99-002861 Vincent D`antoni vs. David Boston And Department Of Environmental Protection Status: Closed Recommended Order on Wednesday, March 22, 2000.

Summary: Applicant found to be qualified to use a noticed general permit to fill riverfront lot subject to the condition that he install an underground drainage culvert.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VINCENT R. D'ANTONI, JR., )

)

Petitioner, )

)

vs. ) Case Nos. 99-1916

) 99-2861

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION and DAVID BOSTON, )

)

Respondents. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in these cases

on September 28, 1999, and January 27, 2000, in Jacksonville,

Florida, and by telephone on February 21, 2000, before Donald R.

Alexander, the assigned Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Vincent R. D'Antoni, Jr., pro se

3824 Wayland Street

Jacksonville, Florida 32277

For Respondent: Francine M. Ffolkes, Esquire

(agency) Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

For Respondent: David Boston, pro se

(Boston) 2262 Orchard Street

Jacksonville, Florida 32209

STATEMENT OF THE ISSUES

The issues are whether David Boston should be issued an

environmental resource permit and sovereign submerged lands

authorization allowing him to construct 96 linear feet of rip rap

revetment; construct a private dock of less than 1,000 square

feet; and place 3,500 square feet of fill in non-jurisdictional

areas; and whether he qualifies for a general permit to place a

fill pad in isolated wetlands adjacent to the St. Johns River, a

Class III waterbody.

PRELIMINARY STATEMENT

This matter began on November 5, 1998, when Respondent,

Department of Environmental Protection, issued a letter advising

Respondent, David Boston, that he "qualified" to "use a noticed

general permit to fill less than 4,000 square feet of an isolated

wetland to facilitate construction of a single family home"; that

the project was not on state owned submerged lands, and therefore

he needed no authority from the agency to use those lands for

private purposes; and that the project was exempt from the

Environmental Resources Program permitting. That matter has been

assigned Case No. 99-2861. On January 21, 1999, the agency

issued a Notice of Permit Issuance advising interested parties

that Respondent, David Boston, was being issued an environmental

resource permit and submerged lands authorization to "construct a

rip rap revetment and dock" on his property located adjacent to

the St. Johns River in Duval County, Florida. That matter has

been assigned Case No. 99-1916.

By letter dated January 26, 1999, Petitioner, Vincent R.

D'Antoni, Jr., an adjacent property owner, objected to the

issuance of a permit in Case No. 99-1916 on the grounds that the

proposed dock would infringe on the navigable area of his own

dock; the fill would increase flooding on his property; and the

project would harm an endangered fern. On June 1, 1999,

Petitioner filed an Amended Petition for Administrative Hearing

in Case No. 99-2861 alleging that the applicant does not qualify

for a general permit because the filling would cause flooding on

Petitioner's property; the stormwater storage function would be

"eradicated"; and the use of the permit would diminish water

quality and wildlife habitat in the river, thereby adversely

affecting the value of his property.

The two matters were referred by the agency to the Division

of Administrative Hearings on April 28 and June 30, 1999,

respectively, with a request that an Administrative Law Judge be

assigned to conduct a formal hearing. At the request of the

agency, both cases were consolidated by Order dated August 20,

1999.

By Notice of Hearing dated June 10, 1999, a final hearing

was scheduled in Case No. 99-1916 on September 28, 1999, in

Jacksonville, Florida. Later, however, the order of

consolidation provided that both matters would be heard at that

time. On September 22, 1999, the cases were transferred from

Administrative Law Judge P. Michael Ruff to the undersigned.

At the final hearing on September 28, 1999, the Department

of Environmental Protection made an ore tenus request for a

continuance on the ground that it needed to depose Petitioner's

expert witness. The unopposed request was granted, and the

matters were later rescheduled to January 27, 2000, in

Jacksonville, Florida. A continued hearing was held by telephone

on February 21, 2000, for the limited purpose of allowing

Petitioner's engineering expert to present rebuttal testimony.

At the final hearing, Petitioner testified on his own behalf

and presented the testimony of his wife, Nancy N. D'Antoni, and

Ronnie D. Perron, a professional engineer. Also, he offered

Petitioner's Exhibit Nos. 1-6, which were received in evidence.

Petitioner's Exhibit No. 1 is the deposition testimony of Ronnie

D. Perron. Respondent, Department of Environmental Protection,

presented the testimony of Michael Eaton, manager of

environmental resource permitting and accepted as an expert in

permitting and environmental impact of projects on wetlands and

surface waters; Robert M. Dunne, an environmental specialist II;

David P. Apple, a professional engineer and accepted as an expert

in stormwater engineering and design; and Respondent, David

Boston. Also, it offered Respondent's Exhibit Nos. 1-14. All

exhibits were received in evidence.

The Transcript of the hearing (two volumes) was filed on

February 25, 2000. Proposed Findings of Fact and Conclusions of

Law were filed by the Department of Environmental Protection on

March 10, 2000, and they have been considered by the undersigned

in the preparation of this Recommended Order. None were filed by

the other parties.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of

fact are determined:

1. In this permitting dispute between neighbors,

Petitioner, Vincent R. D'Antoni, Jr., contends generally that

Respondent, David Boston (Boston), will cause flooding to

Petitioner's property by reason of placing too much fill on an

isolated wetland, which lies in the center of Boston's property.

The filling is in conjunction with Boston's efforts to construct

a single-family residence and private dock on his property,

purchased in June 1998, which lies adjacent to the St. Johns

River, a Class III waterbody, in Duval County, Florida.

2. In preliminary decisions made on November 5, 1998, and

January 21, 1999, Respondent, Department of Environmental

Protection ( DEP), "acknowledge[d] receipt" of Boston's intent to

use a noticed general permit "to fill less than 4,000 square feet

of an isolated wetland to facilitate construction of a single

family home" on his lot (Case No. 99-2861), and gave notice of

its intent to issue Boston an environmental resource permit and

sovereign submerged lands authorization allowing him to construct

a rip rap revetment and a dock and to place 3,500 square feet of

fill in mainly non-jurisdictional areas (Case No. 99-1916).

3. Although a number of objections were raised by

Petitioner in his original filings, as clarified at the final

hearing, Petitioner now contends that Boston placed excessive

fill on his lot, including an isolated wetland, and that the fill

has resulted in flooding, saturated soil, or standing water on

Petitioner's property. He also contends that the location of

Boston's proposed dock will affect the ability to use his own

dock. Because no evidence was presented on the docking issue,

and through admissions Petitioner acknowledged that there will be

no adverse environmental impacts, no consideration will be given

to those objections. Finally, Petitioner does not object to the

placement of the rip rap revetment on the shoreline.

Accordingly, the request for an environmental resource permit and

consent to use sovereign submerged lands in Case No. 99-1916

should be approved.

4. The property in issue lies just south of the

Jacksonville University Country Club and a few blocks west of

University Boulevard North on Wayland Street, which fronts the

eastern side of the St. Johns River in a tract of land known as

University Park. Except for the Boston lot, all other waterfront

lots are now developed. When facing the river from Wayland

Street, Petitioner's lot lies to the right of Boston's lot, while

another lot owned by Robert Henderson (Henderson) lies to the

left of Boston's lot. The lots are up to 500 feet deep; Boston's

lot is around 96 feet wide, while Petitioner's lot has a similar

width but narrows to only 20 feet or so near the river.

5. At the river end of the D'Antoni, Boston, and Henderson

lots is an area of contiguous wetlands. Until 1995, DEP

regulated those wetland areas and this prevented D'Antoni and

Henderson from placing any fill in those areas. Under DEP's

current wetland delineation rule, however, such areas are non-

jurisdictional, and any placement of fill at the river end is

outside the purview of DEP's jurisdiction.

6. Before Boston's lot was cleared and filled, it was about

a foot lower in elevation than the D'Antoni lot; this was true

even though Petitioner has never changed the natural grade of his

property since it was purchased and developed. Therefore, water

tended to flow naturally from an upland area north or east of the

D'Antoni lot, through the D'Antoni lot to Boston's lot, and then

through the lower part of the Henderson lot populated by "very

mature cypress trees," and eventually into the St. Johns River.

7. According to a 1977 aerial photograph, the Boston lot

contained what appears to be a tidal connection from an uplands

area through the wetlands on his property to the river. However,

construction on property adjacent to the Henderson lot sometime

after 1977 severed this connection, and a tidal connection

(direct hydrologic connection) to the river no longer exists.

8. Under Rule 62-341.475(1)(f), Florida Administrative

Code, "a single family residence" is exempt from the

Environmental Resource Program permitting and a general permit

will be granted "as long as it is not part of a larger plan of

common development," and "the total area of dredging or filling

in isolated wetlands for the residence and associated residential

improvement shall not exceed 4000 square feet." Since there is

no longer a direct hydrologic connection between the wetlands on

Boston's property and the St. Johns River, the wetlands are

isolated within the meaning of this rule.

9. Availing himself of the foregoing provision, on

October 19, 1998, Boston gave notice to DEP "of [his] intent to

use a noticed general permit to fill less than 4,000 square feet

of an isolated wetland" on his property. He also provided

certain drawings and other information (prepared by his surveyor)

to show that he qualified for the permit. DEP does not "issue" a

noticed general permit; rather, it only determines whether the

applicant qualifies for a permit and then "acknowledges" this

fact. Accordingly, on November 5, 1998, DEP "acknowledge[d]

receipt" of Boston's notice.

10. Although DEP encourages the user of such a permit to

notify affected or adjoining property owners, there was no legal

requirement that Boston do so, and he proceeded to clear the lot

and then fill a part of the wetland area with two or three feet

of dirt without giving notice to Petitioner or Henderson, his two

neighbors. The filling raised the elevation of the Boston

property at least two feet above the D'Antoni and Henderson lots

and impeded the prior natural flow of water. At the same time,

Boston constructed a three to four-foot timber wall (consisting

of railroad ties) on the Henderson property line to retain the

fill and a similar two-foot wall on Petitioner's line. These

changes had the effect of impounding the water which had

previously flowed naturally in a north-south direction through

the wetlands from the D'Antoni lot to the Boston lot to the

Henderson lot. It also generated runoff from the Boston lot to

the D'Antoni lot, which had not previously occurred.

11. When Petitioner observed the adjacent lot being cleared

and filled, and the resulting erosion of fill onto his property,

pooling of water, and damage to his chain link fence after a

heavy rain in January 1999, he filed a complaint with DEP. An

inspection was made by DEP, and Boston was told to stop work

until corrective changes were made to ensure that such flooding

would not occur. After a series of changes were made which

satisfied DEP's concerns, the stop work order was lifted. Boston

also signed a consent order and paid a $100.00 fine. However,

pending the outcome of these cases, no further construction work

has occurred.

12. Petitioner has contended that Boston has placed more

than 7,200 square feet of fill on his property in violation of

the rule, which limits the amount of fill to less than 4,000

square feet. While this amount of filling has in fact occurred,

approximately 3,500 square feet of fill was placed in non-

jurisdictional areas between the shoreline and the isolated

wetlands, and the rule only requires that Boston limit his fill

to less than 4,000 square feet on the isolated wetland. Thus,

contrary to a suggestion by Petitioner's engineer, the

jurisdictional and non-jurisdictional filling are not totaled

together to determine whether the threshold within the rule has

been exceeded.

13. Through photographs received in evidence and testimony

by Petitioner and his wife, it was established that flooding or

standing water has occurred on Petitioner's property during heavy

rainfalls since the filling occurred, even as recently as

January 2000. The evidence further shows that Petitioner's chain

link fence has been damaged through the weight of the fill

pressing against the fence. In addition, Petitioner has suffered

the loss of "a couple of trees" because of "mucky" and

" oversaturated" soil caused by excessive water. Also, a dog

house on a raised platform in the back yard which was previously

dry now "stays in water." These affected areas lie immediately

adjacent to the filled area of the isolated wetland on Boston's

property. Finally, there is an erosion problem beyond the

isolated wetland consisting of sand and silt flowing from

Boston's lot onto Petitioner's lot during heavy rainfalls.

Despite these problems, Petitioner does not object to the

development of the lot; he only asks that Boston do so in a

manner which prevents these conditions from recurring in the

future.

14. Petitioner's engineering expert, Ronnie D. Perron

( Perron), a professional engineer who visited the site in August

1999, ran a computer model (Interconnected Channel and Pond

Routing, Version 2.11) showing runoff both before and after the

fill was placed on Boston's lot. He concluded that "there was

over one and a half feet of flooding in that wetlands due to

filling Mr. Boston's lot" during a "mean annual storm event,"

which assumes five inches of rain during a 24-hour period. Even

when he used more conservative estimates, Perron still arrived at

water accumulations ranging from 0.6 feet to 1.5 feet. This

excessive runoff is caused by the retaining wall and fill, which

"blocks off" the water and causes it to "spread out in

[Petitioner's] whole back yard."

15. In response to Perron's model, a DEP professional

engineer, David P. Apple (Apple), ran another computer model

(PONDS, Version 2.25) received in evidence as Respondent's

Exhibit No. 14. That model shows that during a three-year, one-

hour storm event, the small depressed area on Boston's property

(including the isolated wetland) had sufficient storage capacity

to absorb up to six inches of runoff from off-site areas and not

overflow back onto Petitioner's property. This size of storm

event (which produces two and one-half inches of rain in an hour)

is typically used by the Department in calculations for single-

family residential property when the impervious area site is less

than fifty percent. In this case, Apple didn't "feel that the

impervious area out there was greater than [fifty] percent."

Therefore, Apple concluded that the storm event used by Perron

was too large, and that the smaller event used in his model was

more appropriate. He also concluded that the Boston property

could retain all water in a normal storm event without

discharging any stormwater onto the D'Antoni lot. He did not,

however, address the issue of the fill and retaining wall on the

Boston lot impounding the water on his neighbor's lot.

16. In developing the input perameters for his model, Apple

assumed that water falling at the front (Wayward Street) side of

the D'Antoni property drained to the front roadway; in fact, much

of that water drains to the rear of the lot into the wetland

area. A similar incorrect assumption was made regarding runoff

on the Boston lot. If modifications were made to account for the

proper drainage patterns, the Apple model would show larger

amounts of water staging on the Boston property during rainfall

events, which would increase the possibility of runoff onto the

D'Antoni lot.

17. Apple questioned the accuracy of the Perron model given

the fact that Perron had used a larger storm event than he

(Apple) believed was appropriate. However, even if Perron had

used a three-year, one-hour storm event on his computer model, as

advocated by Apple, he established that it would have resulted in

flood staging on Petitioner's property between 0.97 and 1.64 feet

during a smaller storm event.

18. DEP proposed no solutions to the water problems on the

D'Antoni lot, presumably because it concluded that the rule was

satisfied; that by filling the Boston lot, it was no longer the

" stormwater pond for the neighborhood runoff"; and that DEP had

no other regulatory authority to solve this peculiar situation.

The record shows clearly, however, that if no changes are made,

water will continue to back up on Petitioner's property by virtue

of the higher elevation on the Boston lot, and the possibility of

runoff from Boston's lot exists during certain storm events.

Neither condition existed before the fill was added.

19. To correct the foregoing conditions, Perron proposes

two corrective measures. First, Boston should install a yard

drain (underground culvert) beginning in the wetlands area of his

property and outfalling to the cypress trees on the adjacent

Henderson lot. Besides providing an outfall for the excess

water, this would also help recharge the mature cypress trees on

the Henderson lot. Second, D'Antoni should install a series of

"yard drains" using high-density polyethylene pipes to convey the

standing water on his lot directly into the St. Johns River. The

expert opined that neither activity would require a permit from

DEP. These modifications are reasonable and appropriate and

should be used by the factioning parties. Accordingly, the

installation of a yard drain should be a condition for Boston to

use his noticed general permit.

CONCLUSIONS OF LAW

20. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties hereto

pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

21. As the party filing an application, Boston bears the

burden of proving by a preponderance of the evidence that he is

entitled to an environmental resource permit and sovereign

submerged lands authorization and that he is qualified to use the

noticed general permit. See , e.g. , Cordes v. State, Dep't of

Envir. Reg. , 582 So. 2d 652, 654 (Fla. 1st DCA 1991)(permit

generally); Castoro et al. v. Palmer and Dep't of Envir. Prot. ,

Case Nos. 95-5879 and 96-0736 ( Dep't of Envir. Prot., October 16,

1998) (noticed general permit).

22. Because Petitioner either withdrew his objections,

admitted through requests for admission, or failed to present any

proof regarding the issues involved in Case No. 99-1916, Boston's

application for an environmental resource permit and consent to

sovereign submerged lands should be approved. This will allow

him to construct 96 linear feet of rip rap revetment at the mean

high water mark of the St. Johns River, construct a private dock

of less than 1,000 square feet, and place 3,500 square feet of

fill on non-jurisdictional areas of his property.

23. Rule 62-341.475, Florida Administrative Code, governs

the use of noticed general permits for minor activities, a type

of permit for which Boston seeks qualification to use in Case

No. 99-2861. Pertinent to this controversy are the disputed

criteria found in Sections (1) and (2) of the rule.

Subparagraphs (1)(f)3. and 4. require that the filling be limited

to "isolated wetlands," and that it "not exceed 4000 square

feet," while Paragraph (2)(c) requires that the filling "not

impede the conveyance of a stream, river[,] or other watercourse

in a manner that would increase off-site flooding."

24. The evidence is undisputed that the jurisdictional

filling on Boston's property will be limited to less than 4,000

square feet in an isolated wetland. In addition, the evidence

shows that there is no stream, river, or other watercourse within

the meaning of DEP rules or statutes on the isolated wetland.

Therefore, because no watercourse exists on the property, the

filling cannot increase the type of off-site flooding envisioned

by the regulation. Assuming this analysis to be correct, then

the computer modeling by both experts was an academic exercise

since any off-site flooding which might be increased because of

the filling would not affect Boston's qualifications to use this

type of permit.

25. Even so, it is clear that the filling impedes the

natural flow of water that occurred before the changes were made.

As noted in the Findings of Fact, during heavy rains which have

occurred as recently as January 2000, the D'Antoni lot has

suffered standing water and saturated soil, erosion of sand and

silt from the Boston lot, and damage to a chain link fence. If

this forum can provide no relief, then D'Antoni can only hope

that the drought conditions prevelant in northeast Florida will

continue for an indefinite period of time, or he can raise the

elevation of his lot by adding at least two feet of fill. For

obvious reasons, neither alternative is practical.

26. Given these considerations, the solution offered by

Witness Perron is both reasonable and appropriate and should be

incorporated into the use of any noticed general permit. This

will result in both parties bearing the cost of making

improvements to their respective lots and should alleviate the

conditions now experienced by Petitioner.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Environmental Protection

enter a final order granting the application for a permit and

consent in Case No. 99-1916 and confirming that David Boston

qualifies for use of a noticed general permit in Case No. 99-2861

provided, however, that such use be conditioned on Boston

constructing an underground culvert with a yard drain from the

wetland area on his lot to the St. Johns River.

DONE AND ENTERED this 22nd day of March, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 22nd day of March, 2000.

COPIES FURNISHED:

Kathy Carter, Agency Clerk

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

Vincent R. D'Antoni, Jr.

3824 Wayland Street

Jacksonville, Florida 32277

David Boston

2262 Orchard Street

Jacksonville, Florida 32209

Francine M. Ffolkes, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

Teri Donaldson, General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

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

enter a final order in this case.