The Issue The issue in this appeal is whether the decision of the City of Clearwater Development Code Adjustment Board denying Petitioner's application for variances for certain signage on his property is supported by the evidence in the record, or whether it departs from the essential requirements of law. See Section 137.014(f)(3), City of Clearwater Land Development Code.
Findings Of Fact Petitioner is the owner of certain property located at 1923-1943 U.S. Highway 19 North, Clearwater, Florida (Section 05-29-16, M&B 23.05). This property is zoned CC (Commercial Center), and is the site of a strip shopping mall. On or about March 23, 1989, Petitioner applied for three variances for the subject property, as follows: 243 square feet to permit a total of 411 square feet of property identification signage; 13.5 feet in height to permit a 33.5 foot high pole sign; permission for a roof mounted sign. The Development Code Adjustment Board denied Petitioner's application for variances on April 13, 1989, and Petitioner timely filed this appeal of the Board's decision. Under the provisions of the City of Clearwater Land Development Code applicable to the Petitioner's property, only 168 square feet of property identification signage and pole signs not to exceed 20 feet in height would be allowed without a variance, and roof signs of any kind are prohibited unless a variance has been granted. Several months prior to Petitioner's filing for these variances, a roof sign was erected on the building located on the subject property. This roof sign consists of individual letters spelling "Harbor Square", which is the name of this shopping mall. The letters are from 3 feet, to 4 feet 9 inches in height, and span a distance of 34 feet 9 inches in width. The roof sign replaced a property identification sign at the right of way which previously carried the name of the shopping center, but the space on the pole sign previously used to identify the mall was not eliminated. That space is now used to identify a uniform business in the mall. Petitioner is seeking these after the fact variances to authorize the roof sign which has already been erected, and to approve the height of an existing pole sign. An enforcement action initiated by the City is pending this variance determination. Tenants in the Harbor Square mall testified that the change in signage has made the mall more visible and accessible, and several of their customers have commented that their businesses are now easier to find. The tenants feel that this change in signage will benefit their businesses financially. The Development Code Adjustment Board has previously granted variances from the signage limitations imposed by the Code, but the evidence produced at hearing indicates that none of these variances were granted after the fact. The two variances which were approved for roof signs were based upon a finding of conditions unique to the property which created a hardship for the applicant. In both instances, the Board found that the applicant had not created his own hardship, but that it arose from the size or positioning of the property involved in each application. In this case, nothing unique about the property can be found. The applicant has caused his own problems by allowing a sign to be erected without first obtaining a permit or variance. The Petitioner urges that it was the responsibility of his sign contractor to obtain all necessary permits or variances, and that the contractor did not inform him that a variance was necessary before he erected the sign. However, neither the sign contractor nor the Petitioner himself was present to testify, and therefore, there can be no finding with regard to his credibility, or with regard to whatever arrangement he had with the contractor. In any event, as the property owner seeking a variance, Petitioner has failed to establish any basis for a finding of a hardship or circumstance unique to his property, other than the fact that he allowed this sign to be erected without obtaining the necessary approvals from the City.
The Issue The issues in this case are: Whether Petitioner, Warren M. Briggs ("Briggs"), should be issued a Wetland Resource Permit (WRP) for the construction of a single-family dwelling on a lot with jurisdictional wetlands in Santa Rosa County, Florida, as proposed in his application submission of 1998; and Whether the Department would permit the construction of a single-family dwelling on the subject lot under conditions and circumstances other than those set forth in Briggs' application.
Findings Of Fact Briggs is the owner of Lot 67, Block H, Paradise Bay Subdivision, located in southern Santa Rosa County ("Briggs lot"). Paradise Bay Subdivision was developed in approximately 1980, prior to the passage in 1984 of the Warren Henderson Wetland Protection Act. (Official Recognition of Section 403.918, Florida Statutes). The subdivision consists of modestly priced single- family homes that are attractive to young families because of the quality of nearby schools. The typical non-waterfront home in the subdivision is single story, approximately 2,000 square feet in area, and built on a concrete slab. The typical setback from the road to the front edge of a home is 75 feet. This fairly consistent setback from the road prevents the view from one home into the adjacent property owner’s back yard and, thereby, adversely affecting the neighbor’s property value. The undeveloped Briggs lot was purchased in 1981 for approximately $15,000 and remains undeveloped. Briggs bought the lot, along with three other lots in the subdivision, as investment property. The other three lots have been sold. One of the lots sold earlier by Briggs was a waterfront lot on East Bay located in jurisdictional wetlands. The entire lot was filled pursuant to a permit issued by the Department. The Briggs lot is 90 feet wide by 200 feet deep. It is located on the south side of Paradise Bay Drive. The lots on the north side of Paradise Bay Drive are waterfront lots on East Bay. To the rear (south) of the Briggs lot and other lots on the south side of Paradise Bay Drive, is a large swamp that eventually discharges into East Bay. The major connection between the Briggs lot and East Bay is through a culvert under Paradise Bay Drive. The Briggs’ lot consists of 2,914 square feet of uplands and 15,086 square feet of state jurisdictional wetland, with all of the uplands located in the northern half of the lot. Converted to acres, the Briggs lot consists of 0.067 acres of uplands and 0.347 acres of state jurisdictional wetland. Lot 66, immediately east of the Briggs lot, has been cleared and is about half tietie swamp with the remainder consisting of uplands and disturbed wetlands. Some fill has been placed on the lot. Lot 68, immediately west of the Briggs lot, is undeveloped and consists of all tietie wetlands. Lots 69, 70 and 71 of Block H of the subdivision are undeveloped and consist primarily of wetlands. The Department issued a permit on October 31, 1996, that allowed the owners of Lot 71 to fill 0.22 acres (9,570 square feet) of wetlands. The fill is allowed to a lot depth of 145 feet on the west side, and to a width of 73 feet of the total lot width of 90 feet. The fill area is bordered on the east and west by wetland areas not to be filled. The Department issued a permit on November 13, 1997, that allowed the owner of Lot 61 to fill 0.26 acres (11,310 square feet) of wetlands. Fill is allowed over the entire northern 125 feet of the 185 foot-deep lot. On April 28, 1998, Briggs applied to the Department for a permit to fill Lot 67. The Department, in its letter of August 7, 1998, and its permit denial of September 2, 1998, erroneously described the project as consisting of 0.47 acres of fill. The entire lot consists of only 0.41 acres, of which 0.067 acres is uplands, leaving a maximum area of fill of 0.343 acres. If Briggs’ residential lot is to be used, some impact to the wetlands on the lot is unavoidable. Alternatives discussed by Briggs and the Department, three of which are still available for Briggs to accept, included the following: One hundred feet of fill with a bulkhead separating the fill from the wetland area, with no off-site mitigation; Fill pad could be placed on property with the remainder of the wetlands on the site to remain in their natural state with no backyard, with no off-site mitigation required; One hundred feet of fill with a bulkhead separating the fill material from the wetland, with a small back yard, with no off-site mitigation required. Briggs did not accept any of the foregoing alternatives or proposed acceptable mitigation measures.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying the permit application, provided that the parties may reach subsequent agreement regarding proper mitigation in order to make the construction of a single-family dwelling possible on the Petitioner’s property in this case. DONE AND ENTERED this 19th day of November, 2001, in Tallahassee, Leon County, Florida. _ DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of November, 2001. COPIES FURNISHED: Charles T. Collette, Esquire Lucinda R. Roberts, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000 Jesse W. Rigby, Esquire Clark, Partington, Hart, Larry Bond and Stackhouse 125 West Romana Street, Suite 800 Post Office Box 13010 Pensacola, Florida 32591-3010 Kathy C. Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000
Findings Of Fact Ben A. Posdal is the owner of property commonly known as 166 Brightwater Drive, in the City of Clearwater, Florida. On August 7, 1986, he applied for variances to construct two wooden decks on his property, located at the above address. The property which is the subject of the variance request is a building which contains four apartments, which are rented by Ben A. Posdal to various tenants. On August 28, 1986, the Development Code Adjustment Board (DCAB) denied the variance requested by Mr. Posdal on the grounds that he had not demonstrated a hardship and that he had not demonstrated that the requested variance would not violate the general spirit and intent of the Clearwater Land Development Code. On September 9, 1986, an appeal was filed by Ben A. Posdal from the decision of the Development Code Adjustment Board. The appeal alleges that the DCAB decision was arbitrary, capricious and unreasonable on the following grounds: Other properties allegedly are in violation of the back line setback regulations; The DCAB failed to give enough evidentiary weight to photographs he submitted; and Appellant allegedly is being deprived of the beneficial use of the property in a manner commensurate with the community. There are no physical conditions which are unique to the property. There is no particular physical surroundings, shape or topographical condition that would result in an unnecessary hardship upon the Appellant. Failure to obtain a variance would not impinge upon Appellant's use of the property in any way. The record on appeal contains competent, substantial evidence to support the DCAB decision. Nonconforming uses in the area of the subject property are legal nonconforming uses.
The Issue The issue is whether Vista of Fort Walton Beach, LLC (Vista), should be issued Surface Water Management Permit No. 04-2012-0013G authorizing the construction of an earthen embankment dam and impoundment to impound stormwater runoff from a proposed commercial development in the City of DeFuniak Springs (City), Walton County, Florida.
Findings Of Fact The District has regulatory jurisdiction over the construction of certain types of impoundments within its boundaries. If an impoundment is at least ten feet high but less than 25 feet in height and has an impounding capacity of at least 50 acre-feet, a general permit is required. See Fla. Admin. Code R. 40A-4.041(1). Vista, a limited liability corporation, owns an odd- shaped parcel in the City on which it intends to build a small commercial development consisting of a 17,000-square foot building, a parking lot, and related amenities. The vacant parcel abuts the north side of U.S. Highway 90 just east of 18th Street and is approximately 1.66 acres in size. The property is partially wooded and has a small wetland area on its northeastern corner. In conjunction with the proposed commercial development, Vista intends to construct an impoundment to control stormwater runoff from the project. Because the impoundment will be ten feet high and have an impounding capacity of at least 50 acre-feet, Vista is required to obtain a general permit. See Fla. Admin. Code R. 40A-4.041(1). Vista filed a permit application with the District on June 8, 2012. On August 8, 2012, the District gave notice that it intended to issue a surface water management permit to Vista. The permit allows the construction of a stormwater retention basin. A mitigation plan for impacts to 0.23 acres of wetlands was also approved but is not at issue in this proceeding. As described in the District staff report, the project will encompass one earthen embankment dam and impoundment to impound the storm runoff. It will operate as a dry stormwater retention basin designed to impound water only during rainfall events. The facility will utilize a pipe and riser spillway system, and the basin outfall will be protected by a rip-rap lined plunge pool. Due to space restrictions, an engineered retaining wall will be incorporated into the embankment's north side slope. The stormwater will discharge through controlled overflow structures into a nearby wetland area that lies northeast of Vista's property and will then be integrated into an existing channel that eventually forms the headwaters of Sandy Creek to the north. Petitioner has resided on her property since around 1932. Her odd-shaped parcel, described as being between five and seven acres in size, lies immediately to the north of Vista's property. A small wetland is located on the southeastern corner of her property. The two parcels share a common boundary line, appearing to be no more than a hundred feet or so. Because the boundary line is lower than the highest part of each owner's property, a "trench" has formed along the line. Wabash Avenue, a platted but un-built roadway that begins on U.S. Highway 90, runs to the northwest through the wetland area and along the eastern boundaries of both properties. As alleged in the Second Amended Petition, Petitioner is concerned that the project will cause flooding on her property. In a broader sense, she appears to be opposed to any commercial development on Vista's property. The back side of the Vista parcel slopes downhill to a recessed area that is adjacent to both properties. Although some fill has already been placed on the property in preparation for the development, the applicant intends to add "a lot" more fill to the entire parcel to create a gradual slope down to the edge of Wabash Avenue. A basin or pond around 0.20 acres in size will be formed within the fill area and a retaining wall consisting of multiple segments will be constructed around the basin. The wall will be separated from Petitioner's property by a 20-foot buffer, while at its closest point the basin will be "35 feet or so" from her property line. The plans submitted by the applicant demonstrate that the system will be built in accordance with all District standards and should operate in a safe manner. Before construction can begin, the District must approve the retaining wall design specifications. During rain events, the first inch of water will be retained on site for treatment. Additional water will be stored in the basin and then slowly allowed to discharge from the basin into the wetlands. The point of discharge from the basin is at a location a minimum of 20 feet south and east of Petitioner's property line. To ensure that the retention system will not discharge runoff at a higher rate than was discharged before development, Vista performed hydrologic calculations demonstrating pre- and post-development runoff. According to accepted models developed by the United States Department of Agriculture and its predecessor, the Soil Conservation Service, the current peak runoff from the Vista property is 2.46 cubic feet per second (CFS) during a two-year, 24-hour storm event. After development, the volume of water will be reduced to 0.74 CFS. During a 25-year, 24-hour storm event, the volume of runoff post-development is anticipated to drop from 12.59 CFS to 6.51 CFS. Finally, during a 100-year, 24-hour storm event, post- development runoff will be slightly reduced from 19.64 CFS to 18.99 CFS. Therefore, as sited, sized, and designed, the project will reduce runoff during all anticipated storm events. The foregoing calculations were not credibly contradicted and satisfy the requirement that an applicant give reasonable assurance that the project will not cause an increased flow such that it will endanger downstream property in times of flood with respect to state or frequency. See Fla. Admin. Code R. 40A-4.301(2)(f). They also confirm that water in the impoundment will not be raised to a level that could be harmful to the property of others. See Fla. Admin. Code R. 40A- 4.301(2)(c). Thus, the potential for flooding on Petitioner's property will be reduced if the project is constructed as permitted. The Department of Transportation (DOT) is currently repairing the drainage system on U.S. Highway 90 in front of the Vista property. Stormwater from that project drains into the wetlands through an easement deeded to the City at the rear of the Vista property. Petitioner pointed out that after the DOT project began, and fill was added to the Vista property, she has experienced an increase in water on her property. Whether the DOT project is responsible in any way for this hydrologic change is not known. However, accepted testimony by two professional engineers supports a finding that Vista is not responsible for any hydrologic changes on Petitioner's property. Vista was not required to take into account any runoff from the DOT project in making its hydrologic calculations because the amount of runoff from its own property will actually be reduced by the retention system. At hearing, Petitioner contended that a fence she built on the common boundary line with Vista sometime after 1990 was illegally removed by Vista in order to construct the basin. According to Mr. George, who first surveyed the property line in 1990 and then surveyed it a second time a few years ago, the fence was built a few feet beyond Petitioner's property line and lies within the buffer zone between the basin and her property. Petitioner argues that even if this is true, the doctrine of adverse possession applies and she is now the owner of the property on which the fence was built. This type of dispute, however, can only be resolved in circuit court, and not in an administrative forum. See § 26.012(2)(g), Fla. Stat. The District has examined the property records and is satisfied that Vista has ownership of the property on which the impoundment will be built. Notably, the basin will not be located within the 20-foot buffer where the fence once stood and which is dedicated to the City as an easement. Finally, through cross-examination at hearing, Petitioner suggested that any project designed by humans carries with it the remote possibility that it will fail and create a catastrophic situation on her property. In the unlikely event that the design and operation of the retention basin threaten the safety of adjoining property owners, section 373.429 and rule 40A-1.205 enable the District to revoke, suspend, or modify a permit to protect the safety of others.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Northwest Florida Water Management District enter a final order approving the issuance of Surface Water Management System Permit No. 04-2012-0013G to Vista. DONE AND ENTERED this 11th day of March, 2013, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 2013. COPIES FURNISHED: Jonathon Steverson, Executive Director Northwest Florida Water Management District 152 Water Management Drive Havana, Florida 32333-4712 Helen J. Crenshaw 61 North 18th Street DeFuniak Springs, Florida 32433-9547 Kevin X. Crowley, Esquire Pennington, Moore, Wilkinson, Bell & Dunbar, P.A. Post Office Box 10095 Tallahassee, Florida 32302-2095 James Busby Vista of Fort Walton Beach, LLC Post Office Box 760 Fort Walton Beach, Florida 32549-0760
Findings Of Fact On or about July 9, 1987 an application for conditional use approval to allow off-premises sale of beer and wine (2APS) was filed on behalf of Petitioner for property located at 2030 Gulf to Bay Boulevard in Clearwater, Florida. The property is zoned general commercial (CG). A public hearing before the Planning and Zoning Board was held on August 4, 1987. At that hearing, the Petitioner's representative was not allowed to give rebuttal testimony, although the Board's by-laws do allow the applicant to rebut testimony in opposition to the application, and rebuttal is, in fact, usually allowed. The Petitioner's representative did not specifically request an opportunity to rebut the opponent's testimony, but assumed he would be given an opportunity to speak before the Board voted. The Planning and Zoning Board voted 3-2 to deny conditional use approval for this application. A timely appeal was taken by Petitioner on August 18, 1987. With this application, Petitioner seeks approval to sell beer and wine at a 7-11 convenience store. By subsequent application and approval of the Planning and Zoning Board on September 1, 1987 Petitioner has been granted a conditional use for 1APS, package sale of beer only. However, this 1APS application and approval is not at issue in this case. The parties stipulated that the property in question is within five hundred feet of a church and several residences.
The Issue The issue is whether Respondent Department of Environmental Protection properly determined that Respondent City of Gulf Breeze was entitled to construct a concrete jetty at the mouth of Gilmore Bayou, to widen the mouth of the bayou an additional 35 feet, and to dredge sections of the bayou to a depth of minus eight feet.
Findings Of Fact On March 22, 1996, Gulf Breeze applied for a wetlands resource permit from DEP to allow the following: (a) dredging of the entrance channel to Gilmore Bayou in order to return the channel to its original width and depth; (b) construction of bulkheads on either side of the channel; and (c) construction of two jetties on the east side of the channel to slow the accretion of sediments in the channel. The proposed project is located in the waters of the state at the southwestern end of Gilmore Bayou where it opens into Pensacola Bay. The project is adjacent to and north of 406 Navy Cove Road, in the City of Gulf Breeze, Florida, Section 6, Township 35N, Range 29W. The Petitioner's home is located at 86 Highpoint Drive, Gulf Breeze, Florida. Her residence is downstream from the project at the northeastern end of Gilmore Bayou. The channel at the southwestern end of Gilmore Bayou was originally dredged in the mid-1950s. Since that time, the channel has provided a navigable outlet to Pensacola Bay for use by property and boat owners along Gilmore Bayou. The channel has also provided for water circulation and tidal flushing within the Bayou. Maintenance dredging has been performed almost annually to keep the Gilmore Bayou channel open. The purpose of the proposed project is to reduce the need for the frequent maintenance dredging and to provide for better water circulation in the bayou. A wetlands resource permit to perform maintenance dredging has not been required in the past because that activity was exempt from the permitting process. On July 28, 1997, the Department issued Gulf Breeze a Notice of Intent to Issue Draft Permit Number 572874961 to construct one seventy (70) foot long concrete jetty at the mouth of Gilmore Bayou, widen the mouth of Gilmore Bayou an additional thirty-five feet and dredge sections of the Bayou to a depth of minus eight feet. In issuing the Notice of Intent to Issue, the Department also considered Gulf Breeze's application for a five- year sovereign, submerged land easement for the location of the jetty. Gulf Breeze published the Notice of Intent to Issue in a newspaper of general circulation in accordance with DEP requirements and Section 373.413(4), Florida Statutes, and Rule 62-343.090(2)(k), Florida Administrative Code. Thereafter, Petitioner filed a petition requesting that the permit be denied. Petitioner has a substantial interest in the permitted activity, as she owns property and resides on Gilmore Bayou. Petitioner's request that the permit be denied is primarily based on her opinion that water quality in Gilmore Bayou has deteriorated as a result of the original and continuous dredging of the channel at the southwestern end of Gilmore Bayou. She is concerned that the permitted activity will result in further water quality degradation and result in a further movement of the spit of land which extends in front of her home out to Deadman's Island on the northern side of the Bayou. The ecosystem in Gilmore Bayou today is a healthy system which supports various marshes and fish. The ecosystem thrives despite water quality degradation resulting from development and urbanization along its shores. More specifically, septic tanks, fertilizer runoff, and stormwater discharge have caused water quality to degrade in the Bayou. The most persuasive evidence indicates that the dredging of the channel over time has not caused the water quality to degrade. The permitted activity will have a positive effect on water quality in Gilmore Bayou, as it will enhance tidal flushing through the channel. The jetty, which is a part of the permitted activity, will slow the transport of sand into the channel, allowing for better flushing and reducing the need for maintenance dredging in the channel. Construction of the jetty is recommended and supported by the hyrdographic study of Kenneth L. Echternacht, Ph.D., P.E. Gulf Breeze obtained and submitted this study to DEP to assist in evaluating the project. The permitted activity will have no significant impact on the location of the spit of land extending from Petitioner's property to Deadman's Island. The shifting of the spit of land over the years has been caused by numerous factors which are identified in a 1993 study by Dr. James P. Morgan, Ph.D. These factors include development of the area, erosion of the surrounding bluffs, the location of the Pensacola Bay bridge, and storms and sand drift into channels to the east of the spit. Without this project or frequent maintenance dredging, the channel at the southwestern end of Gilmore Bayou would fill with silt. Eventually, the silt would inhibit water circulation and result in further water quality degradation in the bayou. The permitted activity is not contrary to the public interest. Instead, it will benefit the public interest. The project will make it possible to maintain the Gilmore Bayou channel more efficiently. The project will allow for increased flushing of the bayou. The increased flushing will improve water quality in the bayou. The permitted activity will not have any adverse effect on the conservation of fish or wildlife, or any endangered species or their habitats. The permitted activity will not adversely affect navigation or flow of water or cause any harmful erosion or shoaling. It will have a positive effect on navigation and water flow and act to prevent harmful erosion or shoaling. The permitted activity will have no adverse effect on fishing or recreational values or marine productivity in the vicinity of the project. The permitted activity will provide for permanent jetties and bulkheads at the entrance to Gilmore Bayou. The permitted activity will have no adverse effect on historical or archeological resources on Deadman's Island or in the vicinity of the project. The permitted activity will have a positive impact on the recreational functions and use of the channel and Deadman's Island.
Recommendation Based upon the findings of fact and conclusions of law, it is, RECOMMENDED: That the Department of Environmental Protection issue a Final Order determining that its Notice of Intent to Issue Permit, together with Permit No. 572874961, is final agency action. DONE AND ENTERED this 6th day of February, 1998, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 1998. COPIES FURNISHED: Mary Jane Thies, Esquire Beggs and Lane Post Office Box 12950 Pensacola, Florida 32576-2950 Ricardo Muratti, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Patricia J. Moreland 86 Highpoint Drive Gulf Breeze, Florida 32561 Matt E. Dannheisser, Esquire 504 North Baylen Street Pensacola, Florida 32501 Kathy Carter, Agency Clerk Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 F. Perry Odom, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Virginia B. Wetherell, Secretary Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact On or about April 5, 1988, Petitioner filed an application for a variance to replace an existing four foot fence extending to the seawall on his property at 643 Harbor Island, Lot 12 Island Estates, Clearwater, Florida. The subject property is zoned RS-6. Petitioner had already replaced his previous fencing prior to the filing of this application with wooden fencing which extends on the north and south side of his property through the setback to the seawall. The Development Code Adjustment Board considered Petitioner's application at its meeting on May 12, 1988, and based upon the Petitioner's explanation that the variance was sought simply to replace an existing fence that had termite damage, the Board approved his application on a 3 to 2 vote. The variance approval was conditioned upon the Petitioner obtaining a building permit within one month of the approval. Petitioner failed to obtain the required building permit, and no excuse was offered for this failure. Therefore, he had to reapply for the variance. On or about July 21, 1988, Petitioner filed his variance reapplication. The Development Code Adjustment Board considered this reapplication on August 25, 1988, at which time Petitioner again stated that he was simply replacing an existing fence. Due to a tie vote, consideration of the reapplication was continued to the Board's meeting of September 8, 1988. At the meeting on September 8, he explained for the first time that while the fencing on the south side of his property was simply the replacement of a previous fence which had extended to the seawall, the fencing on the north side was not. The previous fence on the north side of his property had stopped prior to the fifteen foot setback. With this clarification, the Board approved his variance reapplication for the south side of his property, but denied the variance for the north side. Petitioner has timely appealed the denial of his variance reapplication as it relates to the north side of his property. Petitioner testified at hearing that prior to the construction of his current wooden fence, he had a wood fence all the way to the seawall on the south side of his property. Since he had to replace that fencing due to termite damage, he took the opportunity to also replace and extend the wooden fencing on the northern side of his property through the setback. This action was not based on any hardship, but simply because he and his family felt it would look better if he had the same fencing on both sides of his property. It is clear and undisputed that Petitioner constructed a new fence on the north side of his property through the setback without obtaining a variance or permit. He did this simply for aesthetic reasons, and not due to any hardship. He failed to disclose this in his applications, or when the Board met on May 12 and August 25, 1988 to consider this matter.
Findings Of Fact Respondent Trevey is constructing condominium units on property adjacent to Oyster Creek in Charlotte County, and seeks to develop waterfront facilities for the use of condominium residents. Oyster Creek is a navigable stream flowing into Lemon Bay and thence into the Gulf of Mexico. The proposed site of Dock No. 1 is along the south bank of Oyster Creek in that portion of the stream which constitutes the main channel. Dock No. 2 would be located on a branch or loop off the main channel. The pedestrian bridge would cross this stream near the proposed site of dock No. 2 and would be part of a nature walk on Respondent Trevey's property situated on the south bank of the main channel. At some earlier time the stream was altered by the dredging of a canal which became the main channel and created the island which is the proposed site of the nature walk. In addition to this canal which forms a portion of the main channel, a network of smaller canals has been constructed on the north side of Oyster Creek, generally across from the sites of the construction proposed herein. These canals provide water access for homeowners in this area. Respondent Trevey observed some 92 boats moored in these canals. The main channel of Oyster Creak provides boater access to Lemon Hay and the Gulf of Mexico. Construction of proposed Dock No. 1 in this channel would therefore affect navigation to some degree. Dock No. 1 has a proposed length of 300 feet and a width of 4 feet. The dock would be built two to three feet away from the south bank of Oyster Creek, thus extending about six feet into the channel. The dock would be used to moor boats, on a "parallel parking" basis. Assuming a boat width of eight feet and proper mooring, protrusion into the stream would be approximately fourteen feet. Creek width in the Dock No. 1 site is about sixty feet. The water is shallow and varies with the seasons and tides. Navigation near the north bank opposite the Dock No. 1 site is not possible due to the presence of a large oyster bed. Therefore boat operators tend to maneuver their craft on the (proposed) dock side of the creek center line. The distance from the deepest part of the creek to the south bank where Dock No. 1 would be located averages about 33 feet. The proposed dock and moored boats would take up nearly half of this distance. Since boaters must stay near the deepest part of the channel, as well as avoid the oyster bed on the north bank, navigation around the dock and moored boats could prove difficult. A hazardous situation could occur when boats were passing in opposite directions in the dock area or when any Dock No. 1 boats were improperly moored. Operation of powerboats in the vicinity of Dock No. 2 is not feasible due to shallow waters nor is this branch of the stream utilized for access to open water. Therefore, construction of Dock No. 2 would not impede navigation. The presence in the area of a paved road, bridges, an industrial park, Petitioner's boat ramp and numerous canals contribute to degradation of water quality, disruption of wildlife and soil erosion. Studies made by Respondents established that water quality would not be further degraded by construction of the proposed facilities, nor would any wildlife or vegetation be significantly disturbed. The facilities are designed and located to avoid creating or contributing to soil erosion.
Recommendation From the foregoing findings of fact and conclusions of law it is RECOMMENDED that the Department of Environmental Regulation issue a permit to Howard Trevey for the construction of the proposed pedestrian bridge, nature walk and Dock No. 2, but deny that portion of the application pertaining to the proposed Dock No. 1. DONE and ORDERED this 5th day of April, 1982, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of April, 1982. COPIES FURNISHED: William A. Makela 2642 Titania Road Englewood, Florida 33533 Richard L. Smith, Esquire 2070 Ringling Boulevard Sarasota, Florida 33577 Charles G. Stephens, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida Victoria Tschinkel Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact On or about March 7, 1986, Petitioner submitted an application for a variance from the open space and rear set-back line requirements applicable to property located at 2612 U.S. 19 North, Clearwater, Florida. The subject property is zoned CC (commercial center). Petitioner's application requests a variance to provide 12.33% open space instead of 25%, and to construct a building 30 feet from the rear property line rather than 50 feet as required by the Land Development Code for property zoned CC. On or about April 24, 1986, the Development Code Adjustment Board denied Petitioner's application for a variance, and Petitioner timely appealed on May 6, 1986. The only evidence in support of its application offered by Petitioner was the testimony of Robby Tompkins. He testified that Petitioner's application is "unique" because Petitioner was 90% complete with its architectural plans for the renovation and modernization of the subject property when the current ordinance took effect, and Petitioner therefore urges that the current ordinance should not apply. Additionally, Petitioner argues that there will be no injury to the public as a result of the variance, and in fact the project will add 6800 square feet to its shopping center. Tompkins admitted that an increase in financial return was the primary reason Petitioner has sought the variance. Finally, he stated that if Petitioner complies with the 25% open space requirement, there will not be enough parking to meet Code provisions, and if sufficient parking is provided, there will not 25% open space.
Findings Of Fact The following findings are based on the uncontested facts alleged in Petitioner's Motion For Summary Recommended Order and from the Final Orders issued in Bayshore Homeowners Association v. Department of Environmental Regulation and Grove Isle, Inc., Case Nos. 79-2186, 79-2324 and 79-2354. On December 29, 1980 DER entered a Final Order on the application of Petitioner for a 90 slip marina in Biscayne Bay, Florida. The Order denied the permit because Grove Isle had not demonstrated that the project is "affirmatively in the public interest" and because the applicant had not demonstrated that it "can meet ambient water quality standards within the project area itself." In the Recommended Order on Remand the Hearing Officer had defined "existing ambient waters" to be the area in the cove between Grove Isle and the Miami mainland. The Final Order rejected that concept and held if any waters others than those contained within the immediate project site were to be considered as ambient, Petitioner must request a mixing zone as part of its application. See Section 17-4.242, (1)(a)2.b. and Section 17-4.244, Florida Administrative Code. By a letter received at the Department of Environmental Regulation on May 20, 1981, Grove Isle reapplied for the boat dock permit which was the subject of the foregoing proceedings. Petitioner's application, which was in the form of a letter from counsel, stated: May 18, 1981 Mr. Larry O'Donnell Department of Environmental Regulation Post Office Box 3858 West Palm Beach, Florida 33402 RE: GROVE ISLE - Application for Boat Dock Dear Mr. O'Donnell: On behalf of Grove Isle, LTD, I am reapplying for the boat dock permit previously applied for by Grove Isle, LTD. Please consider this a short-form application. Your office designated a previous file number, DF 13-7956, to this matter. In conjunction with that application I am applying for a mixing zone, pursuant to Rule 17-4.244, for both the construction and operation of this marina. Please refer to your file on the previous application and incorporate said documents into this reapplication. I am submitting with this application: A scale drawing (one inch = 100') of the proposed facility. (which you have) A certified survey of the proposed mixing zone. (one inch = 100') An application fee of $20.00 A copy of the Final Order issued by Jacob D. Varn, former secretary of DER, on the previous application. A copy of the Notice of Intent previously issued for this project, dated 9/23/79. (which you have) As you will note from reading Mr. Varn's Final Order, he concluded that issuance of this permit was not appropriate inasmuch as the applicant had not applied for nor received a designated mixing zone. We do not necessarily agree with this order and have, in fact, appealed this decision to the First District Court of Appeal. However, in an attempt to keep this matter from becoming any more complicated, we have decided to reapply for the permit and to apply for a mixing zone. We do not concede that a mixing zone should be required for this project or that the facility will result in the release of any pollutants so as to significantly degrade ambient water quality. However, should this project, through its construction or operation, result in the release of any pollutants, I believe they would be limited to: Bottom sediments placed in suspension by the installation of the concrete piles used to support the docking facility during construction; Minimal amounts of oil and grease which may escape from the various vessels moored to the docks; The constituants of anti-fouling paint which may be applied to the hulls of the various vessels moored at the docks. Turbidity will be controlled by the use of curtains during construction. If lowered water quality occurs at all in this project it would only occur within the designated mixing zone, as per Rule 17-4.242 (2)(b) F.A.C. Please advise me should additional information be needed to process this re-application. Yours truly, /s/ KENNETH G. OERTEL On June 19, 1981, DER sent a "completeness summary letter" to Petitioner which requested the following information: Your project is in Outstanding Florida Waters. Please provide the following items demonstrating compliance with Section 17-4.242, Florida Administrative Code. Please demonstrate that this project is clearly in the public interest and that this project will not result in the degradation of ambient water quality beyond the 30 day construction period. Petitioner responded by letter dated June 22, 1981 and which was received at DER on June 25, 1981. Petitioner said in pertinent part: Dear Mr. Duke: If you would check your previous file no. DF-13-7956, I believe you will find all the information you have requested has previously been provided to your office either in that permit file or through the administrative hearings held in pursuit of this application. I think it would be more fruitful if you would communicate with Al Clark, Attorney for DER, with regard to the status of this application. As I do not wish to speak on behalf of Mr. Clark, I believe you should confirm the status of this application with him, particularly in view of our attempt to comply with Secretary Varn's Final Order which suggests the application for this mixing zone. The record reflects no further correspondence between the parties until September 23, 1981 when the Department entered a Final Order Denying Application for Permit. The Order provided that: This project was reviewed previously (DF 13-7956) and was determined not to be clearly in the public interest pursuant to Section 17-4.242, F.A.C. No further evidence upon resubmittal, has been provided to clearly demonstrate that this project is in the public interest. Furthermore, the requested mixing zone exceeds that allowable pursuant to Section 17-4.244, F.A.C. and can be applied only during the construction period, pursuant to Section 17-4.242, F.A.C. During the operation of this facility ambient water quality is expected to be degraded in violation of Section 17-4.242, F.A.C. This order was entered ninety-one days after DER received Petitioner's June 22, 1981 letter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Environmental Regulation issue the permit applied for by Petitioner, Grove Isle, Ltd. on May 20, 1981 subject to the conditions contained in the Notice of Intent To Issue Permit dated October 23, 1979 which is a part of the record in Bayshore Homeowners Association et al., v. State of Florida Department of Environmental Regulation and Grove Isle, Inc., Case Nos. 79-2186, 79-2324 and 79-2354. DONE and RECOMMENDED this 12th day of February, 1982, in Tallahassee, Florida. MICHAEL P. DODSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of February, 1982.
