94-006813 Stephen A. Spoeth And Olive Fay Mccall vs. Frank And Patricia Baird And Department Of Environmental Protection
 Status: Closed
Recommended Order on Tuesday, June 13, 1995.


View Dockets  
Summary: Unpermitted seawall and catwalk met criteria for exemption from permitting in a residential canal.

1n

2STATE OF FLORIDA

5DIVISION OF ADMINISTRATIVE HEARINGS

9STEPHEN A. SPOETH and )

14OLIVE MCCALL SPOETH, )

18)

19Petitioners, )

21)

22vs. ) CASE NO. 94-6813

27)

28FRANK AND PATRICIA BAIRD, and )

34DEPARTMENT OF ENVIRONMENTAL )

38PROTECTION, )

40)

41Respondents. )

43___________________________________)

44RECOMMENDED ORDER

46Pursuant to notice, the Division of Administrative Hearings, by its duly

57designated Hearing Officer, Richard Hixson, held a formal hearing in this case

69on April 24, 1995 in New Port Richey, Florida.

78APPEARANCES

79For Petitioners: Stephen A. Spoeth and

85Olive McCall Spoeth

8814038 Pine Street

91Hudson, Florida 34667

94For Respondent Edson L. Garrabrants, Jr., Esquire

101Baird: 6008 Main Street

105New Port Richey, Florida 34653

110For Respondent Christine C. Stretesky, Esquire

116Agency: Department of Environmental Protection

1212600 Blair Stone Road

125Tallahassee, Florida 32399-2400

128STATEMENT OF THE ISSUES

132The issues for determination in this case are whether an unpermitted

143seawall and an unpermitted catwalk constructed by Respondents Frank and Patricia

154Baird qualify for exemption from permitting under Rule 62-312.050, Florida

164Administrative Code.

166PRELIMINARY STATEMENT

168By letter dated September 22, 1994, the Department of Environmental

178Protection (DEP) notified Respondent Patricia Baird of DEP's determination that

188an unpermitted seawall and an unpermitted catwalk constructed on property owned

199by Respondent in Pasco County, Florida, met the exemption from permitting

210criteria set forth in Rule 62-312.050, Florida Administrative Code. DEP

220accordingly notified Respondent Baird that the seawall and the catwalk could

231remain in place. On October 1, 1994, Petitioners, Stephen A. Spoeth and Olive

244Faye McCall Spoeth, filed a petition in opposition to DEP's determination

255regarding the authorization of the unpermitted seawall and unpermitted catwalk.

265Petitioners requested a formal hearing, and the case was referred to the

277Division of Administrative Hearings on December 5, 1994.

285At hearing on April 24, 1994, Petitioners testified in their own behalf.

297Petitioners also presented eight exhibits which were received into evidence.

307Respondent Patricia Baird testified in her own behalf, and presented the

318testimony of one witness, Mary-Jane Prack. Respondent Baird also presented

328seven exhibits which were received into evidence. Respondent Frank Baird is now

340deceased.

341Respondent DEP presented the testimony of three witnesses, Joseph R.

351Bacheler, Don DePra and Bob Stetler, and also presented one exhibit which was

364received in evidence.

367A transcript of the proceedings was filed on May 19, 1995. The parties

380filed proposed findings of fact and conclusions of law. Specific rulings as to

393each party's proposed findings of fact are attached as an Appendix hereto.

405FINDINGS OF FACT

4081. Petitioners, Stephen A. Spoeth, and Olive Faye McCall Spoeth, reside at

42014038 Pine Street, Hudson, Pasco County, Florida. Mrs. Spoeth purchased the

431property in 1989 prior to Petitioners' marriage and has lived at this residence

444since that time. Mr. Spoeth has resided at the property since 1991.

456Petitioners' residence is located on lot 14 in the subdivision plat.

4672. In addition to their residence (lot 14), Petitioners own another lot,

479(lot 10), directly across Pine Street from their residence. Lot 10 borders the

492end of a canal. Petitioners have constructed a 10.6 foot by 11.8 foot dock that

507extends approximately 16.5 feet into the canal from Lot 10. Petitioners also

519own property adjacent to lot 10 on the south side of the canal.

5323. Respondent, Patricia Baird, resides at 6732 Udell Lane, Hudson, Pasco

543County, Florida. Respondent and her husband, Frank Baird, purchased this

553property in 1991. Frank Baird is now deceased. Respondent owns lots 8 and 9 as

568identified in the subdivision plat. Respondent's residence is located on lot 8.

580Both lots 8 and 9 border the north side of the canal. Lot 8 has 75 feet of

598waterfront, and lot 9 has 70 feet of waterfront. Lot 9 abuts Petitioners' lot

61210 at the end of the canal.

6194. The canal in question is a dead-end canal located in a residential

632community in Pasco County. The canal was artificially created on historically

643upland property. The canal runs east to west, is rectangular in shape, and is

657approximately 70 feet wide, as measured from north to south. The canal accesses

670into Hudson Creek which then accesses into the Gulf of Mexico. The water in the

685middle of the canal is generally five feet in depth; however, the depth of the

700water in the canal varies with tidal fluctuations. During low tides, the water

713over two feet in depth is shared equally between both sides of the canal

727channel. At normal tide flow, water at the three-foot depth level is also

740shared equally between both sides of the canal. Water at the five-foot depth

753level is slightly closer to the north part of the canal channel next to the

768Baird's property.

7705. Since 1991, the Bairds have constructed four structures on their

781property: a seawall; a fixed dock; a floating dock; and a catwalk.

7936. The seawall runs the length of the waterfront on both lots 8 and 9. A

809six-foot portion of the seawall was constructed on Petitioners' property (lot

82010), and was subsequently removed as a result of a prior proceeding between

833these parties. The Baird seawall is level and flush with the adjoining seawall

846constructed on waterfront lot 7 that is owned by Mary-Jane Prack. The Baird

859seawall was constructed in accordance with generally acceptable building

868practices.

8697. On lot 8 the Bairds constructed a 20 foot by 16 foot fixed dock

884adjacent to the seawall. The fixed dock was constructed in accordance with

896generally accepted building practices.

9008. On lot 9 the Bairds placed an 8 foot by 12 foot floating dock with an

91711.7 foot catwalk. This structure extends approximately 19.7 feet into the

928canal. The floating dock was constructed in accordance with generally accepted

939building practices.

9419. In 1993 the Bairds added a 30 foot by 18 foot by 30 foot L-shaped

957catwalk adjacent to the existing dock on lot 9. The catwalk was constructed in

971accordance with generally accepted building practices.

97710. Petitioners have one boat tied to their dock on lot 10. The

990Petitioners also keep a paddle boat and a canoe at that location.

100211. Prior to the construction of the Baird's catwalk, Petitioners tied

1013their boat with the bow pointing north. This allowed the Petitioners to access

1026water which was generally three feet in depth. Subsequent to the construction

1038of the catwalk, Petitioners tie their boat with the bow to the south. The water

1053in this part of the canal is shallower than on the north side, and on some

1069occasions when the tide is extremely low, the bow of Petitioners' boat rests in

1083mud. Such extreme low tides usually occur in the spring of the year, and

1097generally happen seven days a year. On such occasions Petitioners experience

1108great difficulty moving their boat into the canal. During such low tides

1120Petitioners also have difficulty launching their paddle boat and canoe.

113012. The evidence is consistent that private boats navigate the canal.

1141Moreover, Mary-Jane Prack testified that not only private vessels, but also

1152commercial fishing vessels, currently use the canal on a regular basis during

1164the day and the night. Thus, there is no question that the seawall and catwalk

1179do not impede navigation of the canal.

118613. Water quality in the canal was not tested prior to the construction of

1200the seawall and catwalk on the Baird's property, and there is no basis to

1214evaluate the impact of the construction of the Baird's seawall and catwalk on

1227water quality; however, except for the initial period of construction, the

1238building of a seawall, fixed dock, floating dock, and catwalk in accordance with

1251generally accepted building practices does not have an adverse effect on water

1263quality in a residential tidal canal.

126914. The Baird seawall is level with the surrounding property and does not

1282adversely affect runoff or flood control.

128815. The Baird catwalk is constructed to allow water flow and does not

1301adversely affect runoff or flood control.

130716. On September 22, 1994, DEP issued a letter determining that the Baird

1320unpermitted seawall and unpermitted catwalk met the exemption criteria set forth

1331in Rules 62-312.050(1)(g) and (h), Florida Administrative Code. The DEP

1341decision in this regard reversed a prior warning letter issued by DEP on

1354December 16, 1993, to the Bairds stating that the unpermitted seawall and

1366unpermitted catwalk were in violation of the DEP rules. The warning letter was

1379issued by DEP under the mistaken apprehension that the canal had been

1391constructed on sovereign state submerged land, when in fact the canal was

1403artificially constructed on historically uplands property.

1409CONCLUSIONS OF LAW

141217. The Division of Administrative Hearings has jurisdiction over the

1422subject matter of and the parties to this action pursuant to Section 120.57(1),

1435Florida Statutes.

143718. Rules 62-312-050(1)(g) and (h), Florida Administrative Code, provide:

1446(1) No permit shall be required under this

1454chapter for dredging or filling specified in

1461Section 403.813(2), F.S., except for those

1467projects which are subject to one or more of

1476the general permits in Part V of Chapter 62-312,

1485F.A.C. No permit under this chapter shall be

1493required for dredging or filling authorized by

1500Sections 62-4.040(1)(a) or (b), F.A.C., or for

1507dredging or filling which has been approved

1514pursuant to Chapters 62-17, 62-23, or 62-45,

1521F.A.C., or for the projects listed below.

1528* * *

1531(g) Construction of seawalls or riprap,

1537including only that backfilling needed to level

1544the land behind the seawalls or riprap, in

1552artificially created waterways where such

1557construction will not violate existing water

1563quality standards, impede navigation or adversely

1569affect flood control. An artificially created

1575waterway shall be defined as a body of water that

1585has been totally dredged or excavated and which

1593does not overlap natural surface waters of the

1601state. For the purpose of this exemption,

1608artificially created waterways shall also include

1614existing residential canal systems. This exemption

1620does not apply to the construction of vertical

1628seawalls in estuaries or lagoons unless the proposed

1636construction is within an existing man-made canal

1643where the shoreline is currently occupied in whole

1651or in part by vertical seawalls.

1657(h) Construction of private docks in artificially

1664created waterways (as defined in Section 62-

1671312.050(1)(g)) where construction will not violate

1677water quality standards, impede navigation, or

1683adversely affect flood control.

168719. The waterway in question is a residential canal within the meaning of

1700Rule 62-312.050(1)(g), Florida Administrative Code.

170520. The Baird seawall does not violate existing water quality standards,

1716impede navigation, or adversely affect flood control.

172321. The Baird catwalk does not violate water quality standards, impede

1734navigation or adversely affect flood control.

174022. The unpermitted seawall and the unpermitted catwalk on the Baird

1751property at 6732 Udell Lane, Hudson, Pasco County, Florida, meet the criteria

1763for exemption from permitting under Rules 62-312.050(1)(g) and (h), Florida

1773Administrative Code.

1775RECOMMENDATION

1776Based on the foregoing findings of fact and conclusions of law, it is

1789RECOMMENDED that:

1791The Department of Environmental Protection issue a Final Order upholding

1801the Department's determination that the unpermitted seawall and unpermitted

1810catwalk located at 6732 Udell Lane, Hudson, Pasco County, Florida, meet the

1822exemption criteria set forth in Rules 62-312.050(1)(g) and (h), Florida

1832Administrative Code.

1834RECOMMENDED in Tallahassee, Leon County, Florida, this 13th day of June,

18451995.

1846___________________________________

1847RICHARD HIXSON

1849Hearing Officer

1851Division of Administrative Hearings

1855The DeSoto Building

18581230 Apalachee Parkway

1861Tallahassee, Florida 32399-1550

1864(904) 488-9675

1866Filed with the Clerk of the

1872Division of Administrative Hearings

1876this 13th day of June, 1995.

1882APPENDIX

1883Petitioner's Proposed Findings:

18861. Rejected except to the extent that the bow of Petitioners' boat at

1899extreme low tides sits in the mud.

19062. Rejected

19083. Rejected

19104. Rejected

19125. Rejected as irrevelant

19166. Rejected as irrelevant

19207. Rejected

19228. Rejected

1924Respondent Bairds' Proposed Findings:

19281 - 7. Adopted and incorporated

1934Respondent DEP's Proposed Findings:

19381 - 38. Adopted and incorporated

1944COPIES FURNISHED:

1946Virginia B. Wetherell, Secretary

1950Twin Towers Office Building

19542600 Blair Stone Road

1958Tallahassee, Florida 32399-2400

1961Kenneth Plante

1963General Counsel

19652600 Blair Stone Road

1969Tallahassee, Florida 32399-2400

1972Stephen A. Spoeth and

1976Olive McCall Spoeth

197914038 Pine Street

1982Hudson, Florida 34667

1985Edson L. Garrabrants, Jr., Esquire

19906008 Main Street

1993New Port Richey, Florida 34653

1998Christine C. Stretesky, Esquire

2002Department of Environmental

2005Protection

20062600 Blair Stone Road

2010Tallahassee, Florida 32399-2400

2013NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

2019All parties have the right to submit written exceptions to the Recommended

2031Order. All agencies allow each party at least 10 days in which to submit

2045written exceptions. Some agencies allow a larger period within which to submit

2057written exceptions. You should consult with the agency that will issue the

2069Final Order in this case concerning their rules on the deadline for filing

2082exceptions to this Recommended Order. Any exceptions to this Recommended Order

2093should be filed with the agency that will issue the Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
Date: 07/18/1995
Proceedings: Final Order filed.
Date: 07/18/1995
Proceedings: Final Order filed.
PDF:
Date: 07/13/1995
Proceedings: Agency Final Order
PDF:
Date: 07/13/1995
Proceedings: Recommended Order
PDF:
Date: 06/13/1995
Proceedings: Recommended Order sent out. CASE CLOSED. Hearing held 04/24/95.
Date: 06/02/1995
Proceedings: Department of Environmental Protection`s Proposed Recommended Order; Computer Disk (Hearing Officer has) filed.
Date: 06/02/1995
Proceedings: Patricia Baird and Frank Baird (Deceased)`s Proposed Recommended Order; Cover Letter filed.
Date: 05/19/1995
Proceedings: Transcript of Proceedings Had Before Richard A. Hixson, Hearing Officer filed.
Date: 05/15/1995
Proceedings: Letter to Hearing Officer from Edson L. Garrabrants, Jr. Re: Proposed Recommended Order filed.
Date: 05/10/1995
Proceedings: (Stephen A. Spoeth & Olive McCall) Proposed Recommended Order for April 24, 1995 Hearing Regarding Navigational Impediments in Hudson Creek/Canal Hudson, Fl. filed.
Date: 04/24/1995
Proceedings: CASE STATUS: Hearing Held.
Date: 03/10/1995
Proceedings: Amended Notice of Hearing as to Date Only sent out. (hearing set for 4/24/95; 9:30am; New Port Richey)
Date: 03/06/1995
Proceedings: Notice of Hearing sent out. (hearing set for 4/18/95; 9:30am; New Port Richey)
Date: 03/03/1995
Proceedings: (Respondent) Notice of Appearance; Letter to Hearing Officer from Edson L. Garrabrants, Jr. Re: Request that the hearing be deferred until the week of April 24-28 filed.
Date: 02/07/1995
Proceedings: Notice of Appearance of Counsel for Department of Environmental Protection filed.
Date: 01/19/1995
Proceedings: Notice of Hearing sent out. (hearing set for 3/1/95; 9:30am; New Port Richey)
Date: 01/06/1995
Proceedings: Ltr. to Hearing Officer from S. Spoeth re: Reply to Initial Order filed.
Date: 12/21/1994
Proceedings: Department Of Environmental Protection`s Response To Initial Order filed.
Date: 12/12/1994
Proceedings: Initial Order issued.
Date: 12/06/1994
Proceedings: Agency Action Letter filed.
Date: 12/05/1994
Proceedings: Request for Assignment of Hearing Officer and Notice of Preservation of Record; Petition for an Administrative Proceeding filed.

Case Information

Judge:
RICHARD A. HIXSON
Date Filed:
12/05/1994
Date Assignment:
01/10/1995
Last Docket Entry:
07/18/1995
Location:
New Port Richey, Florida
District:
Middle
Agency:
ADOPTED IN TOTO
 

Related DOAH Cases(s) (1):

Related Florida Statute(s) (2):

Related Florida Rule(s) (2):