94-006813
Stephen A. Spoeth And Olive Fay Mccall vs.
Frank And Patricia Baird And Department Of Environmental Protection
Status: Closed
Recommended Order on Tuesday, June 13, 1995.
Recommended Order on Tuesday, June 13, 1995.
1n
2STATE OF FLORIDA
5DIVISION OF ADMINISTRATIVE HEARINGS
9STEPHEN A. SPOETH and )
14OLIVE MCCALL SPOETH, )
18)
19Petitioners, )
21)
22vs. ) CASE NO. 94-6813
27)
28FRANK AND PATRICIA BAIRD, and )
34DEPARTMENT OF ENVIRONMENTAL )
38PROTECTION, )
40)
41Respondents. )
43___________________________________)
44RECOMMENDED ORDER
46Pursuant to notice, the Division of Administrative Hearings, by its duly
57designated Hearing Officer, Richard Hixson, held a formal hearing in this case
69on April 24, 1995 in New Port Richey, Florida.
78APPEARANCES
79For Petitioners: Stephen A. Spoeth and
85Olive McCall Spoeth
8814038 Pine Street
91Hudson, Florida 34667
94For Respondent Edson L. Garrabrants, Jr., Esquire
101Baird: 6008 Main Street
105New Port Richey, Florida 34653
110For Respondent Christine C. Stretesky, Esquire
116Agency: Department of Environmental Protection
1212600 Blair Stone Road
125Tallahassee, Florida 32399-2400
128STATEMENT OF THE ISSUES
132The issues for determination in this case are whether an unpermitted
143seawall and an unpermitted catwalk constructed by Respondents Frank and Patricia
154Baird qualify for exemption from permitting under Rule 62-312.050, Florida
164Administrative Code.
166PRELIMINARY STATEMENT
168By letter dated September 22, 1994, the Department of Environmental
178Protection (DEP) notified Respondent Patricia Baird of DEP's determination that
188an unpermitted seawall and an unpermitted catwalk constructed on property owned
199by Respondent in Pasco County, Florida, met the exemption from permitting
210criteria set forth in Rule 62-312.050, Florida Administrative Code. DEP
220accordingly notified Respondent Baird that the seawall and the catwalk could
231remain in place. On October 1, 1994, Petitioners, Stephen A. Spoeth and Olive
244Faye McCall Spoeth, filed a petition in opposition to DEP's determination
255regarding the authorization of the unpermitted seawall and unpermitted catwalk.
265Petitioners requested a formal hearing, and the case was referred to the
277Division of Administrative Hearings on December 5, 1994.
285At hearing on April 24, 1994, Petitioners testified in their own behalf.
297Petitioners also presented eight exhibits which were received into evidence.
307Respondent Patricia Baird testified in her own behalf, and presented the
318testimony of one witness, Mary-Jane Prack. Respondent Baird also presented
328seven exhibits which were received into evidence. Respondent Frank Baird is now
340deceased.
341Respondent DEP presented the testimony of three witnesses, Joseph R.
351Bacheler, Don DePra and Bob Stetler, and also presented one exhibit which was
364received in evidence.
367A transcript of the proceedings was filed on May 19, 1995. The parties
380filed proposed findings of fact and conclusions of law. Specific rulings as to
393each party's proposed findings of fact are attached as an Appendix hereto.
405FINDINGS OF FACT
4081. Petitioners, Stephen A. Spoeth, and Olive Faye McCall Spoeth, reside at
42014038 Pine Street, Hudson, Pasco County, Florida. Mrs. Spoeth purchased the
431property in 1989 prior to Petitioners' marriage and has lived at this residence
444since that time. Mr. Spoeth has resided at the property since 1991.
456Petitioners' residence is located on lot 14 in the subdivision plat.
4672. In addition to their residence (lot 14), Petitioners own another lot,
479(lot 10), directly across Pine Street from their residence. Lot 10 borders the
492end of a canal. Petitioners have constructed a 10.6 foot by 11.8 foot dock that
507extends approximately 16.5 feet into the canal from Lot 10. Petitioners also
519own property adjacent to lot 10 on the south side of the canal.
5323. Respondent, Patricia Baird, resides at 6732 Udell Lane, Hudson, Pasco
543County, Florida. Respondent and her husband, Frank Baird, purchased this
553property in 1991. Frank Baird is now deceased. Respondent owns lots 8 and 9 as
568identified in the subdivision plat. Respondent's residence is located on lot 8.
580Both lots 8 and 9 border the north side of the canal. Lot 8 has 75 feet of
598waterfront, and lot 9 has 70 feet of waterfront. Lot 9 abuts Petitioners' lot
61210 at the end of the canal.
6194. The canal in question is a dead-end canal located in a residential
632community in Pasco County. The canal was artificially created on historically
643upland property. The canal runs east to west, is rectangular in shape, and is
657approximately 70 feet wide, as measured from north to south. The canal accesses
670into Hudson Creek which then accesses into the Gulf of Mexico. The water in the
685middle of the canal is generally five feet in depth; however, the depth of the
700water in the canal varies with tidal fluctuations. During low tides, the water
713over two feet in depth is shared equally between both sides of the canal
727channel. At normal tide flow, water at the three-foot depth level is also
740shared equally between both sides of the canal. Water at the five-foot depth
753level is slightly closer to the north part of the canal channel next to the
768Baird's property.
7705. Since 1991, the Bairds have constructed four structures on their
781property: a seawall; a fixed dock; a floating dock; and a catwalk.
7936. The seawall runs the length of the waterfront on both lots 8 and 9. A
809six-foot portion of the seawall was constructed on Petitioners' property (lot
82010), and was subsequently removed as a result of a prior proceeding between
833these parties. The Baird seawall is level and flush with the adjoining seawall
846constructed on waterfront lot 7 that is owned by Mary-Jane Prack. The Baird
859seawall was constructed in accordance with generally acceptable building
868practices.
8697. On lot 8 the Bairds constructed a 20 foot by 16 foot fixed dock
884adjacent to the seawall. The fixed dock was constructed in accordance with
896generally accepted building practices.
9008. On lot 9 the Bairds placed an 8 foot by 12 foot floating dock with an
91711.7 foot catwalk. This structure extends approximately 19.7 feet into the
928canal. The floating dock was constructed in accordance with generally accepted
939building practices.
9419. In 1993 the Bairds added a 30 foot by 18 foot by 30 foot L-shaped
957catwalk adjacent to the existing dock on lot 9. The catwalk was constructed in
971accordance with generally accepted building practices.
97710. Petitioners have one boat tied to their dock on lot 10. The
990Petitioners also keep a paddle boat and a canoe at that location.
100211. Prior to the construction of the Baird's catwalk, Petitioners tied
1013their boat with the bow pointing north. This allowed the Petitioners to access
1026water which was generally three feet in depth. Subsequent to the construction
1038of the catwalk, Petitioners tie their boat with the bow to the south. The water
1053in this part of the canal is shallower than on the north side, and on some
1069occasions when the tide is extremely low, the bow of Petitioners' boat rests in
1083mud. Such extreme low tides usually occur in the spring of the year, and
1097generally happen seven days a year. On such occasions Petitioners experience
1108great difficulty moving their boat into the canal. During such low tides
1120Petitioners also have difficulty launching their paddle boat and canoe.
113012. The evidence is consistent that private boats navigate the canal.
1141Moreover, Mary-Jane Prack testified that not only private vessels, but also
1152commercial fishing vessels, currently use the canal on a regular basis during
1164the day and the night. Thus, there is no question that the seawall and catwalk
1179do not impede navigation of the canal.
118613. Water quality in the canal was not tested prior to the construction of
1200the seawall and catwalk on the Baird's property, and there is no basis to
1214evaluate the impact of the construction of the Baird's seawall and catwalk on
1227water quality; however, except for the initial period of construction, the
1238building of a seawall, fixed dock, floating dock, and catwalk in accordance with
1251generally accepted building practices does not have an adverse effect on water
1263quality in a residential tidal canal.
126914. The Baird seawall is level with the surrounding property and does not
1282adversely affect runoff or flood control.
128815. The Baird catwalk is constructed to allow water flow and does not
1301adversely affect runoff or flood control.
130716. On September 22, 1994, DEP issued a letter determining that the Baird
1320unpermitted seawall and unpermitted catwalk met the exemption criteria set forth
1331in Rules 62-312.050(1)(g) and (h), Florida Administrative Code. The DEP
1341decision in this regard reversed a prior warning letter issued by DEP on
1354December 16, 1993, to the Bairds stating that the unpermitted seawall and
1366unpermitted catwalk were in violation of the DEP rules. The warning letter was
1379issued by DEP under the mistaken apprehension that the canal had been
1391constructed on sovereign state submerged land, when in fact the canal was
1403artificially constructed on historically uplands property.
1409CONCLUSIONS OF LAW
141217. The Division of Administrative Hearings has jurisdiction over the
1422subject matter of and the parties to this action pursuant to Section 120.57(1),
1435Florida Statutes.
143718. Rules 62-312-050(1)(g) and (h), Florida Administrative Code, provide:
1446(1) No permit shall be required under this
1454chapter for dredging or filling specified in
1461Section 403.813(2), F.S., except for those
1467projects which are subject to one or more of
1476the general permits in Part V of Chapter 62-312,
1485F.A.C. No permit under this chapter shall be
1493required for dredging or filling authorized by
1500Sections 62-4.040(1)(a) or (b), F.A.C., or for
1507dredging or filling which has been approved
1514pursuant to Chapters 62-17, 62-23, or 62-45,
1521F.A.C., or for the projects listed below.
1528* * *
1531(g) Construction of seawalls or riprap,
1537including only that backfilling needed to level
1544the land behind the seawalls or riprap, in
1552artificially created waterways where such
1557construction will not violate existing water
1563quality standards, impede navigation or adversely
1569affect flood control. An artificially created
1575waterway shall be defined as a body of water that
1585has been totally dredged or excavated and which
1593does not overlap natural surface waters of the
1601state. For the purpose of this exemption,
1608artificially created waterways shall also include
1614existing residential canal systems. This exemption
1620does not apply to the construction of vertical
1628seawalls in estuaries or lagoons unless the proposed
1636construction is within an existing man-made canal
1643where the shoreline is currently occupied in whole
1651or in part by vertical seawalls.
1657(h) Construction of private docks in artificially
1664created waterways (as defined in Section 62-
1671312.050(1)(g)) where construction will not violate
1677water quality standards, impede navigation, or
1683adversely affect flood control.
168719. The waterway in question is a residential canal within the meaning of
1700Rule 62-312.050(1)(g), Florida Administrative Code.
170520. The Baird seawall does not violate existing water quality standards,
1716impede navigation, or adversely affect flood control.
172321. The Baird catwalk does not violate water quality standards, impede
1734navigation or adversely affect flood control.
174022. The unpermitted seawall and the unpermitted catwalk on the Baird
1751property at 6732 Udell Lane, Hudson, Pasco County, Florida, meet the criteria
1763for exemption from permitting under Rules 62-312.050(1)(g) and (h), Florida
1773Administrative Code.
1775RECOMMENDATION
1776Based on the foregoing findings of fact and conclusions of law, it is
1789RECOMMENDED that:
1791The Department of Environmental Protection issue a Final Order upholding
1801the Department's determination that the unpermitted seawall and unpermitted
1810catwalk located at 6732 Udell Lane, Hudson, Pasco County, Florida, meet the
1822exemption criteria set forth in Rules 62-312.050(1)(g) and (h), Florida
1832Administrative Code.
1834RECOMMENDED in Tallahassee, Leon County, Florida, this 13th day of June,
18451995.
1846___________________________________
1847RICHARD HIXSON
1849Hearing Officer
1851Division of Administrative Hearings
1855The DeSoto Building
18581230 Apalachee Parkway
1861Tallahassee, Florida 32399-1550
1864(904) 488-9675
1866Filed with the Clerk of the
1872Division of Administrative Hearings
1876this 13th day of June, 1995.
1882APPENDIX
1883Petitioner's Proposed Findings:
18861. Rejected except to the extent that the bow of Petitioners' boat at
1899extreme low tides sits in the mud.
19062. Rejected
19083. Rejected
19104. Rejected
19125. Rejected as irrevelant
19166. Rejected as irrelevant
19207. Rejected
19228. Rejected
1924Respondent Bairds' Proposed Findings:
19281 - 7. Adopted and incorporated
1934Respondent DEP's Proposed Findings:
19381 - 38. Adopted and incorporated
1944COPIES FURNISHED:
1946Virginia B. Wetherell, Secretary
1950Twin Towers Office Building
19542600 Blair Stone Road
1958Tallahassee, Florida 32399-2400
1961Kenneth Plante
1963General Counsel
19652600 Blair Stone Road
1969Tallahassee, Florida 32399-2400
1972Stephen A. Spoeth and
1976Olive McCall Spoeth
197914038 Pine Street
1982Hudson, Florida 34667
1985Edson L. Garrabrants, Jr., Esquire
19906008 Main Street
1993New Port Richey, Florida 34653
1998Christine C. Stretesky, Esquire
2002Department of Environmental
2005Protection
20062600 Blair Stone Road
2010Tallahassee, Florida 32399-2400
2013NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
2019All parties have the right to submit written exceptions to the Recommended
2031Order. All agencies allow each party at least 10 days in which to submit
2045written exceptions. Some agencies allow a larger period within which to submit
2057written exceptions. You should consult with the agency that will issue the
2069Final Order in this case concerning their rules on the deadline for filing
2082exceptions to this Recommended Order. Any exceptions to this Recommended Order
2093should be filed with the agency that will issue the Final Order in this case.
- Date
- Proceedings
- Date: 07/18/1995
- Proceedings: Final Order filed.
- Date: 07/18/1995
- Proceedings: Final Order filed.
- Date: 06/02/1995
- Proceedings: Department of Environmental Protection`s Proposed Recommended Order; Computer Disk (Hearing Officer has) filed.
- Date: 06/02/1995
- Proceedings: Patricia Baird and Frank Baird (Deceased)`s Proposed Recommended Order; Cover Letter filed.
- Date: 05/19/1995
- Proceedings: Transcript of Proceedings Had Before Richard A. Hixson, Hearing Officer filed.
- Date: 05/15/1995
- Proceedings: Letter to Hearing Officer from Edson L. Garrabrants, Jr. Re: Proposed Recommended Order filed.
- Date: 05/10/1995
- Proceedings: (Stephen A. Spoeth & Olive McCall) Proposed Recommended Order for April 24, 1995 Hearing Regarding Navigational Impediments in Hudson Creek/Canal Hudson, Fl. filed.
- Date: 04/24/1995
- Proceedings: CASE STATUS: Hearing Held.
- Date: 03/10/1995
- Proceedings: Amended Notice of Hearing as to Date Only sent out. (hearing set for 4/24/95; 9:30am; New Port Richey)
- Date: 03/06/1995
- Proceedings: Notice of Hearing sent out. (hearing set for 4/18/95; 9:30am; New Port Richey)
- Date: 03/03/1995
- Proceedings: (Respondent) Notice of Appearance; Letter to Hearing Officer from Edson L. Garrabrants, Jr. Re: Request that the hearing be deferred until the week of April 24-28 filed.
- Date: 02/07/1995
- Proceedings: Notice of Appearance of Counsel for Department of Environmental Protection filed.
- Date: 01/19/1995
- Proceedings: Notice of Hearing sent out. (hearing set for 3/1/95; 9:30am; New Port Richey)
- Date: 01/06/1995
- Proceedings: Ltr. to Hearing Officer from S. Spoeth re: Reply to Initial Order filed.
- Date: 12/21/1994
- Proceedings: Department Of Environmental Protection`s Response To Initial Order filed.
- Date: 12/12/1994
- Proceedings: Initial Order issued.
- Date: 12/06/1994
- Proceedings: Agency Action Letter filed.
- Date: 12/05/1994
- Proceedings: Request for Assignment of Hearing Officer and Notice of Preservation of Record; Petition for an Administrative Proceeding filed.