96-004576 Michael Paulsson vs. Gulf County And Department Of Environmental Protection Status: Closed Recommended Order on Friday, May 9, 1997.

Summary: Field permit to which Petitioner objects was properly issued. Petition should be denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL PAULSSON, )

)

Petitioner, )

)

vs. ) CASE NO. 96-4576

)

GULF COUNTY and )

THE STATE OF FLORIDA )

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondents. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this cause

on April 18, 1997, in Port St. Joe, Florida, by Don W. Davis, a

duly designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Michael Paulsson, Pro Se

Route 1, Box 347B

Port St. Joe, Florida 32456

For Respondent Gulf County:

Timothy J. McFarland, Esquire

Post Office Box 202

Port St. Joe, Florida 32457

For Respondent Department of Environmental Protection:

Lynette L. Ciardulli, Esquire

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

STATEMENT OF THE ISSUE

Whether the application of Respondent Gulf County (County)

for permit to install a beach access road, constructed of oyster

shell or dolomite, at the stumphole area on Cape San Blas should

be granted.

PRELIMINARY STATEMENT

This matter began August 17, 1996, when Petitioner Michael

Paulsson requested formal administrative proceedings with regard

to issuance of a field permit for a beach access road to the

County by Respondent Department of Environmental Protection

(DEP).

Subsequently, the Petition For Administrative Hearing was

referred to the Division of Administrative Hearings for conduct

of formal proceedings.

Final hearing was convened on April 18, 1997, at which

Respondents jointly presented the testimony of two witnesses and

three exhibits which were admitted into evidence. Petitioner

testified in his own behalf and presented one composite exhibit

which was admitted into evidence. No transcript of the final

hearing was provided.

The parties’ proposed recommended orders have been reviewed

and utilized in the preparation of this recommended order.

FINDINGS OF FACT

1. On April 11, 1996, th e County applied for a permit from

DEP to install a beach access road constructed of oyster shell or

dolomite over an area 275 feet in length by 12 feet wide at the

stumphole area on Cape San Blas. The County owned the property

at the site where a crude road bed to the beach already existed.

2. On that same date, County Manager Donald Butler met with

a DEP field engineer, William Fokes, on the site to determine the

linear footage that would be necessary for the access road at the

stumphole area. Fokes then issued the field permit for the

access road to be constructed of oyster shell or dolomite over an

area 275 feet in length by 12 feet wide.

3. Since beach driving is permitted by the County in the

area, the access road aids in preventing illegal crossing of

beach dunes by motorists to get to the beach. Prior to issuance

of the field permit and construction of the access road, the only

legal motorist access to the beach was seven miles away.

4. Permits to drive on the beach are issued by the County .

DEP rules require that all applicants proposing to conduct

permitted activities on a beach use a designated beach access.

This road will allow access to conduct permitted activities,

thereby preserving and enhancing public beach access.

5. DEP will not permit a project that is expected to

adversely impact the beach dune system. Although seaward of the

Coastal Construction Control Line (CCCL) in the County, the area

which is the subject of this field permit contained no dunes or

vegetation since Hurricane Opal had flattened the area.

6. Such a project cannot be permitted if the project will

adversely impact existing upland property or property of others.

In the instant case, neither the Petitioner’s property, which is

located two miles away from the project site, or property of

other owners in the area will be adversely impacted.

7. The road is designed to be a non-rigid, pervious

structure which causes less impact to any existing dune system.

The road site is located on County property and provides logical

and appropriate access.

8. The construction of the road did not violate DEP

prohibitions on permitting activities having adverse impact to

marine turtles since the construction permit expired prior to the

turtle nesting season.

9. A requirement of field permit issuance is that the

applicant and the DEP area engineer meet on site and review the

project. This event occurred on April 11, 1996, when Butler and

Fokes met on the site. Fokes determined that the project was

within field permitting guidelines and issued the permit.

10. Fokes was authorized to issue the field permit because

the project fell in DEP’s category of a driveway or similar

activity. Expected impacts of construction of the access road

and a driveway are deemed similar by DEP.

11. Subsequent review by DEP staff of Fokes’ issuance of

the field permit determined that sufficient information had been

provided to him for issuance of the permit, that the project

falls in the category of minor activity and that no adverse

impact to dunes, property of others, beach access or nesting

marine turtles is expected.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

jurisdiction over this subject matter and the parties to this

action pursuant to Section 120.57(1), Florida Statutes.

13. The County, as applicant for the permit, has the

ultimate burden of proof in demonstrating entitlement to subject

permit. Department of Transportation v. J.W.C. Company, Inc. ,

396 So. 2d 778 (Fla. 1 st DCA 1981).

14. Permits are required for construction seaward of the

CCL. Section 161.053, Florida Statutes.

15. The applicant has demonstrated compliance with special

siting and design criteria contained in Section 161.053, Florida

Statutes, and Rule 62B-33.005, Florida Administrative Code,

requiring that the project ensure protection of the beach dune

system, proposed or existing structures, adjacent properties and

preservation of public beach access.

RECOMMENDATION

Based upon the foregoing findings of fact and the

conclusions of law, it is,

RECOMMENDED:

That a final order be entered confirming the grant of the

field permit which is the subject of this proceeding.

DONE and ENTERED this 9 th day of May, 1997, in Tallahassee,

Leon County, Florida.

___________________________________

DON W. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings th

this 9 day of May, 1997.

COPIES FURNISHED:

Lynette L. Ciardulli, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Station 35

Tallahassee, FL 32399-3000

Michael Paulsson, Pro Se

Route 1, Box 347B

Port St. Joe, FL 32456

Timothy J. McFarland, Esquire

Post Office Box 202

Port St. Joe, FL 32457

Virginia B. Wetherell, Secretary

Department of Environmental Protection

3900 Commonwealth Boulevard

Tallahassee, FL 32399-3000

Perry Odom, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Tallahassee, FL 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this recommended order. Any exceptions to

this recommended order should be filed with the agency that will

issue the final order in this case.