STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
JOEL L. BEARDSLEY and SACARMA ) BAY AND CUDJOE OCEAN SHORES ) PROPERTY OWNERS' ASSOCIATION, )
)
Petitioner, )
and )
)
FLORIDA AUDUBON SOCIETY, )
)
Intervenors. )
)
vs. ) CASE NO. 83-1532
) MARK BARTECKI and DEPARTMENT OF ) ENVIRONMENTAL REGULATION, )
)
Respondent. )
)
RECOMMENDED ORDER
This cause came on for administrative hearing before P. Michael Ruff, duly designated Hearing Officer of the Division of Administrative Hearings, pursuant to notice, on September 8 and 9, 1983, in Key West, Monroe County, Florida.
APPEARANCES
For Petitioner: Joel L. Beardsley, pro se
Route 2, Box 441
Summerland Key, Florida 33042
and
100 Dudley Avenue, B-7
Old Seybrook, Connecticut 06475
For Petitioners Sacarma Bay and Cudjoe Ocean Shores Property Owners' Associations, and Intervenor Florida Audubon Society:
Mr. Charles Lee 1101 Audubon Way
Maitland, Florida 32751 For Respondent Mark Bartecki:
H. Ray Allen, Esquire 618 Whitehead Street
Key West, Florida 33040
For Respondent Department of Environmental Regulation:
Charles G. Stephens, Esquire Assistant General Counsel Department of Environmental
Regulation
2600 Blair Stone Road Tallahassee, Florida 32301
This cause commenced on or about May 7, 1982, upon the filing of an application with the Department of Environmental Regulation, whereby the permit applicant, Mark Bartecki, seeks to construct a pier or dock with associated mooring facilities in Cudjoe Bay on the southern waterward side of Cudjoe Key in Monroe County, Florida. After agreed upon modifications, the application evolved as one to construct a dock with nine mooring pilings extending 190 feet from the landward extent of the jurisdictional waters of the State of Florida into Cudjoe Bay and accompanying construction of an 8-foot-wide wooden walkway through a transitional and submerged area into navigable waters of the State.
The seaward end of the dock would incorporate an "L-shaped" 80-foot by 5-foot- wide extension which would incorporate the nine mooring pilings and slips designed for mooring a maximum of eight boats on the seaward end of the dock.
The Petitioners requested a formal hearing based on DER's notice of intent to issue the permit. At the hearing conducted on the above date, the Petitioners and Intervenor called six witnesses. The Respondent presented five witnesses and DER presented one witness. Petitioner Joel Beardsley presented 14 exhibits, two of which were not admitted. The Petitioner associations and the Intervenor presented ten exhibits, and all those exhibits but Exhibit E were admitted into evidence. The Respondent presented 12 exhibits, and all were admitted into evidence.
The issue to be resolved concerns whether water quality criteria of Chapter 17-3, and the dredge and fill permit criteria of Chapter 17-4, Florida Administrative Code, will be violated; and whether a grant of the application will comport with the mandates of Section 253.124, Florida Statutes, and Sections 403.087 and 403.038, Florida Statutes.
At the conclusion of the hearing, the parties availed themselves of the right to file proposed findings of fact and conclusions of law. No transcript has been filed. Pursuant to an agreed upon extension of time and order of the Hearing Officer, the time to file proposed findings of fact and conclusions of law was extended such that the proposed findings of fact and conclusions of law became due and were filed by all parties by September 30, 1983, with a corresponding waiver of Rule 28-5.401, Florida Administrative Code.
All proposed findings of fact, conclusions of law, and supporting arguments have been considered. To the extent that proposed findings and conclusions submitted are in accordance with the findings, conclusions, and views stated herein, they have been accepted. To the extent that such proposed findings and conclusions and such arguments made are inconsistent herewith, they have been rejected. Certain proposed findings and conclusions have been omitted as not relevant or as not necessary to a proper determination of the material issues presented. To the extent that the testimony of various witnesses is not in accord with the findings herein, it is not credited.
FINDINGS OF FACT
The Respondent Mark Bartecki has submitted an application to the Department of Environmental Regulation (DER) for a permit to construct a dock
155 feet waterward of the mean high waterline of waters of the State and 35 feet landward of that mean high waterline through a jurisdictional wetland area. The dock would he a total of 190 feet in length and 8 feet wide, with an 80 by 8- foot L-shaped extension on the seaward end of the dock, which would incorporate nine mooring pilings and eight boat slips, for a total area of 1,520 square feet of dock area. It was uncontroverted that the construction of the dock in the jurisdictional wetland area landward of the mean high waterline would have no significant impact on the water quality or biological resources of the bay.
Mark Bartecki and associates are in the process of seeking various governmental approvals for construction of a 50-unit duplex housing development on 25 lots on the shore of Cudjoe Bay, which development is known as "Spoonbill Sound." As part of its development plan, the permit applicant seeks to construct the dock and boat slips. The applicant initially sought mooring facilities for as many as 25 boats, but through negotiations with the Department amended the application to provide that no more than eight boat slips and eight boats will be accommodated, should the permit be granted.
The proposed dock is located in the Class III waters of the State, which are designated for recreation and the propagation and management of well- balanced fish and wildlife, populations, with such recreational purposes being allowed as swimming, water skiing, fishing, snorkeling, and diving. The proposed dock site is also within Outstanding Florida Waters inasmuch as Cudjoe Bay is an Outstanding Florida Water within the Key Deer National Wildlife Refuge.
The bottom substrata of Cudjoe Bay in the area where the dock is to he placed consists primarily of hard rock and pulverized coarse-grained rock sediment. There are some areas of fine, silty sediments associated with turtle grass beds (Thalassia) The bottom of Cudjoe Bay in the vicinity of the dock is occupied by benthic organisms, including algae; corals; seagrasses such as Thalassia testudinum (or turtlegrass); and other attached and mobile organisms. Marine life in the area occurs most densely in the patches of turtlegrass, which serve as a nursery and feeding area for various marine organisms, such as larval and juvenile crustacea and juvenile fishes, as well as juvenile spiny lobsters, blue crabs, snapper and grunts. Important fish species which occupy a position at the base of the food web are abundant in the turtlegrass areas of the bay in the vicinity of the proposed dock, including hardhead silverside, gold spotted killifish and longnose killifish.
The offshore bay bottom, over which the dock is supposed to be constructed, supports a dominance of seagrasses (Halodule wrightii and Thalassia testudinum) for a distance of approximately 40 feet waterward of the shoreline red mangroves, which in turn protrude waterward of the approximate mean high waterline for some 20 to 30 feet. Further waterward of the seagrasses in the vicinity of the end of the proposed dock, the bottom is characterized by less sediment and a hard, rocky bottom or coarse rock sediments. The biological community changes in that area and is characterized by red algae (Laurencia sp. is dominant) and scattered green algaes (Penicillus sp. and Acetabularia sp.), as well as a significant number of sponges and soft corals (Gorgonia) Scattered hard corals also occur in this area. The turtlegrass beds occur in this area in scattered patches with coarse rocky sediment areas occurring in between such grasses, which are characterized by less profuse marine biota (chiefly sponges
and some algaes). Various forms of finger coral, including an uncommon purple form called "Porites furcata," occurs in the project area, chiefly in the turtlegrass patches or beds, which are characterized by finer, more easily suspended sediments. The turtlegrass, in addition to its function as a nursery area for various forms of marine life, accomplishes a filtration function for water in that it removes sediments suspended in the water and deposits it within the grass beds as fine, bottom sediment. The coarser grained, rocky substrate sediments are less easily suspended by turbulence in the water than those sediments occurring in the grass beds.
Expert witnesses testifying for the applicant and the Department established that the actual installation of the dock itself will have minimal impacts on water quality in that the method of construction, augering the holes for the pilings from a barge and then hand construction of the remainder of the dock, will cause only minor and transitory turbidity of bottom sediments.
Damage to grass beds caused by shading or partial blocking of light by the dock will be minimized by the final location or surveying of the dock site, which the applicant stipulated would be done in conjunction with representatives of the Army Corps of Engineers and the Department of Environmental Regulation so as to avoid grass beds where at all possible to prevent damage caused by light shading or propeller turbulence. A more significant concern regarding shading of light and resulting adverse effects on turtlegrass beds is related to the mooring sites for eight boats to be constructed at the seaward end of the dock. It is possible for eight boats moored closely together to provide sufficient shading of the bottom to gradually kill any turtlegrass growth beneath those mooring sites. Accordingly, the permit applicant should he required, and has agreed, to locate the mooring sites at the end of the dock so as to avoid encompassing any grass beds in the boat mooring area.
Water at the seaward end of the proposed dock site varies somewhat in depth due to tidal and wind conditions. Witness Curtis Kruer of the Army Corps of Engineers, a biologist who has observed the area numerous times and snorkeled in the area, found the depths to range from 2-1/2 feet to 3 feet at the same location. Testimony by residents who have visited the area regularly and evidence by the Petitioners in the form of a photograph showing water approximately knee deep -- that is, 2 feet or less -- do not definitely relate those reported and depicted depths to the subject area where the boat slips' and boat maneuvering area will be. Thus, the testimony of expert witness Kruer is accepted in this regard; to the extent of his findings that the depth at mean low water at the seaward end of the proposed dock site, in the area of the boat slips, is from 2-1/2 to 3 feet.
The water depth for operation of outboard motor-powered boats is marginally acceptable in the area of the end of the proposed dock. Marginally acceptable, that is, in terms of likelihood of significant damage to marine grasses, algae, corals and other organisms caused by "prop dredging," that is, bottom contact or wash from boat propellers.
Captain Ed Davidson was accepted as an expert witness in the areas of assessment of damage to coral reefs and marine resources, caused by the operation of motor boats, and in the area of marine resource planning and navigation. He has served in various capacities: as a consultant for the U.S. Department of Commerce, National Oceanographic and Atmospheric Administration, Looe Key Reef Resource Inventory; Vice President for Operations for the Florida Reef Foundation; a consultantship with the U.S. Department of Interior, Continental Lands Act Enforcement in the "Florida Reef Tract"; and in previous litigation as an expert witness on the protection of coral reefs. It was
established that, in the area of the Florida Keys, generally in order to avoid damage to routine biota caused by propeller or lower unit contact or turbulence and turbidity resulting from moving propellers in close proximity to the bottom substrates, that a minimum of 12 inches clearance between the bottom of the propeller and the bottom of a water body is required to avoid significant disruption and damage to the bottom sediments and marine life in the path of a boat propeller. The bottom substrate in the area proposed for the dock and in the area through which ingress and egress of boats would be conducted is of a coarse, rocky nature, however, the sediments consisting largely of rock particles, which characteristically settle out of the water when suspended at a very rapid rate, causing little sustained turbidity. The site, as found above, is also characterized by relatively barren rocky bottom portions interspersed with grass beds, where the majority of the marine biota are located, including the uncommon coral forms mentioned above. Thus, if ingress and egress of boats is conducted over a carefully surveyed and marked lane between such grass beds and marine productive areas, prop wash or prop dredging damage to marine grasses, corals, algae and other organisms will be minimized. There is no question that some damage to marine life will occur, but it will be minimized by confining boat traffic to such a marked ingress and egress lane, by limiting the number of boats permissibly using the dock, as well as the speeds at which they operate. Restriction of the speed at which boats can leave the immediate area of the mooring slips will prevent the settling of the stern and the lower units of outboard motors or outdrives, caused by sudden acceleration to high speeds, thus maintaining more clearance between the propeller and lower units of motors and the bottom. Thus, if the dock is permitted a prominent notice should be posted thereon limiting boats using the slips to a speed slow enough to prevent the formation of a wake. A condition should be imposed on a grant of the permit to this effect, as well as to the extent that the permit applicant should be required to mark out a channel through the water from the seaward end of the dock to the 3-foot bottom contour depth (which all parties agreed is safe for boat operation), which channel should be marked so as to reasonably avoid any of the subject grass beds in the bay.
In order to discourage numbers of boats in excess of eight from using the dock, so as to minimize damage caused by "prop dredging," the eight boat slips should be permanently assigned to residents of the planned development, with no other persons being authorized to use the slips. Further, the portions of the dock landward of the boat slips themselves should be enclosed by railings of a sufficiently solid nature to prevent the mooring of boats along any of the sides of the dock in a landward direction. The applicant has agreed to the majority of these conditions.
If these conditions on permitting are observed, only transitory degradation of water quality caused by turbidity during the actual augering of the holes for placement of the pilings will occur. Since this is a large bay with adequate turnover and mixing of its waters, such violations of water quality parameters for clarity or transparency within the immediate proximity of the dock will be very short-lived. If these conditions on construction and use of the dock are enforced, no other significant degradation of water quality will result for purposes of the legal authority cited below.
The proposed construction will not eliminate valuable marine resources in Cudjoe Bay and will have no immediate or long-term adverse impact on the quantity or quality of the State's natural marine resources through loss of habitat within the Cudjoe Bay area. The proposed project, if these conditions are imposed upon any grant of a permit, will not cause such damage as to interfere with the conservation of marine wildlife and other natural resources
to such an extent as to be contrary to the public interest. It will not result in destruction of clam beds and marine productivity, natural habitat or grass flats suitable for nursery or feeding grounds for marine life. It will not result in the destruction of natural shoreline processes to such an extent as to be contrary to the public interest provided the conditions found above are imposed upon any permitting, especially those relating to railings placed on the landward portions of the dock to prevent mooring and use of boats in conjunction with the dock in excessively shallow water and provided the dock and the marked lane for boat traffic are located so as to avoid grass beds constituting nursery or feeding grounds for marine life and marine soils capable of producing plant growth useful as nursery or feeding areas.
The open water area of Cudjoe Bay below the mean high water line is currently not occupied by any docks or piers of the size contemplated in this application. Most marine access to the waters of the bay occurs by way of a canal system and an "alongshore" channel on the east side of the bay, which system was dredged during the 1950s. The shoreline in the vicinity of the proposed project is essentially undisturbed. The proposed dock would be the first structure of its type permitted by the Department of Environmental Regulation on Cudjoe Bay, an outstanding Florida water. The proposed dock and boat slips will be restricted in use to the residents and owners of the residences to be constructed by the permit applicant on his property. Public use of the proposed facility would not be allowed. There has been no provision made for such use. The interest of the public in navigating the waters of Cudjoe Bay has been served for years by the "alongshore" channel canal system on the west side of the bay. This allows members of the public living in the vicinity of the bay to have access to the Atlantic Ocean or Florida Strait off the mouth of Cudjoe Bay. It has not been established that there is any current need for an additional channel, dockage or means of navigating across other areas of Cudjoe Bay, including the subject area near the midpoint of the bay shoreline, thence across the remaining area of the bay not in close proximity to the presently existing channel. Since the proposed project would be restricted in use, insofar as boating is concerned, to eight residents of the applicant's proposed development, since members of the general public would not enjoy the beneficial use of the dock and slips, and since there has been demonstrated no current need for additional boat dockage or navigational facilities in Cudjoe Bay, it has not been affirmatively demonstrated how construction of the proposed project would benefit the public.
The members of the Sacarma Bay and Cudjoe Ocean Shores Property Owners' Associations and the Intervenor, Florida Audubon Society, own property on the shore of Cudjoe Bay and regularly utilize the waters where the dock is proposed to be constructed for swimming, nature study, fishing and other lawful recreational activities. The waters where this recreation occurs are waters lying over sovereign lands owned by the State of Florida. In this connection, Section 253.77, Florida Statutes, requires a permit to be issued by the Department of Natural Resources for use of the proposed sovereign state land. It is undisputed that the permit has not yet been approved and obtained by the permit applicant. The obtaining of such permit from the Department of Natural
Resources would have to be an additional condition imposed upon the grant of any permit by the Department of Environmental Regulation.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings pursuant to Section 120.57(1), Florida Statutes (1981)
The Department of Environmental Regulation has jurisdiction over the construction of the proposed dock at this location pursuant to Chapters 403 and 253, Florida Statutes, and Chapters 17-3 and 17-4, Florida Administrative Code.
Section 403.087(1) and (4) provide pertinently as follows:
No stationary installation which will reasonably be expected to be a source of air or water pollution shall he operated maintained, constructed, expanded, or modi- fied without an appropriate and currently
valid permit issued by the department, unless exempted by department rule. . .
(4) The department shall issue per- mits to construct, operate, maintain, expand, or modify an installation which may reasonably be expected to be a source of pollution only when it determines that the installation is provided or equipped with pollution control facilities that will abate or prevent pollution to the degree that will comply with the standards
or rules promulgated by the department. . .
The specific water quality criteria pertinent to this application and proceeding are contained at Section 17-3.061, Florida Administrative Code, as the general criteria for surface waters, and at Section 17-3.121, which contains the criteria for Class III waters. Cudjoe Bay is a Class Ill surface water of the State.
Rule 17-4.07, Florida Administrative Code, requires an applicant to affirmatively provide reasonable assurances based upon plans, test results, and other information that the construction, expansion, modification, or operational activity envisioned in the permit application will not discharge, emit or cause pollution in contravention of the Department standards, rules or regulations, as pertinent hereto, those standards contained in the above-cited rules as well as Section 17-4.29, Florida Administrative Code. The quality of proof necessary to give those assurances is that set forth in Rule 17-1.59, Florida Administrative Code, in which it is provided that the burden of proof related to reasonable assurances and other items of proof must be by a preponderance of the evidence before the requested permit may be granted.
There is no question that the above water quality criteria will not be violated by the proposed dock and boat slip project, including the use of a marked boat access route which would be designed to avoid the beds of turtlegrass and coral. The only expert witnesses testifying as to biological and water quality matters were the three witnesses called by the Department and the applicant: witnesses Cantrell, Meyer and Kruer. Their testimony was unrefuted and established by a preponderance of the evidence that, if the above agreed-upon conditions are observed, water quality criteria contained in the above-cited rules will not be violated. Thus, to that extent affirmative reasonable assurances have been provided based on plans, test results and other information at the construction of the subject dock will not discharge, emit or cause pollution in contravention of the Department standards, rules or regulations.
Rule 17-4.29 contains the requirements and criteria for issuance of permits pursuant to Chapter 253, Florida Statutes. It provides In pertinent part as follows:
[T]he following activities at or below the line of the 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 installation and/or docks, wharfs, piers, walkways and living quarters or dwelling
type structures thereon and/or mooring
pilings, dolphins and similar structures. . .
The Department shall not issue a permit unless the biological survey, eco- logical study and hydrographic survey, if any, together with information and studies provided by the applicant affirmatively show:
that such activity will not inter- fere 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 produc- ing 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
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 above Findings of Fact and the evidence in the record, consisting chiefly of the testimony of the three above-named expert witnesses, establish that the activity proposed and the construction of the dock and boat slips will not cause the various deleterious effects envisioned by the above-quoted rule and that the chief, but short-lived, adverse effect caused by installation of the dock will be transitory turbidity caused by augering of the holes for the pilings. However, as shown by expert witness Davidson for the Petitioners and Intervenors, propeller dredging or wash caused by boats using the facility would be destructive of unique coral forms, grass beds, and grass flats suitable as nursery or feeding grounds for marine wildlife and to some extent destructive of established marine soils contained in those grass beds and natural marine habitat to such an extent as to be contrary to the public interest unless the boat traffic is confined to an access lane marked under Department supervision so as to avoid these productive marine habitats and nursery areas. If the boat traffic is limited to eight boats only, at limited speed, using only the marked
access route, and rails are installed along the landward portions of the dock to prevent excessive boat use in those shallow waters, then it must he concluded that the deleterious effects envisioned in the rule quoted last above will not occur to such an extent to be contrary to the public interest and that if the permit were so conditioned, it could normally be granted.
However, there remains for consideration the fact that this project occurs in an outstanding Florida water body. Section 17-4.242 provides in pertinent part that a permit applicant must affirmatively demonstrate that:
(1)(a)2. The proposed activity or dis- charge is clearly in the public interest; and either,
A Department permit for the activity has been issued or an application for such permit was complete prior to the effective date of the rule; or,
The existing ambient water quality within Outstanding Florida Waters will not be lowered as a result of the proposed activity or discharge. (Emphasis
supplied.)
There is no question that the existing ambient water quality will not he measurably lowered by the installation of the subject dock and boat slips if usage of it is arranged for and conducted under the conditions enunciated above. In addition to not lowering the water quality, however, the proposed project must be "clearly in the public interest." This is an affirmative burden that an applicant must bear. In Younge v. Askew, 293 So.2d 395 (Fla. 1st DCA 1974), where an applicant wanted to lease State submerged lands and was required to show that the public interest would be served by that project, the court held that his dredging application was properly denied because he failed to show that his project would serve the public interest. In examining the public interest questions involved in the development plan in that case which would create a large number of waterfront lots on uplands which would border canals the applicant planned to dredge, the court noted that, while the project might be highly beneficial to the permit applicant himself, and might even be of some benefit to the county wherein the development was located, that the benefit did not meet the statutory test of being in the interest of all the people of the State of Florida.
In the instant case, the applicant has conditionally cleared all the water quality barriers designed to protect the environment and established that those water quality standards and the standards contained in Section 253.123 and Rule 17-4.29(6)(a) and (b) will be complied with if the permit is conditioned as discussed above. The interest the public has in the construction of this dock is scant, however; the dock and boat slips proposed to be constructed will be solely for the use of a limited number of the residents of the applicant's development and there will be no public access to the dock. The only remote possibility is that it might relieve overcrowding in public dockage facilities to the extent of eight boats; however, there is no adequate proof that that is a probability. Although the applicant's plan to mark a channel which would help reduce random boat traffic and concentrate boat traffic in the marked lane so as to reduce consequential propeller damage to grass beds in a wider area of Cudjoe Bay, while it makes the project more palatable and in compliance with the other above authority, the fact remains that construction of the dock will be in Outstanding Florida Waters which are to be accorded the highest protection
pursuant to Rule 17-3.041, Florida Administrative Code. It is obviously the intent of the two above rules that no such construction be permitted in waters accorded this high degree of protection unless the public will actually be substantially served by the installation of such a facility. There has clearly been no proof that this man-made intrusion into Cudjoe Bay, disrupting its natural state to a significant degree, will concomitantly promote any benefit or service to the public by the fact of its installation and operation. In consideration of the essentially total lack of any public benefit shown in the evidence of record and in consideration of the patent intent of the Outstanding Florida Waters rules, it must be concluded that consideration of the greater benefit to the greater number of Floridians dictates a denial of the application for this reason. Younge v. Askew, supra. See, Bayshore Homeowners Association
v. State of Florida, Department of Environmental Regulation and grove Isle Limited, Recommended Order of the Hearing Officer, Case Nos. 79-2186, 79-2324, and 79-2354, as affirmed in David A. Doheny v. Grove Isle Limited and State of Florida, Department of Environmental Regulation, Case No. AM-475 Fla. 1st DCA (opinion filed October 4, 1983).
In short, the permit applicant, although he has affirmatively demonstrated reasonable assurances that the project, as it would actually he constructed, would be environmentally palatable, the applicant has nevertheless failed to meet the heavy burden of the "public interest test" of the "Outstanding Florida Waters rule," since it could not be shown that the project is clearly in the public interest. Thus, the permit application should be denied.
Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence in the record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore,
RECOMMENDED:
That the State of Florida, Department of Environmental Regulation, deny the application of Mark Bartecki for a dock construction permit.
DONE AND ENTERED this 7th day of December, 1983, at Tallahassee, Florida.
P. MICHAEL RUFF, 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 7th day of December, 1983.
COPIES FURNISHED: | ||
Joel L. Beardsley Route 2, Box 441 Summerland Key, Florida | 33042 | Charles G. Stephens, Esquire Assistant General Counsel Department of Environmental |
Regulation
Joel L. Beardsley 2600 Blair Stone Road
100 Dudley Avenue Tallahassee, Florida 32301 Old Seybrook, Connecticut 06475
Victoria Tschinkel, Secretary
Mr. Charles Lee Department of Environmental 1101 Audubon Way Regulation
Maitland, Florida 32751 2600 Blair Stone Road Tallahassee, Florida 32301
H. Ray Allen, Esquire 618 Whitehead Street Key West, Florida 33040
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DISTRICT COURT OPINION
=================================================================
IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA
MARK BARTECKI,
Appellant,
v. NO. AZ-332
DOAH CASE NO. 83-1532
JOEL L. BEARDSLEY and DEPARTMENT OF ENVIRONMENTAL REGULATION
Appellees.
/ Opinion issued June 25, 1985.
Permit applicant appealed from order of the Department of Environmental Regulation denying application for permission to construct a dock adjacent to his property, in state waters. The District Court of Appeal, Mills, J., held that the denial, based upon applicant's failure to show that the project was clearly in the public interest requirement regarding issuance of construction permit for stationary installation not involving discharge of waste into state waters was an invalid exercise of delegated legislative authority.
Reversed and remanded.
Health and Environment 25.5(6)
Denial by the Department of Environmental Regulation of permit to construct a dock adjacent to applicant's property, based on applicant's failure to show that the project was clearly in the public interest, was erroneous, as reflected in contemporaneous case in which imposition of such a public interest requirement prior to issuance of construction permit for stationary installation not involving the discharge of waste into state waters was an invalid exercise of delegated authority.
James T. Hendrick of Albury, Morgan & Hendrick, P.A., Key West, for appellant.
Joel L. Beardsley, pro se.
Charles G. Stephens, Asst. General Counsel, Tallahassee, for Department of Environmental Regulation.
MILLS, Judge.
Bartecki appeals from the entry of a final administrative order denying his application for permission to construct a dock, adjacent to his property, in the waters of Cudjoe Bay in Monroe County, Florida, an Outstanding Florida Water.
We reverse and remand for entry of an order not inconsistent with Grove Isle, Ltd. v. State of Florida Department of Environmental Regulation, 454 So.2d 571 (Fla. 1st DCA 1984), reh. den.
In August 1982, Bartecki was notified by appellee Department of Environmental Regulation (DER) that, in the absence of any petition for a formal hearing pursuant to Section 120.57, Florida Statutes, it intended to issue a permit allowing him to construct the dock. Appellee Beardsley and other parties not involved in the appeal filed such a petition. The hearing was held in September 1983 and the recommended order was issued in December of that year.
Despite finding that Bartecki had "affirmatively demonstrated reasonable assurances that the project, as it would actually be constructed, would be environmentally palatable," the hearing officer recommended denying the permit because Bartecki had not shown that the project was "clearly in the public interest" pursuant to Rule 17-4.-242, Florida Administrative Code.
While DER was considering the recommended order, this Court decided Grove Isle, supra, which held that "to the extent it requires an applicant to meet a 'public interest' requirement prior to the issuance of a construction permit for a stationary installation not involving the discharge of waste into waters within the state," Rule 17-4.242 was an invalid exercise of delegated legislative authority. Bartecki brought the decision to DER's attention, but the agency declined to consider it because a motion for rehearing was pending and the decision was therefore not final. DER denied the permit, adopting the recommended order in toto.
Bartecki contends on appeal that, since the denial of his permit was based solely on his failure to demonstrate "public interest," and that requirement has been stricken, this court should reverse the denial and require issuance of the permit. DER agrees that Grove Isle mandates reversal based on the agency's reliance on the invalid rule to deny the permit, but points out that it cannot
grant the permit sought by Bartecki until he "receive[s] from the Board of Trustees of the Internal Improvement Trust Fund . . . consent authorizing the proposed use and exhibits it to [DER]." Section 253.77, Florida Statutes 91983). Bartecki had received the consent required by the statute, but it was withdrawn prior to the formal hearing held by DER.
We agree that, based on Grove Isle, DER's denial of the permit based on Bartecki's failure to comply with rule 17-4.242, F.A.C., was erroneous and its final order so holding is reversed. The case is remanded for entry of an order not inconsistent with Grove Isle and Section 253.77, Florida Statutes (1983).
Reversed and remanded.
SMITH and THOMPSON, JJ., concur.
| Issue Date | Proceedings |
|---|---|
| Apr. 06, 1984 | Final Order filed. |
| Dec. 07, 1983 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 25, 1985 | Opinion | |
| Apr. 05, 1984 | Agency Final Order | |
| Dec. 07, 1983 | Recommended Order | Applicant showed reasonable assurances to justify grant of permit. Because project in state waters, public interest not shown. Deny. |
