STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANNELLE and JUDSON WEST, )

)

Petitioners, )

vs. ) CASE NO. 89-6363

) JACK RATKOVIC and DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Respondents. )

)

)

VIRGINIA QUILL MYERS and )

MARY SUSANNA MYERS, )

)

Petitioners, )

vs. ) CASE NO. 89-6364

) JACK RATKOVIC and DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Respondents. )

)

)

RONALD ASNER, )

)

Petitioner, )

vs. ) CASE NO. 89-6365

) JACK RATKOVIC and DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Respondents. )

)

)

DAN and SUE STEGER, )

)

Petitioners, )

vs. ) CASE NO. 89-6366

) JACK RATKOVIC and DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Respondents. )

)

)

KAYLA K. DOUGLAS and )

ERIC DOUGLAS, )

)

Petitioners, )

vs. ) CASE NO. 89-6367

) JACK RATKOVIC and DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

Respondents. )

)

)

MARY H. ACEBAL and )

E. V. ACEBAL, )

)

Petitioners, )

vs. ) CASE NO. 89-6368

) JACK RATKOVIC and DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Respondents )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on May 2, 1990 in St. Augustine, Florida, before Ella Jane . Davis, a duly assigned Hearing Officer of the Division of Administrative Hearings

APPEARANCES

For Petitioners Judson West, pro se, and as Annelle and Qualified Representative

Judson West: 4 Lighthouse Avenue Anastasia Island

St. Augustine, Florida 32084

For Petitioners Mary Susanna Myers, pro se, and as Virginia and Qualified Representative

Mary Myers: 322 Ponce de Leon Avenue Anastasia Island

St. Augustine, Florida 32084

For Petitioner Ronald Asner, pro se Ronald Asner: 37 Magnolia Drive

Anastasia Island

St. Augustine, Florida 32084

For Petitioners Sue Steger, pro se, and as Dan and Sue Qualified Representative

Steger: 25 Magnolia Drive Anastasia Island

St. Augustine, Florida 32084

For Petitioners No appearance Kayla and Eric

Douglas:

For Petitioners Mary H. Acebal, pro se, and as Mary and E.V. Qualified Representative Acebel: 10 Lighthouse Avenue

Anastasia Island

St. Augustine, Florida 32084

For Applicant/ Jack Ratkovic, pro se Respondent: Post Office Box 4482

St. Augustine, Florida 32085

For Respondent William H. Congdon

Department of Assistant General Counsel, DER Environmental Twin Towers Office Building Regulation (DER): 2600 Blair Stone Road

Tallahassee, Florida 32399-2400 STATEMENT OF THE ISSUE

Whether or not the Applicant has provided reasonable assurances that the proposed project meets the requirements of Chapter 403 F.S. and Chapter 17

1. for issuance of a dredge and fill permit.

   
   

   PRELIMINARY STATEMENT

   
   

   On July 20, 1989, the Applicant, Jack Ratkovic, applied to DER for a permit to place pilings along the northern property line of Lot 5, Carver Subdivision, St. Augustine, Florida. On October 6, 1989, DER executed its Intent to Issue a permit, including a draft permit.

   
   

   Within fourteen days of-execution of the Intent to Issue, the DER received six petitions challenging the proposed project. On November 22, 1989, those petitions were referred to the Division of Administrative Hearings and assigned DOAH Case Nos. 89-6363 through 89-6368.

   
   

   By order of January 2, 1990, pursuant to the terms of the Order to Show Cause entered December 6, 1990, these cases were consolidated.

   
   

   Formal prehearing conference was held in St. Augustine, Florida on March 16, 1990. At that time, certain stipulations and oral rulings were made which were subsequently memorialized by the Prehearing Order and Notice entered March 22, 1990.

   
   

   At formal hearing in these types of proceedings, the

   burden of proof and duty to go forward are upon the Applicant. Respondents DER and the Applicant presented a joint case-in- chief. Respondents presented the oral testimony of Applicant Jack Ratkovic and Jeremy Tyler and had admitted Exhibits P-1, 3, 4, 5, 6, 7, and 8.

   
   

   The Petitioners who appeared each adopted each others- respective witnesses' testimony and exhibits and presented the oral testimony of Judson West, Mary Susanna Myers, Ronald Asner, and Sue Steger. These Petitioners had admitted Myers Exhibits 2, 3, and 5 and Steger Exhibit 1. Petitioners Douglas, in DOAH Case No. 89-6367, made no appearance.

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

   
   

   FINDINGS OF FACT

   
   

   1. Petitioners Kayla and Eric Douglas in DOAH Case No. 89-6367 failed to appear or send a qualified representative on their behalf to formal hearing, and, accordingly, their petition is subject to dismissal, pursuant to Rule 221-

      6.022 F.A.C.

      
      

   2. Applicant Ratkovic owns two adjacent rectangular-shaped pieces of property, Lots #5 and #6, located at 19 Magnolia Drive, within the city limits of St. Augustine, Florida. These lots are bounded on the north by Oceanway Street, a dirt road, and on the east by Magnolia Drive. The Ratkovic house is located on the lot which directly abuts Magnolia Drive (Lot #6). Lot #5 is immediately to the east of Lot.#6 and is separated from it by a ten-foot wide alleyway. Oceanway Street deadends into Salt Run, a Class III Water of the State, which is next to Lot #5.

      
      

   3. Lot #5 is 55 feet wide in a north-south direction and 82.5 feet long in an east-west direction. Lot #5 is completely within the landward extent of Salt Run. Lot #5 may be cnaracterized as a flat, intertidal sand beach and DER's jurisdiction with respect to it extends to the ordinary mean high water line.

      
      

   4. Salt Run is an embayment off of the Atlantic Ocean which, with the help of a concrete artificial groin, forms a cove in the vicinity of the proposed project. Water flow in the cove is serene enough to allow a tidal marsh to grow along parts of the shoreline of the cove, but there are still two areas of the cove in which no vegetation grows: waterward of Applicant's property and waterward of the property of Petitioners Steger (DOAH Case No. 89-6366). The Steger property is several lots south of the Applicant's property.

      
      

   5. Marine vegetation grows in the southeast quadrant of Lot #5 and to the north of Lot #5.

      
      

   6. The proposed project involves the placement of 19

pilings on 4'8" centers along the northern lot line of Lot #5. The proposed pilings would run on a line in the middle of the unvegetated area, approximately halfway between the two areas of tidal marsh growth, out to the waterward edge of Lot #5. 7. The Applicant desires a dock for Lot #5 and has already availed himself of the general permit provisions of Rule 17-312.808 F.A.C. The dock has not been constructed because he has been unable to obtain local approval for its construction. Respondents assert as a legal proposition that a 1,000 square foot (6 foot wide) piling-supported dock, if built on Lot #5, would be exempt from the requirement of obtaining a DER dredge and fill permit such as the one at issue here, and because of Respondents' assertion, it is one of Petitioners' concerns in this proceeding that the Applicant not be permitted to do by indirection that which he has been prohibited by local government (but not DER) from doing directly. However, that dock permit and those peripheral legal propositions need not be resolved in this proceeding for the reasons set out infra.

1. The Applicant intends that the proposed pilings at issue here will serve as the northern support structure of his proposed dock, if local approval is eventually granted for the dock. However, without such local approval of his proposed dock, the Applicant's proposed pilings would still serve as a barrier

   to vehicular traffic which presently has unrestricted access across the beach and across his private property, Lot #5. The Applicant represented that he wants to install the pilings with or without the dock approval so as to prevent late night driving of cars on his beachfront property.

   
   

2. Salt Run is full of docks, and this vicinity of Salt Run is the only area totally unobstructed by docks. This vicinity also has the only bottom area in Salt Run not encrusted with oyster or other bivalve shells.

   
   

3. The only water quality standard to be impacted by the proposed project is turbidity. Turbidity results from the resuspension of bottom material and will occur briefly during the placement of the pilings. At the proposed project site, the bottom material is sand, which when resuspended, rapidly falls to the bottom and therefore has little environmental impact under the circumstances of this application. However, turbidity controls have been required by Specific Condition 4 of the DER Draft Permit. The foregoing factors assure that water quality standards will not be violated by the proposed pilings.

   
   

4. The testimony of DER's agency representative, Jeremy Tyler, who was accepted as an expert in oceanography and the impacts of dredge and fill projects to wetlands and water quality, is accepted that because the proposed pilings will be located on a flat, intertidal sand beach, and because installation of the pilings requires appropriate turbidity controls, the placement of the proposed pilings will not generate turbidity sufficient to impact the tidal marsh, and, accordingly, their placement will not adversely affect the conservation of fish, wildlife, or their habitats. Similarly, it is found that fishing, marine productivity,- and the current conditions and relative value of functions being performed by the tidal marsh will not be adversely affected by the proposed project.

   
   

5. The proposed project will not have any effects upon the public health, safety, or welfare, the property of others, or significant historical or archaeological resources. It will be permanent.

   
   

6. The proposed project will not adversely affect the flow of water at the proposed site and will not cause harmful erosion or shoaling.

   
   

7. Depending upon the time of the month, the time of the year, and the height of the tide, water could wash up to the landward side of Lot #5, or could leave the lot high and dry.

   
   

8. Oceanway Street, the dirt road adjacent to the

   Applicant's property on the north, has historically been used by the neighbors and general public to drive down to Salt Run. These persons have used the cleared area between the tidal marsh sections described supra for wading, swimming, throwing of cast nets, and launching of boats and windsurfing boards. Because it is within the city limits, the area is also very attractive to those who just wish to stroll up the beach on a north-south tangent. In gaining access to the water of Salt Run, some persons have not differentiated between Lot #5, which is private property, and Oceanway Street. One reason for this lack of discernment seems to be that nearby Ingram Street, also a public access, is in such disrepair that prudent persons avoid it. Also, Applicant either built on Lot #6 or moved into the house on that lot only within the last few years, and while Lot #6 was formerly unoccupied, the neighbors and the public were free to walk dogs, moor and launch boats, and enjoy virtually all recreational activities in public areas and on Lot #5 with impunity. In essence, Lot #5 has been treated as a public beach. In the recent past, the

   Applicant's attempts to "run off" persons who have utilized his property in these ways have caused bad feelings in the neighborhood. Also, Lot #5 has been inadvertently used for recreation some of the time that it is covered with water, and this seems to be the source of some persons' confusion over where the Applicant's right to "run off" the public begins and ends; however, the evidence is insufficient to establish a public easement across Lot #5.

   
   

9. If the proposed piling project were constructed, beach walkers, swimmers, or waders approaching one of the piles (and if local approval is obtained, ultimately the dock) might have to alter their course to avoid a collision. The 4'8" gap between pilings would allow this, but in the event a dock is installed, it might be more prudent to avoid the area altogether. Cast netters would have to alter their net throws so that their backswing or release would not intersect the position of a proposed piling and so that their nets would land along the line of the proposed pilings instead of on the pilings or dock. This could be done.

   
   

10. Boaters and windsurfers, after placement of the proposed pilings, would have a far narrower area within which to launch and land their boats and boards. However, this narrowing would not preclude such launching or landing. Boats often start and end their journeys at docks, which, from a boat hull's perspective, are nothing more than a row of pilings. Windsurfing boards are approximately two feet at their widest. When a windsurfer capsizes in open water, he typically rights his board and starts anew. Here, if windsurfers do not wish to launch in the clear area remaining to the north of the last piling, which they could easily do, they would be able to walk their boards out to the last piling and start as they would in open water. The proposed pilings will make it more difficult to launch or land a windsurfing board, but it would not preclude such use of the water. There is also a public boat ramp at Lighthouse Park, the northern boundary of which is four blocks to the south and three blocks to the west of the proposed project site. Boaters or windsurfers who did not choose to use the end of Oceanway Street to obtain access to Salt Run would be able to use that location.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

12. Petitioners Kayla and Eric Douglas in DOAH Case No. 89-6367 are subject to having their Petition dismissed pursuant to Rule 211-6.022 F.A.C.

    
    

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

    
    

14. 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.

       
       

15. All surface waters of the state of Florida are classified as Class III waters, unless specifically excepted. Rule 17-3.161(1) F.A.C. Exceptions occurring in St. Johns County are listed under Subparagraph 55 9f Rule 17- 3.161(3) (c) F.A.C. In that subparagraph, Salt Run is classified as Class II waters "south of an east-west line connecting Lighthouse Park boat ramp with

    Conch Island." The location for the proposed project lies to the north of this dividing line and therefore in Class III waters of the state. Salt Run is not an Outstanding Florida Water. See, Rule 17-3.041(17) F.A.C.

    
    

16. Water quality standards relating to turbidity in Class III waters are contained in Rule 17-3.061(r) F.A.C., which states: "Turbidity - shall not exceed twenty-nine Nephelometric Turbidity Units (NTU's) above natural background.

    
    

17. No evidence was presented to contradict Jeremy Tyler's expert testimony that water quality standards would not be violated by the proposed project. Therefore, the Applicant has 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, 17-3.061, and 17-3.121 F.A.C.

    
    

18. 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 of 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 and archaeological resources under the provisions of s. 267.061; and

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

    
    

19. Reasonable assurances have been provided that there will be no adverse effects on any of the public interest test criteria other than "4. . . .

    recreational values . . . in the vicinity of the project." [Emphasis supplied] Thus, the issuance of the permit depends upon whether this criteria causes an otherwise permittable project to become "contrary to the public interest."

20. Jointly and severally, the Petitioners have repeatedly asserted the maxim that "the good of the many must outweigh the good of the few [or one]." Indeed, this is the thrust of all environmental legislation and case law; that, to paraphrase Abraham Lincoln, "we must all hang together on this endangered planet or we will assuredly hang separately." In this case, there has been no true environmental threat demonstrated--no permanent or even measurable damage to water, air, the shoreline, or the ecosystem--but the Petitioners have demonstrated some genuine adverse effects on the recreational values they now enjoy. These must be addressed pursuant to Subparagraph 403.918(2)(a)4. F.S., even if what has been demonstrated is little more than a proposed disruption in "the way we have always had it," an inconvenience to the public.

    
    

21. Mr. Asner's concern over a clear view, the several neighbors' fear of lowered property values, Jeremy Tyler's testimony that barnacles and other growths will occur on the pilings, and Mrs. Steger's speculation upon that expert testimony that growths on the pilings could cut swimmers' hands and, if spread to the bottom of the cove, would impede swimming, boating, and fishing are not the type of concerns normally cognizable in these proceedings.

    
    

22. Also, recreational activities which require a trespass on or over the Applicant's private property are not the recreational values protected by the public interest test and cannot be considered. The Applicant's right to exclude others from his private property is protected by law. The loss of opportunity for recreational activity by trespass is not a statutorily protected recreational value. Only the impacts to recreational values which occur in the public domain may be considered, and in this instance those are de minimis.

    
    

23. With regard to the public area, windsurfing will become slightly more dangerous. Windsurfers may have to launch further out in the water, choose another launch site, or, if already "up" and attempting to land, they will have to steer clear of the pilings/dock. Boats will have to navigate around the pilings/dock or anchor further out in the water than they now do, and persons on "liveaboards" may not be able to boat to shore in dress clothes without getting their feet wet. Sailboaters would have to launch further out in the water to avoid the proposed project. Children being taught to swim may have to wait until they are tall enough to stand up further out in the water or their parents/teachers may have to watch them more carefully. North-south beach walkers will have to negotiate the proposed project or not walk there. Regardless of the foregoing, this proposed project would not deny public access to the public areas. Any impediments for public access to public areas appear to exist already due to diminished local government maintenance of the existing public accesses.' The Applicant is not required to create, improve, or maintain public access.

    
    

24. Applying the balancing test provided by the statute to this proposed project, it is clear that even if the current proposed pilings project is designed to eventually "piggyback" construction of a dock at a future date, which dock is excluded from DER's jurisdiction due to its minimal size, this proposed project is merely contrary to the public convenience. It is not legally "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

1. Dismissing the Petition in DOAH Case No. 89-6367;

2. Denying the Petitions in DOAH Case Nos. 89-6363, 89-6364, 89-6365, 89-6366, and 89-6368; and

   
   

3. Granting the dredge and fill permit application as specifically conditioned by the Department of Environmental Regulation's Intent to Grant.

DONE and ENTERED this 19th 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

19th day of June, 1990.

APPENDIX TO RECOMMENDED ORDER CASE NOS. 89-6363, 89-6364, 89-6365

89-6366, 89-6367, 89-6368

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

F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioners Stegers' PFOF filed May 22, 1990:

Paragraph 1: Sentences 1, 3, and 4: Accepted as fact, however, the degree of obstruction, the significance of recreational values within the applicable statutory balancing test, and the legal implications of that balance as contained in the Recommended Order more accurately reflect the record as a whole.

Sentence 2: Accepted as modified to more accurately reflect the record as a whole.

Sentence 5: Rejected as unproved. See what was proved and what was speculated in FOF 9 and 11 and COL 11.

Paragraph 2: Rejected as not proved. Respondent DER's PFOF filed May 22, 1990:

1-16 Accepted as modified to more accurately reflect the credible, competent, substantial evidence of record as a whole.

To date, no other PFOF have been filed.

COPIES FURNISHED:

Judson and Annelle West

4 Lighthouse Avenue Anastasia Island

St. Augustine, Florida 32084

Virginia Quill Myers Mary Susanna Myers

322 Ponce de Leon Avenue Anastasia Island

Kayla K. and Eric Douglas

69 Lighthouse Avenue Anastasia Island

William H. Congdon

Assistant General Counsel, DER Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400

Dale H. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Docket for Case No: 89-006363

Orders for Case No: 89-006363