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SHIRLEY ZELLER vs. JAMES HOOPER GREW, JR., AND DEPARTMENT OF ENVIRONMENTAL REGULATION, 81-001766 (1981)

Court: Division of Administrative Hearings, Florida Number: 81-001766 Visitors: 6
Judges: D. R. ALEXANDER
Agency: Department of Environmental Protection
Latest Update: Jan. 20, 1982
Summary: Application for permit to install a ski slalom course denied.
81-1766.PDF

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS


SHIRLEY ZELLER, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1766

)

JAMES HOOPER GREW, JR., )

and STATE OF FLORIDA, ) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondent. )

)


RECOMMENDED ORDER


Pursuant to notice, a formal hearing was held in the above case before the Division of Administrative Hearings by its duly designated Hearing Officer, DONALD R. ALEXANDER, on October 20, 1981, in Winter Haven, Florida.


APPEARANCES


For Petitioner and Jack P. Brandon, Esquire Intervenor Lake Florence Post Office Box 1079 Property Owners Association: Lake Wales, Florida 33853


For Respondent: William W. Deane, Esquire 2600 Blair Stone Road Tallahassee, Florida 32301


For Respondents Andrew R. Reilly, Esquire

Applicant: Post Office Box 2039 Haines City, Florida 33844


BACKGROUND


By application filed on March 31, 1981, Respondents Applicant, James Hooper Grew, Jr., sought the issuance of a permit from Respondent, Department of Environmental Regulation, to construct and install a twenty-two (22) buoy water ski slalom course using an 850 foot cable and covering a section of Lake Florence near Winter Haven, Florida. On June 19, 1981, the Department issued its Permit Number 53-41460-3E authorizing Applicant to construct the subject pollution source with certain conditions. A timely objection and request for hearing pursuant to Subsection 120.57(1), Florida Statutes, was thereafter filed by Shirley Zeller, a property owner on Lake Florence, on the ground Lake Florence was a "wildlife sanctuary and a fisherman's lake" and not suitable for the installation of a ski slalom course. Respondent transmitted the matter to the Division of Administrative Hearings on July 8, 1981, with a request that a Hearing Officer be assigned to conduct a hearing. By Notice of Hearing dated

August 5, 1981, the matter was scheduled for final hearing on September 22, 1981, in Winter Haven, Florida. At the request of Petitioner, and without objection from Respondent and Applicant, the final hearing was rescheduled to October 20, 1981, at the same location.


On July 24, 1981, the Lake Florence Property Owners Association, which opposed the application, filed its Petition for Leave to Intervene pursuant to Rule 28-5.202, Florida Administrative Code as grounds for objecting to the issuance of the requested permit, Intervenor claimed "the location of the ski slalom course on Lake Florence (would) have a detrimental affect (sic) on the lake itself and on the use of enjoyment of the lake." By order dated August 24, 1981, the Petition was granted and Intervenor given party status in this proceeding.


At the final hearing, Petitioner testified on her own behalf and Intervenor presented the testimony of Colonel W. W. Wilcox, John Taylor, Mary Ellen Baker, Robert Soloman, Jean Cummings, Woodrow Bryan, Dr. Jeanne R. Hart, Barbara Heddon, Dr. John Haldeman and Dr. Yousef A. Yousef, and offered Petitioner's Exhibits 1-9, each of which was received into evidence. Respondent presented the testimony of William Kutash and offered Respondent's Exhibits 1-6.

Respondent/Applicant testified on his own behalf and presented the testimony of Tony Pierce and offered Respondent Grew's Exhibits 1-3, each of which was received into evidence.


The transcript of hearing (two volumes) was filed on November 10, 1981. Proposed findings of fact and conclusions of law were filed by Petitioner and Applicant on November 23, 1981, and have been considered by the undersigned in the preparation of this order. Findings of fact not included in this order were considered immaterial to the results reached, were not relevant to the issues, or were not supported by competent and substantial evidence.


The issue herein is whether Respondent/Applicant is entitled to a permit to construct a water ski slalom course on Lake Florence near Winter Haven, Florida.


Based upon a review of all the evidence, the following findings of fact are determined:


FINDINGS OF FACT


  1. By application dated March 27, 1981, Respondents Applicant, James Hooper Grew, Jr., sought the issuance of a permit to construct and install a twenty-two (22) buoy water ski slalom course using an 850 foot cable and covering a 75 foot wide by 850 foot long section of Lake Florence near Winter Haven, Florida. A copy of the permit application may be found as Respondent Grew's Exhibit 1. The application was received by the Southwest District Office of Respondent, Department of Environmental Regulation, on or about March 31, 1981.


  2. Upon review of the application, a request for an affidavit of ownership of the upland property was made by Respondent on April 27, 1981. (Respondent's Exhibit 2). This was supplied by Applicant on May 4, 1981. (Respondent's Exhibit 3).


  3. An on-site inspection of Lake Florence was made by a Department representative on May 4, 1981, and an in-house review subsequently completed on May 27, 1981. (Respondent's Exhibit 5). Thereafter, a Notice of Intent to issue the requested permit was issued on May 28, 1981, with the following two

    conditions: (a) that the course be located near the center of the lake to minimize disturbance of existing shoreline habitat and other landowners, and (b) that the use be limited to a noncommercial private operation. (Respondent's Exhibit 5). Respondent further stated the issuance of the permit would not (a) result in the alteration of the natural shorelines in an adverse manner, (b) cause a serious impediment to navigation, or (c) result in a degradation of local water quality by reducing or eliminating the ability of vegetated, submerged and transitional lands to filter, stabilize or transfer nutrients.

    Because the State asserted it owned the submerged lands in which Lake Florence was located, approval to pursue the project was obtained from the Director of the Division of State Lands on May 31, 1981. (Respondent's Exhibit 4).


  4. On June 19, 1981, Respondent issued Permit Number 53-41460-3E granting the requested permit. By letter dated June 25, 1981, Petitioner, Shirley Zeller, a homeowner on Lake Florence, requested an administrative hearing to contest the issuance of the permit. The receipt of this letter by Respondent stayed the implementation of the permit, and precipitated the instant proceeding.


  5. A Petition for Leave to Intervene filed on behalf of the Lake Florence Property Owners Association was granted on August 24, 1981. The Association was formed some six weeks earlier and includes twenty-three of the thirty residential property owners on the lake.


  6. Lake Florence is a landlocked natural Class III water body lying two miles east of the City of Winter Haven in Polk County, Florida. Its maximum length (running in a north-south direction) is approximately 2,400 feet while its maximum width is approximately 2,150 feet. The surface area of the lake is

    74 acres and its average depth is between 11 and 12 feet.


  7. The northeastern quadrant of the lake is surrounded by an orange grove, and the eastern quadrant by a primitive area which harbors alligator nests, bird nesting areas and wildlife habitat. Except for an undeveloped area on the western shore, the remainder of the lake includes approximately 30 residential homesites, including that of Applicant. There is no public access to the lake except for a small dirt road adjacent to the orange grove which is used infrequently by nonresident fishermen.


  8. The proposed project will run in a north-south direction in the center of the lake and will form a series of buoys around which the skier will traverse. The course will use an 850-foot stainless steel cable (3/8-inch width) suspended six feet under water and anchored at each end by concrete weights at the bottom of the lake. Attached to the cable will be eight PVC pipe arms from which 22 buoys will be floated on the water's surface. The buoys are connected to the arms by nylon lines. Only 8 inches of each of the buoys will appear above the water. When constructed, the course will occupy approximately

    1.4 acres of lake's water surface.


  9. Grew estimates he will need 1,900 feet to traverse the entire course. This is 100 feet less than the minimum surface area recommended by the American Water Ski Association for slalom courses. Even if 2,000 feet are used to negotiate the course, there will still be 100 feet of buffer space on either end. The minimum distance required to safely negotiate the course is dependent upon the skier's level of skill. Because Grew is a professional skier, the 1,900 foot distance is deemed to be adequate.

  10. If the skier hits a buoy, the buoy will be temporarily pushed under the water or the skier will fall. If run over by a boat, the nylon lines connecting the buoys to the arms will generally break. It has been Grew's experience that if fishermen snag their lines on the cable, the lines will also break. However, the course itself is not expected to constitute a hazard to boats and their passengers.


  11. Applicant is a professional ski instructor who operates a ski school at Lake Roy, which is less than two miles from Lake Florence. He has lived on Lake Florence since June 1, 1981. If the permit is issued, he intends to allow only himself and his boat driver to use the course. If other Lake Florence residents wish to use it, he has no objection. Grew estimates he will ski no more than seven or eight times per week with each session lasting no more than

    10 to 12 minutes. Because he is out of the country for four months each summer, he plans to either sink the course or remove it completely during that period of time.


  12. Grew owns a special boat designed specifically for pulling water skiers. It is powered by a 225-horsepower inboard motor and is designed to minimize the amount of wake for the slalom skier. It is the largest and most powerful boat on the lake. The maximum speed of the boat while the skier is negotiating the course is 36 miles per hour.


  13. Applicant has skied daily on Lake Florence since moving there on June 1, 1981. Approximately 75 percent of this skiing activity has been trick skiing while the remainder was free slalom. He will continue to ski a comparable amount of time even if the application is denied.


  14. The lake is now used primarily by its residents for fishing, swimming and a very small amount of water skiing. Several homeowners frequent the low- lying areas on the eastern shore to view the various species of birds that habitat that area. A number of homeowners have small children or grandchildren who fish, swim and play around the shoreline.


  15. The homeowners fear that if the application is granted, the quiet character of the area will be disturbed, that more high-powered boat's will be attracted to the lake, that the birds who nest in the primitive area will be threatened and leave, and that the cable will interfere with fishing. They are also concerned that the activity will be dangerous to other residents who use the lake, and feel that it is wrong for one individual to be able to dedicate the center of the lake for his own personal use to the detriment of all others. They do not object to Grew skiing--for that is the right of any homeowner--but only to the installation and use of the slalom course on the lake.


  16. A Department Environmental Specialist conducted an onsite inspection of Lake Florence on May 4, 1981. He made no formal biological and ecological survey since he considered the application to be a short-form application within the meaning of Rule 17-4.29(3), Florida Administrative Code. Instead, the representative made a visual inspection of the area and concluded that the course would not have an adverse impact upon the lake environment nor be a navigational hazard within the lake itself. There were no water quality tests conducted by Applicant or the Deparment on the theory that the materials used to construct the course and placed in the water would not impair its quality. At the present time, Lake Florence suffers from some degree of eutrophication and lies between the range of a clean lake and a eutrophic lake.

  17. The lake has been designated by the Game and Fresh Water Fish Commission as a bird sanctuary. The primitive area on its eastern shore contains a rookery for Herons and provides a habitat for many species of birds. Although the Intervenor fears the boat engine noise and concentrated skiing activity over a small area of the lake will disrupt or interfere with the nesting species, some disruption and interference already occurs whenever Applicant uses his boat for skiing purposes. The installation of the course is not expected to cause any additional detrimental effect upon the conservation of fish, marine or wildlife.


  18. Approximately 10 percent of the lake's 7,400 foot shoreline is vegetated with cattail. The type of vegetation, if any, on the remainder of the shoreline was not disclosed. Vegetation is necessary in order to dissipate the wave action that would otherwise cause erosion of the shoreline over time. The amount of vegetation in the north and south areas of the lake where the boat turns around is minimal and may not be sufficient to deter future erosion of the shoreline in those areas.


  19. After the course is constructed, skiing activity will be concentrated within a narrow band in the center of the lake where the course is located. As such, the wave action from the boat will stir up the bottom of the lake causing turbidity. The amount of turbidity will be exacerbated by (a) the heavy concentration of skiing in a small area and (b) loose sediment, degraded particles, fine site and organic material which lie on its bottom. The intensive use on that portion of the lake will optimize the turbidity and phosphorus increase and have a concomitant adverse effect upon the water quality. This is true even though the average depth of the lake in its center section is approximately 11 to 12 feet, and tends to minimize the turbidity in relation to that experienced in more shallow areas.


    CONCLUSIONS OF LAW


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


  21. Subsection 403.087 (1), Florida Statutes, provides in part:


    1. No stationary installation which will reasonably be expected to be a source of air or water pollution shall be operated,

      maintained,constructed, expanded or modified without an appropriate and current valid permit issued by the department, unless exempted by department rule.


      A ski slalom course is a "stationary installation" within the meaning of Subsection 403.087(1) for construction of which a permit is required.


  22. Rule 17-4.07(1), Florida Administrative Code, requires that an applicant for a construction permit provide the Department "with reasonable assurance based on plans, test results and other information, that the construction. . . operation, or activity of the installation will not discharge, emit, or cause pollution in contravention of Department standards, rules or regulations."

  23. The Department, with the apparent acquiescence of all parties, has asserted the construction activity will take place within a navigable body of water, and as such, falls within the purview of Chapter 253, Florida statutes. 1/ If that is true the applicant must comply with additional standards set forth in Rule 17-4.29(6), Florida Administrative Code. This rule requires that an applicant affirmatively show "that such activity will not interfere with the conservation of fish, marine and wildlife" and that "the proposed project will not create a navigational hazard, or a serious impediment to navigation."


  24. If indeed Chapter 253 jurisdiction lies, it must be shown that Lake Florence is a navigable body of water. Absent evidence of navigability, a water body should be regarded as being nonnavigable. Odom v. Deltona Corporation, 341 So.2d 977, 989 (Fla. 1976). Aside from a letter from the Director of the Division of State Lands purpotedly asserting ownership to the submerged lands located under the lake, there is no evidence of record upon which to make this determination. 2/ This being so, it is concluded that the Department's jurisdiction over the project stems from Chapter 403, Florida Statutes, and the standards therein and rules promulgated thereunder should be utilized in judging whether the requested permit should be issued.


  25. It is well established that the Applicant bears the burden to affirmatively provide the Department with those assurances required by Department rules. Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778, 788 (Fla. 1st DCA 1981). A preliminary showing of "reasonable assurance" having been made by Applicant, the burden of proof is upon the Petitioner (protesting property owners) to go forward with evidence to prove the truth of the facts asserted in its petition -- if it fails to present such evidence, or to carry the burden of proof as to the controverted facts asserted, then a permit must be issued. J.W.C. Co., Inc., supra at 789.


  26. Applicant is required to give "reasonable assurance" that the installation is not expected to be a source of water pollution in contravention of Department rules and standards. The materials that are to be installed in the water -- the anchors, lines, floats and buoys -- pose no threat to water quality. Whether the effects of the boats that use the course must also be considered hinges on whether the course alone or uses incidental thereto are viewed as sources having an environmental impact. Neither the Department or Applicant ascribe to the view that uses incidental to a project should be considered as relevant potential sources of pollution. However, the J.W.C.

    Co., Inc. decision, supra, reached a different result and approved the consideration of pollutants to be emitted by automobiles expected to travel on a completed road widening project. The same rationale is applicable here, and in the absence of any contrary authority, the effect, if any, from boats using the course should also be considered.


  27. The evidence reveals that Grew will ski approximately the same amount of time after the course is installed as he did prior to its installation. He does not intend to allow others to use it, except those residents on Lake Florence who wish to do so. None expressed a desire to use the course. Because the lake has no public access, its accessibility to the public is foreclosed. Accordingly, it is concluded that the construction of the course will generate no additional boat usage, and that the amount of skiing on the lake should remain the same.

  28. Admittedly, the boat(s) using the slalom course will have a high- powered engine causing wake action that may accelerate erosion of the shoreline. At the same time, turbidity will be increased in a lake that is already subject to partial eutrophication. But the ill effects of Grew's skiing already occur, and even if the course was not installed, they would be expected to continue.

    We have, then, a rare situation when a "new" source would only result in the same "old" pollution which would otherwise have resulted anyway. The Department has reasonable assurance, therefore, that Chapter 17-3, Florida Administrative Code, would not be violated. Harrison et al v. Crowley and Department of Environmental Regulation, DOAH Case No. 79-2307 (Final Order entered May 23, 1980) 3/


  29. Intervenor complains that an extensive Department biological survey and ecological study was not made prior to the evaluation of the requested permit. However, the Department construes the application herein to be a short- form project having less significance than others, and requiring a less extensive survey and study. Less comprehensive surveys and studies are "a practical necessity" because "the agency must focus its limited resources on those projects which are expected to have significant short and long-term environmental impacts," and vary "...the precision and depth of initial agency action. . . according to the significance of the project." Florida Bi- Partisans Civic Affairs Group v. Department of Environmental Regulation, DOAH Case No. 79-100 (Final Order entered December 11, 1979). Moreover, by credible and credited evidence, Applicant and the Department have given reasonable assurance that water quality standards will not be violated.


  30. Intervenor's remaining argument concerns the Department's failure to give notice of its intended action to all homeowners on the lake. The application form merely requires that the applicant identify the "adjoining property owners" -- this information was furnished by Grew. However, a Department publication provides that "[i]f property owners on the opposite shoreline may be materially affected," the applicant include those names and addresses as well. State of Florida Joint Permit Application for Dredge and Fill Structures, page 9, Item No. 8. While the two sets of instructions appear to conflict in part, the more stringent requirements repose a measure of discretion within the agency, and it is concluded there was no abuse on the part of Respondent in the case at bar. In view of the opposition presented in this case, it is suggested that in future cases of this nature notice be disseminated to all lakefront property owners where practicable.


  31. Intervenor's principal concerns are well-intentioned. Grew's appropriation of the center of the lake for his own personal use has understandably evoked the ire of the adjacent property owners. If indeed a remedy exists to prevent this under the factual circumstances presented herein, it does not lie with the Department; rather, it must be pursued before the Department of Natural Resources or in a judicial forum.


  32. Applicant having provided reasonable assurance that the proposed project will not contravene Department standards and requirements, and there being insufficient evidence to contradict this affirmative showing, the requested permit should be issued. J.W.C. Co., Inc., supra.


RECOMMENDATION


Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that Permit Number 53-41460-3E be issued to Respondent/Applicant, James Hooper Grew, Jr., subject to the terms and conditions set forth in the Department's letter of June 19, 1981.


DONE and ENTERED this 4th day of December, 1981, in Tallahassee, Florida.


DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675


Filed with the Clerk of the Division of Administrative Hearings this 4th day of December, 1981.


ENDNOTES


1/ In its letter of June 19, 1981, issuing the requested permit, the Department stated that ".... the subject pollution source (was being) issued pursuant to Section 253 and 403. Florida Statutes." (Respondent's Exhibit 6).


2/ For examp1e, Florida's test of navigability is based upon the water body's potential for commercial use in its ordinary and natural condition. Odom, supra at 988. Here the record revealed that the usage was essentially recreational in nature. Then, too, whether Lake Florence had ever been meandered, so as to create a rebuttable presumption of navigability was not disclosed.


3/ Even if Chapter 253 jurisdiction had been established, the same conclusion would have to be reached concerning the impact of the project on conservation standards. The irritating and disconcerting effects on the nesting species in the primitive area of the lake caused by Grew's skiing will not increase or abate after the course is constructed, but should remain the same.


COPIES FURNISHED:


Jack B. Brandon, Esquire Post Office Box 1079

Lake Wales, Florida 33853


William W. Deane, Esquire 2600 Blair Stone Road Tallahassee, Florida 32301


Andrew R. Reilly, Esquire Post Office Box 2039 Haines City, Florida 33844


Mrs. Shirley Zeller

475 First Street North Winter Haven, Florida 33880


Docket for Case No: 81-001766
Issue Date Proceedings
Jan. 20, 1982 Final Order filed.
Dec. 04, 1981 Recommended Order sent out. CASE CLOSED.

Orders for Case No: 81-001766
Issue Date Document Summary
Jan. 15, 1982 Agency Final Order
Dec. 04, 1981 Recommended Order Application for permit to install a ski slalom course denied.
Source:  Florida - Division of Administrative Hearings

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