The Issue The issue is whether Franklin County (County) has given reasonable assurance that it satisfies all requirements for an after-the-fact permit authorizing the construction of a rock revetment seaward of the coastal construction control line (CCCL) on Alligator Drive, also known as County Road 370.
Findings Of Fact The Nature of the Dispute The origins of this dispute date back a number of years. In short, the County currently has two adjoining revetments seaward of the CCCL on County Road 370 (Alligator Drive) located on Alligator Point in the southeastern corner of the County.1 County Road 370, situated immediately adjacent to the Gulf of Mexico, is a vulnerable structure and eligible for armoring. See Fla. Admin. Code R. 62B-33.002(64). The old revetment is permitted; the new revetment is not. Pursuant to a Department enforcement action directed at both revetments, the County applied for an after-the-fact permit to authorize the construction of the new revetment. See Case No. 12-3276EF. The two revetments, totaling around 2,800 feet in length, abut County Road 370 and join near the intersection of Alligator Drive and Tom Roberts Road. The road itself is around 50 or 60 feet from the edge of the revetments. The old revetment extends around 2,000 feet west of the intersection while the new revetment extends 800 feet east of the intersection. There is a curve in the road at the intersection, and at that point the road elevation drops two or three feet for an undisclosed distance. The revetments, however, run in a straight line. There is no beach and dune system in front of the old revetment, while a small amount of exposed sand is located on the far eastern end of the new revetment. Due to storm events over the years, unauthorized debris has been placed on top of the old revetment by the County. Under the terms of the enforcement action, the County is required to remove the debris. This will reduce the height of the old revetment by several feet below its original height of nine feet National Geodetic Vertical Datum (NGVD).2 Where the two revetments join, however, the height differs by only around a foot. The Bank owns property across the street from the old revetment and alleges that, for several reasons, the site and design of the new revetment, coupled with the reduction in height of the old revetment, will cause erosion of the shoreline around the old revetment and expose County Road 370 and the adjacent upland Bank property to erosion. Although the current design and location of the old revetment have been finalized through prior agency action, the Bank has asked that the permit be denied unless the County relocates rock boulders from the new to the old revetment and raises its height back to nine feet NGVD. The County asserts that the Bank's real aim here is to require the County, at taxpayer expense, to reconstruct the old revetment to its original height. Otherwise, the Department will not waive the 30-year erosion control line restriction and allow the Bank to fully develop its property that is seaward of the CCCL. See § 161.053(5)(b), Fla. Stat. The Old Revetment Since the late 1970s, the County has owned and maintained that portion of County Road 370 that is the subject of this dispute. In May 1986, the Department of Natural Resources, which was later merged with the Department, issued to the County CCCL Permit No. FR-204 for the construction of the old revetment, then 1,500 feet long. The revetment was located approximately 350 feet east of Department Reference Monument R-211 to approximately 150 feet west of the Department Reference Monument R-213. In November 1994, the Department issued to the County CCCL Permit No. FR-446 for the re-construction of the old revetment, as well as a 500-foot extension of the eastern limits of the structure with granite boulders. The revetment, as extended, is located approximately 540 feet west of Department Reference Monument R-212 to approximately 140 feet east of Department Reference Monument R-213. The permit did not authorize placement of any construction debris within the revetment. With the extension, the total length of the old revetment is now approximately 2,000 feet. After an application for a joint coastal permit to conduct a beach and dune restoration project was filed by the County in September 2006, a Department site inspection revealed the presence of concrete debris and other debris material stacked on top of the old revetment. A debris removal plan was formulated by the Department, which was intended to be incorporated as a special condition in the joint coastal permit. In May 2011, the joint coastal permit was approved and included a debris removal plan. Because of financial constraints, however, the County did not undertake and complete the work relating to the beach and dune restoration plan or the debris removal plan. In January 2012, another inspection was conducted by the Department to document how much debris was in the old revetment and where it was located. The inspection revealed the presence of a significant amount of concrete debris and other debris material scattered throughout the revetment and continuing eastward. That same month, largely at the urging of the Bank, the Department issued a one-count Notice of Violation (NOV) alleging that after a storm event in July 2005, the County placed unauthorized construction debris and other debris material in the old revetment seaward of the CCCL, and that the debris still remained within the footprint of the revetment. See Case No. 12- 3276EF. (The Bank unsuccessfully attempted to intervene in the enforcement action.) As corrective action, the County was required to remove all debris, seaward of the CCCL, from and adjacent to the footprint of the old revetment no later than 60 days after the end of the hurricane season. That work has not yet been performed, probably because the work on both revetments will take place at the same time. After the debris is removed, the height of the old revetment will vary from between five and eight feet NGVD rather than the original nine-foot height. This was not the relief that the non-party Bank desired in the enforcement action. Instead, the Bank has always wanted the old revetment to be reconstructed to the nine-foot NGVD standard authorized in the original construction permit. Even so, the enforcement action is now final, as no appeal was taken by the County. Except for the unauthorized debris, the old revetment meets all Department standards. The New Revetment Under emergency circumstances, between September 2000 and July 2005 the County placed material, including granite rock boulders and debris material, in a location east of the old revetment, seaward of the CCCL. The construction activity is located approximately 140 feet east of Department Reference Monument R-213 to approximately 80 feet east of Department Reference Monument R-214 and is around 800 feet in length. However, the County did not obtain a permit for the temporary structure within 60 days after its construction, as required by section 161.085(3), Florida Statutes. In July 2005, Hurricane Dennis made landfall in the Florida Panhandle causing damage to the shoreline along Alligator Drive. As an emergency measure after the storm event, the County placed rock boulders that had been displaced back into the new revetment seaward of the CCCL. The County also placed other unauthorized concrete debris and debris material within the footprint of the rock revetment seaward of the CCCL. Again, no timely authorization for this work was obtained by the County. In August 2012, the Department issued an Amended NOV in Case No. 12-3276EF adding a second count, which alleged that the County had failed to obtain a permit for the placement of the rock boulders and unauthorized debris. On April 18, 2013, the Department issued a Final Order in Case No. 12-3276EF. As to Count II, it gave the County two options for corrective action: (a) that the County submit "a complete permit application for a rigid coastal armoring structure located between Department reference monuments R-213 and R-214 that complies with all applicable Department permitting rules and statutes"; or (b) that "the County remove all material placed seaward of the CCCL pursuant to a Department approved debris removal plan[,]" leaving that portion of County Road 370 without a revetment. 2013 Fla. ENV LEXIS 16 at *16. Desiring to protect its infrastructure, the County opted to apply for an after-the-fact permit. The Permit Application In March 2013, the County filed an application for an after-the-fact permit for the construction of the new revetment. As directed by the Department, the County proposes to construct a new revetment located between Department Reference Monuments R- 213 and R-214. The height of the new revetment will be around nine feet NGVD, while its slope will be one vertical to three horizontal. The old revetment is not quite as steep, having a slope of one vertical to two horizontal. The application includes a debris removal plan for the removal of construction debris as well as other debris scattered through the new revetment. Construction debris occupies a large portion of the new revetment and largely appears to be associated with storm damaged concrete sidewalk. All derelict concrete and asphalt material that is located water ward of Alligator Drive and landward of the mean high water line is to be removed. Both the County and its engineering consultant will monitor the work at the project. After reviewing the application, the Department proposed to issue after-the-fact CCCL Permit FR-897. The Bank then filed its Petition, as later amended. Petitioner's Objections As summarized in its PRO, the Bank alleges that the County did not give reasonable assurance that the following statutory and rule provisions have been satisfied: section 161.053(1)(a), which provides that special siting and design considerations shall be necessary seaward of the CCCL "to ensure protection of . . . adjacent properties"; rule 62B-33.005(2), which requires that the applicant provide the Department with sufficient information to show that adverse impacts associated with the construction have been minimized and that construction will not result in a significant adverse impact"; rule 62B-33.005(3)(a), which requires that the Department "[d]eny any application for an activity which either individually or cumulatively would result in a significant adverse impact including potential cumulative effects"; rule 62B-33.0051(2), which provides that armoring "shall be sited and designed to minimize adverse impacts to the beach and dune system, marine turtles, native salt-tolerant vegetation, and existing upland and adjacent structures"; and rule 62B-33.0051(2)(a), which requires armoring to "be sited as far landward as practicable to minimize adverse impacts . . . on existing upland and adjacent structures." See PRO, pp. 16-17. A common thread in these regulatory citations is that a revetment should be constructed in a manner that does not cause adverse impacts on "adjacent property." Except for the above cited provisions, no other permit requirements are contested, and the County's prima facie case satisfied those other requirements. The Bank's odd-shaped property, acquired in a foreclosure proceeding, abuts that portion of Alligator Drive immediately adjacent to the old revetment. The eastern boundary of the Bank's property is at least 300 feet west of the new revetment and extends westward along County Road 370 until it intersects with Harbor Circle. The entire tract is separated from the old revetment by County Road 370, a two-lane paved road. The property was once used as a KOA campground; however, the predecessor owner acquired development rights for a Planned Unit Development, which apparently cannot be fully developed unless the old revetment is raised back to its original height by the County or some other acceptable form of erosion protection is provided by the Bank at its own expense. The essence of the Bank's complaint is that the new revetment, as now sited and designed, will expose the old revetment to a higher rate of erosion, and ultimately accelerate the erosion of its property across the street. The Bank asserts that this will occur for three reasons. First, the removal of construction debris from the old revetment will lower its height, weaken the structure, and create a "discontinuity in height and composition between the revetments," resulting in increased exposure to erosion. Second, the toe of the new revetment (at the western end of the structure) will extend ten feet further seaward than the old revetment, creating a discontinuity and placing the old revetment at higher exposure to erosion. Finally, the Bank contends a discontinuity already exists between the two revetments due to the curved shape of the road at the intersection, causing the western end of the new revetment to extend further seaward than the old revetment. The Bank argues that the discontinuity will amplify the wave action on the shoreline during a severe storm event and eventually cause a breach of the old revetment. In sum, the Bank is essentially arguing that unless the two revetments mirror each other in height and slope, and consist of the same construction materials, the after-the-fact permit must be denied. The Bank's expert, Mr. Chou, a coastal engineer, was employed shortly before the final hearing and made one visit to the site. Regarding the removal of unauthorized construction debris from the old revetment, Mr. Chou was concerned that, while not ideal, the debris offers a degree of shoreline protection. He recommended that if removed, the debris be replaced with boulders comparable to the design standard of the new revetment. However, the record shows that when the loose and uneven debris is removed from the old revetment, the existing rocks will be moved to an interlocking or "chinking" configuration that actually enhances the stability and integrity of the structure.3 The Bank is also concerned that the height and slope of the two revetments differ. Mr. Chou testified that there exists the increased potential for erosion as a result of what he described as a discontinuity, or a difference of characteristics, between the two revetments. He opined that the protective function of the old revetment will be compromised by the removal of the granite boulders, which will lower the overall height of the revetment between two and four feet. According to Mr. Chou, if the new revetment suffers a direct hit by a major storm, i.e., one capable of dislodging the armor, he would "expect damage, significant damage, right next to it." Mr. Chou conceded, however, that if a permit is not approved, and the County elects to remove the new revetment, it could result in a significant adverse impact to property located along Alligator Drive. Mr. Chou further acknowledged that there will be no significant adverse effect on the old revetment during "everyday" winds, waves, and currents. Finally, he agreed that if the toes of the new and old revetments are essentially the same, as the certified engineering plans demonstrate they are, it will "minimize" the discontinuity that he describes. Notably, in 2005, Hurricane Dennis actually caused accretion (an increase in sand) on the Bank property, rather than erosion. While there are some differences in height and slope between the two revetments, no meaningful differences from an engineering perspective were shown. Through the County's coastal engineer, Mr. Dombrowski, who over the years has visited the site dozens of times and worked on a number of major projects in the area, it was credibly demonstrated that the old and new revetments will, in effect, form one continuous armoring structure that will provide shoreline protection along Alligator Drive. In terms of toe, slope, height, and construction material, there will be one continuous and straight revetment along the road, with a "fairly consistent elevation and slope going from one end to the other." If a major storm event occurs, the impacts to both revetments will likely be the same. In any event, there is no requirement that the County construct a revetment that is storm proof or prevents severe storm damage. The preponderance of the evidence demonstrates that the new revetment is consistent with the siting and design criteria in rule 62B-33.0051(2). The design of the new revetment is consistent with generally accepted engineering practice. The new revetment is sited and designed so that there will be no significant adverse impacts, individually or cumulatively, to the adjacent shoreline. See Fla. Admin. Code R. 62B-33.005(3). The County has provided the Department with sufficient information to show that adverse and other impacts associated with the construction are minimized, and the new revetment will not result in a significant adverse impact to the Bank's property. See Fla. Admin. Code R. 62B-33.005(2). The new revetment should toll erosion – which now occurs on Alligator Point at the rate of five feet per year -- and provide shoreline protection. Finally, the construction of the new revetment will not cause an adverse impact to the old revetment. For all practical purposes, the two revetments have existed side-by-side since 2005. The Bank failed to offer any credible evidence that the new revetment has had a significant adverse impact on the old revetment over the last nine years.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order approving the County's application for after- the-fact permit number FR-897. DONE AND ENTERED this 23rd day of July, 2014, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 2014.
Findings Of Fact On or about April 5, 1988, Petitioner filed an application for a variance to replace an existing four foot fence extending to the seawall on his property at 643 Harbor Island, Lot 12 Island Estates, Clearwater, Florida. The subject property is zoned RS-6. Petitioner had already replaced his previous fencing prior to the filing of this application with wooden fencing which extends on the north and south side of his property through the setback to the seawall. The Development Code Adjustment Board considered Petitioner's application at its meeting on May 12, 1988, and based upon the Petitioner's explanation that the variance was sought simply to replace an existing fence that had termite damage, the Board approved his application on a 3 to 2 vote. The variance approval was conditioned upon the Petitioner obtaining a building permit within one month of the approval. Petitioner failed to obtain the required building permit, and no excuse was offered for this failure. Therefore, he had to reapply for the variance. On or about July 21, 1988, Petitioner filed his variance reapplication. The Development Code Adjustment Board considered this reapplication on August 25, 1988, at which time Petitioner again stated that he was simply replacing an existing fence. Due to a tie vote, consideration of the reapplication was continued to the Board's meeting of September 8, 1988. At the meeting on September 8, he explained for the first time that while the fencing on the south side of his property was simply the replacement of a previous fence which had extended to the seawall, the fencing on the north side was not. The previous fence on the north side of his property had stopped prior to the fifteen foot setback. With this clarification, the Board approved his variance reapplication for the south side of his property, but denied the variance for the north side. Petitioner has timely appealed the denial of his variance reapplication as it relates to the north side of his property. Petitioner testified at hearing that prior to the construction of his current wooden fence, he had a wood fence all the way to the seawall on the south side of his property. Since he had to replace that fencing due to termite damage, he took the opportunity to also replace and extend the wooden fencing on the northern side of his property through the setback. This action was not based on any hardship, but simply because he and his family felt it would look better if he had the same fencing on both sides of his property. It is clear and undisputed that Petitioner constructed a new fence on the north side of his property through the setback without obtaining a variance or permit. He did this simply for aesthetic reasons, and not due to any hardship. He failed to disclose this in his applications, or when the Board met on May 12 and August 25, 1988 to consider this matter.
Findings Of Fact The Department of Environmental Protection is the state agency responsible for permitting involving water quality and the dredging and filling of wetlands as defined in Chapter 403, Florida Statutes. Petitioner, Stephen J. Dibbs, owns 20.03 acres of land located at the southeast corner of the intersection of Dale Mabry Highway with Hoedt Road, north of Tampa in Hillsborough County, Florida. The property consists of 11.27 acres of non-jurisdictional uplands and 8.76 acres of forested jurisdictional wetlands which divide the property somewhat diagonally in a northwest to southeast direction. There are uplands along the entire western boundary of the property along Dale Mabry Highway and Zambito Road, as well as in the southwestern portion of the property. The property is surrounded by commercial, residential and multifamily development and is zoned by Hillsborough County for commercial use. The deeper portions of the wetlands area are dominated by cypress trees and the transitional wetlands areas include laurel oak, American elm, red maple and dahoon holly. These wetlands currently provide habitat for fish and other wildlife and provide for water storage and treatment. This is a high quality forested wetlands which performs the valuable wetlands functions outlined above. It is subject to the Department's permitting procedures. Mr. Dibbs purchased the property in 1989 knowing at the time of purchase that jurisdictional wetlands were located thereon as defined by a previously conducted Departmental jurisdiction determination. He also knew that at the time of purchase there was no vehicular access/egress to the property via Hoedt Road. On April 26, 1994, Mr. Dibbs submitted a revision to his previously submitted application No. 292103383 for a permit to fill a portion of the wetlands on his property described above. Thereafter, on August 19, 1994, the Department issued its Intent to deny the requested permit and on August 31, 1994, Mr. Dibbs filed a timely Petition to contest the agency action. The parties agree, and it is found, that: The subject project does not occur within an Outstanding Florida Water. The project will not negatively impact any threatened or endangered species. The project will not adversely affect navigation or the flow of water or cause harmful erosion or shoaling. The project will not adversely affect significant historical and archaeological resources, Mr. Dibbs proposes to fill 2.014 acres of wetlands located at the western end of his property. The impacts to this filled parcel will be permanent in nature. The project, as originally envisioned in the March, 1992 application by Mr. Dibbs, called for the filling of approximately 4 acres of wetlands for a large commercial development and a "Par 3" golf course. In the permitting process, the Department must first determine if the project is in the public interest, and the cumulative impact of the proposed project is a part of that public interest determination. Efforts at minimization of the proposed project's impact on the wetlands are made at that time and the applicant's proposal for mitigation cannot be considered until he has established he cannot otherwise meet the statutory standards by minimizing the proposed impacts to wetlands by avoiding them or by reducing the amount of wetlands area impacted. In the course of negotiations with and at the request of the Department, Mr. Dibbs modified the project to eliminate the golf course and reduce the size of the commercial development, which resulted in a decrease in the amount of fill from approximately 4 acres to the presently sought 2.014 acres. As a part of the permitting process, and in support of mitigation efforts, the Department suggested five modifications to Mr. Dibbs which it felt would make the project permittable. These were: Further minimization of wetlands impacts by a re-orientation of buildings, roads and parking areas/spaces or a reduction in the number of commercial sites to allow the remaining operations to be better fitted into available uplands with less spill-over into wetlands. Limitation of impact to the fringe areas of the wetlands rather than the interior. Investigating the feasibility of moving the Pier One Import or any other facility back from Dale Mabry and turning Chick-Fil-A and China Coast sideways to lesser their direct impacts. Maintain the concept of vertical retaining wall use along the wetlands construction line as proposed. Mitigate for the reduced wetlands encroach- ments at a creation ratio of 1.5:1 with tree spade transplants at 15 foot centers, interplanted with 3 gallon or larger pot plants to create a 10'X10' overall plant spacing, and the dedication of the mitigation area and all remaining wetlands to the Department in a perpetual conservation easement. Of these proposals, the vertical retaining wall, (4), and the submission of a mitigation plan, (5), were part of Petitioner's April, 1994 modification. There remains, however, some resistance to the dedication of the wetlands and mitigation area by a perpetual easement. The Department admits that the turning of the Chick-Fil-A and China Coast facilities sideways is not practicable. Since the remaining suggestions essentially involve eliminating two of the four commercial sites, Mr. Dibbs, determining that such action would render the development economically infeasible, rejected those suggestions. The Department suggested modifications to the Dibbs project which limited the wetlands fill to approximately 0.5 to 0.7 acres by having only two restaurants with a truck access from Hoedt Road. While there is an issue as to the economic viability of the Department's suggestion, that suggestion is practicable from an engineering standpoint, notwithstanding the opinion of Mr. Mai, Petitioner's expert. It would also meet both the parking requirements of the Hillsborough County Land Development Code and the corporate requirements of General Mills, the owner of such mid-priced sit-down restaurants as Olive Garden and China Coast, as proposed here. Nonetheless, after Petitioner's initial application was filed in 1992, consistent with the Department's mitigation suggestions, Mr. Dibbs did make certain modifications to the proposed project in an effort to minimize its impact on the environment. This accounted for the elimination of the previously considered miniature golf course and a reduction in size of the development which reduced the required amount of fill from 4 acres to 2.014 acres. The project, as described in the current application under consideration, is what Petitioner considers the smallest the project can be made and still be economically feasible. As presently envisioned by Petitioner, the development project will encompass approximately 8 acres and will include four (4) freestanding commercial facilities, including two sit-down restaurants, an Olive Garden Restaurant and a China Coast Restaurant; a fast food restaurant, Chick-Fil-A; and a retail facility, Pier One Imports, all along the western boundary of the property fronting Dale Mabry Highway and Zambito Road. The Chick-Fil-A would be located in the northwest corner of the development almost entirely on what is presently forested wetlands. The Pier One Imports store would be on what is presently forested wetlands, south of the Chick-Fil-A and north of the China Coast restaurant which, itself, would involve some impacts to forested wetlands. The Olive Garden restaurant would be located on the southwest corner of the property south of the China Coast. It is the only building in the proposed development which would not involve some wetlands impact. Due to the length of time involved so far in obtaining permits for the development, both Pier One and General Mills, the parent for China Coast and Olive Garden, have withdrawn their agreements with Mr. Dibbs to utilize his property though they remain interested in them. At one point, General Mills offered Petitioner $1.6 million for the Olive Garden and China Coast properties. Mr. Dibbs has entered discussions with other prospective tenants but all have space requirements similar to those envisioned in the present planned development. He has found, generally, a greater demand for space than there are sites available. These space requirements convince him that the minimum encroachment that would satisfy his development plans is the 2.014 acres proposed. Any further reduction in encroachment would result in a need to change the development proposal which, Mr. Dibbs claims, would negate the economic viability of the development. In order for minimization to be effective and not inappropriate, it must result in the applicant still having a project which is economically viable. Economic viability means that the estimated value of the project as completed under minimization would be equal to or exceed its estimated cost. The Department's evidence tends to indicate that a project limited to an Olive Garden restaurant and a China Coast restaurant would be economically viable. Further, the Department contends that same evidence indicates that a commercial project limited to the two out parcels, at the southern portion of the project site would also be economically viable and profitable, if not as profitable as Petitioner originally anticipated. That contention has not been shown to be so. Dr. William C. Weaver, Barnett Professor of real estate and business valuation at the University of Florida and a forensic economist, utilizing figures provided by Petitioner, by deposition indicated that Petitioner had, as of the date of the testimony, incurred development costs totaling $746,000. Weaver also estimated that fill costs for the project as modified would be an additional $100,000. Wetlands replacement and monitoring, (mitigation) would cost an additional $100,000, and the cost of obtaining access to Hoedt Road would be an additional $100,000. For the purposes of calculating a rate of return, Dr. Weaver assumed the development would be limited to the two parcels on the southern portion of the site, with access to Hoedt Road down the length of the site in some manner. These sites, he concluded, have a present value of $850,000 even though not all costs have as yet been incurred. Future development of the two parcels would, in Weaver's estimation, result in a value for the project of $1.6 million. The rate of return, then, with a present value of $850,000 and a future value of $1.6 million, would be approximately 9.5 percent to 10 percent. If an additional sum of $200,000 for fill and mitigation is figured in, Dr. Weaver opines the Petitioner's rate of return would still be in the 9.5 percent to 10 percent range. Accepting Dr. Weaver's analysis and the cost estimates on which it is based, for the purpose of argument, then the project, modified as proposed by the Department, would be profitable. It should be noted here that the cost figures utilized by Dr. Weaver in his calculation were those provided by Petitioner. There is a high demand for commercial property in the vicinity of Petitioner's proposed project. Petitioner's site is one of the few remaining undeveloped parcels in the north Dale Mabry corridor, a high per capita income area which constitutes a market area encompassing a three to five mile radius from the property. Even with Pier One and General Mills pulling out, there is evidence that another restaurant chain, Golden Corral, has offered to construct a restaurant on the southern portion of the property. The western edge of the property, for the most part, abuts Dale Mabry Highway with the exception of a small section to the south which abuts Zambito Road. Zambito Road, a two-lane, county maintained, road extends northward from Ehrlich Road to a point where it merges with the northbound lanes of Dale Mabry Highway, at that point a twelve lane divided state highway. Vehicular access and egress to and from the proposed project would be, in part, via Zambito Road. Northbound traffic on Dale Mabry could enter the project by turning right, an access presently approved by the Department of Transportation. As presently designed and approved, however, the Dale Mabry entrance would be a narrow and difficult access for service vehicles. Patrons could exit the project into the northbound lane of Dale Mabry only by a right hand turn, and only if a change in permitting by the Department of Transportation would allow access onto Dale Mabry. That access would not involve any wetlands impact and this proposal is the subject of a current application to the Florida Department of Transportation on which administrative hearing is currently pending. If and when approved, any access or egress from or to Dale Mabry, calls for a fifty foot turning radius. Another source of access to and egress from the project can be via Hoedt Road, a two lane road maintained by the county, which runs east and west north of Petitioner's property line and to which Petitioner currently has no legal right to vehicular access. The intersection of Hoedt Road and Dale Mabry Highway is controlled by a signal light and is located to the north of the northwest corner of the proposed development. Petitioner expects to purchase rights to vehicular access to his development from Hoedt Road from the owner of the narrow strip which runs between the road and the northern boundary of the property. The proposed access-egress point would be located along the northern property line approximately 230 feet due east of the Hoedt/Dale Mabry intersection. Through this access, a customer traveling north on Dale Mabry could enter the development by turning right onto Hoedt Road while a customer travelling south on Dale Mabry would do so by turning left, (east), onto Hoedt Road. In both cases, the customer would then turn right, (south), into the development. A customer leaving the development via the northern access would turn either north or south onto Dale Mabry at its intersection with Hoedt Road. The Hoedt Road access point would be the primary means of access-egress for semi-trailers/commercial vehicles servicing the businesses in the development. The existing site plan provides for these vehicles to proceed directly behind the buildings for service. A third access-egress point exists or could exist off of Zambito Road at the southwest corner of the property. A customer northbound on Zambito Road could make a right turn into the proposed development or could exit the development by turning either left or right onto Zambito, the former heading south on Zambito and the latter travelling north a short distance to where Zambito joins with Dale Mabry. This access could, with modification of the development plan, allow a semi-trailer to enter and exit the site from onto Zambito Road to provide service to the businesses situated on the site. Mr. Dibbs finds this an unacceptable arrangement, however. He claims the Zambito Road entrance is a difficult intersection since it is not served by a traffic signal. As currently designed, the existing plan calls for a total of 430 parking spaces while the county only requires a minimum of 344 spaces for the four businesses. The parking scheme as proposed was considered necessary to meet the requirements expressed by Mr. Dibbs' proposed tenants. It is likely that other, substitute, tenants would have similar parking requirements. The Department has proposed a modification to Petitioner's development plan which would eliminate approximately 30 parking spaces proposed. This would still provide a number of parking spaces sufficient to meet both the county's minimum requirements and the reasonable requirements of proposed tenants. The Department has suggested that access to the development by commercial vehicles be by the Hoedt Road entrance. It would modify the access road in such a way that it would "snake" around the existing wetlands. This would, however, result in a commingling of semi trucks, smaller delivery vehicle, and customer vehicles within the interior of the development and this would not be desirable either from a safety or a business standpoint. Ease of access, as opposed to mere access, has, in the past, been considered by the Department as a valid evaluator of practicability. For this reason, and based on many of the access considerations mentioned above, Petitioner's engineering expert, Mr. Mai, considered that access from Hoedt Road must, of necessity, be straight in to the back of the buildings, and, assuming there are to be the four buildings as proposed, this position is unrebutted by the Department. Elimination of the Hoedt Road access would be impractical. Another factor to be considered on the issue of the economic practicability of minimization is that of visibility. Commercial enterprises generally must be visible to draw customers so as to be economically viable. Dale Mabry Highway is a high volume thoroughfare. The businesses on the development, medium price sit-down restaurants and an import store, all of a chain variety, cater not only to a destination oriented clientele but also to a spontaneous clientele as well. It is imperative, therefore, that these businesses be able to be seen from Dale Mabry. Petitioner claims that the elimination of the two northern commercial sites as a part of minimization would adversely affect the visibility of the two remaining sites. First, he claims, the cypress stand in the northwest portion of the wetlands would interfere with the vision of those coming down from the north. He also asserts that potential customers proceeding in a southerly direction on Dale Mabry would not be able to see the remaining businesses in enough time to make an entrance choice at Hoedt Road. They would, therefore, have to proceed south on Dale Mabry for a significant distance to the next signal, turn east and proceed to Zambito Road, and turn north again to come up Zambito Road to either an access point on the far south end of the property or to the turn right off the northbound lane of Dale Mabry. Taken together, these factors and the reduction in the number of businesses on the development site would discourage customer use, and in the opinion of Petitioner's economist and development consultant, would result in the two remaining businesses not surviving more than one year. This point appears well taken. The Department has also suggested that Petitioner replace pavement parking at the site with grassed parking; grade the landscape strips and parking medians for storm water treatment; utilize porous concrete for parking; utilize vertical as opposed to sloped retaining walls: and provide mitigation at a 1.5:1 ratio. The use of grassed parking was rejected on the basis of a safety hazard to women wearing high heeled shoes. The other suggestions were accepted by Petitioner. Some consideration was given to the fact that the property owned by Mr. Dibbs at this site includes 5.12 acres of uplands at the northeast corner of the property of which at least one acre would be needed for the proposed use as the mitigation area. The northern property line runs almost due east 1309.04 feet. The most westward point of the northeast uplands crosses the northern property line just about half way back from Dale Mabry Highway. The uplands in question is currently zoned for one single family home per acre but if re-zoned might provide for two homes per acre. The surrounding land use, however, makes re-zoning unlikely. In addition, access to that property is unavailable unless a road were to be built across the wetlands from Dale Mabry. The cost of this road construction, the additional land needed for mitigation of the wetlands used for the road, and the cost of development infrastructure would make it impracticable to use the back uplands for anything. The term "economic justification" as construed by the Department includes the access, visibility and parking consideration previously discussed in addition to other regulatory requirements and like issues. The Department has taken the position that any type of economic return on investment or cost benefit analysis is not an appropriate consideration in a permitting decision. Petitioner contends that the additional minimization suggestions proposed by the Department, when considered in the context of engineering, safety, design and development, and the minimal potentiality for continued viability of any business located on the property encumbered by those suggestions, are not practicable. The failure of the Department to consult with its staff economist regarding this project, and the paucity of demonstrated departmental familiarity or experience with economics, at least among permitting personnel, may lend some credence to this argument. The Department has, until now, followed a policy of consistency in treating applications similar to the instant application. Generally, requests for minimization include such items as vertical retaining walls, use of porous concrete, bridges, culverts and other matters, all of which fall short of requiring actual redesign of the proposed project. In the instant case, the Department proposes the elimination of approximately 50 percent of the project as minimization before considering mitigation. Turning to the issue of mitigation, notwithstanding the predictions of success by Petitioner, it appears that only the smallest part of any mitigation attempted is successful in the long run, and that for the most part, wetlands lost through dredging and filling is not replaced. Nonetheless, the parties, including the Department, continue to work within the fiction that mitigation can compensate for the destruction of existing wetlands when an applicant is otherwise unable to meet the criteria set forth in the statute. There can be little doubt that this project, as applied for, may adversely affect habitat and their wetlands functions of storm water attenuation, treatment and storage. It is of a permanent nature. The purpose of mitigation is to offset the impact of development. Whereas here the Department has indicated that only 3.021 acres of mitigation wetlands need be created to offset the 2.014 acres of wetlands destroyed, a 1.5:1 ratio, Petitioner proposed to create 4.49 acres of new wetlands, a 2.25:1 ratio without the suggested conservation easement. The proposal submitted by Petitioner, he believes, will be successful. This remains to be seen and success is not at all guaranteed. Presuming success, however, for the sake of discussion, the mitigation site will be directly adjacent to and contiguous to existing wetlands and immediately will be come a part of and subject to Department wetlands regulatory jurisdiction. If successful, the proposed mitigation would offset the adverse impacts of the project. Still another area for consideration is that concerning storm water runoff. Storm water is currently collected from Dale Mabry Highway and drains into a ditch paralleling Petitioner's highway frontage. From there, the water ultimately flows into the wetlands on his property. The current Department of Transportation system affords no treatment to the storm water before it is released onto the Petitioner's property. This storm water can reasonably be expected to contain oils, greases and other contaminants. Petitioner has proposed to include in his project a system designed to treat this highway runoff and improve its quality before it is released into the waters of the state. This system will treat the water by percolate, removing approximately 80 percent of the pollutants. In addition to treating and improving storm water runoff, the system proposed by Mr. Dibbs should provide a higher degree of water storage than currently exists for a net improvement to the environment over existing conditions. Taken together, Petitioner contends the above matters indicate there will be no adverse cumulative impacts resulting from the granting of the permit. There is some indication that the higher mitigation ratio offered by Petitioner could become a precedent for other similar projects. If that were to be the case, the resulting cumulative impact would be a positive rather than negative factor. Nonetheless, it is clear that future applications must stand on their own merit and independently stand the scrutiny of the cumulative impact test, as must the instant application. Turning to the conservation easement suggested by the Department as a condition of approval, the agency contends such an easement would allow it to reduce its requirement for mitigation from a 1.5:1 ratio to a 1:1 ratio. The Department has held in the past, it is suggested, that an applicant's agreement to provide more than the minimum acceptable mitigation can justify the lack of an easement. Mr. Dibbs contends here, and it would so appear, that his agreement to provide more than the required amount of mitigation, when coupled with the fact that the mitigated area will be a part of the Department's wetlands permitting jurisdiction, obviates any need to provide a conservation easement either to offset any adverse impact or to protect against adverse cumulative impact of the project.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Permit No. 292103383, to dredge and fill 2.014 acres of jurisdictional wetlands in Hillsborough County, Florida be issued to Petitioner herein, Stephen J. Dibbs, subject to mitigation herein at a rate of no less than 1.5:1 and under such lawful and pertinent conditions as may be specified by the Department. RECOMMENDED this 20th day of February, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 20th day of February, 1995. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: - 4. Accepted and incorporated herein. & 6. Accepted and incorporated herein. 7. - 11. Accepted and incorporated herein. 12. & 13. Accepted and incorporated herein. 14. Accepted and incorporated herein. 15. Accepted and incorporated herein. 16. - 18. Accepted and incorporated herein. 19. Accepted and incorporated herein. 20. Accepted and incorporated herein. First two sentences accepted. Balance is restatement of testimony. & 23. Accepted. Not a Finding of Fact but more a comment on the evidence. 25. & 26. Accepted and incorporated herein. 27. Accepted. 28. & 29. Accepted and incorporated herein. 30. Not a Finding of Fact but a comment on the evidence. 31. & 32. Accepted. 33. Accepted and incorporated herein. 34. - 36. Accepted. 37. Accepted. 38. - 40. Accepted and incorporated herein. 41. More a Conclusion of Law than a Finding of Fact. 42. Accepted and incorporated herein. 43. - 45. Accepted. 46. Accepted and incorporated herein. 47. More a Conclusion of Law than a Finding of Fact. 48. & 49. Accepted and incorporated herein. 50. - 53. Accepted and incorporated herein. 54. More a Conclusion of Law than a Finding of Fact. 55. - 57. Accepted. 58. Accepted and incorporated herein. 59. More a Conclusion of Law than a Finding of Fact. 60. & 61. Accepted but redundant. 62. Not a Finding of fact but a Conclusion of Law. 63. - 65. Accepted but redundant. 66. Accepted and incorporated herein. 67. - 69. Accepted. 70. - 74. Accepted. 75. - 81. Accepted and incorporated herein in substance. 82. & 83. Accepted. 84. - 88. Accepted. FOR THE RESPONDENT: 1. - 9. Accepted and incorporated herein. 10. & 11. Accepted and incorporated herein. 12. - 15. Accepted. 16. - 18. Accepted and incorporated herein. 19. - 26. Accepted and incorporated herein. 27. - 30. Accepted and incorporated herein. 31. - 34. Accepted and incorporated herein. 35. - 39. Accepted. 40. - 48. Accepted and incorporated herein. 49. & 50. Accepted and incorporated herein. 51. & 52. Accepted. 53. - 60. Accepted. 61. - 64. Accepted and incorporated herein. 65. Rejected as contra to the better evidence. 66. - 69. Accepted and incorporated herein. 70. Rejected as contra to the better evidence. 71. & 72. Accepted. 73. - 75. Accepted. 76. - 81. Accepted. 82. - 87. Accepted 88. Accepted and incorporated herein. 89. & 90. Accepted and incorporated herein. 91. & 92. Rejected as contra to the better evidence. 93. Accepted and incorporated herein. 94. - 96. Accepted and incorporated herein. 97. & 98. Accepted. 99. Accepted and incorporated herein. 100. & 101. 102. Rejected. Accepted as Department's definition. 103. Not proven. 104. - 106. Not relevant to ultimate issue. 107. 120. - - 119. 124. Not a proper Finding of Fact but a restatement the testimony of a witness. Accepted as stipulated facts. of FOR THE INTERVENOR: Noted. Accepted. - 9. Accepted. - 14. Accepted. Not a proper Finding of Fact but a conclusion as to the legal sufficiency of the evidence. - 21. Accepted as statements of the Department's non-Rule policy. 22. - 24. Accepted and incorporated herein. 25. Accepted. 26. Accepted. 27. & 28. Accepted. 29. Rejected. 30. & 31. Accepted. 32. Accepted. 33. Rejected. 34. Accepted. 35. Not proven. Accepted. Accepted. & 39. Rejected. Accepted as the witness' opinion. Accepted. - 45. Accepted and incorporated herein. 46. Accepted. COPIES FURNISHED: E. Gary Early, Esquire Akerman, Senterfitt & Eidson, P.A. 216 South Monroe Street, Suite 200 P.O. Box 10555 Tallahassee, Florida 32302-2555 John W. Wilcox, Esquire Akerman, Senterfitt & Eidson, P.A. Post Office Box 3273 Tampa, Florida 33601-3273 W. Douglas Beason, Esquire Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Thomas W. Reese, Esquire 2951 61st Avenue South St. Petersburg, Florida 33712 Virigina B. Wetherell Secretary Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact Petitioner Benton and Respondent Maine own adjacent tracts on a dead- end, but navigable, oxbow of the Kissimmee River. The Bentons are weekend and vacation residents, and Maine operates a commercial RV-trailer campsite. To accommodate the needs of his guests for boat launching and landing facilities, Maine constructed a 60 foot pier into the river fronting his property in July, 1982. However, he had not obtained any permits for this construction, and later removed 18 feet of the pier at the direction of the U.S. Army Corps of Engineers. He has applied to DER to obtain after the fact approval of the existing 42 foot pier. He also seeks to extend this pier to 52 feet and to add a 12 foot side dock at the end of the extension. DER has studied the site and reviewed the proposed additional construction. There was no evidence to indicate that the existing pier or the proposed extension would harm the environment or create a navigational hazard. However, the extended pier would occupy fully half of this waterway, which is about 100 feet wide in this area. Petitioner objects to the proposed pier extension on esthetic grounds. Although the pier is constructed at a 90 degree angle to Maine's shoreline, it crosses directly in front of the Benton property. This situation results from the layout of the Benton and Maine tracts which intersect the river at approximately 45 degree angles. An imaginary extension of the Benton and Maine property lines into the river would place much of the existing pier and all of the proposed addition within the Benton extension. The proposed side dock would point toward the Benton property and further aggravate this intrusion. Since the location of the pier is close to the Benton-Maine property line, the proposed side dock's placement would require boats to be launched and landed directly across the Benton waterfront. The Benton property derives its principal value from its waterfront character. Therefore, the degradation of view caused by the pier extension along with the additional boat traffic near the side dock would adversely affect Petitioner's enjoyment of his property.
Recommendation From the foregoing, it is RECOMMENDED that the Department of Environmental Regulation issue a permit to John E. Maine approving his existing 42 foot pier in the Kissimmee River, subject to compliance with Section 253.77, Florida Statutes (1983). It is further RECOMMENDED that the application of John E. Maine insofar as he seeks to lengthen the existing pier be denied; but, that application for a side dock extension, if redesigned as stated herein, be approved. DONE and ENTERED this 23rd day of August, 1984, in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of August, 1984. COPIES FURNISHED: Vernon E. Benton 1280 North West 127 Street North Miami, Florida 33167 Douglas H. MacLaughlin, Esquire and Astrid L. Wistedt, Legal Intern Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 John E. Maine Route 1, Box 508 Lorida, Florida 33857 Bert J. Harris, III, Esquire Post Office Box 548 Lake Placid, Florida 33852 Victoria Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact Jack E. Moore is the owner of real property in Fort Myers Beach known as Lot 9 of Indian Bayou, a subdivision in Section 33, Township 46 South, Range 24 East, Lee County, Florida. Moore's property is bordered on the north by the waters of Indian Bayou and Estero Bay. The northern portions of Moore's property are vegetated by juvenile and mature red and black mangroves. Red and black mangrove are the dominant species of vegetation on the northernmost portions of the property, waterward of the fill pad on which Moore's house is built. Sometimes during July, 1982, Moore used a shovel to excavate a channel from the open waters of Estero Bay to a dock existing at the edge of the fill pad. Approximately 48 cubic yards of excavated material was piled up along the banks of the channel. The channel measured approximately 1.5 feet deep (at low tide) by 9 feet wide by 70 feet long. The channel was dug so that Moore could got his boat in and out from the dock at medium tide. The passage to the deck was already possible at high tide, as Moore had a shallow draft pontoon boat. In July, 1981, Moore constructed a rip-rap revetment with backfill the northern side of his house fill pad. The back fill area contains approximately 160 cubic yards of fill, and is approximately 10 feet wide by 110 feet long. Red mangrove and black mangrove are and were the dominant vegetational species in the area where the channel was dug, where the excavated material was placed, and where the revetment and fill was constructed. The area of dominant mangrove vegetation extends from the work areas to the open waters of Estero Bay. Moore did not apply for or receive a permit from DER prior to undertaking the work referenced above. Upon discovery of the work in September, 1982, DER notified Moore that a permit was needed for the excavation and filling he conducted. In October, 1982, Moore agreed to fill in the channel and remove all unauthorized fill by January 19, 1983. Inspection by DER on January 26, 1983, showed that restoration had not been started, and in fact more work had been done on the channel. DER issued a Notice of Violation and Orders for Corrective Action (NOV) to Respondent on March 29, 1003, alleging violations of Chapter 403, Florida Statute's, and DER rules and requiring restoration of the areas dredged and filled. Upon service of the Notice of Violation by the Sheriff, Respondent petitioned for this hearing. DER incurred costs of 5101.88 in investigating the violations alleged in the NOV. As of the date of the hearing, restoration work still had not been performed. Although the spoil piles alongside the channel are now diminished, the channel itself was deep as it previously had been and the rip-rap revetment and backfill had not been removed.
The Issue Whether Appellant should be granted variances in setback lines to allow construction of a retail store on a lot at the northeast corner of the intersection of Papaya Street and Gulfview Boulevard on Clearwater Beach, Florida.
Findings Of Fact Appellant purchased the property at 24 Papaya Street in Clearwater Beach (lots 29-32, inclusive, Clearwater Beach Park) approximately two years ago. The only inquiry made of zoning officials regarding use of the property, other than zoning, was what part of the lot could be covered with a building. This lot is nearly square but is nonstandard in both width and depth to construct a building without a variance. These variances were granted at the initial variance request heard in December 1992. Appellant proposes to construct a retail store containing some 4700 square feet of floor space. To erect a building of this size on the lot a variance of 3 percent to allow 48 percent coverage of the lot was required. This variance was granted by the Board; however, without the variances in setback on the four sides of the parcel, this 3 percent variance in lot coverage is useless to the Appellant. This lot currently has four old buildings with a combined total of 2723 square feet. The largest is nearly square and contains approximately 1120 square feet. There are rental apartments in some, if not all, of these buildings. It is proposed to remove these buildings, if the permit to construct the proposed store is granted. The existing buildings are nonconforming and three are between 2 to 4 feet of the lot lines on the north, east and south sides of the property. The property is zoned CR-28 (Resort Commercial) and the proposed use is authorized in this zoning classification. The plans are and the applicant proposes to provide the required parking spaces for this establishment under the proposed structure. Appellant presented evidence that adjacent properties were built to the lot line with no setback. Most of these buildings were erected before setbacks were required in this area and are grandfathered in so long as the structures remain. In 1986 the Development Code Adjustment Board granted setback variances on all four sides of the property across Gulfview Boulevard from Appellant's property. That parcel was also nonstandard and even smaller than the parcel of land here involved. Because of the size of the property the Board found a hardship existed and without the requested variances the property had little value. One significant difference in these two parcels is that one had been owned by one family since 1932 while the instant parcel was required circa 1990. Further, evidence was presented that being one block east of Mandalay Avenue, the main traveled beach road, the proposed structure needs to be seen from Mandalay to attract pedestrian traffic. The building just west of Appellant's lot is built to the lot line and partially blocks the view of Appellant's property from Mandalay. The use of the property sought here is consistent with the Comprehensive Land Use Plan and no protest to the granting of the variances requested were received from adjacent property owners. Razing the existing structures and erecting the proposed store in which the applicant intends to sell upscale beach wear would improve the appearance of the neighborhood.
Findings Of Fact Description of Proposed Fill Project DER proposes to deny three alternative proposals to fill all or part of Petitioners' real property located in Key West, Florida. The property is rectangular, approximately three acres in size, with 300 feet bordering Roosevelt Boulevard (High-Way A1A) to the south and approximately 300 feet bordering Key West International Airport to the north. The easterly property line is 489.4 feet and the westerly line is 434.63 feet. The Straits of Florida (Atlantic Ocean) are immediately on the other side of Roosevelt Boulevard to the south. The property has a strip of approximately 90 feet of upland and transitional wetland adjacent to Roosevelt Boulevard, with the rest of the property being covered by a salt pond of approximately 40 acres in size (Jnt. Ex. 1). Petitioners initially submitted a permit application in July, 1983, to fill the entire property for construction of multifamily housing units. On May 4, 1984, after discussion with a DER permitting official, Petitioners submitted a second application containing two alternative, less extensive development proposals. The first alternative involves the placement of fill over a 300' x 230' area (approximately 9722 cubic yards) extending 230 feet from the property along Roosevelt Boulevard out into the water. This alternative would entail construction of 24 family housing units, consisting of six basic structures, each four-stories high. The second alternative involves subdividing the property into six separate lots connected by a central fill road with cul-de- sac. Each lot, approximately .4 acres in size, would contain a single family house on pilings and an associated fill pad for parking. The fill pads would be connected to a approximately 300' x 30' entrance road constructed on fill material. Presumably, this second alternative would contain the same amount of total fill as required in the first. As it presently exists, the salt pond (a part of which applicant would fill) serves several significant and beneficial environmental functions. In regard to water quality, the pond stores, filters, and purifies large quantities of storm water which drain from the airport and South Roosevelt Boulevard. The filling of any portion of this pond would diminish this capacity. (Jnt. Ex. 1) Because of their relatively isolated nature, the organic detrital material that is produced from the leaf litter of fringing mangroves is broken down into a very fine and readily usable form by bacteria. As a result, when there is an occasional exchange between the salt pond and tidal waters, the exported organics are in a very desirable form for higher trophic levels in the food web such as small fish, crustaceans, filter feeders, and various larval forms of marine life. (Jnt. Ex. 1) The salt pond proper provides valuable habitat for fish and wildlife, most notable of which are avifauna. The pond has apparently become established as a healthy, self-sustaining ecosystem providing permanent and temporary food, shelter and refuge for many faunal species which play significant and necessary ecological roles both in the salt ponds and other tidal and brackish water systems. (Jnt. Ex. 1) Through the placement of fill and the displacement of present salt pond habitat, water quality and the biological resources in the immediate and surrounding areas would be expected to undergo degradation. (Jnt. Ex. 1) Through the encroachment of development in this area, which presently lacks residential development, biological integrity standards would be expected to fall below acceptable levels. The proposed fill areas would reduce wind- driven circulation in the pond so as to stress levels of oxygen, salinity, temperature and turbidity. Runoff from the proposed fill would introduce nutrients and elevate turbidity during storm events. Finally, elevated turbidity levels could be expected during the actual filling process and the various species of fish and wildlife now located over the project site would be temporarily disturbed by construction activities and permanently displaced in the long term through the loss of habitat. (Jnt. Ex. 1) There is a 40' zoning setback and another 50' easement owned by the City of Key West, which together form a 90' strip on the property adjacent to Roosevelt Boulevard. This 90-foot strip is largely upland and some transitional wetland. There is no zoning impediment to any of the development alternatives proposed by Petitioners. The property is currently zoned R2H (multifamily residential) by the City of Key West. II. DER's Action on the Application After DER received and reviewed Petitioners initial application on July 22, 1983, a completeness summary was sent on August 17, 1983, requesting additional information. DER received the additional information on March 23, 1984, after which it notified Petitioners that additional information was needed. Petitioners met with DER officials on April 20, 1984, and submitted additional information on May 4, 1984, including the two alternative proposals. DER issued the "Intent to Deny" all three of the proposed projects on July 19, 1984 (Jnt. Ex. 1). On May 16, 1984, a DER Environmental Specialist visited the site of the proposed projects and conducted a biological and water quality assessment. This assessment was later submitted, in report form, as the Permit Application Appraisal, dated June 7, 1984. This appraisal, uncontested by Petitioners, indicates that each of the three fill proposals would take place in waters of the state and result in water quality violations under Rules 17-3.051(1), 17- 3.061(2)(c), (j) and (r); 17-3.121(7), (13) and (28); Chapter 17-4, Florida Administrative Code; and Chapter 403, Florida Statutes. Water quality problems associated with the project were identified as diminished storm water treatment, reduced beneficial deterital material, stress on oxygen levels, salinity, temperature, and turbidity, and an introduction of nutrients. (Jnt. Ex. 1) Although a DER dredge and fill permitting official testified that any filling of the salt pond would be detrimental to the birds and animals which feed there on a daily basis, and that, in his view, a "substantial amount" of filling would not be allowed by DER, there are development projects (other than the three presented by Petitioners) which, in his view, may qualify for a permit under DER rules. DER has, in the past, issued permits authorizing the construction of above-ground residences over wetland properties. Under DER's permitting standards, one or more single-family residences could be built on the property if the structures were built on stilts, did not violate water quality standards, had acceptable drainage, and did not result in adverse storm water discharges. In evaluating such an application, any mitigation an applicant could provide, such as enhancing flushing in the salt ponds by the installation of a culvert to open water, would be balanced against any adverse impacts expected from the filling activity. The three alternative filling proposals submitted by Petitioners (including drawings and designs) do not, however as yet, fall within or satisfy these general perimeters of permitting acceptability.
Recommendation Based on the foregoing, it is RECOMMENDED: That Petitioners' application to fill (containing three alternative proposals) be denied for failure to prove compliance with applicable permitting standards contained in Chapter 403, Florida Statutes, and Chapters 17-3 and 17- 4, Florida Administrative Code. DONE and ORDERED this 26th day of July, 1985, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of July, 1985.
Findings Of Fact On or about March 7, 1986, Petitioner submitted an application for a variance from the open space and rear set-back line requirements applicable to property located at 2612 U.S. 19 North, Clearwater, Florida. The subject property is zoned CC (commercial center). Petitioner's application requests a variance to provide 12.33% open space instead of 25%, and to construct a building 30 feet from the rear property line rather than 50 feet as required by the Land Development Code for property zoned CC. On or about April 24, 1986, the Development Code Adjustment Board denied Petitioner's application for a variance, and Petitioner timely appealed on May 6, 1986. The only evidence in support of its application offered by Petitioner was the testimony of Robby Tompkins. He testified that Petitioner's application is "unique" because Petitioner was 90% complete with its architectural plans for the renovation and modernization of the subject property when the current ordinance took effect, and Petitioner therefore urges that the current ordinance should not apply. Additionally, Petitioner argues that there will be no injury to the public as a result of the variance, and in fact the project will add 6800 square feet to its shopping center. Tompkins admitted that an increase in financial return was the primary reason Petitioner has sought the variance. Finally, he stated that if Petitioner complies with the 25% open space requirement, there will not be enough parking to meet Code provisions, and if sufficient parking is provided, there will not 25% open space.
The Issue The issues in this case are: (1) whether proposals by Richard and Mildred Olson to widen an existing bridge (designated Bridge 1) and construct two new pedestrian bridges (designated Bridges 2 and 4) across Bessey Creek in Martin County, Florida, qualify for the Noticed General Permit established by Rule 62-341.475; and (2) whether Petitioner participated in this proceeding for an improper purpose under Section 120.595(1). (Citations to sections are to the 2000 codification of Florida Statutes. Rule citations are to the current Florida Administrative Code.)
Findings Of Fact Richard and Mildred Olson own property in Rustic Hills Phase III in Martin County, Florida. The Olsons own lots 191, 192, 195, 212, 213, and 214. Each lot is approximately two acres in size. The Olson home is on lot 213, and a rental home is on lot 195. On their property, the Olsons raise miniature goats, guinea hens, and peacocks; they also have ducks, geese, chickens, and dogs. Bessey Creek winds through Rustic Hills and the Olsons' lots. The Olsons propose to use DEP's NGP for Minor Activities established by adoption of Rule 62-341.475 to widen one existing bridge and construct two others for access to their property across Bessey Creek. Bessey Creek is a tributary of the St. Lucie River, through man-made Canal 23. Navigating upstream on Bessey Creek, a boat would have to pass under the Murphy Road Bridge, which is 9 feet, one inch above mean high water (MHW), just before reaching the first of the four bridges involved in this case, Bridge 1. Bridge 1 is a steel span bridge (with no pilings in the water) that connects two portions of lot 191, which is split by the creek. The Olsons propose to widen existing Bridge 1. It is not clear from the evidence whether pilings will be required to widen Bridge 1. But it seems clear that a centerline stream clearance (horizontal width) of 16 feet and a bridge height above mean high water (MHW) (vertical clearance) of 9 feet will be maintained. Proposed pedestrian Bridge 2 is the next bridge upstream, at a point where the creek is only approximately 24 feet wide from MHW to MHW. It is designed to be a 192 square foot piling-supported bridge, with an 8-foot wide by 24-foot long walkway. To support Bridge 2, sets of pilings will placed in the creek bed so as to maintain a centerline stream clearance of 16 feet. The proposed vertical clearance for Bridge 2 is 8 feet above MHW. Existing Bridge 3, the next upstream, is at a point where the creek is approximately 35 feet wide from MHW to MHW. Bridge 3 is a wooden bridge approximately 25 years old. It connects lots 192 and 193 to lot 191. The Olsons use existing Bridge 3 on a daily basis. Bridge 3 was built to span the creek; later, two sets of wooden piles were added. There is a centerline stream clearance of 13 feet between the piles. Vertical clearance is 8 feet above MHW. Proposed pedestrian Bridge 4, the farthest upstream, is designed in the same manner as proposed pedestrian Bridge 2. It is located at a point where the creek is approximately 35 feet wide from MHW to MHW. Bridge 4 will connect lots 195 and 212. Navigability Proposed pedestrian Bridges 2 and 4 are designed to have the same 8-foot vertical clearance as existing Bridge 3; they are designed to have three feet more horizontal clearance than existing Bridge 3. Neither they nor widened Bridge 1 will restrict navigation as much as existing structures, natural conditions (including numerous fallen trees, underwater snags and low, overhanging vegetation), and docked boats. The United States Coast Guard and the Florida Fish and Wildlife Conservation Commission (FFWC) concur that the bridges would not have any deleterious effect on the navigation in this area of Bessey Creek. While not specifically alleging impedance of navigation, Petitioner alleged that existing Bridges 1 and 3 are lower than measured by the Olsons' environmental consultant. But there was no evidence to support such a finding. Meanwhile, the Olsons' consultant explained how he determined the vertical clearance of those bridges above MHW by measurements adjusted for MHW using NOAA tide charts. Even if existing Bridges 1 and 3 had less vertical clearance than determined by the Olsons' consultant, Bridges 2 and 4 are designed to have the same vertical clearance as the consultant determined Bridge 3 to have. For that reason, even if the consultant's determinations were incorrect, the vertical clearances of Bridges 2 and 4 are designed to be the same as the vertical clearance of Bridge 3, and the vertical clearance of Bridges 2 and 4 will not impede navigation any more than Bridge 3. Flooding Bessey Creek is a typical tidal creek. It has low volume and low velocity. Being influenced by tidal ebb and flow, its flow is not continuously downstream except during and just after times of high precipitation, such as hurricanes. Under these conditions, build-up of debris around pilings of these bridges would not be expected, and none was observed around at the existing bridges. The chances of vegetation or organic matter building up over time in the area of these bridges to create a beaver dam effect and cause flooding are small. The proposed new pedestrian bridges have four pilings, which is typically less than a single-family dock. The pilings of a single-family dock are closer to the shoreline and, particularly with a boat alongside, would have more potential to trap debris and cause flooding than the proposed bridges. The same can be said of the fallen trees and low, overhanging vegetation existing under natural conditions in Bessey Creek. The proposed bridges are not expected to have an adverse impact of a significant nature with respect to off-site flooding. Petitioner did not present any expert testimony regarding allegations of off-site flooding potential. Dan White testified as a lay person that flooding occurs in the area during times of high precipitation and that Petitioner was concerned that the proposed bridges would exacerbate those conditions. But, while the evidence was clear that flooding is a condition to be expected under certain conditions in low-lying areas like Rustic Hills Phase III, White failed to make any causal connection between existing periodic flooding and the bridges, existing or proposed. Improper Purpose Petitioner's request for hearing, by letter dated November 16, 2000, thanked DEP for "this opportunity to contest the granting of a Noticed General Permit to the Olson's [sic]" and also requested "an Administrative Review to ensure your department has all the information needed to make a fair decision regarding this matter." It also requested: "Since we are a small community, I hope the Department will review this petition in light of the author's lack of familiarity with the specific form and format used by the environmental consultants and those who work with you on a regular basis." Petitioner "respectfully submit[ted] the following information which is required to dispute the Department's actions and to request an Administrative hearing if necessary." In response to Petitioner's letter, DEP referred the matter to DOAH. Apparently, Petitioner (and the other parties) did not receive a copy of the Initial Order. Petitioner, which was not represented by counsel at the time, failed to comply with the Amended Initial Order entered on March 23, 2001. But apparently neither did the Olsons, who also were not represented by counsel at the time, or DEP, which was. The Olsons complained by letter filed April 26, 2001, that Petitioner had not contacted them. But there was no indication or evidence that, up to that point in time, the Olsons attempted to contact Petitioner or DEP, or that DEP attempted to contact Petitioner or the Olsons, in response to the Amended Initial Order. The Joint Response to Initial Order filed by the Olsons and DEP on May 1, 2001, recited that Petitioner's contact person-of-record, Treasurer Jim Fyfe, "no longer was associated with Rustic Hills" and that Petitioner's President, Dan White, was "out of town and could not be reached." Based on the Joint Response to Initial Order filed by DEP and the Olson's, final hearing was scheduled for May 24, 2001. The Order of Pre-Hearing Instructions entered along with the Notice of Hearing on May 3, 2001, required that the parties exchange witness lists and copies of exhibits and file their witness lists by May 14, 2001. Petitioner complied with the requirement to file a witness list and also included a list of exhibits. There was no indication or evidence that Petitioner did not exchange exhibits as well. The Order of Pre-Hearing Instructions also required: "No later than May 18, 2001, the parties shall confer with each other to determine whether this cause can be amicably resolved." When the Olsons' environmental consultant, Bruce Jerner, went to Dan White's home on May 14, 2001, to provide him a copy of the Olsons' exhibits, he invited White to discuss settlement in accordance with the Order of Pre-Hearing Instructions. White responded to the effect that, even if Petitioner did not have a strong case, Petitioner preferred to go to hearing, and White did not want to mediate or discuss settlement with Jerner. At that point, Jerner indicated that he would be sending White a letter confirming the Olsons' attempt to comply with the Order of Pre-Hearing Instructions. The letter dated the next day requested "an informal conference to determine whether the above referenced case can be amicably resolved and avoid hearing proceedings." Significantly, there was no indication or evidence that DEP complied with the Order of Pre-Hearing Instructions in any respect. It appears that DEP distanced itself from the dispute between Petitioner and the Olsons, preferring to allow them to settle or litigate as they saw fit. In view of DEP's noncompliance, DEP at least certainly may not rely on Petitioner's noncompliance as a ground for an award of attorney fees and costs. In addition, while DEP's noncompliance does not excuse Petitioner from complying, it helps put Petitioner's actions in context and is relevant on the question whether Petitioner's noncompliance was evidence of improper purpose. In this regard, White testified to his belief that he had complied with all ALJ orders but did not "know why I would be obligated to respond to the consultant for Mr. Olson with regard to hearing or any other matters." While DEP and the Olsons in part cite Petitioner's failure to follow prehearing procedures, they primarily rely on the weakness of Petitioner's presentation at final hearing and posthearing efforts as evidence of improper purpose. But this evidence must be evaluated along with other factors resulting in the weakness of Petitioner's case. Not only did White misinterpret the Order of Pre- Hearing Instructions, the evidence indicated that he was unfamiliar with the administrative process in general and also was confused about the difference between the administrative hearing scheduled for May 24, 2001, and the County permitting proceedings on the bridges which also were on-going. White indicated repeatedly during final hearing that he and Petitioner had just recently learned more about distinctions between the administrative and County permit proceedings. As a result, White was beginning to recognize that several issues Petitioner had attempted to raise in this administrative proceeding may be relevant to on-going County permit proceedings but not this administrative proceeding. When it was established and explained at final hearing that DEP had no jurisdiction to require demolition or repair of existing bridges in this proceeding, White agreed to withdraw that part of Petitioner's request for relief. When it was established and explained that issues Petitioner raised relating to the "public interest" test under Rules Chapter 21-18 were premature, White did not object to those issues being dropped. Later, when Petitioner attempted to raise water quality issues relating to excrement from Olson livestock crossing these bridges, and it was ruled that no such issue was raised in Petitioner's request for hearing, White accepted the ruling. Final hearing proceeded on the only remaining issue specifically raised by Petitioner (alleged off-site flooding) (together with navigability--an issue addressed in the Olsons' presentation but not raised in Petitioner's request for hearing). To use White's words, Petitioner did not "have a very sophisticated presentation." Petitioner had no expert testimony, and White's lay testimony did not make a causal connection between flooding and the bridges. After the presentation of evidence, Petitioner did not withdraw its request for hearing in view of the evidence presented; but, in fairness, neither was Petitioner asked to do so. Petitioner did not order a Transcript, or a copy after the Olsons ordered a Transcript, and did not file a PRO. It is fairly clear from the evidence that Petitioner did not participate in this proceeding primarily to cause unnecessary delay. Even if Petitioner had never requested a hearing, the Olsons did not have all of the authorizations required of DEP for their proposals. In addition, County permits apparently also are required. It seems reasonably clear that, had Petitioner retained a competent expert to evaluate its case, the expert probably would have advised Petitioner that it would not be able to make a causal connection between flooding and the bridges. Had Petitioner retained counsel prior to final hearing, counsel probably would have advised Petitioner not to proceed with its request for hearing because, without a causal connection between flooding and the bridges, Petitioner would not be able to prevail. But there was no indication or evidence that Petitioner had and disregarded the benefit of professional advice. Under the totality of these circumstances, it was not proven that Petitioner's participation in this proceeding was for an improper purpose--i.e., primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of licensing or securing the approval of the Olsons' applications.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP enter a final order: denying Petitioner's challenge to the propriety of the Olsons' use of the NGP for minor activities for their proposals; authorizing the Olsons to use the NGP for their proposals (DEP File Nos. 43- 0137548-002 and 43-0158123-002) subject to the design criteria limitations and other conditions in the applicable general permit rules; and denying the Motion for Attorney's Fees from Petitioner under Section 120.595(1). Jurisdiction is reserved to enter a final order on the part of the Motion for Attorney's Fees seeking sanctions under Section 120.569(2)(e). DONE AND ENTERED this 30th day of July, 2001, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON 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 30th day of July, 2001. COPIES FURNISHED: Francine M. Ffolkes, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000 Dan White, President Rustic Phase III Property Owners Association 3337 Southwest Bessey Creek Trail Palm City, Florida 34990 Tim Morell, Esquire 1933 Tom-a-Toe Road Lantana, Florida 33426 Elizabeth P. Bonan, Esquire Cornett, Googe, Ross & Earle, P.A. 401 East Osceola Street Stuart, Florida 32991 Kathy C. Carter, Agency Clerk Office of General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 David B. Struhs, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building Tallahassee, Florida 32399-3000
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing relating to the issue of jurisdiction, the following relevant facts are found: On or about March 28, 1979, respondents T.V. Rodriquez and Trafalgar Developers of Florida, Inc. filed with the Department of Environmental Regulation an application for a permit to conduct dredge and fill activities on a 2.3 acre area located within a 495 acre planned unit development in Orlando. The 2.3 acre tract is located in a cypress swamp area in the northeast portion of the development site. The application sought authority to excavate 2,000 cubic yards of material for the installation of a five foot diameter drainage culvert, and to backfill the installed pipe with 3,000 cubic yards of fill material. All of the construction activity was to be confined to the 2.3 acre tract which, as noted above, was a cypress swamp area interior to the project boundaries. While there were no other property owners immediately adjacent to the cypress swamp upon which the dredging and filling was to occur, the applicants did provide for notification purposes the names of two property owners which were the closest, although not adjacent, to the proposed project site. Neither the petitioners nor the intervenors in this proceeding were among the two names provided. The Department of Environmental Regulation reviewed the application and, on April 5, 1980, requested further infor- mation. Upon receipt of this information, an employee of DER, Jim Morgan, conducted a field inspection of the dredge and fill site on May 10, 1979. It was Mr. Morgan's conclusion that the proposed project would result in the elimination of approxi- mately three percent of the wetlands associated with the eastern boundary of the 495 acre development, and would not significantly impact the remaining portion of the wetland community. Mr. Morgan recommended that the application be approved, with two specific conditions. One condition pertained to the containment of turbidity at the project site if the site is inundated during construction. The other condition pertained to a proposed swale for outfall of a planned ditch system for the drainage of the 495 acre planned unit development. On May 18, 1979, the Department of Environmental Regulation issued Permit No. 48-18682-4E to respondents to excavate 2,000 cubic yards of material for the installation of a five foot diameter drainage culvert and to backfill the installed pipe with 3,000 cubic yards of fill material suitable for use as-a golf course foundation. The permit contained the specific conditions recommended by Mr. Morgan. Specific Condition Number 1 reads as follows: "(1) The drainage plan for this proposed 495 acre planned unit development will require the lowering of the water table via way of a planned ditch system, thus making development feasible. This ditch system will ultimately [sici discharge to an existing county canal via way of a proposed swale, which is exempt from this department's per- mitting pursuant to Chapter 17-4.04(10)(k). A swale conveys water only during and immediately after the advent of a storm. This installation must conform to this explicit definition, otherwise, additional dredge and fill permits will be required, including the entire development's drainage facility. Upon completion of the development, this department shall be notified and periodic inspections will be performed by the department's staff to determine if the outfall conforms with the definition of a swale." By letters to DER dated August 20, 1979, the petitioners herein stated that they had just been informed on August 17, 1979, of the issuance of the subject permit to the respondents. Their original letters to the DER, as well as their amended and restated petition, claim that, as owners of property located adjacent to the property upon which the drainage project would be conducted pursuant to the subject permit, they were entitled to notice prior to the issuance of the permit and that their substantial interest will be affected by the drainage project authorized by said permit. The petitioners Frances Bandy and Charles R. Bandy own Lot 14 in Golden Acres which is a considerable distance from the 2.3 acre tract upon which respondents are permitted to conduct dredging and filling activities. The petitioners Anna and Lee Rowe and Fay M. Handy own Lots 20 and 21 in Golden Acres, as well as a five acre lake. These lots and lake are even further from the permitted dredge and fill site. None of the petitioners own property which is adjacent to the permitted 2.3 acre site. Betty J. Hardy, Wayne Hardy and Vista Landscaping Inc. moved to intervene in this proceeding by motion dated March 5, 1980. An amended motion to intervene was filed on March 17, 1980, adding Julian T. Hardy as a named party intervenor. The intervenors own and have a business interest in property located a considerable distance south of the permitted 2.3 acres. The intervenors conduct a wholesale nursery business on their property. Their complaint lies with the effect that the proposed drainage of the entire 495 acre development and the alleged drainage ditch located on property contiguous to their property will have on their property and business interests. As of the time of the hearing on March 18, 1980, construction pursuant to the permit issued on May 18, 1979, was approximately ninety-five percent (95 percent) complete.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the petitioners request for an administrative hearing pursuant to Section 120.57(1) be dismissed, with prejudice, for lack of jurisdiction. Respectfully submitted and entered this 22nd day of April, 1980, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Cleatous J. Simmons Lowndes, Drosdick and Doster Post Office Box 2809 Orlando, Florida 32802 Roger D. Schwenke Carlton, Fields, Ward, Emmanual, Smith and Cutler, P.A. Post Office Box 3239 Tampa, Florida 33601 Stanley J. Niego Office of General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Honorable Jacob Varn Secretary, Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
