STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD STAUFFER, STEVEN MCCALLLUM, ) CY PLATA, and LESLIE NEUMANN, )

)

Petitioners, )

)

vs. ) CASE NO. 96-3784

) JOHN RICHARDSON (JANET RICHARDSON) ) and STATE OF FLORIDA DEPARTMENT ) OF ENVIRONMENTAL PROTECTION, )

)

Respondents. )

)

RECOMMENDED ORDER

A formal administrative hearing was held in this case before Daniel M. Kilbride, Administrative Law Judge, Division of Administrative Hearings, on November 6, 1996, in Tampa, Florida. The Administrative Law Judge conducted the proceeding by video conference.

APPEARANCES

For Petitioners: Steve McCallum, pro se

Post Office Box 484 Aripeka, Florida 34679

For Respondent Thomas I. Mayton, Jr., Esquire Department of 3900 Commonwealth Boulevard Environmental Mail Station 35

Protection: Tallahassee, Florida 32399-3000

For Respondent

John Richardson: No appearance

STATEMENT OF THE ISSUES

Whether Respondent Richardson’s application for a wetlands

resource permit to construct a private road and bridge through wetlands should be denied for failing to provide mitigation to offset the impacts to existing wetlands.

Whether Respondent Richardson had provided the Department with reasonable assurance that he or she owns or has sufficient authorization to use certain land in mitigation to offset the wetland impacts.

PRELIMINARY STATEMENT

On March 4, 1992, the Department of Environmental Regulation (now the Department of Environmental Protection), issued to John Richardson a wetland resource permit, pursuant to Section 403.918, Florida Statutes (1992). Richardson failed to publish notice of the Department’s action regarding that permit. As a result, the Petitioners filed their petition with the Department in July of 1996, which petition was timely. The Department’s March 4, 1992, permitting decision was rendered preliminary.

Thereafter, the Department referred the case to the Division of Administrative Hearings on August 12, 1996. Prior to the final hearing, Janet Richardson, the former-wife of John Richardson, applied to the Department for a transfer of the challenged permit to her. John Richardson and Janet Richardson were each duly notified of the date, time and place of the formal hearing.

After waiting a reasonable time and Respondent Richardson failed to appear, the formal haring was convened.

At the final hearing, Department Exhibits 1-7 and

Petitioner’s Exhibits 1-4 were admitted into evidence. The Department called, as its only witness, William Vorstadt, who was qualified as an expert in wetlands systems and impacts to wetlands, wetlands delineation,, and wetlands permitting. The Department and Petitioners stipulated as to the issue to be litigated in the proceeding. The Judge took official Notice of Part VIII of Chapter 403, Florida Statutes (Supp. 1992). The hearing was transcribed but the transcript was not ordered.

Neither the Petitioners, nor Respondent Richardson filed proposed findings of fact or conclusions of law. The Department filed its proposals on November 18, 1996.

FINDINGS OF FACTS

1. In January of 1990, John Richardson applied to the Department for a wetland resource (dredge and fill) permit under Section 403.918, Florida Statutes to construct a private road and bridge through wetlands.

2. The proposed project would impact 0.032 acres of wetland.

3. The proposed project is not located in an Outstanding Florida Water (OFW).

4. The proposed project would adversely affect the following:

   1. the conservation of fish and wildlife;

   2. the fishing, recreational values, and marine productivity in the vicinity of the proposed project; and

   3. the current condition and relative value of functions being performed by the wetlands impacted by the project.

      
      

5. The proposed project would be permanent in nature.

   
   

6. The proposed project would not meet the criteria of Section 403.918(2)(a) Florida Statutes, without mitigation adequate to offset the impacts to wetlands.

7. To provide adequate mitigation for the proposed project, Respondent John Richardson proposed to create and preserve 0.029 acres of new wetlands and preserve 4.35 acres of existing wetlands. The preservation would consist of granting to the Department a perpetual conservation easement over the mitigation wetlands.

8. Respondent John Richardson represented to the Department that he was the record owner or had permission to use the land that he offered for mitigation. The Department reasonably relied on that representation.

9. The mitigation proposed by Respondent John Richardson would be adequate to offset the impacts to wetlands resulting from the proposed project.

10. On March 4, 1992, the Department issued to John Richardson a wetlands resource permit for the proposed project.

11. The Department was not aware, before it issued this permit, that John Richardson might not own or have permission to use the mitigation land. The Department was substantially justified in issuing the permit to John Richardson on March 4,

    1992.

    
    

12. Specific conditions 28-31 of that permit required Respondent John Richardson to grant the Department a conservation easement over the mitigation land within thirty days after issuance of the permit.

13. Respondent John Richardson failed to grant the Department the required conservation easement, and failed to publish notice of the Department’s action.

14. On July 22, 1996, Petitioners filed a timely petition with the Department challenging the Department’s issuance of the March 4, 1992, permit to Respondent John Richardson.

15. On September 11, 1996, Janet Richardson filed an application with the Department for transfer of the March 4, 1992, permit to her following the dissolution of marriage with John Richardson.

16. By letter dated October 11, 1996, the Department requested Janet Richardson to provide additional documentation to show that she either owns the mitigation land or has permission to use that land. Janet Richardson was required to provide a legal survey drawing depicting the mitigation land, property records showing ownership of that land, and a notarized statement from the land owner authorizing her to use that land. The Department specifically advised Janet Richardson that it could

    not approve the proposed project if she failed to submit this requested documentation to the Department prior to the final hearing.

17. Janet Richardson failed to provide the requested documentation by the date of the final hearing in this matter, or subsequently.

18. As of November 6, 1996, no work had begun on the proposed project.

19. At the hearing, the Department adequately explained its change in position from deciding to issue the permit (on March 4, 1992) and proposing denial of the permit (on November 6, 1996).

20. The Department relies on an applicant’s representations regarding ownership of or right to use land unless a problem is brought to the Department’s attention. In this case, the Department was not aware that there was a problem with the applicant’s right to use the mitigation land until the petition was filed with the Department on July 22, 1996.

21. Janet Richardson failed to provide proof that she either owns or is authorized to use the land to mitigate the impacts to wetlands from the proposed project. Without such proof, Janet Richardson failed to prove that she could mitigate those same impacts from the proposed project.

    CONCLUSIONS OF LAW

    
    

22. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause,

    pursuant to Section 120.57(1), Florida Statutes

    
    

23. The Department has jurisdiction over wetlands. Chapter 403, Part VIII, Florida Statutes (1995).

24. To qualify for a wetland resource permit, an applicant must meet the criteria of Section 403.918, Part VIII, Florida Statutes (1995).

25. To determine whether a proposed project is not contrary to the public interest, the Department must consider and balance the following 7 criteria:

1. Whether the project will adversely affect the public health, safety, or welfare or the property of others;

2. Whether the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats;

3. Whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling;

4. Whether the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project;

5. Whether the project will be of a temporary or permanent nature.

6. Whether the project will adversely affect or will enhance significant historical and archaeological resources under the provisions of Section 267.061; and

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

Section 403.918(2)(a)1-7, Florida Statutes. 26. In this case the proposed project is not located in an OFW, therefore, Respondent Richardson has to prove that the project is not contrary to the public interest.

1. If an applicant cannot meet the criteria of Section

   403.918(2)(a)1-7, the applicant may submit a proposal to mitigate the adverse impacts to the wetlands, and the Department must consider that proposal in deciding whether to issue or deny the permit. Section 403.918(2)(b), Florida Statutes

2. The Department was substantially justified when it issued the initial permit on March 4, 1992, because the Department reasonably accepted Respondent John Richardson’s representations about the mitigation land, and the offered mitigation was sufficient to mitigate the wetland impacts.

3. Based on the facts presented, the proposed project fails to meet the public interest criteria of Section 403.918(2)(a)1-7, Florida Statutes. The proposed project is contrary to the public interest because four of the seven public interest criteria weigh against permitting this project, particularly subsections 403.918(2)(a)2, 4, 5, and 7.

4. Respondent Richardson failed to prove that she either owned or was authorized to use the land offered for mitigation. Section 403.918(2)(b), Florida Statutes.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the Department of Environmental Protection enter a Final Order denying Respondent Richardson’s request for a wetlands resource permit for the proposed project.

ONE AND ORDERED this 17th day of December, 1996, in

Tallahassee, Florida.

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1996.

COPIES FURNISHED:

Richard Stauffer Post Office Box 97

Aripeka, Florida 34679-097

Cy Plata

Post Office Box 64 Aripeka, Florida 34679

Steven McCallum Post Office Box 484

Aripeka, Florida 34679

Leslie Neumann

Post Office Box 738 Aripeka, Florida 34679

John Richardson

700 West Broad Street Brooksville, Florida 34607

Janet Richardson

1603 Osowaw Boulevard

Springhill, Florida 34607

Thomas I. Mayton, Jr., Esquire Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Station 35

Tallahassee, Florida 32399-3000

Perry Odom, Esquire

Department of Environmental Protection 3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Virgina B. Wetherell, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 96-003784

Orders for Case No: 96-003784