STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES CASTORO AND WINIFRED )

CASTORO; JELKS H. CABANISS, )

JR. AND ANNE CABANISS; )

STANLEY GOLDMAN AND GLORIA )

GOLDMAN; FRANKLIN H. )

PFEIFFENBERGER; and KATY )

STENHOUSE, )

)

Petitioners, )

)

vs. ) Case Nos. 96-0736

) 96-5879

ROY PALMER and DEPARTMENT )

OF ENVIRONMENTAL PROTECTION, )

)

Respondents. )

)

RECOMMENDED ORDER

On June 11 through 13, 1997, and April 22, 1998, a formal administrative hearing was held in this case in Sarasota, Florida, before J. Lawrence Johnston, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioners: David M. Levin, Esquire

Icard, Merrill, Cullis, Timm, Furen & Ginsburg

Post Office Box 4195 Sarasota, Florida 34237

Alexandra St. Paul, Esquire The Riverview Center

1111 3rd Avenue, West Suite 350

Bradenton, Florida 34205

For Respondent Department of Environmental Protection

Thomas I. Mayton, Esquire

T. Andrew Zodrow, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

For Respondent Roy Palmer:

Richard Filson, Esquire Filson and Penge, P.A.

2727 South Tamiami Trail, Suite 2

Sarasota, Florida 34239 STATEMENT OF THE ISSUES

The issues in these cases are whether the Respondent, Roy Palmer, is entitled to a Noticed General Environmental Resource Permit, under Florida Administrative Code Chapter 62-341, and a Consent of Use under Florida Administrative Code Chapter 18-21.

PRELIMINARY STATEMENT

On or about February 13, 1995, the Respondent, Roy Palmer (Palmer), applied for a wetland resource permit to construct a 395-foot boat dock for use at his single-family residence at property he owned on Sarasota Bay. On September 1, 1995, the Department of Environmental Protection (the Department or DEP) gave notice of intent to issue a permit for a shorter (370 feet) dock. The Petitioners filed a petition for administrative hearing challenging the intended action. DEP referred the petition to the Division of Administrative Hearings (DOAH), where it was assigned DOAH Case No. 95-5311 and scheduled for final hearing on April 30, 1996.

On October 3, 1995, new DEP rules went into effect regarding environmental resource permits (ERPs). Florida Administrative Code Chapter 62-341 of the new rules authorized the issuance of "Noticed General Environmental Resource Permits" under certain

circumstances. On or about December 11, 1995, Palmer applied for a noticed general ERP for a 370-foot dock under the new rules.

On or about January 10, 1996, DEP acknowledged receipt of the noticed general ERP (No. 582819483) and informed Palmer that it appeared to meet the requirements of the new rule. DEP also gave notice of intent to grant Palmer's application for consent of use of sovereign submerged lands necessary to construct the dock. (The record is not clear when the application for consent of use was filed.)

The Petitioners filed a petition for administrative hearing challenging agency action regarding both the noticed general ERP and the consent of use. DEP also referred this petition to DOAH, where it was assigned DOAH Case No. 96-0736. On or about February 8, 1996, Palmer moved to dismiss DOAH Case

No. 95-5311, and the April 30, 1996, final hearing date in DOAH Case No. 95-5311 was used for scheduling the final hearing in DOAH Case No. 96-0736.

On April 9, 1996, DEP filed a Motion to Strike the part of the petition directed to Palmer's noticed general ERP. On April 15, 1996, Palmer filed a Motion to Dismiss and/or Strike.

On April 17, 1996, a Joint Prehearing Statement and Uncontested Motion to Continue was filed. Final hearing was continued, and the other motions were heard by telephone on June 3, 1996. On June 7, 1996, an Order Denying Motions to

Dismiss and Strike was entered. Final hearing was rescheduled for November 7, 1996.

In July 1996, Palmer applied for a noticed general ERP to build a still shorter (232-feet) dock (No. 292583). DEP took no action on this application.

On September 23, 1996, Palmer filed a Motion to Dismiss the Petition for Administrative Proceeding in DOAH Case No. 96-0736 because he had withdrawn the previous application for a noticed general ERP for a 370-foot dock (No. 582819483) and was proceeding on the second noticed general ERP (No. 292583) for the 232-foot dock. Palmer's motion did not make it clear that his intent was to dismiss the part of his prior application regarding the noticed general ERP, but not the consent of use application. No party responded to the motion, and a Recommended Order of Dismissal was entered in DOAH Case No. 96-0736 on October 16, 1996.

On October 28, 1996, the Petitioners filed a petition for administrative hearing challenging the noticed general ERP

(No. 292583) for the 232-foot dock. DEP referred the October 28, 1996, petition to DOAH, where it was assigned DOAH Case

No. 96-5879. DEP also referred Palmer's Motion to Dismiss and/or Strike and the Petitioners' Motion to Strike Palmer's motion. On January 14, 1997, an Order Denying Motions was entered, and DOAH Case No. 96-5879 was set for final hearing on May 1, 1997.

On March 31, 1997, the Petitioners filed a Motion for

Continuance to allow three days for the final hearing in DOAH Case No. 96-5879. On April 15, 1997, an Order Continuing Final Hearing was entered rescheduling final hearing for June 11 through 13, 1997.

On May 12, 1997, a Partial Final Order and Order of Partial Remand of Proceedings to the Division of Administrative Hearings was filed in DOAH Case No. 96-0736. It had been entered on November 26, 1996, but through inadvertence was not filed at DOAH, and DOAH was not made aware of its existence until May 12, 1997. Based on the exceptions filed, it clarified that only the noticed general ERP in Application File No. 582819483 should have been dismissed, and not the consent of use application.

A telephone hearing on remand was held on May 16, 1997, and on May 21, 1997, DOAH Case No. 96-0736 was reopened for purposes of resolving the intent to issue the consent of use and was consolidated with DOAH Case No. 96-5879 for final hearing on June 11 through 13, 1997.

On June 3, 1997, Palmer filed a Motion in Limine, and the parties filed amendments to the Joint Prehearing Statement they had filed on April 17, 1996.

At final hearing, the Petitioners dismissed allegations in their petition that the noticed general ERP violated the City of Sarasota Code; otherwise, Palmer's Motion in Limine was denied. Palmer testified in his own behalf and called eight witnesses, all of whom gave expert opinion testimony, including one DEP

witness. Palmer also had the following exhibits admitted in evidence: 1; 2A-C; 5; 9; 13; 15; 16A-E; 22; 23B; 25; and

26A-B. DEP recalled its witness in its case-in-chief. Three of the Petitioners testified, and the Petitioners called one expert witness. The Petitioners also had the following exhibits admitted in evidence: 1; 2; 5a-c; 7-9; 18; 24-25; 30-31; 33-35;

35A; 36A-C; 37-38; 40; 42-44; and 52-53.

During the course of the hearing, the Petitioners attempted to raise an additional issue as to whether Palmer had the status as a riparian owner required for a consent of use. Palmer objected, and the objection was sustained. However, the Petitioners were allowed to file a post-hearing motion and written argument for leave to amend their petition to add this issue, and the other parties were given an opportunity for a written response.

The Motion to Amend Petition and Memorandum of Law in Support were filed on June 20, 1997. DEP's written response stated no objection to continuing final hearing for purposes of the additional issue. Palmer filed a response and memorandum of law in opposition that appeared to object most vigorously only if Palmer would not be permitted to present additional evidence on the issue. These positions were confirmed in a telephone hearing on the Motion to Amend Petition held on July 3, 1997, at which it was made clear that Palmer would be permitted to present additional evidence.

On August 4, 1997, an Order Granting Leave to Amend Petition and Continuing Final Hearing was entered. It continued final hearing until October 22, 1997, for purposes of the added allegations. However, on October 22, 1997, Palmer filed an unopposed Motion for Continuance. Another telephone hearing was held, and a Second Order Continuing Final Hearing until

February 18, 1998, was entered.

On January 28, 1998, the Petitioners filed a Motion to Abate and/or Continue. It asserted, based on newly discovered evidence, that a real property boundary would have to be established in order to resolve the additional issue, and that exclusive jurisdiction to do so was in the circuit court. Palmer filed an objection, but DEP agreed with the Petitioners. A telephone hearing was held on February 10, 1998.

On February 13, 1998, a Third Order Continuing Final Hearing was entered. It denied the motion to abate but, without objection, continued final hearing until April 22, 1998, based on the late preparation and distribution of one of Palmer's exhibits.

At the hearing on April 22, 1998, Palmer testified again and called two expert witnesses on the additional issue. He also had Palmer Exhibits A through N admitted in evidence. Petitioners' Exhibit C also was admitted in evidence.

After presentation of all the evidence, the parties ordered the preparation of a transcript of the final hearing and

requested 45 days from the filing of the transcript for filing proposed recommended orders. The transcript of the April 22, 1998, hearing was filed on May 13, 1998; however, through inadvertence, the parties omitted to file the transcript of the hearing on June 11 through 13, 1997.

On June 12, 1998, Palmer's unopposed Motion for Extension of Time was granted, and the time for filing proposed recommended orders was extended until July 13, 1998. On July 9, 1998, a Second Order Extending Time was entered granting the Department's Unopposed Motion for Extension of Time for filing proposed recommended orders until July 27, 1998. The transcript of the hearing on June 11 through 13, 1997, was filed on August 24,

1998.

FINDINGS OF FACT

Procedural History

1. On or about February 13, 1995, the Respondent, Roy Palmer (Palmer), applied for a wetland resource permit to construct a 395-foot boat dock for use at his single-family residence at property he owned on Sarasota Bay, an Outstanding Florida Water. As proposed, this dock was to originate from the northern part of Palmer's property and have a terminal platform with two boat moorings and two boat lifts.

2. On September 1, 1995, the Department of Environmental Protection (the Department or DEP) gave notice of intent to issue a permit for a shorter (370-foot) dock originating from the

   southern part of the Palmer property. The Petitioners filed a petition for administrative hearing challenging the intended action. DEP referred the petition to the Division of Administrative Hearings (DOAH), where it was assigned DOAH Case No. 95-5311.

3. On or about December 11, 1995, Palmer applied for a noticed general environmental resource permit (ERP) permit for his dock under new DEP rules went into effect on October 3, 1995. This proposal was for the 370-foot dock originating from the southern part of the Palmer property.

4. On or about January 10, 1996, DEP acknowledged receipt of the noticed general ERP (No. 582819483) and informed Palmer that it appeared to meet the requirements of the new rule. DEP also gave notice of intent to grant Palmer's application for consent of use of sovereign submerged lands necessary to construct the dock. (The record is not clear when the application for consent of use was filed.)

5. The Petitioners filed a petition for administrative hearing challenging agency action regarding both the noticed general ERP and the consent of use. DEP also referred this petition to DOAH, where it was assigned DOAH Case

   No. 96-0736. Palmer withdrew the original permit application and moved to dismiss DOAH Case No. 95-5311.

6. In July, 1996, Palmer applied for a noticed general ERP to build a still shorter (232-foot) dock originating from the

   southern part of the Palmer property (Permit No. 292583). Apparently, no notice of the application was published or required to be published. It is not clear whether the Petitioners "filed a written request for notification of any pending applications affecting the particular area in which the proposed activity is to occur."

7. Palmer's second noticed general ERP (No. 292583) was amended on or about August 19, 1996, to eliminate one boat mooring and one boat lift. DEP took no action on Palmer's second application for a noticed general ERP No. 292583.

8. On September 23, 1996, Palmer filed a Motion to Dismiss the Petition for Administrative Proceeding in DOAH Case

   No. 96-0736 because he had withdrawn the previous application for a noticed general ERP for a 370-foot dock (No. 582819483) and was proceeding only on the second noticed general ERP (No. 292583) for the 232foot dock. Palmer's intent was to dismiss only the

   
   

   portion of his prior application regarding the noticed general permit, but not the consent of use.

9. On October 28, 1996, the Petitioners filed a petition for administrative hearing challenging noticed general ERP No. 292583 for the 232-foot dock. This petition alleged that the Petitioners filed a written objection to noticed general ERP No. on September 16, 1996, which requested a written response, and that no response of any kind was received until the Petitioners

   inquired and were told that DEP did not intend to respond to either the noticed general ERP (No. 292583) or the Petitioners' objection.

   Proposed Dock at Issue

   
   

10. The proposal at issue is for a 227-foot access pier and

    
    

    20 foot by 5 foot terminal platform with only one boat mooring and one boat lift. The length, location, and design of Palmer's proposed dock was changed in an attempt to satisfy the Department of Environmental Protection (DEP or the Department) and Palmer's neighbors. Palmer's task in this regard was difficult in part because a longer dock with a terminus in deeper water could have less impact on seagrasses (the major environmental concern) but would have a greater impact on the neighbors' views of Sarasota Bay (the major infringement of riparian rights concern.) In the final version, Palmer tried to balance these conflicting concerns.

11. As proposed, neither the terminal platform, boat lift, nor mooring location occurs over submerged grassbeds, coral communities or wetlands. Starting at the mean high water line, the first 75 feet of the access pier for the proposed dock will traverse essentially no sea grasses. In the next 75 feet to 150 feet of the access pier, there will be approximately 80% vegetative cover consisting primarily of the seagrass halodule wrightii. Between 150 feet and 200 feet, there will be approximately 20% vegetative cover consisting of the seagrasses

    halodule wrightii and thalassia testudinum. Between 200 feet and

    
    

    232 feet, seagrasses consisted primarily of thalassia testudinum, except that the terminal platform is located in an area of essentially bare sand.

12. Starting at 80 feet from the mean high water line, the access pier for the proposed dock will ramp up to 5 feet above mean high water for the next 20 linear feet and continue at that elevation for the next 112 feet to reduce shading of the seagrasses. Then it will descend stairs for the next 5 linear feet, until it is 3.5 feet above mean high water, and will continue at that elevation for 10 more feet to where it joins the

    20 foot by 5 foot terminal platform. In this way, wherever it traverses seagrasses, the access walkway portion of the pier will be elevated 5 feet above mean high water. The access walkway will be only 4 feet wide and will have half-inch wide gaps between its deck boards to allow sunlight through and further reduce shading of the seagrasses. The access walkway also will have handrails that are maintained in such a manner as to prevent use of the access walkways for boat mooring or access.

13. As proposed, the terminal platform and boat lift occurs in a location with minimum depth of 2.2 feet below the mean low water level. There is some water 1.7 feet deep in the vicinity of the terminal platform, but the structure can be used without traversing the shallow water. The structure is designed so that

    boat mooring and navigational access will be in water at least

    
    

    2 feet deep.

    
    

14. Including access pier and terminal platform, the total area of Palmer's proposed dock over sovereign, submerged land would be 1,008 square feet. There will be no wet bars or living quarters over wetlands or surface waters or on the pier, and there will be no structures enclosed by walls or doors. There will be no fish cleaning facilities, boat repair facilities or equipment, or fueling facilities on the proposed dock. No overboard discharges of trash, human, or animal waste, or fuel will occur from the dock.

15. The only dredging or filling associated with construction of Palmer's proposed dock will be the minimum dredge and fill required for installation of the actual pilings for the pier, terminal platform, and boat lift. Altogether, less than 30 square feet of bay bottom will be disturbed during construction and displaced to accommodate the pilings.

16. Palmer's noticed general ERP is subject to the general conditions set out in Florida Administrative Code Rule 62-

    341.427. Among those conditions is the requirement that Palmer implement best management practices for erosion, turbidity, and other pollution control to prevent violation of state water quality standards. The pilings will be jetted, not driven, into place to minimize disturbance of the bay bottom and temporary increases in turbidity. Turbidity barriers will be installed and

    maintained in a functional condition at each piling until construction is completed and soils are stabilized and vegetation has been established. Used properly, turbidity barriers have proved effective in containing temporary turbidity from dock construction.

17. Based on the expert testimony, it is found that the construction of Palmer's proposed dock will not significantly impact seagrasses.

18. The Petitioners presented expert testimony on seagrasses, but their expert testified only generally based on studies showing that shading negatively impacts seagrasses. He had no prior knowledge of the Palmer dock design, seagrass coverage, or the depth of the water. When apprised of some information concerning Palmer's proposed dock, he admitted that the studies involved far more severe shading conditions than would be caused by the proposed dock. He could not testify that the Palmer dock design would harm seagrasses, with the exception of those actually removed by the installation of the pilings.

19. Accidental boat propeller dredging in using a dock can be a secondary impact on seagrasses from dock construction. But while a dock could perhaps attract a few boats, the dock's presence also might cause boaters to steer clear of the dock or reduce speed in the vicinity of the dock, which could result in a net reduction in the risk of damage to seagrasses from accidental prop dredging.

    
    

20. Petitioners Dr. Franklin Pfeiffenberger, James Castoro, and Winifred Castoro jointly own a dock to the south of the Palmer property. This dock, which was built in the 1930's, projects 190 feet into Sarasota Bay and traverses seagrasses. Unlike the proposed Palmer dock, the Pfeiffenberger dock is not elevated, and it terminates in seagrasses. The seagrasses under the Pfeiffenberger dock are the same types as those located in the Palmer dock alignment--a combination of halodule wrightii and thalassia testudinum. The dock has been rebuilt a number of times over the years. Upon physical inspection, apparently healthy and growing seagrasses were found underneath the Pfeiffenberger dock.

21. The proposed dock will not harm wildlife, including manatees (the only endangered species in the area, animal or plant). Manatees use Sarasota Bay in general, but the east side of the bay, where the Palmer property is located, is not a high use area. It is shallow and would not be considered "select" habitat for manatees. The proposed dock would not have any detrimental effect on manatee travel patterns; they could easily swim around the dock. Manatees eat seagrasses and other aquatic vegetation, but the proposed dock will not have significant adverse impact on those resources. Finally, while a dock could perhaps attract a few boats, the dock's presence also might cause boaters to steer clear of the dock or reduce speed in the

    vicinity of the dock, which could result in a net reduction in the risk of injury to manatees in the area from boat collisions and prop scarring.

22. Except for temporary turbidity during construction, no other water quality parameters will be violated as a result of the construction of Palmer's proposed dock.

23. Palmer's proposed dock and its use will not significantly impede navigability in Sarasota Bay. The bay is approximately 18,000 feet wide at that point, and it is approximately 4,800 feet from Palmer's property to the Intracoastal Waterway. Since the water is shallow near shore in the vicinity of the Palmer property, relatively few boats frequent the area. Those that do are generally smaller boats. These boats easily could navigate so as to avoid the dock; very small boats, such as canoes and kayaks, might even be able to carefully pass under the elevated portion of the dock.

24. Palmer's proposed dock also would not be a serious impediment to other recreational uses of Sarasota Bay in the area. The water is too shallow for swimming. Fishing could improve because the dock could attract baitfish. People could continue to wade-fish by walking around or even under the proposed dock.

25. Palmer's proposed dock is aesthetically consistent with the area in which it is located. All the Petitioners have some sort of man-made structure projecting out into Sarasota Bay from

    their property. As already mentioned, Dr. Pfeiffenberger and the Castoros have a 190-foot dock projecting straight out into Sarasota Bay. Within the past five years, Dr. Pfeiffenberger has installed a bench to sit on at the end of the dock. To the north of the Palmer property, property owned by Mr. and Mrs.

    Cabaniss has a yacht basin formed by a sea wall that projects roughly perpendicular to the shoreline out into the bay.

    Immediately north of the Cabaniss property, there is a boat house on the Goldman property where it abuts the yacht basin. The Goldmans' boat house is approximately 20 feet in length and

    10 feet in height from ground level. Immediately south of the Palmer property, Ms. Stenhouse has a small dock (which appears to be located over seagrasses.) As a result, the viewsheds of Palmer and the Petitioners already contain many docks and man- made structures. In addition, the Ringling Causeway and bridge can be seen from all of these properties.

26. Palmer's proposed dock will appear in some views from the Petitioners' properties. Generally, the closer the neighbor, the more will be seen of Palmer's proposed dock. Some of the Petitioners will only be able to see the proposed dock if they go out to the westerly edge of their properties on the bay. While the proposed dock will appear in and alter these views, it will not eliminate any Petitioner's view of Sarasota Bay. Even the closest neighbors will have some unobstructed views around the proposed dock. It also will be possible to see over and under

    the proposed dock, similar to the way in which many of the Petitioners now enjoy their views. There are tall pine and palm trees on the Cabaniss property between their house and their view of the bay. Most of the other properties in the vicinity appear to have similar viewsheds. Ms. Stenhouse has a large stand of mangroves of the western edge of her property; they cover

    
    

    approximately 60 percent of the panorama from her house, but they are trimmed up so she can see through them.

27. While some people would prefer not to have the Palmer dock there, other people might view the availability of single- family residential docks to be an asset to the properties in the neighborhood. Based on expert testimony, it cannot be found that property values in the area would go down as a result of Palmer's proposed dock.

28. Palmer's proposed dock does little if anything to further the idealistic goals and objectives of the City of Sarasota Comprehensive Plan and the Sarasota Bay Management Plan to restore and expand seagrasses in Sarasota Bay in that the proposed dock will eliminate some seagrasses. However, only approximately 30 square feet of seagrasses will be lost. Otherwise, the proposed dock is consistent with other goals and objectives of the City of Sarasota Comprehensive Plan and the Sarasota Bay Management Plan in that the dock has been aligned and planned so as to minimize impacts on seagrasses while

    balancing the neighbors' desire to minimize the impact on their views of Sarasota Bay.

    Palmer's Riparian Rights

    
    

29. Palmer and his wife received a Warranty Deed, dated August 27, 1993, from James Kirk, II, individually and as personal representative of the Estate of Marie Ferguson. The deed describes Lots 27 and 28 of the Indian Beach subdivision in Sarasota, Florida, with a western boundary "along the shores of Sarasota Bay." Palmer attached this deed to his applications.

30. Since at least November 1992, the mean high water line of Sarasota Bay has been west of a seawall on the Palmer property. The evidence was clear that the seawall has been there since at least 1944 and that Palmer has not filled the area to the west of the seawall or built any structure that influences its existence. The evidence was not clear as to the creation and history of upland to the west of the seawall. From aerial photographs, it appears that at least some upland has existed to the west of the seawall at least from time to time for at least the last 30 years.

31. For reasons no witness could explain, the Palmers also received a Warranty Deed from Kirk, dated September 3, 1993, purporting to convey title only up to the seawall on the Palmer property. Likewise for reasons no witness could explain, a land surveyor named Lawrence R. Weber prepared a boundary survey based on the description in the September 3, 1993, Warranty Deed.

32. Also for reasons no witness could explain, the Palmers received a Quit Claim Deed from Kirk, dated October 20, 1993. This instrument quitclaimed to the Palmers "all of the Grantor's property to the mean high water line of Sarasota Bay, including riparian rights."

33. Except for the mysterious September 3, 1993, Warranty Deed from Kirk, all deeds in the chain of title back to at least 1944 reflect an intention to convey riparian rights. A deed given by Helen and Frederick Delaute to Cecilia and Harold Wilkins, dated April 19, 1944, described the westerly boundary of the property as running northerly along the shores of Sarasota Bay and specifically referenced riparian rights. (This deed attached a survey showing the still-existing seawall.) The next deed in the chain of title was from the widowed Cecilia S. Wilkins to Edward and Laura Williams dated December 27, 1954.

    The metes and bounds description again referenced the westerly boundary as running along the shores of Sarasota Bay and specifically referenced foreshore accretions and riparian rights. The next deed in the chain of title was from Edward and Laura Williams to Aidan and Wilma E. Dewey dated June 30, 1958. This deed again defined the westerly boundaries of the property as the shores of Sarasota Bay and specifically referenced foreshore accretions and riparian rights. The next deed in the chain of title was from Aidan and Wilma Dewey to Edward and Marie Ferguson dated August 23, 1967. This deed again defined the westerly

    boundary of the property as the shores of Sarasota Bay and specifically referenced foreshore accretions and riparian rights.

    CONCLUSIONS OF LAW

    
    

34. DOAH Case No. 96-5879 involves Palmer's application for a noticed general environmental resource permit (ERP) under Florida Administrative Code Chapter 62-341. DOAH Case

    No. 96-0736 involves Palmer's application for a consent of use of sovereign submerged lands under Florida Administrative Code Chapter 18-21.

    DOAH Case No. 96-5879

    
    

35. Section 403.814(1), Florida Statutes (1997), authorizes the Department to adopt rules for a program of general permits specifying "design or performance criteria" for projects "which have, either singly or cumulatively, a minimal adverse environmental effect."

36. Florida Administrative Code Rule 62-341.201(1) provides in pertinent part:

    The purpose of Part II of this chapter is to provide noticed general environmental resource permits for those activities which have been determined to have minimal impacts to the water resources of the District, both individually and cumulatively. Mitigation is neither necessary nor required for activities that qualify for noticed general permits.

    Persons wishing to use one or more of the general permits under this Part shall be subject to the notice provisions of Section 62-343.090, F.A.C., before any activity is conducted as authorized herein. The general conditions provided pursuant to Section 62- 341.215, F.A.C., shall apply to all of the noticed general permits in this Part. Strict

    compliance with all of the terms, conditions, requirements, limitations and restrictions applicable to a desired noticed general permit under this Part is required to qualify for such a permit.

    
    

37. Florida Administrative Code Rule 62-341.427 establishes a noticed general ERP for single-family piers.

    1. Rights of Access to Proceedings under Section 120.57

       
       

38. Section 403.814, Florida Statutes (1997), provides in pertinent part:

    1. . . . . Except as provided for in subsection (3), any person complying with the requirements of a general permit may use the permit 30 days after giving notice to the department without any agency action by the department.

       * * *

       (3) The department may publish or by rule require the applicant to publish, or the applicant may elect to publish, in a newspaper of general circulation in the area affected, notice of application for a general permit. If published, such public notice of application shall be published within 14 days after the applicant notifies the department; and, within 21 days after publication of notice, any person whose substantial interests are affected may request a hearing in accordance with ss. 120.569 and 120.57. The failure to request a hearing within 21 days after publication of notice constitutes a waiver of any right to a hearing under ss.

       120.569 and 120.57. If notice is published,

       no person shall begin work pursuant to a general permit until after the time for requesting a hearing has passed or until after a hearing is held and a decision is rendered.

       
       

39. Florida Administrative Code Rule 62-4.530 provides in pertinent part:

    1. Unless otherwise required as part of a

       specific category of general permit, persons qualifying for the use of a general permit are not required to, but may, publish in a newspaper of general circulation in the area affected by the proposed project a notice of intent to use a general permit. The notice, if published, shall follow substantially the format in Rule 62-103.150, F.A.C., and shall be published within 14 days of the date when the department receives notification pursuant to Rule 62-4.530(1), F.A.C. No person who has published notice shall begin work until after the 21 days for requesting a hearing has passed or a hearing is held and a decision is rendered.

       * * *

    2. Any person complying with the requirements of a general permit may use the permit 30 days after giving notice to the Department without any agency action. When no agency action is taken, unless the Department or the applicant publishes notice of the application, the provisions of Chapter 120, Florida Statutes, granting to affected parties the right to an administrative hearing do not apply.

40. Prehearing, Palmer moved to dismiss DOAH Case

    
    

    No. 96-5879 under Florida Administrative Code Rule 62-4.530(6) because apparently no notice of Palmer's application for a noticed general ERP (No. 292583) was published, and DEP took no action on the application. Despite the denial of that motion, Palmer continues to maintain that the Petitioners are not entitled to Section 120.57 proceedings to challenge Palmer's noticed general ERP. DEP does not join Palmer in taking that position.

41. DEP (and its predecessor agency, the Department of Environmental Regulation (DER)) previously interpreted

    Rule 62-4.530(6) to authorize projects to be accomplished by

    general permit without agency action and without a point of entry for a third party to initiate an administrative challenge. The rule and the agency interpretations of it were upheld in Hamilton County v. Department of Environmental Regulation, 587 So. 2d 1378, 1385 (Fla. 1st DCA 1991), and in City of Bradenton v.

    Amerifirst Development Corporation, 582 So. 2d 166 (Fla. 2nd DCA 1991). However, both the agency interpretations and the cases upholding them preceded the enactment of Sections 373.403,

    et seq., Florida Statutes (1995), and the adoption of Florida Administrative Code Chapter 62-341.

42. When the Legislature enacted Sections 373.403 et seq., Florida Statutes (1995), to replace most of Sections 403.91- 403.925 and 403.929, it also provided:

    The department and the government boards, on or before July 1, 1994, shall adopt rules to incorporate the provisions of this section, relying primarily on the existing rules of the department and the water management districts, into the rules governing the management and storage of surface

    waters. . . . Such rules may establish exemptions and general permits, if such exemptions and general permits do not allow significant adverse impacts to occur individually or cumulatively. Until

    rules adopted pursuant to this subsection become effective, existing rules adopted under this part and rules adopted pursuant to the authority of ss. 403.91-403.929 shall be deemed authorized under this part and shall remain in full force and effect.

    Section 373.414(9), Florida Statutes (1995).

    
    

43. On or about October 3, 1995, DEP adopted rules pursuant to its authority under both Section 403.814(1) and Section

373.414(9), Florida Statutes (1995), including Florida Administrative Code Rules: 62-341.201, setting out the policy and purpose of the rules chapter; 62-341.215, setting out general conditions for all noticed general permits; 62-341.427, a general permit for certain piers and associated structures; and

62-343.090, setting out the process of notices and applications for general permits.

44. Unlike Rule 62-4.530(6), Rule 62-343.090 does not explicitly limit rights of access under Section 120.57. To the contrary, Rule 62-343.090 suggests that it preserves rights of access under Section 120.57. Subpart (2)(h) of the rule provides that "notice of receipt of a complete or substantially complete application shall be provided to any persons who have filed a written request for notification of any pending applications affecting the particular area in which the proposed activity is to occur" and that DEP must provide notice of intended agency action on to any "person [who] has requested notice of the intended agency action for a specific application." In addition, subpart (2)(k) of the rule provides that "the Department shall require an applicant to publish . . . notice of receipt of the application [and notice of intended agency action] for those activities which, because of their size, potential effect on the environment or the public, controversial nature, or location, are reasonably expected by the Department to result in a heightened

public concern or likelihood of request for administrative proceedings."

1. In this case, Palmer's second noticed general ERP (No. 292583) was filed in July 1996. Apparently, no notice was published or required to be published; it is not clear whether

   the Petitioners "filed a written request for notification of any pending applications affecting the particular area in which the proposed activity is to occur." However, it is clear that Palmer's second noticed general ERP (No. 292583) was amended on or about August 19, 1996, and the Petitioners alleged that they filed a written objection on September 16, 1996, which requested a written response. It is concluded that, as such, the Petitioners' objection amounted to a request for "notice of the intended agency action for a specific application" under Florida Administrative Code Rule 62-343.090(2)(h).

2. It is concluded that, under the circumstances of this case, Rule 62-4.530(6) should be strictly construed and should not be applied to limit rights of access to proceedings under Section 120.57. Rather, it is concluded that Rule 62-343.090 governs this case and that it does not limit the Petitioners' rights of access.

   1. Palmer's Entitlement to Noticed General ERP

   
   

3. As noted, supra, Section 403.814(1), Florida Statutes (1997), authorizes the Department to adopt rules for a program of general permits specifying "design or performance criteria" for

   projects "which have, either singly or cumulatively, a minimal adverse environmental effect." Florida Administrative Code Rule 62-341.427 was adopted under the authority of that statute. See also Florida Administrative Code Rule 62-341.201(1) (noticed general permits are for "those activities which have been determined to have minimal impacts to the water resources of the District, both individually and cumulatively.")

4. Florida Administrative Code Rule 62-341.427 provides in pertinent part:

   1. A general permit is hereby granted to any person to construct, extend, or remove piers and associated structures as described below:

      1. single-family piers, along with boat lifts, boat houses, terminal platforms, and gazebos attached to the pier, where these structures:

         1. do not accommodate the mooring of more than two water craft;

         2. do not, together with existing structures, exceed a total area of 2,000 square feet; and

         3. have a minimum depth of two feet below the mean low water level for tidal waters . . . for all areas designed for boat mooring and navigational access.

   2. This general permit shall be subject to the following specific conditions:

      1. construction or extension of the boat house, boat shelter, boat lift, gazebo, or terminal platforms, shall not occur over submerged grassbeds, coral communities or wetlands. In

         addition, the boat mooring location shall not be over submerged grassbeds, coral communities or wetlands. However, the access walkway portion of the pier may traverse these resources provided it is elevated a minimum of five feet above mean high water or ordinary high water, contains handrails that are maintained in such a manner as to prevent use of the access walkways for boat mooring or access, and does not exceed a width of six feet, or a width of four feet in Aquatic Preserves;

      2. there shall be no wet bars,

         or living quarters over wetlands or other surface waters or on the pier, and no structure authorized by this general permit shall be enclosed by walls or doors;

      3. the structure and its use shall not significantly impede navigability in the water body;

      4. there shall be no dredging or filling associated with construction of the structures authorized herein, other than that required for installation of the actual pilings for the pier, boat lift, boat shelter, gazebo, or terminal platform;

      5. there shall be no fish cleaning facilities, boat repair facilities or equipment, or fueling facilities on the structures authorized by this general permit. In addition, no overboard discharges of trash, human or animal waste, or fuel shall occur from any structures authorized by this general permit; and

      6. this general permit shall not authorize the construction of more than one pier per parcel of land or individual lot. For the purposes of this general permit, multi-family living complexes shall be treated as one parcel of

         property regardless of the legal division of ownership or control of the associated property.

         
         

5. Based on the Findings of Fact, it is concluded that Palmer's application meets the requirements of Florida Administrative Code Rule 62-341.427. Specifically, as to the matters in genuine dispute, Palmer's proposed dock will "have a minimum depth of two feet below the mean low water level . . . for all areas designed for boat mooring and navigational access," and the noticed general ERP will have the necessary conditions, including conditions that the dock's boat lift, terminal platforms, and mooring location "shall not occur over submerged grassbeds" and that "the structure and its use shall not significantly impede navigability in" Sarasota Bay.

6. Florida Administrative Code Rule 62-341.215 provides in pertinent part:

   (3) This general permit does not eliminate the necessity to obtain any required federal, state, local and special district authorizations prior to the start of any construction, alteration, operation, maintenance, removal or abandonment authorized by this permit.

   * * *

   (5) The general permit does not relieve the permittee from liability and penalties when the permitted activity causes harm or injury to: human health or welfare; animal, plant or aquatic life; or property. It does not allow the permittee to cause pollution in contravention of Florida Statutes and Department rules.

   * * *

   (12) Construction, alteration, operation, maintenance, removal and abandonment approved

   by this general permit shall be conducted in a manner which does not cause violations of state water quality standards, including any antidegradation provisions of Sections

   62-4.242(1)(a) and (b), 62-4.242(2) and (3),

   and 62-302.300, F.A.C., and any special standards for Outstanding Florida Waters and Outstanding National Resource Waters. The permittee shall implement best management practices for erosion, turbidity, and other pollution control to prevent violation of state water quality standards. Temporary erosion control measures such as sodding, mulching, and seeding shall be implemented and shall be maintained on all erodible ground areas prior to and during construction. Permanent erosion control measures such as sodding and planting of wetland species shall be completed within seven days of any construction activity.

   Turbidity barriers shall be installed and

   maintained at all locations where the possibility of transferring suspended solids into wetlands and other surface waters exists due to the permitted activity. Turbidity barriers shall remain in place and shall be maintained in a functional condition at all locations until construction is completed and soils are stabilized and vegetation has been established. Thereafter the permittee shall be responsible for the removal of the barriers. The permittee shall correct any erosion or shoaling that causes adverse impacts to the water resources.

7. The Petitioners argue essentially that, notwithstanding Rule 62-341.427, these portions of Rule 62-341.215 require Palmer to give all of the reasonable assurances that would be required for any standard ERP. Specifically, they argue that Palmer must provide reasonable assurances based on plans, test results, or other information that the proposed project: (1) will not violate water quality standards; (2) is clearly in the public interest; (3) satisfies anti-degradation permitting requirements,

   in particular for Outstanding Florida Waters; and (4) meets all applicable conditions pertaining to noticed general permits, including the applicable provisions of Florida Administrative Code Chapter 40D-4. Citing Save Ann Maria, Inc., v. Dept of Transp. and Dept. of Environmental Protection, 700 So. 2d 113,

   117 (Fla. 2d DCA 1997), the Petitioners argue that reasonable assurances must include evidence of baseline water quality or water quality in the year prior to Palmer's application.

8. It is concluded that the Petitioners' arguments must be rejected. It is clear that the Legislature and the Department intended to establish a program of noticed general permits for the purpose of giving applicants for projects "which have, either singly or cumulatively, a minimal adverse environmental effect" relief from the more burdensome standard permitting requirements. Section 403.814(1), Florida Statutes (1997). See also Florida Administrative Code Rule 62-341.201(1) (noticed general permits are for "those activities which have been determined to have minimal impacts to the water resources of the District, both individually and cumulatively.") It would make no sense to interpret Florida Administrative Code Rule 62-341.215(2) in such a way as to deny applications that do not meet standard permitting. Properly interpreted, Florida Administrative Code Rule 62-341.215(2) presumes the validity of the noticed general ERP and speaks to the conduct of activities under the permit.

9. It is clear from Florida Administrative Code

   Rule 62-302.300(18)(a) that the Outstanding Florida Waters public interest test does not apply to noticed general permits. The rule provides:

   Except as provided in subparagraphs (b) and

   (c) of this paragraph [which are inapplicable to this case], an applicant for either a general permit or renewal of an existing permit for which no expansion of the discharge is proposed is not required to show that any degradation from the discharge is necessary or desirable under federal standards and under circumstances which are clearly in the public interest.

   DEP has consistently interpreted the rule as written. (It is noted that, in contrast, Florida Administrative Code Rule 62- 341.437, establishing a noticed general permit for the installation of fences, does not provide for such a permit in Outstanding Florida Waters.)

   DOAH Case No. 96-0736

   
   

10. Under Article X, Section 11, of the Florida Constitution, sovereignty submerged lands are held by the State in trust for the use and benefit of all the people of the State.

11. The Board of Trustees of the Internal Improvement Trust Fund (the Board) has been authorized by the Legislature to administer the State's sovereignty lands, and has been directed to adopt rules and regulations governing the exercise of its statutory duties. Section 253.03(7), Florida Statutes. The rules adopted by the Board which govern the management of sovereignty submerged lands are contained in Florida Administrative Code Chapter 18-21.

12. Florida Administrative Code Rule 18-21.001 provides:

    
    

    The intent and purpose of this rule is:

    1. To aid in fulfilling the trust and fiduciary responsibilities of the Board of Trustees of the Internal Improvement Trust Fund for the administration, management and disposition of sovereignty lands;

    2. To insure maximum benefit and use of sovereignty lands for all the citizens of Florida;

    3. To manage, protect, and enhance sovereignty lands so that the public may continue to enjoy traditional uses including, but not limited to, navigation, fishing and swimming;

    4. To manage and provide maximum protection for all sovereignty lands, especially those important to public drinking water supply, shellfish harvesting, public recreation, and fish and wildlife propagation and management;

    5. To insure that all public and private activities on sovereignty lands which generate revenues or exclude traditional public uses provide just compensation for such privileges; and

    6. To aid in the implementation of the State Lands Management Plan.

13. Florida Administrative Code Rule 18-21.004 provides in pertinent part:

    1. All activities on sovereignty lands shall require a lease, easement, consent of use, use agreement or other form of approval. The following shall be used to determine the form of approval required:

       1. Consent of Use -- is required for the following activities . . .:

          1. A single dock or access channel which is no more than the minimum length

             and size necessary to provide reasonable access to navigable water;

          2. Docks, access channels, boat ramps, or other activities which preempt no more than 1,000 square feet of sovereignty land area for each 100 linear feet of shoreline in the applicant's ownership (see 'preempted area'

          definition Rule 18-21.003(36)[sic], Florida Administrative Code). Proportional increases in the 1,000 square foot threshold can be added for fractional shoreline increments over 100 linear feet . . ..

          
          

          Florida Administrative Code Rule 18-21.003(38) defines "preempted area" as follows:

          "Preempted area" means the area of sovereignty lands from which the traditional public uses have been or would be excluded to any extent by an activity. The area may include, but is not limited to, the sovereignty lands occupied by the docks and other structures, the area between the docks and out to any mooring pilings, and the area between the docks and the shoreline. If the activity is required to be moved waterward to avoid dredging or disturbance of nearshore habitat, a reasonable portion of the nearshore area that is not impacted by dredging or structures shall not be included in the preempted area.

          Under these rules, a consent of use is the appropriate form of approval for Palmer's dock.

          1. Palmer's Riparian Rights.

             
             

14. Florida Administrative Code Rule 18-21.004(3)(b) provides:

    Applications for activities on sovereignty lands riparian to uplands can only be made by and approved for the upland riparian owner, their legally authorized agent, or persons with sufficient title interest in uplands for the intended purpose.

    
    

15. Florida Administrative Code Rule 18-21.007(1) requires in pertinent part:

    Applications for consent of use shall include the following:

    * * *

    (c) Satisfactory evidence of title in subject riparian upland property or demonstration of sufficient title interest in uplands for the intended purpose . . ..

    
    

    Florida Administrative Code Rule 18-21.003(49) defines "satisfactory evidence of title" as follows:

    "Satisfactory evidence of title" means a warranty deed or a current title insurance policy issued by a title insurance company authorized to do business in the State of Florida, or an opinion of title prepared by a member of the Florida Bar, covering title to lands involved and indicating, at least, such minimum interest in the applicant which may entitle the applicant to the relief sought, or such affidavits as may be required by the department to establish the currency of title status of an applicant.

16. Utilizing the first option under Rule 18-21.003(49), Palmer included in his application for consent of use a warranty deed purporting to convey to him and his wife ownership of the upland riparian rights necessary for Palmer to obtain a consent of use under Florida Administrative Code Chapter 18-21. The Petitioners were allowed to add as an issue in this case whether this warranty deed was sufficient; subsequently, they contended that proof of Palmer's upland riparian rights would require establishment of the boundary between Palmer's property and state-owned lands and that the circuit court has exclusive jurisdiction to establish such a boundary.

17. Section 26.012(2)(g), Florida Statutes (1997), provides in pertinent part that the circuit courts of the state "shall have exclusive original jurisdiction . . . in all actions

    involving the title and boundaries of real property." Where, in a consent of use application case, the owners of adjoining private property dispute the boundary between their respective riparian rights, DEP has deferred to the circuit court. See Final Order, Hageman v. Dept. of Environmental Protection, DOAH Case No. 94-6794 etc., 17 F.A.L.R. 3684 (DEP 1995). Cf. also

    Buckley v. Dept. of Health and Rehab. Services, 516 So. 2d 1008, 1009 (Fla. 1st DCA 1988).

18. It is concluded that this case is distinguishable from the Hageman case. In this case, there is no dispute as to the boundary between Palmer's property and any other privately-owned property. Instead, the Petitioners in this case assert that the State of Florida owns a narrow strip of upland property between the Palmer property and the mean high water line.

19. Notwithstanding the Petitioners' assertion, the State of Florida has not claimed ownership of the property. To the contrary, the DEP gave notice of its intention to grant Palmer consent of use of the sovereign, submerged lands necessary for Palmer's proposed dock; and, while not entirely consistent throughout this proceeding, DEP ultimately took the position in its proposed recommended order that consent of use should be granted. Given the requirements of Rule Chapter 18-21, DEP's notice of intended action and proposed recommended order would appear to be inconsistent with a claim to ownership of upland

    property between the Palmer property and the mean high water line.

20. It is concluded that, since DEP does not claim ownership of any upland property between the Palmer property and the mean high water line, this administrative proceeding on Palmer's consent of use application is not the equivalent of an "[action] involving the title and boundaries of real property." As a result, DEP has jurisdiction to proceed on the Palmer's consent of use application.

21. It also is concluded that Palmer's evidence was sufficient to prove that he has the necessary riparian rights for a consent of use under Florida Administrative Code Chapter 18-21. The August 27, 1993, Warranty Deed from James Kirk conveyed property "along the shores of Sarasota Bay." The evidence was that this conveyed title to land to the mean high water line. (The "shore" is the land lying between the high and mean low water lines. See Axline v. Shaw, 17 So. 411 (Fla. 1895); Broward v. Mabry, 50 So. 826 (Fla. 1909).) The September 3, 1993, Warranty Deed from Kirk only purported to convey property to the seawall, omitting a narrow strip between the seawall and the mean high water line, but the second deed could not "un-deed" what already had been conveyed by the August 27, 1993, Warranty Deed. Even if it could, the October 20, 1993, Quit Claim Deed from Kirk specifically quitclaimed "all of the Grantor's property to the mean high water line of Sarasota Bay, including riparian rights."

22. The mysterious September 3, 1993, Warranty Deed, together with the boundary survey based on it, appeared to encourage the Petitioners to contend that Kirk never had title to the narrow strip of upland property between the seawall and the mean high water line. Regardless whether he did, it is clear that the August 27, 1993, Warranty Deed met the requirements of Rules 18-21.007(1)(c) and 18-21.003(49).

23. It also is concluded that, since neither the State nor anyone else is claiming ownership of the narrow strip of upland property between the seawall and the mean high water line, Palmer has "sufficient title interest in uplands for the intended purpose," within the meaning of Florida Administrative Code Rule 18-21.003(3)(b).

    1. Other Consent of Use Criteria.

    
    

24. Florida Administrative Code Rule 18-21.004 also provides in pertinent part:

    The following management policies, standards, and criteria shall be used in determining whether to approve, approve with conditions or modifications, or deny all requests for activities on sovereign submerged lands.

    1. General Proprietary

       (a) For approval, all activities on sovereignty lands must be not contrary to the public interest, except for sales which must be in the public interest.

       * * *

    2. Resource Management

       1. All sovereignty lands shall be considered single use lands and shall be managed primarily for the maintenance of essentially natural conditions, propagation of fish and wildlife, and traditional recreational uses such as fishing, boating,

          and swimming. Compatible secondary purposes and uses which will not detract from or interfere with the primary purpose may be allowed.

       2. Activities which would result in significant adverse impacts to sovereignty lands and associated resources shall not be approved unless there is no reasonable alternative and adequate mitigation is proposed.

          * * *

          (i) Activities on sovereignty lands shall be designed to minimize or eliminate adverse impacts on fish and wildlife habitat. Special attention and consideration shall be given to endangered and threatened species habitat.

          * * *

    3. Riparian Rights

       1. None of the provisions of this rule shall be implemented in a manner that would unreasonably infringe upon the traditional, common law riparian rights of upland property owners adjacent to sovereignty lands.

          * * *

          1. All structures and other activities must be within the riparian rights area of the applicant and must be designed in a manner that will not restrict or otherwise infringe upon the riparian rights of adjacent upland riparian owners.

          2. All structures and other activities must be set back a minimum of 25 feet from the applicant's riparian rights line. . . .

          Florida Administrative Code Rule 18-21.003 defines "public interest" and "riparian rights" as follows:

          (40) 'Public interest' means demonstrable environmental, social, and economic benefits which would accrue to the public at large as a result of a proposed action, and which would clearly exceed all demonstrable environmental, social, and economic costs of the proposed action. . . .

          * * *

          (47) 'Riparian rights' means those rights incident to lands bordering upon navigable

          waters, as recognized by the courts and common law.

          
          

25. Under Rule 18-21.004(1)(a), it was not necessary for Palmer to prove that granting his consent of use would be "in the public interest"; he only had to prove that granting his consent of use application is "not contrary to the public interest." It is concluded that Palmer's evidence was sufficient proof. The evidence did not prove that there would be "demonstrable environmental, social, and economic benefits which would accrue to the public at large as a result of a proposed action . . . which would clearly exceed all demonstrable environmental, social, and economic costs of the proposed action." But the evidence was that there are few if any "demonstrable environmental, social, and economic costs of the proposed action."

26. As for Rule 18-21.004(2)(a), it is concluded that Palmer's evidence was sufficient to prove that his proposed dock "will not detract from or interfere with" "maintenance of essentially natural conditions, propagation of fish and wildlife, and traditional recreational uses such as fishing, boating, and swimming." The proposed dock will be for allowable "compatible secondary purposes and uses."

27. Under Rule 18-21.004(2)(b), Palmer's evidence was sufficient to prove that the activities for which he seeks consent of use would not result in significant adverse impacts to

    sovereignty lands and associated resources. Any adverse impacts would be relatively minor.

28. Under Rule 18-21.004(2)(i), Palmer's evidence was sufficient to prove that his proposed dock is "designed to minimize or eliminate adverse impacts on fish and wildlife habitat," giving due attention and consideration to endangered and threatened species habitat. Palmer's proposed dock will more than meet the requirements for a noticed general ERP under Florida Administrative Code Rule 62-341.427--there will only be one boat lift and slip. The design will minimize impact on seagrasses, and any manatees in the area, which is not preferred by them, could swim around or, depending on the size and location of the animal, perhaps even under the structure.

29. As for Rule 18-21.004(3), the evidence was sufficient to prove that Palmer's proposed dock will be "within the riparian rights area of the applicant" (Conclusions 58 through 67, supra) and "designed in a manner that will not restrict or otherwise infringe upon the riparian rights of adjacent upland riparian owners." The proposed dock meets the setback requirements of Rule 18-21.004(3)(d) and the length requirements for a consent of use for a dock under Rule 18-21.005(1)(a). Although the proposed dock will have some impact on the neighbors' views and their use of Sarasota Bay, there will be no impact on their access to navigable waters and no unreasonable impact on their views or use of Sarasota Bay.

30. This case is clearly distinguishable from Lee County v. Kiesel, 705 So. 2d 1013 (Fla. 2d DCA 1998). In that case, as a result of the angle at which Lee County constructed a bridge across the Caloosahatchee River, the bridge crossed the front (river side) of the Kiesel property, obstructing eighty percent of the view to the channel. This was held to substantially and materially interfere with and disturb the Kiesels' riparian right of view across the waters and constitute actual physical intrusion to appurtenant right of property ownership, even though bridge did not rest on their property. The evidence was that the impairment of the view reduced the value of the Kiesel property by more than half and was held to support the property owners' claim to inverse condemnation.

31. It is concluded that, in contrast to the infringement of the Caloosahatchee bridge on the Kiesels, Palmer's proposed dock will not "unreasonably infringe upon the traditional, common law riparian rights of upland property owners adjacent to sovereignty lands."

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Department of Environmental Protection enter a final order issuing Noticed General Environmental Resource Permit (No. 292583) and Consent of Use (No. 582819483) to Roy Palmer.

DONE AND ENTERED this 1st day of September, 1998, in Tallahassee, Leon County, Florida.

J. LAWRENCE JOHNSTON Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 1st day of September, 1998.

COPIES FURNISHED:

Richard Filson, Esquire Filson and Penge, P.A.

2727 South Tamiami Trail, Suite 2

Sarasota, Florida 34239

Thomas I. Mayton, Esquire

T. Andrew Zodrow, Esquire

Department of Environmental Protection 3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

David M. Levin, Esquire Icard, Merrill, Cullis, Timm,

Furen & Ginsburg Post Office Box 4195

Sarasota, Florida 34237

Alexandra St. Paul, Esquire The Riverview Center

1111 3rd Avenue, West Suite 350

Bradenton, Florida 34205

Kathy Carter, Agency Clerk

Department of Environmental Protection Office of General Counsel

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

F. Perry Odom, General Counsel Department of Environmental Protection Office of General Counsel

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 96-000736

Orders for Case No: 96-000736