SOUTH FLORIDA WATER MANAGEMENT DISTRICTflrules.elaws.us/Gateway/CourtOrders/2013/13-004859...Heifetz v. Dep't ofBus. Regulation, 475 So. 2d 1277,1281 (Fla. 1st DCA 1985). A reviewing

SOUTH FLORIDA WATER MANAGEMENT DISTRICT

August 14, 2014

Claudia L1ado, Clerk of the DivisionState of Florida, Division ofAdministrative Hearings

1230 Apalachee ParkwayTallahassee, FL 32399-3060

Dear Ms. L1ado:

Itt

Subject: William B. Swaim v. South Florida Water ManagementDistrict, DOAH Case No. 13-4859

Pursuant to subsection 120.57(1)(m), Florida Statutes, enclosed is a copy ofthe South Florida Water Management District's Final Order in the abovereferenced matter. The exceptions to the recommended order and responsesto those exceptions filed by the parties are also enclosed.

If you have any questions, please call me at 561.682.6259.

Sincerely,

Joyce B. RaderParalegal Specialist

JBREnclosures

3301 Gun Club Road, West Palm Beach, Florida 33406 • (561) 686-8800 • FL WATS 1-800-432-2045Mailing Address: P. O. Box 24680, West Palm Beach, FL 33416-4680 • www.sfwmd.gov

19 Rn 1119

,~

\)

fi:'c"}~}__ r:l t.l;,} /~< r""h;s'';;SFWMD No. 2014-075-FOF-ERP

DOAH Case No. 13-4859

Petitione,r,

BEFORE THE G~ERNING BOARD OF; THESOUTH FLORIDA wj,.eR ~GEMENTDISTRICT

M fi ,1~", iC l.)

vs.

William B. Swaim,

South Florida Water Management District,

Respondent.--~------- ~_.I

FINAL ORDER

On May 16, 2014, Robert E. Meale, an administrative law judge ("ALJ") with the

Division of Administrative Hearings ("DOAH"), issued a Recommended Order ("RO") to the

South Florida Water Management District ("District") in this case. A copy of the RO is

attached as Exhibit ("Exh.") A. After review of the RO, exceptions and responses to

exceptions, and the record of the proceeding before DOAH, this matter is now before the

Governing Board of the District for final agency action.

SUMMARY OF RECOMMENDED ORDER

The ALJ found and concluded that the seawall exemption sought by Petitioner,

William B. Swaim ("Petitioner"), is for "seawall construction in an artificially created

waterway, defined as one that does not "overlap natural wetlands or other surface waters."

Exh. A. The ALJ further found that the subject property consisted of wetlands prior to the

Florida Coast Line Canal arid Transportation Company ("FCLCTC") dredging. Exh. A.

Moreover, the AU found that Petitioner's proposed seawall would be constructed outside

of the Intracoastal Waterway ("ICW"), and even if the proposed seawall construction were

in the ICW, Petitioner failed to prove the ICW is an "artificially created waterway" at the

location of the subject property. Exh. A.

The mosquito control activities exemption sought by Petitioner is for property that

was converted from uplands to surface waters or wetlands solely as a result of

governmental mosquito control activities. Exh. A. However, the ALJ found that the subject

property was "wetlands from the earliest record." Exh. A. For these and other reasons, the

ALJ "recommended that the South Florida Water Management District enter a final order

declining Petitioner's request to verify the mosquito control activities exemption and the

seawall construction exemption."

STANDARD OF REVIEW

Section 120.57(1 )(1), Florida Statutes, prescribes that an agency reviewing a RO

may not reject or modify the findings of fact of an ALJ, "unless the agency first determines

from a review of the entire record, and states with particularity in the order, that the

findings of fact were not based on competent substantial evidence." §120.57(1)(I), Fla.

Stat. (2013); Charlotte County v. IMC Phosphates Co., 18 So. 3d 1089 (Fla. 2d DCA

2009); Wills v. Fla. Elections Comm'n, 955 So. 2d 61 (Fla. 1st DCA 2007). The term

"competent substantial evidence" does not relate to the quality, character, convincing

power, probative value or weight of the evidence. Rather, "competent substantial

evidence" refers to the existence of some evidence (quantity) as to each essential

element, and as to its admissibility under legal rules of evidence. E.g., Scholastic Book

Fairs, Inc. v. Unemployment Appeals Comm'n, 671 So. 2d 287, 289 n.3 (Fla. 5th DCA

1996).

The ALJ's function in an administrative hearing is to consider all evidence

presented, resolve conflicts, judge credibility of witnesses, draw permissible inferences

from the evidence, and reach ultimate findings of fact based on competent substantial

2

evidence. Heifetz v. Dep't of Bus. Regulation, 475 So. 2d 1277,1281 (Fla. 1st DCA 1985).

A reviewing agency may not reweigh the evidence presented at a DOAH final hearing,

attempt to resolve conflicts therein, or judge the credibility of witnesses. E.g., Rogers v.

Dep't of Health, 920 So. 2d 27, 30 (Fla. 1st DCA 2005); Belleau v. Dep't of Envtl. Prot.,

695 So. 2d 1305, 1307 (Fla. 1st DCA 1997); Dunham v. Highlands County Sch. Bd., 652

So. 2d 894 (Fla. 2d. DCA 1995). These evidentiary-related matters are within the province

of the AU as the fact-finder in these administrative proceedings. E.g., Tedder v. Fla.

Parole Comm'n, 842 So. 2d 1022, 1025 (Fla. 1st DCA 2003); Heifetz, 475 So. 2d at 1281.

Agencies do not have jurisdiction to modify or reject rulings on the admissibility of

evidence. Evidentiary rulings of the ALJ that deal with "factual issues susceptible to

ordinary methods of proof that are not infused with [agency] policy considerations," are not

matters over which the agency has "substantive jurisdiction." See, e.g., So. Fla. Cargo

Carriers Ass'n, Inc. v. Dep't of Bus. & Prof'! Regulation, 738 So. 2d 391 (Fla. 3d DCA

1999); Marluccio v. Dep'tofProf'1 Regulation, 622 So. 2d 607,609 (Fla. 1st DCA 1993);

Heifetz, 475 So. 2d at 1281; Fla. Power & Light Co. v. Fla. Siting Bd., 693 So. 2d 1025,

1028 (Fla. 1st DCA 1997). EVidentiary rulings are matters within the AU's sound

"prerogative ... as the finder of fact" and may not be reversed on agency review.

Marluccio, 622 So. 2d at 609.

In addition, the ALJ's decision to accept the testimony of one expert witness over

that of another expert is an evidentiary ruling that cannot be altered by a reviewing agency,

absent a complete lack of any competent substantial evidence of record supporting this

decision. See, e.g., Peace River/Manasota Regional Water Supply Authority v. IMC

Phosphates Co., 18 So. 3d 1079, 1088 (Fla. 2d DCA 2009); Collier Med. Ctr. v. State,

Dep't of Health & Rehab. Servs., 462 So. 2d 83, 85 (Fla. 1st DCA 1985); Fla. Chapter of

3

Sierra Club v. Orlando Uti/so Comm'n, 436 So. 2d 383, 389 (Fla. 5th DCA 1983). An

agency has no authority to make independent or supplemental findings offact. See, e.g.,

North Port, Fla. v. Consol. Minerals, 645 So. 2d 485, 487 (Fla. 2d DCA 1994) ("The

agency's scope or review of the facts is limited to ascertaining whether the hearing officer's

factual findings are supported by competent substantial evidence."); Manasota 88, Inc. V.

Tremor, 545 So. 2d 439, 441 (Fla. 2d DCA 1989) (citing Friends of Children v. Dep't of

Health & Rehab. Servs., 504 So. 2d 1345 (Fla. 1st DCA 1987)) (a state agency reviewing

an ALJ's proposed order has no authority to make independent and supplementary

findings of fact to support conclusions of law in the agency final order).

Section 120.57(1)(1), Florida Statutes, authorizes an agency to reject or modify an

AU's conclusions of law and interpretations of administrative rules "over which it has

substantive jurisdiction." Barfield v. Dep't of Health, 805 So. 2d 1008 (Fla. 1st DCA 2001);

Deep Lagoon Boat Club, Ltd. V. Sheridan, 784 So. 2d 1140 (Fla. 2d DCA 2001). An

agency's review of legal conclusions in a RO, are restricted to those that concern matters

within the agency's field of expertise. See, e.g., Charlotte County V. IMC Phosphates Co.,

18 So. 3d 1089 (Fla. 2d DCA 2009); G.EL Corp. V. Dep't of Envtl. Prot., 875 So. 2d 1257,

1264 (Fla. 5th DCA 2004).

Section 120.57(1)(1), Florida Statutes, prohibits the agency from using the rejection

or modification of a conclusion of law to form the basis for rejection or modifications of

findings of fact.

If an AU improperly labels a conclusion of law as a finding of fact, the label should

be disregarded and the item treated as though it were actually a conclusion of law. Eg.,

Battaglia Properties V. Fla. Land and Water Adjudicatory Comm'n, 629 So. 2d 161, 168

(Fla. 5th DCA 1993). However, an agency should not label what is essentially an ultimate

4

factual determination as a conclusion of law in order to modify or overturn what it may view

as an unfavorable finding of fact. Eg., Stokes v. State, Bd. of Prof'! Eng'rs, 952 So. 2d

1224 (Fla. 1st DCA 2007).

An agency has the primary responsibility of interpreting statutes and rules within its

regulatory jurisdiction and expertise. Eg., Pub. Employees Relations Comm'n v. Dade

County Police Benevolent Ass'n, 467 So. 2d 987, 989 (Fla. 1985); Fla. Public Employee

Council 79 v. Daniels, 646 So. 2d 813, 816 (Fla. 1st DCA 1994). Considerable deference

should be accorded to these agency interpretations of statutes and rules within their

regulatory jurisdiction, and such agency interpretations should not be overturned unless

"clearly erroneous." E.g., Collier County Bd. of County Comm'rs v. Fish & Wildlife

Conservation Comm'n, 993 So. 2d 69 (Fla. 2d DCA 2008); Falk v. Beard, 614 So. 2d 1086,

1089 (Fla. 1993); Dep't of Envtl. Regulation v. Goldring, 477 So. 2d 532, 534 (Fla. 1985).

Furthermore, agency interpretations of statutes and rules within their regulatory jurisdiction

do not have to be the only reasonable interpretations. It is enough if such agency

interpretations are permissible ones. Eg., Suddath Van Lines, Inc. v. Dep't of Envtl. Prot.,

668 So. 2d 209, 212 (Fla. 1st DCA 1996).

Pursuant to Chapters 373 and 403, Florida Statutes, and Titles 40E and 62 of the

Florida Administrative Code, 'the Governing Board has the administrative authority and

substantive expertise to exercise regulatory jurisdiction over the administration and

enforcement of the Statewide Environmental Resource Permit (SWERP) program.

Therefore, the Governing B()ard has substantive jurisdiction over the ALJ's conclusions of

law and interpretations of administrative rules, and is authorized to reject or modify the

ALJ's conclusions or interpretations if it determines that its conclusions or interpretations

are "as or more reasonable" than the conclusions or interpretations made by the ALJ.

5

RULINGS ON EXCEPTIONS

Parties to formal administrative proceedings must alert reviewing agencies of any

perceived defects in DOAH hearing procedures or in the findings of fact of ALJs by filing

exceptions to DOAH ROs. E.g., Comm'n on Ethics v. Barker, 677 So. 2d 254, 256 (Fla.

1996); Henderson v. Dep't of Health, Bd. of Nursing, 954 So. 2d 77, 81 (Fla. 5th DCA

2007); Fla. Dep'tofCorrs. v. Bradley, 510 So. 2d 1122, 1124 (Fla. 1st DCA 1987). Having

filed no exceptions to certain findings of fact the party "has thereby expressed its

agreement with, or at least waived any objection to, those findings of fact." Envtl. Coalition

of Fla., Inc. v. Broward County, 586 SO.2d 1212, 1213 (Fla. 1st DCA 1991). See also

Colonnade Medical Ctr., Inc. v. State of Fla., Agency for Health Care Admin., 847 So.2d

540, 542 (Fla. 4th DCA 2003)(an appellant cannot raise issues on appeal that were not

properly excepted to or challenged before an administrative body).

In reviewing a RO and written exceptions, the agency's final order "shall include an

explicit ruling on each exception." See §120.57(1)(k), Fla. Stat. (2013). However, the

agency need not rule on an exception that "does not clearly identify the disputed portion of

the RO by page number or paragraph, that does not identify the legal basis for the

exception, or that does not include appropriate and specific citations to the record." Id.

Petitioner's Exceptions Generally

Petitioner raises 98 exceptions to the RO. Some of the exceptions fail to comply

with the requirements of section 120.57(1 )(k), Florida Statutes, because they either do not

include a legal basis for the exception, do not include appropriate citations to the record, or

do not clearly explain the disputed portion of the RO. Although, the District is not required

to include an explicit ruling on exceptions that do not comply with section 120.57(1)(k),

Florida Statutes, the District has endeavored to ascertain what Petitioner's exceptions are,

6

and where possible, rule on each, notwithstanding Petitioner's failure to comply with those

statutory requirements.

Throughout his exceptions,1 Petitioner argues that the ALJ's findings are "based on

conjecture and speculation." However, Petitioner fails to provide any further specific

explanation or reference to the record to support this statement. Therefore, pursuant to

section 120.57(1 )(k), Florida Statutes, this argument is not expressly ruled upon in each of

the exceptions where it is made. In many of his exceptions2 , Petitioner cross-references

other exceptions. In each such instance, Petitioner fails to explain the purpose of the

reference, and therefore it is impossible to rule on how the cross-referenced exception

relates to the exception in which it is referenced. Pursuant to section 120.57(1)(K), Florida

Statutes, it is not necessary to rule on those exceptions. Therefore, the cross-referenced

exceptions are ruled on in the exceptions in which they are first made and are not ruled on

as they relate to the exception in which they are cross-referenced. Nonetheless, each of

the cross-referenced exceptions are denied for the reasons set forth in the exceptions in

which they are first made.

In addition, Petitioner argues in many of his exceptions3 that "the ALJ erred in ...

findings of wetlands," basing his argument on his belief that the ALJ applied a general

definition of wetlands rather than the statutory definition. However, the parties stipulated

that the subject property currently contains wetlands. Am. Prehrg. Stip. at 12 ,-r9. Since the

Petitioner has already stipulated that the property contains wetlands, the rulings on the

exceptions in which Petitioner raises this argument will not further address this argument.

1 Of the 98 exceptions, the only exceptions in which Petitioner does not make this argument are ExceptionNos. 68, 76 - 78, 80, 82, 84, and 88.2 Petitioner cross-references other exceptions in Exception Nos. 1, 5 - 9, 12, 17 - 21, 23, 26, 27, 30, 40 - 42,44,45,47,48,50,51,59 - 61,72,74,77,78,80 - 82,85,86, and 96.3 This argument is made in Exception Nos. 12, 14, 16,22,23,25,27,35 - 38,45 - 47,50 - 53,56,60,62,63,69, 72, 85 - 87,93, and 94,

7

Petitioner's Exceptions No.1 to Finding of Fact 3

Petitioner takes exception to the third sentence of Finding of Fact ("FOF") 3 wherein

the ALJ found that "[t]he record lacks a drawing locating the proposed seawall."

Petitioner's exception points to the complete request for verification of an exemption

("Request for Verification") and the joint exhibit" to support his contention that the record

"clearly showed/stated where the location of the seawall was to be, along the [ICW]

easement line on the subject property." Petitioner's exception requests the District to

improperly reweigh the evidence. As explained in the Standard of Review, these

evidentiary-related matters are within the sole province of the ALJ as the fact-finder. The

District may not make additional findings of fact.

The ALJ's finding of fact only states that there is no drawing. It does not state that

there is no description or statement as to the location of the seawall. Therefore,

Petitioner's argument that the record "clearly ... stated" the location of the seawall does

not refute the challenged finding of fact.

In addition, the complete Request for Verification which Petitioner relies upon was

not admitted into evidence. The District submitted into evidence a portion of the Request

for Verification which portion did not include any drawings. The remainder of the Request

for Verification that was not admitted into evidence cannot be relied upon to support

Petitioner's contention that the record "clearly showed" the location of the seawall.

Arguably, the Petitioner may be claiming that an aerial titled "Aerial of Proposed

Exempt Seawall Construction Activity," at page 3 of 14 of the exhibits to Joint Exh. 1 is a

drawing. While this aerial may appear to be a "drawing locating the proposed seawall," the

ALJ, as the trier of fact, is charged with weighing the evidence presented and making

findings of fact based upon that evidence.

8

Finally, even if the ALJ arguably erred in not recognizing the aerial discussed above

as a "drawing locating the proposed seawall," it is clear from a review of the RO that

whether there is or is not a drawing locating the proposed seawall is not significant in

reaching the ultimate issue of whether the Petitioner has proven he is entitled to the

seawall exemption. The statement that no such drawing exists in the record appears to be

descriptive of Petitioner's request. There is no finding of fact or conclusion of law that

attributes any significance to the lack of a drawing locating the proposed seawall in the

record.

For the reasons set forth herein, Exception NO.1 is denied.

Petitioner's Exception Nos. 2 and 90 to FOF 7 and Endnote 7

Petitioner takes exception to a portion of the second sentence of FOF 7 and

Endnote 7 wherein the ALJ found that "the sales contract is for the conveyance of only the

unencumbered portion of the Property."

Petitioner cites to the Request for Verification in support of his argument that the

purchase contract was for all of lots 3 and 4 of Rousseau's subdivision. As explained in the

ruling on Exception 1, the complete Request for Verification was not admitted into

evidence. The portion submitted into evidence by the District does not include any exhibits

or attachments to the Request for Verification and does not include any information to

support the Petitioner's argument. Therefore, Petitioner cannot rely on any portion of the

Request for Verification that was not admitted into evidence.

Petitioner argues that "testimony was given explaining the discrepancy in the legal

descriptions," but does not provide any citation to the record to support this argument.

Section 120.57(1)(k), Florida Statutes, provides that an agency need not rule on an

exception that "does not identify the legal basis for the exception, or that does not include

9

appropriate and specific citations to the record." Therefore, the District is not required to

rule on this exception. Even assuming such evidence exists in the record, as explained in

the Standard of Review, these evidentiary-related matters are within the sole province of

the ALJ as the fact-finder. The District may not reweigh the evidence or make additional

findings of fact. The standard of review for a finding of fact is not whether contrary

information exists in the record, but whether there is competent substantial evidence in the

record to support the finding of fact.

Finally, Petitioner argues the "ALJ lacks authority to make any determination as to

an individual's real property rights, in regards to a specific property" because Florida

circuit courts are responsible for determining "matters of boundary and title dispute[s]." To

respond to this argument, the portion of the challenged sentence must be considered in

the context of the entire sentence and complete finding of fact in which it is included. FOF

7 describes the property. The sentence containing the challenged language is only a

description of the AU's use of the term "Property," and as such the ALJ has not

determined any property rights in this finding.4

For the reasons set forth herein, Exception Nos. 2 and 90 are denied.

Petitioner's Exception No.3 to FOF 10

Petitioner takes exception to FOF 10 wherein the AU describes the lots contained

in the 1901 plat map in relation to the FCLCTC canal. Petitioner's exception reargues the

facts and asks the District to reweigh the evidence. As explained in the Standard of

Review, these evidentiary-related matters are within the sole province of the AU as the

fact-finder. Petitioner argues that the 1901 Plat "shows that the lots terminate 55' west of

the FLECTC [sic]." The finding of fact states that the lots "terminate 35 feet west of the

4 Petitioner makes substantially the same argument in subsequent exceptions, which are equally withoutmerit. Further ruling on this argument are provided, infra.

10

centerline of the FCLCTC canal, which is depicted as 70 feet wide." Even if the ALJ erred

in finding that the lots terminate 35 feet west of the centerline of the FCLCTC canal, it is

clear from a review of the RO that this is not significant in reaching the ultimate issue of

whether the Petitioner has proven he qualifies for the exemptions. None of the ALJ's

findings and conclusions are implicated by the dimensions of the property or the exact

boundary between the Property and the ICW.

Petitioner again argues the "ALJ lacks authority to make any determination, as to an

individual's real property rights or boundaries in regards to a specific property" because

Florida circuit courts are responsible for determining "matters of boundary and title

dispute[s]." Petitioner is correct that the circuit courts of Florida have exclusive jurisdiction

over "all actions involving the titles and boundaries." § 26.012(2)(g), Fla. Stat. (2013).

E.g., Miller v. Dep't of Envtl. Regulation, 504 So. 2d 1325, 1327 (Fla. 1st DCA 1987).

However, property 'issues may be explored in certain administrative proceedings when the

rules or statutes applicable to a particular proceeding provide for consideration of those

property issues. See, e.g., Braid v. Rosasco & Dep't of Envtl. Prot., Case No. 99-0106,

1999 WL 33116639 (Fla. Dep't of Envtl. Prot. 1999)(involving a proposed sovereign

submerged lands authorization under Rule 18-21, Florida Administrative Code); Samuels

v. Imhoof, 26 FALR 3689, 3693 (Fla. Dep't of Envtl. Prot. 2004), aff'd per curiam, 889 So.

2d 84 (Fla. 5th DCA 2004) (also involving a proposed sovereign submerged lands

authorization under Rule 18-21, Florida Administrative Code).

The proceeding at hand is not a dispute about title matters or real estate

boundaries, but is instead a dispute regarding verification of exemptions. The

consideration of the subject property's boundaries here in the context of determining

whether or not a party is entitled to exemptions does not intrude upon the exclusive

11

original jurisdiction of the circuit courts of this state. Nothing ruled herein constitutes a legal

determination of the ownership or boundaries of the subject property.

Finally, Petitioner argues that Petitioner's Exh. 5 3 describes the FCLCTC canal as

an "artificial canal" where the subject property is located. However, FOF 10 does not

include any characterization of the FCLCTC canal as artificial or otherwise.

For the reasons stated herein, Exception NO.3 is denied.


Petitioner takes exception to the fourth sentence of FOF 15 wherein the ALJ found

that the 202 foot easement discussed in the unchallenged portions of this finding of fact

"[o]bviously ... reduced the depth of the unencumbered Property to about 350 feet along

the north lot line and 248 feet along the south lot line." Petitioner objects to the ALJ's

statement of the property dimensions and argues, without any record citations that, "[t]he

correct distances are 439 feet on the north line and 339' on the south line. Here the

arguable error is approximately 100'." Section 120.57(1 )(k), Florida Statutes, provides that

an agency need not rule on an exception that "does not identify the legal basis for the

exception, or that does not include appropriate and specific citations to the record."

Therefore, the District is not required to rule on this exception. Nonetheless, as explained

in the ruling on Exception No.3, even if the ALJ erred in stating the property dimensions, it

is clear from a review of the RO that this is not significant in reaching the ultimate issue of

whether the Petitioner has proven he qualifies for the exemptions.

Petitioner also argues the ALJ's error of "approximately 100'" "is critical to the ALJ

[sic] other findings of fact." Petitioner does not provide any explanation as to the basis for

5 At the hearing, the parties offered into evidence Joint Exhibit 1, the ALJ admitted one exhibit as ALJ Exhibit1, Petitioner offered into evidence 32 exhibits, and the District offered into evidence 23 exhibits. Throughoutthis order, the exhibits will be cited to the origin of the exhibit with the "Exh." Abbreviation.

12

.. this argument, therefore it is not possible to othelWise respond to this argument.

Petitioner again argues the ALJ is without authority to make any determination as to

real property rights, title and boundaries. This argument has already been addressed in

the ruling on Exception NO.3.

For the reasons stated herein, and in the ruling on Exception No.3, Exception NO.4

is denied.


Petitioner takes exception to FOF 13 wherein the ALJ found "[t]he record does not

contain any as-built drawings of the initial dredging of the ICW." Petitioner argues that

Petitioner's Exh. 10 "clearly provides 7 as-built cross sections, along the subject property .

. . as well as additional as-built cross sections of the area." Petitioner describes Petitioner's

Exh. 3 as "an as-built legal description, of the FCLCTC required by the state to transfer the

canal to FCLCTC." Petitioner's exception requests the District to improperly reweigh the

evidence. As explained in the Standard of Review, these evidentiary-related matters are

within the province of the ALJ as the fact-finder. Where there is competent substantial

evidence to support a finding of fact, the District may not disturb that finding.

There is competent substantial in the record to support the ALJ's finding of fact. On

its face, Petitioner's Exh. 10 does not contain any notation regarding the nature or purpose

of the document. However, there is testimony from Petitioner that Exh. 10 consists of pre-

construction drawings of cross sections and not as-built drawings. See Tr. Vol. 1 80:13-

82:8. Petitioner's Exh. 3 is the legal description of the FCLCTC canal. Even if Petitioner's

Exh. 3 could be considered an "as-built legal description," it is not for the ICW. Therefore, it

is not responsive to the challenged finding of fact regarding whether there are as-built

drawings of the initial dredging of the ICW.

13

Petitioner also argues that Petitioner's Exh. 46 describes the FCLCTC as an

"artificial canal" where the subject property is located. It is unclear what significance

Petitioner credits this statement with relative to the challenged finding of fact. FOF 16

does not include any characterization of the FCLCTC canal as artificial or otherwise.

For the reasons stated herein, Exception NO.5 is denied.

Petitioner's Exception Nos. 6 and 7 to FOF 17

Petitioner takes exception to the first and second sentence of FOF 17 wherein the

ALJ found that "[t]he 1932/1933 Proposed ICW Cross-Sections details conditions at widely

spaced profiles," and that "[p]rofile 1500 is about 1,000 feet south of the Property and ...

characteristic of the conditions of the Property." Petitioner does not argue that this

sentence is incorrect. Rather, Petitioner argues that Petitioner's Exh. 10 "clearly provides

cross sections every 100' across the property and throughout the area, which show actual

elevations on the property." Petitioner's exception requests the District to improperly

reweigh the evidence. As explained in the Standard of Review, these evidentiary-related

matters are within the province of the ALJ as the fact-finder. Where there is competent

substantial evidence to support a finding of fact, the District may not disturb that finding.

There is competent substantial evidence in the record to support the ALJ's finding of

fact. See Petitioner's Exh. 9. The standard of review for a finding of fact is not whether

contrary information exists in the record, but whether there is competent substantial

evidence in the record to support the finding of fact.

For the reasons stated herein, Exception Nos. 6 and 7 are denied.


Petitioner takes exception to the last sentence of FOF 19 wherein the ALJ found

6 Petitioner may, instead, be referring to Petitioner's Exhibit 3.

14

• that "[t]he cumulative effect of these three widening projects, which removed 200 feet of

the Property, reduced the depth of the Property by almost half and brought the canal

waters 200 feet closer to what remained of the Property." Petitioner argues, without record

citations, that the "[t]he previous dredging activities only removed 100' of the encumbered

property." Section 120.57(1)(k), Florida Statutes, provides that an agency need not rule on

an exception that "does not identify the legal basis for the exception, or that does not

include appropriate and specific citations to the record." Therefore, the District is not

required to rule on this exception. Nonetheless, as explained in the ruling on Exception

No.3, even if the AU arguably erred in setting forth the property dimensions, it is clear

from a review of the RO that this is not significant in reaching the ultimate issue of whether

the Petitioner has proven he qualifies for the exemptions.

Petitioner again argues the ALJ is without authority to make any determination as to

real property rights, title and boundaries. This argument has already been addressed in

the ruling on Exception NO.3.

For the reasons stated herein, and in the ruling on Exception No.3, Exception NO.8

is denied.



that "[t]he main purpose of the map [Respondent Exh. 5] is to facilitate surveying, and the

map documents the meandering of major waterbodies, the location of uplands in the form

of 'spruce pine scrub,' and the location of wetlands in the form of 'inundated marsh' and

'marsh'." Petitioner argues, without record citations, that "the only testimony that was

given, stated that the purpose of this map was the official survey for the state of Florida for

the platting of the state and identifying sovereign land, as testified by Rod Maddox."

15

Section 120.57(1 )(k), Florida Statutes, provides that an agency need not rule on an



rule on this exception. Nonetheless, there is competent substantial evidence in the record

to support the ALJ's finding of fact. See Tr. Vol. 3440:4-442:20; 447:6-448:9.

Petitioner's exception reargues the facts and requests the District to improperly


matters are within the province of the ALJ as the fact-finder.

For the reasons stated herein, Exception No.9 is denied.

Petitioner's Exception No. 10 to FOF 23

Petitioner takes exception to the second sentence of FOF 23 wherein the ALJ found

that the scale of the maps contained in District Exhs. 29 and 5 are the same. Petitioner,

without record citations, incorrectly argues that, the scale of one map is 1"=1500' and the

scale of the other map is 1"=40,000'. The Petitioner then concludes that the ALJ

incorrectly found that the scale of the two maps is the same.

Petitioner's exception reargues the facts and requests the District to improperly



For the reasons stated herein, Exception No. 10 is denied.


Petitioner takes exception to the third sentence of FOF 23 wherein the AU found

that "the main purpose of the 1845/1884 map [District Exh. 29] is the same as the

1845/1872 map [District Exh. 5]." Petitioner's exception reargues the facts and requests

the District to improperly reweigh the evidence. As explained in the Standard of Review,

16

------------------------------

these evidentiary-related matters are within the province of the ALJ as the fact-finder.

Petitioner argues, without record citations, that "the 1845/1872 map was a cadastral

map and survey plat and the 1845/1884 was a shoreline survey for purposes of Coastal

mapping." Section 120.57(1)(k), Florida Statutes, provides that an agency need not rule on



required to rule on this exception. Nonetheless, Petitioner misapprehends the ALJ's finding

of fact. The 1884 map may be a shoreline survey map (Tr. Vol. 3 448:11-449:4), but the

ALJ is comparing the 1845/1872 map with the 1845 map overlaid with the 1884 map. A

District witness created District Exh. 29 by overlaying the 1845/1872 map with the 1884

map. The purpose in doing so was to "make sure the features that they depicted on the

quad sheet, the [1845/1872] map, overlaid with the 1884 map." See Tr. Vol. 3 476:23-

477:9. Therefore, there is competent substantial evidence in the record to support the

ALJ's finding of fact.

For the reasons set forth herein, Exception No. 11 is denied.


Petitioner takes exception to FOF 25 wherein the ALJ, setting forth his analysis of

the evidentiary value of particular exhibits, found that the "newer map is entitled to greater

weight." Petitioner's exception reargues the facts and requests the District to improperly



First, Petitioner argues, without record citation, that "it is common accepted practice

to utilize the map/drawing with the smallest scale to be more accurate." Petitioner fails to

explain the context of the "common accepted practice." Section 120.57(1)(k), Florida

17

Statutes, provides that an agency need not rule on an exception that "does not identify the

legal basis for the exception, or that does not include appropriate and specific citations to

the record." Therefore, the District is not required to rule on this exception.

Petitioner also raises the issue of the scale of the maps which are being compared,

stating "[h]ere the ALJ gave preference to a map that had a scale of over 26 times greater

than the 1845/1872 map." This argument has already been addressed in the ruling on

Exception NO.1 0, which is incorporated herein.

For the reasons set forth herein, and in the ruling on Exception NO.1 0, Exception

No. 12 is denied.

Petitioner's Exception Nos. 13, 14, 15, 16, and 93 to FOF 26 and Endnote 20

Petitioner takes exception to select portions of FOF 26 and Endnote 20 which sets

forth the ALJ's analysis of the evidentiary value of Petitioner's Exh. 7. Petitioner's

exceptions reargue the facts and request the District to improperly reweigh the evidence.

As explained in the Standard of Review, these evidentiary-related matters are within the

province of the ALJ as the fact-finder.

In Exception No. 13, Petitioner takes exception to the first sentence of FOF 26

wherein the ALJ found that "[t]he next depiction of the Property derives from aerial

photography taken on February 27, 1927, which would be in the dry season." Petitioner

argues "the ALJ is making representations not presented in the record." Petitioner does not

provide any further explanation of this exception. It is unclear from Petitioner's exception

as to which portion of the sentence is alleged to be erroneous. Nonetheless, upon a

review by date of the historical documents admitted into evidence in this proceeding, the

referenced aerial photograph, Petitioner's Exh. 7, is the "next depiction" of the property.

See all admitted exhibits. In addition, if Petitioner's exception is to whether February is in

18

the dry season, Petitioner's own expert witness testified that the wet season in south

Florida is June through September and a District witness testified that most aerial

photography is taken in the dry season. Tr. Vol. 2 312:17-313:4; Tr. Vol. 4 623:25-624:7.

Therefore, there is competent substantial evidence in the record from which the ALJ can

infer that February is part of the dry season in south Florida.

Exception No. 14 takes exception to the third sentence of FOF 26 wherein the ALJ

found that "wetlands/uplands delineations" are "among the purposes" of the 1930 map.

Petitioner argues that there is no evidence in the record to support this finding. In addition,

Petitioner argues, without record citation, that "[t]he purpose of the map was current

vegetation and land uses of the area mapped not wetland/upland as that term had not

been defined at that time for regulatory purposes." Section 120.57(1)(k), Florida Statutes,

provides that an agency need not rule on an exception that "does not identify the legal

basis for the exception, or that does not include appropriate and specific citations to the

record." Therefore, the District is not required to rule on this argument.

Nonetheless, the ALJ's finding is supported by competent substantial evidence in

the record. Petitioner attributes the ALJ's finding of fact to the "original" purpose of the

map. However, the plain reading of the language reveals that the ALJ refers to the

purposes of the map without restricting that finding to any particular point in time. The ALJ

found that the 1930 map is a vegetative map, which Petitioner did not challenge and

therefore has accepted. Petitioner's own expert witness testified that the map identifies

various vegetation types and he used the map to assist in determining the habitat existing

at the time of the map as part of his analysis of whether the property was wetlands or

uplands prior to mosquito control activities. Tr. Vol. 2 281 :8-283:2. Therefore, even if it

was not the original purpose of the map to delineate wetlands/uplands as those terms are

19

utilized today, for the purposes of this proceeding, the map was a part of the historical

information utilized by Petitioner's expert in making that determination. As a result, the

ALJ's finding of fact that "[a]mong the purposes of this 1930 map are wetlands/uplands

delineations" is supported by competent substantial evidence in the record.

Exception No. 15 takes exception to a portion of the third sentence of FOF 26

wherein the ALJ found that the 1930 map "lacks a legend to explain the meaning of the

many vegetation communities that it depicts." Petitioner argues, without record citation,

that the ALJ "ignored the legend provided in the record by the [sic] Mr. Czerwinski, which

was not disputed by the Respondent." Section 120.57(1)(k), Florida Statutes, provides that

an agency need not rule on an exception that "does not identify the legal basis for the


Therefore, the District is not required to rule on this argument.

Nonetheless, the ALJ's finding is supported by competent substantial evidence in

the record. Petitioner's own expert witness, Mr. Czerwinski, testified that there was no

legend to the map. Tr. Vol. 2 281 :8-282:3. Petitioner is correct that his expert created a

legend by identifying the habitat symbols on the map and testified in detail how that was

accomplished, however, his expert also testified that he did not include all of the habitat

symbols on his legend. Tr. Vol. 2 282:12-283:2; Tr. Vol. 3396:12-398:19. The standard of

review for a finding of fact is not whether contrary information exists in the record, but

whether there is competent substantial evidence in the record to support the finding of fact.

Exception No. 16 takes exception to the last sentence of FOF 26 wherein the ALJ

found that the "1930 map is thus of no use in determining whether wetlands occupied the

Property at that time." Petitioner's argument is the same as his arguments in the other

exceptions to FOF 26. Therefore, those arguments are addressed in those exceptions and

20

are adopted and incorporated in response to Exception No. 16.

For the reasons stated herein, Exception Nos. 13, 14, 15, 16 and 93 are denied.


Petitioner takes exception to FOF 28 wherein the ALJ found that two profiles

located on the 1932/1933 proposed ICW cross-sections, Petitioner's Exh. 9, indicate the

materials to be excavated on the west side of the ICW are mud at Profile 1500, and mud

and sand at Profile 1550. Petitioner's exception requests the District to improperly reweigh

the evidence. As explained in the Standard of Review, these evidentiary-related matters

are within the province of the ALJ as the fact-finder. Where there is competent substantial


Despite the fact that this finding may not be disturbed, the District notes that the

Petitioner first argues that "the ALJ has ignored or lost Petitioner's Exh. 10, which is

directly located along the Property with cross section every 100'." Petitioner does not

argue that there is no competent substantial evidence in the record to support the ALJ's

finding of fact. Rather, Petitioner argues that Petitioner's Exh. 10 was not considered by

the ALJ. As the finder of fact, the ALJ assigns the weight to be given to each exhibit. The

ALJ therefore had authority to decide what weight, if any, should be assigned to the

exhibit. There is competent substantial evidence in the record to support the ALJ's finding

of fact. See Petitioner's Exh. 9. The standard of review for a finding of fact is not whether

contrary information exists in the record, but whether there is competent substantial

evidence in the record to support the finding of fact. .

Moreover, Petitioner does not argue that the ALJ is incorrect in stating that

Petitioner's Exh. 9 depicts mud and sand as the material to be excavated at Profile 1550.

Rather, Petitioner argues that "both notations of 'mud and sand' are shown below the low

21

water mark of those cross sections which would indicate that they are under water and in

the [ICW] not the property." There is competent substantial evidence in the record to

support the ALJ's finding of fact. See Petitioner's Exh. 9. The standard of review for a

finding of fact is not whether contrary information exists in the record, but whether there is

competent substantial evidence in the record to support the finding of fact.

Petitioner's exception concludes with a request to strike the entire paragraph

because "it has nothing to do with the property." Petitioner fails to recognize that FOF 28

is a continuation of the description of the 1932/1933 proposed ICW cross-sections,

Petitioner's Exh. 9, from FOF 27. FOF 27 explains the location of Profile 1500 and Profile

1550 in relation to the subject property, noting that Profile 1500 is "roughly 1000 feet south

the southeast corner of the Property," and Profile 1550 is "[a]bout one-half mile north of the

northeast corner of the Property." Petitioner did not object to FOF 27. In FOF 28, the ALJ

utilized the location information set forth in FOF 27 to identify the nature of the materials to

be excavated in proximity to the subject property.


Petitioner's Exception Nos. 18, 19, and 20 to FOF 29

Petitioner takes exception to FOF 29 wherein the ALJ further describes the 1932-

1933 cross-sections. Petitioner's exceptions do nothing more than cross-reference his

Exception Nos. 7, 17, and 68 and conclude with a request to strike the entire paragraph

because "it has nothing to do with the property." As explained in the ruling on Exception

No. 17, the findings of fact describing the 1932/1933 proposed ICW cross-sections are

relevant to the subject property based upon the location description in FOF 27 which

Petitioner did not challenge and therefore has accepted.

For the reasons stated herein, and in the ruling on Exception No.7, Exception Nos.

22

18,19, and 20 are denied.


In FOF 30, the ALJ rules on the weight to be given to a 1937 USCGS map and finds

that "it is impossible to assign it much weight." Petitioner's exception requests the District

to improperly reweigh the evidence and make additional findings of fact. As explained in

the Standard of Review, these evidentiary-related matters are within the province of the

ALJ as the fact-finder. Where there is competent substantial evidence to support a finding

of fact, the District may not disturb that finding.


that the 1937 USCGS map, Petitioner's Exh. 11, is a "small scale map" which is a

"bathymetric chart of interior navigable waters." Petitioner argues that "this map was

prepared by the same agency, United States Coast and Geodetic Survey, as the

1845/1884 map was for the same coastal survey purpose. Additionally, the map depicts

marsh areas outside the 'interior navigable waters'." The finding of fact references the

United States Coast and Geodetic Survey as the preparer of the map. Therefore, this is

not in dispute. Petitioner's allegation that the map was prepared for coastal survey

purposes fails to provide any record citation. Section 120.57(1)(k), Florida Statutes,

provides that an agency need not rule on an exception that "does not identify the legal

basis for the exception, or that does not include appropriate and specific citations to the

record." Therefore, the District is not required to rule on this exception. Nonetheless, the

ALJ's finding is supported by competent substantial evidence in the record. Among other

things, the map depicts bathymetric measurements that can be determined by the trier of

fact to be a bathymetric chart of interior navigable waters.

Finally, Petitioner does not argue that the ALJ erred in finding that the map depicts

23

interior navigable waters. Rather, Petitioner argues, that it also depicts marsh areas

outside the interior navigable waters. There is competent substantial evidence in the

record to support the ALJ's finding of fact. See Petitioner's Exh. 11. The standard of

review for a finding of fact is not whether contrary information exists in the record, but

whether there is competent substantial evidence in the record to support the finding of fact.

In Exception No. 22, Petitioner takes exception to the last sentence of FOF 30

wherein the ALJ found it is impossible to assign Exh. 11 "much weight in determining

whether the Property was occupied by wetlands or uplands at the time." Petitioner's

exception requests the District to improperly reweigh the evidence and make additional

findings of fact. As explained in the Standard of Review, these evidentiary-related matters

are within the province of the ALJ as the fact-finder. Where there is competent substantial


Petitioner argues "the ALJ is making assumptions not represented in the record."

First, as explained in ruling on Exception No. 21, the ALJ did not err in finding that the

1937 map is a bathymetric chart. Bathymetric charts are used for navigation purposes. On

its face, the 1937 map references tides, lights, beacons, buoys, all of which are

navigational aids. Next, Petitioner's own expert witness testified that, although the 1937

map depicted marsh in some areas, he weighed the map information with all other

evidence and did not afford it a lot of weight. Tr. Vol. 2293:9-294:14. Therefore, the ALJ's

finding of fact is supported by competent substantial evidence in the record.



Petitioner takes exception to FOF 31 wherein the ALJ found that the 1943 USCGS

chart, Petitioner's Exh. 12, "is also of little use in determining whether the Property was

24

occupied by wetlands or uplands at the time." Petitioner's exception requests the District to

improperly reweigh the evidence and make additional findings of fact. As explained in the

Standard of Review, these evidentiary-related matters are within the province of the AU

as the fact-finder. Where there is competent substantial evidence to support a finding of

fact, the District may not disturb that finding.

Petitioner makes the same arguments in this exception as he did to FOF 30.

Because this argument is addressed in detail in the ruling on Exception Nos. 21 and 22,

the ruling in response thereto is incorporated herein.

In addition, as to the issue of whether the 1943 chart is almost identical to the 1937

chart, there is competent substantial evidence in the record to support this finding of fact.

Tr. Vol. 1 95:21-96:4; 214:9-13.

For the reasons stated herein, and in the rulings on Exception Nos. 21 and 22,

Exception No. 23 is denied.

Petitioner's Exception Nos. 24, 25, and 94 to FOF 32 and Endnote 21

Petitioner takes exception to FOF 32 and Endnote 21 wherein the ALJ makes a

ruling on the "importance" to be given to certain evidence (i.e., the 1945 USGS quad map).

Petitioner's exceptions request the District to improperly reweigh the evidence and make

additional findings of fact. As explained in the Standard of Review, these evidentiary-

related matters are within the province of the ALJ as the fact-finder. Where there is

competent substantial evidence to support a finding of fact, the District may not disturb that

finding.

Petitioner's Exception No. 24 argues, without record citations, that U[t]he purpose of

a USGS topographic map is to indicate elevations, various roads structures and water

bodies including vegetation," and thus further argues that the findings made by the AU

25

that the purpose of the 1945 quad map is to depict vegetated areas are erroneous.

Petitioner's Exception No. 24 also argues that the ALJ "ignored the legend of 'Brush and

Woodlands' depicted as green on the map that includes the property." Petitioner's

Exception No. 25 argues that there is no basis in the record for the ALJ's statements in the

last two sentences of FOF 32. As to the purpose of the 1945 quad map and what

vegetative information is included on it, Petitioner appears to acknowledge that a

topographic map indicates, among other things, vegetation. As a result, it is unclear what

Petitioner's argument is in this instance. Section 120.57(1)(k), Florida Statutes, provides

that an agency need not rule on an exception that "does not identify the legal basis for the


Therefore, the District is not required to rule on this exception. Nonetheless, the ALJ's

findings are supported by competent substantial evidence in the record. The ALJ found

that the 1945 quad map depicts vegetated and cleared or other land, and in certain areas

includes symbols to indicate vegetation type. Petitioner's own expert witness testified that

green generally means vegetated, and the map includes symbols for mangrove and

marsh. Tr. Vol. 2 302:8-15.

As to Petitioner's argument that the ALJ "ignored the legend of 'Brush and

Woodlands' depicted as green on the map that includes the property," a review of the 1945

USGS quad map, Petitioner's Exh. 13, does not reveal a legend setting forth the

designation for the areas indicated in green. Petitioner's own expert witness testified that

there is no legend on this map, but green generally means vegetated. Tr. Vol. 2 302:13-

303:9.

Finally, the ALJ explained his weighing of the evidence presented on the map in the

context of this proceeding (e.g. delineating wetlands). The ALJ did not give much weight to

26

the vegetative indications on the map and the property depicted in green because they

indicated vegetative versus cleared areas and were not delineating wetlands. Moreover,

the District's expert witness testified that due to the scale of the map, it was not

"necessarily appropriate for making inferences about a small parcel" because, among

other things, the diversity in vegetation is not culled out at this scale and the map was not

made to define habitat type. Tr. Vol. 4 621 :1-14.

For the reasons stated herein, Exception Nos. 24, 25, and 94 are denied.


Petitioner takes exception to all but the second sentence of FOF 33. Again,

Petitioner's exceptions request the District to improperly reweigh the evidence and make

additional findings of fact. As explained in the Standard of Review, these evidentiary-

related matters are within the province of the ALJ as the fact-finder. Where there is


finding.

Petitioner also argues in both exceptions that there is no competent substantial

evidence in the record to support this finding of fact. Petitioner also reargues the evidence

and contends that Petitioner's Exh. 10 provides the correct elevations of the subject

property. The standard of review for a finding of fact is not whether contrary information

exists in the record, but whether there is competent substantial evidence in the record to

support the finding of fact.

A complete review of the record shows that there is competent substantial evidence

in the record to support this finding of fact. First, Petitioner argues that the finding of fact is

incorrect as to elevations. However, as depicted on the 1945 quad map, the map uses a

contour interval of five feet. See Exh. 13. Petitioner's own expert witness testified that the

27

map provided elevation information on the subject property "but it has to be weighted,

because the contour interval is ... five feet, so you've got zero to five, five to ten, and

everything in between is interpretable." Tr. Vol. 2 301:21-302:1. The same witness

testified that the subject property "falls somewhere around the five elevation or less. That

kind of corresponds to the Army Corps that we might have had, the elevations we had at

the water's edge." Tr. Vol. 2 302:2-7. A District witness testified that, due to the five-foot

contour interval, the map must be interpolated. In interpolating the map, the District

witness looked to the waterway as the lowest point and testified that, with the five-foot

contour being west of the property, and the property being adjacent to the ICW, there

would be a downward slope so the map clearly shows this as a low point. Tr. Vol. 4

621: 16-623:13.

In addition, Petitioner does not challenge and therefore has accepted the second

sentence of FOF 33 wherein the ALJ found that the ICW occupies a topographic

depression south of Lake Worth which would include the area of the subject property. As

to the ALJ's reference to the 1845/1884 map, District Exh. 29, Petitioner misapprehends

the ALJ's statement. The ALJ does not state that the 1845/1884 map contains elevations.

Rather, the ALJ correlates the five-foot contour (i.e., elevations), with the depiction of the

"slough-like feature" on the 1845/1884 map, finding that the five-foot contour illustrates that

"slough-like feature" from the earlier map.



Petitioner takes exception to a portion of the first sentence of FOF 35 wherein the

ALJ found that May 6, 1941, falls at the end of the dry season. Petitioner argues there is

no basis in the record for this statement. There is competent substantial evidence in the

28

record to support this finding. Petitioner's expert witness testified that the wet season in

south Florida is June through September 30. See Tr. Vol. 2 312:17-22. Therefore, the ALJ

reasonably inferred from this testimony that May falls within the end of the dry season in

south Florida. As explained in the Standard of Review, these evidentiary-related matters,

including drawing inferences from the evidence, are within the province of the ALJ as the

fact-finder. Where there is competent substantial evidence to support a finding of fact, the

District may not disturb that finding.


Petitioner's Exception Nos. 29, 30, and 95 to FOF 42 and Endnote 25

Petitioner takes exception to the first two sentences of FOF 427 and Endnote 25.

As to Petitioner's arguments regarding filling and dredging, Petitioner

misapprehends the ALJ's finding of fact. The ALJ's findings do not address filling of the

property or elevation changes of the property due to dredging on the east side of the

property. Rather, the analysis set forth in this finding of fact uses findings relative to the

mosquito control field book dimension and distance notations set forth in FOFs 38 - 41,

which Petitioner does not challenge and thus accepts.

As explained in the Standard of Review, these evidentiary-related matters, including

drawing inferences from the evidence, are within the province of the ALJ as the fact-finder.

Where there is competent substantial evidence to support a finding of fact, the District may

not disturb that finding.

For the reasons set forth herein, Exception Nos. 29, 30, and 95 are denied.

7 Petitioner's Exception Nos. 29 and 30 state that the exceptions are to FOF 36 of the RO. However, thelanguage quoted in each of those exceptions is actually found in FOF 42. Therefore, the exceptions aretreated as exceptions to FOF 42.

29

Petitionerls Exception Nos. 31 and 32 to FOFs 47 and 48

Petitioner takes exception to the last sentence of FOF 47 and all of FOF 48,

wherein the ALJ found that "[f)rom U.S. Route 1 almost to the [leW] is a shell road, which

likely interrupts drainage, but, at a point just east of the property line dividing Held's

Nursery from the parcel to the west, a symbol indicates a culvert, which would have

permitted stormwater to pass under the shell road," and that "[a]s confirmed by subsequent

aerial photography discussed below [in FOF 55], the culvert passed stormwater from

Held's Nursery to the Property, which has been vacant since its platting in 1901."

Petitioner argues that there is no basis in the record to support these findings of

fact. Further, Petitioner argues that "there is no legend or note for this conclusion."

However, there is competent substantial evidence in the record to support the ALJ's

findings. In these findings of fact, the ALJ is describing information about the contents of

Palm Beach County mosquito control field notes. Competent substantial evidence to

support this finding is set forth, in the record, including in District Exh. No.8, Petitioner

Exh. No. 20, Tr. Vol. 1 102:2-14; Tr. Vol. 2 222:22-223:7,331:4-332:11; and Tr. Vol. 3

484:23-485:8.

Mr. Swaim testified that there appears to be a shell road and another unmarked

road depicted, which could be shell, sand or grass, on the fourth page (marked page 10) of

Petitioner's Exh. 20. Tr. Vol. 1 102:2-14; Tr. Vol. 2 222:22-223:7. Petitioner's expert

witness also testified that the unmarked feature on the diagram was a road and that, in the

location of the unmarked road, there is what appears to be a culvert. Tr. Vol. 2 331:4-

332: 11. A District witness testified that the property is lower than the surrounding

properties. Tr. Vol. 3 484:23-485:8. The ALJ properly inferred from the existence of a road

and a culvert at that road, that drainage would likely be interrupted by the road but,

30

because of the culvert, would pass under that road to the subject property which is lower in

elevation. As explained in the Standard of Review, these evidentiary-related matters,

including drawing inferences from the evidence, are within the province of the ALJ as the

fact-finder. Where there is competent substantial evidence to support a finding of fact, the




Petitioner takes exception to the second sentence of FOF 50. However, there is

competent substantial evidence in the record to support the ALJ's findings. In this finding

of fact, the ALJ is again describing information about the contents of Palm Beach County

mosquito control field notes. See Petitioner Exh. No. 20 and District Exh. NO.8. See also

Tr. Vol. 4 547:20-25. Petitioner further argues that "there is no legend or note for this

conclusion." The relevance of this statement is unclear, but it is not material to the ALJ's

findings.



Petitioner's takes exception to FOF 51 8 wherein the ALJ described Merkle's

Nursery, the property to the south of the subject property. Petitioner argues that there is no

basis in the record for this finding and that it does not have any relevance for the purpose

of this case. However, there is competent substantial evidence in the record to support the

ALJ's findings. In this finding of fact, the ALJ is again describing information about the

contents of Palm Beach County mosquito control field notes. See Petitioner Exh. No. 20

8 Petitioner's Exception No. 34 states that the exception is to FOF 50 of the RO. However, the languagequoted in this exception is actually found in FOF 51. Therefore, the exception is treated as an exception toFOF 51.

31

~-------------------------------------_._-_.-

and District Exh. NO.8. As to Petitioner's argument that this finding of fact is not relevant

to this case, as explained in the Standard of Review, these evidentiary-related matters are

within the province of the ALJ as the fact-finder. Where there is competent substantial




Petitioner takes exception to the third sentence of FOF 529 wherein the ALJ found

that "[t]he Property was undeveloped wetlands, so there is little reason for the owner to try

to drain the Property." Petitioner argues that there is no basis in the record for this finding

of fact. However, there is competent substantial evidence in the record to support the

ALJ's finding. See FOFs 20 - 33, 37, and the rulings on the Exceptions to portions of those

findings of fact.

The challenged sentence in FOF 50 is used by the ALJ in drawing the inference,

based upon the information contained in the mosquito control field books. (Petitioner Exh.

No 20 and District Exh. No.8), and related testimony, that "[t]he only party with an interest

in the drainage in the area was the County in its effort to control mosquitoes by

overdraining wet land." As explained in the Standard of Review, these evidentiary-related

matters, including drawing inferences from the evidence, are within the province of the ALJ

as the fact-finder. Where there is competent substantial evidence to support a finding of

fact, the District may not disturb that finding.


9 Petitioner's Exception No. 35 states that the exception is to FOF 50 of the RO. However, the languagequoted in this exception is actually found in FOF 52. Therefore, the exception is treated as an exception toFOF 52.

32


Petitioner takes exception to FOF 53, wherein the ALJ found that the mosquito

control field notes (Petitioner Exh. 20 and District Exh. 8), fail to prove any portion of the

subject property were uplands, or that ditches on the subject property converted uplands to

wetlands, or that Palm Beach County constructed and maintained the ditches to control

mosquitoes through flooding or impoundment rather than through drainage of standing

water. First, Petitioner argues that it is unclear who the ALJ is referring to in the first

sentence of the finding of fact. The ALJ erred in referring to "Respondent" in this

sentence. Both Petitioner and District Staff10 have directed our attention to this error, and

as such the RO will be corrected to reflect "Petitioner" in place of "Respondent" in the first

sentence.

Petitioner also argues, without record citations, that previous findings of fact by the

ALJ support his exception. Section 120.57(1)(k), Florida Statutes, provides that an agency

need not rule on an exception that "does not identify the legal basis for the exception, or

that does not include appropriate and specific citations to the record." Therefore, the

District is not required to rule on this exception.

Moreover, the ALJ found that "it is a fair inference that [the ditches constructed on

the subject property between 1941 and 1956] were dug by the County." FOF 52. FOF 53

finds that, notwithstanding the County having dug the ditches, the field notes do not prove

that the County flooded or impounded water to control mosquitoes rather than draining

standing water into the ICW.

The ALJ did not make any finding regarding the purpose of the county mosquito

control district, as alleged by Petitioner, and Petitioner does not cite to anything in the

10 District Staff filed exceptions and corrections to the RO. Their first exception also seeks to correct thiserror and a ruling on that exception is set forth later in this Final Order.

33

record to support his statements regarding this purpose. However, even assuming such

evidence exists in the record, as explained in the Standard of Review, these evidentiary-

related matters are within the sale province of the ALJ as the fact-finder. The District may

not reweigh the evidence or make additional findings of fact. The standard of review for a

finding of fact is not whether contrary information exists in the record, but whether there is

competent substantial evidence in the record to support the finding of fact.



Petitioner takes exception to the last two sentences of FOF 54 wherein the ALJ

found, among other things, that the poor resolution of the aerial photographs prevent a

finding of whether the depicted vegetation on the subject property were indicative of

wetlands or uplands. Petitioner argues there is no basis in the record for the ALJ's finding.


finding. See Petitioner's Exhs. 14 - 18. 11

Petitioner also argues, without record citation, that expert testimony regarding

stereoscopic analysis of the stereo pairs demonstrate the clarity of the 1940 aerial

photographs and identify pines and brush on the subject property. Section 120.57(1)(k),

Florida Statutes, provides that an agency need not rule on an exception that "does not

identify the legal basis for the exception, or that does not include appropriate and specific

citations to the record." Therefore, the District is not required to rule on this exception.

Nonetheless, as explained above, Petitioner's expert witness testified that the aerials were

11 Petitioner's expert witness testified that the 1940 aerials were not clear, but also testified there wasevidence of scattered pine trees and herbaceous type vegetation evident on the subject property. See Tr.Vol. 2 278:6-8; 279: 10-23. A District witness also testified that he predominantly observed herbaceousvegetation on the subject property, but due to the poor resolution and clarity of the 1940 aerials he would notbe able to determine if the subject property was wetland or upland based upon those aerials Tr. Vol. 4607:3-608:18.

34

not clear.



Petitioner takes exception to all but the first two sentences of FOF 55, and argues

that there is a lack of evidence to support the finding. However, there is competent

substantial evidence to support the ALJ's finding. First, there is testimony to support the

finding that a herbaceous salt marsh was visible on the subject property in the 1947 aerial

photograph. Tr. Vol. 4 613:17-615:10. In this FOF, the ALJ uses the 1947 aerial

photograph to confirm his earlier findings of fact. FOFs 47 and 48 show the flow from

Held's Nursery to the north of the subject property. In addition, FOF 33 shows the

elevations of the area in which the subject property is located and found that the subject

property occupies a topographic depression. FOF 42 found that there is an elevation gain

at the west property line. There is testimony that, in the area of the subject property,

rainfall would fall on the land and move downslope to the lowest area which included the

property. Tr. Vol. 4 612:19-613:15. See also Petitioner Exh. 18.



Petitioner takes exception to the first sentence of FOF 39 wherein the ALJ found

that Petitioner's expert witness, Mr. Czerwinski, "found evidence of mangroves starting to

take hold of the eastern end of the Property."

Petitioner argues, without record citation, that "the testimony was sometime after

the 1947 FIND [Florida Inland Navigation District] aerial, mangroves started appearing".

Section 120.57(1)(k), Florida Statutes, provides that an agency need not rule on an


35


rule on this exception.

Petitioner's argument does not dispute that evidence was found of mangroves on

the subject. However, Petitioner appears to assume the finding of fact refers to the 1947

aerial photograph as the basis for this finding when in fact it does not state a date and is

set forth under the heading of "Aerial Photography: 1940s-1960s." Nonetheless, even if the

ALJ is referring to the 1947 aerial photograph in this finding, a review of Mr. Czerwinski's

testimony shows that there is competent substantial evidence in the record to support the

ALJ's finding. Petitioner's expert witness, Mr. Czerwinski, testified that the mangroves

could have been "just starting" in the 1947 aerial photograph. Tr. Vol. 2 324:12-16, Tr. Vol.

3422:22-423:6. See also Petitioner Exh. 18; Tr. Vol. 4 625:25-629:20.




that "[alt low tide, seagrasses emerge, interspersed among the mangroves." Petitioner

argues there is "no evidence in the record to substantiate this finding." However, there is

competent substantial evidence in the record to support the ALJ's finding. There is

testimony in the record that seagrasses were observed during a site visit at low tide. See

Tr. Vol. 4 595:24-595:4.

Additionally, without any further explanation, Petitioner cites to Petitioner's

Exception No. 68 in support of Exception No. 40. A review of Exception No. 68 does not

reveal how that exception relates to Exception No. 40. Nonetheless, Exception No. 68 has

been denied for the reasons set forth in the ruling on that exception.


36


Petitioner takes exception to the second and third sentence of FOF 59 wherein the

ALJ made finding regarding the groundwater levels on the subject property during high and

low tides. Petitioner argues, without record citations, that "the evidence entered into the

record related to celestial high tide and not high tide." Section 120.57(1)(k), Florida

Statutes, provides that an agency need not rule on an exception that "does not identify the

legal basis for the exception, or that does not include appropriate and specific citations to

the record." Therefore, the District is not required to rule on this exception. Nonetheless,

the ALJ's finding is supported by competent substantial evidence. A District witness

provided testimony directly related to this finding of fact. See Tr. Vol. 4 597:17-598:25. In

addition, that same witness testified when asked by Petitioner's counsel that he did not

recall whether the site visit made during a high tide was also during a celestial tide. Tr. Vol.

4652:10-12.

Petitioner also argues, without record citation, that "[t]he ALJ finding of fact that the

ditch caused the property to become inundated proves that the mosquito ditching

introduced the tide into the property." For the reasons explained in the preceding

paragraph, the District is not required to rule on this exception. Nonetheless, the ALJ did

not make any finding of fact that the ditch caused the property to become inundated.

Additionally, without any further explanation, Petitioner cites to Petitioner's

Exception No. 68 in support of Exception No. 41. A review of Exception No. 68 does not

reveal how that exception relates to Exception No. 41. Nonetheless, Exception No. 68 has

been denied for the reasons set forth in the ruling on that exception.


37


Petitioner takes exception to two portions of the third sentence of FOF 60 wherein

the ALJ describes stormwater flows from west to east on the subject property. Petitioner

argues that "there was no evidence presented of any stormwater or freshwater flows from

west to east of the property." However, there is competent substantial evidence to support

the ALJ's finding. FOF 55.

Petitioner also argues that "[i]t is not the responsibility of the Petitioner to provide

stormwater control for the surrounding properties pursuant to 373 F.S." Section

120.57(1)(k), Florida Statutes, provides that an agency need not rule on an exception that

"does not identify the legal basis for the exception, or that does not include appropriate and

specific citations to the record." Petitioner has not provided the legal basis for this

assertion. Therefore, the District is not required to rule on this exception.12



Petitioner takes exception to the second sentence and a portion of the third

sentence of FOF 63 wherein the ALJ describes elevations for the subject property.

Petitioner argues that "these elevations were based on the 1932/1933 ACOE [Army Corps

of Engineers] survey which stated the tidal change was based on local observed data of

2.0 feet, see Petitioner's exhibit 9. The ALJ has mixed 'apples and oranges' here in the

tidal changes." Petitioner does not dispute that the elevations on the 1932/1933 proposed

cross-sections are stated correctly in FOF 63. Petitioner also does not dispute that the

12 Nonetheless, it appears that Petitioner has misapprehended the ALJ's finding. In its entirety, FOF 60,which is set forth under the heading of "Current Conditions," describes the changes in elevation throughoutthe subject property. The reference to stormwater flows is made in the context of flows hydrating themangroves from both tides and stormwater. Nothing in FOF 60 can be construed to make a factual finding ordetermination that Petitioner is responsible for providing stormwater control for surrounding properties.

38

1945 quad map correctly states the average tidal range. Therefore, it is impossible to

determine exactly what Petitioner's exception is. Nonetheless, Petitioner's exception

requests the District to improperly reweigh the evidence and make additional findings of

fact. As explained in the Standard of Review, these evidentiary-related matters are within

the province of the AU as the fact-finder. Where there is competent substantial evidence

to support a finding of fact, the District may not disturb that finding.



Petitioner takes exception to FOF 65 wherein the AU describes the analysis

leading to the identification of the elevations of the property today as compared to those of

the early 1930s and found that the west bank of the ICW was about six inches higher in

the early 1930s than the average elevations of the subject property in 2007-2008.-FOF 60.

Petitioner's exception requests the District to improperly reweigh the evidence and make

additional findings of fact. As explained in the Standard of Review, these eVidentiary-

related matters are within the province of the AU as the fact-finder. Where there is


finding. Petitioner argues, without record citations, that analysis regarding the elevations is

incorrect. Section 120.57(1)(k), Florida Statutes, provides that an agency need not rule on



required to rule on this exception. Nonetheless, there is competent substantial evidence in

the record to support the ALJ's finding. FOFs 62, 63, and 64; Tr. Vol. 3 488: 10-489: 10; Tr.

Vol. 4 518:15-519:8

Therefore, the AU reasonably inferred the elevation of the west bank of the ICW in

39

the early 1930s as compared with the average elevation of the subject property in 2007-

2008 from this testimony. As explained in the Standard of Review, these evidentiary-

related matters, including drawing inferences from the evidence, are within the province of

the ALJ as the fact-finder. Where there is competent substantial evidence to support a

finding of fact, the District may not disturb that finding.


Petitioner's Exception Nos. 45, 46 and 47 to FOF 66

Petitioner takes exception to all but the third sentence of FOF 66 wherein the ALJ

found that "[t]he greater weight of the evidence establishes that the Property was wetlands

from the earliest records." Petitioner argues that there is no evidence in the record to

support this finding of fact. However, there is competent substantial evidence in the record

to support the ALJ's finding. In this finding of fact, the ALJ explains his analysis of the

totality of the evidence presented and the weight afforded to that evidence to determine

whether the subject property was or was not a wetland. That evidence supporting this

finding has been described in detail in the ALJ's earlier findings of fact and is supported by

the record of the proceeding. FOFs 20 - 33, 49,54 - 57,63 - 65; Tr. Vol. 4 628:13-24.

The ALJ, as the trier of fact, is charged with weighing the evidence presented and

making findings of fact based upon that evidence. As explained in the Standard of

Review, these evidentiary-related matters are within the province of the ALJ as the fact-

finder. Where there is competent substantial evidence to support a finding of fact, the


For the reasons stated herein, Exception Nos. 45,46 and 47 are denied.


Petitioner takes exception to FOF 67 wherein the ALJ describes the hydrology of

40

the property over time. Petitioner argues there is no evidence in the record to support this

finding of fact. However, there is competent substantial evidence in the record to support

the ALJ's finding. In this finding of fact, the ALJ explains his analysis of the totality of the

evidence presented to determine the hydrology of the property as it changed over time.

That evidence has been described in detail in the ALJ's earlier findings of fact. FOFs 18,

19, 33, 36,42, 44 - 49,66.


Petitioner's Exception No. 50 to FOF 67 and 68

Petitioner takes exception to FOF 68 wherein the ALJ found it was unlikely the

subject property reverted from uplands to wetlands. First, Petitioner challenges the second

sentence of FOF 67 which was already challenged in Exception No. 49 for the same

reason stated herein and is addressed in the ruling on that exception. Therefore, that

portion of this exception will not be addressed again.

Next, Petitioner argues there is no evidence in the record to support this FOF 68.


finding. In this finding of fact, the ALJ explains his analysis of the totality of the evidence

presented to determine whether the property likely changed from wetlands to uplands.

That evidence has been described in detail in the ALJ's earlier findings of fact. FOFs 18 -

33,36,42,44 - 49,54 - 57, 63 - 66; Tr. Vol. 4628:13-24.




that even if it had been uplands, there was no proof that the mosquito control activity

resulted in conversion of the property to wetlands. Petitioner argues there is no evidence

41

In the record to support this finding of fact. However, there is competent substantial

evidence in the record to support the ALJ's finding regarding the subject property originally

and continuously being wetlands. That evidence has been described in detail in the ALJ's

earlier findings of fact. FOFs 20 - 33, 49, 54 - 57, 63 - 66.



Petitioner takes exception to FOF 70 wherein the ALJ found that insufficient record

evidence precluded a finding on the issue of how the subject property became wetter over

the years, and Petitioner failed to prove that the mosquito control ditch was the reason for

the property becoming wetter. Petitioner argues there is no evidence in the record to

support this finding of fact which supports the ALJ's finding regarding the insufficiency of

the evidence to make such a finding. Petitioner then points to findings of the ALJ, some of

which Petitioner took exception to, arguing the ALJ found that the mosquito control ditches

inundated the property from tidal waters. However, those findings do not state what the

Petitioner argues.

The ALJ as the trier of fact has the ultimate responsibility to weigh the evidence

presented and make findings based thereon. The District may not intrude on that

responsibility.



Petitioner takes exception to FOF 72 wherein the ALJ found that Petitioner failed-to

offer any analysis to prove how the mosquito control ditch altered the hydrology of the

property. Petitioner's exception reargues the facts and asks the District to reweigh the

evidence. As explained in the Standard of Review, these evidentiary-related matters are

42

within the sole province of the AU as the fact-finder. Petitioner argues, without

Documents

SOUTH FLORIDA WATER MANAGEMENT DISTRICTflrules.elaws.us/Gateway/CourtOrders/2013/13-004859...Heifetz v. Dep't ofBus. Regulation, 475 So. 2d 1277,1281 (Fla. 1st DCA 1985). A reviewing