76-001102 Crystal River Protective Association, Inc., Et Al. vs. Central Development Company And Department Of Environmental Regulation Status: Closed Recommended Order on Friday, September 16, 1977.

Summary: Respondent should be issued permit to construct concrete bridge subject to increasing height and getting authority to use sovreign lands.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRYSTAL RIVER PROTECTIVE )

ASSOCIATION, INC., et al. , )

)

Petitioner , )

)

vs. ) CASE NO. 76-1102

)

DEPARTMENT OF ENVIRONMENTAL )

REGULATION and CENTRAL )

DEVELOPMENT COMPANY , )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D.

Tremor, Hearing Officer with the Division of Administrative Hearings, in the

City/County Building Auditorium, 123 N.W. Highway 19, Crystal River, Florida,

commencing at 9:30 a.m. on July 27, 1977 and continuing on July 28 and 29, 1977.

Upon agreement of all parties, the captioned matter was consolidated for hearing

purposes with Case Nos. 77-849 and 77-850 (involving the application of the

Banana Island Recreation Association, Inc. for a permit from the Department of

Environmental Regulation to construct a boardwalk), Case No. 76-1103 (involving

the application of Florida Power Corporation for a permit from the Department of

Environmental Regulation to install power lines and poles) and Case No. 77-960

(involving the granting of consent from the Department of Natural Resources for

the proposed bridge, power poles and lines and/or boardwalk). Separate

recommended orders are being entered for Case Nos. 77-849 and 850, 76-1103 and

77-960.

APPEARANCES

For Petitioners : Kenneth F. Hoffman, Esquire

Post Office Box 1872

Tallahassee, Florida 32302

For Department : Alfred W. Clark, Esquire

Assistant General Counsel

Department of Environmental Regulation

2562 Executive Center Circle, East

Montgomery Building

Tallahassee, Florida 32301

For Central Baya M. Harrison, III, Esquire

Development Post Office Box 391

Company: Tallahassee, Florida 32302

APPEARANCE OF THOSE INVOLVED IN OTHER CONSOLIDATED CASES

For Florida David Gluckman, Esquire

Audubon Society: 3348 Mahan Drive

Tallahassee, Florida 32303

For Florida Mr. H. A. Evertz, III

Power Florida Power Corporation

Corporation: Post Office Box 14042

St. Petersburg, Florida 33733

For Department Kent A. Zaiser, Esquire

of Natural Assistant Department Attorney

Resources: Department of Natural Resources

Crown Building

202 Blount Street

Tallahassee, Florida

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the

hearing, as well as the Hearing Officer's personal view of the subject premises,

the following relevant facts are found:

1. In April or May of 1974, William M. Lyons, as president of Central

Development Company, submitted an application for a permit to construct a 20

foot wide, 172 foot long concrete bridge across sovereign land connecting Parker

Island in King's Bay with a mainland lot. Both the mainland lot, known as Lot

20, Parker Haven, and Parker Island are owned by Central Development Company.

The application contains specific plans for run-off control.

2. In 1975, various studies were performed by representatives of different

environmental agencies concerning the proposed project. Representatives from

the respondent Department of Environmental Regulation concluded that the bridge

should cause no significant direct degradation of or adverse effect upon the

water quality of King's Bay. The Director of the Division of Environmental

Permitting therefore recommended the issuance of a permit and water quality

certification following public notice of the project. In February of 1975, the

Chief of Survey and Management of the Department of Natural Resources conducted

a biological and hydrographic assessment and found that "the proposed bridge

construction would eliminate a limited area of vegetated bottoms but would not,

in itself, significantly affect aquatic biological resources," and that "it is

improbable that the proposed bridge construction . . . would have significantly

adverse hydrographic effects." The Game and Fresh Water Fish Commission had no

objection to the bridge itself, but did express concern over the future

development of Parker Island.

3. The petitioners herein are citizens and property owners in the area and

have requested a hearing on the permit application. The Department of

Environmental Regulation forwarded the petition to the Division of

Administrative Hearings, and the undersigned Hearing Officer was duly designated

to conduct the hearing. Upon the agreement of all parties, the hearing was

consolidated with other cases involving permits for projects in the King's Bay

area of Crystal River.

4. The prime issue upon which testimony was adduced at the hearing was the

effect of the proposed bridge upon navigation. The waters of King's Bay are

affected by the ebb and flow of the tide. The bridge is to be approximately

four and one-half feet above the mean high water level. The pass between Parker

Island and the mainland Lot 20 is approximately 250 feet wide and is relatively

shallow, ranging from a low of one foot to a high of approximately four and one-

half feet deep, depending upon the tide. Net fishing and gigging in that area

are prohibited. Power boats, air boats and small sailboats presently utilize

the pass, but large sailboats would not prudently use this pass for safety

reasons. Small power boats with windshields and/or covered tops would probably

not be able to use the pass during high tide if the proposed bridge at a height

of four and one-half feet is constructed.

5. A mean high water survey, per se, was not conducted by or on behalf of

the applicant. Rather, the applicant relied upon a bulkhead map which

establishes a bulkhead line around Parker Island (Exhibit 9). This document

describes mean high water as .2 elevation and the metes and bounds description

of the bulkhead line is followed by the words "all being along the mean high

water line."

6. The King's Bay area and the springs located therein provide a winter

home for manatee, an endangered species. During high tides, manatees have

occasionally been observed in the pass between Parker Island and Lot 20 on the

mainland. While further development and degradation of the area could affect

the manatee population, the placement of the bridge itself would not affect the

navigation of the manatee travelling in that area, though some would balk or be

hesitant around the bridge. One of the greatest hazards to the manatee is

injury or even fatality from boat propellers and collisions with fast moving

power boats. A boat travelling at five miles per hour should present no problem

to the manatee.

7. Several residents owning waterfront lots on King's Bay testified that

their view of the open water would be obstructed by the existence of the

proposed bridge.

8. The purpose of constructing the bridge is obviously to provide a means

of access from the mainland to Parker Island. Parker Island is about five and

one-half acres in size and is owned by Central Development Company. Preliminary

land use plans have been developed for an environmentally oriented low density

subdivision on Parker Island. The conceptual plans include the sale of eleven

lots, one-third acre each, for residential purposes. Each lot owner would only

be permitted to develop 5,000 square feet of the lot, with the remainder of the

lot to be retained in an undisturbed state. The preliminary plans call for

underground utilities, no seawalls and a centralized dock. It must be

emphasized that these are preliminary or conceptual plans for development of the

Island, and Central is in no way bound by said plans.

9. On or about April 5, 1977, the Board of County Commissioners of Citrus

County passed a resolution declaring that the area known as King's Bay and the

islands located therein was an area of critical habitat, and that any man-made

changes in the area be subject to public hearings and comply with all Citrus

County ordinances, resolutions and regulations. Lot 20 on the mainland is zoned

R-1AA which permits single family dwellings, municipally owned or operated parks

and playgrounds, golf courses, certain temporary signs and certain conditioned

accessory uses. Central Development Company has not appeared before the zoning

board to seek a zoning change or exception for Lot 20.

10. Central Development Company has submitted to the Department of Natural

Resources an application for an easement for its bridge construction. This is

the subject matter of Case No. 77-960, for which a separate recommended order is

being entered.

CONCLUSIONS OF LAW

11. The construction of a bridge across sovereignty land and navigable

water is clearly subject to the permitting requirements of Florida Statutes

Chapters 253 and 403, specifically Sections 253.123(2) and 403.087(1). These

permitting provisions fall within the jurisdiction of the respondent Department

of Environmental Regulation. Florida Statutes 20.261(6). As previously ruled

by an Order entered on June 24, 1977, the provisions of Florida Statutes Section

253.124, requiring local approval for construction which adds to or extends

existing land, is not applicable to the proposed bridge construction. Prior to

the issuance of any permit by the Department of Environmental Regulation, the

applicant must receive and exhibit to the Department of Environmental Regulation

the required easement or other form of consent from the Board of Trustees of the

Internal Improvement Trust Fund authorizing the construction. Florida Statutes

Section 253.77(1976).

12. The pertinent portions of 253.123(2) read as follows:

"(2) The removal of sand, rock or earth

from the navigable waters of the state

as defined in Section 253.12 and the submerged

bottoms thereof by dredging, pumping,

digging, or any other means shall not

be permitted except in the following

instances:

* * *

(d ) For other purposes when, but only when,

the board of trustees has determined, after

consideration of a biological survey and an

ecological study and a hydrographic survey,

if such hydrographic survey is required by

the board, made by or under the supervision

of the Department of Natural Resources of

the area from which such sand, rock or earth

is proposed to be removed, that such surveys

and study show that such removal will not

interfere with the conservation of fish,

marine and wildlife or other natural

resources, to such an extent as to be contrary

to the public interest, and will not result

in the destruction of oyster beds, clam beds

or marine productivity, including but not

limited to, destruction of natural marine

habitats, grass flats suitable as nursery or

feeding grounds for marine life, and

established marine soils suitable for

producing plant growth of a type useful as

nursery or feeding grounds for marine life or

natural shoreline processes to such an extent

as to be contrary to the public interests."

With respect to the application for construction of the subject bridge,

biological and hydrographic assessments were performed and it was concluded that

the bridge construction would not, in itself, significantly affect aquatic

biological resources. The petitioners in this case have failed to present

sufficient evidence to rebut such a finding. The only evidence pertinent to

this issue was that purporting to show the adverse effect of the bridge upon the

manatee. However, the evidence adduced on this subject was that the manatee

only occasionally travel through this channel and that only some of these would

be hesitant to travel under the bridge. Those which refused to go near the

bridge could travel around the other side of Parker Island to their destination.

Inasmuch as boats in the area would in all probability reduce their speed when

approaching the bridge, danger to the manatee from fast moving boats would be

eliminated.

13. Florida Statutes 403.087(1) provides that:

"No stationary installation which will

reasonably be expected to be a source of

air or water pollution shall be operated,

maintained, constructed, expanded, or

modified without an appropriate and currently

valid permit issued by the department, unless

exempted by department rule. In no event

shall a permit for a water pollution source

be valid for more than five years. However,

upon expiration, a new permit may be issued

by the department in accordance with this act

and the rules and regulations of the

department."

The studies performed by representatives of the Department of Environmental

Regulation resulted in the conclusion that the bridge should cause no

significant direct degradation of or adverse effect upon the water quality of

King's Bay. Again, petitioners failed to present any evidence tending to

illustrate that the bridge itself would degrade the surrounding water or air

quality.

14. It is the petitioners' contention that the bridge will create a

navigational hazard and/or result in a serious impediment to navigation, and

therefore, pursuant to F.A.C. Rule 17-4.29(6), the Department of Environmental

Regulation must not issue the permit. The bridge is proposed to be built at a

height approximately four and a half feet above mean high water. Although the

pass between Parker Island and Lot 20 is narrow and often quite shallow, the

evidence does illustrate that owners of boats larger than four and one-half feet

in height do presently and frequently utilize this pass. It must be recognized

that another access around Parker Island is available to boaters and thus the

bridge does not present a hazard or serious impediment to navigation. However,

it would not appear to be unreasonable to require the applicant to increase the

height of the bridge by two feet, thus making it six and one-half feet above the

mean high water level.

15. Several of the landowners in the King's Bay area testified that the

proposed bridge would interfere with their riparian right of an unobstructed

view of the water. After a careful consideration of such testimony, the

photographs received into evidence, a personal view of the premises and the case

law on the subject, the undersigned Hearing Officer concludes that the bridge

would not significantly interfere with these riparian rights. The landowners

complaining of such interference are located at a far enough distance form the

proposed bridge that their view of the water and the pass should not be severely

interrupted.

16. Petitioners have raised the issue as to whether the applicant

conducted the required mean high water line survey. Inasmuch as Central

Development Company accedes that the bridge project requires permitting and has

in fact submitted the necessary applications for such permitting, the relevance

of this issue is somewhat obscure to the Hearing Officer. However, the document

relied upon by the applicant (Exhibit 9) clearly illustrates that the mean high

water line is the same as the bulkhead line which is described with

particularity.

17. The matter of the zoning requirements for Lot 20 or Parker Island are

matters between the applicant and the zoning board of Citrus County, and is

therefore not considered in this recommended order. The same is true with any

public hearings required by the County. Neither of these local requirements are

conditions precedent to the issuance of a permit by the Department of

Environmental Regulation.

18. Finally, many of the witnesses opposing issuance of the bridge permit

appeared to be more concerned with the adverse effects upon the water quality,

vegetation and marine life by the proposed development of Parker Island than by

the bridge itself. The proposed development of the Island is certainly a

relevant and substantial area for concern, and the bridge cannot be wholly

considered in isolation from its purpose or destination. However, the plans for

development of Parker Island are nothing more than conceptual and preliminary at

this state and therefore they cannot be the subject of any findings or

conclusions. To consider the proposed development of the Island and its

resulting environmental impact would be speculative and beyond the scope of the

application for the bridge permit presently before the state regulatory

agencies.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited above, it is

recommended that the Department of Environmental Regulation issue to Central

Development Corporation a permit to construct a concrete bridge between Lot 20,

Parkers Haven, and Parker Island subject to the following conditions:

1. The height of the structure above mean high water level be increased

from four and one-half (4 1/2) feet to six and one-half (6 1/2) feet; and

2. Receipt by the applicant and exhibition to the Department of

Environmental Regulation of the required easement or other form of consent from

the Board of Trustees of the Internal Improvement Trust Fund authorizing the

proposed use of sovereignty lands, as required by Florida Statutes 253.77

(1976).

Respectfully submitted and entered this 16th day of September, 1977, in

Tallahassee, Florida.

___________________________________

DIANE D. TREMOR, Hearing Officer

Division of Administrative Hearings

Room 530, Carlton Building

Tallahassee, Florida 32304

[phone]

COPIES FURNISHED:

Kenneth F. Hoffman, Esquire

Post Office Box 1872

Tallahassee, Florida 32302

Alfred W. Clark, Esquire

Assistant General Counsel

Department of Environmental Regulation

2562 Executive Center Circle, E.

Montgomery Building

Tallahassee, Florida 32301

Baya M. Harrison, III, Esquire

Post Office Box 391

Tallahassee, Florida 32302

David Gluckman, Esquire

3348 Mahan Drive

Tallahassee, Florida 32303

Mr. H. A. Evertz, III

Florida Power Corporation

Post Office Box 14042

St. Petersburg, Florida 33733

Kent A. Zaiser, Esquire

Assistant Department Attorney

Department of Natural Resources

Crown Building

202 Blount Street

Tallahassee, Florida