STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BILL HALSELL and PENNY HALSELL, )

et al., )

)

Petitioner, )

)

vs. ) CASE NO. 89-5270

) [Petitions A-Y inclusive]

HOMECOMERS, INC., and ) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondents. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on March 16, 1990 in St. Augustine, Florida, before Ella Jane P. Davis, a duly assigned Hearing Officer of the Division of Administrative Hearings.

BACKGROUND

This cause began with the filing of 25 individual and almost identical petitions protesting the Department of Environmental Regulation's (DER's) Intent to Issue a dredge and fill permit to Homecomers, Inc. These petitions were referred to the Division of Administrative Hearings, and the Clerk of the Division of Administrative Hearings established a single file on October 5, 1989. By the Administrative and Scheduling Order and Notice of Prehearing Conference entered October 30, 1989, the petitions were designated by alphabet letter, preliminary discovery procedures were established, and a formal prehearing conference was scheduled in the appropriate venue. Formal prehearing conference was held on December 28, 1989, and lay representatives were examined and qualified, final discovery procedures were established, and formal hearing date was established. Those oral rulings were memorialized in an order entered January 12, 1990. Final formal evidentiary hearing was convened on March 16, 1990 in St. Augustine, Florida.

APPEARANCES

FOR PETITIONERS J. Stephen Alexander, Esquire

A, B, D, I, J, Upchurch & Alexander, P.A.

M, S, T, V, W 200 First Union Bank Building

and X: Post Office Box 3956

St. Augustine, Florida 32085-3956

FOR PETITIONERS R.M. Kuehn, Qualified

P.B. and R.M. Representative

Kuehan): 5494 Atlantic View

St. Augustine, Florida 32084

FOR PETITIONERS No appearance C, E, F, G, H,

K, L, N, O, Q,

R, U, and Y:

FOR RESPONDENT J.R. Moore, Qualified

HOMECOMERS, INC.,: Representative

Harbor Engineering Co., Inc. 1615 Huffingham Road

Jacksonville, Florida 32216

FOR RESPONDENT William H. Congdon, Esquire

DEPARTMENT OF 2600 Blair Stone Road

ENVIRONMENTAL Tallahassee, Florida 32399-2400 REGULATION:

STATEMENT OF THE ISSUE

Whether or not Applicant Homecomers, Inc. should be issued a dredge and fill permit upon reasonable assurances that the proposed project meets the requirements of Chapter 403 F.S. and Chapter 17-3 F.A.C.

PRELIMINARY STATEMENT

At the commencement of formal hearing, the parties orally amended their Prehearing Stipulation, which was interlineated, initialled by the undersigned, and admitted as Joint Exhibit A. In permit proceedings such as this one, the Applicant bears the burden of proof. The Applicant and DER (Respondents) presented a joint case. Respondents presented the oral testimony of Jeremy Tyler, Michael Eaton, George William Hamilton, and J.M. Moore and had five exhibits admitted in evidence. Those Petitioners who were present or represented presented the oral testimony of John Nock, Bill Halsell, and Dr.

Hank Trapido- Rosenthaul and had six exhibits admitted in evidence.

No transcript was provided, but all timely proposed findings of fact have been ruled on in the Appendix to this Recommended Order pursuant to Section 120.59(2) F.S.

FINDINGS OF FACT

1. The following Petitioners were represented at formal hearing by J. Stephen Alexander, Esquire:

   
   

   1. Bill and Penny Halsell

   2. Barbara Wayne

      D. Judy D. Borst

      1. Edwin K. Martin

      2. J. Stephen Alexander and Torim V. Alexander

      M. Jerry Prater and James L. Prater

      1. Jackie A. Kelly

      2. Carol Schaefer

      1. Frank A. Schaefer

      2. David B. Hoar

      3. Lawrence S. Hoar

2. The following Petitioners did not appear for, and were not otherwise represented at, either the formal prehearing conference or the final formal evidentiary hearing:

   
   

   C. Robert Bechin

   1. Ben Anderson

   2. Resident (signature unintelligible) [possibly also known as Charlie Blitch]

   3. Robert Nasife

   4. Marie D. Nasife and Robert G. Nasife

   1. Kathleen R. Pile and Kevin D. Pile

   2. Beverly S. Smith and Greg Smith

   N. James Hoffner and Bonnie Hoffner

   0. Marie D. Nasife

   1. Betty Wiant

   2. Helen Morgan

   U. Laura Hoar

   Y. Rita M. Hoar

   
   

   Neither did any of the foregoing Petitioners listed in this paragraph comply with the terms of either the Order to Show Cause or the Order of Prehearing Instructions entered herein on January 12, 1990. Accordingly, Petitions C, E, F, G, H, K, L, N, O, Q, R, U, and Y should be dismissed.

   
   

3. The parties stipulated that the waters of the state which give DER jurisdiction over this project are Class II waters, as defined in Rule 17-3.111 F.A.C.

   
   

4. The parties stipulated that the proposed project will not adversely affect the public health, safety or welfare.

   
   

5. The parties stipulated that the proposed project will not adversely affect the property of Petitioners.

   
   

6. The parties stipulated that the proposed project will not adversely affect navigation in the vicinity of the project.

   
   

7. The parties stipulated that the proposed project will not adversely affect recreational values in the vicinity of the project.

   
   

8. The parties stipulated that the proposed project will not adversely affect significant historical or archeological resources under the provisions of Section 276.061 F.S.

   
   

9. The parties stipulated that the proposed project will not result in adverse cumulative impacts.

   
   

10. Applicant Homecomers, Inc. owns a rectangular- shaped piece of property approximately 6.8 acres in size which lies immediately to the south of Palmetto Road in St. Augustine, Florida. It is approximately one-half mile from the Matanzas River. A perimeter ditch runs parallel to three sides of Applicant's property. Water in the perimeter ditch rises and falls with the tides. The eastern boundary of Homecomers' property abuts the westernmost lots in Hawaiian Isles subdivision, except where an elongated pond separates the subdivision lots from Homecomers' property line. Another elongated but smaller pond is more central to the Homecomers parcel. The northeast corner of the property contains another small T-shaped pond. At high tide, the ditch may

    overflow to one or more of these ponds, further increasing the flow considerably. Neighbors who have had the opportunity to observe the property at high and "`noon" tides describe the property as completely or nearly completely under water at normal high tide. Best estimates appear to show that two-thirds of the 6.8 acres is underwater three or four days in a row, six or seven times per year. No one who testified on behalf of the Applicant had visited the property at high tide.

    
    

11. For all practical purposes, Homecomers' entire piece of property is completely within the landward extent of the Matanzas River, a Class II water of the state. The property is connected to the Matanzas River by a 48-inch- diameter culvert. Vegetation on the piece of property includes submerged species, which form a marsh over most of the property, and transitional species, which form a "high marsh." The high marsh area is elevated above the rest of the marsh because of spoil having been placed there in the past. There is also a small area where the spoil is high enough to support upland vegetation. This upland area is next to the location where construction is planned.

    
    

12. Homecomers proposes to construct a permanent 40 foot by 40 foot pile- supported house approximately 150 feet south of the center line of Palmetto Road and approximately 90 feet west of the eastern property boundary. The project proposal/permit application calls for the house to be 15 feet above grade. The house and an associated parking area will be connected to Palmetto Road by a 10- foot wide driveway. However, no one who testified on behalf of the Applicant was able to provide any topographical surveys or other plans with researched elevations. The plans provided had been prepared by an engineer only "roughly to scale." Some concerns over precisely how the Applicant could make adequate provisions for utility and sewage connections were raised by Mr. Nock, a local St. Johns County contractor, but these problems were not insurmountable, even by Mr. Nock's estimation.

    
    

13. The driveway and parking area will replace an existing jeep trail which, after leveling, will be covered with six inches of coquina. DER's Intent to Grant specifies that all fill be stabilized. The ditch which the driveway crosses has been viewed to regularly contain twelve to fourteen inches of standing water. The evidence of Mr. Tyler is to the effect that a driveway on pilings would be preferable to, but more expensive than, a coquina-based driveway, but the coquina driveway as proposed meets DER's assessment that there will be no significant negative environmental impact from the driveway. The vegetation on the existing jeep trail is of the high marsh variety and is sparse. The driveway and parking area will not be surfaced with asphalt or any other impervious material. An 18-inch diameter culvert, 18 feet long, will be placed beneath the driveway at the point at which it crosses over the perimeter ditch. Existing culverts in the vicinity are 16 inches in diameter. The Applicant's proposal is comparable or slightly preferable to these existing culverts which are functioning satisfactorily without adding to road or property flooding.

    
    

14. After some temporary construction damage to the ground vegetation, which may reasonably be expected to "grow back" or otherwise correct itself in time, construction of the proposed driveway and parking area will permanently eliminate only approximately 1900 square feet of high marsh wetlands, and construction of the house will shade, to varying degrees, 1600 square feet of high marsh wetlands. The permanent shade under the completed house may be expected to permanently destroy certain ground vegetation directly under the house, but equally acceptable ground vegetation may be reasonably expected to take its place as the ecosystem naturally adjusts to the man-made intrusion.

    Because of the natural passage of the sun from east to west, the shade around the house caused by the house will also move in a shifting east-to-west pattern each day, and this type of shade is not considered significantly damaging to vegetation.

    
    

15. At present, the daily tidal water flow moves over the existing jeep trail between the perimeter ditch and "T" pond. The 18-inch culvert will not obstruct this flow. Rather, it should allow a more direct connection. During "moon tides," approximately six or seven times a year, the high marsh and upland areas of Homecomers' property are covered with water. At these times, water will flow directly from the "T" pond to the large, elongated, narrow pond and then to the perimeter ditch which lies to the south of Homecomers' property.

    The proposed project will not impede that flow since it is not to be constructed in the usual flow-way.

    
    

16. The proposed project will not cause harmful erosion or shoaling. Erosion and shoaling result from the rapid flow of water which lifts material from one point (erosion) and deposits it at a different point (shoaling). Since the flow of water around Homecomers' property is tidal, it moves very slowly, and no erosion or shoaling, much less harmful erosion or shoaling, is expected.

    
    

17. Although some disruption is inevitable, no wildlife will be destroyed by construction of the proposed project. Many types of birds feed in the ponds and perimeter ditches, but the proximity of these areas to Palmetto Road and to existing houses does not affect such feeding at the present time, and the evidence presented was insufficient to show that the addition of the proposed house and driveway will have an ecologically significant impact on the feeding habits of the birds actually observed, and it is unclear if any of the birds observed are officially classified as either "endangered" or "threatened." Thus, the proposed project will have no discernible effect upon wildlife or its habitat.

    
    

18. Disruption to the fish in the area is probable but unquantified. It is the "low marsh," not the "high marsh," which is considered to constitute a fish "nursery" in the ecosystem, but when high or "moon" tides cover the high marsh to a depth in which fish can swim, the high marsh can be considered to serve as fish habitat. However, since such flooding is infrequent, and since the vegetation to be destroyed by the driveway is sparse, the impact upon fish habitat will be minimal.

    
    

19. The effect of the proposed project on marine productivity is unquantified and predicted to be minimal. A project can negatively impact marine productivity by either damaging water quality or by eliminating wetland areas which, as plants disintegrate, provide marine life with tiny organic food particles. Since the area to be covered with coquina is sparsely vegetated and infrequently flooded, its contribution to the food chain is not significant. Although Dr. Tropino-Rosenthaul testified as an expert marine biologist that larval forms are susceptible to petroleum products, the degree of impact of oil and grease that might be discharged from motor vehicles using the driveway and parking area would be small, and their impact is subject to a lot of variables, including but not limited to dilution, runoff quantity and velocity, and whether or not the surface is pervious or impervious. Petitioners concede that high tides increase the flow in the ditch, and it must be inferred that such greater velocity and dilution with such increased flow would continue. To date, there is no data to quantify what amount or concentration of oil and grease would harm the larvae present in this location, but in order to minimize impacts from any oil and grease leaks on the property, the driveway and parking area are to be

    constructed of coquina (pervious or porous material), rather than asphalt (impervious material), so that any drips will proceed downward into the soil rather than laterally into surface waters. Oil and grease which does not adhere to the coquina or ground beneath it would be washed into the surface water only on those occasions when the driveway and parking area are flooded. During such flood tides, the greater volume of water will help dilute any oil or grease which is washed into the water. Dr. Tropino-Rosenthaul candidly described most of the damage to be feared as already having occurred when impervious public roadways were cut through the area. In comparison, this project's potential damage is extremely small. For the foregoing reasons, the project will have a slight, but unmeasurable negative impact on water quality and an unquantified effect on marine production.

    
    

20. For the foregoing reasons, this is a "borderline case" in the opinion of DER's Mr. Tyler, who felt that the Applicant's willingness to give DER a conservation easement in mitigation of the sporadic and unquantified potential harm this project might cause made granting of this permit in the State's best interest. The proposed conservation easement agreement is made pursuant to Section 704.06, F.S. and is a condition of the Intent to Grant. It is intended to offset any adverse impacts resulting from the proposed project. The easement will ensure that 280,640 square feet of the parcel's 283,400 square feet (1 acre 43,560 square feet) will remain unaltered and continue to function as a productive wetland.

    
    

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction of the parties and subject matter of this cause. See, Section 120.57(1) F.S.

    
    

22. Petitions C, E, F, G, H, K, L, N, O, Q, R, U, and Y should be dismissed.

    
    

23. The Department of Environmental Regulation has permitting jurisdiction over the proposed project pursuant to Chapter 403 F.S. and Title 17, F.A.C.

    
    

24. Section 403.918(1) F.S. states:

    
    

    1. A permit may not be issued under s. 403.91-403.929 unless the applicant provides the department with reasonable assurance that water quality standards will not be violated.

       
       

25. Water quality standards relating to oil and grease are contained in Rules 17-3.051 and 17-3.061 F.A.C.. Rule 17- 3.051 states, in pertinent part:

    
    

    All surface waters of the State shall at all places and at all times be free from: (1). . .discharges which, alone or in combination with other substances or in combination with other components of discharges. . .

    * * *

    (b) Float as debris, scum, oil, or other matter in such amounts as to form nuisances;

    Rule 17-3.061(3)(k) F.A.C. provides that:

    
    

    1. Dissolved or emulsified oils and

       greases shall not exceed 5.0 milligrams per liter.

    2. No undissolved oil, or visible oil defined as iridescence, shall be present so as to cause taste or odor, or otherwise interfere with the beneficial use of waters.

    
    

26. No evidence was presented to establish that the foregoing specific water quality standards would be violated, even though there was a showing that water quality would be altered, perhaps negatively, to some unquantified degree, on a sporadic basis. The Applicant has thus provided reasonable assurances that the proposed project will not violate water quality standards established pursuant to Chapter 403 F.S. and Rules 17-3.051 and 17-3.061 F.A.C.

    
    

27. Section 403.918(2) F.S. provides, in pertinent part:

    
    

    1. A permit may not be issued under s. 403.91-403.929 unless the applicant provides the department with reasonable assurance that the project is not contrary to the public interest. . .

       1. In determining whether a project is not contrary to the public interest, or is clearly in the public interest, the department shall consider and balance the following criteria:

    1. Whether the project will adversely

       affect the public health, safety, or welfare or the property of others;

    2. Whether the project will adversely

       affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats;

    3. Whether the project will adversely affect navigation or the flow or water or cause harmful erosion or shoaling;

    4. Whether the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project;

    5. Whether the project will be of a temporary or permanent nature;

    6. Whether the project will adversely

       affect or will enhance significant historical or archaeological resources under the provision of S. 267.061; and

    7. The current condition and relative value of functions being performed by areas affected by the proposed activity.

    
    

28. Although the impacts to water quality, fishing, and marine productivity will be minimal, a balance of the seven public interest criteria results in a project which is contrary to the public interest.

29. Nonetheless, Section 403.918(2)(b) F.S., in pertinent part, states:

If the applicant is unable to otherwise meet the criteria set forth in this subsection, the department, in deciding to grant or deny a permit, shall consider measures proposed by or acceptable to the applicant to mitigate adverse effects which may be caused by the project. . .

Here, the proposed conservation easement serves as mitigation sufficient to offset the adverse impacts of the proposed project and to shift the public interest test balance so that the project is "not contrary to the public interest."

RECOMMENDATION

Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order:

(l) Dismissing Petitions C, E, F, G, H, K, L, N, O, Q, R, U, and Y;

1. Denying the relief sought in Petitions A, B, D, L, J, M, P, S, T, V, W, and X; and

   
   

2. Approving the Homecomers Application by issuance of a dredge and fill permit as conditioned by the Intent to Grant.

DONE and ENTERED this 9th day of June, 1990, at Tallahassee, Florida.

ELLA JANE P. DAVIS

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 7th day of June, 1990.

APPENDIX TO RECOMMENDED ORDER CASE NO. 89-5270

The following constitute specific rulings pursuant to Section 120.59(2)

F.S. upon the parties' respective proposed findings of fact (PFOF): PFOF of Petitioners A, B, D, I, J, J, S, T, V, X, and W:

1 The stipulation as orally modified at formal hearing is accepted and incorporated in the Recommended Order (RO) as appropriate.

2-3 Rejected as COL, not FOF, as cumulative, and because there was no proof that the species proved to be present were listed as "endangered" or "threatened" by any recognized authority.

4 Rejected as not supported by the record as a whole.

5,8 Rejected as COL, not FOF, as cumulative, and because not supported by the record as a whole.

6-7 Accepted that water quality standards would be minimally adversely affected as set forth in the RO but these are COL, not FOF as stated. Also, Dr.

Rosenthal testified that he was unfamiliar with the standards to be applied in this type of proceeding.

9-11 Rejected as COL, not FOF, and as not supported by the record as a whole. Respondent' s PFOF:

1-6 Accepted as modified to better reflect the credible, competent, substantial evidence as a whole.

7-16 Accepted as modified to exclude COL and to better reflect the credible, competent, substantial evidence as a whole.

No other proposals have been received to date.

COPIES FURNISHED:

1. Rita M. Hoar

15 Hawaiian Boulevard

St. Augustine, Florida 32084

F. Resident (possibly also known as Charlie Blitch]

330 Palmetto Road

St. Augustine, Florida 32084

K. Kathleen R. Pile Kevin D. Pile

32 Hawaiian Boulevard

St. Augustine, Florida 32084

G. Robert M. Nasife 5494 Fourth Street

St. Augustine, Florida 32084

1. B. Kuehn

   72 Aloha Circle

   St. Augustine, Florida 32084

   
   

2. Betty Wiant

64 Kon Tiki Circle

St. Augustine, Florida 32084

H. Marie D. Nasife Robert G. Nasife

270 Palmetto Road

St. Augustine, Florida 32084

E. Ben Anderson 5443 Fourth Street

St. Augustine, Florida 32084

N. James Hoffner Bonnie Hoffner

5536 Sunset Landing Circle St. Augustine, Florida 32084

J. Stephen Alexander, Esquire

[for Petitioners, A, B, D, I, J, M, S, T, V, X, and W] Upchurch & Alexander P.A.

200 First Union Bank Building Post Office Box 3956

St. Augustine, Florida 32085-3956

Homecomers, Inc. c/o J. M. Moore

Harbor Engineering Co., Inc. 1615 Huffingham Road

Jacksonville, Florida 32216

William H. Congdon, Esquire Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Dale H. Twachtmann, Secretary Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Docket for Case No: 89-005270

Orders for Case No: 89-005270