J. APPLE, )
)
Petitioner, )
)
vs. ) CASE NO. 76-2203
) STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, G. Steven Pfeiffer, held a public hearing in this case on May 17 and 18, 1977, in St. Petersburg, Florida.
The following appearances were entered:
APPEARANCES
For Petitioner: John T. Allen, Jr., Esquire
4508 Central Avenue
St. Petersburg, Florida 33711
For Respondent: Carole Haughey, Esquire
Assistant General Counsel
Department of Environmental Regulation 2562 Executive Center Circle, East Montgomery Building
Tallahassee, Florida 32301
On or about February 14, 1974, G. J. Apple ("Petitioner" hereafter) filed an application for a landfill permit with the Board of Trustees of the Internal Improvement Trust Fund. During the pendency of the application, dredge and fill permitting functions previously exercised by the Board of Trustees were transferred to the Department of Environmental Regulation. On or about October 15, 1976, the Department of Environmental Regulation ("Respondent" hereafter) issued its Notice of Intent to Deny the Permit Application. The Petitioner thereafter filed the instant petition. In accordance with Section 120.57(1)(b)(3), Florida Statutes (1976 Supp.) the Respondent forwarded the petition to the office of the Division of Administrative Hearings for the assignment of a hearing officer and the scheduling of a hearing. The Respondent filed an Answer to the petition, and a Motion to Abate further consideration of some of the matters raised in the petition. The motion was denied by Order entered January 31, 1977. The final hearing was originally scheduled to be conducted on March 7, 1977. The Respondent filed a Motion for Continuance, which was granted. The final hearing was rescheduled as set out above.
Through his permit application the Petitioner is seeking approval to extend a landfill known as Three Palms Point in Boca Ciega Bay located within the city limits of St. Petersburg Beach, Florida. The Respondent contends that the Petitioner has failed to establish that the proposed landfill is in the public interest, that the proposed landfill would not interfere with natural resources, and that the proposed landfill would not degrade the waters of Boca Ciega Bay.
The Petitioner called the following witnesses: G. J. Apple, the Petitioner; James King, a registered engineer and registered land surveyor; Robert L. Petro, a resident of Three Palms Point; Nancy Stoller, a resident of Three Palms Point; Kathryn Dobrow, a resident of Three Palms Point; Ann Swierczack, a resident of Three Palms Point; Sherry Lynn Fears, a resident of Three Palms Point; Dean Aikin, a title officer with Fidelity Insurance Company of St. Petersburg; Chiranji Kumar Sarkar, a hydrographic engineer employed with a private engineering company in Naples, Florida; and Robert James Reimold, a marsh and coastal ecologist employed as an adjunct assistant professor, Department of Zoology, University of Georgia. The Petitioner called the following witnesses: Otis M. Whitney, a resident of Three Palms Point; Jacob Ceppos, a resident of Three Palms Point; Charles B. Knight, a biologist employed by the Florida Game and Fresh Water Fish Commission; Murray Lewis Brown, a marine ecologist employed by the Respondent; Allen G. Burdett, Jr., an environmental specialist employed with the Respondent; Suzanne Phillips Walker, a field inspection supervisor employed by the Respondent; and R. S. Murali, a hydrographic engineer employed by the Respondent.
Hearing Officer's Exhibits 1-11, Petitioner's Exhibits 1-72, and Respondent's Exhibits 2 and 5-39 were offered into evidence at the hearing and were received. Respondent's Exhibits 1, 3, and 4 were marked for identification at the hearing but were neither offered nor received. The parties have submitted post- hearing memoranda of law. Counsel for the parties accompanied the undersigned hearing officer on a view of the site of the proposed landfill. Observations made at the view are evidence in the case, and have been considered in the formulation of the following Findings of Fact.
FINDINGS OF FACT
Three Palms Point is a residential subdivision located within the city limits of St. Petersburg Beach, Florida. Three Palms Point is situated on a landfill which extends into Boca Ciega Bay. The site of the subdivision was originally purchased as submerged land from the Board of Trustees of the Internal Improvement Trust Fund. The purchaser filled the submerged land to coincide precisely with his purchase. The original Three Palms Point landfill is depicted on an aerial photograph that was received in evidence as Petitioner's Exhibit 3. This photograph was taken in 1957, and the landfill is circled with yellow ink on the photograph. Petitioner's Exhibit 2 is an engineer's drawing which depicts the original landfill. In August, 1970 the Petitioner purchased a portion of Three Palms Point. The Petitioner has constructed homes on a portion of the Three Palms Point landfill including the end, or easternmost finger. The present dimensions of the easternmost finger are depicted in an aerial photograph that was received in evidence as Petitioner's Exhibit 1. This photograph was taken in February, 1977. Several lines have been drawn on the photograph. The outermost line shows the limits of the original landfill. Considerable erosion has taken place, and the present high water mark is clearly evident in the photograph. Through the instant application the Petitioner is seeking to fill the land within the second line shown on Petitioner's Exhibit 1. Petitioner intends to construct four new homes on the filled area.
The easternmost finger of the Three Palms Point landfill has only been partially bulkheaded. In the approximately twenty years that the landfill has been in existence, approximately 200 feet of the fill has eroded away. The amount of erosion is clearly evident in the photograph that was received in evidence as Petitioner's Exhibit 1. Erosion is continuing at the present time. The uplands of the landfill meet the water at a steep embankment which is very unstable. Three of the homes that have been constructed on the easternmost finger are presently and immediately jeopardized by the continuing erosion.
When the Petitioner acquired this property he immediately sought approval to dredge a channel around the original limits of the easternmost landfill, and to fill the entire area. Petitioner did not succeed in obtaining local government approval for this proposal. Petitioner was advised to eliminate his proposed dredging, and to limit the landfill as in his present application.
The entire area that the Petitioner wishes to fill constitutes .55 acre. Petitioner proposes to use uplands landfill, and to place a bulkhead around the fill to prevent further erosion. The landfill proposed by the Petitioner is the least amount of fill that would permit the Petitioner to construct houses on the finger within local zoning ordinances. Approximately 4,000 cubic yards of material would be required to complete the landfill.
At low tide nearly all of the proposed fill area, and a broader area extending to the east and the south of the proposed landfill site is out of water. At high tide nearly all of the site is submerged. This type of environment is known as a littoral, or transitional zone between the uplands and submerged lands. This particular littoral zone is not a natural transitional area as would occur along the unbulkheaded and undeveloped shorelines of Boca Ciega Bay. The zone has resulted from the erosion of a landfill. There is considerable debris, including deteriorated riprap, junk that has been dumped in the area, and spilled cement.
Various types of algae exist within the area proposed to be filled. The only grass that grows in the area is Cuban Shoalweed. Cuban Shoalweed is the only vegetation other than algae which has been found to any degree at the site. Cuban Shoalweed dies back and disappears during winter months, and reestablishes itself during summer months. Nearly all of the Cuban Shoalweed visible at the time of the hearing was outside of the proposed fill area.
During summer months it is probable that some Cuban Shoalweed would be present within the fill area. The Cuban Shoalweed exists in patches, and does not cover the area.
A variety of marine animals have been identified at the proposed fill site. Many mollusks, including oysters, a variety of clams, and mussels are present at the site. Several varieties of crabs were identified. At high tide fish swim into the area. Shore and wading birds have been observed in the area. The most prevalent animal life in the area is clams. Several heavily populated clam beds are located within, and just outside of the proposed landfill site. None of the organisms observed at the site are endangered organisms. It is apparent that the site is not a particularly suitable natural habitat, except apparently for clams.
Continuing erosion of the easternmost point of the Three Palms Point subdivision presents an immediate danger to homeowners. Erosion which has averaged approximately ten feet per year during the past twenty years, is continuing to occur at a rate of from two to three feet per year. A large storm
is likely to prove disastrous. In order to protect present homeowners, it is essential that some sort of seawall be constructed at the point. The seawall proposed by Petitioner provides the most protection. A rounded seawall will disperse wave action along the seawall. A seawall constructed along the present high water line would provide considerably less protection. High winds coming from the prevailing wind direction during the stormiest seasons would hit the present shoreline at a severe angle. When a wave hits a shoreline at an angle part of the energy is dispersed. This is called long shore energy flux, and results in littoral drift. High winds would cause an extreme littoral drift along the present shoreline. Bottom sand would be loosened, and the seawall would be undermined. The waves would strike the seawall proposed by the Petitioner at a significantly lesser angle, and long shore energy flux would be approximately one-fourth as much as with a seawall constructed along the present shoreline.
Littoral or transitional zones provide a significant function for maintaining the water quality of a water body. Runoff from the uplands is filtered through the vegetation of the littoral zone. The vegetation serves to filter the uplands runoff by assimilating nutrients in the runoff. Without such a filtering mechanism, the quality of a water body would rapidly deteriorate, especially in a heavily populated area. The littoral zone involved in this case provides an insignificant filtration system. The only vegetation is Cuban Shoalweed, which is sparce and totally non-existent during winter months.
Construction of the proposed landfill could cause considerable turbidity if proper steps are not taken to prevent it. Turbidity would be very detrimental, at least on a temporary basis, to the waters of Boca Ciega Bay. Turbidity can be adequately controlled through the use of screening devices.
If the Petitioner's permit application is approved, a .55 acre habitat for a variety of marine organisms would be lost. Crabs and clams would likely reestablish themselves in the areas just outside of the proposed landfill. Many of the creatures could be relocated to other more natural littoral zones in the area.
Most of the residents of Three Palms Point appear to favor the proposed landfill. This opinion is not, however, unanimous. Residents who support the proposal testified of their concern with the continuing erosion in the area. Some witnesses were concerned that the area has become a dumping ground, and attracts recreational users for whom there are not adequate facilities. Persons who testified in opposition to the project expressed environmental concerns, and concerns with the disruption that construction in the area would inevitably cause.
The testimony was not clear as to the present status of local government authorization of the project. It appears that the Petitioner has received local approval, but that during the two years that his application has been pending before the Respondent, the approval has lapsed.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to this action, and over the subject matter. Sections 120.57(1), 120.60, Florida Statutes (1976 Supp.).
In order to undertake a landfill project, it is necessary to obtain a permit from the Respondent. Chapters 253, 403, Florida Statutes (1975). An
applicant for a permit has the burden of affirmatively providing reasonable assurance that the short term and long term effect of the project will not cause pollution, and will not result in violations of the water quality criteria and standards of the Florida Statutes and the Rules and Regulations of the Respondent. Rules 17-4.07(1), 17-4.28(3), Florida Administrative Code. The applicant also has the burden of establishing that the proposed project will not interfere with natural resources to such an extent as to be contrary to the public interest. Rule 17-4.29(6)(8) Florida Administrative Code. The applicant has the further burden of establishing that the proposed project would be in the public interest. Young v. Askew 293 So.2d 395 (1 DCA Fla. 1974).
The Respondent has contended that the Petitioner does not own the property which he proposes to fill. This contention is without merit. Petitioner's predecessor purchased submerged land from the Board of Trustees of the Internal Improvement Trust Fund. He filled the land he purchased. Erosion of the landfill does not defeat title to the submerged lands. Cases in which the courts have held that land lost by erosion reverts to ownership by the State do not apply when the submerged land was purchased from the State.
The landfill proposed by the Petitioner is in the public interest. It is apparent that the Petitioner's primary motivation for the project is his private profit. That motivation clearly is not the public interest, but is merely the Petitioner's private interest. Young v. Askew, Supra. Protecting the homes of the residents of Three Palms Point is a matter for the public interest. If a seawall is not constructed in the area there is a good possibility of erosion destroying homes on the point. The seawall proposed by the Petitioner offers the best protection to existing homeowners.
The Petitioner has provided reasonable assurance that the proposed project will have no effect upon the water quality of Boca Ciega Bay. The area to be filled serves no significant function to preserve the quality of water. Petitioner's proposed landfill will interfere with a habitat of a variety of marine organisms. The extent of the interference is, however, very small, and is not such as to be contrary to the public interest. Animal life which would lose its habitat due to the project could be relocated.
The Petitioner's application for a landfill permit should be granted.
