STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GROVER RYAN and MARGARET B. RYAN, )

)

Petitioners, )

)

vs. ) CASE NO. 86-0992

) JOHN SPANG and DEPARTMENT OF ) ENVIRONMENTAL REGULATION, )

)

Respondent. )

) PANET E. and JERRIE L. PETERSON, )

)

Petitioners, )

)

vs. ) CASE NO. 86-1366

) JOHN SPANG and DEPARTMENT OF ) ENVIRONMENTAL REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to the notice of hearing furnished the parties, the final hearing in this case was held in Daytona Beach, Florida on June 6, 1986. Stephen F. Dean, duly designated Hearing Officer with the Division of Administrative Hearings substituted for P. Michael Ruff. The issue for consideration was whether John Spang, Respondent, was entitled to a dredge and fill permit related to proposed dock construction at the Riverside Hotel, New Smyrna Beach, Florida.

The parties have submitted posthearing Proposed Findings of Fact. A ruling has been made on each proposed finding of fact in the appendix to this Recommended Order.

APPEARANCES

For Petitioners: William F. Hathaway, Esquire

Post Office Drawer H

New Smyrna Beach, Florida 32070

For Respondent: Vivian F. Garfein, Esquire

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

Hal Spence, Esquire

221 North Causeway Post Office Box 1266

New Smyrna Beach, Florida 32070

ISSUES

The issues presented for consideration by the hearing officer were as follows:

1. Whether the project would adversely the public health, safety, or welfare or the property of others;

   
   

2. Whether the project would adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats;

   
   

3. Whether the project would adversely affect navigation;

   
   

4. Whether the project would adversely affect the fishing or recreational values in the vicinity of the project;

   
   

5. Whether the project would be of a temporary or permanent nature; and

   
   

6. Whether the project would adversely affect the current condition and relative value of functions being performed by areas affected by the proposed activity.

FINDINGS OF FACT

1. On February 21, 1985, the Respondent, John Spang, applied to the Department of Environmental Regulations, Department of natural Resources and the Army Corp. of Engineers for permits necessary to construct two docking facilities, one on each side of the east end of Coronado Bridge, commonly known as the "North Bridge" on the Indian River, north in New Smyrna Beach, Volusia County, Sections 55 and 9, Township 17 South, Range 34 East.

   
   

2. The proposed docks include a total of 24 boat slips.

   
   

3. The proposed docks are within 25 feet of the right-of-way of the Coronado Bridge on both the north and south sides.

   
   

4. The proposed docks consist of four piers. The piers, from south to north, are 101 feet, 102 feet, 122 feet and 122 feet in length respectively. See Respondent's Exhibit #2.

   
   

5. The piers south of the bridge are 75 to 80 feet from the east edge of the channel of the Intracoastal Waterway. The piers north of the bridge are 60 to 65 feet from the east edge of the channel of the Intracoastal Waterway.

   
   

6. The proposed docking facilities shall service commercially zoned properties `to which they shall be attached and, in particular, the Riverview Hotel and Charlie's Blue Crab Restaurant, at the Riverview.

   
   

7. The Petitioners, Grover Ryan and Margaret Ryan, own the commercially zoned property adjacent to the subject property to the south, located at 100 West Columbus Avenue, New Smyrna Beach, Florida. The Ryans operate a commercial business. On March 17, 1986, the Ryans filed a petition for an administrative hearing.

   
   

8. Panet E. and Jerrie L. Peterson of 200 Canova Drive, New Smyrna Beach, Florida own the real property located on the river adjacent to the Ryans but not

   adjoining the proposed docking area or the property of the applicant. On April 15, 1986, the Ryans filed a petition for an administrative hearing.

   
   

9. On February 14, 1986, the Department of Environmental Regulation issued Permit Number 64-099806-4, to construct the proposed docking facilities, subject to specific modifications and conditions to those applications. Issuance of the permit was based upon the following:

   
   

   1. The Army Corp. of Engineers assessed the proposed docking facilities and determined that the project will not impede navigation or otherwise cause danger to the health, safety or welfare of vessels and persons traveling in the Intracoastal Waterway. On April 18, 1986, the Army Corp. of Engineers issued Permit No. 85IPL-20644 for construction of piers pursuant to the applicant's proposal for docking facilities.

      
      

   2. The harbor and dockmaster for the City of New Smyrna Beach determined that the proposed docking facilities would not impede or endanger navigation of the river and Intracoastal Waterway, if pilots entering and leaving the docking area carefully follow the rules of road.

      
      

   3. Actual testing of the proposed site by the Department of Environmental Regulation revealed no seagrasses or rooted macrophytes which might be destroyed by the proposed docks. Flushing in the river was found to be excellent and would alleviate any short-term turbidity problems and would further mitigate against any pollutants from the docking areas to the extent that no water quality violations were anticipated.

      
      

   4. The United States Department of Interior, Fish and Wildlife Service determined that the area of the proposed docking facility would not have an adverse affect on the manatee otherwise endanger them.

      
      

10. Although the dock will restrict fishing from the bridge between the shore and channel, it will not significantly affect adversely the recreational uses. Generally, bridge fishing is being restricted in Florida due to the hazards to fishermen from traffic. The fishing from boats will be unaffected. There is no marine production in the area.

    
    

11. The boat traffic in the vicinity of the proposed docking facility is considered heavy, and there are no restrictions on boating speed. The bridge is raised frequently, but heavy traffic requires boats to wait on weekends.

    
    

12. The bridge fenders and concrete abutments of the bridge block the lateral view of boaters as they approach, pass under and leave the Coronado Bridge, and likewise obscures the boats in the bridge area from boaters in the proposed dock area.

    
    

13. The closest dock to the south of the proposed docks is owned by the Ryans. Mr. Ryan has used his dock for forty-seven (47) years and uses it to dock his large commercial shrimp boat. Mr. Ryan operates a wholesale/retail seafood store on the property which he owns adjoining the Spang's property. As originally proposed, the southernmost dock sought by the Spang's would interfere with Ryan docking his boat at Ryan's dock.

    
    

14. The next dock to the south of the proposed docks and Mr. Ryan's dock is owned by the Petersons. This a forty (40) foot dock which is used for noncommercial purposes. Because it does not protrude as far into the water as Ryan's dock, there is no hazard created by the proposed docks.

15. A conditioned modification to the application was the reduction in size of the southernmost docking facility by 15 feet and the construction of handrails on the outer edges of each dock to prevent mooring of boats along the outer edges. The reduction of the southernmost dock by 15 feet, together with handrails and prevention of mooring of boats on the outside of the docks provided reasonable assurance that there was no impediment to navigation, to include Ryan docking his boat. However, the design of the exits to the two proposed docking areas promotes direct entry at right angles into the Intracoastal Waterway. This is potentially hazardous.

    
    

16. Petitioner Ryan has an easement over the Spang property to permit public access to Ryan's property from the right-of-way of the bridge and highway. Spang's restaurant, which has already been built at the site, actually traverses the easement, not the proposed docking facility. The proposed facility does not interfere with the easement the Ryans hold landward of the mean high waterline from the highway right-of-way south to the Ryan's business.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the subject matter of, and the parties to, these proceedings pursuant to Section 120.57(1), Florida Statutes.

    
    

18. The Department of Environmental Regulation has jurisdiction over the construction of the proposed dock on this water body pursuant to Chapter 403, Florida Statutes, and Chapters 17-3 and 17-4, Florida Administrative Code.

    
    

19. Reasonable assurances have been provided that the proposed project will not violate water quality standards or other requirements established pursuant to Chapter 403, Florida Statutes, and pursuant to Rules 17-4.28 and 17- 4.29, Florida Administrative Code. Specifically, based on the evidence presented, reasonable assurances were provided that the proposed project will not result-in violations of criteria for Class III waters as set forth in Rule 17-3.121, Florida Administrative Code.

    
    

20. The evidence also indicates that the project is not contrary to the public interest and will not violate Chapter 403.918, Florida Statutes, in that the project will not adversely affect the public health, safety, welfare, or property of others; nor adversely affect the conservation of fish and wildlife, including endangered or threatened species or their habitats; nor adversely affect navigation or the flow of water or cause harmful erosion or shoaling; nor adversely affect the fishing or recreational values or marine productivity in its vicinity.

    
    

21. Mr. Ryan's easement would not be affected by the proposal. Any interference with his easement is the result of conditions landward of the mean high waterline and is not an injury which arises from the proposed dock which is seaward of the mean high waterline. In addition, Section 403.918(2)(a)1. provides:

    
    

    (a) In determining whether a project is not contrary to the public interest or is clearly in the public interest, the department shall consider and balance the following criteria:

    1. Whether the project will adversely

    affect the public health, safety, welfare or property of others; . . .

    
    

    Section 403.918(2)(a)1. above has been interpreted to exclude non-environmental injuries alleged by Petitioners. The use of the easement does not relate directly to the environmental ramifications of the project.

    
    

22. The design of the exits to the two docking areas promotes direct entry into the Intracoastal Waterway. Therefore, it is recommended that the proposed design be modified to provide for ingress and egress on the northwest corner of the northern docking area, and the southwest corner of the southern docking area, as indicated in the drawing attached and made a part hereof as Appendix "B".

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Environmental Regulation issue Permit

No. 64-099806-4 with the size limitation and requirements for handrails

established by the agency and that the layout of the docks be modified as drawn in Appendix B to discourage exiting the docking areas at right angles to the channel of the Intracoastal Waterway.

DONE AND ORDERED this 18th day of July 1986 in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

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 18th day of July 1986.

APPENDIX TO RECOMMENDED ORDER CASE NO. 86-0992

The following action was taken with regard to the proposed findings of fact submitted in behalf of John Spang:

1. Adopted as Recommended Order paragraph 9.

2. Adopted as Recommended Order paragraph 2.

3. Rejected. Paragraph 5 of Ryan's proposed findings of fact adopted as more complete and accurate.

4. Adopted as Recommended Order paragraph 6.

5,6. Adopted and combined as Recommended Order paragraph 7.

1. Adopted as Recommended Order paragraph 9.

2. Adopted substantially as Recommended Order paragraph 7.

3. Adopted as Recommended Order paragraph 8.

10,11. Adopted as Recommended Order paragraph 9(a).

1. Rejected as conclusion of law and irrelevant because the current proceeding is a de novo proceeding.

2. Rejected as conclusion of law and irrelevant because the current proceeding is a de novo proceeding.

3. Adopted as Recommended Order paragraph 9 (d).

4. Adopted as Recommended Order paragraph 9 (b).

5. Irrelevant. Effect on the persons named is not a basis for review.

The following action was taken with regard to the proposed findings of fact submitted in behalf of the Ryans and Petersons:

1. Adopted as Recommended Order paragraph 1.

2. Rejected because the applicants' finding cited 24 which was adopted thereby binding the applicant to the lower number.

3. Adopted as Recommended Order paragraph 3.

4. Adopted as Recommended Order paragraph 4.

5. Adopted as Recommended Order paragraph 5.

6. Adopted in part and included in Recommended Order paragraph 12. 7,8. Rejected in favor of Recommended Order paragraph 11.

9. Adopted as Recommended Order paragraph 11. 10,12. Adopted as Recommended Order paragraph 13. 11,13. Adopted as Recommended Order paragraph 14.

1. Adopted as Recommended Order paragraph 11.

2. Adopted as Recommended Order paragraph 12.

3. Rejected as a list of actors without any conclusion stated. 18,19. Rejected in favor of Recommended Order paragraph 10 which more

accurately summarizes the more credible facts regarding fishing.

20,21,22. Rejected in favor of paragraph 9(d) which more accurately summarizes the more credible facts regarding danger to manatees.

1. Rejected as contrary to the facts.

2. Rejected as contrary to the facts.

3. Adopted in part in Recommended Order paragraph 16.

4. Rejected as contrary to the facts.

5. Rejected as irrelevant.

6. Rejected as irrelevant.

7. Rejected as irrelevant.

The following action was taken with regard to the Agency's proposed findings of facts.

1. Adopted as Recommended Order paragraph 1.

2. Adopted in part in Recommended Order paragraph 16 and in part in Recommended Order paragraph 10.

3. 1st sentence: Rejected as irrelevant in light of the Agency's subsequent issuance.

   Remainder: Adopted as Recommended Order paragraph 9(c).

4. Adopted generally as Recommended Order paragraph 16. 5,6. Adopted generally as Recommended Order paragraph 14.

1. Adopted generally as Recommended Order paragraph 15.

2. Adopted as Recommended Order paragraph 9(d).

3. Adopted as Recommended Order paragraph 9(a).

4. Adopted as Recommended Order paragraph 9(b).

5. Adopted as Recommended Order paragraph 17.

COPIES FURNISHED:

Victoria Tschinkel Secretary

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

Mary F. Smallwood, Esquire General Counsel

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

William F. Hathaway, Esquire Post Office Drawer H

New Smyrna Beach, Florida 32070-1586

Vivian F. Garfein, Esquire

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

Hal Spence, Esquire

221 N. Causeway

Post Office Box 1266

New Smyrna Beach, Florida 32070-1266

Docket for Case No: 86-000992

Orders for Case No: 86-000992