95-000049 South Florida Water Management District vs. Robert A. Robinson Status: Closed Recommended Order on Thursday, July 6, 1995.

Summary: District had cause to revoke permit authorizing encroachments into maintenance easement and to demand removal of encroachments.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SOUTH FLORIDA WATER MANAGEMENT )

DISTRICT, )

)

Petitioner, )

)

vs. ) CASE NO. 95-0049

)

ROBERT ROBINSON, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

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

designated Hearing Officer, Claude B. Arrington, held a formal hearing in the

above-styled case on May 18, 1995,in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Scott Allen Glazier, Esquire

South Florida Water Management District

3301 Gun Club Road

West Palm Beach, Florida 33416

For Respondent: Robert Robinson, pro se

7900 Southwest 173rd Terrace

Miami, Florida 33157

STATEMENT OF THE ISSUES

Whether the Petitioner (the District) has the authority and cause to revoke

Right of Way Occupancy Permit Number 9591 that permitted Respondent to erect a

fence and maintain two oak trees on real property that is subject to the

District's maintenance easement and, if so, whether the District has the

authority and cause to demand the removal of the fence, the two oak trees, and a

key lime tree from the easement area.

PRELIMINARY STATEMENT

Respondent is the owner of a single family residence in Dade County,

Florida, that abuts the District's C-100 Canal. This canal is owned and

maintained by the District and is an essential part of its flood control plan.

Adjacent and parallel to the north bank of the canal in the vicinity of

Respondent's property is a strip of land twenty feet wide that is owned by the

District and used for operation and maintenance of the canal. Adjoining and

parallel to the maintenance strip owned by the District is a strip of land that

forms the rear 20' of the residential lot owned by Respondent. This portion of

the Respondent's property (the easement area) is subject to an easement that

gives the District the right to use the easement area for maintenance and

operation of the canal.

On April 9, 1992, the District issued Right of Way Occupancy Permit Number

9591 (Permit 9591) to the Respondent. This revocable permit allowed Respondent

to encroach onto the maintenance easement by erecting a fence and maintaining

two oak trees, subject to certain limiting conditions.

On November 15, 1994, the District issued an Administrative Complaint and

Order which, subject to Respondent's due process rights, revoked Permit 9591 and

demanded that Respondent remove the fence, the two oak trees, and a key lime

tree that encroached on the easement. The key lime tree had not been included

as a permitted encroachment by Permit 9591. The Administrative Complaint and

Order ordered the following:

1. Right of Way Occupancy Permit No. 9591,

authorizing a fence enclosure and two trees

is hereby REVOKED, effective thirty (30) days

from the date of service of this Administrative

Complaint and Order and Notice of Intent to

Revoke Permit.

2. Respondent shall remove the fence enclosure,

trees [the two oak trees and the key lime tree]

and any other items that may be located on the

District's right of way without authorization

and restore the District's right of way to its

original or better condition within thirty (30)

days from the date of service of this Administra-

tive Complaint and Order and Notice of Intent to

Revoke Permit.

3. Respondent shall hold and save the District

harmless from any and all damages or claims which

arise from Respondent's compliance activities.

4. Respondent, pursuant to Rule 40E-6.381,

Florida Administrative Code, shall pay all

investigative costs, court costs, and reasonable

attorney's fees incurred by the District in

obtaining compliance with the terms of this Order.

5. In the event Respondent fails to comply with

the above terms, the District shall remove all

encroachments, undertake appropriate restoration

work (which shall be determined by District staff),

and take any and all measures the district deems

necessary to effectively terminate Respondent's

present and potential future unauthorized use of

the District's lands and works.

6. Pursuant to sections 373.044, 373.083,

373.085, 373.086, 373.119, 373.129, 373.126,

373.603 and 120.609 (sic), Florida Statutes, and

Rules 40E-1.609, 40E-6.341 and 40E-6.491, Florida

Administrative Code, the District is authorized

to enforce the terms of this Order and seek other

remedies which include but are not limited to:

a. An injunction to abate the violations;

b. Civil penalties in an amount not to exceed

$10,000.00 per day, each day constituting a separate

offense; and

c. Investigative costs, court costs, and reasonable

attorney's fees. Such attorney's fees shall be based

upon their fair market value of the services provided,

based upon what a private attorney would charge.

Respondent timely challenged the District's intended action, the matter was

referred to the Division of Administrative Hearings, and this proceeding

followed.

At the formal hearing, the District presented the testimony of Tom Fratz,

Abbe Hoctor, and Clarence Tears. Mr. Fratz is employed as Director of the

District's Right of Way Division. Ms. Hoctor is employed by the District as an

environmental scientist and was accepted as an expert witness in the field of

landscape architecture. Mr. Tears is employed by the District as the Regional

Operation Maintenance for the District's Miami Field Station. The District

presented 7 exhibits, 6 of which were admitted into evidence. Respondent

presented no testimony and no exhibit.

A transcript of the proceedings has been filed. Rulings on the District's

proposed findings of fact may be found in the Appendix to this Recommended

Order. The Respondent did not file a post-hearing submittal.

In its proposed recommended order, the District requests that its

Administrative Complaint and Order entered November 15, 1994, be "upheld, in

toto". The matters "ordered" in paragraphs 3, 4, 5, and 6 were not at issue in

this proceeding and nothing contained herein should be construed as granting the

District such relief. Whether the District is entitled enforce its contractual

and property rights as set forth in paragraphs 3-6 would be within the

jurisiction of a circuit court. See, Article V, Section 5, Florida

Constitution, and Section 120.57(1), Florida Statutes. There was no evidence as

to any costs or attorney's fees incurred by the District in bringing the instant

proceeding.

FINDINGS OF FACT

1. Respondent is the owner of a single family residence located at 7900

Southwest 173rd Terrace, Miami, Florida. The rear of Respondent's property

backs up to the north right of way of the District's C-100 Canal.

2. The C-100 Canal is one of the works of the District and is an essential

part of the District's flood control plan. The C-100 Canal system supports

surface drainage and flood protection to approximately 40 square miles of Dade

County, Florida.

3. The property owned by the District in fee simple includes a strip of

land that is adjacent and parallel to the north bank of the canal. This strip

of land is twenty feet wide and provides the District with a portion of the land

it requires for maintaining the canal.

4. On February 18, 1964, Respondent's predecessor in title executed a

document styled "Permanent Maintenance Easement" that granted to the District's

predecessor agency an easement on and across a strip of land that constitutes

the rear twenty feet of Respondent's property. The easement area is adjacent

and parallel to the maintenance strip owned by the District. The instrument

granting the easement provided, in pertinent part, as follows:

. . . the grantors do hereby grant, bargain,

sell and convey unto the grantee . . . its

successors and assigns, the perpetual maintenance

easement and right for and to the use and enjoyment

for canal maintenance purposes of the following

described lands . . . for the purpose of ingress

and egress in maintaining and operating Canal

C-100, one of the works of the District . . .,

and for no other purpose, it being understood

and agreed that said land shall not be excavated

and that no permanent structure of any kind shall

be placed thereon. . . .

All the covenants and agreements herein

contained shall extend to and be binding upon

the parties hereto and their respective . . .

successors and assigns.

5. On April 9, 1992, the District issued to Respondent Permit Number 9591

which, subject to limiting conditions, authorized certain encroachments by

Respondent into the easement area and described those encroachments as follows:

4' high chain link fence enclosure encroaching

20' and 2 trees inside the fenced enclosure

within the District's 20' canal maintenance

easement along the north right of way of C-100

located at the rear of 7900 Southwest 173rd Terrace.

6. Permit 9591 provided, in pertinent part, as follows:

. . . The Permittee [the Respondent], 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. . . .

. . . By acceptance of this permit, the permittee

expressly acknowledges that the permittee bears

all risks of loss as a result of revocation of

this permit.

7. The District has enacted Rule 40E-6.381, Florida Administrative Code,

which provides the following standard limiting conditions of Permit 9591

pertinent to this proceeding:

The District's authorization to utilize lands and

other works constitutes a revocable license. In

consideration for receipt of that licensure,

permittees shall agree to be bound by the following

standard limiting conditions, which shall be

included within all permits issued pursuant to

this chapter.

* * *

(3) This permit does not create any vested rights,

and . . . 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.

* * *

(7) The permittee shall not engage in any activity

regarding the permitted use which interferes with

the construction, alteration, maintenance or

operation of the works of the District, including:

* * *

(c) planting trees . . . which limit or prohibit

access by District equipment and vehicles, except

as may be authorized by the permit.

8. Among the special limiting conditions of the permit are the following:

8. The permittee is responsible for pruning trees

in order that their canopies do not encroach within

areas needed by the district for canal maintenance

purpose. Upon the request of the district, the

permittee shall trim or prune any growth which

the district has determined interferes with the

district's access, operations, and maintenance.

9. Permittee shall be responsible for the maintenance of the canal right

of way within the fenced area and also for the maintenance of the right of way

to a point 10 feet outside the fenced area.

10. At the time of the formal hearing, the easement area was enclosed by

the fence that Respondent erected pursuant to Permit 9591 and there existed

within the easement area two live oak trees and one key lime tree. The two oak

trees were approximately ten years old. The evidence did not establish whether

Respondent planted (or transplanted) the two oak trees. The key lime tree was

planted by Respondent after the issuance of Permit 9591.

11. It is necessary that the C-100 Canal be properly maintained and that

the District have access to the canal for routine and emergency maintenance.

Following Hurricane Andrew in August 1992, the District developed a maintenance

plan for the C-100 Canal. The District did not have an established canal

maintenance plan for the portion of the canal relevant to this proceeding at the

time it granted Permit 9591.

12. Prior to the development of its maintenance plan, little maintenance

had been done on the canal in the area of Respondent's property.

13. The District's decision to revoke Permit 9591 and to demand the

removal of the fence and trees is in furtherance of the District's right of way

maintenance plan and is only part of the District's enforcement and management

efforts to remove permitted and non-permitted encroachments from maintenance

easements in this area of the C-100 Canal. Respondent's property has not been

singled out for this action. At the time of the formal hearing, Respondent's

property was the only area in the vicinity on which the District does not have

40' of unobstructed access adjacent to the canal.

14. Respondent disputes that the District needs access to the portion of

his property that is subject to the easement for the proper operation and

maintenance of the C-100 Canal. Pertinent to this proceeding, the maintenance

plan adopted by the District includes the use of land based equipment for

erosion control and mowing of maintenance right of way areas and the routine and

emergency dredging of the canal channel. The plan sets forth the anticipated

maintenance activities for the area of the canal relevant to this proceeding,

the type equipment that will be used, and the amount of right of way that will

be required to perform the work. Emergency maintenance of the canal may be

required in response to a heavy rain event since the District must be able to

respond quickly if a part of the canal becomes clogged with debris.

15. The equipment that the District will likely use for maintenance

includes batwing mowers, front end loaders, dump trucks, draglines, and

towboats. The District established that the 20' strip of land it owns in fee

title does not provide sufficient room for the maneuvering of the heavy

equipment that will be required for the routine and emergency maintenance of the

canal. These pieces of heavy equipment require 40' of unobstructed land to set

up and to operate safely and effectively. The District established that it

needs the additional area provided by the easement on Respondent's property to

properly perform its operation and maintenance of the C-100 canal.

16. The fence that Respondent erected pursuant to Permit 9591 blocks the

District's access to the easement area. Consequently, it is found that the

District has cause to revoke Permit 9591 as it pertains to the fence. The

District's easement entitles it to unobstructed access to the easement area and

provides the District with the authority it needs to demand that Respondent

remove the fence. The District established that it has cause to demand that

Respondent remove the fence from the easement area.

17. Respondent also disputes that the two live oak trees and the key lime

tree that are in the easement area need to be removed even if it is found

necessary to remove the fence. In their present condition, the three trees,

especially the two oaks, obstruct a major portion of the easement area and

interfere with the District's intended use of the easement area. Even if the

trees are pruned as they grow to maturity, they will significantly interfere

with the District's intended use of the easement. The bases of the oak trees

are approximately 2.5' and 6.5', respectively, from Respondent's rear property

line within the easement area. The two oaks are approximately the same size and

are expected to grow to maturity at the same rate. At the time of the formal

hearing, the canopies of the trees were approximately 20' tall and 10' wide. In

five years, the canopies are expected to be approximately 25' tall and 25' wide.

In ten years, the canopies are expected to be 30' tall and 30' wide. At

maturity, the canopies are expected to be 35' tall and 40' wide. The District

has cause to revoke Permit 9591 as it pertains to the two oak trees. The

District also has cause to demand that Respondent remove the two oak trees from

the easement area. The instrument granting the District the maintenance

easement provides the District with the authority it needs to demand that

Respondent remove the two oak trees.

18. The base of the key lime tree is approximately 10' from Respondent's

rear property line within the easement area. Although this is a relatively

small tree, its presence obstructs the operation of equipment within the

easement area. At maturity the canopy of the key lime tree is expected to be

between 12 to 15' in height and between 12 and 15' in width. The tree trunks

and the tree canopies obstruct the operation of equipment within the easement

area. This interference cannot be resolved by pruning the trees.

19. The District has cause to demand that Respondent remove the key lime

tree that he planted on the easement area since that tree was not permitted by

Permit 9591 and is contrary to limiting condition 7(c). The existence of the

key lime tree is found to interfere with the District's intended use of the

easement. The instrument granting the District the maintenance easement

provides the District with the authority it needs to demand that Respondent

remove the two oak trees.

CONCLUSIONS OF LAW

20. The Division of Administrative Hearings has jurisdiction of the

parties to and the subject matter of this proceeding. Section 120.57(1),

Florida Statutes.

21. Section 373.016, Florida Statutes, declare certain policies pertinent

to this proceeding, as follows:

(1) The waters in the state are among its

basic resources. Such waters have not heretofore

been conserved or fully controlled so as to

realize their full beneficial use.

(2) It is further declared to be the policy

of the Legislature:

(a) To provide for the management of water

and related land resources;

(b) To promote the conservation, development,

and proper utilization of surface and ground water.

(c) To develop and regulate dams, impoundments,

reservoirs, and other works and to provide water

storage for beneficial purposes;

(d) To prevent damage from floods, soil erosion,

and excessive drainage;

(e) To minimize degradation of water resources

caused by the discharge of stormwater . . .

22. Section 373.086(1), Florida Statutes, provides the authority for the

governing board of a water management district, in pertinent part, as follows:

(1) In order to carry out the works for the

district, and for effectuating the purposes of

this chapter, the governing board is authorized

to . . . hold, control, and acquire by donation,

lease, or purchase, or to condemn any land, public

or private, needed for rights-of-way or other

purposes, and may remove any building or other

obstruction necessary for the construction,

maintenance, and operation of the works; and to

hold and have full control over the works and

rights-of-way of the district.

23. The burden is on the District to establish by a preponderance of the

evidence that it has the authority to take the action it is attempting to take

and that it has cause to exercise that authority. In this proceeding, the

District established that Permit 9591 is revocable and that it has cause to

exercise its discretionary right to revoke the permit. The revocation of Permit

9591 furthers policies set forth in Section 373.016, Florida Statutes.

24. Pursuant to the terms of the permit and to the rights conferred by the

grant of easement in 1964, the District is entitled to unrestricted access to

the entire easement. See, Hoff v. Scott, 453 So.2d 224 (Fla. 5th DCA 1984),

Anderson v. Oldham, 622 So.2d 544 (Fla. 5th DCA 1993), and White Sands, Inc. v.

Sea Club Condominium Association, 581 So.2d 589 (Fla. 2nd DCA 1990).

Consequently, the District has the authority to demand that the Respondent

remove the fence, the two oak trees, and the key lime tree. The District

established that it has good cause to make that demand.

25. The evidence is clear that the District is not acting in an arbitrary

or capricious fashion in exercising its authority to revoke Permit 9591 or in

demanding that the fence and the three trees be removed from the easement area.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the District enter a final order that revokes Permit 9591

and demands that Respondent remove the fence, the two oak trees, and the key

lime tree from the easement area within thirty days from the date the final

order becomes final.

DONE AND ENTERED this 6th day of July, 1995, in Tallahassee, Leon County,

Florida.

___________________________________

CLAUDE B. ARRINGTON

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of July, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-0049

The following rulings are made on the proposed findings of fact submitted by the

Petitioner.

1. The proposed findings of fact in paragraphs 1, 2, 4, 5, 6, 7, 10, 11,

12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 25, 30, 31, 36, 37, 38, 39, 40, and

45 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraphs 3, 8, 28, 29, 41, 42, 43,

and 44 are subordinate to the findings made.

3. The proposed findings of fact in paragraph 9 are adopted in part by the

Recommended Order, but are rejected to the extent they are unsubstantiated by

the evidence.

4. The proposed findings of fact in paragraphs 23 and 24 are rejected as

being unnecessary to the conclusions reached.

5. The proposed findings of fact in paragraphs 26 and 27 are incorporated

as preliminary matters, but are rejected as findings of fact because they are

unnecessary to the conclusions reached.

6. The proposed findings of fact in paragraphs 32, 33, 34, and 35 are

adopted in part by the Recommended Order, but are rejected to the extent the

proposed findings of fact are unnecessary to the conclusions reached.

COPIES FURNISHED:

Scott Allen Glazier, Esquire

South Florida Water Management District

3301 Gun Club Road

West Palm Beach, Florida 33406

Mr. Robert A. Robinson

7900 Southwest 173rd Terrace

Miami, Florida 33157

Samuel E. Pool, III, Executive Director

South Florida Water Management District

Post Office Box 24680

West Palm Beach, Florida 33416

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended

order. All agencies allow each party at least ten days in which to submit

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

written exceptions. You should contact the agency that will issue the final

order in this case concerning agency rules on the deadline for filing exceptions

to this recommended order. Any exceptions to this recommended order should be

filed with the agency that will issue the final order in this case.