STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CAROLYN R. MARTEL, )

)

Petitioner, )

)

vs. ) CASE NO. 93-5566

)

BREVARD COUNTY FACILITIES ) CONSTRUCTION and DEPARTMENT OF ) ENVIRONMENTAL PROTECTION, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled case on February 2, 1994, in Melbourne, Florida.

APPEARANCES

For Petitioner: Carolyn Martel

(representing herself) Post Office Box 54872

Oklahoma City, Oklahoma 73154

For Respondent, Lisa P. Troner, Esquire Brevard County: Assistant County Attorney

Brevard County Board of County Commissioners

2725 St. Johns Street Melbourne, Florida 32940

For Respondent, John L. Chaves, Esquire Department of Assistant General Counsel

Environmental Department of Environmental Protection Protection: 2600 Blair Stone Road

Tallahassee, Florida 32399-2400 STATEMENT OF THE ISSUES

On June 10, 1993, the Department of Environmental Protection proposed approval of permit no. 05-221736-4 to Brevard County for construction of a public fishing pier and dock at Fisherman's Landing Park in South Brevard County. The proposed permit was contested by Carolyn Martel, an adjacent property owner. The issue for disposition in this proceeding is whether the permit should be issued, and if so, what conditions should be placed on the permit.

PRELIMINARY STATEMENT

The case was referred to the Division of Administrative Hearings for a formal proceeding and, after consultation with the parties, was set for hearing. The hearing was continued once at the request of the Petitioner.

At the commencement of the hearing, a motion in limine was denied, as moot; and a motion to view the site was denied, as unnecessary. The parties stipulated that the exhibits of both respondents were admissible. The parties also stipulated to the addition of a permit condition prohibiting the sale of refreshments or bait and tackle supplies at the park.

Brevard County, as applicant, proceeded first with its witnesses: Chuck Nelson, William John (Bill) Ross, Mahmoud Najda, P.E., Pat Swatek, and Conrad White. Brevard County's exhibits #1-12 were received in evidence, without objection.

The Department of Environmental Protection presented the testimony of Tamy Weingarten and Brian Douglas Poole. DEP's exhibits #1-7 were received in evidence, without objection.

Carolyn Martel testified in her own behalf and presented three exhibits; Petitioner's exhibits #1 and #3 were received without objection and exhibit #2 was received over an objection based on relevance.

No transcript was filed, and all parties filed proposed recommended orders.

The Department of Environmental Regulation adopted the county's proposed findings of fact and conclusions of law. The findings of fact proposed by those parties are substantially adopted and incorporated in this recommended order.

Ms. Martel's proposed findings of fact are adopted in part, and rejected in part, as more specifically addressed in the attached appendix.

FINDINGS OF FACT

Parties

1. The applicant for permit is Brevard County's Facilities Construction Division (County). The Department of Environmental Protection (DEP), formerly the Department of Environmental Regulation and Department of Natural Resources, is the state agency responsible for reviewing the permit application pursuant to Chapters 373 and 403, F.S.

   
   

2. Petitioner, Carolyn Martel (Ms. Martel) owns property adjacent to, and north of the county park. She has owned the property for approximately sixteen years and uses it for a vacation home, with the intent to retire there eventually.

   
   

   The Project

   
   

3. On October 26, 1992, the county applied for a permit to construct a public fishing pier and dock at its existing recreational facility, Fisherman's Landing Park, in Grant, Florida, at the south end of Brevard County.

4. Fisherman's Landing Park is located on the Indian River in an area known as the Malabar to Sebastian Aquatic Preserve. The park lies between the river and U.S. Highway No. 1, approximately seven miles north of Sebastian, Florida. The park is approximately 7.9 acres, with approximately 2000 feet frontage along the river.

   
   

5. The proposed pier/dock is the second phase of the park construction project, funded in part by the Florida Inland Navigation District (FIND), to provide picnic, restroom and emergency docking access for the boating public already using the intercoastal waterway. The only access for boats is from the waterway. No boat ramp exists, nor is one planned for the area.

   
   

6. The project site is in Class II waters, and is subject to Outstanding Florida Waters (OFW) criteria which apply in the aquatic preserve pursuant to rule 17-302.700(9)(i), F.A.C..

   
   

7. The pier/dock was originally planned to be much larger, but was reduced in size to comply with suggestions by various reviewing agencies. As now proposed, construction will connect with an existing boardwalk and will run in a northeasterly direction over the water, approximately 209 feet, with a platform at the end in a "T" configuration, 30 feet by 9 feet. Its total length is 220 feet, tip to tip.

   
   

8. Various governmental agencies, including the U.S. Army Corps of Engineers, the U.S. Fish and Wildlife Service and the Office of Protected Species Management of the Florida DEP were involved in the review. After requested changes were made, the project was approved, with general and special conditions, in permit no. 05-221736-4. Because this is a public project, a state-owned lands lease was not required. Instead, a letter of consent was issued on October 5, 1993.

   
   

   THE PERMIT CRITERIA

   
   

   The public health, safety, or welfare or property of others

   
   

9. The project must, and will, comply with state water quality standards. No work will be performed on shore or underwater except for pile driving and some renovation to meet handicapped accessibility standards. Projects such as this do not typically cause excessive turbidity. Any turbidity during the construction phase will subside within 24-48 hours. The water quality in the area, already degraded for years, will not be further degraded by the project.

   
   

10. The temporary mooring access will discourage pollution already being caused by boaters using the waterway and illegally disposing of waste and garbage. This was a primary rationale for the FIND funding for the project.

    
    

11. The pier will be fully accessible to wheelchairs and will meet all accessibility requirements of the Americans with Disabilities Act (ADA).

    
    

12. The only evidence of criminal activity in the park has been some minor vandalism and graffiti. County park rangers patrol the park several times a day. The marine patrol is in charge of law enforcement from the water, and the sheriff conducts frequent patrols from along U.S. Highway No. 1. Park hours (daylight only) are posted, along with other park regulations.

    The conservation of fish and wildlife, including endangered

    or threatened species, or their habitats

    
    

13. The project is within the Brevard County manatee protection zone which requires a slow speed for boats. As a condition of the permit, manatee and seagrass informational and educational signs shall be placed on the structure.

    
    

14. Manatees use the area for grazing and will continue to do so. The project will not significantly increase boating activity; it is not considered a very desirable boating area. The project is intended to divert boats already on the waterway and illegally picnicking and disposing of waste and garbage elsewhere. If manatees are observed in the area during construction, construction will have to stop until the manatees leave.

    
    

15. East of the site and east of the channel in the river is Grant Farm Island, a bird rookery which includes endangered birds. According to the scale on the vicinity map (County exhibit #12), the island is approximately 1/4 mile from the park. According to competent expert testimony, the birds will not be affected by the project.

    
    

16. There are seagrasses at the site, as surveyed by county and state environmental staff, and as a condition of the permit, the surveys must continue and reports must be made to the DEP. Restoration of any areas damaged by boats must be provided by the county. However, little damage is anticipated since boats will be confined to the end of the dock, where the water is 5-6 feet deep. The entire dock will be constructed at a minimum level of 5 feet above mean high water to allow sunlight to continue nourishing the grasses. With the conditions placed in the permit, the seagrasses shall be only minimally affected.

    
    

    Navigation and the flow of water; no harmful erosion or shoaling

    
    

17. The project will not affect the flow of water nor will it cause erosion or shoaling, according to the only competent evidence offered on this subject.

    
    

18. The end of the dock is over 350 feet from the channel of the intercoastal waterway, far enough to avoid any navigational hazards. There will be lights and reflectors to warn boaters.

    
    

    Fishing or recreational values and marine productivity

    
    

19. Long-standing pollution, including pollution from septic tanks has caused this area to be restricted or closed to shellfish harvesting since the 1970's. It is not a highly productive area for commercial fishing.

    
    

20. Opportunities for recreational fishing and other recreation is substantially enhanced by the project, particularly for handicapped persons. There is very little existing public access to the Indian River in this portion of Brevard County.

    The nature of the project: temporary or permanent

    
    

21. There is no dispute that the project is permanent.

    
    

    Significant historical and archaeological resources

    
    

22. The Grant community in Brevard County is an old Florida riverfront community. The Grant historical house located at the site will not be affected, except that enjoyment and access to the house will be enhanced for boaters who temporarily moor at the dock. The old house has a dock that is no longer accessible.

    
    

    The current condition and relative value of functions

    being performed by areas affected by the proposed area

    
    

23. As provided above, the water quality in the area is already degraded, and the project will not contribute to further degradation, but rather should enhance the quality as an alternative to illegal dumping and disposal.

    
    

24. Specific conditions in the permit are intended to maintain the value of functions performed by the existing seagrasses, and adequate monitoring is placed in those conditions to assure their success.

    
    

25. The value or function of the public park facility is substantially improved by opening access from the water to boaters, and from the shore to handicapped individuals.

    
    

    Balancing the Criteria and summary of findings

    
    

26. Based on competent expert testimony and evidence, the county has provided reasonable assurance that the project is clearly in the public interest.

    
    

27. With a degree in biology and a master's degree in public health, Ms. Martel is an articulate and knowledgeable advocate for her own position. However, most of her testimony or evidence regarding the project's impacts on the environment was very general; for example: seagrasses are vital to estuarine ecology; manatees are frequently tragic victims of boaters; Brevard County is home to a wide variety of endangered flora and fauna; and similar well-accepted facts.

    
    

28. Some of Ms. Martel's concerns are beyond the scope of this proceeding. The park itself was constructed on public property in 1989. The restroom facilities and septic tank were permitted several years ago as part of that earlier phase of park development. Any run-off or other effects of the parking spaces at the site are also the result of the earlier phase and will not be exacerbated by this project. Ms. Martel's concerns about trespassers or squatters on her property are not issues within the permit criteria addressed above.

    CONCLUSIONS OF LAW

    
    

29. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to section 120.57(1), F.S.

    
    

30. As applicant, the county has the burden of proving its entitlement to the permit at issue. Rules 17-103.130(1)(a), and 17-4.070(1), F.A.C.; JWC v. Department of Transportation and Department of Environmental Regulation, 396 So2d 778, 787 (Fla. 1st DCA 1981).

    
    

31. There is no dispute as to Ms. Martel's standing in this proceeding.

    
    

32. Section 373.414 (transferred from chapter 403, F.S., in 1992, see 93- 213, Laws of Fla.) provides, in pertinent part:

    
    

    373.414 Additional criteria for activities in surface waters and wetlands.--

    1. As part of an applicant's demonstration that an activity regulated under this part will not be harmful to the water resources or will not be inconsistent with the overall objectives of the district, the governing board or the department shall require the applicantto provide reasonable assurance that state water quality standards applicable to waters as defined in s. 403.031(13) will not be violated and reasonable assurance that such activity in, on or over surface waters or wetlands, as delineated in s. 373.421(1), is not contrary to the public interest. However, if such an activity significantly degrades or is within an Outstanding Florida Water, as

       provided by department rule, the applicant must provide reasonable assurance that the proposed activity will be clearly in the public interest.

       1. In determining whether an activity, which is in, on, or over surface waters or wetlands, as delineated in s. 373.421(1), and is regulated under this part, is not contrary to the public interest or is clearly in the public interest, the governing board or the department shall consider and balance the following criteria:

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

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

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

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

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

    6. Whether the activity 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.

    * * *

    1. The governing board or the department, in deciding whether to grant or deny a permit for an activity regulated under this part shall consider the cumulative impacts upon surface water and wetlands, as delineated

       in s. 373.421(1), within the same drainage basin as defined in s. 373.403(9), of:

       1. The activity for which the permit is sought.

       2. Projects which are existing or activities regulated under this part which are under construction or projects for which permits or determinations pursuant to s.

          373.421 or s. 403.914 have been sought.

       3. Activities which are under review, approved, or vested pursuant to s. 380.06,

    or other activities regulated under this part which may reasonably be expected to be located within surface waters or wetlands, as delineated in s. 373.421(1), in the same drainage basin as defined in s. 373.403(9), based upon the comprehensive plans, adopted pursuant to chapter 163, of the local governments having jurisdiction over the activities, or applicable land use restrictions and regulations.

    (emphasis added)

    
    

33. As found above, the county met its burden of providing reasonable assurance that the project at issue is not contrary to, and is clearly in, the public interest. There is no evidence that this project will contribute to existing or future (cumulative) impacts of other projects in the area.

    
    

    RECOMMENDATION

    
    

    Based on the foregoing, it is, hereby, RECOMMENDED:

    That the Department of Environmental Protection issue its Final Order approving permit 05-221736-4, with the proposed general and special conditions attached, and with the additional condition stipulated by the parties with regard to prohibiting refreshment or bait and tackle concessions.

    DONE AND RECOMMENDED this 10th day of June, 1994, in Tallahassee, Leon County, Florida.

    
    

    
    

    MARY CLARK

    Hearing Officer

    Division of Administrative Hearings The DeSoto Building

    1230 Apalachee Parkway

    Tallahassee, Florida 32399-1550

    (904)488-9675

    
    

    Filed with the Clerk of the Division of Administrative Hearings this 10th day of June, 1994.

    
    

    APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-5566

    
    

    The following constitute specific rulings on the parties' findings of fact as provided in section 120.59(2), F.S.:

    
    

    Petitioner's Proposed Findings

    
    

    1.-2. Adopted in substance in paragraph 1.

    1. Adopted in substance in paragraph 2.

    2. Adopted in substance in paragraph 4.

    3. Adopted in paragraph 6; however, the finding with regard to approval for shellfish harvesting is rejected as not supported by competent evidence.

    4. Rejected as cumulative or unnecessary.

    5. Adopted, as to location, in paragraph 3; otherwise rejected as unsupported by competent evidence.

    6. Adopted generally in paragraph 16.

    7. Rejected as immaterial; there is no evidence of any impact of this project on wetland areas or on shoreline vegetation.

    8. Adopted generally in paragraph 15.

    9. Rejected as irrelevant and immaterial. 12.-13. Adopted generally in paragraph 7.

14.-18. Rejected as unnecessary.

19. Adopted in general in paragraph 16.

20.-29. Rejected as argument or comment on the evidence, rather than findings of fact.

30. Rejected as unnecessary. As found in paragraph 8, the letter of consent was issued.

31.-38. Rejected as argument rather than findings of fact, or irrelevant (as to the septic tank and parking facilities).

39.-40. Rejected as unsupported by competent evidence.

41. Addressed in preliminary statement and in recommendation.

42.-45. Rejected as unnecessary or argument, rather than findings of fact.

46. Rejected generally as unsupported by competent evidence (as to negative affect on navigation).

47.-51. Rejected as argument, or unnecessary.

52.-55. Rejected as contrary to the weight of evidence (as to negative impacts), and unnecessary (as to Tamy Weingarden's qualifications). Ample competent testimony was presented by the applicant.

1. Rejected as unnecessary.

2. Rejected as unsupported by competent evidence (as to cumulative impacts).

3. Rejected as argument or unnecessary.

59.-60. Rejected as contrary to the weight of evidence (as to negative impacts and negative balance).

61. Adopted in paragraph 21.

COPIES FURNISHED:

Carolyn Martel

Post Office Box 54872

Oklahoma City, Oklahoma 73154

Lisa Perlmutter Troner Assistant County Attorney Brevard County Board of

County Commissioners 2725 St. Johns Street Melbourne, Florida 32940

John L. Chaves

Asst. General Counsel

Department of Environmental Protection 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Kenneth Plante, General Counsel Department of Environmental Protection Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 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: 93-005566

Orders for Case No: 93-005566