STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WARREN BRIGGS,

Petitioner,

vs.

DEPARTMENT OF ENVIRONMENTAL PROTECTION,

Respondent.

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) Case No. 98-5062

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RECOMMENDED ORDER

A formal administrative hearing was held in this case in Pensacola, Florida, on October 24, 2001, by Administrative Law Judge Don W. Davis.

APPEARANCES

The following appearances were entered: For Petitioner: Jesse W. Rigby, Esquire

Clark, Partington, Hart, Larry

Bond and Stackhouse

125 West Romana Street, Suite 800 Post Office Box 13010

Pensacola, FL 32591-3010

For Respondent: Charles T. Collette, Esquire

Lucinda R. Roberts, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard

The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000

STATEMENT OF THE ISSUES

The issues in this case are:

1. Whether Petitioner, Warren M. Briggs ("Briggs"), should be issued a Wetland Resource Permit (WRP) for the construction of a single-family dwelling on a lot with jurisdictional wetlands in Santa Rosa County, Florida, as proposed in his application submission of 1998; and

2. Whether the Department would permit the construction of a single-family dwelling on the subject lot under conditions and circumstances other than those set forth in Briggs'

application.

PRELIMINARY STATEMENT

In April 1998, Briggs applied for a permit to fill Lot 67, Block H, Paradise Bay Subdivision, which is in the southern portion of Santa Rosa County. In August 1998, the Department issued a notice of its intent to deny the application. On September 2, 1998, the Department issued a Notice of Denial Wetland Resource Permit. On September 18, 1998, Briggs filed, without the assistance of an attorney, his Petition for an Administrative Hearing. On October 13, 1998, the Department dismissed the Petition with leave to amend. On October 28, 1998, Briggs filed his Amended Petition, with assistance of counsel. The matter was subsequently transferred to the Division of Administrative Hearings on November 25, 1998.

Briggs and the Department conducted numerous discussions and negotiations concerning modifications to the original permit application between late 1998 and the date of the final hearing.

At the final hearing, Briggs called three witnesses and presented 12 exhibits. The Department presented one witness and two exhibits. No transcript of the final hearing was provided. Both parties submitted Proposed Recommended Orders which have been reviewed and considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Briggs is the owner of Lot 67, Block H, Paradise Bay Subdivision, located in southern Santa Rosa County ("Briggs lot").

2. Paradise Bay Subdivision was developed in approximately 1980, prior to the passage in 1984 of the Warren Henderson Wetland Protection Act. (Official Recognition of Section 403.918, Florida Statutes).

3. The subdivision consists of modestly priced single- family homes that are attractive to young families because of the quality of nearby schools.

4. The typical non-waterfront home in the subdivision is single story, approximately 2,000 square feet in area, and built on a concrete slab.

5. The typical setback from the road to the front edge of a home is 75 feet. This fairly consistent setback from the road prevents the view from one home into the adjacent property owner’s back yard and, thereby, adversely affecting the neighbor’s property value.

6. The undeveloped Briggs lot was purchased in 1981 for approximately $15,000 and remains undeveloped. Briggs bought the lot, along with three other lots in the subdivision, as investment property. The other three lots have been sold.

7. One of the lots sold earlier by Briggs was a waterfront lot on East Bay located in jurisdictional wetlands. The entire lot was filled pursuant to a permit issued by the Department.

8. The Briggs lot is 90 feet wide by 200 feet deep. It is located on the south side of Paradise Bay Drive. The lots on the north side of Paradise Bay Drive are waterfront lots on East Bay. To the rear (south) of the Briggs lot and other lots on the south side of Paradise Bay Drive, is a large swamp that eventually discharges into East Bay.

9. The major connection between the Briggs lot and East Bay is through a culvert under Paradise Bay Drive. The Briggs’ lot consists of 2,914 square feet of uplands and 15,086 square feet of state jurisdictional wetland, with all of the uplands located in the northern half of the lot.

10. Converted to acres, the Briggs lot consists of 0.067 acres of uplands and 0.347 acres of state jurisdictional wetland.

11. Lot 66, immediately east of the Briggs lot, has been cleared and is about half tietie swamp with the remainder consisting of uplands and disturbed wetlands. Some fill has been placed on the lot.

12. Lot 68, immediately west of the Briggs lot, is undeveloped and consists of all tietie wetlands.

13. Lots 69, 70 and 71 of Block H of the subdivision are undeveloped and consist primarily of wetlands. The Department issued a permit on October 31, 1996, that allowed the owners of Lot 71 to fill 0.22 acres (9,570 square feet) of wetlands. The fill is allowed to a lot depth of 145 feet on the west side, and to a width of 73 feet of the total lot width of 90 feet. The fill area is bordered on the east and west by wetland areas not to be filled.

14. The Department issued a permit on November 13, 1997, that allowed the owner of Lot 61 to fill 0.26 acres (11,310 square feet) of wetlands. Fill is allowed over the entire northern 125 feet of the 185 foot-deep lot.

15. On April 28, 1998, Briggs applied to the Department for a permit to fill Lot 67. The Department, in its letter of August 7, 1998, and its permit denial of September 2, 1998,

    erroneously described the project as consisting of 0.47 acres of fill. The entire lot consists of only 0.41 acres, of which

    0.067 acres is uplands, leaving a maximum area of fill of 0.343 acres.

16. If Briggs’ residential lot is to be used, some impact to the wetlands on the lot is unavoidable. Alternatives discussed by Briggs and the Department, three of which are still available for Briggs to accept, included the following:

    1. One hundred feet of fill with a bulkhead separating the fill from the wetland area, with no off-site mitigation;

       
       

    2. Fill pad could be placed on property with the remainder of the wetlands on the site to remain in their natural state with no backyard, with no

       off-site mitigation required;

       
       

    3. One hundred feet of fill with a bulkhead separating the fill material from the wetland, with a small back yard, with no off-site mitigation required.

    
    

17. Briggs did not accept any of the foregoing alternatives or proposed acceptable mitigation measures.

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

19. In the Department’s Northwest District, the statute and rules that apply to wetland resource permitting are Section 403.918, Florida Statutes (1991), as repealed. This statute remains the applicable law of the Northwest District because of Section 373.4145, Florida Statutes, entitled, "Interim Part IV permitting program for the Northwest Florida Water Management District." In such manner, the 1993 Florida Legislature provided that the permitting authority of the Department would include, among other items, Rule Chapter

    17-312, Florida Administrative Code, now codified as Rule Chapter 62-312, Florida Administrative Code, which governs the Department’s wetland resource permitting. See for example, Rule 62-312.010 (". . . the provisions of this part shall only apply to activities of the geographical territory of the Northwest Florida Water Management District ").

    Rule 62-312.060(5)(b), Florida Administrative Code, specifically requires that the Department "evaluate [any] proposed dredging or filling" in the geographical territory of the Northwest Florida Water Management District in accordance with

    Section 403.918, Florida Statutes (1991), and Section 403.919,

    
    

    Florida Statutes (1991).

    
    

20. Applications for WRPs are submitted to the Department for review under Section 403.918, Florida Statutes (1991), and Rules 62-312.060 and 62-312.080, Florida Administrative Code.

    In order for a permit to be granted, the application for a project must demonstrate that the project will meet the criteria set out in Section 403.918, Florida Statutes (1991). This statute provides, in pertinent part, that:

    1. A permit may not be issued under ss. 403.91-403.929 unless the applicant provides the department with reasonable assurance that water quality standards will not be violated. The department, by rule, shall establish water quality criteria for wetlands within its jurisdiction, which criteria give appropriate recognition to the water quality of such wetlands in their natural state.

    2. A permit may not be issued under ss. 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 conversation 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 archeological 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.

          
          

          If an applicant fails to satisfy the above criteria, under Section 403.918(2)(b), Florida Statutes (1991), the Department is to consider measures proposed by the applicant to mitigate the adverse impacts that may be caused by the proposed project. Rule 62-312, Part III, Florida Administrative Code, governs the mitigation process for WRPs.

21. As the applicant and party asserting affirmative entitlement to the issuance of a WRP, Briggs has the burden of showing by a preponderance of the evidence that he is entitled to the permit. Department of Transportation v. J.W.C. Co., 396 So. 2d 778, 788-89 (Fla. 1st DCA 1981).

22. Briggs failed to produce his application and supporting documents as evidence during the hearing. He produced only those exhibits relating to mitigation proposed after the Department issued the Notice of Denial regarding the application. These documents shed no light on the original information that the Department relied upon in order to make a permitting decision in this case. As a result, Briggs has failed to satisfy his burden to provide even the most basic record upon which to prove his entitlement to a permit.

    Fulfilling the burden of proof in administrative proceedings regarding permits should include "at a minimum" the application and any supporting documentation that the Department would have relied upon as a basis for its Notice of Denial. J.W.C. at 788. ("We think it is essential . . . for the benefit of the hearing officer . . . to have on record a basic foundation of evidence pertaining to the application so that the issues can be understood, and so that evidence directed to these

    issues . . . can be properly evaluated.") Id.

    
    

23. Prior to the issuance of a WRP, an applicant is required to provide the Department with reasonable assurances that the proposed activity "is not contrary to the public interest." Section 403.918(2), Florida Statutes; see also 1800 Atlantic Developers v. Department of Environmental Regulation,

    552 So. 2d 946, 954 (Fla. 1st DCA 1989) (Holding that the statutory purpose was to regulate dredging and filling activities to prevent or minimize harm, not to prohibit dredging and filling altogether.) Therefore, the Petitioner had to provide reasonable assurances that the proposed activity would satisfy the requirement of the applicable statutes and rules. "In making this preliminary showing of 'reasonable assurances' before the hearing officer, the applicant is required to provide credible and credited evidence of his entitlement to a permit."

    J.W.C. at 789.

24. Briggs has failed to provide any reasonable assurances to the Department and provided no evidence regarding reasonable assurances during the hearing. Therefore, the Department’s decision as to Briggs' failure to satisfy the applicable statutory and rule criteria was not credibly challenged during the proceeding.

25. Briggs admitted he was not familiar with the statutes and rules of the Department, especially concerning mitigation. The Department, after denying Briggs' application, did offer alternatives for his consideration in order to make the project permittable. Briggs did not accept any alternatives or proposed acceptable mitigation measures.

26. The Department has not abused its discretion in denying the permit. According to the statutes and rules governing the permitting process in the district, as noted, the Department has an obligation to "balance" the criteria of the public interest test in order to minimize and avoid the adverse impacts that may stem from a proposed project. If the proposed project fails to meet the criteria, then the permit must be denied. In this case, the Department properly denied the permit because Briggs failed to provide reasonable assurances that the public interest test would be satisfied by the project as proposed.

27. Rule 62-312.060(10), Florida Administrative Code, states, "Nothing herein shall imply that the Department may not deny an application for a permit, as submitted or modified, if it fails to meet the criteria in Section 403.918(2)(a), Florida Statutes (Supp. 1992), or that mitigation must be accepted by the Department." Accordingly, the Department had the authority to deny the application and not accept the proposals for mitigation or modification submitted by the Petitioner.

28. Even though similar permits had been issued in the same area prior to the Petitioner’s permit denial, applicable statutes and rules were not being properly applied to permit applications by the Department prior to arrival of a new program administrator in the district in December 1997. Further, the other permits offered by Petitioner as proof that the Department had treated him differently, required off-site mitigation--an additional element that underscores the improbability that the current denial is arbitrary or capricious. Absent review of the original application, no other conclusion as to the differences in the projects may be made.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying the permit application, provided that the parties may reach

subsequent agreement regarding proper mitigation in order to make the construction of a single-family dwelling possible on the Petitioner’s property in this case.

DONE AND ENTERED this 19th day of November, 2001, in Tallahassee, Leon County, Florida.

_ DON W. DAVIS

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 19th day of November, 2001.

COPIES FURNISHED:

Charles T. Collette, Esquire Lucinda R. Roberts, Esquire

Department of Environmental Protection 3900 Commonwealth Boulevard

The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000

Jesse W. Rigby, Esquire Clark, Partington, Hart, Larry

Bond and Stackhouse

125 West Romana Street, Suite 800 Post Office Box 13010

Pensacola, Florida 32591-3010

Kathy C. Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard

The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000

Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard

The Douglas Building, 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: 98-005062

Orders for Case No: 98-005062