05-000458 Steve Lardas vs. Department Of Environmental Protection Status: Closed Recommended Order on Wednesday, August 24, 2005.

Summary: Petitioner`s application for a mosquito control ditch exemption from wetland permitting was not proven. Recommend that the request for exemption be denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STEVE LARDAS, )

)

Petitioner, )

)

vs. ) Case No. 05 - 0458

)

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondent. )

)

RECOMMENDED ORDER

On May 17 - 19, 2005, a final administrative hearing was

held in this case in Bradenton, Florida, before J. Lawrence

Johnston, Administrative Law Judge (ALJ), Division of

Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Kevin S. Hennessy, Esquire

Maggie D. Mooney, Esquire

Lewis, Longman & Walker, P.A.

1001 Third Avenue West, Suite 670

Bradenton, Florida 34205 - 7863

For Respondent: Nona R. Schaffner, Esquire

Department of Environmental Protection

Mail Station 35

3900 Comm onwealth Boulevard

Tallahassee, Florida 32399 - 3000

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner, Steve

Lardas, is entitled to a mosquito ditch exemption, under

Florida Administrative Code Rule 40D - 4.051(10) 1 , from the

wetlands jurisdiction and environmental resource permitting

requirements of the Department of Environmental Protection

(DEP) for Lots 4, 5, 6, 14, 15, 18, and a vacated alley of

Block 44, Ilexhurst Subdivision, Holmes Beach, Manatee County.

PRELIMINARY STATEMENT

On November 15, 2004, DEP gave notice of its intent to

deny Petitioner's request for exemption, DEP File No. 41 -

0231220 - 001. Petitioner timely requested an administrative

proceeding. On February 8, 2005, the matter was referred to

DOAH, where it was give n DOAH Case No. 05 - 0458, assigned to

the undersigned ALJ, and scheduled for a final hearing in

Bradenton.

At the final hearing, Petitioner testified and called

eight witnesses: Sophia Lardas; George Molinaro, an

environmental consultant for Petitioner; Sam Johnston, Jr., an

environmental consultant on another project; Russell Hyatt,

P.S.M., an expert in surveying and mapping; Mark Latham,

Director of the Manatee County Mosquito Control District; Alec

Hoffner, an expert in soil science; Donald J. Lee, P.G ., an

expert in coastal sedimentology; and Brian Ormiston, Ph.D. in

Ecology, and an expert in wetlands ecology and interpretation

of surveys and aerial photography. Petitioner also had

Petitioner's Exhibits 2, 4(A - D), 5, 9, 10, 12, 13A, 14A, 15(A -

B), 16, 18, 20, 21, 24, 24A, 29, 30, 31, 33, 34, 34A, 35, 35A,

and 39 admitted in evidence. (Objections to Petitioner's

Exhibits 17 and 19 were sustained.) Ruling was reserved on

objections to Petitioner's Exhibit 38, the deposition of Larry

Rhodes, retired form er Director of the Manatee County Mosquito

Control District. Those objections are now overruled, and the

exhibit is admitted in evidence.

At the final hearing, DEP called the following employees

as witnesses: Richard Malloy, as an expert surveying and

mapping; Terry Cartwright, who processed and reviewed

Petitioner's exemption application; William Kelsey, P.G., as

an expert in geology; Richard Cantrell, Deputy Division

Director, Water Resources Management, as an expert in

jurisdictional wetlands delinea tion, aquatic ecology, and the

interpretation of aerial photography; Eric Hickman,

Administrator, Jurisdictional Wetlands Delineations, as an

expert on that subject, as well as interpretation of aerial

photography; and Maynard Sweeley, Soil Scientist, as a n expert

on hydric soil identification. DEP had Respondent's Exhibits

6, 6A - 6C, 7, 10, 11, 16(A - B), and 22 admitted in evidence.

After presentation of evidence, the parties requested a

Transcript of the final hearing and 30 days from the filing of

the T ranscript in which to file proposed recommended orders

(PROs). The Transcript (in six volumes) was filed on June 29,

2005, and the parties filed timely PROs on July 29, 2005.

Without objection, DEP filed an amended PRO on August 1, 2005,

which has been c onsidered, along with Petitioner's PRO.

In view of this Recommended Order, Petitioner's request

in his PRO for attorney's fees and costs under Sections

120.595(1) and 57.111, Florida Statutes (2004), is denied.

FINDINGS OF FACT

1. In 1950, Petitioner' s great - grandfather acquired

title to Lots 4, 5, 6, 14, 15, 18, and a vacated alley of

Block 44, as well as 38 other lots in the Ilexhurst

Subdivision, Holmes Beach, Manatee County. In 1991, title to

28 of the lots, including Lots 4, 5, 6, 14, 15, 18, and the

vacated alley of Block 44 (the Property at issue), was

transferred to Petitioner and his two brothers from their

grandmother.

2. Sometime in the mid - 1950's, the Manatee County

Mosquito Control District dug a network of mosquito control

ditches from Sarasota Bay to the east of Anna Maria Island

towards the beaches on the west.

3. The purpose of the ditching at that time was to

hydrate high marsh areas favored for breeding by the black

salt marsh mosquito (Aedes batis). That species of mosquito,

w hich bites aggressively and painfully and flies great

distances, must lay its eggs on damp ground and cannot lay

them in standing water; the eggs then hatch when heavy rains

or extraordinarily high tides flood the breeding ground. The

object of the ditchi ng is to hydrate the breeding grounds more

continuously during normal rain and tide conditions so that

the mosquitoes no longer can breed there.

4. A finger of the network of ditches dug in the 1950's

bisected the Property at issue approximately diagona lly from

the northeast corner to the southwest corner, terminating at

the right - of - way of Avenue C. (There also were branches off

the finger that terminated in property to the north and

south.) In the early 1960's, the ditches were cleaned and

widened to correct the effect of alterations to them during

road construction.

5. Because the ditches were connected to Sarasota Bay,

they not only hydrated previously drier areas with salty

water, they sped the introduction of mangroves (red, black,

and white), whose seedlings float and can be pushed inland by

tide and wind. How far inland seedlings float depends on

their size. As a result, mangroves propagated themselves via

the ditches in the ditches and along the banks of the ditches.

It is now clear that, except for a narrow strip in the

northwestern part of the Property and a small part of the

extreme southwestern corner of the Property where fill placed

on the adjacent parcels extended onto Petitioner's Property,

Petitioner's entire parcel consists of jur isdictional wetlands

containing red, black, and white mangroves and other wetlands

vegetation.

6. It is Petitioner's position on the ultimate disputed

issues of material fact: that his Property contained no

wetlands prior to the mosquito control ditch es being dug; that

the ditch was dug through uplands on his Property solely to

reach property to the south which contained a pocket of

targeted mosquito - breeding ground; and that his Property still

would be uplands were it not for the digging of the mosqui to

control ditches.

7. In support of his position, Petitioner presented

extensive and detailed testimony and evidence in an attempt to

prove his position. But some of Petitioner's evidence ( e.g. ,

the affidavits of Steve G. Lacios and Lawrence M. Rhodes

included in DEP Exhibit 1, the application file) was not

competent ( i.e. , hearsay not admissible over objection in a

civil action and therefore insufficient to support a finding

of fact by itself). Other evidence presented by Petitioner

was not persuasiv e. ( E.g. , Petitioner's mother testified to

the condition of "the property" when her grandfather showed it

to her in the 1950's, but at the time her grandfather owned 42

lots, and the Property in question was situated two vacant

lot - lengths (200 feet) and a vacant 50 - foot road right - of - way

east of the nearest existing road (Gulf Drive), making it

questionable whether the precise Property in question actually

was viewed by her. In addition, Petitioner's mother also

testified that neither her father nor her grandfather ever

knew there was a mosquito ditch on the Property in question

even though they supposedly walked it at least once a year.)

Other evidence proved some subordinate facts ( e.g. , that a

hurricane prior to 1940 may have "over - washed" the beach d unes

and deposited a "wash - over fan" of beach sand and shells on

Petitioner's property, and that there were few if any

mangroves on Petitioner's Property prior to mosquito control

ditching). But those subordinate facts were not determinative

of the ultima te disputed issues of material fact -- i.e. , they

did not disprove the existence of any kind of jurisdictional

wetlands on the Property before and after the wash - over event

and before the mosquito control ditching.

8. Meanwhile, DEP countered with its own extensive and

detailed testimony and evidence, which was persuasive. It is

found that the evidence, taken as a whole, did not prove

Petitioner's position. To the contrary, taken as a whole, the

evidence proved DEP's position -- namely, that Petitioner's

P roperty did not consist entirely of uplands prior to the

mosquito control ditching; that Petitioner's Property

consisted of wetlands prior to the mosquito control ditching;

and that the mosquito control ditches were dug to reach

mosquito - breeding wetlands on the Property as well as on

property to the south.

9. Proposed findings of fact 18 - 20 and 22 - 51 in DEP's

PRO include a clear and comprehensive explanation why DEP's

evidence was more persuasive on the ultimate disputed issues

of material fact. These proposed findings of fact are

approved and adopted except for a few scrivener's errors. 2

CONCLUSIONS OF LAW

10. This is a de novo proceeding. See § 120.57(k), Fla.

Stat. (2004). This means that perceived shortcomings in DEP's

review and evaluation of Petitioner's mosquito control ditch

exemption application are not relevant on the issue of whether

the application should be granted, which must be determined on

the evidence presented during the final hearing. See McDonald

v. Department of Banking and Fi nance , 346 So. 2d 569, 584

(Fla. lst DCA 1977); Calvin C. Miles v. Florida A and M

University , 813 So. 2d 242, 247 (Fla. lst DCA 2002).

11. Section 373.4211(25), Florida Statutes (2004),

provides:

The first sentence of rule 17 - 340.750,

Florida Administr ative Code, is changed to

read:

"17 - 340.750 Exemption for Surface

Waters or Wetlands Created by

Mosquito Control Activities.

"Construction, alteration,

operation, maintenance, removal,

and abandonment of stormwater

management systems, dams,

impoundments, r eservoirs,

appurtenant works, or works, in,

on, or over lands that have

become surface waters or wetlands

solely because of mosquito

control activities undertaken as

part of a governmental mosquito

control program, and which lands

were neither surface wate rs nor

wetlands before such activities,

shall be exempt from the rules

adopted by the department and

water management districts to

implement subsections 373.414(1)

through 373.414(6), 373.414(8),

and 373.414(10), F.S.; and

subsection 373.414(7), F.S.,

rega rding any authority granted

pursuant to section 373.414, F.S.

(1991):"

12. Florida Administrative Code Rule 17 - 340.750 was

transferred to Rule 62 - 340.750, which reads:

Construction, alteration, operation,

maintenance, removal, and abandonment of

stormw ater management systems, dams,

impoundments, reservoirs, appurtenant

works, or works, in, on, or over lands that

have become surface waters or wetlands

solely because of mosquito control

activities undertaken as a part of a

governmental mosquito control pr ogram, and

which lands were neither wetlands nor other

surface water before such activities, shall

be exempt from the provisions in this

chapter adopted by the District to

implement subsections 373.414(1) through

(6); 373.414(7), F.S., regarding any

author ity granted pursuant to Section

373.414, F.S. (1991); 373.414(8) and

373.414(10), F.S.

13. Florida Administrative Code Rule 40D - 4.051(10) also

provides for the following exemption from environmental

resource permitting for surface waters or wetlands crea ted by

mosquito control activities:

Construction, alteration, operation,

maintenance, removal, and abandonment of

stormwater management systems, dams,

impoundments, reservoirs, appurtenant

works, or works, in, on, or over lands that

have become surface w aters or wetlands

solely because of mosquito control

activities undertaken as a part of a

governmental mosquito control program, and

which lands were neither wetlands nor other

surface water before such activities, shall

be exempt from the provisions in th is

chapter adopted by the District to

implement subsections 373.414(1) through

(6); 373.414(7), F.S., regarding any

authority granted pursuant to Section

373.414, F.S. (1991); 373.414(8) and

373.414(10), F.S.

14. Rule 62 - 330.100(1) provides in pertinent part:

The Department hereby adopts by reference

certain Environmental Resource Permit rules

of the water management districts to be

used by the Department in conjunction with

Rule Sections 62 - 312.020 and 62 - 312.400 --

.470, and Rule Chapters 62 - 4, 62 - 40, 6 2 - 45,

62 - 101, 62 - 103, 62 - 113, 62 - 160, 62 - 300, 62 -

302, 62 - 340, 62 - 341, 62 - 342, 62 - 343, 62 -

520, 62 - 522, 62 - 550, F.A.C., whenever,

pursuant to the operating agreements

authorized under Section 373.046(4), F.S.,

it exercises its independent authority

under Par t IV, Chapter 373, F.S., to

regulate surface water management systems,

including activities in, on or over

wetlands or other surface waters.

15. In Rule 62 - 330.200(3)(b), DEP specifically adopts by

reference various rules of the Southwest Florida Water

M anagement District (SWFWMD), including Rule 40D - 4.051, in

conjunction with the general adoption by reference in Rule 62 -

330.100(1).

16. Florida case law holds that exemptions must be

strictly construed against the party claiming the exemption

and in fav or of the public. See Robinson v. Fix , 113 Fla.

151, 151 So. 512 (Fla. 1933); Pal - Mar Water Management

District v. Martin County , 384 So. 2d 232 (Fla. 4th DCA 1980).

For that reason, the burden was on Petitioner to prove

entitlement to the mosquito contr ol ditch exemption. See

Green v. Pederson , 99 So. 2d 292, 296 (Fla. 1957)("It is well

settled that he who would shelter himself under an exemption

clause in a tax statute must show clearly he is entitled under

the law to [the] exemption."). See also Depa rtment of Banking

and Finance, Division of Securities and Investor Protection v.

Osborne Stern and Co. , 670 So. 2d 932, 933 - 34 (Fla. 1996);

Department of Transportation v. J.W.C. Company, Inc. , 396

So. 2d 778 (Fla. 1st DCA 1981); Balino v. Department of He alth

and Rehabilitative Services , 348 So. 2d 349 (Fla. 1st DCA

1977).

17. As found, Petitioner did not prove by a

preponderance of the evidence that the surface waters or

wetlands on his property "have become surface waters or

wetlands solely because of mosquito control activities

undertaken as a part of a governmental mosquito control

program" and that they "were neither wetlands nor other

surface water before such activities." (Emphasis added.)

RECOMMENDATION

Based upon the foregoing Findings of Fa ct and Conclusions

of Law, it is

RECOMMENDED that DEP enter a final order denying

Petitioner's request for an exemption.

DONE AND ENTERED this 24th day of August, 2005, in

Tallahassee, Leon County, Florida.

S

J. LAWRE NCE JOHNSTON

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 t he

Division of Administrative Hearings

this 24th day of August, 2005.

ENDNOTES

1/ The application and agency action cited Rule 40D -

4.051(14), but the correct current citation is to section (10)

of the Rule.

2/ E.g. , "it's" in the first sentence, pa ragraph 18, should

be changed to "its"; the extra word at the end of paragraph 19

should be deleted; "except those found on elevated spoil

piles)" should be added to the end of last sentence, paragraph

26(1); "in the Wetlands Delineation Manual" should be added to

the end of the first clause, third sentence, paragraph 38;

"not" before "classified" in fifth sentence, paragraph 41,

should be stricken; "compromise" in second sentence, paragraph

43, should be changed to "comprise"; change "epic" in fifth

and si xth sentences, paragraph 45, should be changed to

"epoch."

COPIES FURNISHED:

Lea Crandall, Agency Clerk

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Greg Mun son, General Counsel

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Colleen M. Castille, Secretary

Department of Environmental Protection

The Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Kevin S. Hennessy, Esquire

Lewis, Longman & Walker, P.A.

1001 Third Avenue West, Suite 670

Bradenton, Florida 34205

Nona R. Schaffner, Esquire

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 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.