STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KATHRYN HAUGHNEY, )

)

Petitioner, )

)

vs. ) CASE NO. 90-7215

) STATE OF FLORIDA DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on March 3, 1991 in Ormond Beach, Florida, before Ella Jane P. Davis, a duly assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Emmett and Martha Haughney, pro se

2301 John Anderson Drive Ormond Beach, Florida 32074

For Respondent: Douglas MacLaughlin

Assistant General Counsel Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32399-2400

STATEMENT OF THE ISSUE

Whether or not Petitioner is entitled to a dredge and fill permit to construct a dock and seawall by provision of reasonable assurances that the project is in the public interest.

PRELIMINARY STATEMENT

The original Petitioner and the permit applicant in this cause was Kathryn Haughney, who was seriously ill in the hospital on the day of formal hearing.

The property involved is owned by Emmett and Martha Haughney, the parents of the applicant, and they were present and desirous to proceed in the absence of Kathryn Haughney and had Kathryn Haughney's permission to proceed. After examination, one of the Haughneys was supposed to be designated as "qualified representative" but, in fact, both Emmett and Martha Haughney were permitted to examine witnesses and present evidence.

At the commencement of formal hearing, Respondent's "Motion to Strike and Motion in Limine" was heard. The undersigned denied the motion to strike the petition which contains inverse condemnation and constitutional issues, but

granted the motion in limine on a limited basis to exclude property value information and further ruled that the Division of Administrative Hearings' (DOAH's) jurisdiction attached only to the referral of the petition pursuant to Section 120.57(1) and Chapter 403 F.S. and that DOAH is without jurisdiction to determine constitutionality of statutes or issues otherwise reserved by law to the Article V courts.

Petitioner presented the oral testimony of Andy Harris, Martha Haughney, and Emmett Haughney, and had one exhibit admitted in evidence.

Respondent, Department of Environmental Regulation, (DER), presented the oral testimony of Don Medellin and Barbara Bess and had 8 exhibits admitted in evidence.

The permit application was admitted at the request of the undersigned as Joint Exhibit A.

No transcript was provided. Martha Haughney sent one letter to Respondent's counsel and another, slightly different letter, to the undersigned. Although neither letter precisely comprises proposed findings of fact, the contents of each letter have been treated as such and have been ruled upon to the extent possible in the Appendix to this Recommended Order, and Respondent's proposed findings of fact are also ruled upon in the Appendix to this Recommended Order, pursuant to Section 120.59(2) F.S.

FINDINGS OF FACT

1. On May 8, 1989, the Petitioner, Kathryn Haughney, applied to DER for a permit to construct a dock and seawall on the shore of the Halifax River in Volusia County.

   
   

2. The portion of the Haughney property where the dock and seawall would be constructed is separated from the Haughney home by John Anderson Drive, which parallels the river's edge and is separated from the river by a ribbon of undeveloped property at that location and to the south. A house is located at water's edge on the lot to the north of the proposed construction site. The Haughney home itself is set well back from John Anderson drive on the side of the street away from the river.

   
   

3. The Halifax River is classified as a Class III water body under DER rules. The particular part of the Halifax River where the Haughney property is located and where the dock and seawall are proposed is also within the Tomoka Marsh Aquatic Preserve, which is an Outstanding Florida Water under DER rules.

   
   

4. The dock as proposed by Petitioner will be 320 square feet. DER denied the permit application on July 19, 1990, but in so doing did not deny the application on the basis of the proposed dock, which, because of its dimensions, is exempt from DER permitting requirements.

   
   

5. The seawall as proposed is to be 137 feet long. Petitioner applied to extend it 16 feet out into waters of the state at the northern end, gradually increasing to 34 feet into waters of the state at the south end. Additionally,

   5 feet of riprap would also extend out into waters of the state along the seawall's entire length.

6. The waters of the state that would be filled by the proposed seawall contain lush wetland vegetation that provides habitat for a number of macroinvertebrate species which are part of the food chain feeding fish and wading birds such as egrets and herons. Fiddler crabs and colonies of mussels have been observed on the site. The area to be filled provides a valuable habitat for fish and wildlife. There was no mitigation offered by Petitioner to make up for the loss of habitat to be occasioned by the proposed construction.

   
   

7. Although Petitioner asserted DER had named no "endangered species" and that the Environmental Protection Administration had not designated this area as "endangered," those federal concerns were not at issue. If such federally designated species or location designation existed in the locale, it might militate against granting this application for permit, but in the negative, it is irrelevant.

   
   

8. A vertical seawall exists immediately north of Petitioner's shoreline. The shoreline to the south remains undeveloped. (See Finding of Fact 2). Construction of seawalls, especially those that extend out from the existing shoreline, typically causes erosion on adjacent shorelines, and additional seawalls exaggerate wave energy and can have a cumulative erosive effect. The foregoing fact is found in reliance upon the testimony of Don Medellin, an Environmental Specialist II for DER, and Barbara Bess, an Environmental Manager for DER, both accepted as experts in environmental aspects of dredge and fill permits.

   
   

9. The assertion that actual erosion on the property to the south has already occurred was contained in a letter from Petitioner's southern neighbor (DER Exhibit 6). Petitioner's representatives objected to consideration of this exhibit as "hearsay." They are correct and current erosion to the south is not found as a fact.

   
   

10. Nonetheless, actual erosion in a pocket on the north end of Petitioner's shoreline has been shown by the direct testimony of Emmett and Martha Haughney, who assert that their property is eroding due to the existing seawall and that Petitioner wants a permit for a seawall to alleviate this erosion. Their evidence is confirmed by the personal observations and testimony of Mr. Medellin and Ms. Bess. Further, upon their testimony, it is accepted that this minimal pocket of erosion is most likely due to the existing seawall to the north and that if the Petitioner builds a seawall to the specifications now set out in the permit application, there is potential for similar and perhaps cumulative erosion to the shoreline to the south of Petitioner's lot.

    
    

11. Neither the city nor county involved has land use restrictions which would prohibit Petitioner's proposed seawall except that Volusia County advocates riprap requirements if this permit application were granted.

12. In its Notice of Permit Denial, DER advised Petitioner as follows: The Department has determined that the follow-

    ing changes to the project may make the project

    permittable:

    The vertical seawall should be eliminated and replaced with coquina rock riprap revet- ment. The riprap should be located further landward and conform to the slope of the existing embankment. Backfilling on the north property line is acceptable provided the fill

    area does not extend more than 10 feet westward in the most eroded area. Accordingly, the riprap could extend to the adjacent seawall

    and gradually extend in a more landward direc- tion to prevent excessive elimination of the littoral zone vegetation. Whatever alternative the applicant elects to choose, the removal or elimination of littoral zone vegetation must be offset in the form of mitigation if the impacts can not be reduced any further. Finally, the agent should eliminate the use of generic drawings which must be continually revised.

    All drawings should reflect the existing and proposed conditions and the impacts associated with the project.

    
    

13. Petitioner's contractor, Andy Harris, testified to other alternatives that could be used by Petitioner in constructing her seawall, but the evidence of Mr. Medellin and Ms. Bess is persuasive that the alternative measures proposed by Mr. Harris would not provide the reasonable assurances the law requires DER to obtain from Petitioner.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

15. The proposed dock is exempt from DER permitting since it will be less than 500 square feet in an Outstanding Florida Water. See, Section 403.813(2)(b) F.S.

    
    

16. The placement of fill for the proposed seawall in waters of the state requires a permit from DER. See, Sections 403.913 and 403.918 F.S.

    
    

17. Because the proposed seawall is to be constructed within an Outstanding Florida Water, Petitioner bears the burden to go forward and prove that the project is clearly in the public interest. See, Section 403.918(2)

    F.S. As the permit application now stands, it must be denied because it has the potential to adversely affect the property of others and the conservation of fish and wildlife, and because it may cause harmful erosion.

    
    

18. The alternative project design proposed by the agency may be somewhat more expensive for Petitioner but it does not preclude all effective use of her property. The right of the property owner to use his own property must be balanced against the need to protect our environment. Chapter 403 F.S. seeks to do this. In this balancing test, Petitioner's application as it now stands must be denied. Of course, Petitioner is free at any time to submit a new application conforming to the agency's alternative suggestions or containing proposals of her own which would also provide the necessary reasonable assurance.

RECOMMENDATION

Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order affirming its July 19, 1990 Notice of Permit Denial.

RECOMMENDED this 25th day of April, 1991, 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 25th day of April, 1991.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-7215

The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF):

Petitioner's letter to Hearing Officer (filed March 22, 1991)

The first paragraph complains that a VCR was unavailable in the hearing room so that Petitioner's videotape could not be shown. Petitioner should have made arrangements for showing the tape and did not. Likewise, Petitioner never offered the tape in evidence (for viewing by the Hearing Officer afterwards in preparation of this Recommended Order). Therefore, it very properly was not considered.

The next 3 paragraphs refer to the Casden letter (DER Exhibit 6), which is covered in FOF 8-9.

The remaining paragraphs are rhetoric and legal argument upon which no ruling need to made under Section 120.59(2) F.S.; however, they are alluded to in the Conclusions of Law.

Petitioner's letter to DER Counsel (filed March 25, 1991 by DER, suggesting it was Petitioner's proposed findings of fact)

1-3 For the reasons set out above, the Petitioner's videotape was not considered. The subject of erosion to the degree proved at the hearing is covered in the Recommended Order.

4-5, PS 1-3 Mere rhetoric and legal argument upon which no ruling need be made under Section 120.59(2) F.S.; covered in the Conclusions of Law to the degree appropriate.

Respondent's PFOF:

1-11 Accepted as modified to reflect the greater weight of the credible and probative record evidence as a whole. That which is rejected is rejected as not proven or not persuasive. Unnecessary or irrelevant material has likewise been excluded.

COPIES FURNISHED:

Douglas MacLaughlin Assistant General Counsel Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Kathryn Haughney

2301 John Anderson Drive Ormond Beach, FL 32074

Emmett and Martha Haughney 2301 John Anderson Drive Ormond Beach, FL 32074

Carol Browner, Secretary Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, FL 32399-2400

Daniel H. Thompson, General Counsel Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, FL 32399-2400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-007215

Orders for Case No: 90-007215