STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GERALDINE V. BATELL, )

)

Petitioner, )

)

vs. ) CASE NO. 91-4651

)

FLORIDA DEPARTMENT OF ) ENVIRONMENTAL REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Veronica E. Donnelly, held a formal administrative hearing in the above-styled case on November 8, 1991, in St. Petersburg, Florida.

APPEARANCES

For Petitioner: Geraldine V. Batell, pro se

1184-79th Street South

St. Petersburg, Florida 33707

For Respondent: W. Douglas Beason, Esquire

2600 Blair Stone Road Tallahassee, Florida 32399-2400

STATEMENT OF THE ISSUE

Whether the Respondent should issue a permit for the removal of the one mangrove tree growing on the submerged lands owned by Petitioner.

PRELIMINARY STATEMENT

The Petitioner, Geraldine V. Batell (Batell), requested a formal administrative hearing to contest the decision of Respondent, Florida Department of Environmental Regulation (the Department) to deny her application for a permit to remove a volunteer red mangrove tree growing on her privately owned submerged lands between the vertical concrete seawall and small boat dock of her single family residence. Upon receipt of the Petition for Administrative Hearing, the Department referred the case to the Division of Administrative Hearings where a final hearing was scheduled.

During hearing, Petitioner submitted eight exhibits, called one witnesses and testified in her own behalf. The Department filed three exhibits and presented one witness. The Department objected to Petitioner's Exhibit #8 as its attorney had not had the opportunity to cross examine the neighbors who filed the affidavits stating they did not object to the tree removal. The Department was given leave to contact and question each neighbor posthearing.

On December 3, 1991, the Department withdrew its objection to all but one of these affidavits. An objection remained to the affidavit of Mr. Dean Steinke, because his phone number had not been provided and the Department was unable to question him regarding the contents of the document. As a result, all of Exhibit #8 except for Mr. Steinke's affidavit was admitted into evidence.

Posthearing, Petitioner filed Exhibit #9 which consists of a pre- development picture of the subdivision. Although the Hearing Officer specifically allowed for the later submission of evidence concerning the affidavits, the opportunity to submit evidence closed on all other aspects of the case on November 8, 1991. Based upon a ruling to that effect at hearing, the exhibit was rejected. All other exhibits filed by both parties were admitted into evidence, except for Mr. Steinke's affidavit as noted above.

A transcript of the hearing was not ordered. Proposed recommended orders were timely received on December 13, 1991. Rulings on the proposed findings of fact submitted by the parties are in the Appendix to the Recommended Order.

FINDINGS OF FACT

1. Petitioner is the owner of a single family home within a residential development known as Yacht Club Estates in St. Petersburg, Pinellas County, Florida. Her property is adjacent to the waters of Boca Ceiga Bay and includes a small beach area of privately owned submerged lands beyond the seawall and her small boat dock. The vertical concrete seawall runs along the entire back of the property and is approximately fifty two feet in length. The property is next to a lot that sits at an angle as the seawalls turn North. This land and water configuration places the Batell lot in the southeast corner of the embayment. Mrs. Batell and her husband were one of the earlier purchasers of property within the subdivision from the developer. This enabled them to acquire one of the smallest waterfront lots. The home was built in 1965, and Petitioner has lived there continuously for over twenty-six years.

   
   

2. During the creation of the development known as Yacht Club Estates, extensive dredge and fill activities took place in the bay. The mangrove fringe communities in the area were intentionally removed and replaced with rigid seawalls and private docks. Submerged lands between the seawalls and the water were sold as fee simple, private beach areas to the waterfront lot owners. It was the intention of the developers and the subsequent purchasers to own lands with unobstructed views of the waterfront and to exercise control over the submerged lands.

   
   

3. At the time the development was created, the Department of Environmental Regulation had not yet come into existence. Thus, once the Department was created, the project was allowed to continue to exist in its designed state and could be maintained accordingly.

   
   

4. The entire area of the private residential development adjacent to the bay is occupied by vertical seawalls. Although three of the inner canal lot owners have allowed some mangroves to take hold in the waters behind their homes, Petitioner is the only bayfront landowner with a mangrove growing on her small beach area.

   
   

5. Sometime after 1980, Petitioner allowed a red mangrove seedling to take hold on her privately owned beach. She thought the plant was pretty, and it did not impede her use of the beach or her dock in any way while it remained small in diameter and stature.

6. Over the last decade, the seedling has matured into a large tree with an extensive root system. It is approximately eleven feet in height with a branching system that extends off the main axis and forks into two large treelike growth areas. These dichotomous main branches are between one and a half to two inches in diameter.

   
   

7. Petitioner became concerned about the effect of the tree on her property in February of 1991. The tree, which she generally ignored her last few years of teaching before retirement, has grown to a height that impedes her property's view of the bay and her dock, where young grandchildren often sit and fish. The tree's extensive expansion which has occurred through branching and prop root development, has caused Petitioner to suffer apprehension about potential damage to her seawall and private dock because the tree dominates her waterfront area. Organic debris, trash, litter and the decaying remains of a dog and a pelican have been trapped in the mangrove. This occurs because of the tree's location in relation to the waterway and because it is the only vegetation in the area. There is no other place where floating litter can become confined on the subdivision's bayfront. As a result, a large amount of it eventually locates within the mangrove's lower branches and prop root system. As the tree enlarges, greater amounts of trash accumulate. Petitioner's attempts to keep the area clean has become burdensome due to the increase in the accumulations and the size of the tree.

   
   

8. On March 18, 1991, Petitioner applied for a permit from the Department to remove the mangrove tree. Although her written attachment recalled the plant began as one tree, Petitioner erroneously applied for the removal of two trees because of the dichotomous nature of the branching system. It looked like two trees above the main axis, which was usually under water.

   
   

9. In its permit application appraisal, the Department made some major erroneous assumptions that were proven to be invalid during the formal de novo hearing. First of all, it was falsely assumed that two mangrove trees were on site as opposed to one tree. This perpetuated the Petitioner's application error. Secondly, it was falsely assumed that Petitioner purchased the property with an established, full canopy red mangrove fringe beyond her seawall on the submerged lands. The overall design of Yacht Club Estates as a residential community long free of mangrove growth was not considered as a valid, vested right at this particular location by the new Environmental Specialist. Instead of viewing the one tree as a volunteer plant, it was considered as the last pre- development stronghold of mangrove nurseries within a heavily developed area the Department described as "overdeveloped" in the Notice of Permit Denial.

   
   

10. The one mangrove tree at this site has not provided measurable water quality benefication, soil stabilization and habitat. Reliable evidence presented at hearing by Petitioner reveals that the water in this seawalled embayment has suffered degradation in water quality due to the confinement of garbage and decaying dead animals within the lower branches and roots of the tree. Soil stabilization is provided by the vertical seawalls. Habitat functions mainly involve benthic organisms that are abundant in the area with or without the mangrove. The service of this tree in the overall food chain of marine life in the area, which was dramatically overexaggerated by the Department in its proposed permit denial, was not established at hearing.

    
    

11. The Department's written concern in the Notice of Permit Denial that removal of the tree would eliminate the possibility of new mangrove seedling

    propagation in the area is a false concern because mangroves were purposely removed from the area when the development was created.

    
    

12. Removal of the tree would allow the property owner ingress to and use of her private beach which is currently being denied to her. She would also regain visual access to open waters and to her private dock, and she could use the area for recreational purposes as was intended when she took title to the property.

    
    

13. There was no reliable, empirical evidence provided by the Department at hearing to justify its preliminary finding that the tree removal was contrary to the public interest pursuant to Section 403.918(2), Florida Statutes.

    
    

14. Removal of the tree would remove the accumulation of garbage in this corner of the private residential subdivision. The water would flush better in the area, thereby creating a healthier and safer environment.

    
    

15. Petitioner would be able to use the beach and the dock for recreational purposes with her family.

    
    

16. The current condition of the tree and the relative value of the functions being performed by it are outweighed by Petitioner's private riparian rights and her vested interests which do not require her to maintain and grow a volunteer mangrove for public purposes on her privately owned submerged lands.

    
    

17. Petitioner proposes to mitigate for the removal of the mangrove by independently purchasing and planting two to four mangroves in Pinellas County on publicly owned property where a mangrove canopy has been disrupted and needs to be restored. As alternative mitigation, Petitioner would make a mitigation payment to the Environmental Enhancement Fund of St. Petersburg.

    
    

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter pursuant to Section 120.57(1), Florida Statutes.

    
    

19. In Odom v. Deltona Corp. 341 So.2d 977 (Fla. 1977) the Supreme Court addressed the state's rights to regulate a landowner's riparian or littoral rights, including those held in common with the public, and those enjoyed as special rights or easements incident to the riparian holding. Although this case dealt with submerged land in freshwater lakes, it is similar to the current case in many respects: 1) Ownership in the submerged lands at issue was acquired by the original developer as part of an overall project plan for the community;

    2) Public officials operating under a color of law acquiesced in the development of the land surrounding the bay area, indicating willingness for residential development contiguous to the waters; 3) Modification to the submerged lands (mangrove removal) was allowed as part of the development plan; 4) Private persons, such as Mrs. Batell, contracted with the developer relying upon this residential community development plan.

    
    

20. The court in Odom considered these same factors to be significant and determined that equitable estoppel is properly invoked by the landowner in this particular set of circumstances when the state seeks to regulate certain activities at a later date which would renounce its earlier action taken under the direction of prior officials. Trustees of Internal Improvement Fund v. Claughton, 86 So.2d 775 (Fla. 1956).

21. Based upon the reasoning and the balancing of rights, including the constitutional rights, addressed in Odom, it appears that a decision by the Department to use these submerged lands owned by Petitioner for the cultivation, propagation and restoration of mangroves is a taking of conveyed real property rights without appropriate justification and compensation. Trustees of Internal Improvement Fund v. Labean, 127 So.2d 98 (Fla. 1961). As a result, the Department needs to decide if it wants to initiate eminent domain proceedings to acquire a right to proceed with its planned use for these submerged lands which belong to Petitioner, or allow the removal of the mangrove as proposed.

RECOMMENDATION

Accordingly, it is RECOMMENDED:

That Petitioner be granted the permit to remove the mangrove three which was preliminarily denied in File No. MA 521949293.

DONE and ENTERED this 17th day of January, 1992, in Tallahassee, Florida.

VERONICA E. DONNELLY

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 17th day of January, 1992.

APPENDIX TO RECOMMENDED ORDER

Petitioner's proposed findings of fact are addressed as follows:

1. Accepted.

2. Accepted.

3. Accepted.

4. Accepted. See HO #5, #6, #8 and #9.

5. Accepted. See HO #2, #7, #12 and #15.

6. Accepted. See HO #9, #10, #13 and #16.

7. Accepted. Except for Mr. Steinke's affidavit. See Preliminary Statement.

8. Accepted. See HO #17.

Respondent's proposed findings of fact are addressed as follows:

1. Rejected. Contrary to fact. There was only one mangrove. See HO #5, #6, #8 and #9. The rest is accepted. See HO #8.

2. Accepted. See HO #1.

3. Accepted, except there is only one mangrove tree. See HO #5, #6, #8 and #9.

4. One mangrove tree. Otherwise accepted. See HO #2.

5. Accepted. See HO #7.

6. Accepted.

7. Rejected. Contrary to fact. See HO #6.

8. Accepted.

9. Accepted. See HO #1.

10. Accepted. See HO #1 and #2.

11. Accepted. See HO #1 and #2.

12. Accepted. See HO #2.

13. Accepted.

14. Rejected. Cumulative.

15. Rejected. Contrary to fact. See HO #9 - #11.

16. Accepted. See HO #4. (Only one mangrove).

17. Rejected. Contrary to fact. Petitioner does not have a stand of mangroves on her privately owned submerged lands. See HO #4.

18. Accepted.

19. Accepted.

20. One mangrove. Otherwise accepted.

21. One mangrove. Otherwise accepted.

22. Rejected. Contrary to fact. See HO #17.

23. Rejected. Irrelevant. See HO #16. Contrary to fact. See HO #10.

24. Rejected. Irrelevant. See HO #16. Contrary to fact. See HO #10.

25. Rejected. Contrary to fact. See HO #10.

26. Rejected. Contrary to fact. See HO #10.

27. Accepted. (One mangrove)

28. Accepted, generally but not on this site. See HO #10.

29. Rejected. Contrary to fact. See HO #10, #13 and #16.

COPIES FURNISHED:

GERALDINE V BATELL 1184- 79TH STREET S ST PETERSBURG FL 33707

1. DOUGLAS BEASON ESQ ASST GENERAL COUNSEL

   DEPT OF ENVIRONMENTAL REGULATION 2600 BLAIRSTONE RD

   TALLAHASSEE FL 32399 2400

   
   

   CAROL BROWNER, SECRETARY

   DEPT OF ENVIRONMENTAL REGULATION TWIN TOWERS OFFICE BLDG

   2600 BLAIRSTONE RD

   TALLAHASSEE FL 32399 2400

   
   

   DANIEL H THOMPSON ESQ GENERAL COUNSEL

   DEPT OF ENVIRONMENTAL REGULATION 2600 BLAIRSTONE RD

   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 CONTACT 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.

   =================================================================

   AGENCY FINAL ORDER

   =================================================================

   
   

   STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION

   
   

   GERALDINE V. BATELL,

   
   

   Petitioner,

   
   

   vs. OGC No. 91-1450

   DOAH No. 91-4651

   FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION,

   
   

   Respondent.

   /

   
   

   FINAL ORDER

   
   

   On January 17, 1992, a Hearing Officer from the Division of Administrative Hearings ("DOAH") submitted her Recommended Order to the Department of Environmental Regulation ("Department") and all other parties to this action. A copy of the Recommended Order is attached as Exhibit "A." She recommended that the Department grant a dredge and fill permit sought by Petitioner, Geraldine V. Batell ("Batell"), for the removal of a mangrove tree growing on submerged lands owned by Batell. The Department filed exceptions to the Recommended Order. Batell did not file any response to the Department's exceptions. The matter thereupon came before me as Secretary of the Department for final agency action.

   
   

   BACKGROUND

   
   

   This case concerns an application by Batell for a dredge and fill permit to remove one mangrove tree growing on submerged lands owned by Batell as part of her residential property fronting on Boca Ciega Bay in a residential development known as Yacht Club Estates in St. Petersburg, Pinellas County, Florida. 1/ Batell's home was built in 1965, and she has lived there continuously for over twenty-six years. When Batell's home and the rest of Yacht Club Estates was constructed, all of the mangrove fringe communities in the area were intentionally and lawfully removed, there being no state law or regulation at that time prohibiting or regulating such removal.

   The mangrove tree which is the subject of this proceeding grew from a seedling which Batell allowed to take hold and grow on her property from sometime after 1980 until the present. The tree is now approximately eleven feet in height and impedes Batell's view of the bay and her dock from her property, and its root system tends to collect trash, including the carcasses of dead birds and animals.

   
   

   Boca Ciega Bay is an aquatic preserve within the greater Pinellas County Aquatic Preserve, and a Class III water. Waters within the Boca Ciega Bay and Pinellas County Aquatic Preserves are Outstanding Florida Waters. See Section 17-302.700(9)(h), Fla. Admin. Code. However, privately owned submerged lands lying landward of established bulkhead lines are excluded from these aquatic preserves. See Sections 258.39 and 258.396, Florida Statutes. Although there are no express findings of fact that the site of the proposed project is landward of the established bulkhead line and therefore not within the Outstanding Florida Water, such a finding may be implied from the fact that both the Hearing Officer and the Department in its Proposed Recommended Order applied the "not contrary to the public interest." Therefore, the criteria for issuance of a dredge and fill permit is that the applicant must provide reasonable assurance that the project is not contrary to the public interest or, absent such a showing, that adequate mitigation is proposed. Section 403.918(2), Florida Statutes. 2/

   
   

   RULINGS ON EXCEPTIONS TO FINDINGS OF FACT

   
   

   There being no transcript of the proceedings, the Department did not take any exceptions to findings of fact per se. In Exception No. 1, however, the Department takes exception to Finding of Fact No. 16 to the extent that it embodies an implied conclusion of law that Batell had certain riparian or other vested rights which would prevent the Department from requiring a dredge and fill permit for removal of the mangrove tree. 3/

   
   

   The Department's regulations are based on the police power of the state.

   Odom v. Deltona Corp., 341 So.2d 977, 987 (Fla. 1977); Neumann v. Davis Water and Waste, Inc., 433 So.2d 559 (Fla. 2d DCA 1983), rev. den.,441 So.2d 632 (Fla. 1983). See also Sunshine Jr. Stores, Inc. v. Department of Environmental Regulation, 556 So.2d 1177 (Fla. 1st DCA 1990); State v. General Development Corp., 448 So.2d 1074 (Fla. 2d DCA 1984), aff'd., 469 So.2d 1381 (Fla. 1985); Town of Indialantic v. NcNulty, 400 So.2d 1227 (Fla. 5th DCA 1981); Department of Environmental Regulation v. Oyster Bay Estates, Inc., 384 So.2d 891, 894 (Fla. 1st DCA 1980). All property rights are subject to the reasonable exercise of the police power. Odom v. Deltona, supra; Brickell v.

   Trammell, 82 So. 221 (Fla. 1919). The state may reasonably exercise its police power to regulate the use of both private land and waters to protect the environment. Odom v. Deltona Corp.; Oyster Bay; supra.

   
   

   Therefore, Batell's rights in her submerged land are subject to the Department's regulations on dredge and fill and mangrove alterations.

   Accordingly, I accept the Department's Exception No. 1 and reject any implied conclusion of law that Batell had certain riparian or other vested rights which would prevent the Department from requiring a dredge and fill permit for removal of the mangrove tree.

   
   

   Also, Finding of Fact No. 11 embodies a conclusion of law that the function of mangrove seedling propagation in the area is a "false [i.e., irrelevant] concern because mangroves were purposely removed from the area when the development was created." This conclusion of law is erroneous for the same

   reason as stated above. The right of Batell in her submerged lands are subject to the reasonable exercise of the police powers of the state. Therefore, I reject the embodied conclusion of law, but otherwise accept Finding of Fact No. 11.

   
   

   Finding of Fact No. 13 states:

   
   

   There was no reliable, empirical evidence provided by the Department at hearing to justify its preliminary finding that the tree removal was contrary to the public interest pursuant to Section 403.918(2), Florida Statutes.

   
   

2. note that this statement may construed as containing an implied conclusion of law that the Department has a burden of showing that the proposed dredge and fill activity is contrary to the public interest. In fact, the burden is on the applicant to show that the project is not contrary to the public interest.

Section 403.918(2), Florida Statutes; Florida Dept. of Transportation v.

J.W.C. Company, 396 So.2d 778 (Fla. 1st DCA 1981); Young v. Dept. of Community Affairs; 567 So.2d 2 (Fla. 3d DCA 1990). I reject any such implied conclusion of law, but otherwise accept Finding of Fact No. 13. 4/

In sum, I accept the findings of fact in the Recommended Order except to the extent they embody or imply conclusions of law as noted above.

RULINGS ON EXCEPTIONS TO CONCLUSIONS OF LAW

In Exception No. 2, the Department takes exception to the conclusion of law that the Department is estopped from denying the requested permit. The Hearing Officer concludes that under the rule of Odom v. Deltona Corp., 341 So.2d 977 (Fla. 1976), the Department is equitably estopped from denying the permit to remove the mangrove tree because (1) ownership in the submerged land was acquired by the original developer as part of an overall project plan for the community; (2) public officials acquiesced in the development which included the removal of the original mangrove fringe, and (3) private persons such as Batell purchased the land in reliance on the development plan.

In Odom the Board of Trustees of the Internal Improvement Trust Fund ("Trustees") sought to require permits for dredging and filling in navigable waters in which the Trustee's and Odom made conflicting claims of ownership. The court found, among other things, that the Trustees had previously purported to have conveyed the submerged lands at issue and were now estopped from attacking the validity of the earlier conveyance in light of the fact that (1)

the conveyances were more than 30 years old, (2) the Trustees had made no effort of record to reclaim the lands, (3) the Trustees had acquiesced in the development of the land, and (4) private parties had entered into contracts in reliance on the development.

Odom, however, is not applicable to this case. There the Trustees attempted to invalidate their prior conveyance. Here, the Department is not attacking the validity of the prior development; rather, it is merely applying current regulations to the present existing situation.

It is established law that, absent a basis for equitable estoppel, the state's acquiescence in the earlier lawful removal of the mangrove fringe does not preclude the Department from apply current regulations to the removal of

existing mangrove trees. See Department of Environmental Regulation v. Oyster Bay Estates, 384 So.2d 891 (Fla. 1st DCA 1980)

Nor is there any basis to equitably estop the Department from applying current regulations to the removal of existing mangrove trees. Equitable estopped will be found against a state agency only in rare instances and under the most exceptional circumstances. Reedy Creek Improvement District v.

Department of Environmental Regulation, 486 So.2d 642 (Fla. 1st DCA 1986); Department of Environmental Regulation v. C.P. Developers, 512 So.2d 258 (Fla. 1st DCA 1987). Thus, a state agency will be equitably estopped only when (1) the state agency has made a representation of a material fact that is contrary to a later asserted position, (2) the party seeking to estop the agency has relied on the representation, and (3) the party has taken a detrimental change in position caused by the representation and reliance. Reedy Creek; C.P. Developers; supra; Dept. of Revenue v. Anderson, 403 So.2d 397, 400 (Fla.

1981). The Hearing Officer has not found such factors. There was no finding of a representation that the mangrove at issue could be removed without a permit, no finding of reliance on any such representation, and no finding of a detrimental change of position caused by such a representation and reliance.

Since there was no finding of ultimate facts necessary to establish equitable estoppel, there is no basis for the conclusion of law that the Department is estopped. Therefore, I accept the Department's Exception No. 2 and reject the Hearing Officer's legal conclusion that the Department is equitably estopped from denying the permit.

In Exception No. 3, the Department takes exception to the Hearing Officer's conclusion of law that the denial of the permit to remove a single mangrove tree is an unconstitutional taking of property which can only be lawfully achieved through eminent domain proceedings. Such a conclusion of law must be predicated on a finding that the regulation leaves no economically viable use of the land to the owner.

"[A] taking will not be established merely because the agency denies a permit for the particular use that a property owner considers to be the most desirable, or because the agency totally denies use of some portion of the property," so long as some economically viable use of the entire property remains.

Department of Environmental Regulation v. MacKay, 544 So.2d 1065 (Fla. 3d DCA 1989) (citing Fox v. Treasure Coast Regional Planning Council, 442 So.2d 221,

226 (Fla. 1st DCA 1983) (emphasis added) . See also, Graham v. Estuary Prop. Inc., 399 So.2d 1374 (Fla. 1981), cert. den., 454 U.S. 1083, 102 S.Ct. 640,

70 L.Ed.2d 618 (1981); Bensch v. Metropolitan Dade County, 541 So.2d 1329 (Fla. 3d DCA 1989), rev. den., 549 So.2d 1013 (Fla. 1989); Florida Audubon Society

v. Ratner, 497 So.2d 672 (Fla. 3d DCA 1986), rev. den., 508 So.2d 15 (Fla. 1987). The Hearing Officer made no finding of fact that the Department's decision deprived Batell of all beneficial uses of her property such that there was no remaining substantial economically viable use. Therefore, there can be no determination that a taking occurred. MacKay (and cases cited therein); supra.

Furthermore, in order to show a taking, the landowner must show that she was not able to obtain a variance from the Department. Absent a showing

that a variance cannot be obtained, there can be no finding of a taking. Department of Environmental Regulation v. MacKay (and cases cited therein)

supra. The Hearing Officer made no such finding of fact; therefore, there can be no determination that a taking has occurred.

Finally, and most importantly, a DOAH hearing officer lacks jurisdiction to determine issues of inverse condemnation. Bowen v. Department of Environmental Regulation, 448 So.2d 566, 568 (Fla. 2d DCA 1984), aff'd., 472 So.2d 460 (Fla. 1985) ("inverse condemnation actions cannot be adjudicated by administrative boards or agencies")

For all of the above reasons I accept the Department's Exception No. 3 and reject the conclusion of law that the denial of the permit constitutes an unconstitutional taking of property.

PUBLIC INTEREST TEST

Section 403.918(2) (a), Florida Statutes, requires the consideration and balancing of seven factors in determining whether the project is not contrary to the public interest. The Hearing Officer did not make express findings of fact on any of the seven factors, and did not expressly find or conclude whether the project is not contrary to the public interest.

Absent express findings on each of the seven factors a remand to DOAH would normally be required. However, in this case inferences as to all but two of the seven factors may be gleaned from Findings of Fact Nos. 7, 10, 12, 14 and 15, and from the Hearing Officer's acceptance of Batell's proposed findings of fact. When these findings of fact are taken as a whole, it can be fairly inferred that the Hearing Officer considered and found that the project would have either a beneficial or at least no adverse impact for all of the factors except for the permanence of the project and the impacts on historical or archaeological resources, which were not at issue in this case.

I note that I have serious misgivings and doubts about some of the Hearing Officer's findings of fact. I have particular misgivings regarding her findings that the removal of mangroves can actually have a beneficial effect on water quality, marine productivity, fishing or recreation values, conservation of fish or wildlife, or public health, safety and welfare. I believe such findings are contrary to the great weight of scientific knowledge, and contrary to the implicit findings of the Legislature when it enacted the Mangrove Protection Act, Sections 403.93-.938, Florida Statutes, which generally prohibits the cutting, removal, defoliation, or other destruction of mangroves without a permit.

Nevertheless, I am bound by the findings of fact unless, after a full inspection of the record, I conclude that the findings of fact are not supported in the record by any competent substantial evidence. 5/ Section 120.68(10), Florida Statutes; Freeze v. Dept. of Business Regulation, 556 So.2d 1204 (Fla. 5th DCA 1990); Berry v. Dept. of Environmental Regulation,

530 So.2d 1019 (Fla. 4th DCA 1988); Heifetz v. Dept. of Business Regulation,

475 So.2d 1277 (Fla. 1st DCA 1985). In this case there is no transcript of the hearing, and I have no way of determining whether in fact these findings of fact by the Hearing Officer are supported by any competent substantial evidence. Therefore I am reluctantly bound by the findings of fact.

Section 403.918(2), Florida Statutes, requires that the seven factors be balanced to determine whether the project is not contrary to the public interest. It might be inferred from Finding of Fact No. 13, and from the

Hearing Officer's acceptance of Batell's proposed findings of fact, that the Hearing Officer balanced the factors and concluded that the applicant had met her original burden of showing that the project is not contrary to the public interest. However, the balancing of the various factors to determine

whether the project is not contrary to the public interest is a conclusion of law over which I have final authority and responsibility to determine. 1800 Atlantic Development v. Department of Environmental Regulation, 552 So.2d 946 (Fla. 1st DCA 1989), rev. den., 562 So.2d 345

(Fla. 1990); J.T. McCormick v. City of Jacksonville, 12 FALR 960, 978-9 (DER Final Order, Jan. 22, 1990), rev. on other grounds sub nom., Perry, et al. v. City of Jacksonville, (Florida Land and Water Adjudicatory Comm'n Final

Order No. 90-001, Feb. 14, 1991)

I may reject a hearing officer's conclusion of law so long as my conclusion of law is consistent with the facts found by the hearing officer and accepted by me. Although I am inclined to reject the Hearing Officer's conclusion that the project is not contrary to the public interest, I am not

at liberty to do so because my conclusion would be inconsistent with the Hearing Officer's finding of facts. Accordingly, I must reluctantly accept the conclusion that the project is not contrary to the public interest.

MITIGATION

In Exception No. 4, the Department takes exception to the fact that the recommendation of the Hearing Officer does not include any requirement for mitigation, even though mitigation was proposed by Batell at the hearing. In view of the fact that I have accepted the Hearing Officer's conclusion that the project is not contrary to the public interest, no mitigation is required. Therefore Exception No. 4 is rejected.

Accordingly, it is therefore ORDERED that:

1. Except as otherwise stated herein, the Hearing Officer's Recommended Order is adopted and incorporated by reference; and

   
   

2. The Department shall forthwith issue a permit to Petitioner Geraldine

V. Batell pursuant to Application No. MA521949293.

NOTICE OF RIGHTS

Any party to this Final Order has the right to seek judicial review of this Order pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the Clerk of the Department in the Office of General Counsel, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400; and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filed within 30 days from the date this Order is filed with the clerk of the Department.

DONE AND ORDERED this 2nd day of, March, 1992, in Tallahassee, Florida.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION

CAROL M. BROWNER

Secretary

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400

ENDNOTES

1/ The original application was for a permit to remove two mangrove trees. In fact, only one tree exists on the property.

2/ A permit could also be lawfully issued if Batell petitioned for and was granted a variance or site specific alternative criteria. See Section 403.201, Florida Statutes; Rules 17-103.100 and 17-302.800, Fla. Admin. Code.

3/ Since, as noted above, the site of the project is excluded from the Boca Ciega Bay Aquatic Preserve, there is no issue of whether the establishment of the aquatic preserve is infringing on the riparian rights of Batell in contravention of Section 258.396(5), Florida Statutes.

4/ If in fact the Hearing Officer incorrectly placed the burden of proof on the Department, her findings of fact would be fatally flawed and a remand to DOAH would be required. In this case, however, I conclude that the Hearing Officer merely meant that once the applicant met her initial burden of proof to show that the project was not contrary to the public interest, the Department did not introduce sufficient contrary evidence so that the preponderance of the evidence showed the project was contrary to the public interest.

5/ As noted above in Footnote 4, another basis for rejecting findings of fact is where the hearing officer places the burden of proof on the wrong party.

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing has been furnished to the following persons on this 2d day of March , 1992:

BY HAND DELIVERY TO:

Honorable Veronica E. Donnelly Hearing Officer

Division of Administrative Hearings DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Clerk, Division of Administrative Hearings DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Carol A. Forthman Deputy General Counsel and

W. Douglas Beason Assistant General Counsel

State of Florida Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

and

BY U.S. MAIL TO:

Geraldine V. Batell 1184 79th Street South

St. Petersburg, Florida 33707

Robert G. Gough

Assistant General Counsel State of Florida, Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 3299-2400 Florida Bar No. 410489 (904)488-9730

Docket for Case No: 91-004651

Orders for Case No: 91-004651