92-003747 South Florida Water Management District vs. James P. Mccarthy Status: Closed Recommended Order on Wednesday, December 30, 1992.

Summary: Evidence that work was completed by Army Corp Of Engineers, even if not done properly requires permit to encroach on right-of-way.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SOUTH FLORIDA WATER MANAGEMENT )

DISTRICT, a public corporation, )

)

Petitioner, )

)

vs. ) CASE NO. 92-3747

)

JAMES P. MCCARTHY, )

)

Respondent, )

_________________________________)

RECOMMENDED ORDER

A hearing was held in this case in West Palm Beach, Florida on September

23, 1992 before Arnold H. Pollock, a Hearing Officer with the Division of

Administrative Hearings.

APPEARANCES

For the Petitioner: Scott Allen Glazier, Esquire

South Florida Water Management District

P.O. Box 2480

West Palm Beach, Florida 33416-4680

For the Respondent: James P. McCarthy, pro se

6017 Southern Road South

West Palm Beach, Florida 33415

STATEMENT OF THE ISSUES

The issue for consideration in this matter is whether Respondent is

encroaching on the District's Canal C-51 right of way at the rear of 6017

Southern Road South in Palm Beach County.

PRELIMINARY MATTERS

By Second Notice of Violation dated April 9, 1992, the South Florida Water

Management District, (District), notified the Respondent, James P. McCarthy,

that because it had not received an application for permit or modification for

the water line which existed across its right of way at the back of his

property, he was in violation of Section 373.085, Florida Statutes and it was

assessing a civil fine. Thereafter, on April 23, 1992, Respondent filed a

Request For Initiation Of Formal Proceedings with the District which was

considered as a request for formal hearing, and on June 19, 1992, the matter was

forwarded to the Division of Administrative Hearings for appointment of a

Hearing Officer. On July 28, 1992, after receipt of the parties' Joint Response

to the Initial Order entered herein, by Notice of Hearing the matter was set for

hearing in West Palm Beach on September 23, 1992, at which time it was held as

scheduled.

At the hearing, Petitioner presented the testimony of Douglas J. Sykes, a

Senior Engineering Field Representative for the District; Joseph G. Walsh, a

Senior Technical Supervisor - Engineering, for the District; and Bernard L.

Shattner, the District's Director of Construction Management. Petitioner also

introduced Petitioner's Exhibits 1 through 12. Respondent testified in his own

behalf and presented the testimony of Mr. Sykes, who had previously testified

for Petitioner; Blair R. Littlejohn, III, a District employee; and Thomas L.

Frantz, the District's Director - Right of way Division, Land Management

Department. Respondent also introduced Respondent's Exhibits A and C through F.

A transcript was provided. Subsequent to the hearing, Counsel for

Petitioner submitted Proposed Findings of Fact which have been accepted and, as

appropriate, are incorporated herein. Respondent submitted a closing statement

in writing and offered a post-filed video tape which, however, was not accepted

or viewed by the undersigned. The undersigned officially recognized the mutual

quitclaim deeds exchanged between the District and the McCarthys; Chapter 373,

Florida Statutes; Rule 40E-6, F.A.C.; and pertinent portions of the District's

Permit Information Manual, Volume IV.

FINDINGS OF FACT

1. By Pre-Hearing Stipulation, the parties agreed, and it is so found,

that the District is a public corporation in Florida under Chapter 373, Florida

Statutes, and Chapter 40E, F.A.C.. It exists as a multipurpose water management

district with its principal office in West Palm Beach.

2. Respondent James P. McCarthy and his wife, Rebecca, reside at 6017

Southern Road South in West Palm Beach. This property is located within Section

3, Township 44 South, Range 42 East, in Palm Beach County.

3. On December 31, 1991, the District issued a Notice of Violation to the

Respondent notifying him that his 2 inch pvc irrigation line, exposed near the

top of the bank due to erosion, constituted an encroachment on the District's

right-of-way adjacent to Canal 51 at the rear of his property. The line was not

removed.

4. On April 9, 1992, the District issued its Second Notice of Violation to

Respondent McCarthy assessing a civil penalty in the ultimate amount of $560.00

for the same alleged encroachment, and on April 24, 1992, Mr. McCarthy filed his

Petition for Formal Hearing to contest that action.

5. Mr. McCarthy does not contest the fact that the line exists as

indicated by the District but debates the allegation that it constitutes an

encroachment violation requiring a permit, contending that the District has

failed to properly complete the work it promised to do on his property, the

completion of which is a condition precedent to the requirement for a permit.

6. The South Florida Water Management District owns a right-of-way located

on the south bank adjacent to C-51 canal in West Palm Beach, and the McCarthy's

property is adjacent to that right-of-way. They have constructed a 1 1/2 inch

PVC lawn irrigation line from the sprinkler system in their backyard beneath

and across the District's right-of-way into the canal. According to Douglas

Sykes, the District's senior engineering field representative in the area, who

inspected the McCarthy's pipe line subsequent to the completion of the Corps'

work, the line meets the District's standards and is permittable. All that is

required is for McCarthy to make the requisite application and pay the permit

fee.

7. On April 17, 1989, the McCarthys and the District entered into a

written Settlement Agreement by which both granted deeds to each other for

portions of the land adjacent to the canal for the payment of the sum of

$11,000.00, plus attorneys fees, to be paid to the McCarthys. This agreement

did not, however, address either the slope or grade of the canal bank adjacent

to the McCarthy property. The bank slope was to be constructed by the U.S. Army

Corps of Engineers in accordance with their proposed constructions plans. The

agreement did, however, call for the McCarthys to obtain an irrigation permit

pursuant to District criteria "after completion of construction."

8. The Director of the District's Right-of-Way Division, responsible for

the enforcement of the occupancy regulations in the right-of-way, considered the

canal complete when the Corps ceased its construction activities and removed its

equipment. This was done before September, 1991. The Corps notified its

contractor that it accepted the C-51 project as complete on March 20, 1991. Mr.

Sykes also inspected the area subsequent to the departure of the Corps'

contractor. He found the work to be consistent with the District requirements,

though as late as June, 1992, some additional work was being done by the

District on property to the east of the McCarthy property. There is some

indication that when the District sought permission to cross McCarthy's property

line to access that work area, permission was denied. The District crossed

McCarthy's property anyway, causing some minor damage. This work has now

ceased.

9. The District employee who negotiated the settlement agreement with the

McCarthys intended for the term "completion of construction" to mean the moment

when the Corps relinquished its control of the right-of-way to the District.

This was done on September 4, 1991. Other landowners applied for and received

permits for irrigation lines when the Corps' contractor left the site.

10. As McCarthy tells it, in early 1990, after the settlement agreement

was signed, the heavy construction was begun on the canal project and the trees

were removed. A roadway was put in and the contractor began to install a large

earthenware berm on the property. After some of it was done, he stopped the

workers and found that the berm should go on another property. It was removed

and after that, no other work was done.

11. Mr. McCarthy contends the agreed-upon canal bank was not properly

constructed by the Corps. He claims the Corps' contractor left the canal bank

without the required grading and in a rough state without sod. This is,

supposedly, the only parcel that was not graded properly or sodded. He was left

with a 1 1/2 :1 slope - very steep, and he complained about this in writing to

the District because it was not what he claims they had all agreed upon. Mr.

Shattner, the District's Director of Construction Management, indicates that

regardless of what drawing is examined, the slope is no more gentle than 2:1.

12. Throughout 1990 and 1991, Mr. McCarthy alleges, he repeatedly advised

the District that it had not lived up to their agreement but never got an

answer. The agreement does not define the slope to be used except as it

referred to a survey which was supposedly attached to the agreement. Towards

the end of 1991, Mrs. McCarthy wrote to Mr. Swartz of the District about the

work but received no answer. She then called the office of Mr. Creel, the

District Executive Director, to complain. On December 19, 1991, someone called

back and agreed to send someone out to look at the berm. No one came, however,

and the next contact with the District was the violation letter of December 31,

1991.

13. Mr. McCarthy has repeatedly taken the position with the District that

it has not lived up to the terms of its agreement with him and he will not apply

for a permit for the line until the construction is completed properly. The

current line complained of by the District is temporary and will be destroyed by

the corrective construction. The residue of the Corps' work remaining on his

property is, he complains, unsafe. It does not conform to either the county

code or the District's own manual which calls for a 4:1 ratio.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has jurisdiction over the

parties and the subject matter in this case. Section 120.57(1), Florida

Statutes.

15. The authority of the state to control the use of the waters of this

state is found in Chapter 373, Florida Statutes, and, in the provisions of

Section 373.016, the state's policy in that regard is outlined. Specific among

the purposes of water regulation are protection of the state's water supply,

flood protection, and the prevention of damage from soil erosion and drainage.

16. Jurisdiction over the actual management of water resources in the area

in question has been delegated to the Petitioner, South Florida Water Management

District under the provisions of Section 373.085, Florida Statutes,. The

District has, at Rule 40E-6, F.A.C., defined it's requirement for permitting

encroachments into or upon District rights-of-way. Specifically, the permit

requirement, for the purpose of insuring access of the District to the right-of-

way for maintenance, and to insure compliance with the statutory requirements,

is found at Rule 40E-6.041, F.A.C.

17. The McCarthys do not dispute that a permit will ultimately be required

for their water line which crosses the District's right-of-way at the rear of

their property. They concede that when the Corps project has been finally and

satisfactorily completed, the permit will be required. It is the question as to

whether the Corps work has been completed that is the crux of this instant

dispute.

18. The District has claimed that evidence regarding the degree of slope

of the canal berm at the back of the McCarthy property is irrelevant to the

issue of whether they are required to have a permit for their irrigation line.

Both parties agree that the issue is whether the work done by the Corps has been

completed as provided in the settlement agreement, and the McCarthys contend

that the improper slope has a direct bearing on whether the Corps' work has been

"completed" so as to call into play the requirement for the permit. Claiming

that it has, the District seeks to assess a civil penalty of Five Hundred Sixty

Dollars, ($560.00) for what it alleges to be the McCarthy's violation of its

rule. If determined to be owing at all, the penalty assessed is within

statutory and District criteria.

19. The evidence clearly establishes that the berm constructed at the back

of the McCarthy property as a part of the C-51 canal project maintains a slope

no more gentle than 2:1. This is considerably steeper than that provided for in

the District's Permit Information Manual, Volume IV, which, at section 3.2.4.4.1

d, dealing with side slopes, states:

... for purposes of public safety, water

quality enhancement and maintenance, all

wet retention/detention areas should have

side slopes no steeper than 4:1

(horizontal:vertical) out to a depth or

two feet below the control elevation.

and which at section 3.2.4.4.2 a, states:

Perimeter maintenance and operation easements

of 20 feet (minimum preferable) width at slopes

no steeper than 4:1 (horizontal:vertical)

should be provided beyond the control elevation

water line.

20. Whichever provision is applicable, that regarding the retention area

or the area of the maintenance easement, it is clear the slope should be no

steeper than 4:1, and it is equally clear that is significantly more gentle than

the 1 1/2:1 or 2:1 slope that exists.

21. Nonetheless, the failure of the slope to comply with the District's

manual does not have any bearing on the issue of whether the District accepted

the construction as complete. Clearly, it has done so, and, therefore, the

terms of the settlement agreement, calling for a permit to be required upon

completion of the project, have been met. Any dispute which remains between the

McCarthys and the District must be the subject of a collateral action over which

this tribunal has no jurisdiction. In that regard, however, the condition of

the slope is of sufficient gravity as a mitigation factor to support a waiver of

any civil penalty against the McCarthys deemed applicable up to this time.

RECOMMENDATION

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

therefore:

RECOMMENDED that a Final Order be issued dismissing the assessment of the

currently assessed $560.00 civil penalty against the Respondents herein, James

and Rebecca McCarthy, but requiring them to apply within 30 days from the date

of that Order for a permit to construct and maintain an irrigation pipeline

across the District's right-of way for Canal C-51 at the rear of their property.

RECOMMENDED this 30th day of December, 1992, in Tallahassee, Florida.

___________________________________

ARNOLD H. POLLOCK

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 30th day of December, 1992.

COPIES FURNISHED:

Scott A. Glazier, Esquire

Toni M. Leidy, Esquire

South Florida Water Management District

P.O. Box 24680

West Palm Beach, Florida 33416-4680

James P. and Rebecca R. McCarthy

6017 Southern Boulevard South

West Palm Beach, Florida 33415

Tilford C. Creel

Executive Director

South Florida Water Management District

P.O. 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 10 days in which to submit

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

written exceptions. You should consult with the agency which will issue the

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

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

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