Findings Of Fact Application for consumptive use permit No. 75-00225 is a request for an existing use to be withdrawn from the Floridan Aquifer from two different wells. These two wells are located in the Hillsborough Basin and in Polk County. The property contiguous to the wells encompasses approximately 80.9 acres. The water is to be used for citrus processing and disposed of off site. The permit seeks, for average daily withdrawal, 2.98 million gallons per day for one well and 1.566 million gallons per day for the other well for a total average daily withdrawal of 3.864 million gallons per day. For maximum daily withdrawal the permit seeks 4.096 million gallons per day for one well and 2.792 million gallons per day for the other well for a total maximum daily withdrawal of 6.888 million gallons per day. The amount of water sought to be consumptively used by this application greatly exceeds the water crop of the subject lands owned by applicant. Mr. John C. Jennings and Mr. William Sunderland, owners of property adjacent to the Kraft property, appeared in their own behalf and stated that they felt that their wells were being hurt because of the large quantities of water pumped by Kraft. They did not attempt to offer expert testimony nor did they claim to be hydrologists. They did note that each had substantial problems with their wells running out of water.
Recommendation It does not appear that the district has had a reasonable opportunity to examine the objections and comments of Messers. Jennings and Sunderland with regard to the effect of the applied for consumptive use on their property. These objections were apparently raised for the first time at the hearing. As noted in paragraph 6, if the wells of Messers. Jennings and Sunderland are substantially affected in an adverse manner by applicant's use of such large quantities of water, such a use would not seem to be a reasonable, beneficial use as is required for permit unless further conditions were placed upon the permit. Therefore, it is recommended that the Southwest Florida Water Management District staff further investigate the effect of the applied for consumptive use on the wells located on the property of John C. Jennings and William Sunderland prior to the Board taking formal action on this application. ENTERED this 26th day of May, 1976, in Tallahassee, Florida. CHRIS H. BENTLEY, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Staff Attorney Southwest Florida Water Management District P. 0. Box 457 Brooksville, Florida 33512 Douglas T. Moring, Esquire Kraftco Corporation Kraftco Court Glenview, Illinois 60025
Findings Of Fact The following findings are based on the uncontested facts alleged in Petitioner's Motion For Summary Recommended Order and from the Final Orders issued in Bayshore Homeowners Association v. Department of Environmental Regulation and Grove Isle, Inc., Case Nos. 79-2186, 79-2324 and 79-2354. On December 29, 1980 DER entered a Final Order on the application of Petitioner for a 90 slip marina in Biscayne Bay, Florida. The Order denied the permit because Grove Isle had not demonstrated that the project is "affirmatively in the public interest" and because the applicant had not demonstrated that it "can meet ambient water quality standards within the project area itself." In the Recommended Order on Remand the Hearing Officer had defined "existing ambient waters" to be the area in the cove between Grove Isle and the Miami mainland. The Final Order rejected that concept and held if any waters others than those contained within the immediate project site were to be considered as ambient, Petitioner must request a mixing zone as part of its application. See Section 17-4.242, (1)(a)2.b. and Section 17-4.244, Florida Administrative Code. By a letter received at the Department of Environmental Regulation on May 20, 1981, Grove Isle reapplied for the boat dock permit which was the subject of the foregoing proceedings. Petitioner's application, which was in the form of a letter from counsel, stated: May 18, 1981 Mr. Larry O'Donnell Department of Environmental Regulation Post Office Box 3858 West Palm Beach, Florida 33402 RE: GROVE ISLE - Application for Boat Dock Dear Mr. O'Donnell: On behalf of Grove Isle, LTD, I am reapplying for the boat dock permit previously applied for by Grove Isle, LTD. Please consider this a short-form application. Your office designated a previous file number, DF 13-7956, to this matter. In conjunction with that application I am applying for a mixing zone, pursuant to Rule 17-4.244, for both the construction and operation of this marina. Please refer to your file on the previous application and incorporate said documents into this reapplication. I am submitting with this application: A scale drawing (one inch = 100') of the proposed facility. (which you have) A certified survey of the proposed mixing zone. (one inch = 100') An application fee of $20.00 A copy of the Final Order issued by Jacob D. Varn, former secretary of DER, on the previous application. A copy of the Notice of Intent previously issued for this project, dated 9/23/79. (which you have) As you will note from reading Mr. Varn's Final Order, he concluded that issuance of this permit was not appropriate inasmuch as the applicant had not applied for nor received a designated mixing zone. We do not necessarily agree with this order and have, in fact, appealed this decision to the First District Court of Appeal. However, in an attempt to keep this matter from becoming any more complicated, we have decided to reapply for the permit and to apply for a mixing zone. We do not concede that a mixing zone should be required for this project or that the facility will result in the release of any pollutants so as to significantly degrade ambient water quality. However, should this project, through its construction or operation, result in the release of any pollutants, I believe they would be limited to: Bottom sediments placed in suspension by the installation of the concrete piles used to support the docking facility during construction; Minimal amounts of oil and grease which may escape from the various vessels moored to the docks; The constituants of anti-fouling paint which may be applied to the hulls of the various vessels moored at the docks. Turbidity will be controlled by the use of curtains during construction. If lowered water quality occurs at all in this project it would only occur within the designated mixing zone, as per Rule 17-4.242 (2)(b) F.A.C. Please advise me should additional information be needed to process this re-application. Yours truly, /s/ KENNETH G. OERTEL On June 19, 1981, DER sent a "completeness summary letter" to Petitioner which requested the following information: Your project is in Outstanding Florida Waters. Please provide the following items demonstrating compliance with Section 17-4.242, Florida Administrative Code. Please demonstrate that this project is clearly in the public interest and that this project will not result in the degradation of ambient water quality beyond the 30 day construction period. Petitioner responded by letter dated June 22, 1981 and which was received at DER on June 25, 1981. Petitioner said in pertinent part: Dear Mr. Duke: If you would check your previous file no. DF-13-7956, I believe you will find all the information you have requested has previously been provided to your office either in that permit file or through the administrative hearings held in pursuit of this application. I think it would be more fruitful if you would communicate with Al Clark, Attorney for DER, with regard to the status of this application. As I do not wish to speak on behalf of Mr. Clark, I believe you should confirm the status of this application with him, particularly in view of our attempt to comply with Secretary Varn's Final Order which suggests the application for this mixing zone. The record reflects no further correspondence between the parties until September 23, 1981 when the Department entered a Final Order Denying Application for Permit. The Order provided that: This project was reviewed previously (DF 13-7956) and was determined not to be clearly in the public interest pursuant to Section 17-4.242, F.A.C. No further evidence upon resubmittal, has been provided to clearly demonstrate that this project is in the public interest. Furthermore, the requested mixing zone exceeds that allowable pursuant to Section 17-4.244, F.A.C. and can be applied only during the construction period, pursuant to Section 17-4.242, F.A.C. During the operation of this facility ambient water quality is expected to be degraded in violation of Section 17-4.242, F.A.C. This order was entered ninety-one days after DER received Petitioner's June 22, 1981 letter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Environmental Regulation issue the permit applied for by Petitioner, Grove Isle, Ltd. on May 20, 1981 subject to the conditions contained in the Notice of Intent To Issue Permit dated October 23, 1979 which is a part of the record in Bayshore Homeowners Association et al., v. State of Florida Department of Environmental Regulation and Grove Isle, Inc., Case Nos. 79-2186, 79-2324 and 79-2354. DONE and RECOMMENDED this 12th day of February, 1982, in Tallahassee, Florida. MICHAEL P. DODSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of February, 1982.
Findings Of Fact The dredge/fill project sought to be permitted involves a proposed residential lot located on Lake Padgett in Pasco County. The tract is also adjacent to a canal dug by the Applicant and his father. The Applicant, Michael Millen, acquired this property from his father, Otis Millen, who continues to own other property in this area. Petitioner is an adjoining landowner, and also acquired his property from Otis Millen. DER prematurely issued the proposed permit 1/ on August 9, 1984. If reissued, this permit would allow the Applicant to develop a residential lot by filling a portion of a cypress swamp and creating compensating wetland elsewhere on his property. Additionally, the Applicant agrees to dedicate a three acre "conservation easement" and to install a culvert to improve drainage. The advantages of this project include the creation of a homesite where none is available now, acquisition by the State of three acres of dedicated wetland (conservation easement) and improved drainage through the culvert installation. There would be no net loss in cypress swamp area. The disadvantages include temporary turbidity in surrounding waters and some tree removal in the construction area. The Applicant would replace any trees removed through replanting. The Applicant also seeks permits to build a "summer kitchen" over jurisdictional wetlands and to fill the lakefront area with white sand. These "add-on" permit requests are not properly a part of this proceeding, however, and were not contemplated in the application at issue here. DER's expert witness gave only limited testimony on their feasibility during the rebuttal phase of this hearing. Petitioner has raised numerous objections to all the proposed projects, but principally to the one at issue here. He was not notified of DER's intent to grant the dredge and fill permit, and became aware of the project only after he observed construction activity. It was determined that DER had failed to notify him through an oversight of that agency or the Applicant. Petitioner points out that lot development is not being done in accordance with the (proposed) permit. He noted that trees have been cut down, fill was dumped in the canal and work on canal banks was taking place, all in contravention of permit conditions. Petitioner believes DER has acted improperly in tolerating the Applicant's unpermitted construction activity. To support this charge, he called as a witness a neighbor who had placed white sand on his lakefront property, but was required to remove it by DER enforcement personnel. The Applicant, on the other hand, has placed white sand on his beachfront property without a permit, and DER is assisting him in obtaining an after the-fact permit. Petitioner proved, through a series of aerial photographs, and the testimony of both expert and lay witnesses, that the canal which separates his lot from the Millen properties was constructed between 1976 and 1977. DER had jurisdiction at that time, 2/ but no permit was ever sought or obtained. The canal was dug as a "joint venture" of the Applicant and his father. It connects Lake Padgett with a drainage pond several hundred feet behind the lake. This canal has changed area drainage causing one nearby resident to experience periodic property flooding as a result. Prior to the canal's construction, a small drainage ditch with an earthen or cement dam did exist in the general area. However, the canal construction removed the dam and greatly enlarged the size and capacity of the previous ditch. Expert interpretation of aerial photographs revealed that a substantial number of mature cypress trees were removed in conjunction with the Millens' canal project. Some cypress trees were also cut for the recent (unpermitted) construction of the "summer kitchen" by the Applicant. He also constructed a dock which was later determined to be exempt by DER. Again, the Applicant had not obtained DER approval for the dock and had, in fact, been advised to stop construction until a determination of permitting requirements, if any, was made. Petitioner attempted to show a conflict of interest within DER. However, the fact that one DER field representative knew Otis Millen did not demonstrate such a conflict. Rather, DER's enforcement policies have been lax or inconsistent primarily due to a shortage of field personnel.
Recommendation From the foregoing, it is RECOMMENDED: That the Department of Environmental Regulation reissue Permit No. 510852383 to Michael A. Millen. DONE and ENTERED this 24th day of September, 1985 in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 1985.
Findings Of Fact Ocean Reef Club, Inc., is the developer of certain lands located on the northern end of Key Largo, Monroe County, Florida. The development began as a fishing village in the 1940's and now includes private residences, a marina, and residential docking facilities. Ocean Reef applied in 1982 to DER for a permit to construct a residential docking facility known as Fisherman's Wharf. The facility was to provide a number of parallel docking spaces with an access channel following an existing tidal creek to the northeast connecting to a waterway known as the Harbor House Basin. The permit was issued on October 5, 1984, authorizing construction of a 4-foot wide parallel dock approximately 600-feet long, the dredging of a turning basin through the excavation of approximately 1800 cubic yards of material and the dredging of some 200 cubic yards from an existing tidal creek along a 480 lineal foot length of the creek to a width of 5-feet; all located in No Name Creek, a tidal creek connecting Harbor House Marina to Pumpkin Creek, in Card Sound, Key Largo, Monroe County, Section 11, Township 59 South, Range 41 East. That permit was extended by a letter dated June 10, 1987, and now carries an expiration date of October 5, 1989. The existing permit held by Ocean Reef Club, valid until 1989, would allow the direct dredging of a tidal creek vegetated by seagrasses over a 400- foot length yielding a direct dredging of seagrasses of some 3000 square feet. During the two-year processing time leading to issuance of the permit, Ocean Reef sold a portion of the property comprising the access channel to third parties who now will not grant their permission authorizing channel construction across their property. As a result, in 1987, Petitioner requested a major modification to permit no. 440601649. Although Petitioner attempted to show that its change of plans had been inconsistently processed by DER as a new permit application when DER was obligated to treat it as a modification of a prior permit which would require no new application, processing, or permit, Petitioner was unable to do so. Petitioner's expert professional land surveyor, Joseph Steinocher,, concurred with DER witnesses Kelly Jo Custer and David Bishof that the Ocean Reef plan changes were so significantly altered as to constitute a wholly new project. Steinocher specifically indicated it was a "significant change in that there is no relationship between the two," and Custer, DER's marina permitting specialist, testified that DER's consistently applied policy is to require all such significant permit modifications to be processed de novo as wholly new permit applications because to do otherwise would not be in the public interest. Custer was also qualified as an expert in marine biology and water quality, and from Custer's viewpoint, the changed plans constitute a new and different project for many reasons but primarily because the project impacts on water which have been designated Outstanding Florida Waters (OFW) during the intervening years. The project revision/new permit application plans changed the configuration of the turning basin, providing for a kidney-shaped upland basin with the utilization of an additional portion of No Name Creek, extending Southeasterly toward the entrance of a water body known as Fisherman's Cove. Because the project initially proposed disturbance of wetlands and dredging of mangroves, a mitigation area of some 10,300 square feet was included in the plan. The original proposal called for the straightening of an oxbow in the existing tidal creek and the placement of fill through approximately one-half the reach of the tidal creek to gain access to the dredge area with the fill to be removed after construction. During the processing of the latest permit application, adverse comments were received from DER staff members, and the Petitioner modified the application to eliminate the straightening of the oxbow. The pending proposal involves the construction of 24 boat slips along a floating dock, the installation of boulder rip-rap, and the placement of culverts to allow access to a central island to remain after construction of the docking facility. As a result of prior permit agreements between the parties, Ocean Reef Club had conveyed approximately 730 acres to the State of Florida Board of Trustees of the Internal Improvement Fund by special warranty deed dated March 17, 1982. Petitioner asserted but failed to prove up that all construction involved in the pending proposal is landward of those lands either conveyed by that special warranty deed or otherwise in the control of the State of Florida and in fact would be wholly upon its own property. Even had the private property encapsulation of the construction been established, Petitioner's registered land surveyor admitted that the tidal creek entrance is within the limits of the deed to the State of Florida. Access for the proposed 24-slip facility will be through the existing tidal creek that has water depths ranging from minus 2.2 feet to in excess of minus 8 feet at low tide. The earlier proposal would have required only a small portion of the natural creek to be used by motor boats. The project contemplated in 1984 and the one which is the subject of the present litigation are not comparable either biologically nor legally. It is noted that one condition of the 1984 permit even required navigational barriers to be placed at the mouth of No Name Creek. Accordingly, it is specifically found that the significant plan changes render the pending Ocean Reef permit application truly a new project rather than a minor modification as contemplated by Chapter 17-12 F.A.C. Petitioner also attempted to demonstrate that DER's denial of the new permit application was inconsistent with its issuance of permits for similar marina projects in other locations. Neither these allegedly similar applications, supporting plans therefor, nor permits were offered in evidence for comparison. Moreover, for one reason or another, some of the named projects differed so much from the subject application that one witness, Kenneth L. Eckternacht, expert in hydrographic engineering, physical oceanography, and navigation, characterized the comparison as "apples to monkies." Some projects could only be compared to the applicant's proposal by one similar component, i.e. elimination of, and mitigation with regard to, mangroves. For this reason, Dr. Snedeker's limited testimony in this regard is discounted. Some projects could not be conclusively identified as within OFW. None involved the use of the type of creek system involved in the instant project. Ocean Reef Club also could not show that the current permit denial is inconsistent with the granting of the permit for the project as previously conceived in 1984, and which project cannot now be constructed due to Ocean Reef's sale of certain land to uncooperative third parties. As set forth in the foregoing findings of fact, the two projects are neither biologically nor legally identical or even clearly comparable. Petitioner's assertion that it has proposed special or enhanced mitigation because the existing permit, still valid until 1989 but now impossible to comply with, allows direct dredging of approximately 3,000 square feet while the present permit application, as modified, would not require dredging this 3,000 feet, is rejected. Under the new project plans, the proposed basin will be located immediately adjacent to the existing tidal creek which would provide the navigational access to and from the basin. The connection will be created between the basin and the creek by excavating only 100-150 square feet of mangroves which lie between the creek and the area of the proposed basin. In making the immediately foregoing finding of fact, the testimony of witnesses has been reconciled without imputing any lack of credibility to any of them. Respondent's expert, Kelly Jo Custer, expert in marine biology and water quality and also their agency marina specialist, testified that the cross-hatching on the project plans, if read to scale, confirms the testimony of Petitioner's witnesses that the square footage of mangroves to be removed is 100-150 square feet and that the cross-hatching must take precedence over the raw number copied onto the plans. The wetlands in and around the project site, including No Name Creek, are within an OFW, specifically the Florida Keys Special Waters. The project site is located in North Key Largo, approximately one-half mile north of John Pennekamp State Park within the Atlantic Ocean and adjacent to the Biscayne Bay/Card Sound Aquatic Preserve. All of these waters are Class III surface waters. The marina basin itself will be excavated to a depth of minus four feet mean low water. The 24 proposed boatslips will accommodate moorage of boats as large as 25 feet with a draft of two feet. The marina basin will enhance recreational values and channel, despite its greater depth, and at the inner portions of its several bends. It is also implausible that Petitioner's plans to limit boat size through condominium documents to be enforced through a homeowners association, to install mirrors, signalling devices, and latches at certain points along the creek, and to install tide staffs at creek entrances will prevent potential head-on boat collisions or bottlenecks in No Name Creek. It is equally implausible that these procedures can provide reasonable assurances that there will not be a chronic increase in water turbidity from increased use or damage to biota from propellers and boat impact. The witnesses generally concurred as to the present ecological status of No Name Creek. It contains Cuban shoalweed and turtlegrass scattered with varied density throughout, and especially found in two patches between the proposed basin and the point at which there is a drastic bend or oxbow in the creek. The seagrasses in the creek serve many valuable functions including providing a substrate upon which epiphytes may attach, and providing a source of food and refuge for fish and small invertebrates. Seagrasses also fix carbon which they absorb from the sediments and water column through photosynthesis. Green and red algae found throughout the creek provide habitat and carbon fixing functions similar to that provided by the seagrasses. Corals and sponges are present. Three species of sponge located in the creek are found only in the Florida Keys and nowhere else in the United States. Other creek biota include barnacles and oysters attached to mangrove roots, lobsters, anchovies, needlefish, grunts, mojarres, electric rays, various small fish, and invertebrates. Biological and botanical diversity is an important measure of the creek's rich ecological quality and value. The increased boat use of No Name Creek inherent in this dredging project will adversely affect the quality and diversity of the biota. In a creek of this configuration with mean low tide occurring roughly every 12 hours and NEAP tides approximately every two weeks, direct impact of boat propellers is a certainty. The shallowest parts of the creek tend to be limerock shelves which provide a hospitable substrate for the corals, and which are most susceptible to propeller damage, as are the seagrasses and sponges. Petitioner's assertion through Mr. Castellanos and Dr. Roessler that all boaters can be relied upon to employ tilt motors to best advantage in shallow water so as to avoid overhanging mangrove branches at the creek's edges (shores) and so as to keep their boats within the portion of the channel away from submerged mangrove roots and further can be trusted to proceed slowly enough to allow slow-moving water creatures to escape their propellers is speculative and unrealistically optimistic. Despite all good intentions, the strong currents of this creek and its meandering nature work against the average pleasure boater keeping to the narrow center channel. An even more compelling problem with this project is that increased sustained turbidity from propellers and boat movement within close range of the creek bottom will scour the creek bottom and/or stir up the bottom sediment on a regular basis. Once suspended, bottom particles will be redeposited on the seagrasses, impeding photosynthesis and smothering the sponges and corals. Upon the testimony of Custer, Echternacht, and Skinner, and despite contrary testimony of Roessler and Larsen, it is found that the admittedly strong currents in the creek will not flush the particles sufficiently to alleviate the loose sediment problem, and may actually exacerbate the chronic turbidity problem. Strong currents can create a cyclical situation in which, as the seagrasses die or are uprooted, even more particulate matter is loosened and churned up. Chronic turbidity of No Name Creek has the potential of violating the applicable water quality standards for biological integrity, for turbidity, and for ambient water quality. These impacts will not be offset by Petitioner's creation of 38,100 square feet of new underwater bottom because, although this new area will become vegetated, it will never be as rich or as diverse as the existing bottom. This is also true of the pilings and rip rap in regard to sessile animals/barnacles. Petitioner's plan to replant red mangroves over 10,300 square feet may be sufficient in mitigation of the loss of 100-150 square feet of mangroves by itself (see Finding of Fact 16) but for the foregoing reasons, it does not constitute full mitigation for the new permit application. The project will be of a permanent nature. The project will not adversely affect significant historical and archeological resources.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that a final order be entered denying the requested permit. DONE and RECOMMENDED this 20th day of September, 1988, at Tallahassee, Florida. ELLA JANE DAVIS, 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 20th day of September, 1988. APPENDIX TO RECOMMENDED ORDER DOAH Case No. 87-4660 The following constitute specific rulings upon the parties' respective proposed findings of fact (PFOF). Petitioner's PFOF: 1, 2, 3, 4, 5, 7, 10, 11, 20, and 25 are accepted. Accepted except for the last sentence which is rejected upon the greater weight of the credible evidence as a whole. Accepted but specifically not adopted as stated because the plan calls for destruction of certain mangroves (100- 150 ft.) and the planting of others as opposed to mere "addition." 6, 9, 12, and 27 are accepted in part and rejected in part. There was a failure of proof by both parties as to whether the Petitioner would or would not be conducting all activities landward of those lands conveyed. Although there is testimony to this effect, none of the surveys introduced nor other competent evidence allow the undersigned to definitely plot the description contained in Exhibit P-9 with respect to the current permit application plans. In any case, the proposals are not dispositive of the material issues in this case. The reservation, if it does apply, supports denial of the permit. See FOF 9. 8, 26, 28, 29, and 32 are rejected as subordinate and unnecessary, and in some cases as mere recitation of testimony or unproved. See next ruling. 13, 14, 15, 16, 17, 18, 19, 21, 22, 30, 31 and 33. Portions of these proposals are accepted in substance as reflected in the FOF. In part, they are rejected as mere recitation of testimony or as subordinate and unnecessary. The remainder is not accepted due to the relative weight of the credible testimony which is reflected in the facts as found. 34-36. Rejected for the reasons set out in FOF 13. Respondent's PFOF 1, 2, 4-6, 9, 11, 14-22, 24-34, 38-43, 48-52, 54, sentence 2 of 57, all except sentence 1 of 59, and 60 are accepted but not necessarily adopted in the interest of space and clarity or because they are cumulative or mere recitations of testimony. 3. Rejected for the reasons set out in FOF 16. Rejected. There was a failure of proof by both parties as to whether the Petitioner would or would not be conducting all activities landward of those lands conveyed. In any case, the proposal is immaterial to the environmental issues dispositive in this case. See FOF 9 and ruling on Petitioner's 6, 9, 12 and 27. Rejected as this was the unproven opinion of Mr. Poppel. No consent judgment is in evidence. 10, 12, and 13. Portions of these proposals are accepted in substance as reflected in the FOF. In part, they are rejected as mere recitation of testimony or as subordinate and unnecessary. The remainder is not accepted due to the relative weight of the credible testimony as reflected as the facts as found. 23, 53, sentence one of 57, and sentence one of 59, are rejected as argument of counsel or statement of position. 35-37, 44-47, 55, 56, 58, and 61-64 are rejected as subordinate, unnecessary or cumulative to the facts as found. COPIES FURNISHED: Dale Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Robert A. Routa, Esquire Post Office Drawer 6506 Tallahassee, Florida 32314-6506 Richard Grosso, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: On March 26, 1991 Venice applied to the Department for a CCCL permit to construct a 475 foot wooden retaining wall seaward of the coastal construction control line and to place a shell road immediately adjacent to, and landward of, the retaining wall from approximately 100 feet south of Granada Avenue to approximately 50 feet south of Ocala Street on Venice's right-of-way of The Esplanade in Venice, Florida. The Petitioners Roy B. and Patricia B. Olsen are residents of Venice, Florida and reside at 304 Ocala Street. They own Lot 1, The Esplanade, which is immediately east and south of the southern terminus of the proposed retaining wall. Petitioner, Nina Howard is a resident of Venice, Florida and resides at 721 Ocala Street. Ms. Howard's residence is located to the south and across Ocala Street from the site of the proposed retaining wall. Intervenors, Roger and Irene Fraley are residents of Venice, Florida and reside at 221 The Esplanade South, which is immediately landward (east) of the site of the proposed retaining wall. Intervenors, Howard and Evelyn Barbig are residents of Milton, Florida but are owners of lot 4, The Esplanade South, located north of the Fraleys' property and immediately landward (east) of the site of the proposed retaining wall. The Petitioners oppose the granting of the CCCL permit. The Petitioners have expressed their opposition to the granting of the CCCL permit based upon their belief that the construction of the proposed retaining wall will have adverse impacts to the beach dune areas and to the adjacent properties. Specifically, it is their belief that the construction of the proposed retaining wall will accelerate the erosion of the beach dune areas and the adjacent properties. The Petitioners disagree with the conclusion reached by the Department in the final order that, "the activities indicated in the project description are of such a nature that they will result in no significant adverse impacts to the beach dune areas or to the adjacent properties." Intervenors, Fraley and Barbig are in favor of the issuance of the CCCL permit because it will prevent seasonal erosion which results in exposure of, and damage to, the sewer line along The Esplanade, and will provide public access over the shell road within the right-of-way of The Esplanade for those properties between Granada Avenue and Ocala Street that do not have public access from time to time due to the seasonal erosion. On April 17, 1991 the Department advised Venice that the CCCL permit application was determined to be incomplete, and advised Venice of those things needed to make the application complete. Subsequent to this letter, the Department determined that, although the application was not an emergency, it did deserve "fast tracking", and assisted Venice in bringing the application to a "complete" status. On April 25, 1991 the Department issued a Final Order administratively approving CCCL permit number ST-820 for the construction of a wooden retaining wall and shell access road as described in Venice's application. On April 26, 1991 the Department issued a Notice to Proceed Withheld to Venice, which advised Venice not commence construction of the project authorized by the permit until certain permit conditions had been met. This notice also gave notice to those whose substantial interests would be affected by the proposed project of their right to a formal hearing. An engineering assessment was made for this project, and although not a formal written engineering assessment, the engineering assessment did consider all conditions of adverse impacts. In making this assessment, the Department considered and reviewed available aerial photographs, photographs taken of the area of the proposed project site and erosion tables concerning the area. A formal written engineering assessment is not required by statute, rule or Department policy. This assessment also indicated that there are severe impacts due to winter storm events which contribute to the seasonal profile changes. The seasonal beach profile is depicted by the build up of the beach (sand) during the summer months and the removal (erosion) of beach (sand) during the winter months. However, due to an inlet, a major rock-out cropping and the rock grain structures located in the vicinity of the proposed site, there is a limitation on the natural movement of sand along the coast which prevents natural renourishment and results in severe erosion in the area of the proposed site during the winter months. This erosion during the winter months causes the sewer pipes along The Esplanade to be exposed and sometimes broken, and prevents access over the right-of-way of The Esplanade to certain properties located along The Esplanade between Granada Avenue and Ocala Street. The wooden retaining wall is designed to retain sand just landward of the wall and allow a shell access road to be placed on the right-of-way of The Esplanade. The wooden retaining wall will be constructed as follows: (a) 8" x 20' wooden piling will be placed on 6' center and driven to an approximate depth of -14.00 (NGVD); (b) 2" x 8" planking will be attached to the landward side of the piling from the top of the piling (+7.0 NGVD) to a depth of appropriate 7 feet (0.00 NGVD); (c) with a filter "x" cloth covering the planking on the landward side. At the time of the application, the existing beach was +5.0 (NGVD) which would leave approximately 2 feet of the retaining wall exposed on the seaward side. The purpose of the retaining wall is to protect the shoreline in the immediate vicinity of The Esplanade and thereby protect the sewer line and access road which are landward of the seaward (west) right-of-way line of The Esplanade. The proposed wooden retaining wall is to be located as far landward as possible, and will be the minimum size and configuration to protect the sewer line and the shell access road along The Esplanade right-of-way. The retaining wall is designed to be temporary in nature in that its design will not allow it to survive under a major storm event. In that regard, the retaining wall comes within the definition of a minor structure as defined by rule and does not require a formal written review. The access road will enable Venice to establish a public road on public right-of-way for ordinary and emergency utilization by the residents and Venice. Previous attempts by Venice to protect the sewer line by "shoring up" the area with sand bags have proven unsuccessful. A wooden retaining such as the one proposed would be the next logical step to prevent the exposure and damage to the sewer line and still be consistent with the coastal armoring policy adopted by the Governor and Cabinet in December 1990. Dr. Al Deveraux, Bureau Chief, Control Engineering, personally viewed the site prior to approval of the project and waived compliances with certain provisions of the application. There is sufficient competent substantial evidence to establish that: erosion is occurring in the area of the proposed site without the presence of the proposed retaining wall; without the proposed retaining wall, Venice will be unable to prevent that erosion, particularly during the winter storm events, which will result in exposure and damage to the sewer line and lack of public access to certain properties located along The Esplanade between Granada Avenue and Ocala Street; and upon construction of the retaining wall, the beach dune area and the adjacent properties to the south of the proposed project will experience some increase in erosion above that presently occurring, but it will be minimal and will not have a significant impact on the area. The application submitted by Venice was processed and approved in accordance with statutes, rules and Department policy. There is sufficient competent substantial evidence to establish that granting CCCL permit number ST-820 and constructing the retaining wall and access road as set forth in Venice's application would be in the best public interest. The Petitioners' expert witness on coastal engineering concluded that there would be substantial erosion of the beach dune area and adjacent properties south of the proposed retaining wall as a result of constructing the retaining wall. However, this conclusion was not supported by competent substantial evidence. Special permit condition 1 requires Venice to provide the Department with a Sea Turtle Protection Plan approved by the Florida Marine Research Institute in St. Petersburg, Florida. This special condition takes into account the Department's policy for the protection of sea turtles as described in Rule 16B-33.005(9), Florida Administrative Code. The project is consistent with the thirty-year erosion projection and is not located seaward of that line.
Recommendation Having considered the foregoing findings of fact and conclusions of law, it is, accordingly recommended that the Department enter a Final Order issuing CCCL permit number ST-820 to the City of Venice, Florida subject to all the special conditions contained therein, and adding one other special condition requiring the City of Venice, Florida to monitor the beach dune system and adjacent properties south of the project site on a semi-annual basis for a period deemed necessary by the Department, and report any accelerated erosion that might occur in that area to the Department for review and action. RECOMMENDED this 27th day of December, 1991, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of December, 1991.
The Issue The issue is whether appellant's application for a conditional use permit should be approved.
Findings Of Fact Based upon the entire record, the following findings of fact are determined: Appellant, Nostimo, Inc. (appellant, applicant or Nostimo), is the owner of Lots 8, 9, 10 and 11, Block 8, Revised Plat of Clearwater Beach Subdivision, located at 32 Bay Esplanade, Clearwater Beach, Florida. The property is subject to the land use requirements codified in the City of Clearwater Code of Ordinances (code or city code). By application filed on April 25, 1989 appellant sought the issuance of a conditional use permit from appellee, City of Clearwater (City or appellee). If approved, the permit would authorize the sale of beer and wine for off-premises consumption by a Pick Kwik Food Store to be constructed on the property under a lease agreement between appellant and Pick Kwik, Inc. Appellant's property is properly zoned for a retail establishment (CB or Beach Commerical), and it needs no further zoning permits from the City in order to convert the existing structures on the property to a convenience store. Indeed, appellant has already received approval for the construction and operation of the store. However, under subsection 137.024(b) of the city code, appellant is required to obtain a conditional use permit because it intends to engage in the sale of packaged beer and wine for off-premises consumption. In order to obtain such a permit the applicant must satisfy a number of criteria embodied in the code. The parties have stipulated that, with the exception of one standard, all other relevant criteria have been met. The disputed standard requires that "the use shall be compatible with the surrounding area and not impose an excessive burden or have a substantial negative impact on surrounding or adjacent uses or on community facilities or services." It is noted that appellant must secure the necessary land use permit from the City before it can obtain the alcoholic beverage license from the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco. The application was considered by the Clearwater Planning and Zoning Board (Board) on June 13, 1989 and denied by a 5-0 vote with one member abstaining. As a basis for the denial, the Board adopted a staff report that concluded that "due to the beach area being saturated with this use (sale of alcoholic beverages), public nuisances requiring police action are taxing community services." It further concluded that the proliferation of this activity "has a substantial negative impact on surrounding or adjacent uses or on community facilities and services, specifically police services in handling nuisances related to alcoholic beverage establishments." Members of the public who testified in opposition to the application expressed concern over increased traffic in the area, the glare of lights from a 24 hours per day establishment, and potential problems arising from customers who will consume the beer and wine during the evening hours. In addition, two letters in opposition to the application were considered by the Board. Finally, besides a presentation by applicant's attorney, two witnesses appeared on behalf of the applicant and established that Pick Wick, Inc. provides security services at its stores, if needed, and training for employees to prevent the sale of alcoholic beverages to minors. The subject property is located on the western side of the intersection of Bay Esplanade and Mandalay Avenue in Clearwater Beach, an elongated strip of land to the west of the mainland portion of the City and separated from the mainland by Clearwater Harbor. Mandalay Avenue runs north and south through the heart of Clearwater Beach and is a principal traffic artery in that part of the community. The avenue narrows from four to two lanes just south of where the store is to be located. Bay Esplanade is a much shorter street and runs in an east-west direction between the Gulf of Mexico and Clearwater Harbor. In general terms, the property is surrounded by mixed uses and include a 7-11 convenience store immediately across the street to the east, motels and rental apartments, a restaurant, retail businesses and resort facilities, residences, public areas and a city fire station. Maps received in evidence more definitively depict the nature of the uses surrounding Nostimo's property. In addition to a number of commercial establishments within the immediate area, there are also tennis courts, a parking area, community boat ramp, soccer field, playground and public park. Finally, the area is replete with apartments, rental units and condominiums, including some directly behind the proposed establishment. Although there are presently no active businesses located on the subject property, the premises were once occupied by a hotel, apartments, hot dog shop and a small lounge that offered both on and off premises consumption of alcohol. The applicant contends that the proposed use is compatible with both the property's former use and the present surrounding area, particularly since a 7-11 convenience store directly across the street has been in business selling beer and wine for the last twenty-five years, and there are several restaurants or motels within a block that sell alcoholic beverages. The applicant added that, in all, there are approximately fifty-three active alcoholic beverage licenses within two miles of the proposed convenience store. At both the Board hearing and final hearing in this cause, the City Police Department offered testimony in opposition to the issuance of the requested permit. According to the uncontradicted testimony of Lt. Frank Palumbo, who is the Clearwater Beach police department district commander, additional noise, vandalism, traffic congestion and congregation of younger people are expected if the permit is issued. This opinion was based upon his law enforcement experience with other convenience stores on the Beach side that sell beer and wine, including another Pick Wick convenience store. Further, Mandalay Avenue is an important north-south traffic artery in Clearwater Beach, and there are no alternative streets for residents and visitors to use to avoid the traffic build-up that will occur around the store. Lieutenant Palumbo disputed the assertion that the lounge that once occupied a portion of the subject property generated substantial numbers of customers and associated traffic and that the new enterprise is actually a downgrade in use. He pointed out that the former lounge was very small, and a congregation of four or five customers at any one time was a "large crowd." In contrast, the police officer distinguished that situation from the proposed store where the sale of beer and wine around the clock is expected to generate larger volumes of traffic and customers, particularly during the evening hours. Finally, it has been Lt. Palumbo's experience that convenience stores that sell beer and wine attract the younger crowd, including minors, during the late hours of the night, and they create noise and sanitation problems for the adjacent property owners. The witness concluded that all of these factors collectively would have a negative impact on "community services" by placing a greater demand on police resources. This testimony was echoed by a city planner who gave deposition testimony in this cause. The nexus between the sale of alcoholic beverages and increased traffic and noise was corroborated by Daniel Baker, the manager of another Pick Wick store and a former employee of the 7-11 store across the street, who recalled that when beer sales stopped at that store at midnight, the noise and traffic also came to a halt. In this regard, it is noted the proposed store will operate twenty-four hours per day. To the above extent, then, the proposed use is incompatible with the requirements of section 137.011(d)(6). Two other witnesses testified at final hearing in opposition to the application. One, who is a member of a church that lies a block from the proposed store, pointed out without contradiction that a playground sits next to the church and is used by area young people, many of whom use bicycles as their means of transportation. She was concerned that if more traffic is generated by the store, it would make access to the playground more hazardous and discourage the children from using the facility. The second member of the public is concerned that the store will be incompatible with the surrounding area. This is because much of the neighboring area is made up of public areas, apartments, rental units or condominiums, and he contended an establishment selling alcoholic beverages would be inconsistent with those uses.
The Issue The issue for determination is whether Petitioner's revocation of Respondent's modified permit, authorizing a cross- fence on Petitioner's fee owned right-of-way, should be approved.
Findings Of Fact The South Florida Water Management District (District) is a public corporation in the State of Florida, existing by virtue of Chapter 25270, Laws of Florida (1949), and operating pursuant to Chapter 373, Florida Statutes, and Title 40E, Florida Administrative Code, as a multi-purpose water management district. The District's principal office is West Palm Beach, Florida. In executing its multi-purpose, the District, as local sponsor for the US Army Corps of Engineers' Central and Southern Florida Flood Control Project, acquired canal rights-of-way. The District's rights-of-way were acquired to enable the Corps of Engineers to construct the flood control project and to maintain the system after its construction. The District operates a proprietary-based right-of-way program to manage the various property interests of the canal rights-of-way. The purpose of the District's right-of-way program is, to the extent possible, to allow uses of the rights- of-way that do not conflict with the flood control project. The rights-of way are used by both public and private concerns, including adjacent property owners, governmental entities, and utility companies. Jesus G. Quevedo is a private individual. His address is 2615 North Federal Highway, Lake Worth, Florida. The property at this address was vacant when Mr. Quevedo purchased it, and he has owned the property for approximately ten (10) years. The District has fee simple title to a strip of land on the south side of the District's C-51 Canal, immediately west of the Federal Highway/Olive Avenue bridge (C-51 Right-of-Way). Mr. Quevedo's property is located at the side of and adjacent to the C-51 Right-of-Way. The C-51 Right-of-Way is also located within the boundaries of Spillway Park as established in the agreement between the District and the City of Lake Worth. Generally described, Spillway Park includes the District's fee simple owned right-of-way on the south side of the District's C-51 Canal, beginning at the west side of the Federal Highway/Olive Avenue bridge and continuing to the east side of the Dixie Highway bridge. Mr. Quevedo has no real property interest in the C-51 Right-of-Way. Prior to purchasing his property, Mr. Quevedo was aware that the District owned the C-51 Right-of-Way. Historically, portions of Spillway Park and the C-51 Right-of-Way, in particular, have been a unique and popular location for excellent snook fishing by the public. These areas continue to be considered as such. On February 11, 1993, Mr. Quevedo was issued SFWMD Permit No. 9801 (Permit), a right-of-way occupancy permit, by the District’s Governing Board. The Permit authorized him to make use of the District’s lands and works as follows: 20’ X 50’ BOAT DOCK WITH WALKWAY, BURIED WATER AND ELECTRICAL SERVICE, POP-UP SPRINKLERS, AND SODDING WITHIN THE SOUTH RIGHT OF WAY OF C-51 LOCATED IMMEDIATELY WEST OF THE OLIVE AVENUE/FEDERAL HIGHWAY BRIDGE. During the permit application process, but prior to the issuance of the Permit, Mr. Quevedo had discussed with the District's staff the erection of a cross-fence based on allegations of improper or criminal activities by members of the public. Subsequently, in November 1995, Mr. Quevedo again discussed with the District's staff erection of a cross-fence based on the same allegations but he also included a new allegation of public safety as to the C-51 seawall. Based on the concern for public safety, the District's staff recommended that Mr. Quevedo be granted a modification to the Permit for a cross-fence. On November 14, 1996, the District's Governing Board approved, as part of its consent agenda, and issued SFWMD Permit MOD No. 9801 (MOD Permit)3 authorizing the following: CHAIN LINK CROSS FENCE WITH 16’ VEHICULAR GATE ALONG THE WEST PROPERTY LINE WITHIN THE SOUTH RIGHT OF WAY OF C-51 LOCATED AT 2615 NORTH FEDERAL HIGHWAY. The MOD Permit, as did the Permit, provides in pertinent part on its face the following: The permittee, by acceptance of this permit, hereby agrees that he shall promptly comply with all orders of the District and shall alter, repair or remove his use solely at his expense in a timely fashion. . . . This permit is issued by the District as a license to use or occupy District works or lands. . . By acceptance of this permit, the permittee expressly acknowledges that the permittee bears all risk of loss as a result of revocation of this permit. The MOD Permit, as did the Permit, contained standard limiting conditions, as provided in Rule 40E-6.381, Florida Administrative Code, and special conditions. The limiting conditions provide in pertinent part as follows: Permittee agrees to abide by all of the terms and conditions of this permit, including any representations made on the permit application and related documents. . . . This permit does not create any vested rights, and except for governmental entities and public or private utilities, is revocable at will upon reasonable prior written notice. Permittee bears all risk of loss as to monies expended in furtherance of the permitted use. Upon revocation, the permittee shall promptly modify, relocate or remove the permitted use. In the event of failure to so comply within the specified time, the District may remove the permitted use and permittee shall be responsible for all removal costs. This permit does not convey any property rights nor any rights or privileges other than those specified herein. . . . Having been granted the MOD Permit, Mr. Quevedo erected the cross-fence within and onto the C-51 Right-of-Way. The C-51 Right-of-Way is located adjacent to Mr. Quevedo’s property, as indicated earlier, and continues westerly to the permitted cross-fence. The C-51 Right-of-Way is enclosed by the cross-fence, preventing access by the public, and is located easterly of the cross-fence. As the C-51 Right-of-Way is located within the boundaries of the Spillway Park, the cross- fence is also located within the boundaries of the Spillway Park. During the time that Mr. Quevedo has owned his home, including prior to and after erection of the cross-fence, he, his family members and/or guests have frequently fished from the C-51 seawall and used the C-51 Right-of-Way enclosed by the cross- fence. Prior to and after the erection of the cross-fence, Mr. Quevedo and his family members have selectively controlled access by the public to the C-51 Right-of-Way at the C-51 seawall. Prior to the erection of the cross-fence, Mr. Quevedo chased members of the public off the C-51 Right-of-Way. Mr. Quevedo and members of his family also called law enforcement officers to remove members of the public who were located on the C-51 Right-of-Way, even if the members of the public were fishing from the C-51 seawall. After the erection of the cross-fence, Mr. Quevedo and his family members continued to engage in this conduct of selective access. Subsequent to the erection of the cross-fence, Mr. Quevedo had a member of the public arrested for trespassing. The person allegedly jumped over or went around the cross-fence to fish from the C-51 seawall in the C-51 Right-of-Way. With the existence of the cross-fence, Mr. Quevedo has prevented the general public from using the C-51 Right-of-Way, including the C-51 seawall. As a result, he has acquired the exclusive, private use of the C-51 Right-of-Way at the C-51 seawall, which is publicly owned land, and has, almost doubled the size of his adjacent property without the obligations and expense of acquisition, assuming he could acquire the property through acquisition. The District's policy is that public land should be open to the public. Contrary to this policy, Mr. Quevedo's cross-fence precludes access to the District's right-of-way (C-51 Right-of-Way), including the seawall, for passive recreational use. Similar cross-fencing, although not within the boundaries of Spillway Park, have been erected behind residences on the northeast, northwest, and southeast sides of Federal Highway, along the District’s C-51 Canal bank. The cross-fencing prevents public use of the District’s C-51 Canal bank at these locations. The City of Lake Worth made improvements within the boundaries of Spillway Park; however, it made no improvements, and does not intend to make any improvements in the future, at the C-51 Right-of-Way where Mr. Quevedo’s cross-fence is located or at the other private lots west of Mr. Quevedo's property. All of the improvements made at Mr. Quevedo’s cross-fence at the C-51 Right-of-Way have been made by him even though the C-51 Right-of- Way is located within Spillway Park. The original public safety rationale for authorizing Mr. Quevedo to erect the cross-fence blocking public access was revisited by the District. Additional investigation by safety experts (Risk Management staff) revealed that no unreasonable danger existed by allowing public access to the C-51 seawall at the C-51 Right-of-Way. In the absence of the public safety basis for closure of the C-51 Right-of-Way, such closure was contrary to District policy. As a consequence, the District’s staff recommended to the District’s Governing Board that the MOD Permit, authorizing Mr. Quevedo’s cross-fence, be revoked. After conducting two public meetings and receiving comments from Mr. Quevedo, members of the public, and the District’s staff as to the policy issue of pubic access to the C- 51 Right-of-Way, the District’s Governing Board determined that the C-51 Right-of-Way should be open to the public. Consequently, the Governing Board decided to revoke Mr. Quevedo's MOD Permit. Allegations of criminal activity within the general boundaries of Spillway Park and, specifically, in the C-51 Right- of-Way at the cross-fence area, were made by Mr. Quevedo as a basis to not revoke the MOD Permit and allow the cross-fence to remain. Such allegations have no bearing on the revocation of the MOD Permit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order revoking SFWMD Permit No. MOD 981 issued to Jesus G. Quevedo. DONE AND ENTERED this 8th day of March, 1999, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 8th day of March, 1999.
Findings Of Fact Petitioner Richard L. Buchanan owns a lot in Franklin County, which lies on the north shore of Apalachicola Bay. Shellfish harvesting is prohibited in the water adjacent to his parcel despite, or perhaps because of, oyster houses having operated in the vicinity for many years. Mr. Buchanan is not an oysterman himself, but he does fish commercially, when he is able. He owns two licensed fishing boats. He goes floundering and also fishes with gill nets. Since he acquired the property 10 or 12 years ago, Mr. Buchanan regularly loaded nets from shore and unloaded fish and nets on shore, until the prop-dredging took place, even though a dock extends out into the Bay from his property. The outboard motor is hard to handle from the dock and it is virtually impossible to load the nets from the dock without fouling them. Until the prop-dredging he could bring his boats all the way in and lay their bows on the shore along the stretch of clean sand 35 to 50 feet wide at the western end of his 145 feet of Bay frontage. There was a sheer drop to a depth, at high water, of about 3.5 feet. The Sadler boy drowned there. Before the prop-dredging disturbed it, the configuration of the bottom that allowed small boats to come all the way into shore at that point had obtained for decades. Leo Nixon Harwell, son of the former owner of petitioner's property, remembered running the Harwells' oyster boat, which drew three feet, right up on the beach. Mr. Harwell, who looked to be in his 50's, testified that there had been deep water next to the shore ever since he was "no yearly boy." The further from shore the deeper it got till you reached Two Mile Channel. Between the sandy beach and the channel there was no vegetation to speak of although there was a marshy swash to the east of the sandy beach. In 1979, when Arman Earl Cloud had to haul his bay shrimper for repairs, he floated it to the beach in back of Mr. Buchanan's house and pulled it up on the beach, using rollers. The bow floated to the water's edge. The boat had a length overall of 25 to 28 feet, a beam of nine feet and drew three to three and a half feet of water. An oyster house sits on the next parcel west of the Buchanan property. The oyster house belongs to a man named Page, and a dock 100 feet long juts out toward Two Mile Channel from the oyster house. It used to be impossible to get an oyster boat in any closer to shore. When John Paul Whitehead was oystering some years back, they used to have to anchor out and transfer the oysters to a skiff to get them to the Page oysterhouse. In fact, when Diane Collins rented the oysterhouse (from Bobby Youngblood) in 1974 or 1975 it was impossible to bring even a flat-bottomed boat in as far as the waterward end of the dock. "On dead low tide all you seen was sand on either side of the dock." According to unrebutted testimony, the Pages changed all this by prop- dredging. (Mr. Page failed to honor the subpoena requiring his attendance at the final hearing.) Prop-dredging involves fixing the bow of a boat by grounding or otherwise, and turning the propeller at speeds high enough to move soils on the bottom. Bay this technique, the Pages dredged great quantities of sand on either side of their dock. Most of the sand stayed suspended in the water only long enough to settle in front of their neighbors' property. This illegal activity was brought to the attention of the marine patrol at the time, whose warning to the Pages to desist went unheeded, and at least one employee of respondent Department of Environmental Regulation was also apprised. The prop- dredging continued for some time, usually at night, and the eventual result was "a muck hill" in front of the Miracle Seafood property abutting the Pages to the west, and a sandbar in front of Mr. Buchanan's property that completely blocks access to his sandy beach. The Pages, with 55 front feet on the Bay, can now accommodate quite a fleet at their dock. One day six to eight boats were docked there. The sandbar in front of Mr. Buchanan's property attributable to the Pages' unpermitted and illegal prop-dredging has by now been there long enough that smooth cord grass (Spartina altiflora), saw grass and maiden cane have taken root. The dredging proposed by petitioner to restore access to his shoreline would disturb some 400 square feet, on which only Spartina altiflora is growing. On about a quarter of the proposed site, there is no vegetation. The Spartina altif lora helps stabilize the shoreline, serves to filter pollutants running off into the Bay and provides a habitat and food for insects, worms, oysters, shrimp and fishes. Dredging would resuspend any heavy metals in the soil, and increase the turbidity of the water, in the immediate vicinity. There is a boat ramp 500 feet from petitioner's property. DER would issue a permit for a marine railway at the site where petitioner hopes to dredge. Apalachicola Bay is classified as Class II waters, and as outstanding Florida waters, being part of an aquatic preserve. There is a clear public interest in permitting a private citizen, who is willing to restore, at his own expense, a part of the coastline disturbed by illegal activity which he responded to the authorities at the time, to the status quo which existed for as long as anybody can remember, before the illegal activity disturbed it. In an undated letter to Mr. Buchanan, James W. MacFarland, Director, Division of State Lands, Department of Natural Resources, advised that Upon the assurance that the environmental effects are acceptable and with the understanding that DER intends to issue the permit, we will request the dredge material severance fees and issue our authorization pursuant to Section 253.77, Florida Statutes, upon the permit receipt. The credible testimony of DER staff was to the effect not that the loss of some 300 square feet of Spartina altif lora would have unacceptable environmental effects, but that the cumulative effect of projects entailing destruction of such grasses would have unacceptable environmental consequences. Respondent's proposed findings of fact, conclusions of law and proposed recommended order have largely been adopted, in substance. To the extent any proposed finding of fact has been rejected, it has been deemed immaterial or unsupported by the weight of the evidence.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner grant respondent's application for a dredging permit on such reasonable conditions, including turbidity curtains, as are necessary adequately to protect the project vicinity. DONE and ENTERED this 8th day of August, 1983, in Tallahassee, Florida. ROBERT T. BENTON, II 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 8th day of August, 1983. COPIES FURNISHED: E. Gary Early, Esquire Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Richard L. Buchanan P. O. Box 33 Apalachicola, Florida 32320 Victoria Tschinkel, Secretary Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
