STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF COCOA BEACH, )

)

Petitioner, )

)

vs. ) CASE NO. 83-217DRI

) DEPARTMENT OF COMMUNITY AFFAIRS, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above-captioned matter, after due notice, at Cocoa Beach, Florida, on April 13, 1983, before Thomas C. Oldham, Hearing Officer.

APPEARANCES

For Petitioner: William Weller, Esquire

101 North Atlantic Avenue Cocoa Beach, Florida

For Respondent: C. Laurence Keesey, Esquire

Department of Community Affairs 2571 Executive Center Circle East Tallahassee, Florida 32301

ISSUE

Whether Petitioner's proposed Cocoa Beach Marina is a Development of Regional Impact, pursuant to Chapter 380, Florida Statutes.

This proceeding arose as the result of the issuance by Respondent Department of Community Affairs of a binding letter of interpretation that the proposed development of the Cocoa Beach Marina at Cocoa Beach, Florida, by Petitioner City of Cocoa Beach, would be a Development of Regional Impact under Chapter 380, Florida Statutes. The determination was based upon the conclusion of Respondent that the proposed marina was presumed to be a Development of Regional Impact because it would provide over 100 mooring slips for boats, (Rule 27F-2.09, F.A.C.), (A that water quality degradation could be expected, and that the proposed project would have a significant regional impact on manatees in the area. Petitioner presented the testimony of 4 witnesses at the hearing and submitted one composite exhibit. Respondent presented the testimony of 3 witnesses and submitted 3 exhibits in evidence.

FINDINGS OF FACT

1. By application, dated March 4, 1982, Petitioner City of Cocoa Beach requested that Respondent (then the Department of Veteran and Community Affairs) issue a binding letter of interpretation, pursuant to Section 380.06, Florida

   Statutes, for a proposed marina that it proposed to construct in the City of Cocoa Beach, Brevard County, Florida. (Testimony of Fuller, Respondent's Exhibit 2)

   
   

2. Petitioner proposes to construct the 170 boat-slip marina in five acres of water area on the Banana River, adjacent to an existing recreational complex that includes tennis courts, swimming pool, baseball fields, and a golf course. There is also an existing one-acre paved parking area at the site. The marina will be constructed within the confines of an existing lagoon that was dredged in 1969. The 170 boat slips will be located on aluminum floating docks. There will be an underground fuel storage facility, a fuel and sewage pumpout facility and a small marina office and shop. It is anticipated that the marina will accommodate private pleasure and sports boats from 15 feet to 35 feet long, including both sail and motor boats. No individuals will be permitted to live aboard a boat. It is anticipated by Petitioner that the boat traffic in the area will be increased by 200 to 300 trips per day. (Testimony of Wrinkle, Petitioner's Exhibit 1, Respondent's Exhibit 2)

   
   

3. After receipt of Petitioner's application by Respondent's Bureau of Land and Water engagement, the agency solicited comments from various governmental agencies and requested additional information from Petitioner. On July 9, 1982, it issued a binding letter of interpretation that the proposed project would be a Development of Regional Impact. Petitioner asked for a reconsideration of the decision and submitted additional information to the agency. A second binding letter of interpretation was issued by Respondent on December 6, 1982, containing findings of fact, conclusions of law and an order that the proposed development must comply with the review requirements of Section 380.06, Florida Statutes, as a Development of Regional Impact. Petitioner was afforded an opportunity in the letter to request a hearing under Section 120.57(1), F.S., and did so thereafter. (Testimony of Fuller, Respondent's exhibit 2)

   
   

4. Petitioner anticipates that the majority of boat slips will be rented by local residents or those in nearby areas. The project has had the support of the Cocoa Beach Boating Club which includes approximately forty boat owners in the Cocoa Beach area. Based on the experience of a former marina owner in the vicinity, it is reasonable to anticipate that, although a majority of the boat slips will be rented to local permanent or seasonal residents, a number of slips will also be utilized by boat owners from Orange and other surrounding counties. (Testimony of Wrinkle, Bartol, Respondent's Exhibit 2)

   
   

5. The Cocoa Beach treatment plant is adjacent to the recreational complex. Its personnel regularly tests water quality for plant effluent at discharge points into the Banana River near the proposed marina site. Canals discharge from the golf course to the Banana River on the west. Boats at the marina will be required to have holding tanks for waste which will be pumped to a "wet well" with a fiberglass liner which will then be pumped to the treatment plant. In case of an emergency, such as an oil spill, the City has a vacuum tank truck near the site for removal of any such substances. Petitioner has also stated that it intends to monitor the water surrounding the marina site on a regular basis and to take corrective action if there is any evidence of water degradation. Petitioner submitted a water quality analysis of the water within the proposed marina site and the adjacent waters of the Banana River. It is intended that the results of this analysis will serve as a background for future monitoring of the waters. However, review of the water quality results by the State Department of Environmental Regulation shows that the location of testing stations and the depths at which water samples were obtained produced

   inconclusive results. That agency is of the opinion that there is a potential for water-quality problems at the marina site which should be examined before a DER permit could be issued. The waters at the site are classified as Class III waters and it was determined that the dissolved oxygen readings of the Petitioner's water-quality analysis showed present violations as to dissolved oxygen levels inside and adjacent to the proposed marina. Marinas usually exhibit extremely poor water quality caused by stormwater runoff, leachate from paved parking lots, decaying vegetation, oil and gas spillage and other wastes. The marina site is near the boundaries of the Banana River Aquatic Preserve.

   There would undoubtedly be some mixing of waters from the marina site with waters of the Preserve, which could impact to some extent on the water quality of the Preserve. The canals in the marina basis are subject to stagnation and thus provide a water-quality problem from lack of water movement. The effects of wind, tidal fluctuation, and the operation of boats has not been ascertained. Accordingly, it is impossible to measure or identify a possible adverse effect with regard to degradation of water quality in the Banana River Aquatic Preserve at this time. (Testimony of Huey, Billias, Fuller, Kessler, Petitioner's Exhibit 1, Respondent's Exhibits 1-2)

   
   

6. Patrick M. Rose, Manatee Recovery Coordinator of the Department of Natural Resources, is charged with the responsibility to plan and implement actions to recover manatees from an endangered status. Most of the 1,000 manatees in the United States are usually located in Florida waters. Brevard County has the largest non-winter population numbering 230. During the months of January and February, approximately 120 to 130 manatees are located in Brevard County, and are concentrated in waters around a power plant located immediately north of Cocoa Beach. Aerial and ground surveys have shown that one of the highest concentrations of manatees in the county is the area between SR

   520 and the Pineda Causeway. About 25 to 40 percent of the 120 manatee deaths which have occurred in the past two years are attributable to collisions with boats or barges. Brevard County has the highest manatee mortality rate in the state. Marinas are attractive to manatees as a resting spot. In the opinion of Mr. Rose, an expert on the subject of manatees, the concentration of a large number of boats in the proposed marina where manatees will undoubtedly gather will present a danger of an increased number of injuries due to the activities of the boats entering and leaving the marina area. Although the establishment of boat speed zones in areas where manatees concentrate helps to reduce injuries, it is probable that a number of collisions will occur in or about the marina area. Petitioner intends to strictly enforce the speed limits in and near the marina area with its marine patrol, and place warning signs where necessary. Some of the boat slips will be used by larger boats up to 35 feet long which have difficulty in maneuvering in a small area, thus creating an added hazard to manatees. It is not expected that a large number of transient boats will utilize the Cocoa Beach Marina due to the existence of the intercoastal waterway, and the fact that low bridges in the area prevent the passage of high-masted sailboats. There is less boat traffic in the summer period when manatees congregate in large numbers, due to the absence of winter residents. (Testimony of Wrinkle, Bartol, Kessler, Rose, Petitioner's Composite Exhibit 1, Respondent's Exhibits 2-3)

   
   

   CONCLUSIONS OF LAW

   
   

7. Section 280.06(4)(a), Florida Statutes, provides pertinently as follows:

380.06 Developments of Regional Impact.-- (4)(a) If any developer is in doubt whether

his proposed development would be a development

of regional impact . . . he may request a deter- mination from the state land planning agency . .

The definition of "Development of regional impact" and the pertinent criteria for adoption by the Administration Commission of guidelines and standards relating thereto are set forth in Section 380.06 in pertinent part as follow:

(1) "Development of regional impact," as used in this section, means any development which, because of its character, magnitude, or location, would have a sub- stantial effect upon the health, safety, or welfare of citizens of more than one county.

(2) * * *

(b) In adopting its guidelines and standards, the Administration Commission shall consider and be guided by:

1. The extent to which the development would create or alleviate environmental problems such as air or water pollution or noise.

4. The size of the site to be occupied

1. The unique qualities of particular areas of the state.

   
   

2. Respondent's implementing rules provide in Rule 9B-16.16(16), F.A.C., that the applicant may request a formal hearing within thirty days after a final binding letter is issued, if he believes the determination involves a disputed issue of material fact which requires a full evidentiary hearing. Subparagraph

   (9) of the rule places the burden of proving that a proposed development which exceeds the applicable numerical threshold contained in Chapter 22F, Florida Administrative Code (now Chapter 27F, F.A.C.), is not a development of regional impact on the applicant.

   
   

3. Respondent predicated its determination that the proposed Cocoa Beach Marina is a Development of Regional Impact upon the presumption set forth in its Rule 27F-2.09, F.A.C., which provides as follows:

   
   

   27F-2.09 Port Facilities.--

   The following shall be presumed to be a development of regional impact and subject to the requirements of Chapter 380, Florida Statutes:

   The proposed construction of any water port, except those designed primarily for the mooring or storage of watercraft used exclusively for sport or pleasure of less than one hundred (100) slips for moorings.

   
   

   Thus, since Petitioner's marina is planned for 17 boat slips, it is presumed to be a Development of Regional Impact. Respondent also based its determination upon the probability that the development would create environmental problems with respect to water pollution and hazard to manatees, and further taking into consideration the unique quality of the Banana River Aquatic Preserve, the boundaries of which are near the project site.

   
   

4. Petitioner did not present evidence to overcome the presumption that the proposed marina is a Development of Regional Impact by showing that less than 100 boat slips would be constructed for mooring. The application and the

   evidence in support thereof shows that 170 slips will be constructed incident to the project. Petitioner sought to rebut the presumption on the basis that the marina would be used primarily by local residents and therefore not have a substantial effect upon citizens of more than one county. However, the evidence shows a reasonable likelihood that a number of the boat slips will be used by citizens of surrounding counties.

   
   

5. Although the evidence is insufficient to determine the exact extent of problems as to water quality or danger to manatees in the area, it is sufficient to show a reasonable probability that water quality in the marina and surrounding waters would be degraded to some extent, and that the concentration of a large number of boats at the marina with the resulting increased boating activity may well pose a substantial threat to the manatee population in the area. For these reasons, it is considered that the project should be subject to the review process prescribed in Section 380.06, Florida Statutes.

RECOMMENDATION

That Respondent Department of Community Affairs issue a final order in the form of a binding letter of interpretation that Petitioner's proposed Cocoa Beach Marina is a Development of Regional Impact, pursuant to Section 380.06, Florida Statutes.

DONE and ENTERED this 13th day of May, 1983, in Tallahassee, Florida.

THOMAS C. OLDHAM

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 13th day of May, 1983.

COPIES FURNISHED:

James E. Smith, City Manager C. Laurence Keesey, Esquire City of Cocoa Beach Department of Community Affairs Post Office Box 280 2571 Executive Center Circle E. Cocoa Beach, Florida 32931 Tallahassee, Florida 32301

William Weller, Esquire Honorable Joan Haggen

101 North Atlantic Avenue Secretary, Department of Cocoa Beach, Florida 32301 Community Affairs

2571 Executive Center Circle E. Tallahassee, Florida 32301

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

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

STATE OF FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS

CITY OF COCOA BEACH,

Petitioner,

vs. DOAH CASE NO. 83-217DRI

DEPARTMENT OF COMMUNITY AFFAIRS,

Respondent.

/

FINAL ORDER

This case came before the undersigned, as Secretary of the Department of Community Affairs, for consideration of a Recommended Order entered by the Hearing Officer on May 13, 1983.

No exceptions to the Hearing Officer's Recommended Order have been filed by either party. The Department hereby fully adopts and incorporates herein by reference all findings of fact and conclusions of law in the Hearing Officer's Recommended Order dated May 13, 1983.

As stated in the Recommended Order, this agency issued a binding letter of interpretation on December 6, 1982, containing findings of fact, conclusions of law and an order, finding that the proposed Cocoa Beach Marina is a development of regional impact (DRI) and must comply with the requirements of Section 380.06, Florida Statutes. The binding letter of interpretation, dated December 6, 1982, is fully adopted and incorporated herein by reference as the final binding letter of interpretation determining the DRI status of the Cocoa Beach Marina, except as the findings of fact and conclusions of law contained in the December 6, 1982, letter may have been altered or amended by the Hearing Officer's recommended order.

The proposed Cocoa Beach Marina is a development of regional impact and shall comply with the provisions of Section 380.06, Florida Statutes, prior to commencement of and development activity at the site of the marina.

DONE AND ORDERED by the Department of Community Affairs through the undersigned authority this 31st day of May, 1983.

John DeGrove

Secretary of the Department of Community Affairs

Copies provided to:

Thomas C. Oldham, Hearing Officer

C. Laurence Keesey, Attorney for Respondent James E. Smith, City Manager

William Weller, Attorney for Petitioner Attachments adopted as a part of this Order:

Hearing Officer's Recommended Order dated May 13, 1983; Binding Letter of Interpretation dated December 6, 1982.

FILING AND ACKNOWLEDGMENT

FILED, on this date, with the designated Department Clerk, receipt of which is hereby acknowledged.

Jane R. Bevis Date

Department Clerk

Docket for Case No: 83-000217

Orders for Case No: 83-000217