Findings Of Fact On or about April 5, 1988, Petitioner filed an application for a variance to replace an existing four foot fence extending to the seawall on his property at 643 Harbor Island, Lot 12 Island Estates, Clearwater, Florida. The subject property is zoned RS-6. Petitioner had already replaced his previous fencing prior to the filing of this application with wooden fencing which extends on the north and south side of his property through the setback to the seawall. The Development Code Adjustment Board considered Petitioner's application at its meeting on May 12, 1988, and based upon the Petitioner's explanation that the variance was sought simply to replace an existing fence that had termite damage, the Board approved his application on a 3 to 2 vote. The variance approval was conditioned upon the Petitioner obtaining a building permit within one month of the approval. Petitioner failed to obtain the required building permit, and no excuse was offered for this failure. Therefore, he had to reapply for the variance. On or about July 21, 1988, Petitioner filed his variance reapplication. The Development Code Adjustment Board considered this reapplication on August 25, 1988, at which time Petitioner again stated that he was simply replacing an existing fence. Due to a tie vote, consideration of the reapplication was continued to the Board's meeting of September 8, 1988. At the meeting on September 8, he explained for the first time that while the fencing on the south side of his property was simply the replacement of a previous fence which had extended to the seawall, the fencing on the north side was not. The previous fence on the north side of his property had stopped prior to the fifteen foot setback. With this clarification, the Board approved his variance reapplication for the south side of his property, but denied the variance for the north side. Petitioner has timely appealed the denial of his variance reapplication as it relates to the north side of his property. Petitioner testified at hearing that prior to the construction of his current wooden fence, he had a wood fence all the way to the seawall on the south side of his property. Since he had to replace that fencing due to termite damage, he took the opportunity to also replace and extend the wooden fencing on the northern side of his property through the setback. This action was not based on any hardship, but simply because he and his family felt it would look better if he had the same fencing on both sides of his property. It is clear and undisputed that Petitioner constructed a new fence on the north side of his property through the setback without obtaining a variance or permit. He did this simply for aesthetic reasons, and not due to any hardship. He failed to disclose this in his applications, or when the Board met on May 12 and August 25, 1988 to consider this matter.
Findings Of Fact The Petitioner has an option to purchase property located at 301-307 Island Way Boulevard, Island Estate, Clearwater, Florida, on which he proposes to construct ten townhouses. Initially Petitioner asked for two variances. The first variance was for 25.12 feet to allow construction on a lot only 124.88 feet wide. This variance was granted for this nonconforming lot. The second variance, for 13.24 feet to allow construction of the ten townhouse complex 12 feet from the side property line, was denied by the Clearwater Code Adjustment Board. The Board concluded the variance requested did not meet the requirements of Section 45.24 of the Clearwater Land Development Code. Petitioner presented evidence that if the lot had been 150 feet wide they would have had 90 feet to build on without requesting any variance. However, since the lot was nonconforming, in order to have 89 feet on which to place the building, the requested variance would be necessary. Petitioner also presented evidence that the construction of ten townhouses on this lot is necessary for the project to be on a solid economic basis. Subsequent to the denial of this variance by the Development Code Adjustment Board, Petitioner submitted plans, which have been approved by the City of Clearwater, to erect nine townhouses on this property without any variance needed. However, these townhouses would be smaller than would be the ten townhouses initially proposed and would provide a lesser return on the capital invested.
The Issue Whether Appellant was wrongfully denied a variance of 21.33 feet to construct a second floor deck at 673 Bay Esplanade, Five Palms Motel Condo, Clearwater, Florida.
Findings Of Fact John Shaw, a resident of Massachusetts, purchased the condominium for which the variance is here requested in December, 1988 without first visiting the property or inquiring about zoning restrictions. The unit purchased is on the second floor of a two story building earlier converted from a hotel or motel into condominiums. The seller told Shaw he could construct a deck over the existing deck on the ground floor condominium below the unit purchased by Shaw. While the construction of this deck was in progress it was discovered no permit had been pulled for the project and the work was stopped. The subsequent application for a permit was denied because the proposed deck encroached some 21.33 feet into the setback area. The application for a variance was denied by the Clearwater Development Code Adjustment Board and this appeal followed. The two buildings comprising this complex were erected many years ago and are non-conforming, i.e., the buildings themselves violate the current Development Code. An existing deck extending into the setback area was constructed on the unit directly below the condominium purchased by Shaw and a similar deck extending to the seawall was constructed on an adjacent building. No permits are on file for those decks. Construction of the proposed deck would improve the livability of the condominium greatly by expanding the area usable for looking seaward. The condominium has been used without this deck for many years. This property is zoned CR-24 and the setback requirement is 25 feet from the water's edge.
The Issue The issue in this case is whether the evidence sustains the decision of the City of Clearwater Development Code Adjustment Board (the Board) to grant the application of the Appellant, the City of Clearwater for dock length, width and setback variances to allow the reconstruction of the public pier facility located at the west end of Magnolia Drive in Clearwater, Florida. (The pier was destroyed by the "No Name Storm of the Century" on March 12-13, 1993.)
Findings Of Fact On or about September 1, 1993, the City of Clearwater applied to the City of Clearwater Development Code Adjustment Board (the Board) for dock length, width and setback variances to reconstruct the public pier facility located at the west end of Magnolia Drive in Clearwater, Florida, where it terminates at the waterfront in an "aquatic lands/coastal zoning district." The pier was 91.5 feet in length and 40 feet in width; it was set back 12.5 feet from the extension of the adjacent property lines. It was destroyed by the "No Name Storm of the Century" on March 12-13, 1993. Since the site has 65 feet of waterfront, reconstructing it to its previous dimensions requires variances of: (1) 59 feet in dock length (over the 32.5 feet allowed by the City of Clearwater Development Code); (2) 17.25 feet in dock width (over the 22.75 feet allowed by the Code); and (3) 7.5 feet reduction in setback from the extended adjacent property lines (below the 20 feet required by the Code.) Before its destruction, the public pier at the west end of Magnolia Drive in Clearwater had been in existence for many years. (The original version was built in approximately 1915.) The evidence is that the community at large desires to reconstruct the pier to its former dimensions. The old pier has historic and sentimental significance. It also serves as a recreational facility for residents without private access to a dock on the waterfront. Especially in the last several years before its destruction, public use of the old pier brought with it problems of misuse, loitering, litter, noise, trespassing, and crime. The police did not have the resources to prevent these problems. Criminal activity in the area seems to have decreased since the destruction of the old pier. As a result, the property owners closest to the pier do not want the public pier reconstructed at all, and certainly do not want it reconstructed to its former dimensions. They oppose the variance application. The conditions imposed by the Board (no deviation from the proposed materials and building plan, the erection of signs as to closing times to be enforced by the police, proper lighting, and the installation of an electronic safety system, including a gate, to be monitored by the police) will help alleviate many of the concerns of the neighboring property owners but are not guaranteed to eliminate them in their entirety. The water is shallow in the vicinity of the site, and a dock of a certain length is necessary for the dock to be used for boats of any appreciable size and draft. However, this condition is not unique to the particular site in question, but is uniformly applicable all along the City waterfront, and there was no evidence as to the length of dock required for adequate water depth for use by boats. There is no competent, substantial evidence in the record from which it could be found that the granting of the variances will not be materially detrimental or injurious to other property or improvements in the neighborhood in which the property is located. There is no competent, substantial evidence in the record from which it could be found that the granting of the variance will not impair the value of surrounding property.
The Issue Whether the orders for corrective action DER proposes to enter should be made final against the persons to whom the notice of violation is addressed for the reasons alleged in the notice?
Findings Of Fact Eugene and Marian O. Black, Thomas A. Johnson, Dennis Black, Daniel V. Black and Ronald E. Black do business under the name Gulf Bait & Tackle. Mr. Johnson and Mr. R. E. Black fish for bait from boats that the business moors in a canal on Hernandez Point in Santa Rosa County. The canal enters Class II waters approved for shellfish harvesting in Escambia Bay near East Bay. By 1986, shoaling at the mouth of the canal began to interfere with ingress and egress. The Blacks attributed the shoals to the failure of the sea walls along the canal sides near the mouth. Three hurricanes in rapid succession had left a tattered remnant of the creosote-soaked wooden structures. Vandalism and a ditch the county dug behind the western wall, which stood on county property, also contributed. In October of 1986, perhaps half the sea wall paralleling the eastern canal bank survived. At the southern end of this segment, the sea wall turned a corner and ran east till it reached shore. What had been land inside the corner was badly eroded. Only the four easternmost panels of the southern portion of the sea wall east of the canal remained intact. Water moved freely past wooden piles resembling, in their disconnectedness, a skeleton which most of the flesh had let go. DER's Exhibit No. 1. On January 28, 1986, the Blacks bought "Lot 37, Garcon Subdivision," the Partly submerged parcel once protected by perpendicular seawalls east of the canal. DER's Exhibit No. 8. West of the canal mouth, the Blacks volunteered their time and equipment to install a concrete seawall abutting the county property. Neither the county nor the Blacks sought or obtained a permit for this work. Joseph Charles Harp, a dredge and fill inspector in DER's employ, testified that the western seawall was exempt from permit requirements, although it extends into the bay beyond the mean high water line. Lot Resold The Blacks and Mr. Johnson agreed to sell Lot 37, Garcon Subdivision, to James F. Richardson and Susan M. Richardson for what they had paid for it, and to construct a sea wall, if the Richardsons would furnish materials for the job, as Santa Rosa County had done, for the sea wall west of the canal. In keeping with this agreement, a deed was executed in favor of the Richardsons, DER's Exhibit No. 9, who furnished materials with which, in two weeks' time, the Blacks constructed a vertical, concrete seawall and dredged the canal, using a bulldozer, a crane and a dragline. Before the work was undertaken, neither the Blacks nor the Richardsons sought or obtained a DER permit. The new seawall stands in about the same place the wooden seawall on the eastern side of the canal, which "had been nonfunctional for years," once stood, consisting, as the older structure had, of two perpendicular sections. The new southern leg runs east along a line about one foot south of its predecessor, until it intersects the shore of the bay. DER Finds Project Work on the Richardsons' seawalls was almost done when it came to DER's attention on April 1, 1987. In conversations on site, the Blacks asked Mr. Harp, the dredge and fill inspector, if they could go forward with capping the seawall. The seawalls were in place, and sand dredged from the canal had been deposited between the seawalls and the mean high water line, but the walls had not yet been capped. Mr. Harp, who in any event lacked authority to order work stopped, told them they might. Nobody from DER ever told the Blacks, Mr. Johnson or anybody else that seawalls east of the canal would not require a DER permit. When DER's Mr. Harp told Whitfield Casey that Mr. Casey could repair his own seawall, without a permit, he made it clear that the exemption depended on the seawall's being "functional," when repaired. After the sea wall had been built, Mr. Harp suggested making application for a dredge and fill permit. He assisted Mr. Richardson in filling out an application for an after the fact permit. The Blacks wrote the $100 check in favor of DER that accompanied the Richardsons' application for a permit to dredge and fill, after the fact. Resold Lot Resold In a telephone conversation with Mr. Richardson Mr. Harp learned, about three weeks after the fact, that Mr. Johnson and the Blacks were once again the owners of Lot 37. It was in the course of this conversation that Mr. Richardson relayed an offer to place riprap against the south side of the southern seawall. Having decided against building on Lot 37 after all, Mr. and Mrs. Richardson had reconveyed to Mr. Johnson and the Blacks by warranty deed filed at the courthouse in Milton on May 4, 1987. The way the Richardsons calculate it, the Blacks owe them about $7,000, and they are sure the Blacks and Mr. Johnson will do the right thing by them. In the same telephone conversation in which he apprised Mr. Harp of the reconveyance, Mr. Richardson told him he should, in the future, deal with Mr. Johnson and the Blacks. Mr. Harp understood him to ask that the pending application for an after the fact permit be withdrawn. At hearing, however, Mr. Richardson testified that he never requested that the application be withdrawn. DER sent Mr. Richardson a check for $100, refunding the permit application fee. The check reached him in North Carolina in July, and eventually one of the Blacks. The status of the application was apparently unknown or unclear to Messrs. R. E. Black and Johnson before the final hearing in the present case, however. They expressed a desire to pursue a permit application. Enforcement Proceedings In August of 1987, a meeting among various DER employees, Mr. Johnson and the Blacks yielded more heat than light, and the notice of violation with which the present proceedings began ensued. Perhaps friction at the meeting also inspired the false and wholly baseless insinuations or allegations against DER personnel which mar the petition for administrative proceedings.
Findings Of Fact The proposed project involves tidal wetlands north of Atlantic Boulevard and west of the intercoastal waterway in Duval County, Florida. The proposed dredging would result in the permanent elimination of approximately 68,000 square feet of productive Juncus roemerianus marsh. The salt marsh at this proposed project site is a healthy system, serving as a nursery and feeding habitat for a variety of aquatic organisms. The salt marsh further serves in a filtrative capacity, thereby acting as a nutrient and pollution trap. Filtrative and recycling properties would be completely removed if the area were dredged. The flora of salt marshes provides the primary source of food in estuaries by producing detritus, which is utilized by a variety of consumer organisms. The project would eliminate such flora and thus cause a change in the aquatic community. The expected resultant community would be less desirable than the present community. Species of wildlife expected to utilize the site include the great blue heron, little blue heron, Louisiana heron, great egret, snowy egret, green heron, yellow-crowned night heron, black-crowned night heron, black rail, clapper rail, king rail, osprey, seaside sparrow, marsh rabbit, raccoon, Florida mink, and Eastern diamondback terrapin. Additionally, representative species dependent upon estuarine salt marshes for feeding, spawning, nursery, and refuge habitat include the Atlantic menhaden, Atlantic croaker, Southern flounder, spotted seatrout, juvenile tarpon, penaeid shrimp, and blue crab. Thus, the salt marsh at the project site provides a valuable habitat for a variety of fish and wildlife organisms, contributes to the production of detritus (a rich source of energy which supports the complex estuarine food web), and further contributes to the maintenance of Water Quality by filtering nutrients, sediments, and other pollutants from and upland runoff. The removal of the marsh at the project site would have a negative impact on the immediate area, contrary to the public interest. Additionally, the cumulative impact of the removal of commercially and biologically valuable marshes such as exist at the project site would ultimately result in a decline in fish and wildlife populations in addition to eliminating any such area's ability to naturally filter nutrients and pollutants entering or existing in the water body attendant to the salt marsh. The proposed project will cause short-term violations of the turbidity standard found in Section 17-3.05(2)(d), Florida Administrative Code (Supp. No. 81). Frequent maintenance dredging in the proposed canal will be required. The short-term violations that will occur during the initial dredging and during the subsequent maintenance dredgings will, on a cumulative basis, cause a long-term violation. The increased water depth caused by the dredging will cause inadequate flushing of the water body, resulting in long-term violations of dissolved oxygen and biochemical oxygen demand standards found in Sections 17- 3.05 (2)(e) and E)(Supp. No. 81), and 17-3.09(3)(Supp. No. 35), Florida Administrative Code. Such violations will further be increased on a short-term basis during the initial dredging activities and during maintenance dredgings. Flow in the existing creek will be altered by the artificial topographic discontinuity, causing a flow reduction. The flushing activity between the proposed channel and the receiving body of water will be substantially decreased, thereby causing solids suspension in the water column, impeded sunlight penetration, and turbidity. Pollutants would likely be absorbed by the suspended solids and be retained in the water column. Further, deleterious and toxic substances are likely to be generated and trapped in the channel. Although the area involved in the proposed project may be negligible and the loss in wildlife habitat and in filtrative capacity may not be subject to accurate measurement, clearly the proposed project would provide an adverse effect, and any proliferation of such projects would eliminate an essential wildlife habitat, an essential part of the aquatic food chain, and an essential filtration system.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED That the Petitioner's application for a dredge and fill permit be denied. RECOMMENDED this 17th day of April, 1980, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of April, 1980. COPIES FURNISHED: C. Ray Greene, Jr., Esquire 2600 Gulf Life Tower Jacksonville, Florida 32207 Ms. Silvia Morell Alderman Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Jacob D. Varn, Esquire Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue The issues are whether Respondent violated Rule 62-532.500(2)(d)1., Florida Administrative Code, by failing to seat a well casing in a rock layer or other such consolidated formation, and if so, what penalty should be imposed.
Findings Of Fact Respondent is charged with the responsibility to conserve, protect, manage, and control water resources within its boundaries. Respondent's duties include the regulation of water wells and water well contractors. Respondent is a water well contractor. As such, he holds Water Well Contractor License No. 2215. On September 25, 1997, Petitioner issued Respondent Well Construction Permit No. 597679.01. The permit gave Petitioner permission to construct a water well, four-inches in diameter, on property owned by Rex Hobbs in Pasco County. Respondent subsequently constructed the water well on the property owned by Mr. Hobbs, using the cable tool construction method. Respondent completed construction of the well on or about October 20, 1997. After the well was constructed, Mr. Hobbs complained to Respondent on several occasions that the well was producing sand, rock, and other debris. Respondent made no attempt to repair the well. In May or June of 1998, Mr. Hobbs filed a complaint with Petitioner regarding the construction of the well on his property. Petitioner's subsequent field investigation did not reveal a significant amount of sediment in the well water. Mr. Hobbs filed a second complaint with Petitioner in the summer of 1998, insisting that the water from his well contained an excess amount of sediment. Petitioner's second field investigation revealed an abnormal amount of sediment in the well water. On July 9, 1998, Petitioner issued a Notice of Violation, advising Respondent that he had violated Rule 40D-3.037(1), Florida Administrative Code, by failing to seat the casing of the Hobbs well into a consolidated formation. Water from the Hobbs well contains sediments including sand, rock, and other debris. These sediments interfere with the operation of plumbing, appliances, and irrigation devices, which utilize water supplied by the well. The quality of the well water produced by the Hobbs water well is unacceptable. The total depth of the Hobbs well is 131 feet below land surface. The well is cased to 42 feet below land surface. The water pump is set at 84 or 86 feet below land surface. The static water level was 58.2 feet below the land surface. The geologic formation at the end of the casing of the well contains gray clay, yellow clay, limerock, and sand. The end of the casing is not seated in a layer of rock or other consolidated formation. There is no persuasive testimony to the contrary. The area in which the well is located is geologically unstable. Wells in that area generally require 84 feet of casing. Respondent admitted at the hearing that the well is producing sand and needs more "pipe." Failure to seat a well casing into a consolidated formation is a major violation under the Florida Department of Environmental Protection's Water Well Contractor Disciplinary Guidelines and Procedures Manual. Respondent has entered into three previous Consent Orders with Petitioner to resolve permitting and construction violations.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Petitioner enter a final order requiring Respondent to pay an administrative fine in the amount of $500 and assessing five points against his water well contractor's license. DONE AND ENTERED this 18th day of August, 1999, 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1999. COPIES FURNISHED: Margaret M. Lytle, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Tony Holt 6145 Durant Road Durant, Florida 33530 E. D. Sonny Vegara, Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
The Issue The issues are whether Respondents dredged and filled within wetlands and surface waters without a permit and, if so, what penalty and corrective action should be imposed.
Findings Of Fact The Trust owns the Property, and Freeman is the sole trustee of Trust and its sole beneficiary. The Property, which is located in Lake County, abuts Lake Nettie, a 45-acre lake with no outlet, under ordinary water conditions. A portion of the Property occupies wetlands and surface waters of Lake Nettie. Much of the upland abutting the lake in the vicinity of the Property is developed, although no other seawalls are visible. The shoreline in the vicinity of the Property is not heavily developed, but it bears clear signs of maintenance to control the growth of vegetation in the sandy beach. Sometime after October 29, 2003, Freeman's late mother purchased the Property, on which is located a single-family home. At the time, the Property did not have a dock or seawall. Shortly after Ms. Freeman acquired the Property, Freeman, an accountant, or his mother hired a contractor to build a dock. The dock was constructed in early 2004. Because it did not exceed 1000 square feet over water, this activity qualified for a noticed general permit, under Florida Administrative Code Rule 62-341.475(1)(a), although the record does not reveal whether Ms. Freeman provided the notice required for this activity. Nothing in the record suggests that the construction of the dock altered the pattern of limited vegetation of the Property waterward of the wetlands line. However, nothing in the record suggests that erosion, siltation, or turbidity has been a problem at the waterward end of the Property. The only evidence touching on the issue of drainage into the lake is that, in the vicinity of the Property, runoff enters the lake by sheetflow. In 2007, by which time title to the Property had passed to the Trust, Freeman sought to add a roof to the dock that his mother had had constructed. Finding that the contractor who had built the dock was no longer in business, Freeman obtained the required local building permit and did the work himself. Shortly after completing this job, Freeman constructed the seawall, obtaining the fill from a neighbor who was excavating a basement. In connection with this dispute, Petitioner has established a wetlands line on the Property. The wetlands line is amply supported by the evidence, including careful analysis by Petitioner's representatives of the vegetation and soils, as well as hydrologic indicators, such as algal mats, that are present on the Property within the area of the Seawall Project. Based on this wetlands line, the Seawall Project is in the wetlands, so that the construction of the project constituted dredging and filling of wetlands. The waterward face of the seawall is entirely in wetlands, as are the return walls that run upland from the seawall face and the fill placed upland of the seawall face. DEP Exhibit 11, which is incorporated by reference herein, accurately depicts the wetlands line on the Property. There is some confusion in Petitioner's pleadings between the surface area of wetlands that Freeman filled and the amount of fill. The surface area of disturbed wetlands is about 500 square feet. According to Freeman, whose testimony is credited, the amount of fill was about what would be contained in a small dump truck, so it might be in the neighborhood of five cubic yards. In the NOV, Petitioner describes the corrective action that it is imposing on Respondents. Within 45 days of the NOV, "Respondent" would be required to conduct certain preliminary activities and then: 1) remove the seawall and all associated fill waterward of the wetland line; 2) place the removed fill in a contained upland location where it will not discharge into wetlands or surface waters; 3) during and after regrading, stabilize with vegetation all slopes adjacent to the restored area as soon as possible (not more than 72 hours after attaining final grade) to prevent erosion, siltation, or turbid runoff into the wetlands and surface waters; remove nuisance and exotic vegetation prior to planting; replant the restoration area with listed wetland species on three-foot centers within elevation- based zones depicted on an attached drawing; plant healthy, nursery-grown stock from a state-licensed nursery; provide receipts for all plants used in the restoration area; monitor the restoration area at four-month intervals until the restoration area contains less than ten percent coverage of nuisance and exotic species and 80 percent of the plantings have survived for at least one year and are viable, reproducing plants; submit monitoring reports to Petitioner; and allow Petitioner's representatives access to the Property at reasonable times to determine compliance with the NOV conditions. Petitioner does not seek corrective action for the addition of the roof to the dock, which resulted in the addition of about 216 square feet to the original, 1000 square-foot dock. Presumably, this decision acknowledges the relative ease of obtaining a standard general permit for a dock of no more than 2000 square feet serving a single-family home under Florida Administrative Code Rule 62-341.427(1)(a)2. For this reason, the violation arising out of the Dock Project is relatively minor. The corrective actions focus on the seawall because the violation arising out of the Seawall Project is more significant. Under Florida Administrative Code Rule 62-341.475(1)(c), this activity involved 400 square feet more than the 100 square feet of dredging and filling that is allowed as a "minor system" under a noticed general permit. An individual environmental resource permit would be required for this project, and there is no reason to assume that Respondents would be able to obtain such a permit. Corrective action is therefore necessary in the form of the removal of the entire Seawall Project, including all of the fill, and the restoration of the pre-project grade. The question concerning corrective action is the extent of Respondents' liability for undertaking the planting scheme outlined above in the NOV. The record fails to establish the restorative nature of this activity because, immediately before the commencement of the Seawall Project, the shoreline in the impacted area was unvegetated. If Respondents had applied for permits for these two activities, Petitioner would have charged the fee for the proposed activity that carried the higher fee, which is the Seawall Project. The application fee would have been $600. By not applying for and obtaining this permit, Respondents wrongly obtained an economic benefit of $600. The fact that Respondents will only be allowed to keep the product of the Dock Project suggests that the final economic benefit should be based on the reduced fee associated with this activity, but, for reasons stated in the Conclusions of Law, this point is irrelevant because Petitioner is not authorized to recover either application fee in this case. Two of Petitioner's representatives testified as to the cost of their investigatory services in this case. Based on the total hours expended, at their respective hourly rates, without regard to any fringe benefits, the cost of the investigation is about $1700, but, for the reasons stated in the Conclusions of Law, this fact is also irrelevant because Petitioner is not authorized to recover these costs in this case.
Findings Of Fact Respondent Felo McAllister and his wife Dorothy own a home and dock on Texar Bayou off Escambia Bay in Pensacola, Florida. A storm sewer with a diameter of 15 to 18 inches empties into the Bayou near the dock. The silt- laden outflow from the storm sewer has resulted in a sand bar or berm two or three feet wide paralleling the shoreline from the McAllisters' property line to the dock. This sand bar separates a ditch caused by the outflow from Texar Bayou. Over the years, silt has accumulated underneath the dock. The McAllisters originally applied for a permit to dredge boat slips at the dock. Andrew Feinstein, an environmental specialist II in respondent Department's employ, evaluated the original application and recommended denial, because he felt extending the dock was preferable to dredging. The McAllisters then modified their application so as to seek a permit for dredging at the mouth of the storm sewer in order that the silt already deposited there would not wash underneath the dock. Mr. Feinstein and Michael Clark Applegate, an environmental specialist III and dredge and field supervisor employed by the Department, testified without contradiction that the Department has reasonable assurances that the proposed project will not violate any applicable rules. The permit DER proposes to issue contemplates that the berm will not be breached. The bottom on which the dredging is proposed to take place belongs to the City of Pensacola. Although under water, it is a part of a dedicated roadway. The City itself does maintenance dredging to ensure the efficiency of storm sewers, but is glad for assistance from private citizens in this regard. J. Felix, City Engineer for Pensacola, is authorized allow dredging on this road right of way, and has done so. See also respondent's exhibit No. 2. The site proposed for placement of the spoil is a low area affected by flooding. Fill there would affect drainage onto neighbors' property.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent DER issue respondent McAllister the permit it proposed to issue in its letter of September 14, 1979, upon condition that the spoil be placed at least 100 feet from the water's edge. DONE and ENTERED this 12th day of February, 1980, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: William L. Hyde, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Mr. Larry Jay Sauls and Ms. Harriett Tinsley Sauls 14 West Jordan Street Pensacola, Florida 32501 Felo McAllister 2706 Blackshear Pensacola, Florida 32503
Findings Of Fact The Respondent/Applicant, Jeffrey David Evans, applied to the Department of Environmental Regulation and the Army Corps of Engineers for a permit to construct a dock and boathouse as depicted on Respondent's Exhibit 1. The proposed length of the dock and boathouse is sixty feet from the seawall marking the landward boundary of the Halifax River and the waterward boundary of the Respondent/Applicant's property. The Department of Environmental Regulation advised Evans as well as the protesting Petitioner on March 9, 1981, of its intent to issue the permit. The Army Corps of Engineers issued a general permit numbered SAJ-20(MOD) on September 4, 1979, also authorizing construction of the proposed dock with the condition that it not extend in a waterward direction to a water depth contour deeper than four feet at mean low water. The Petitioner herein timely petitioned for a hearing protesting the decision by the DER to grant the permit. The parties do not dispute and indeed have stipulated that there will be no adverse impact on the conservation of fish and wildlife in the area and no significant chemical, biological or physical alteration of the state waters and marine or aquatic life involved. In short, it was stipulated that there are no adverse environmental impacts of any kind to be occasioned by construction of the project. Mr. James Morgan of the Department staff was qualified as an expert witness in aquatic ecology and the evaluation of dredge and fill projects. He testified at the hearing and established that the Respondent/Applicant had provided affirmative reasonable assurances to the Department that the proposed project would not result in any violations of state water quality standards and that the proposed project would not result in interference with the conservation of fish and wildlife in the subject area or the capability of the local aquatic habitat to support such fish and wildlife. Mr. Morgan also testified that reasonable assurances had been provided by the Respondent Applicant that the proposed project would not create a navigational hazard or a serious impediment to navigation, and that an unobstructed navigable channel would remain after the project was constructed. There being no question that affirmative reasonable assurances have been provided that no state water quality standards will be violated and that no other adverse environmental impacts will occur within the purview of Chapter 403, Florida Statutes, or Chapter 17, Florida Administrative Code; the permit in this regard should be granted. A question remains, however, regarding the maximum length the dock should achieve in a perpendicular direction from the seawall of the Respondent/Applicant's property out into the river. Evidence propounded by the Department regarding a six-foot water depth off the end of the proposed sixty- foot dock site is based upon hearsay information received from a Department employee other than the witness who testified, who in turn received it through a telephone conversation with, another party with no evidence that soundings or other types of survey were made. Mr. Evans' own testimony establishes that he measured some six and eight-foot depths in the natural channel involved herein, but his testimony is not specific enough in reflecting at what points in that channel, in relation to the site of the proposed dock, he measured those depths nor at what stage of the tide he measured them. It is established in the record that there is approximately a one-foot rise and fall between mean low water and mean high water at the subject site. The only access by navigation to the Petitioner's home from the main channel of the Intracoastal Waterway is by means of a natural channel running in a northerly direction parallel and immediately in front of the Petitioner's home and the applicant's home and inshore from a large sand bar covered with oysters which is a permanent oyster bar protruding from the water at low tide. The channel continues from the Petitioner's home northerly and parallel to the applicant's home and seawall until it reaches the northern terminus of the sand bar. From that point a boat navigating the channel can turn out into the main channel of the Intracoastal Waterway. Unrefuted evidence propounded by the Petitioner in the form of a "multi-sounding" depth survey established that the channel's depth at mean high tide ranges from four to five feet in front of the Respondent/Applicant's property (See Exhibit 13) The Petitioner established that access to the Intracoastal Waterway is only feasible through the subject channel running in front of the Respondent/Applicant's property. The Petitioner established that the channel begins with a depth of four feet at low tide or five feet at high tide as its landward boundary which lies fifty-two feet from the Respondent/Applicant's seawall. Thus, a dock extending the proposed sixty feet from the seawall would approach the middle of the subject historic channel and would constitute an impairment to navigation of that channel. In apparent recognition of the question of navigability of this historic channel, which was shown to have a depth of five feet at mean high tide, the Corps of Engineers has issued a permit to the Respondent/Applicant to construct his dock to a point no farther waterward than the four-foot mean low water depth contour of the river. This would allow the dock to extend to the boundary of the channel and would thus allow a dock to be constructed fifty-two feet in a perpendicular direction from the Respondents Applicant's seawall. The parties agree that four feet of water is required for navigability in and around the subject, historic channel. Thus, if the dock extended to the depth of four feet at low tide, which would be five feet at high tide, it would extend into the navigable channel and not allow a sufficiently safe distance waterward of the end of the dock for boats to turn around the end of the dock to negotiate the canal adjacent to the Petitioner's home, especially if Evans' boat is moored at the end of the dock. Accordingly the dock should only extend to that point, denominated on Exhibit 13, which is characterized by a depth at high tide of four feet and which lies six feet landward from the fifty-two-foot extent of dock which the Corps of Engineers' permit would allow. Thus, if the dock were to be built forty-six feet in a perpendicular direction from the seawall an additional six feet would be allowed for the mooring of the Respondent/Applicant's boat off the end of that dock without unduly obstructing navigation in the channel. It is noteworthy in this regard that no witness from the Corps of Engineers, or who was instrumental in the approval of the Corps of Engineers permit, testified at the hearing.
Recommendation In consideration of the foregoing findings of fact and conclusions of law, the evidence in the record, the candor and demeanor of the witnesses and pleadings and arguments of counsel, it is RECOMMENDED: That the Department enter a Final Order granting the requested permit authorizing construction of a private dock and boathouse on the Halifax River in Port Orange, Volusia County, Florida, by Jeffrey David Evans, provided however, that said dock shall not extend a greater distance than forty-six feet in a direction perpendicular to the Respondent/Applicant's seawall on the waterward margin of his property on the Halifax River. DONE AND ENTERED this 29th day of October, 1981, in Tallahassee, Florida. P. MICHAEL RUFF, 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 29th day of October, 1981. COPIES FURNISHED: Jeffrey C. Sweet, Esquire Post Office Box 5386 Daytona Beach, Florida 32018 Jeffrey David Evans Twelve Venetian Circle Port Orange, Florida 32019 Richard P. Lee, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
