STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WERNER JUNGMANN, )

)

Petitioner, )

)

vs. ) CASE NO. 81-551

) STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION ) and HARVEY B. ULANO, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing in the above case was held before the Division of Administrative Hearings, by its duly designated Hearing Officer, DONALD R. ALEXANDER, in Stuart, Florida, on April 30, 1981.

APPEARANCES

For Petitioner: Ernon N. Sidaway, III, Esquire

Post Office Box 3388

Fort Pierce, Florida 33454

For Respondent/ Edward B. Galante, Esquire Applicant: Florida National Bank Building

301 East Ocean Boulevard, Suite 310 Stuart, Florida 33494

For Respondent: Alfred J. Malefatto, Esquire

Assistant General Counsel 2600 Blair Stone Road Tallahassee, Florida 32301

BACKGROUND

By application dated October 27, 1980, Respondent/Applicant, Harvey B. Ulano, requested that Respondent, Department of Environmental Regulation, issue a permit to construct a private pier for mooring a sailboat on his property on the North Fork, St. Lucie River, in St. Lucie County. On January 23, 1981, the Department issued its letter of intent to issue the requested permit with certain conditions and concurrently served a copy of said letter upon the adjacent property owners. On February 23, 1981, the letter was reissued to an adjacent property owner who had inadvertently been omitted form the earlier mailing list. On March 9, 1981, Petitioner, Werner Jungmann, timely requested a formal hearing pursuant to Section 120.57(1), Florida Statutes, to contest the issuance of the permit. As grounds for objecting to the issuance of the permit, Petitioner alleged that the proposed project would "project into the waters bordering Petitioner's property in such a manner as to substantially impair Petitioner's riparian rights," and that the Department "has the obligation under

the laws of the State of Florida and its own rules (See, e.g., Florida Statutes 161.201) to consider and protect the riparian rights of adjoining property owners."

On March 17, 1981, the matter was forwarded to the Division of Administrative Hearings with a request that a Hearing Officer be assigned to conduct a hearing. By Notice of Hearing dated April 13, 1981, the final hearing was scheduled for April 30, 1981, in Stuart, Florida.

At the final hearing, Respondent/Applicant testified on his own behalf and called George Kulczyckie as its witness, and offered Applicant's Exhibits 1-11; all were received into evidence except Exhibit 11 upon which a ruling was reserved. Respondent DER called George Kulczycki and Alfred E. Walker, IV as its witnesses and offered DER Exhibits 1 and 2, both of which were received into evidence. Petitioner presented no evidence.

Proposed findings of fact and conclusions of law have been filed by Respondent/Applicant on May 14, 1981, and have been considered by the undersigned in the preparation of this order. Findings of fact not included in the preparation of this order were not considered relevant to the issue, were not supported by competent and substantial evidence, or were considered immaterial to the results reached.

The issue to be determined is whether Respondent/Applicant is entitled to a permit to construct a private pier for mooring a sailboat on the North Fork, St. Lucie River, in St. Lucie County.

Based upon all the evidence, the following facts are determined:

FINDINGS OF FACT

1. By application filed on October 29, 1980, Respondent/Applicant, Harvey

   B. Ulano, sought the issuance of a permit from Respondent, Department of Environmental Regulation, to authorize the construction of a private pier for mooring a sailboat at 2640 Northwest Collins Cove Road, Stuart, Florida. A copy of the permit application may be found as DER Exhibit 1. The property in question lies on the North Fork of the St. Lucie River in St. Lucie County. The River is classified as a Class III Water of the Sate.

   
   

2. Respondent/Applicant's proposal was received by the Department and reviewed for compliance with applicable State water quality standards. The Department concluded that all statutory and rule requirements, criteria, standards and provisions had been met, including those pertaining to biological productivity impact, water quality and navigation.

   
   

3. On January 23, 1981, the Department issued its Letter of Intent to Issue a permit with certain conditions therein, including a prohibition against any dredging and filling associated with the project, the required restoration of submerged lands disturbed by construction activities to their original configuration, the employment of an effective means of turbidity control, and a prohibition against live aboards on boats docked at the pier. A copy of the Letter of Intent to Issue may be found as DER Exhibit 2.

4. The applicant intends to construct a 276 foot long pier from an existing concrete retaining wall on his property which fronts the St. Lucie River. The pier will be built at a perpendicular angle with the shoreline and will be 6 feet wide for the first 240 feet, and 12 feet wide for the remainder of its length. There will be no building or boathouse constructed on the dock, nor will pilings extend above the docking until the area where the boats will be tied.

   
   

5. The river is approximately 1500 to 2000 feet wide at the proposed project site. However, the depth of the water close to the shoreline is not sufficient to moor larger boats at low tide. Therefore, it is necessary that the length of the pier be 276 feet in order to insure a minimum 3-foot water depth at all times.

   
   

6. Applicant's lot is odd-shaped in size. The waterfront footage is approximately 135 feet. Its sides measure approximately 330 feet on the north boundary and 200 feet on the south. The property of Petitioner, Werner Jungmann, adjoins that of Applicant on the south side and also fronts the river. The pier will be constructed on the northwest corner of Ulano's property, which is the most distant point from Jungmann. Because of the odd shapes of the Applicant's and Petitioner's lots, the end of the pier will project slightly within the lakeward extension of Jungmann's property line. However, the design of the pier is such that it should not obstruct or impair the view of the river now enjoyed by the Petitioner. Navigation in the river and existing channel adjacent to the pier will not be affected by the proposed activity. The shallow water depth in the river next to the shoreline already precludes movements by boats close to the shore.

   
   

7. The Department has imposed certain conditions upon the construction and future use of the pier (DER Exhibit 2). These conditions, together with the plans submitted by Applicant (DER Exhibit 1), constitute reasonable assurances that the short-term and long-term effects of the proposed activity will not result in violations of the water quality criteria, standards, requirements and provisions of the Florida Administrative Code, and that the proposed activity will not discharge, emit or cause pollution in contravention of Department standards, rules or regulations.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties thereto pursuant to Section 120.57(1), Florida Statutes.

   
   

9. The standards for the issuance or denial of Ulano's application are found in Rules 17-4.07(1) and 17-4.28(3), Florida Administrative Code. The former rule provides in part that:

   
   

   1. A permit may be issued to the applicant upon such conditions as the Department may direct, only if the applicant affirmatively provides the Department with reasonable assurance based on plans, test results

      and other information, that the construction, expansion, modification, operation or activity of the installation will not discharge, emit, or cause pollution in contravention of Department standards, rules or regulations.

      Rule 17-4.28(3), supra, provides in pertinent part that:

      
      

      (3) The applicant for a dredge and/or fill permit. . .shall affirmatively provide reasonable assurance to the department that the short-term and long-term effects of the activity will not result in violations of the water criteria, standards, requirements and provisions of Chapter 17-3, Florida Administrative Code.

      
      

10. The First District Court of Appeals has recently articulated the basic allocation of burdens and order of presentation in a DER permit proceeding. See Florida Department of Transportation v. J.W.C. Company, Inc. et al, So.2d , No. 00-501 (Fla. 1st DCA op. filed 3/27/81). There the Court stated that "an applicant for a license or permit carries the 'ultimate burden of persuasion' of entitlement throughout all proceedings, of whatever nature, until such time as final action has been taken by the agency." Thus, the Applicant has the burden to go forward with the evidence initially, and to present a prima facie case in support of its application. Having done so, the burden of proof is then case upon the Petitioner to go forward with evidence to prove the truth of the facts asserted in his petition. If the Petitioner fails to present evidence, or fails to carry the burden of proof as to the controverted facts asserted - assuming that the Applicant's preliminary showing before the hearing officer warrants a finding of reasonable assurances - then the permit must be approved.

    
    

11. In the instant proceeding, the Respondent/Applicant has by credible and credited evidence shown his entitlement to the requested permit. Petitioner presented no evidence, and failed to carry the burden of proof as to the controverted facts asserted. Therefore, the requested permit should be issued.

    J.W.C. Company, Inc., supra.

    
    

12. The Petitioner's objection to the receipt in evidence of Respondent/Applicant's Exhibit 11 is hereby sustained.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Environmental Regulation issue

Respondent/Applicant, Harvey B. Ulano, a permit to construct a private pier for mooring a sailboat on the North Fork, St. Lucie River, subject to those conditions set forth in the Department's Letter of Intent to Issue dated February 23, 1981.

DONE and ENTERED this 29th day of May, 1981, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 1981.

COPIES FURNISHED:

Ernon N. Sidaway, III, Esquire Post Office Box 3388

Fort Pierce, Florida 33454

Alfred J. Malefatto, Esquire Assistant General Counsel

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

Edward B. Galante, Esquire Suite 310

Florida National Bank Building

301 East Ocean Boulevard Stuart, Florida 33494

Docket for Case No: 81-000551

Orders for Case No: 81-000551