STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BARBARA OWENS, )

)

Petitioner, )

)

vs. ) Case No. 90-6184

)

HOME PORT HOMEOWNERS )

ASSOCIATION and )

DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondent, )

)

RECOMMENDED ORDER

Pursuant to notice, this matter came on for hearing in Pensacola, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Diane Cleavinger, on March 19, 1991.

APPEARANCES

The parties were represented as follows:

For Petitioner: Mary Callaway

P.O. Box 36097 Pensacola, Florida 32501

For Respondent: Bruce A. McDonald Homeport 700 South Palafox Street

Suite 3C

Pensacola, Florida 32501

For Respondent: Michael P. Donaldson Department Assistant General Counsel

Department of Environmental Regulation

2600 Blairstone Road

Tallahassee, Florida 32399-2400 STATEMENT OF THE ISSUE

The issue at the hearing was whether Respondent, Homeport Homeowners Association's application for a dredge and fill permit to construct a 400 foot pier into Santa Rosa Sound at Homeport Development, Navarre Beach, Florida should be granted.

PRELIMINARY STATEMENT

On May 25, 1989, Respondent, Homeport Homeowners Association, applied to the Department of Environmental Regulation for a dredge and fill permit to construct a 727 foot by five foot pier into Santa Rosa Sound. The proposed pier's design included a 100 foot by four foot "T", ten boat slips and a hexagonal gazebo. On August B, 1989, the Department denied the application and issued an Intent to Deny.

The Department's Intent to Deny suggested that the pier could be permitted if the gazebo was moved to an upland location and the pier shortened to a length of approximately 400 feet. The applicant, subsequently, agreed to these suggestions and also eliminated the ten boat slips. By letter dated April 24, 1990, the applicant modified its application to reflect the modifications described above. The Department approved the modified application and issued an Intent to Issue. The applicant properly published the Department's Intent to Issue.

Petitioner, Barbara Owens, timely requested a formal administrative hearing on the Department's Intent to Issue. The request for hearing was forwarded to the Division of Administrative Hearings.

At the hearing, Petitioner testified in her own behalf and presented five witnesses. Petitioner also offered into evidence three exhibits. Respondent, Homeport Homeowners Association, presented two witnessess and offered two exhibits into evidence. Respondent, Department of Environmental Regulation, called one witness to testify and offered three exhibits into evidence.

Petitioner and Respondent, Department of Environmental Regulation, filed Proposed Recommended Orders on April 8, 1991, and April 9, 1991, respectively. Respondent, Homeport Homeowners Association, did not file a Proposed Recommended Order, but submitted a letter indicating that, if the facts warranted, it did not have any objection to providing lighting on the proposed pier and/or substituting a ramp for the stairs coming off the pier onto the beach.

Petitioner's and the Department's proposed findings of fact have been considered and utilized in the preparation of this Recommended Order except where such proposals were not supported by the weight of the evidence or were immaterial, cummulative or subordinate. Specific rulings on the parties' proposals are contained in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. The applicant, Homeport Homeowners Association, represents the property owners of Homeport Development. Homeport Development is a planned unit development consisting of eighty single family lots. The development is located at Navarre Beach, Florida, on the south shore of Santa Rosa Sound. At least six of the development's lots are located on the water.

   
   

2. The area surrounding Homeport development is primarily residential in character, with some condominiums adjoining the residential area and a canal leading to a public boat ramp within several hundred feet of the development. The area is fairly pristine. However, there are several piers of varying lengths located in the surrounding area. At least one of those piers is close to 400 feet in length. None of the piers have posed any significant pollution or water quality problems and have not had an adverse impact on the public as a

   whole. Nor were any of these piers shown to adversely impact the conservation of fish or wildlife and their habitats, cause harmful erosion or shoaling or pose a navigational hazard to boats using the area.

   
   

3. Water depths offshore are shallow and do not get over three to four feet for approximately 650 feet.

   
   

4. On May 25, 1989, the applicant submitted an application (permit application No. 17-165358-1) to the Department of Environmental Regulation for a dredge and fill permit to construct a 727 foot by five foot pier with a 100 foot by four foot "T", ten boat slips and a hexagonal gazebo. The pier would be constructed out of wood and rest on wooden pilings. The pilings are spaced so as not to impede the flow of water or cause harmful erosion or shoaling. The wood used to construct the pier would be marine treated lumber. The wood would not be treated using creosote. The evidence did not demonstrate that the marine treated wood the applicant intends to use in the construction of the pier would cause any significant pollution or water quality problems or adversely affect fish or wildlife. The proposed pier would be located on property leased to the the Association as part of Homeport Development. The pier would extend from the road adjacent to the lot on which the pier is located, would cross an area of wetlands which is under the jurisdiction of the department and would cross over the adjoining beach to reach the waters of Santa Rosa Sound. The pier would have a stair ingress and egress to the beach and the public may use these stairs to cross over the pier. The water portion of the dock would cross over a sandy bottom; and therefore, would not adversely affect vegetation. The pier is intended to be a permanent amenity of the development. Construction of other piers by lot owners who have waterfront property is limited and this pier is intended to be a substitute for such private docks.

   
   

5. After evaluating the application for consistency with the relevant pollution control standards, the Department determined that the pier, as it was originally proposed, did not meet departmental standards for water quality and the public interest. Specifically, the Department determined that the 727 foot pier would likely pose a hazard to the navigation of small boats in the area and that the gazebo would have an adverse impact on the salt marsh in which it would be located. On August 8, 1989, the Department issued an Intent to Deny based on its assessment of the proposed project.

   
   

6. The Intent to Deny provided that the project could be permitted if the gazebo were moved to an upland location not within the jurisdiction of the Department and the pier shortened to approximately 400 feet to remove the hazard to navigation posed by the 727 foot pier.

   
   

7. The applicant took the Department's advice and modified its application. Specifically, the applicant modified the project to relocate the gazebo to an upland site and shorten the pier to 400 feet. The applicant also eliminated the ten boat slips. All other specifics of the original application remained the same.

   
   

8. On August 9, 1990, the Department issued an Intent to Issue with a draft permit authorizing the construction of a 400 foot pier subject to several permit conditions. The modifications of the application along with the permit conditions provide reasonable assurances that the project will not violate water quality standards as provided in 403.918, Florida Statutes. Additionally, the historical evidence the Department has gained through observing the impact of other piers in a similar environment on water quality provides strong support

   for the above conclusion and in itself is a reasonable assurance that water quality standards will not be adversely impacted by the construction of this pier.

   
   

9. For similar reasons, the evidence demonstrated that the proposed pier would not be contrary to the public interest. In essence, the better evidence demonstrated that the pier would not adversely impact the public health, safety, welfare or property of others, the current condition or relative value of the area surrounding the proposed project, the conservation of fish or wildlife and their habitats, or cause harmful erosion or shoaling, or involve historical or archaeological resources. The evidence demonstrated that some temporary impact on the vegetation of the wetlands would occur in the immediate path of construction of the pier. However, the evidence also demonstrated that the impact would not be significant and would repair itself within a reasonable period of time.

   
   

10. The length of the pier does not pose a hazard to navigation of either small or large boats, or motorized or non-mechanized craft. However, the permit does not require the pier to be lighted during periods of darkness or adverse conditions. Given the fact that the location of the proposed pier does not appear to be in a well lit area, and because of the pier's proximity to a canal leading to a public boat ramp that is subject to periodic high use, the pier would likely pose a hazard to navigation should adequate lighting not be required. Therefore, a condition that the pier be constructed with lights sufficient to illuminate it to a person in the water during periods of darkness or poor viewing conditions should be added to the draft permit attached to the Department's Intent to Issue. Subject to the addition of the above condition, permit application NO. 17-165358-1 sought by Homeport Homeowners Association, for a permit to construct a 400 foot pier should be issued.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. 120.57(1), Florida Statutes.

    
    

12. The controlling Florida Statutes and Department rules in this proceeding are 403.918 and 403.919, Florida Statutes, and Rules 17-4, 17-302 and 17-312, Florida Administrative Code. Section 403.918 reads in pertinent part:

    
    

    1. A permit may not be issued under ss. 403.91 - 403.929 unless the applicant provides the department with reasonable assurance that water quality standards will not be violated. .

    2. A permit may not be issued under ss. 403.91 - 403.929 unless the applicant provides the department reasonable assurance that the project is not contrary to the public interest. .

       1. 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, or welfare or the property of others;

          2. Whether the project will adversely affect the conservation of fish and wildlife, including

             endangered or threatened species, or their habitats;

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

          4. Whether the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project;

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

          6. Whether the project will adversely affect or will enhance significant historical and archaeological resources . . . ; and

          7. The current condition and relative value of functions being performed by areas affected by areas affected by the proposed activity.

          
          

13. Section 403.919, Florida Statutes, reads in pertinent part:

    
    

    Equitable distribution.--The department, in deciding whether to grant or deny a permit for an activity which will affect waters, shall consider:

    1. The impact of the project for which the permit is sought.

    2. The impact of projects which are existing or under construction or for which permits or jurisdictional determinations have been sought.

    3. The impact of projects which are under review, approved, or vested pursuant to S. 380.60, or other projects which may reasonably be expected to be located within the jurisdictional extent of waters, based upon land use restrictions and regulations.

       
       

14. The applicant has the burden to establish that it is entitled to the permit being sought. In the instant case, the applicant must show that it has given reasonable assurances that the proposed pier and its cummulative impacts will not cause or contribute to violations of state water quality standards and will not be contrary to the public interest. Florida Department of Transportation v. J.W.C. company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981). The evidence demonstrated that the applicant provided such assurances and that the project will not violate water quality standards and will not be contrary to the public interest.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final

Order issuing a permit to construct a 400 foot pier as sought by Homeport Homeowners Association in permit application NO. 17-165358-1 and subject to the additional permit condition that lighting be added to the pier.

DONE and ENTERED this 4th day of June, 1991, in Tallahassee, Florida.

DIANE CLEAVINGER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 4th day of June, 1991.

APPENDIX TO RECOMMENDED ORDER CASE NO. 90-6184

1. The facts contained in the third sentence of paragraph 1 of Petitioner's Proposed Findings of Fact are adopted in substance, in so far as material. The facts contained in the first two sentences of paragraph one were not shown by the evidence and are not appropriate facts for official recognition.

   
   

2. The facts contained in paragraphs 3, 11, 13, 14 and 19 of Petitioner's Proposed Findings of Facts are subordinate.

   
   

3. The facts contained in paragraphs 6, 7, 15, 17 and 18 of Petitioner's Proposed Findings of Facts were not shown by the evidence.

   
   

4. The facts contained in paragraphs 5, 12 and 16 of Petitioner's Proposed Findings of Fact are irrelevant or immaterial.

   
   

5. The facts contained in the first paragraph of finding number 4 of Petitioner's Proposed Findings of Fact were not shown by the evidence. The facts contained in the second paragraph of finding 4 are adopted.

   
   

6. Paragraph 2 and 9 of Petitioner's Proposed Findings of Fact are legal argument.

   
   

7. The facts contained in paragraph 7 of Petitioner's Proposed Findings of Facts are subordinate except for the fact referencing the a navigational hazard which fact was not shown by the evidence.

   
   

8. The facts contained in the first sentence of paragraph 8 of Petitioner's Proposed Findings of Fact are subordinate. The facts contained in the second sentence of paragraph 8 were not shown by the evidence.

   
   

9. The facts contained in the second, third and fifth sentences of paragraph 10 of Petitioner's Proposed Findings of Fact are subordinate. The facts contained in the first and fourth sentences of paragraph 10 were not shown by the evidence.

   
   

10. The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 12 and 13 of Respondent's Proposed Findings of Fact are adopted in substance, in so far as material.

11. The facts contained in paragraph 10 of Respondent's Proposed Findings of Fact are adopted except for the fact relating a navigation hazard which was not shown by the evidence.

COPIES FURNISHED:

Mary Callaway

P.O. Box 36097 Pensacola, Florida 32501

Bruce A. McDonald

700 South Palafox Street Suite 3C

Pensacola, Florida 32501

Michael P. Donaldson Assistant General Counsel Department of Environmental Regulation

2600 Blairstone Road

Tallahassee, Florida 32399-2400

Carol Browner, Secretary Twin Tower Office Building 2600 Blair Stone Road Tallahassee, Fl. 32399-2400

Barbara Ownes

113 Riverdale

Covington, Louisiana 70433

Daniel H. Thompson, Esquire Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Fl. 32399-2400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

Docket for Case No: 90-006184

Orders for Case No: 90-006184