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LINDA L. BRASWELL (NO. 082646365) vs DEPARTMENT OF ENVIRONMENTAL PROTECTION, 95-001072 (1995)

Court: Division of Administrative Hearings, Florida Number: 95-001072 Visitors: 9
Petitioner: LINDA L. BRASWELL (NO. 082646365)
Respondent: DEPARTMENT OF ENVIRONMENTAL PROTECTION
Judges: WILLIAM F. QUATTLEBAUM
Agency: Department of Environmental Protection
Locations: Fort Myers, Florida
Filed: Mar. 06, 1995
Status: Closed
Recommended Order on Wednesday, April 24, 1996.

Latest Update: Jul. 26, 1996
Summary: The issue in this case is whether the construction activities of Respondent Auschra were exempt from applicable permitting requirements on the basis of the application and whether the construction activities exceeded the scope of the exemption. Further, the Petitioner seeks an Order directing the Department of Environmental Protection to initiate an enforcement action against the Auschra project. The Department asserts that the Hearing Officer is without jurisdiction to require the Department to
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95-1072

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS


LINDA L. BRASWELL, )

)

Petitioner, )

)

vs. ) CASE NO. 95-1072

) KURT AUSCHRA and DEPARTMENT OF ) ENVIRONMENTAL PROTECTION, )

)

Respondent. )

)


RECOMMENDED ORDER


Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William F. Quattlebaum, held a formal hearing in the above-styled case on January 29, 1996, in Ft. Myers, Florida. The hearing officer conducted the proceeding by videoconference.


APPEARANCES


For Petitioner: Robert E. Turffs, Esquire

227 South Nokomis Avenue South Post Office Box 1767

Venice, Florida 34284-1787


For Respondent DEP: Christine Stretesky, Esquire

2600 Blair Stone Road Tallahassee. Florida 32399-2400


For Respondent Auschra: No appearance


STATEMENT OF THE ISSUE


The issue in this case is whether the construction activities of Respondent Auschra were exempt from applicable permitting requirements on the basis of the application and whether the construction activities exceeded the scope of the exemption. Further, the Petitioner seeks an Order directing the Department of Environmental Protection to initiate an enforcement action against the Auschra project. The Department asserts that the Hearing Officer is without jurisdiction to require the Department to initiate an enforcement action.


PRELIMINARY STATEMENT


By Petition for Administrative Hearing dated February 17, 1995, Petitioner Linda L. Braswell challenged the determination by the Department of Environmental Protection that a project proposed by Respondent Kurt Auschra was exempt from permitting requirements. The Department forwarded the petition to

the Division of Administrative Hearings, which scheduled the proceeding. The case was transferred to the undersigned Hearing Officer on December 20, 1995.


At the hearing, the Petitioner presented the testimony of three witnesses, testified on her own behalf, and had exhibits numbered 4, 10, 12, 13, 15 and 15A, 18, and 20 admitted into evidence. Respondent DEP presented the testimony of one witness.


A transcript of the hearing was filed. The Petitioner and Respondent DEP filed proposed recommended orders. The proposed findings of fact are ruled upon either directly or indirectly as reflected in this Recommended Order, and in the Appendix which is attached and hereby made a part of this Recommended Order.


FINDINGS OF FACT


  1. Petitioner Linda L. Braswell owns and resides at 5190 Latham Terrace Port Charlotte, Florida. The property is located at Lot 88 of the Gulf Cove subdivision in Charlotte County, Block 1864, Section 54.


  2. Respondent Kurt Auschra owns Lot 90, located adjacent to Lot 88.


  3. Mr. Auschra did not appear and was not represented at the hearing.


  4. An application dated January 5, 1995, was filed on behalf of Mr. Auschra, seeking approval of seawall construction at his property.


  5. The application appears to be signed by Eugene Exejet of the Charlotte County Seawall Company.


  6. Respondent Department of Environmental Protection is responsible for the permitting and regulation of projects such as the Auschra project.


  7. The relevant properties back up to the Latham Waterway, a man-made residential canal.


  8. The Petitioner asserts that the Auschra property was landlocked and did not have access to the water prior to construction of the seawall.


  9. A property is "waterfront" if the mean high waterline touches the property.


  10. Evidence of the apparent mean high water line, including subdivision plats and location of vegetation, establishes that the Auschra lot was a "waterfront" lot prior to construction of the seawall.


  11. Existing residential canal systems are classified as artificially created waterways by applicable administrative rules.


  12. The Auschra application was reviewed by Peggy Hellenbach, an employee of the Department.


  13. After the application was filed, and prior to the Department determination that the project was exempt, the Petitioner communicated her concerns to two members of the Department staff, including Ms. Hellenbach.

  14. At the time of her review, the application contained sufficient information for Ms. Hellenbach to determine the location and the type of project being proposed.


  15. Ms. Hellenbach reviewed the application and determined that the project was exempt from permitting requirements.


  16. In determining that the project was exempt from permitting, Ms. Hellenbach considered whether the proposed project would violate existing water quality standards, impede navigation or adversely affect flood control.


  17. Ms. Hellenbach determined that based on the location of the seawall and the applicant's intended use of turbidity screens during construction, water quality standards would not be violated.


  18. Turbidity screens were used during construction of the seawall.


  19. Because the construction site is at the "dead-end" of the waterway, Ms. Hellenbach determined that the project would not impede navigation either during or after construction.


  20. Because the location of the seawall does not impact water flow, Ms. Hellenbach determined that the project would not adversely affect flood control.


  21. By letter to Mr. Auschra dated February 6, 1995, the Department stated as follows:


    Based solely upon the documents submitted to the Department, the project has been determined to qualify as an activity which

    is exempt from the need for a wetland resource permit pursuant to Florida Administrative Code (F.A.C.) Rule 62-312.050 (1) 62-312.050(1)(g).


  22. The letter also provided:


    The determination that your project qualifies as an exempt activity pursuant to Rule

    62-312.050 (1) 62-312.050(1)(g), F.A.C., may

    be revoked if the installation is substantially modified, or if the basis for the exemption is determined to be materially incorrect, or if the installation results in water quality violations. Any changes made in the construc- tion plans or location of the project may necessitate a permit or certification from

    the Department. Therefore, you are advised to contact the Department before beginning the project and before beginning any work in waters or wetlands which is not specifically described in your submittal.


  23. Ms. Hellenbach did not visit the site prior to making her determination. There is no evidence that Ms. Hellenbach was required to visit the site prior to making her determination.

  24. Construction of the project was initiated prior to the issuance of the Department's February 6 letter of exemption.


  25. Given Ms. Hellenbach's subsequent review of the project after construction and her continuing assertion that the project meets applicable exemption criteria, it is unlikely that a site visit prior to construction would have impacted installation of the seawall.


  26. The greater weight of the evidence establishes that, based on the information set forth in the application, the project was exempt from permitting requirements.


  27. There is no evidence that the project violated existing water quality standards, impeded navigation or adversely affected flood control.


  28. Department policy requires that new seawalls be built in a "continuum" with existing seawalls to prevent water quality problems caused by altered water circulation. The Auschra seawall appears to be in a continuum with the existing Latham Waterway seawalls.


  29. There is evidence that vegetation, including mangroves, located both on the Auschra property and on adjoining property, was removed during the construction of the seawall.


  30. Removal of vegetation is typical during installation of a seawall.


  31. Based on the existing vegetation at the site, the removed vegetation most likely consisted of a thin line of red mangroves at the waterline with a large stand of Brazilian Pepper behind the mangroves and along the banks of the waterway.


  32. There is no evidence that a permit was required for removal of the vegetation on the Auschra property.


  33. Applicable administrative rules do not authorize removal of mangroves from adjacent properties unless the property is owned or controlled by the person performing the removal of the vegetation or unless the land is adjacent State-owned land lying waterward of the parcel of property on which the exempt activity is occurring.


  34. There is no evidence that a permit was issued for removal of the vegetation on the adjoining property.


  35. There is evidence that as constructed, the seawall encroaches onto the property of adjoining owners and that during construction, property of adjoining owners may have been excavated.


  36. There is no evidence that the seawall encroaches onto the property of the Petitioner.


  37. The evidence fails to establish that the amount of material excavated during construction of the seawall was excessive in relation to the size of the structure.


  38. Ms. Hellenbach conducted a site visit after the construction of the seawall. Based on her review of the seawall construction and her knowledge of

    the application, Ms. Hellenbach determined that the project continues to be exempt from permitting requirements.


    CONCLUSIONS OF LAW


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


  40. In relevant part, Rule 62-312.050, Florida Administrative Code, provides as follows:


    1. No permit shall be required under this chapter for dredging or filling...for the projects listed below.

      * * *

      (g) Construction of seawalls or riprap, including only that backfilling needed to level the land behind the seawalls or riprap, in artificially created waterways where such construction will not violate existing water

      quality standards, impede navigation or adversely affect flood control. An artificially created waterway shall be defined as a body of water

      that has been totally dredged or excavated and which does not overlap natural surface waters

      of the state. For the purpose of this exemption, artificially created waterways shall also include existing residential canal systems....


  41. The evidence in this case establishes that the project proposed by Respondent Auschra for installation on his property was exempt from permitting requirements by operation of the rule.


  42. The Petitioner asserts and presented evidence that vegetation located on the property of adjoining owners, including some mangroves, was removed during the construction of the seawall. There is no evidence that a permit was issued for the removal of the vegetation.


  43. In relevant part, Rule 62-321.060, Florida Administrative Code, provides as follows:


    1. No permit under this rule is required for the alteration of mangroves:

      1. on property by a person who owns or controls the property and on adjacent State- owned lands lying waterward of the parcel of property in conjunction with and as essential for any of the activities exempted from wet- lands resource permit requirements by. Rule

        62-312.050, F.A.C.,...provided that the alteration is limited to the minimal amount necessary to construct the authorized works....


  44. Despite the apparent unpermitted removal of vegetation from the adjoining property, Ms. Hellenbach asserted that there are no violations of statute or rule warranting agency enforcement action. The Hearing Officer is

    without authority to require that allegations of improper removal of vegetation be reviewed by the Department.


  45. Additionally, the Petitioner asserts and presented evidence that as constructed, the seawall encroaches onto the property of adjoining owners and that during construction property of adjoining owners may have been excavated. There is no evidence of encroachment onto the Petitioner's property. Additionally, this matter is outside the jurisdiction of this proceeding.


RECOMMENDATION


Based on the foregoing, it is hereby RECOMMENDED that the Department of Environmental Protection enter a Final Order dismissing this case.


DONE and RECOMMENDED this 24th day of April, 1996 in Tallahassee, Florida.



WILLIAM F. QUATTLEBAUM

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 24th day of April, 1996.


APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-1072


To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the parties.


Petitioner


The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows:


  1. Rejected, subordinate.

  2. Rejected, unnecessary.

5-6. Rejected, subordinate.

7-8. Rejected. Recitation of testimony is not Finding of Fact.

9. Rejected, unnecessary. The greater weight of the credible evidence establishes that the location of the seawall and quantity of dredged material do not render the project non-exempt.

10-12. Rejected. Recitation of testimony is not Finding of Fact. 13-14. Rejected, cumulative.

  1. Rejected as to statement that "the property did not have sufficient area on the canal to build a seawall." Not supported by greater weight of the evidence.

  2. Rejected. Recitation of testimony is not Finding of Fact.

  3. Rejected, unnecessary.

18-22. Rejected, subordinate.

23-24. Rejected, unnecessary.

26-27. Rejected, fails to comply with Rule 60Q-2.031(3) requiring citation to transcript.

30. Rejected. The evidence that a "new waterway" was dredged is insufficient to be persuasive.


Respondent DEP


The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows:


12. Rejected, unnecessary.

17. Rejected. There was evidence presented as to ownership of adjoining property.

24. Rejected, subordinate.

26. Rejected, unnecessary.


COPIES FURNISHED:


Virginia B. Wetherell, Secretary Department of Environmental Protection Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000


Kenneth Plante, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000


Robert E. Turffs, Esquire

227 South Nokomis Avenue South Post Office Box 1767

Venice, Florida 34284-1787


Kurt Auschra

Hinter der Linah 50 21614 Buxtehude Germany


Christine Stretesky, Esquire 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 ten 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: 95-001072
Issue Date Proceedings
Jul. 26, 1996 Final Order filed.
May 15, 1996 Department of Environmental Protection`s Response to Petitioner`s Exceptions to Recommended Order filed.
May 06, 1996 Petitioner`s Exceptions to Hearing Officer`s Recommended Order filed.
Apr. 24, 1996 Recommended Order sent out. CASE CLOSED. Hearing held 1/29/96.
Mar. 18, 1996 Department of Environmental Protection`s Proposed Recommended Order filed.
Mar. 15, 1996 Petitioner, Linda Braswel`s Proposed Findings of Fact and Conclusions of Law (For HO Signature) w/cover letter filed.
Feb. 26, 1996 Transcript of Proceedings ; Cover Letter filed.
Feb. 01, 1996 Exhibits filed.
Jan. 29, 1996 CASE STATUS: Hearing Held.
Jan. 25, 1996 Letter to Linda Braswell from Kurt U. Susanna Auschra (cc: HO) Re: "Maxwell GX-Silver T-120 VHS" video-cassette w/cover memo filed.
Jan. 24, 1996 (Respondent) Prehearing Stipulation filed.
Jan. 22, 1996 (Petitioner) Second Amended Petitioner`s Exhibit List filed.
Jan. 19, 1996 Letter to HO from Trina S. W. Zimmerman Re: Photos and materials for clarification for hearing; Letter to HO from K. Auschra, S. Auschra Re: Cannot attend scheduled hearing and cannot afford to hire an attorney filed.
Jan. 17, 1996 Amended Petitioner's Exhibit List w/cover letter filed.
Jan. 16, 1996 Second Amended Petitioner's Exhibit List filed.
Jan. 12, 1996 Petitioner's Exhibit List; Exhibits; Videotape w/cover letter filed.
Dec. 26, 1995 Letter to M. Lockard from L. Braswell (& enclosed money order check #544443027 for copy of case file) filed.
Dec. 21, 1995 Order Establishing Prehearing Procedure sent out.
Dec. 20, 1995 Order Granting Motion to Recuse Hearing Officer sent out. (motion granted)
Dec. 07, 1995 Letter to L. Braswell from J. York (re: copy of file; HO assigned) sent out.
Dec. 04, 1995 Affidavit of Petitioner, Linda Braswell in Support of Motion of Recusal; Motion to Recuse Hearing Officer; Letter to S. Smith from Linda L.Braswell Re: Petitioner objecting to HO as unacceptable to consider my case filed.
Nov. 15, 1995 Letter to HO from Warren R. Ross Re: No longer represent petitioner filed.
Nov. 01, 1995 Prehearing Order sent out.
Nov. 01, 1995 Notice of Video Hearing sent out. (Video Hearing set for 01/29/96; 10:00 a.m.)
Oct. 30, 1995 Department of Environmental Protection's Response to Order filed.
Oct. 30, 1995 Petitioner's Response to Department of Administrative Hearing's Orderfor Dates of Non-Availability for Hearing filed.
Oct. 17, 1995 Order sent out. (hearing cancelled; parties to respond by 10/31/95)
Oct. 13, 1995 Letter to HO from Warren R. Ross Re: Order of October 5, 1995 filed.
Oct. 10, 1995 Letter to Robert Norton from Warren R. Ross (cc: HO) Re: Hearing on Motion to Withdraw as counsel filed.
Oct. 10, 1995 Letter to REM from L. Braswell (RE: request for continuance) filed.
Oct. 06, 1995 Order Publishing Ex Parte Communications sent out.
Oct. 05, 1995 Order Granting Motion to Withdraw sent out.
Oct. 05, 1995 Letter to HO from Linda L. Braswell Re: Request for Continuance; Letter to Mr. Wottizky/Mr. Ross from Linda Braswell Re: Responding to Warren Ross's fax letter dated September 25, 1995 filed.
Oct. 02, 1995 Motion to Withdraw as Counsel for Petitioner; Letter to HO from Warren R. Ross Re: Motion to Withdraw as Counsel for Petitioner and Motion for Continuance filed.
Jul. 17, 1995 Order Granting Continuance sent out. (hearing rescheduled for 10/17/95; 9:00am; Ft. Myers)
Jul. 12, 1995 Department of Environmental Protection`s Motion for Continuance filed.
Jul. 05, 1995 Order Granting Motion sent out. (motion for leave to serve and file amended petition granted)
Jun. 27, 1995 Amended Notice of Video Hearing (as to room only) sent out. (Video Hearing set for 7/19/95; 9:00am; Ft. Myers)
Jun. 26, 1995 (Petitioner) Second Amended Petition for Administrative Hearing; Motion for Leave to Serve and File Second Amended Petition w/cover letter filed.
Jun. 06, 1995 Notice of Taking Depositions (Plaintiff) filed.
May 26, 1995 Order sent out. (motions granted)
May 22, 1995 Notice of Hearing sent out. (hearing set for 7/19/95; 9:00am; Ft. Myers)
May 22, 1995 (Petitioner) Request to Produce; Cover Letter filed.
May 16, 1995 (Petitioner) Amended Petition for Administrative Hearing; Motion for Leave to Amend Petition for Administrative Hearing w/cover letter filed.
May 03, 1995 Department of Environmental Protection`s Response to Request for Production; Department of Environmental Protection`s Response to Petitioner`s Interrogatories filed.
Mar. 17, 1995 Department of Environmental Protection`s Response to Initial Order filed.
Mar. 08, 1995 Initial Order issued.
Mar. 06, 1995 Request for Assignment of Hearing Officer and Notice of Preservation of Record; Agency Action Letter; Petition for Administrative Hearing filed.

Orders for Case No: 95-001072
Issue Date Document Summary
Jun. 06, 1996 Agency Final Order
Apr. 24, 1996 Recommended Order Exemption from permitting for seawall. Hearing Officer has no authority to order enforcement.
Source:  Florida - Division of Administrative Hearings

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