Judges: KENNETH G. OERTEL
Agency: Department of Environmental Protection
Latest Update: Jun. 08, 1977
Summary: Grant application to build seawall but require the berm to remain.
76-1555.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
LYNN A. LUNSTROM, )
)
Petitioner, )
)
vs. ) CASE NO. 76-1555
) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )
)
Respondent. )
)
RECOMMENDED ORDER
This matter was brought up for hearing before the undersigned Hearing Officer, County Courtroom, Naples, Florida, on September 30, 1976.
APPEARANCES
For Petitioner: Donald T. Frank, Esquire
Suite A, U.S. Home Building 3174 East Tamiami Trail Naples, Florida 33940
For Respondent: Carole Haughey, Esquire
Department of Environmental Regulation 2562 Executive Center Circle, East Montgomery Building
Tallahassee, Florida 32301
ISSUE
At issue was whether Petitioner should be granted a permit from the Respondent, Department of Environmental Regulation, to excavate material in front of the Petitioner's seawall in Naples Bay, Collier County, Florida. The Petitioner owns a residential homesite lot in the Royal Harbor Subdivision in Naples, Florida. Royal Harbor is a waterfront oriented residential community devoted to single family residences; each residence either has waterfront' on Naples Bay or through a network of interior canals which provide navigational access to Naples Bay. All lots are bordered by concrete seawalls.
The Concrete seawall bordering the Petitioner's property does not Immediately abut the water, but has an amounts of earth between the seawall and the water's edge, somewhat resembling a beach. It is this earth the Petitioner wishes to remove so that he may have his seawall abut the water which would facilitate the launching of a vessel from his property.
Presently, it does not appear that the Petitioner could keep a boat at his property without building a lengthy dock from his seawall into Naples Bay.
The Department of Environmental Regulation opposes the application in that it claims the excavation of this material would destroy an oyster bar which exists in front of the Petitioner's property and would eliminate an ecologically significant area. From the exhibits presented at the hearing and after consideration of the testimony, it appears that in the entire Royal Harbor development only the Petitioner's property lacks having the bay waters abut the seawall. The Petitioner's property is approximately one quarter mile from the channel in Naples Bay which is a low energy water body. That is to say, wave action does not become extremely forceful in this area because of the protected nature of the waterway. The Department of Environmental Regulation in part opposes the permit because they state to remove the berm from in front of the seawall would expose the seawall to direct wave energy which would cause turbidity within the waters. No direct evidence was presented that wee the seawalls in Naples Bay are in direct contact with the water that this ill fact does cause increased turbidity and therefore this testimony is rejected by this Hearing Officer as being merely speculative.
On the other hand, the Petitioner made no showing that the project would actually be in the public interest except to show that the area in question was a relatively small area. Witnesses for the Department of Environmental Regulation stated that were this berm removed and the area converted to a shallow submerged bay bottom, oysters and marine vegetation would eventually propagate here, particularly if the bottom was excavated with a smooth contour. It is difficult to imagine after listening to all the testimony in this case how the granting of this permit would have a measurable environmental Impact. It would appear to this Hearing Officer that there could be some benefit to water quality from the granting of this permit by somewhat restoring Naples Bay to its original condition. Testimony was received that the entire Royal Harbor development was man-made and the removal of this fill would, in some slight degree, remove fill material that had been previously placed within the waters of Naples Bay. Testimony was also received from Mr. Thomas Provenzano, District Supervisor of the Department of Environmental Regulation, that in his opinion it would be environmentally acceptable for the Petitioner to excavate this berm from within five (5) feet of the concrete seawall. This appears to be a reasonable disposition of this dispute. Whatever destructive force the waves of Naples Bay might have on an exposed vertical seawall would be minimized by leaving a five (5) foot berm seaward of that wall and would in no way interfere with the Petitioner's intended use of his land; reasonable navigational access to Naples Bay. It is, therefore,
RECOMMENDED:
The application be granted with the proviso that the Petitioner leave a five (5) foot berm between Naples Bay and his vertical seawall.
DONE and ENTERED this 3rd day of November, 1976, in Tallahassee, Florida.
KENNETH G. OERTEL, Director
Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
(904) 488-9675
COPIES FURNISHED:
Carole Haughey, Esquire Department of Environmental
Regulation
2552 Executive Center Circle, E. Montgomery Building
Tallahassee, Florida 32301
Donald T. Frank, Esquire Suite A, U.S. Home Building 3174 E. Tamiami Trail Naples, Florida 33940
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL REGULATION
LYNN A. LUNDSTROM,
Petitioner,
vs. DOAH CASE NO. 76-1555
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION,
Respondent.
/
FINAL ORDER
By the Department:
On November 3, 1976, the duly appointed Hearing Officer in the above styled matter completed and mailed to the Department and all parties a Recommended Order consisting of his findings of fact, conclusions of law and recommendations, a copy of which is attached hereto as Exhibit "A".
Pursuant to Section 17-1.26(2), Florida Administrative Code, and Section 120.57(1)(a)(8), Florida Statutes, the parties were allowed fifteen (15) days in which to present written exceptions to the Recommended Order. The Department submitted a pleading entitled "Response to the Hearing Officer's Recommended Order", dated November 22, 1976. On December 9, 1976, the Petitioner, through his attorney, submitted a "Response to the Hearing Officer's Recommended Order and the Objection of the Department of Environmental Regulation".
After written notice to the parties, the Recommended Order came before the Secretary, as head of the Department, on December 20, 1976, for entry of the final agency order in this matter.
Pursuant to Section 120.57(9), Florida Statutes, the following guidelines apply to the rendition of this final order:
The agency may adopt the recommended order as the agency's final order.
The agency in its final order may reject or modify the conclusions of law and interpretation of administra- tive rules in the recommended order, but may not reject or modify the findings of fact unless the agency first determines from a review of the complete record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law.
The test to be applied to a finding of fact is whether it is supported by "competent substantial evidence" in the record. "Competent substantial evidence" was defined by the Florida Supreme Court in the following:
Substantial evidence has been described as such evidence as will establish a substantial basis of
fact from which the fact at issue can be reasonably inferred. We have stated it to be such relevant evidence as a reasonable mind would accept as adequate to support a conclusion. In employing the adjective 'competent' to modify the word 'substantial', we are aware of the familiar rule that in administra- tive proceedings the formalities in the introduction of testimony common to the courts of justice are not strictly employed. We are of the view, however, that the evidence relied upon to sustain the ultimate finding should be sufficiently relevant and material that a reason- able mind would accept it as
adequate to support the conclusion reached. To this extent, the 'substantial' evidence should also
be 'competent'. Degroot v. Sheffield, 95 So.2d 912, 916 (Fla. 1957).
(citations omitted)
An effort has been made to fairly apply this test with careful deliberation. After consideration of the entire record, the exhibits, pleadings and Recommended Order, the Secretary, as head of the Department, enters the following findings:
Competent Substantial Evidence Was Not Presented Which Supports A Finding That, In the Entire Royal Harbor Development, Only Petitioner's Property Lacks Having the Bay Waters Abut the Seawall.
There is no evidence in the record to support a finding that, in the entire Royal Harbor development, only the Petitioner's property lacks having the bay waters abut the seawall. The record is replete with testimony by both the Petitioner's and the Department's witnesses that the seawall immediately north of Petitioner's property is rip rapped on the bay side and that approximately two-thirds (2/3) of the seawall immediately south of Petitioner's property is flanked by a 28 feet wide oyster beach similar to that along Petitioner's seawall. Petitioner's exhibits 1, 2 and 3, color photographs of the project area, additionally support this modification of the Hearing Officer's findings of fact with respect to water front properties in the Royal Harbor development.
Competent Substantial Evidence Was Presented To Support A Finding That Additional Natural Shorelines Exist In The General Vicinity of Petitioner's Property.
Department witness, Allyson Ayers, testified that to the west, across the bay; and to the north, across the canal, from Petitioner'se property, additional natural shorelines do exist along Naples Bay.
This testimony was not rebutted at the hearing held on this matter, and is held competent and substantial for the purpose of accurately describing the general vicinity of the subject property. In that such finding is inapplicable to the Royal Harbor development per se, it is entered as an additional finding of fact, rather than a modification as set forth in finding "I" above.
Competent Substantial Evidence Was Not Presented Which Supports A Finding That, Were the Berm Removed From Petitioner's Property, and the Area Converted To A Shallow Submerged Bay Bottom, Oysters and Marine Vegetation Would Eventually Propagate There, Particularly If the Bottom Was Excavated With A Smooth Contour.
Petitioner presented no evidence, in the record, with respect to the reestablishment of oysters and marine vegetation subsequent to the proposed dredging. Witnesses for the Department, Allyson Ayers and Thomas Provenzano, testified that, were the subject berm removed, the marine community, in all probability, could not reestablish.
Kevin Erwin, expert witness for the Department, testified that, in light of the existing elevations adjacent to the project area, such excavation could not be accomplished. Mr. Erwin further reiterated Ms. Ayers and Mr. Provenzano's statements that reestablishment of marine vegetation along the project site was highly unlikely.
Having considered the Recommended Order, including Findings of Fact and Conclusions of Law, together with the pleadings and entire record in this case, it is, therefore,
Ordered by the State of Florida Department of Environmental Regulation as follows:
Findings of Fact heretofore contained in this Order are hereby adopted and approved.
The Findings of Fact and Conclusions of Law contained in the Recommended Order (Exhibit A), to the extent that each is consistent with and not contrary to the Findings adopted in paragraph 1. above, are hereby adopted and approved.
To the extent that any Finding of Fact or Conclusion of Law contained in the Recommended Order (Exhibit A) conflicts with, or is contrary to the Findings of Fact adopted in paragraph 1. above, each is expressly rejected.
The Recommendation contained on page 3 of the Hearing Officer's Recommended Order is hereby adopted and approved.
The Application submitted by Petitioner for a permit to dredge lands under navigable waters of the state, located in Naples Bay, Florida, is hereby granted with the following conditions:
Petitioner will leave a five (5) foot berm between Naples Bay and his vertical seawall;
A Department permit authorizing this dredging activity shall be issued forthwith by the District Manager of the South Florida District Office of the Department.
Done and Entered this 25th day of January, 1977, in Tallahassee, Florida.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
JOSEPH W. LANDERS, JR.
Secretary
2562 Executive Center Circle, East Montgomery Building
Tallahassee, Florida 32301
Donald T. Frank, Esquire Carole B. Haughey, Esquire Office of Enforcement, DER
Philip R. Edwards, South Florida District Manager, DER Department of Natural Resources Marine Patrol
Game and Fresh Water Fish Commission
U.S. Army Corps of Engineers
Docket for Case No: 76-001555
Orders for Case No: 76-001555
