Judges: DELPHENE C. STRICKLAND
Agency: Water Management Districts
Latest Update: Mar. 21, 1977
Summary: Whether a permit should be issued for the construct in of a road over a marsh area surrounding Lake Susan in order to realign a clay road known as Hull Road near Clermont, Lake County, Florida.Petitioner filled marsh without permit and should have to make alternative route around marsh which straightens curves and doesn't necessitate fill.
75-1581STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
LAKE COUNTY BOARD OF COUNTY ) COMMISSIONERS, )
)
Applicant, )
)
and ) CASE NO. 75-1581
)
SOUTHWEST FLORIDA WATER )
MANAGEMENT DISTRICT, )
)
Permittee. )
)
RECOMMENDED ORDER
After due notice a public hearing was held before Delphene C. Strickland, Hearing Officer, Department of Administration, Division of Administrative Hearings, on September 3, 1975, at 5:30
in Brooksville, Florida, in the Board Room, District Headquarters, Southwest Florida Water Management District, U.S. 41 South, Hernando County, Florida.
APPEARANCES
For Applicant: Christopher C. Ford, Esquire,
Lake County Attorney
101 Maud Street Tavares, Florida 32778
For District: Jay T. Ahern, Esquire
Southwest Florida Water Management District Post Office Box 457
Brooksville, Florida 33512
Witnesses: Mr. J. M. Hoskinson, County Commissioner District Three, Lake County
416 West Maim Street Tavares, Florida 32778
Mr. Michael F. Donoghue, P.E. Director of Public Works
216 West Maim Street Tavares, Florida 32778
Lawrence J. Morey, Jr. Assistant Public Works Director
416 West Maim Street Tavares, Florida 32778
Mr. Oliver DeWitt, Engineer
Southwest Florida Water Management District Post Office Box 457
Brooksville, Florida 33512
ISSUE
Whether a permit should be issued for the construct in of a road over a marsh area surrounding Lake Susan in order to realign a clay road known as Hull Road near Clermont, Lake County, Florida.
FINDINGS OF FACT
On October 9, 1963, the Southwest Florida Water Management District adopted Resolution No. 63 setting forth a declaration of "The Works of the District". Rule 16J-1.03 was promulgated implementing Chapter 373, Florida Statutes, and was readopted October 5, 1974, and amended December 31, 1974. The Lake Susan area, in question here, is within the "work of the district" because it is included in the area encompassed in Rule 16J-1.03(2), "The Oklawaha River, its natural floodway and tributaries, connecting channels, lakes and canals".
Lake Susan and its surrounding marshlands is subject to Rule 16J-1.06, which requires, in part, that an application be made before placing fill materials in the marshlands therein and said rule conditions a permit on whether there will be adverse effects by drainage or inundation or will alter or restrict a watercourse within the flood plain of a 25 year flood on lands not owned by applicant.
On November 12, 1968, the Board of County Commissioners of Lake County, Florida, adopted a resolution which stated in part:
"BE IT RESOLVED by the Board of County Commissioners of Lake County, Florida, that the cutting and removal of natural vegetation from the shallow areas of our lakes and streams, except as hereinafter provided, be discouraged; and that the Governing Authorities having jurisdiction over such areas be requested to limit the removal and clearing of such vegetation; that only such permits for the disturbance of vegetation be granted for proper access to and from the shoreline of property owners to clear waters retaining as much of the natural vegetation as is possible."
This resolution has never been rescinded.
Hull Road is a light duty, all weather, improved service, county maintained, dead end, clay road. The road serves residential and agricultural interests as well as lake recreational purposes. Some of the lands the road serves is now being developed by subdivision developers.
The Lake County Board of County Commissioners propose to realign Hull Road across the marsh and water section of the southernmost tip of Lake Susan by filling and removing from the flood plain approximately 1.5 acres for a roadway, thereby draining through the culvert some 38 acres. The proposed work requires the construction of an embankment, approximately 66 feet wide and 800 feet long. The road plan is in accordance with the Florida Department of Transportation's criteria for similar roads.
No permit was applied for or secured before work began on April 9, 1975 or before a fill of some 400 feet in length and 66 feet in width had been placed.
Work was ordered stopped by permittee upon discovery of said activity on April 24, 1975.
Applicant had not requested a permit under the belief that the area was not navigable and that therefore no permit was needed.
The fill is standing in the condition and state of construction as it was when construction was ordered discontinued on April 24, 1975.
The applicant contends that: (1) the present road is hazardous to the travelling public because of two sharp curves thereon, (2) the residents and the agricultural and recreational interests would be better served by a straight road rather than the existing road, (3) one alternative to the proposed realignment was to straighten the existing curve without filling in the marsh, but this alternative was abandoned for the reason that some 14 citrus trees would have to be removed and the county would have to reimburse the property owners for their right of way. A second alternative to the proposed plan which would straighten the hazardous curves would have involved fill of the marsh along the edge of the existing road and would have involved reimbursement to property owners, (4) it is the firm policy of the Board of County Commissioners of Lake County that the county will not buy right of way for county roads and that the county will not use its power of eminent domain to condemn right of way on a road, (5) no harmful effect would be done to the lowlands so long as culverts were part of the construction plans for that portion of the road that would cross the marshlands.
The Southwest Florida Water Management District contends that: (1) the applicant county failed to make an application and secure a permit before beginning to fill a marshland area that is within the work district of the permittee board as defined in Rule 16J-1.03, (2) the fill for the proposed road realigning Hull Road across the marsh area will place fill within the mean annual flood plain of a lake and will alter or restrict a watercourse within the flood plain of a 25 year flood on lands not owned, leased or controlled by the applicant, (3) realignment of Hull Road to the marsh and waters of Lake Susan is not a reasonable and beneficial activity and is in violation of both the resolution of Lake County dated November 12, 1968, and the rules of the permittee, i.e.,
16J-1.01(3)(4), (4) although an application has now been made for a permit for the proposed road, alternatives to filling said marshland should be explored fully before the Board is requested to waive the rules of the District.
It has not been shown that the alternative routes would not better serve the safety interests of the public using the road and be more in keeping with the conservation policies of both the applicant and the permittee.
Based on the foregoing it is the finding of the Hearing Officer that (1) the realignment of Hull Road is in conflict with the policy of the county established by resolution on November 12, 1968, (2) the realignment of the road across the waters and marshland of Lake Susan would increase the safety of Hull Road by
eliminating two hazardous curves on the roadway in its present condition and location, (3) the alternative route which would straighten the curves without filling in the marshland is more in keeping with the previous resolution of the county and is consistent with the work of the District as promulgated in the cited rules of the permittee.
No cost estimate has been made on alternative routes and no traffic studies have been made to determine the average flow of traffic.
CONCLUSIONS OF LAW
Chapter 373, Florida Statutes, and the Rules promulgated by the Southwest Florida Water Management District, particularly Rule 16J-1.03 and 16J-1.06, have been violated by the acts of the applicant in placing fill in the waters and marshes of Lake Susan without securing a permit.
A permit should not be issued inasmuch as it has not been shown that an alternative route would not serve the public interest of the public which is served by Hull Road insofar as safety is concerned.
It has not been shown that the filling of the marshland will not damage the ecological balance of the marshland and will be of beneficial use to the public.
Hull Road at its present location has been used for many years and there is no showing that there have been any accidents along the area that skirts the marshland.
It therefore appears that it would be in the best interest of the people to re-work the present roadway to straighten out the curves without filling in the marshland and it appears that moneys being used to construct the road across the marshlands could be spent in obtaining the amount of acreage necessary to straighten the curves without filling the marshlands.
A cost estimate should be made as to the cost of buying right of way if such will not be donated by the adjoining property owners on that segment of the road skirting Lake Susan and such cost estimate should be compared with the cost of filling in and constructing a road across the road and marshes of Lake Susan.
RECOMMENDED ORDER
Deny the application.
October 23, 1975 (date) DELPHENE C. STRICKLAND
Hearing Officer
Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
(904) 488-9675
COPIES FURNISHED:
Christopher C. Ford, Esquire Lake County Attorney
101 Maud Street Tavares, Florida 32778
Jay T. Ahern, Esquire Southwest Florida Water
Management District Post Office Box 457
Brooksville, Florida 33512
=================================================================
AGENCY FINAL ORDER
================================================================= SOUTHWEST FLORIDA MANAGEMENT DISTRICT
IN RE: LAKE COUNTY BOARD OF COUNTY )
COMMISSIONERS PERMIT APPLICATION ) CASE NO. 75-1581
FOR CONSTRUCTION WITHIN A "WORK" OF ) APPLICATION NO. 75000303 THE DISTRICT" )
)
ORDER DENYING PERMIT
A Hearing having been held on the above application before a Hearing Officer of the State of Florida, Division of Administrative Hearings and a Recommended Order submitted which the Governing Board of the District has reviewed. The Governing Board of the District receiving no evidence, facts or reasons why the findings and recommendations in said Order should not be accepted and the permit be denied.
It is on this 12th day of November, 1975, ordered that the Application for a Permit to Construct Within a "Work of the District," Lake Susan as part of the Oklawaha River connecting lakes, be denied.
It is further ordered that the applicant remove all fill and construction material placed within the marshlands of Lake Susan.
D. S. McATEER, CHAIRMAN
ATTEST:
THOMAS M. VAN DER VEER, SECRETARY
Docket for Case No: 75-001581
Orders for Case No: 75-001581
| Issue Date |
Document |
Summary |
|
Nov. 12, 1975 |
Agency Final Order
|
|
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Oct. 23, 1975 |
Recommended Order
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Petitioner filled marsh without permit and should have to make alternative route around marsh which straightens curves and doesn't necessitate fill.
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