Starzak stated his desire to be represented by Nicholas M. Zembillas. Mr. Zembillas and Mr. Starzak were initially represented by counsel, subsequently consented to withdrawal of counsel and thereafter sought and obtained a continuance of an initial hearing date in September, 1984 in order to retain new counsel. Following inquiry into Mr. Zembillas' qualifications, his direct and continuing role in Mr. Starzak's permit application and dock construction, and Mr. Starzak's repeated and knowing election to be represented by Mr. Zembillas, he was accepted as a qualified representative on behalf of Mr. Starzak.
The parties were represented as follows: Nicholas M. Zembillas
Pro se and on behalf of Mr. Walter L. Starzak
Charles G. Stephens, Esquire Assistant General Counsel
Nicholas M. Zembillas and Walter L. Starzak, hereinafter referred to as "Petitioners", applied to the Department of Environmental Regulation, "Department", for a permit to construct docks from their adjoining property. When the Department issued a Final Order Denying Application for Permit, Petitioners filed a Petition for Formal Proceedings on May 31, 1984 which was set up as Case Number 84-1979. Subsequently, the Department issued a Notice of Violation and Order for Corrective Action on which Petitioners also requested a hearing, and this was set up as Case Number 84-3318. Thereafter Dr Matthew Kraus, an adjacent property owner, was granted leave to intervene and these cases were consolidated for hearing.
At the hearing, Petitioners offered seven exhibits and the following witnesses: Nicholas M. Zembillas, Alan Burdette, Roger Wilson, Mike Zembillas, Wendy Giesy and Pete Dewhorst. These last two witnesses were proffered and accepted as experts in the field of environmental impacts and marine biology, and water quality sampling, respectively. The Department offered twenty-eight exhibits and the following witnesses: William Kutash and Alan Burdette, both of whom were accepted as experts on the impact of dredge and fill. Intervenor offered four exhibits and three witnesses: Dr Matthew Kraus, Michael Kubishen, and Helen Kraus.
Proposed findings of fact and conclusions of law were submitted by the parties pursuant to Section 120.57(1)(b)4, F.S. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order, except where such proposed findings of fact have been rejected as subordinate, cumulative, immaterial or unnecessary. Specifically, the following proposed findings of fact are substantially approved: Department's 1, 2, 4-7, 8
(first sentence), 9-15; Intervenor's 1- 10, 12, 13, 15-21. Petitioner's proposed findings of fact are specifically rejected since the conclusion drawn in proposed finding 1 is not based on competent substantial evidence, and proposed finding 2 is therefore immaterial and unnecessary. All remaining proposed findings are rejected as unnecessary, immaterial, cumulative or not based on competent substantial evidence.
Petitioners filed separate, although virtually identical, applications with the Department in February, 1983 to construct separate catwalks from their properties, with platforms at the end of each catwalk. The dimensions of each
catwalk were to be three feet by 350 feet, and the platform dimensions were to be six feet by twelve feet. This construction was to take place through a marsh and mangrove wetland and tidal creek known as Andrews Creek. Petitioner's properties adjoin and are in the interior of the creek. Intervenor's property is located at the mouth of Andrews Creek where it intersects a canal, and borders that area of the creek through which Petitioners proposed to construct their catwalks and platforms.
On March 9, 1983 the Department notified Petitioners that a permit would be required for their project pursuant to Chapters 253 and 403, F.S., that their applications were incomplete, and that approval from the Department of Natural Resources in the form of a "consent of use of state-owned land" might be required. Petitioners provided additional information in support of their application, but were again notified on April 5, 1983 that Department of Natural Resources consent or approval was necessary in order to complete their application file.
The Department prepared a permit application appraisal report on June 13, 1983 without the benefit of an on-site inspection for these applications. The appraisal was based upon written materials submitted by Petitioners in their applications. The appraisal recommended approval, noting that a single joint access facility would be preferable to the dual catwalk and platform configuration proposed by Petitioners As a result of this appraisal, the Department notified the Department of Natural Resources on July 1, 1983 that it intended to issue permits to the Petitioners but that it needed a response from the Department of Natural Resources concerning consent of use or approval pursuant to Section 253.77, F.S. Final action on Petitioners' applications could not take place until the Department received a reply from the Department of Natural Resources. Petitioners received a copy of this notice which was sent from the Department to the Department of Natural Resources.
Petitioner was again notified on August 29, 1983 that consent or approval from the Department of Natural Resources was required before the Department's approval could be given. The August 29 letter also stated that Petitioners would have to obtain a letter of authorization and affidavit of ownership from any property owner, other than Petitioners themselves, whose property would be crossed by their construction. In response, Petitioners submitted to the Department an approval they received from the local homeowner's association, but this approval was not issued in compliance with the association's by-laws, and was therefore not a valid authorization and consent to the use of whatever interest the association has in Andrews Creek.
On December 5, 1933 Petitioners notified the Department that they were amending their applications to eliminate the platforms at the end of their respective catwalks.
On or about January 3, 1984 the Department of Natural Resources suggested to the Department that public notice of this project be given due to the type and location of the project. The Department notified Petitioners on January 26, 1984 that since numerous property owners might be affected by their project, a public notice would have to be published. In response to such publication, the Department received letters from other property owners on Andrews Creek which both opposed and supported Petitioners' project.
At about the same time, the Department learned that Petitioners had already constructed their catwalks, with one large platform joining the ends of both catwalks. This construction took place despite the lack of either a permit
from the Department or consent/approval from the Department of Natural Resources. Petitioners' applications indicate the use of six inch pilings and a portable jet pump with a one inch jet nozzle in the construction of their project.
The Department performed a field inspection of the site and issued a permit application appraisal report dated May 3, 1984 which recommended denial of the permit applications while also confirming that the project had already been constructed. Denial was recommended since the dimensions of the actual construction exceeded the project dimensions described in the applications, considerable clearing of mangroves had taken place although the applications stated no such clearing would be required, and the adverse impact on water quality, marine productivity and other environmental factors the two catwalks were found to terminate with a large platform thirty-eight feet long by ten feet wide, with Zembillas' catwalk being 417.5 feet in length and Starzak's being 398 feet long. The combined project has a total square footage of approximately 3700 square feet, with each catwalk exceeding the permit exemption dimensions of 1000 square feet.
Andrews Creek has been designated a conservation area and therefore the clearing and resulting damage to the mangrove community resulting from this project is particularly significant. As part of a permitting action in 1972 the State of Florida, through he Board of Trustees of the Internal Improvement Trust Fund, negotiated with Lindrick Corporation, the developer of the residential area surrounding Andrews Creek, to preserve certain areas from development. The Board of Trustees issued a permit to Lindrick Corporation "to perform certain works in the navigable waters of the State of Florida" which allowed half of Andrews Creek to be filled and which preserved the other half that remains today as a conservation area. The conservation area was to be protected from development. Thereafter, the Lindrick Corporation entered into an agreement with the homeowner's association whereby association approval would be required for development in the conservation area.
Petitioners' project, as constructed, shades a larger area than it would have if built in accordance with their applications. Shading of wetlands can reduce dissolved oxygen levels of a wetland and thereby reduce the area's productivity. Although Petitioners offered a laboratory report showing exceedingly high dissolved oxygen levels in Andrews Creek, it appears that the sampling technique used resulted in the aeration of the sample which therefore did not reflect the true level of dissolved oxygen.
Intervenor testified that he purchased his property because of the designation of Andrews Creek as a conservation area, and the resulting privacy of such a natural habitat. Petitioners' construction has obstructed Intervenor's view of the water and wetlands area of Andrews Creek, and infringes on this privacy due to the close proximity of Petitioners' platform to Intervenor's property. The catwalk is twelve to fourteen feet from the boundary of Intervenor's property.
The portion of Andrews Creek crossed by Petitioners' project is navigable according to testimony presented, and as recognized in 1972 when a dredging permit was issued to the developer, Lindrick Corporation. The portion in question includes the original tidal creek, which is a tributary of the Gulf of Mexico via an excavated channel. Navigability of the creek has been adversely affected by this project.
There would be a significant, adverse, cumulative effect on Andrews Creek if other surrounding property owners decided to construct docks similar to Petitioners' since this would involve additional clearing of mangroves, a reduction of dissolved oxygen in the water due to extensive shading, and the further elimination of the creek's navigability. There are eighteen (18) property owners on Andrews Creek, including Petitioners and the Intervenor, and there is a reasonable likelihood that other homeowners will apply for permits to construct similar docks.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of this matter, and the parties hereto, pursuant to Section 120.57(1), F.S. The Department has permitting jurisdiction over docks on navigable waters or state- owned lands under both Chapters 253 and 403, F.S. In addition, the Department of Natural Resources must grant its consent for the use of state lands prior to the issuance of such a permit by the Department, pursuant to Section 253.77, F.S.
The laws and rules applicable to the instant case are those which were in effect at the time of the permit application in February, 1983, and at the time Petitioners proceeded to construct their dock in January, 1984, although a substantial revision to relevant statutes took place with the passage of Chapter 84-79, Laws of Florida, which took effect on October 1, 1984. The laws and rules relevant hereto are substantive, rather than purely procedural or evidentiary, which would have allowed the application of the later enacted statute. Turro v. Department of Health and Rehabilitative Services, 458 So.2d
345 (Fla. 1st DCA 1984). Additionally, since the construction had already taken place prior to the effective date of Chapter 84-79, Laws of Florida, and this is also an action for enforcement, the laws in effect at the time of the alleged violation apply. Lewis v. Criminal Justice Standards and Training Commission,
462 So.2d 528 (Fla. 1st DCA 1985). See also Department of Health and Rehabilitative Services v. Petty-Eifert, 443 So.2d 266 (Fla. 1st DCA 1983). This cause is distinguishable from State v. Oyster Bay Estates, Inc., 384 So.2d 891 (Fla. 1st DCA 1980) wherein the construction for which a permit was sought was not even begun before the effective date of the later enacted statute which the Court held should be applied.
The Department's permitting authority when dredging or filling occurs on navigable waters of the state, and submerged bottoms thereof, is conditioned upon a finding that such activity will not interfere with the natural resources and conservation of the area in a manner contrary to the public interest, and will not result in damage to marine productivity. Section 253.123(3)(d), F.S. (1983). Any person desiring to extend existing lands bordering on, or in, the navigable waters of the state by filling land must obtain a permit from the Department. Section 253.124(1), F.S. (1983). "Filling" is defined by Rule 17- 4.02(15), F.A.C., as "the deposition, by any means, of materials in waters of the state." "Dredging" is defined by Rule 17-4.02(12), F.A.C., as "the excavation, by any means, in waters of the state...(and) also the excavation...of a water body which is, or is to be, connected to any of the waters listed in Section 17-4.28(2), F.A.C., directly or via an excavated water body or series of excavated water bodies." Rule 17-4.28(2) lists the Gulf of Mexico, to which Andrews Creek is indirectly connected through an excavated channel.
In the actual construction of their catwalks and platform, Petitioners engaged in dredging and filling activities, as defined above, in a navigable
water body, or a water body indirectly connected to the Gulf of Mexico. Petitioners were therefore subject, in the construction of their dock project, to the permitting requirements of the Department under Chapters 403 and 253,
F.S. See also Rule 17-4.29, F.A.C.
An exemption from these permitting requirements is provided by Section 403.813(2)(b), F.S., (1983) for docks of 1000 square feet or less of over-water surface area used for recreation and noncommercial activities. Petitioner's docks, individually and collectively, exceed the limits of this exemption.
Section 403.161(1)(b), F.S. (1983) provides that it is a violation of Chapter 403 for any person to fail to obtain a permit required by that Chapter, and implementing rules, and Section 403.161(1)(c), F.S., (1983) further provides that it is a violation to knowingly make false statements, representations or certifications in any application submitted to the Department. Petitioners clearly constructed their joint dock without a permit, and also clearly carried out that construction in a manner that was inconsistent with the applications they filed with the Department. As such they knowingly made false statements, representations and certifications in their applications and are subject to enforcement action by the Department.
It is clear from the evidence presented that Petitioners were on notice at least four times that the consent or approval of the Department of Natural Resources might be required concerning their applications, and that their application with the Department was not complete until the Department of Natural Resources made their determination. Rule 17-4.07(2), F.A.C., provides that an application is not complete until all required information is received. Thus, although Petitioners knew that their applications were not complete until the Department of Natural Resources made its determination, they nevertheless proceeded with their project, and in doing so they ignored the very permitting process in which they were engaged.
Turning to the actual construction, it is clear that it does impede navigation in Andrews Creek, and that Petitioners have failed to produce competent substantial evidence to establish that their project does not interfere with conservation of the area and marine productivity, as required by Section 253.123(3)(d), F.S., (1983) and Rule 17-4.29(6), F.A.C. The project, as constructed, is contrary to the public interest since these factors have not been established, and also due to the reasonable potential that other landowners on Andrews Creek will seek to construct similar docks, with a resulting increasingly adverse cumulative effect. The Department has denied permit applications when an adverse cumulative impact is created by a project in connection with future construction that may reasonably be expected to occur. Rossetter v. Department of Environmental Regulation, 5 FALR 1195A (DER May 19, 1983). This consideration of cumulative impact in the permitting process is permissible if there is a reasonable likelihood that similar project applications will be submitted in the same geographic locale. Caloosa Property Owners' Association v. Department of Environmental Regulation, 462 So.2d 523 (Fla. 1st DCA 1985). Therefore, Petitioners have not established that they were entitled to the permits for which they applied in the first instance, and the Department would have had sufficient grounds to deny their permit applications.
Petitioners do not qualify for an after-the-fact permit for their project since no credible evidence was presented to show that the dock's removal would further damage Andrews Creek. This showing of adverse impact from removal is required for after-the-fact permits pursuant to Section 253.124(6)(a), F.S. (1983).
