STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VERNON E. BENTON, )

)

Petitioner, )

)

vs. ) CASE NO. 84-1286

) JOHN E. MAINE and DEPARTMENT OF ) ENVIRONMENTAL REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing on July 18, 1984, in Sebring, Florida, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R. T. Carpenter. The appearances were:

For Petitioner: Vernon E. Benton

1280 North West 127 Street North Miami, Florida 33167

For Respondent: Douglas H. MacLaughlin, Esquire DER and Astrid L. Wistedt, Legal Intern

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

For Respondent: John E. Maine

Route 1, Box 508

Lorida, Florida 33857

This matter arose on Petitioner's objection to Respondent Maine's construction of a wooden pier in the Kissimmee River. Petitioner and Respondent Department of Environmental Regulation (DER) submitted proposed findings of fact. To the extent these proposed findings have not been adopted or otherwise incorporated herein, they are found to be subordinate, cumulative, immaterial, unnecessary or not supported by the evidence.

FINDINGS OF FACT

1. Petitioner Benton and Respondent Maine own adjacent tracts on a dead- end, but navigable, oxbow of the Kissimmee River. The Bentons are weekend and vacation residents, and Maine operates a commercial RV-trailer campsite.

   
   

2. To accommodate the needs of his guests for boat launching and landing facilities, Maine constructed a 60 foot pier into the river fronting his property in July, 1982. However, he had not obtained any permits for this

   construction, and later removed 18 feet of the pier at the direction of the U.S. Army Corps of Engineers. He has applied to DER to obtain after the fact approval of the existing 42 foot pier. He also seeks to extend this pier to 52 feet and to add a 12 foot side dock at the end of the extension.

   
   

3. DER has studied the site and reviewed the proposed additional construction. There was no evidence to indicate that the existing pier or the proposed extension would harm the environment or create a navigational hazard. However, the extended pier would occupy fully half of this waterway, which is about 100 feet wide in this area.

   
   

4. Petitioner objects to the proposed pier extension on esthetic grounds. Although the pier is constructed at a 90 degree angle to Maine's shoreline, it crosses directly in front of the Benton property. This situation results from the layout of the Benton and Maine tracts which intersect the river at approximately 45 degree angles.

   
   

5. An imaginary extension of the Benton and Maine property lines into the river would place much of the existing pier and all of the proposed addition within the Benton extension. The proposed side dock would point toward the Benton property and further aggravate this intrusion.

   
   

6. Since the location of the pier is close to the Benton-Maine property line, the proposed side dock's placement would require boats to be launched and landed directly across the Benton waterfront. The Benton property derives its principal value from its waterfront character. Therefore, the degradation of view caused by the pier extension along with the additional boat traffic near the side dock would adversely affect Petitioner's enjoyment of his property.

   
   

   CONCLUSIONS OF LAW

   
   

7. Subsection 253.124(2), Florida Statutes (1983), requires that DER determine "that no material injury or monetary damage to adjoining land" will result from proposed construction in a navigable waterway prior to issuing a construction permit.

   
   

8. Petitioner would suffer material injury if the proposed extension is approved. The existing 42 foot pier represents a lesser intrusion and should be permitted. Further, should Respondent redesign his dock so that it points toward the centerline of his own property rather than in Petitioner's direction, it should be approved. Boat landing and launching would then take place across the Maine waterfront and would not interfere with the rights of adjoining property owners.

   
   

9. Section 253.77, Florida Statutes (1983) requires Respondent Maine to obtain separate permission for use of the State owned river bottom for this construction. Although he had not done so at the time of hearing, the permit which is the subject of this proceeding can be issued pending compliance with this provision.

RECOMMENDATION

From the foregoing, it is

RECOMMENDED that the Department of Environmental Regulation issue a permit to John E. Maine approving his existing 42 foot pier in the Kissimmee River, subject to compliance with Section 253.77, Florida Statutes (1983). It is further

RECOMMENDED that the application of John E. Maine insofar as he seeks to lengthen the existing pier be denied; but, that application for a side dock extension, if redesigned as stated herein, be approved.

DONE and ENTERED this 23rd day of August, 1984, in Tallahassee, Florida.

R. T. CARPENTER 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 23rd day of August, 1984.

COPIES FURNISHED:

Vernon E. Benton

1280 North West 127 Street North Miami, Florida 33167

Douglas H. MacLaughlin, Esquire and Astrid L. Wistedt, Legal Intern Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

John E. Maine Route 1, Box 508

Lorida, Florida 33857

Bert J. Harris, III, Esquire Post Office Box 548

Lake Placid, Florida 33852

Victoria Tschinkel, Secretary Department of Environmental

Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301

Docket for Case No: 84-001286

Orders for Case No: 84-001286