STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LILLIAN BERDEAL, )

)

Petitioner, )

)

vs. ) CASE NO. 88-0659

) JAMES L. CARPENTER and DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on June 6, 1988, in Marathon, Florida.

APPEARANCES

For Petitioner: David L. Manz, Esquire

Post Office Box 177 Marathon, Florida 33050

For Respondent Carol A. Forthman, Esquire Department of Twin Towers Office Building Environmental 2600 Blairstone Road

Regulation: Tallahassee, Florida 32399-2400

For Respondent James L. Mattson, Esquire James L. Carpenter: Post Office Box 586

Key Largo, Florida 33037 INTRODUCTION

This proceeding began when respondent, Department of Environmental Regulation (DER), issued an intent to issue on January 5, 1988 approving an application of respondent/applicant, James L. Carpenter, to construct an "L" shaped 102'x6' commercial dock with a 12'x8' access walkway waterward of mean high water in an unnamed canal connected to Florida Bay in Monroe County, Florida. By letter dated January 25, 1988 petitioner, Lillian Berdeal, requested a formal hearing to contest the agency action. The request was forwarded by DER to the Division of Administrative Hearings on February 10, 1988 with a request that a Hearing Officer be assigned to conduct a formal hearing.

By notice of hearing dated March 14, 1988 the final hearing was scheduled on April 6, 1988 in Marathon, Florida. The matter was later rescheduled to May 17, 1988 at the same location. At applicant's request, the case was continued to June 6, 1988 in Marathon Florida.

By order dated April 4, 1988 the undersigned partially granted a motion to dismiss filed by applicant and limited the issues to those identified below.

At final hearing, respondent/applicant presented the testimony of James J. Morrison, an expert in navigation. He also adopted the testimony presented by the agency. Respondent DER presented the testimony of Lucy Ann Blair, a DER environmental specialist and accepted as an expert in navigation. It also offered DER exhibits 1-3 which were received in evidence. Petitioner testified on her own behalf and presented the testimony of Leonard Quasney, a commercial fisherman. She also offered petitioner's exhibit 1 which was received in evidence.

The transcript of hearing was filed on July 25, 1988. 1/ Proposed findings of fact and conclusions of law were filed by applicant, petitioner and the agency on August 16, 19 and 23, 1988, respectively. 2/ A ruling on each proposed finding of fact has been made in the Appendix attached to this Recommended Order.

As limited during the course of this proceeding, the issues are whether respondent/applicant's proposed project will adversely affect (a) navigation and

1. the public health, safety and welfare or the property of others.

   
   

   Based upon all of the evidence, including the stipulation of counsel, the following findings of fact are determined:

   
   

   FINDINGS OF FACT

   
   

   1. Respondent/applicant, James L. Carpenter (applicant or Carpenter), is the owner of upland property bordering on and contiguous to a man-made lagoon in Vaca Key near Marathon, Florida. The property is also adjacent to an artificial man-made canal which connects the lagoon to the open waters of Florida Bay. The lagoon and canal are classified as Class III waters of the State while Florida Bay is a Class III Outstanding Florida Water. A more precise location of the property is Section 9, Township 66 South, Range 32 East, Monroe County, Florida.

      
      

   2. By application dated June 23, 1987 applicant sought the issuance of a dredge and fill permit from respondent, Department of Environmental Regulation (DER), authorizing the construction of an "L" shaped 125'x8' commercial dock with a 10'x8' access walkway waterward of mean high water (MHW) in the canal. The dock and walkway will be located on the property described in finding of fact 1. According to the application, Carpenter owns several "landlocked residences" in the vicinity of the proposed dock and desires to provide dockage for residents who rent his houses.

      
      

   3. Because of DER concerns that shading might affect photosynthetic capabilities in the vicinity of the project, applicant agreed to revise his application. This revision was made on December 21, 1987 and reduced the dock size to 102'x6' while the access walkway was increased slightly to 12'x8'. Thus, the dock will extend eight feet into the canal beyond the MHW.

      
      

   4. On January 5, 1988 DER's district office issued an Intent to Issue a permit subject to seven specific conditions incorporated in the permit. This prompted the filing of a petition by petitioner, Lillian Berdeal (Berdeal), who owns upland property bordering on and contiguous to the lagoon, canal and Florida Bay. She operates a commercial seafood business directly across the canal from Carpenter. According to her petition, Berdeal asserts that Carpenter's dock would adversely affect navigation in the canal and the health, safety and welfare or the property of others.

   5. The water body in question is a man-made canal facing to the north and providing an outlet for the lagoon to Florida Bay. The lagoon, which measures approximately 150'x100', is fairly well developed. On the east and southeast side of the lagoon lie an outdoor restaurant and Carpenter's boat rental business. Petitioner's seafood processing operation lies on the west and southwest sides of the lagoon and lagoon entrance. Photographs of the area have been received in evidence as DER exhibits 1 and 2 and petitioner's exhibit 1.

      
      

   6. Presently, there are five finger piers (docks) in front of Berdeal's property at the narrowest point of the canal. These piers are directly across the canal from Carpenter's proposed dock addition. They extend out eight feet perpendicular to the shoreline and are now used by commercial fishermen for docking purposes while using Berdeal's facility. Approximately thirty or forty boats use the finger piers during fishing season (August - May) while up to twenty may use them in the off-season (June - July). Berdeal described those boats as ranging from thirty to forty-five feet in length and having beams up to, but not exceeding, sixteen feet. However, vessels at petitioner's facility on the day of DER's inspection had an average beam of ten feet.

      
      

   7. The evidence is conflicting as to the canal's width at its most narrow point. According to DER's expert, the minimum width is seventy-six feet, and this figure is accepted as being more credible than Berdeal's own measurement of sixty-three feet. If the project is constructed, Carpenter's dock, together with a boat having a ten foot beam, would use around eighteen feet of the channel at its most narrow width while Berdeal's facility, if used by the largest boat, would take up another twenty-three feet. This would still leave around thirty-five feet of channel for navigation purposes between the two docks at the canal's most narrow point.

      
      

   8. According to applicant's expert in navigation, James J. Morrison, who has piloted boats in the area for over thirty years, a boat may safely operate in the canal if it has five feet of water on each side. This margin of safety is sufficient in all weather conditions up to and including a small craft warning. If the project is approved, the necessary margin of safety would be available. It is noted also that there are no significant currents in the canal that would adversely affect navigation, and under normal weather conditions, the canal and basin are easily navigable.

      
      

   9. Petitioner presented the testimony of a commercial fisherman, Leonard Quasney, who expressed concerns that northerly winds periodically drive aquatic weeds and grasses into the lagoon and canal thereby impairing the ability of a boat to safely operate. These weeds are shown in photographs received as petitioner's exhibit 1. It was Quasney's contention that, coupled with the periodic influx of weeds, the addition of a dock at the canal's most narrow point will make navigation more hazardous. However, this theory was discounted by expert witness Morrison who pointed out that, while it is true that floating mats of weeds affect the ability of a person to handle a boat by making the boat's rudder and propeller action less responsive, they do not affect the ability to navigate the canal. In other words, as long as the margin of safety is available in the canal, the presence of the weeds would not hinder a ship's ability to enter and exit the lagoon. This testimony is accepted as being more credible on the issue, and it is found that the new dock will not create a navigational hazard as a result of the weeds.

      
      

   10. Berdeal is concerned also that the new dock would make it more difficult for fishermen to access her property and therefore cause economic harm to both her and the fishermen. However, this contention was not substantiated.

   11. The parties have stipulated that, with the following special conditions proposed by DER at hearing regarding limitations on commercial use, liveaboards and scraping boat bottoms, all water quality standards will be met:

       
       

       1. All temporary and permanent use of liveaboard or liveaboard type vessels for residential use is prohibited.

       2. All on site fueling activities are prohibited.

       3. All major vessel repair, such as hull scraping and painting, with the boat in the water is prohibited.

       4. Only private use of the dock is permitted.

       5. All double parking or rafting of boats along the dock is prohibited.

       6. General conditions common to all dredge and fill permits.

          
          

   12. The parties have stipulated that the "public interest" criteria in Subsection 403.918(2)(a)2. and 4.-7., Florida Statutes (1987), have been satisfied. In addition, a registered engineer has certified that the dock's construction and use will not have an adverse effect on the public health, safety and welfare or the property of others.

       
       

   13. Petitioner has applied for the issuance of a permit allowing the construction of additional docks at her facility. If the application is approved, these docks will be used for commercial purposes. The proposed impact of this project, and its cumulative impact on the area, was considered by DER in its evaluation of Carpenter's application. However, conditions to be included in Berdeal's permit will minimize any water quality or navigation impacts of the project, even on a cumulative basis.

       
       

       CONCLUSIONS OF LAW

       
       

   14. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes (1987).

       
       

   15. As narrowed during the course of this proceeding, the issues in this case are (a) whether applicant's project, if approved, will adversely affect navigation, and (b) whether the project will adversely affect the public health, safety or welfare or, the property of others. These issues are a part of the

       so-called "public interest" test statutorily codified in Subsection 403.918(2)(a), Florida Statutes (1987), as follows:

       
       

       1. In determining whether a project is not contrary to the public interest, . . . the department shall consider and balance the following criteria:

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

       3. Whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling;

   16. As the applicant, Carpenter bears the burden of showing entitlement to licensure by the preponderance of evidence. Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778, 788 (Fla. 1st DCA 1981).

       
       

   17. The construction of a dock, including the placement of piles into state waters, is subject to DER's dredge and fill jurisdiction. Subsection 403.918(1), Florida Statutes (1987), requires an applicant to provide "reasonable assurance that water quality standards will not be violated." This requirement is repeated in Rule 17-4.070(1), Florida Administrative Code (1987), and provides that "a permit may be issued to the applicant ... only if the applicant affirmatively provides the Department with reasonable assurance based on plans, test results and other information, that the construction ... of the installation will not discharge, emit, or cause pollution in contravention of Department standards or rules." Finally, Subsection 403.918(2), Florida Statutes (1987), provides that a permit shall not be issued until "the applicant provides the department with reasonable assurance that the project is not contrary to the public interest." The statute goes on to cite seven criteria that must be satisfied to make this showing. However, only two criteria are at issue in this proceeding.

       
       

   18. The parties have stipulated that no water quality standards will be violated as a result of this project. Therefore, it is concluded that reasonable assurance has been given by the applicant that the project will not cause water quality violations in contravention of Department standards or rules.

       
       

   19. The two controverted "public interest" items concern the project's impact, if any, on navigation and the public health, safety and welfare or property of others. As to the navigation issue, the preponderance of evidence reflects that the dock will not adversely affect navigation. Therefore, the requirement of Subsection 403.918(2)(a)3., Florida Statutes (1987), has been satisfied. In reaching this conclusion, the undersigned has accepted the testimony of expert witness Morrison and discredited the contrary testimony of witness Quasney. As to the requirement that the project have no adverse impact on the public health, safety or welfare or the property of others, it is noted that "the property of others" must be viewed in an environmental context. Miller v. State, Department of Environmental Regulation, 504 So.2d 1325, 1327 (Fla. 1st DCA 1987)(statutory reference to property of others "has no logical meaning outside an environmental context"). Therefore, petitioner's contention that the project will have an adverse economic impact on her property is irrelevant to this proceeding. The evidence does reflect, however, that the project will not have an adverse environmental impact on the public health, safety and welfare or property of others.

       
       

   20. Since the parties have stipulated that all remaining public interest criteria have been satisfied, it is concluded that reasonable assurance has been given that the project will not be contrary to the public interest. Therefore, the application should be approved.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of James L. Carpenter for a dredge and

fill permit be granted subject to those specific, special and general conditions imposed by the agency.

DONE and ORDERED this 29th day of August, 1988, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550 904/488-9675

FILED with the Clerk of the Division of Administrative Hearings this 29th day of August, 1988.

ENDNOTES

1/ The transcript of hearing was filed with counsel on July 6, 1988 but was not forwarded to the undersigned until July 25.

2/ By agreement of the parties, the time for filing proposed orders was extended to and including August 16, 1988. Since no objection was made to the untimely filings of petitioner and the agency, their proposed orders have been considered by the undersigned.

APPENDIX TO RECOMMENDED ORDER

Petitioner:

1. Covered in findings of fact 1, 5 and 6.

2. Covered in finding of fact 12.

3. Covered in finding of fact 11.

4. Covered in finding of fact 4.

5. Covered in findings of fact 6 and 7 except where inconsistent with the more credible evidence.

6. Covered in finding of fact 9.

7. Partially covered in finding of fact 9. The remainder has been rejected as not being credible.

8. Rejected as being irrelevant since economic harm to petitioner's property is not a consideration in this proceeding.

DER:

1. Covered in finding of fact 2.

2. Rejected as unnecessary.

3. Covered in findings of fact 3 and 7.

4. Rejected as being a conclusion of law.

5. Covered in findings of fact 4 and 11.

6. Covered in finding of fact 11.

7. Covered in finding of fact 12.

8-15. Rejected as being subordinate to finding of fact 12.

1. Covered in finding of fact 7.

2. Covered in finding of fact 6.

3. Covered in finding of fact 3.

4. Rejected as unnecessary.

5. Covered in finding of fact 7. 21-26. Covered in finding of fact 8.

Applicant:

1-2. Covered in finding of fact 1.

1. Covered in finding of fact 4.

2. Covered in findings of fact 2-4.

3. Covered in finding of fact 4.

4. Covered in finding of fact 11. 7-10. Covered in finding of fact 7. 11-12. Covered in finding of fact 8.

1. Covered in findings of fact 8 and 9.

2. Covered in finding of fact 9.

COPIES FURNISHED:

DAVID L. MANZ, ESQUIRE POST OFFICE BOX 177 MARATHON, FLORIDA 33050

CAROL A. FORTHMAN, ESQUIRE TWIN TOWERS OFFICE BUILDING 2600 BLAIRSTONE ROAD

TALLAHASSEE, FLORIDA 32399-2400

JAMES L. MATTSON, ESQUIRE POST OFFICE BOX 586

KEY LARGO, FLORIDA 33037

DALE TWACHTMANN, SECRETARY

DEPARTMENT OF ENVIRONMENTAL REGULATION 2600 BLAIRSTONE ROAD

TALLAHASSEE, FLORIDA 32399-2400

Docket for Case No: 88-000659

Orders for Case No: 88-000659