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 David W. Shepard is President of Loreda Development, Inc., which has developed Lake Suzy Estates on approximately 160 acres in the southwestern portion of DeSoto County, bordered by Kings Highway. Lake Suzy includes approximately 245 single family lots, 100 of which are sold, with a 42 acre man-made lake. High density and commercial areas are also designated within Lake Suzy. Development of Lake Suzy began in 1972 and is still underway. There are approximately 2 1/2 to 3 miles of asphalt-top roads within Lake Suzy. Construction of these roads began in 1974 and was completed in 1984. On or about September 26, 1985, Petitioner issued a Notice to Show Cause charging that, "Respondent has failed to construct the completed roads and drainage improvements in accordance with DeSoto County specifications, in violation of Section 498.033(2), F.S." The County Engineer for DeSoto County, George Solana, testified that roads and drainage improvements within Lake Suzy do not meet DeSoto County specifications, and Eugene E. Waldron, Jr., County Administrator, testified that the county has not accepted the roads or drainage improvements in Lake Susy for maintenance. In September, 1982, Shepard met with Solana and was informed of several conditions he had to meet to bring Lake Suzy's roads and drainage improvements into conformance with county specifications. Shepard then applied for a permit on September 16, 1982, which was issued on November 1, 1982, subject to conditions enumerated by Solana in a letter dated September 8, 1982. In March, 1985, Solana reviewed the roads and drainage improvements in Lake Suzy and found that most of the deficiencies and conditions noted in 1982 remained. Solana categorized these remaining deficiencies in a letter to the County Administrator, Waldron, dated March 28, 1985 and revised April 5, 1985, as follows: Drainage easements Cross-sections Materials and quality control Existing construction Inlet grates and steel end sections Street and traffic control signs Grassing Certificate of satisfactory completion Other deficiencies At the time of the hearing on February 20, 1986, only the drainage easement deficiencies had been corrected in accordance with DeSoto County specifications. Shepard testified he was fully aware of Solana's conditions in 1982 and the remaining deficiencies noted in 1985. Further, he had tried to correct the deficiencies and meet these conditions for compliance with DeSoto County specifications. He does not dispute that the deficiencies noted by Solana as still existing in 1985 would have to be corrected to comply with the county public works manual. The Order of Registration for Lake Suzy, issued by Petitioner on June 4, 1973, includes a Public Offering Statement which states that roads will be installed to the specification of DeSoto County and will be maintained by the county. As revised on October 21, 1980, the Public Offering Statement includes the same statement about road improvements in Lake Suzy. Respondent has failed to comply with this provision in its Public Offering Statement.
Recommendation Based upon the foregoing, it is recommended that Petitioner issue a Final Order which requires Respondent to comply with Section 498.033(2), Florida Statutes, within one year by bringing roadways within Lake Suzy into compliance with DeSoto County specifications and by requesting that DeSoto County accept said roads in their road maintenance system, and further providing that failure to comply with said Final Order within the one year period shall result in a one-year suspension of Respondent's registration and a civil penalty in the amount of $10,000. DONE and ENTERED this 14th day of March, 1986, at Tallahassee, Florida. DONALD D. CONN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of March, 1986. COPIES FURNISHED: Thomas L. Barnhart, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 David W. Shepard, President Loreda Development, Inc. 910 Kings Highway Lake Suzy, Florida 33821 James Kearney, Director Division of Florida Land Sales Condominiums and Mobile Homes 725 South Bronough Street Tallahassee, Florida 32301 Richard B. Burroughs, Jr., Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 APPENDIX Rulings on Petitioner's Proposed Findings of Fact: 1 Adopted in Finding of Fact 1. 2-3 Adopted in Finding of Fact 8. 4 Adopted in Finding of Fact 6. 5 Adopted in Finding of Fact 7. 6-7 Accepted although not necessary as a finding of fact. The weight of the evidence supports Petitioner's position after considering all evidence presented by Respondent. 8 Adopted in part in Finding of Fact 1. Rulings on Respondent's Proposed Findings of Fact: 1-3 Rejected after considering all evidence presented. Respondent's position is not based on competent substantial evidence.
Findings Of Fact ARCJ Land Investments, Inc. was issued a permit by DER to maintenance dredge 1320 cubic yards of bottom material waterward of mean high water (MHW) in a semi-circular area approximately 450 feet long and 40 to 100 feet wide, and to construct approximately 1650 square feet of along shore dock. The dredged depths will be 2.4 feet at mean low water (MLW) on the east side of the drainage ditch along the west portion of the project sloping to a 6.6 feet MLW on the east end of the project area. The dredged depth viII slope from 2.4 feet to 3.4 feet MLW from the west side of the drainage ditch along the west portion of the project area. (Exhibit 5). Petitioner is the record owner of the area to be dredged and of the upland spoil site disposal area. The waters involved are Class III waters. The dock to be constructed along the shoreline is some 235 feet long and 4 feet wide with a 20 foot by 30 foot platform on the easternmost end. Dredging will start at the face of the dock and the area will be dredged to a maximum depth of 4.5 feet MUD at the end nearest to the Intracoastal Waterway (ICW) and 2.4 feet MLW at the shallowest part alongside the dock. The depth will increase from the dock towards the ICW on a 3 to 1 slope. The dredging will provide access to the dock from the ICW with channels at both ends of the mangrove island located between the proposed dock and the ICW. No shoreline mangroves or black rush will be removed or destroyed by dredging or dock construction. Dredging will be accomplished by hydraulic dredge. Spoil will be pumped to a self-contained upland-like disposal site to prevent return to waters of the stage. Respondent will use a "mud cat" hydraulic dredge which provides better control of the suction head and which creates little turbidity. Turbidity control devices will be utilized to contain turbidity to the immediate project site both at the dredge site and at the spoil site overflow. Neither the dredging nor tee deck construction will cause long or short term water quality degradation. The 3 to 1 slope provided will improve tidal flushing of the area and deter siltatlon. The proposed dredge area is ecologically a low productive area comprising less than 0.7 acres on which only one 10-foot diameter marine grass patch was observed. The balance of the area to be dredged is primarily sugar sand with two depressions between the mangrove island and the shore in which silt and clay sediments have settled. Bottom grab samples showed that for the most part the macro benthic infauna is primarily a detritus feeding worm community. No specimens of commercial species of bivalve clams were collected or observed. No quantitative measurements of the biomass of the benthic organisms in the dredged area were taken, however, from the evidence presented, it is an area of low productivity. Oysters were observed attached to the mangrove roots on the lee side of the mangrove island, but few were observed on the side adjacent to the ICW. No oyster beds were observed in the area to be dredged. Small fish observed in the area to be dredged consisted of bay anchovies, sand brim and mullet. Since very few bottom grasses grow in the project area, no sanctuary for juvenile fishes here exists. Under these conditions few fish would be expected to inhabit this area and the evidence presented confirms this conclusion. While removal of the dredged material will perforce remove those benthic organisms living n this soil layer, little other change will result and recolonization of the area will soon take place. Installation of the piers will provide facilities suitable for shellfish to attach thereto and this, in turn, will attract additional species of fish. As a result, no discernible reduction in the productivity of the area will ensue from the proposed project. Manatees are frequently seen in Hatchett Creek which opens to the ICW across the channel from the proposed site. No evidence was presented that manatees frequent the project area. To the contrary, the evidence presented is that there is now insufficient depth at the project site for the manatees. Furthermore, the paucity of grasses for feeding makes the area an unlikely one in which manatees would congregate. Construction of the proposed dock will not attract additional manatees to the area nor will it materially increase the boat traffic in the ICW or increase the risk of collision between boats and manatees. Several witnesses testified that the proposed project would be contrary to the City of Venice's Comprehensive Plan; however, the excerpts from the Plan which were read into evidence failed to establish the objectives of this Plan differ from the objectives of Chapter 253, Florida Statutes, and Chapters 17-3 and 17-4, Florida Administrative Code. No facilities are proposed for installation on the dock which would make it suitable for commercial vessels. No electricity, water or sewage facilities are being offered and no accommodations are being provided to attract other than small transient boats to bring customers to Respondent's restaurant. Although this project was opposed by the City Council, the testimony of those witnesses presented at the hearing shows that a great number of people living in Venice support the project and believe that it wild help the area, benefit downtown business and assist the healing public. Some witnesses opposed the project because they opposed any damage to the ecology, however slight, and regardless of the public benefit to be derived from the project. Others opposed the project on the basis that additional facilities would introduce additional people to the area, and thereby reduce those residents' opportunity to live in an uncrowded area. In Public Notice issued jointly by DER and U.S. Army Corps of Engineers advising interested parties of the dredge and fill permit here involved, the notice provided that the comment period ends April 4, 1980. However, on 28 March 1980 ARCJ Land Investments, Inc. was issued a permit for this project. Thereafter, petitioner on 5 May 1980 was notified that the permit had been issued and that the issuance of the permit could be appealed within 15 days of notification. That appeal by Petitioner led to the same hearing that would have resulted had the objections of the Petitioner been received before the issuance of the permit. Rule 17-4.28(11)(d) , Florida Administrative Code, provides generally that every application for a permit shall be approved or denied within ninety days after receipt of the original application. This 90-day period would have passed before the time for comment given in the joint Public Notice. Respondent was required to issue or deny the permit before the time noticed for comment passed. Thereafter, when Petitioner's objections were received, construction under the permit was stayed pending this administrative hearing and the issuance of a final order by DER. The parties stipulated that if an official in the City Zoning Department were called, he would testify that construction of the dock would violate the City Zoning Ordinance.
The Issue The issues are whether Keith Rockman's construction of a dock and other structures on Choctawhatchee Bay in Fort Walton Beach, Florida, is exempt from Wetland Resource Permit requirements, and whether authorization to use sovereign submerged lands for the project should be given.
Findings Of Fact Based on the evidence presented by the parties, the following findings of fact are made: On December 19, 2005, Mr. Rockman, who lives at 325 Brooks Street, Southeast, Fort Walton Beach, Florida, filed an application with the Department's Northwest District Office in Pensacola requesting authorization to construct a platform seven feet wide by eight feet long; an access pier three feet long; another access pier four feet wide by forty-five feet long; four mooring pilings outside the slip; and ten mooring pilings inside the proposed slip, totaling 371 square feet. The application indicated that the proposed construction activities would take place in the Choctawhatchee Bay, a Class III water of the State, on which Mr. Rockman's property fronts. (This waterbody is more commonly known as the Santa Rosa Sound or the Intracoastal Waterway.) The property already had an existing 25-foot dock when Mr. Rockman purchased the property sometime in 2005; however, because Mr. Rockman wishes to dock a larger boat than the prior owner, he has requested authorization to build the structures in issue here. Based upon the information supplied by the applicant, Diana Athnos, an Environmental Manager with the Northwest District Office, advised Mr. Rockman by letter dated January 31, 2006, that the Department had "determined that [his] project is exempted from [the Department's] Wetland Resource Permit requirements by Rule 62-312.050(1)(d), Florida Administrative Code." The letter also stated that the "letter is your authorization to use sovereign submerged land (if applicable) for the construction of your project, as required by Chapter 253.77, Florida Statutes and Chapter 18-21, F.A.C." After Department approval was obtained, Mr. Rockman completed construction of the project. Mr. Rockman elected not to publish notice of the Department's decision or provide notice by certified mail to specific individuals. Therefore, third parties were not barred from challenging the Department's decision until after they received actual notice. Petitioner, who lives next door to Mr. Rockman, learned about the Department's decision in a telephone call with the Northwest District Office on March 8, 2006. The papers filed in this case indicate that Petitioner and other neighbors had actually observed construction activities on Mr. Rockman's property in November 2005 and had filed complaints with the Department regarding these unauthorized activities. These complaints evidently led to the filing of an application by Mr. Rockman. On March 17, 2006, Petitioner, who resides at 328 Brooks Street, Southeast, Fort Walton Beach, and has 50 feet of frontage on the water with a dock extending into those waters, filed a letter with the Department, which was treated as a Petition challenging the Department's earlier decision. This Petition was later dismissed by the Department on the ground it raised claims concerning Petitioner's riparian rights, a matter beyond the Department's jurisdiction. Petitioner then filed an Amended Petition on July 11, 2006, in which he again contended that his riparian rights would be severely restricted by the proposed activities, and that the dock would create a navigational hazard. Although Florida Administrative Code Rule 62-312.050(1)(d)3. requires that a project not "create a navigational hazard" in order to be exempt from permitting requirements, Petitioner opted to base his claims on two provisions in Florida Administrative Code Rule 18-21.004(7), which contains the general conditions for authorizations to use sovereign submerged lands. The riparian rights issue was again excluded from consideration at a status conference held on January 5, 2007. The parties advise that this issue is now being pursued in a separate action in circuit court. Through the introduction into evidence of its complete permit file as Department Composite Exhibit 1, the Department established that the proposed activities are exempt from permitting requirements under Florida Administrative Code Rule 62-312.050(1)(d). More specifically, the activity will take place in waters which are not located in Outstanding Florida Waters; the structures are less than 1,000 square feet of surface area over the landward extent of waters of the State; they will be used for recreational purposes; they will be constructed on pilings; they will not substantially impede the flow of water or create a navigational hazard; and the structure is the sole dock constructed pursuant to the exemption as measured along the shoreline for a minimum distance of 65 feet. The dock and associated structures and pilings will be constructed over sovereign submerged lands owned by the State of Florida. Under Florida Administrative Code Rule 18-21.005(1), which specifies the forms of authorization for consent to use sovereign submerged lands, "no application or written authorization is required for an activity that is exempt from the requirements of obtaining a permit," so long as certain conditions are met, including those found in Florida Administrative Code Rules 18-21.004(7). See Fla. Admin. Code R. 18-21.005(1)(b). The only relevant condition raised in the Amended Petition is whether or not the "[s]tructures or activities shall . . . create a navigational hazard." Fla. Admin. Code R. 18-21.004(7)(g). In construing this rule, and the similar requirement in Florida Administrative Code Rule 62- 312.050(1)(d)3., the Department considers whether the structures will create a navigational hazard for boaters on the Intracoastal Waterway, as well as the owners of property who reside on either side of Mr. Rockman. In his Amended Petition, Mr. Woolshlager contended that the proposed structures or activities will create a navigational hazard when he accesses the dock in front of his property. As clarified at hearing, Petitioner does not dispute that he (or any "good boat driver") has adequate ingress and egress for his smaller boat, even with the larger dock on Mr. Rockman's property. Indeed, the record shows that he has been observed leaving his dock and accessing the Intracoastal Waterway. However, Petitioner indicated that if he should die, his wife intends to sell the property. If the new purchaser desires to dock a larger boat, he fears that there will not be sufficient room to do so, and the value of his property will be diminished. Through testimony from a licensed boat captain, it was established that Mr. Rockman's dock does not create a navigational hazard for boaters in the Intracoastal Waterway whose boat channel lies at least 600 feet or so from the shoreline, or for property owners on either side of the applicant's property. Although Petitioner cannot dock a larger boat than he now has (a 21-foot boat), this is because he needs to dredge out the area where his existing dock is built and reconfigure its shape. (Mr. Woolshlager agreed that his dock actually encroaches a few feet onto Mr. Rockman's property; however, Mr. Woolshlager advises that the prior owner (who sold the property to Mr. Rockman) agreed to this encroachment when he purchased the property.) Therefore, all criteria have been satisfied.
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 granting Mr. Rockman's application for an exemption from permitting requirements and authorization to use state-owned submerged lands. DONE AND ENTERED this 7th day of May, 2007, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER 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 7th day of May, 2007. COPIES FURNISHED: Lea Crandall, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 John N. C. Ledbetter, Esquire 4641 Gulfstarr Drive Suite 102 Destin, Florida 32541-5324 Nona R. Schaffner, Esquire Amanda G. Bush, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Michael William Mead, Esquire John S. Mead, Esquire Michael Wm Mead, P.A. Post Office Drawer 1329 Fort Walton Beach, Florida 32549-1329 Gregory M. Munson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Michael W. Sole, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact Applicant-Respondent Atwater owns a residence fronting on Lake Minnehaha with access to the lake. He proposes to construct a dock from his property extending into the lake a distance of approximately 100 feet until adequate depth of water is found where his boat can be launched and retrieved. The boat house proposed for construction at the end of the dock will be roofed, but of open construction. Lake Minnehaha is a meandered lake. Accordingly the lake bottom below the mean high water line is sovereign land under the jurisdiction of the Trustees of the Internal Improvement Trust Fund (IITF). Numerous docks, some with enclosed boat houses, exist at various places around the perimeter of the lake. One such dock and boat house fronts on property just west of Atwater's property. Kling's property is adjacent and eastward of Atwater's property. Kling has a boat dock (but no boat house) extending from his property into the lake. Photographs showing views from applicant's and Kling's property are labeled to indicate that Kling's property is west of Atwater's; however, the conflict in direction is not material to the determination of the issues here involved. These photos further show that Petitioner's view of the lake from his house in the direction of the structure proposed by Atwater is materially blocked by trees and vegetation. The structure proposed by Atwater will commence 20 feet inside the easterly boundary of his property at the shoreline and extend into the lake. The proposed open boat house at the end of the dock will extend 12 feet toward Kling's extended property line, leaving the dock and boat house within the lakeward extension of Atwater's property line. With an open boat house the interference with a view of the lake will be minimal. Construction of the dock and boat house will not create any source of pollution and will not degrade the quality of the water of Lake Minnehaha.
Findings Of Fact On or about January 1986, Petitioner, Peggy Cobb, looked at the land located at 5712 Bay Forest Drive, Pensacola, Florida, the property under consideration in this action. Ms. Cobb was shown the property by Shirley Higdon who allegedly had an ownership interest in the property. At the time Ms. Cobb looked at the property it was forested and she did not notice that it was low property. The property backed up to a man-made drainage ditch, but was not otherwise located close to any body of water. Ms. Cobb liked the property and gave Ms. Higdon a binder of $1,000. She signed a contract to purchase the property when a house of her specifications had been built on the lot. The contract to build the house was with Higdon Homes, Inc., the actual title holder of the property. Higdon Homes' President was C.R. Higdon, the son of Shirley Higdon. The purchase contract signed by Ms. Cobb made Mr. Higdon and Higdon Homes, Inc. responsible for building the house on the property. Ms. Cobb only supplied the house plans. Higdon Homes, Inc. was responsible for the site plan placing the home on the property, determining grade and elevation, obtaining the necessary permits for items requiring permits, and ensuring that the house was otherwise built according to the house plans supplied by Ms. Cobb. Ms. Cobb had no control over Higdon Homes or over the detailed aspects of building the home Ms. Cobb had selected. Ms. Cobb did not control Higdon Homes' hiring and firing of personnel, the work hours of the personnel, or the scheduling of the personnel, or subcontractors. In all respects, Mr. Higdon and Higdon Homes, Inc., would be independent contractors under the purchase contract since Ms. Cobb could not control either party in his or its performance. The fact that she had a general knowledge of the status of the construction project does not in any way take away from the independent contractor status of Higdon Homes and C.R. Higdon. Mr. Higdon and Higdon Homes, Inc., began construction of Ms. Cobb's home sometime in February 1986. That same month, Higdon Homes placed fill material on the Bay Forest Drive property. At no time did Higdon Homes or Mr. Higdon obtain a fill permit from DER for the placement of the fill on the Bay Forest Drive property. Construction went along in a normal fashion until June 25, 1986 when Charles Harp, Respondent's Environmental Specialist, conducted a field inspection of the property and preliminarily concluded that there was fill placed on wetlands within DER's jurisdiction. Ms. Cobb discovered that DER had conducted a field inspection when an employee of Higdon Homes told her about a "DER person inspecting the property and indicating that it was in violation of DER Rules and Regulations." Ms. Cobb immediately called DER and spoke with Elizabeth Petty, an Enforcement Specialist with DER in dredge and fill and storm water permitting. Ms. Cobb was, understandably, very upset since the field inspector indicated there was a violation regarding the fill's placement and that she may not be able to further fill her very wet backyard. This was her dream home and the dream was suddenly developing problems. She was only two days away from closing on her house and didn't know what to do. Ms. Petty advised her to call back the next day to talk to the field inspector Charles Harp. Ms. Cobb called Mr. Harp the next day. Mr. Harp indicated to her that she would have to remove the fill and perhaps tear down her house since a corner of the house appeared to be in DER jurisdiction. Ms. Cobb became even more upset. At this point, Ms. Cobb was under extreme pressure from Mr. Higdon to close on the house. Mr. Higdon assured her that nothing would happen and DER would only fine him and he would be able to fill the land anyway. She contacted two attorneys who advised her to go ahead and close the sale, but close contingent on the builder correcting any deficiencies or developing DER problems. Ms. Cobb followed the advice of these attorneys and closed on the house on June 27, 1986. That same day Cliff S. Rohlke, Jurisdictional Specialist for DER, performed an inspection to formally determine the landward extent of DER's jurisdiction over the Bay Forest Drive property. His inspection revealed the property was adjacent to a man-made ditch flowing continuously into Ramsey Canal. Ramsey Canal then flows continuously into Perdido Bay. The original soil beneath the fill was hydric soil. There was no canopy on the property. However, the adjacent lots were undisturbed and Mr. Rohlke observed several plant species identified by rule as being submerged wetland plants growing. Based on his observations, it was Mr. Rohlke's opinion that DER's jurisdiction extended across the back of the lot, beginning approximately 20 feet west of the eastern lot line and crossing the property diagonally until exiting the property at the junction of the north and west lot lines. The jurisdictional area included a corner of the house. Fill material was placed in the entire area described by Mr. Rohlke's findings. This area does fall within the landward extend of DER's jurisdiction over wetlands and to the extent fill material was placed in that area without a permit would constitute a violation of Section 403.918, Florida Statutes. On July 8, 1986, approximately two (2) weeks after the closing, Ms. Cobb received a warning letter from DER which outlined the violation and requested removal of the fill and restoration of the property. On June 1, 1987, DER issued Ms. Cobb a Notice of Violation and Order for Corrective Action. The Order of Corrective Action required removal of 45 feet of the illegal fill material and allowed the home and the contiguous fill underneath the home to remain. Under the circumstances the corrections desired by DER are very reasonable.
Recommendation Based on the foregoing Findings of Fact and Conclusion of Law, it is, RECOMMENDED: That the Notice of Violation and Orders for Corrective Action be dismissed against Respondent. DONE and ORDERED this 21st day of April, 1988, in Tallahassee, Florida. DIANE CLEAVINGER 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 21st day of April, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4169 Petitioner Peggy Cobb's proposed findings Numbers 1, 2, 3, 4, 7 and 8 have been adopted, in substance, insofar as material. Petitioner's proposed finding of fact Number 5 has been adopted except for the last sentence which was not shown by the evidence. Petitioner's proposed finding of fact Number 6 is subordinate. Respondent's proposed findings of fact Numbers 1, 4, 6, 7, 8, 10, 11, 13 and 16 have been adopted, in substance, insofar as material. Respondent's proposed finding of fact Number 2 is immaterial as to the present and not shown by the evidence as to the time the fill activity occurred. Respondent's proposed finding of fact Number 3 has been adopted except the evidence showed January to be the contract date. Respondent's proposed finding of fact Number 5 is subordinate. Respondent's proposed finding of fact Number 9 has been adopted except the evidence did not show Petitioner consulted with Higdon. Respondent's proposed findings of fact Numbers 12, 14 and 15 are irrelevant. COPIES FURNISHED: John R. Grass, Esquire 120 South Alcaniz Street Pensacola, Florida 32501 Richard L. Windsor Assistant General Counsel Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale Twachtmann, Secretary Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 =================================================================
The Issue Whether the Petitioner (the District) has the authority and cause to revoke Right of Way Occupancy Permit Number 9591 that permitted Respondent to erect a fence and maintain two oak trees on real property that is subject to the District's maintenance easement and, if so, whether the District has the authority and cause to demand the removal of the fence, the two oak trees, and a key lime tree from the easement area.
Findings Of Fact Respondent is the owner of a single family residence located at 7900 Southwest 173rd Terrace, Miami, Florida. The rear of Respondent's property backs up to the north right of way of the District's C-100 Canal. The C-100 Canal is one of the works of the District and is an essential part of the District's flood control plan. The C-100 Canal system supports surface drainage and flood protection to approximately 40 square miles of Dade County, Florida. The property owned by the District in fee simple includes a strip of land that is adjacent and parallel to the north bank of the canal. This strip of land is twenty feet wide and provides the District with a portion of the land it requires for maintaining the canal. On February 18, 1964, Respondent's predecessor in title executed a document styled "Permanent Maintenance Easement" that granted to the District's predecessor agency an easement on and across a strip of land that constitutes the rear twenty feet of Respondent's property. The easement area is adjacent and parallel to the maintenance strip owned by the District. The instrument granting the easement provided, in pertinent part, as follows: . . . the grantors do hereby grant, bargain, sell and convey unto the grantee . . . its successors and assigns, the perpetual maintenance easement and right for and to the use and enjoyment for canal maintenance purposes of the following described lands . . . for the purpose of ingress and egress in maintaining and operating Canal C-100, one of the works of the District . . ., and for no other purpose, it being understood and agreed that said land shall not be excavated and that no permanent structure of any kind shall be placed thereon. . . . All the covenants and agreements herein contained shall extend to and be binding upon the parties hereto and their respective . . . successors and assigns. On April 9, 1992, the District issued to Respondent Permit Number 9591 which, subject to limiting conditions, authorized certain encroachments by Respondent into the easement area and described those encroachments as follows: 4' high chain link fence enclosure encroaching 20' and 2 trees inside the fenced enclosure within the District's 20' canal maintenance easement along the north right of way of C-100 located at the rear of 7900 Southwest 173rd Terrace. Permit 9591 provided, in pertinent part, as follows: . . . The Permittee [the Respondent], by acceptance of this permit, hereby agrees that he shall promptly comply with all orders of the District and shall alter, repair or remove his use solely at his expense in a timely fashion. . . . . . . By acceptance of this permit, the permittee expressly acknowledges that the permittee bears all risks of loss as a result of revocation of this permit. The District has enacted Rule 40E-6.381, Florida Administrative Code, which provides the following standard limiting conditions of Permit 9591 pertinent to this proceeding: The District's authorization to utilize lands and other works constitutes a revocable license. In consideration for receipt of that licensure, permittees shall agree to be bound by the following standard limiting conditions, which shall be included within all permits issued pursuant to this chapter. * * * (3) This permit does not create any vested rights, and . . . is revocable at will upon reasonable prior written notice. Permittee bears all risk of loss as to monies expended in furtherance of the permitted use. Upon revocation, the permittee shall promptly modify, relocate or remove the permitted use. In the event of failure to so comply within the specified time, the District may remove the permitted use and permittee shall be responsible for all removal costs. * * * (7) The permittee shall not engage in any activity regarding the permitted use which interferes with the construction, alteration, maintenance or operation of the works of the District, including: * * * (c) planting trees . . . which limit or prohibit access by District equipment and vehicles, except as may be authorized by the permit. Among the special limiting conditions of the permit are the following: The permittee is responsible for pruning trees in order that their canopies do not encroach within areas needed by the district for canal maintenance purpose. Upon the request of the district, the permittee shall trim or prune any growth which the district has determined interferes with the district's access, operations, and maintenance. Permittee shall be responsible for the maintenance of the canal right of way within the fenced area and also for the maintenance of the right of way to a point 10 feet outside the fenced area. At the time of the formal hearing, the easement area was enclosed by the fence that Respondent erected pursuant to Permit 9591 and there existed within the easement area two live oak trees and one key lime tree. The two oak trees were approximately ten years old. The evidence did not establish whether Respondent planted (or transplanted) the two oak trees. The key lime tree was planted by Respondent after the issuance of Permit 9591. It is necessary that the C-100 Canal be properly maintained and that the District have access to the canal for routine and emergency maintenance. Following Hurricane Andrew in August 1992, the District developed a maintenance plan for the C-100 Canal. The District did not have an established canal maintenance plan for the portion of the canal relevant to this proceeding at the time it granted Permit 9591. Prior to the development of its maintenance plan, little maintenance had been done on the canal in the area of Respondent's property. The District's decision to revoke Permit 9591 and to demand the removal of the fence and trees is in furtherance of the District's right of way maintenance plan and is only part of the District's enforcement and management efforts to remove permitted and non-permitted encroachments from maintenance easements in this area of the C-100 Canal. Respondent's property has not been singled out for this action. At the time of the formal hearing, Respondent's property was the only area in the vicinity on which the District does not have 40' of unobstructed access adjacent to the canal. Respondent disputes that the District needs access to the portion of his property that is subject to the easement for the proper operation and maintenance of the C-100 Canal. Pertinent to this proceeding, the maintenance plan adopted by the District includes the use of land based equipment for erosion control and mowing of maintenance right of way areas and the routine and emergency dredging of the canal channel. The plan sets forth the anticipated maintenance activities for the area of the canal relevant to this proceeding, the type equipment that will be used, and the amount of right of way that will be required to perform the work. Emergency maintenance of the canal may be required in response to a heavy rain event since the District must be able to respond quickly if a part of the canal becomes clogged with debris. The equipment that the District will likely use for maintenance includes batwing mowers, front end loaders, dump trucks, draglines, and towboats. The District established that the 20' strip of land it owns in fee title does not provide sufficient room for the maneuvering of the heavy equipment that will be required for the routine and emergency maintenance of the canal. These pieces of heavy equipment require 40' of unobstructed land to set up and to operate safely and effectively. The District established that it needs the additional area provided by the easement on Respondent's property to properly perform its operation and maintenance of the C-100 canal. The fence that Respondent erected pursuant to Permit 9591 blocks the District's access to the easement area. Consequently, it is found that the District has cause to revoke Permit 9591 as it pertains to the fence. The District's easement entitles it to unobstructed access to the easement area and provides the District with the authority it needs to demand that Respondent remove the fence. The District established that it has cause to demand that Respondent remove the fence from the easement area. Respondent also disputes that the two live oak trees and the key lime tree that are in the easement area need to be removed even if it is found necessary to remove the fence. In their present condition, the three trees, especially the two oaks, obstruct a major portion of the easement area and interfere with the District's intended use of the easement area. Even if the trees are pruned as they grow to maturity, they will significantly interfere with the District's intended use of the easement. The bases of the oak trees are approximately 2.5' and 6.5', respectively, from Respondent's rear property line within the easement area. The two oaks are approximately the same size and are expected to grow to maturity at the same rate. At the time of the formal hearing, the canopies of the trees were approximately 20' tall and 10' wide. In five years, the canopies are expected to be approximately 25' tall and 25' wide. In ten years, the canopies are expected to be 30' tall and 30' wide. At maturity, the canopies are expected to be 35' tall and 40' wide. The District has cause to revoke Permit 9591 as it pertains to the two oak trees. The District also has cause to demand that Respondent remove the two oak trees from the easement area. The instrument granting the District the maintenance easement provides the District with the authority it needs to demand that Respondent remove the two oak trees. The base of the key lime tree is approximately 10' from Respondent's rear property line within the easement area. Although this is a relatively small tree, its presence obstructs the operation of equipment within the easement area. At maturity the canopy of the key lime tree is expected to be between 12 to 15' in height and between 12 and 15' in width. The tree trunks and the tree canopies obstruct the operation of equipment within the easement area. This interference cannot be resolved by pruning the trees. The District has cause to demand that Respondent remove the key lime tree that he planted on the easement area since that tree was not permitted by Permit 9591 and is contrary to limiting condition 7(c). The existence of the key lime tree is found to interfere with the District's intended use of the easement. The instrument granting the District the maintenance easement provides the District with the authority it needs to demand that Respondent remove the two oak trees.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the District enter a final order that revokes Permit 9591 and demands that Respondent remove the fence, the two oak trees, and the key lime tree from the easement area within thirty days from the date the final order becomes final. DONE AND ENTERED this 6th day of July, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 6th day of July, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-0049 The following rulings are made on the proposed findings of fact submitted by the Petitioner. The proposed findings of fact in paragraphs 1, 2, 4, 5, 6, 7, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 25, 30, 31, 36, 37, 38, 39, 40, and 45 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 3, 8, 28, 29, 41, 42, 43, and 44 are subordinate to the findings made. The proposed findings of fact in paragraph 9 are adopted in part by the Recommended Order, but are rejected to the extent they are unsubstantiated by the evidence. The proposed findings of fact in paragraphs 23 and 24 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 26 and 27 are incorporated as preliminary matters, but are rejected as findings of fact because they are unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 32, 33, 34, and 35 are adopted in part by the Recommended Order, but are rejected to the extent the proposed findings of fact are unnecessary to the conclusions reached. COPIES FURNISHED: Scott Allen Glazier, Esquire South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406 Mr. Robert A. Robinson 7900 Southwest 173rd Terrace Miami, Florida 33157 Samuel E. Pool, III, Executive Director South Florida Water Management District Post Office Box 24680 West Palm Beach, Florida 33416
The Issue The issues are whether David Boston should be issued an environmental resource permit and sovereign submerged lands authorization allowing him to construct 96 linear feet of rip rap revetment; construct a private dock of less than 1,000 square feet; and place 3,500 square feet of fill in non-jurisdictional areas; and whether he qualifies for a general permit to place a fill pad in isolated wetlands adjacent to the St. Johns River, a Class III waterbody.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this permitting dispute between neighbors, Petitioner, Vincent R. D'Antoni, Jr., contends generally that Respondent, David Boston (Boston), will cause flooding to Petitioner's property by reason of placing too much fill on an isolated wetland, which lies in the center of Boston's property. The filling is in conjunction with Boston's efforts to construct a single-family residence and private dock on his property, purchased in June 1998, which lies adjacent to the St. Johns River, a Class III waterbody, in Duval County, Florida. In preliminary decisions made on November 5, 1998, and January 21, 1999, Respondent, Department of Environmental Protection (DEP), "acknowledge[d] receipt" of Boston's intent to use a noticed general permit "to fill less than 4,000 square feet of an isolated wetland to facilitate construction of a single family home" on his lot (Case No. 99-2861), and gave notice of its intent to issue Boston an environmental resource permit and sovereign submerged lands authorization allowing him to construct a rip rap revetment and a dock and to place 3,500 square feet of fill in mainly non-jurisdictional areas (Case No. 99-1916). Although a number of objections were raised by Petitioner in his original filings, as clarified at the final hearing, Petitioner now contends that Boston placed excessive fill on his lot, including an isolated wetland, and that the fill has resulted in flooding, saturated soil, or standing water on Petitioner's property. He also contends that the location of Boston's proposed dock will affect the ability to use his own dock. Because no evidence was presented on the docking issue, and through admissions Petitioner acknowledged that there will be no adverse environmental impacts, no consideration will be given to those objections. Finally, Petitioner does not object to the placement of the rip rap revetment on the shoreline. Accordingly, the request for an environmental resource permit and consent to use sovereign submerged lands in Case No. 99-1916 should be approved. The property in issue lies just south of the Jacksonville University Country Club and a few blocks west of University Boulevard North on Wayland Street, which fronts the eastern side of the St. Johns River in a tract of land known as University Park. Except for the Boston lot, all other waterfront lots are now developed. When facing the river from Wayland Street, Petitioner's lot lies to the right of Boston's lot, while another lot owned by Robert Henderson (Henderson) lies to the left of Boston's lot. The lots are up to 500 feet deep; Boston's lot is around 96 feet wide, while Petitioner's lot has a similar width but narrows to only 20 feet or so near the river. At the river end of the D'Antoni, Boston, and Henderson lots is an area of contiguous wetlands. Until 1995, DEP regulated those wetland areas and this prevented D'Antoni and Henderson from placing any fill in those areas. Under DEP's current wetland delineation rule, however, such areas are non- jurisdictional, and any placement of fill at the river end is outside the purview of DEP's jurisdiction. Before Boston's lot was cleared and filled, it was about a foot lower in elevation than the D'Antoni lot; this was true even though Petitioner has never changed the natural grade of his property since it was purchased and developed. Therefore, water tended to flow naturally from an upland area north or east of the D'Antoni lot, through the D'Antoni lot to Boston's lot, and then through the lower part of the Henderson lot populated by "very mature cypress trees," and eventually into the St. Johns River. According to a 1977 aerial photograph, the Boston lot contained what appears to be a tidal connection from an uplands area through the wetlands on his property to the river. However, construction on property adjacent to the Henderson lot sometime after 1977 severed this connection, and a tidal connection (direct hydrologic connection) to the river no longer exists. Under Rule 62-341.475(1)(f), Florida Administrative Code, "a single family residence" is exempt from the Environmental Resource Program permitting and a general permit will be granted "as long as it is not part of a larger plan of common development," and "the total area of dredging or filling in isolated wetlands for the residence and associated residential improvement shall not exceed 4000 square feet." Since there is no longer a direct hydrologic connection between the wetlands on Boston's property and the St. Johns River, the wetlands are isolated within the meaning of this rule. Availing himself of the foregoing provision, on October 19, 1998, Boston gave notice to DEP "of [his] intent to use a noticed general permit to fill less than 4,000 square feet of an isolated wetland" on his property. He also provided certain drawings and other information (prepared by his surveyor) to show that he qualified for the permit. DEP does not "issue" a noticed general permit; rather, it only determines whether the applicant qualifies for a permit and then "acknowledges" this fact. Accordingly, on November 5, 1998, DEP "acknowledge[d] receipt" of Boston's notice. Although DEP encourages the user of such a permit to notify affected or adjoining property owners, there was no legal requirement that Boston do so, and he proceeded to clear the lot and then fill a part of the wetland area with two or three feet of dirt without giving notice to Petitioner or Henderson, his two neighbors. The filling raised the elevation of the Boston property at least two feet above the D'Antoni and Henderson lots and impeded the prior natural flow of water. At the same time, Boston constructed a three to four-foot timber wall (consisting of railroad ties) on the Henderson property line to retain the fill and a similar two-foot wall on Petitioner's line. These changes had the effect of impounding the water which had previously flowed naturally in a north-south direction through the wetlands from the D'Antoni lot to the Boston lot to the Henderson lot. It also generated runoff from the Boston lot to the D'Antoni lot, which had not previously occurred. When Petitioner observed the adjacent lot being cleared and filled, and the resulting erosion of fill onto his property, pooling of water, and damage to his chain link fence after a heavy rain in January 1999, he filed a complaint with DEP. An inspection was made by DEP, and Boston was told to stop work until corrective changes were made to ensure that such flooding would not occur. After a series of changes were made which satisfied DEP's concerns, the stop work order was lifted. Boston also signed a consent order and paid a $100.00 fine. However, pending the outcome of these cases, no further construction work has occurred. Petitioner has contended that Boston has placed more than 7,200 square feet of fill on his property in violation of the rule, which limits the amount of fill to less than 4,000 square feet. While this amount of filling has in fact occurred, approximately 3,500 square feet of fill was placed in non- jurisdictional areas between the shoreline and the isolated wetlands, and the rule only requires that Boston limit his fill to less than 4,000 square feet on the isolated wetland. Thus, contrary to a suggestion by Petitioner's engineer, the jurisdictional and non-jurisdictional filling are not totaled together to determine whether the threshold within the rule has been exceeded. Through photographs received in evidence and testimony by Petitioner and his wife, it was established that flooding or standing water has occurred on Petitioner's property during heavy rainfalls since the filling occurred, even as recently as January 2000. The evidence further shows that Petitioner's chain link fence has been damaged through the weight of the fill pressing against the fence. In addition, Petitioner has suffered the loss of "a couple of trees" because of "mucky" and "oversaturated" soil caused by excessive water. Also, a dog house on a raised platform in the back yard which was previously dry now "stays in water." These affected areas lie immediately adjacent to the filled area of the isolated wetland on Boston's property. Finally, there is an erosion problem beyond the isolated wetland consisting of sand and silt flowing from Boston's lot onto Petitioner's lot during heavy rainfalls. Despite these problems, Petitioner does not object to the development of the lot; he only asks that Boston do so in a manner which prevents these conditions from recurring in the future. Petitioner's engineering expert, Ronnie D. Perron (Perron), a professional engineer who visited the site in August 1999, ran a computer model (Interconnected Channel and Pond Routing, Version 2.11) showing runoff both before and after the fill was placed on Boston's lot. He concluded that "there was over one and a half feet of flooding in that wetlands due to filling Mr. Boston's lot" during a "mean annual storm event," which assumes five inches of rain during a 24-hour period. Even when he used more conservative estimates, Perron still arrived at water accumulations ranging from 0.6 feet to 1.5 feet. This excessive runoff is caused by the retaining wall and fill, which "blocks off" the water and causes it to "spread out in [Petitioner's] whole back yard." In response to Perron's model, a DEP professional engineer, David P. Apple (Apple), ran another computer model (PONDS, Version 2.25) received in evidence as Respondent's Exhibit No. 14. That model shows that during a three-year, one- hour storm event, the small depressed area on Boston's property (including the isolated wetland) had sufficient storage capacity to absorb up to six inches of runoff from off-site areas and not overflow back onto Petitioner's property. This size of storm event (which produces two and one-half inches of rain in an hour) is typically used by the Department in calculations for single- family residential property when the impervious area site is less than fifty percent. In this case, Apple didn't "feel that the impervious area out there was greater than [fifty] percent." Therefore, Apple concluded that the storm event used by Perron was too large, and that the smaller event used in his model was more appropriate. He also concluded that the Boston property could retain all water in a normal storm event without discharging any stormwater onto the D'Antoni lot. He did not, however, address the issue of the fill and retaining wall on the Boston lot impounding the water on his neighbor's lot. In developing the input perameters for his model, Apple assumed that water falling at the front (Wayward Street) side of the D'Antoni property drained to the front roadway; in fact, much of that water drains to the rear of the lot into the wetland area. A similar incorrect assumption was made regarding runoff on the Boston lot. If modifications were made to account for the proper drainage patterns, the Apple model would show larger amounts of water staging on the Boston property during rainfall events, which would increase the possibility of runoff onto the D'Antoni lot. Apple questioned the accuracy of the Perron model given the fact that Perron had used a larger storm event than he (Apple) believed was appropriate. However, even if Perron had used a three-year, one-hour storm event on his computer model, as advocated by Apple, he established that it would have resulted in flood staging on Petitioner's property between 0.97 and 1.64 feet during a smaller storm event. DEP proposed no solutions to the water problems on the D'Antoni lot, presumably because it concluded that the rule was satisfied; that by filling the Boston lot, it was no longer the "stormwater pond for the neighborhood runoff"; and that DEP had no other regulatory authority to solve this peculiar situation. The record shows clearly, however, that if no changes are made, water will continue to back up on Petitioner's property by virtue of the higher elevation on the Boston lot, and the possibility of runoff from Boston's lot exists during certain storm events. Neither condition existed before the fill was added. To correct the foregoing conditions, Perron proposes two corrective measures. First, Boston should install a yard drain (underground culvert) beginning in the wetlands area of his property and outfalling to the cypress trees on the adjacent Henderson lot. Besides providing an outfall for the excess water, this would also help recharge the mature cypress trees on the Henderson lot. Second, D'Antoni should install a series of "yard drains" using high-density polyethylene pipes to convey the standing water on his lot directly into the St. Johns River. The expert opined that neither activity would require a permit from DEP. These modifications are reasonable and appropriate and should be used by the factioning parties. Accordingly, the installation of a yard drain should be a condition for Boston to use his noticed general permit.
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 granting the application for a permit and consent in Case No. 99-1916 and confirming that David Boston qualifies for use of a noticed general permit in Case No. 99-2861 provided, however, that such use be conditioned on Boston constructing an underground culvert with a yard drain from the wetland area on his lot to the St. Johns River. DONE AND ENTERED this 22nd day of March, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 22nd day of March, 2000. COPIES FURNISHED: Kathy Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Vincent R. D'Antoni, Jr. 3824 Wayland Street Jacksonville, Florida 32277 David Boston 2262 Orchard Street Jacksonville, Florida 32209 Francine M. Ffolkes, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Teri Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
The Issue Is the applicant, Larry Hecht (Hecht), entitled to issuance of an environmental resource permit and consent to use sovereign submerged land from the Department of Environmental Protection (DEP), allowing the construction of a dock?
Findings Of Fact The Parties DEP in the interest of the Board of Trustees of the Internal Improvement Trust Fund is responsible for reviewing requests for the use of sovereign lands, to include sovereign submerged lands. In addition DEP is responsible for decisions involving applications for environmental permits. In considering Hecht's request for permission to construct a dock DEP is exercising the legal authority that has been described. Hecht owns property at 2646 Beauclerc Road in Duval County, Florida, which fronts Plummers Cove, a part of the St. Johns River, a class III waterbody. Hecht has applied for the necessary permits and consent to construct and use a dock adjacent to his property. Hecht intends to use the dock for boating access and other forms of recreation. The Sekines live at 2648 Beauclerc Road, immediately adjacent to the Hecht property. The Sekines property is in Duval County, Florida. The Sekines have a preexisting dock which has been used for boating purposes and other forms of recreation. The Roods live at 2635 Forest Circle, Duval County, Florida. Their property is immediately adjacent to the Hecht property on the opposite side from the Sekines. The Roods also have a dock granting access to boating activities and other forms of recreation. The Sekines and the Rood properties are on Plummers Cove. On May 18, 1998, DEP gave notice of its intent to issue necessary permits and consent for Hecht to construct a dock with conditions. The Roods and Sekines opposed the grant of necessary permits and consent to use by filing petitions in opposition with DEP on June 4 and 9, 1998, respectively. Both sets of Petitioners had similar concerns in opposing the grant of permission to the extent that the Hecht application for permission to construct the dock allegedly interfered with Petitioners' riparian rights, would exceed the minimum length and size necessary to provide reasonable access to navigable water and would impede navigation. The Application In applying for the environmental permits and consent to use, Hecht relied upon a survey of the applicant's riparian rights lines performed by Harbor Engineering Company through Lake Ray, Jr., a civil engineer and land surveyor. Having in mind the results of that survey, the initial configuration and placement of the proposed dock has been modified because of problems in meeting the minimum set back requirement of 25 feet from the applicant's riparian rights line with the Roods, and in the absence of a sworn affidavit of no objection from the Roods, the affected adjacent upland riparian owner. The present alignment closely conforms to the setback requirement. The design and placement of the proposed dock in its original placement and configuration, and as revised, was by J. Ronald Henley, of C & H Marine Construction, a dock builder. John Rood has also had a riparian rights line survey performed which depicts the common line between the Rood's property and the property of Hecht. This survey was performed by Atlantic Gulf Surveying Co., Inc., a land and engineering survey firm. The two riparian rights line surveys did not coincide when addressing the common riparian rights line between the Roods' property and that of Hecht. Both the Harbor Engineering Survey and Atlantic Gulf Survey depict the Sekines' dock as crossing the riparian rights line between the Hecht and Sekines properties. The DEP notice of intent to grant necessary permission was in relation to the revised application and coincides with the Harbor Engineering riparian rights line survey. The proposed dock is 400 feet in length. It approaches the terminus of the existing Sekines' dock within 5 feet 10 inches. To maintain the proposed length and not violate the 25 foot setback line established according to the Harbor Engineering Survey, it must come that close to the Sekines' dock. The proposed dock design has a boat slip and a slip for two small water craft, jet skis, within a boat house that totals 38 feet in length on the Sekines side of the proposed dock. There is an adjacent mooring with pilings spanning 40 feet next to the location of the boat slips. The proposed dock extends another 43 feet beyond the boat facilities, to include an area that is 10 feet long and 20 feet wide at the terminus. From the shoreline in the cove, the Hecht proposed dock is slightly longer than the existing Roods' dock. The proposed dock and the Roods' dock extend roughly perpendicular from the shore. The Sekines' dock extends from the shore on a bias, bringing the existing Sekines' dock in close proximity with the proposed dock. DEP Riparian Rights Evaluation DEP has a rule concerning riparian rights in the environmental context. That is Rule 18-21.004(3), Florida Administrative Code. In this case, where riparian rights between the Hechts, the Roods and the Sekines are unresolved, DEP has ultimately pursued a policy of permit review and consent to use on the basis that the two surveys are sufficiently comparable to allow the application to be examined for its substance, notwithstanding the dispute over the location of the riparian lines. Beyond the review of the application, consistent with prior practices, DEP has imposed a condition upon the grant of its permission to address future disputes between the land owners over riparian rights lines. Under its traditional general consent conditions for use of sovereign submerged lands, at paragraph 12, DEP has imposed the following on the Hecht permit: In the event that any part of the structure(s) consented to herein is determined by a final adjudication issued by a court of competent jurisdiction to encroach on or interfere with adjacent riparian rights, GRANTEE agrees to either obtain written consent for the offending structure from the affected riparian owner or to remove the interference or encroachment within 60 days from the adjudication. Failure to comply shall constitute a material breech of this consent and shall be grounds for its immediate termination. Jeremy Anthony Tyler, Environmental Administrator for the Northeast District provided testimony concerning the policy position of his agency in relation to riparian rights, as well as, access to navigable water, and navigation. Minimum Length and Size Necessary to Provide Reasonable Access to Navigable Water DEP Rule 18-21.005(1)(a)1, Florida Administrative Code, was used by DEP in considering whether to grant a consent of use of sovereign submerged land by affording Hecht reasonable access to navigable water, through the proposed dock, which DEP considers to be of the minimum length and size necessary to provide access. Consistent with the rule, in determining the issue of consent of use, DEP expressed the position at hearing that the depth of water necessary to grant reasonable access is 4 to 5 feet mean low water, taking into account the alignment of the proposed dock that is consistent with docks in the area. In calculating access, the beginning point starts in deeper water and then moves toward the shore. A further consideration here was the problem of conformance with riparian rights lines when identifying access to navigable water. The DEP policy in establishing reasonable access took into account the intention by Hecht to moor a boat of 40 plus feet in length, together with docking a boat of approximately 25 feet in length and two jet skis. Additionally, consistent with past practices, DEP would normally approve consent of use for a single-family dock, such as the proposed dock, which conformed to a written non-rule policy of the DEP Northeast District related to minimum length and size criteria. In this instance the proposed application offends the policy in two respects. First, the proposal has more than two covered boat slips or two open moorings with adjacent mooring pilings or a combination of one each. Second, the proposed application has a mooring area and boat shelter that are 43 feet from the terminus of the proposed dock. Nonetheless, this policy on the minimum length and size criteria would allow the applicant to redesign the dock to meet the criteria that were not satisfactorily addressed. Thus far, no redesign had been proposed as an alternative. At hearing DEP, through its witness, conceded that it had not considered the failure to comply with the number of boat slips or moorings allowed by the written policy when considering the application. When C & H Marine Construction redesigned the boat dock in the interest of providing Hecht access to navigable water for his water craft, the dock builder also took into account the need for persons to access the terminus of the Sekines' dock, at least on one side of that terminus, without the boat traffic to and from the respective docks creating an unreasonable interference for use of the adjacent dock. The dock builder in designing the proposed dock intended to allow sufficient separation between the boating activities for the proposed dock and those at the terminus of the Sekines' dock. The Sekines have visitors to their dock who secure their boats at the terminus of the Sekines' dock. Nonetheless, the dock builder recognizes the close proximity between the terminus of the Sekines' dock and the proposed dock creates problems for the Sekines in the use of their dock. The engineer who performed the riparian rights line survey for the applicant recognized this same difficulty. Literally, 4 feet of navigable water at mean low water can be reached at approximately the 182-foot mark on the proposed dock, with the five-foot depth mean low water at approximately 211 feet of the proposed dock, but these locations for gaining access present problems in relation to honoring the 25-foot setback on the side of the Hecht property near the Roods' property. The problems are in relation to the riparian rights line in that there would be insufficient room to install the proposed boat slips and mooring area and allow for maneuvering in and out of the boat slips and mooring area without violating the set back line if those facilities were placed on the side of the dock adjacent to the Roods' property. Placement of those facilities on the other side of the dock at those distances at which the 4 foot and 5 foot depth mean low water would be obtained would not allow reasonable access when considering the 5'10" opening between the proposed dock and existing dock, in proximity of the Sekines' dock terminus. Therefore, the present dock design concerning placement of the slips and mooring is the better choice. Captain Don Stratmann, Jr., Division of Law Enforcement, Florida Marine Patrol, which is part of the DEP, testified concerning access to navigable water by the applicant, by examining a nautical chart showing the 6-foot curved contour in the vicinity of the proposed dock, together with the length of the existing docks in the vicinity and some shallow soundings in the vicinity. He offered the opinion that the proposed dock was not unduly lengthy when considering reasonable access to navigable water, recognizing that the proposed dock is longer than docks immediately adjacent to it. Captain Stratmann had the opportunity to view the vicinity of the proposed dock in person. He had access to a quadrangle map supplied with the application in arriving at his opinion on reasonable access. In making his assessment of reasonable access to navigable water, he noted that some portion of the length of the dock may be attributable to the contours on the shoreline which are uneven. By contrast, Roger Bennett who is a former Florida Marine Patrol Officer and a Captain in command of the same district where Captain Stratmann now commands, expressed the opinion that the proposed dock exceeds the minimum length and size necessary to provide reasonable access to navigable water. He arrived at his opinion by checking the depths of water at the ends of docks in the vicinity of the proposed dock and observing the kinds of boats that were found at those docks, whether in a boat house or moored on pilings. The boat docks tended to be located in a well-defined line when compared to the shoreline, following the contour of the shoreline. Neither of the opinions expressed by the present and former Marine Patrol commanders tended to address the special circumstances created by the close proximity of the riparian rights lines of the three property owners and the unusual placement of the Sekines' dock. Mr. Ray expressed the opinion that the depth of mean low water for the minimum length for access should be 4 to 5 feet in elevation. Mr. Ray also expressed the opinion that the proposed dock would be longer than the Roods' dock because of the contour of the shoreline. Mr. Henley expressed an opinion concerning the proximity of the pre-existing docks to the proposed dock as the reason to extend the proposed dock. Part of his reasoning was in relation to placement of the proposed dock too close to the shoreline as not allowing boat operation while maintaining safety between the proposed dock and the Sekines' dock. He also had concern for interference with sea grass if placed too close to shore. Adverse Affect on Navigation In examining whether the proposed dock constituted an adverse affect upon navigation, Mr. Tyler spoke of the concept in terms of a hazard to navigation which he considered to be a dock sticking out into a marked channel or close to a marked channel, regularly used as a pathway for boats. He did not find that the proposed dock would extend into a marked channel in the main part of the St. Johns River. Moreover, he found that the proposed dock was fairly consistent with the configuration of existing docks in the area. Mr. Tyler did not express the opinion that problems of maneuvering water craft around docks was contemplated in describing the possible hazard to navigation. He considered maneuvering around docks to be a riparian rights issue. Captain Stratmann in describing the DEP response to adverse effects on navigation deferred to 33 C.F.R. 245.20, in relation to the Corps of Engineers, Department of the Army, and 33 C.F.R. 64.31, in relation to the Coast Guard, Department of Transportation. Those references have not been incorporated by DEP into the Florida Administrative Code. Nonetheless, they form the basis for Captain Stratmann to consider navigational issues in this instance and in similar past circumstances. He acknowledged that the references in the federal system are in relation to determination of hazards to navigation and do not specifically address adverse affects on navigation contemplated by Section 374.414(1)(a), Florida Statutes, a lesser problem. When taking into account the implications of the proposed dock Captain Stratmann did not feel that any of the criteria that he employs in relation to Title 33 C.F.R. had been violated. But his principal emphasis was in relation to navigation in the navigable channel in the river, similar to Mr. Tyler's opinion. As with Mr. Tyler, Captain Stratmann did not consider that boating activities in Plummers Cove constitute that form of navigation. John Rood pointed out that boating takes place in Plummers Cove in and around the docks, specifically by persons water skiing in the Cove, which is calmer than would be the experience in the river channel away from the Cove. He and other witnesses acknowledged a sandbar near his dock that influences boat operations. Mr. Bennett in describing his opinion concerning the affect on navigation promoted by the proposed dock, noted that the proposed dock sticks out further in the river than the dock owned by the Roods, thereby forming an unacceptable hazard to navigation. Given the frequency of traffic in and out of docks in the vicinity of the proposed project, Mr. Bennett considers this traffic to form a potential navigational problem, to include the proximity of the Hecht proposed dock and the Sekines' existing dock. Mr. Ray does not consider that the proposed dock forms a navigational safety hazard, especially when considering the length of the proposed dock.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered that grants the environmental resource permit and consent of use subject to the conditions contained in the intent to grant, and subject to a redesign deleting the mooring area or a boat slip and 43 feet of dock extending from the location of the mooring and boat slips. DONE AND ENTERED this 10th day of March, 1999, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 10th day of March, 1999. COPIES FURNISHED: Thomas J. Jenks, Esquire PAPPAS METCALF JENKS MILLER AND REINSCH, P.A. 200 West Forsyth Street, Suite 1400 Jacksonville, Florida 32202 William Graessle, Esquire Winegeart & Graessle, P.A. 219 Newnan Street, 4th Floor Jacksonville, Florida 32202 Ross Bilbrey, Esquire Brant, Moore, MacDonald & Wells, P.A. 50 North Laura Street, Suite 3100 Jacksonville, Florida 32202 Francine M. Ffolkes, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Kathy Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
The Issue Whether petitioner has standing to challenge a consent order negotiated by respondents to resolve an enforcement proceeding? If so, whether the consent order comports with statutes and rules regulating dredging and filling in wetlands?
Findings Of Fact Without securing DER permits, TLC built two dirt roads, one perpendicular to the other, both in Gulf County, east and south of property petitioner John L. Sullivan, Jr. owns and lives on. Between them, the roads, each 20 to 25 feet wide, traversed wetlands (recognized as such by DER regulations and the DER environmental specialist when he visited the site in May of 1990) in three separate places. None of the affected wetlands drain in the direction of petitioner's property. TLC dredged and placed 36-inch culverts before filling at two of the sites, and placed fill at all three sites, constructing roadbed and shoulders. One of the sites, connected by a 200-foot ditch to other wetlands, DER's Larry Taylor eventually characterized as "isolated." He directed TLC to fill the ditch to destroy the connection, on the theory this would divest DER of jurisdiction. At hearing, John L. Sullivan, Jr. testified that the project had not affected him financially, and said he was affected only as a citizen of Florida. The wetlands crossed by the roads drain (or, in one instance, did drain before the ditch was filled) easterly to Stonemill Creek, which flows southeasterly toward the Dead Lakes.
Recommendation It is, accordingly, recommended that DER dismiss the letter or petition with which these formal administrative proceedings began. RECOMMENDED this 10th day of June, 1991, in Tallahassee, Florida. ROBERT T. BENTON, II 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 10th day of June, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-0282 Petitioner's proposed finding of fact No. 1 has been adopted in substance. Petitioner's proposed findings of fact Nos. 2 and 3 pertain to immaterial matters. Petitioner's proposed finding of fact No. 4 was not proven. Respondent's proposed findings of fact Nos. 1, 2, 5, 6 and 10 (i.e. the final proposed finding of fact) have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 3, a parcel 96 feet by 60 feet was involved at only one of the three sites. With respect to respondent's proposed finding of fact No. 4, the conclusion that "the jurisdictional aspect ceased to exist" is not adopted. With respect to respondent's proposed finding of fact No. 7, whether the violation was "resolved" is a conclusion of law. With respect to respondent's proposed finding of fact No. 8, the allegations of the petition were not proven. With respect to respondent's proposed finding of fact No. 9, not all uncontradicted evidence has been credited. COPIES FURNISHED: Carol Browner, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 John L. Sullivan, Jr. Post Office Box 1298 Wewahitchka, FL 32465 Richard L. Windsor, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Bill R. Hutto, Esquire Hutto, Nabors, Bodiford and Warren 101 East 23rd Street Panama City, FL 32405
