STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARGARET B. MILLER, )

)

Petitioner, )

)

vs. ) CASE NO. 85-0236

) WOODLAND LAKE PROPERTY OWNERS, ) INC., and STATE OF FLORIDA, ) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondents. )

)

RECOMMENDED ORDER

Consistent with the Order Granting Continuance executed by the undersigned on July 11, 1985, and furnished to the parties thereafter, a hearing was held in this case before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings in Pensacola, Florida on September 12, 1985. The issue for consideration in this case was whether the Respondent, Department of Environmental Regulation should issue a permit to the Respondent, Woodland Lake Property Owners, Inc., to construct a bulkhead on its property.

APPEARANCES

For the Petitioner: Kenneth G. Oertel, Esquire

Oertel & Hoffman

2700 Blair Stone Road, Suite C Tallahassee, Florida 32301

For the Respondent: J. B. Murphy, Esquire Woodland: 506 S. Palafox Street

Pensacola, Florida 32501

For the Respondent: Brad Thomas, Esquire

State of Florida: Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

BACKGROUND INFORMATION

On January 10, 1985, the Petitioner, Margaret B. Miller, by letter to the Office of the General Counsel of the Department of Environmental Regulation (DER), protested the department's intention to issue a permit to Respondent, Woodland Lake Property Owners, Inc. (Woodland), to construct a bulkhead on its property in Woodland Lake Subdivision, Gulf Breeze, Florida. As part of her letter of protest, Mrs. Miller also requested a formal hearing and thereafter the file was forwarded to the Division of Administrative Hearings for the appointment of a Hearing Officer. The case was assigned, originally, to Hearing Officer Diane Grubbs and thereafter, DER, on February 27, 1985, moved to consolidate this case with an identical case involving a neighbor property owner, Germaine York. Thereafter, the cases were consolidated for hearing before the undersigned Hearing Officer. On April 23, 1985, the undersigned furnished an Amended Notice of Hearing to the parties setting the hearing for July 15, 1985. However, based on a stipulated Request for Continuance submitted by the parties, this hearing was cancelled and the matter reset for hearing on September 12, 1985, by Order of the undersigned dated July 11, 1985. Before the hearing could take place, on July 26, 1985, Germaine York voluntarily dismissed her request for hearing and withdrew from the case.

The hearing thereafter proceeded on Mrs. Miller's objection as scheduled.

At the hearing, Mrs. Miller presented the testimony of George H. Overman, Jr., a surveyor and testified in her own behalf. She also introduced Petitioner's Exhibits 1 through 5.. Respondent, Woodland, presented the testimony of Robert L. Cronguyer, Jr., President of the Association Alfred W. Kettenring, former Vice President and acting President of the Association Lindell A. Hunsley, former resident of the subdivision and Gordon A. Hambrick, III, a biologist formerly employed by DER and introduced Woodland Exhibits A through E. Respondent, DER, presented the testimony of Dr. Kenneth L. Echternacht, a hydrographic engineer with DER; and Walter R. Fancher, a dredge and fill supervisor with the Northwest district of DER and introduced DER Exhibits A through D.

The parties have submitted posthearing proposed Findings of Fact pursuant to Section 120.57(1), Florida Statutes. A ruling on each proposed Finding of Fact has been made either directly or indirectly in this Recommended Order, except where such

proposed findings of fact have been rejected as subordinate, cumulative, immaterial or unnecessary.

FINDINGS OF FACT

1. Respondent, Woodland, is made up of property owners in Woodland Lakes subdivision, an area abutting on Woodland Bayou, situated off Pensacola Bay in Santa Rosa County, Florida. Petitioner, Margaret B. Miller, owns property directly across the channel which forms the entrance to Woodland Bayou and which is the proposed location for the bulkhead and riprap forming the subject matter of this dispute.

   
   

2. Mrs. Miller and her late husband purchased their property, which is not located in Woodland Lakes subdivision, in 1957. Their lot is located on Pensacola Bay and at the time she and her husband purchased the property, they were looking for an area that had the special characteristics of this lot she now owns. It included big trees, a gentle slope to the Bay, and a view out over Pensacola Bay across a sandy peninsula which extended out into the bay a considerable distance and which they owned. At the time they made their purchase, Woodland Bayou opened into Pensacola Bay at the East End but the opening near Mrs. Miller's property was obstructed by a sandy beach. The extent of channel blocking and obstruction caused by this sandy beach was the subject of a lawsuit between the Millers, the Woodland Lake Property Owners Association, and the State of Florida 1n June, 1972. The substance of that suit was concerned with ownership of the land which extended out from the Miller property into Pensacola Bay over which certain of the parties desired to cut a channel from Woodland Bayou into Pensacola Bay.

   
   

3. There was substantial conflict in the testimony at the time as to whether there was a natural channel existing across the Miller property prior to 1957-1958 or not, or, in the alternative, whether the Millers filled in an existing channel thereby blocking reasonable entrance to Woodland Bayou. The answer to that question is irrelevant to the issue in this hearing. However, a judgment of the Circuit Court entered on June 13, 1972, awarded to the Millers title to property which extended out across the currently existing channel dredged subsequent to that time by the Respondent, Woodland, to a point into Pensacola Bay. The decision of the court also awarded to the Trustees of the Internal Improvement Fund a section of property directly west of the northern tip of the Miller property consisting of a strip approximately 40 feet wide and a maximum of76 feet long lying approximately perpendicular to the

   currently-existing channel and through which it was envisioned the channel would be dredged from the entrance of Woodland Bayou out to Pensacola Bay. By so doing, the canal would have made a left turn coming out of the bayou into Pensacola Bay but the Miller's property, which was not then split by the canal, would be left intact.

   
   

4. According to Mr. Hunsley, the dredging completed after the entry of the final judgment in the Quiet Title suit was not done consistent with the dictates of that judgment. Instead, the channel was cut straight out from the bayou across the Miller property, and so it remains to this day. He contends, however, that historically, the channel existed in this very spot and that the Millers as well as other property owners in the area at the time, closed the channel off by dredging and filling at their own expense some time in 1957 and 1958.

   
   

5. Regardless of the history regarding the genesis of the channel, however, the fact remains that the channel now exists in a straight line from Woodland Bayou to Pensacola Bay across the Miller property and has so since 1972 when it was dredged subsequent to the lawsuit.

   
   

6. The channel, being a tidal channel and subject to sand drift caused by wind and wave action, tends to become clogged with sand on a periodic basis.

   
   

7. Because of the increased clogging currently experienced, sometime prior to September 9, 1983, the officers of Woodland circulated a petition to secure the permission of all the neighbors in the subdivision to construct a bulkhead on the Woodland side of the channel across from and up channel from the Miller property. This petition, which at the time did not include riprap, was approved by all property owners in the subdivision except for 2 and was then forwarded to the Gulf Breeze City Council to allow the Council to assess costs in the amount of approximately $600.00 per property owner against the property owners in the event DER approved the permit to construct the bulkhead. Mrs. Miller was not solicited to sign the Petition nor will she be assessed any of the costs of construction of the bulkhead if approved since she is not a property owner in the subdivision in question.

   
   

8. The petition was circulated, according to Mr. Kettenring, who has lived in the area for several years, because of the increasing sedimentation. To his knowledge, the channel was last dredged in 1982 and 1983. Prior to that time, during

   the period 1979-1981, he recalls at least three fish kills in the bayou but none since the dredging was accomplished.

   
   

9. The residents of Woodland and the surrounding owners are all on septic tanks. There is no city sewage service to this area and every year there is a change in the clarity of the water in Woodland Bayou in the summer. During warmer weather, as the temperature increases, the water becomes cloudy and full of algae. However, after dredging was accomplished and the channel was opened further both in width and in depth, the water quality improved considerably. Mr. Kettenring has seen patterns of sand drifting from the point into the channel. The area has changed considerably in that the point has scalloped out into the channel blocking it. As a result, the bayou, which is at the mainland source of the channel, is currently somewhat brackish. Access of boat owners to the bayou has become impaired. On September 9, 1983, the application submitted by Woodland was received by DER, and a determination was made that the proposed project lay in Class III waters of the State, the standards for which are outlined in Rule 17-3.121, Florida Administrative Code.

   
   

10. Shortly thereafter on September 28, 1983, DER notified Woodland that the application was incomplete in that the application fee had not been submitted, aerial photographs of the area were required, and a consent for the use of State-owned land was necessary. In addition, it was determined that Woodland needed to provide detailed plans for compliance with State water quality standards as well as a hydrographic survey. All requirements were subsequently met except for the survey. The application originally called for an additional 300 foot bulkhead to the east of the area in question here and the hydrographic survey referred to that bulkhead. Subsequent to the filing of the application, however, that bulkhead portion of the project was deleted and when that was done, the need for the hydrographic survey was obviated. Since all other shortcomings in the application had been corrected, the project was then reviewed by Mr. Hambrick who recommended the installation of riprap in front of the remaining bulkhead and grass, and on December 20, 1984, DER published an intent to issue for the project.

    
    

11. The project in question is a 150 feet long bulkhead fronted with 35 cubic yards of riprap at the toe. The bulkhead will be located at the entrance channel of Woodland bayou across from Petitioner's property.

12. Mr. Hambrick, who initially reviewed the application for DER and who signed off on it in December, 1984, visited the site in question on at least 2 or 3 occasions in relation to the application and because Mrs. York, Miller's neighbor, also had an application for a bulkhead pending. He looked at the property and determined that the amended application did not call for riprap. However, because the new law requires riprap in front of seawalls, he recommended that the riprap be installed here where there is no grass. In other words, according to Mr. Hambrick, riprap will be placed flush against the bulkhead where no sea grasses exist but will curve out in front of the sea grasses where there is grass at the foot of the bulkhead which will proceed behind the grassed area.

    
    

13. The purpose of using riprap is to dissipate wave energy. Riprap will diminish the effect of the wave and its adverse effect on Petitioner's property. Mr. Hambrick is of the opinion that installing the bulkhead and riprap would not cause or increase damage to Petitioner's property and based on the criteria he used in analyzing the project, he feels that it is in the public interest. The factors he used in his consideration of this project include:

    
    

    1. that an erosion problem exists in the area,

       
       

    2. that bulkheading and riprapping would reduce the need for dredging,

       
       

    3. that there is a history of fish kills in the area,

       
       

    4. that maintaining a channel would help flush out the bayou, and

       
       

    5. homeowners on the bayou would have access to Pensacola Bay and their interests constituted a part of the public interest.

       
       

14. Since the revised application was completed in October, 1984, it therefore had to comply with the criteria outlined in the new water quality bill which are two-fold in general application. These are:

    
    

    1. that the project will have no adverse effects on water quality of Woodland Bayou but would likely improve it through the

       increased flushing of the bayou as a result of maintaininq the channel, and

       
       

    2. that a need for dredging would be reduced since the channel will not shoal in as much.

    
    

    According to Mr. Hambrick, at the present time there is a collapsing and sluffing off of soil along the channel, which has increased since his prior visit in November, 1984.

    
    

15. In his analysis of the project, he considered the effects that the project would have on the public interest, water quality, wildlife and fish in the area, and the historical and archeological aspects of the area. In his opinion, riprap would provide a habitat for marine wildlife which is a plus factor and would help to maintain a shallow shore environment. It would help to maintain a stand of marsh grass that is presently in the area and which is being covered with sand coming from the eroding point. In his opinion, there would be no adverse effect on the archaeological aspects of the area nor is there any indication of any adverse effect on the public interest, including Mrs. Miller. He also considers there would be no adverse effect on marine productivity which, in his opinion, would very likely improve as a result of the project. In his opinion, overall the project will maintain and even enhance the public interest considerations in the area and there would be no damage to the marine bottom by the installation of the riprap. Since the bulkhead will be fronted by riprap, it is not considered a vertical seawall which would be prohibited by the statute as it is currently constituted.

    
    

16. Mr. Hambrick is quite certain in his opinion that since Mrs. Miller's property is already bulkheaded and riprapped, there would be no further erosion of her property. Consequently, there would be no adverse ecological effect notwithstanding the fact that Mrs. Miller contends that keeping

    the channel open would be a continuing trespass to her property. She also contends that when she put in her bulkhead, now at water's edge, it was designed as a retaining wall and was located in sand some substantial distance from the water. When the channel was cut across her land, the beach from the channel to the "retaining wall" eroded and when it appeared the wall would be undercut as well, she put in the riprap. All of this would be perpetuated by the construction of Woodland's project which would keep the channel open and keep it naturally closing as she believes it would do if left alone.

    
    

17. In short, Mr. Hambrick's analysis of the situation including his personal visits to the site lead him to conclude that the project will not:

    
    

    1. harm water quality in the area,

       
       

    2. increase the number of boats using the channel,

       
       

    3. influence the speed of boats that use the channel, or

       
       

    4. increase erosion of Petitioner's property.

    
    

18. This opinion is supported by that of Dr. Echternacht, a hydrographic engineer who is also convinced that construction of the proposed bulkhead and riprap would not cause any erosion to Petitioner's property. In fact, the riprap in front of the bulkhead will act to absorb wave energy and since it cannot be placed in a vertical manner, it reduces that amount of reflected energy. The bulkhead and riprap as proposed here would reduce the amount of soil infusion into the channel and thereby the amount of dredging needed.

    
    

19. The technical aspects of the proposal were also considered by Mr. Fancher, the dredge and fill supervisor for DER in the Northwest District. When he reviewed the application, including Mr. Hambrick's proposal for riprap, he concurred with it. In order to appropriately receive a permit, applicants must show that the application conforms to both water quality and public interest standards. After his review of the entire project, Mr. Fancher concluded that this project would not adversely affect water quality standards and would not adversely affect but in fact might promote public interest considerations.

    
    

20. When the Florida Legislature passed its new water quality bill in October, 1983, it prohibited the construction of most vertical seawalls. In Mr. Fancher's opinion, what is proposed here is not a vertical seawall and there is no evidence submitted by Petitioner to refute this. In fact, there was no evidence presented by Petitioner, save her own testimony which does not serve to overcome the expert opinions to the contrary, that the proposed project fails to meet the tests set out under the laws of this State.

    
    

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding.

    
    

22. Several legal issues are involved here. One is whether DER has dredge and fill jurisdiction over the proposed area in question and the activity proposed. If so, the second question is whether the proposed activity here meets the criteria set for projects of this nature as defined in the pertinent provision of the Florida Statutes. The third is whether the project in question constitutes a vertical seawall and if so, would such construction constitute a violation of the Wetlands Protection Act of 1984. A fourth possible issue is whether Petitioner has a remedy in this forum to prevent or to seek redress for the commission of or continuance of a trespass by the Respondent, Woodland Lake Property Owners, Inc. over her property.

    
    

23. There can be little question that Respondent DER has dredge and fill jurisdiction under the provisions of Chapter 403, Florida Statutes, which call for the permittee to provide reasonable assurances that the proposed project will not violate Florida water quality standards or be contrary to the public interest.

    
    

24. Even though Petitioner normally has the burden of going forward with the evidence, here the applicant for the permit has the burden of establishing that the project in questions meets the standards set forth in the pertinent statute. In that regard, Section 403.918, Florida Statutes, at subparagraph 1 requires that the applicant provide the department with reasonable assurance that water quality standards will not be violated. These water quality standards are set forth in Chapter 17-3, Florida Administrative Code. The statute also requires the applicant provide the department with reasonable assurances that the project is not contrary to the public interest and at subparagraph 2(a)(1)-(7) the criteria relating to public interest are set out. Among these, and pertinent to the case here, is whether the project will adversely affect the public health, safety or welfare or the property of others. (Emphasis supplied).

    
    

25. Turning to the issue of public interest first, the testimony presented by both DER and Woodland, without exception,

    was that any change to the environment in this immediate area would be salutary rather than harmful to the public's enjoyment of the area. Petitioner has strongly contended that as a nearby property owner, the continued passage through the channel of boats permitted by the Respondent Woodland's project keeping the channel open would have a detrimental effect on her enjoyment of her property and that as a neighboring property owner, her interests are a part of the public interest. She contends that the frequent boat passage will cause additional erosion to her property but the evidence presented by the Respondents tends to indicate that no additional erosion would be caused by such boat traffic. Mrs. Miller now has a wall and riprap which in the expert opinion of all questioned would dissipate and render harmless the boat wakes so that there would be no additional erosion of her property. That she may have had an extended beach out across the channel and beyond that which currently exists is an entirely different question, however, and there is no requirement, at least from the standpoint of this hearing, that the channel be abandoned on the basis that it is contra to the public interest because it crosses Mrs. Miller's property.

    
    

26. Turning to the issue of water quality standards as referenced above, Mrs. Miller presented scant evidence on that issue. The primary thrust of her case related to the ongoing trespass and the potential for additional erosion. By far the greatest amount of evidence, however, presented by Respondents, clearly tended to establish that the completion of this project would, from an environmental standpoint, not only not violate the water quality standards, but, in fact, improve the quality of the water within the jurisdiction of the department.

    
    

27. Petitioner contends in her post-hearing written argument that the proposed construction constitutes a vertical seawall and is prohibited by the Wetlands Protection Act of 1984.

    If, in fact, the construction proposed did constitute a vertical seawall, it would violate the provisions of the Act since the construction is new construction and does not constitute a repair or replacement of an existing seawall. The only substantial evidence on this, however, came from Respondents' witnesses who concluded that in the opinion of the department, the addition of the riprap took the construction out of the category of vertical

    seawall and the department was satisfied that it was not prohibited. It is clear that the agency charged with enforcing the provisions of the water quality standards legislation is satisfied that this construction does not violate the act and

    there is nothing in the evidence to indicate that that position is incorrect.

    
    

28. Turning again to Petitioner's contention that the proposed construction would constitute the continuation of an illegal trespass across her property which is an injury to her and is, therefore, evidence in that the project is contra to the public interest, it is clear that Petitioner has misinterpreted the intent of this environmental legislation. The statute under which dredge and fill jurisdiction is vested in DER has as its primary if not exclusive purpose, protection of the environment of the State of Florida. When this statute refers to such valid considerations as the "property of others," it is clear that the effects in question relate to environmental concerns and not those of a civil nature such as trespass. To be sure, the appellate courts of this State, as late as 1984, have held that public interest criteria relates to the control of pollution of the air and water. See Grove Isle, Ltd. v. State of Florida Department of Environmental Regulation, 454 So. 2d 571 (Fla. 1st DCA 1974).

    
    

29. Petitioner may well have an actionable situation based on Respondent Woodland's apparent disregard of her property rights. If that is so and if she has sustained injury as a result thereof, these injuries are subject to redress in other fore, not here.

    
    

30. In summary, it is concluded that the project in question does not violate the Wetlands Protection Act of 1984 and that the applicants have provided the assurances that water quality standards will not be violated as well as that the project is not contra to the public interest as called for in Section 403.918, Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore

RECOMMENDED that the Respondent, Woodland Lake Property Owners, Inc.'s permit to construct a bulkhead be issued as modified.

RECOMMENDED this 11th day of October, 1985, in Tallahassee, Florida.

ARNOLD H. POLLOCK

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 Administrative Hearings this 11th day of October, 1985.

COPIES FURNISHED:

Kenneth G. Oertel, Esq. Oertel and Hoffman

2700 Blair Stone Road Suite C

Tallahassee, Florida 32301

J. B. Murphy, Esq.

506 S. Palafox Street Pensacola, Florida 32501

Brad Thomas, Esq. Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Victoria Tschinkel Secretary

Department of Environmental Regulation

Twin Towers Office Building 2600 Blair Stone Rd.

Tallahassee, Florida 32301

Docket for Case No: 85-000236

Orders for Case No: 85-000236