STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALAN S. DORRILL, )

)

Petitioner, )

)

vs. ) CASE NO. 91-3988

) ROBERT LAVEN, JOHN CLOUD ) and DEPARTMENT OF ) ENVIRONMENTAL REGULATION, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, William R. Cave, held a formal hearing in the above- styled case on September 23, 1991 in Sarasota, Florida.

APPEARANCES

For Petitioner: Alan S. Dorrill, Pro se

1726 Floyd Street

Sarasota, Florida 34239

For Respondents: F. Craig Richardson, Esquire (Robert Laven Icard, Merrill, Cullen, Timm,

and John Cloud) Furen, & Ginsburg, P.A.

2033 Main Street, Suite 600

Sarasota, Florida 34237

For Respondent: Carol Forthman, Esquire (Department of Maureen A. Eggert, Certified

Environmental Legal Intern Regulation) 2600 Blairstone Road

Tallahassee, Florida 32399-2400 STATEMENT OF THE ISSUE

Whether the Respondents Robert Laven and John Cloud should be issued a permit to construct a private dock between their respective properties consisting of an access pier 4 feet by 210 feet, with two terminal platforms each 6 feet by 25 feet.

PRELIMINARY STATEMENT

On October 26, 1990 Respondent Laven submitted Permit Application 581885033 to the Respondent Department of Environmental Regulation (Department) to construct a private dock on his property located on Sarasota Bay consisting of an access pier 210 feet by 5 feet, with a terminal platform 20 feet by 4 feet.

On April 15, 1991 the Department issued a permit to Laven for construction of a private dock as described in Application 581885033.

Subsequent to the Department's issuance of the permit to construct the dock, Laven attempted to modify the permit by reducing the length of the access pier from 210 feet to 175 feet. The Department considered this a major modification requiring a new application. Laven did not file a new application.

On May 28, 1991 Petitioner, Alan S. Dorrill challenged the original permit by filing a petition and requesting an administrative hearing in accordance with Section 120.57, Florida Statutes.

On June 25, 1991 the Department transferred this matter to the Division of Administrative Hearings and requested the assignment of a Hearing Officer to hear the matter. By Notice of Hearing dated July 22, 1991, this matter was set for hearing on October 15, 1991.

On or about June 28, 1991, Respondent Laven and Respondent Robert Cloud filed a Joint Application to construct a private dock between their respective properties on Sarasota Bay consisting of an access pier 210 feet by 4 feet, with two terminal platforms, each 25 feet by 6 feet. The application was filed under the Department permit number 581885033, and was considered by the Department as a modification of the earlier permit filed by Laven with the same number. On August 2, 1991 the Department issued an Intent to Issue Permit which was advertized by Respondents Laven and Cloud in accordance with the Intent to Issue. On August 21, 1991 the Department filed with the Division of Administrative Hearings a Notice of Amended Agency Action advising that permit number 581885033 had been modified and that an Intent to Issue such modified permit was attached.

There was no challenge to the Notice of Intent on the modified permit other than Dorrill's original challenge to the Laven permit. During a telephonic hearing on Laven's request to amend hearing date and the Department's Notice of Amended Agency Action, Respondent Laven moved to dismiss Dorrill's challenge to the permit on grounds that Dorrill had not protested the Notice of Intent to issue modified permit number 581885033. The motion was denied. By agreement of the parties, the matter proceeded to hearing on September 23, 1991 rather than October 15, 1991.

At the hearing, Respondents Laven and Cloud presented the testimony of John Cloud, Rose Poynor, Roy R. Lewis and Robert Patten. Respondents' (Laven and Cloud) exhibits 1 through 10 were received into evidence. Respondents' (Laven/Cloud/Department) Joint Exhibits 1 and 2 were received into evidence.

Respondent, Department presented the testimony of Rose Poynor. Petitioner, Dorrill testified in his own behalf but presented no other witness. Petitioner's exhibits 1 through 10 were received into evidence.

A transcript of this proceeding was filed with the Division of Administrative Hearings on October 18, 1991. The parties have submitted proposed findings of fact and conclusions of law. A ruling on each proposed finding of fact has been made as reflected in an Appendix to the Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. Respondent Laven owns a parcel of land at 1500 Bay View Drive, Sarasota, Florida on which he has a home. The property is approximately 180 feet by 100 feet, and is located on Sarasota Bay. A seawall has been constructed along the shoreline.

   
   

2. Respondent Cloud owns a parcel of land at 2610 Cardinal Lane, Sarasota, Florida that is contiguous to Respondent Laven's property at 1500 Bay View Drive, Sarasota, Florida that is also located on Sarasota Bay. Approximately

   100 feet of the property is located along the shoreline of Sarasota Bay.

   
   

3. Sarasota Bay is currently designated as a Class III outstanding Florida waterbody.

   
   

4. On or about June 28, 1991 Respondents Laven/Cloud filed an application to modify existing permit number 581885033 which had been previously issued to Respondent Laven for construction of a private dock consisting of an access pier

   210 feet by 5 feet, with a terminal platform 20 feet by 4 feet on Laven's property located at 1500 Bay View Drive, Sarasota, Florida.

   
   

5. Previous to the modified application being filed by Laven and Cloud, Laven had attempted to modify permit no. 581885033 by reducing the access pier from 210 feet by 5 feet to 175 feet by 5 feet. The Department concluded that the dock, as modified, would not reach water of sufficient depth to prevent damage to the seagrass, and considered this a major modification requiring a new application. Therefore, the Department denied the modified application, and Respondent Laven did not file a new application.

   
   

6. The application filed by Laven/Cloud on or about June 28, 1991 to modify existing permit 581885033 proposed to construct a private dock on the property line between Laven's and Cloud's property. The private dock was proposed to consist of an access pier 4 feet by 210 feet, with two terminal platforms, each 25 feet by 6 feet.

   
   

7. After review of the application to modify permit 58188503 the Department issued a Notice of Intent to issue a permit for the proposed construction of the private dock on August 2, 1991. The Notice of Intent included 18 specific conditions to which the proposed dock would be subject. Those relevant to this proceeding are as follows:

   
   

   1) . . . .

   
   

   1. If historical or archaeological artifacts, such as Indian canoes, are discovered at any time within the project site the permittee shall immediately notify the district office and the Bureau of Historic Preservation, Division of Archives, History and Records Management, R.A. Gray Building, Tallahassee, Florida 32301.

      
      

   2. Turbidity screens shall be utilized, secured, and properly maintained during the permitted construction and shall remain in place until any generated turbidity subsides.

      Double turbidity screens, staked hay bales, staged construction and other additional measures shall be used as necessary to insure compliance with water quality standards in Chapter 17-3, Florida Administrative Code.

      
      

   3. During construction, all areas of exposed soils shall be effectively isolated from waters of the state to prevent erosion or deposition. All exposed soils shall be stabilized with an appropriate ground cover within 72 hours of attaining final grade.

      
      

      5) . . . .

      
      

      6) . . . .

      
      

      1. The applicant is not permitted to conduct or construct the following activities or facilities in conjunction with this dock structure:

         
         

         1. Fish cleaning facilities.

         2. Fuel hoses or fueling facilities.

         3. The mooring of boats or vessels for live aboards.

         4. The mooring of boats utilized for com- mercial purposes such as fishing, scuba diving, boat rental, etc.

         5. Picnic tables or benches.

         6. Storage sheds or enclosed structures.

         7. Covered boat slips.

         8. Sanitary facilities.

         9. The rental of boat slips or mooring space.

         
         

      2. Turbidity screens shall effectively encom- pass each piling during installation and remain in place until any generated turbidity has subsided. Turbidity screens shall effectively encompass an area around each piling not to exceed 7 square feet.

         
         

      3. Any watercraft which may be utilized during construction activities shall only operate/moor in waters of sufficient depth so as not to cause bottom scour or prop dredging.

         
         

      4. The access pier shall be elevated a minimum of 5 feet above mean high water for the most waterward 150 linear feet of the access pier.

         
         

      5. The most waterward 150 linear feet of the access pier shall be constructed with the slated[sic] design indicated on sheet 4 of permit submittals. The most landward 60 feet

         of the access pier shall be constructed utilizing the 2 x 6 decking.

         
         

      6. The permittees shall construct 100 linear feet of rip rap along the existing vertical seawall as indicated on sheet 1 of permit submittals. Rip rap material shall consist of natural boulders or clean concrete rubble six inches to three feet in diameter or in average dimensions. The slope of the rip rap shall be no steeper than 2H:1V. There shall be no reinforcing rods or other similar protrusions in concrete rubble and all rubble or boulders shall be free of attached sediments. The rip rap shall be install concurrently with the construction of the permitted dock.

         
         

      7. The permittees shall grant the Department a conservation easement over the shorelines of the two subject parcels. A conservation easement shall be established over the seawall cap and 2 feet waterward of the seawall for the entire length of the seawall to 1500 Bay View Drive (Lots 1, 2, 3, 4, 11, 12, 13, and

      14 Block Q, Bay View Heights Addition). A conservation easement shall also be established between the limits of the mean high water linear and the landward extent of waters of the State (Pursuant to Section 170301.400[sic] FAC) for the entire length of the shoreline at 2610 Cardinal Place (Lots 5, 6, 7, 8, 15, 16, 17 and 18, Block Q, Bay View Heights Addition).

      
      

      14) . . . .

      
      

      15) . . . .

      
      

      1. The following seagrass monitoring program shall be implemented and adhered to:

         
         

         1. Within 45 days of the issuance of this permit (and prior to initiation of dock con- struction) the permittee shall establish a preconstruction monitoring program consisting of one meter square grids within the area specified on sheet 1 A of permit attachments. A minimum of 10 random one meter square plots shall be selected within each area A and B and also along the centerline established along the length of the dock.

            
            

         2. The permittee shall measure percent areal coverage of seagrasses within each plot within the grid system.

         3. Each of the plots shall be monitored as specified in above a minimum of two times per year (July and January) over a three year monitoring period subsequent to dock construction.

            
            

         4. Reports shall include date, water depth, water clarity, species of seagrasses observed, percent areal coverage and representative height of seagrasses within each plot. Moni- toring reports shall be submitted to the Department within 30 days of the monitoring event. The first monitoring event shall occur during the first January or July (which ever occurs first) subsequent to completion of dock construction.

         
         

      2. Hand railing shall be constructed along the entire length of the access pier (on both sides). The temporary or permanent mooring

      of watercraft shall only occur at the terminal platform.

      
      

      18) . . . .

      
      

8. By imposing special conditions 3, 4, 8 and 9 it will ensure that the dock construction will have a temporary minimal impact on the water quality, and there will be no permanent water quality impacts as a result of this project.

   
   

9. If this permit is not issued, it would be possible for each of the applicants to build an exempt dock on his property which would require two accesses or swaths through the seagrass beds.

   
   

10. An exempt dock (500 square feet or less) may result in the dock terminating in seagrass beds and in water of insufficient depth to prevent damage to the seagrass beds or to prevent bottom scour or propeller dredging.

    
    

11. The project site consists of a shoreline with a shoal area where Shoal grass (Halodule wrightii) and Turtle grass (Thalassia sp.) are growing, with the Turtle grass being the predominant species to a point further waterward to where there is a significant change in the water depth. Such point being approximately at the termination of the proposed dock. Beyond this point the seagrass beds are scattered. Therefore, any dock shorter than approximately 210 feet would terminate in the main seagrass beds and result in the seagrass beds being routinely disrupted or damaged by power boats.

    
    

12. The proposed design of the most waterward 150 linear feet of the deck portion of the proposed dock has less solid surface than a normal deck, and, along with the proposed height of the most waterward 150 linear feet of the proposed dock, would allow substantially more light to penetrate the area and provide sufficient light for healthy existence of the seagrasses.

    
    

13. The proposed impacts consists of disturbance of the seagrass beds.

    
    

14. Requiring railing along the entire access pier on both sides will preclude mooring of motor craft in the area of the seagrass and in water depths

    insufficient to prevent damage to the seagrass, and to prevent bottom souring and propeller dredging.

    
    

15. Because of the length, height and design of the dock there would be minimal impact, if any, on the seagrass beds.

    
    

16. The design of the dock will ensure that the project will not adversely affect the functions being performed in the area intended for the dock.

    
    

17. The conservation easement will ensure that a feeding ground for wading birds will be maintained, and along with the dock design will minimize any impacts that the proposed dock will have on the fish and wild life habitats.

    
    

18. The construction of the 100 linear feet of rip rap along the existing vertical seawall on Sarasota Bay along Laven's property will reduce scouring and erosion at the base of the seawall, and provide beneficial habitat which will be an improvement of the seawall alone.

    
    

19. There may be minimal impacts on recreation in that it may impose some inconvenience for those fishing and those attempting to access the bay for sailing.

    
    

20. There may be some minimal impact on navigation in that the proposed dock will entend out approximately 35 feet further than any other existing dock in the area but due to the shallow water in this area boats presently have to travel at a reduced rate of speed, and for this reason the proposed dock would not adversely affect navigation. However, this should be mitigated by requiring lights on the dock as a safety feature.

    
    

21. The project will not adversely affect the fishing, or recreational values, or marine productivity in the vicinity of the project.

    
    

22. The proposed project will not adversely affect the public health, safety, or welfare or property of others.

    
    

23. The proposed dock will be a permanent structure, notwithstanding that regular mainentaince will be required.

    
    

24. The Respondents Laven/Cloud have provided reasonable assurances that the proposed project will be clearly in the public interest, notwithstanding the minimal impact it may have on recreation and navigation. Particularly, when all Special Conditions are considered, specifically Special Conditions 12 and 13 pertaining to rip rap along the vertical seawall on Laven's propertry and the granting of the Conservation Easement over both Laven's and Cloud's shoreline.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

26. The Department has jurisdiction over dredge and fill activities within the landward extent of the waters of the state of Florida. The permit application was reviewed by the Department pursuant to the provisions of Section

    403.91 through Section 403.918, Florida Statutes. The criteria applicable to the review of dredge and fill permits are set forth in Section 403.918, Florida Statutes.

27. Section 403.918(1) and (2)(a), Florida Statutes, provides as follows:

    
    

    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. The department, by rule, shall establish water quality criteria for wetlands within its jurisdiction, which criteria give appropriate recognition to the water quality of such wetlands in their natural state.

    2. A permit may not be issued under ss. 403.91-403.929 unless the applicant provides the department with reasonable assurance that the project is not contrary to the public interest. However, for a project which significantly degrades or is within an Outstanding Florida Water, as provided by department rule, the applicant must provide reasonable assurance that the project will be clearly in 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 under the provisions of s.267.061; and

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

    
    

28. The evidence clearly establishes that none of those water quality standards or the public interest standards embodied in the above-quoted statutory provisions will be violated by the installation of the proposed project provided it is conditioned, both generally and specifically, as delineated in the Department's Intent To Issue identified as Respondents' Joint Exhibit 2 in the record and the condition of requiring lights on the dock for safety purposes as set forth in Finding of Fact 20 above.

RECOMMENDATION

Accordingly, in view of the above Findings of Fact and Conclusions of Law, it is, therefore, recommended that the Department enter a Final Order issuing Permit Number 581885033 to Respondents Robert Laven and John Cloud as set forth in the Department's Intent To Issue dated August 2, 1991 provided that the grant of the subject permit should include the general and specific conditions in the Intent To Issue as well as the condition requiring lights on the dock for safety purposes as set forth in Finding of Fact 20 above.

RECOMMENDED this 21st day of November, 1991, in Tallahassee, Florida.

WILLIAM R. CAVE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 1991.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-3988

The following constitutes my specific rulings pursuant to Section 120- 59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in the case.

Rulings on Proposed Findings of Fact Submitted by the Petitioner

1. Both paragraphs regarding Respondent Cloud's testimony at the hearing go to his credibility as a witness and are not stated as a finding of fact and are therefore rejected.

   
   

2. Paragraphs 1 and 2 regarding Rose Poynor's testimony appear to be supported by documents or testimony not received at the hearing and are therefore rejected.

   
   

3. Paragraph 3 regarding Rose Poynor's testimony is either immaterial or irrelevant or goes to her credibility as a witness or is supported by facts not in the record.

   
   

4. The paragraph regarding Roy R. Lewis' testimony goes to his credibility as a witness and is not a statement of fact.

   
   

5. Paragraphs 1 and 2 regarding Robert Patten's testimony is more of a restatement of his testimony than a finding of fact. But in any event, are neither material or relevant.

6. The next to the last paragraph is not supported by the record but see Finding of Fact 20.

   
   

7. The last unnumbered paragraph is not supported by the record. See Finding of Fact 24.

Rulings on Proposed Findings of Fact Submitted by Respondent Department of Environmental Regulation

1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding(s) of Fact which adopts the proposed findings of fact: 1 (1, 2, 3); 2 (4, 6); 3 (5); 4 (11); 5 (11); 6 (13); 7 (7, 8); 8 (7, 8); 9 (7, 8); 10 (7, 8); 11 (7); 12 (7); 13 (12, 15); 14 (7); 15 (12); 16 (7, 14); 17 (15); 18 (7, 16); 19 (17); 20 (7); 21 (7); 22 (7, 18); 23 (18); 24 (20); 25 (7, 17); 26 (23); 27 (19); 28 (21); 29 (22); 30 (7); 31 (17); 32 (7); 33 (9); 34 (9, 10); 35 (7, 8, 11, 12,

14-22); and 36 (7).

Rulings on Proposed Findings of Fact Submitted by Respondents Laven and Cloud

Respondents Laven and Cloud have divided their findings into two groups (1) Findings of Fact and (2) Ultimate Findings. Since the Findings of Fact are duplicative of the Ultimate Facts or are only restatements of the witnesses testimony, I will respond only to the Ultimate Facts.

1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding(s) of Fact which adopts the proposed finding of fact: 1 (1); 2 (3); 3 (2); 4 (4, 6); 5 (3); 6 (7, 12); 7 (7, 17, 18); 8 (7); 9 (7); 10 (7, 24); 11 (7, 24); 12 (22); 13 (17); 14 (is a duplication of paragraph 13); 15 (20); 16 (21) and 17 (16).

COPIES FURNISHED:

Alan S. Dorrill 1726 Floyd Street

Sarasota, FL 34239

F. Craig Richardson, Esquire Icard, Merrill, Cullen, Timm,

Furen, & Ginsbrug, P.A. 2033 Main Street, Suite 600

Sarasota, FL 34237

Carol Forthman, Esquire

Maureen A. Eggert, Certified Legal Intern 2600 Blairstone Road

Tallahassee, FL 32399-2400

Carol Browner, Secretary Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, FL 32399-2400

Daniel H. Thompson, General Counsel Department of Environmental

Regulation

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: 91-003988

Orders for Case No: 91-003988