Judges: WILLIAM J. KENDRICK
Agency: Department of Environmental Protection
Latest Update: Feb. 25, 1985
Summary: The issue raised by these proceedings is whether Respondent, Department of Environmental Regulation (DER), should issue a permit to Respondent, Grove Isle, Ltd. (Grove Isle), to construct a 90-slip marina in Biscayne Bay, Miami, Florida. At final hearing the parties offered Joint Exhibits 1, 2, and 3, and they were received into evidence. Respondent, Grove Isle, called J. Frederick Blitstein, Frank Makowski, Eric J. Olson, Melvin Brown, Anthony J. Clemente, Samuel Snedaker, and Terry Docter Hess
Summary: The issue raised by these proceedings is whether Respondent, Department of Environmental Regulation (DER), should issue a permit to Respondent, Grove Isle, Ltd. (Grove Isle), to construct a 90-slip marina in Biscayne Bay, Miami, Florida. At final hearing the parties offered Joint Exhibits 1, 2, and 3, and they were received into evidence. Respondent, Grove Isle, called J. Frederick Blitstein, Frank Makowski, Eric J. Olson, Melvin Brown, Anthony J. Clemente, Samuel Snedaker, and Terry Docter Hess, as witnesses. Grove Isle Exhibits 1, 5- 12, 14-18, 21, 23-26, 30, 32, and 34-39, were received into evidence.Applicant for marina permit entitled there to on application of doctrines of res judicata and stare decisis. Applicant also was entitled to permit on merits.
More
vs. ) CASE NO. 84-2639
) STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION ) and GROVE ISLE, LTD., )
Respondents. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a public hearing in the above-styled case on December 17-18, 1984, in Miami, Florida.
For Petitioners: Douglas M. Halsey, Esquire
David A. Doheny, Esquire 1778 South Bayshore Lane Miami, Florida 33133
For Respondent, Kenneth G. Oertel, Esquire Grove Isle, Segundo J. Fernandez, Esquire Ltd.: OERTEL & HOFFMAN, P.A.
Clifford A. Schulman, Esquire GREENBERG, TRAURIG, HOFFMAN, LIPOFF, QUENTEL & WOLFF, P.A.
For Respondent, E. Gary Early, Esquire Department of Assistant General Counsel
Environmental Department of Environmental Regulation Regulation: 2600 Blair Stone Road
The issue raised by these proceedings is whether Respondent, Department of Environmental Regulation (DER), should issue a permit to Respondent, Grove Isle, Ltd. (Grove Isle), to construct a 90-slip marina in Biscayne Bay, Miami, Florida.
At final hearing the parties offered Joint Exhibits 1, 2, and 3, and they were received into evidence. Respondent, Grove Isle, called J. Frederick Blitstein, Frank Makowski, Eric J. Olson, Melvin Brown, Anthony J. Clemente, Samuel Snedaker, and Terry Docter Hess, as witnesses. Grove Isle Exhibits 1, 5- 12, 14-18, 21, 23-26, 30, 32, and 34-39, were received into evidence.
Respondent, DER, called Larry O'Donnell, as a witness. DER Exhibits 1-7 were received into evidence. Petitioners called Suzanne P. Walker, Harold R. Wanless, Eugene F. Corcoran, Richard W. Alleman, Anitra Thorhaug, Robert Lee Kelley, Warren Joe Rose, S. Cook-Yarborough, Bernard F. Silver, Norman Moscowitz, Phillip J. Mandina, Peyton Lumpkin, Daniel K. O'Dell, Carmen T. Doheny, and David A. Doheny, as witnesses. Petitioners' Exhibits 1-17 were received into evidence.
The transcript of hearing was filed on January 7, 1985. Pursuant to the parties' request, an extension of time was given in which to submit proposed findings of fact and conclusions of law. The parties waived the requirement set in Rule 28-5.402, F.A.C. that a recommended order be entered within 30 days after the transcript of hearing was filed.
Petitioners and Respondents have submitted proposed findings of fact and conclusions of law. The parties' proposed findings and conclusions have been reviewed and considered. To the extent that any proposed findings have not been adopted in this Recommended Order, they have been rejected as being subordinate, cumulative, immaterial, or unnecessary, or as being contrary to the facts as found in this Recommended Order.
This matter has a long history. The full itinerary of this matter's arduous journey through the Administrative Procedure Act and the appellate courts may be glimpsed from the opinions of the District Court of Appeal in Grove Isle, Ltd. v. Bayshore Homeowners Association, Inc., 418 So.2d 1046 (Fla. 1st DCA 1982), Doheny v. Grove Isle, Ltd., 442 So.2d 966, reh. granted, 442 So.2d 977 (Fla. 1st DCA 1983), and Grove Isle, Ltd. v. State, Department of Environmental Regulation, 454 So.2d 571 (Fla. 1st DCA 1984). These cases may be referred to as Grove Isle I, Grove Isle II, and Grove Isle III, respectively.
In 1978 Grove Isle submitted its initial application to DER for construction of the marina which is now the subject matter of this proceeding. Grove Isle's initial application was challenged by the same Petitioners who now challenge Grove Isle's "reapplication."
In the first case the hearing officer, applying Class III standards for water quality, entered an order on February 22, 1980, recommending that the permit be issued. DER remanded the case to the hearing officer to determine whether the standards of the Outstanding Florida Waters (OFW) rule, Rule 17- 4.242(1)(a), F.A.C., should apply, and if so, whether Grove Isle had satisfied those requirements. On remand, the hearing officer entered a recommended order
finding that the OFW rule did apply, that Grove Isle had provided reasonable assurances that the proposed marina would not lower existing ambient water quality, and that the proposed marina was not clearly in the public interest. Accordingly, the hearing officer recommended that the permit be denied.
On December 29, 1980, DER entered a final order denying the permit because the project was not "clearly in the public interest" and it was uncertain whether ambient water quality would be lowered. DER found that, unless a "restricted mixing zone" was applied for, ambient water quality was to be measured within the project site, not in the small cove in which the marina was to be located as found by the hearing officer. On appeal, the court affirmed DER's denial of the permit. While DER's denial was affirmed because Grove Isle had failed to establish that the project was "clearly in the public interest," the court found that DER had failed to establish a record foundation which would permit it to substitute its conclusion that ambient water quality should be measured within the project site, as opposed to the small cove as found by the hearing officer. Grove Isle, Ltd. v. Bayshore Homeowners Association, Inc., supra.
On May 18, 1981, while Grove Isle I was pending in the appellate court, Grove Isle filed the "reapplication" which is the subject matter of this case. The design and location of the marina were identical to Grove Isle's initial application. However, in an effort to satisfy the OFW rule Grove Isle proposed to add riprap and plant mangrove seedlings in an effort to satisfy the public interest criteria, and requested a mixing zone in conformity with DER's final order in Grove Isle I. DER initially entered a final order denying the application because:
This project was reviewed previously... and was determined not to be clearly
in the public interest pursuant to Section 17-4.242, F.A.C. No further evidence, upon resubmittal, has been provided to clearly demonstrate that this project is in the public interest.
Furthermore, the requested mixing zone exceeds that allowable pursuant to Section 17-4.244,F.A.C., and
can be applied only during the con- struction period, pursuant to Section 17.4.242, F.A.C. During the operation of this facility ambient water quality is expected to be degraded in violation of Section 17-4.242, F.A.C.
Thereupon, Grove Isle filed a petition for a hearing pursuant to Section 120.57(1), Fla.Stat., and sought a default permit. The hearing officer entered a recommended order that the default permit issue, and DER entered a final order granting the default permit.
On appeal the court reversed and remanded the case to DER for further proceedings. The predicate for its remand was:
Even though Grove Isle was not entitled to a default permit, it does not follow that DER was justified in entering its
earlier ... (order denying the applica- tion) ... without first informing Grove Isle that it had found its application to be deficient, specifying such deficiencies and allowing time for corrections....
Doheny v. Grove Isle, Ltd., supra, at 975.
Appellant Doheny had asserted that Grove Isle's reapplication could not be further considered by reason of the doctrine of res judicata or estoppel by judgment. This was, essentially, DER's position in its denial of the "reapplication." The court held, however:
Inasmuch as this Court affirmed the denial of Grove Isle's first application on the grounds of the applicant's failure to show that the proposal was clearly in the public interest and since it was
determined that the first application was properly denied even though the applicant satisfied the other criterion regarding ambient water quality, it would appear that the reapplication should be denied unless the applicant could demonstrate
some change or modification which would show that the project was clearly in the public interest.
However ... I am of the view that it would be premature for us to hold that Grove Isle's second application
is barred by either doctrine. Whether Grove Isle, after a Rule 17-4.07(2) notification by DER as contemplated above, would be able to remedy the existing deficiency in its present application remains to be seen.
New facts, changed conditions or additional submissions by the applicant may materially affect the ultimate applicability of res judicata or estoppel by judgment.
Doheny v. Grove Isle, Ltd., supra, at 975.
While Grove Isle's "reapplication was pending on remand before DER, Grove Isle filed a rule challenge contesting the validity of Rule 17-4.242,
F.A.C. The hearing officer upheld the validity of the rule, but the appellate court held that the "public interest" requirement was an invalid exercise of delegated legislative authority. Grove Isle, Ltd. v. State, Department of Environmental Regulation, supra.
Following the decision of Grove Isle III, Grove Isle's attorney, by letter dated March 21, 1984, responded anew to DER's June 18, 1981, completeness summary. That letter provided, in pertinent part:
With regard to water quality, that issue has been determined in a prior proceeding and is res judicata on the parties. In response to your request for additional information
the enclosed information is submitted.
Permit application
DOAH Hearing Officer's Recommended Order of February 22, 1980
DOAH Hearing Officer's Recommended Order on Remand of November 20, 1980
DER's Final Order of December 29, 1980
Decision in Grove Isle v. Bayshore Homeowners Associ- ation, 418 So.2d 1046
(Fla. 1st DCA 1982)
The decision in David A. Doheny v. Grove Isle, Ltd., and the State of Fla., DER, Case NO. AM476
This submittal contains the necessary information on which to determine com- pliance with the applicable water quality standards and criteria.
On June 25, 1984, DER issued its Notice of Intent to Issue the permit. The notice provided, in pertinent part:
The Department intends to issue the permit for the following reasons:
No significant immediate or long term negative biological impact is anticipated and State water quality standards should not be violated as a result of the pro- posed construction.
This intent is based on information supplied by the applicant that the proposed project will not violate existing ambient water quality standards and on the cases of Grove Isle, Ltd. v. Bayshore Homeowners Association, 418 So.2d 1046(Fla.
1st DCA 1982) and Doheny v. Grove Isle, Ltd., 442 So.2d 996 (Fla.
1st DCA 1983)(sic).
Petitioners timely filed their Petition for Administrative Hearing pursuant to Sections 120.57(1), Fla.Stat. The petition was referred to the Division of Administrative Hearings and assigned Case No. 84-2639.
The Marina
The permit sought by Grove Isle would allow it to construct six concrete fixed piers, five "T" shaped, one "L" shaped, with a boat docking capacity of 90 pleasure boats. The piers will extend a maximum of 165 feet offshore from an existing concrete bulkhead on the west side of Grove Isle. The width of the piers will be eight feet from the bulkhead to a point 41 feet offshore, and then increase to a width of 10 feet. A sewage pumpout facility is also proposed. DER's June 25, 1984, Letter of Intent proposed to issue the permit subject to the following conditions:
Adequate control shall be taken during construction so that turbidity levels beyond a 50 foot radius of the work area do not exceed 50 J.C.U.'s as per Sec- tion 24-11 of the Metropolitan Dade County Code.
During construction, tur- bidity samples shall be collected at mid-depth twice daily 50 feet upstream and 50 feet downstream of
the work area. The contractor shall arrange to have turbidity sample results reported to him within one hour of collection. Turbidity monitoring reports shall be sub- mitted weekly to the Department
of Environmental Regulation (DER) and the Metropolitan Dade County Environmental Resources Management (MDCERM).
If turbidity exceeds 50 J.C.U.'s beyond a 50 foot radius of the work area, turbidity curtains shall be placed around the work area and MDCERM notified immediately. Tur- bidity samples shall be collected
as per specific Conditions No.
2 no later than one hour after the installation of the turbidity cur- tains. If turbidity levels do not drop below 50 J.C.U.'s within one hour after installation of the curtain,
all construction shall be halted. Construction shall not be resumed until the contractor has received authorization from MDCERM.
No liveaboard vessels (per- manent or transient) shall be docked at this facility unless direct sewage pumpout connections are pro- vided at each liveaboard slip. A
permanent pumpout station shall be installed and maintained for the removal of sewage and wastes from the vessels using this facility. Compliance with this requirement will entail the applicant contacting the Plan Review Section of MDCERM for details con- cerning connection to an approved
sewage disposal system.
Boat traffic to the shallow
30 foot wide dense seagrass area which parallels the shoreline shall be restricted by the placement of wooden piles on six foot centers along the entire shoreline facing the marina.
The channel from this marina to deeper water in Biscayne Bay shall be marked to prevent boats from straying into adjacent shallow areas. This will prevent habitat destruction.
A chemical monitoring program shall be established to determine the affect of this marina on the water quality of this section of Biscayne Bay. Surface and mid-depth samples shall be collected at three points
in the project area and at one back- ground station. Parameters shall include, but not be limited to, dissolved oxygen, pH, salinity, tempera- ture, total coliform and fecal coliform, and fecal streptococci bacteria, oil
and grease, biochemical oxygen demand and turbidity. Background samples shall be collected prior to construction and quarterly for a minimum of one year after 90 percent occupancy of the marina. In addition to the chemical monitoring program, a bethnic
community monitoring program is to be established. Samples of the bethnic seagrass community within and adjacent to the project area are
to be collected prior to construction and quarterly for a minimum of one year after 90 percent occupancy of the marina. Should either monitoring program detect dissimilar changes at
its monitoring and control stations, DER and MDCERM shall be notified and the results of the programs(s) evaluated.
The monitoring program shall be reviewed and approved by the DER and the MDCERM prior to implementation.
Monitoring reports shall be
submitted to the DER and the MDCERM and the U.S. Army Corps of Engineers on a regular basis.
Warning signs shall be posted in the marina area advising marina users that manatees frequent the area and caution should be taken to avoid collisions with them.
Issuance of this permit does not relieve the applicant from securing all applicable construction permits including, but not limited to, general construction, electrical, plumbing, etc.
The planting of mangroves and the placement of boulder riprap shall be generally constructed as outlined in
report number THI-004-005/84 by Melvin S. Brown for Grove Isle, Inc. The mangrove/ riprap site shall be staked by the appli- cant and approved by the Department or MDCERM. Such construction shall not
take place in areas vegetated by sea- grasses.
Mangrove seedlings (four leaf stage or older) shall be planted with a density of approximately one plant per-square meter. Seedlings shall be replaced in order to maintain 80 percent survival
until such time as the Department determines that establishment of the mangroves is reasonably assured (approximately two years). At that time the Department
shall notify the permittee of the termination of the revegetation respon- sibilities.
Grove Isle has agreed to comply with all the conditions established by the DER Letter of Intent and, additionally, agreed at final hearing to employ a full-time dock master, prohibit the pumping of bilges and sewage from boats docked at the marina, make the sewage pumpout facility available to the public, limit the ownership and use of the boat slips to condominium owners at Grove Isle, and provide additional channel markings from the Grove Isle marina to the Deering Channel.
The location and design of the proposed marina has not changed since Grove Isle's initial application. The conditions attached to DER's Letter of Intent, with the exception of Conditions 11 and 12, are the same as previously applied to Grove Isle.
The Marina Site
Grove Isle is a spoil bank in Biscayne Bay located approximately 700 feet east of the Florida mainland. It is linked to the mainland by a two-lane concrete bridge. The island is currently under development for a 510-unit condominium community with associated facilities such as a restaurant, hotel, and the proposed marina.
The island is surrounded by a concrete bulkhead constructed many years ago. No changes in the bulkhead line are proposed.
Grove Isle proposes constructing the marina on concrete piles driven in the bay bottom from a shallow draft barge. During construction there would be some turbidity caused from the disruption of the Bay sediment. This can, however, be adequately controlled by the use of turbidity curtains during construction. The construction will not require any filling.
In the immediate marina site the most significant biota are a 20-30 foot wide bed of seagrasses running parallel to the seawall. There are no other important biota because at one time the area was extensively dredged to create the island. There are no oyster or clam beds nearby. The water depth in the area ranges from one foot near the island bulkhead to 12 feet offshore to the west of the island.
This particular seagrass bed consists primarily of turtle grass (thalassia testudinum) with some Cuban Shoal Weed (Halodule Wrightii). Protection for these grasses will be provided by a buffer zone between the island and the boat slips. The grassy zone will be bordered by a row of dolphin piles to exclude boat traffic. Because the grass requires sunlight for photosynthesis and therefore life, the six piers will have grated walkways where they pass over the grass. This will allow sunlight to reach below.
In addition to the small grass bed on the west of the island, there are extensive beds to the northeast, east and south of the island that extend several hundred yards from the island in water depths of three to ten feet. If boat traffic in the vicinity is markedly increased due to the existence of the marina, it is conceivable that the number of propeller scars in these shallow beds could increase. At the present time the beds are already traversed by boats, some of which are owned by Petitioners' members. There are already, for example, approximately 50 craft which operate from the nearby mainland or from Pelican Canal directly across from the island. Grove Isle's assurance that ownership and use of the boat slips at the marina will be limited to those persons who own condominium units at Grove Isle will assure that boat traffic generated by the marina will be no different in kind nor more frequent than that generated by existing craft in the area.
Potential damage, from existing craft and those which will occupy the marina, to the seagrasses on the north, east, and south of the island will be eliminated or minimized by the planned installation of navigation markers by Grove Isle. These markers will channel boats into water of a navigable depth and lessen the number of groundings and near groundings which cause the scarring.
There is evidence that boats by their very existence and operation are potential pollution sources. Anti-fouling bottom paints by their very nature leach minute amounts of metals such as copper or tin into the waters. These deposits, however, would not be measurable. Further, the marina site has adequate flushing to disperse any pollutants which may be generated by the marina operation.
Petitioners also suggest that turbidity, caused by the operation of the marina, could cause a degradation of water quality and affect the biota in the area. Petitioners' assertion must be rejected for two reasons. First, this question was raised and rejected in Grove Isle I. No changed conditions or new facts which were not available at the time of final hearing in Grove Isle I were
presented. Second, in the four years that have intervened since the first hearing, these waters have been extensively used by the public, including Petitioners, for such activities as waterskiing and fishing. In that time period there has been no degradation of water quality, or harm to the biota. In fact, the biota have expanded.
The fueling of boats and sewage discharge are additional pollution sources generally associated with marinas. However, the proposed marina will have no fueling or maintenance facilities, and all craft docked at the marina will be prohibited from pumping bilges and sewage into the waters.
The foregoing findings of fact are, without significant exception, identical to those in Grove Isle I.
Grove Isle IV
Only three areas of inquiry were present in this case which may not have existed in Grove Isle I. First, Petitioner asserted that Grove Isle's application was incomplete because of its failure to secure the approval of the Department of Natural Resources (DNR) for use of the bay bottom, and that, therefore, Part VIII, Chapter 403, Florida Statutes, the "Warren S. Henderson Wetlands Protection Act of 1984" (Wetlands Act) was applicable to these proceedings. Contrary to Petitioner's assertion, Grove Isle secured and exhibited its consent to use the submerged lands in question. Grove Isle received the requisite consent from DNR in connection with its first application. Pursuant to Rule 16Q-18.03(2), F.A.C., that consent to use remains binding. Further, DNR was noticed of Grove Isle's "reapplication" and evidenced no intention to withdraw its previous consent to use. Grove Isle complied with Section 253.77, Fla.Stat. Consequently, Grove Isle's application was complete prior to October 1, 1984, and the Wetlands Act is not applicable to this case.
The second issue presented in this case which Petitioners assert was not present in Grove Isle I, is Grove Isle's request for a mixing zone. Although its "reapplication" did request a mixing zone in accordance with DER's
Final Order of December 29, 1980, Grove Isle objected to its necessity since the proper geographic area within which to measure ambient water quality, according to it, was a subject matter of the pending appeal in Grove Isle I. The mixing zone applied for in its "reapplication" was somewhat smaller, but did not significantly differ from the area adopted by the hearing officer in Grove Isle I.
In Grove Isle I the parties had differed with regard to the proper geographic area within which to measure ambient water quality. The hearing officer adopted as the appropriate geographic area that part of Biscayne Bay to the west of Grove Isle, to the north of the Grove Isle bridge, to the east of the Miami mainland, and to the immediate south of the Mercy Hospital landing facing Grove Isle. DER's Final Order of December 29, 1980, rejected the hearing officer's conclusion because
Determination of compliance with water quality standards is made within the project area itself unless a mixing zone is applied for and granted by the Department. Section 17-4.242(1) (a)2b, Florida Administrative Code, specifically states that
ambient water quality standards may not be lowered unless such a lowering is temporary in nature (i.e., not more than 30 days)
or unless the "lowered water quality would occur only within a restricted mixing zone approved by the Department..."
(EmphasisSupplied.)
The record does not show that a "restricted mixing zone" was applied for by the applicant or granted by the Department. Therefore, the hearing officer was not at liberty to apply a mixing zone in this case.
In Grove Isle I DER's witness, Larry O'Donnell-- Supervisor of the Dredge and Fill Section of DER's West Palm Beach office--testified that ambient water quality was to be measured within the project site--the specific area occupied by the marina circumscribed by the bulkhead line and out the length of the piers (165 feet). On appeal, the court held that DER erred in rejecting the hearing officer's conclusion, and stated
DER offered no expert testimony or evidence, other than conclusory allegations, that ambient water quality must be measured within
the project site rather than within the reasonably contiguous area used by the hearing officer. Absent such record foundation, DER is not free to substitute its conclusions for those of the hearing officer.
Grove Isle, Ltd. v. Bayshore Homeowners' Assoc., Inc., supra, at 1049.
In the instant case the testimony of Mr. O'Donnell was clear that DER accepted the opinion of Grove Isle I as demonstrating satisfaction of ambient water quality under the OFW rule. Consequently, DER has acceded that ambient water quality is to be measured not only within the project site but also within a reasonably contiguous area of the project site, as found by the hearing officer in Grove Isle I.
Petitioners took exception to DER's decision. To support their position, Petitioners offered the testimony of Suzanne Walker, DER's Chief of Permitting. Ms. Walker's opinion was that ambient water quality had to be satisfied everywhere, including the marina site proper, and that a mixing zone, except on a temporary basis during construction, was not permitted under Rule
17-4.242, F.A.C. Accordingly, the question of where ambient water quality is to be measured is presented anew.
Ambient water quality is to be measured within the area established by the hearing officer in Grove Isle I for three reasons. First, the issue was presented in Grove Isle I and the doctrine of res judicata or estoppel by judgment bars relitigation of this same issue. Second, the testimony of Ms. Walker was of no greater substance than that rejected by the court in Grove Isle
I. Finally, Ms. Walker's opinion is questionable since she also testified that a mixing zone, except on a temporary basis during construction, was not permissible in Outstanding Florida Waters. The OFW rule, Rule 17- 4.242(1)(a)2.b, F.A.C., clearly contemplates and authorizes a mixing zone for purposes other than construction.
The record is silent as to whether DER granted Grove Isle's request for a mixing zone. It is clear, however, that DER accepted the geographic area established in Grove Isle I as the proper area within which to measure ambient water quality. Accordingly, it is not necessary to pass on Grove Isle's request for a mixing zone.
The final matters not litigated in Grove Isle I concern Grove Isle's agreement to (1) add riprap and plant mangrove seedlings, (2) employ a full-time dock master to provide additional assurance that operation of the marina will be ecologically sound, (3) prohibit the pumping of bilges and sewage from boats moored at the marina, (4) make the pumpout facility available to the public, (5) limit the ownership and use of the boat slips to the owners of the condominium units at Grove Isle, and (6) mark a channel from Grove Isle to the Deering Channel so that a deep water channel to open waters will be available. While these additional assurances were not presented in Grove Isle I, and consequently did not affect the hearing officer's recommendation that the permit be granted, each of these matters are of positive benefit to the ecology, and demonstrate Grove Isle's commitment to sound marina design and operation.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
The issues in this case, as they were in Grove Isle I, are whether Grove Isle has provided reasonable assurances that the construction and operation of the proposed marina will not cause a violation of state water quality standards, will not interfere with the conservation of fish or other marine wildlife, and will not create a hazard to navigation. Chapters 253, 258 and 403, Fla.Stat.; Chapters 17-3 and 17-4, F.A.C.
Grove Isle contends it has carried its burden to establish the requisite "reasonable assurances" either on the merits or by application of the doctrines of res judicata, estoppel by judgment, and stare decisis. Petitioners contend such reasonable assurances have not been given and that the doctrines of res judicata, estoppel by judgment and stare decisis are not applicable to this case.
Res judicata and estoppel by judgment are applicable to administrative proceedings. Doheny v. Grove Isle, Ltd., supra. Under res judicata, a final judgment bars a subsequent suit on the same cause of action, between the same parties, and is conclusive as to all matters germane to the first suit which were, or could have been, raised. The principle of estoppel by judgment is applicable where, though the two causes of action are different, the issues raised in the second suit were presented and adjudicated in the former action.
32 Fla.Jur.2d, Judgments and Decrees, Section 102. The doctrines may not apply if there are changed conditions or new facts which did not exist at the time of the prior judgment. Doheny v. Grove Isle, Ltd., supra; Coral Reef Nurseries, Inc. v. Babcock Co., 410 So.2d 648 (Fla. 3d DCA 1982).
The Hearing Officer has thoroughly considered the record in this case, including the record in Grove Isle I, the prior recommended and final orders, as well as the appellate opinions. The record is emphatically clear that the final hearing in this case was little more than an "instant replay" of Grove Isle I.
Public policy and the interest of the litigants demand that there be an end to this litigation. A party should not be permitted to litigate or relitigate the same issues, to the harassment and vexation of his opponent. Grove Isle has established its entitlement to the permit by application of the doctrines of res judicata or estoppel by judgment, and stare decisis. Any variance between the original application and Grove Isle's reapplication only bolsters its prior assurances that the proposed project will not lower existing ambient water quality within these Outstanding Florida Waters, that it will not interfere with the conservation of fish, marine and other 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, the destruction of natural marine habitats, grass flats suitable as a nursery or feeding grounds for marine life, and established marine soils suitable for producing plant growth of the 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. The project will not create a navigational hazard, be a serious impediment to navigation, or substantially alter or impede the natural flow of navigable water so as to be contrary to the public interest.
Apart from the application of the doctrines of res judicata, collateral estoppel, and stare decisis, Respondent, Grove Isle, Ltd., has provided reasonable assurances that the proposed marina will not violate state water quality standards and other criteria. Respondent, Grove Isle, Ltd., has provided reasonable assurances that the existing ambient water quality will not be lowered as a result of the proposed marina, and has provided adequate biological, ecological, and hydrographic surveys which demonstrate that the proposed project and activities associated thereto will not interfere with the conservation of fish, marine, and other wildlife, or other natural resources to such an extent as to be contrary to the public interest. The project, further, will not result in the destruction of oyster beds, clam beds, or marine productivity, including, but not limited to, the destruction of natural marine habitats, grass flats suitable for nursery or feeding grounds for marine life, and established marine soils suitable for producing plant growth of the 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. The project will not create a navigational hazard, be 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.
While Grove Isle is entitled to the issuance of the subject permit by application of the doctrines of res judicata or estoppel by judgment and stare decisis, or on the merits, it is not, as it requests, entitled to a default permit. Although 90 days did elapse since the last response of Grove Isle to DER's completeness summary, and although that could preclude DER from contesting issuance of the subject permit, such "default" by DER cannot operate to preclude those persons, such as Petitioners, whose substantial interests are affected, from contesting the issuance of the permit. See: Final Order, DOAH Case No.
81- 2609, May 4, 1982.
Grove Isle has further requested that the hearing officer make a finding that the proposed marina is "clearly in the public interest." The
"clearly in the public interest" standard of Rule 17-4.242(1)(a)2., F.A.C., was declared invalid by Grove Isle, Ltd., v. State, Department of Environmental Regulation, supra, and was not a proper subject matter of this proceeding.
However, if proper, the Hearing Officer would be compelled to conclude that the project is not "clearly in the public interest."
The State has ceded public lands, without compensation, to a private developer, for strictly commercial purposes. No difference exists between the ceding of public lands for the construction of boat docks and their sale for profit, and the ceding of public lands for the construction of condominiums, or any other use, and their sale for profit. The result is the same. These lands are forever lost to the enjoyment and benefit of the public, with no resulting public benefit. Nothing presented by Grove Isle comes close to demonstrating that, if required, the proposed marina is "clearly in the public interest."
Finally, Petitioners assert that Grove Isle's "reapplication" is incomplete for failure of DER to hold the public hearing required by Section 255.165, Fla.Stat. A public hearing was held on Grove Isle's first application. No changes of any significance were presented in Grove Isle's "reapplication," and this Section 120.57(1) hearing was advertised and open to the public. Grove Isle did all it could to comply with the appropriate statutes and rules. Any failure to hold a public hearing, pursuant to the provisions of Section 258.165, Fla. Stat., was DER's responsibility and had no effect on the completeness of Grove Isle's application.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that:
DONE AND ENTERED this 25th day of February, 1985, at Tallahassee, Florida.
WILLIAM J. KENDRICK
Filed with the Clerk of the Division of Administrative Hearings this 25th day of February, 1985.
Douglas M. Halsey, Esquire Suite 1000
David A. Doheny, Esquire 1778 South Bayshore Lane Miami, Florida 33133
Kenneth G. Oertel, Esquire Segundo J. Fernandez, Esquire OERTEL & HOFFMAN, P.A.
Clifford A. Schulman, Esquire GREENBERG, TRAURIG, HOFFMAN,
LIPOFF, QUENTEL & WOLFF, P.A.
E. Gary Early, Esquire Assistant General Counsel Department of Environmental
