STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THADDEUS J. MAJESKI, )

)

Petitioner, )

)

vs. ) CASE NO. 76-589

) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held on the above captioned matter on July 7, 1976, at Pensacola, Florida.

APPEARANCES

For Petitioner: F.B. ESTERGREN, ESQUIRE

Estergren, Fortune Anchors, P.A. Post Office Drawer F

Ft. Walton Beach, Florida 32548

For Respondent: WILLIAM P. WHITE, JR., ESQUIRE

Department of Environmental Regulation 2562 Executive Center Circle, East Montgomery Building

Tallahassee, Florida 32301

For Intervenor: ARTICE L. McGRAW, ESQUIRE

26 East Garden Street Pensacola, Florida 32501

1. This matter involves a dispute between the Petitioner, Thaddeus Majeski, and the Department of Environmental Regulation concerning an application to that Department by the Intervenor, Frank Spain. Mr. Spain has applied to the Department of Environmental Regulation for am after the fact permit authorizing the construction of a breakwater upon Mr. Spain's property and Santa Rosa Sound, Gulf Breeze, Florida. Mr. Spain has a waterfront residence on the waters of Santa Rosa Sound and erected this bulkhead fairly recently, without the benefit of authorization from the Department of Environmental Regulation. Subsequently, Mr. Spain applied for such lawful authorization which the Department of Environmental Regulation has indicated it is prepared to issue.

   
   

2. The bulkhead in question is of a slightly irregular shape and was constructed in that manner so to preserve a large pine tree which has become jeopardized by the erosive forces of the wind and waves upon the shore. The tree in question, prior to the construction of the breakwater, existed perilously close to the salt waters of Santa Rosa Sound and was threatened with

destruction by the harmful affects of salt water upon it. The Petitioner, Mr. Majeski, is an immediate neighbor to Mr. Spain and has opposed the issuance of the permit application on the grounds that the uneven shape of the seawall has caused his beachfront, which is immediately east of Mr. Spain's property, to erode. According to Mr. Majeski, Mr. Spain's seawall is constructed "like the prow of a ship" and causes the waves to be directed against his shoreline causing erosion to take place thereby damaging Mr. Majeski's property. Mr.

Majeski testified that at the suggestion of an official of the Department of Environmental Regulation he placed numerous automobile tires in front of his property which did cause some build up of sand, however, he was later told he would have to get a permit for the placement of those tires and then remove them. He said after they were removed the sand that had accumulated there washed away. Other landowners in the area testified that they observed no substantial erosion on Mr. Majeski's property before or after Mr. Spain constructed his seawall. They stated that the shoreline in this area has been slowly eroding over the years but that Mr. Majeski has suffered no more than any other landowner here. These landowners testified that the erosion along this shoreline is seasonal, that is to say, during certain parts of the year the shoreline will erode, but at other times in the year, much of this erosion will be replaced by natural forces. After reviewing all of the evidence in this case, it is the finding of this Hearing Officer that the Petitioner, Mr.

Majeski, has not demonstrated that Mr. Spain's seawall has caused him any greater harm than that experienced by landowners on Santa Rosa Sound. It appears that whatever erosion he may have suffered is only the common seasonal erosion typical of this area.

In all other respects, this permit application appears to be in order. The Petitioner presented no other claim or reasons as to why the permit should not be issued. The Department of Environmental Regulation stated through its witnesses that they could see no reason why this permit should not be issued.

It is therefore RECOMMENDED that the Petition be denied and that the permit be issued.

DONE and ORDERED this 28th day of July, 1976, in Tallahasse, Florida.

KENNETH G. OERTEL, Director

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

(904) 488-9675

COPIES FURNISHED:

F. B. Estergren, Esquire

P. O. Drawer F

Ft. Walton Beach, Florida 32548

William P. White, Esquire

Department of Environmental Regulation 2562 Executive Center Circle, East Montgomery Building

Tallahassee, Florida 32301

Artice L. McGraw, Esquire

26 East Garden Street Pensacola, Florida 32501

Docket for Case No: 76-000589

Orders for Case No: 76-000589