STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM S. and NELLIE B. BYRD, )

)

Petitioners, )

)

vs. ) CASE NO. 79-350

) STEV-AM PROPERTIES and STATE OF ) FLORIDA DEPARTMENT OF )

ENVIRONMENTAL REGULATION, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, G. Steven Pfeiffer, held a public hearing in the above matter on May 3, 1979, in Cocoa Beach, Florida. The following appearances were entered:

APPEARANCES

For Petitioners: William S. and Nellie B. Byrd, pro se 1480 Bayshore Drive

Cocoa Beach, Florida

For Respondent: Segundo J. Fernandez, Esquire

Department of Environmental Regulation Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32301

For Respondent: Myron M. Stevens Stev-Am Post Office Box 518

Propoerties Merritt Island, Florida 32952

For Intervenor: Thomas Raber

Snug Harbor Homeowners Association, Inc.

25 Indian Village Trail Cocoa Beach, Florida 32931

During September, 1978, Stev-Am Properties ("Applicant" hereafter) submitted an application to the Florida Department of Environmental Regulation ("DER" hereafter) seeking a permit allowing construction of a dock or pier in the Banana River adjoining the Applicant's property in Brevard County, Florida. By letter dated December 7, 1978, DER issued a notice of intent to deny the application. The Applicant thereafter submitted modifications to its application, and by letter dated January 11, 1979 DER issued its notice of intent to issue the permit. William S. and Nellie B. Byrd ("Petitioner" hereafter) filed opposition to the permit, and requested a hearing. On or about February 14, 1979, DER forwarded the matter to the office of the Division of

Administrative Hearings, and requested the assignment of a hearing officer and the scheduling of a hearing. The final hearing was scheduled to he conducted as set out above by notice dated February 21, 1979. The Snug Harbor Homeowners Association, Inc. filed a motion to intervene in the proceeding. None of the other parties objected to the motion, and it was granted on the record at the final hearing.

At the final bearing DER called Reese H. Kessler, Jr. an environmental specialist employed by DER as its only witness. The Applicant called the following witnesses: Velma Lee, an individual who resides near to the proposed project; and Myron Stevens, the Applicant's president. Thomas Raber, an officer of the Intervenor, testified on behalf of the Intervenor. The following individuals who reside near to the proposed project testified in opposition to issuance of a permit: Richard Thompson, Scott Gilbert, Charles Tongring, I. C. Thompson, Robert Bunch, Christie Michael, John Langhaar, Mrs. Charles Tongring, and Renae Lehman. The following individuals who reside, or who plan to reside, in close proximity to the proposed project testified in favor of issuing a permit: Peg Shinkle, Lawrence Las, Daniel Door, William E. Peacock, Richard B. Egan, Bob Dickson, and Herman Kaassat. DER's Exhibits 1-8, Petitioner's Exhibit 1, Applicant's Exhibit 1, and Intervenor's Exhibits 1-3 were all offered into evidence and were received.

FINDINGS OF FACT

1. The Applicant is a partnership which is developing a 48-unit condominium on property owned by the Applicant on the southeast and southwest corners of 28th Street South and Highway A1A in Cocoa Beach, Florida. The Applicant is in the process of constructing and completing 48 oceanfront condominium units east of Highway A1A. The Applicant plans eventually to develop 20 additional condominium units which would front on the Banana River on the Applicant's property west of Highway A1A. The Applicant has deeded a portion of its property west of Highway A1A to the condominium unit owners jointly. Through this proceeding the Applicant is seeking authority to construct a pier or dock into the Banana River on this property.

   
   

2. The Petitioners own and reside on property south of the Applicant's property west of Highway A1A.

   
   

3. The Intervenor is a voluntary association of homeowners in a subdivision known as Snug Harbor. The Snug Harbor subdivision is located approximately 4,000 feet north of the proposed dock. Many of the subdivision residents use the waters of the Banana River, including waters adjacent to the proposed dock, for recreational and other purposes.

   
   

4. The Banana River in the area of the proposed dock is approximately three miles wide. The main Banana River channel is approximately 1,500 feet west of the Applicant's shoreline. The Applicant originally proposed to construct a dock that would extend 270 feet from its shoreline into the Banana River. Twenty boat slips were proposed for construction along each side of the proposed dock. The shoreline in this area is vegetated with wax myrtles, buttonwood and pepper trees. The submerged land has shallow (three to four feet deep) sandy bottoms, densely vegetated by submerged grasses and other vegetation. These seagrasses stabilize the bottom, minimize cloudy conditions in the water, and provide valuable habitat for many aquatic creatures. This is a very productive marine area. A large number of boat slips in this shallow area would result in eventual deterioration of seagrass beds in the area, and a consonant reduction in viable marine habitat. DER accordingly issued a notice

   of intent to deny the original application. After discussing the matter with DER, the Applicant proposed to extend its dock 30 feet further into the Banana River, and to place 10 rather than 40 boat slips at the end, rather than along the sides of the dock. Since the seagrass vegetation extends approximately 250 to 300 feet out from the shoreline, this proposal would serve to minimize the project's impact upon the seagrass vegetation and upon the marine habitat.

   Provide appropriate restrictions are applied and adhered to, the environmental consequences of the proposed dock would be inconsequential.

   
   

5. In processing this permit application, DER solicited the opinion of the Florida Department of Natural Resources as required by statute. The Department of Natural Resources responded to the inquiry as follows:

   
   

   This is to advise you that a submerged land lease will not be required for the above-captioned application since it is considered non-income producing.

   
   

6. The proposed dock would extend 300 feat into the Banana River. The waters in this area are from 3 to 4 feet deep. The project would have no impact upon large boat traffic in the Banana River since the main river channel is more than 1,000 feet away from the end of the proposed dock. Small boats do, however, utilize these shallow areas. Several local residents testified at the heating that they would be forced to take their boats further out into the river where currents and winds are more severe, and where boating is note hazardous. Small boats, now able to stay very close to the shoreline in this area, would be forced to go further into the river in order to go around the proposed dock. Under windy, tough water conditions, this would be an undeniable hazard. Under such conditions, however, small boat users should avoid using the river, even close to the shoreline. The navigational impact of the proposed project is distinct, but not overbearing. There are two other docks approximately 250 to

   270 feat long in the area just north of the Applicant's property and small boat navigation is already impacted by these docks.

   
   

7. One member of the public present at the hearing indicated that various employees of DER had demonstrated prejudice in favor of the proposed project, and that accordingly the permit should be denied. Beyond the allegation, no testimony or statements were offered in support of this contention.

   
   

8. In order to minimize the environmental impacts of navigational impacts of the proposed project, it is appropriate that restrictions be imposed in connection with the issuance of a permit. Appropriate restrictions would be as follows: (a) To applicant has removed vegetation from a portion of its shoreline in the area of the proposed dock. The applicant should be required to revegetate the shoreline, and has stipulated that it would do so. (b) The dock should be adequately lighted so that it would be visible to boat traffic at night. (e) No docking should be permitted on the dock except at the slips located at the end of the dock. No additional slips should be permitted for construction. (d) Living aboard any vessels docked at the facility should be prohibited. (a) No sewage or garbage should be discharged from the deck, and trash receptacles should be provided.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and over the parties. Sections 120.57(1), 120.60, Florida Statutes.

10. DER Rule 17-4.29(6), Florida Administrative Code provides as follows:

    
    

    The department [DER] shall not issue a

    permit unless the biological survey, ecological study and hydrographic survey, if any, together with information and studies provided by the applicant affirmatively show:

    1. that such activity will not interfere with the conservation of fish, marine and wildlife or other natural resources, to such an extent as to be contrary to the public interest, and will not result in the destruction of oyster beds, clam beds, or

       marine productivity, including, but not limited to, destruction of natural marine habitats, grass flats suitable as nursery or feeding grounds for marine life, and established

       marine soils suitable for producing plant growth of a type useful as nursery or feeding grounds for marine life or natural shoreline processes to such an extent as to be contrary to the public interest, and

    2. that the proposed project will not create a navigational hazard, or a serious impediment to navigation, or substantially alter or impede the natural flow of navigable waters, so as to be contrary to the public interest.

The applicant has provided reasonable assurance that its proposed dock will not adversely affect water quality in the area, will not substantially impact marine vegetation or marine animal habitat, and will not create a navigational hazard or serious impediment to navigation.

RECOMMENDED ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That a permit be issued to the Applicant allowing construction of the proposed dock as set forth in the Applicant's amended application, subject to restrictions set forth in Paragraph 6 of the Findings of Fact herein.

RECOMMENDED this 31st day of May, 1979, in Tallahassee, Florida.

G. STEVEN PFEIFFER Assistant Director

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Segundo J. Fernandez, Esquire Department of Environmental

Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301

Myron M. Stevens Post Office Box 518

Merritt Island, Florida 32952

William S. and Nellie B. Byrd 1480 Bayshore Drive

Cocoa Beach, Florida

Thomas Raber

25 Indian Village Trail Cocoa Beach, Florida 32931

Docket for Case No: 79-000350

Orders for Case No: 79-000350