STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MRS. A. K. DOYLE, )

)

Petitioner, )

)

vs. ) CASE NO. 83-0127

)

B. W. PEAKE, MILDRED N. PEAKE, ) and STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Respondents. )

)

RECOMMENDED ORDER

A formal hearing was held in this matter he fore Marvin E. Chavis, duly designated Hearing Officer of the Division of Administrative Hearings, on November 8, 1983, in Pensacola, Florida.

APPEARANCES

For Petitioner: Ralph A. Peterson, Esquire

Post Office Box 12950 Pensacola, Florida 32576

For Respondent, James M. Wilson, Esquire

B. W. and HARRELL, WILTSHIRE, STONE & SWEARINGEN Mildred N. Peake: Post Office Drawer 1832

Pensacola, Florida 32598

For Respondent, E. Gary Early, Esquire Department of Assistant General Counsel

Environmental Department of Environmental Regulation Regulation: Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32301

ISSUES AND BACKGROUND

This case concerns the issue of whether the Respondents, B. W. and Mildred

1. Peake, should he granted a permit to construct an addition to an existing dock located on the north shore of Old River in Pensacola, Florida. The Petitioner, Mrs. A. K. Doyle, testified on her own behalf and also called as a witness, Mildred N. Peake, one of the applicants. The Petitioner offered no exhibits into evidence. Mr. B. W. Peake testified on behalf of himself and his wife Mildred N. Peake. The Peakes offered and had admitted into evidence Exhibits 1-7. The Department of Environmental Regulation called as witnesses Mark Snowden and Richard Fancher. The Department offered and had admitted Exhibits 1-6.

   Subsequent to the final hearing, Counsel for the Petitioner and the two Respondents submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that those proposed findings and conclusions are inconsistent with this order, they were rejected as not being supported by the evidence or as unnecessary to the resolution of this cause.

   
   

   FINDINGS OF FACT

   
   

   1. The Respondents, B. W. and Mildred N. Peake, have filed an application for a permit to construct an addition to an existing private pier located on the north shore of Old River, adjacent to Innerarity Point. It will be centered on a lot located at 878 Innerarity Road, Pensacola, Florida. B. W. and Mildred N. Peake are the owners of the property where the existing dock is located.

      
      

   2. On December 23, 1982, the Department of Environmental Regulation by letter notified the applicants that the Department intended to grant the permit application. The Petitioner, Mrs. A. K. Doyle, filed an objection to the issuance of that permit. Mrs. Doyle's property is adjacent to the eastern boundary of the Peake property.

      
      

   3. The application, as modified, seeks to extend the existing pier by sixteen (16) feet. The existing pier is five feet wide and approximately 185 feet long. The addition is to be constructed of the same materials used in the existing pier and will rest on treated pine pilings. The purpose of the pier is to allow temporary berthing for two additional sailboats. There will be no fuel pumps or toilets on the pier. The pier will be used for private purposes only and will involve no commercial operation.

      
      

   4. Upon completion of the addition, the Peake's pier would be approximately 110 feet from the Intercoastal Waterway Channel and will not create a hazard to navigation.

      
      

   5. The Peakes have obtained approval from the U.S. Army Corps of Engineers to construct the pier extension. They have not obtained consent from the Department of Natural Resources to use the state owned lands beneath the proposed addition.

      
      

   6. The addition to the pier will total approximately 80 square feet and will require 4 pilings. There is currently an extensive grass bed consisting of Cuban Shoalweed approximately 90 feet from the shoreline. Jetting of pilings for the addition will occur approximately 103 feet from the closest point of this grass bed. The proposed addition will have no significant impact on the existing grass beds.

      
      

   7. The grassbeds in this area stop growing at the edge of the photic zone or that point at which sunlight can no longer penetrate the water. At this site, this occurs at a depth of 1.5 meters or approximately 4.8 feet. The depth of the water at the site of the proposed addition is from 8 to 10 feet. There are no grasses growing in the immediate area of the project site.

      
      

   8. The grass beds in the area contain a wide diversity of benthic microinvertebrates. The number of species and density of benthic microinvertebrates were less at the addition site. The proposed addition will not interfere with marine life or destroy marine productivity.

   9. The substrate at the immediate project site consists of coarse sand with some fines associated with the sand. During the piling installation, these fines will become suspended in the water, thus creating turbidity. The use of a turbidity screen or control device during construction would limit turbidity to the project site with very temporary, limited violation of water quality. The project will have no deleterious effect on water quality.

      
      

   10. All boats using the pier will have Coast Guard approved marina heads. These marine heads will not discharge into the waters in the area. Garbage from the boats will be disposed of at the Peake home adjacent to the pier. The pier is presently being used to permanently moor one sailboat.

       
       

       CONCLUSIONS OF LAW

       
       

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

       
       

   12. Pursuant to Chapters 253 and 403, Florida Statutes, the Department of Environmental Regulation is empowered to regulate and issue permits for construction of piers and other facilities that might pollute or adversely affect the waters of Florida. Sections 253.123, 253.124, 403.087, and 403.088, Florida Statutes.

       
       

   13. Rule 17-4.07, Florida Administrative Code, places the burden on the applicant seeking the permit to affirmatively provide reasonable assurances that his project will not cause pollution in violation of existing standards.

       
       

   14. The applicants' proposed dock extension will not interfere with marine life or destroy marine productivity. The project will also have no deleterious effect upon the surrounding waters. The extension will not create any navigational hazard and will be used only for private docking. Under the facts set forth above, the applicants, B. W. and Mildred N. Peake, have given reasonable assurances that the proposed extension will not cause pollution in violation of existing standards and they are therefore entitled to the issuance of the permit sought.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law it is, RECOMMENDED:

That the Department of Environmental Regulation issue a permit for the applicants, B. W. and Mildred N. Peake, to construct an addition to their existing dock in accordance with the application as modified. The permit should contain all the specific conditions included in the Department's letter of intent dated December 23, 1982. In addition, the necessary approval from the Department of Natural Resources should first be obtained.

DONE AND ORDERED this day of April 1984, in Tallahassee, Florida.

MARVIN E. CHAVIS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904)488-9675

FILED with the Clerk of the Division of Administrative Hearings this 27th day of April 1984.

COPIES FURNISHED:

Victoria Tschinkel Secretary

Department of Environmental Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

E. Gary Early, Esquire

Division of Administrative Hearings Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

Ralph A. Peterson, Esquire Post Office Box 12950 Pensacola, Florida 32576

James M. Wilson, Esquire Post Office Drawer 1832 Pensacola, Florida 32598

Docket for Case No: 83-000127

Orders for Case No: 83-000127