STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ERICH SCHLACHTA and ESTER )

SCHLACHTA, husband and wife, )

)

Petitioners, )

)

vs. ) CASE NO. 80-2258

) CITY OF CAPE CORAL, PARKS AND ) RECREATION DEPARTMENT and STATE ) OF FLORIDA, DEPARTMENT OF )

ENVIRONMENTAL REGULATION, )

)

Respondents )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on March 25, 1981, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings, in Cape Coral, Lee County, Florida. This case arose on a petition for formal hearing filed by Erich and Ester Schlachta (Petitioners) upon notification of the Petitioners by the Department of Environmental Regulation (Department) of its intent to grant a permit for the construction of a boat ramp by the City of Cape Coral (City) on property adjoining the Petitioners' residence.

APPEARANCES

For Petitioners: M. Daniel Sasso, Esquire

1413 Cape Coral Parkway Post Office Box 1422

Cape Coral, Florida 33904

For Respondents: Richard Roosa, Esquire City of Cape 1714 Cape Coral Parkway Coral Post Office Box 535

Cape Coral, Florida 33904

Department of Paul R. Ezatoff, Jr., Esquire Environmental Assistant General Counsel Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

The following issues developed during the course of the proceeding: Whether the proposed project involved filling as well as dredging;

If the proposed project involved filling, whether Section 253.124, Florida Statutes, would be applicable; and

Whether the procedural prerequisites of Section 253.124, Florida Statutes, had been met by the applicant.

During the proceedings the Department of Environmental Regulation introduced and had received into evidence its Exhibits 1 through 5. The Petitioner's introduced and had received into evidence Exhibits 1 through 13. The City of Cape Coral introduced and had received into evidence its Exhibit 1. The City called Richard Morgan, an employee of Johnson Engineering Company, consulting engineer for the City on the proposed project, and William Potter, Director of the City's Parks and Recreation Department, which was the proponent of the proposed project. Both witnesses testified regarding preparation and submission of the application for the proposed project. The Department offered the testimony of William D. Key, an employee of the Department, regarding the Department's consideration of the proposed application. Key's testimony was presented by deposition pursuant to the stipulation of the parties. Ester Schlachta testified on behalf of the Petitioners together with Marvin Jenkins. The Schlachtas' residence adjoins the property upon which the proposed project would be constructed. Marvin Jenkins lives in the neighborhood, 13 blocks from the site of the proposed project.

Subsequent to the hearing, the Petitioners and the Department filed proposed findings of fact and proposed conclusions of law. To the extent that the parties' proposed findings of fact are not incorporated in this recommended order, they are rejected as being either irrelevant or immaterial to the issues presented; not supported by competent, substantial evidence adduced at the hearing, or not based upon the most reliable and credible evidence; or they were determined to be conclusions of law.

FINDINGS OF FACT

1. The Petitioners are, and at all times material hereto were, owners of residential real property adjoining the site of the proposed construction to the northwest.

   
   

2. The City of Cape Coral is, and at all times material hereto was, the applicant for the permit from the Department of Environmental Regulation for the construction of the proposed project, which is a public boat ramp. This boat ramp is located within the corporate limits of the City of Cape Coral.

   
   

3. The Department of Environmental Regulation is, and at all times material hereto was, the agency of the State of Florida which has the authority to issue permits for dredging, filling or other activities of a similar nature to include construction of boat ramps on the shores or banks of navigable waterways of the state.

   
   

4. The Caloosahatchee River is a navigable, Class III waterway of the State of Florida. Lands covered by the waters of the Caloosahatchee River at the location of the proposed project are submerged lands of the State of Florida.

   
   

5. The City applied to the Department on March 27, 1980, for a permit to construct a boat ramp on the Caloosahatchee River at the Cape Coral Yacht Club. A boat ramp currently is located at the site of the proposed project. The existing ramp was initially partially constructed in 1964, and subsequently a seawall was removed and the two existing seawalls projecting into the water were constructed in 1969.

   
   

6. The City's application was initially incomplete, lacking evidence of approval by the City Council. At the request of the Department, the City

   submitted additional information. The application as originally proposed contemplated dredging waterward of the mean high water line at the proposed project site. The dredged material was to be placed along a beach area adjacent to the proposed boat ramp, and the spoil would have projected waterward of the mean high water line. The proposed project was revised in September, 1980, to delete placing the dredged material on the adjacent beach. The revised project would retain the dredged material landward on the mean high water line until it had dried, at which time it would be removed from the site.

   
   

7. After the dredging described above has been completed, the revised project calls for the construction of a concrete boat ramp 42 feet wide and 58 feet long extending approximately 28 feet waterward of the mean high water line of the Caloosahatchee River. In addition, three timber poling walkways at the sides of and in the middle of the boat ramp will be constructed extending waterward of the mean high water line.

   
   

8. On May 10, 1980, Dan Garlick, an employee of the Department, conducted a Permit Application Appraisal and concluded the project would have an insignificant impact on biological resources or water quality, and would comply with Chapters 17-3 and 17-4, Florida Administrative Code. Garlick recommended approval of the project. David Key, another employee of the Department, conducted an on-site investigation and expressed concurrence with the findings contained in Garlick's report. Key also noted that no adverse impact on navigation was anticipated as a result of the project.

   
   

9. On July 1, 1980, the National Marine Fisheries Service and US Fish and Wildlife Service investigated the proposed project. These federal agencies had no objection to the proposed boat ramp or the dredging aspects of the proposed project. These agencies had no objection to the proposed spoil basis located in the upland area of the site required to dry the dredged material. These agencies objected only to placement of the dredged material on the adjoining beach, which proposal was deleted in the City's revised plan.

   
   

10. Petitioners introduced no expert testimony relating to the effects of the proposed project on water quality, marine resources or navigation. Lay testimony was received regarding conditions around the site of the existing boat ramp. Garbage, dead fish and flotsam accumulate at or near the site in the water and on the land. The existing seawalls extending perpendicular from the shore prevent matter in the water from being flushed by the current and tides. In the proposed project the seawall to the right of the existing boat ramp would not be removed. Prior to January, 1981, the existing ramp site was not regularly cleaned by the City. Since that date the area has been cleaned regularly; however, after weekends when the facility is most heavily used there are large quantities of refuse and garbage around the site.

    
    

11. The City has requested and received permission from and payment has been made to the Department of Natural Resources for use of sovereignty submerged lands and the removal of 215 cubic yards of fill.

    
    

12. After a review of the revised application, the Department gave notice of its intent to issue a permit for the proposed project by letter dated November 10, 1980. The Department based its intent to issue on a determination that the project would not adversely affect navigation, marine resources or water quality, provided the conditions set in the letter were met.

    
    

13. The Department's Exhibit 2 is the only documentation presented by the City reflecting the City Council's action on the application. Exhibit 2

    contains no findings by the local government that the proposed project would not violate any statute, zoning or ordinances; makes no findings that the project would present no harmful or increased erosion, shoaling of channels or stagnation of waters; and contains no findings that no material injury or monetary damage will result to adjoining land. The Petitioner's Exhibit 1, Minutes of the City Council for the City of Cape Coral Meeting of June 18, 1980, does not reflect that the final reports on the ecological effects of the proposed project were read into the record, and does not reflect that those reports were duly considered by the Council. It was at this meeting that final action on the application for permitting of the proposed project was presumably taken. However, the motion approved at that meeting did not authorize approval of the proposed project nor issuance of the permit. The motion empowered the Mayor to write a letter expressing approval. This motion presumable resulted in the letter of June 17, 1980, the Department's Exhibit 2, which was signed by the City Manager and not the Mayor.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Department of Environmental Regulation has authority to issue permits for the proposed project under the provisions of Sections 253.123,

    253.124 and 403.087, Florida Statutes.

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties and over the subject matter pursuant to Chapter 120. Florida Statutes.

    
    

16. The scope of hearing and proceeding is to determine whether the proposed project as revised meets the criteria stated in the statutes and rules for issuance of permits, whether the procedures required by the statutes and rules have been followed, and whether the permits should be issued.

    
    

17. The project meets the criteria stated in Sections 253.123, 253.124 and 403.087, Florida Statutes, for granting the permits with regard to preservation of marine life and water quality. The evidence shows that marine and aquatic life and water quality will not be adversely affected by the proposed project. The issue is whether the procedural criteria of Section 253.124, supra, have been met.

    
    

18. The Department asserts that its Chapter 253, Florida Statutes, authority to issue the permits springs from Section 253.123, supra, not Section 253.124, because the revised project would not involve the disposition of fill waterward of the mean high water line, and therefore does not involve an application for filling land. The facts presented do not support the Department's position.

    
    

19. "Filling" is defined by Rule 17-4.02(15), Florida Administrative Code, as disposition, by any means, of materials onto submerged lands or the transitional zones of submerged lands. "Submerged lands" are defined as those lands covered by the categories of waters listed in Rule 17-4.28(2), Florida Administrative Code, which include rivers and natural tributaries thereto. Rule 17-4.29, Florida Administrative Code, requires permitting of "fillings associated with construction and/or installation of activities described in this rule." Among the other activities described by this rule are boat ramps and similar launching facilities. See Rule 17-4.29(1)(a), Florida Administrative Code.

    
    

20. The plans proposed for the boat ramp would add a poured concrete ramp waterward of the mean high water line. This constitutes disposition by any

    means of material onto the submerged lands or the transitional zones of submerged lands. It is "filling' as defined by the Department's Rule 17- 4.02(15), Florida Administrative Code. This project involved both dredging and filling. Therefore Section 253.124, Florida Statutes, is specifically applicable to the application together with Section 253.124, Florida Statutes.

    
    

21. Section 253.124, Florida Statutes, requires that initial processing of a permit application pursuant to Section 253.124(1), supra, begins with the county commission when the project is in the unincorporated areas of a county, or with another authorized body when the project is in the incorporated areas of a county. Section 253.124(2), Florida Statutes, requires that the local government shall find that the project would present no harmful or increased erosion, shoaling of channels or stagnation of waters; and that no material injury or monetary damage will result to adjoining land. Further, the local government shall determine whether granting the permit and the construction done pursuant to it will interfere with the conservation of aquatic and marine life and other natural resources to an extent contrary to the public interests.

    
    

22. As a final step by local government, Section 253.124(3), Florida Statutes, requires that no permit shall be issued until the local government has all the required reports before it, and further requires that these reports shall be read into the record and duly considered at the same meeting at which the local government takes final action on the application for permit. These requirements are conditions precedent to approval of a permit application by the local government, which in turn is a prerequisite and condition precedent to approval of any application by the Department

    
    

23. The City's application was initially rejected by the agency for non- compliance with the procedural provisions concerning approval of the application by local governments. The City's response was the submission of the letter introduced as the Department's Exhibit 2. It is the policy of the Department to require procedural compliance with the provisions of Section 253.124, Florida Statutes. The Department apparently has receded from requiring the applicant to comply with these procedural prerequisites because of the deletion from the project of the proposal to place the dredged material on the adjacent beach below the mean high water line. However, the Department overlooked the fact that the placement of the concrete boat ramp upon the submerged waters of the state also constitutes filling under the provisions of Section 253.124, Florida Statutes, and its implementing rules.

    
    

24. The City Council failed to read the reports into the record and failed to find that the proposed project complied with local laws and ordinances, and it is questionable from the minutes whether the City Council actually approved the project. However, the evidence presented at the hearing reflects that the proposed project meets the criteria established for preserving water quality and for protection of marine and aquatic life and resources.

    
    

25. The application fails to comply with the procedural prerequisites, although there are no substantive grounds for denial. As a result, the application is incomplete; however, this procedural failure is not fatal to the application because the applicant can cure the defect.

    
    

26. When the Department receives evidence that the City Council has processed the application in accordance with the provisions of Section 253.124, Florida Statutes, and has approved the project, the Department may reconsider the completed application of this record regarding the substantive issues. The parties have had the opportunity to present evidence in a full and complete

hearing on the substantive issues of the proposal's effect on water quality pursuant to Chapter 403, Florida Statutes, and its effect on marine and aquatic life and resources pursuant to Chapter 253, Florida Statutes. Any further proceedings before the Department on this application should be limited solely to procedural issues arising under Section 253.124, Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the agency head withhold final action on the application for a reasonable period of time to permit the applicant to cure the procedural defects. Upon curing the procedural defects, the Hearing Officer would recommend issuance of the permits originally requested.

DONE and ORDERED this 12th day of June, 1981, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 1981.

COPIES FURNISHED:

1. Daniel Sasso, Esquire Post Office Box 1422 1413 Cape Coral Parkway

   Cape Coral, Florida 33904

   
   

   Richard Roosa, Esquire 1714 Cape Coral Parkway Post Office Box 535

   Cape Coral, Florida 33904

   
   

   Paul R. Ezatoff, Jr., Esquire Assistant General Counsel Department of Environmental

   Regulation

   2600 Blair Stone Road Tallahassee, Florida 32301

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

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

   
   

   STATE OF FLORIDA

   DEPARTMENT OF ENVIRONMENTAL REGULATION

   
   

   ERICH SCHLACHTA and ESTER

   SCHLACHTA, husband and wife, Petitioner,

   vs. CASE NO. 80-2258

   
   

   CITY OF CAPE CORAL, PARKS AND RECREATION DEPARTMENT and STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION,

   
   

   Respondent.

   /

   
   

   FINAL ORDER

   
   

   On June 12, 1981, the Division of Administrative Hearings' (DOAH) hearing officer assigned to conduct a Section 120.57(1), Florida Statutes, hearing in the above-styled cause, submitted his Recommended Order, attached hereto as Exhibit "A," to the Department of Environmental Regulation. On June 22, 1981, Respondent, Department of Environmental Regulation, filed exceptions to the Recommended Order pursuant to Section 120.57(1)(b)(8)., Florida Statutes, and Section 17-1.68(1), Florida Administrative Code. The Recommended Order and Exceptions thereafter came before me as head of the Department for final agency action in this matter.

   
   

   RULINGS ON

   EXCEPTIONS TO RECOMMENDED ORDER

   
   

   Respondent, Department of Environmental Regulation, takes exception to the hearing officer's Conclusions of Law relating to the applicability of Section 253.124, Florida Statutes, and to the Recommendation which concludes the Recommended Order.

   
   

   The hearing officer, in his Conclusions of Law, held that the construction of a concrete boat ramp in the navigable waters of the state was "filling" which required a permit pursuant to Section 253.124, Florida Statutes. The hearing officer further concluded that since Section 253.124 was applicable to the proposed project, formal local government approval was necessary before a permit could issue. The hearing officer finally concluded that local approval was not obtained and therefore "the application fails to comply with the procedural prerequisites although there are no substantive grounds for denial."

   
   

   Because the hearing officer found that local approval was necessary yet was not received, his Recommendation was that the record be held open until local approval was obtained, and the requested permit then issue.

   For the reasons stated below, the hearing officer's Conclusions of Law regarding the applicability of Section 253.124, Florida Statutes, and his Recommendation that the record be held open until local approval is obtained are rejected.

   
   

   1. The hearing officer has misinterpreted the provisions of Section 253.124, Florida Statutes, and their applicability to this project. Section 17- 4.29(1)(c), Florida Administrative Code, sets forth the permit requirement for boat ramps. That section states:

      
      

      1. Subject to the statutory limitations and exemptions of Sections 403.501-515 and 403.813(1) and (2), Florida Statutes, and as otherwise limited by general or special statute or department rule,

         the following activities at or below the line of mean high water or ordinary high water in, on, or over the navigable waters of the State require a department permit:

         * * *

         (c) Marina construction, maintenance and installa- tion and/or docks, wharfs, piers, walkways and living quarters or dwelling type structures thereon and/or morring pilings, dolphins and similar structures and/or boat ramps, lifts or similar launching faci- lities and/or ski ramps or other similar water struc- tures. (emphasis supplied)

         
         

         The permit requirement for boat ramps found in Section 17-4.29(1)(c) is not authorized by Section 253.124, but by Section 253.123(2)(d), because construction of a boat ramp is dredging, not filling. Florida Bi-Partisans Civic Affairs Group v. DER and Paul Sage, DOAH Case No. 79-100 (Final Order entered December 11, 1979). The hearing officer found that the project as originally proposed involved the deposition of fill waterward of the mean high water line, but that facet of the project was later deleted. Since no filling waterward of the mean high water line is presently contemplated, Section 253.124, Florida Statutes, is inapplicable to this permit application, and local approval is therefore not required.

         
         

   2. The hearing officer's recommendation that final agency action be deferred until local approval is obtained is rejected, since Section 253.124, Florida Statutes, is not applicable to this project and therefore local approval is not required. I would note that the recommendation that additional evidence be received before final agency action is taken is inconsistent with the prohibition against the consideration of additional information by an agency after the close of Section 120.57(1), Florida Statutes, proceedings and the submittal of a Recommended Order. McDonald v. Department of Banking and Finance, 346 So. 2d 569 (Fla. 1st DCA 1977); Florida Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).

CONCLUSION AND ORDER

Having considered the Recommended Order, including the Findings of Fact, Conclusions of Law and Recommendation, and otherwise being fully advised, it is, therefore,

ORDERED:

1. The hearing officer's Findings of Fact are hereby adopted in toto.

   
   

2. The Conclusions of Law are adopted to the extent that they are not inconsistent with the Rulings in this Order.

   
   

3. The Recommendation of the hearing officer is rejected because it is inconsistent with the Conclusions of Law of this Order.

   
   

4. The Department shall issue a permit to the Respondent, City of Cape Coral Parks and Recreation Department, with the standard conditions attached to such permits and subject to all qualifications in the application for permit. The permit shall be issued by the district manager within twenty (20) days of the entry of this Final Order.

DONE AND ENTERED this 10th day of July, 1981, in Tallahassee, Florida.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION

VICTORIA J. TSCHINKEL

Secretary

2600 Blair Stone Road Tallahassee, Florida 32301

(904) 488-9730

CLERK'S ACKNOWLEDGMENT:

FILING AND ACKNOWLEDGMENT

FILED, on this date, pursuant to S 120.52(9), Florida Statutes, with the designated Depart- ment Clerk, receipt of which is hereby acknow- ledged.

07/13/81

Linda Bevard Date Clerk

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing FINAL ORDER has been furnished by United States Mail to STEPHEN F. DEAN, Hearing Officer, Division of Administrative Hearings, 2009 Apalachee Parkway, Tallahassee, Florida 32301, M. DANIEL SASSO, ESQUIRE, 1413 Cape Coral Parkway, Post Office Box 1422, Cape Coral Parks and Recreation Department, Post Office Box 535, Cape Coral, Florida 33904, this 15th day of July, 1981.

PAUL R. EZATOFF, JR.

Assistant General Counsel

Docket for Case No: 80-002258

Orders for Case No: 80-002258