FRANK J. FABRE and )
LARRY M. JACOBS, )
vs. ) CASE NO. 85-0365
Respondent. )
This matter came on for hearing in Pensacola, Florida before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings on February 19, 1986. On March 6, 1986, both parties filed post-hearing submissions. Respondent's proposed findings of fact are dealt with by number in the attached appendix.
For Petitioners: Frank J. Fabre
Douglas M. Wyckoff, Esquire 2600 Blair Stone Road Tallahassee, Florida 32301
By letter dated January 11, 1985, Respondent indicated its intent to deny Petitioners' request of October 11, 1984, for Department validation . . . for [alleged] failure to provide a jurisdictional determination graphically displayed on a map, drawing, or aerial photograph, or written in the form of a narrative descriptive sufficient to identify the areas in question." Joint Exhibit No. 10. After Petitioners requested formal administrative proceedings, Respondent transmitted their request to the Division of Administrative Hearings pursuant to Section 120.57(1)(b)3., Florida Statutes (1985).
4.022(8), Florida Administrative Code, which may be stated as the following.
Whether Petitioners are entitled to validation of an alleged determination by Respondent of the landward extent of its dredge and fill jurisdiction over a portion of Petitioners' Property?
Under former DER rules, those using the vegetative index adopted June 10, 1975, as amended March 11, 1981, DER's dredge and fill jurisdiction upland of the mean high water line depended exclusively on the landward extent of waters of the state, as evidenced by the dominance of certain species of plants that thrive under wet conditions. Only if these indicator species, in the aggregate, were not dominant along the edge of a water body would DER's jurisdiction end at the shoreline.
In 1977, Petitioners Fabre and Jacobs acquired more than
43 acres of unimproved land on Garcon Point, fronting Blackwater Bay in Santa Rosa County. By the time of the hearing, their original development plans had changed, but Petitioners still held the property in the hope of subdividing part of it for resale.
At Petitioners' request, somebody from the Pensacola office of the Department of Environmental Regulation (DER) inspected the site in the fall of 1979, probably Michael C. Applegate on October 3, 1979. Petitioners wanted to know what DER permits, if any, would be required in order for a road to be built on the property. In connection with their inquiry, they furnished DER a legal description of the parcel and an aerial photograph of the area. Whether DER also received a site plan at that time depicting the proposed road is not shown by the record. DER's pre-application file on the parcel has probably been destroyed.
At least in the minds of some DER employees, there is a clear difference between advising whether a particular project falls within DER's permitting jurisdiction, based on a site visit; and making a jurisdictional determination, which may involved planting flags that are then surveyed or photographed from the air.
Petitioner Fabre received a letter from Michael C. Applegate, at the time DER's dredge and fill supervisor in Pensacola, which stated:
RE: Approximate 43.48 acre parcel located between State Road 191 and Blackwater Bay, Garcon, Section 14, Township I s, Range 28 w,
Santa Rosa County, Florida
Dear Mr. Fabre:
The above referenced land parcel (legal description enclosed) was inspected by a member of this Department to determine the necessity of obtaining dredge and fill permits for future construction activities on the site.
It is the opinion of the staff that since the site is dominated by upland vegetation (oaks, pines, etc.) and has no water bodies connecting to the adjacent B1ackwater Bay that dredge and fill permits will not be required for construction activities within the interior of the property; however, any construction along the shoreline or any attempt to connect artificial lakes or canals to Blackwater Bay will require prior permit authorization from this Department in accordance with the provisions of Section 403.087, Florida Statutes, 253.123 and
253.124, F.S. and Section 17-4.28, Florida
Administrative Code.
Further, should your development of the property result in and [sic] increased stormwater discharge, a stormwater permit may also be required. Joint Exhibit No. 4
In the opinion of DER's expert witness, "along the shoreline" usually means to the edge of open water. In surveying, "shoreline" is a term of art meaning mean high water line. As a practical matter, mean high water line surveys are seldom undertaken because they are complex, expensive and time- consuming.
Because Mr. Applegatets letter was undated, Mr. Fabre later asked for a dated reiteration, which DER furnished by copy of a memorandum to the file from DER's William H. Daughdri11, stating:
SUBJECT: Review of Undated Correspondence to Frank Fabre [sic] (Baskerville Donovan Engineers) Regarding Proposed Construction on a 43.48 Acre Parcel of Property on Blackwater Bay.
On June 23, 1980, I received a call from Mr. Prank Fabre, [sic] during which he requested
clarification of a letter written by Mike Applegate in October, 1979. I advised Mr. Fabre that my recollection of the proposed project and subsequent letter was that the excavation was on the interior of the property and not subject to Department of Environmental Regulation's permitting jurisdiction. I cautioned Mr. Fabre [sic] to read the letter carefully and proceed accordingly.
On June 24, 1980, I reviewed Mile's letter to Mr. Fabre [ sic] (copy) attached). Mike's letter indicated that no permit would be required for construction activities in the interior of the property; however, construction along the shoreline or any attempt to connect artificial lakes or canals to Blackwater Bay would require a valid Department permit. I called Mr. Fabre and advised him of same.
Finally, in reviewing Mr. Applegate's letter to Mr. Fabre, I discovered it to be undated. The photograph attached to the letter referenced a date of October 3, 1979. I assume that the letter to Mr. Fabre went out within a week of the inspection and would therefore be properly dated between October 5 and October 10, 1979. Joint Exhibit No. 3.
Having received this memorandum, Petitioners filled out a form Army Corp of Engineers/DER joint application for activities in the waters of the State of Florida. They attached an aerial photograph on which a proposed road is shown, lying more than 200 feet inland; and a drawing representing a proposed community building elevated on piling, approximately 50 feet inland of the mean high water line. Joint Exhibit No. 5.
On September 24, 1984, copies of the joint form application with attachments were mailed to DER, along with a cover letter stating, "As we discussed, an application fee is not included since D.E.R. does not have jurisdiction based on enclosed letters from Michael Applegate and William Draughdrill [sic]." Joint Exhibit No. 5. In response, W. Richard Fancher, DER's dredge and fill supervisor, wrote Petitioners, on October 9, 1984:
I have reviewed your permit application for a fill road leading to Blackwater Bay, along
with the accompanying jurisdictional determinations.
However, the Department's dredge and fill jurisdiction has changed significantly since Mr. Applegate's and Mr. Daughdrill's determinations, specifically, since October 1, 1984. Unless you have had the old pre- October 1 jurisdiction verified by our Bureau of Permitting in Tallahassee ("grandfathered"), the Department must consider the project under the post-October 1 jurisdiction and permitting standards. Joint Exhibit No. 7 (emphasis supplied.)
A DER "completeness summary" also dated October 9, 1984, was included indicating that Petitioners' application was incomplete for failure to pay the application fee, because, "approximate MHW's" had not been labeled, a claim at least partially belied by attachments to the application, and because certain water quality information allegedly had been omitted. Joint Exhibit No. 7. On October 15, 1984, DER received Petitioners' request for validation with supporting papers. Joint Exhibit No. 9.
CONCLUSIONS OF LAW
Since DER referred Petitioners' request for hearing to the Division of Administrative Hearings, "the division has jurisdiction over the formal proceeding." Section 120.57(1)(b)3., Florida Statutes (1985).
As the parties have agreed in their prehearing stipulation, this case is governed by a single subsection in a DER rule, in evidence as Respondent's Exhibit No. 1:
The landward extent of waters of the state shall be determined using the vegetative index adopted June 10, 1975, as amended March 11, 1981, for all complete applications filed with the department before October 1, 1984. For all other areas where the department made a determination of the landward extent of the waters of the state using the vegetative index adopted June 10, 1975, as amended March 11, 1981, before October 1, 1984, the department shall, within
90 days of a request therefore, validate the determination if:
The determination is graphically
displayed on a map, drawing, or aerial photograph, or written in the form of a narrative description sufficient to identify the areas in question; and
The determination was based on a site verification made by the department; and
The document purporting to be the determination is signed by an employee of the department in the course of his official duties; and
The document purporting to be a site verified written determination shall be submitted by certified mail within six months of October 1, 1984 to the department for validation. Section 17-4.022(8), Florida Administrative Code.
The "document[s] purporting to be the determination" in the present case are Joint Exhibits Nos. 3 and 4, along with the legal description in evidence as page 9 of Joint Exhibit No. 5, incorporated by reference in Joint Exhibit No. 4. Joint Exhibit No. 4 "was based on a site verification made by the department," Rule 17-4.022(8)(b), Florida Administrative Code, "is signed by an employee of the department in the course of his official duties," Rule 17-4.022(8)(c), Florida Administrative Code, and was received by DER on October 15, 1984. Likewise signed by a DER employee and timely submitted, Joint Exhibit No. 3 generally reiterates Joint Exhibit No. 4.
The dispute is whether Mr. Applegate's letter, incorporating Petitioners' parcel's legal description by reference, is "a narrative description sufficient to identify the [jurisdictional] areas in question." Rule 17-4.022(8)(a), Florida Administrative Code. Since the issue is a narrow one of the sufficiency of the documents, evidence dehors the documents about actual conditions is immaterial, and was excluded at hearing. Where vegetation grew then or grows now has no significance under the rule.
There is no more precise "narrative description" of a boundary line than a surveyor's bearings and directions of the kind comprising the legal description of Petitioners' parcel, that Mr. Applegate incorporated by reference in his letter, Joint Exhibit No. 4. The letter concerns the "referenced land parcel (legal descriptor enclosed)" and refers to "the site" without limitation. It recites that "the site is dominated by upland vegetation" and proceeds from this predicate to the conclusion
that DER lacks dredge and fill jurisdiction "within the interior.of the property" in the absence of any attempt to create a connection to Blackwater Bay. The only DER jurisdiction that Joint Exhibit No. 4 asserts is "along the shoreline.
In these proceedings, DER takes the position that "along the shoreline" describes a band of indeterminate and probably varying width adjacent to and landward of the mean high water line. But any such band would lie "within the interior of the property," where the letter expressly disclaims jurisdiction. A fair reading of the document as a whole is that DER disclaims jurisdiction except over dredging and installation of shore protection devices or other filling at or below the mean high water line.
Evidence at hearing as to the meaning of the phrase "along the shoreline" included testimony of Petitioner Fabre, who is a professional surveyor, that "shoreline" and "mean high water line" describe the same unidimensional line. DER's witness, a biologist, agreed that there would have been no ambiguity if "mean high water line" had been substituted for "shoreline." He also conceded that "shoreline" is synonymous with "the edge of open water." The evidence demonstrated the practical equivalence of "mean high water line" and "the edge of open water." Although the former term is more precise, the procedure for determining the mean high water line is complex, prohibitively expensive, and seldom resorted to.
DER's attempt to dichotomize jurisdictional determinations and advice on specific projects does not strengthen its position in this case. Mr. Applegate's letter cannot be construed as a reference to any particular project. It deals generally with any and all "future construction activities on the site," whatever they may be anywhere within the boundaries of the parcel. Mr. Daughdrill's later memorandum could not alter this fact.
Even if, in cases of this kind, flags are generally set out to be surveyed or photographed, they would be superfluous in marking the approximate mean high water line. At hearing nobody contended that Petitioners were remiss in not incurring the expense of a mean high water line survey or that any other similarly situated landowner has ever done so for purposes of a jurisdictional determination.
That Respondent grant Petitioners' request to validate its determination, embodied in Joint Exhibits Nos. 3 and 4 and page 9 of Joint Exhibit No. 5, that DER lacks dredge and fill jurisdiction on Petitioners' property on Blackwater Bay using the vegetative index adopted June 10, 1975, as amended March 11, 1981.
DONE and ENTERED this 28th day of March, 1986, in Tallahassee, Florida.
ROBERT T. BENTON,
Piled with the Clerk of the Division of Administrative Hearings this 28th day of March, 1986.
Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road
Mary F. Smallwood, Esquire General Counsel
Deborah Getzoff, Esquire Douglas M. Wyckoff, Esquire 2600 Blair Stone Road Tallahassee, Florida 32301
328 E. Gadsden Street Pensacola, Florida 32501
Paragraphs 1 and 2, the first and final sentences of paragraph 3, and the first sentence of paragraph 4, of Respondent's proposed findings of fact have been adopted, in substance.
The second sentence of paragraph 3 of Respondent's proposed findings of fact has been rejected as inconsistent with the weight of the evidence because Joint Exhibit No. 3 "otherwise references" Joint Exhibit No. 4, which refers to the legal description, a "narrative description of the property."
The third sentence of paragraph 4 of Respondent's proposed findings of fact has been rejected as inconsistent with the weight of the evidence.
