STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BEACON TWENTY-ONE CONDOMINIUM ) OWNERS ASSOCIATION, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 79-2272

)

STATE OF FLORIDA, ) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, and UNDERWOOD )

MORTGAGE AND TITLE CO., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings, on February 14, 1980.

This hearing was conducted in the Commission Chambers, City Hall, 121 South Flagler Avenue, Stuart, Florida.

APPEARANCES

For Petitioner: James Stuckey, Esquire

Harvin and Bower, P.A. Stuart Plaza, Suite 22 951 Colorado Avenue

Stuart, Florida 33494

For Respondent, Randall E. Denker, Esquire

Department of Department of Environmental Regulation Environmental 2600 Blair Stone Road

Regulation: Tallahassee, Florida 32301

For Respondent, Loren E. Bodem, Esquire

Underwood Law Offices of Thurlow and Thurlow Mortgage Post Office Box 106

Company: Stuart, Florida 33494 ISSUE

The issue here presented concerns the entitlement of the Respondent, Underwood Mortgage and Title Co. (Underwood) as developer of River Club Condominium, Martin County, Florida, to be granted a permit from the State of Florida, Department of Environmental Regulation (Department) , to construct a pier facility with fifty (50) berths extending from its property into the St. Lucie River and to be permitted to remove approximately four hundred (400) cubic yards of fill from Warner Creek, a tributary to the St. Lucie River located adjacent to the River Club Condominium.

FINDINGS OF FACT

1. Respondent, Underwood Mortgage and Title Co., has filed a two-part application requesting a permit from the Respondent, State of Florida, Department of Environmental Regulation, to conduct certain activities contained in the application. The first part of the application asks that the Respondent, Underwood, be allowed to construct a pier facility extending into the St. Lucie River adjacent to a condominium development known as the River Club Condominium. The condominium and St. Lucie River are located in Martin County, Florida. The proposal calls for portable water service and twenty to thirty amp electrical service to be provided to the dock area. The pier facility would provide fifty

   (50) boat berths for tenants of the River Club Condominium. The dock facility would accommodate boats of up to thirty-five feet in length. There are additional areas in the dock which would allow tenants of the River Club Condominium and their guests to fish from the dock and to pass their time by sitting on the dock. The application does not call for fuel services for the boat craft or for live aboard on those craft and it is not contemplated by the application that there would be sewage pumped out from the pier into the water body.

   
   

2. The second part of the application requests a permit which would allow the removal of a sand spit located in Warner Creek, a tributary to the St. Lucie River, adjacent to the River Club Condominium property. The estimated amount of material to be dredged is four hundred (400) cubic yards.

   
   

3. The original reguest contained an application for permit to construct a separate walkway on the southwest shore of Warner Creek but that request has been withdrawn.

   
   

4. The Petitioner, Beacon Twenty-One Condominium Owners Association, Inc., is a member of a nonprofit corporation made up of tenants of the Beacon Twenty- One Condominium which is located adjacent to River Club Condominium with property fronting Warner Creek which affords access to Warner Creek. This group is opposed to the permit request made by Respondent Underwood as that permit request is presently constituted. Consequently, the Petitioner has filed a Petition in opposition to the permit request, leading to the de novo hearing conducted in this cause on February 14, 1980.

   
   

5. The hearing was occasioned in view of the Respondent, Department of Environmental Regulation's Statement of Intent to issue the permit requested, which Statement of Intent to issue was entered on October 17, 1979. A copy of the Statement of Intent to issue may be found as Respondent, Department of Environmental Regulation's Exhibit 4 admitted into evidence. The challenge Petition is by letter drafted by Ed Thompson, who was the President of the Petitioner at the time the Petition letter was entered. The date of the Petition letter is October 29, 1979.

   
   

6. The County Commissioners of Martin County, Florida, have indicated that they are without objection to the project as now proposed. In addition, the State of Florida, Department of Natural Resources, stated that it is without objection to the project as proposed and made this position known through correspondence of January 25, 1979, a copy of which may be found as the Respondent, Department of Environmental Regulation's Exhibit 3 admitted into evidence.

   
   

7. Respondent Underwood's Exhibit "A" admitted into evidence is an aerial photograph taken by the Tax Assessor's office of Martin County and it depicts

   those buildings associated with River Club Condominium in a yellow color and the white overlay on this exhibit shows the proposed dockage. Respondent Underwood's Exhibit "B" admitted into evidence shows a drawing to scale of the shoreline at the project site. The lines of water depth below the mean low water line which would be available to accommodate the draft of the boats using the dockage and water surrounding that dock are also shown. The green color corresponds to three feet, brown corresponds to four feet and red corresponds to five feet or more. Respondent Underwood's Exhibit "C" admitted into evidence is the same as Exhibit "B" with the addition of an overlay drawn in a dark blue color which shows the proposed dock and dock area.

   
   

8. The pier if constructed would be a distance of approximately 5,680 feet from the outer dock area, easternmost portion of the pier, to the eastern bank of the St. Lucie River. It is approximately 3,000 feet from that dock to the main channel of the Okeechobee waterway/intercoastal channel. Those boats coming out of Warner Creek from the area of the existing dock owned by the Petitioner pass within approximately two hundred (200) feet of the proposed dock of Respondent Underwood and would be operating in a depth of water of approximately five (5) feet or more when passing the pier.

   
   

9. The sand spit which Respondent Underwood is requesting to remove is depicted in its Exhibit "D" admitted into evidence which is a photograph which has been blown up to show the nature of that spit. The removal of the spit as now requested would cause the creek bottom to be lowered to minus four (- 4) feet mean sea level, which is a differential of three (3) inches from the mean low water line in the area of Warner Creek where the spit is being dredged. The proposal calls for the removal of four hundred (400) cubic yards of materials; however, the amount to be removed to alleviate the spit has increased since the time of the application due to the events associated with Hurricane David and upland erosion. It is proposed that the dredging to be done will be done with an accompanying silt screen being utilized during the time of the dredging and the materials to be dredged will be used on the site of River Club Condominium, which is adjacent to the dredge work area.

   
   

10. In reviewing the project, the Respondent, Department of Environmental Regulation, performed a biological appraisal and a report was rendered by the employee performing that function. The contents of that report may be found in Respondent, Department of Environmental Regulation's Exhibit 1 admitted into evidence.

    
    

11. The biological inspection was made in March, 1979, and was accomplished by the employee snorkeling in the area of Warner Creek to examine the waters and the bottom of the creek and the employee taking depth soundings from the mouth of Warner Creek up to the area of Warner Creek which is adjacent to Beacon Twenty-One Condominium.

    
    

12. The observations of that employee and those of the applicant's witness establish that this project will not interfere with navigation in Warner Creek or in the St. Lucie River. The observations of the Department's employee establish that there is a distinct flow of water through the area at the mouth of Warner Creek which allows pollutants in that creek to be swept away into the St. Lucie River and the current is strong enough to cleanse the area around the proposed dock project site to the extent that no degradation of the water in the area of the project site can be expected.

13. The areas of the project are located in Class III waters and those waters are not part of an aquatic preserve, nor are they "Outstanding Florida Waters."

    
    

14. Warner Creek is a natural body and the lower reaches of that water body are inter-tidal to the St. Lucie River. The lower reaches of the creek are brackish in character being inter-tidal with the St. Lucie River. The upper reaches of the creek are fresh water in character.

    
    

15. The sandbar spit to be removed is vegetated with transitional species of saltgrass and sea purslane. The base of the sandbar is bordered by a fringe of white mangroves and Brazilian pepper which in turn are bordered by a steep bank that rises five to six feet to the uplands. The soils in the sandbar are made of coarse sand.

    
    

16. The soils in the general area of Warner Creek vary from compacted sand in the one to three-foot depths of the shoaled areas to layers of partially consolidated organic muck in the depths four to five feet. (The depths mentioned refer to depths at mean low water.)

    
    

17. The brackish nature of the St. Lucie River which has been mentioned before is due to the saltwater which the river receives from the Atlantic Ocean via the St. Lucie Inlet and fresh water which is received by virtue of natural storm water runoff and from the several flood control district canals draining Lake Okeechobee and farmland to the west.

    
    

18. The shoreline of the St. Lucie River rises eight (8) to twelve (12) foot above the water line and it is characterized by sandy beach inter-tidal zones bordered by overhanding terrestrial vegetation with transitional vegetation made up of grasses, Australian pine, cabbage palm, sea grape and corn vine and clusters of red mangroves which occur intermittently along the shore line. There is occasional Spartina forming a narrow fringe at the high water line.

    
    

19. Submerged grasses are not a normal occurrence in the river due to its turbid and tannic condition. There is some Cuban shoal weed which does appear in sparse patches within the shallow sandy areas of the river.

    
    

20. The bottom soils in the shallow area which is the area zero to four

    (4) feet in depth, consists of sand intermixed with other low to moderate concentrations of muck. The area five (5) feet or deeper consists of partially consolidated muck and deteritus intermixed with shell fragments.

    
    

21. Some of the species of fauna collected in the biological survey included Decapods (grass shrimp), Palaemonetes intermedius; pink shrimp Panaeus duorarum; blue crab, Callinectes sapidus; (Molluses) virgin nerite, Neritina virginea; Venus clam, Anomalocardia auberiana; mussel Ischaduim recurvum; oyster; (Fish) pinfish, Lagodon rhomboides.

    
    

22. Observations made by the person performing the biological assessment on behalf of the Respondent Underwood demonstrate that no live oysters are found in the area of the proposed dock in view of the desalinization which occurs due to the inter-tidal activity between Warner Creek and the St. Lucie River.

    
    

23. Removal of the sand spit would cause the removal of the vegetation associated with that feature, nonetheless its removal would improve navigation and flow patterns associated with Warner Creek.

24. Any turbidity problems that would be associated with the construction and utilization of the project are not expected to be violative of standards. This is due to the nature of the bottom of the water bodies in the area of the proposed project.

    
    

25. No toxic materials in excess of standards are expected to be present at the project site.

    
    

26. In the past manatees have been observed in the area of the St. Lucie River and the project as proposed would not be expected to deter the manatee in its efforts to gain entrance into Warner Creek if this effort was made; however, manatees have not been observed in the area of the project in the prior six (6) to eight (8) months leading up to the hearing date and nothing in the hearing leads to the conclusion that the project as proposed, notwithstanding the introduction of boat craft into the river at that area, constitutes such a risk for the manatee that the project should not go forward. This determination is supported by the fact that Warner Creek does not provide significant food resources for the manatee.

    
    

27. It was shown that a certain amount of soil has eroded from the uplands into Warner Creek by being washed into the creek by rains and this has caused a confluence which is the sand spit sought to be removed, and the potential exists that soil may be introduced into the water at the area of the dock now proposed for construction.

    
    

    CONCLUSIONS OF LAW

    
    

28. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action.

    
    

29. During the course of the hearing, upon inquiry, it was determined that the true Petitioner to this action was as reflected in the style of this Recommended Order and the original Petitioners, Ed Thompson and Mr. and Mrs. M.

    L. Jayne, withdrew as parties and the current Petitioner was substituted in this action, with the agreement of the Respondents.

    
    

30. The Petitioner, Beacon Twenty-One Condominium Association, Inc., is found to have standing to bring this action.

    
    

31. Based upon the facts found in this Recommended Order, it is concluded as a matter of law that the activities which the Respondent, Underwood Mortgage and Title Co., would undertake pursuant to a permit to construct the dock and to dredge materials from Warner Creek by removing the sand spit, would not interfere with the conservation of fish, marine and wildlife or other natural resources, to an extent to be contrary to the public interest; and would 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 and established marine soil suitable for producing plant growth of a type used for nursery or feeding grounds for marine life or natural shoreline processes to the extent as to be contrary to the public interest. Moreover, the project as applied for would not result in any violation of water quality standards in the Class III waters. The project would not create a navigational hazard or 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 dredging would be of benefit to the public. Finally, the necessary reasonable assurances have been given to the State of Florida, Department of

Environmental Regulation, to allow the project to be permitted, subject to appropriate conditions. See Chapters 253 and 403, Florida Statutes, and Chapters 17-3 and 17-4, Florida Administrative Code. It is, therefore,

RECOMMENDED:

That the application for permit to construct the dock/pier facility with its attendant fifty (50) boat berths and the accompanying request for permit to dredge four hundred (400) cubic yards of fill material from Warner Creek be GRANTED, subject to the applicant providing the necessary safeguards in the construction and utilization phases associated with the dockage, which safeguards would retard inordinate amounts of soil materials from the uplands being introduced into the water body where the dock is being constructed. It is further RECOMMENDED that the permit to remove the fill material allow sufficient authority for the applicant to remove in excess of four hundred 400 cubic yards of fill if that is necessary to effectively dredge out the entire sand spit spoken to in the application. 1/

DONE AND ENTERED this 14th day of March, 1980, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

ENDNOTE

1/ The Petitioner and the Respondent, Underwood Mortgage and Title Co., in the person of their counsel have submitted proposed Findings of Fact and Conclusions of Law to the Hearing Officer, and to the extent that those proposals are consistent with the findings in this Recommended Order, they have been utilized in the preparation of the Recommended Order. To the extent that those proposals are inconsistent with the Recommended Order, they are hereby rejected.

COPIES FURNISHED:

James Stuckey, Esquire Mr. & Mrs. M. L. Jayne

Harvin and Bower, P.A. 1906 N.E. River Court

Stuart Plaza, Suite 22 Jensen Beach, Florida 33457 951 Colorado Avenue

Stuart, Florida 33494

Randall E. Denker, Esquire

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

Loren E. Bodem, Esquire Thurlow and Thurlow Post Office Box 106 Stuart, Florida 33494

Docket for Case No: 79-002272

Orders for Case No: 79-002272