STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

In re: The application of ) Bernard Berkley for a permit ) to bulkhead and fill lands )

bordering Biscayne Bay ) CASE NO. 75-076

) TIITF File No. 13-12-2809 )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings, by its duly designated hearing officer, K. N. Ayers, held a public hearing in the above styled cause on June 30, 1975 in Miami, Florida.

APPEARANCES

For Petitioner: Thomas G. Pelham, Esquire

Brown, Smith, Young and Pelham, P.A. Post Office Box 1833

Tallahassee, Florida 32302

For Florida Steve Barber

Board of Trustees: Internal Improvement Trust Fund

1. By this application Bernard Berkley seeks a permit so as to authorize the installation of approximately 722 linear feet of seawall along the existing bulkhead line in Biscayne Bay, and authorization to fill this landward of the seawall. No dredging is requested in Biscayne Bay. The purpose of the proposed filling is for the erection of multi-family dwelling structure. All material will be brought in from the upland areas, and none will cone from the submerged lands of Biscayne Bay. It is proposed to contain the surface water that falls on the land in ground soakage pits and catch basins from which the water will filter into Biscayne Bay. The construction of the seawall is proposed to be of pre-cast, pre-stressed concrete piling driven on ten foot centers with concrete slabs on the backside of the piling ten feet long. It is proposed to install rip-rap along the seawall as described in the report submitted by Dr. Howard J. Teas on page 10 of Exhibit 6.

   
   

2. The property in question was conveyed to Berkley's immediate predecessors in title by the Trustees in 1964 pursuant to a contract for land purchase executed in 1961. The Trustees contracted to sell, and sold, the property to Berkley's predecessor in title after receiving the buyer's application to purchase which expressed the buyer's intent to bulkhead and fill the property. At the time in question all submerged land sold by the Trustees was with the understanding that the property would be bulkheaded and filled.

   
   

3. This property is the only privately-owned submerged land in the area that has not been bulkheaded and filled to the bulkhead line. The shoreline of the property is recessed between the lands immediately to the north and south which have been filled to the bulkhead line. As a result of the indented shoreline and the land fills on either side, the property acts as a cul-de-sac trapping some trash and debris.

   
   

4. On the existing shoreline of the property in question concrete rubble has been placed apparently for the original purpose of preventing erosion. There are scattered offshore grass beds in the vicinity and this area is now quite productive of fish and bird life. If the proposed bulkhead is installed this area would be filled and replacement of the fish and bird life thereby lost would depend upon the efficacy of the rip-rap construction at the new bulkhead. Addition of rip-rap at the existing shoreline would better serve to improve the water quality of Biscayne Bay and would not reduce the area of the Bay waters as would this application.

   
   

   CONCLUSIONS OF LAW

   
   

5. In Petitioner's pre-hearing statement the contention was made that the Biscayne Bay Aquatic Preserve Act, Section 258.165, Florida Statutes, was superseded by Chapter 75-172, Laws of Florida. The latter is the Florida Aquatic Preserve Act, and Petitioner contends that this act superseded the Biscayne Bay Aquatic Preserve Act. Petitioner contends that Section 258.39 of Chapter 75-172, Laws of Florida, in listing the 31 aquatic preserves further states

   
   

   "as hereinafter described, with the exception of privately held submerged lands lying landward of established bulkhead . . . are hereby declared to be aquatic preserves."

   It is the Petitioner's position that this excludes those lands in private ownership from the Biscayne Bay Aquatic Preserve Act.

   Even if the Petitioner's contention in this respect is correct, that would still not provide him with the authority to erect the bulkhead that would be necessary to fill the land which, if his contention is correct, he would need no permit. However, Section 258.39, Florida Statutes, in defining the boundaries of the 31 preserves included in that act, in sub-paragraph 11 thereof, defines the aquatic preserves of Biscayne Bay-Cape Florida to Monroe County Line Aquatic Preserve. Therein it specifically exempts therefrom those lands and waters as described in Section 258.165, Florida Statutes, which is the Biscayne Bay Aquatic Preserve Act. Accordingly, the Biscayne Bay Aquatic Preserve Act is expressly excluded from Chapter 75-172, Laws of Florida.

   
   

6. Section 258.165(3) provides:

   
   

   "no further dredging or filling of submerged land of the preserve shall be approved or tolerated by the Board of Trustees except:

   
   

   1. Such minimum dredging and spoiling as may be authorized for public navigation projects or for such minimum dredging and spoiling as may be constituted as a public necessity, or for preservation of the bay according to the expressed intent of this section.

      
      

   2. Such other alteration of physical conditions as may be necessary to enhance the quality or utility of the preserve.

      
      

   3. Such minimum dredging and filling as may be authorized for the creation and maintenance of marinas, piers, and docks, and their attendant navigation channels and access roads. Such projects may only be authorized upon a specific finding by the Board of Trustees that there is assurance that the project will be constructed and operated in a manner that will not adversely affect the water quality of the preserve. This paragraph shall not approve the connection of upland canals to the waters of the preserve.

   4. Such dredging as is necessary for the purpose of eliminating conditions hazardous to the public health, or for the purpose of eliminating stagnant waters, mudflats, islands, and spoil banks, the dredging of which would enhance the aesthetic quality and utility of the preserve and be clearly in the public interest as determined by the Board of Trustees."

      
      

7. Inasmuch as there is no navigation project herein involved subsection 1 above is not applicable. Similarly, since there are no marinas, piers or docks involved, sub-paragraph 3 above is not applicable. Inasmuch as no dredging is herein involved, sub-paragraph 4 above quoted is not applicable. This leaves only sub- paragraph 2 above, which is "such alteration as may be necessary to enhance the quality or utility of the preserve." The utility of the preserve would be enhanced by the installation of the rip-rap construction. However, as noted above, this would be more beneficial to the preserve if the rip- rap were placed at the existing high water mark. There was no evidence that the property as it now exists causes degradation of the preserve due to surface water runoff, or for any other reason. No evidence was submitted to support a finding that the installation of a bulkhead at the approved bulkhead line is necessary to enhance the quality or utility of the preserve. Absence of such a showing of necessity, it would appear that the requirements of the statutes are not met.

From the foregoing it is concluded that the applicant has failed to show that the proposed alteration in the vicinity of Broad Causeway and Biscayne Bay are necessary to enhance the quality or utility of Biscayne Bay. It is, therefore

RECOMMENDED that the application of Bernard Berkley be DENIED.

ENTERED this 30th day of July, 1975, at Tallahassee, Florida.

K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Thomas G. Pelham, Esquire

BROWN, SMITH, YOUNG and PELHAM, P.A.

Post Office Box 1833 Tallahassee, Florida 32302

James R. Brindell, Esquire General Counsel

Department of Environmental Regulation 2562 Executive Center Circle, East Tallahassee, Florida 32301

Steve Barber, Esquire Legal Section

Department of Natural Resources Brock Building

Tallahassee, Florida 32304

================================================================= AGENCY FINAL ORDER

=================================================================

BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION

Respondents.

/

FINAL AGENCY ORDER

This cause having come on for review by the undersigned, authorized to render final agency action, for final agency action and having heard the arguments of counsel, reviewed the record, and noting that the delay in cause resulted from settlement negotiations between the parties and a request for continuance from a previous agenda by the Applicant and being otherwise advised in the premises enters the following Orders:

1. The hearing examiner's Order recommending denial of the subject application is adopted subject to additional grounds. and/or modifications relating to the examiner's Conclusions of Law and Findings of Fact.

   
   

2. Modification of the hearing officer's recommended order to further deny the application without prejudice on the ground that no local approval by the City of North Miami of the Berkley application was properly secured as required by Section 253.124 (2), Florida Statutes.

   
   

3. Modification of the hearing officer's recommended order to further deny the application on the ground that neither a hydrographic assessment of the project revision introduced at the June 30, 1975 hearing, has been conducted, nor has there been a specific finding by the local authority that no harmful or

   increased erosion, shoaling of channels, or stagnant areas of water will be created thereby as a result of the project design. Neither a biological survey nor a hydrographic assessment, pursuant to Chapter 253.124, Florida Statutes, relating to the project has been performed that was introduced into evidence by the Applicant.

   
   

4. Modification of the hearing officer's recommended order to the extent that only Chapter 253, Florida Statutes, permit requirements were decided, and any approval of this permits subject to certification under Section 401 PL-92-500 and Chapter 403, Florida Statutes. Although some evidence was introduced as to water quality, there is no evidence that was reviewed by the Department of Pollution Control. The evidence was that by letter of November 4, 1974, the Department of Pollution Control stated they did not intend to certify the proposed project since water quality degradation was expected. They recommend that the Applicant stabilize the existing shoreline with rip-rap and dispose of stormwater runoff by on site methods.

   
   

5. Modification of the hearing officer's recommended order to add as an additional or alternative ground, paragraph three (pp. 4-9) of the "Exceptions for Recommended Order" filed by the State and inadvertently labeled "State of Florida Department of Environmental Resources."

   
   

6. Modification of the hearing officer's recommended order to subject the right to fill under Chapter 253.124 (2), if approved, to release of any undivided interests reserved in the submerged land deeds No. 22704-A (647-13) and any other deed covering the property to be filled.

   
   

7. The right to fill was a separate process as of 1957, and while there may have been an understanding by the Trustees' representatives, this right did not exist in perpetuity and without qualification particularly where it appears the applicant's predecessor sought to fill under the Butler Act rather than apply for a state permit, nor does it appear that Askew v. Taylor, 299 So.2d 72 (Fla. D.C.A. 1st 1974) is applicable to this application. Kirk v. Gables-by-the-Sea, 251 So.2d 880 (Fla.

   D.C.A. 1st 1971).

   
   

8. It is expected that the project will have significant material adverse effects on marine biological resources, and in fact the Florida Game and Fresh Water Fish Commission report of September 12, 1974, specifically recommends against this filling in Biscayne Bay.

9. The project is in conflict with the spirit and intent of Chapter 258.165, Florida Statutes and is expressly prohibited by Section 258.165 (3)(b), Florida Statutes; Further, the legislature has declared, by enactment of specific special legislation that it is an overriding public necessity that the Biscayne Bay Aquatic Preserve, as defined in Sec. 258.165(2)(a), Florida Statutes, be preserved in its "essentially natural condition so that its biological and aesthetic values may endure for the enjoyment of future generations . . ." and by requiring hearings prior to the department allowing any further dredging or filling (Sec. 258.165 (3)(b) 4., Florida Statutes) and substantially restricting any further dredging and filling activities (Sec. 258.165 (3)(b), Florida Statutes.) A duty devolves upon this department to follow the standards set forth in such legislation particularly where a project will have significant adverse effects upon marine biological resources.

This written order is entered January 28, 1976 pursuant to my oral order of denial entered Friday, January 23, 1976.

JOSPEPH W. LANDERS, JR.

Secretary

Docket for Case No: 75-000076

Orders for Case No: 75-000076