlands functions of storm water attenuation, treatment and storage. It is of a permanent nature.

    
    

35. The purpose of mitigation is to offset the impact of development. Whereas here the Department has indicated that only 3.021 acres of mitigation wetlands need be created to offset the 2.014 acres of wetlands destroyed, a 1.5:1 ratio, Petitioner proposed to create 4.49 acres of new wetlands, a 2.25:1

    ratio without the suggested conservation easement. The proposal submitted by Petitioner, he believes, will be successful. This remains to be seen and success is not at all guaranteed. Presuming success, however, for the sake of discussion, the mitigation site will be directly adjacent to and contiguous to existing wetlands and immediately will be come a part of and subject to Department wetlands regulatory jurisdiction. If successful, the proposed mitigation would offset the adverse impacts of the project.

    
    

36. Still another area for consideration is that concerning storm water runoff. Storm water is currently collected from Dale Mabry Highway and drains into a ditch paralleling Petitioner's highway frontage. From there, the water ultimately flows into the wetlands on his property. The current Department of Transportation system affords no treatment to the storm water before it is released onto the Petitioner's property. This storm water can reasonably be expected to contain oils, greases and other contaminants.

1. Petitioner has proposed to include in his project a system designed to treat this highway runoff and improve its quality before it is released into the waters of the state. This system will treat the water by percolate, removing approximately 80 percent of the pollutants. In addition to treating and improving storm water runoff, the system proposed by Mr. Dibbs should provide a higher degree of water storage than currently exists for a net improvement to the environment over existing conditions.

   
   

2. Taken together, Petitioner contends the above matters indicate there will be no adverse cumulative impacts resulting from the granting of the permit. There is some indication that the higher mitigation ratio offered by Petitioner could become a precedent for other similar projects. If that were to be the case, the resulting cumulative impact would be a positive rather than negative factor. Nonetheless, it is clear that future applications must stand on their own merit and independently stand the scrutiny of the cumulative impact test, as must the instant application.

   
   

3. Turning to the conservation easement suggested by the Department as a condition of approval, the agency contends such an easement would allow it to reduce its requirement for mitigation from a 1.5:1 ratio to a 1:1 ratio. The Department has held in the past, it is suggested, that an applicant's agreement to provide more than the minimum acceptable mitigation can justify the lack of an easement. Mr. Dibbs contends here, and it would so appear, that his agreement to provide more than the required amount of mitigation, when coupled with the fact that the mitigated area will be a part of the Department's wetlands permitting jurisdiction, obviates any need to provide a conservation easement either to offset any adverse impact or to protect against adverse cumulative impact of the project.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

   
   

5. In Petitioner's Amended Petition for Formal Hearing, filed in September, 1994, he cites the provisions of Sections 403.918(2) and 403.919, Florida Statutes for the criteria relative to the approval of wetlands permits. The initial permit application was filed by Petitioner in early 1992, but he filed a revised application, substantially reducing the amount of wetlands to be impacted, in March, 1994. In the interim, the Florida Legislature moved the

   permitting authority from Chapter 403 to Chapter 373, Florida Statutes, and in his request for relief, contained in the Petition, Petitioner also cites the provisions of Section 373.414, Florida Statutes. Since the amended application was filed after the legislative change, this matter will be treated herein under the provisions of Chapter 373.

   
   

6. The Department's dredge and fill permitting jurisdiction pertaining to this application is defined in Chapter 373, Florida Statutes, 1989. Section 373.414(1), Florida Statutes, requires applicants for wetlands projects to provide reasonable assurances that their project will comply with state water quality standards as defined in section 403.031(13). Section 373.414(1), Florida Statutes, also requires the applicant to provide reasonable assurances that the project is not contrary to the public interest, and lists seven factors to consider in determining this. The test for determination of public interest must be completed before any consideration of the mitigation proposed by the applicant. (See Section 373.414(1)(b), Florida Statutes.

   
   

7. As a part of the public interest review, a determination of cumulative impact the project may be expected to have on the wetlands area is made utilizing the 373.414(1)(a) criteria. These include:

   
   

   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 archaeolo- gical 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.

1. Section 373.414(1)(b) provides that only if it is determined the applicant is unable to otherwise meet the criteria of that subsection by minimizing the proposed impacts to wetlands by avoiding them or reducing the size of the wetlands affected can the Department, in determining whether to grant or deny a permit, consider mitigation measures proposed by the applicant.

   
   

2. In simple terms, then, the issue is this. Has Petitioner adequately minimized his project. If so, and only then, and if it still, as minimized, cannot satisfy the public interest test, efforts at mitigation may be considered.

   
   

3. The Department has implemented rules which outline Departmental policy on the permitting of activity in wetlands. In essence, an applicant must

   reasonably demonstrate that the proposed diminishment of wetlands by his project is in the public interest. Department rule 17-312.060(10) also outlines the procedure by which it determines whether the application meets the statutory criteria outlined previously. If it determines that the application fails to meet these criteria, it may suggest modifications to the project that "may" bring the project into compliance. Thereafter, the applicant responds to the Department as to whether these suggested modifications are "practicable" and whether they will be implemented, but modification shall not include not implementing the project in some form. The Department may reject modifications. The burden to prove that a project cannot be further modified rests with the applicant. Here, the Department has taken the position that further reduction in the scope of the project, which will reduce the amount of impacted wetlands from 2.014 acres to 0.5 or 0.6 acres, by eliminating at least two of the business sites, is practicable. Petitioner claims it is not.

   
   

4. The term "practicable", as used in the rule is not defined therein. However, it has been addressed by the Department in a non-rule policy statement incorporated in its Order of Remand in VHQ Development, Inc. v. Department of Environmental Protection, DOAH Case No. 92-7456. In that Order, the Department takes the position that is must consider mitigation if the applicant is "unable to otherwise meet" the water quality and public interest criteria of the statute, but the applicant cannot refuse to consider modifications to its proposed project. In other words, the Department contends that "unwilling" is not equated with "unable".

   
   

5. "Practicable", as utilized by the Department, means that the applicant must consider modifications which reasonably avoid and minimize impacts to wetlands and which permit him to develop a project which is "capable of being used" in a profitable manner, not necessarily the highest and best use of the land. A modification is practicable, according to the Department, if future benefits of developing the modification are greater than the normalized prudent and typical costs to a developer or investor for such a project. The Department relies on the decision in Motel 6 Operations L.P. v. Department of Business Regulation, 560 So2d 1322, 1323 (Fla. 1DCA 1990), as standing for the proposition that the Department's interpretation of its governing statutes and rules must be upheld unless clearly erroneous. One cannot reasonably argue with that position.

   
   

6. Petitioner claims the department cannot determine whether the wetlands impacts have been minimized. Clearly, this is not so. Petitioner also claims the Department should not be able to determine the rate of return on his investment. In that contention, Petitioner's point is well taken.

   
   

7. In support of that contention Petitioner claims that development of the two out parcels will not enable him to recoup all of the costs incurred in purchasing the property and going forward with the proposed development. While clearly the Department's permitting decisions cannot be driven by a developer's expectations of development, by the same token, the Department's rules recognize that economic considerations play a part. In this case, Petitioner has, at the request of the Department, reduced his original project, which was not unrealistic in its concept, from 4 acres of wetlands impact to 2.014 acres of wetlands impact. The Department wants him to reduce it even further to 0.5 or

   1. acres of wetlands impact and, while doing so, reduce the magnitude of his project by at least half. Thereafter, Respondent would have a project with impact slightly over 10 percent of that initially envisioned but whose continuing life span is tenuous at best. This results in an unwarranted economic determination which is not within the prerogative of Department

      officials to make. Clearly, it is not practicable for Petitioner to reduce the size of his project below that which is applied for in the amended application, notwithstanding the conclusions drawn by Dr. Weaver.

      
      

8. The project, as currently programmed, cannot meet the criteria for approval of the permit. Therefore, consistent with the provisions of Section 373.414(1)(b), the Department, in deciding to grant or deny the permit, may, and shall, consider measures proposed by Petitioner to mitigate the adverse effects which may be caused by his project. The evidence of record raises the strong probability that, if successful, the mitigation proposed by Petitioner will enhance and improve the quality of storm water running off his property. This matter may be considered by the Department.

   
   

9. There was little, if any, non-speculative evidence regarding any negative cumulative impact arising from approval and construction of Petitioner's project. Petitioner proposes mitigation at possibly a 2.25:1 ,but certainly no less than a 1.5:1 ratio. If successful, this indicates there will be a positive rather than negative impact on the area. The testimony as to the historic lack of success of mitigation efforts has little bearing on this determination, however. The Department has presumed the success of mitigation efforts.

   
   

10. The Department has also suggested that Petitioner should subject the remaining wetlands, both the original and the mitigated, to a conservation easement. The evidence of record indicates that the remaining original wetlands is jurisdictional, and the created mitigation wetlands, connecting as it will to the remaining original area, will also be jurisdictional. Any such easement would not increase protection to the environment and would be unnecessary.

    
    

11. In addition, Rule 62-312.3702(2), F.A.C. authorizes the requirement for a conservation easement over created wetlands only when such wetlands would be outside Department permitting jurisdiction. That is not pertinent here.

RECOMMENDATION

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

RECOMMENDED that Permit No. 292103383, to dredge and fill 2.014 acres of jurisdictional wetlands in Hillsborough County, Florida be issued to Petitioner herein, Stephen J. Dibbs, subject to mitigation herein at a rate of no less than 1.5:1 and under such lawful and pertinent conditions as may be specified by the Department.

RECOMMENDED this 20th day of February, 1995, in Tallahassee, Florida.

ARNOLD H. POLLOCK

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 1995.

APPENDIX TO RECOMMENDED ORDER

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

FOR THE PETITIONER:

1. - 4. Accepted and incorporated herein.

1. & 6. Accepted and incorporated herein.

   7.	-	11.	Accepted	and	incorporated herein.
   12.	&	13.	Accepted	and	incorporated herein.
   		14.	Accepted	and	incorporated herein.
   		15.	Accepted	and	incorporated herein.
   16.	-	18.	Accepted	and	incorporated herein.
   		19.	Accepted	and	incorporated herein.
   		20.	Accepted	and	incorporated herein.

   1. First two sentences accepted. Balance is restatement of testimony.

   2. & 23. Accepted.

      1. Not a Finding of Fact but more a comment on the evidence.

         25.	&	26.	Accepted and incorporated herein.
         		27.	Accepted.
         28.	&	29.	Accepted and incorporated herein.
         		30.	Not a Finding of Fact but a comment on the evidence.
         31.	&	32.	Accepted.
         		33.	Accepted and incorporated herein.
         34.	-	36.	Accepted.
         		37.	Accepted.
         38.	-	40.	Accepted and incorporated herein.
         		41.	More a Conclusion of Law than a Finding of Fact.
         		42.	Accepted and incorporated herein.
         43.	-	45.	Accepted.
         		46.	Accepted and incorporated herein.
         		47.	More a Conclusion of Law than a Finding of Fact.
         48.	&	49.	Accepted and incorporated herein.
         50.	-	53.	Accepted and incorporated herein.
         		54.	More a Conclusion of Law than a Finding of Fact.
         55.	-	57.	Accepted.
         		58.	Accepted and incorporated herein.
         		59.	More a Conclusion of Law than a Finding of Fact.
         60.	&	61.	Accepted but redundant.
         		62.	Not a Finding of fact but a Conclusion of Law.
         63.	-	65.	Accepted but redundant.
         		66.	Accepted and incorporated herein.
         67.	-	69.	Accepted.
         70.	-	74.	Accepted.
         75.	-	81.	Accepted and incorporated herein in substance.
         82.	&	83.	Accepted.
         84.	-	88.	Accepted.

         FOR THE		RESPONDENT:
         1.	- 9.	Accepted	and	incorporated	herein.
         10.	& 11.	Accepted	and	incorporated	herein.
         12.	- 15.	Accepted.
         16.	- 18.	Accepted	and	incorporated	herein.
         19.	- 26.	Accepted	and	incorporated	herein.
         27.	- 30.	Accepted	and	incorporated	herein.
         31.	- 34.	Accepted	and	incorporated	herein.
         35.	- 39.	Accepted.
         40.	- 48.	Accepted	and	incorporated	herein.
         49.	& 50.	Accepted	and	incorporated	herein.
         51.	& 52.	Accepted.
         53.	- 60.	Accepted.
         61.	- 64.	Accepted	and	incorporated	herein.
         		65.	Rejected	as contra to the	better evidence.
         66.	-	69.	Accepted	and incorporated	herein.
         		70.	Rejected	as contra to the	better evidence.
         71.	&	72.	Accepted.
         73.	-	75.	Accepted.
         76.	-	81.	Accepted.
         82.	-	87.	Accepted
         		88.	Accepted	and incorporated	herein.
         89.	&	90.	Accepted	and incorporated	herein.
         91.	&	92.	Rejected	as contra to the	better evidence.
         		93.	Accepted	and incorporated	herein.
         94.	-	96.	Accepted	and incorporated	herein.
         97.	&	98.	Accepted.
         		99.	Accepted	and incorporated	herein.
         100. &	101. 102.	Rejected. Accepted	as Department's definition.
         		103.	Not proven.
         104.	-	106.	Not relevant to ultimate issue.
         107. 120.	- -	119. 124.	Not a proper Finding of Fact but a restatement the testimony of a witness. Accepted as stipulated facts.			of

         
         

         FOR THE INTERVENOR:

         
         

         1. Noted.

         2. Accepted.

         3. - 9. Accepted.

1. - 14. Accepted.

   1. Not a proper Finding of Fact but a conclusion as to the legal sufficiency of the evidence.

   2. - 21. Accepted as statements of the Department's non-Rule policy.

      22.	-	24.	Accepted and incorporated herein.
      		25.	Accepted.
      		26.	Accepted.
      27.	&	28.	Accepted.
      		29.	Rejected.
      30.	&	31.	Accepted.
      		32.	Accepted.
      		33.	Rejected.
      		34.	Accepted.
      		35.	Not proven.

      1. Accepted.

      2. Accepted.

      3. & 39. Rejected.

         1. Accepted as the witness' opinion.

         2. Accepted.

         3. - 45. Accepted and incorporated herein.

46. Accepted.

COPIES FURNISHED:

E. Gary Early, Esquire

Akerman, Senterfitt & Eidson, P.A.

216 South Monroe Street, Suite 200

P.O. Box 10555

Tallahassee, Florida 32302-2555

John W. Wilcox, Esquire

Akerman, Senterfitt & Eidson, P.A. Post Office Box 3273

Tampa, Florida 33601-3273

W. Douglas Beason, Esquire Department of Environmental

Protection

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Thomas W. Reese, Esquire 2951 61st Avenue South

St. Petersburg, Florida 33712

Virigina B. Wetherell Secretary

Department of Environmental Protection

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Kenneth Plante General Counsel

Department of Environmental Protection

2600 Blair Stone 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 consult with the agency which will issue the Final Order in this case concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency which will issue the Final Order in this case.

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF ENVIRONMENTAL PROTECTION

STEPHEN J. DIBBS

Petitioner,

vs. DOAH CASE NO. 94-5409

OGC CASE NO. 94-2844

DEPARTMENT OF ENVIRONMENTAL PROTECTION

Respondent,

and

BOOKER CREEK PRESERVATION, INC.,

Intervenor.

/

FINAL ORDER

1. BACKGROUND

   
   

   This case involves an application by Stephen J. Dibbs ("Dibbs") to the Department of Environmental Protection ("Department") for a dredge and fill permit to fill 2.014 acres of high quality forested wetlands for the development of a commercial site located at the intersection of North Dale Mabry Highway and Hoedt Road, Hillsborough County, Florida, as applied for in permit application No. 292103383. Dibbs owns 20.03 acres of land at the site. The property consists of 11.27 acres of uplands and 8.76 acres of high quality forested jurisdictional wetlands. The deeper portions of the wetlands are dominated by cypress trees, and the transitional area of the wetlands includes laurel oak, American elm, red maple and dahoon holly. The wetlands currently provide valuable habitat for fish and other wildlife, and also provide for water storage and treatment. Dibbs originally proposed to fill 4 acres of the wetlands. At the request of the Department, Dibbs subsequently modified the project to reduce the amount of wetlands to be filled to 2.014 acres. The project as modified consisted of four free standing commercial facilities comprising two mid-priced sit-down restaurants, a fast-food restaurant, and a specialty retail store. The Department proposed further modifications to reduce the wetlands filled to approximately 0.5 to 0.7 acres. Under the Department's proposed modification, the number of commercial facilities would be reduced to two restaurants with truck access from Hoedt Road.

   
   

   Dibbs refused to make the further modifications and the Department denied the permit. Dibbs petitioned for an administrative hearing under section 120.57, F.S. Booker Creek Preservation, Inc. ("Booker Creek") petitioned for

   and was granted intervention. A hearing was held in this case in Tampa, Florida on December 6-8, 1994, before Arnold H. Pollock, a hearing officer with the Division of Administrative Hearings. On February 20, 1995, the hearing officer submitted his Recommended Order to the Department and all other parties to this action. A copy of the Recommended Order is attached as Exhibit "A." All parties timely filed exceptions to the Recommended Order. Dibbs timely filed responses to the exceptions of the Department and Booker Creek. Neither the Department nor Booker Creek filed any response to the exceptions of the other parties. The matter thereupon came before me for final agency action.

   
   

   The hearing officer recommended that the permit be issued. For the reasons stated herein, I accept that recommendation.

   
   

2. PRELIMINARY STATEMENT

   
   

   The central issue in this case is whether the Department's proposed modifications were economically viable or practicable. I believe that some clarification on the issue of economic viability and practicability of proposed modifications is appropriate. The hearing officer concludes that (1) economic return on investment is not an appropriate consideration in determining whether a proposed modification is practicable, and (2) economic viability means that the estimated value of the project as completed under minimization would be equal to or exceed its estimated cost. (Final Order at 9, 16) These statements, of course, are conclusions of law for which I am free to substitute my judgement. Harloff v. City of Sarasota, 575 So.2d 1324 (Fla. 2d DCA 1991), rev. den. 583-So. 2d 1035 (Fla. 1991).

   
   

   I begin by noting that in VQH Development Inc., v. Department of Environmental Protection and Manasota-88., Inc., 15 FALR 3407 (DEP Final Order, August 13, 1993), aff'd per curiam, Manasota-88 Inc., v. VQH Development Inc. and Department of Environmental Protection 642 So.2d 755 (Fla. 2nd DCA 1994), the Department held that a proposed modification which removed all profitability would not be practicable. See 15 FALR at 3409. As to the first point mentioned above, the return on investment on a project after a proposed modification can be relevant to profitability. Therefore, consideration of return on investment may be an appropriate factor to consider in determining whether a proposed modification is practicable.

   
   

   As to the second point noted above, to merely allow an applicant a project where the value equaled its cost would remove all profitability and would not be practicable under the rule established in VQH. Furthermore, where a project's value after modification exceeded its reasonable cost by only an insignificant amount, the modification would be a de facto removal of all profitability.

   Therefore I conclude that, along with those factors noted in VQH, reasonable investment costs and a reasonable return on investment or profit are factors which may be relevant to the determination of whether a proposed modification is practicable. In determining whether investment costs are reasonable, it is relevant to consider the normalized prudent and typical costs to a developer or investor for such a project.

   
   

3. RULINGS ON BOOKER CREEK'S EXCEPTIONS

   
   

   1. Exception No. 1

      
      

      Booker Creek's first exception asserts several grounds for its assertion that the hearing officer incorrectly placed on the Department and Booker Creek the burden of proof concerning the issue of whether the proposed modifications

      were practicable. Booker Creek correctly points out that the applicant has the burden of showing that a modification proposed to eliminate or reduce impacts wetlands or other surface waters is not practicable. VQH supra. Booker Creek contends that, although the hearing officer correctly stated the burden of proof in his conclusions of law, he nevertheless incorrectly placed the burden of proof on the Department because he rejected as "not proven" the Department's proposed finding no. 103 that the proposed two store project would be profitable and further found that the Department "did not prove" that the two store modification was economically viable and profitable. (Final Order; para. 17 at 9; p. 27)

      
      

      Although the hearing officer might have expressed his findings more clearly, I do not conclude that he placed the burden of proof on the Department or Booker Creek. Rather, I conclude that after weighing the evidence that the proposed modification was not economically viable or profitable against the contrary evidence, he found that the preponderance of the evidence showed the modification was not economically viable or profitable. In so concluding, I note that the record contains competent substantial evidence on both sides of the issue. On one hand there is evidence that the proposed modification would give Dibbs a return on investment of 9.5 percent to 10 percent (Final Order, para. 19 at 10; Deposition of Dr. William Weaver at 46) 1/ On the other hand, there is evidence that, if the project was modified as proposed to have only two restaurants, the project would have to be abandoned or within a year one or both of the restaurants would fail. (Final Order, para. 29 at 15; T: Mudano at 317- 18, 334-35; 362). The record also contains evidence that a return of 9.5 percent to 10 percent would not be reasonable under the facts of this case. (Deposition of Dr. Weaver at 46) Although I may not have weighed the evidence in the same manner as the hearing officer, I may not lawfully reweigh the evidence and I must accept the hearing officer's findings of fact if they are supported in the record by any competent substantial evidence. Florida Department of Corrections v. Bradley, 510 So.2d 1122 (Fla. 1st DCA 1987); Heifetz v.

      Department of Business Regulation, 475 So.2d 1277, 1281 (Fla. 1st DCA 1985); subparagraph 120.57(1)(b)10., F.S.; subsection 120.68(10), F.S.

      
      

      Booker Creek also contends that Dibbs could not have met his burden because he failed to present competent substantial evidence of his actual costs for his proposed project, for the proposed modified project, or for the acquisition of the property. Such information would, of course, be relevant to the economic viability of the proposed modification. However, as I noted above, the record does contain competent substantial evidence for the hearing officer's finding that the proposed modification would not be economically viable and therefore I am bound by that finding.

      
      

      For all the above reasons, Booker Creek's exception no. 1 is rejected.

      
      

   2. Exception No. 2

      
      

      Booker Creek's second exception asserts that in determining whether the proposed modification was practicable the hearing officer erred in considering

      (1) how long the two restaurants would be successful, (2) the extent of reduction of impacts from the initial proposal, (3) the extent of visibility (visual access) of the two restaurant modification from adjacent roads, and (4) ease of access and safety considerations of commingling of delivery trucks and customer vehicles.

      
      

      Booker Creek contends that the likelihood of success or failure of the restaurants under the modification is irrelevant and should not have been

      considered by the hearing officer because Dibbs could sell the developed site at a profit without operating the restaurants. That is, Booker Creek contends the project is to develop and sell the site, not operate the restaurants. I disagree. The economic viability of the restaurants under the proposed modification is relevant to profitability of the development. A commercial site with a low prospect of successful operation would have a lower value for sale.

      
      

      Booker Creek next contends that the extent of reduction of impacts from the initial proposal is irrelevant and therefore the hearing officer erred in considering it. Booker Creek notes that consideration of the extent of reduction of impacts from the initial proposal will make it possible for an applicant to evade any significant elimination or reduction by initially proposing far greater impacts than actually wanted and then claiming a large percentage reduction in impacts through modifications. I agree that this is a possible tactic to avoid meaningful elimination or reduction requirements.

      However, I also agree that the extent of reduction from the initial project can be relevant to the issue of whether a proposed modification is practicable. I conclude that the proper approach is to consider the extent of reduction of impacts from the initial proposal together with a consideration of whether the initially proposed impacts were reasonable. Although under the facts of this case a reduction of approximately 90 percent of the initially proposed impacts was found by the hearing officer to be not practicable, I reject any implication of a bright-line approach, and I hold that in determining whether a proposed modification is practicable the extent of reduction of impacts is but one factor to be considered in the context of the particular facts of each case.

      
      

      Booker Creek also contends that the hearing officer erred in considering the extent of visibility of the modified site from adjacent roads (visual access) in determining whether the two restaurant proposed modification was practicable. The extent of a commercial site's visibility can be relevant to a determination of whether a proposed modification is practicable. VQH, supra.

      2/ The record contains competent substantial evidence to support the hearing officer's finding that the proposed modification would not provide enough visibility for the project. (T: 312; 317-19; 346-47) Therefore, I am not at liberty to reweigh the evidence or reject the hearing officer's findings.

      Heifetz, supra.

      
      

      Finally, Booker Creek contends that the hearing officer erred in considering safety considerations of commingling of delivery and customer vehicles. I hold that safety is a relevant factor in determining whether a proposed modification is practicable. A modification which creates a safety hazard is not practicable. The hearing officer did not err in considering the commingling of service trucks and customer vehicles as a factor in determining practicability of the proposed modification.

      
      

      For all of the above reasons, Booker Creek's exception no. 2 is rejected.

      
      

   3. Exception No. 3

      
      

      In its third exception Booker Creek asserts the hearing officer erred because he failed to give a conclusive effect to the fact that Dibbs "admitted" that the proposed modification was economically viable or practicable when Dibbs gave Dr. Weaver, Dibbs own expert witness, information that showed that the project as modified would give a profit of $550,000 to $750,000 (return on investment of 9.5 percent to 10 percent). Booker Creek misconstrues the import of such a "statement" by Dibbs.

      There is, of course, a hearsay exception to out-of-court statements or conduct of a party or its agents, and such statements or conduct are referred to as admissions under the hearsay rule. But, as noted by Professor Ehrhardt:

      
      

      Admissions under section 90.803(18) are dissimilar from judicial admissions made in a pleading or pursuant to Florida Rules of

      Civil Procedure 1.370. Those formal admissions are binding in the case, and a party may not offer evidence to dispute them. However, an admission made under section 90.803(18), which is sometimes called an evidentiary admission, is not conclusive. The evidence is admissible under the [hearsay] exception, and the party who made the out-of-court statement may offer evidence to dispute its truthfulness.

      
      

      Charles W. Ehrhardt, Florida Evidence, Section 803.18 at 618 (1992 ed.). The out-of-court conduct on which Booker Creek relies was in fact admitted into evidence as part of the transcript of the deposition of Dibbs' expert, Dr.

      Weaver. In fact, Booker Creek and the Department expressly introduced the transcript of the deposition of Dr. Weaver for the purpose of showing the proposed amendment was profitable. (T: 748) Therefore the hearing officer did not err in declining to give conclusive effect to conduct on which Booker Creek relies. The hearing officer could properly weigh such evidence against the contrary evidence, and I am not at liberty to reweigh the evidence. Heifetz, supra. Therefore, Booker Creek's exception no. 3 is rejected.

      
      

   4. Exception No. 4

   
   

   In this exception Booker Creek asserts that the permit should not be issued because Dibbs failed to provide reasonable assurance that the mitigation offered has a substantial likelihood of success. The sufficiency of mitigation is a determination reserved for the Department and I am not bound by the hearing officer's recommendations on this matter. 1800 Atlantic Developers v.

   Department of Environmental Regulation, 552 So.2d 946, 955 (Fla. 1st DCA 1989), rev. den., 562 So.2d 345 (Fla. 1990). I note that the record shows that the Department's witnesses testified that Dibbs had provided reasonable assurance that the mitigation plan would succeed and the mitigation would offset the adverse impacts of project. (T: 416-17; 642) I also note that the parties stipulated that the mitigation offered is "acceptable" and "constitutes adequate mitigation" other than for minor details to be worked out. (T: 188-190) 3/

   
   

   The hearing officer's remarks (Final Order para. 34 at 16-17) to the effect that mitigation is a "fiction" and that "only the smallest part of any mitigation attempted is successful" may be true in the context of past mitigation efforts, but I do not accept them as being accurate statements of current mitigation practices or relevant to this project. The record clearly shows that in this case the Department concluded that reasonable assurance had been provided that the mitigation would be successful and would offset the adverse impacts of the project. Reasonable assurance requires a determination that the mitigation offered has a substantial likelihood of success.

   Metropolitan Dade County v. Coscan Florida. Inc., 609 So.2d 644 (Fla. 3d DCA 1992); VQH, 15 FALR at 3432. I determine that the mitigation offered by Dibbs is sufficient and has a substantial likelihood of success, and that the required reasonable assurance has therefore been provided.

   Finally, I note that the issue of the sufficiency of the mitigation offered was not raised in the notice of denial, Booker Creek's motion to intervene, or the joint stipulation. As the court noted in Florida Department of Transportation v. J.W.C. Company Inc., 396 So.2d 778, 789 (Fla. 1st DCA 19981):

   
   

   [N]o third party, "merely by filing a petition, " should be permitted to require the applicant to "completely prove anew" all items in a permit application down to the last detail.

   The petitioner must ident the areas of controversy and allege a factual basis for the contention that the facts relied upon by the applicant fall short of carrying the "reasonable assurances" burden cast upon the applicant.

   
   

   Since this issue was not raised in the notice of denial, Booker Creek's motion to intervene, or the joint stipulation, Booker Creek lacks standing to raise this issue at this point in time.

   
   

   For all of the above reasons, Booker Creek's exception no. 4 is rejected.

   
   

4. RULINGS ON DIBBS' EXCEPTIONS

I. Exception No. I

Dibbs takes exception to the statement in Finding of Fact No. 8 and Conclusion of Law No. 48 that the applicant must demonstrate that the proposed project is "in the public interest." Dibbs correctly notes that the proper statement is that the applicant must demonstrate that the project is not contrary to the public interest, or in the case of projects located in Outstanding Florida Waters, that the project is clearly in the public interest. Subsection 373.414(1), F.S. This exception is accepted.

1. Exception No. II

   
   

   Dibbs takes exception to the second sentence in Finding of Fact No. 17 in which the hearing officer states that "economic viability means that the estimated value of the project as completed under minimization would be equal to or exceed its estimated costs." Dibbs asserts that this is an erroneous statement of law. I agree for the reasons stated in my preliminary statement.

   This exception is accepted insofar as it is consistent with my preliminary statement.

   
   

2. Exception No. III

   
   

   Dibbs takes exception to the hearing officer's acceptance (Final Order at

   27) of Booker Creek's proposed finding of fact nos. 26 and 30 to the effect that they state that the project, without mitigation, will result in violations of water quality. Dibbs points out that water quality was not raised as an issue in the hearing or pre-hearing stipulation. The record contains competent substantial evidence that water quality will not be violated (T: 408; 652), and contains no evidence to the contrary. The exception is accepted.

   
   

3. Exception No. IV

Dibbs takes exception to the hearing officer's acceptance of Booker Creek's proposed finding of fact nos.42-46 on the ground that findings as to past

mitigation success are irrelevant, and the findings as to the mitigation proposed in this case are contrary to the evidence and contrary to the stipulations of the parties. This exception is accepted for the reasons stated in my ruling on Booker Creek's Exception No. 4.

1. RULINGS ON DEPARTMENT'S EXCEPTIONS

   
   

   1. Exception to Finding of Fact 27

      
      

      The Department takes exception to the fact that the hearing officer did not make a specific finding that the access via Hoedt Road would not be sufficient. The Department takes further exception to the implication that the proposed modification is not practicable because there would not be sufficient ease of access. The primary thrust of Finding of Fact No. 27 goes to the safety of commingling service vehicles with customer vehicles. As I noted above, public safety is a relevant factor in determining whether a proposed modification is practicable. The record contains competent substantial evidence that the commingling of service and customer vehicles would be a safety concern. (T:

      320-22) Although I may not put the same weight on this evidence as the hearing officer, I am not at liberty to reweigh the evidence. The record also contains competent substantial evidence that the commingling of service and customer vehicles would make the commercial site less desirable to customers. (T: 320-

      22) A design element that made a commercial site less attractive to customers would be relevant to economic viability. Accordingly, I reject this exception to Finding of Fact No. 27.

      
      

   2. Exceptions to Finding of Fact 28 and 29

      
      

      The Department takes exception to these findings of fact on the ground that there is no competent substantial evidence in the record to support the hearing officer's findings with regard to visibility. I reject this contention for the same reasons as stated in my ruling on Booker Creek's Exception No. 2.

      
      

      The Department also takes exception to the statement that:

      
      

      Taken together, these factors [reduced visibility] and the reduction in the number of business on the development site would discourage customer use, and in the opinion of Petitioner's economist and development consultant, would result in the two remaining business not surviving more than one year.

      
      

      The Department claims this statement is misleading because the Department, not Dibbs, introduced the transcript of Dr. Weaver's deposition. The Department also claims that the testimony of Dr. Weaver does not support the finding that proposed modification is not practicable. As to this latter point, I disagree for the same reasons stated in my discussion of Booker Creek's exception no. 1 above. As to the first point, I do not find it misleading. Even though the Department introduced the transcript of Dr. Weaver's deposition, he was identified as an expert retained by Dibbs (T: 747-50), and once the testimony was in the record it could be used to support the hearing officer's finding.

      
      

      For all of the above reasons, the Department's exception to Finding of Fact No.28 and 29 is rejected.

   3. Exception to Finding of Fact No. 32

      
      

      The Department takes exception to the conclusion of law in this "finding of fact" that any type of economic return on investment or cost benefit analysis is not an appropriate consideration in determining whether a proposed modification is practicable. I agree with this exception for the same reasons stated in my preliminary statement.

      
      

      The Department also takes exception to the statement in Finding of Fact No.

      32 that

      
      

      Petitioner contends that the additional minimization suggestions proposed by the Department,. . . are not practicable. The failure of the Department to consult with its staff economist regarding this project [at the initial stage of permit denial], and the paucity of demonstrated departmental familiarity or experience with economics, at least among permitting personnel, may lend some credence to this argument.

      
      

      I concur with the Department's assertion that this finding is irrelevant in this de novo proceeding, and therefore I reject the above mentioned statement in Finding of Fact No. 32.

      
      

      This exception is accepted insofar as noted herein, and I reject the above noted hearing officer's conclusion of law.

      
      

   4. Exception to Conclusion of Law No. 51

      
      

      The Department takes exception to Conclusion of Law No. 51 which provides in part:

      
      

      51.... Petitioner also claims the Department should not be able to determine the rate of return on his investment. In that contention, Petitioner's point is well taken.

      
      

      I accept this exception insofar as it is consistent with my preliminary statement, and I reject the above noted portion of conclusion of law no. 51.

      
      

   5. Exception to Conclusion of Law No. 52

   
   

   The Department takes exception to the conclusion of law that the proposed reduction of the project to one with an impact slightly over 10 percent of that originally proposed is not practicable. I agree with this exception to the extent that the hearing officer's conclusion implies a bright-line approach that such a percentage reduction would always be not practicable. As I noted above, the extent of reduction from the initial project can be relevant to the issue of whether a proposed modification is practicable. However, in order to preclude the tactic of initially proposing unreasonable impacts, the proper approach is to consider the extent of reduction of impacts from the initial proposal together with a consideration of whether the initially proposed impacts were reasonable in the context of the particular facts of each case.

   The Department also contends that there was no competent substantial evidence to support the conclusion (or finding) that the proposed modification was not practicable. In support of this contention the Department asserts that the only testimony on point was that of Mr. Mudano, and that his testimony was not competent substantial evidence on this issue as a matter of law because he predicated his testimony on the assertion that only the highest and best use could be practicable. I agree that Mudano's assertion that only the highest and best use could be practicable is incorrect as a matter of law. VQH 15 FALR at 3410. However, I do not concur that all of the testimony of Mr. Mudano was predicated on the assertion that only the highest and best use would be practicable. For example, Mr. Mudano testified that if the project was reduced from four commercial site to two sites, the project would have to be "aborted because the remaining two centers will not survive." (T: 317) Accordingly, I reject this part of the exception.

   
   

   The exception is accepted in part and rejected in part as noted herein.

   
   

2. CONCLUSION

   
   

   The modification proposed by the Department to reduce the project to two commercial sites in order to further reduce wetlands impacts is not practicable. The applicant has provided reasonable assurances that the proposed four commercial site project, latter mitigation, will not violate water quality standards and is not contrary to the public interest. Accordingly, the permit should be issued subject to mitigation as stated on page 4 of the notice of permit denial issued August 18, 1994, subject to such minor modifications as may be agreed to by the Department, and subject to appropriate general and specific conditions. 4/

   
   

   ACCORDINGLY IT IS ORDERED THAT:

   
   

   1. Except as is otherwise stated in this Final Order, the hearing officer's Recommended Order is adopted and incorporated herein by reference.

      
      

   2. Dibbs' Permit Application No. 292103383 shall be issued forthwith subject to mitigation as stated on page 4 of the notice of permit denial issued August 18, 1994, subject to such minor modifications as may be agreed to by the Department, and subject to appropriate general and specific conditions.

NOTICE OF RIGHTS

Any party to this Final Order has the right to seek judicial review of this Order pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the Clerk of the Department in the Office of General Counsel, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400; and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filed within 30 days from the date this Order is filed with the clerk of the Department.

DONE AND ORDERED this 4th day of April, 1995, in Tallahassee, Florida.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION

VIRGINIA B. WETHERELL

Secretary

Marjory Stoneman Douglas Building 3900 Commomwealth Boulevard

Tallahassee, Fl. 32399-3000

ENDNOTES

1/ The transcript of the deposition of Dr. William Weaver was accepted into evidence

by the hearing officer. (T: 749-50)

2/ Although I conclude that visibility of a commercial site can be relevant to the issue of whether a proposed modification is practicable, I do not agree with the hearing officer's general statement (Final Order para. 28 at 14) that commercial enterprises generally must be visible to be economically viable. The necessity for visual access to a project's economic viability must be determined on the specific facts of each case.

3/ The hearing officer asked if everybody would agree to this stipulation. Although the transcript does not show the assent of counsel for Booker Creek, his lack of objection on the record implies his assent. An party may not act contrary to a stipulation that has narrowed issues is a proceeding. Nest v. Department of Professional Regulation, 490 So.2d 987, 989 (Fla. 1st DCA 1986).

4/ The notice of denial at page 4 proposed the following mitigation as one of the changes which, together with others, may make the project permittable:

5/ Mitigate for the reduced wetland encroachments at a creation ratio of 1.5:1 with tree spade transplants at 15 foot centers, interplanted with 3 gallon or larger pot plants to create a 10' X 10' overall plant spacing, and the dedication of the mitigation area and all remaining wetlands to the Department in a perpetual conservation easement.

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing has been furnished to the following persons on this 4th day of April, 1995:

BY HAND DELIVERY TO:

The Honorable Arnold H. Pollock Ann Cole,

Hearing Officer Clerk, Division of Division of Administrative Administrative Hearings Hearings DeSoto Building

DeSoto Building 1230 Apalachee Parkway

1230 Apalachee Parkway Tallahassee, Florida 32399-

Tallahassee, Florida 32399-1550 1550

W. Douglas Beason, Esquire Assistant General Counsel State of Florida Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

AND BY U.S. MAIL TO:

John W. Wilcox, Esquire E. Gary Early, Esquire Akerman, Senterfitt & Eidson, P.A. Akerman, Senterfitt & Eidson,

P.O. Box 3273 216 South Monroe Street

Tampa, Florida 33601-3273 Suite 200

Attorneys for Dibbs P.O. Box 10555

Tallahassee, Florida 32302-

Thomas W. Reese, Esquire 2555

123 Eight Street North Attorneys for Dibbs St. Petersburg, Florida 33701

Attorney for Booker Creek

Docket for Case No: 94-005409

Orders for Case No: 94-005409