The Issue This matter concerns the request by the Petitioner James A. Connell to be granted variances within the meaning of Section 131.016(b), City of Clearwater Building and Zoning Regulations. In particular the Petitioner has asked that he be given a variance from the side yard setback requirements for narrow parcels established by Section 131.200(b)(3)a.2., City of Clearwater Building and Zoning Regulations, and a variance to the requirements of Section 131.200(b)(3)e., dealing with clear space. The zoning classification in question is RM-8, as set forth in Section 131.048, City of Clearwater Building and Zoning Regulations.
Findings Of Fact On November 17, 1980, the Petitioner, James Connell, filed an application requesting a variance from the side setback requirements of Section 131.200(b)(3)a.2., City of Clearwater Building and Zoning Regulations, asking for a reduction from 30 feet to 10 feet and further requesting that the clear space requirement of having only one side yard setback to be used for parking, with the other side yard setback for clear space from street to water, with the further possibility that that space be used for driveways of parking below street grade, as stated in Section 131.200(h)(3)c., be modified to grant the Petitioner a variance. The extent of this latter variance would be for clear space offered in the center portion of the project which gives 24 feet in width essentially unobstructed clear space, with an additional 20 feet space street to water on each side of the 24 feet unobstructed space, which north/south 20 foot expansions are constituted of driveways for the eight (8) proposed dwelling units to be constructed by the Petitioner. The real property under consideration is owned by the Petitioner and zoned RM-8 within the meaning of Section 131.048, City of Clearwater Building and Zoning Regulations. The address is 1012-1016 North Osceola Avenue, Clearwater, Florida. This case was presented before the State of Florida, Division of Administrative Hearings, on March 25, 1981, following a public hearing of January 15, 1981, in which the Board of Adjustment and Appeal on Zoning, City of Clearwater, Florida, had made an adverse ruling to the position of the Petitioner. The tape of the proceeding on January 15, 1981, may be found as Petitioner's Exhibit No. 3, admitted into evidence. The site plan of the project in question has been reviewed by the Resource Development Committee of the City of Clearwater with a recommendation for approval of the project, conditioned upon the attainment of variance exceptions. A copy of the application for variance may be found in the City of Clearwater's Composite Exhibit No. 4, admitted into evidence. Through that application form, and in the course of the hearing, the Petitioner expressed concern about the survival of two 36 inch in diameter mature oak trees located on the property in question and also mentioned that the drop in elevation of the eastern side of the property front on Osceola Avenue North to the waterward western extreme of the property at Clearwater Harbour becomes dramatic approximately two thirds from the eastern extent of the property line making utilization of the latter third to the west difficult. In combination, this topographical reality and the location of the two oak trees, according to the Petitioner, would make it difficult to construct a project oriented to the center of the property, in an effort to comply with the "clear space" requirements. The Respondent, City's Exhibit No. 1, admitted into evidence, is a site plan which depicts the Petitioner's proposals and it shows that lot to be approximately 160 feet in width and from 355 to 360 feet in length, the width relating to a roughly north/south orientation and the length a roughly east/west orientation. The drawing depicts the proposed ten foot side setback, the 24 foot clear space with additional 20 feet north/south associated with the driveways. The proposal would leave in tact the aforementioned oak tree or trees located in the approximate center of the 24 foot vista space. (In that connection, although the Petitioner has attempted by his plan to save some of the trees, the plan as drawn for unit four of the eight unit townhouse complex depicts the removal of a 40 inch oak tree.) The lot drops from a 26 foot to a 17 foot elevation from the street to Clearwater Harbour. The effect of that drop would be to limit the percentage of an automobile that could be seen if located in a driveway toward the waterward side of the site. The Petitioner's Exhibit No. 1 and the City's Composite Exhibit No. 2 are photographs of the building site. Through the hearing process no one has objected to the grant of the variances in question and one person who resides In the neighborhood spoke in favor of the project.
Findings Of Fact The Department adopts and incorporates herein the Findings of Fact and Conclusions of Law contained in the Recommended Order. Accordingly, it is ORDERED that: The Department’s actions in this cause are affirmed, and the Petitioner’s formal written protest is hereby dismissed with prejudice. DONE AND ORDERED this Al day of October, 2005, in Tallahassee, Florida. , JAMES V. CROSBY, JR., Secretary Department of Corrections 2601 Blair Stone Road Tallahassee, FL 32399-2500 (850) 488-2326 RIGHTS OF APPEAL This Order may be appealed with thirty (30) days by filing a Notice of Appeal with the agency and with the District Court of Appeal. Except in cases of indigence, the Court will require a filing fee and the agency will require payment for preparing the record on appeal. For further explanation of the right to appeal, refer to Section 120.68, Florida Statutes, and the Florida Rules of Appellate Procedure. Copies furnished to: Barbara J. Staros, Administrative Law Judge’ Richard J. Saliba, Esquire Division of Administrative Hearings Susan P. Stephens, Esquire The DeSoto Building Department of Corrections 1230 Apalachee Parkway 2601 Blair Stone Road Tallahassee, FL 32399-3060 Tallahassee, FL 32399-2500 Michael E. Riley, Esquire Louis A. Vargas, General Counsel Gray Robinson, P.A. Department of Corrections Post Office Box 11189 2601 Blair Stone Road Tallahassee, FL 32302-3189 Tallahassee, FL 32399-2500 Filed in the official records of the Department of Corrections on this al day of October, 2005. Agency Clerk
Conclusions This matter comes before the Department of Corrections (“Department”) for consideration and final agency action. On June 30, 2005, Barbara Staros, Administrative Law Judge (“ALJ”), Division of Administrative Hearings, conducted a formal hearing in this cause and, on September 9, 2005, issued a Recommend Order. A copy of the Recommended Order is attached hereto as Appendix “A”. Pursuant to section 120.57(3)(e), Florida Statutes, and Rule 28-106.217, Florida Administrative Code, the parties were allowed ten (10) days to submit exceptions to the Recommended Order. On September 19, 2005, The Sherwin-Williams Company, herein after referred to as Petitioner, submitted its Exceptions to Recommended Order. Respondent, the Department of Corrections (hereinafter referred to as the Department), has not submitted any exceptions to the Recommended Order. On September 15, 2005, ‘the Department filed a motion to tax costs. On October 5, 2005, the ALJ granted the motion to stay and placed the motion to tax costs in abeyance until the issuance of a final order and any appellate proceedings concluded. STANDARD OF REVIEW An agency may not reject an ALJ’s findings of fact “unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law.” Section 120.57(1)(), Florida Statutes; see also Florida Power & Light v. State of Florida, Siting Board, 693 So.2d 1025, 1027 (Fla. 1* DCA 1997). An agency may not reweigh the evidence presented at formal hearing and substitute its findings for those of the ALJ. South Florida Water Management District v. Caluwe, 459 So.2d 390, 394 (Fla. 4" DCA 1984). Accordingly, an agency must accept an ALJ’s findings of fact if they are supported by competent substantial evidence in the record. Id. at 395. Finally, an agency may not circumvent these requirements by simply characterizing an ALJ’s findings of fact as legal conclusions. Goin v. Commission on Ethics, 658 So.2d 11318 la. 1"DCA 1995). RULINGS ON PETITIONER’S EXCEPTIONS 1. Petitioner’s Exception #1 to the findings of Fact in Paragraph #24 is rejected. This finding of fact largely consists of a quote from Bobby Brooks, an Operations and Management Consultant Manager for the Department. This quote is taken directly from the transcript of the hearing conducted on June 30, 2005. Nothing in Petitioner’s argument contradicts the actual finding in Paragraph 24. . Petitioner’s Exception #2 to the findings of Fact in Paragraph #13 is rejected. This finding was stipulated to by both parties. See Pre-Hearing Stipulation of the Parties, filed June 27, 2005. . Petitioner’s Exception #3 to the findings of Fact in Paragraphs #25 and #28 are rejected. Again, these findings stem directly from the testimony of Mr. Brooks found in the transcript. The conclusion complained of in the exception is found nowhere in the actual findings of fact that are being challenged. . Petitioner’s Exception to the conclusion of law found in Paragraph #35 is rejected. The hearing officer’s finding that the only evidence of a policy that the Department rejects and rebids when only one responsive bid is received comes from Mr. Brooks’s testimony and is supported by the finding of fact in Paragraph # 25: . Petitioner’s Exception to the conclusions of law found in Paragraphs #38 and #39 are rejected. As noted by the hearing officer, Mr. Brooks articulated a factual and logical basis for the decision to reject all bids, and even if one “may have reason to disagree with how Mr. Brooks reached his decision, his decision is not illogical.” (Recommended Order, p. 11) . Petitioner’s Exception to the conclusion of law found in Paragraph #41 is rejected. “An arbitrary decision is one not supported by facts or logic, or despotic.” Board of Trustees of Internal Imp. Trust Fund v. Levy, 656 So.2d 1359, 1362 (Fla. 1 DCA 1995) citing Agrico Chemical Co. v. Dep’t of Environmental Regulation, 365 So. 2d 759, 763 (Fla. 1" DCA 1978). From the transcript, it is clear that the decision to reject all bids is based on reason, even if one does not agree with the end result. Mr. Brooks reasonably had concerns about the bid prices and the fact that there was not a competitive bid. These concerns are certainly not indicative of a despotic or arbitrary decision. Again, “[a]bsent a showing that the purpose or effect of the reject is to defeat the object and integrity of competitive bidding,” the Department’s decision to reject all bids must stand. Gulf Real Properties, Inc. v. Department of Health and Rehabilitative Services, 687 So. 2d 1336, 1338 (Fla. 1" DCA 1997),
Findings Of Fact Bennie Mae Rutledge, Petitioner, owns property located at 422 Madison Avenue, Clearwater, Florida which is the northwest corner of the intersection of South Madison Avenue and Brown Street. The legal description of the property is Lot 12, Block 1, Moase and Harrison Subdivision. The property is zoned commercial general. David Legault has a contract with Petitioner to purchase the subject property which is conditioned upon the granting of the variance which Petitioner is seeking. Legault's primary objective in this proceeding is to enhance business opportunities available to him through the purchase and use of Petitioner's property, if the variance sought herein is granted. On or about July 24, 1956 an application for a variance of the side property setback line requirement was submitted on behalf of Petitioner. This variance would permit the construction of an indoor storage or warehouse building 3.6 feet from the side property line, rather than ten feet. This is a variance of 6.4 feet. On August 14, 1986 the Development Code Adjustment Board denied this variance, and a timely appeal was taken on behalf of Petitioner. Prior to submission of this variance request, the Petitioner had sought four variances which were also denied. At that time, a 2,500 square foot building was proposed for the property which has now been reduced to a 2,000 square foot building, 100 feet long and 20 feet deep. The subject property is 136 feet long and 48.6 feet deep. Given the dimensions of the lot, and considering the requirements for parking, green space, and other setbacks, the variance sought herein is the minimum necessary to use this property for a warehouse or indoor storage. Without this variance, the building could only be 13 feet deep, and this would not be functional. Therefore, the particular size and shape of the subject property will result in an unnecessary hardship upon the Petitioner if the provisions of the Clearwater Land Development Code are strictly applied since the maximum depth of a commercial warehouse constructed on the lot could only be 13 feet. According to John Richter, development code administrator, there are several commercial warehouses in the area of the subject property, and in his opinion the approval of this variance would neither have an adverse impact on the neighborhood, nor would it be a benefit.
The Issue Whether Appellant should be granted variances in setback lines to allow construction of a retail store on a lot at the northeast corner of the intersection of Papaya Street and Gulfview Boulevard on Clearwater Beach, Florida.
Findings Of Fact Appellant purchased the property at 24 Papaya Street in Clearwater Beach (lots 29-32, inclusive, Clearwater Beach Park) approximately two years ago. The only inquiry made of zoning officials regarding use of the property, other than zoning, was what part of the lot could be covered with a building. This lot is nearly square but is nonstandard in both width and depth to construct a building without a variance. These variances were granted at the initial variance request heard in December 1992. Appellant proposes to construct a retail store containing some 4700 square feet of floor space. To erect a building of this size on the lot a variance of 3 percent to allow 48 percent coverage of the lot was required. This variance was granted by the Board; however, without the variances in setback on the four sides of the parcel, this 3 percent variance in lot coverage is useless to the Appellant. This lot currently has four old buildings with a combined total of 2723 square feet. The largest is nearly square and contains approximately 1120 square feet. There are rental apartments in some, if not all, of these buildings. It is proposed to remove these buildings, if the permit to construct the proposed store is granted. The existing buildings are nonconforming and three are between 2 to 4 feet of the lot lines on the north, east and south sides of the property. The property is zoned CR-28 (Resort Commercial) and the proposed use is authorized in this zoning classification. The plans are and the applicant proposes to provide the required parking spaces for this establishment under the proposed structure. Appellant presented evidence that adjacent properties were built to the lot line with no setback. Most of these buildings were erected before setbacks were required in this area and are grandfathered in so long as the structures remain. In 1986 the Development Code Adjustment Board granted setback variances on all four sides of the property across Gulfview Boulevard from Appellant's property. That parcel was also nonstandard and even smaller than the parcel of land here involved. Because of the size of the property the Board found a hardship existed and without the requested variances the property had little value. One significant difference in these two parcels is that one had been owned by one family since 1932 while the instant parcel was required circa 1990. Further, evidence was presented that being one block east of Mandalay Avenue, the main traveled beach road, the proposed structure needs to be seen from Mandalay to attract pedestrian traffic. The building just west of Appellant's lot is built to the lot line and partially blocks the view of Appellant's property from Mandalay. The use of the property sought here is consistent with the Comprehensive Land Use Plan and no protest to the granting of the variances requested were received from adjacent property owners. Razing the existing structures and erecting the proposed store in which the applicant intends to sell upscale beach wear would improve the appearance of the neighborhood.
Findings Of Fact The Petitioners, Dale K. Niemann and Janet R. Niemann, own property on Devon Drive, in Clearwater, Florida, which is approximately two houses down the street from the Respondent, John Blakely. On or about May 25, 1990, Mr. Blakely requested two variances from the Development Code Adjustment Board of the City of Clearwater. It was his intention to seek the variances in order to extend his present dock approximately twenty-five feet (to a length of eighty-nine feet) and to allow the dock to be positioned 8 feet from an extended side property line. The Petitioners oppose the requests and argue that the extension is not necessary to make reasonable use of Respondent's dock. Further, they claim that, if allowed, the dock extension, together with the boat lift the Respondent proposes, will interfere with their view of the water. The proposed dock extension will not obstruct navigational activities. The natural shoaling process has resulted in the accretion of sand and silt along the Respondent's property. As a result, during low tides it is difficult to utilize the existing dock and would be impossible to use it for the proposed boat lift. Also, there is a grass flat landward of the proposed boat lift site upon which the Respondent's construction will not infringe. The construction of the lift at the terminus of the existing dock might disrupt that grass bed. The Respondent will not financially gain from the granting of the requested variances. The approval of the variances will not impair an adequate supply of light or ventilation to the adjacent properties, nor substantially diminish or impair the value of the surrounding property. The approval of the variances will not adversely affect the public health, safety, order, convenience or general welfare of the community. The approval of the variances will not violate the general spirit and intent of the Development Code. While the approval of the variances may alter the Petitioners' view from the side window of their residence, such alteration should not materially detract or injure their property or the property or improvements of others in the neighborhood. Other structures which Respondent could construct without the approval of variances could be more detrimental to the neighborhood.
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 Is Petitioner entitled to a surface water permit modification without a maintenance requirement? Is Petitioner entitled to remove an 18-inch culvert which is required to remain in place by permit modification? Does the Division of Administrative Hearings (Division) have jurisdiction to grant the relief sought in this proceeding?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Petitioner is a corporation existing under the laws of the State of Florida that is in the business of, among other things, the production of citrus. Respondent is the agency of the State of Florida with the power and duty to exercise regulatory jurisdiction over administration and enforcement of surface water management systems pursuant to the provisions of Part IV, Chapter 373, Florida Statutes, and Chapter 40D-4, Florida Administrative Code, within its defined area. Sometime after Petitioner had been granted the initial surface water permit, Respondent began to receive complaints of flooding from property owners adjacent to Petitioner's property. Respondent determined that there was a mistake in the original design due to Petitioner's engineer having stated that there was no off-site flow of water into Petitioner's grove. Respondent's engineer later noted off-site in-flows of water to Petitioner's property which originated at the northeast corner of Petitioner's property. In August 1990, to correct this problem, Petitioner's engineer (Tim L. Martin of Wiles and Associates) requested a modification of Permit No. 404628.01 by proposing that an 18-inch culvert be placed in the northeast corner of Petitioner's property to address 200 acres of off-site flows. Respondent approved this modification to the original permit and the 18-inch culvert was installed. During 1995 Respondent received complaints of flooding from Richard and Janet Harvin, property owners adjacent to Petitioner's property. To address the Harvins' drainage concerns, Dino Ricciardi, an engineer with the United States Department of Agriculture Natural Resource Conservation Service, recommended a spillway. Ricciardi estimated the off-site drainage area to be 400 acres plus or minus 20 per cent. This estimation was twice the amount estimated by Petitioner's engineer at the time of the permit modification permitting the installation of the 18-inch culvert. By letter dated July 28, 1995, Respondent advised Petitioner that the existing 18-inch culvert authorized by the permit modification may be undersized and requested Petitioner's presence at a meeting in Venice, Florida, to discuss concerns of flooding of adjacent properties. By letter dated March 25, 1996, Respondent provided Petitioner with a summary of items for consideration by the parties at the meeting on March 29, 1996, when developing corrective actions for the drainage resolution plan. By letter dated April 16, 1996, Respondent admonished Petitioner for its failure to comply with agreed-upon time frames for providing information concerning a structure at the northeast corner of Petitioner's property. On April 23, 1996, Petitioner's engineer, Jerry Bowden of Kelley and Bowden, Inc., responded to Respondent's letter of April 16, 1996, with a proposal to install a 42-inch culvert with a 54-inch riser. A drawing in this proposal indicated that the existing 18-inch culvert would be removed and a 42-inch culvert with a 54-inch riser would be installed. This drawing shows the 42-inch culvert to be entirely on Petitioner's property. Jerry Bowden estimated the pre-development basin relevant to flows through the proposed 42-inch culvert at 550 acres. Jerry Bowden also stated that the upland properties drained included the Lowe property and a smattering of other properties, including a couple of acres or so of the Harvin property. On May 23, 1996, Petitioner submitted plans attached to Respondent's proposed remedial action plan which indicated that the 18-inch culvert would be removed and a spillway constructed on property located north and northeast of Petitioner's property. By June 1996 Respondent had worked out a remedial action plan to address the concerns of all parties. The plan provided for the construction of a spillway at the northeast corner of Petitioner's property and other structures that allowed the flows to pass through Petitioner's property. The remedial action plan also provided for the construction of out-flow structures at the southwest corner of Petitioner's property that were sufficient to compensate for inflows of the open spillway. The remedial action plan was approved by James Guida, Director of Respondent's Venice Regulation Department. Petitioner and its western grove owner neighbors, the Harrisons, entered into an easement which allowed Respondent to enter the Harrison's land for the construction of the remedial action plan. By letter dated July 6, 1996, Janet Harvin, a property owner that would be affected by the remedial action plan advised Petitioner as follows: You have my permission to go on our property to do the work that Southwest Fla. Water Management approved, on condition that you make sure that we have received notification (2) two days ahead of time so that we may have our cows moved from that pasture. I also would like a representative (Mitch Malone) of SWFWMD and my husband or myself present at the time of the work. We will be responsible for taking the fence down and putting it back up. (Emphasis furnished) Construction on the remedial action plan began sometime in September or October 1996. By letter dated October 16, 1996, Respondent urged Petitioner to complete work on the remedial action plan noting that neighbors were complaining of flooding. Respondent demanded that Petitioner provide a completion date of October 25, 1996. By letter dated October 30, 1996, Jerry Bowden proposed leaving the existing 18-inch culvert and installing a 36-inch culvert with a 42-inch riser in place of the 42-inch culvert with a 54-inch riser. These two culverts would replace the spillway proposed in the remedial action plan. By letter dated November 1, 1996, Respondent advised Petitioner that Respondent would have no objections to Petitioner's proposal provided Petitioner could show that the 36-inch culvert and the 18-inch culvert would have an equal or greater conveyance capacity to that of the spillway. The Respondent also requested detail on a plan or section view drawing to show the scope of the work and calculations or pipe capacity charts to show adequate capacity to handle peak rates of run-off. Respondent assured Petitioner that it would expedite its review of this material. After the November 1, 1996, letter, there was no further contact between Respondent and Petitioner concerning this matter prior to Petitioner's installing the 42-inch culvert. On November 19, 1996, the Harvins discovered that the 42-inch culvert with the 54-inch riser had been installed on their property by Petitioner's engineer, Jerry Bowden. Jerry Bowden knew prior to installing the 42-inch culvert that the culvert could not be installed entirely on Petitioner's property. While the Harvins had given Petitioner permission to go onto their property for certain work approved by Respondent set- out in the remedial action plan, the Harvins never gave Petitioner express or implied consent for the installation of the 42-inch culvert on their property before or after its installation. In fact, Janet Harvin swore out a trespass complaint against Ed Safron, Petitioner's president. Petitioner did not receive prior approval from the Respondent before installing the 42-inch culvert with the 54-inch riser on the Harvins' property. Based on his calculation of the watershed area, Jerry Bowden was of the opinion that the 42-inch culvert was sufficient to handle the off-site flows without the aid of the 18-inch culvert. However, Bowden testified there were other studies that had not been performed that could possibly produce data that would change his opinion that the i8-inch culvert was not needed to handle the off-site flows. On December 10, 1996, Petitioner applied for a letter modification of its permit for the 42-inch culvert it had previously installed on the Harvins' property without approval of either Respondent or the Harvins. This letter application described the project for which permitting was sought by referring to two previous letters dated April 23, 1996, and November 12, 1996. It was indicated in the November 12, 1996, letter that the 18-inch culvert would remain in-place unless at a later date conditions warranted its removal. Subsequent to this letter application, Respondent requested information from Petitioner concerning the maintenance issue. Petitioner did not respond to this request. By letter dated January 13, 1997, the Harvins notified Respondent that as a result of the construction of the 42-inch culvert rather than the spillway and as a result of Petitioner's failure to comply with the conditions in their letter of July 5, 1996, the Harvins would not grant Petitioner blanket permission for maintenance of the structure which Petitioner placed on their property without permission. However, the Harvins did indicate that they would allow maintenance on a case- by-case basis. By letter dated February 6, 1997, Janet Harvin advised Petitioner as follows: This letter is to revoke any and all permission that you could possibly think you have or anyone connected with you could have now, in the past, or in the future, come on our property without explicit permission from my husband or myself. On December 12, 1997, Petitioner issued the letter modification challenged herein which authorized the 42-inch culvert and required that the 18-inch culvert remain in place. The letter modification also placed the burden of maintenance of the system on Petitioner. There is insufficient evidence to show that the 42-inch culvert in combination with the 18-inch culvert is generating an excessive amount of off-site in-flow onto Petitioner's property or that the off-site in-flow onto Petitioner's property has resulted in damage to Petitioner's property or to Petitioner's citrus grove on that property, notwithstanding the testimonies of Edwood Safron or John Douglas to the contrary. Respondent's staff testified that based on their walking the watershed in December 1998, it appears that the watershed that drains to the northeast corner of Petitioner's property is between 300 and 350 acres and that the 42-inch culvert would be adequate from a conveyance standpoint. However, since the Harvins are insisting that the 18-inch culvert remain in place if there is going to be some type of agreement for Petitioner to go onto the Harvins' property to maintain the system, it is necessary that further studies be completed to determine more accurately the need for the 18-inch culvert. On November 23, 1998, Respondent invited Petitioner to apply for a permit modification if it had an expert who could state that the system minus the 18-inch culvert met rule criteria. On December 28, 1998, Petitioner filed a Modification of Permit by Letter with Respondent. There is insufficient evidence to show that the Harvins or any other upstream adjoining landowner had engaged in any unpermitted self-help drainage or that the Harvins or any other upstream adjoining landowner had materially diverted surface drainage onto Petitioner's property.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Southwest Florida Water Management District enter a final order denying the requested modification. DONE AND ENTERED this 23rd day of June, 1999, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of June, 1999. COPIES FURNISHED: E. D. "Sonny" Vergara, Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Edward B. Helvenston, General Counsel Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 J. Michael Rooney, Esquire Post Office Box 510400 Punta Gorda, Florida 33951-0400 Patricia J. Hakes, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
Findings Of Fact Jack E. Moore is the owner of real property in Fort Myers Beach known as Lot 9 of Indian Bayou, a subdivision in Section 33, Township 46 South, Range 24 East, Lee County, Florida. Moore's property is bordered on the north by the waters of Indian Bayou and Estero Bay. The northern portions of Moore's property are vegetated by juvenile and mature red and black mangroves. Red and black mangrove are the dominant species of vegetation on the northernmost portions of the property, waterward of the fill pad on which Moore's house is built. Sometimes during July, 1982, Moore used a shovel to excavate a channel from the open waters of Estero Bay to a dock existing at the edge of the fill pad. Approximately 48 cubic yards of excavated material was piled up along the banks of the channel. The channel measured approximately 1.5 feet deep (at low tide) by 9 feet wide by 70 feet long. The channel was dug so that Moore could got his boat in and out from the dock at medium tide. The passage to the deck was already possible at high tide, as Moore had a shallow draft pontoon boat. In July, 1981, Moore constructed a rip-rap revetment with backfill the northern side of his house fill pad. The back fill area contains approximately 160 cubic yards of fill, and is approximately 10 feet wide by 110 feet long. Red mangrove and black mangrove are and were the dominant vegetational species in the area where the channel was dug, where the excavated material was placed, and where the revetment and fill was constructed. The area of dominant mangrove vegetation extends from the work areas to the open waters of Estero Bay. Moore did not apply for or receive a permit from DER prior to undertaking the work referenced above. Upon discovery of the work in September, 1982, DER notified Moore that a permit was needed for the excavation and filling he conducted. In October, 1982, Moore agreed to fill in the channel and remove all unauthorized fill by January 19, 1983. Inspection by DER on January 26, 1983, showed that restoration had not been started, and in fact more work had been done on the channel. DER issued a Notice of Violation and Orders for Corrective Action (NOV) to Respondent on March 29, 1003, alleging violations of Chapter 403, Florida Statute's, and DER rules and requiring restoration of the areas dredged and filled. Upon service of the Notice of Violation by the Sheriff, Respondent petitioned for this hearing. DER incurred costs of 5101.88 in investigating the violations alleged in the NOV. As of the date of the hearing, restoration work still had not been performed. Although the spoil piles alongside the channel are now diminished, the channel itself was deep as it previously had been and the rip-rap revetment and backfill had not been removed.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Respondent McMullen is the owner of property located at Keaton Beach, Taylor County, Florida. The southern portion of the property borders on the Gulf of Mexico and the western portion borders on an artificial canal. Adjacent land lies to the east and north of the subject property. Prior to August of 1980, respondent constructed or caused to be constructed on the southern and western portions of the property a vertical bulkhead or seawall approximately 106 feet long, with approximately 105 cubic yards of fill material behind it, creating a fill area 106 feet long by 12 feet wide. The respondent did not apply to the DER for a permit to proceed with this activity. In September of 1980 and again in January of 1981, the DER sent warning notices to the respondent advising him that he was in violation of the statutes and rules governing permitting for stationary installations and dredging and filling activities. The petitioner received no response to these notices from the respondent. On June 9, 1981, the petitioner issued its "Notice of Violation and Orders for Corrective Action", alleging as facts that the bulkhead and fill area were placed within the landward extent of the Gulf of Mexico, that construction was undertaken without a permit and that the activity caused and will continue to cause pollution so as to harm and injure animal, plant and aquatic life. The "Orders for Corrective Action" included the payment of the DER's expenses and the complete restoration of the area. A 1979 aerial photograph of the subject Keaton Beach area indicates that the southern property line of respondent's property formed a straight line with the southern property line of the adjacent property to the east of the respondent. The respondent's vertical seawall now extends waterward of the southern property line of the adjacent property, which is bordered with rip rap. The exact determination of where the waters of the State terminate on the respondent's property cannot be made because that area is now covered by fill. The waters of the State bordering the adjacent property extend to the bands of grass behind the rip rap. This a be determined from the vegetation on the adjoining property and the condition of the shoreline. The petitioner's expert witness in ecology and dredge and fill permitting estimated that the respondent's bulkhead extends approximately 12 feet waterward of the mean high water line. The area surrounding respondent's property was dredged and/or filled in the late 1950's, and at least a portion of the respondent's property was created from the fill. Loose rocks from the dredging operation were placed on the borders of the fill, and the site began to stabilize and develop its own shoreline with wetland vegetation. At least some of the property to the south of respondent's property was dredged in order to connect or provide better navigational access to the two canals to the east and west of the property. During periods of extreme low tide, both edges of the dredged area are out of the water. The construction of the vertical seawall with fill placed behind it covered vegetation found in the landward extent of waters of the State and eliminated the existing littoral and intertidal zones. The grasses and vegetation which were displaced served an important filtrative function and nutrient transport has now been interrupted. Significant revegetation of the area in front of the bulkhead cannot be expected in its present condition. Erosion and runoff from the area behind the seawall can reasonably be expected to be a source of pollution so as to harm or injure animal, plant or aquatic life. The placement of rip rap, or a loose aggregation of broken concrete ore rock piled up to form a wall, is a more environmentally compatible method of land retention than the construction of a vertical seawall. The rip rap has the ability to dissipate energy by breaking up waves, and retarding the erosive effects of wind and wave action. Unlike a seawall, vegetation can grow around the rip rap. The respondent did have in his possession a letter dated September 28, 1977, from David B. Scott, an Environmental Specialist with the DER, which stated: "In regard to your letter of September 26, 1977, a permit from this agency will not be needed for seawall construction in an artificial canal. All that is required is that your seawall not impede navigation and that you do not violate existing water quality standards." This letter was addressed to a Mr. Dennard L. White, who was believed by respondent to be a nearby property owner. Mr. White's letter of September 26, 1977, was not presented at the hearing. The DER is not attempting in this proceeding to exert jurisdiction over the seawall built on the western side of respondent's property, which fronts the artificial canal. The costs and expenses of the DER in investigating the violations alleged in this proceeding amounted to $216.76.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that respondent be found guilty of violating Section 403.161(a) and (b), Florida Statutes, and that he be ordered to comply with and perform the Orders for Corrective Action dated June9, 1981. Respectfully submitted and entered this 19th day of March, 1982, in Tallahassee, Florida. DIANE D. TREMOR, 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 19th day of March, 1982. COPIES FURNISHED: Cynthia K. Christen, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 John R. Weed, Esquire 605 South Jefferson Street Perry, Florida 32347 Victoria Tschinkel Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Richard M. Davis, Esquire Suite 320 Lewis State Bank Bldg. Tallahassee, Florida 32302
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 =================================================================
