J. STEPHANY, )
)
Petitioner, )
)
vs. ) CASE NO. 86-2470
) ORANGE COUNTY PARKS DEPARTMENT ) AND STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )
)
Respondent. )
)
RECOMMENDED ORDER
Final hearing in the above-styled action was held in Orlando, Florida, on September 22, 1986, before Mary Clark, Hearing Officer of the Division of Administrative Hearings.
The parties were represented as follows:
For Petitioner: S. J. Stephany
105 Rockport Street Eustis, Florida 32726 (self-represented)
For Respondent: Vivian F. Garfein, Esquire
Assistant General Counsel
Dept. of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
John Gehrig, Esquire
Orange County Legal Department
201 South Rosalind Avenue, 5th Floor Orlando, Florida 32802
Background and Procedural Matters
After receipt of notice of Department of Environmental Regulation's issuance of a permit to the Orange County Parks Department, S. J. Stephany, a property owner in the area near the proposed project, timely filed his Petition and request for formal hearing pursuant to Section 120.57(1), Florida Statutes.
At the hearing, the permit applicant, Orange County Parks Department, presented the testimony of Ginger Lee Corless, Parks Development Coordinator, and six exhibits, each admitted without objection. The Department of Environmental Regulation presented the testimony of Barbara Bess, Dredge and Fill Supervisor for the Central Florida area office of Department of Environmental Regulation. Ms. Bess was accepted without objection as an expert in dredge and fill permitting procedures, water quality as it relates to dredge
and fill projects, and biology. Dr. Stephany testified in his own behalf and also presented the testimony of Dr. William Brown, homeowner; Anna Paulette Alexander, Director of Pollution Control for Lake County; Harriett "Taddy" Gorman, homeowner and former Orange County parks Department board-member; and Clara Ellen Stephany, homeowner and wife of Dr. Stephany. Dr. Stephany introduced two exhibits: the first, correspondence with Orange County, was received over the objection of Orange County Parks Department; the second, a letter to the St. Johns Water Management District, was rejected as irrelevant.
After hearing, the parties submitted Proposed Recommended Orders. These have been carefully considered in the preparation of this recommended order, and specific findings of fact are found in the attached appendix.
ISSUE
The issue at hearing was whether the Orange County Parks Department is entitled to dredge and file permit #48-118375-4 for its public boat ramp and dock project in Trimble Park.
FINDINGS OF FACT
Trimble Park is one of thirteen public parks operated by the Orange County Parks Department. It is located in Orange County on a small peninsula protruding into Lakes Beauclaire and Carlton, two lakes in the Oklawaha chain. Orange County owns a portion of the park and leases the remainder of the park property from the State of Florida.
The park shares the peninsula with approximately eight private residences located near the base of the peninsula along Trimble Park Drive. At present the only entrance road into the park, Trimble Park Drive, dead-ends with a cul-de-sac near the upper tip of the peninsula well within the park. S. J. Stephany and his wife live in one of the eight residences on Trimble Park Drive directly across from the berm constructed by Orange County in the park to serve as a buffer between the proposed project and the private residences. The Stephanys' backyard is on Lake Carlton.
Trimble Park currently provides camping, picnicking, playground and boating facilities near the tip of the peninsula. The current boat ramp and dock are located in a wetland area on the shore of Lake Beauclaire. There are no established parking places for boaters to leave their cars and boat trailers, and the boaters park anywhere they can find space off the road, including under trees and within the playground and picnic area. Three oaks and a pine tree have died in recent years in the area where the boaters now park. Ginger Corless attributes the loss of trees to root damage caused by the vehicles.
The project which is the subject of this proceeding seeks to move the boating facility (ramp and dock) from the current site to a small natural cove closer to the base of the peninsula also on the shore of Lake Beauclaire. The new site includes less than one-half acre of wetlands. The ramp is to be removed from the current site and the site will be allowed to revegetate.
The new site will include 15 paved parking spaces for boaters and 15 more spaces on a stabilized surface, for a maximum of 30 boaters. A ranger will be on site seven days a week and the gate to the boating facility will be closed whenever the 30 spaces are full, thus limiting access to the ramp.
A road separate from Trimble Park Drive is to be constructed for traffic to the ramp and dock. That road will divert boat traffic away from the front of all but two of the private residences. A six-foot berm has been constructed along Trimble Park Drive and will be landscaped with palm trees and pampas grass to shield the boat facility from the private property.
The new ramp is not intended to accommodate larger boats and the new facility will not result in increased boating traffic as the current usage is already at least the 27 trailers observed by Ginger Corless in the Park on September 21, 1986.
The Department of Environmental Regulation issued a permit (number 48- 097955-4) for this same project on March 13, 1985. The permit expired a year later, before Orange County could obtain the funds for construction. Since an extension was not timely requested, Orange County re-applied in April 1986. The application in 1986 is essentially the same as that approved in 1985: the construction of a boat ramp and docks, the dredging of 946.9 cubic yards of sand and the filling of 43.12 cubic yards of material.
Dr. Stephany brought to the attention of the Parks Department an error in the latitude and longitude reference to the project location in the application. The application has been corrected and the error is deemed a non- substantive clerical error. No one claims to have been misled as to the actual location of the park.
After review of the application, file documents and site, Department of Environmental Regulation staff concluded that the requirements of Section 403.918 Florida Statutes were met. Lake Beauclaire is not an outstanding Florida water. While Lake Beauclaire frequently does not meet class III water quality standards, the proposed project will not further degrade the quality. There are bald eagles, osprey and likely some otters on the site, but these species adapt to human pressures and adapted to the existing boat ramps. They will not leave the area.
The site for the new dock and ramp is less significant from an environmental standpoint than the existing site. The area was previously cleared for agricultural purposes and noxious water hyacinths and cattails predominate. The site is not significant from an historical or archeological standpoint.
S. J. Stephany received notice of the permit by mail, by copy of the June 6, 1986 cover letter and Notice of Permit addressed to the Orange County Parks Department. He availed himself of the point of entry by requesting and actively participating in this formal hearing. The Department of Environmental Regulation did not require the Orange County Parks Department to publish notice in a newspaper because this was a short form application.
Dr. Stephany candidly conceded that he is not a water quality expert. His concerns about the project at hearing were limited to: a) lack of notice,
b) an adverse impact on the value of his home, c) an increase in noise from the project from outboard motors and vehicles and d) zoning problems. His neighbors are also concerned about their property values and want the road to the park rerouted to avoid traffic past their property.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and parties in this proceeding. Section 120.57(1) Florida Statutes.
The Department of Environmental Regulation has permitting jurisdiction over the proposed project pursuant to Chapter 403 Florida Statutes and Chapters 17-3, 17-4 and 17-12 Florida Administrative Code.
In this proceeding, the applicant, Orange County Parks Department, has the burden of proving entitlement to the requested permit by a preponderance of the evidence. Rule 17-103.130(1)(a) Florida Administrative Code. The authorities and principles cited by counsel for the applicant at hearing to support his argument that the burden is altered by the issuance of the prior permit are unpersuasive. The prior permit has expired.
Reasonable assurances have been provided that the proposed project will not violate water quality standards or other standards established pursuant to Chapter 403 Florida Statutes and Rule 17-3.121 Florida Administrative Code, relating to Class III waters.
The preponderance of evidence also indicates that the project is not contrary to the public interest and will not violate Section 403.918 Florida Statutes.
No evidence was produced by Petitioner to support his conclusory assertions regarding increase in noise and the reduction in value to his or his neighbors' property. In the brief period since the legislature enacted the "Warren S. Henderson Wetlands Protection Act of 1984", the criteria of section 403.918 Florida Statutes have consistently been interpreted to include only environmental impacts on the property of others. See Margaret B. Miller v. Woodland Lake Property Owners, Inc. and DER, 8 FALR 154 (Doah Case No. 85-0236, Order of Remand issued November 25, 1985) and Mandarin Landing Association, Ltd.
v. Florida Department of Transportation and Department of Environmental Regulation, 8 FALR 633 (Doah Case No. 85-2207, Amended Final Order issued December 27, 1985)
The zoning issues raised by Petitioner are not appropriate for consideration in whether Orange County is entitled to its dredge and fill permit. With few exceptions, no authority has been cited by Petitioner or found by the Hearing Officer to support a review here of the zoning classification of the proposed project.
Dr. Stephany received actual notice of the proposed agency action and was not prejudiced by lack of newspaper publication or lack of other notice. No other party to this proceeding has complained of lack of notice.
