Denying Portion and Approving Portion of Application for Right of Way Occupancy Permit, Denying Petition for Waiver, and Granting Issuance of Removal and Restoration Order under Section 120.542, Fla. Stat. (SFWMD 2007-469-DAO-ROW), on July 11, 2007, ...

 

WATER MANAGEMENT DISTRICTS
South Florida Water Management District

RULE NO: RULE TITLE
40E-6.011: Policy and Purpose
40E-6.221: Conditions for Issuance of Standard Permits

NOTICE IS HEREBY GIVEN THAT the South Florida Water Management District (SFWMD) Governing Board issued an Order Denying Portion and Approving Portion of Application for Right of Way Occupancy Permit, Denying Petition for Waiver, and Granting Issuance of Removal and Restoration Order under Section 120.542, Fla. Stat. (SFWMD 2007-469-DAO-ROW), on July 11, 2007, to Michael Moore and Anna Nicole Wellens. The petition for waiver was received by the SFWMD on September 26, 2006 and amended on March 1, 2007. The Petitioners waived the 90-day review period for their permit application set forth in Rule 40E-0.105, Florida Administrative Code, and also waived the 90-day statutory time requirement for granting or denying a waiver set forth in Section 120.542(8), Fla. Stat., on this Petition for Waiver, so that agency action could be taken simultaneously on their application for ROW Permit and this associated Petition for Waiver. Notice of receipt of the petition requesting the waiver was published in the F.A.W., Vol. 32, No. 41, on October 13, 2006, and Notice of receipt of the Amended petition for waiver was published in the F.A.W., Vol 33, No. 11, on March 16, 2007. No public comment was received. Both the Original and the Amended Petition for Waiver sought relief from subsections 40E-6.011(4) and (6), Florida Administrative Code, which governs the placement of permanent and/or semi-permanent above-ground facilities and structures within 40 feet of the top of the canal bank within Works or Lands of the District. Denial of a portion of the requested Right of Way Occupancy Permit and denial of the Waiver of District Criteria is due to the fact that the existing, unauthorized encroachments (shed and landscaping) and the proposed fence enclosure and landscaping within the District’s south right of way of the Hillsboro Canal; S36/T47S/R42E, Broward County, are contrary to the District’s rules and criteria as they constitute permanent and/or semi-permanent above-ground encroachments within the District’s rights of way within forty (40) feet of the top of the canal bank; and therefore, have the potential to interfere with the District’s present or future vehicular access and ability to perform its routine and/or emergency canal maintenance operations. Specifically, these existing and proposed uses are contrary to District subsections 40E-6.011(1), (4), and paragraphs 40E-6.221(2)(a), (j) and subsection (5), Florida Administrative Code. In addition, the Application and Petition are inconsistent with the District’s Right of Way Management and Recovery Plan as approved by the Governing Board at their November 9, 2005 meeting. Finally, the Applicants have failed to provide evidence sufficient to demonstrate that the denial of their request for a waiver would create a substantial hardship or violate the principals of fairness as defined in Section 120.542, F.S.

A copy of the Order can be obtained from: Kathie Ruff, South Florida Water Management District, 3301 Gun Club Road, MSC 1413, West Palm Beach, FL 33406-4680, [phone] or by e-mail [e-mail].