The Issue Whether Petitioner's application for an environmental resource permit to remove two canal plugs in the Cahill canal system should be granted or denied.
Findings Of Fact The proposed project On March 19, 1998, Petitioner Cahill submitted a permit application to the Department to remove two canal plugs in the Cahill Pines and Palms subdivision on Big Pine key. A backhoe would be used to dredge and lower the plugs to a depth of minus five feet mean low water (-5 ft. MLW) for the purpose of providing boating access to the properties now isolated from open water. The Cahill canal system is located within class III waters of the state which open into Pine Channel, a natural waterbody designated as Outstanding Florida Waters (OFW). In 1991 and 1995 Petitioner Cahill submitted permit applications to the Department to remove the same two canal plugs. Those applications were initially denied and the denials were litigated in formal administrative hearings. Those hearings resulted in Department final orders denying both applications.3 Background4 In July, 1991, the Department received a permit application requesting the removal of two canal plugs down to a depth of minus five-and-a-half feet NGVD. A formal administrative hearing was conducted on March 3 and 4, 1994, in Key West, Florida, before Stuart M. Lerner, a duly designated Hearing Officer (now Administrative Law Judge) of the Division of Administrative Hearings. That initial permit application denial was based upon water quality considerations and the project's failure to meet the public interest test. On May 17, 1995, Petitioner submitted a permit application to the Department which was denied. The basis for the permit denial was that the project was substantially similar to the previously litigated project. On April 23, 1996, a second formal administrative hearing was held in Key West, Florida, before Administrative Law Judge Susan B. Kirkland. Judge Kirkland found that the 1995 permit application did not address the issues raised by the Department in the first administrative hearing. Judge Kirkland also concluded that the 1995 application should be denied on the basis of res judicata. The Department entered a Final Order on September 12, 1996, concluding that the doctrine of res judicata applied to support the denial of Petitioner's 1995 application. New facts/changed conditions In all material aspects, the proposed dredging activity in the current permit application is identical to the previously proposed dredging activity. Petitioner Cahill seeks to lower the two canal plugs to allow boat access. The documents submitted in support of the current application do not propose any significant changes to what was proposed in the two prior applications. Petitioner Cahill provided copies of provisions of the Monroe County Comprehensive Plan, the Florida Keys National Marine Sanctuary Management Plan and two Monroe County Ordinances, in support of the current permit application. This information does not constitute new facts or changed conditions sufficient to characterize the proposed project as substantially different from the previously denied applications. Petitioner Cahill provided a list of "enhancements" in the current permit application seeking to provide reasonable assurance for issuance of an environmental resource permit. These proposed "enhancements" are not binding on the Petitioner Cahill's members and do not constitute such new facts or changed conditions as to make the project substantially different from the previously denied applications. The differences between the current application and the two previously denied applications are primarily cosmetic differences. The substance of the matter is unchanged in any material detail.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued in this case denying Petitioner's pending application for an environmental resource permit. DONE AND ENTERED this 15th day of March, 1999, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of March, 1998.
The Issue Whether Respondent engaged in, or benefited from, the unpermitted removal, cutting, or trimming of vegetation.
Findings Of Fact Respondent owns and maintains an off-premise outdoor advertising sign (billboard) located along Interstate 75 in Pasco County at section 14140, milepost 13.392. The sign is maintained under the Department of Transportation's (Department's) sign permit BS-600. During October 2000, Mr. Moriaty, a district roadside vegetation coordinator for the Department, noticed while driving on Interstate 75 that the subject sign, which had previously been screened from sight, could now be seen from the highway. Upon closer inspection he observed that vegetation had been removed from the Department's right-of-way at the location of the sign. The vegetation removal included the removal of many large trees. The Department placed the value of the trees that were removed to be $41,814.74.1 This removal of vegetation was done without the Department's permission. Removal of the vegetation and trees improved the view of the sign from Interstate 75, although it is not clear from the record whether it was the trees or the surrounding vegetation which obscured the sign. No evidence was presented establishing that Respondent removed the vegetation or directed others to perform the removal of vegetation. The president of G and J Management Company, Mr. Jerry Sullivan, first became aware of the vegetation removal when he received the notice of the vegetation cut from the Department. Mr. Sullivan purchased the billboards for the purpose of obtaining billboard permits from the Department. These permits have a value separate and apart from the ability to advertise. That is, such permits can be traded-in for vegetation cuts elsewhere or otherwise used for leverage with other billboard companies. A county permit is also required prior to placing advertising on the billboard. At present, Respondent does not have the necessary county permit for advertising. However, Mr. Sullivan conceded that he believed they could get county permits if they pressed the county hard enough. As of October 23, 2000, the face of the billboard was blank in that no copy was on the face of the billboard. At no time material hereto has third-party advertising copy appeared on the subject billboard. As of August 17, 2001, the face of the billboard contained the words, "This sign for rent" with a telephone number. At the time of the hearing, Mr. Moriaty recalled seeing that copy on the sign for, "probably the last month or so, but I don't know exactly when that went up." Thus, the copy first appeared on the billboard around mid-July 2001.2 As of August 17, 2001, regrowth had begun to occur and the vegetation partially obscured the copy on the subject billboard. Mr. Sullivan did not place this copy on the billboard. He leaves such matters to his business partner, Tom Gunter. The copy was placed on the billboard so that the board would not be deemed abandoned. Mr. Sullivan, however, asserts that this was the wrong copy and furthers asserts that he is not actively marketing the billboard for advertising purposes nor has he ever actively marketed the subject billboard. At the time of the vegetation removal, vegetation had been removed from six other billboards within a few miles of the location of the subject billboard. These six billboards were owned by three other outdoor advertising companies. At least one of these sites had a billboard with third party advertising on it. Originally, the Department issued violation notices for unauthorized vegetation cuts at these other six billboard sites. However, the Department later rescinded these violation notices. The Department based its decision to rescind the other notices of violation on its determination that these six other instances of vegetation cuts involved mowing and removal of non-woody brush rather than tree cutting. The Department conceded that permits are required in either case and there is no distinction between permits that are required for the removal of vegetation or the removal of trees.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Department enter a final order rescinding its violation notice sent to Respondent. DONE AND ENTERED this 24th day of October, 2001, in Tallahassee, Leon County, Florida. BARBARA J. STAROS 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 24th day of October, 2001.
The Issue The following issues have been raised by the Department: Did the Respondents carry out any dredge, fill and bulkhead activities on Mr. Romaine's land within the "waters of Florida"; if so, to what extent? If dredge, fill and bulkhead activities took place within the waters of Florida, did they cause any damage to the natural resources the Department is charged with protecting; and, if so, to what extent? If such activities took place within the waters of Florida, what actions would be appropriate to remedy the violations and the damage caused? What is the amount of expense and damage, if any, which the Respondents should be required to pay to the Department?
Findings Of Fact Mr. Romaine and his wife Purchased land along the shore of the St. Johns River on December 10, 1984. The property was purchased from Milton C. and Cheri A. Rosberg and was secured by mortgage from James L. Tison, Jr., and Frances S. Tison. The land purchased by the Romaines (hereinafter referred to as the "Property") is located on the westerly bank of the St. Johns River in Clay County, Florida. The Property is more particularly described in the copy of the Warranty Deed accepted into evidence as the Department's exhibit 1. The property immediately to the north of the Property is owned by Mr. Rosberg. The property immediately to the south of the Property is owned by Mr. and Mrs. Tison. The Tisons have resided on the property to the south of the Property for approximately 27 years. The Tisons formerly owned the Property. Mr. Tison mowed the grass on the Property and otherwise maintained the Property prior to its sale. The Tisons are familiar with the shoreline of the St. Johns River along the Property both before and after December of 1985. During the latter part of 1985, Mr. Romaine contracted with B & W for the construction of a bulkhead along the western border of the Property and the St. Johns River. From approximately December 3, 1985, to December 7, 1985, a bulkhead was built along the portion of the Property fronting on the St. Johns River. No application for dredge and fill or bulkhead activities was filed with the Department with regard to the activity on the Property, and no such permit was issued by the Department. Mr. Romaine relied upon B & W to obtain any permits required for the construction of the bulkhead on the Property. The Department was not asked whether a permit was required for the construction of the bulkhead on the Property. Other State and federal agencies were consulted concerning their jurisdiction over the construction of the bulkhead on the Property. In addition to the portion of the bulkhead constructed on the Property, approximately 31 feet of bulkhead was constructed from the border of the Property with Mr. Rosberg's property north to a dock located on Mr. Rosberg's property. Mr. Rosberg gave Mr. Romaine permission to use the dock in exchange for the construction of this portion of the bulkhead. For purposes of presenting evidence, the Department divided the bulkhead constructed along the Property into two sections: Area "A" and Area "B." Area A consists of a portion of the bulkhead which begins at the border of the Property and Mr. Rosberg's property and runs in a relatively straight line to the south for approximately 48.2 feet. The bulkhead then begins a gradual, then more pronounced, curve to the west. This is the end of Area A. The bulkhead in Area B goes almost perpendicular to the tangent of the curve in a southern to southwesterly direction in a straight line for approximately 23 feet. The bulkhead then makes a sharp turn to the west and proceeds in a straight line for approximately 12.5 feet where it intersects with the Property's southern boundary. Areas A and B are shown on the Department's exhibit 2 and Romaine exhibit 8. The designation of Areas A and B on these exhibits was not prepared by a licensed surveyor; the designation was intended only as an approximate drawing of portions of the Property. A wetland area is an area which experiences flooding or inundation of water often enough for the area to become defined by species of plants and soils characteristic of areas subject to flooding or inundation of water. Wetlands are potentially the most important part of a water body. Wetlands can maintain water quality, acting as the "kidneys" of a water body, provide habitat not found elsewhere, act as a flood storage area, protect against erosion and play an essential role in the life cycle of aquatic plant and animal life. Water quality will deteriorate if wetlands are destroyed. The wetlands that border the St. Johns River act as a flood plain where water is stored during periods when the River is high. The determination of the extent, if any, of the Department's jurisdiction over the bulkhead built on the Property, is more difficult in this case than in a case where a permit is applied for because of the inability of the Department's experts to examine the Property in its natural, undisturbed state. Because of the changes to the natural state of the Property, including filling activities, many of the natural indicators used to determine the Department's jurisdictional line on the Property have been eliminated or altered. If there is insufficient physical or other evidence to the contrary, the landowner should be given the benefit of any doubt the Department has in setting the Department's jurisdictional line and a line of restoration where property is examined after it has been altered. In determining the extent of the Department's jurisdiction in this case, the starting point is the St. Johns River itself. The open water of the St. Johns River is a water body over which the Department has jurisdiction pursuant to the Florida Administrative Code. Area B used to be a wetlands area prior to the placement of the bulkhead on the Property and the placement of fill behind the bulkhead. This finding of fact is supported, in part, by the location of a large cypress tree, which is a wetlands tree. This tree is the first tree encountered behind the bulkhead in Area B and is the dominant upper canopy vegetation. This tree has been marked by a red "X" on the Department's exhibits 2, 3 and 7. Additionally, the area to the east and south of the bulkhead (between the bulkhead and the St. Johns River) still remains as wetlands. Because of the alteration of Area B by the bulkhead and the placement of fill behind the bulkhead, it is not possible to determine exactly how far the Department's jurisdictional line goes landward from the shore of the St. Johns River. At a minimum, the area between the dashed line and the bulkhead on the Department's exhibit 3 constitutes wetlands and lands within the Department's jurisdiction. By filling the area identified in the Department's exhibit 3 as within the Department's jurisdiction, wetlands of the St. Johns River have been destroyed. This has resulted in the elimination of an area which served the functions of wetlands as explained in findings of fact 10-12. To ignore the fact that the construction of the bulkhead was completed without a permit or to now grant a permit could affect other bulkhead and fill projects along the St. Johns River. Even though the effect of the filling of Area B may be small, the cumulative impact of the destruction of multiple small areas of wetland would have an overall negative effect on the quality of the St. Johns River. In order to remedy the damage in Area B the original status quo of the area should be restored. This requires the removal of the bulkhead in Area B and all fill added behind the bulkhead in Area B down to the original contour of the land and revegetating the area with indigenous wetland vegetation. During this process, steps must be taken to control turbidity and to prevent pollution of adjacent waters. Additionally, it would be appropriate to require that numbered paragraphs 5c, 6, 7, 8 and 9, in the Department's exhibit 10, be complied with in restoring Area B. The Department's experts were unable to say where the Department's jurisdictional line was located in Area A of the Property because there was no physical evidence remaining after construction of the bulkhead from which it could be determined where the natural shoreline of the St. Johns River was located at the time of the Department's examinations. Despite the inability of the Department's experts to precisely locate the Department's jurisdictional line based upon the current condition of Area A, other evidence supports a finding of fact that the bulkhead in Area A was built within the jurisdiction of the Department. In particular, the testimony of Mr. and Mrs. Tison and the Department's exhibits 12A-12D, support a finding that the portion of the bulkhead constructed in Area A of the Property extends into the waters of the St. Johns River to the east of the former shoreline of the Property. Fill was then placed into the River between the bulkhead and the former shoreline. Mr. Tison drew a line in red on the Department's exhibit 11. This line represents the approximate former shoreline of the St. Johns River prior to the construction of the bulkhead on the Property. The area between this red line and the bulkhead is within the Department's jurisdiction. B & W used a Case 410 tractor backhoe to construct the bulkhead. This tractor had outside wheels eighty-two inches apart and it weighed approximately 14,000 pounds. A bucket at the end of the tractor was used for digging. The bucket was approximately two feet wide and the arm, when fully extended, could perform work approximately eight feet away from the body of the tractor. After digging a trench where the bulkhead was to be placed in Area A, a water jet was used to sink four-by-six posts five feet apart. Two-by-eight boards were then stacked between the posts six boards high. The backhoe was used to dig a hole approximately twelve feet behind each post where a deadman was sunk or a tieback was attached to each post. The Department's exhibits 12A-12D are Photographs of Area A during the construction of the bulkhead. They all show water of the St. Johns River between the posts to the west where the shoreline of the St. Johns River was located. Based upon the size of the backhoe, Mr. Woodyard's testimony that the backhoe's wheels, while the backhoe straddled the bulkhead area to dig the trench, were on dry land is not credible. The Department's exhibits 12A and 12D show a leaning cypress tree in the waters of the St. Johns River. The bulkhead posts pictured in these exhibits are several feet into the River. In Romaine's exhibits 3 and 4, and the Department's exhibit 4 the same leaning cypress tree is several feet landward of the bulkhead. The Department's exhibit 12C shows the bucket of the backhoe totally submerged in the waters of the St. Johns River. This further supports a finding that dredging and filling occurred in the waters of the St. Johns River. When the Department's exhibits 12A-12D (photographs of the bulkhead construction in Area A) are compared with Romaine exhibits 3 and 4 and other photographs taken after construction of the bulkhead in Area A, it is evident that fill was placed between the bulkhead and the former shoreline of the St. Johns River. The construction of the bulkhead in Area A has caused the same damage that the construction of the bulkhead in Area B caused. The same remedy suggested for Area B would also be appropriate for Area A. The Department incurred $730.17 in its investigation of this matter and the preparation for the formal hearing of this case.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued finding that the Respondents have violated Section 403.161(1)(a) and (b), Florida Statutes (1987). It is further RECOMMENDED that the Final Order provide that the Respondents, jointly and severally, must pay $730.17 to the Department within twenty (20) days from the date of the Final Order in this case in reimbursement of the Department's expenses. Payment shall be made by cashiers check or money order and shall be payable to the Department of Environmental Regulation. Payment shall be sent to the Department of Environmental Regulation, Northeast District, 3426 Bills Road, Jacksonville, Florida 32207. It is further RECOMMENDED that the Final Order Provide that the Respondents are to restore the areas of the Property described in this Recommended Order within Sixty (60) days from the date of the Final Order as follows: All of the vertical bulkhead located on the Property shall be removed; All fill material within the jurisdiction of the Department shall be removed and placed upland of the Department's jurisdiction as described in this Recommended Order (the portion of Area A between the St. Johns River and the line drawn in red on the Department's exhibit 11 and the portion of Area B between the St. Johns River and the dashed line on the Department's exhibits 2, 3 and 7. The area from which the fill material is removed shall be restored to the elevation which existed prior to the violation; and During restoration of the Property, adjacent areas within the jurisdiction of the St. Johns River shall not be disturbed unless otherwise approved by the Department in writing. It is further RECOMMENDED that the Final Order provide that the Respondents shall carry out the activities described in paragraphs 5c, 6, 7, 8 and 9 of the Department's exhibit 10. It is further RECOMMENDED that the Final Order Provide that the Respondents are not to undertake any additional dredge and fill activities within the waters of Florida, other than the restoration measures described in the Final Order, without obtaining a permit or written notice that the work is exempted from permitting from the Department. It is further RECOMMENDED that the Final Order provide that the Respondents are to allow authorized representatives of the Department access to the Property at reasonable times for purposes of determining compliance with the Final Order in this case and with Chapter 403, Florida Statutes, and the Department's rules promulgated thereunder. DONE and ENTERED this 2nd day of March, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 1988. APPENDIX The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Petitioner's Proposed Findings of Fact: Proposed Finding Paragraph Number in Recommended Order of Fact of Acceptance or Reason for Rejection 1 Hereby accepted. 2 1. 3 3 and 9. 4 13. 5 These proposed findings are not necessary. They affect the weight to be given to some of the evidence. 6 10. 7 11. 8 12. 9 14. The portion of this proposed finding after the first sentence constitutes proposed conclusions of law. 10. Hereby accepted. 11 13. 12 20. The portion of this proposed finding after the first two sentences constitutes proposed conclusions of law. 13-15 These paragraphs are not proposed findings of fact. They are summaries of testimony. See 15-17. 16 This paragraph is not a proposed finding of fact. It is a summary of testimony concerning law. 17-19 These paragraphs are not proposed findings of fact. They are summaries of testimony. See 18-19 and 28. These proposed findings are not necessary. They affect the weight to be given to some of the evidence. Summary of testimony. 22 6. 23 29. 24-26 Summary of testimony. See 3 and 21. The weight of the evidence did not support a finding that the fill in Area A extended into the St. Johns River approximately 20 feet at its widest point. 27 5 and 7. 28 8. 29 Hereby accepted. 30 22. 31-32 Summary of testimony. See 23-25. 33 25. Not Supported by the weight of the evidence. 26. The last sentence is not supported by the weight of the evidence. Cumulative and unnecessary. 37 27 38-39 Conclusions of law and argument. 40-41 Hereby accepted. Mr. Romaine's Proposed Findings of Fact: The first paragraph under the Findings of Fact portion of Mr. Romaine's proposed recommended order does not contain any relevant findings of fact. Summary of testimony and irrelevant proposed findings of fact. Summary of evidence. The following numbers correspond to the numbers of the sentences contained in Mr. Romaine's "Procedural Statement." 1 and 3. 4 and 7. Hereby accepted. Irrelevant. 5-6 Not supported by the weight of the evidence. See 5 and 6. 7-17, 19-27 32-39 and 42 Irrelevant or not supported by the weight of the evidence presented at the formal hearing. 18, 28-31 and 40-41 Hereby accepted. COPIES FURNISHED TO: JOHN P. INGLE, ESQUIRE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION TWIN TOWERS OFFICE BUILDING 2600 BLAIR STONE ROAD TALLAHASSEE, FLORIDA 32399-2400 WILLIAM A. ROMAINE 2127 WINTERBOURNE, WEST ORANGE PARK, FLORIDA 32073-5621 ROBERT E. WOODYARD, PRESIDENT B & W MARINE CONSTRUCTION, INC. 4611 LAKESIDE DRIVE JACKSONVILLE, FLORIDA 32210 DALE TWACHTMANN, SECRETARY STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION TWIN TOWERS OFFICE BUILDING 2600 BLAIR STONE ROAD TALLAHASSEE, FLORIDA 32399-2400 DANIEL H. THOMPSON, ESQUIRE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION TWIN TOWERS OFFICE BUILDING 2600 BLAIR STONE ROAD TALLAHASSEE, FLORIDA 32399-2400
The Issue The issue for determination in this matter is whether Petitioner, Robert A. Mason, has demonstrated, pursuant to the Vested Rights Review Process of Clay County, Florida, that a vested rights certificate to undertake development of certain real property located in Clay County should be issued by Clay County, notwithstanding that part of such development will not be in accordance with the Clay County Comprehensive Plan.
Findings Of Fact The Property The Applicant, Petitioner Robert A. Mason, is the owner of real property located in Clay County, Florida. The Applicant's property is known as "Cypress Landing," containing 5.977 acres, which consists of a rectangular tract 200 feet by approximately 841 feet in the Hollywood Forest Subdivision, bounded on the east by the west shore of the St. Johns River, and on the west by the right-of-way for Peters Avenue, now known as Harvey Grant Road. The Applicant acquired the property on July 25, 1958, by warranty deed from Victor M. and Ruth C. Covington recorded in Official Records Book 3, page 250, public records of Clay County, Florida. The property was the south 1/2 of Lot 12, Lot 12-A, and Lot 13, and the north 1/2 of Lot 14 of Hollywood Forest, a platted subdivision on Fleming Island in Clay County. At the time Petitioner acquired the property, the applicable zoning district permitted the development of the property for single- family residential at a maximum density of three units per acre. When the Applicant originally acquired the property in 1958, he and his wife had intended at some future time to live on the property and use the property for their own purposes, including recreation, keeping horses, and retirement. At the time the Applicant acquired the property there was an existing dock extending from the property into the river. Due to subsequent changes in his employment circumstances, the Applicant did not build a residence on the property. The Applicant is a registered forester who retired from the Georgia Forestry Commission after 32 years of service. The Applicant and his wife currently reside in Georgia. Cypress Landing contains a multitude and variety of trees, including magnolia, Florida holly, live oak and cypress, many of which are more than 200 years old and have diameters in excess of 36 inches. The Applicant has taken great care and followed specific conservation measures to identify and preserve the historic trees on the property. Development of the Property In 1982-1983, the Applicant prepared a development plan for the Cypress Landing property which comprised a single-family residential development. The planned development consisted of a total of seven single-family lots, two of which faced the river, and the other five which were 122 feet by 200 feet and lay side by side between the road and the waterfront lots. The development plan included an easement (the "Road Easement") for ingress, egress, drainage and utilities along the northern waterfront lot into the southern waterfront lot. From the east end of the Road Easement, an additional pedestrian easement was provided along the northern ten feet of the southern waterfront lot for pedestrian access to the river. The Applicant employed a surveyor, McKee, Eiland & Mullis, Land Surveyors Inc., of Orange Park, Florida. The Applicant instructed the surveyor to plat the property in accordance with the development plan and all existing codes. The property was thereafter subdivided into seven lots, identified as Lots A, B, C, D, E, F, and G. Lots A through E are the inland lots and each measure 122 feet by 200 feet with a 30 feet non- exclusive easement for ingress, egress, drainage and utility purposes. Lots A through E are inland lots. Lots F and G are the waterfront lots which are slightly larger than the other five lots and not as uniform in configuration. Lot F has approximately 116 feet of water frontage and Lot G has approximately 97 feet of water frontage. In 1984, relying on the applicable zoning regulations, the Applicant contracted with Robert Bray to install a roadway which is 30 feet in width and 866 feet in length running along Lots A through E and ending at Lot F. The roadway was constructed with specific concern for the protection and preservation of the trees on the property. A pre-cast concrete curb running the entire length of the roadway was installed to protect the trees from runoff. Porous rock was used as the foundation of the roadway to promote proper drainage. The roadway was also constructed with an ellipsis at Lot C to protect a historic tree. The design of the roadway, as well as the materials used in building the roadway, met all Clay County code requirements at the time of construction. In 1984, the Applicant reconstructed the dock on the property. The dock had previously been damaged due to storms. The dock was reconstructed by Duke Marine Construction in accordance with all appropriate regulations. Covenants have been executed to allow for use of the dock as a community dock for all lot owners. The community dock is 300 feet in length. Also in 1984, the Applicant erected a sign indicating the entrance to Cypress Landing. The sign was later vandalized and removed. In 1988, the Applicant contracted with Jacksonville Electric Authority for the installation of an underground electric distribution system in Cypress Landing. The underground utilities distribution system was designed specifically to protect and preserve the existing trees on the property, and was installed by boring under the trees to place a conduit to protect the established roots. The underground electrical distribution system was installed in accordance with the Clay County code at that time. On May 29, 1987, the Applicant sold Lot A to Robert M. and Mary Wasdin. Clay County issued a building permit for the construction of a residence on Lot A. A house has been constructed on Lot A. On September 1, 1989, the Applicant sold Lot E to Robert G. and Marva Lou Widhalm. Clay County issued a building permit for the construction of a residence on Lot E. A house has been constructed on Lot E. Applicant's Expenses The applicant expended approximately $4,609.45 on topographical surveys, tree location surveys, and engineering plans which were prepared for the mapping and platting of Cypress Landing. The surveying expenses were paid prior to the adoption of the Clay County 2001 Comprehensive Plan. The Applicant incurred significant expenses in the design and construction of the roadway. Additional costs were incurred by the Applicant for the construction of the roadway in an environmentally sensitive manner which protected and preserved the historic trees on the property. The total amount expended in 1984 by the Applicant for the construction of the roadway was $6,880, all of which was paid prior to the adoption of the Clay County 2001 Comprehensive Plan. The Applicant expended $19,540 for the reconstruction of the community dock in 1984, which was paid prior to the adoption of the Clay County 2001 Comprehensive Plan. The Applicant expended $7,101.87 for the installation of the underground electrical distribution system in 1988 and 1989. This amount included an additional cost of $1,209.87 paid to JEA, which was the difference in cost between the underground system and an equivalent overhead electrical distribution system. This amount also included a cost of $5,502 paid to Allstate Electrical Contractors, Inc. of Jacksonville, Florida, for the boring and installation of the PVC conduits to protect the historic trees on the property. The expenses were paid prior to the adoption of the Clay County 2001 Comprehensive Plan. The Applicant expended $363.58 for costs associated with the Cypress Landing entrance sign and a security fence. The expenses were paid prior to the adoption of the Clay County 2001 Comprehensive Plan. Rights that will be Destroyed In 1991 Clay County originally adopted the Clay County 2001 Comprehensive Plan pursuant to Chapter 163, Part II, Florida Statutes. The Clay County 2001 Comprehensive Plan is now known as the Clay County 2015 Comprehensive Plan. Under the Comprehensive Plan, Cypress Landing was designated with a land use designation in the plan of "Rural Fringe." Policy 2.10 of the Clay County 2015 Comprehensive Plan provides that if land is divided into three or more lots, any three of which are 9.9 acres or less in size, then such land must be platted in accordance with the County's regulations, and all lots must be provided access to a road improved to meet County paved road standards. The County's Subdivision Regulations were amended after 1990. Section 16(1)(d)1.a.i. thereof now requires a minimum width for subdivision streets of 60 feet. The regulations further require that such streets be paved. The Cypress Landing Road Easement is only 30 feet wide. Moreover, new surface water runoff requirements require retention areas for rainwater. To comply with the post-1991 Clay County land use regulations would require a reconfiguration of the lots in Cypress Landing. Reconfiguration is not possible because two of the lots have been sold to new owners. Policy 2.9 of the Clay County 2015 Comprehensive Plan restricts any easement that provides access to multiple lots to a length of 1,000 feet, and limits to five the number of lots that may utilize the same for access. While the Cypress Landing Road Easement is less than 1,000 feet in length, the number of lots within the Cypress Landing development exceeds the maximum that can access the Road Easement. The Petitioner would be precluded from selling or developing the remaining lots within the Cypress Landing development without reconfiguration and loss of one or more lots. Moreover, because Lots "A" and "E" have already been sold, the Petitioner cannot add additional right-of-way width to the Road Easement in order to comply with the County's Subdivision Regulations regarding minimum right-of-way width. The Applicant would have been entitled to statutory vested rights if 50 percent of the lots had been sold prior to 1992. Procedural Requirements The procedural requirements of Vested Rights Review Process of Clay County, adopted by Clay County Ordinance 92-18, as amended, have been met.
The Issue Whether the Respondent should issue a permit for the removal of the one mangrove tree growing on the submerged lands owned by Petitioner.
Findings Of Fact There being no transcript of the proceedings, the Department did not take any exceptions to findings of fact per se. In Exception No. 1, however, the Department takes exception to Finding of Fact No. 16 to the extent that it embodies an implied conclusion of law that Batell had certain riparian or other vested rights which would prevent the Department from requiring a dredge and fill permit for removal of the mangrove tree. 3/ The Department's regulations are based on the police power of the state. Odom v. Deltona Corp., 341 So.2d 977, 987 (Fla. 1977); Neumann v. Davis Water and Waste, Inc., 433 So.2d 559 (Fla. 2d DCA 1983), rev. den.,441 So.2d 632 (Fla. 1983). See also Sunshine Jr. Stores, Inc. v. Department of Environmental Regulation, 556 So.2d 1177 (Fla. 1st DCA 1990); State v. General Development Corp., 448 So.2d 1074 (Fla. 2d DCA 1984), aff'd., 469 So.2d 1381 (Fla. 1985); Town of Indialantic v. NcNulty, 400 So.2d 1227 (Fla. 5th DCA 1981); Department of Environmental Regulation v. Oyster Bay Estates, Inc., 384 So.2d 891, 894 (Fla. 1st DCA 1980). All property rights are subject to the reasonable exercise of the police power. Odom v. Deltona, supra; Brickell v. Trammell, 82 So. 221 (Fla. 1919). The state may reasonably exercise its police power to regulate the use of both private land and waters to protect the environment. Odom v. Deltona Corp.; Oyster Bay; supra. Therefore, Batell's rights in her submerged land are subject to the Department's regulations on dredge and fill and mangrove alterations. Accordingly, I accept the Department's Exception No. 1 and reject any implied conclusion of law that Batell had certain riparian or other vested rights which would prevent the Department from requiring a dredge and fill permit for removal of the mangrove tree. Also, Finding of Fact No. 11 embodies a conclusion of law that the function of mangrove seedling propagation in the area is a "false [i.e., irrelevant] concern because mangroves were purposely removed from the area when the development was created." This conclusion of law is erroneous for the same reason as stated above. The right of Batell in her submerged lands are subject to the reasonable exercise of the police powers of the state. Therefore, I reject the embodied conclusion of law, but otherwise accept Finding of Fact No. 11. Finding of Fact No. 13 states: There was no reliable, empirical evidence provided by the Department at hearing to justify its preliminary finding that the tree removal was contrary to the public interest pursuant to Section 403.918(2), Florida Statutes. note that this statement may construed as containing an implied conclusion of law that the Department has a burden of showing that the proposed dredge and fill activity is contrary to the public interest. In fact, the burden is on the applicant to show that the project is not contrary to the public interest. Section 403.918(2), Florida Statutes; Florida Dept. of Transportation v. J.W.C. Company, 396 So.2d 778 (Fla. 1st DCA 1981); Young v. Dept. of Community Affairs; 567 So.2d 2 (Fla. 3d DCA 1990). I reject any such implied conclusion of law, but otherwise accept Finding of Fact No. 13. 4/ In sum, I accept the findings of fact in the Recommended Order except to the extent they embody or imply conclusions of law as noted above. RULINGS ON EXCEPTIONS TO CONCLUSIONS OF LAW In Exception No. 2, the Department takes exception to the conclusion of law that the Department is estopped from denying the requested permit. The Hearing Officer concludes that under the rule of Odom v. Deltona Corp., 341 So.2d 977 (Fla. 1976), the Department is equitably estopped from denying the permit to remove the mangrove tree because (1) ownership in the submerged land was acquired by the original developer as part of an overall project plan for the community; (2) public officials acquiesced in the development which included the removal of the original mangrove fringe, and (3) private persons such as Batell purchased the land in reliance on the development plan. In Odom the Board of Trustees of the Internal Improvement Trust Fund ("Trustees") sought to require permits for dredging and filling in navigable waters in which the Trustee's and Odom made conflicting claims of ownership. The court found, among other things, that the Trustees had previously purported to have conveyed the submerged lands at issue and were now estopped from attacking the validity of the earlier conveyance in light of the fact that (1) the conveyances were more than 30 years old, (2) the Trustees had made no effort of record to reclaim the lands, (3) the Trustees had acquiesced in the development of the land, and (4) private parties had entered into contracts in reliance on the development. Odom, however, is not applicable to this case. There the Trustees attempted to invalidate their prior conveyance. Here, the Department is not attacking the validity of the prior development; rather, it is merely applying current regulations to the present existing situation. It is established law that, absent a basis for equitable estoppel, the state's acquiescence in the earlier lawful removal of the mangrove fringe does not preclude the Department from apply current regulations to the removal of existing mangrove trees. See Department of Environmental Regulation v. Oyster Bay Estates, 384 So.2d 891 (Fla. 1st DCA 1980) Nor is there any basis to equitably estop the Department from applying current regulations to the removal of existing mangrove trees. Equitable estopped will be found against a state agency only in rare instances and under the most exceptional circumstances. Reedy Creek Improvement District v. Department of Environmental Regulation, 486 So.2d 642 (Fla. 1st DCA 1986); Department of Environmental Regulation v. C.P. Developers, 512 So.2d 258 (Fla. 1st DCA 1987). Thus, a state agency will be equitably estopped only when (1) the state agency has made a representation of a material fact that is contrary to a later asserted position, (2) the party seeking to estop the agency has relied on the representation, and (3) the party has taken a detrimental change in position caused by the representation and reliance. Reedy Creek; C.P. Developers; supra; Dept. of Revenue v. Anderson, 403 So.2d 397, 400 (Fla. 1981). The Hearing Officer has not found such factors. There was no finding of a representation that the mangrove at issue could be removed without a permit, no finding of reliance on any such representation, and no finding of a detrimental change of position caused by such a representation and reliance. Since there was no finding of ultimate facts necessary to establish equitable estoppel, there is no basis for the conclusion of law that the Department is estopped. Therefore, I accept the Department's Exception No. 2 and reject the Hearing Officer's legal conclusion that the Department is equitably estopped from denying the permit. In Exception No. 3, the Department takes exception to the Hearing Officer's conclusion of law that the denial of the permit to remove a single mangrove tree is an unconstitutional taking of property which can only be lawfully achieved through eminent domain proceedings. Such a conclusion of law must be predicated on a finding that the regulation leaves no economically viable use of the land to the owner. "[A] taking will not be established merely because the agency denies a permit for the particular use that a property owner considers to be the most desirable, or because the agency totally denies use of some portion of the property," so long as some economically viable use of the entire property remains. Department of Environmental Regulation v. MacKay, 544 So.2d 1065 (Fla. 3d DCA 1989) (citing Fox v. Treasure Coast Regional Planning Council, 442 So.2d 221, 226 (Fla. 1st DCA 1983) (emphasis added) . See also, Graham v. Estuary Prop. Inc., 399 So.2d 1374 (Fla. 1981), cert. den., 454 U.S. 1083, 102 S.Ct. 640, 70 L.Ed.2d 618 (1981); Bensch v. Metropolitan Dade County, 541 So.2d 1329 (Fla. 3d DCA 1989), rev. den., 549 So.2d 1013 (Fla. 1989); Florida Audubon Society v. Ratner, 497 So.2d 672 (Fla. 3d DCA 1986), rev. den., 508 So.2d 15 (Fla. 1987). The Hearing Officer made no finding of fact that the Department's decision deprived Batell of all beneficial uses of her property such that there was no remaining substantial economically viable use. Therefore, there can be no determination that a taking occurred. MacKay (and cases cited therein); supra. Furthermore, in order to show a taking, the landowner must show that she was not able to obtain a variance from the Department. Absent a showing that a variance cannot be obtained, there can be no finding of a taking. Department of Environmental Regulation v. MacKay (and cases cited therein) supra. The Hearing Officer made no such finding of fact; therefore, there can be no determination that a taking has occurred. Finally, and most importantly, a DOAH hearing officer lacks jurisdiction to determine issues of inverse condemnation. Bowen v. Department of Environmental Regulation, 448 So.2d 566, 568 (Fla. 2d DCA 1984), aff'd., 472 So.2d 460 (Fla. 1985) ("inverse condemnation actions cannot be adjudicated by administrative boards or agencies") For all of the above reasons I accept the Department's Exception No. 3 and reject the conclusion of law that the denial of the permit constitutes an unconstitutional taking of property. PUBLIC INTEREST TEST Section 403.918(2) (a), Florida Statutes, requires the consideration and balancing of seven factors in determining whether the project is not contrary to the public interest. The Hearing Officer did not make express findings of fact on any of the seven factors, and did not expressly find or conclude whether the project is not contrary to the public interest. Absent express findings on each of the seven factors a remand to DOAH would normally be required. However, in this case inferences as to all but two of the seven factors may be gleaned from Findings of Fact Nos. 7, 10, 12, 14 and 15, and from the Hearing Officer's acceptance of Batell's proposed findings of fact. When these findings of fact are taken as a whole, it can be fairly inferred that the Hearing Officer considered and found that the project would have either a beneficial or at least no adverse impact for all of the factors except for the permanence of the project and the impacts on historical or archaeological resources, which were not at issue in this case. I note that I have serious misgivings and doubts about some of the Hearing Officer's findings of fact. I have particular misgivings regarding her findings that the removal of mangroves can actually have a beneficial effect on water quality, marine productivity, fishing or recreation values, conservation of fish or wildlife, or public health, safety and welfare. I believe such findings are contrary to the great weight of scientific knowledge, and contrary to the implicit findings of the Legislature when it enacted the Mangrove Protection Act, Sections 403.93-.938, Florida Statutes, which generally prohibits the cutting, removal, defoliation, or other destruction of mangroves without a permit. Nevertheless, I am bound by the findings of fact unless, after a full inspection of the record, I conclude that the findings of fact are not supported in the record by any competent substantial evidence. 5/ Section 120.68(10), Florida Statutes; Freeze v. Dept. of Business Regulation, 556 So.2d 1204 (Fla. 5th DCA 1990); Berry v. Dept. of Environmental Regulation, 530 So.2d 1019 (Fla. 4th DCA 1988); Heifetz v. Dept. of Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985). In this case there is no transcript of the hearing, and I have no way of determining whether in fact these findings of fact by the Hearing Officer are supported by any competent substantial evidence. Therefore I am reluctantly bound by the findings of fact. Section 403.918(2), Florida Statutes, requires that the seven factors be balanced to determine whether the project is not contrary to the public interest. It might be inferred from Finding of Fact No. 13, and from the Hearing Officer's acceptance of Batell's proposed findings of fact, that the Hearing Officer balanced the factors and concluded that the applicant had met her original burden of showing that the project is not contrary to the public interest. However, the balancing of the various factors to determine whether the project is not contrary to the public interest is a conclusion of law over which I have final authority and responsibility to determine. 1800 Atlantic Development v. Department of Environmental Regulation, 552 So.2d 946 (Fla. 1st DCA 1989), rev. den., 562 So.2d 345 (Fla. 1990); J.T. McCormick v. City of Jacksonville, 12 FALR 960, 978-9 (DER Final Order, Jan. 22, 1990), rev. on other grounds sub nom., Perry, et al. v. City of Jacksonville, (Florida Land and Water Adjudicatory Comm'n Final Order No. 90-001, Feb. 14, 1991) I may reject a hearing officer's conclusion of law so long as my conclusion of law is consistent with the facts found by the hearing officer and accepted by me. Although I am inclined to reject the Hearing Officer's conclusion that the project is not contrary to the public interest, I am not at liberty to do so because my conclusion would be inconsistent with the Hearing Officer's finding of facts. Accordingly, I must reluctantly accept the conclusion that the project is not contrary to the public interest. MITIGATION In Exception No. 4, the Department takes exception to the fact that the recommendation of the Hearing Officer does not include any requirement for mitigation, even though mitigation was proposed by Batell at the hearing. In view of the fact that I have accepted the Hearing Officer's conclusion that the project is not contrary to the public interest, no mitigation is required. Therefore Exception No. 4 is rejected. Accordingly, it is therefore ORDERED that: Except as otherwise stated herein, the Hearing Officer's Recommended Order is adopted and incorporated by reference; and The Department shall forthwith issue a permit to Petitioner Geraldine V. Batell pursuant to Application No. MA521949293.
Recommendation Accordingly, it is RECOMMENDED: That Petitioner be granted the permit to remove the mangrove three which was preliminarily denied in File No. MA 521949293. DONE and ENTERED this 17th day of January, 1992, in Tallahassee, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of January, 1992. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact are addressed as follows: Accepted. Accepted. Accepted. Accepted. See HO #5, #6, #8 and #9. Accepted. See HO #2, #7, #12 and #15. Accepted. See HO #9, #10, #13 and #16. Accepted. Except for Mr. Steinke's affidavit. See Preliminary Statement. Accepted. See HO #17. Respondent's proposed findings of fact are addressed as follows: Rejected. Contrary to fact. There was only one mangrove. See HO #5, #6, #8 and #9. The rest is accepted. See HO #8. Accepted. See HO #1. Accepted, except there is only one mangrove tree. See HO #5, #6, #8 and #9. One mangrove tree. Otherwise accepted. See HO #2. Accepted. See HO #7. Accepted. Rejected. Contrary to fact. See HO #6. Accepted. Accepted. See HO #1. Accepted. See HO #1 and #2. Accepted. See HO #1 and #2. Accepted. See HO #2. Accepted. Rejected. Cumulative. Rejected. Contrary to fact. See HO #9 - #11. Accepted. See HO #4. (Only one mangrove). Rejected. Contrary to fact. Petitioner does not have a stand of mangroves on her privately owned submerged lands. See HO #4. Accepted. Accepted. One mangrove. Otherwise accepted. One mangrove. Otherwise accepted. Rejected. Contrary to fact. See HO #17. Rejected. Irrelevant. See HO #16. Contrary to fact. See HO #10. Rejected. Irrelevant. See HO #16. Contrary to fact. See HO #10. Rejected. Contrary to fact. See HO #10. Rejected. Contrary to fact. See HO #10. Accepted. (One mangrove) Accepted, generally but not on this site. See HO #10. Rejected. Contrary to fact. See HO #10, #13 and #16. COPIES FURNISHED: GERALDINE V BATELL 1184- 79TH STREET S ST PETERSBURG FL 33707 DOUGLAS BEASON ESQ ASST GENERAL COUNSEL DEPT OF ENVIRONMENTAL REGULATION 2600 BLAIRSTONE RD TALLAHASSEE FL 32399 2400 CAROL BROWNER, SECRETARY DEPT OF ENVIRONMENTAL REGULATION TWIN TOWERS OFFICE BLDG 2600 BLAIRSTONE RD TALLAHASSEE FL 32399 2400 DANIEL H THOMPSON ESQ GENERAL COUNSEL DEPT OF ENVIRONMENTAL REGULATION 2600 BLAIRSTONE RD TALLAHASSEE FL 32399 2400
The Issue Is Petitioner entitled to compensation for the sale of agricultural products, and, if so, how much?
Findings Of Fact On or about August 28, 2001, Petitioner sold F.O.B. (Free on Board) at Petitioner's farm to P.S.L. Landscape Services Inc. (hereafter, PSL), 16 Crepe Myrtle trees 14 feet tall and 5 Live Oak trees 2.5 -3.0 inches in Diameter Breast High for a total costs, including tax, of $4,208.20. These trees were dug and wrapped in accordance with the standards of the American Association of Nurseryman in the afternoon of August 30, 2001. The tree roots balls were 40 inches in diameter, and the root balls were placed in wire baskets lined with burlap. The trees were placed upon a flatbed truck with the tops of the trees resting on a rack, and the entirety of the trees, except the roots, covered with a plastic screening material used for this purpose to keep the leaves from becoming wind burned in transit. The trees were transported overnight to PSL where they were received Broward County the following morning at 8:00 a.m. The trees were received and signed for by a representative of PSL, Randy Smith. The documents accompanying the shipment were introduced as part of Petitioner's Composite Exhibit 1. The first of these documents signed by Smith states: Attention: We do not replace trees. If trees are not in satisfactory condition when received, do not accept them. So please take care of your trees. Refer to watering guide in our catalog. The second document signed by Smith provides in bold type at the bottom of the page: DO NOT REFUSE TO UNLOAD THE TRUCK. If there is a serious problem and you question the merchandise, call our office immediately. Our number is 352 493 2496. PSL provided the freight company two checks, one to the freight handler for the freight and the other for 4,208.20 to Petitioner. This check was delivered to the Petitioner by the freight company and deposited by the Petitioner in due course. The Petitioner was notified several days later that a stop payment order had been received on the check for $4,208.20 by PSL. This was the first time the Petitioner was aware of a problem with the merchandise. PSL had not contacted the Petitioner about any problem with the shipment. When Mr. George Kijewski of PSL was contacted regarding the stop payment order, he responded that the trees had wilted. He wrote a letter dated December 21, 2001, to the Department of Agriculture in which he stated: Our firm ordered material from A.D. Andrews Nursery for one of our projects. Two Live Oaks were not number one as ordered. The Crepe Myrtle came in bone dry, not wet as the nursery states. The nursery dug up the plant material ordered and left items in the field until they were loaded onto truck for delivery. They never went to holding area prior to loading to get watered or hardened off. When we got them they were wilting . . . [.] Mr. Deming was present when the trees were prepared. Mr. Kijewski was not present when the trees were prepared. Mr. Deming described the manner in which the trees were dug, prepared for shipment, and shipped. The Crepe Myrtles were dug using a tree spade; the root balls were placed in burlap- lined wire baskets; and the trees placed on the trailer bed where they were secured and covered with a plastic screen to protect them from wind in transit. The Oaks were handled in a similar manner. The trees were not watered; however, the area had received approximately 1.5 inches of water in the seven days prior to shipment. The roots were wet enough to cause the burlap to be damp. The shipping documents do not reflect any wilting or problems although the documents, as quoted above, advised that product should not be received if not in good shape. No notes were made upon receipt reflecting the alleged poor condition of the trees. The trees were sold F.O.B. at Chiefland, and were the property of PSL when loaded.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department enter a final order adopting these findings and conclusions of law, directing PSL to pay to Petitioner $4,208.20 within 14 days of receipt of its final order; and, if PSL fails to abide by the Department's order, directing the surety to make good on its bond in the amount of $4,208.20. DONE AND ENTERED this 30th day of April, 2002, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 April, 2002. COPIES FURNISHED: Andy D. Andrews A. D. Andrews Nursery Post Office Box 1126 Chiefland, Florida 32644 Brenda D. Hyatt, Bureau Chief Department of Agriculture 541 East Tennessee Street Tallahassee, Florida 32308 George Kijewski P.S.L. Landscaping Services, Inc. Post Office Box 9421 Port St. Lucie, Florida 34985 Deborah A. Meek Cumberland Casualty & Surety Company 4311 West Waters Avenue Suite 401 Tampa, Florida 33614
Findings Of Fact On March 30, 1978, Lee County applied to the Department for permits pursuant to Chapters 253 and 403, Florida Statutes, to improve the existing Daniels Road in Lee County, Florida, from a two lane unimproved facility to a two lane paved road. The project site is located in southeastern Lee County, Florida, and crosses Six Mile Cypress Swamp. The proposed improvement would require excavation of material from submerged lands of waters of the state to remove a part of the existing dirt roadbed, placing of fill material onto submerged lands of waters of the state to widen the existing roadbed, and construction of two concrete bridges and two variable crest weirs. After receipt of the application, the Department reviewed the application, and, after consultation with Lee County officials, recommended issuance of the requested permit subject to the following conditions: Elimination of a proposed bicycle path; Deletion of a proposed spreader ditch and the dredging necessary for that ditch; Formulation and submission to the Depart- ment by Lee County of an acceptable management plan and schedule for maintaining water levels and indigenous swamp communities within the swamp; Organization of a Melaleuca Control Committee, together with preparation and implementation of a program to eradicate melaleuca within the right- of-way; and Revegetation of willows in the construction area. In their Amended Petition, Petitioners contest the proposed issuance of the requested permit on grounds that the permit condition requiring development of an acceptable water management plan should be accomplished prior to issuance of the permit; that the long range environmental impact of the proposed project has not been assessed; that the application does not contain information sufficient to give reasonable assurances that it will no result in deterioration of water quality; that insufficient information has been provided to demonstrate that the project will not have an adverse long-range impact on the conservation of fish, marine and wildlife, or other natural resources; that the aquifer recharge area adjacent to the proposed project will be substantially reduced; that sheet flow of overland water will be irretrievably altered; that land uses surrounding the Six Mile Cypress Swamp will contribute to deteriorating water quality; that elimination of the proposed bicycle path would deny Petitioners the right to utilize pedestrian, energy conserving and/or non-polluting transportation; and that the health and welfare of the Florida panther will be threatened by construction in the Six Mile Cypress Swamp which serves as habitat for this endangered species. Petitioners allege in their Amended Petition that their substantial interests would be affected ". . . in that Petitioner Joseph H. Burgess, a resident of Daniels Road, may suffer from downstream flooding as a result of issuing this permit." The Amended Petition alleged that Petitioner, Sierra Club - Calusa Group would be substantially affected by the proposed agency action in that they would ". . . be deprived of an area utilized for nature study . . .," in that the project would ". . . seriously impair the group's ability to study bird life and enjoy the natural scenic beauty of a presently relatively undisturbed area. . . ." The Amended Petition also alleged that Petitioners, Mary Ann Wallace and Joseph H. Burgess, would be substantially affected ". . . as nearby residents, who will be denied the right to enjoy a proposed regional park on the south side of Daniels Road in the Six Mile Cypress Swamp as a direct result of issuing this permit." Neither Joseph H. Burgess, Ellen Peterson, nor any representative testifying on behalf of Sierra Club - Calusa Group appeared or testified at the final hearing in this cause. The only named petitioners appearing and testifying at the final hearing were Mary Ann Wallace and Thomas Geary. Neither of these petitioners offered any testimony to establish that they owned property in Lee County, Florida, that they used any of the waters or other natural resources in the area of the Six Mile Cypress Swamp for nature study, recreation or other purpose, or that they would personally be injured or otherwise affected by issuance of the requested permit or the alleged environmental impacts arising therefrom. At the conclusion of Petitioners' case, the Department and Lee County moved to dismiss the Amended petition on grounds that Petitioners had failed to establish that their substantial interests would be affected by the proposed agency action as required by Section 120.57, Florida Statutes, which motions were granted.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that a final order be entered by the State of Florida, Department of Environmental Regulation, dismissing the Amended Petition in this cause. DONE AND ENTERED this 27th day of February 1979 in Tallahassee, Florida. WILLIAM E. WILLIAMS Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of February 1979. COPIES FURNISHED: Isaac Anderson, Esquire 2115 Main Street Suites A and B Fort Myers, Florida 33901 Ray Allen, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Thomas M. Brondstetter, Esquire Assistant Lee County Attorney Post Office Box 398 Fort Myers, Florida 33902 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION ELLEN PETERSON, et al., Petitioners, vs. CASE NO. 78-1467 STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION and LEE COUNTY BOARD OF COUNTY COMMISSIONERS, Respondents. /
Findings Of Fact Respondent 360 North Corporation is seeking a permit to fill .05 acre of land dominated by submerged and/or transitional plant species as defined by the DER. The purpose of this fill is to enable Respondent 360 North Corporation to construct a residential building on its property. Respondent 360 North Corporation has proposed to create .15 acre of wetland habitat on its land in the vicinity of the proposed fill area to compensate for whatever detriment may ensue as a result of the .05 acre fill. Respondent 360 North Corporation has produced evidence, uncontroverted at the hearing, that it is the record owner of the real property for which the permit is being sought and of the area in which the proposed mitigation is to be conducted. Respondent 360 North Corporation established by testimony that there was no practical alternative by which the two proposed buildings could be located within the property without requiring significant modification to the buildings' structure or without the use of fill. Credible expert testimony characterized the vegetation within the .05 acre fill area as dominated by black mangroves (Avicennia gerrninans) and white mangroves (Laguncularia racemosa), all of which are less than 2.5 feet in height. The proposed fill activity is to be conducted in wetlands contiguous to Longboat Pass, Sarasota County, Florida, described by the DER as a Natural Class III Water Body. Respondent 360 North Corporation's witness testified that the placement of .05 acre of fill as proposed will have no significant effect upon the water quality in Longboat Pass. Respondent 360 North Corporation submitted a proposal for wetland habitat creation with its modified permit application. This proposal indicates the methodology by which the mangroves from the area to be filled will be transplanted to the mitigation area. It also indicates that the proposed fill will have a gradual slope and will be replanted with wetland herbaceous vegetation to prevent erosion. Testimony by 360 North Corporation's expert witness established that with proper planting and monitoring, the mitigation area would have an 80 percent chance of success barring any unforeseen acts of nature such as an extreme frost or hurricane. In addition, the expert testified that once established the mitigation area will create an environmentally superior habitat to that now existing in the area to be filled and would add to the stability of the shoreline at the north end of Longboat Key. The expert for Respondent 360 North Corporation testified that transplantation should be done in the spring of the year, preferably in March. In addition, he recommended that the trees be removed with a tree spade and replanted on four-foot centers. Additional mangrove plants and seedlings from nursery stock should be planted in the understory on two-foot centers. It was also recommended that a monitoring program be initiated to ensure survival of the trees in the mitigation area. The trees should be monitored at weekly intervals for the first six weeks, decreasing to biweekly intervals for the remaining first year, then at semiannual intervals for two additional years. The parties agreed to resolve this dispute if the requested permit was issued containing conditions requiring planting and restoration as outlined by Respondent 360 North Corporation's expert in his testimony at the hearing and in the proposal submitted to the DER with the modified permit application. Respondent 360 North Corporation agreed to revegetate with wetland vegetation the area disturbed by the use of scaffolding or other equipment employed during construction. Respondent 360 North Corporation additionally agreed to post a bond or other form of financial assurance in the amount of $10,000 with the DER to insure compliance with the conditions of the permit.
