STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT LEESON, )

)

Petitioner, )

)

V. ) CASE NO. 75-2042

) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came up for hearing before the undersigned hearing officer at 9:00 a.m. January 20, 1976, in the County Judge's Courtroom, Second Floor of the Charlotte County Courthouse, Punta Gorda, Florida. The Petitioner has applied for a permit from the Department of Environmental Regulation to construct a single family residence, part of which would extend beyond the mean high water line in the area of Boca Grande Bayou, Boca Grande, Florida.

APPEARANCES

For Petitioner: Guy Emerich, Esquire For Respondent: David Gluckman, Esquire,

Department of Environmental Regulation FINDINGS OF FACT

1. The Petitioner owns a narrow strip of upland and a parcel of submerged land contiguous to this upland. The Petitioner owns all the upland and all the submerged land over which this proposed dwelling would be placed. This proposed structure would not involve filling of submerged lands, as the sketches submitted with the application indicate, except that the house will be constructed on pilings placed ten feet apart. The proposed finished floor elevation is 13.5 feet above mean high water. The residence will be constructed in such a manner so as not to discharge any materials into the contiguous waters. No sewage or

   other deleterious materials are expected to be disposed or discharged into these waters from this dwelling. The dwelling comprises approximately 1,000 square feet of this dwelling will be located below the mean high water line. The Petitioner has a very small amount of upland available for purposes of construction and there appears to be no way a habitable structure can be built upon the Petitioner's property without encroaching somewhat beyond the mean high water line.

   
   

2. The Department of Environmental Regulation opposes this permit application on two grounds: The first is that by covering over an area of productive submerged intertidal land, the shading effect of this proposed structure will diminish the number and variety of species which presently use this littoral zone. Secondly, although the environmental damage from an individual such house may be minimal, the Department of Environmental Regulation is fearful that should they grant this permit, they will have to grant other similar permits, and the cumulative effect from such over-water construction would present significant environmental stress to the foreshore of the state.

   
   

3. The shoreline on the proposed site is vegetated with red and black mangrove trees which would have to be cut and largely destroyed to accommodate the proposed dwelling. The shallow submerged bottom in this area accommodates a thriving invertebrate community. Samples taken from a nearby structure which is partly placed over the water indicate that beneath this existing stilt house, the marine community is more restricted and less productive than in areas which are not shaded from the sunlight. This hearing officer takes notice that the base of the aquatic food chain is based upon green plants and algae that require sunlight to accomplish the process of photosynthesis. The reduction of available sunlight will naturally reduce the available aquatic vegetative biomass and thereby restrict the overall productivity of the littoral zone. Since sunlight is the basis of the food chain and since sunlight cannot penetrate into the deeper waters, the shallow water areas along the shoreline are generally the most productive basis of the marine ecosystem. It is clear the proposed works will result in some degree, however slight, of environmental degradation.

   
   

4. The Department of Environmental Regulation made several inspections of the proposed construction site. Several of these reports were issued into evidence as Respondent's exhibits. Respondent's Exhibit No. 4 concludes:

   "Conclusions based upon the above date are: 1. the central area of the existing stilt house sponsors

   a community of organisms with less taxa and fewer individuals than the nonaltered community, 2. this phenomena is probably related to a lack of light

   upon which the primary producers of the community are dependent, 3. there are no apparent reasons to assume that new construction of a similar nature would not produce similar results, 4. there is a distinct possibility for additive effects if such construction (stilt) (houses) becomes a common or clustered occurrence."

   
   

5. The Respondent, Department of Environmental Regulation, in its reports and through the testimony elicited at this hearing, objects more to the possibility of the proliferation of this type of stilt house structure than to the immediate damage this individual dwelling might cause. This fear is not without some justification. Should the Respondent grant his permit, they then face the possibility of having begun a prior agency practice when they must consider all such future applications. Section 120.68, F.S., which deals with the judicial review of agency actions, states in subsection 12:

   
   

   "that the court [District Court of Appeals] shall remand the case to the agency if it finds the agency's exercise of discretion to be:

   1. outside the range of discretion delegated to the agency by law; (b) inconsistent with any agency rule, unofficially stated agency policy, or prior agency practice, if deviation therefrom is not explained by the agency. . ."

      
      

      It is impossible to state at this time and with the record before this hearing officer how many other parties there are throughout this state which could present a similar factual situation; that is, how many landowners there are that own a small strip of upland continguous to privately owned submerged land where the amount of upland owned is too small to accommodate a habitable dwelling. In addition to that, such landowner must be able to contain all sewage and discharge so as not to enter the underlying water body. Exactly how broad a class of landowners this description includes is unknown. However, the Department's concern in seeking to avoid making a commitment to all future such members of this hypothetical class by virtue of their action on this application is a valid and legitimate concern.

6. On the other hand the Petitioner appears to have a right to have his permit application evaluated solely on the merits of the project's anticipated environmental impact. The standards for a review of the dredge and fill permit application are found basically in Section 253.124, F.S. If anything, this permit seeks to fill in part of the navigable waters of the state, although the filling is minimal and consists only of the piles which shall be driven into the submerged lands that will support the proposed structure. Briefly, Section 253.124, F.S., requires any proposed construction work below the mean high water line must be established by the applicant as not posing any substantial threat to the environment to such an extent as to be contrary to the public interest.

   
   

7. This statutory language was recently before the Court of Appeals for the First District in the case of Yonge v. Askew, 293 So.2d 395. That court decided that an applicant who desired to dredge into the Crystal River had the burden of making an affirmative showing that works for which the permit was sought would be in the public interest and that the state agency involved (at that time the Trustees of the Internal Improvement Trust Fund now supplanted by the Department of Environmental Regulation) did not abuse its discretion in denying that permit based on a showing that the proposed work would eventually result in destroying the beauty, ecology and breeding grounds for marine life in Crystal River.

   
   

8. In the instant case, the Petitioner has not actually made a showing that the proposed project would actually be in the public interest except to show that the proposed structure may be the only possible way his land may be used while making every possible attempt to minimize environmental damage. That situation is different from what was confronting the court in Yonge v. Askew in that the Petitioner in that case had many alternatives, as the court noted, to develop the real property in question. The court stated, page 101:

   
   

   "The purpose of the development planned by the petitioner is to create a large number of valuable waterfront lots on his uplands, which would border the canals that are to be excavated for that purpose. While such plan would be highly beneficial from a development standpoint, there is no showing that

   such benefits would also redound to the public generally. Petitioner's land borders on the Crystal River and had a considerable amount of riverfront access which could be utilized for

   development purposes without digging navigational channels into the river. While concededly this would not be nearly as desirable or profitable

   as the plan of development evolved by Petitioner, it would be an alternative to such plan if development is to be effectuated."

   
   

9. In this matter, it does not appear that the Petitioner has any such alternatives. If he is to be permitted to build any habitable structure upon his property, it would appear that part of the structure must encroach somewhat beyond the mean high water line. Although it is questionable as to whether there is an element of the public interest involved in this proposed project, it can be said to a certainty that the applicant's plan does not jeopardize the marine community to such an extent as to be contrary to the public interest. Since the Department of Environmental Regulation does has not indicated on this record whether there is any potential for proposals such as the Petitioner's here to proliferate throughout the state, it cannot be stated from the evidence presented at the hearing that any type of precedent will be set which collectively considered can jeopardize the resources of the state. Therefore, it is recommended that the permit be granted.

DONE and ORDERED this 9th day of February, 1976, in Tallahassee, Florida.

KENNETH G. OERTEL

Director

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

David Gluckman, Esquire Department of Environmental

Regulation

2562 Executive Center Circle, East Montgomery Building

Tallahassee, Florida 32301

Guy S. Emerich, Esquire Attorney for Petitioner Post Office Box 635

Punta Gorda, Florida 33950

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

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

BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION

ROBERT LEESON,

Petitioner,

vs. CASE NO. 75-2042

DEPARTMENT OF ENVIRONMENTAL REGULATION,

Respondent.

/

ORDER

The issue in this cause is whether or not the Petitioner qualifies for, and should be issued a permit by the Department to construct a single family residence on pilings, as described in the application, which will extend beyond the mean high water line of Boca Grande Bayou, Boca Grande, Florida.

The Department staff recommended denial of the application. Petitioner, therefore, requested a formal hearing on this matter pursuant to Section 120.57(1), Florida Statutes.

On January 20, 1976, a hearing was conducted by a Division of Administrative Hearings Hearing Officer in Punta Gorda, Florida.

On February 9, 1976, the Hearing Officer submitted his Recommended Order to the Department for final agency action. A copy is attached hereto as Exhibit 1.

The Recommended Order contains findings of fact and conclusions of law, although they are not clearly delineated. It concludes that the requested permit should be issued.

On February 23, 1976, the Department staff filed Objections to the Hearing Officer's Recommended Order.

On April 19, 1976, at a public meeting, this cause was presented to the Secretary of the Department of Environmental Regulation. Oral arguments were presented by attorneys for the Petitioner and the Department. Because of the need for further deliberation, the Secretary deferred ruling in this matter until May 10, 1976.

Having carefully considered the record of the hearing, the exhibits and arguments offered by the parties, and the provisions of the Recommended Order, it is therefore,

ORDERED, as follows:

The Recommended Order dated February 9, 1976, (Exhibit I) be, and the same is hereby adopted, and approved, except as to the following provisions of the Recommended Order, which are expressly modified.

The Hearing Officer correctly recognized, as valid and legitimate, the Department's concern with respect to the cumulative effect on natural resources resulting from a proliferation of dwelling units above navigable waters of the state. He concluded, however, that there was no evidence presented by the Department as to "how many other parties there are throughout the state which could present a similar factual situation; that is, how many landowners there are that own a small strip of upland contiguous to privately owned submerged land where the amount of upland is too small to accommodate a habitable dwelling." (emphasis added) (Pg. 3, Recommended Order).

On page 4 of the Recommended Order, the Hearing Officer, similarly, concluded that:

"Since the Department of Environmental Regulation has not indicated on this record whether there is any potential for proposals such as Petitioner's have to proliferate throughout the state, it

cannot be stated from the evidence presented at the hearing that any type of precedent will be set which collectively considered can jeopardize the resources of the state."

The Hearing Officer erred in his conclusion of law that, in order to consider the cumulative effect of such construction projects, the Department must show, on the record, how many other persons throughout the state have factual situations (with respect

to upland land limitation and submerged land ownership), similar to that of Petitioner. The more appropriate test, consistent with Chapter 253 and Chapter 403, Florida Statutes, is whether there exists a sufficient number of persons owning land along the body of water in question, which have factual situations analogous to the applicant. If the Department show, on the record, that sufficient members of the class exist so as to, by future cumulative effect, significantly and adversely affect the ecological productivity and value of the water body in question to an extent contrary to the public interest, the application must be denied.

The evidence of record in the instant case, does not sufficiently establish cumulative adverse environmental effects on the Boca Grande Bayou resulting from probable future proliferation of such dwelling units constructed over navigable waters of the state. The absence of such a showing by the Department is expressly stated herein, and the adoption of the Recommended Order and the issuance of the requested permit to Petitioner, is predicated upon this omission in the record.

Because of this omission, the issuance of this permit to the Petitioner does not establish an agency practice of unofficial polity in favor of similar applications submitted by other persons in the future. The Department's decision in this case rests on its recognition that its action is limited by what is contained in the formal record before it.

DONE AND ENTERED this 10 day of May, 1976.

FOR THE DEPARTMENT OF ENVIRONMENTAL REGULATION

JOSEPH W. LANDERS, JR.

Secretary

Copies furnished to:

David Gluckman, Attorney for Respondent Guy S. Emerich, Attorney for Petitioner

Docket for Case No: 75-002042

Orders for Case No: 75-002042