STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN C. CROSS, )

)

Petitioner, )

)

vs. ) CASE NO. 76-1238

) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled cause on September 14, 1976 at New Smyrna Beach, Florida.

APPEARANCES

For Petitioner: John C. Gross

Post Office Box 956

New Smyrna Beach, Florida 32069

For Respondent: Vance W. Kidder, Esquire

Staff Attorney

Department of Environmental Regulation 2562 Executive Center Circle E. Montgomery Building

Tallahassee, Florida 32301

By application filed June 14, 1973 the Petitioner, John C. Gross, seeks authority to dredge a Z-shaped canal 50 feet wide, approximately 6 feet deep, and 775 feet long across property he owns with openings on the Garbordy Canal to the north and on the intracoastal waterway (ICW) to the southeast. In addition Petitioner proposes to remove a shoal near the eastern end of the Garbordy Canal in the vicinity of his property. Following investigation of the application and several conferences with Mr. Gross the Respondent, by letter of May 18, 1976, advised Petitioner that he had failed to give reasonable assurances that the proposed project would not degrade water quality standards and violate rules and regulations promulgated by the department and that the department intended to- deny his application. The letter further advised him of his right to an administrative hearing at which he would be given an opportunity to show that his proposed project was in compliance with applicable statutes and rules and regulations of the department.

At the requested hearing five witnesses, including Petitioner, testified on behalf of the Petitioner, one witness testified on behalf of the Respondent, and

8 exhibits were admitted into evidence.

FINDINGS OF FACT

1. Petitioner, John C. Gross, owns a tract of land south of the Garbordy Canal and west of the ICW near New Smyrna Beach which he proposes to develop as residential waterfront property. This property is outlined in red on Exhibit 1.

   
   

2. Garbordy Canal is an east-west canal installed many years ago to drain the upland area into the Indian River (and ICW). It is 700 feet long and 50 feet wide, and has a depth varying between 1 - 3 feet. It was last dredged some

   20 years ago when dredge material was removed to deepen the canal east of the fixed bridge to a depth of approximately 6 feet. The area of the canal west of the fixed bridge has always been shallow and the bridge itself precludes the entry of all but small craft.

   
   

3. Public witnesses testifying on behalf of the Petitioner were interested primarily in the removal of the shoal in and/or deepening of the Garbordy Canal. It was generally contended that the erosion that has occurred near the eastern end of Petitioner's property was caused by the shoal that has developed eastward of this erosion, and no evidence to rebut this somewhat suspect hypothesis was presented. These witnesses generally contended that the drainage of the area served by the Garbordy Canal would be improved if the canal was deepened; however, since this application does not propose to deepen the Garbordy Canal, the accuracy of this contention is immaterial and irrelevant.

   
   

4. The primary interest of the Petitioner is in the construction of the z- shaped canal across his property. To accomplish this it will be necessary to remove the mangroves at the southeastern end of the proposed canal. No evidence was presented by Petitioner to show what effect the construction of the canal would have on the water quality of the area or what effect the canal would have on the ecology of the area. All that was presented was the vague and general opinions of non-expert witnesses that they didn't think the canal would cause any damage to the ecology and the further opinion that it would increase the drainage capacity of the area by providing an alternate water path to the Garbordy Canal.

   
   

5. The project site is in the northern end of the Mosquito Lagoon Aquatic Preserve.

   
   

6. One biologist testified in opposition to the petition. Based upon his inspection of the site and study of the proposed project he concluded that the project would destroy 10,000 square feet of productive littoral zone; increased depths in the Garbordy Canal would contribute to degradation of water qualities; and the elimination of the littoral zone would eliminate biological filter, marine nursery grounds, and feeding grounds for marine animals and water birds. He further concluded that turbidity resulting from construction activities would cause siltation of adjacent areas of shoreline vegetation.

   
   

   CONCLUSIONS OF LAW

   
   

7. The waterward boundaries of Petitioner's property abut lands owned by the State. Section 253.03 F.S. provides in part that lands vested in the Board of Trustees of the Internal Improvement Trust Fund shall include all tidal lands. Therefore in order for Petitioner to complete his Z-shaped canal it is essential that he occupy state owned lands located in the Mosquito Lagoon Aquatic Preserve.

   
   

8. Section 258.42 F.S. provides in pertinent part that:

   "The Board of Trustees of the Internal Improvement Trust Fund shall maintain such aquatic preserves subject to the following provisions:

   1. No further sale, lease or transfer of sovereignty submerged lands shall be approved or consummated by the trustees except when such sale, lease, or transfer is in the public interest."

      
      

9. Here Petitioner produced no evidence that the proposed project is in the public interest. General reference to increased tax base without reference to the public costs associated with the proposed development is not sufficient to show that the proposed project is in the public interest.

   
   

10. Further Petitioner presented no evidence that the A construction and/or operation of the project would not degrade the water quality of the area as provided in Chapter 17-3 F.A.C.

    
    

11. From the foregoing it is concluded that Petitioner failed to prove that the completion of his application is in the public interest or that the construction and operation of the project will not adversely affect the water quality standards in the area involved. It is therefore,

RECOMMENDED that the application of John C. Gross to install a Z-shaped canal across his property located south of the Garbordy Canal and west of the ICW be DISAPPROVED.

DONE and ENTERED this 25th day of October, 1976, in, Tallahassee, Florida.

K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

John C. Gross

P. O. Box 956

New Smyrna Beach, Florida 32069

Vance W. Kidder, Esquire

2562 Executive Center Circle E. Montgomery Building Tallahassee, Florida 32301

Docket for Case No: 76-001238

Orders for Case No: 76-001238