STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ED AND JEWELL PETRY, )

)

Petitioner, )

)

vs. ) CASE NO. 77-412

) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

This case came before the undersigned Hearing Officer on Monday, June 6, 1977, at Islamorada, Florida, for a hearing on the application of Petitioners for a permit from the Department of Environmental Regulation.

APPEARANCES

For Petitioner: Kathleen H. Watkins, Esquire

325 Northwest 15th Street Homestead, Florida 33030

For Respondent: Terry Cole, Esquire

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

Tallahassee, Florida 32301

The Petitioners seek to construct a chain link fence in Palm Harbor, an artificial waterbody in upper Matecumbe Key, Monroe County, which is connected to the Atlantic Ocean. The fence would be located at the approximate shoreline. Petitioners own the submerged lands in this area and desire to erect the above fence to keep upland owners from entering the waterbody. The owners in question own upland contiguous to the waters and the Petitioners allege that they need to construct a fence to protect themselves from possible civil liability if any of the neighboring land owners injure themselves while in the waters to which they own the bottoms. The Department of Environmental Regulation opposes the issuance of the permit on the grounds that the fence would be an obstruction to navigation. Various land owners who would be affected by the construction of this fence were not notified of the hearing in question and have subsequently filed objections to the issuance of the permit and have submitted, by their attorney, a memorandum of law.

The proposed project is to be constructed in a yacht basin which was excavated over 25 years ago. The basin has a navigable connection with the Atlantic Ocean. The Department of Environmental Regulation did an appraisal of the permit application and indicated the project would have no adverse affects on the biological resources of the area. However, the department's employee anticipated that the elimination of water access to an area may cause severe

legal problems in the future. (Department's Exhibit No. 6). The Petitioners contend that the area is not navigable and does not come under the department's jurisdiction. However, the department's Exhibit No. 4, a survey done by C. G. Bailey dated July 11, 1962, indicates that the area in question is considered to be yacht basin which is connected to the Atlantic Ocean by a navigable channel.

CONCLUSIONS OF LAW

1. Regardless of whether the area has been artificially excavated, the waters in question are navigable as defined by legions of Florida cases, regardless of who owns the bottom lands. Broward v. Mabry, 50 So.2d 826 (Fla. 1909).

   
   

2. Other than that, the facts in this matter are not in serious dispute. The objections to the proposed project are mostly based on legal grounds, not on different factual interpretations. The department concedes that the project will have no adverse biological effects and the neighbors who may be subject to a loss of water access challenge the Petitioner's right to complete this project. The only relevant issue before the Department of Environmental Regulation and hence before this Hearing Officer is not the bare proposition of whether the Petitioners have a legal right to construct a fence, only whether they are entitled to a permit from the Department of Environmental Regulation. Since the parties concede there are no adverse biological effects to be anticipated should this project be completed, the question may be posed as to whether the department has any justification for denying the permit.

   
   

3. The property owners in this area who object to the construction of this dock may have valid legal objections as to whether the Petitioners may legally obstruct their access to the waters. However, their rights are not necessarily imbued to the Department of Environmental Regulation. The department may only act within its jurisdiction and can grant and deny permits only as authorized by law. Conversely, should the department grant this permit to the Petitioners, that does not in any way indicate they have complete legal rights to construct this proposed fence. The department's permitting powers do not overcome private rights with which these neighbors may be possessed, nor does it relieve Petitioners of complying with the other statutes.

   
   

4. The department rests its objections on questions of impediments to navigation. Rule 17-4.29(6)(b), Florida Administrative Code, of the Department of Environmental Regulation prohibits the permitting of projects which will create a navigational hazard or an impediment to navigation. The above rule in question raises issues which are broader than questions of environmental degradation. As such, it raises questions as to whether the proper standards are applied by the Department of Environmental Regulation when reviewing permit applications.

   
   

5. It is the opinion of this Hearing Officer that under appropriate situations the department is bound to consider not only questions of water quality, but must make determinations as to the overall public interest. As stated in Yonge v. Askew, 293. So.2d 395 (Fla. 1st DCA 1974), questions of permitting decided by environmental agencies must consider the broad spectrum of the public interest. In the case at question, the proposed project will certainly prevent certain riparian land owners access to navigable waters. As such, it will create a serious impediment to navigation for although it will not cause a navigational hazard, it will impede the upland owners from the use of the waters.

6. It can be stated as a general proposition that it is not in the public interest for land owners to block access to navigable waters without strong justification. Regardless of whether the Petitioners own the bottom of the water body in question, all riparian owners have enjoyed certain historically recognized property rights. The proposed project would adversely affect those property rights and create a precedent for the Department of Environmental Regulation that would be contrary to the public interest. Section 120.68(12)(b), F.S., requires all agencies to comply with a type of administrative stare decisis. Should the department grant the above permit it may commit itself to granting similar applications on a state-wide basis. The department is not obligated to close its eyes to the natural consequences of its actions, even if the issues involved may be somewhat removed from the primary regulatory purpose of the agency. It is therefore RECOMMENDED that the application be DENIED.

DONE and ENTERED this 17th day of August, 1977, in Tallahassee, Florida.

KENNETH G. OERTEL, Director

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 17th day of August, 1977.

COPIES FURNISHED:

Kathleen H. Watkins, Esquire

325 Northwest 15th Street Homestead, Florida 33030

Terry Cole, Esquire

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

Tallahassee, Florida 32301

Frederic Schiller, Esquire Post Office Box 938 Marathon, Florida 33050

Docket for Case No: 77-000412

Orders for Case No: 77-000412