§ 70-76. Approval of county Pumping and Dredging Control Act.

The Pumping and Dredging Control Act of the Orange County Code, sections 15-216—15-228, attached to Ordinance No. 95-14 as exhibit A, is adopted subject to the following changes:

Section 15-217. Definitions.

Town commission means the Oakland Town Commission.

Section 15-218. Dredging, pumping of sand, construction, etc.; permits, regulations.

(b)

Such application shall be accompanied by a plan or drawing showing specifically what is proposed to be done and the location of property owners who may be affected thereby. Such plan or drawing shall be to scale and shall show the depths of the waters and the elevation of the development above the waterline and shall have been drawn by an accredited civil engineer; such application shall include the names and mailing addresses of all the owners of property within 500 feet of the nearest point of such development; such application shall further include proof of ownership of the property which is proposed to be developed; the town commission may require such other information as may be necessary in the processing and determination of the application.

(c)

The application shall be filed with the agency designated by the town commission; and any party filing an application shall pay a fee to cover all costs for newspaper publication, service by mail, and the payment of such other costs as may be necessary for the filing, processing and determination of the application. The amount of the fee shall be fixed by the town commission from time to time and approved by the town. A fee of $127.00 is approved by the town and shall be incorporated into the town's fee schedule.

(d)

The town commission shall set a public hearing and publish notice of such public hearing one time in a newspaper of general circulation in the area that is qualified to publish legal notices, at least one week prior to such public hearing. Such notice shall state the development proposed to be made, the legal description of the area in which the development is to be made, and a general description of the area involved. An affidavit of proof of such publication with a copy attached shall be furnished to the town commission before its consideration of such application. The town commission shall further cause notices to be sent by mail or personal service to each property owner within 500 feet of the proposed development, which shall in all events include the owners of the upland affected by any proposed fill between the upland and the nearest channel, and such other property owners as the town commission deems might be adversely affected by the proposed development; and such notices shall be substantially the same as are required to be published in a newspaper as hereinbefore provided; all municipalities or other public agencies who may be affected by the proposed development shall also be notified by mail as hereinbefore provided and shall have the right to be heard. The town commission shall have the right to issue a writ of subpoena to any person to compel attendance at any hearing for the purposes of testifying before the town commission, and the town commission shall pay the witnesses' fees required by statute for witnesses attending court in the state.

(e)

The town commission, in order to prevent undesirable situations which might result from the performance of any of the activities listed in this section, shall obtain such engineering or other data and hear such testimony under oath as may be necessary to determine:

(1)

The effect of the proposed plan or development on the use of such waters in or adjoining the town for transportation and recreational or other public purposes and public conveniences.

(2)

The effect of the proposed plan or development on the free use of waters and waterways within or adjoining the town.

(3)

The effect of the proposed plan or development upon erosion control in the town.

(4)

The effect of the proposed plan or development upon the flow of waters in the town.

(5)

The effect of the proposed plan or development upon formation of stagnant pockets likely to collect debris.

(6)

The effect of the proposed plan or development upon the natural beauty and recreational advantage within the town.

(7)

The effect of the proposed plan or development upon the conservation of wildlife, marine life, and other natural resources.

(8)

The effect of the proposed plan or development upon the upland surrounding or necessarily affected by the plan or development.

The town commission, after public hearing, from the data and testimony shall make findings of fact and determine whether or not the proposed plan or development will materially affect any of the rights and interests of the public set out in this section. These findings of fact and determination shall be reduced to writing and shall be filed with the clerk of the town commission and, when so filed shall be open to the public. The town commission shall, if it desires, or at the request of any applicant or any objector, cause the testimony taken at public hearings to be reported and transcribed, which testimony, together with all engineering and other data considered by the town commission shall be filed with the clerk of the town commission, and, when so filed, shall be open to the public; however, the town commission may require the person requesting the reporting of the testimony to post with the town commission sufficient moneys to pay the costs of reporting and transcribing the same.

If the town commission shall find that the proposed plan or development will not materially affect adversely any of the rights and interests of the public set out in this section, the town commission shall deny the application and refuse to issue a permit for the proposed plan or development.

Said permit, if granted, shall not be effective until 30 days after the filing of the determination with the clerk and, if a petition for rehearing is filed, until the petition is heard and determined.

Any person, including the state, the county, and any municipal corporation in the county, if they are aggrieved by the findings of fact and determination of the town commission, may, within 30 days of such findings and determination, petition for rehearing, stating in their petition the grounds upon which the town commission has erred in its findings and wherein they are aggrieved by such findings. The town commission may, in its discretion, grant or deny such rehearing.

Any person including the state, the county, and any municipal corporation in the county who is aggrieved by the town commission's ruling on the petition for rehearing shall have the right to have the entire cause reviewed by the circuit court of the Ninth Judicial Circuit of Florida in and for the county as provided by law for other appeals in the circuit court.

(f)

The town commission may waive any or all of the requirements of subsections (b), (c), (d) and (e) of this section, and grant a permit upon payment of any fee authorized in this section if all the following conditions exist:

(1)

It appears from the application required in subsection (a) of this section, and upon an explanation of the purpose of the project to the town commission by the applicant or someone on his behalf that the rights and interests of the public will not be adversely affected by the project.

(2)

The total cost of the project, less the cost of drawing plans and the cost of transporting the equipment to the site of the project, will not exceed $100.00.

(3)

The town commission unanimously approves the waiver. Provided further that the provisions of subsection (f)(2) of this section shall not apply to reapplications as provided for in section 15-221.

Section 15-219. Conduct of hearings; employment, authority, compensation of examiner, reporter; findings, reports; hearings on exceptions to report.

The town commission may, if it deems it necessary, employ an examiner who shall conduct such of the public hearings provided for by section 15-218 as may be referred to the examiner by the town commission.

(a)

The town commission may enter an order referring the hearing to an examiner, which order shall be filed by the clerk of the town commission and shall become a part of the records of the town commission.

(b)

The examiner shall regulate all of the proceedings in every hearing before him, upon every reference; and he shall have full authority to examine the proponent, the objector and all witnesses, upon oath, touching all material matters relative to the application and also to direct the mode in which the matters requiring evidence shall be provided before him, and generally to do other acts, and direct all other inquiries and proceedings in the matter before him which he may deem necessary and proper to the justice and merits thereof and the rights of the parties. The examiner shall also administer the oath to all witnesses testifying before him.

(c)

The evidence in all examinations before the examiner shall be taken down in writing by the examiner or by some other person, by his authority, in his presence and shall be transcribed and filed with his report.

(d)

The examiner shall forthwith, after the public hearing, make his report to the town commission. This report shall be in writing and shall make findings of fact and recommendations as to the determination of the application, and attached to the report and made a part thereof, shall be all testimony taken at the public hearing together with all engineering and other data considered by the examiner in making his recommendations.

(e)

Such report shall be filed with the clerk of the town commission, and the clerk shall notify by mail or personal service all of the persons entitled under section 15-218 to notice of the hearing that the report has been filed. Any person, including the state, the county and any municipality within the county, if they are aggrieved by the findings of fact and recommendations of the examiner, may, within 30 days of the mailing of the notice of the filing of the report, file exceptions to the report, which exceptions shall specify wherein they are aggrieved and wherein the report and recommendations are erroneous. If no exceptions are filed within the time as above provided, the report shall be confirmed by order of the town commission. If exceptions are filed, they shall stand for hearing before the town commission within 30 days of the filing of the exceptions; and notice of the hearing, in writing by the clerk, shall be given to those persons entitled under the terms of this article to notice of the filing of the examiner's report.

(f)

At the hearing of exceptions to the examiner's report, the town commission shall consider the exceptions to the examiner's report and the record of testimony taken before the examiner, without presumptions as to the examiner's findings of fact and the engineering and other data, and shall either confirm the examiner's report or enter such other determination in the matter as is proper; the order shall be filed with the clerk of the town commission and shall be open to the public. After the entry of the order, the procedure for rehearing before the town commission and review by the circuit court shall be the same as heretofore provided where the town commission originally hears the testimony.

(g)

The compensation of the examiner and of all other persons necessary to conduct the hearings, including a reporter, shall be paid by the town commission.

Section 15-220. Right of upland owner to construct dock or wharf, preserved.

The provisions of section 15-218 shall not deny the right of any upland owner to construct a dock or wharf in front of his upland as provided by the laws of the state, but the town commission may make reasonable rules and regulations for the construction of a dock or wharf in order to carry out the provisions and intent of this article.

Section 15-221. Time limits on permits; revocation for noncompliance with, violation of terms.

No permit shall be issued for more than a one-year period. Work under the permit must be commenced within six months from the date of issuance and shall be completed within one year from the date of issuance of said permit; and if the work is not commenced or completed within that period, reapplication shall be made to the town commission. For any noncompliance with or for violations of its terms, the permit may be revoked after notice of intent to do so has been furnished by the town commission and opportunity afforded within reasonable time for hearings on such noncompliance or violation.

Section 15-222. Authority to enforce findings and determinations.

The town commission shall have the power to enforce its findings and determinations by injunction or other legal process.

Section 15-224. Advisory committee; creation, function, membership.

For the purpose of assisting and advising the town commission, there is created an advisory committee. There shall be three members of the advisory committee to be appointed by the town commission from among the resident freeholders within the town commission for a term of two years; and the members shall serve without any compensation or remuneration whatsoever. Vacancies occurring on the committee shall be filled by the town commission.

Section 15-225. Penalties; remedies.

(a)

Any person convicted of violating any of the provisions of this article, or who shall fail to abide by and obey all orders and resolutions promulgated as provided by this article, shall be deemed guilty of a misdemeanor of the second degree, punishable as provided by general law.

(b)

The provisions of this article and all rules adopted or enforced under this article are deemed to be provisions of local law as contemplated under F.S. § 403.182(8). Therefore, all remedies of the department of environmental regulation under F.S. ch. 403 are available and may be used by the town commission in enforcing any provisions of this article and rules and orders promulgated under this article.

Section 15-226. Purposes declared public.

It is determined by the legislature of the state that the purposes of this article are declared and found to be for a good and valid purpose, and the town commission is authorized and empowered to budget and expend in each fiscal year such funds as may be deemed necessary to meet the requirements to carry out the purposes of this article. Such funds shall be appropriated from the general revenue fund.

Section 15-228. Determination of natural landward extent of waters for regulatory purposes.

It is recognized that the levels of waters in the town naturally rise and fall, depending upon hydrological, meteorological and geological circumstances and features. The natural rise and fall of the waters is essential to good water quality, but often makes it difficult to determine the natural landward extent of the waters. The town commission may enact new rules, or amend or enforce existing rules, establishing a method of making such determinations, based upon ecological factors which represent these fluctuations in water levels. Ecological factors include, but are not limited to, hydrologic and hydrographic systems and botanical and geological indicators. The landward extent of waters shall have no significance with respect to sovereign ownership. The grant of authority continued in this section shall be supplemental and additional to authority conferred upon the town commission by other laws, and shall not be construed as in derogation of any existing authority.

(Code 1999, § 78-101; Ord. No. 95-14, § 1, 7-11-1995)