STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CAHILL PINES AND PALMS PROPERTY ) OWNERS' ASSOCIATION, INC., )

)

Petitioner, )

)

vs. ) Case No. 98-3889

) DEPARTMENT OF ENVIRONMENTAL ) PROTECTION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on February 3, 1999, in Marathon, Florida, before Administrative Law Judge Michael M. Parrish, of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Joan Tucker, President

Cahill Pines and Palms Property Owners Association, Inc.

28584 Tortuga Road

Little Torch Key, Florida 33042-5518

For Respondent: Francine M. Ffolkes, Esquire

Department of Environmental Protection 3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000 STATEMENT OF THE ISSUE

Whether Petitioner's application for an environmental resource permit to remove two canal plugs in the Cahill canal system should be granted or denied.

PRELIMINARY STATEMENT

On June 17, 1998, Respondent Department of Environmental Protection (Department or DEP), denied Petitioner Cahill Pines and Palms Property Owners Association, Inc.'s (Cahill), application for an environmental resource permit. Petitioner Cahill requested an administrative hearing which was held on February 3, 1999, in Marathon, Florida.

At the hearing Petitioner Cahill called John Tucker as a witness. Petitioner's Exhibits 1 through 20 were admitted in evidence.1 Respondent Department called Edward Barham as its expert witness, and offered ten exhibits, all of which were received in evidence. At the hearing the Department's Motion In Limine was denied with the caveat that the Department was free to make appropriate objections to the evidence offered by Petitioner Cahill.

At the conclusion of the hearing the parties were allowed ten (10) days from the filing of the transcript within which to file their proposed recommended orders. The transcript was filed with the Division of Administrative Hearings on February 10, 1999. Thereafter, all parties filed timely proposed recommended orders containing proposed findings of fact and conclusions of law.2

FINDINGS OF FACT

The proposed project

1. On March 19, 1998, Petitioner Cahill submitted a permit

   application to the Department to remove two canal plugs in the Cahill Pines and Palms subdivision on Big Pine key. A backhoe would be used to dredge and lower the plugs to a depth of minus five feet mean low water (-5 ft. MLW) for the purpose of providing boating access to the properties now isolated from open water.

2. The Cahill canal system is located within class III waters of the state which open into Pine Channel, a natural waterbody designated as Outstanding Florida Waters (OFW).

3. In 1991 and 1995 Petitioner Cahill submitted permit applications to the Department to remove the same two canal plugs. Those applications were initially denied and the denials were litigated in formal administrative hearings. Those hearings resulted in Department final orders denying both applications.3

   Background4

4. In July, 1991, the Department received a permit application requesting the removal of two canal plugs down to a depth of minus five-and-a-half feet NGVD. A formal administrative hearing was conducted on March 3 and 4, 1994, in Key West, Florida, before Stuart M. Lerner, a duly designated Hearing Officer (now Administrative Law Judge) of the Division of Administrative Hearings. That initial permit application denial was based upon water quality considerations and the project's failure to meet the public interest test.

5. On May 17, 1995, Petitioner submitted a permit

   application to the Department which was denied. The basis for the permit denial was that the project was substantially similar to the previously litigated project. On April 23, 1996, a second formal administrative hearing was held in Key West, Florida, before Administrative Law Judge Susan B. Kirkland. Judge Kirkland found that the 1995 permit application did not address the issues raised by the Department in the first administrative hearing. Judge Kirkland also concluded that the 1995 application should be denied on the basis of res judicata. The Department entered a Final Order on September 12, 1996, concluding that the doctrine of res judicata applied to support the denial of Petitioner's 1995 application.

   New facts/changed conditions

   
   

6. In all material aspects, the proposed dredging activity in the current permit application is identical to the previously proposed dredging activity. Petitioner Cahill seeks to lower the two canal plugs to allow boat access. The documents submitted in support of the current application do not propose any significant changes to what was proposed in the two prior applications.

7. Petitioner Cahill provided copies of provisions of the Monroe County Comprehensive Plan, the Florida Keys National Marine Sanctuary Management Plan and two Monroe County Ordinances, in support of the current permit application. This information does not constitute new facts or changed conditions sufficient to characterize the proposed project as substantially

   different from the previously denied applications.

   
   

8. Petitioner Cahill provided a list of "enhancements" in the current permit application seeking to provide reasonable assurance for issuance of an environmental resource permit. These proposed "enhancements" are not binding on the Petitioner Cahill's members and do not constitute such new facts or changed conditions as to make the project substantially different from the previously denied applications.

9. The differences between the current application and the two previously denied applications are primarily cosmetic differences. The substance of the matter is unchanged in any material detail.

   CONCLUSIONS OF LAW

   
   

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

11. Reduced to its most simple terms, in this case the same Petitioner is asking the same Respondent to grant the same permit for the same project that has been twice before denied. The first application was denied on the merits. The second application was denied on the basis of the doctrine of res judicata.

12. The application of the doctrine of res judicata to a case of this nature is discussed at length in Judge Kirkland's Recommended Order in Division of Administrative Hearings Case No.

95-4377 (Recommended Order issued July 31, 1996), which recommended the denial of Petitioner's 1995 application. Those same reasons apply to the application in this case. Accordingly, the permit application in this case should be denied on the basis of the doctrine of res judicata.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued in this case denying Petitioner's pending application for an environmental resource permit.

DONE AND ENTERED this 15th day of March, 1999, in Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 15th day of March, 1998.

ENDNOTES

1/ Petitioner's Exhibit 16 was admitted only for the limited purpose of proving what was submitted with the subject application. Respondent objected to the exhibit being received for the purpose of proving the truth of matters asserted in the exhibit. Ruling on that objection was reserved. Being now fully advised, the objection to Petitioner's Exhibit 16 is considered well-founded, and the exhibit's admission into the record continues to be for the limited purpose of proving what was submitted with the subject application.

2/ During the preparation of this Recommended Order, careful consideration has been given to the proposals submitted by both parties. The proposals submitted by Respondent are more consistent with the conclusions reached following review of the record and the evidence received at the hearing. Extensive portions of Respondent's proposals have been incorporated into

this Recommended Order.

3/ See Recommended and Final Orders in Division of Administrative Hearings Case Nos. 93-5916 and 95-4377. The style of both cases is identical to the style of the instant case.

4/ The background addresses only the permit applications during the past decade. As noted in the Recommended Order in Division of Administrative Hearings Case No. 93-5916 (Recommended Order issued May 9, 1994): "Petitioner, on several occasions, has unsuccessfully sought a permit from the Department to remove the plugs. Its most recent prior application was denied by Final Order issued March 24, 1981. "

COPIES FURNISHED:

Francine M. Ffolkes, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard

Mail station 35

Tallahassee, Florida 32399-3000

Joan Tucker, President

Cahill Pines and Palms Property Owners Association, Inc.

28584 Tortuga Road

Little Torch Key, Florida 33042-5518

Kathy Carter, Agency Clerk

Department of Environmental Protection 3900 Commonwealth Boulevard

Mail station 35

Tallahassee, Florida 32399-3000

F. Perry Odom, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard

Mail station 35

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 98-003889

Orders for Case No: 98-003889